Punjab-Haryana High Court
Pappu @ Raghbir And Another vs Santosh Devi on 7 August, 2023
Neutral Citation No:=2023:PHHC:109833
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CM-8532-C of 2023 in/and
RSA-2532 of 2023 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CM-8532-C of 2023 in/and
RSA-2532 of 2023 (O&M)
Date of decision: 07.08.2023
Pappu @ Raghbir and another
......Appellants
Versus
Smt. Santosh Devi
......Respondent
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: - Mr. Mukesh Yadav, Advocate,
for the applicant-appellants.
NAMIT KUMAR, J.
1. This Regular Second Appeal has been preferred by
defendant-appellants against the judgment and decree dated 22.12.2021
passed by the Court of learned Additional District Judge, Narnaul,
whereby appeal of the plaintiff-respondent against the judgment and
decree dated 28.09.2016 passed by the Court of learned Civil Judge
(Junior Division), Mohindergarh, dismissing her suit for declaration
and permanent injunction, has been accepted and her suit stands
decreed.
2. The Parties to the suit hereinafter would be referred as per
their nomenclature before learned lower court.Plaintiff filed a suit for
declaration and permanent injunction pleading therein that she is
exclusive owner in possession of 1/5th share in agricultural land
comprising in Khewat No. 12, Khatoni No. 17 & 18, field 51
measuring 305 Kanal 3 Marla, 19/1720 share out of land bearing
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Khewat No. 35, Khatoni No. 45, field 1 measuring 0 Kanal 12 Marla,
19/1720 share out of Khewat No. 37, Khatoni No. 47, field 3 measuring
1 Kanal 10 Marla, 19/1720 share out of Khewat No. 123, Khatoni No.
146, field 2 measuring 1 Kanal 2 Marla situated within the revenue
estate of village Sisoth, Tehsil & District Mohindergarh vide jamabandi
for the year 1974-75. Similarly, the plaintiff is exclusive owner in
possession of 1/5th share in the estate of deceased Bhikha Ram in
agricultural land comprising in Khewat No. 22, Khatoni No. 25 & 26,
field 33 measuring 222 Kanal 8 Marla with other land in village Sisoth,
Tehsil & District Mohindergarh as well as 1/5th share in Khewat No.
89, Khatoni No. 94 to 101, Khewat No. 255, Khatoni No. 262 situated
within the revenue estate of village Sisoth, Tehsil & district
Mohindergarh vide jamabandi for the year 2009-10 (hereinafter, the
suit land). The suit land is ancestral coparcenary Hindu Joint Family
property wherein the plaintiff has birth right being sole legal heir of
deceased Bhikha Ram. The father of the plaintiff Bhikha died on
9.2.1967. The plaintiff at that time was in the womb of her mother
Chalti Devi. She was born on 5.5.1967. Chalti Devi after 8 years of the
death of Bhikha solemnized Kerawa marriage with Ranga Ram brother
of deceased Bhikha. From aforesaid wedlock defendant no.1 Pappu was
born. The date of birth of Pappu is recorded in school record as
4.4.1975. The defendants have no right title or interest in the suit land.
The mutation of inheritance bearing no.577 dated 29.11.1979 is in
contravention of law and actual state of affairs. The aforesaid mutation
is null and void and not binding on the right of the plaintiff. The
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revenue record prepared on the basis of aforesaid mutation is also null
and void. The defendants are bent upon to interfere in the peaceful
possession of the plaintiff over the suit land. On the basis of foregoing
pleadings plaintiff has prayed that plaintiff be declared exclusive owner
in possession of suit land to the extent of his share. The mutation
no.577 dated 29.11.1979 be declared null and void and subsequent
revenue record prepared on the basis of mutation no.577 dated
29.11.1979 be also declared illegal null and void. Defendants were
proceeded against ex parte by the trial court vide order dated
30.5.2012. 6 Plaintiff for proving her case examined three witnesses.
The trial Court after hearing learned counsel for the plaintiff and
considering the evidence on record dismissed the suit of the plaintiff
vide judgment and decree dated 28.09.2016.
3. Aggrieved against the judgment and decree dated
28.09.2016 plaintiff preferred an appeal before the lower appellate
Court, which has been accepted and suit of the plaintiff stands decreed
vide impugned judgment and decree dated 22.12.2021.
4. Learned counsel for the appellants contended that
judgment and decree passed by the lower appellate Court is wrong,
illegal and is based on surmises and conjectures. He further contended
that appellants were never summoned nor they were aware of the
proceedings and the impugned judgment and decree has been passed in
their absence. He further contended that appellants were not given an
opportunity to produce evidence with regard to mutation sanctioned in
their favour. He further contended that plaintiff-respondent failed to
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show that she is the daughter of Bhikha Ram. Her mother's name was
not mentioned in the plaint nor in the Birth Certificate Ex.P-2. The trial
Court has not touched the issue of maintainability of suit which was
filed after huge delay of 35 years. The manner in which inheritance of
land was done in her favour could not be proved. He further contended
that judgment and decree passed by the lower appellate Court being
illegal is liable to be set aside.
5. I have heard learned counsel for the appellants and
perused the record.
6. Contention of learned counsel for the appellants that
appellants were not summoned by the trial Court and lower appellate
Court is not sustainable as trial Court judgment would clearly shows
that appellants were duly served and lower appellate Court order dated
14.12.2016 regarding completion of service reads as under: -
"Present: Shri R.K. Sanghi, Adv. for the appellant.
Shri Anant Yadav Adv. For the respondents
no.1 and 2.
Shri Anant Yadav Adv. has filed Vakalatnama
on behalf of the respondents no.1 and 2. Service
completed. Now to come up on 18.03.2017 for arguments.
LCR be also called for the date fixed.
(Fakhruddin),
ADJ, Narnaul. 14.12.2016."
7. Perusal of the zimni order dated 14.12.2016 shows that
appellants were duly served and vakalatnama was filed on their behalf
by Sh. Anant Yadav, Advocate. They chose not to appear and were
ordered to be proceeded against ex parte by the lower appellate Court
vide order dated 03.12.2021. Perusal of record shows that Bhikha Ram
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son of Mangtu died on 9.2.1967 during lifetime of Mangtu leaving
behind plaintiff and plaintiff's mother Chalti Devi. The birth certificate
of plaintiff Ex.P2 shows that a girl (plaintiff) was born to Bhikha on
5.5.1967. Mutation of inheritance of Mangtu bearing no.577 dated
29.11.1979 proves that girl (plaintiff/respondent) is daughter of Bhikha
and Chalti Devi. Perusal of mutation no.577 dated 29.11.1979 further
makes it clear that Mangtu's share in suit land devolved upon Santosh
daughter, Chalti widow of deceased Bhikha. The share of Mangtu that
devolved on Bhikha was inherited by wife Chalti and daughter Santosh.
Lower appellate Court has rightly observed that mutation no.577 dated
29.11.1979 showing Pappu as son of Bhikha on the face is wrong and
illegal because Pappu was born on 4.4.1975 out of wedlock of Chalti
and Ranga Ram (brother of Bhikha Ram) almost after 8 years of death
of Bhikha. Therefore, from no stretch of imagination it can be said that
Pappu was the son of Bhikha. Pappu is son of Rangram and Chalti
Devi. Therefore, he has no right title or interest to inherit the share of
Bhikha that devolved after death of Mangtu father of Bhikha. The
subsequent revenue record prepared by revenue authorities on the basis
of mutation bearing no.577 that Pappu defendant no.1 is son of Bhikha
has rightly been held to be illegal, null and void by the lower appellate
Court as Pappu is not son of Bhikha but is son of Rangram. Therefore,
the suit of the plaintiff-respondent has rightly been decreed by the
lower appellate Court.
8. No question of law much less substantial question of law
has been raised or arises for consideration in this appeal.
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9. Moreover, there is inordinate delay of 368 days in filing
the present appeal for which no plausible explanation has been given by
learned counsel for the appellants.
10. In view of the above, present appeal is dismissed on merits
as well as on the ground of limitation.
(NAMIT KUMAR)
07.08.2023 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
Neutral Citation No:=2023:PHHC:109833
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