RSA No.1502 of 1989 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1502 of 1989 (O&M)
Date of Decision: 24.2.2009
Shrimati Savitri & Anr. ..Appellants
Vs.
Krishni alias Kreshni ..Respondent
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.V.K.Jain, Sr. Advocate,
with Mr.Prashant Vashisth, Advocate,
for the appellants.
Mr.Arun Jain, Sr.Advocate,
with Mr.Amit Jain, Advocate,
for the respondent.
---
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.
This regular second appeal is directed against the judgments
RSA No.1502 of 1989 2
and decree passed by the learned courts below vide which suit filed by the
plaintiff/respondents for declaration with consequential relief stands
decreed.
The plaintiff/respondents brought a suit on the pleadings that
Lachhman alias Bodha father of the plaintiff/respondents was owner in
possession of land measuring 228 kanals 3 Marlas at village Padwala
Tehsil and District Karnal.
Lachhman alias Bodha died in the month of September, 1983
and the Assistant Collector II Grade, Nilokheri without any notice to the
plaintiff sanctioned the mutation in favour of the defendant/appellants i.e.
Dalel Singh and Smt.Savitri. It was claimed that mutation dated 17.5.1984
was illegal and void and did not affect the rights of the
plaintiff/respondents.
It was also the case of the plaintiffs that deceased Lachhman
alias Bodha died intestate and that the mutation dated 17.5.1984 was
sanctioned i n favour of the defendant in connivence and collusion of the
defendants with Halqa Patwari and Assistant Collector II Grade, Nilokheri
which was said to be void and not binding upon the rights of the plaintiffs.
The plaintiffs, thus, claimed 1/3rd share in the estate of deceased Lachhman.
The suit was contested by raising preliminary objections that the plaintiffs
had no locus standi to file the present suit and she was not at all related to
Lachhman alias Bodha. Plea was also raised that the suit is not properly
valued for the purposes of court fee and jurisdiction. Suit was said to be
time barred and otherwise defective.
RSA No.1502 of 1989 3
On merits assertions made by the plaintiff were denied.
The plaintiff/respondent filed replication wherein
averments made in the written statement were contested and that of the
plaint were reiterated.
On the pleadings of the parties learned trial court was
pleased to frame the following issues:-
1. Whether the plaintiff is the daughter of Lachhman @
Bodha? OPP.
2. Whether the plaintiff has 1/3rd share in the suit land
detailed in para No.1 of the plaint? OPP.
3. Whether the suit is not maintainable in the present
form? OPD
4. Whether the suit is not properly valued for the purposes
of court fee and jurisdiction? OPD
5. Whether the suit is not properly signed and
verified?OPD
6. Whether the suit is time barred? OPD
7. Relief.
Learned trial court on appreciation of evidence brought on
record decided issues No.1 and 2 in favour of the plaintiff/respondent,
whereas issues No.3 to 6 were decided against the appellant/defendants
being not pressed. Consequently the suit filed by the plaintiff/respondent
was ordered to be decreed.
The appellant/defendants preferred an appeal against the
RSA No.1502 of 1989 4judgment and decree passed by the learned trial court and challenged the
findings on issues No.1 and 2 on the plea that the learned trial court had
misread the evidence brought on record and ignored the material
discrepancies in the statements made by the witnesses produced by the
plaintiff to record a finding on issue No.1 to hold that the plaintiff is the
daughter of Lachhman alias Bodha. Learned trial court held that in order to
prove the relationship the plaintiff beside appearing as PW 1 had also
examined Hem Raj as PW 2 i.e. her maternal uncle, Surta as PW 3 resident
of Padwala, Mansa as PW 4 and Surta PW 5 i.e. the husband of Krishni,
plaintiff, whereas to rebut this evidence defendant Savitri appeared as DW
1. She also examined Risal Singh DW 2, Jai Singh DW 3 and Ram Kishan
DW 4.
Evidence brought on record by the respective parties was
discussed by the learned lower appellate court as under:-
8. …. She has further stated that Jiwni had married Tulla
Ram resident of Patwala and a daughter was born to Jiwni, who
had died and after the death of Tulla, Jiwni contracted a
Karewa marriage with Lachhman. Out of this marriage, she,
Savitri and Dalel were born. She further deposed that
Lachhman died three years ago and the mutation was wrongly
sanctioned in favour of Dalel and Savitri as she has been
deprived of 1/3rd share in the property. In cross-examination,
she could not say about the death of Tulla. According to her, he
mother Jiwani died 15 years ago. She further stated that
RSA No.1502 of 1989 5Lachhman remained sick for period of two years before his
death in village Padwala and was looked after in his life time
by his daughters and son. She also maintained that she did not
come to know about the death of Lachhman and came to know
about the mutation from the residents of the village. She could
not say about the exact period after the death of Tulla, Jiwani
contracted Karewa marriage with Lachhman. She maintained
that she was elder to Dalel and Dalel was elder to Savitri.
According to her, Dalel Singh is aged 40 years and Savitri is
aged 30 years and Lachhman died at the age of 90 years. She
also stated that Jiwni started living with Lachhman at the age of
35 years and Dalel was born after ten years of the marriage of
Jiwni with Lachhman. She admitted that customary Bhat was
given by Inder and Ram Chander. She could not say whether
her date of birth was recorded with the authorities. She also
admitted that after the death of Tulla, Inder and Ram Chander
had inherited the property. Hem Raj (PW2) has maintained that
Savitri, Krishni and Dalel are his nieces and nephew
respectively as they were born out of the loins of Lachhman.
Lachhman was also known as Bodha and Jiwni was his sister.
He further stated that Jiwni was married with Tulla and after his
death, Jiwni contracted a Karewa marriage with Lachhman. He
also stated that Kirya ceremony was attended by him where
respondent and her husband were also present. In cross-
RSA No.1502 of 1989 6examination, he stated that Shanti his wife is real sister of
Surta, husband of Savitri. Surta (PW3) had remained Sarpanch
of the village and he had stated that Hem Raj is maternal uncle
of the parties. He further deposed that out of the loins of
Lachhman one son and two daughters were born to Jiwni and
further deposed about the contact of Krishni towards his father
Lachhman, according to him. Krishni used to live with
Lachhman prior to his death as he remained sick. In cross-
examination, he stated that he is not aware whether any birth
entry of the respondent was recorded with the chowkidar.
Mansa (PW4) has corroborated the statements of the PWs and
has stated that Jiwni had contracted Karewa marriage with
Lachhman and respondent and appellants were born to her from
the loins of Lachhman. In cross-examination, he could not say
about the ages of Lachhman and Jiwni at the time when Krishni
was born. He also admitted that his son was married at Basthla
where Krishni is also married. Surta (PW5) is husband of
Krishni and had fully corroborated the stand of Krishni as well
as other PWs examined.
9. Savitri (DW1) has maintained that Krishni is daughter of
Tulla and was not related to Lachhman. In cross-examination,
she admitted that Dale is invalid and is not in a position to
move. She has further admitted that Dalel is not married and
has been residing with Inder and Ram Chander. She also stated
RSA No.1502 of 1989 7that her husband had died and she had no issue. She maintained
that Hem Raj is not her maternal uncle and according to her,
Rikha and Sadhu are only her maternal uncles who are alive.
She further stated that she had not met her maternal uncles so
far. Risal Singh (DW2) has deposed that Krishni is daughter of
Tulla, but could not say about the number of brother in law of
Lachhman. He has further stated that Dalel is living with Santa
who cultivates his land. Jai Singh (DW3) has stated that
Lachhman was his maternal uncle as he is son of Bakhtawari.
According to him, Krishni is not related to Lachhman. He has
also admitted that Dalle is invalid and is not in a position to
move and is residing with Santa these days. He expressed his
ignorance whether Parbhu, Assa, Hem Raj and Dhanna are
other brother-in-laws of Lachhman. Ram Kalan (DW4) is
Sarpanch of the village and has stated that Krishni is not related
to Lachhman.”
Learned lower appellate court observed that from the evidence
on record it was proved that Jiwni had contracted Kareva marriage with
Lachhman after the death of Tulla and thereafter Dalel Singh and Savitri
were born to Jiwni out of the loins of Lachhman.
The only point in dispute was with regard to the relationship of
Krishni with Lachhman. Learned lower appellate court came to the
conclusion that merely because the plaintiff/respondent had not come to
know about the death of Lachhman and discrepant statement about her
RSA No.1502 of 1989 8presence about Kirya could not falsify her statement of being daughter of
Lachhman. The learned lower appellate court also observed that with her
admission that Inder and Ram Chander had given Bhat to her and that Inder
and Ram Chander had succeeded to property of Tulla could not be taken to
be such an admission which could falsify the case set up by the
plaintiff/respondent. Learned lower appellate court affirmed the findings of
the learned trial court and based its finding on the statement of Hem Raj PW
2 i.e. the maternal uncle of the parties who had categorically stated that the
plaintiff/respondent was born to Jiwni out of loins of Lachhman along with
Savitri and Dalel Singh defendant/appellants.
The evidence led by the defendant/appellants was rejected for
not having produced near relation from the maternal side and thus, the
finding on issue No.1 as recorded by the learned trial court was affirmed.
Learned lower appellate court also did not pay any importance to the fact
that there was no birth entry of Krishni on record. Before the learned
lower appellate court the appellant/defendants produced on file birth
certificate Ex.A.1 of Ram Singh son of Lachhman who was born on
1.11.1947 and the birth Certificate Ax.A.2 of Savitri daughter of Lachhman
who was born on 15.9.1953 as well as the birth certificate of Ram Devi
daughter of Tulla who was born on 25.5.1934.
The contention that the certificate of Ram Devi related to
Krishni was rejected on the plea that the witnesses produced by the
plaintiff/respondent have stated that Ram Devi had died. The court also
observed that it was not even suggestion put to Krishni that she was in fact
RSA No.1502 of 1989 9Ram Devi.
Mr.V.K.Jain learned senior counsel appearing on behalf of the
appellants raised the following substantial questions of for consideration in
this appeal:
1. Whether the evidence not falling within the ambit of
section 50 of the Evidence Act can be looked into to
determine the relationship of parties?
2. Whether the evidence beyond the pleadings can be
looked into?
3. Whether the judgment and decree passed by the learned
courts below is the outcome of misreading of
documentary and oral evidence brought on record?
Mr.V.K.Jain, learned senior counsel appearing on behalf of the
appellants in support of the substantial questions of law vehemently
contended that the judgments and decree passed by the learned courts below
is the outcome of misreading of evidence and further that the evidence led
with regard to the relationship of plaintiff/respondents with Lachhman to
prove his relationship did not met with requirement of Section 50 of the
Evidence Act.
Section 50 of the Evidence Act reads as under:-
“50. Opinion or relationship, when relevant.– When the
Court has to form an opinion as to the relationship of one
person to another, the opinion, expressed by conduct, as to the
existence of such relationship, or any person who, as a member
RSA No.1502 of 1989 10of the family or otherwise, has special means of knowledge on
the knowledge on the subject, is relevant fact.
Provided that such opinion shall not be sufficient to
prove a marriage in proceedings under Indian Divorce Act,
1869 (4 of 1869), or in prosecution under sections 494, 495,
497, and 498 of the Indian Penal Code (45 of 1860).”
In this back-ground learned senior counsel for the appellants
vehemently contended that Hem Raj PW 2 did mention that Lachhman and
plaintiff/respondent used to treat themselves as father and daughter and
used to be called as such. The said evidence could not be a basis to hold the
relationship to have been proved in view of the admission that his wife
was real sister of the husband of the defendant. Learned senior counsel for
the appellants also contended that even the statement of PW 3 regarding
proof of relationship could not be accepted as in the cross-examination he
was not able to tell parentage of Lachhman and thus, was not a person
closely related to give an opinion about the relationship as envisaged in
Section 50 of the Evidence Act.
It is the contention of the learned senior counsel for the
appellants that the learned courts below were not right in deciding issues
No.1 and 2 in favour of the plaintiff/respondent. It is also the contention of
the learned senior counsel for the appellants that the evidence with regard
to the death of Ram Devi the daughter of Tulla could not be looked into as
it was beyond the pleadings as no such plea was raised either in the plaint or
in the replication. The contention of the learned counsel for the appellants,
RSA No.1502 of 1989 11therefore, was that the learned courts below have recorded a finding by
placing reliance on inadmissible evidence.
Learned senior counsel for the appellant placed reliance on the
judgment of Hon’ble Supreme Court in the case of Yadarao Dajiba
Shrawane (Dead) by Lrs. Vs. Nanilal Harakchand Shah (Dead) and
others (2002) 6 Supreme Court Cases, 404 to contend that the substantial
questions of law framed deserve to be answered in favour of the
defendant/appellants as the findings on issues No.1 and 2 by the learned
courts below are the outcome of taking into consideration the inadmissible
evidence ignoring all the material particulars on record.
Hon’ble Supreme Court in the case of Yadarao Dajiba
Shrawane (Dead) by Lrs. Vs. Nanilal Harakchand Shah (Dead) and
others (supra) has been pleased to lay down as under:-
“31 From the discussions in the judgment it is clear that the
High Court has based its findings on the documentary evidence
placed on record and statements made by some witnesses
which can be construed as admissions of conclusions. The
position is well settled that when the judgment of the final
court of fact is based on misinterpretation of documentary
evidence or on consideration of inadmissible evidence or
ignoring material evidence the High Court in second appeal is
entitled to interfere with the judgment. The position is also well
settled that admission of parties or their witnesses are relevant
pieces of evidence and should be given due weighage by
RSA No.1502 of 1989 12courts. A finding of fact ignoring such admissions or
concessions is vitiated in law and can be interfered with by the
High Court in second appeal. Since the parties have been in
litigating terms for several decades, the records are
voluminous. The High Court as it appears from the judgment,
has discussed the documentary evidence, threadbare in the light
of law relating to their admissibility and relevance.
32. On perusal of the judgment of the High Court and on
consideration of the matter, we do not find that the judgment
suffers from any serious illegality or infirmity which call for
interference in this appeal filed by special leave. Accordingly,
the appeal fails and is dismissed with costs.”
Reliance was also placed on the judgment of Hon’ble Supreme
Court in the case of Bondar Singh and others Vs. Nihal Singh and others
(2003) 4 Supreme Court Cases 161, where again Hon’ble Supreme Court
Court was pleased to lay down that in the absence of pleadings, no evidence
can be looked into in relation thereto. Hon’ble Supreme Court in the case
of Bondar Singh and others Vs. Nihal Singh and others (supra) has
been pleased to lay down as under:-
“7. As regards the plea of sub-tenancy (shikmi) argued on
behalf of defendants by their learned counsel, first we may note
that this plea was never taken int he written statement the way
it has been put forth now. The written statement is totally vague
and lacking in materiel particulars on this aspect. There is
RSA No.1502 of 1989 13nothing to support this plea except some alleged revenue
entries. It is settled law that in the absence of a plea no amount
of evidence led in relation thereto can be looked into.
Therefore, in the absence of a clear plea regarding sub-tenancy
(shikmi), the defendants cannot be allowed to build up a case of
sub-tenancy (shikmi). Had the defendants taken such a plea it
would have found place as an issue in the suit. We have
perused the issues framed in the suit. There is no issue on the
point.”
Mr.Arun Jain, learned senior counsel appearing on behalf of the
respondent contended that the findings of facts recorded by the learned
courts below on appreciation of evidence can not be challenged in the
regular second appeal. The contention of the learned senior counsel for the
respondents was that the learned courts below have recorded a concurrent
finding of fact regarding the relationship of plaintiff/respondent with
Lacchhman. The said finding is not open to challenge in regular second
appeal.
In support of this contention reliance was placed on the
judgment of this court in the case of Smt. Sardul Kaur Vs. Parsin Kaur
@ Sukhchain Kaur 1997 (3) RCR (Civil) 488, wherein this Court has
been pleased to lay down as under:-
“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
RSA No.1502 of 1989 14Singh 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 daughter of Karam Kaur or of Kabir Singh.
The 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
Karan Kaur was his daughter and Kabir Singh was his son-in-
law Kishan Kaur was second wife of Kabir Singh and Parsin
RSA No.1502 of 1989 15Kaur is the daughter of Kishan Kaur from the lions of Kabir
Singh. Evidence of Avtar Singh (PW 2) not being in
conformity with the provisions of section 50 of the Indian
Evidence Act is not of any help to the plaintiff. PW 4 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 Joiginder 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
RSA No.1502 of 1989 16father 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 Ferozeopur, 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
RSA No.1502 of 1989 17contention 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
can not claim to be 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 be thirty years old,
is produced from any custody which the Court in the
RSA No.1502 of 1989 18particular 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 above said 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 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
RSA No.1502 of 1989 19appellants. 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.”
However, on consideration of the matter, I find force in the
contentions raised by the learned counsel for the appellants.
In the present case, it may be noticed that the learned courts
below have failed to note of the evidence produced on record. The plaintiff
had not taken any plea about the death of daughter born to Tula and
therefore, the evidence que the death of Ram Devi in the absence of any
other documentary evidence was certainly beyond pleadings.
Other evidence was also brought on record showing that
plaintiff/respondent did not come to know about the death of Lachhman
and there was discrepancy in the statements of witnesses with regard to her
participation in Kirya ceremony.
This evidence coupled with evidence that Bhat in her marriage
was given by others showed that the Krishini respondent was, in fact,
daughter of Tula. The statement of Hem Raj PW 2 could not be relied
upon because of his relationship with the husband of Krishni. The
evidence led to prove relationship did not meet the requirement of section
50 of the Evidence Act. The learned lower appellate court wrongly ignored
RSA No.1502 of 1989 20
the documentary evidence by way of birth certificates of all the children
born out of wed-lock.
For the reasons recorded above, the substantial questions of law
as claimed are answered in favour of the appellant/defendants and against
the plaintiff/respondent.
Resultantly, this appeal is allowed and the judgments and
decree of the learned courts below are set aside and the the suit of the
plaintiff/respondent is ordered to be dismissed but with no order as to costs.
24.02.2009 (Vinod K.Sharma) rp Judge