RSA No. 2162 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2162 of 2009(O&M) Date of Decision: February 10, 2010 Jodh Singh and others ...... Appellants Versus Gurjit Kaur and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Arun Palli, Senior Advocate with Mr. Kanwal Goyal, Advocate for the appellants. Mr.A.K.Chopra, Senior Advocate with Mr. Rajneesh Chauhan, Advocate for respondents No. 1 to 5. Mr. Munish Gupta, Advocate for respondent No.6. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgment and decree of the learned Lower Appellate Court setting aside that of the learned trial Court and thereby dismissing the suit of the appellants for declaration and permanent injunction praying that they had become owners of the property of Karam Singh. The appellants had claimed that Karam Singh had died issueless and had made a will in favour of appellants No. 1 to 9 dated RSA No. 2162 of 2009(O&M) 2 17.03.2002. In the alternative it was pleaded that in case the Will is not proved then the appellants No. 10 to 13 being the brothers of Karam Singh would inherit the property. Challenge was made to the mutation of the property of Karam Singh in favour of Gurmeet Kaur. In the written statement respondent Gurmeet Kaur denied the fact that Karam Singh had died issueless and claimed that she was his daughter. She further claimed that she was born in the year 1958 and, since her mother died in the year 1962 and there was no body to look after her, her father left her at her matrimonial grand father's place where she was brought up. She denied that her father Karam Singh had made any Will in favour of appellants No. 1 to 9 and claimed that the mutation of inheritance of the property of Karam Singh was rightly sanctioned in her favour. The learned trial Court disbelieved the will and also held that Gurmeet Kaur was not proved to be the daughter of Karam Singh and consequently passed the alternative decree to the effect that the appellants No. 10 to 13 had inherited the property of Karam Singh. Against the finding on the Will, no appeal was filed by the appellants No.1 to 9 but Gurmeet Kaur filed an appeal against the alternative decree. The learned Lower Appellate Court held that Gurmeet Kaur was proved to be the daughter of Karam Singh and also confirmed the finding regarding the invalidity of the Will propounded by the appellants No. 1 to 9. Consequently the learned Lower Appellate court dismissed the suit as mentioned above. The following questions have been proposed:- i) Whether the learned Additional District Judge has taken the evidence on record into consideration in the right perspective and has not overlooked the law laid down by Hon'ble Apex RSA No. 2162 of 2009(O&M) 3 Court and High courts in various judgments? ii)Whether the learned Addl. District Judge was justified in holding that onus to prove was on the appellants that Gurmeet Kaur was not the daughter of Karam Singh? iii)Whether a document not duly proved can be taken into consideration to record a perverse finding? iv)Whether the findings of the learned Addl. District Judge are perverse qua the fact that Gurmeet Kaur has not been able to prove herself to be the daughter of Karam Singh? It would be seen that all the questions proposed are pure questions of fact except question No.(ii). As regards question No.(ii) even though generally it may be said that onus to prove a negative fact cannot be placed on a party yet it has been held repeatedly that the question of onus in civil proceedings cannot be considered to be of overwhelming importance as onus keeps on shifting. What the court has to do is to examine and analyse the entire evidence led by the parties and then draw its conclusions accordingly. In the circumstances, in my considered opinion, the decision on question No.(ii) would not determine the fate of this controversy. As regards question No. (iii), learned counsel has argued that the school leaving certificate (showing the respondent as daughter of Karam Singh) could not be considered to be admissible since the Principal was not examined and was rightly ignored by the trial court on this ground. The learned lower Appellate Court relied upon Maharaj Bhanudas Gosavi v. Krishnabai chintaman desh Pande reported as AIR 1927 Bombay 11 and Ajjarapu Subbarao v. Pulla Venkata Ram Rao and others reported as AIR 1964 Andhra Pradesh 53 to hold that such certificates being public documents are admissible per se. Learned counsel for the respondents has further relied upon Shyam Lal alias Kuldeep v. Sanjeev Kumar and RSA No. 2162 of 2009(O&M) 4 others 2009 AIR SCW 5006 wherein the Hon'ble Supreme Court has also held that such a document falls within the ambit of S. 74 of the Evidence Act and is admissible per se without formal proof. In this view of the matter question No. (iii) has to be answered against the appellants. As regards questions No. (i)and (iv) they both are general questions on fact. Learned counsel has not been able to persuade me that the finding that Gurmeet Kaur was proved to be the daughter of Karam Singh is either based on no evidence or on such perverse misreading of evidence so as to be liable for interference under Section 100 CPC. Consequently holding all the questions proposed against the appellants, this appeal as well as the application for stay are dismissed. No costs. (AJAY TEWARI) JUDGE February 10, 2010 sunita