Punjab-Haryana High Court
Tej Kaur And Ors. vs Sarwan Singh And Ors. on 23 August, 2006
Equivalent citations: (2007)148PLR129
Author: Mahesh Grover
Bench: Mahesh Grover
JUDGMENT Mahesh Grover, J.
1. This is the plaintiffs-appellants' appeal against the judgments and decrees dated 19.12.1974 and 3.8.1982 passed by Sub Judge Ist Class, Bhatinda (hereinafter described as `the trial Court') and District Judge, Bhatinda (hereinafter referred to as `the lower Appellate Court'), respectively, whereby their suit for possession and the appeal to establish their claim have been dismissed.
2. Briefly stated, the facts are that Kartar Singh (father of present appellant Nos. 2 to 9 and husband of appellant No. 1), Dalip Singh (father of appellant Nos. 11,12, 15 and husband of appellant No. 14), Jangir Singh (appellant No. 10) and Smt. Kartar Kaur (appellant No. 13) and Smt. Veero (widow of Pakhar Singh) filed a suit in the year 1966 for possession of land measuring 280 kanals 12 marlas fully detailed in the heading of the plaint.
3. Appellant Nos. 10, 13 and 14 and Smt. Veero widow of Pakhar Singh have since died and are now represented by their legal representatives. Kartar Singh, Dalip Singh, Jangir Singh were the sons of one Pakhar Singh and Smt. Kartar Kaur was his daughter. The land in dispute was sold by one Inder Singh son of Kisan Singh to Bir Singh, Hira Singh sons of Bahal Singh and Kirpal Singh son of Razada Singh for a consideration of Rs. 13,000/- and the mutation qua that land was accordingly sanctioned in their favour on 20.6.1920. Pakhar Singh challenged the said sale on the ground that it was without consideration and without any legal necessity and was not binding on them. The said suit was decreed on 24.10.1921 and it was held that the descendants of Inder Singh would be entitled to get the land after his death without any payment of amount. Inder Singh died on 6.12.1965 and it was claimed that the plaintiffs (now the appellants) being his descendants were entitled to possession of the suit land.
4. In the written statement, respondent Nos. 1 to 10, who are successors-in-interest of Bir Singh and Hira Singh sons of Bahal Singh (vendees) and Kirpal Singh son of Razada Singh contested the suit to say that the plaintiffs were not the legal heirs of Inder Singh-deceased and that he had a sister, namely, Harnam Kaur, who had died leaving behind a son, Gurbax Singh and a daughter, Gurdial Kaur, who were alive and because of this reason, they (the plaintiffs and now the appellants) had no right in the land in dispute. It was further stated that the predecessors of the respondents had redeemed the suit land which was mortgaged for an amount of Rs. 10,000/-.
5. The trial Court initially framed issues on 20.5.1966, which are as follows:
1. Whether the plaintiffs are the next heirs of Inder Singh deceased and decree for declaration passed in favour of Pakhar Singh enures for the benefit of the plaintiffs? OPP
2. Whether the defendants paid Rs. 10,000/- after the declaratory decree to Partap Singh etc., mortgagees? If so, to what effect?OPD
3. Relief.
6. Vide judgment dated 31.8.1967, the suit of the appellants was decreed and it was held that they were entitled to possession of the suit land without any payment.
7. On an appeal having been filed, the lower Appellate Court, vide its judgment dated 26.2.1969 set aside the judgment and decree of the trial Court and remanded the case back unde the provisions of Order 41 Rule 23-A of the Code of Civil Procedure (for short, `the C.P.C.').
8. After remand, the issues were re-cast by the trial Court and the following issues were framed:
1. Whether the suit has been property valued for the purposes of court fee and jurisdiction? OPP
2. Whether the plaintiffs have locus standi to maintain the suit? OPD
3. Whether Gurbax Singh is the son and Smt. Gurdial Kaur is the daughter of Smt. Harnam Kaur, who was sister of Inder Singh? OP.
4. In case issue No. 3 is proved, are the plaintiffs beter heirs than Gurbax Singh and Smt. Gurdial Kaur, if not, how can they maintain the suit? OP.
5. What land had been allotted in lieu of the land which had been sold by Inder Singh during the consolidation of holdings? OP.
6. Whether the land sold by Inder Singh was not ancestral qua him and Pakhar Singh and is the said plea available to the defendants? OPD
7. Whether the defendants redeemed the land on payment of Rs. 10,000/- from the mortgagees and can they claim the same despite the declaratory decree? OPD
8. Relief.
9. Thereafter, the plaintiffs moved an application on 17.3.1969 under Order 6 Rule 17 of the C.P.C. seeking to amend their plaint. This was followed by two other applications dated 28.1.1971 and 11.3.1971 which were allowed on 25.3.1971. The trial Court then framed the following additional issues on 4.5.1971:
7-A Whether the suit is barred by order 2 rule 2?OPD 7-B Whether the suit is within time? OP.
10. It was in this back-drop that the parties led their evidence. The trial Court decided issue Nos. 1, 2, 3 and 6 in favour of the plaintiffs and issue Nos. 5, 7, 7-A and 7-B were decided in favour of the defendants. No findings were recorded on other issues in view of the findings recorded on issue Nos. 2 and 3. Consequently, the suit was dismissed. An appeal was preferred by the plaintiffs against the judgment and decree of the trial Court and the defendants also filed cross objections qua issue No. 3. The lower Appellate Court dismissed the appeal and allowed the cross objections and held that Gurbax Singh and Gurdial Kaur were the son and daughter of Harnam Kaur, sister of Inder Singh. The appellants have now filed the present appeal.
11. Shri R.K. Battas, learned Counsel for the appellants contended that earlier decree obtained by Pakhar Singh enured for the benefits of all the heirs. Inder Singh had died issueless and Gurbax Singh and Gurdial Kaur, who were alleged to be Inder Singh's sister's son and daughter had no prior right to the suit land and they had not even challenged the sale deed executed by Inder Singh. He further contended that Gurbax Singh and Gurdial Kaur were not the son and daughter of Harnam Kaur and, therefore, they were not entitled to inherit the estate of Inder Singh. Once it was so found by the trial Court, then the earlier decree rendered in favour of Pakhar Singh, the predecessor-in-interest of the appellants should have come into play and that the respondents, who have claimed that they had redeemed the mortgage allegedly suffered by Inder Singh for a sum of Rs. 10,000/-, would have no right and the Courts below have gone wrong in recording a finding on this issue. Shri Battas also vehemently contested the findings of the Courts below regarding redemption of the mortgage. He contended that the findings recorded by both the Courts regarding the identity of the land in dispute having not been established were erroneous. Learned Counsel further urged that the appellants had moved an application under Order 41 Rule 27 of the C.P.C., but the lower Appellate Court had wrongly disallowed the same. He contended that the appellants have now moved a similar application in this appeal by which he intends to show that khasra Nos. 333R/24, 346/4, 347R/8 and 13 were omitted from the revenue entries and khasra Nos. 332R/18/1/2, 23/1, 19/1, 18/2, 347R/3/1/1, 3/2/1 and 3/3/1 were mentioned because khasra numbers which were omitted, were, in fact, exchanged and they wanted to bring this position on record to explain the omission. Along with this application, the appellants also want to produce the judgment dated 20.12.1974 of the civil Court rendered in civil suit No. 72 of 29.10.1974 to say that Jangir Singh, Kartar Singh and Kartar Kaur were declared to be the legal heirs of deceased-Inder Singh. Shri Battas contended that the application for additional evidence may be allowed as this goes to the root of the matter and the case should be remanded back for decision afresh in pursuance of provisions of Order 41 Rule 23-A of the C.P.C. and a report on this limited aspect be sought from the trial Court so as to erase the prejudice caused to the appellants. In support of his contention, he reliance on the judgments reported as - K. Venkataramaikah v. Seetharama Reddy and Ors. 1990 P.L.J. 599 (P.&H.) - Sh. Daya Nand Dahiya v. Shialu Singh 1992 (1) PLR 108- Savitri and Ors. v. Manphool and Ors. 1992(2) P.L.R. 205 -Gurnek Singh and Anr. v. Gurbachan Singh and Ors. - Billa Jagan Mohan Reddy and Anr. v. Billa Sanjeeva Reddy and Ors. - Sarada (Smt.) and Ors. v. Manikkoth Kombra Rajendran - Trumala Tirupati Devasthanams v. K.M. Krishnaiah and 2001(2) R.C.R.(Civil) 419- State of Rajasthan v. T. Sahani. It was then contended by the learned Counsel that the land was ancestral and it could not have been alienated and even if the entire findings as given by the Courts below are taken to be correct, even then, the portion of the land which has been redeemed is marginal and that would not change the nature of the entire land. In support of this contention, he relied upon the judgment of this Court reported as 1961 P.L.R. 875 -Teja Singh and Ors. v. Mst. Bishan Kaur and Ors., wherein it was held as under:
Where the ancestral and non-ancestral lands are mixed up, there is no rule of universal application, to determine the nature of the entire lot; where the ancestral and non-ancestral lands are inextricably mixed up and it is not possible to tell what proportion one class of the land bears to the entire holding, and it is also difficult to premise about the valuation of the respective parcels of land which may be regarded as ancestral and non-ancestral, the whole lot is to be considered as nonancestral. But where the portion of the non-ancestral or ancestral land is so small as to form a negligible portion to the other, the entire land may be held to bear the character of the substantial portion.
12. On the other hand, Shri Sanjiv Manrai, learned Counsel for the respondents contended that both the Courts had recorded a concurrent finding of fact that the mortgage had been redeemed on payment of the requisite amount of Rs. 10,000/- and Gurbax Singh and Gurdial Kaur had appeared as witnesses and had supported their case. He submitted that the findings of the lower Appellate Court regarding the relationship of these two witnesses being the son and daughter of Harnam Kaur, sister of Inder Singh was established beyond doubt. He then contended that even otherwise, the earlier decree was merely a declaratory decree to which the respondents were not party and, therefore, it did not bind them. Shri Manrai argued that there was no case for allowing the application under Order 41 Rule 27 of the C.P.C.at this stage because the similar application moved before the lower Appellate Court to bring this very evidence on record had been rejected and the second application on the same cause does not lie. He then contended that the suit was decided on 19.12.1974 and the lower Appellate Court had decided the appeal on 3.8.1982 and the present application has been filed on 12.10.2004. Learned Counsel submitted that apart from the fact that the application is belated, the appellants should not be allowed to invoke the provisions of law to fill in the lacuna which has been left by them and it is apparently an attempt to cover up the deficiency in view of the categoric findings of the Courts below.
13. I have thoughtfully considered the contentions of the learned Counsel for the parties and have minutely gone through the record. In order to understand the relationship of the plaintiffs (now represented by the appellants) with Inder Singh, the pedigree table as extracted below:
Dula Singh ______________________________________|___________________________________ | | | Sammund Singh Sada Singh Tilok Singh | | | Kisan Singh Ghulla Singh ______________________| | | | Inder Singh Mastan Singh Harnam Singh (Vendor died on 6.12.65) | | Nar Singh | | ______________________________________________| | | Pakhar Singh Narain Singh | | | Smt.Rajo | (Widow) | (Died) _______________________________________________________________ | | | | | Smt.Veero Kartar Kaur Jangir Singh Dalip Singh Kartar Singh (widow) (daughter) (son) (son) (son)
-------------------------- (Plaintiffs) ----------------------------
14. It is apparent from the perusal of the record that the appellants, apart from failing on other fronts, had also failed to establish the identity of the suit land. The basis of the present suit was that Inder Singh son of Kishan Singh had sold the land upon which mutation Exhibit P5 had been entered. No specific khasra numbers had been detailed in this, but only khata numbers had been given. Exhibit P8 is the decree in which suit filed by Pakhar Singh was decreed on 24.10.1921. This decree contains khasra numbers qua which the decree had been passed. The appellants produced the revenue record in the shape of mutation entries and the entries from the record of rights. Exhibits P10 to P17 pertains to the record of rights for the years 1919-20 to 1942-43. Exhibit P18 is the copy of Khatoni, Exhibit P19 is the copy of Haqdarwar and Exhibit P20 is the copy of consolidation proceedings. Khasra Nos. 2982 and 2983 have been detailed in the decree Exhibit P1, but, these do not find mention in the copies Exhibits P10 to P18 and then khsara Nos. 3056, 3057 and 3095/2 have been shown in Exhibit P10, whereas in Exhibit P1, khasra No. 3065 has been mentioned instead of khasra No. 3056. Even khasra Nos. 3056 and 3057 do not find mention in Exhibit P11 and thereafter. Similarly, there are discrepancies in other records as well and khasra numbers mentioned in Exhibits P1 and P5 do not tally. The appellants failed to establish the identity of the suit land and it may not be out of place to mention here that they had amended the plaint thrice. In the first plaint filed on 5.1.1966, the claim was for 320 kanals 17 marlas, in the second plaint filed on 11.4.1969, it was qua 284 kanals 18 marlas and in the third plaint filed on 1.4.1971, the appellants claimed possession of 280 kanals 12 marlas of land. There was, thus, huge discrepancy in the claim and identity of the land was also suspect.
15. It is this discrepancy which is now sought to be removed by the appellants by moving an application under Order 41 Rule 27 of the C.P.C. to say that some portion of the land, specially the land comprised in khasra Nos. 346/4, 347R/8 and 13 were,in fact, exchanged. The appellants also failed to establish as to which khasra numbers were allotted in lieu of the land which was the subject-matter of the earlier decree after the consolidation proceedings.
16. It is, therefore, established that the appellants have failed to establish the identity of the land and both the Courts have recorded a concurrent finding to this effect which is a finding of fact and cannot be interfered with. The finding is neither perverse nor can it be said that it has been arrived at without appreciation of the facts. It was for the appellants to establish their claim qua the land, possession of which they were seeking. Having amended the plaint thrice, it cannot be said that they were ignorant of this fact. Sufficient opportunities had been granted to them to adduce evidence. In any case, the whole case of the appellants rested on the establishment of the identity of the land and the relationship of Gurbax Singh and Gurdial Kaur with Inder Singh and it cannot be said that despite exercise of due diligence, they could not produce the evidence which is now sought to be adduced by way of additional evidence at this stage. Even otherwise, the trial Court had decided the case in the year 1974 and the lower Appellate Court decided the appeal in 1982. The present application has been moved after 12 years. Apparently, it is an attempt to circumvent the findings of the Courts below, rather than a bona fide attempt to establish the claim of the appellants.
17. It may be mentioned that the Supreme Court as long back as in 1963 in K. Venkataramiah v. A. Seetharama Reddy pointed out the scope of unamended provisions of Order 41, Rule 27(c) of the C.P.C. in the following words:
Under Rule 27(1), the appellate court has the power to allow additional evidence not only if it requires such evidence `to enable it to pronounce judgment', but also for `any other substantial cause'. There may well be cases where even though the Court finds that it is able to pronounce the judgment on the state of the record as it is, and so, it can not strictly say that it requires additional evidence to enable it to pronounce the judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under Rule 27(1)(b) of the Code.
Such requirement of the court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. AIR 1931 PC 143 Rel. on.
18. In State of Rajasthan v. T. Sahani (supra), their Lordships of the Supreme Court, while referring to judgment in K. Venataramiah v. A. Seetharama Reddy (supra), observed as under:
This is entirely for the Court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the Court to look into the documents and for that purpose amended provisions of Order 41, Rule 27(b) of the C.P.C. can be invoked.
19. There can be no dispute with the law laid down in the judgments relied upon by the learned Counsel for the appellants in support of the prayer for adducing additional evidence, but, the facts of this case and for reasons aforesaid, no concession can be granted to the appellants and their prayer for additional evidence cannot be acceded to.
20. Concededly, the land in question was mortgaged. Out of the total consideration of Rs. 13,000/-, which is evident from the perusal of Exhibit P1, Rs. 10,000/- were retained in the hands of the vendees for discharging the mortgage debt due to Partap Singh, the mortgagee. Partap Singh sold the mortgagee rights which were acquired by Jasmer Kaur, Jangir Singh, Raghbir Singh and Balbir Singh. This mortgage was redeemed from Partap Singh as well as from Jasmer Kaur etc. on payment of Rs.10,000/-. There are revenue entries to that effect recording redemption vide mutation No. 9479 dated 7.11.1950 (Exhibit D3) and mutation No. 9994 dated 24.12.1953 (Exhibit D4). The redemption itself was made after the passing of decree Exhibit P8. The respondents were not party to this decree (Exhibit P8) and, therefore, are not bound by the same. They had validly redeemed the land in question and there would be no bar on their claiming it despite the declaratory decree in favour of the plaintiffs.
21. So far as the contention of the learned Counsel for the appellants that the entire land was ancestral and, therefore, it could not alienated by Inder Singh is concerned, I do not find any merit in the same. As noticed above, the appellants have miserably failed to establish the identity of the land in question and, therefore, it is not possible to hold that the same was ancestral. There is absolutely no evidence to show the identity of the land which would tally with the land mentioned in the declaratory decree Exhibit P8. Therefore, the judgment of this Court in Teja Singh's case (supra) does not enhance the case of the appellants.
22. The contention of the learned Counsel for the appellants regarding relationship of Gurbax Singh and Gurdial Kaur with Inder Singh being the son and daughter of his sister, Harnam Kaur, has also no force. Both the Courts have recorded concurrent finding on this aspect and the same cannot be interfered with in the Regular Second Appeal as has been held by the Supreme Court in the judgments reported as - G. Mahalingappa v. G.M., Savitha and 2005(10) S.C.C. 553- Madhavan Nair v. Bhaskar Pillai (Dead) by Lrs. Moreover, a perusal of the record shows that the finding with regard to the relationship of Gurbax Singh and Gurdial Kaur with Inder Singh is perfectly in order. Gurbax Singh entered into the witness box as DW8 and Gurdial Kaur appeared as DW11. Both of them testified that Sucha Singh was their father and Harnam Kaur was their mother and that they were born in Malaya and that they had returned to India when they were about 5/7 years old. Exhibit D5 is the certified copy of the death certificate of Harnam Kaur wife of Sucha Singh resident of Jalal, who died on 2.2.1959 and about six years before the death of Inder Singh. Exhibits D10 and D11 are the certified copies of the relevant entries of Birth Register pertaining to the births of Gurbax Singh and Gurdial Kaur entered in Malyasia. According to Exhibit D10, a female child was born on 6.3.1931 and the parents' names are mentioned as `Suchia Singh' and `Annam Kol'. The description of Sucha Singh has been given as watchman as `Shik Indian', whereas Annam Kol as `Shik Indian'. The lower Appellate Court has rightly discussed these documents and as held that the names of Sucha Singh and Harnam Kaur could have been mentioned like this in a foreign country, like Malyasia.
23. Even the word `Sikh" has been spelt wrongly as `Shik'. I do not find any infirmity in the finding recorded by the lower Appellate Court to hold that Gurbax Singh and Gurdial Kaur were the son and daughter of Harnam Kaur, who was the sister of Inder Singh. This Court, in the Regular Second Appeal, can not re-appraise the evidence on record, as has been held by their Lordships of the Supreme Court in the judgments reported as -Thiagarajan and Ors. v. Sri Venugopalaswamy B.Loil and Ors. and - Govindaraju v. Mariamman. Even the sufficiency or insufficiency of evidence relied upon by the Courts below cannot be treated as a question of law as held by the Supreme Court in the judgment reported as 2005(10) S.C.C. 169-State of Karnataka v. Kamalabai. Thus, no substantial question of law has arisen which may be determined in this appeal.
24. No other point has been argued.
25. On the basis of the above discussion, I do not find any ground to interfere with the judgments and decrees passed by the Courts below which are accordingly upheld and the appeal being devoid of any merit is dismissed. The application for additional evidence also stands dismissed.