R.S.A.No. 3086 of 1997 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3086 of 1997 Date of decision: 12.8.2009 Sunhera and others ......Appellants Versus Kasumi .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. R.S.Sihota, Sr. Advocate with Mr.B.R.Rana, Advocate, for the appellants. Mr.Arun Jain, Sr.Advocate with Mr.Amit Jain, Advocate, for the respondent. **** SABINA, J. Plaintiff Kasumi filed a suit for declaration and joint possession, which was dismissed by the Sub Judge, Ist Class, Palwal vide judgment and decree dated 23.1.1993. In appeal, the said judgment and decree were set aside by the Additional District Judge (I), Faridabad vide judgment and decree dated 1.9.1997. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the trial Court in para Nos.1 to 7 of its judgment, are as under:- R.S.A.No. 3086 of 1997 2 “ The facts of the plaintiff's case as disclosed in the amended plaint dated 12.5.1988 were that the plaintiff had filed this suit claiming herself as daughter of Gulzari @ Bhassu, who was the owner in possession of the suit land detailed and described in para 2- A and 2-B of the plaint. For better appreciation of the facts of the plaintiff's case, the pedigree table showing the relationship inter se between the parties is given as under:- Prema | | Inder Dhale | | Rajpal Gulzari @ Bhassu | ___________________________ _____________________|_______________________ Smt.Sukhia Jeet Ram Smt.Sukhia Smt.Ram Sarfi Kasumi Smt. Widow entered son (widow) - kali daughter daughter Suna- Karewa Karewa (widow) from from -hra marriage with marriage deft.No.1 Smt. Smt. daughter Gulzari @ Bhassu after the Sukhia Sukhia from after the death death (died in (plff.) Ram- of Rajpal of Rajpal infancy) Kali (Deft. No.2) 2. It is stated that Sukhia the mother of the plaintiff was married to Rajpal son of Inder, after the death of Rajpal, Sukhia performed Karewa marriage with Gulzari son of Bhassu and out of the wedlock two daughters namely Surfi and plaintiff had been born. Surfi had died during her infancy, whereas, defendant No.2 was another daughter of Gulzari from his first wife Ramkali defendant No.1, since deceased. It is stated that Gulzari had left the village Dighot in the year 1938 in the month of Bahandio and he never came back to the R.S.A.No. 3086 of 1997 3 village and had also not been heard by anyone since then. Defendant No.2 was married to Bhajan Lal of village Paigaon, whereas, the plaintiff was married to Girraj of village Kanwar, Tehsil Chata, District. Mathura. It is further stated that as the financial position of defendant No.2 was not sound and in her-in-laws. Therefore, she along with her family shifted to village Dighot and started living with her mother Ramkali in the year 1960. The mutation of inheritance no.2861 regarding the suit land mentioned in para No.2-A was initially entered in the name of the plaintiff and defendant Nos. 1 and 2 and Smt.Sukhia the mother of the plaintiff who had expired on 18.5.1974 but with the connivance of revenue officials and Lumberdar, the defendant No.1 was able to get the said mutation sanctioned in her favour without the knowledge and notice of plaintiff. It is further stated that no notice of the aforesaid mutation proceedings was given to the plaintiff and the same was sanctioned in her absence. As such, the plaintiff was not bound by the aforesaid mutation. Similarly, the mutation of inheritance No.2314 regarding the suit land detailed and described in para no. 2-B was got sanctioned on 31.5.1983 by the defendants No.1 and 2 in their favour in connivance R.S.A.No. 3086 of 1997 4 with the revenue officials and Lumberdar. It is thus stated that the aforesaid mutation No.2861 and 2314 were illegal, null and void and nonest and not binding on the lawful rights of the plaintiff, as the same were sanctioned without notice and at the back of the plaintiff. 3. It is further stated that defendant No.1 in order to create further complications had transferred the suit land in favour of defendants No.3 to 5 vide collusive decree dated 23.5.1975 in civil suit titled Birjpal and others vs. Smt.Ramkali and consequently, the suit land had been mutated in the name of defendants No.3 to 5 in the revenue record. 4. The plaintiff was co-sharer and in joint possession to the extent of ½ share in the suit land. The defendants No.1 and 2 to the extent of ½ share in the suit land. It is thus stated that the plaintiff through this suit seeks a decree for declaration to the effect that she was a co-sharer and in joint possession to the extent of ½ share in the suit land. It is also stated that the parties to the suit belongs to Jat community and they depend upon agriculture and were govered by agricultural customs of Erstwhile Gurgaon District now Faridabad District in the matters of alienation and R.S.A.No. 3086 of 1997 5 succession under the said custom prior to the commencement of Hindu Succession Act, the widow was entitled to succeed to the property of her husband as a life estate. The plaintiff asked the defendants several times to admit her claim and get the entries in the revenue record correct but of no avail, hence this suit. 5. Notice of the suit was issued to the defendants. The defendants filed joint written statement to the amended plaint taking preliminary objections of locus standi, maintainability, limitation, estopple and they were entitled to special costs under Section 35 A CPC. Apart from these preliminary objections it was averred on behalf of the answering defendants that Gulzari @ Bhassu , who was the husband of defendant No.1 and father of defendant No.2 had expired about 50 years ago, since then the defendant No.2 continued to be owner in possession of the suit land and her possession over the suit land as owner had been open, and hostile to all including the plaintiff. 6. On merits, the answering defendants did not admit the plaintiff to be the daughter of Gulzari @ Bhassu. The answering defendants also denied the R.S.A.No. 3086 of 1997 6 factum of Kareva marriage of Sukhia with Gulzari. It was stated that the Sukhia was not the widow of Gulzari and the plaintiff and Barfi were not daughters, of Sukhia from the lion of Gulzari. The answering defendants admitted the defendant No.1 to be the wife of Gulzari and defendant No.2 was the daughter of Gulzari. The answering defendant admitted the marriage of Sukhia with Rajpal son of Inder but they denied the entering of Kareva marriage by Sukhia with Gulzari son of Bhassu after the death of Rajpal. 7. On the other hand, it was stated that Ramkali was the only wife of Gulzari @ Bhassu. It was submitted by the answering defendants that Gulzari @ Bhassu had left the village and had expired about 50 years ago. The answering defendant also admitted the factum of marriage of defendant No.2 with Bhajan Lal of village Pagaon. It was further stated that the plaintiff was the daughter of Rajpal son of Inder and she was married to Girraj of village Kanwar. It was further stated that the mutation of inheritance of the late Gulzari @ Bhassu was correctly sanctioned in the name of defendants No.1 and 2 and there was no need to issue any notice to the plaintiff as she had got no connection with the inheritance of deceased Gulzari @ R.S.A.No. 3086 of 1997 7 Bhassu. It was further stated that the suit land was rightly and legally transferred in favour of defendants No.3 to 5 on the basis of decree in civil suit. The answering defendants denied the plaintiff to be the co- sharer and in joint possession to the extent of ½ share in the suit land. The answering defendants also denied of being governed by agriculture custom in the matter of alienation and succession. At last, it was stated that the suit of the plaintiff was liable to be dismissed with costs.” lOn the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is a co-sharer in the suit land as alleged? OPP 2. Whether the plaintiff has no locus standi to file the present suit? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is not within time? OPD 5. Whether the plaintiff is estopped by her own act, conduct and acquisence ? OPD 6. Whether the defendants are entitled to special costs as alleged? OPD 7. Relief. ” R.S.A.No. 3086 of 1997 8 Learned senior counsel for the appellant has argued that the lower appellate Court had erred in decreeing the suit of the plaintiff. In fact, the suit of the plaintiff was liable to be dismissed as the plaintiff had failed to establish that she was daughter of Gulzari and Sukhia Learned senior counsel for the respondents, on the other hand, has submitted that the plaintiff had been successful in establishing that she was daughter of Gulzari and Sukhia and hence, she was entitled to inherit the property of Gulzari along with his daughter Sunehra. After hearing learned senior counsel for the parties, I am of the opinion that the present appeal is devoid of any merit. As per Ex.P-2, death certificate of Rajpal, it is evident that Rajpal had died on 20.3.1914. Ex.P-3/Ex.DW 5-A are the birth certificates relating to Kashmiri, daughter of Gulzari born on 19.12.1924. The controversy involved in this case is as to whether the said certificates relate to the plaintiff or not. The plaintiff, while appearing in the witness box on 5.8.1989 has disclosed her age as 64 years. From this it can be inferred that the plaintiff was born somewhere around the year 1924. Whether the name of the daughter of Gulzari was Kashmiri or Kasumi but the fact remains that a daughter was born to Gulzari in the year 1924. In order to prove her case that the plaintiff was daughter of Gulzari and Sukhia, plaintiff herself appeared in the R.S.A.No. 3086 of 1997 9 witness box as PW-1 and also examined Toti PW-2, Kanehya PW-3, Jeet Ram PW-4 and Popa PW-5. All the said witnesses have deposed with regard to the fact that after the death of Rajpal, Sukhia had performed kareva marriage with Gulzari and out of the said wedlock, plaintiff was born. Rajpal and Sukhia had a son namely Jeet Ram. Learned Additional District Judge has rightly held that the oral evidence led by the defendants fails to rebut the cogent and convincing evidence led by the plaintiff as Arjun DW-1 is real brother of Ramkali. DW-6 Sunehra and DW-7 Ram Gopal are the respondents in the case. So far as DW-3 Daulat Ram is concerned, he has deposed that Rajpal had died about 15-20 years ago, whereas, as per Ex.P-2, Rajpal had died in the year 1914. DW-2 Nathi has deposed that Kasumi was daughter of Rajpal but no reliance can be placed on his testimony as Rajpal had died in the year 1914, whereas, Kasumi was born in the year 1924. The oral evidence led by the plaintiff also finds support from the documentary evidence. In these circumstances, learned Additional District Judge rightly held that there was a close similarity between Kasumi and Kashmiri and the possibility that instead of Kasumi it might have been written as Kashmiri in Urdu in Ex.P-3 can not be ruled out. Apparently, the mistake was committed by the official, who prepared the certificate Ex.P-3 and the official wrote Kashmiri instead of Kasumi in the birth certificate. Moreover, as per the death certificate of Sukhia Ex.P-4, she is described as wife of Gulzari. Sukhia died on R.S.A.No. 3086 of 1997 10 8.5.1974 in village Dighot. Since the husband of Sukhia died in the year 1914, there is possibility that she performed a kareva marriage with Gulzari and out of the said wedlock, plaintiff was born. Moreover, there is no plea by the defendants in the written statement to the effect that any other daughter namely Kashmiri was born to Gulzari and his wife Ram Kali. It is only in cross-examination, defendant Sunehra, while appearing in the witness box as DW-6, has deposed that her sister Kashmiri was born in the year 1924 and had died at the age of 5-7 years. However, no such plea was taken in the written statement and it appears that the said plea taken by DW-6 in her cross-examination is an afterthought and with a desperate attempt to counter Ex. P-3, birth certificate of the plaintiff. Hence, no reliance can be placed on the said part of the testimony of DW-6. Another document, which is relevant is Ex.P-7. A perusal of the same reveals that initially Gulzari was stated to be survived by two widows i.e. Sukhia and Ram Kali and two daughters Kasumi and Sunehra. However, the said mutation No.2861 was not sanctioned and the name of Sukhia was deleted from there on 15.5.1967 by Assistant Collector First Grade on the basis of statement of Jeet Ram son of Sukhia. However, Sukhia herself did not appear in the said proceedings nor any notice with regard to the said proceedings was issued to the plaintiff. On the basis of the statement of Jeet Ram, who is son of Sukhia and Rajpal, the fate of plaintiff could not be decided. The plaintiff was necessary to be R.S.A.No. 3086 of 1997 11 heard at the time of sanction of mutation on 15.5.1967. However, the said order was passed at the back of the plaintiff. Since the mutation qua the suit property had been entered without any notice to the plaintiff, the same has no bearing on the right of the plaintiff. The entries in the voter list, showed Sukhia as widow of Rajpal, have been rightly discarded by the learned Additional District Judge as the same related to the year 1970. Moreover, Some times no effort is made to get the entries in voter list corrected. However, the said entries are duly rebutted by the death certificate of Sukhia Ex.P-4 wherein she is described to be widow of Gulzari. In these circumstances, learned Additional District Judge had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 12, 2009 anita