Punjab-Haryana High Court
Smt. Mam Kauri vs Smt. Lachmi Devi And Ors. on 25 February, 1992
Equivalent citations: (1992)102PLR657
JUDGMENT N.K. Kapoor, J.
1. This is plaintiff's Regular Second Appeal against the judgment and decree of the Courts below vide which her suit for declaration was dismissed.
2 Shrimati Mam Kauri, plaintiff filed a suit for declaration to the effect that her mother Shrimati Ratni who owned 105 kanals 14 marlas of land as per details given in the plaint, gave to her by means of oral Will in the presence of the parties and other respectable of the village and even since then, she is in possession of the suit land as its owner. The plaintiff further averred that the defendants executed affidavits on 9.12.1958 to the same effect and admitted the factum of oral Will made by Shrimati Ratni in her favour.
3. Shrimati Sajna Devi and Shrimati Birja Devi defendants con- tested the suit and filed written statement. Both the defendants denied that they have given up their claims in the suit land. As regards their signatures on affidavits, it was alleged that the same were pro- cured by misrepresentation. The defendants further averred that mutation in respect of the land left by their mother Shrimati Ratni has already been sanctioned in favour of four sisters namely plaintiff and the defendants in equal shares.
4. On the pleadings of the parties, the learned trial court framed the following issues :-
1. Whether the plaintiff is the sole owner of suit land as alleged ?
2. Whether the Talak Namas, if any, have been got executed from the defendants by misrepresentation ? OPD.
3. Whether the suit has not been properly valued for the purpose of court fee jurisdiction ? OPD.
4. Relief.
The trial Court decided Issue No. 1 against the plaintiff holding that she is not the sole owner of the land in dispute. Issue No. 2 was decided against the defendants while issue No, 3 was decided in favour of the plaintiff. Resultantly, the suit of the plaintiff was dismissed.
5. Before the appellate Court, the plaintiff filed an application seeking amendment of the plaint, which, however, was rejected on 5.11.1977. However, the lower appellate Court during course of arguments, chose to frame an additional issue and sought a report from the trial Court under Order 41 Rule 25 of the Code of Civil Procedure, Additional Issue No I. "Whether plaintiff is in possession of the land as owner since the time of death of her mother Shimati Ratni, and if so, to what effect. ? OP.
As per the report of the trial Court, the plaintiff was found in possession of the suit land. Much of the controversy revolved around Issue No. 1, the lower appellate Court, on perusal of evidence on record, came to the conclusion that all the affidavits Exhibits P-l to P-3 now made basis to claim ownership of the suit land can neither amount to memorandum of agreement based on some family arrangement nor these documents can be read in evidence, thereby concluding that the defendants have relinquished their claims in the suit property.
6. The lower appellate Court, finding no merit in the contention raised by the learned counsel affirmed the findings of the learned trial Court in respect of Issue No. 1. The finding of Issue No. 2 was also affirmed In fact, the lower appellate Court observed that this issue in view of the decision of Issue No. 1 has become redundant. As regards the finding of the learned trial Court in respect of additional Issue No. 1 that the plaintiff is in possession of the suit land, the same was held to be as a co sharer only. Thus, the appeal was dismissed and the judgment and decree of the trial court was maintained.
7. Before this Court, notice of motion was primarily issued in view of the assertion of learned counsel for the appellant to the effect that since one of the respondents had admitted the claim of the plaintiff-appellant, the suit in its in its entirety could not be dismissed by the Courts below. This, however, does not bar the counsel to assail the judgment and decree of the Courts below in any manner The learned counsel for the appellant has once again highlighted the points urged before the lower appellate Court in support of his case 'i.e: (i) the factum of oral Will; (ii) execution of affidavits Exhibits P-l. to ,P-3 by the defendants and (iii) admitted possession of the plaintiff in view of the findings of the lower appellate Court under additional Issue No. 1 and so contended that the approach of the lower appellate Court in ignoring the affidavits is palpably illegal. Much emphasis was also laid that so called affidavits ought to have been considered by the Court as a family settlement.
8. I have examined this aspect of the matter and find no merit in the same. It has not been pleaded by the plaintiff that any such family settlement or family arrangement came into existence nor there is any proof on record. The oral Will as setup by the plaintiff is unknown to law and the Courts below rightly ignored the same. Even the documents Exhibits P-l to P-3 cannot be held to be memorandum of agreement based on some family arrangement. How and in what manner these documents came into existence, is not free from an element of doubt. These affidavits cannot be considered as a relinquishment deed cither. Thus, I find no merit in any of the submission of the learned counsel for the appellant. However, since the defendant No, 1. filed the admitted written statement in the trial Court and has not put in appearance before the lower appellate Court, or before this Com t, the suit of the plaintiff qua the share of the defendant No. 1 in view of the admission made by her is liable to be decreed. I accordingly, set aside the judgment and decree of the Courts below qua Shrimati Lachhmi Devi defendant No. 1 and decree the claim of the plaintiff with regard to her share only. The plain- tiff's suit with regard to the remaining defendants No. 2 and 3 stands dismissed. The appeal is, thus, partly allowed leaving the parties to bear their own costs.