{"id":110847,"date":"2008-11-03T00:00:00","date_gmt":"2008-11-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pawan-kumar-and-others-vs-krishan-chand-and-others-on-3-november-2008"},"modified":"2015-01-25T17:31:06","modified_gmt":"2015-01-25T12:01:06","slug":"pawan-kumar-and-others-vs-krishan-chand-and-others-on-3-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pawan-kumar-and-others-vs-krishan-chand-and-others-on-3-november-2008","title":{"rendered":"Pawan Kumar And Others vs Krishan Chand And Others on 3 November, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Pawan Kumar And Others vs Krishan Chand And Others on 3 November, 2008<\/div>\n
RSA No.3630 of 2007(O&M)                           1\n\nIN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH\n\n                                       RSA No.3630 of 2007(O&M)\n                                       Date of decision:    .2008\n\n\nPawan Kumar and others                       ......Appellants\n\n\n                                 Versus\n\n\nKrishan Chand and others                     ......Respondents<\/pre>\n
CORAM:-        HON'BLE MR. JUSTICE RAKESH KUMAR GARG\n\n                           * * *\n\nPresent:       Mr. P.S. Chauhan, Advocate for the appellants.\n\n\nRakesh Kumar Garg, J .\n\n\n<\/pre>\n
               This is plaintiffs’ second appeal against the judgment and<\/p>\n
decrees of the Courts below whereby their suit for possession of the land in<\/p>\n
dispute and declaration that judgment and decree dated 20.1.1989 passed<\/p>\n
in Civil Suit No.20\/89 titled as Krishan Chand etc. v. Babu Ram and the<\/p>\n
judgment and decree dated 10.9.1990 passed in Civil Suit No.1658 of 1990<\/p>\n
titled as Krishan Chand etc. v. Babu Ram regarding the aforesaid land are<\/p>\n
illegal and void, has been dismissed under Order 17 Rule 3 CPC for want<\/p>\n
of evidence.\n<\/p>\n
               Briefly stated, one Rulia Ram son of Shanker was owner in<\/p>\n
possession of the land in dispute and after his death, his three sons,<\/p>\n
namely, Dhan Raj, Babu Ram and Ranjit           inherited his    estate.   The<\/p>\n
plaintiffs and defendant No.3 are the daughters of Dhan Raj whereas Babu<\/p>\n
Ram and Ranjit were unmarried and issueless.             Dhan Raj died on<\/p>\n
21.10.1983 leaving behind the plaintiffs and defendant No.3 as his legal<\/p>\n
heirs. Babu Ram uncle of the plaintiffs had got entered and sanctioned
\n RSA No.3630 of 2007(O&M)                               2<\/span><\/p>\n
mutation No.1312 dated 28.3.1990 regarding the share of Ranjit in the<\/p>\n
revenue record alleging that Ranjit was not heard for the last more than 53<\/p>\n
years and he was the only legal heir whereas Dhan Raj brother of Ranjit<\/p>\n
was alive at that time and the property of Ranjit would have devolved upon<\/p>\n
Dhan Raj and Babu Ram in equal shares and, therefore, mutation No.1312<\/p>\n
is illegal.\n<\/p>\n
              It is the further case of the plaintiffs that the suit for declaration<\/p>\n
was filed by defendants No.1 and 2 against Babu Ram regarding the share<\/p>\n
of Ranjit and collusive decree was passed on 10.9.1990 by the then Sub<\/p>\n
Judge, Ambala. No family partition had taken place between defendants<\/p>\n
No.1 and 2 and Babu Ram. Babu Ram was not competent to give whole<\/p>\n
of the land owned by Ranjit Singh to defendants No.1 and 2, in the<\/p>\n
presence of Dhan Raj, father of the plaintiffs. The aforesaid judgment and<\/p>\n
decree dated 10.9.1990 passed in Civil Suit No.1658\/90 was illegal and not<\/p>\n
binding upon the rights of the plaintiff. Babu Ram had also suffered a<\/p>\n
collusive decree regarding his share of his land in dispute in favour of<\/p>\n
defendants No.1 and 2 on 20.1.1989 in the Court of Sh. A.K. Jain, Sub<\/p>\n
Judge, Ambala in civil suit titled as Krishan Chander v. Babu Ram<\/a> on the<\/p>\n
basis of oral family settlement. In fact, no such family settlement had taken<\/p>\n
place. The plaintiffs who are the daughters of Dhan Raj and being the<\/p>\n
LRs of Babu Ram were also entitled to get share in the land of Babu Ram.<\/p>\n
Thus, judgment and decree dated 20.1.1989 passed in Civil Suit No.20\/89<\/p>\n
titled as Krishan Chander v. Babu Ram<\/a> was also illegal, null and void. The<\/p>\n
land which was the subject matter of the aforesaid two decrees could not<\/p>\n
be transferred by way of collusive decree as value of the land was more<\/p>\n
than Rs.100 and the above said decrees were not got registered. Babu<\/p>\n
Ram was not competent to transfer his share and the share of Ranjit Singh<\/p>\n
to defendants No.1 and 2 by way of Civil Court decree ignoring the rights
\n RSA No.3630 of 2007(O&M)                           3<\/span><\/p>\n
of the plaintiffs and defendant No.3. Hence, this suit.<\/p>\n
             The suit was        contested by the defendants and written<\/p>\n
statement dated 8.12.1999 was filed by them admitting that Rulia Ram was<\/p>\n
the owner of the property. It was pleaded that the plaintiffs have no right to<\/p>\n
claim inheritance of Dhan Raj. It was also admitted that Ranjit Singh was<\/p>\n
not heard for the last many years before the death of Rulia Ram. It was<\/p>\n
also admitted that Babu Ram was unmarried and issueless. It was denied<\/p>\n
that   there was any illegality regarding the sanction of mutation No.1312<\/p>\n
and passing of decrees dated 20.1.1989 and 10.9.1990. On the pleadings<\/p>\n
of the parties, issues were framed by the trial Court vide order dated<\/p>\n
3.2.2000. The evidence of the plaintiffs was closed by the trial Court vide<\/p>\n
order dated 4.12.2006 under Order 17 Rule 3 CPC, which is reproduced<\/p>\n
hereunder:\n<\/p>\n
                    “No evidence of the plaintiff is present. Adjournment<\/p>\n
                   sought by the plaintiffs without showing any plausible<\/p>\n
                   cause. Today is the last opportunity for evidence of the<\/p>\n
                   plaintiffs.   Civil Procedure Code does not provide for<\/p>\n
                   granting of opportunity merely on asking. It is required<\/p>\n
                   to be given whenever it is beyond the control of the<\/p>\n
                   party.    Today’s adjournment has not been justified.<\/p>\n
                   Request of ld. Counsel for the plaintiffs for adjourning<\/p>\n
                   the case is declined.      Evidence of the plaintiffs is<\/p>\n
                   ordered to be closed under Section 17 Rule 3 CPC.<\/p>\n
                   Closing of evidence of the plaintiffs means failure on<\/p>\n
                   their part to prove their case in affirmative. No purpose<\/p>\n
                   will be served to proceed ahead with the trial of the<\/p>\n
                   case to record the evidence of the defendants because if<\/p>\n
                   the evidence of the defendant is recorded it will not bring
\n RSA No.3630 of 2007(O&M)                           4<\/span><\/p>\n
                   any improvement in the case of the defendants, rather it<\/p>\n
                   will be futile exercise and wastage of the court time.<\/p>\n
                   Hence, the evidence of the defendants is also closed.<\/p>\n
                   Vide even date judgment, the suit of the plaintiffs has<\/p>\n
                   been dismissed.     Parties shall bear their own costs.<\/p>\n
                   Decree sheet be prepared accordingly and file be<\/p>\n
                   consigned to record room after due compliance.”<\/p><\/blockquote>\n
             The suit of the plaintiffs was dismissed for lack of evidence<\/p>\n
vide judgment and decree of the trial Court dated 4.12.2006.<\/p>\n
             Aggrieved against the aforesaid judgment and decree of the<\/p>\n
trial Court, the plaintiff filed an appeal which was also dismissed      vide<\/p>\n
judgment and decree dated 12.2.2007 passed             by the District Judge,<\/p>\n
Panchkula.\n<\/p>\n
             Still not satisfied, the plaintiffs have filed the present appeal<\/p>\n
against the impugned judgment and decrees of the Courts below.<\/p>\n
             Learned counsel for the appellants has vehemently argued<\/p>\n
that the Courts below have erred while non-suiting the appellants on the<\/p>\n
basis of order dated 4.12.2006 whereby evidence of the plaintiffs was<\/p>\n
closed by order, as the said order has been passed by the trial Court<\/p>\n
without affording full opportunity to produce the entire evidence in the case<\/p>\n
of the appellants and the evidence of the plaintiffs was closed by order of<\/p>\n
the Court hurriedly as even no last date was given to the plaintiffs.<\/p>\n
Learned counsel has further argued that one PW who was present on<\/p>\n
23.5.2003 tendered his affidavit in evidence but on request of the<\/p>\n
defendants the cross-examination was deferred and the case was<\/p>\n
adjourned to 16.1.2004. On that date or at a later date fixed,            the<\/p>\n
defendants never tried or requested for the cross-examination of the said<\/p>\n
witness. Thus, no fault can be found with the plaintiff-appellants and it
\n RSA No.3630 of 2007(O&M)                            5<\/span><\/p>\n
was the duty of the defendants to cross-examine the said witness.<\/p>\n
Learned counsel for the appellant has prayed that since the provisions of<\/p>\n
the Civil Procedure Code are handmade for the administration of justice<\/p>\n
therefore, the appeal be allowed and judgment and decrees of the Courts<\/p>\n
below be set aside and the appellants be given one more effective<\/p>\n
opportunity to adduce evidence to prove their case.<\/p>\n
              I have heard learned counsel for the appellants and perused<\/p>\n
the record.\n<\/p>\n
              A perusal of the record shows that issues were framed in this<\/p>\n
case on 3.2.2000 and the evidence was closed vide order dated 4.12.2006.<\/p>\n
Thus, the case remained pending for evidence of the appellants for more<\/p>\n
than six years and during this period many opportunities were granted to<\/p>\n
the plaintiff-appellants for adducing evidence out of which at least five<\/p>\n
opportunities were effective yet the plaintiffs    failed to adduce evidence.<\/p>\n
The argument of the learned counsel for the appellants that the plaintiffs<\/p>\n
were given effective opportunities to produce their entire evidence is not<\/p>\n
tenable. From the zimni orders, it is also clear that PW-1 was not present<\/p>\n
in Court on 16.1.2004 for his cross-examination. In fact, from the perusal of<\/p>\n
all the zimni orders, it is crystal clear that PW-1 never came present in<\/p>\n
Court for his cross-examination. The evidence was to be adduced by the<\/p>\n
plaintiffs at their own risk and responsibility.    It is not the case of the<\/p>\n
appellants that for enforcing the presence         of the witnesses they had<\/p>\n
sought assistance of the Court and in spite of that the witnesses were not<\/p>\n
present and therefore, they were not at fault.\n<\/p>\n
              Faced with this situation, the learned counsel has tried to<\/p>\n
justify the case of the appellants by stating that Sh. Jagir Singh, learned<\/p>\n
counsel appearing on behalf of the appellants had noted down a wrong<\/p>\n
date for recording of the evidence of the plaintiffs and the said wrong date
\n RSA No.3630 of 2007(O&M)                            6<\/span><\/p>\n
was informed by him to the plaintiffs and because of this reason the<\/p>\n
plaintiffs were not able to produce their evidence on 4.12.2006 as they had<\/p>\n
wrongly noted down the date as 20.12.2006 as was told to them by their<\/p>\n
counsel. Thus, it was prayed that in the interest of justice, the order dated<\/p>\n
4.12.2006 passed by the trial Court vide which evidence of the plaintiffs<\/p>\n
was ordered to be closed under Order 17 Rule 3 CPC and the judgment<\/p>\n
and decree passed by the trial Court dismissing the suit be set aside and<\/p>\n
the case be remanded to the trial Court with a direction to afford at least<\/p>\n
one opportunity to the plaintiffs to lead their evidence. In support of this<\/p>\n
argument, the appellants have placed on record Annexure A-1 along with<\/p>\n
C.M. No.10142-C of 2007 i.e. copy of brief envelop of counsel for the<\/p>\n
plaintiffs before the trial Court to show that a wrong date was noted i.e.<\/p>\n
20.12.2006 instead of 4.12.2006. (The contention of the counsel for the<\/p>\n
appellants is not supported from the zimni orders passed by the trial Court<\/p>\n
in the case). As per this brief, on 22.10.2006, the case was adjourned to<\/p>\n
20.12.2006. However, this is not the case as per the zimni orders recorded<\/p>\n
in the case by the trial Court. The case was never fixed for 22.10.2006 and<\/p>\n
therefore, there was no occasion for the counsel for the plaintiffs to note<\/p>\n
down a wrong date in the case as 20.12.2006. The zimni orders show that<\/p>\n
the case was fixed on 12.10.2006 and 4.12.2006. Thus, the stand of the<\/p>\n
appellants is falsified from the record. No doubt, the provisions of Civil<\/p>\n
Procedure Code are hand made for the administration of justice. However,<\/p>\n
no relief can be granted to the appellants as equity is not in their favour.<\/p>\n
The plaintiffs cannot be allowed to take advantage of their own fault. The<\/p>\n
plaintiff-appellants have failed to prove their case, in spite of the fact, that<\/p>\n
case was adjourned from time to time to enable the appellants to adduce<\/p>\n
evidence and in spite of that the plaintiff-appellants failed. Moreover, the<\/p>\n
Lower Appellate Court has passed the impugned judgment and decree
\n RSA No.3630 of 2007(O&M)                            7<\/span><\/p>\n
after perusing     the record. While dismissing the appeal, the Lower<\/p>\n
Appellate Court observed as under:\n<\/p>\n
                   “In this case in all five effective opportunities were<\/p>\n
                   granted for the evidence of the plaintiffs and on<\/p>\n
                   12.10.2006 last opportunity was granted to the plaintiffs<\/p>\n
                   for their evidence for 4.12.2006.       On 4.12.2006, Shri<\/p>\n
                   D.P. Saini, learned    counsel       for the   plaintiffs had<\/p>\n
                   appeared before the trial Court. If, on 12.10.2006, he<\/p>\n
                   had noted down the next date as 20.12.2006, he could<\/p>\n
                   not have appeared in the trial        Court on 4.12.2006.<\/p>\n
                   Besides, there was nothing in the zimni order dated<\/p>\n
                   4.12.2006 to show that on that date, it was submitted by<\/p>\n
                   the learned counsel for the plaintiffs before the trial<\/p>\n
                   Court that on the previous date i.e. 12.10.2006, he had<\/p>\n
                   noted down the next date of hearing as 20.12.2006 and<\/p>\n
                   because of this reason, the evidence of the plaintiffs<\/p>\n
                   could not be produced on that date.”<\/p><\/blockquote>\n
            Even the learned counsel for the appellants was unable to<\/p>\n
point out any illegality or infirmity in the judgment and decree of the Lower<\/p>\n
Appellate Court.\n<\/p>\n
            Thus, for the reasons recorded above, I find no merit in this<\/p>\n
appeal. No substantial question of law arises.\n<\/p>\n
            Dismissed.\n<\/p>\n<\/p>\n
            , 2008                        (RAKESH KUMAR GARG)\nps                                               JUDGE\n RSA No.3630 of 2007(O&M)   8<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Pawan Kumar And Others vs Krishan Chand And Others on 3 November, 2008 RSA No.3630 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3630 of 2007(O&M) Date of decision: .2008 Pawan Kumar and others ……Appellants Versus Krishan Chand and others ……Respondents CORAM:- HON’BLE MR. JUSTICE RAKESH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-110847","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nPawan Kumar And Others vs Krishan Chand And Others on 3 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pawan-kumar-and-others-vs-krishan-chand-and-others-on-3-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pawan Kumar And Others vs Krishan Chand And Others on 3 November, 2008 - 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