RSA No. 4903 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4903 of 2001 Date of Decision: 01.12.09 1. Bagicha Singh; 2. Jagjit Singh; 3. Sukhdev Singh; LRs of Dhara Singh; 4. Malook Singh son of Ujjagar Singh, r/o village Mander, Tehsil Zira, Distt. Ferozepur. ... Appellants Versus 1. Mulakh Raj; 2. Hans Raj; 3. Sodhi; sons of Sh. Darshan Ram wife of Raju Ram, r/o village Samstpur, Tehsil and District Jalandhar. 4. Raju Ram; 5. Vijay Kumar; 6. Satwinder Singh through Raju Ram alias Ram Kumar, Attorney, sons of Kewal Krishan son of Amar Kaur wife of Lachman Dass; 7. Manjit Kumar; 8. Sanjiv Kumar sons of Karamchand son of Amar Kaur wife of Lachman Dass, all residents of village Samastpur, Tehsil Jalandhar. ...Respondents 9. Satnam Singh son of Kartar Singh r/o village Dhogri, Tehsil and District Jalandhar. 10. Sukhwinder Kaur widow of Arjan Singh; 11. Major Singh son of Arjan Singh; 12. Iqbal Kaur mother of Arjan Singh; RSA No. 4903 of 2001 2 13. Kashmir Singh; 14. Gurcharan Singh; 15. Karnail Singh; 16. Mahal Singh; 17. Jarnail Singh; all sons of Shangara Singh; 18. Gurnam Singh; 19. Shamsher Singh; 20. Baldev Singh; sons of Kartar Singh; 21. Balbir Singh; 22. Tarsem Singh; 23. Surjit Kaur wd/o Joginder Singh; 24. Harbhajan Singh; 25. Gurbachan Singh; sons of Joginder Singh; all residents of village Mander, Tehsil Zira, District Ferozepur. ...Proforma-Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. D.S. Bali, Senior Advocate, with Mr. Amandeep Saini, Advocate, for the appellants. Mr. Ashwani Gaur, Advocate, for respondents No 1 and 3. Mr. Puneet Jindal, Advocate, for respondents No. 4 to 8. Mr. Pankaj Bali, Advocate, for respondents No. 10 and 11. Respondents No. 2, 9, and 12 to 25, exparte. RSA No. 4903 of 2001 3 SHAM SUNDER, J. * * * * This appeal, is directed against the judgement and decree, dated 17.08.01, rendered by the Court of Additional District Judge, Jalandhar, vide which, it accepted the appeal, against the judgement and decree, dated 21.01.98, rendered by the Court of Civil Judge (Junior Division), Jalandhar, and dismissed the suit of the plaintiffs. 2. The facts, in brief, are that, Ujjagar Singh, predecessor-in- interest of the plaintiffs, was allotted, the land, in dispute, at village Dhogri, Tehsil and District Jalandhar, in lieu of the land, left by him, in Pakistan. It was stated that, Ujjagar Singh, died, on 25.11.54, as a result whereof, Shangara Singh, Dhara Singh, Gehal Singh, Joginder Singh, Kartar Singh, and Malook Singh, being his legal heirs, became the co-owners of the property, in dispute. It was further stated that, on the death of a son of Ujjagar Singh, other than the plaintiffs, defendants No. 9 to 24, succeeded to his estate, and became the co- sharers therein. It was further stated that, defendants No. 9 to 24, used to live away, from village Dhogri, and, in their absence, the land, in dispute, was being cultivated by different tenants, on rent-batai, which was being paid to the plaintiffs, every year. It was further stated that, when the plaintiffs, obtained jamabandi, from the Patwari, they came to know, that the land, in dispute of Ujjagar Singh (since deceased), had been mutated, in favour of Satnam Singh, Amar Kaur, and Darshan Ram. It was further stated that the plaintiffs, also came to know that, RSA No. 4903 of 2001 4 later on, a part of the land, in dispute, was mutated, in favour of defendants No. 4 to 8, on the basis of sale deed dated 24.05.68. It was further stated that, another part of the land, in dispute, was also mutated, in favour of Satnam Singh, defendant, on the basis of sale deed dated 09.03.94, executed in their favour by Sajjan Singh, attorney of Ujjagar Singh. It was further stated that Amar Kaur and Darshan Ram, the vendees of the land, in dispute, had since demised. It was further stated that Raj Kumar, Vicky Kumar, Satwinder Kumar, Manjit Kumar, and Sanjiv Kumar, inherited the estate of Amar Kaur, whereas, Mulakh Raj and Sohdi, inherited the estate of Darshan Ram. It was further stated that the sale deeds, executed, in favour of the aforesaid vendees, in respect of the land, in dispute, were forged and fabricated documents, as the same were the result of conspiracy with the marginal witnesses. It was further stated that some impersonator, was produced, in place of Ujagar Singh, at the time of execution and registration of the sale deeds. It was further stated that, on the basis of the aforesaid sale deeds, Amar Kaur and Darshan Ram, did not acquire any right, in the property, in dispute, and, as such, the same (sale deeds), did not affect the legal rights of Ujjagar Singh and his heirs, therein. It was further stated that similarly, further alienation of the property, in dispute, by Amar Kaur and Darshan Ram, did not affect the rights of the legal heirs of Ujjagar Singh. It was further stated that the plaintiffs, being the legal heirs of Ujjagar Singh, were entitled to the possession of the property, in dispute. The defendants, were many a time, asked to RSA No. 4903 of 2001 5 treat the sale deeds, as illegal, null and void, but to no avail. Ultimately, a suit for declaration and possession was filed. 3. Defendants No. 1 to 3, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit, denying the factum, with regard to the date of death of Ujjagar Singh. It was stated that Ujjagar Singh, was very much alive, at the time of execution and registration of the sale deed dated 25.05.68, and, was duly identified, by the attesting witnesses thereof. It was further stated that the sale deed dated 25.05.68, was not the result of fraud and fabrication. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled to the declaration as prayed for? OPP (ii) Whether any subsequent transfer of any part of the suit land by them to any has no effect on the rights of the plaintiffs in the suit land? OPP (iii) Whether the suit of the plaintiffs is not maintainable? OPD (iv) Whether the suit is barred by limitation? OPD (v) Whether the plaintiffs have paid the proper Court fee? OPD (vi) Whether plaintiffs have no locus-standi to file the present suit? OPD (vii) Whether the plaintiffs have lost their right by their act and conduct? OPD (viii)Relief. RSA No. 4903 of 2001 6 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiffs. 6. Feeling aggrieved, an appeal, was preferred by the defendants/respondents, which was accepted, by the Court of Additional District Judge, Jalandhar, vide judgement and decree dated 17.08.01. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellants/plaintiffs. 8. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 9. The following substantial questions of law arise, in this appeal, for the determination of this Court:- (i) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, as also law, on the point, that the plaintiffs, failed to prove through cogent and convincing evidence, that Ujjagar Singh, died, on 25.11.54, in village Mander, District Ferozepur? (ii) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, that the death certificate PW1/B of Ujjagar Singh, did not carry any authenticity and, could not be relied upon, to prove his death, on 25.11.54? (iii) Whether the first Appellate Court, recorded perverse findings, on RSA No. 4903 of 2001 7 account of misreading and misappreciation of evidence, and law, on the point that, in the absence of seeking relief of possession, when the plaintiffs/appellants, were out of possession, a mere suit for declaration, was not maintainable? (iv) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, and law, on the point, that the suit, was barred by time? 10. The Counsel for the appellants, submitted that the death certificate, exhibit PW1/B, being a public document, could not be disbelieved. He further submitted that due corroboration, regarding the death of Ujjagar Singh, on 25.11.54, was furnished, from the evidence of Pritam Singh, Junior Statistical Assistant, Office of the Civil Surgeon, Ferozepur, DW5. He further submitted that sufficient cogent and convincing evidence, was led, by the appellants, to prove that, in fact, Ujjagar Singh, died, on 25.11.54. He further submitted that the first Appellate Court, recorded perverse findings, that no cogent and convincing evidence, was produced, by the plaintiffs/appellants, nor the death certificate, could be said to be an authentic document, and reliance thereon could not be placed, to prove the death of Ujjagar Singh, on 25.11.54. He further submitted that, even the first Appellate Court, was wrong, in coming to the conclusion, that the plaintiffs/appellants,were not in possession of the land, in dispute, and, as such, the suit for mere declaration, was not maintainable without RSA No. 4903 of 2001 8 seeking further relief of possession. He further submitted that, even the first Appellate Court, illegally held, that the suit, was barred by time. He further submitted that the land of a dead person, was sold, by some impersonator and the first Appellate Court, on flimsy grounds, disbelieved the cogent and convincing evidence of the plaintiffs/appellants. He further submitted that the judgement and decree of the first Appellate Court, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that Malook Singh and Dhara Singh, two sons of Ujjagar Singh, could be said to be the best witnesses, to prove, that he (Ujjagar Singh), died, on 25.11.54, but, they did not appear, as witnesses, to prove this factum. They further submitted that only Gurcharan Singh, PW1, was examined, as a witness, who claimed himself to be the grandson of Ujjagar Singh, and his evidence, was rightly held to be hearsay and, as such, inadmissible. They further submitted that, neither the Chowkidar, who recorded the entry of the death of Ujjagar Singh, nor the person, who recorded the entry, in the roznamcha, in the Police Station, nor any respectable of the village, where the death of Ujjagar Singh, took place, was examined. They further submitted that the register, which was produced, by an official of the office of the Civil Surgeon, regarding the entry of death of Ujjagar Singh, was found to be not maintained, in the regular course of the discharge of the official duties. They further submitted that the first RSA No. 4903 of 2001 9 Appellate Court, was, thus, right in holding, that the very basis of PW1/B, was not proved, through reliable evidence. They further submitted that the first Appellate Court, was also right, in holding, that it was not proved, that Ujjagar Singh, died, on 25.11.54. They further submitted that the first Appellate Court, was also right, in holding, that the suit, having been filed, by the plaintiffs/appellants, after 40 years of the alleged death of Ujjagar Singh, could not be said to be, by any stretch of imagination, within the period of limitation. They further submitted that, even the possession of the plaintiffs/appellants, in respect of the land, in dispute, was not proved, and, as such, the first Appellate Court, was right, in holding, that the suit for mere declaration, was not maintainable. They further submitted that the judgement and decree of the first Appellate Court, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the first Appellate Court, even if, RSA No. 4903 of 2001 10 the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. The first question, that falls for determination, is, as to whether, Ujjagar Singh, died, on 25.11.54, as depicted, in PW1/B, or not. PW1/B, is the death certificate, in Urdu of Ujjagar Singh, which was placed, on record. The case of the plaintiffs/appellants, was that the entry of the death of Ujjagar Singh, was made, by the Chowkidar, in his register, on the basis whereof, entry, was made, in the Roznamcha of Police Station Zira, on the strength whereof, an entry, was made, in the register of the Registrar, Births and Deaths, and, ultimately, PW1/B, death certificate, was issued. No doubt, the death certificate, is a public document and presumption of correctness is attached thereto, which is rebuttable. Since the question, as to when Ujjagar Singh, died, was in dispute, it was for the plaintiffs/appellants, to produce cogent and convincing evidence, to prove, that actually he died, on 25.11.54, and the death certificate PW1/B, was correct. The person, who moved the application or gave intimation, with regard to the death of Ujjagar Singh, to the Chowkidar was not examined. Chowkidar, who made an entry, in the Chowkidar register of the village, regarding the death of Ujjagar Singh, was not examined. No evidence, was brought, on the record, to prove, as to which person, went to the Chowkidar, to inform RSA No. 4903 of 2001 11 him, about the death of Ujjagar Singh. The Police Officer/Official, who made an entry, in the roznamcha, regarding the date of death of Ujjagar Singh, was also not examined. Even if, it is assumed, for the sake of arguments, that none of these persons, were available for whatever the reasons, may be, then any person, who could identify their signatures, could certainly be produced, to prove, that actually Ujjagar Singh, died, on 25.11.54, and the entries bore the signatures of the persons, who made the same. Even such a person was not examined. Ujjagar Singh, was a resident of village Dhogri. He statedly died, in village Mander. No evidence, on record, was produced, that PW1/B, pertained to Ujjagar Singh, having a particular parentage, and he was a permanent resident of Dogri, but died in village Mander. Saudagar Singh, Chowkidar of village Mander, was examined, as DW6,to produce the Chowkidar register, containing the entry of the date of death of Ujjagar Singh, but, he could not bring the record, on the ground, that he had been working, as Chowkidar, since 1984. He stated that the earlier Chowkidar, was Boor Singh, and he was having record only from 1975. He could not furnish any explanation, as to why, prior to that year, he was not having any record. Pritam Singh, Junior Statistical Assistant, Office of the Civil Surgeon, Ferozepur, DW5, who brought the register, in which, the entry, was made, regarding the death of Ujjagar Singh, in clear-cut terms, stated that, there was no page number, on the back-side of page No. 158. He further stated that entry No. 158, had been made, after omitting many serial numbers. He RSA No. 4903 of 2001 12 further stated that the numbering of the register, had been made, in hand, and, in the index, village Penda, had been shown, at serial No. 87. It was further stated by him, that entries No. 3 to 7, were shown, in black ink, and entries No. 1 and 2, were shown, in blue ink. He further stated that, at page No. 158, there existed two entries, the serial numbers whereof, are 8 and 9, and serial No. 10, was also mentioned, but no entry, was appearing, against serial No. 10. As stated above, Ujjagar Singh, deceased, was residing, in village Dohgri, District Jalandhar. For a few days, he statedly went to village Mander, Tehsil Zira, District Ferozepur, to see his relatives, and died there. It was not recorded, in PW1/B, that Ujjagar Singh, died, in village Mander. No person, from village Mander, came forward, to confirm the stand, taken up, by the plaintiffs/appellants, that Ujjagar Singh, died, on 24.11.54. Dara Singh and Malook Singh, two sons of Ujjagar Singh, who could be said to be the best witnesses, to prove the date of death of Ujjagar Singh, were not produced, as witnesses. They were very much present, in the village. What prevented them, from appearing, as their own witnesses, to prove the date of death of Ujjagar Singh, was not known. Gurcharan Singh, PW1, was produced, to establish, that Ujjagar Singh father of the plaintiffs, died, in the year 1954. His statement, was rightly not relied upon, by the first Appellate Court, as the death of Ujjagar Singh, did not take place, in his presence. He stated that Ujjagar Singh, was his grand-father, and he had heard, that he was earlier residing, in village Dhogri, District Jalandhar, and then, he went RSA No. 4903 of 2001 13 to village Mander, District Ferozepur. Gurcharan Singh, was born, in 1957. He did not see Ujjagar Singh, residing, in village Dhogri and Mander. It was only that, he was told, by his father, that Ujjagar Singh, died, on a particular date. His evidence, therefore, could be said to be hearsay, in the absence of the statements of his father and uncle, who were very much alive, but, were not produced, as witnesses. The mother of Gurcharan Singh, was alive. His uncle, was also alive. They were aged about 70/71 years. There was nothing, on the record, that they were admitted, in some hospital, and were unable, to move about. They were not produced, to prove the date of death of Ujjagar Singh. Bhog ceremony of Ujjagar Singh, must have been performed either at village Dohgri or village Mander. The persons, who attended the bhog ceremony of Ujjagar Singh, could depose, with regard to the date of his death, but, they were also not examined. No ration card, or voter list, showing Ujjagar Singh, to be a resident of village Mander or Dhogri, as having parentage of Jwala Singh, was produced. No person, who attended the funeral of Ujjagar Singh, if he died, in village Dhogri, on 25.11.54, was also examined. In case, Ujjagar Singh, died, on 25.11.54, then his sons and near relatives, must have attended the funeral. His ashes must have also been immersed. Those persons, were also not examined, nor any record, with regard to the immersion of ashes of Ujjagar Singh, showing that, he died, on a particular date, and his ashes, were immersed, on a particular date, was produced. As stated above, Gurcharan Singh, PW1, could not have personal knowledge, RSA No. 4903 of 2001 14 with regard to the death of Ujjagar Singh, as he was born, after his alleged death. So, the first Appellate Court, rightly discarded his statement. Since Malook Singh and Dara Singh, two sons of Ujjagar Singh, who could be said to be the best witnesses, to prove the factum of death of Ujjagar Singh, were not examined, it could be said, that the best evidence, was withheld, by the plaintiffs/appellants, to prove, this factum. In Vidhyadhar Vs. Mankikrao and another, 1999(2), CCC, 91 (SC), it was held, if the plaintiff or the defendant does not enter into the witness box, to state his own case, on oath, and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him was not correct. The first Appellate Court, in my considered opinion, was, thus, right in coming to the conclusion, that no cogent and convincing evidence, was produced, by the plaintiffs/appellants, to prove the date of death of Ujjagar Singh, as 25.11.54. The first Appellate Court, was also right, in coming to the conclusion, that the death certificate PW1/B, could not be said to be an authentic document, and the presumption of correctness, attached to the same, stood duly rebutted. The findings of the first Appellate Court, on the aforesaid points, being correct, deserve to be upheld. 13. The next question, that arises for consideration, is, as to whether, the suit was maintainable. The first Appellate Court, after going through the record, came to the conclusion, that the plaintiffs/appellants, were not in possession of the land, in dispute, and, they did not seek the relief of possession, and, as such, the mere suit for RSA No. 4903 of 2001 15 declaration, was not maintainable. In my opinion, the first Appellate Court, was wrong, in coming to such a conclusion, as it did not notice, that the plaint, was amended, by the plaintiffs/appellants, and in the amended plaint, relief of possession, was also sought by them. Since the relief of possession, was also sought, by the plaintiffs/appellants, it could not be said that, it was merely a suit for declaration. The suit was, thus, maintainable. The findings of the first Appellate Court, on this point, being perverse, are liable to be reversed. 14. The next question, that arises for consideration, is, as to whether, the suit, was within time. Ujjagar Singh, allegedly died on 25.11.54. The suit, was filed, on 03.12.94, i.e. about 40 years, after his alleged death and about 25 years, after the execution of the sale deed dated 25.05.68, in favour of the defendants. It could not be imagined that immediately after the death of Ujjagar Singh, the plaintiffs/appellants, did not come to know, as to who was in possession of the property, in dispute. It also could not be imagined, that the plaintiffs/appellants, remained silent and mum, for a period of about 40 years, after the alleged death of Ujjagar Singh, and, 25 years, after the execution of the sale deed dated 25.05.68. According to the plaintiffs/appellants, they obtained copies of the jamabandis, for the year 1951-52, 1961-62, and 1966-67, from Patwari, about a week, before the filing of the suit. The person, who obtained copies of the jamabandis, from the Patwari, was not examined. Even the Patwari, from whom, the copies of the jamabandis, and revenue record, were RSA No. 4903 of 2001 16 obtained, was not examined, by the plaintiffs/appellants, for the reasons best known to them. Even no evidence, was produced, on the record, as to why, after the alleged death of Ujjagar Singh, in the year 1954, the plaintiffs, did not apply for sanction of mutation of his inheritance, in their favour, and, in favour of other heirs i.e. defendants No. 9 to 24, in the original suit. There is also, no evidence, on the record, that why, they did not approach the revenue authorities, for correction of the revenue record, in their favour, or, in favour of the defendants, if any, whom, they had given the land, on lease. The assertion of the plaintiffs/appellants, that when they obtained the aforesaid jamabandis, a week, before the filing of the suit, they came to know, that the defendants, were in illegal possession of the land, in dispute, being not supported, by any evidence, could not be taken to be a gospel truth. The first Appellate Court, was, thus, right in coming, to the conclusion, that the suit, was barred by time. The findings of the first Appellate