Punjab-Haryana High Court
Gian Chand And Ors vs Ram Dayal on 3 April, 2024
Neutral Citation No:=2024:PHHC:046904
RSA-1616-1993 (O&M). -1- 2024:PHHC:046904
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH.
132
RSA-1616-1993 (O&M).
Date of Decision: 03.04.2024.
GIAN CHAND AND OTHERS
... Appellants
Versus
RAM DAYAL
... Respondent
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ.
Present: Mr. Naveen Kumar, Advocate, for
Mr. A.P. Bhandari, Advocate,
for the appellants.
Respondent ex parte
VINOD S. BHARDWAJ, J (ORAL).
Appellants-defendants have preferred the present Regular
Second Appeal against the judgment and decree dated 22.05.1993 passed in
Civil Appeal No.169 of 1993 whereby the Additional District Judge,
Faridabad, has set aside the judgment and decree dated 16.05.1991 passed
by the Court of Sh. Ashok Bhardwaj, HCS, Sub Judge First Class, Palwal,
passed in Civil Suit No.963 of 27.09.1985 dismissing the suit.
2 Briefly summarized, the facts of the present case are that
respondent-plaintiff had filed a suit for declaration and for possession as a
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consequential relief averring that Sh. Lohari son of Jugla son of Bhawani
resident of Village Baghola was earlier owner in possession of the suit
properties. The aforesaid Lohari died issueless and was succeeded by his
widow Sompti. That Gunga father of the respondent-plaintiff and Lohari
were the sons of Sh Jugla and were hence brothers. After the death of
Sompti, respondent-plaintiff being the nearest heir of Lohari became owner
of the suit properties left by Lohari and Sompti. It is further averred that one
Mamraj father of appellants-defendant No. 1 and 2 was son of daughter of
Jugla and sister of Gunga and Lohari. Mamraj was brought up by Lohari
and Gunga and he also settled with his maternal uncle in the village.
Appellants-defendants No.1 & 2 Gian Chand and Dubban, the sons of
Mamraj were residing in village Baghola. The appellants-defendants No. 1
and 2 forcibly took the possession of the house described in the plaint after
the death of Sompti despite having no right, title or interest in the suit
property and they got the mutation sanctioned in their favour. The said suit
was accordingly filed for seeking a declaration and the possession as a
consequential relief claiming themselves to be the owners of the house.
3 On notice, the defendants entered appearance and filed written
statement taking various preliminary objections regarding the locus standi,
cause of action and maintainability amongst others. It was admitted that
Lohari was owner in possession of the suit property and submitted after his
death, the same was inherited by Sompti mother of defendant No.3 and after
her death, defendant No. 3 became owner of the suit property by inheritance
through mutation No. 3121 dated 18.3.1986. It was averred that defendant
No. 3 Dhakali had been born out of the wedlock of Lohari and Sompti and
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she was the only legal heir to succeed the properties left by deceased
Sompti. It was denied that there was any relationship between Lohari and
Gunga or that they were brothers as claimed by the respondent-plaintiff and
stated that Lohari was the only son of Jugla. The claim of the respondent-
plaintiff as nearest heir of Sompti was also denied. It was averred that
defendant No. 3 being the daughter of Lohari and Sompti was the only legal
heir to succeed to the estate left by Sompti and she became absolute owner
of the suit property after her death. It was averred that the appellants-
defendants No. 1 and 2 Gian Chand and Dibban were not brought up by
Lohari and Gunga nor marriage of Mamraj was performed by Lohari and
Gunga. It was thus denied that the respondent-plaintiff had any right title or
interest in the suit property.
4 Replication controverting the stand taken by the appellants-
defendants was filed and on completion of the pleadings, the following
issue were framed:-
1. Whether the plaintiff is owner in possession of the plot as
mentioned in para No. 1 of the plaint? OPP.
2. Whether the plaintiff is the owner of the house as described
in para No. 2 of the plaint? OPP
3. Whether the defendant No. 3 is the daughter of Lohari and
Sompti as alleged? OPP
4. Whether the plaintiff has no locus-standi to file the suit?
OPP
5. Whether the plaintiff has no cause of action? OPP
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6. Whether the suit is not maintainable as alleged?
7. Whether the defendants are entitled to special costs u/s 35A
of CPC ? OPP
8. Relief.
5 Issue No.3 as to whether the defendant No. 3 is the daughter of
Lohari and Sompti was taken up by the Sub Judge First Class, Palwal and
upon consideration of the evidence, it was recorded that the plaintiff as well
as defendants No.1 and 2 admitted that the appellants-defendants No.1 and
2, were sons of Mamraj and Mamraj was son of sisters of Gunga and
Lohara. Appellants-defendants No.1 and 2 also stated that Dhakeli
defendant No.3 was the daughter of Sompti and that she was born out of the
wedlock of Lohara with Sompti. Hence, the said witness had special means
to prove the relationship between Dhakeli defendant No.3 and Sompti
deceased being in close relations. As against the testimony of the said
witnesses, the respondent-plaintiff relied on the evidence of PW.3 Jairam
and PW.4 Ram Chand who were the residents of the same village but had
no special means to prove that the Dhakeli was not the daughter of Sompti.
They had only come to depose in favour of the respondent-plaintiff. Their
testimony was thus disbelieved and defendant No.3-Dhakeli was held to be
the daughter of Sompti from the loins of Lohara. The said statements were
further supported by sanction of a contested mutation EX.P-1 on 18.03.1986
in her favour. Further, the Shajra Nasab of the mutation clearly shows that
Dhakeli was daughter of Sompti widow of Lohara whereas the respondent-
plaintiff was son of Gunga. At the time of mutation, the respondent-plaintiff
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were recorded to have not raised any objection to the same. On
consideration of the said evidence, the issue was decided in favour of the
defendants and against the respondent-plaintiff.
6 Thereafter, while taking up issues No.1 and 2 in relation as to
whether the respondent-plaintiff was owner in possession of the plot/house
as detailed in the plaint or not, the Sub Judge First Class, Palwal relied upon
the testimony of defendant No.3 Dhakeli to the effect that she was absolute
and sole owner of suit properties after the death of her mother Sompti and
that being in possession of the said properties, she was entitled to deal with
the same as an exclusive owner. It was also deposed that she had given the
house to appellant-defendant Gian Chand and the plot i.e. gair mumkin gait
was in her possession. Her version was also supported by DW.2 Dibban Lal
(appellant-defendant No.2) and DW.3 Moti Ram. The substantive
jamabandis were also exhibited on record apart from Shajra nasab of the
family. The jamabandi EX.P4 pertaining to the year 1973-74 reflect that
Sompti to be the owner in possession of the said properties and that the
mutation of inheritance having been sanctioned in favour of Sompti after
the death of Lohara vide Mutation No.240 dated 15.12.1970, the subsequent
mutation No.3121 sanctioned in favour of Dhakeli on 18.03.1986 and that
all chulla Tax/electricity bills were thereafter paid and brought on record by
the defendant No.3 Dhakeli. Hence, the possession of the property in
dispute was established to be with defendant No.3-Dhakeli. It was
accordingly held that she was the owner and in possession of the properties.
The suit of the respondent-plaintiff was accordingly dismissed with costs.
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7 Aggrieved of the said judgment and decree of dismissal passed
by the Sub Judge First Class, Palwal on 16.05.1991, the respondent-plaintiff
preferred an appeal before the District Judge, Faridabad, bearing Civil
Appeal No.169 of 1993. The said civil appeal was allowed by the Addl.
District Judge, Faridabad, vide judgment and decree dated 22.05.1993 by
holding that there were suspicious circumstances that would give rise to the
credibility of the status of Dhakeli since at the time when mutation of
Lohara, after his death, was sanctioned in favour of his wife Sompti, there
was no reason as to why Dhakeli was excluded and why she was not
recorded as Class I heir along with her mother Sompti. It was held that the
said ground establishes that the Dhakeli was not the daughter of Lohari and
Sompti. As a consequence thereof, it was held that she not being daughter
of Lohari and Sompti, the respondent-plaintiff being son of the brother of
Lohari were the legal heirs and nearest to the line of succession were
entitled to succeed to the properties left behind by Smt. Sompti widow of
Lohari. The findings on issues No.1 and 3 as well as issue No.3 were
accordingly reversed. The relevant extract of the order passed by the
Additional District Judge, Faridabad is reproduced as under:-
"8. I have heard the learned counsel for the parties and have
examined the record of the trial court.
9. Defendant No.3 Smt. Dhakeli claims herself to be daughter
of Smt. Somoti and Lohorey. After the death of Lohorey, Smt.
Somoti and defendant No.3 Smt. Dhakali would have
succeeded to these properties but mutation of properties of
deceased Lohorey was sanctioned only in favour of Smt.
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Somoti. Lohorey died after coming into force Hindu Succession
Act. Heavy burden is cast upon defendant No.3 Smt. Dhakeli to
prove that she was daughter of Lohorey and Smt. Somoti as
had it been so, in normal course under the provisions of Hindu
SuccessionAct, she also would have succeeded to the
properties of Lohorey alongwith her mother S,t. Somoti. The
fact that the mutation of the properties of Lohorey was
sanctioned only in favour of Smt. Somoti weighs very heavily
against the claim of defendant No.3.
10. Defendant No.3 Smt. Dhakeli while appearing as PW1 had
only taken specific stand that she was born in village Baghola.
Her further stand is that the birth entries are entered in the
register maintained by the Chowkidar of the village. However,
no such birth entry has been produced. The case of the plaintiff
is that defendant No.3 is a daughter of Tulsi son of Chhitariya
resident of village Sibol. Though she in onebreath denies the
suggestion that she was born in village Sihol but in the second
breath she takes the stand that she does not know if she was
born in village Sihol or not. Except the statement of defendant
No.3 herself, the only other evidence being led by defendants is
the statement of defendant No.2 Dibban son of Mamraj who
has been examined as DW2. He also is an interestedperson
asmuch as that they claim that they had been put in possession
of part of the suit property by defendant No.3. Except
defendant Nos. 2 and 3, no other independent witness has been
examined by the defendants in support of their plea. The oral
evidence If the defendants is met by oral evidence of the
plaintiff. Plaintiff Ram Dayal appeared as PW2 and deposed
regarding the relationship of the parties. It is denied that Smt.
Dhakeli defendant No.3 is the daughter of Smt. Sompti and
Lohorey. PW3 Rai Ram and PW4 Ram Chander also
specifically deposed that Lohorey and Smt. Sompti died
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issueless. Defendant No.1 and 2 sons of Mamraj resided with
her maternal uncle namely Gunga and Lohorey and as such
occupied part of the suit property but they have no right, title
or claim whatsoever to this property.
11. On behalf of the defendant-respondents, it is vehemently
argued that mutation of Smt. Sompti has already been
sanctioned in favour of defendant No.3. The mutation as such
does not create any right. Once it is established that there is no
basis for the mutation, then no right would follow from such
mutation.
12. The plaintiff has also led in evidence birth entry Ex.Px of
daughter of Tulsi son of Chhitaria of village Sihol. Defendant
No.3 while appearing as DW1 has neither admitted nor denied
the suggestion that she was born in village Sihol. On the other
hand, defendants have taken the stand that defendant No.3 was
born in village Baghola and the birth record of village Baghola
is maintained by the Chowkidar of the said village but no such
entry has been led in evidence. The mutation of Lohorey after
his death was sanctioned, in favour of his wife Smt.Sompti
alone. In normal course, had defendant No.3 been the daughter
of Lohorey and Smt. Sompti, then there was no reason or the
circumstance that as to why defendant No.3 would have not
succeeded to the estate of Lohorey with Smt. Sompti. These
facts when taken together give rise to the conclusion that
defendants have failed to establish that defendant No.3 was the
daughter of Lohorey and Smt. Sompti and as such the findings
of the lower court under issue No.3 are liable to be reversed
and it is held that defendants have failed to establish that
defendant No.3 is the daughter of Lohorey and Smt. Sompti.
Issue No.3 is decided accordingly against the defendants.
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13. The natural consequences of the above findings under issue
No.3 that defendant No.3 is not established to be daughter of
Lohorey and Sompti is that the plaintiff who is son of brother of
Lohorey is the legal heir who would have succeed to the suit
properties left behind by Smt. Sompti wife of Lohorey.
Accordingly, findings of the lower court under issues No.1 and
2 are also reversed. The plaintiff is legal heir of deceased Smt.
Sompti and is entitled to succeed to the properties and has
acquired ownership of the suit properties described in para
Nos. 1 and 2 of the plaint. Both these issues No. 1 and 2 are
decided accordingly in favour of the plaintiff-appellant and
against the defendant- respondents.
14. Accordingly, the appeal succeeds. The judgment and decree
of the learned lower court are set aside. The suit of the plaintiff
is decreed and a decree for declaration is passed in favour of
the plaintiff-appellant and against the defendants- respondents
to the effect that he is owner in possession of the gait
measuring o malan 5 marlas described in para No.1 of the
plaint and further it is declared that he is owner of a house
described in para No.2 of the plaint and as a consequential
relief, decree for possession of he said house as per description
given in para Nos. 1 and 2 of the plaint is passed in favour of
the plaintiff and against the defendants with costs throughout
which is assessed at Rs.500/-(five hundred). Decree sheet be
prepared accordingly."
8 Aggrieved thereof, the present appeal had been preferred by the
defendants.
9 Learned counsel for the appellant has argued that the
Additional District Judge, Faridabad has committed an error while reversing
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the well reasoned judgment and decree passed by the Sub Judge First Class,
Palwal. It has been further argued that the revenue record which was
maintained in the ordinary course by an independent and impartial authority
has been disbelieved by the Addl. District Judge, Faridabad, without any
valid reasons notwithstanding that the Shajra Nasab has proved the
mutations sanctioned firstly on the demise of Lohari and thereafter on the
demise of Sompti which clearly established that Dhakeli was the daughter
of Lohari and Sompti. The respondent-plaintiff had in fact brought on
record the birth certificate pertaining to child born to one Tulsi Ram which
is irrelevant since the said document has neither been related and there is no
relationship established between the said document and appellant-defendant
No.3-Dhakeli. It is also argued that the Additional
District Judge, Faridabad, was clearly in an error in ignoring the testimony
of DW.2 Dibban only on the ground that he was an interested party by
ignoring the relationship which was duly established and remained
undisputed and that by virtue of the said relationship, he was more equipped
to be close in relation to the status of Dhakeli vis-à-vis Sompti and Lohari.
He argued that the Additional District Judge, Faridabad, misread the
evidence and has reversed a well reasoned and speaking judgment passed
by the Sub Judge First Class, Palwal and the same is liable to be set aside.
10 It is also noticed that Mr. Chander Singh, Advocate, had earlier
entered appearance on behalf of the respondent-plaintiff, however, he did
not put in appearance. The Registry was called upon to inform the counsel
representing the respective parties and as per the report of the Registry
dated 01.12.2023, it was informed that intimation had been sent to the
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Advocate Mr. Chander Singh, appearing on behalf of the respondent-
plaintiff. An intimation was sent again to the counsel appearing on behalf of
the respondent-plaintiff as per the report dated 02.04.2024 about listing of
the case for 03.04.2024. However, he has chosen not to appear. The matter
pertains to the year 1993. The respondent-plaintiff is accordingly ordered to
be proceeded against ex parte and the appeal is taken up for hearing.
11 It is evident from the judgment and decree passed by the Addl.
District Judge, Faridabad, that the Addl. District Judge, Faridabad, has
drawn the presumption against appellant-defendant No.3 only on the ground
of alleged suspicion as to why she was not recorded as a successor at the
time when mutation was sanctioned in favour of Sompti after the death of
Lohari and that the testimony of DW.2 Dibban was discarded being an
interested person.
12 The reference made by the Addl. District Judge, Faridabad, to
the above said evidence is not well founded inasmuch as there is no
reference to the Shajra Nasab that had been brought on record along with an
unimpeachable evidence in the form of sanction of mutations against which
no objection was raised at the time of such sanction. Although, it is not in
dispute that mutation is not a proof of title, however, the burden lies on the
person disputing the mutation to establish that the same has been wrongly
sanctioned. A negative burden could not have been cast upon the
appellants-defendants. Nonetheless in view of the onus having been put up
on defendant No.3, specific evidence was led by the appellants-defendant
No.3 in the form of not only the testimony of witnesses who were related
but also on the mutations that were sanctioned twice as well as the Shajra
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Nasab that clearly shows that the appellant-defendant no.3 was daughter of
Sompti from the loins of Lohari. The Addl. District Judge, Faridabad, was
in error in disregarding the testimony of DW.2 merely because he was
related. The said basis is not sufficient to impeach the creditworthiness of a
witness and that in family affairs, testimony of a witness who is related, has
to be given weightage as against a third party witness who may not be privy
to the affairs between the family. The related witness cannot be kept at any
different pedestal and DW.2 could not have been put at a disadvantageous
position merely on account of being related. The Addl. District Judge,
Faridabad, failed to refer to any discrepancies or material contradictions in
the testimony of the said witness before coming to a conclusion that said
testimony was bereft of merits and deserved being disregarded. This way of
disregarding the testimony, without reference to the deposition and its co-
production was an inappropriate manner of discarding an evidence brought
on record.
13 Besides, the Addl. District Judge, Faridabad, also failed to refer
to the Shajra Nasab that was prepared by the Revenue authorities. A mere
suspicion as regards absence of the name of the appellant-defendant No.3 at
the time of sanction of mutation in favour of Sompti (mother of Dhakeli)
cannot be a ground to belie the relationship and/or dispute that she was not
entitled to succeed.
14 Under the given circumstances, it has come on record that at
the first instance the properties were transferred in favour of Sompti widow
and a daughter may not claim or press for her right and claim for sanction of
mutation also in her favour at that point of time. There is no unnatural
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conduct in a mere sanction of mutation in favour of widow and not in
favour of the daughter at that point of time along with her mother. Besides,
it is not in dispute that after the death of Sompti, mutation No.3121 was
sanctioned in favour of appellant-defendant No.3 and that the said mutation
also remained uncontested. In the event, the respondent-plaintiff had any
objection as regards the entitlement of appellant-defendant no.3 Smt.
Dhakeli to not be an heir of Sompti and Lohari, they could have raised a
challenge to the said mutation at that point of time. It is also noticed that the
said mutation is also not the subject matter of challenge in the present suit
as well. Hence, once the mutation has become final amongst the parties and
the same is not a subject matter of challange either in the proceedings under
the Revenue Law or before the Civil Court under the Punjab Land Revenue
Act, the said mutation has sufficient corroborative value to support the
claim of appellant-defendant No.3.
15 The issue may be examined from a perspective that Dhakeli
was not a daughter born to Sompti from the loins of Lohara, still, Sompti
would become absolute owner of property under Section 14 of the Hindu
Succession Act, 1956 and as per the general rules of succession in case of
female Hindu under Section 15, her son/daughter is entitled to succeed. The
Section does not justify that the daughter of a Hindu female has to be from
the loins of her deceased husband only to be entitled to inherit property
inherited by her from her husband. The right has been vested in all children
or children of pre-deceased children of a Hindu female irrespective of
conception of the children. Thus, even on said count Dhakeli would have a
right to succeed to the property.
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16 For the foregoing reasons, I find that the judgment passed by
the Addl. District Judge, Faridabad, suffers from an improper appreciation
of evidence and the conclusions are drawn on the basis of conjectures and
surmises which are based on misinterpretation of the evidence led by the
appellants-defendants and the statutory provision and mandate of Sections
14 and 15 of the Hindu Succession Act, 1956.
17 The present appeal is accordingly allowed. The judgment and
decree dated 22.05.1993 passed by the Additional District Judge, Faridabad,
is set aside and the judgment and decreed dated 16.05.1991 passed by the
Sub Judge First Class, Palwal, is restored.
18 Pending, misc. application(s), if any shall also stand(s)
disposed of accordingly.
April 03, 2024. (VINOD S. BHARDWAJ
raj arora JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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