RSA No.4396 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4396 of 2010 (O&M) Date of decision: 10.8.2011 Meenakshi w/o Suresh Singh Kanwar ......Appellant(s) Versus Shanta Kumari and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. K.S. Dadwal, Advocate for the appellant. Rakesh Kumar Garg, J. This is defendant' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for declaration to the effect that they were exclusive owner in possession of the house in question to the extent of half share each was decreed and the appellant was restrained from interfering in peaceful possession over the housing question. As per the averments made in the plaint, house in dispute was in exclusive ownership of Tarlochan Singh, father of plaintiffs who died in the year 27.5.1970 leaving behind Uttam Devi widow, Naranjan Singh son and Shanta Kumari daughter as his legal heirs and on his death, the aforesaid legal heirs inherited the property of said Tarlochan Singh in equal shares and they enjoyed the same without any objection from anyone as co-share to the extent of 1/3rd shares each. It was further averred that respondent No.2 was serving in the army and respondent No.1 was married. Uttam Devi got mutation sanctioned only in her name regarding the estate of Tarlochan Singh at their back. However, she never claimed exclusive ownership over the property in question and when the RSA No.4396 of 2010 (O&M) 2 respondents came to know about the said mutation, an appeal was filed before the Collector, Hoshiarpur and the order of sanctioning mutation in favour of Uttam Devi was set aside and the mutation of inheritance was sanctioned in favour of all the three legal heirs. Uttam Devi expired on 14.1.1999 leaving behind plaintiff-respondents as her only legal heirs. Thus, they inherited the house in dispute in equal shares and became exclusive owners in possession of the same to which defendant-appellant had got no right, title or interest. However, the appellant started claiming her title over the suit property on the basis of some false and fabricated documents which do not effect their rights. Thus, necessity arose to file the present suit. Hence, the present suit. Upon notice, the appellant appeared and filed written statement raising various preliminary objections. On merits, it was contended that after the death of Tarlochan Singh in the year 1970, mutation was sanctioned in the name of Uttam Devi, who remained exclusive owner in possession of the house in dispute. The plaintiff- respondents were not the real children of Uttam Devi and were children of Bishamber Singh. It was further stated that Uttam Devi had executed a registered gift deed on 27.8.1996 in her favour and since then she was owner in possession of the property in dispute. The respondents were never in possession of the house in question. It was denied that Uttam Devi and respondents were owners of 1/3rd share each in the property in dispute. It was further asserted that Uttam Devi remained in possession of the disputed property as exclusive owner till execution and registration of gift deed in favour of the appellant and nobody ever challenged Uttam Devi's right which was open and hostile and to the knowledge of the respondents for more than 12 years and thus, she became owner of the suit property by way of adverse possession when mutation was sanctioned RSA No.4396 of 2010 (O&M) 3 in her name. It was further stated that Uttam Devi, who was residing with the appellant, died on 14.1.1999 in her house and her last rites were performed by her husband and the plaintiff-respondents have nothing to do with the property in dispute as she had become the owner in possession of the same on the basis of the gift deed dated 27.8.1996. It was denied that the said document was forged or fabricated. All other allegations were denied by the appellant and prayer for dismissal of the suit was made. The plaintiff-respondents filed replication reiterating the contents of the plaint while controverting the pleas taken by the defendant-appellant in her written statement. From the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiffs are the exclusive owners in possession of house to the extent of ½ shares each, as prayed for? OPP 2. Whether the plaintiffs are entitled to declaration as prayed for? OPP 3. Whether the plaintiffs are entitled to permanent injunction as prayed for? OPP 4. Whether the plaintiffs are entitled to alternative suit for possession as prayed for? OPP 5. Whether Uttam Devi executed any gift deed dated 27.8.96, if so its effect OPD 6. Whether Uttam Devi becomes owner of the house in question by way of adverse possession? OPD 7. Whether the suit is not maintainable in the present form? OPD 8. Whether the suit is not within time? OPD RSA No.4396 of 2010 (O&M) 4 9. Whether the suit has not been properly valued for the purpose of court-fee and jurisdiction? OPD 10. Whether the site plan attached with the Plaint is not correct? OPD 11. Whether the plaintiffs are estopped by their act and conduct from filing the present suit? OPD 12. Relief.” After considering the evidence on record and hearing the learned counsel for the parties, the trial Court held all the issues in favour of the plaintiff-respondents and decreed the suit. While decreeing the suit, the trial Court held that the plaintiff-respondents were children of Uttam Devi and Tarlochan Singh. Uttam Devi was not full owner of the house in question. So, she could not have executed the gift deed of the house in dispute in favour of the appellant. The gift deed dated 27.8.1996 (Ex.D4) is shrouded by suspicious circumstances and cannot be relied upon. It was further held that Uttam Devi had not become the owner of the house in question by way of adverse possession and the plaintiff-respondents were owner in possession of the house in dispute to the extent of 1/3rd share each. Aggrieved from the aforesaid judgment and decree of the trial Court, the defendant-appellant filed an appeal before the Lower Appellate Court which was also dismissed vide judgment and decree dated 6.8.2010. The relevant observations of the impugned judgment of the Lower Appellate Court read thus: “21. As regards gift deed, same is dated 28.7.1996. Defendant has appeared as her own witness as DW8 and has stated that the gift deed was signed by Uttam Devi after admitting its contents to be correct and she RSA No.4396 of 2010 (O&M) 5 also signed the register of the deed writer. She further stated that she accepted the gift and signed the gift deed in token of its acceptance in the presence of Uttam Devi and witnesses and said gift deed was produced before Sub Registrar which was then registered. 22. In order to prove the gift deed, defendant has examined DW4 Surjit Singh deed writer, who has stated that the gift deed was scribed at the instance of Uttam Devi and after scribing the gift deed, its contents were read over to Uttam Devi as well as Meenakshi, who signed the gift deed after admitting the same to be correct. He further stated that Uttam Devi signed the gift deed in the presence of Meenakshi and witnesses, whereas the witnesses and Meenakshi signed the gift deed and he made entry in his register at serial number 207 dated 27.8.1996. In cross examination, he stated that he did not know the parties personally. 23. DW6 Parshotam Singh Gill is one of the attesting witnesses of the gift deed. He has stated in his examination in chief that he knew Uttam Devi, who used to stay most of the time in the house of Suresh Kanwar in officers Colony and Uttam Devi used to come and stay there for 2-3 months. He further stated that gift deed dated 27.8.1996 was scribed at the instance of Uttam Devi and after scribing, its contents were read over and Uttam Devi signed the same in token of its correctness, whereas Meenakshi accepted the gift and signed the gift deed. The witness then went on to RSA No.4396 of 2010 (O&M) 6 depose about signing of gift deed by witnesses and its entry by deed writer in his register as well as production of gift deed before Tehsildar for its registration. He went on state that his land adjoined the officers Colony, which has now been acquired by Improvement Trust and he knew Suresh Kanwar as his residence in Officers Colony is just adjacent to his land. In cross examination, witness stated that he is permanent resident of village Pur Hiran and has a Cold Storage in village Pur Hiran; that he never served in Mahavir Spinning Mills and used to visit Suresh Kanwar out of friendship. The witness could not tell the name of father of Suresh Kanwar. He also could not tell the name of father of Meenakshi nor her parental village. He further stated that husband's name of Uttam Devi was Tarlok and Uttam Devi used to reside in Mahavir Officer Colony. He further stated that he has not seen the house of Uttam Devi in Bahadurpur. He further stated that Uttam Devi was not having any issue. He could not say at which place Uttam Devi was enlisted as a voter and holding a ration card. He could not tell the village of in-laws of Uttam Devi. He further could not tell about the brothers and sisters of Suresh Kanwar nor he could tell the brothers and sisters of Meenakshi. The witness denied the suggestion that Uttam Devi was having one son and one daughter. He further stated that he has never signed any document presented by Uttam Singh, Suresh Kanwar and Meenakshi. He RSA No.4396 of 2010 (O&M) 7 further stated that he was owner of 2-3 kanals of land near Mahavir Colony. In the next breath, he stated that he was cultivating the land of his relatives which has now been sold. He could not tell the khasra number, length and width of said land. 24. The evidence of DW6 does not inspire confidence that he was known to Smt.Uttam Devi and had actually attested the gift deed at the instance of Smt.Uttam Devi. A person who does not know that Smt.Uttam Devi was having two children and also could not tell the exact name of husband of Uttam Devi and the place to which she belonged and has also not visited her house in Bahadurur, he cannot be said to be known to Smt.Uttam Devi. In order to attest the gift deed, it was necessary that DW6 was known to Smt.Uttam Devi on whose behalf he was attesting the gift deed. 25. The conduct of the defendant and her husband is also not above board. Defendant, who is niece (brother's daughter) of Smt.Uttam Devi, went on to deny the relationship between plaintiffs and deceased Smt.Uttam Devi, which shows that she is out to grab the property of Smt.Uttam Devi. Had there been no such intention, she could easily come out with a plea admitting the plaintiffs to be children of Smt.Uttam Devi while raising plea that house in question stands gifted in her name. Denial by defendant of relationship between deceased Uttam Devi and plaintiff goes to show that she was not having a bonafide intention. RSA No.4396 of 2010 (O&M) 8 Smt.Uttam Devi was aged 80 years at the time when gift deed was executed. DW6 admits having not signed any document produced before him by Smt.Uttam Devi, Suresh Singh Kanwar and Meenakshi. Smt.Uttam Devi was not the inclusive owner of the house in question. She could not execute the gift deed of entire house in favour of the defendant. Keeping in view all these circumstances, it is held that the defendant has failed to prove that the gift deed was executed by Smt.Uttam Devi in her senses. The gift deed thus cannot be relied upon. It is further held that the learned trial Court rightly discarded the gift deed. 26. In view of discussion made above, the findings of the trial Court on various issues are affirmed. The judgment and decree of the learned trial Court are upheld. The appeal is held to be without merit, which is dismissed with costs.” Still not satisfied, the defendant-appellant has filed the instant appeal challenging the judgment and decrees of the Courts below raising the following substantial questions of law in the memorandum of appeal: “a) Whether a registered Gift Deed with possession by a sole owner can be set aside without suspicious or tangible reasons? b) Whether Smt.Uttam Devi who became absolute owner of the property after the death of her husband on 27.5.1970 was well within her rights to alienate the property in any manner? c) Whether the dis-inheritance of the respondents RSA No.4396 of 2010 (O&M) 9 which was occurred in the year 1971-72 on sanction of Mutation Ex.D41 can be challenged after the period of 27 years? d) Whether the Trial Courts as well as Lower Appellate Court have failed to decide the issue of limitation by appreciating the material as well as the legal grounds? e) Whether the mutation which conferred the rights on Uttam Devi could have been challenged with in the period of three years as per the law laid by the Supreme Court of India in State of Punjab vs. Gurdev Singh, AIR 1991 S.C. Page 2219? f) Whether the Judgment of Trial Court as well as Lower Appellate Court is based on inadmissible evidence that is reliance upon unexhibited documents for the purpose of parentage of respondents? g) Whether the opposition of application filed by Appellants for DNA Test by respondents itself creates suspicious regarding their paternity and adverse inference was to be drawn? h) Whether the Lower Appellate Court was bound to answer each and every issue by scrutinizing the material on record? i) Whether both the courts have misread, mis- construed and over look the material facts which goes in favour of Appellant. Thus the findings are erroneous and perverse? j) Whether the Will dated 7.4.1992 which impliedly RSA No.4396 of 2010 (O&M) 10 stands admitted by respondent no.1 on one of the attending circumstances supporting the execution of the valid Gift Deed?” Before this Court, learned counsel appearing on behalf of the appellant has challenged the findings of the Courts below qua the validity of the gift deed dated 27.8.1996. It has been vehemently argued by the learned counsel for the appellant before this Court that Uttam Devi was well within her rights to alienate the suit property in any manner after the death of her husband on 27.5.1970 as she had become absolute owner of the suit property and mutation of inheritance was also sanctioned in her favour and thus, a registered gift deed coupled with possession by a sole owner cannot be set aside without tangible reasons. Elaborating his argument further, learned counsel for the appellant has submitted that registered gift deed in favour of the appellant has been duly proved on record and it has also been established on record that the appellant had been delivered possession by Uttam Devi at the time of registration of gift deed which was duly accepted by her and therefore, she has become owner of the suit property at least to the extent of 1/3rd share which admittedly belonged to Uttam Devi and therefore, findings of the Courts below are against the well settled principle of law and are liable to be set aside as the following substantial questions of law arises in this appeal for the consideration of this Court “Whether a registered gift deed coupled with possession by a sole owner can be set aside without suspicious and tangible reasons?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. Certain facts could not be disputed by the learned counsel for RSA No.4396 of 2010 (O&M) 11 the appellant i.e. the plaintiff-respondents are the children of Uttam Devi and Tarlochan Singh, who was undisputedly the owner of the suit property; that on his death on 27.5.1970, the suit property devolved upon the respondents and Uttam Devi in equal shares to the extent of 1/3rd share each. Learned counsel for the appellant also could not dispute the legal proposition of law to the effect that mutation does not confer any title and that a co-owner/co-sharer cannot claim adverse possession against the other co-sharer and in view of the aforesaid settled proposition of law, Sh. K.S. Dadwal, learned counsel appearing on behalf of the appellant has to concede that Uttam Devi could have at the most execute a gift deed to the extent of 1/3rd share of the suit property which belonged to her. Faced with this situation, learned counsel for the appellant submitted before this Court that since the execution of the gift deed stood duly proved and there is no suspicious circumstances on the basis of which the same could be discarded, the suit to the extent of 1/3rd share belonging to Uttam Devi should have been dismissed. There is no dispute of the fact that Uttam Devi, prior to her death on 14.1.1999, was competent to alienate the house in dispute to the extent of 1/3rd share which belonged to her. However, both the Courts below on appreciation of evidence have recorded a concurrent finding of fact to the effect that the appellant has failed to prove that the gift deed was executed by Uttam Devi in her senses and therefore, the same cannot be relied upon. The Courts below have taken note of the fact that statement of Parshotam Singh Gill, DW-6- the attesting witness of gift, deed, does not inspire confidence. It is relevant to mention that though in his examination-in-chief, he stated that gift deed in question was scribed at the instance of Uttam Devi and after scribing, its contents were read over and Uttam Devi signed the same in token of its correctness, whereas the appellant accepted the gift deed by RSA No.4396 of 2010 (O&M) 12 signing it. However, in his cross-examination, he has clearly stated that he never signed any document presented by Uttam Devi, Suresh Singh Kanwar (husband of appellant) and Meenakshi. This witness, who claims himself to be a friend of the husband of the appellant, could not even tell the name of the father of appellant's husband neither he could tell the name of the father of the appellant nor her parental village. He knew nothing about details of appellant and her husband in spite of the fact that he was claiming friendship with him. He has also stated that the house of the appellant was in officers' colony and he was ploughing his lands adjoining to the said colony and because of the aforesaid fact, he knew appellant's husband. Thus, the Courts below on appreciation of evidence have reached to a conclusion that the document in question cannot be relied upon as even statement of marginal witness of the said document does not inspire confidence. Thus, it is not a case where the Courts below have recorded a finding without any evidence being on record, to claim that the findings are perverse. The Courts below on the basis of evidence on record have formed an opinion and have recorded a concurrent finding which cannot be substituted in the regular second appeal while exercising jurisdiction under Section 100 of the CPC. Thus, there is no merit in the contention raised by the learned counsel for the appellant and therefore, the substantial question of law as raised by the counsel for the appellant does not arise at all. No other point was argued. No merits. Dismissed. August 10, 2011 (RAKESH KUMAR GARG) ps JUDGE RSA No.4396 of 2010 (O&M) 13