JUDGMENT
M.M. Kumar, J.
1. This is plaintiff’s appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, “the Code”) impugning the judgment dated 5.10.1984 passed by the Additional District Judge, Faridkot reversing the view taken by Sub Judge, 1st Class, Moga in his judgment dated 10.2.1982. The Sub Judge has decreed the suit filed by the plaintiff-appellants.
2. The facts in brief are that he plaintiff-appellant filed Civil Suit No. 424 of 29.5.1979 seeking a declaration to the effect that they along with defendant-respondent 1 are owners of 1/12th share of the land measuring 150 Kanals 6 Marlas which is specified in detail in the heading of the plaint. The plaintiff-appellant namely, (1) Kartar Kaur asserted that she was widow of the Bachittar Singh. It was alleged that defendant-respondents 2 to 7 in conspiracy with the Revenue Patwari had got the mutation of inheritance of Bachittar Singh entered in their names at the back of plaintiff-appellants. It was further claimed that plaintiff-appellant 2 Mohinder Singh and defendant-respondent 1 Chhinder Singh were sons of aforementioned Bachittar Singh and, therefore, they were claimed to be the sole heirs. It is admitted position that Bachittar Singh since deceased was owner of l/12th share in the suit land. As defendant-respondents 2 to 7 have got the mutation of Bachittar Singh entered in their names, a prayer for permanent injunction was also made restraining them from transferring, alienating in any way or mortgaging the share of the plaintiff-appellants and defendant-respondent 1.
3. Defendant-respondents 3, 4 and 6 in their joint written statement denied that plaintiff-appellant-1 Kartar Kaur was the widow or plaintiff-appellant 2 Mohinder Singh and defendant-appellant-1 Chhinder Singh were the sons of Bachittar Singh. It was alleged that Kartar Kaur in fact was the wife of Santa Singh son of Kehar Singh of Village Khara and has never been divorced by him. Defendant-respondents 2 to 7 are claimed to be brothers and sisters of Bachittar Singh deceased. It was also claimed that inheritance had rightly been sanctioned in their favour. The objections were also raised with regard to maintainability of the suit because as the plaintiff-appellants and defendant-respondents were not in possession, only suit for joint possession could be maintained which has not been properly valued and was not within time.
4. On the basis of the pleadings of the parties, the following issues were framed:
1. Whether the plaintiffs and defendant No. 1 own 1/12th share of the land in suit? OPP
2. Whether the suit as framed is maintainable? OPP
3. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP
4. Whether the suit is within time? OPP
5. Relief.
5. On issue No. 1, the trial Court recorded a finding that Kartar Kaur was the wife of Bachittar Singh and plaintiff-appellant-2 Mohinder Singh and defendant-respondent-1 Chhinder Singh were his sons. On that basis a declaration was given that they were the sole heirs of Bachittar Singh and were entitled to inherit 1/12th share of the suit land. On issue No. 2, the finding recorded is that the suit was maintainable as Bachittar Singh was shown to be in possession and there was no evidence showing the ouster of the plaintiff-appellants or defendant-respondent-1 from the possession of the suit land. Even on issue No. 3 concerning valuation of the suit for the purpose of court fee, the finding was recorded in favour of the plaintiff-appellant. The suit was also held to be within time while recording finding on issue No. 4 eventually a declaration was issued declaring the plaintiff-appellants and defendant-respondent-1 to be owners of 1/12 share of land measuring 150 kanals 6 marlas. A permanent injunction restraining defendant-respondents 2 to 7 from transferring or alienating in any way or mortgaging the share of the plaintiff-appellants and defendant-respondent-1 was also issued.
6. On appeal, the (earned Additional District Judge reversed the findings on the vital issue No. 1 holding that Kartar Kaur has not been proved to be the wife of Bachittar Singh. A variety of reasons has been given by the learned Additional District Judge in support of the aforementioned conclusion. Referring to the statement of Kartar Kaur particularly to her cross-examination, the learned Additional District Judge observed as under:-
“…….To prove the said relationship, Kartar Kaur has stepped in the witness box as PW3, she in the examination-in-chief has endeavoured to prove the said relationship but giving thoughtful consideration to the statement made in the cross-examination. I am led to hold that her version is not bonafide. She states that she was married with Bachittar Singh 27 years back and that for the last 20 years she had not gone her father-in-law’s house. No explanation has been given by her in this respect. If she was the wife of Bachittar Singh she was expected to reside in the house left by him. She has offered no explanation as to why for the last 20 years she had not resided at Village Sukha Nand, her-in-law’s village. Further, according to her, her son Chhinder Singh is known as Bishna also. But copy of jamabandi Ex.P2 reveals that Bishna was the grand-father of Bachittar Singh. It is not believable that Bachittar Singh could baptise his son in the name of his grand-father.”
7. The learned Additional District Judge has made a detailed reference to the statement of Harjit Singh PW1, Kapur Singh PW2 and has discarded those statements for numerous reasons. He has placed reliance on the statement made by defendant-respon-dent-2 Sukhminder Singh who had appeared as DW3 and one Sohan Singh, DW1 in support of his conclusion that Kartar Kaur plaintiff-appellant-1 was not the wife of Bachittar Singh. The conclusion on the basis of evidence recorded by the learned Additional District Judge reads as under:-
“On the contrary, Sukhmander Singh appellant-defendant as DW3 has stated with force that Bachittar Singh his brother was unmarried and that he had no concern with Kartar Kaur. He further states that Kartar Kaur was the wife of Santa Singh of Khera. Sohan Singh (DW1) who is the resident of Khera states that Kartar Kaur was married with Santa Singh of his village. He states that he was present at the time of the said marriage between Santa Singh and Kartar Kaur. Balbir Singh who is the resident of village Maur, the parental village of Kartar Kaur, also states that she was the wife of Santa Singh of Khera. These two witnesses are disinterested and I find no reason to dis-believe their testimony.”
8. The learned Additional District Judge also recorded that the conclusion that the certificate Ex.P1 allegedly issued in favour of defendant-respondent-1 has been tampered with and, therefore, it was held that the statement made by Kartar Kaur is not trust-worthy.
9. On issue No. 2 concerning maintainability of the suit, the finding was also reversed holding that the plaintiff-appellants or defendant-respondent-1 were not in possession of the suit land and the suit for declaration above was not maintainable.
10. Mr. V.K. Kataria, learned counsel for the plaintiff-appellants has argued that the Additional District Judge has failed to appreciate the evidence in accordance with law. According to the learned counsel, the failure on the part of defendant-respondents 2 to 7 to produce Santa Singh, the alleged husband of Kartar Kaur would go a long way to show that Kartar Kaur was not the wife of Santa Singh. He has stressed that Santa Singh has not been produced deliberately in order to avoid the elicitation of truth during cross-examination. The learned counsel has further argued that in her statement Kartar Kaur has emphatically asserted that she was wife of Bachittar Singh and plaintiff-respondent-2 Mohinder Singh and defendant-respondent-1 Chhinder Singh were born out of the loins of Bachittar Singh.
11. Mr. H.S. Bhullar, learned counsel for the defendant-respondents has submitted that no reliance can be placed on the statement of Kartar Kaur as the birth certificate Ex.P1 in respect of Chhinder Singh defendant-respondent-1 has been found to be fabricated either by her or at her instance. He has further submitted that no woman would live away from her husband for 20 years and it is unbelievable that she would not even attend his cremation or any of the ceremonies which are performed after the death of a husband. The learned counsel has also pointed out that no evidence has been produced on record to establish that Kartar Kaur was the wife of Bachittar Singh.
12. After hearing learned counsel for the parties and perusing the record, I am of the considered view that this appeal is liable to be dismissed. There is no evidence produced on record showing that Kartar Kaur was ever married to Bachittar Singh except the oral and doubtful statements made by the plaintiffs’ witnesses. Had it been a fact, then the evidence in the form of ration-card, voters list or other documents could have been produced which could have established that Kartar Kaur was the wife of Bachittar Singh. The oral statement made by PW1, PW2 and PW3 as against the oral statements of DWs. would not furnish sufficient proof of relationship of Kartar Kaur with Bachittar Singh. Therefore, the finding recorded by the learned Additional District Judge holding that Kartar Kaur has not been proved to be wife of Bachittar Singh is liable to be affirmed. Once the findings on issue No. 1 are affirmed, then no right would be created in favour of Kartar Kaur or her sons.
13. Once the finding with regard to relationship of Kartar Kaur with Bachittar Singh is affirmed then the necessary consequence is that plaintiff-appellant-2 and defendant-respondent- 1 could not be regarded as the sons of Bachittar Singh had would not be entitled to succeed to his share in the suit property. Moreover, the plaintiff-appellants or defendant-respondent-1 are not in possession of the suit land nor any prayer has been made for restoration of possession. Therefore, the suit for declaration alone would not be maintainable without further prayer for restoration of possession which would require the valuation of the suit according to the relevant provisions of the Court Fee Act, 1870. Therefore, the finding on issue No. 2 as recorded by the learned Additional District Judge is also affirmed.
14. I am further of the view that no question of law has been raised necessitating exercise of jurisdiction under Section 100 of the Code. The Supreme Court has repeatedly held that this Court would not enter into reappreciation of evidence in order to record a finding different than the one recorded by the first Appellate court. In this regard reference may be made to the view of the Supreme Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003)2 S.C.C. 91, Kulwant Kaur v. Gurdial Singh, (2001-2)128 P.L.R. 492 (S.C.), Bondar Singh v. Nihal Singh, (2003)4 S.C.C. 161 and Kanhaiyalal v. Anupkumar, (2003)1 S.C.C. 430.
15. For the reasons recorded above, this appeal fails and the same is dismissed.
