R.S.A.No. 3086 of 1997 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 3086 of 1997
Date of decision: 12.8.2009
Sunhera and others
......Appellants
Versus
Kasumi
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. R.S.Sihota, Sr. Advocate with
Mr.B.R.Rana, Advocate,
for the appellants.
Mr.Arun Jain, Sr.Advocate with
Mr.Amit Jain, Advocate,
for the respondent.
****
SABINA, J.
Plaintiff Kasumi filed a suit for declaration and joint
possession, which was dismissed by the Sub Judge, Ist Class,
Palwal vide judgment and decree dated 23.1.1993. In appeal, the
said judgment and decree were set aside by the Additional District
Judge (I), Faridabad vide judgment and decree dated 1.9.1997.
Hence, the present appeal by the defendants.
Brief facts of the case, as noticed by the trial Court in
para Nos.1 to 7 of its judgment, are as under:-
R.S.A.No. 3086 of 1997 2
” The facts of the plaintiff’s case as disclosed in
the amended plaint dated 12.5.1988 were that the plaintiff
had filed this suit claiming herself as daughter of Gulzari
@ Bhassu, who was the owner in possession of the suit
land detailed and described in para 2- A and 2-B of the
plaint. For better appreciation of the facts of the plaintiff’s
case, the pedigree table showing the relationship inter se
between the parties is given as under:-
Prema
| |
Inder Dhale
| |
Rajpal Gulzari @ Bhassu
|
___________________________ _____________________|_______________________
Smt.Sukhia Jeet Ram Smt.Sukhia Smt.Ram Sarfi Kasumi Smt.
Widow entered son (widow) – kali daughter daughter Suna-
Karewa Karewa (widow) from from -hra
marriage with marriage deft.No.1 Smt. Smt. daughter
Gulzari @ Bhassu after the Sukhia Sukhia from
after the death death (died in (plff.) Ram-
of Rajpal of Rajpal infancy) Kali
(Deft.
No.2)
2. It is stated that Sukhia the mother of the plaintiff was
married to Rajpal son of Inder, after the death of
Rajpal, Sukhia performed Karewa marriage with Gulzari
son of Bhassu and out of the wedlock two daughters
namely Surfi and plaintiff had been born. Surfi had
died during her infancy, whereas, defendant No.2 was
another daughter of Gulzari from his first wife Ramkali
defendant No.1, since deceased. It is stated that
Gulzari had left the village Dighot in the year 1938 in
the month of Bahandio and he never came back to the
R.S.A.No. 3086 of 1997 3
village and had also not been heard by anyone since
then. Defendant No.2 was married to Bhajan Lal of
village Paigaon, whereas, the plaintiff was married to
Girraj of village Kanwar, Tehsil Chata, District. Mathura.
It is further stated that as the financial position of
defendant No.2 was not sound and in her-in-laws.
Therefore, she along with her family shifted to village
Dighot and started living with her mother Ramkali in the
year 1960. The mutation of inheritance no.2861
regarding the suit land mentioned in para No.2-A was
initially entered in the name of the plaintiff and
defendant Nos. 1 and 2 and Smt.Sukhia the mother of
the plaintiff who had expired on 18.5.1974 but with the
connivance of revenue officials and Lumberdar, the
defendant No.1 was able to get the said mutation
sanctioned in her favour without the knowledge and
notice of plaintiff. It is further stated that no notice of
the aforesaid mutation proceedings was given to the
plaintiff and the same was sanctioned in her absence.
As such, the plaintiff was not bound by the aforesaid
mutation. Similarly, the mutation of inheritance
No.2314 regarding the suit land detailed and described
in para no. 2-B was got sanctioned on 31.5.1983 by the
defendants No.1 and 2 in their favour in connivance
R.S.A.No. 3086 of 1997 4
with the revenue officials and Lumberdar. It is thus
stated that the aforesaid mutation No.2861 and 2314
were illegal, null and void and nonest and not binding
on the lawful rights of the plaintiff, as the same were
sanctioned without notice and at the back of the
plaintiff.
3. It is further stated that defendant No.1 in order
to create further complications had transferred the suit
land in favour of defendants No.3 to 5 vide collusive
decree dated 23.5.1975 in civil suit titled Birjpal and
others vs. Smt.Ramkali and consequently, the suit land
had been mutated in the name of defendants No.3 to 5
in the revenue record.
4. The plaintiff was co-sharer and in joint
possession to the extent of ½ share in the suit land.
The defendants No.1 and 2 to the extent of ½ share in
the suit land. It is thus stated that the plaintiff through
this suit seeks a decree for declaration to the effect that
she was a co-sharer and in joint possession to the
extent of ½ share in the suit land. It is also stated that
the parties to the suit belongs to Jat community and
they depend upon agriculture and were govered by
agricultural customs of Erstwhile Gurgaon District now
Faridabad District in the matters of alienation and
R.S.A.No. 3086 of 1997 5
succession under the said custom prior to the
commencement of Hindu Succession Act, the widow
was entitled to succeed to the property of her husband
as a life estate. The plaintiff asked the defendants
several times to admit her claim and get the entries in
the revenue record correct but of no avail, hence this
suit.
5. Notice of the suit was issued to the
defendants. The defendants filed joint written
statement to the amended plaint taking preliminary
objections of locus standi, maintainability, limitation,
estopple and they were entitled to special costs under
Section 35 A CPC. Apart from these preliminary
objections it was averred on behalf of the answering
defendants that Gulzari @ Bhassu , who was the
husband of defendant No.1 and father of defendant
No.2 had expired about 50 years ago, since then the
defendant No.2 continued to be owner in possession of
the suit land and her possession over the suit land as
owner had been open, and hostile to all including the
plaintiff.
6. On merits, the answering defendants did not
admit the plaintiff to be the daughter of Gulzari @
Bhassu. The answering defendants also denied the
R.S.A.No. 3086 of 1997 6
factum of Kareva marriage of Sukhia with Gulzari. It
was stated that the Sukhia was not the widow of
Gulzari and the plaintiff and Barfi were not daughters,
of Sukhia from the lion of Gulzari. The answering
defendants admitted the defendant No.1 to be the wife
of Gulzari and defendant No.2 was the daughter of
Gulzari. The answering defendant admitted the
marriage of Sukhia with Rajpal son of Inder but they
denied the entering of Kareva marriage by Sukhia with
Gulzari son of Bhassu after the death of Rajpal.
7. On the other hand, it was stated that Ramkali
was the only wife of Gulzari @ Bhassu. It was
submitted by the answering defendants that Gulzari @
Bhassu had left the village and had expired about 50
years ago. The answering defendant also admitted the
factum of marriage of defendant No.2 with Bhajan Lal
of village Pagaon. It was further stated that the plaintiff
was the daughter of Rajpal son of Inder and she was
married to Girraj of village Kanwar. It was further
stated that the mutation of inheritance of the late
Gulzari @ Bhassu was correctly sanctioned in the
name of defendants No.1 and 2 and there was no need
to issue any notice to the plaintiff as she had got no
connection with the inheritance of deceased Gulzari @
R.S.A.No. 3086 of 1997 7
Bhassu. It was further stated that the suit land was
rightly and legally transferred in favour of defendants
No.3 to 5 on the basis of decree in civil suit. The
answering defendants denied the plaintiff to be the co-
sharer and in joint possession to the extent of ½ share
in the suit land. The answering defendants also denied
of being governed by agriculture custom in the matter
of alienation and succession. At last, it was stated that
the suit of the plaintiff was liable to be dismissed with
costs.”
lOn the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff is a co-sharer in the suit
land as alleged? OPP
2. Whether the plaintiff has no locus standi to
file the present suit? OPD
3. Whether the suit is not maintainable in the
present form? OPD
4. Whether the suit is not within time? OPD
5. Whether the plaintiff is estopped by her own
act, conduct and acquisence ? OPD
6. Whether the defendants are entitled to special
costs as alleged? OPD
7. Relief. “
R.S.A.No. 3086 of 1997 8
Learned senior counsel for the appellant has argued that
the lower appellate Court had erred in decreeing the suit of the
plaintiff. In fact, the suit of the plaintiff was liable to be dismissed as
the plaintiff had failed to establish that she was daughter of Gulzari
and Sukhia
Learned senior counsel for the respondents, on the other
hand, has submitted that the plaintiff had been successful in
establishing that she was daughter of Gulzari and Sukhia and hence,
she was entitled to inherit the property of Gulzari along with his
daughter Sunehra.
After hearing learned senior counsel for the parties, I am
of the opinion that the present appeal is devoid of any merit.
As per Ex.P-2, death certificate of Rajpal, it is evident that
Rajpal had died on 20.3.1914. Ex.P-3/Ex.DW 5-A are the birth
certificates relating to Kashmiri, daughter of Gulzari born on
19.12.1924. The controversy involved in this case is as to whether
the said certificates relate to the plaintiff or not. The plaintiff, while
appearing in the witness box on 5.8.1989 has disclosed her age as
64 years. From this it can be inferred that the plaintiff was born
somewhere around the year 1924.
Whether the name of the daughter of Gulzari was
Kashmiri or Kasumi but the fact remains that a daughter was born to
Gulzari in the year 1924. In order to prove her case that the plaintiff
was daughter of Gulzari and Sukhia, plaintiff herself appeared in the
R.S.A.No. 3086 of 1997 9
witness box as PW-1 and also examined Toti PW-2, Kanehya PW-3,
Jeet Ram PW-4 and Popa PW-5. All the said witnesses have
deposed with regard to the fact that after the death of Rajpal, Sukhia
had performed kareva marriage with Gulzari and out of the said
wedlock, plaintiff was born. Rajpal and Sukhia had a son namely
Jeet Ram. Learned Additional District Judge has rightly held that the
oral evidence led by the defendants fails to rebut the cogent and
convincing evidence led by the plaintiff as Arjun DW-1 is real brother
of Ramkali. DW-6 Sunehra and DW-7 Ram Gopal are the
respondents in the case. So far as DW-3 Daulat Ram is concerned,
he has deposed that Rajpal had died about 15-20 years ago,
whereas, as per Ex.P-2, Rajpal had died in the year 1914. DW-2
Nathi has deposed that Kasumi was daughter of Rajpal but no
reliance can be placed on his testimony as Rajpal had died in the
year 1914, whereas, Kasumi was born in the year 1924. The oral evidence
led by the plaintiff also finds support from the documentary evidence.
In these circumstances, learned Additional District Judge
rightly held that there was a close similarity between Kasumi and
Kashmiri and the possibility that instead of Kasumi it might have
been written as Kashmiri in Urdu in Ex.P-3 can not be ruled out.
Apparently, the mistake was committed by the official, who prepared
the certificate Ex.P-3 and the official wrote Kashmiri instead of
Kasumi in the birth certificate. Moreover, as per the death certificate
of Sukhia Ex.P-4, she is described as wife of Gulzari. Sukhia died on
R.S.A.No. 3086 of 1997 10
8.5.1974 in village Dighot. Since the husband of Sukhia died in the
year 1914, there is possibility that she performed a kareva marriage
with Gulzari and out of the said wedlock, plaintiff was born.
Moreover, there is no plea by the defendants in the written statement
to the effect that any other daughter namely Kashmiri was born to
Gulzari and his wife Ram Kali. It is only in cross-examination,
defendant Sunehra, while appearing in the witness box as DW-6, has
deposed that her sister Kashmiri was born in the year 1924 and had
died at the age of 5-7 years. However, no such plea was taken in the
written statement and it appears that the said plea taken by DW-6 in
her cross-examination is an afterthought and with a desperate
attempt to counter Ex. P-3, birth certificate of the plaintiff. Hence, no
reliance can be placed on the said part of the testimony of DW-6.
Another document, which is relevant is Ex.P-7. A
perusal of the same reveals that initially Gulzari was stated to be
survived by two widows i.e. Sukhia and Ram Kali and two daughters
Kasumi and Sunehra. However, the said mutation No.2861 was not
sanctioned and the name of Sukhia was deleted from there on
15.5.1967 by Assistant Collector First Grade on the basis of
statement of Jeet Ram son of Sukhia. However, Sukhia herself did
not appear in the said proceedings nor any notice with regard to the
said proceedings was issued to the plaintiff. On the basis of the
statement of Jeet Ram, who is son of Sukhia and Rajpal, the fate of
plaintiff could not be decided. The plaintiff was necessary to be
R.S.A.No. 3086 of 1997 11
heard at the time of sanction of mutation on 15.5.1967. However, the
said order was passed at the back of the plaintiff. Since the mutation
qua the suit property had been entered without any notice to the
plaintiff, the same has no bearing on the right of the plaintiff.
The entries in the voter list, showed Sukhia as widow of
Rajpal, have been rightly discarded by the learned Additional District
Judge as the same related to the year 1970. Moreover, Some times
no effort is made to get the entries in voter list corrected. However,
the said entries are duly rebutted by the death certificate of Sukhia
Ex.P-4 wherein she is described to be widow of Gulzari.
In these circumstances, learned Additional District Judge
had rightly decreed the suit of the plaintiff.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
August 12, 2009
anita