Punjab-Haryana High Court
Neelam Rani & Ors vs Smt.Mainka @ Maina Devi & Anr on 10 March, 2014
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Revision No.1782 of 2014 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Civil Revision No.1782 of 2014
Date of Decision:- 10.03.2014
Neelam Rani & Ors.
.....Petitioners
Versus
Smt.Mainka @ Maina Devi & Anr.
.....Respondents
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.Atul Lakhanpal, Senior Advocate with
Ms.Neha Lakhanpal, Advocate for the petitioners.
MEHINDER SINGH SULLAR , J.(oral)
The challenge in this revision petition, by petitioners- defendants No.2 to 4 Neelam Rani, daughter of Rajender Prasad and others (for brevity "the defendants"), is to the impugned order dated 18.2.2014 (Annexure P6), by virtue of which, the trial Court has directed the plaintiff & defendant Nos.2 to 4 to appear before the Civil Surgeon to give their samples for D.N.A. Test.
2. After hearing the learned counsel for the petitioners, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant petition in this context.
3. Ex facie, the argument of learned counsel that since no ground is made out, so, the trial court committed the legal mistake to direct the parties, to undergo the DNA Test, lacks merit.
4. As is evident from the record that initially, respondent-plaintiff Smt.Mainka alias Maina Devi d/o Rai Sahab son of Shishpal (for short "the Arvind Kumar Sharma 2014.03.13 18:01 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.1782 of 2014 2 plaintiff"), has instituted the civil suit (Annexure P1) for a decree of declaration to the effect that she is joint owner and in possession of the land in litigation, being the daughter and only legal representative of Rai Sahab, who had died on 5.4.1986 and the mutation No.1470 regarding transfer of the suit land in favour of defendants, on the basis of any alleged civil court decree passed in case No.16 dated 25.2.2008, is a result of fraud, illegal, null, void and not binding on her rights. That means, the plaintiff is claiming her right in the property in dispute, being the daughter/LR of Rai Sahab s/o Shishpal, whereas the defendants have stoutly denied her claim and pleaded themselves to be his LRs. Thus, the grand parents of plaintiff and defendant Nos.2 to 4 are common. The blood relationship between the indicated parties, inter-alia, would be a moot point to be decided after receiving the evidence of the parties during the course of trial by the trial Court. In that eventuality, in order to prove their relationship, the scientific DNA Test is very much essential to arrive at the truth and to decide the real controversy between them to effectively adjudicate the present suit. Moreover, no prejudice is going to be caused to the defendants in this regard.
5. Therefore, the trial Court has correctly allowed the application (Annexure P4) for DNA Test of plaintiff & defendants No.2 to 4, in view of ratio of law laid down by Andhra Pradesh High Court in cases Soma Rama Chandram v. State of Andhra Pradesh and others 2013 (3) RCR (Civil) 707; Buridhi Vanajakshmi v. Buridhi Venkata Satya Varaha Prasad Gangadhar Rao and another 2010(4) Civil Court Cases 130; Delhi High Court in case Rohit Shekhar v. Narayan Dutt Tiwari and another 2012(2) RCR (Civil) 1011; Kerala High Court in cases Sathya Raj v. Jayaprakash 2009(1) RCR Arvind Kumar Sharma 2014.03.13 18:01 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.1782 of 2014 3 (Civil) 516; Joseph v. State of Kerala and Others 2006(2) RCR (Civil) 801 and Madhya Pradesh High Court in case Smt. Savitabai w/o Chandrabhan v. Chandrabhan Dubey 2006 AIR (M.P.) 135, through the medium of impugned order (Annexure P6), which, in substance, is as under (para 6):-
"Presently, the suit is at the stage of rebuttal evidence and argument. Both the parties have led their evidence. Defendants have categorically denied the fact that applicant/plaintiff is daughter of deceased Rai Sahab, who was real brother of Rajender Prasad (husband of defendant no.1 and father of defendants no.2 to 4). The main contention of learned counsel for the respondents/defendants is that plaintiff is to prove her case by leading evidence and defendants cannot be forced to undergo the D.N.A. Test. It is correct that plaintiff is to stand on his/her own legs, but, when a fact can be ascertained conclusively by making use of modern scientific technique, then, merely on this ground instant application cannot be dismissed. There is no harm in using advanced scientific technique when they are going to help the court in adjudication of the case in better way. It is well known that the first cousin D.N.A. Test will establish whether two individuals share a common ancestor- which in the case of first cousins will be their grandparents. Secondly, learned counsel for the respondents/defendants has argued that first, applicant/plaintiff is to prove marriage of her mother with the Rai Sahab and her relationship with Rai Sahab comes into picture after proof this fact. The court is of view that if applicant/plaintiff successfully proves marriage of her mother with Rai Sahab, then also, she has to prove her relationship with the Rai Sahab because proof of marriage of her mother with Rai Sahab will not automatically prove her relationship with Rai Sahab as two marriages were solemnized by her mother. After D.N.A. Test, relationship of applicant/plaintiff will be crystal clear with Rai Sahab without any if and but. It has also been argued by learned counsel for respondents/defendants that in view of the judgment of Hon'ble Supreme Court pronounced in the case titled as Shri Banarsi Dass Versus Mrs. Teeku Dutta and Anr. D.N.A. Test is not to be directed as a matter of routine and only in deserving cases. Keeping in view the facts and circumstances of the present case the court is of considered view that it is a proper case where D.N.A. Test should be conducted for proper adjudication of the matter in dispute."
6. Meaning thereby, the trial Court has examined the matter in the right perspective and recorded the cogent grounds in this relevant direction. Such order, containing valid reasons, cannot legally be set aside, in exercise of superintendence power of this Court, as envisaged under Article 227 of Arvind Kumar Sharma 2014.03.13 18:01 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.1782 of 2014 4 the Constitution of India, unless the same is perverse and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioners, so, the impugned order (Annexure P-6) deserves to be and is hereby maintained in the obtaining circumstances of the case.
7. No other point, worth consideration, has either been urged or pressed by the counsel for the petitioners.
8. In the light of aforesaid reasons, as there is no merit, therefore, the instant petition filed by the petitioners-defendants is hereby dismissed as such.
Sd/-
10.3.2014 (MEHINDER SINGH SULLAR)
AS JUDGE
Whether to be referred to reporter ? Yes/No
Arvind Kumar Sharma
2014.03.13 18:01
I attest to the accuracy and
integrity of this document
Chandigarh