496n No629 of 2006 1 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Misc No1327 C of2006 and RSA No629 of 2006 Dateofdecision 08 09 2010 m SewaRam odeceasedl throughlegal 0 t Appellant versus I Z 5 KamlaDevi alias Sunehriand others er c2S er 1 7 CORAM 1eHONBLE MRJUSTICE KPURJ Z Ll e e 1 Presentl Allr Ashish AggarwalAdvocaterfor the Mr Auli Jain SeniorAdvocate with MrC Sthia Advocate for the KCURI Je This is an appealdirected by lant againstthe and decree dated 882005 passedby Shri Manjit Singh AdditionalDistrict JudgeKamal vide which the appcalprefenedbythe . Anita 2012.07.20 13: 13 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 497n rl RSA No629 of 2006 2 defendant appellantagainstthe judgment and decree dated 1592003 passedby Shri AC Mehta Civil JudgeOuniorDivision Karnal was dismissed The case of the plaintiffin brief is that Kamla Devi alias Sunheriplaintiffdaughterof Smt Krishni widow of Shish Rain was married in the year 1952with Ram Chander son of ShriLaxmi Narian now Lr resident of villageMehra Tehsil Thanesar District Kurukshetra Her name 0 t justafter her birth and priorto marriage was Sunehraand was cbanged to Kamla Devi before marriage for the sakeofmaniageDefendant Sewa Ram C 1S husbands fathers brothers grandson of Smt Krishni widow of Shish Ram motherof theplaintiffand the showingthe relations 1S Z asunder l Sahu 1 Z c8 r 1 Parsanna Rala Ram 1 1 7 Anant Ram SisL3 ShishRam 1 Z 1 1 SewaRam Krishni 6widow 0 1 1 Som Parkash Kamla deceasedl plaintifo The plaintiff further pleadedthat Sisu was owner of agricultural land detailed in para No3 of the plaintbefore consolidation as well as afler consolidation The said Sisu expired on 871941 and the suit land was mutated in the name of Som Parkash SOIl of Sisu vide mutation 1110574dated 6 1 1942 Som Parkash also expiredon 1621942 The . Anita 2012.07.20 13: 13 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 498n RSA No629 of 2006 3 1 e property inheritedbySom Parkash from Sisu was inheritedbySmt Krishni vide mutation No 5821584dated 223942 Thus Smt Krishni became absolute owner of the suit land inherited a8er the death of Som Parkash Smt Krishni aRer the deathof Som Parkashperfonned the maniage of her daughter Sunehri alias Kamla pIaintiffin the year 1952 Her daughter plaintifstartedlivingin her matrimonialhome at villageMehra ARer the 1 performance of marriage of her daughter Smt Krishni had no survivlng 0 0 memberofher familyto joinher company Since her husbandand son had I alreadyexpiredand her daughter was married So she had leR with no D charm in leadingworldlylife She beinga ladyof religious and inclination gave the entirepropertyto Smt Kamla plaintiffin a family Z settlementmakingand her the sole exclusive owner in l possessionof the suit land and sheleft for pilgrimage in the year1958with I an expressintention to come back as and when requiredShe was a3 of a reasonableamount of cash and ornaments on her person and did tlOt 7 want to take any 6nancia1helpor assistance from the plaintiffSince 1958 Z 0a uptoone or two yearsthe plaintiffhas beenreceiving the information about her mother Smt Krishni beingat Gayaand some times at different places However later on the information ceased to come 111the year 1960nd thereafterno informationhas been received Best effons were made bythe plaintiffandher husband to trace the said Smt Krishni but she could not be traced and as per assertionof theplaintiffshepresumedher nt Krishnil to be dead It is allegedthat the plaintiffbyvirtue of the familysettlement remained owner in of the SU1t land throuphher tenants However the entries lll the revenue record were not corrected due to . Anita 2012.07.20 13: 13 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 499n R No629 of 2006 4 notion to Iet the name of her mothercontinue in record till she is to be extinct It is further allegedby the plaintiffthat defendant Sewa Ram gota civil court decree dated 29Al 988 passedin his favour againstSmt Kiaishnialias Mansa widow of Siri Ram vide civil suit No 456 of 1988 institutede on 191988 andthe and decreeare liable to be set Pt aside on the that the plaintiffwho is daughter of Smt Krishni 0 widow ofSisuhad become owner in ofthe suit land byvirtue of I familysettlemententeredin the year 1957and whereaboutsofSmt Krishni widow of Sisu were not known since 1980 and she is to be civillydead That Smt Krishni widow of Sisu was never known by the Z nameof Mansa Devi and could not giveany title to SewaRam defendantin 2 thesuit land since theallegedSmt Krishni alias Mansa Devi was not owner ofthe suit propertyand she was having no right title or interestin the same a5 That the suit propertywas owned by Smt Krishni widow of Shish Ram S7 aliasSisu motherofthe plaintiffandallegedKrishni alias Mansa Devi had Z no title which she could pass on to the defendantand the said decreedoes Llm not confer any title upon the defendant There hasbeen no familysettlement asallegedbythe defendantin civil suit No 458 of 1988 nor therecould be anysuch familysettlementbecauseSmt Krishni had Ie the villagein the year 1958 and never retumed to village SO the questionof family settlementrenderingof servicesto her and any relation inter se betweenthe defendantand said Smt Krishni doesnot arise That the defendant or Smt Krishni were never in ofthe suit land That thejudgment and decreeare also liable to be set aside as the immovable propertyhaving . Anita 2012.07.20 13: 13 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 200 RSA No629 of 2006 5 4 r value of more than Rs001 could not be transferred in favour of the defendant without proper under Section 17 of the Indian Act Since the defendanthad rised to admit the claim ofthe plaintiffso theplaintiffhad to brought the suit Defendant Sewa Ram 61ed his written statement taking objections that Smt Krishni alias Mansa who suffered the 1 decree in questionin favour of the defendantis very much in Oesh and 0 blood and is livingwith the defendantin his housein villageBarthal who 1S servingher with love and affection and with all necessitiesof life including D food clothes etc so theplaintiffhas got no locus standito Sle and maintain the presentsuit the suit is bad for misoinder and norjoinderof necessary Z and proper partiesSmt Krishni alias Mansa allegedmotherof theplaintiff is necessarypartyto the suit the suit has not been properlyvalued for the I purposesof court fee and jurisdiction and is also not maintainable in the 08 presentform mmw Defendant Nol admittedthe ownership of Smt Krishni The Z defendantdeniedthat Smt Krishni left for pilgrimagethe year 1958and in L1 pleadedthat she never left the villageBarthal and is livingin villageBarthal with the defendantand never transferredthe suit land to the plaintiffShe is livingwith the defendant in his house Slnce long It is the defendant who is servingher with love and affection and with all the necessities of life and had been helpingher in the managementand cultivation of the land in disputepriorto when she transferredthe same ill favour of defendantin an oral familysettlementarrived ai betweenher and the presentdefendant Since the commencement of the said oral family . Anita 2012.07.20 13: 13 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 201 No629 of 2006 6 1 settlementwhich was conOrmed vide the civil court decree dated 29A1988 The defendant is in actual physical of the propertyltl question as owner The defendant 8irther pleadedthat the plaintiffdid not care to get the mutation in her favour if the said Stnt Krishni was not beingheardsincelongand was civillydead The defendant further pleadedthat Smt Krishni was also known by the name of Smt Mansa Devi Her deceasedhusband was also known bythe name of Shish 0 Ram alias Siri Ram and as such Smt Krishni alias Nlansa Devi has rightly I transferredthe suit land in favour of the defendant as she was illy to do so beingthe absoluteowner ofthe same The decreepassed I 111favour of the defendant is valid and legalIt is filrther pleadedthat the Z defendanthas also acquired therightsof ownership of the SUit land left by Smt Krishni after her death on the groundthat the deceasedSmt Krishni had executed a Will in favour of the defendant which was c8 in the office of SuIegistrarNilokheri on 15A 1988 mw Defendant No2 Krishni alias Mansa Devi without prejudice to Z the rightsof the plaintiffwas also impleaded as party to the suit ln her 0 wrltten statement a pleahas been taken by her that she is known as Smt Krishni alias Mansa Devi and she is the rea1mother ofthe plaintiffand is verymuch livingin villageBarthaI Tehsil Nilokheri District Kamal She was owner of the disputedpropertyand suffered a decree in favour of defendantNo aRer appearing lll court givinga written statement and oral statement before the court admitting the claim of defendant nol 6thethen plaintifoin civil suit No 456 of 1988titled as Sewa Ram VS Smt Krishni alias Mansa Devi and defendantNol is in actual physical oftohe . Anita 2012.07.20 13: 13 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 202 1 J RA No629 of 2006 7 1 SUit land since long The plaintiffhas concealed the true and material facts from the court The plaintiffhas no locus standi to file and maintain the present suit and hasalso no cause ofaction She lrtherpleaded that shehas two names and her husband was also two names She pleadedthat Smt Krishni widow of Shish Ram is no other ladythan her She also prayedfor dismissalofthe suit denyingall theallegations ofthe plaintiff 1 C Replications to the written statements were 61ed From the 0 pleadings ofthe partiesfollowingissueswere 8amed 1 Whether the particularof the suit land are correctly 0 mentionedin theplaint2OPP 2 Whether the suit land was mutation ln the name of Som Z Parkash son ofShishu Ram ifso to what effect2OPP 3 Whether the said Som Parkash died and his propertywas inherited by Smt Krishna Devi and Krishna Devi was its c8 owner in OPP w 4 Whether Smt Krishna Devi is civillydead and theplaintiff Z in her will and got the suit land as allegedin the plaint2 OPP 5 Whether decree 111 civil suit No 456 of 1988 decreed on 29A1988 passedbyMs Vivek Bharti SJ Kamal is liable to be set aside on thegroundsmentionedin theplaint7OPP 6 Whether Smt Krishni alias Mansha is the widow of Shish and is alive2 OPD 6AWhether the defendantNo 2 is the motherofthe plaintiffonus ofproofondefendantNo7 OPD 029 . Anita 2012.07.20 13: 13 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 203 RSA No629 of 2006 8 6B Whether the deceasedKrishni has executeda will in favour of defendant which was in the office of Sub RegistrarNilokheri and whetherbyvirtue of the Will defendant has become absolute owner of the property left byKrishni2 OPD 7 Whether the suit is bad for mis40inder and non40inder Ce ofnecessary parties2 OPD 0 8 Whether the suit is not properlyvalued for the purposes ofcourt fee OPD C I 9 Whether the plaintiffare entitled to specialcosts as claimed2 OPD Z 10RelieE Both the partieshave led their respective evidence on the I aforesaid issues 08 After perusalof the evidenceand hearingthe learned counsel 7 for thepartiesthe leamedtrial Court partlydecreedthe suit ofthe plaintiff Z and decreedated1592003 Feelingdissatisfied with the judgment and decree dated 1582003 the defendantpreferredappealbefore the First AppellateCourt The said appealwas heard and dismissed byMr ManjitSinghAdditional District JudgeKamal and decreedated882005 Feelingdissatisfied with the judgmentand decree dated 882005 passedby Mr ManjitSinghAdditional District JudgeKarnal haspreferred thepresentregularsecondappeal . Anita 2012.07.20 13: 13 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 204 1 RA No629 of 2006 9 1 I haveheard learned counsel for the partiesand have gone through the recordsofthe case with their help Learned counsel for the has submitted that both the Courts below have misread and the evidence on the Sle as thedocumentExDllIB clearlyshows that Krishani Devi alias Ilsa 1S wife of Shish Ram This documenthas been ignoredbythe trial Coun on C the groundthat againstthe name Krishni alias Mansa has been entered 0 t lateron The decreewas sufferedbyKrishni alias Mansa in favour of Sewa Ram That decree is a valid document Both the Courts below have CD wronglydecreedthe suit ofthe plaintif It is 8lrther submittedthatapplication under Order 41 Rule 27 Z ofthe Code ofCivil Procedureto lead additional evidence has beenmoved 2 L It is submittedthat from the certi6ed copiesof pensionpapers ration card I and voter card it is apparentthat Krishna widow of RajaRam of village 08 Bara Gaon Tehsil and District Karnal is still alive She is the real sister of 1 Mansa Devi widow of Shish Ram Mansa Devi is the mother of plaintiff Z and afterthe deathofSom Parkashon 162982 she is livingin the family 1 of Anant Ram father of appellantThis fact is apparentfrom the voter list etc Mansa Devi never left thevillage on pilgrimage to Gayaas well in the plaint So pennissionhas been soughtto placeon file the aftldavit of Krishni widow of RajaRam and she be allowed to examine as witness in thepresentcase in theinterestofjustice The said applicationhas been opposedby the plaintiffe . Anita 2012.07.20 13: 13 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 205 R No629 of 2006 10 B So far as the application for additional evidence to placeon recordthe affidavit of Krishni widow of RajaRam resident of VillageBara Gaon byway of additional evidence is concemed I am of the considered view that said under Order 41 Rule 27 of the CPC at the stagecannot be allowed In case the oral evidence is taken at the stageof regularsecond appeallll thatcase there would be no end of the 1t The oral evidence to be producedby Krishni alleged widow of 0 Raja Ram would not advancethe case of theappellant in any manner The I saidevidence was well within theknowledge ofthe appellant and the same D couldbe producedbyexerciseof due diligenceThe additional evidence is not bythe Court to pronounceitsjudgment or not by the Z Court for itsjustdecision Otherwise also the controversyin the present r appeal is whether the decree has been sufferedby Krishni herself or is the result of Both the Courts below have givena concurrent c8 findingof fact that Sewa Ram had obtainedthe decreeby That findingof fact cannot be allowed to be challenged in the second Z appealThe Courts below have rightlyheld that in the voter list Krishna e aliasMansa has been addedjustto make out a false case It is admittedby all the witnessesproducedby theappellant that Mansa and Krishni are the sistersSo bybranding Krishni alias Mansa is an theoryjust to grabthe propertyof rightfulowner No substantialquestionof law has arisenin the presentcase So in vlew of the above discussion the applicationfor additional evidence as well as the appealstand dismissed with costs . Anita 2012.07.20 13: 13 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 206 1 RSA No629 of 2006 11 1 11 41 A copy of this judgment be sent to the trial Court for strict 6 9 JUDGE 2010 SV 1 1 0 0 D Z t 08 m7 Z L1 4 e 11 110 04 10 11 . Anita 2012.07.20 13: 13 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document