RSA No.3215 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3215 of 2006 Date of Decision: 15.01.2009 Jaswant Singh ..Appellant Vs. Maya & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Raman Mohinder, Advocate, for the appellant. Mr.Mohd.Yousaf, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgments and decree dated 6.4.2004 and 1.3.2006 passed by the learned courts RSA No.3215 of 2006 2 below vide which suit filed by the plaintiff-appellant for declaration and permanent prohibitory injunction has been dismissed. The plaintiff/appellant claimed that he being brother of late Kishna was entitled to inherit the property left by Kishna as he had left no legal heirs at the time of his death. The suit was contested by the defendants wherein a positive stand was taken that the defendants are widow and daughter of Kishna and therefore, the mutation sanctioned in their favour has been rightly sanctioned. The plaintiff has no right to claim inheritance of Kishna. Issue No.4 was framed as to:- “Whether the defendants were the legal heirs of deceased Kishna and mutation No.1031 was rightly sanctioned in their favour?”. Learned trial court on appreciation of evidence has been pleased to record a finding that the defendant-respondents were widow and daughter of Kishna. Finding has been recorded on the basis of appreciation of evidence which reads as under:- “21. But the evidence led by the plaintiff coupled with the documents produced on the file could not prove the case of the plaintiff. In this regard, I find that the defendant No.1 Maya has married to Banta Ram alias Bantu who died issueless in his young age and after his death defendant No.1 has married Kishna younger brother of the said Banta Ram, at the time of Bhog Ceremony, as deposed by the witnesses of the defendant. Thereafter, she resided as wife of Kishna and cohabited RSA No.3215 of 2006 3 together as wife and husband and out of this wedlock a daughter, namely, Nachhatar Kaur, defendant No.2, was born. The birth entry of the said daughter has been duly entered in the register of the village Rurka maintained by the chowkidar and the entry has been duly verified by the numberdar of the village. DW 2. Teja Singh, aged 62 years of village Rurka, has deposed that he is Numberdar of village Rurka and knows the parties in person. After the death of Banta Ram, the defendant No.1 Maya was settled in the house of Kishna and they resided as husband and wife and out of this marriage a daughter namely Nachhatar Kaur was born, who is residing with her husband in village Rurka. The ration card of Kishna is in this village along with wife Maya and daughter Nachhatar Kaur. He has also a yellow card in his name, with the defendants. After the death of Kishna the defendants are only legal heirs of the said Kishna being widow and wife and the plaintiff Jaswant Singh, has no concern with it. DW 5 Nachhatar Kaur, has also deposed that she is the daughter of Kishna and Maya and yellow card dated 31.3.1982 was issued in favour of the said Kishna, wherein the name of defendants and their relationship has been mentioned. The said yellow card is Ex.D.5. She has also brought on record Ex.D.4, the copy of her birth entry in the register of village Chowkidar. The original ration card is Ex.D.6. The mutation No.1013 of inheritance of the said Kishna vide order dated 19.9.1997, has been rightly sanctioned in favour of the RSA No.3215 of 2006 4 defendant, the correct copy of which is Ex.D.7. The plaintiff Jaswant Singh has filed an appeal No.91 against the said order registered vide date 17.11.1997, but the same was dismissed, vide order dated 21.4.1998, passed by Sh.Mohinder Singh, District Collector, Sangrur, the correct coy of which is Ex.D.8. 22. DW 1 Balbir Singh, examined by the defendant has proved that Ex.D.1 is the correct copy of yellow card and Ex.D.2 is the schedule bearing the signatures of BDPO, Sh.Kishan Lal, Block-II, Malerkotla and the same has been issued in favour of Sh.Kishna, his wife Maya and daughter, Nachhatar Kaur. 23. DW . Surinder Singh, Inspector Food and Supply Grade- II, Malerkotla, has deposed that the ration card, under the signatures of Inspector Parkash Chand, Grade-I was issued in favour of Krishan Singh son of Gandu, resident of village Rurka, bearing No.0198719/23. The application form is signed by Sh.Amarjit Singh, AFSC the correct copy of which is Ex.D.3. It is further deposed that in the record vide form submitted by Kishan Singh, there is entry of Kishan Singh son of Gandu, aged 70 years, with wife Maya, aged 65 years. 24. Further DW 4 Sardar Ali, Chowkidar, of village Rurka, has proved from the register of birth and deaths of village Rurka an entry, the correct copy of which is Ex.D.4 vide which it is mentioned that Nachhatar Kaur was born on 1.6.1959 and his father name is Kishan Singh son of Gandu Singh of village RSA No.3215 of 2006 5 Rurka. Although, the witnesses of the defendants have been cross-examined, at length by the learned counsel for the plaintiff, but the above said documents could not be rebutted by him. Even DW 4 Major Singh, examined by the plaintiff has admitted that Maya remained as wife of Kishna and out of their wedlock, the daughter Nachhatar Kaur was born. PW 1 Lal Singh is aged 32 years and he cannot rebut birth entry of the year 1959 of Nachhatar Kaur and the marriage of Maya with Kishna Singh. It is admitted by this PW 1 that Banta Ram died issueless and there is no explanation on the part of the plaintiff that what is father name of Nachhatar Kaur. They have failed to explain anything in the replication, in the plaint and even in the evidence in regard to the father of said Nachhatar Kaur, whereas, from the evidence brought on record, it stands established on the file that Nachhatar Kaur is the daughter of Maya and Kishna alias Kishan Singh and the yellow card and the ration card were also there during the life time of Kishna showing that Maya resided as wife of the said Kishan Singh. Even in the certified copies of the statement produced on the file by the plaintiff, recorded at the time of mutation proceedings by the court of Assistant Collector First Grade, Malerkotla. DW 2 Teja Singh has deposed about Kareva of Maya with Kishna. The learned counsel for the plaintiff has argued that there was no such custom of Kareva in the village, but I find that this kind of marriage is conducted secretly when RSA No.3215 of 2006 6 the widow of a brother settles in the house of the brother of the deceased and resided there as wife.” The finding of fact recorded by the learned trial court stands affirmed by the learned lower appellate court. Learned counsel for the appellant vehemently argued that the learned courts below have wrongly dismissed the suit by placing reliance on the oral evidence whereas there was sufficient documentary evidence produced by the plaintiff against the defendant-respondents. It is also the contention of the learned counsel for the appellant that qua the relationship of defendants with late Kishna there are merely bald statements of witnesses which can not be sustained being not in consonance with Section 50 of Evidence Act and also in view of documentary evidence. In support of his contention learned counsel for the appellant referred to certain documents produced on record by the plaintiff wherein Maya defendant No.1 had shown herself to be the widow of Bant Singh i.e. the elder brother of Kishna. I find no force in the contentions raised by the learned counsel for the appellant. The finding recorded by the learned trial court would show that the finding is not based on the oral statements of the witnesses as claimed but also on the documentary evidence produced on record i.e. the birth certificate showing defendant No.2 as daughter of Kishna. It also came in evidence that Bant Singh died issueless and thereafter Maya had been staying with Kishna as his wife as was proved by way of documentary evidence i.e. Yellow Card and Ration Card etc. which were issued on the basis of application made by Kishna during his life time. RSA No.3215 of 2006 7 Finding of fact has been recorded on the basis of evidence on record holding that the defendants were the daughter and widow of Kishna. The contention of the learned counsel for the appellant that the oral evidence has been preferred to documentary evidence cannot be accepted. No substantial question of law arises in this appeal for consideration of this court. No merit. Dismissed. 15.01.2009 (Vinod K.Sharma) rp Judge