Punjab-Haryana High Court
Sher Singh And Others vs Loharti And Others on 7 October, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
VINOD KUMAR
2014.10.16 12:43
I attest to the accuracy and
authenticity of this document
Chandigarh
SAO No.19 of 2013 [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
SAO No.19 of 2013
Date of decision:07.10.2014
Sher Singh and others ...Petitioners
Versus
Lohrati and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. S.P.Chahar, Advocate,
for the petitioner.
Mr. Jitender Nara, Advocate,
for respondent no.1.
*****
RAKESH KUMAR JAIN, J.
This appeal is filed against the order of remand.
In brief, respondent no.1-plaintiff filed the suit for declaration and joint possession alleging that her grandfather Mania died on 02.10.1963 and mutation no.659 was sanctioned on 09.06.1964 as per which she along with her three sisters, namely, Bhateri, Bhani and Bharto inherited the property of pre-deceased son of Mania, namely, Mam Chand. Two copies of mutation were prepared; one is kept by Halqa Patwari and another for maintaining the record in the office of Assistant Collector 2nd Grade. The copy which is maintained in the office of Assistant Collector 2nd Grade is called Parat Sarkar and the copy kept by Halqa Patwari is called Parat Patwar. The revenue authorities did not maintain the uniformity in their VINOD KUMAR 2014.10.16 12:43 I attest to the accuracy and authenticity of this document Chandigarh SAO No.19 of 2013 [2] ***** records at both levels and the name of the plaintiff was found missing at the time of preparation of Parat Sarkar of mutation no.659 but her name was appearing in the Parat Patwar. As soon as the plaintiff came to know about the said anomaly, she brought the suit on 27.09.2005 and challenged all the subsequent transactions made by her sisters during the intermittent period. During the course of evidence, the plaintiff tendered in evidence Parat Patwar of mutation no.659 as Ex.P1 but the suit was dismissed by the trial Court mainly on the ground that she had failed to produce Parat Sarkar on the record.
The plaintiff, while filing the appeal against the judgment and decree of the trial Court dismissing her suit, filed an application as well under Order 41 Rule 27 of the Code of Civil Procedure, 1908 to lead additional evidence by way of placing on record copy of Parat Sarkar of mutation no.659 dated 09.06.1964.
The lower Appellate Court allowed the appeal and remanded the case back to the trial Court to decide it afresh, saving the evidence already brought on record, with a further direction to deal with the prayer for additional evidence by passing an appropriate order thereupon by considering that the application has been moved independently before the trial Court itself.
Counsel for the appellants has argued that the lower Appellate Court has committed an error in remanding the case as neither the additional evidence was allowed by the lower Appellate Court nor any specific direction was issued as to on which issue the trial Court has to return a VINOD KUMAR 2014.10.16 12:43 I attest to the accuracy and authenticity of this document Chandigarh SAO No.19 of 2013 [3] ***** specific finding.
On the other hand, learned counsel for respondent no.1 has submitted that it is a dispute between sisters regarding estate left behind by their grandfather and an error has been made by the revenue department who maintains two copies of the mutation; one kept in the office of Halqa Patwari called as Parat Patwar and another in the office of the Assistant Collector 2nd Grade, called as Parat Sarkar. Since the name of respondent no.1 was there in the Parat Patwar and not in the Parat Sarkar, therefore, the other three sisters were alienating the suit property, leading to filing of the suit at the instance of respondent no.1 which was dismissed by the trial Court only for the reason that copy of Parat Sarkar could not be brought on record, which has been filed by respondent no.1-plaintiff by way of additional evidence before the lower Appellate Court. It is thus submitted that there was no error committed by the lower Appellate Court as the evidence, which has already been brought on record, has been saved and it is only the Parat Sarkar regarding which the application for additional evidence has to be considered independently by the trial Court.
After hearing learned counsel for the parties and examining the record, I am of the considered opinion that there is no error in the order of the lower Appellate Court because it is a case where all the four daughters of Mam Chand, who pre-deceased his father Mania, were to succeed to the property in dispute and a mutation no.659 was also sanctioned in which name of respondent no.1-plaintiff is shown in the Parat Patwar but was missing in the Parat Sarkar, which though is a copy of the said mutation. VINOD KUMAR 2014.10.16 12:43 I attest to the accuracy and authenticity of this document Chandigarh SAO No.19 of 2013 [4]
***** The entire case hinges upon the document, namely, Parat Sarkar of mutation no.659 which was not brought on record before the trial Court but brought before the lower Appellate Court and since it is a document coming from the custody of the revenue department, it cannot be said that the document could be manufactured at the instance of the respondent no.1-plaintiff. The lower Appellate Court, realizing the gravity of the matter, while setting aside the judgment and decree of the trial Court by which suit of the plaintiff was dismissed, remanded the case for determination of the controversy afresh, saving the evidence already available on record, giving a specific direction to the trial Court to deal with the application for additional evidence independently and decide the fate of the plaintiff, who has also claimed to be one of the heirs of Mam Chand being his daughter like defendants no.1 to 3 in the suit.
Accordingly, there is hardly any error committed by the lower Appellate Court in passing the order under challenge. Resultantly, the present appeal is found to be without any merit and the same is hereby dismissed.
October 07, 2014 (Rakesh Kumar Jain) vinod* Judge