R.S.A. No.2474 of 1985 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.2474 of 1985 (O&M) Date of decision: 06.08.2010 Bela Ram (dead) through LRs and others ....Appellants Versus Chet Singh (dead) through LRs and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Suvir Sehgal, Advocate, for the appellants. None for the respondents. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal, by the defendant/appellants, is directed against the judgment and decree dated 30.7.1985, passed by the learned lower appellate Court, vide which the suit filed by plaintiff/respondent No.1 for declaration that mutation No.259 entered and attested on 21.9.1981 is null and void and not binding on the plaintiff, in so far as it sanctions the mutation of the estate of Smt. Thakuri daughter of Sh. Ghasita son of Manga in favour of defendants No.1 to 8, stands allowed. Relief of possession of 1/4th of the land measuring 82 kanals 7 marlas and 1/4th share in the land measuring 17 kanals 19 marlas was also claimed. The case set up by the plaintiff was, that Smt. Thakuri, his mother, was the owner of 1/4th share in the total land as detailed in the heading of the plaint. Smt. Thakuri died on 4.5.1979 in village Naushahra Nal Badan. The mother of the plaintiff was married with R.S.A. No.2474 of 1985 (O&M) -2- Hari Singh and he died during the infancy of the plaintiff. The case of the plaintiff was, that he was brought up by his mother and claimed himself to be the only legal heir of Smt. Thakuri. The land was inherited by Smt. Thakuri from her father Ghasita of village Beas Lahri. After the death of Smt. Thakuri, plaintiff/respondent No.1 entered into possession of the suit land as sole heir of Smt. Thakuri. The case of the plaintiff/respondent No.1 further was, that he approached patwari halqa for entering mutation in respect of the estate of Smt. Thakuri, and for getting it attested by the revenue authorities, but he failed. The case of the plaintiff/respondent No.1 was, that revenue authorities sanctioned the mutation in favour of defendants No.1 to 8 by treating them to be children of Smt. Thakuri. The suit was contested by raising number of preliminary objections. On merit, the defendant/appellants admitted that the plaintiff was the son of Smt. Thakuri from her husband Hari Singh. The defence of the defendant/appellants was, that they were also sons of Smt. Thakuri through Nand Singh her husband and were also entitled to inherit the property in equal shares with the plaintiff/respondent No.1. After the pleadings were completed, the learned trial Court framed the following issues: - “1. Whether the plaintiff is the sole legal heir of Smt. Thakuri deceased. If so its effect. OPP 2. Relief.” There being no dispute with regard to plaintiff being legal heir, the only question to be determined under issue No.1 was, as to whether the plaintiff/respondent No.1 was the sole legal heir or R.S.A. No.2474 of 1985 (O&M) -3- defendant/appellants were also legal heirs of Smt. Thakuri along with the plaintiff. In support of the case, Bela Singh, one of the defendant/appellants, appeared as DW1, wherein he deposed to be son of Smt. Thakuri along with other defendants from the loins of Nand Singh with whom she was re-married. He also deposed that Smt. Thakuri was residing with him. The defendant/appellants also examined DW2 sarpanch of village Fatehgarh, who also deposed that defendants No.1 to 8 were the sons and daughters of Smt. Thakuri. Gian Chand DW3, a resident of village Mirzapur was also examined to depose that defendant/appellants were the issues of Smt. Thakuri. The learned trial Court in view of the fact that no suggestion, was put to these witnesses, held that defendant/appellants are able to prove their relationship with Smt. Thakuri. The learned trial Court rejected the contention of the plaintiff/respondent No.1, that the evidence led by the defendant/appellants was not in consonance with Section 50, of the Evidence Act and dismissed the suit, by holding that the plaintiff had failed to prove, that he was the sole legal heir of Smt. Thakuri. Plaintiff/respondent No.1 preferred an appeal. The learned appellate Court discussed the evidence of the witnesses of the defendant/appellants and recorded a positive finding, that the evidence led by defendant/appellants in support of relationship did not conform to the conditions laid down under Section 50 of the Evidence Act. Therefore, that relationship of defendant/appellants with Smt. Thakuri was not proved. The learned lower appellate Court in R.S.A. No.2474 of 1985 (O&M) -4- view of the admission made by the defendant/appellants, that plaintiff/respondent No.1 was the son of Smt. Thakuri, decreed the suit by accepting the appeal. When this regular second appeal came up for hearing before this Court, the appeal was accepted on the ground, that the witnesses examined by the defendant/appellants to prove their relationship, were not cross-examined. Therefore, in view of unrebutted evidence, relation of defendant/appellants with Smt. Thakuri stood proved. The plaintiff/respondent No.1, preferred an appeal against the judgment passed by this Court. The appeal was accepted by the Hon'ble Supreme Court by passing the following order: - “Leave Granted. The application for substitution is allowed. It appears to us that the plaintiff-appellant filed a suit by claiming title to the property on the basis of inheritance from one Thakuri. The title of the plaintiff admittedly is not denied by the defendants but the defendants have also claimed ownership to the property by claiming such title through one Nand Singh since died in 1913. Therefore, it was for defendants to establish such acquisition of title by leading evidence that they were really heirs of the admitted owner through Nand Singh. Unfortunately, the High Court has not examined the case from such perspective. It may be indicated that the lower appellate court set aside the decree passed by the trial court on a finding that the defendants failed to establish their claim of title to the property by leading cogent evidence in accordance with Section 50 of the Evidence Act. The High Court has not considered the correctness R.S.A. No.2474 of 1985 (O&M) -5- of the decision of the lower appellate court in this regard but set aside the decree by reversing the judgment by approaching the problem in a different manner, which according to us, is not justified in the facts of the case. We, therefore, allow the appeal and set aside the impugned judgment passed by the High Court and remand the matter to the High Court to consider the correctness of the decision of the lower appellate court by advertising to the question as to whether the defendants have established their claim of title to the said property along with the plaintiff by leading reliable evidence admissible in law. The appeal is accordingly disposed of. Since the matter is pending for a long time, it will be only desirable if the High Court dispose of the appeal within six months from the date of the communication of this order. This is how, this appeal has been again listed before this Court. Mr. Suvir Sehgal, learned counsel for the appellants contended, that this appeal raises, following substantial questions of law: - “1. Whether the statements of the witnesses, which remained un-challenged in cross- examination, were liable to be accepted” 2. Whether in absence of any issue of relationship of defendant/appellants, could the suit of the plaintiff be decreed for declaration and possession?” In support of the substantial questions of law, the learned counsel for the appellants vehemently contended, that the R.S.A. No.2474 of 1985 (O&M) -6- defendant/appellants had examined witnesses, who were the residents of the village, and were known to the family of the defendant/appellants and further were dealing with them. In view of the fact, that the defendant/appellants were not stranger to the witnesses, therefore, their statement that defendant/appellants were the sons of Smt. Thakuri, could not be doubted. It was also the contention of the learned counsel for the appellants, that by not framing an issue as to whether the defendant/appellants were the sons of Smt. Thakuri, prejudice has been caused to the defendant/appellants. Therefore, the judgment and decree passed by the learned appellate Court deserves to be set aside, and the case be remanded back to the learned trial Court for framing proper issues, and thereafter give an opportunity to the defendant/appellants to prove their case. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. The reading of the judgment of the learned appellate Court shows, that the learned Court considered the evidence led by the defendant/appellants, and held that the statements did not conform with Section 50 of the Evidence Act, to hold that defendant/appellants were the issues of Smt. Thakuri. The learned counsel for the appellants contended that as the evidence led by the witnesses examined by the defendant/appellants went unrebutted, the same was liable to be accepted as held by the learned trial Court. This contention of the learned counsel for the appellants cannot be accepted for the reason that the evidence led by the witnesses R.S.A. No.2474 of 1985 (O&M) -7- examined by the defendant/appellants did not conform to Section 50 of the Evidence Act. The unrebutted evidence also could not be accepted to hold the relationship of the defendant/appellants with Smt. Thakuri. According to Section 50 of the Evidence Act, when the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. The evidence required to be proved was the special means of knowledge and conduct of the parties, which could help the Court to form the opinion. The evidence led by the witnesses being not in consonance with Section 50 of the Evidence Act, could not be accepted to hold that the defendant/appellants have proved their relationship with Smt. Thakuri. The learned lower appellate Court, therefore, was right in holding, that the defendant/appellants failed to prove that they were the sons of Smt. Thakuri, to claim right of inheritance. The first substantial question of law is answered against the appellants. The contention raised by the learned counsel for the appellants on the second substantial question of law, also deserves to be rejected, for the reason that issue No.1, was wide enough to include the case set up by the defendant/appellants. In view of the written statement filed by the defendant/appellants, issue No.1 was framed only to give chance to the defendant/appellants, to prove their relationship with Smt. Thakuri, as the relationship of the plaintiff was admitted. R.S.A. No.2474 of 1985 (O&M) -8- Both the parties were aware of the case of each other and they led evidence in support thereof. Once the parties were aware and evidence was led in support of their case, then mere non-framing of issue cannot be a ground to set aside the decree. For the reasons stated, the substantial questions of law raised are answered against the appellants, and finding no merit in this appeal, it is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge August 06, 2010 R.S.