{"id":75719,"date":"2009-02-24T00:00:00","date_gmt":"2009-02-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shrimati-savitri-anr-vs-krishni-alias-kreshni-on-24-february-2009"},"modified":"2018-02-05T07:50:22","modified_gmt":"2018-02-05T02:20:22","slug":"shrimati-savitri-anr-vs-krishni-alias-kreshni-on-24-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shrimati-savitri-anr-vs-krishni-alias-kreshni-on-24-february-2009","title":{"rendered":"Shrimati Savitri & Anr vs Krishni Alias Kreshni on 24 February, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Shrimati Savitri & Anr vs Krishni Alias Kreshni on 24 February, 2009<\/div>\n
RSA No.1502 of 1989                                          1\n\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n\n\n                                      RSA No.1502 of 1989 (O&M)\n                                      Date of Decision: 24.2.2009\n\n\n\n\nShrimati Savitri & Anr.                                ..Appellants\n\n                          Vs.\n\nKrishni alias Kreshni                                  ..Respondent\n\n\n\n\nCoram: Hon'ble Mr. Justice Vinod K.Sharma\n\n\n\n\nPresent:    Mr.V.K.Jain, Sr. Advocate,\n            with Mr.Prashant Vashisth, Advocate,\n            for the appellants.\n\n            Mr.Arun Jain, Sr.Advocate,\n            with Mr.Amit Jain, Advocate,\n            for the respondent.\n\n                          ---\n\n      1.    Whether Reporters of Local Newspapers may\n            be allowed to see the judgment?\n\n      2.     To be referred to the Reporters or not?\n\n      3.     Whether the judgment should be reported in\n             Digest?\n\n                                ---\n\nVinod K.Sharma,J.\n<\/pre>\n
            This regular second appeal is directed against the judgments
\n RSA No.1502 of 1989                                                2<\/span><\/p>\n
and decree passed by the learned courts below vide which suit filed by the<\/p>\n
plaintiff\/respondents for declaration with consequential relief stands<\/p>\n
decreed.\n<\/p>\n
            The plaintiff\/respondents brought a suit on the pleadings that<\/p>\n
Lachhman alias Bodha father of the plaintiff\/respondents was owner in<\/p>\n
possession of land measuring 228 kanals 3 Marlas at village Padwala<\/p>\n
Tehsil and District Karnal.\n<\/p>\n
            Lachhman alias Bodha died in the month of September, 1983<\/p>\n
and the Assistant Collector II Grade, Nilokheri without any notice         to the<\/p>\n
plaintiff sanctioned the mutation in favour of the defendant\/appellants i.e.<\/p>\n
Dalel Singh and Smt.Savitri. It was claimed that mutation dated 17.5.1984<\/p>\n
was   illegal   and      void   and   did   not   affect   the   rights   of   the<\/p>\n
plaintiff\/respondents.\n<\/p>\n
            It was also the case of the plaintiffs that deceased Lachhman<\/p>\n
alias Bodha died intestate and that the mutation dated 17.5.1984 was<\/p>\n
sanctioned i n favour of the defendant in connivence and collusion of the<\/p>\n
defendants with Halqa Patwari and Assistant Collector II Grade, Nilokheri<\/p>\n
which was said to be void and not binding upon the rights of the plaintiffs.<\/p>\n
The plaintiffs, thus, claimed 1\/3rd share in the estate of deceased Lachhman.<\/p>\n
 The suit was contested by raising preliminary objections that the plaintiffs<\/p>\n
had no locus standi to file the present suit and she was not at all related to<\/p>\n
Lachhman alias Bodha. Plea was also raised that the suit is not properly<\/p>\n
valued for the purposes of court fee and jurisdiction. Suit was said to be<\/p>\n
time barred and otherwise defective.\n<\/p>\n
 RSA No.1502 of 1989                                                 3<\/span><\/p>\n
             On merits assertions made by the plaintiff were denied.<\/p>\n
                   The    plaintiff\/respondent   filed     replication   wherein<\/p>\n
averments made in the written statement were contested and that of the<\/p>\n
plaint were reiterated.\n<\/p>\n
                   On the pleadings of the parties learned trial court was<\/p>\n
pleased to frame the following issues:-\n<\/p>\n
             1.     Whether the plaintiff is the daughter of Lachhman @<\/p>\n
                    Bodha? OPP.<\/p>\n
             2.     Whether the plaintiff has 1\/3rd share in the suit land<\/p>\n
                    detailed in para No.1 of the plaint? OPP.\n<\/p><\/blockquote>\n
             3.     Whether the suit is not maintainable in the present<\/p>\n
                    form? OPD<\/p>\n<\/blockquote>\n
             4.     Whether the suit is not properly valued for the purposes<\/p>\n
                    of court fee and jurisdiction? OPD<\/p>\n<\/blockquote>\n
             5.     Whether    the   suit   is   not     properly   signed   and<\/p>\n
                    verified?OPD<\/p>\n<\/blockquote>\n
             6.     Whether the suit is time barred? OPD<\/p>\n<\/blockquote>\n
             7.     Relief.<\/p><\/blockquote>\n
            Learned trial court on appreciation of evidence brought on<\/p>\n
record decided issues No.1 and 2 in favour of the plaintiff\/respondent,<\/p>\n
whereas issues No.3 to 6 were decided against the appellant\/defendants<\/p>\n
being not pressed. Consequently the suit filed by the plaintiff\/respondent<\/p>\n
was ordered to be decreed.\n<\/p>\n
            The appellant\/defendants preferred an appeal against the
\n RSA No.1502 of 1989                                            4<\/span><\/p>\n
judgment and decree passed by the learned trial court and challenged the<\/p>\n
findings on issues No.1 and 2 on the plea that the learned trial court had<\/p>\n
misread the evidence brought on record and ignored the material<\/p>\n
discrepancies in the statements made by the witnesses produced by the<\/p>\n
plaintiff to record a finding on issue No.1 to hold that the plaintiff is the<\/p>\n
daughter of Lachhman alias Bodha. Learned trial court held that in order to<\/p>\n
prove the relationship the plaintiff beside appearing as PW 1 had also<\/p>\n
examined Hem Raj as PW 2 i.e. her maternal uncle, Surta as PW 3 resident<\/p>\n
of Padwala, Mansa as PW 4 and Surta PW 5 i.e. the husband of Krishni,<\/p>\n
plaintiff, whereas to rebut this evidence defendant Savitri appeared as DW<\/p>\n
1. She also examined Risal Singh DW 2, Jai Singh DW 3 and Ram Kishan<\/p>\n
DW 4.\n<\/p>\n
            Evidence brought on record by the respective parties was<\/p>\n
discussed by the learned lower appellate court as under:-<\/p>\n
            8.    …. She has further stated that Jiwni had married Tulla<\/p>\n
            Ram resident of Patwala and a daughter was born to Jiwni, who<\/p>\n
            had died and after the death of Tulla, Jiwni contracted a<\/p>\n
            Karewa marriage with Lachhman. Out of this marriage, she,<\/p>\n
            Savitri and Dalel were born. She further deposed that<\/p>\n
            Lachhman died three years ago and the mutation was wrongly<\/p>\n
            sanctioned in favour of Dalel and Savitri as she has been<\/p>\n
            deprived of 1\/3rd share in the property. In cross-examination,<\/p>\n
            she could not say about the death of Tulla. According to her, he<\/p>\n
            mother Jiwani died 15 years ago. She further stated that
\n RSA No.1502 of 1989                                         5<\/span><\/p>\n
          Lachhman remained sick for period of two years before his<\/p>\n
          death in village Padwala and was looked after in his life time<\/p>\n
          by his daughters and son. She also maintained that she did not<\/p>\n
          come to know about the death of Lachhman and came to know<\/p>\n
          about the mutation from the residents of the village. She could<\/p>\n
          not say about the exact period after the death of Tulla, Jiwani<\/p>\n
          contracted Karewa marriage with Lachhman. She maintained<\/p>\n
          that she was elder to Dalel and Dalel was elder to Savitri.<\/p>\n
          According to her, Dalel Singh is aged 40 years and Savitri is<\/p>\n
          aged 30 years and Lachhman died at the age of 90 years. She<\/p>\n
          also stated that Jiwni started living with Lachhman at the age of<\/p>\n
          35 years and Dalel was born after ten years of the marriage of<\/p>\n
          Jiwni with Lachhman. She admitted that customary Bhat was<\/p>\n
          given by Inder and Ram Chander. She could not say whether<\/p>\n
          her date of birth was recorded with the authorities. She also<\/p>\n
          admitted that after the death of Tulla, Inder and Ram Chander<\/p>\n
          had inherited the property. Hem Raj (PW2) has maintained that<\/p>\n
          Savitri, Krishni and Dalel are his nieces and nephew<\/p>\n
          respectively as they were born out of the loins of Lachhman.<\/p>\n
          Lachhman was also known as Bodha and Jiwni was his sister.<\/p>\n
          He further stated that Jiwni was married with Tulla and after his<\/p>\n
          death, Jiwni contracted a Karewa marriage with Lachhman. He<\/p>\n
          also stated that Kirya ceremony was attended by him where<\/p>\n
          respondent and her husband were also present. In cross-
\n RSA No.1502 of 1989                                        6<\/span><\/p>\n
          examination, he stated that Shanti his wife is real sister of<\/p>\n
          Surta, husband of Savitri. Surta (PW3) had remained Sarpanch<\/p>\n
          of the village and he had stated that Hem Raj is maternal uncle<\/p>\n
          of the parties. He further deposed that out of the loins of<\/p>\n
          Lachhman one son and two daughters were born to Jiwni and<\/p>\n
          further deposed about the contact of Krishni towards his father<\/p>\n
          Lachhman, according to him. Krishni used to live with<\/p>\n
          Lachhman prior to his death as he remained sick. In cross-<\/p>\n
          examination, he stated that he is not aware whether any birth<\/p>\n
          entry of the respondent was recorded with the chowkidar.<\/p>\n
          Mansa (PW4) has corroborated the statements of the PWs and<\/p>\n
          has stated that Jiwni had contracted Karewa marriage with<\/p>\n
          Lachhman and respondent and appellants were born to her from<\/p>\n
          the loins of Lachhman. In cross-examination, he could not say<\/p>\n
          about the ages of Lachhman and Jiwni at the time when Krishni<\/p>\n
          was born. He also admitted that his son was married at Basthla<\/p>\n
          where Krishni is also married. Surta (PW5) is husband of<\/p>\n
          Krishni and had fully corroborated the stand of Krishni as well<\/p>\n
          as other PWs examined.\n<\/p><\/blockquote>\n
         9.     Savitri (DW1) has maintained that Krishni is daughter of<\/p>\n
          Tulla and was not related to Lachhman. In cross-examination,<\/p>\n
          she admitted that Dale is invalid and is not in a position to<\/p>\n
          move. She has further admitted that Dalel is not married and<\/p>\n
          has been residing with Inder and Ram Chander. She also stated
\n RSA No.1502 of 1989                                            7<\/span><\/p>\n
            that her husband had died and she had no issue. She maintained<\/p>\n
            that Hem Raj is not her maternal uncle and according to her,<\/p>\n
            Rikha and Sadhu are only her maternal uncles who are alive.<\/p>\n
            She further stated that she had not met her maternal uncles so<\/p>\n
            far. Risal Singh (DW2) has deposed that Krishni is daughter of<\/p>\n
            Tulla, but could not say about the number of brother in law of<\/p>\n
            Lachhman. He has further stated that Dalel is living with Santa<\/p>\n
            who cultivates his land. Jai Singh (DW3) has stated that<\/p>\n
            Lachhman was his maternal uncle as he is son of Bakhtawari.<\/p>\n
            According to him, Krishni is not related to Lachhman. He has<\/p>\n
            also admitted that Dalle is invalid and is not in a position to<\/p>\n
            move and is residing with Santa these days. He expressed his<\/p>\n
            ignorance whether Parbhu, Assa, Hem Raj and Dhanna are<\/p>\n
            other brother-in-laws of Lachhman. Ram Kalan (DW4) is<\/p>\n
            Sarpanch of the village and has stated that Krishni is not related<\/p>\n
            to Lachhman.”<\/p><\/blockquote>\n
            Learned lower appellate court observed that from the evidence<\/p>\n
on record it was proved that Jiwni had contracted Kareva marriage with<\/p>\n
Lachhman after the death of Tulla and thereafter Dalel Singh and Savitri<\/p>\n
were born to Jiwni out of the loins of Lachhman.\n<\/p>\n
            The only point in dispute was with regard to the relationship of<\/p>\n
Krishni with Lachhman. Learned lower appellate court            came to the<\/p>\n
conclusion that merely because the plaintiff\/respondent had not come to<\/p>\n
know about the death of Lachhman and discrepant statement about her
\n RSA No.1502 of 1989                                            8<\/span><\/p>\n
presence about Kirya could not falsify her statement of being daughter of<\/p>\n
Lachhman. The learned lower appellate court also observed that       with her<\/p>\n
admission that Inder and Ram Chander had given Bhat to her and that Inder<\/p>\n
and Ram Chander had succeeded to property of Tulla could not be taken to<\/p>\n
be such an admission which could falsify the case set up by the<\/p>\n
plaintiff\/respondent. Learned lower appellate court affirmed the findings of<\/p>\n
the learned trial court and based its finding on the statement of Hem Raj PW<\/p>\n
2 i.e. the maternal uncle of the parties who had categorically stated that the<\/p>\n
plaintiff\/respondent was born to Jiwni out of loins of Lachhman along with<\/p>\n
Savitri and Dalel Singh defendant\/appellants.\n<\/p>\n
            The evidence led by the defendant\/appellants was rejected for<\/p>\n
not having produced near relation from the maternal side and thus, the<\/p>\n
finding on issue No.1 as recorded by the learned trial court was affirmed.<\/p>\n
Learned lower appellate court also did not pay any importance to the fact<\/p>\n
that there was no birth entry of Krishni on record. Before the        learned<\/p>\n
lower appellate    court the appellant\/defendants produced on file birth<\/p>\n
certificate Ex.A.1 of Ram Singh son of Lachhman who was born on<\/p>\n
1.11.1947 and the birth Certificate Ax.A.2 of Savitri daughter of Lachhman<\/p>\n
who was born on 15.9.1953 as well as the birth certificate of Ram Devi<\/p>\n
daughter of Tulla who was born on 25.5.1934.\n<\/p>\n
            The contention     that the certificate of Ram Devi related to<\/p>\n
Krishni was rejected on the plea that the witnesses produced by the<\/p>\n
plaintiff\/respondent have stated that Ram Devi had died. The court also<\/p>\n
observed that it was not even suggestion put to Krishni that she was in fact
\n RSA No.1502 of 1989                                              9<\/span><\/p>\n
Ram Devi.\n<\/p>\n
               Mr.V.K.Jain learned senior counsel appearing on behalf of the<\/p>\n
appellants raised the following substantial questions of for consideration in<\/p>\n
this appeal:\n<\/p>\n
               1.    Whether the evidence not falling within the ambit of<\/p>\n
                     section 50 of the Evidence Act can be looked into to<\/p>\n
                     determine the relationship of parties?\n<\/p><\/blockquote>\n
               2.    Whether the evidence beyond the pleadings can be<\/p>\n
                     looked into?\n<\/p><\/blockquote>\n
               3.    Whether the judgment and decree passed by the learned<\/p>\n
                     courts below      is the outcome of misreading of<\/p>\n
                     documentary and oral evidence brought on record?<\/p><\/blockquote>\n
               Mr.V.K.Jain, learned senior counsel appearing on behalf of the<\/p>\n
appellants in support of the substantial questions of law vehemently<\/p>\n
contended that the judgments and decree passed by the learned courts below<\/p>\n
is the outcome of misreading of evidence and further that the evidence led<\/p>\n
with regard to the relationship of plaintiff\/respondents with Lachhman to<\/p>\n
prove his relationship did not met with requirement of Section 50 of the<\/p>\n
Evidence Act.\n<\/p>\n
               Section 50 of the Evidence Act reads as under:-\n<\/p>\n
               “50. Opinion or relationship, when relevant.– When the<\/p>\n
               Court has to form an opinion as to the relationship of one<\/p>\n
               person to another, the opinion, expressed by conduct, as to the<\/p>\n
               existence of such relationship, or any person who, as a member
\n RSA No.1502 of 1989                                            10<\/span><\/p>\n
             of the family or otherwise, has special means of knowledge on<\/p>\n
             the knowledge on the subject, is relevant fact.\n<\/p>\n
                   Provided that such opinion shall not be sufficient to<\/p>\n
             prove a marriage in proceedings under Indian Divorce Act,<\/p>\n
             1869 (4 of 1869), or in prosecution under sections 494, 495,<\/p>\n
             497, and 498 of the Indian Penal Code (45 of 1860).”<\/p>\n
            In this back-ground learned senior counsel for the appellants<\/p>\n
vehemently contended that Hem Raj PW 2 did mention that Lachhman and<\/p>\n
plaintiff\/respondent used to treat themselves as father and daughter and<\/p>\n
used to be called as such. The said evidence could not be a basis to hold the<\/p>\n
relationship to have been proved in view of the admission that his wife<\/p>\n
was real sister of the husband of the defendant. Learned senior counsel for<\/p>\n
the appellants also contended that even the statement of PW 3 regarding<\/p>\n
proof of relationship could not be accepted as in the cross-examination he<\/p>\n
was not able to tell parentage of Lachhman and thus, was not a person<\/p>\n
closely related to give an opinion about the relationship as envisaged in<\/p>\n
Section 50 of the Evidence Act.\n<\/p>\n
            It is the contention    of the learned senior counsel for the<\/p>\n
appellants that the learned courts below were not right in deciding issues<\/p>\n
No.1 and 2 in favour of the plaintiff\/respondent. It is also the contention of<\/p>\n
the learned senior counsel for the appellants that the evidence with regard<\/p>\n
to the death of Ram Devi the daughter of Tulla could not be looked into as<\/p>\n
it was beyond the pleadings as no such plea was raised either in the plaint or<\/p>\n
in the replication. The contention of the learned counsel for the appellants,
\n RSA No.1502 of 1989                                            11<\/span><\/p>\n
therefore, was that the learned courts below have recorded a finding by<\/p>\n
placing reliance on inadmissible evidence.\n<\/p>\n
            Learned senior counsel for the appellant placed reliance on the<\/p>\n
judgment of Hon’ble Supreme Court in the case of Yadarao Dajiba<\/p>\n
Shrawane (Dead) by Lrs. Vs. Nanilal Harakchand Shah (Dead) and<\/p>\n
others (2002) 6 Supreme Court Cases, 404 to contend that the substantial<\/p>\n
questions of law framed deserve to be answered in favour of the<\/p>\n
defendant\/appellants as the findings on issues No.1 and 2 by the learned<\/p>\n
courts below are the outcome of taking into consideration the inadmissible<\/p>\n
evidence ignoring all the material particulars on record.<\/p>\n
            Hon’ble Supreme Court in         the case of Yadarao Dajiba<\/p>\n
Shrawane (Dead) by Lrs. Vs. Nanilal Harakchand Shah (Dead) and<\/p>\n
others (supra) has been pleased to lay down as under:-<\/p>\n
            “31    From the discussions in the judgment it is clear that the<\/p>\n
            High Court has based its findings on the documentary evidence<\/p>\n
            placed on record and statements made by some witnesses<\/p>\n
            which can be construed as admissions of conclusions. The<\/p>\n
            position is well settled that when the judgment of the final<\/p>\n
            court of fact is based on misinterpretation of documentary<\/p>\n
            evidence or on consideration of inadmissible evidence or<\/p>\n
            ignoring material evidence the High Court in second appeal is<\/p>\n
            entitled to interfere with the judgment. The position is also well<\/p>\n
            settled that admission of parties or their witnesses are relevant<\/p>\n
            pieces of evidence and should be given due weighage by
\n RSA No.1502 of 1989                                                12<\/span><\/p>\n
            courts. A finding of fact ignoring such admissions or<\/p>\n
            concessions is vitiated in law and can be interfered with by the<\/p>\n
            High Court in second appeal. Since the parties have been in<\/p>\n
            litigating   terms for several     decades,      the    records   are<\/p>\n
            voluminous. The High Court as it appears from the judgment,<\/p>\n
            has discussed the documentary evidence, threadbare in the light<\/p>\n
            of law relating to their admissibility and relevance.<\/p>\n<\/blockquote>\n
            32.   On perusal of the judgment of the High Court and on<\/p>\n
            consideration of the matter, we do not find that the judgment<\/p>\n
            suffers from any serious illegality or infirmity which call for<\/p>\n
            interference in this appeal filed by special leave. Accordingly,<\/p>\n
            the appeal fails and is dismissed with costs.”<\/p><\/blockquote>\n
            Reliance was also placed on the judgment of Hon’ble Supreme<\/p>\n
Court in the case of Bondar Singh and others Vs. Nihal Singh and others<\/p>\n
(2003) 4 Supreme Court Cases 161, where again Hon’ble Supreme Court<\/p>\n
Court was pleased to lay down that in the absence of pleadings, no evidence<\/p>\n
can be looked into in relation thereto. Hon’ble Supreme Court in the case<\/p>\n
of   Bondar Singh and others Vs. Nihal Singh and others (supra) has<\/p>\n
been pleased to lay down as under:-\n<\/p>\n
            “7.   As regards the plea of sub-tenancy (shikmi) argued on<\/p>\n
            behalf of defendants by their learned counsel, first we may note<\/p>\n
            that this plea was never taken int he written statement the way<\/p>\n
            it has been put forth now. The written statement is totally vague<\/p>\n
            and lacking in materiel particulars on this aspect. There is
\n RSA No.1502 of 1989                                            13<\/span><\/p>\n
            nothing to support this plea except some alleged revenue<\/p>\n
            entries. It is settled law that in the absence of a plea no amount<\/p>\n
            of evidence led in relation thereto can be looked into.<\/p>\n
            Therefore, in the absence of a clear plea regarding sub-tenancy<\/p>\n
            (shikmi), the defendants cannot be allowed to build up a case of<\/p>\n
            sub-tenancy (shikmi). Had the defendants taken such a plea it<\/p>\n
            would have found place as an issue in the suit. We have<\/p>\n
            perused the issues framed in the suit. There is no issue on the<\/p>\n
            point.”<\/p><\/blockquote>\n
            Mr.Arun Jain, learned senior counsel appearing on behalf of the<\/p>\n
respondent contended that the findings of facts recorded by the learned<\/p>\n
courts below on appreciation of evidence can not be challenged in the<\/p>\n
regular second appeal. The contention of the learned senior counsel for the<\/p>\n
respondents was that the learned courts below have recorded a concurrent<\/p>\n
finding of fact regarding the relationship of plaintiff\/respondent       with<\/p>\n
Lacchhman. The said finding is not open to challenge in regular second<\/p>\n
appeal.\n<\/p>\n
            In support of this contention reliance was placed on the<\/p>\n
judgment of this court in the case of Smt. Sardul Kaur Vs. Parsin Kaur<\/p>\n
@ Sukhchain Kaur 1997 (3) RCR (Civil) 488, wherein this Court has<\/p>\n
been pleased to lay down as under:-\n<\/p>\n
            “9.   I have given my thoughtful consideration to the rival<\/p>\n
            contentions. The only question that arises for determination in<\/p>\n
            this appeal is whether Parsin Kaur is the daughter of Kabir
\n RSA No.1502 of 1989                                         14<\/span><\/p>\n
          Singh original owner of the suit land through his wife Kishan<\/p>\n
          Kaur. In order to prove that Parsin Kaur is the daughter of<\/p>\n
          Kabir Singh through his wife Kishan Kaur, defendants<\/p>\n
          examined Jagjit Singh and Daljit Singh, DWs 1 and 2. They<\/p>\n
          have not stated in clear terms that Parsin Kaur is not the<\/p>\n
          daughter of Kishan Kaur. Mohinder Singh (DW3) does not say<\/p>\n
          anything about the relationship of Parsin Kaur with Kishan<\/p>\n
          Kaur. His evidence shows that according to him, Parsin Kaur<\/p>\n
          may or may not be the daughter of Kishan Kaur. He did not<\/p>\n
          controvert the statement of Parsin Kaur that she is daughter of<\/p>\n
          Kishan Kaur. Harbhagat Singh (DW4), however, stated that<\/p>\n
          Parsin Kaur is not daughter of Karam Kaur or of Kabir Singh.<\/p>\n
          The relationship of Parsin Kaur with Kabir Singh through<\/p>\n
          Kishan Kaur is neither admissible in evidence nor is sufficient<\/p>\n
          to disprove her relationship with Kabir Singh through Kishan<\/p>\n
          Kaur. If according to the defendants Parsin Kaur is not the<\/p>\n
          daughter of Kabir Singh, it was for them to suggest and prove<\/p>\n
          that she was the daughter of some person other than Kabir<\/p>\n
          Singh, but at any stage of the proceedings it was neither so<\/p>\n
          suggested nor evidence was led to that effect by the defendants.<\/p>\n
          On the other hand, plaintiff examined as many as six witnesses<\/p>\n
          including herself as PW6. Kundan Singh (PW1) stated that<\/p>\n
          Karan Kaur was his daughter and Kabir Singh was his son-in-<\/p>\n
          law Kishan Kaur was second wife of Kabir Singh and Parsin
\n RSA No.1502 of 1989                                        15<\/span><\/p>\n
          Kaur is the daughter of Kishan Kaur from the lions of Kabir<\/p>\n
          Singh.   Evidence of Avtar Singh (PW 2) not being in<\/p>\n
          conformity with the provisions of section 50 of the Indian<\/p>\n
          Evidence Act is not of any help to the plaintiff. PW 4 Resham<\/p>\n
          Singh is co-sharer in the joint Khewat in village Khokhar. It<\/p>\n
          was stated by him that Kabir Singh was his uncle. He had two<\/p>\n
          wives Karam Kaur and Kishan Kaur. Kishan Kaur had a son<\/p>\n
          and a daughter. Parsin Kaur plaintiff is the daughter of Kishan<\/p>\n
          Kaur. He further stated that Sardul Singh is husband of Parsin<\/p>\n
          Kaur and General Attorney of Karam Kaur. He was cross-<\/p>\n
          examined to show that there were criminal cases between him<\/p>\n
          and his son on the one side and Joiginder Singh defendant and<\/p>\n
          other defendants on the other.    He displayed his ignorance<\/p>\n
          about the same.      The defendants did not produce any<\/p>\n
          documentary evidence to show that there were criminal<\/p>\n
          proceedings between him and the defendants. It was nowhere<\/p>\n
          suggested to him that Kabir Singh was not his uncle or he was<\/p>\n
          not co-sharer in the joint Khewat in Village Kharal Khurd or<\/p>\n
          that Parsin Kaur is not the daughter of Kabir Singh and Kishan<\/p>\n
          Kaur. He being the co-sharer in the joint Khewat and relation<\/p>\n
          of Kabir Singh had the special means of Knowledge regarding<\/p>\n
          relationship of Parsin Kaur with Kabir Singh and Kishan Kaur.<\/p>\n
          Parsin Kaur while appearing as PW6 also stated that she is the<\/p>\n
          daughter of Kishan Kaur and Kabir Singh was her father. Her
\n RSA No.1502 of 1989                                        16<\/span><\/p>\n
          father Kabir Singh had two wives, namely, Karam Kaur and<\/p>\n
          Kishan Kaur. Mukhtar Singh son of Kabir Singh died when he<\/p>\n
          was unmarried. It was further stated by her that her father<\/p>\n
          Kabir Singh was posted as Patwari in village Tarkhanwala,<\/p>\n
          District Ferozeopur, and they lived their for 9\/10 years. She<\/p>\n
          was little educated while Karam Kaur and Kishan Kaur were<\/p>\n
          illiterate and they used to reside with her. Whatever has been<\/p>\n
          stated by Parsin Kaur was not challenged in cross-examination.<\/p>\n
          Buta Singh was examined as PW3. It was stated by him that he<\/p>\n
          had purchased land from Karam Kaur wife of Kabir Singh.<\/p>\n
          Parsin Kaur daughter of Kabir Singh had filed a preemption<\/p>\n
          suit against him. This statement of Buta Singh (PW3) was not<\/p>\n
          challenged in his cross-examination. The evidence of Buta<\/p>\n
          Singh (PW3) goes to show that Parsin Kaur had asserted her<\/p>\n
          right as daughter of Kabir Singh long before the present<\/p>\n
          controversy arose between the parties. Both the Courts below<\/p>\n
          have recorded a concurrent finding that Parsin Kaur is the<\/p>\n
          daughter of Kabir Singh through his wife Kishan Kaur.<\/p>\n
          Therefore, it cannot be said that the Courts below misread the<\/p>\n
          evidence or had left some relevant evidence out of<\/p>\n
          consideration or that they arrived at an erroneous conclusion.<\/p>\n
          Even otherwise, concurrent finding of fact recorded by both the<\/p>\n
          Courts below after appraisal of evidence is a finding of fact<\/p>\n
          which is not open to challenge in Regular Second Appeal. The
\n RSA No.1502 of 1989                                           17<\/span><\/p>\n
          contention of the learned counsel that Karam Kaur had the<\/p>\n
          limited interest in the estate left behind by her husband Kabir<\/p>\n
          Singh and had not become full owner of the property in dispute,<\/p>\n
          is without any merit. Faced with this, the learned counsel for<\/p>\n
          the appellants referred to Mark ‘A’ and argued that on July 10,<\/p>\n
          1942 an agreement was arrived at between Kishan Kaur and<\/p>\n
          Karam Kaur widows of Kabir Singh on the one hand, Ujagar<\/p>\n
          Singh husband of defendant No. 1 and sons of Sohan Singh on<\/p>\n
          the other, whereby they were given a life estate with the<\/p>\n
          stipulation that they could use the usufruct of the property<\/p>\n
          during their life time and after their death the land was to revert<\/p>\n
          back to the heirs of Kabir Singh. When Kishan Kaur herself<\/p>\n
          had not become full owner of the land in dispute, Parsin Kaur<\/p>\n
          can not claim to be the owner and in possession. It was argued<\/p>\n
          that this document being more than thirty years old per se is<\/p>\n
          admissible in evidence and the Courts below should not have<\/p>\n
          ignored the same. The argument being without substance is not<\/p>\n
          acceptable. Only the original documents which are more than<\/p>\n
          thirty years old without formal proof are admissible in<\/p>\n
          evidence.   Section 90 of the Indian Evidence Act reads as<\/p>\n
          under.\n<\/p><\/blockquote>\n
                “90. Presumption as to documents thirty years old where<\/p>\n
                any document, purporting or proved to be thirty years old,<\/p>\n
                is produced from any custody which the Court in the
\n RSA No.1502 of 1989                                         18<\/span><\/p>\n
               particular case considers proper, the Court may presume<\/p>\n
               that the signature and every other part of such document,<\/p>\n
               which purports to be in the handwriting of any particular<\/p>\n
               person, is in that person’s handwriting, and, in the case of<\/p>\n
               a document executed or attested, that it was duly executed<\/p>\n
               and attested by the persons by whom it purports to be<\/p>\n
               executed and attested.\n<\/p><\/blockquote>\n
               Explanation- Documents are said to be in proper custody<\/p>\n
               if they are in the place in which, and under the care of the<\/p>\n
               person with whom, they would naturally be; but no<\/p>\n
               custody is improper if it is proved to have had a<\/p>\n
               legitimate origin, or if the circumstances of the particular<\/p>\n
               case are such as to render such an origin probable.”<\/p><\/blockquote>\n<\/blockquote>\n
\n<\/blockquote>\n
                A bare perusal of the above said provision would show<\/p>\n
          that it speaks of the presumptions attached to the original<\/p>\n
          documents purporting or proved to be thirty years old and<\/p>\n
          produced from any custody which the Court in the<\/p>\n
          circumstances of the particular case considers and not the<\/p>\n
          copies of originals. Admittedly, Mark ‘A’ is the certified copy<\/p>\n
          and not the original document.        Therefore, no statutory<\/p>\n
          presumption as envisaged under section 90 of the Indian<\/p>\n
          Evidence Act can be drawn regarding the signatures of<\/p>\n
          executants of it. Therefore, it was required to be proved by<\/p>\n
          adducing admissible evidence which was not done by the
\n RSA No.1502 of 1989                                             19<\/span><\/p>\n
            appellants.   Therefore, Mark ‘A’ was rightly ignored by the<\/p>\n
            Courts below and no fault can be found with the finding to that<\/p>\n
            effect. In view of the finding that Parsin Kaur has been held to<\/p>\n
            be the only heir of Kabir Singh original owner of the suit land<\/p>\n
            and that the defendants have not led any contra evidence, the<\/p>\n
            findings recorded by the lower appellate Court are well<\/p>\n
            founded and the same are affirmed.”<\/p><\/blockquote>\n
            However, on consideration of the matter, I find force in the<\/p>\n
contentions raised by the learned counsel for the appellants.<\/p>\n
            In the present case, it may be noticed that the learned courts<\/p>\n
below have failed to note of the evidence produced on record. The plaintiff<\/p>\n
had not taken any plea about the death of daughter born to Tula and<\/p>\n
therefore, the evidence que the death of Ram Devi in the absence of any<\/p>\n
other documentary evidence was certainly beyond pleadings.<\/p>\n
            Other evidence was also      brought     on record showing that<\/p>\n
plaintiff\/respondent did not come to know about the death of Lachhman<\/p>\n
and there was discrepancy in the statements of witnesses with regard to her<\/p>\n
participation in Kirya ceremony.\n<\/p>\n
            This evidence coupled with evidence that Bhat in her marriage<\/p>\n
was given by others showed that the Krishini respondent was, in fact,<\/p>\n
daughter of Tula. The statement of Hem Raj PW 2 could not be relied<\/p>\n
upon because of his relationship      with the husband      of Krishni. The<\/p>\n
evidence led to prove relationship did not meet the requirement of section<\/p>\n
50 of the Evidence Act. The learned lower appellate court wrongly ignored
\n RSA No.1502 of 1989                                             20<\/span><\/p>\n
the documentary evidence by way of birth certificates of all the children<\/p>\n
born out of wed-lock.\n<\/p>\n
              For the reasons recorded above, the substantial questions of law<\/p>\n
as claimed are answered in favour of the appellant\/defendants and against<\/p>\n
the plaintiff\/respondent.\n<\/p>\n
              Resultantly, this appeal is allowed and the judgments and<\/p>\n
decree of the learned courts below are set aside and the the suit of the<\/p>\n
plaintiff\/respondent is ordered to be dismissed but with no order as to costs.<\/p>\n
 24.02.2009                                        (Vinod K.Sharma)\nrp                                                      Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Shrimati Savitri & Anr vs Krishni Alias Kreshni on 24 February, 2009 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 […]<\/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-75719","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nShrimati Savitri & Anr vs Krishni Alias Kreshni on 24 February, 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\/shrimati-savitri-anr-vs-krishni-alias-kreshni-on-24-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shrimati Savitri & Anr vs Krishni Alias Kreshni on 24 February, 2009 - 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