JUDGMENT
B. Rai, J.
1. This Regular Second Appeal has been preferred by the defendants against the judgment and decree, dated May 23, 1979 of the Court of 1st Additional District Judge, Hoshiarpur, whereby appeal of the defendants was dismissed and the judgment and decree, dated April 28, 1976 of the Subordinate Judge Second Class, Dasuya, were affirmed.
2. At the outset, it would be apposite to produce the pedigree-table of the parties:
Ganda Singh
—————————————————————–
| | |
Kabir Singh Ujagar Singh Sohan Singh
| = Karam Kaur = Sardul Kaur |
| died in 1968 defdt. No.l |
| = Kishan Kaur |
| died in 1950 |
| | |
| | ------------------------------------
| | | | | |
| | Joginder Mohinder Raj Harbhagat
| Parsin Kaur Singh Singh Singh Singh
| Defdt.2 Defdt.3 @ defdt.5
Mukhtar Rajbir
Singh Singh
unmarried Defdt.4
died in 1942
Parsin Kaur filed a suit for possession of land measuring 39 Kanals 2 Marlas situated in Village Kharal Khurd, Tehsil Dasuya, District Hoshiarpur, as per Jamabandi for the year 1966-67 fully described in the headnote of the plaint.
3. Brief facts of the case are that Kabir Singh was owner of the suit land. He died in the year 1933 leaving behind his two widows, Karam Kaur and Kishan Kaur, his son Mukhtar Singh and Parsin Kaur alias Sukhchain Kaur, daughter born to his wife Kishan Kaur. Mikhtar Singh was unmarried and died in the year 1942. On the death of Kabir Singh, land left by him had been inherited by his heirs. Kishan Kaur died in the year 1950 and the entire property in this manner was inherited by Karam Kaur. Karam Kaur died in the year 1968. Thus, Parsin Kaur clams to be the sole owner of the property left by Karam Kaur. Her case is that possession of the suit property was forcibly taken over by the defendants and now they do not vacate the same despite several requests. Hence, she filed the suit.
4. The suit was contested by the defendants pleading, inter alia, that she has no concern with the land in dispute. They denied the relationship of Parsin Kaur with Kishan Kaur or with Kabir Singh. According to them, their possession is legal and in accordance with the compromise, dated July 10, 1942 and also that they are the only legal heirs of Kabir Singh deceased. They averred that after the death of Kabir Singh, his son Mukntar Singh succeeded to the estate of the former and when Mukhtar Singh died in 1942, Karam Kaur and Kishan Kaur widows of Kabir Singh succeeded to his estate. An agreement was reached between Karam Kaur and Kishan Kaur on the one hand and defendants 2 to 5 and Ujagar Singh husband of Sardul Kaur were limited owners of the land and, as such, they could enjoy the fruits of the land till their death. Other averments were, however, admitted.
5. Pleadings of the parties gave rise of the following Issues:
1) Whether plaintiff Parsin Kaur is not the daughter of Smt. Kishan Kaur ? OPD
2) Whether Smt. Karam Kaur had only life interest in the suit property? OPD
3) Whether Smt. Karam kaur died after the enforcement of Hindu Succession Act and was in possession of the suit land? OPP
4) Whether the plaintiff is the heir of Smt. Karam Kaur a daughter of Kabir Singh? OPP
5) If issues No. 4 is not proved, whether the defendants are the legal heirs of Smt. Karam Kaur? OPD
5.A) Whether the written statement of Mohinder Singh defendant is properly filed? OPD
5.B) Whether the defendants are owners of the suit property? OPD
6) Relief.
6. After considering evidence led by the parties, under Issue No. 1, it was held that Parsin Kaur is the daughter of Kabir Singh deceased from his wife Kishan Kaur. Under Issues 2 and 3, finding returned was to the effect that Karam Kaur was in possession of the suit land on the date the Hindu Succession Act came into force and by operation thereof her possession ripened into full ownership Meaning thereby that she became full owner of the suit property. Under Issue No. 4, Parsin Kaur was held as heir of Kabir Singh through Karam Kaur who died after coming into force of Hindu Succession Act, 1956. Under Issue No. 5 in view of the finding recorded on Issue No. 4, no finding was returned. It was noticed by the first appellate Court that Issues 5-A and 5-8 though framed, yet no finding was returned by the trial” Court. (Even the first appellate Court did not record any finding on the said Issues.) Consequently, the suit of Parsin Kaur plaintiff was decreed with costs. The judgment and decree of the trial Court on appeal were affirmed by the first appellate Court. Hence, this Regular Second Appeal at the instance of the defendants as mentioned in the opening paragraph of this judgment.
7. At the outset, it was argued by the learned counsel for the appellants that from the very beginning the appellants have disputed the relationship of Parsin Kaur with Kisan Kaur widow of Kabir Singh and with Kabir Singh. According to him, both the Courts below have misread and did not properly appreciate the evidence on record; and arrived at unwarranted conclusion that Karam Kaur had become full owner of the land in dispute on coming into force of the Hindu Succession Act, 1956 and Parsin Kaur is the heir of Kabir Singh deceased and that she is entitled to possession of the suit land. It was further submitted that the finding that Parsin Kaur is the daughter of Kishan Kaur is also erroneous being based on evidence which is hit by the provisions of Section 50 of the Indian Evidence Act and is not admissible in law. It was also argued by the learned counsel for the appellants that where the relationship of one person with another is in dispute, denial on the part of a party is sufficient to discharge the onus. Even otherwise it is difficult for a party to prove the negative. In the instant case, Parsin Kaur claims herself to be the heir of Kabir Singh through Kishan Kaur. Therefore, it was for her to prove her relationship with Kabir Singh through Kishan Kaur. Therefore, onus of proof of Issue No. 1 should have been placed by the trail Court on the plaintiff and not on the defendants. No doubt, onus of proof of Issue No. 1 should have been placed on the plaintiff instead of defendants. Nothing has been shown that any prejudice was caused to the defendants. Both the parties knew the real controversy between them. Both the parties led evidence with regard to their respective stands. Therefore, placing onus on defendants would not affect the final decision in the case in any manner.
8. On the other hand, learned counsel for the respondents has vehemently refuted the contentions raised by the learned counsel for the appellants, and argued that both the Courts below have properly appreciated the evidence and have come to the right conclusion that Parsin Kaur being the daughter of Kishan Kaur from the loins of Kabir Singh, is his legal heir and is, to succeed to his estate as also to possession thereof
9. I have given my thoughtful consideration to the rival contentions. The only question that arises for determination in this appeal is whether Parsin Kaur is the daughter of Kabir Singh original owner of the suit land through his wife Kishan Kaur. In order to prove that Parsin Kaur is the daughter of Kabir Singh through his wife Kishan Kaur, defendants examined Jagjit Singh and Daljit Singh, DWs 1 and 2. They have not stated in clear terms that Parsin Kaur is not the daughter of Kishan Kaur. Mohinder Singh (DW3) does not say anything about the relationship of Parsin Kaur with Kishan Kaur. His evidence shows that according to him, Parsin Kaur may or may not be the daughter of Kishan Kaur. He did not controvert the statement of Parsin Kaur that she is daughter of Kishan Kaur. Harbhagat Singh (DW4), however, stated that Parsin Kaur is not the daughter of Karam Kaur or of Kabir Singh. The relationship of Parsin Kaur with Kishan Kaur wife of Kabir Singh is in dispute. The evidence adduced by the defendants gives an impression that they did not seriously contest the relationship of Parsin Kaur with Kishan Kaur and Kabir Singh. Mere denial of relationship of Parsin Kaur with Kabir Singh through Kishan Kaur is neither admissible in evidence nor is sufficient to disprove her relationship with Kabir Singh through Kishan Kaur. If according to the defendants Parsin Kaur is not the daughter of Kabir Singh, it was for them to suggest and prove that she was the daughter of some person other than Kabir Singh, but at any stage of the proceedings it was neither so suggested nor evidence was led to that effect by the defendants. On the other hand, plaintiff examined as many as six witnesses including herself as PW6. Kundan Singh (PW1) stated that Karam Kaur was his daughter and Kabir Singh was, his son-in-law. Kishan Kaur was second wife of Kabir Singh and Parsin Kaur is the daughter of Kishan Kaur from the loins of Kabir Singh. Evidence of Avtar Singh (PW2) not being in conformity with the provisions of Section 50 of the Indian Evidence Act is not of any help to the plaintiff. PW4 Resham Singh is co-sharer in the joint Khewat in Village Khokhar. It was stated by him that Kabir Singh was his uncle. He had two wives Karam Kaur and Kishan Kaur. Kishan Kaur had a son and a daughter. Parsin Kaur plaintiff is the daughter of Kishan Kaur. He further stated that Sardul Singh is husband of Parsin Kaur and General Attorney of Karam Kaur. He was cross-examined to show that there were criminal cases between him and his son on the one side and Joginder Singh defendant and other defendants on the other. He displayed his ignorance about the same. The defendants did not produce any documentary evidence to show that there were criminal proceedings between him and the defendants. It was nowhere suggested to him that Kabir Singh was not his uncle or he was not co-sharer in the joint Khewat in Village Kharal Khurd or that Parsin Kaur is not the daughter of Kabir Singh and Kishan Kaur. He being the co-sharer in the joint Khewat and relation of Kabir Singh had the special means of knowledge regarding relationship of Parsin Kaur with Kabir Singh and Kishan Kaur. Parsin Kaur while appearing as PW6 also stated that she is the daughter of Kishan Kaur and Kabir Singh was her father. Her father Kabir Singh had two wives, namely, Karam Kaur and Kishan Kaur. Mukhtar Singh son of Kabir Singh died when he was unmarried. It was further stated by her that her father Kabir Singh was posted as Patwari in village Tarkhanwala, District Ferozepore, and they lived their for 9/10 years. She was little educated while Karam Kaur and Kishan Kaur were illiterate and they used to reside with her. Whatever has been stated by Parsin Kaur was not challenged in cross-examination. Buta Singh was examined as PW3. It was stated by him that he had purchased land from Karam Kaur wife of Kabir Singh. Parsin Kaur daughter of Kabir Singh had filed a preemption suit against him. This statement of Buta Singh (PW3) was not challenged in his cross-examination. The evidence of Buta Singh (PW3) goes to show that Parsin Kaur had asserted her right as daughter of Kabir Singh long before the present controversy arose between the parties. Both the Courts below have recorded a concurrent finding that Parsin Kaur is the daughter of Kabir Singh through his wife Kishan Kaur. Therefore, it cannot be said that the Courts below misread the evidence or had left some relevant evidence out of consideration or that they arrived at an erroneous conclusion. Even otherwise, concurrent finding of fact recorded by both the Courts below after appraisal of evidence is a finding of fact which is not open to challenge in Regular Second Appeal. The contention of the learned counsel that Karam Kaur had the limited interest in the estate left behind by her husband Kabir Singh and had not become full owner of the property in dispute, is without any merit. Faced with this, the learned counsel for the appellants referred to Mark ‘A’ and argued that on July 10, 1942 an agreement was arrived at between Kishan Kaur and Karam Kaur widows of Kabir Singh on the one hand, Ujagar Singh husband of defendant No. 1 and sons of Sohan singh on the other, whereby they were given a life estate with the stipulation that they could use the usufruct of the property during their life time and after their death the land was to revert back to the heirs of Kabir Singh. When Kishan Kaur herself had not become full owner of the land in dispute, Parsin Kaur cannot claim to be to the owner and in possession. It was argued that this document being more than thirty years old per se is admissible in evidence and the Courts below should not have ignored the same. The argument being without substance is not acceptable. Only the original documents which are more than thirty years old without formal proof are admissible in evidence. Section 90 of the Indian Evidence Act reads as under:
” 90. Presumption as to documents thirty years old. – Where any document, purporting or proved to the thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation. – Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.”
A bare perusal of the abovesaid provision would show that it speaks of the presumptions attached to the original documents purporting or proved to be thirty years old and produced from any custody which the Court in the circumstances of the particular case considers and not to the copies of originals. Admittedly, Mark ‘A’ is the certified copy and not the original document. Therefore, no statutory presumption as envisaged under Section 90 of the Indian Evidence Act can be drawn regarding the signatures of executants of it. Therefore, it was required to be proved by adducing admissible evidence which was not done by the appellants. Therefore, Mark ‘A’ was rightly ignored by the Courts below and no fault can be found with the finding to that effect. In view of the finding that Parsin Kaur has been held to be the only heir of Kabir Singh original owner of the suit land and that the defendants have not led any contra evidence, the findings recorded by the lower appellate Court are well founded and the same are affirmed.
10. No other point has been raised or canvassed.
In view of the discussion above, the appeal fails and is hereby dismissed. No costs.