Punjab-Haryana High Court
Bhooro vs Bhopal(Since Deceased) Through Lrs And ... on 30 April, 2024
Author: Archana Puri
Bench: Archana Puri
Neutral Citation No:=2024:PHHC:058939
2024:PHHC:058939
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CR-6392-2018 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Sr. No.113
CR-6392-2018 (O&M)
Date of Decision: 30.04.2024
BHOORO
....Petitioner
Versus
BHOPAL (SINCE DECEASED) THROUGH LRS AND OTHERS
.....Respondents
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present:- Mr. D.K. Tuteja, Advocate,
for the petitioner.
Mr. Mandeep Singh Kundu, Advocate,
for respondents No.1 and 2.
None for respondent No.3.
None for respondent No.4.
*****
ARCHANA PURI, J. (Oral)
CM-2045-CII-2024
The present application has been filed for placing on record the
copy of judgment dated 20.09.2012, as Annexure P-8.
In view of the averments made in the application, same is
allowed and the requisite judgment is taken on record.
Main case
Challenge in the present revision petition is to the order dated
17.08.2018 (Annexure P-1) passed by learned Trial Court, whereby the
petitioner (who is witness in the civil suit), has been directed to undergo
DNA test and to appear before Forensic Science Laboratory, Madhuban.
In pursuance of the notice issued, respondents No.1 and 2 have
made appearance through counsel. However, none had made appearance on
behalf of respondents No.3 and 4. On earlier occasions also, none has made
appearance on behalf of respondents No.3 and 4. As such, respondents No.3
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and 4 are proceeded against ex parte.
Learned counsel for the parties heard.
The material facts, as culled out from the paperbook are as
follows:-
That, initially, Usha Rani (who is respondent No.4 in the
present revision petition), had filed a suit for declaration with consequential
relief of permanent injunction, against her maternal uncle Bhopal, Ram Pal
and maternal grandmother, Bhagwani, to assert her right to 1/4th share in the
property, initially owned by her maternal grandfather-Mange Ram and she
had stepped into the shoes of Luxmi Devi, her mother (since deceased).
Copy of the plaint is Annexure P-2. Written statement was filed at the
instance of the defendants, copy whereof is Annexure P-3. Ultimately, the
suit was dismissed and feeling aggrieved, Usha Rani, had filed an appeal to
assail the judgment of dismissal. The said appeal was decided by learned
Appellate Court vide judgment dated 20.09.2012. While appraising the
evidence brought on record, with regard to relationship of Usha Rani with
the respondents/defendants, it was observed by learned Appellate Court that
there is conflicting evidence, coming on record, with regard to relationship
of Usha Rani with Luxmi Devi, who was the daughter/sister of the
defendants in the main suit, as well as her relationship with Bhooro.
In the given circumstances, when it was spelt out at the instance
of Usha Rani about there to be need to examine Bhooro, learned Appellate
Court, vide judgment dated 20.09.2012 had accepted the appeal and
remanded back the case with a direction to allow Usha Rani to examine
Bhooro as witness, to support her case. Also, further direction was given
that the respondents may be granted sufficient opportunity to rebut the
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statement of Bhooro.
At this juncture, before proceeding further, it is pertinent to
mention that learned Appellate Court had appraised the testimonies of the
witnesses, examined during the course of trial, thereby giving detail of the
relationship of Usha Rani with Luxmi Devi and Bhooro. This Court is
intentionally, not making reference to the discussion, as made by learned
Appellate Court, lest it may hamper the interest of either party, at later stage.
However, suffice to make mention that there was controversy between the
parties to the lis, about relationship of Usha Rani, to be daughter of Luxmi
Devi or Bhooro, who were alleged to be co-wives of Mangli Ram. So far as,
Mangli Ram, being father of Usha Rani is concerned, there is no dispute
between the parties to the present lis. In pursuance of remand of the case,
the parties made appearance before learned Trial Court and examination-in-
chief of Bhooro was recorded as PW-5. Before conducting of cross-
examination of the respondents (defendants in the main case), the petitioner
had filed an application for conducting of DNA test of Bhooro, who
appeared as witness, PW-5, to know whether there is biological relation with
Usha Rani, or not. The said application was allowed vide impugned order,
copy whereof is Annexure P-1.
From the documents and pleadings of the case, coming forth, as
well as from the judgment of learned Appellate Court, it is evident that
though, Usha Rani, had asserted her right in the property of her maternal
grandfather, being daughter of Luxmi Devi (since deceased daughter of
Mange Ram), but in the written statement to the said suit, the
respondents/defendants, though, have denied about Usha Rani to be daughter
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of Luxmi Devi, their sister, but however, they did not make any mention of
Usha Rani to be having any relation with Bhooro. It was Usha Rani, who
asserted herself to be daughter of Luxmi Devi and for this, at the appellate
stage, she had expressed her desire to examine Bhooro to substantiate her
relationship with Luxmi Devi. Luxmi Devi and Bhooro are spelt out to be
co-wives of Mangli Ram. Nowhere, Bhooro, who has been examined as
PW-5, has any concern with the suit property. There is no interest in her
favour in the suit property. Even, the relationship, as such, is not spelt out of
Bhooro with Mange Ram or with Usha Rani or Luxmi Devi, at the instance
of respondents/defendants in the written statement. It was consequent to
recording of examination-in-chief of Bhooro, that aforesaid application has
been filed for conducting of examination of Bhooro.
This application, in itself, is not maintainable, as Bhooro, as
such, has no interest in the suit property, as she is not claiming herself to be
mother of Usha Rani. In these circumstances, when the person is not a party
to the lis and is deposing in the Court, as only witness, his/her DNA
examination, as such, cannot be allowed. In any case, to establish the
relationship, so asserted, onus to prove is upon Usha Rani, who is plaintiff
before learned Trial Court.
Such being the fact situation, the revision petition is hereby
accepted and the impugned order is set aside and the application for seeking
DNA examination, is hereby dismissed.
(ARCHANA PURI)
30.04.2024 JUDGE
Himanshu
Whether speaking/reasoned : Yes
Whether reportable : Yes/No
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