IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2933 of 2005 Date of Decision : September 05, 2009 Nazar Singh and others .....Appellants Versus Smt. Bachni and others .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. H.S. Dhandi, Advocate for the appellants. Mr. M.L. Saggar, Senior Advocate with Mr. G.S. Brar, Advocate for respondents No.1 and 2. T.P.S. MANN, J. Suit filed by Smt. Bachni and Smt. Kishno-respondents No.1 and 2, respectively, against the appellants and respondent No.3 was decreed by learned Civil Judge (Junior Division), Ludhiana on 21.2.2004 and they were declared as co-owners in joint possession to the extent of 2/6th share in the suit land measuring 115 kanals 8 marlas situated in village Seerah, Tehsil and District Ludhiana. The defendants were restrained from alienating the said shares of the plaintiffs. The judgment and decree passed by the learned trial Court was challenged by the defendants-appellants by filing the first appeal under Section 96 of the Code of Civil Procedure but the same was dismissed by learned Additional District Judge, Ludhiana on 19.5.2005. Aggrieved of the same, the defendants are before this Court in a second appeal filed under Section 100 of the Code. R.S.A. No. 2933 of 2005 -2- According to the plaintiffs, their mother Smt. Nihali, who was married to Mohni, had 6 shares out of 23 shares in the suit land. Smt. Nihali expired about 22 years before the filing of the suit. The mutation of the estate of Smt. Nihali was sanctioned in favour of the plaintiffs, being her legal heirs. This fact was told to them by the predecessor-in-interest of the defendants, who were their cousins. The plaintiffs, being simple and illiterate ladies, had no occasion to doubt what was told to them by their cousins. However, about a months and half earlier to the suit, the defendants started claiming that the plaintiffs had no share in the land in dispute. Accordingly, the plaintiffs obtained copies of the jamabandis from the Halqa Patwari and came to know that mutation was sanctioned in their favour on 18.9.1973 and a note was made in column No.12 of jamabandi for the year 1971-72 in that regard. However, in subsequent jamabandis, their names were omitted by the Halqa Patwari either by mistake or intentionally in collusion with the defendants. In the subsequent jamabandis the share of the plaintiffs was shown to have been owned by the defendants. Accordingly, the plaintiffs prayed for a decree of declaration that they were joint owners in possession of the land which belonged to their mother Smt. Nihali. The case of defendants No.1 to 8 and 10 was that Sain had two marriages. His first wife was Gujri, while Smt. Nihali was his second wife. From the loins of Sain, Smt. Nihali gave birth to three sons, namely, Jethu, Gulzari and Ratna and one daughter Smt. Puro. The defendants denied that Smt. Nihali was the widow of Mohni. After the death of Smt. Nihali on 27.11.1972, the mutation of her estate was sanctioned on 18.9.1973 in the names of her three sons and one daughter, namely, R.S.A. No. 2933 of 2005 -3- Jethu, Gulzari, Ratna and Smt. Puro in equal shares. However, the husbands of the plaintiffs got some false entry made in the revenue record with malafide intention showing Nihali as widow of Mohani, whereas Nihali was the second wife of Sain. Accordingly, prayer was made for dismissing the suit. Ratna, son of Sain, who was impleaded as defendant No.9 in the suit, filed separate written statement. Though he denied the averments made in the plaint, yet he stated that Nihali was first married to Mohni son of Buja and after the death of her husband, Smt. Nihali remarried through Kareva with Sain. He also admitted the fact that the plaintiffs were the daughters of Smt. Nihali from her first marriage with Mohni. After hearing learned counsel for the parties and going through the evidence brought on the record, learned trial Court held that Nihali was previously married with Mohni, brother of Sain. From the loins of Mohni, Smt. Nihali gave birth to the plaintiffs, namely, Smt. Bachni and Smt. Kishno. However, after the death of Mohni, she married Sain from whose loins, she gave birth to three sons namely, Jethu, Gulzari and Ratna and one daughter Smt. Puro. All the six children of Smt. Nihali, two from her first marriage with Mohni and four from her second marriage with Sain, were, thus, entitled to inherit her estate. Accordingly, the plaintiffs were held entitled to inherit the estate of Smt. Nihali to the extent of 2/6th share only and the defendants were restrained from alienating the said share of the plaintiffs in the suit land. The findings arrived at by the learned trial Court were upheld by learned lower appellate Court in the first appeal filed by the defendants. R.S.A. No. 2933 of 2005 -4- In order to prove their case, Smt. Bachni-plaintiff had stepped into the witness box as PW2. The plaintiffs had also examined Sunder Singh PW1, who deposed that Mohni son of Buja was married to Nihali and from the said wedlock, two daughters Smt. Bachni and Smt. Kishno were born. After the death of Mohni, Smt. Nihali entered into a Kareva with Sain, brother of her first husband. Sain was previously married to Smt. Gujri and three children, namely, Jethu, Gulzari and Puro, were born. After the death of Gujri, Sain had a kareva marriage with Smt. Nihali and sired one son, namely, Ratna. On the other hand, defendants examined DW1 Nazar Singh son of Jethu, who deposed that the plaintiffs were not daughters of Smt. Nihali, rather they were daughters of one Mohni. In fact, Jethu, Gulzari, Ratna and Smt. Puro were children of Smt. Nihali from her marriage with Sain and, therefore, they had become the owners in possession of the suit land after the death of Smt. Nihali. From the mutation Ex.D2, it is apparent that the estate of Nihali was mutated in favour of Jethu, Gulzari, Ratna and Puro. However, the pedigree table, annexed with the said mutation, contains mention of Smt. Nihali being previously married to Mohni and out of the said marriage, Smt. Bachno and Smt. Kishno were born. In jamabandi Ex.P3 for the year 1971-72, the suit land was shown in the name of Smt. Nihali as widow of Mohni. From the above, it is clear that Smt. Nihali had given birth to Smt. Bachno and Smt. Kishno-plaintiffs from her marriage with Mohni. After the death of her husband, Smt. Nihali entered into a Kareva with Sain, brother of her first husband. From the union of Smt. Nihali and Sain, four children were born, namely, Jethu, Gulzari, Ratna and Smt. Puro. As such the plaintiffs were rightly held entitled to two out of six shares in the suit land belonging to Smt. Nihali. R.S.A. No. 2933 of 2005 -5- As regards the objection of the defendants to the suit being barred by limitation as the mutation had been sanctioned on 18.9.1973 and the suit being filed on 23.4.1994, it is settled principle of law that there is no limitation prescribed for bringing a suit on the basis of inheritance, more so, when the defendants have not taken the plea of adverse possession. The concurrent findings of facts arrived at by the learned Courts below are based on proper appreciation of the evidence led by the parties. The conclusions arrived on the basis of the same did not suffer from any illegality or infirmity. No substantial question of law, much less substantial question of law, as claimed by the appellants, require determination in the present second appeal. Resultantly, the appeal is dismissed. ( T.P.S. MANN ) September 05, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO