{"id":153767,"date":"2009-08-12T00:00:00","date_gmt":"2009-08-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sunhera-and-others-vs-kasumi-on-12-august-2009"},"modified":"2018-12-19T13:17:01","modified_gmt":"2018-12-19T07:47:01","slug":"sunhera-and-others-vs-kasumi-on-12-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sunhera-and-others-vs-kasumi-on-12-august-2009","title":{"rendered":"Sunhera And Others vs Kasumi on 12 August, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Sunhera And Others vs Kasumi on 12 August, 2009<\/div>\n
R.S.A.No. 3086 of 1997                                   1\n\n\n\n      In the High Court of Punjab and Haryana at Chandigarh\n\n\n                       R.S.A.No. 3086 of 1997\n                       Date of decision: 12.8.2009\n\n\nSunhera and others\n                                                     ......Appellants\n\n                       Versus\n\n\nKasumi\n                                                  .......Respondent\n\n\nCORAM: HON'BLE MRS. JUSTICE SABINA\n\n\nPresent:   Mr. R.S.Sihota, Sr. Advocate with\n           Mr.B.R.Rana, Advocate,\n           for the appellants.\n\n           Mr.Arun Jain, Sr.Advocate with\n           Mr.Amit Jain, Advocate,\n           for the respondent.\n                 ****\n\nSABINA, J.\n<\/pre>\n
           Plaintiff Kasumi filed a suit for declaration and joint<\/p>\n
possession, which was dismissed by the Sub Judge, Ist Class,<\/p>\n
Palwal vide judgment and decree dated 23.1.1993. In appeal, the<\/p>\n
said judgment and decree were set aside by the Additional District<\/p>\n
Judge (I), Faridabad vide judgment and decree dated 1.9.1997.<\/p>\n
Hence, the present appeal by the defendants.<\/p>\n
           Brief facts of the case, as noticed by the trial Court in<\/p>\n
para Nos.1 to 7 of its judgment, are as under:-
\n R.S.A.No. 3086 of 1997                                                 2<\/span><\/p>\n
              ”              The facts of the plaintiff’s case as disclosed in<\/p>\n
              the amended plaint dated 12.5.1988 were that the plaintiff<\/p>\n
              had filed this suit claiming herself as daughter of Gulzari<\/p>\n
              @ Bhassu, who was the owner in possession of the suit<\/p>\n
              land detailed and described in para 2- A and 2-B of the<\/p>\n
              plaint. For better appreciation of the facts of the plaintiff’s<\/p>\n
              case, the pedigree table showing the relationship inter se<\/p>\n
              between the parties is given as under:-<\/p>\n<\/blockquote>\n
                                   Prema
\n                |                                         |
\n                Inder                                    Dhale
\n                |                                         |
\n                Rajpal                            Gulzari @ Bhassu
\n                |
\n___________________________         _____________________|_______________________
\nSmt.Sukhia             Jeet Ram     Smt.Sukhia    Smt.Ram       Sarfi Kasumi       Smt.\n<\/p><\/blockquote>\n
Widow entered           son         (widow)    – kali     daughter      daughter Suna-\n<\/p>\n
Karewa                             Karewa       (widow)       from     from       -hra\nmarriage with                      marriage     deft.No.1     Smt.     Smt. daughter\nGulzari @ Bhassu                   after the                 Sukhia    Sukhia from\nafter the death                    death                  (died in     (plff.)  Ram-\nof Rajpal                          of Rajpal               infancy)              Kali\n                                                                                (Deft.\n                                                                               No.2)\n\n\n\n<\/pre>\n
              2. It is stated that Sukhia the mother of the plaintiff was<\/p>\n
                  married to Rajpal son of Inder, after the death of<\/p>\n
                  Rajpal, Sukhia performed Karewa marriage with Gulzari<\/p>\n
                  son of Bhassu and out of the wedlock two daughters<\/p>\n
                  namely Surfi and plaintiff had been born.                Surfi had<\/p>\n
                  died during her infancy, whereas, defendant No.2 was<\/p>\n
                  another daughter of Gulzari from his first wife Ramkali<\/p>\n
                  defendant No.1, since deceased.                It is stated that<\/p>\n
                  Gulzari had left the village Dighot in the year 1938 in<\/p>\n
                  the month of Bahandio and he never came back to the
\n R.S.A.No. 3086 of 1997                                  3<\/span><\/p>\n
           village and had also not been heard by anyone since<\/p>\n
           then.   Defendant No.2 was married to Bhajan Lal of<\/p>\n
           village Paigaon, whereas, the plaintiff was married to<\/p>\n
           Girraj of village Kanwar, Tehsil Chata, District. Mathura.<\/p>\n
           It is further stated that as the financial position of<\/p>\n
           defendant No.2 was not sound and in her-in-laws.<\/p>\n
           Therefore, she along with her family shifted to village<\/p>\n
           Dighot and started living with her mother Ramkali in the<\/p>\n
           year 1960.      The mutation of inheritance no.2861<\/p>\n
           regarding the suit land mentioned in para No.2-A was<\/p>\n
           initially entered in the name of the plaintiff and<\/p>\n
           defendant Nos. 1 and 2 and Smt.Sukhia the mother of<\/p>\n
           the plaintiff who had expired on 18.5.1974 but with the<\/p>\n
           connivance of revenue officials and Lumberdar, the<\/p>\n
           defendant No.1 was able to get the said mutation<\/p>\n
           sanctioned in her favour without the knowledge and<\/p>\n
           notice of plaintiff. It is further stated that no notice of<\/p>\n
           the aforesaid mutation proceedings was given to the<\/p>\n
           plaintiff and the same was sanctioned in her absence.<\/p>\n
           As such, the plaintiff was not bound by the aforesaid<\/p>\n
           mutation.     Similarly, the mutation of inheritance<\/p>\n
           No.2314 regarding the suit land detailed and described<\/p>\n
           in para no. 2-B was got sanctioned on 31.5.1983 by the<\/p>\n
           defendants No.1 and 2 in their favour in connivance
\n R.S.A.No. 3086 of 1997                                        4<\/span><\/p>\n
              with the revenue officials and Lumberdar.           It is thus<\/p>\n
              stated that the aforesaid mutation No.2861 and 2314<\/p>\n
              were illegal, null and void and nonest and not binding<\/p>\n
              on the lawful rights of the plaintiff, as the same were<\/p>\n
              sanctioned without notice and at the back of the<\/p>\n
              plaintiff.\n<\/p>\n
         3.                It is further stated that defendant No.1 in order<\/p>\n
              to create further complications had transferred the suit<\/p>\n
              land in favour of defendants No.3 to 5 vide collusive<\/p>\n
              decree dated 23.5.1975 in civil suit titled Birjpal and<\/p>\n
              others vs. Smt.Ramkali and consequently, the suit land<\/p>\n
              had been mutated in the name of defendants No.3 to 5<\/p>\n
              in the revenue record.\n<\/p>\n
         4.                The plaintiff was co-sharer and in joint<\/p>\n
              possession to the extent of \u00bd share in the suit land.<\/p>\n
              The defendants No.1 and 2 to the extent of \u00bd share in<\/p>\n
              the suit land. It is thus stated that the plaintiff through<\/p>\n
              this suit seeks a decree for declaration to the effect that<\/p>\n
              she was a co-sharer and in joint possession to the<\/p>\n
              extent of \u00bd share in the suit land. It is also stated that<\/p>\n
              the parties to the suit belongs to Jat community and<\/p>\n
              they depend upon agriculture and were govered by<\/p>\n
              agricultural customs of Erstwhile Gurgaon District now<\/p>\n
              Faridabad District in the matters of alienation and
\n R.S.A.No. 3086 of 1997                                           5<\/span><\/p>\n
              succession under the said custom prior to the<\/p>\n
              commencement of Hindu Succession Act, the widow<\/p>\n
              was entitled to succeed to the property of her husband<\/p>\n
              as a life estate.       The plaintiff asked the defendants<\/p>\n
              several times to admit her claim and get the entries in<\/p>\n
              the revenue record correct but of no avail, hence this<\/p>\n
              suit.\n<\/p>\n
         5.                Notice   of    the   suit   was   issued      to   the\n\n              defendants.           The   defendants     filed   joint   written\n\n<\/pre>\n
              statement to the amended plaint taking preliminary<\/p>\n
              objections of locus standi, maintainability, limitation,<\/p>\n
              estopple and they were entitled to special costs under<\/p>\n
              Section 35 A CPC.             Apart from these preliminary<\/p>\n
              objections it was averred on behalf of the answering<\/p>\n
              defendants that Gulzari @ Bhassu , who was the<\/p>\n
              husband of defendant No.1 and father of defendant<\/p>\n
              No.2 had expired about 50 years ago, since then the<\/p>\n
              defendant No.2 continued to be owner in possession of<\/p>\n
              the suit land and her possession over the suit land as<\/p>\n
              owner had been open, and hostile to all including the<\/p>\n
              plaintiff.\n<\/p>\n
         6.                On merits, the answering defendants did not<\/p>\n
              admit the plaintiff to be the daughter of Gulzari @<\/p>\n
              Bhassu.       The answering defendants also denied the
\n R.S.A.No. 3086 of 1997                                     6<\/span><\/p>\n
              factum of Kareva marriage of Sukhia with Gulzari. It<\/p>\n
              was stated that the Sukhia was not the widow of<\/p>\n
              Gulzari and the plaintiff and Barfi were not daughters,<\/p>\n
              of Sukhia from the lion of Gulzari.       The answering<\/p>\n
              defendants admitted the defendant No.1 to be the wife<\/p>\n
              of Gulzari and defendant No.2 was the daughter of<\/p>\n
              Gulzari.    The   answering   defendant    admitted    the<\/p>\n
              marriage of Sukhia with Rajpal son of Inder but they<\/p>\n
              denied the entering of Kareva marriage by Sukhia with<\/p>\n
              Gulzari son of Bhassu after the death of Rajpal.<\/p>\n
         7.              On the other hand, it was stated that Ramkali<\/p>\n
              was the only wife of Gulzari @ Bhassu.             It was<\/p>\n
              submitted by the answering defendants that Gulzari @<\/p>\n
              Bhassu had left the village and had expired about 50<\/p>\n
              years ago. The answering defendant also admitted the<\/p>\n
              factum of marriage of defendant No.2 with Bhajan Lal<\/p>\n
              of village Pagaon. It was further stated that the plaintiff<\/p>\n
              was the daughter of Rajpal son of Inder and she was<\/p>\n
              married to Girraj of village Kanwar.       It was further<\/p>\n
              stated that the mutation of inheritance of the late<\/p>\n
              Gulzari @ Bhassu was correctly sanctioned in the<\/p>\n
              name of defendants No.1 and 2 and there was no need<\/p>\n
              to issue any notice to the plaintiff as she had got no<\/p>\n
              connection with the inheritance of deceased Gulzari @
\n R.S.A.No. 3086 of 1997                                        7<\/span><\/p>\n
                 Bhassu. It was further stated that the suit land was<\/p>\n
                 rightly and legally transferred in favour of defendants<\/p>\n
                 No.3 to 5 on the basis of decree in civil suit.       The<\/p>\n
                 answering defendants denied the plaintiff to be the co-<\/p>\n
                 sharer and in joint possession to the extent of \u00bd share<\/p>\n
                 in the suit land. The answering defendants also denied<\/p>\n
                 of being governed by agriculture custom in the matter<\/p>\n
                 of alienation and succession. At last, it was stated that<\/p>\n
                 the suit of the plaintiff was liable to be dismissed with<\/p>\n
                 costs.”\n<\/p>\n
           lOn     the pleadings of the parties, following issues were<\/p>\n
framed by the trial Court:-\n<\/p>\n
            “1.            Whether the plaintiff is a co-sharer in the suit<\/p>\n
            land as alleged? OPP<\/p>\n<\/blockquote>\n
            2.             Whether the plaintiff has no locus standi to<\/p>\n
            file the present suit? OPD<\/p>\n<\/blockquote>\n
            3.             Whether the suit is not maintainable in the<\/p>\n
            present form? OPD<\/p>\n<\/blockquote>\n
            4.             Whether the suit is not within time? OPD<\/p>\n<\/blockquote>\n
            5.             Whether the plaintiff is estopped by her own<\/p>\n
            act, conduct and acquisence ? OPD<\/p>\n<\/blockquote>\n
            6.             Whether the defendants are entitled to special<\/p>\n
            costs as alleged? OPD<\/p>\n<\/blockquote>\n
           7.              Relief. “<\/p><\/blockquote>\n
\n R.S.A.No. 3086 of 1997                                       8<\/span><\/p>\n
             Learned senior counsel for the appellant has argued that<\/p>\n
the lower appellate Court had erred in decreeing the suit of the<\/p>\n
plaintiff. In fact, the suit of the plaintiff was liable to be dismissed as<\/p>\n
the plaintiff had failed to establish that she was daughter of Gulzari<\/p>\n
and Sukhia<\/p>\n
             Learned senior counsel for the respondents, on the other<\/p>\n
hand, has submitted that         the plaintiff had been successful in<\/p>\n
establishing that she was daughter of Gulzari and Sukhia and hence,<\/p>\n
she was entitled to inherit the property of Gulzari along with his<\/p>\n
daughter Sunehra.\n<\/p>\n
             After hearing learned senior counsel for the parties, I am<\/p>\n
of the opinion that the present appeal is devoid of any merit.<\/p>\n
             As per Ex.P-2, death certificate of Rajpal, it is evident that<\/p>\n
Rajpal had died on 20.3.1914.         Ex.P-3\/Ex.DW 5-A are the birth<\/p>\n
certificates relating to Kashmiri, daughter of Gulzari born on<\/p>\n
19.12.1924. The controversy involved in this case is as to whether<\/p>\n
the said certificates relate to the plaintiff or not. The plaintiff, while<\/p>\n
appearing in the witness box on 5.8.1989 has disclosed her age as<\/p>\n
64 years.    From this it can be inferred that the plaintiff was born<\/p>\n
somewhere around the year 1924.\n<\/p>\n
             Whether the name of the daughter of Gulzari was<\/p>\n
Kashmiri or Kasumi but the fact remains that a daughter was born to<\/p>\n
Gulzari in the year 1924. In order to prove her case that the plaintiff<\/p>\n
was daughter of Gulzari and Sukhia, plaintiff herself appeared in the
\n R.S.A.No. 3086 of 1997                                        9<\/span><\/p>\n
witness box as PW-1 and also examined Toti PW-2, Kanehya PW-3,<\/p>\n
Jeet Ram PW-4 and Popa PW-5. All the said witnesses have<\/p>\n
deposed with regard to the fact that after the death of Rajpal, Sukhia<\/p>\n
had performed kareva marriage with Gulzari and out of the said<\/p>\n
wedlock, plaintiff was born. Rajpal and Sukhia had a son namely<\/p>\n
Jeet Ram. Learned Additional District Judge has rightly held that the<\/p>\n
oral evidence led by the defendants fails to rebut the cogent and<\/p>\n
convincing evidence led by the plaintiff as Arjun DW-1 is real brother<\/p>\n
of Ramkali. DW-6 Sunehra and DW-7 Ram Gopal are the<\/p>\n
respondents in the case. So far as DW-3 Daulat Ram is concerned,<\/p>\n
he has deposed that Rajpal had died about 15-20 years ago,<\/p>\n
whereas, as per Ex.P-2, Rajpal had died in the year 1914. DW-2<\/p>\n
Nathi has deposed that Kasumi was daughter of               Rajpal but no<\/p>\n
reliance can be placed on his testimony as Rajpal had died in the<\/p>\n
year 1914, whereas, Kasumi was born in the year 1924. The oral evidence<\/p>\n
led by the plaintiff also finds support from the documentary evidence.<\/p>\n
            In these circumstances, learned Additional District Judge<\/p>\n
rightly held that there was a close similarity between Kasumi and<\/p>\n
Kashmiri and the possibility that instead of Kasumi it might have<\/p>\n
been written as Kashmiri in Urdu in Ex.P-3 can not be ruled out.<\/p>\n
Apparently, the mistake was committed by the official, who prepared<\/p>\n
the certificate Ex.P-3 and the official wrote Kashmiri instead of<\/p>\n
Kasumi in the birth certificate. Moreover, as per the death certificate<\/p>\n
of Sukhia Ex.P-4, she is described as wife of Gulzari. Sukhia died on
\n R.S.A.No. 3086 of 1997                                     10<\/span><\/p>\n
8.5.1974 in village Dighot. Since the husband of Sukhia died in the<\/p>\n
year 1914, there is possibility that she performed a kareva marriage<\/p>\n
with Gulzari and out of the said wedlock, plaintiff was born.<\/p>\n
Moreover, there is no plea by the defendants in the written statement<\/p>\n
to the effect that any other daughter namely Kashmiri was born to<\/p>\n
Gulzari and his wife Ram Kali.        It is only in cross-examination,<\/p>\n
defendant Sunehra, while appearing in the witness box as DW-6, has<\/p>\n
deposed that her sister Kashmiri was born in the year 1924 and had<\/p>\n
died at the age of 5-7 years. However, no such plea was taken in the<\/p>\n
written statement and it appears that the said plea taken by DW-6 in<\/p>\n
her cross-examination is an afterthought and with a desperate<\/p>\n
attempt to counter Ex. P-3, birth certificate of the plaintiff. Hence, no<\/p>\n
reliance can be placed on the said part of the testimony of DW-6.<\/p>\n
             Another document, which is relevant         is Ex.P-7.    A<\/p>\n
perusal of the same reveals that initially Gulzari was stated to be<\/p>\n
survived by two widows i.e. Sukhia and Ram Kali and two daughters<\/p>\n
Kasumi and Sunehra. However, the said mutation No.2861 was not<\/p>\n
sanctioned    and the name of Sukhia was deleted from there on<\/p>\n
15.5.1967 by Assistant Collector First Grade on the basis of<\/p>\n
statement of Jeet Ram son of Sukhia. However, Sukhia herself did<\/p>\n
not appear in the said proceedings nor any notice with regard to the<\/p>\n
said proceedings was issued to the plaintiff. On the basis of the<\/p>\n
statement of Jeet Ram, who is son of Sukhia and Rajpal, the fate of<\/p>\n
plaintiff could not be decided.    The plaintiff was necessary to be
\n R.S.A.No. 3086 of 1997                                       11<\/span><\/p>\n
heard at the time of sanction of mutation on 15.5.1967. However, the<\/p>\n
said order was passed at the back of the plaintiff. Since the mutation<\/p>\n
qua the suit property had been entered without any notice to the<\/p>\n
plaintiff, the same has no bearing on the right of the plaintiff.<\/p>\n
            The entries in the voter list, showed Sukhia as widow of<\/p>\n
Rajpal, have been rightly discarded by the learned Additional District<\/p>\n
Judge as the same related to the year 1970. Moreover, Some times<\/p>\n
no effort is made to get the entries in voter list corrected. However,<\/p>\n
the said entries are duly rebutted by the death certificate of Sukhia<\/p>\n
Ex.P-4 wherein she is described to be widow of Gulzari.<\/p>\n
            In these circumstances, learned Additional District Judge<\/p>\n
had rightly decreed the suit of the plaintiff.<\/p>\n
            No substantial question of law arises in this regular<\/p>\n
second appeal. Accordingly, the same is dismissed.<\/p>\n
\n\n\n\n                                                 (SABINA)\n                                                  JUDGE\n\nAugust      12, 2009\nanita\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Sunhera And Others vs Kasumi on 12 August, 2009 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, […]<\/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-153767","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nSunhera And Others vs Kasumi on 12 August, 2009 - 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\/sunhera-and-others-vs-kasumi-on-12-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sunhera And Others vs Kasumi on 12 August, 2009 - 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