Regular Second Appeal No.3938 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3938 of 2007 Date of Decision:-27.7.2011 Mohinder Singh ...Appellant Versus Sanita and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Amit Jain, Advocate for the appellant. Mr.Vijay S.Kajla, Advocate for respondent Nos.2 and 4. Mr.Rose Gupta, Advocate for respondent No.3. Respondent No.1 already exparte. M ehinder S ingh S ullar , J . (Oral) As the Courts below duly recapitulated and described the compendium of the pleadings and evidence brought on record by the parties in detail, so, there appears to be no necessity to again reproduce and repeat the same in the instant regular second appeal. However, tersenessly, the facts, culminating in the commencement, relevant for deciding the present appeal and emanating from the record, are that Mohinder Singh son of Moti Ram appellant-plaintiff (for brevity “the plaintiff”) filed the suit against Smt.Savitri daughter of Moti Ram son of Shera and others respondent-defendants (for brevity “the defendants”), seeking a decree for possession to the extent of 1/3rd share of the agricultural land in question. 2. The case set up by the plaintiff, in brief in so far as relevant, was that in the wake of death of first wife, his father Moti Ram entered into a Karewa marriage with one Gulabo, who brought her (Pichhlag) daughter Smt.Savitri (defendant No.1). However, the plaintiff was born out of the loins of Moti Ram and from the womb of Gulabo and no other child was born out of the said Regular Second Appeal No.3938 of 2007 -2- wedlock. Moti Ram was stated to have died on 7.10.1972. The plaintiff claimed that after the death of his father Moti Ram, the mutation of his inheritance was illegally entered to the extent of 1/3rd share in favour of Smt.Savitri (defendant No.1), indicating her to be the daughter of Moti Ram. In pursuance of mutation, she transferred the land measuring 16 Kanals in favour of defendant No.2, vide registered sale deed dated 26.10.1979 (Ex.D2), land measuring 39 Kanals 11 Marlas in favour of defendant No.3, by virtue of registered sale deed dated 19.11.1979 (Ex.D2/1) and land measuring 24 Kanals to defendant No.4, by means of registered sale deed dated 26.5.1980 (Ex.D1). 3. Levelling a variety of allegations and narrating the sequence of events, in all, the plaintiff claimed that Smt.Savitri was not born out of the wedlock of his father Moti Ram and mother Gulabo, she was Pichhlag daughter of Gulabo and was not entitled to inherit the property of his father to the extent of 1/3rd share in natural succession. The indicated sale deeds executed by her were stated to be illegal, null and void. On the basis of aforesaid allegations, the plaintiff filed the suit for possession against the defendants in the manner described hereinabove. 4. As defendant No.1 had already sold the suit land to defendant Nos.2 to 4 and did not appear despite service, therefore, exparte proceedings were ordered against her by the trial Court. However, defendant Nos.2 to 4 contested the suit and filed their separate written statements, inter-alia pleading certain preliminary objections of, maintainability of the suit, limitation, Court fees, estoppel, cause of action and locus standi of the plaintiff. According to contesting defendants that Smt Gulabo was legally wedded wife of Moti Ram. Plaintiff and defendant No.1 were born out of their wedlock. Since Smt.Savitri (defendant No.1) was the real daughter of Moti Ram, so, after his death, she has rightly inherited his property to the extent of 1/3rd share and mutation was rightly sanctioned in pursuance thereof. Defendant No.3 claimed that plaintiff is not son Regular Second Appeal No.3938 of 2007 -3- of Moti Ram and defendant No.1 was his only daughter. The contesting defendants pleaded that they are bonafide purchasers for a valuable consideration. It will not be out of place to mention here that the contesting defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations of the written statements and reiterating the pleadings contained in the plaint, the plaintiff filed the replications. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether Savitri defendant No.1 was born from the womb of Gulabo and loins of Moti and as such she was an heir to the property of Moti ?OPD 2. If issue No.1 is proved whether mutation No.2190 decided on 12.10.73 is illegal, null and void and not binding on the plaintiff?OPP 3. If issue No.1 is proved, whether the sale deeds dated 26.1079 in favour of the defendant No.2, Sale deed dated 10.11.79 in favour of defendant No.3 and sale deed dated 26.5.80 in favour of the defendant No.4 are not binding on the plaintiff?OPP 4. Whether the plaintiff has no locus standi to file this suit? 5. Whether the sit is barred by limitation?OPD 6. Whether the plaintiff is estopped by his conduct from filing this suit?OPD 7. Whether the suit is bad for multifariousness and Janki is a necessary party?OPD 8. Whether Gulabo is a legally wedded wife of Moti?OPD 9. Relief. 6. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 7. The trial Court partly decreed the suit of the plaintiff, by way of judgment and decree dated 23.8.1990. 8. Aggrieved by the decision of the trial Court, Mohinder Singh- plaintiff and Harish Kumar and Inder Singh-defendant Nos.3 and 4 respectively filed their separate appeals. The appeal filed by the plaintiff was dismissed. However, the appeals filed by defendant Nos.3 and 4 were accepted by the Ist appellate Court, by virtue of impugned judgment and decree dated 27.2.2007. Regular Second Appeal No.3938 of 2007 -4- 9. The appellant-plaintiff still did not feel satisfied with the impugned judgment and the decree of the first appellate Court and preferred the present appeal. That is how I am seized of the matter. 10. At the very outset, assailing the impugned judgments and decrees of courts below, the learned counsel for the appellant-plaintiff contended with some amount of vehemence that it is proved on the record that Savitri (defendant No.1) was Pichhlag daughter of Gulabo, from the loins of her first husband. Subsequently, she (Gulabo) performed the Karewa marriage with his father Moti Ram. As Savitri was her Pichhlag daughter, so, she (Savitri) was not entitled to inherit the property of his (plaintiff) father Moti Ram. The mutation bearing No.2190 (Ex.D3) was stated to have been wrongly sanctioned in her favour in this regard. Thus, he prayed for acceptance of the appeal. 11. On the contrary, hailing the impugned decision of the Courts below, the learned counsel for contesting respondent-defendants urged that the plaintiff in greed has set up a false story, in order to deprive her sister Savitri from her legitimate right in the property of her father, which he has failed to prove. The argument is that even the plaintiff did not disclose that his other sister Janki was also born out of the wedlock of his father Moti Ram and mother Gulabo. In all, according to learned counsel that since it stands proved on record that Savitri is legitimate daughter of Moti Ram, so, after his death, she has legally inherited 1/3rd share in his property and mutation (Ex.D3) was rightly entered on 17.1.1973, which was duly sanctioned on 12.10.1973 in natural succession and the suit filed by the plaintiff after a lapse of 11 years was hopelessly time barred. Thus, he has submitted that no interference is warranted in the impugned judgments and decrees of the Courts below in this context. 12. Although the plaintiff alongwith his counsel deserves appreciation to create a false but impressive story, in order to deprive his sister Savitri from the inheritance/property of his father Moti Ram, by setting up a false plea of Karewa Regular Second Appeal No.3938 of 2007 -5- marriage and described his sister Savitri to be a Pichhlag daughter of his mother, but he miserably failed to substantiate his stand in this behalf. 13. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant appeal in this respect. 14. As is evident from the record that Moti Ram son of Shera was the owner and in possession of the entire land including the land in dispute. According to the plaintiff, as Savitri (defendant No.1) was Pichhlag daughter of Gulabo, therefore, she was not entitled to inherit the property of his father Moti Ram. On the contrary, the contesting defendants claimed that Savitri was natural and legitimate daughter of Moti Ram, she has rightly sold the property to the extent of 1/3rd share and mutation was rightly entered/sanctioned in her favour. She has further alienated the suit property to them, vide indicated registered sale deeds. Thus, they are bonafide purchasers for valuable consideration and are owners and in possession of the property in dispute. 15. Above being the position on record, now the short and significant question, though important that arises for determination in the present appeal is, as to whether Savitri (defendant No.1) was Pichhlag daughter of Gulabo or she is her daughter from the loins of Moti Ram, father of the plaintiff ? 16. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the negative, as the plaintiff has utterly failed to prove that she is Pichhlag daughter of his mother Gulabo. 17. It cannot possibly be denied that the plaintiff has to stand on his own legs and to prove his case by producing cogent evidence on record in order to substantiate his claim. It is not a matter of dispute that the plaintiff has neither pleaded nor any cogent documentary evidence is forth coming on record to prove, when and where Savitri was born out of the said wedlock or when the alleged first husband of Gulabo had died. Admittedly, the Regular Second Appeal No.3938 of 2007 -6- plaintiff was born out of the loins of Moti Ram and Gulabo. According to him, no other child was born to Moti Ram and Gulabo, but his stand is falsified by the evidence on record, which proved that Janki, the other sister of the plaintiff, was also born out of the wedlock of their parents and she (Janki) inherited the property of her father, which is clear from the jamabandi for the year 1981-82 (Ex.D5) Savitri and Janki were also shown as daughters of Moti Ram in the mutation (Ex.D6). The plaintiff did not produce any evidence in the shape of ration card, voter list, birth certificate and marriage record to prove that Gulabo was earlier married to some other person or that Savitri was born out of the said wedlock. That means, the plaintiff has withheld the best possible evidence, which could throw light on the alleged first marriage of his mother Gulabo and the birth of Savitri, for the reasons best known to him. In that eventuality, an adverse inference against him is inevitable in this respect. 18. On the contrary, Ex.D3 is the copy of mutation of inheritance of Moti Ram, wherein Smt.Gulabo widow, Mohinder Singh-plaintiff son and Savitri -defendant No.1 daughter of Moti Ram have been described as his legal heirs in the pedigree table and mutation of inheritance of the property of Moti Ram was sanctioned in their favour to the extent of equal shares. The mutation (Ex.D3) was entered on 17.1.1973, which was duly sanctioned on 12.10.1973. The entries of mutation were subsequently implemented and reflected in the jamabandi (Ex.D5), wherein Savitri and Janki were also shown as daughters of Moti Ram, to which, presumption of truth is attached. 19. Thus, it would be seen that if the crux of the documentary evidence brought on record by the parties as discussed hereinabove, is put together, then, to my mind, the conclusion is inescapable that the plaintiff has miserably failed to prove that Savitri was Pichhlag daughter of Gulabo. On the other hand, it stands proved on record by documentary evidence as discussed hereinbefore that she was the legitimate daughter of Moti Ram and has rightly inherited his property to the Regular Second Appeal No.3938 of 2007 -7- extent of 1/3rd share, vide mutation (Ex.D3). No oral evidence can legally be admitted in this regard on the analogy, as contemplated under sections 91 and 92 of the Indian Evidence Act. Therefore, the contrary arguments of the learned counsel for the appellant-plaintiff “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. Thus, to me, the first appellate Court has rightly decided the matter, by means of impugned judgment dated 27.2.2007, which, in substance, is (paras 25 to 28) as under:- “25. DW2 Inder, DW5 Mahender and DW8 Om Parkash have stated that they have verified the revenue record of the land in dispute before purchasing the same from Smt.Savitri daughter of Moti. These assertions of defendants find support from the revenue record i.e.Mutations Ex.D3 and Ex.D6 wherein Savitri was recorded to be owner of the disputed land. In Jamabandi for the year 1981-82, the name of Savitri daughter of Moti son of Shera was recorded as co-sharer in the land in dispute. The learned lower court has erred in observing that the defendants should have made enquiries from the villagers as it was known to the villager that Savitri was not competent to inherit the property of Moti because there is nothing on record to show that at the time of sanctioning of mutation Ex.D3 or selling of the land any such controversy was prevailing in the village. 26. The averments made by plaintiff in para No.2-A of the plaint have been specifically denied by the defendants and plaintiff has been cross-examined by the defendants on the point of performing of karewa marriage by Gulabo. So, the authorities on which reliance has been placed by the learned counsel for the plaintiff are distinguishable on facts and ratio of the same is not applicable to the facts of the instant case. 27. In view of above discussion and the proposition of law, issue No.1 is decided in favour of the defendants and against the plaintiff. Issue No.2 has become redundant and is not required to be decided. The findings of learned trial court under issue No.3 up to the extent that two sale deeds in favour of defendants No.3 and 4 are not binding on the plaintiff, are reversed. The findings of learned trial court under issue No.8(a) are also reversed and this issue is decided in favour of the defendants and against the plaintiff whereas the findings of learned trial court under issues No.4,5,6,7 and 8 are affirmed. 28. Having found no merit in appeal No.76 of 2005 titled Mahinder Singh Vs. Smt.Savitri, the same is dismissed whereas the appeal No.65 of 1990 titled Harish Kumar Vs. Mahender Singh and others and appeal No.60 of 1990 titled Inder Singh Vs. Mahinder Singh and others are hereby accepted. Parties are left to bear their own costs. Copy of this judgment be placed on the other appeal files. Decree sheet be prepared accordingly and the files be consigned to the record room.” 20. Meaning thereby, the first appellate Court has taken into Regular Second Appeal No.3938 of 2007 -8- consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the first appellate Court has recorded the above-mentioned findings of fact. Such pure findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-plaintiff, so as to take a contrary view, than that of well reasoned decision already arrived at by the first appellate Court, in this regard. 21. No other meaningful argument has been raised by the learned counsel for the appellant to assail the findings of the first appellate Court in this behalf. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant, in this relevant direction, have already been duly considered and dealt with by the first appellate Court. 22. In this manner, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgment and decree of the first appellate Court, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 23. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 24. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 27.7.2011 Judge AS Whether to be referred to reporter?Yes/No