Jasmer Kaur & Ors. v. Sadhu Singh & Ors.

preferred by the plaintiffs as the same arose out of the same judgment and decree passed by the Courts below. The facts are being taken from RSA No.352 of 1985. This is a regular second appeal directed by plaintiffs-appellants against the judgment and decree dated 24.9.1984 passed by Mr.R.P.Bajaj, Additional District Judge, Ambala vide which the appeal preferred by the plaintiffs-appellants against the judgment and decree dated 19.3.1982 passed by Shri Varinder Singh, the then Sub Judge IIIrd Class, Ambala who dismissed the suit of the plaintiffs, also stood dismissed. Shorn off unnecessary details, the case of the plaintiff as set forth in the plaint is that land measuring 133 kanals 5 marlas situated in village Ado Majra belonged to Jeet Singh alias Mihan Singh, who died in 1962 without leaving any issue or widow. Said Jeet Singh had two sisters namely Punni and Sibia. Appellant No.1 is the son of Punni whereas appellant No.2 is the daughter of Sibia.

On this relationship, the appellants claimed to be the rightful heirs of the deceased and therefore, are owners of the suit land. The defendants have no right whatsoever in the suit land. The said land is in illegal possession of respondent Nos.1 and 2 and are liable to surrender the possession. Further, it has been alleged that Gulab Kaur RSA No.352 of 1985. 3 widow of Bakhtawar had no concern with the property in question and, therefore, she could not execute any Will in respect of this property nor that Will can confer any rights on respondents No.5 and 6. To resist the suit, two separate written statements were filed. The common case set up by the defendants-respondents is that Jeet Singh died issueless and without any widow. They also denied the relationship set up by the appellants with the deceased. Respondent Nos.1 and 2 admitted that Jeet Singh had life estate in the property and on his death, the same reverted to Kehar Singh.

Respondent No.1 being the collateral of Kehar Singh was in rightful possession of the suit land. Respondent No.2 stood wrongly impleaded being the son of respondent No.1. It has been further alleged that Gulab Kaur had no concern with the suit property, the suit is beyond limitation and that the Civil Court had no jurisdiction. Respondent Nos.3 to 6 referred to a compromise decree passed on 10.6.1944 vide which it was decided that in case Jeet Singh died issueless and without widow, the property would go to Gulab Kaur. Therefore, she became the legal heir to the property on the death of Jeet Singh and validly executed will of the said property in favour of respondents No.5 and 6 and a gift in favour of respondents No.3 and 4. Respondent Nos.3 and 4 are the daughters whereas respondent Nos.5 and 6 are their respective husbands. These respondents have also contested the case set up by respondent Nos.1 and 2. Respondent Nos.1 and 2 had no relationship with Kehar Singh. Following issues were framed :-

Whether the plaintiffs are related to Jeet Singh deceased as alleged in the plaint and as are the heirs of Jeet Singh alias RSA No.352 of 1985. 4 Mihan Singh ?OPP.

Whether the property in suit belonged to Kehar Singh and Jeet Singh alias Mihan Singh was only a life holder as alleged ?OPD.

Whether defendantsNo.1 and 2 are collaterally related to Kehar Singh deceased. If so, at what degree and are entitled to the property in dispute left by Jeet Singh alias Mihan Singh and if so to what effect ?OPD 1 and 2.

Whether any compromise in the year dated 10.6.1944 in suit No.683 was affected between Gulab Kaur and Jeet Singh constituting Gulab Kaur as a owner of the property in dispute ?OPD 3 to 6.

Whether defendants No.3 and 6 are related to as alleged and are the heirs and entitled to the property in dispute ? OPD 3 to 6.

Whether defendants No.3 to 6 cognates of Kehar Singh? If so, to what effect ? OPD 3 to 6.

Whether Shrimati Gulab Kaur executed a valid will in favour of defendants No.5 and 6 in respect of the same property in favour of defendant Nos.3 and 4 if so, to what effect ?OPD

Whether plaintiffs are entitled to claim mesne profits ?If so to what amount ?OPP.

Whether this Court has got no jurisdiction to determine the mesne profits ?OPD.

Whether the suit is within limitation ? OPP.

Relief. The parties have led their respective evidence on the aforesaid issues. After appraisal of the evidence, the learned trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 19.3.1982. Feeling dissatisfied with the judgment and decree 19.3.1982, plaintiffs preferred an appeal before the First Appellate Court. RSA No.352 of 1985. 5 The said appeal was also dismissed by learned Additional District Judge, Ambala vide judgment and decree dated 24.9.1984. Still feeling dissatisfied with the above judgments and decree passed by both the Courts below, plaintiff-appellant preferred the present regular second appeal before this Court. I have heard learned counsel for the parties and have gone through the records of the case. First of all I shall take up appeal RSA No.505 of 1985. The appellants were the plaintiffs before the trial Court. Their claim in respect of the suit property is that Jeet Singh alias Mihan Singh was the real brother of Punni and Sibia.

3. Whether defendantsNo.1 and 2 are collaterally related to Kehar Singh deceased. If so, at what degree and are entitled to the property in dispute left by Jeet Singh alias Mihan Singh and if so to what effect ?OPD 1 and 2. The learned trial Court after appraisal of the evidence reached to the conclusion that defendant Nos.1 and 2 have failed to prove that they are collaterals of Kehar Singh and as such are not entitled to inherit the suit property. It was further observed by the trial Court that property devolved upon Jeet Singh was through a compromise as the life holding. The same have to devolve upon Gulab Kaur in view of the compromise in earlier litigation. The First Appellate Court confirmed the finding on issue No.3 that defendant Nos.1 and 2 have failed to prove their relationship. It was observed that the decree, which connected them with Kehar Singh has not been mentioned. So, they are not entitled to the relief claimed. The relationship of defendant No.2 with Kehar Singh stands negative by both the Courts below. So, that being a finding of fact cannot be interfered in the second appeal. There is nothing on the file that both the Courts below have committed error in appreciating the evidence regarding relationship of defendant Nos.1 and 2 with Kehar Singh as collateral. So, in these circumstances, I have no hesitation in holding that no substantial question have arisen in the appeal preferred by defendant Nos.1 and 2 i.e. Gurdial Singh and Jagir Singh. Consequently, their appeal also stand dismissed. RSA No.352 of 1985 Now reverting to the RSA No.352 of 1985 Shri Tarunveer Vashisth, learned counsel for the appellants RSA No.352 of 1985. 8 placed on record, following substantial question of law, which has arisen in the present appeal :-

1. Whether the learned Lower Appellate Court gave a finding that there is no evidence to show that the property in dispute in the present suit is the same, which was the subject matter of controversy in the earlier suit No.683, if this fact is admitted by all the parties, and no issue was framed by the Trial Court on this point ? This appeal has been preferred by defendant Nos. 3 to 6 i.e. Jasmer Kaur, Smt. Joginder Kaur, Sohan Singh and Gurnam Singh before the trial Court. Their case set forth in the written statement is that Jeet Singh alias Mihan Singh died issueless and without leaving any wife or any other relative. Defendant Nos.5 and 6 are husband of respondent Nos.3 and 4 respectively. Gulab Kaur executed a registered a Will and also made a gift. Defendant Nos.5 and 6 are entitled to get the property left out by Jeet Singh. It is further pleaded that compromise on 10.6.1944 in civil suit No.683 was effected between Gulab Kaur and Jeet Singh, Gulab Kaur became owner of the property on account of the said compromise.

The learned trial Court has taken up issue Nos.2 and 4 together and returned the finding on both these issues in favour of the appellants. The learned trial Court returned the finding on issue Nos.5, 6 and 7 in favour of defendant Nos. 5 to 6. The Will, copy of which is Ex.D-8, was held to be proved. It is also held that after the death of Gulab Kaur defendant Nos.5 and 6, now appellants, would become owner of the suit land. However, the First Appellate Court modified the finding of the trial Court on issue Nos.5, 6 and 7 to the extent that though Gulab Kaur executed the Will in favour of respondent Nos.5 and 6 and respondent Nos.3 to 6 are related to her but the defendants have failed to RSA No.352 of 1985. 9 prove that compromise, which was arrived at in Civil Suit No.683 instituted on 18.12.1943 decided on 10.6.1944 cannot be said to be in respect of the suit property as defendants have failed to prove that suit land was involved in the earlier suit No.683 of 1943.

The appellants have filed an application under Order 41 Rule 27 of the Code of Civil Procedure to produce excerpt report from jamabandi for the years 1940-41, 1944-45, 1956-57, khatoni istemal by way of additional evidence. It is submitted by learned counsel for the appellants that the finding of the First Appellate Court to the effect that defendant Nos.3 to 6 have failed to prove that previous suit was in respect of suit property is erroneous. None of the parties have pleaded that earlier compromise in Civil Suit No.683 of 1943 was not in respect of the suit property. No specific issue in this regard was framed. In fact, the parties have admitted in the pleadings itself that earlier litigation is in respect of the suit property. There is concurrent finding of fact recorded by both the Courts below that Mihan Singh @ Jeet Singh had arrived at compromise with Gulab Kaur in earlier litigation.

Both the Courts below have given concurrent finding of fact that Gulab Kaur executed a registered Will in favour of defendant Nos.5 and 6 now appellants. That being a finding of fact, cannot be interfered in the second appeal. However, in order to make the things crystal clear, an application under Order 41 Rule 27 of the CPC has been filed and perusal of the jamabandis for the year 1940-41 and khatoni istemal, it is clear that the suit property was allotted in lieu of the land which was the subject matter of RSA No.352 of 1985. 10 the earlier suit. Even, the khasra numbers have not been changed. It is contended that the documents, which are material and go to the route of the case should be exhibited even in the second appeal to decide the real controversy between the parties. To support this contention, learned counsel for the appellants has relied upon authorities Bhupinder Singh vs. State of Haryana 2004(2) PLR 657 (P&H) ; Punjab Wakf Board vs.

Shri Neeko 2004(3) Civil Court Cases 52 (P&H); Pirbhu Dayal and others vs. Prem Dass chela Kishan Lal and others (1995(2) Punjab Law Reporter 119 and Gurdial Singh vs. Gulshan Kumar 1999(3) Civil Court Cases 460 (P&H). So, the prayer has been made for tendering the above said jamabandi and khotoni istemal and to reverse that part of the finding recorded by the First Appellate Court, vide which it has been held that suit property is not connected with the properties as involved in the earlier litigation. It is further contended that the factum of compromise that Gulab Kaur and Jeet Singh have been accepted to be correct. It is a civil case and has to be decided on preponderance of evidence. It is not the case of the plaintiffs that earlier suit was in respect of other property, which is not the subject matter of the suit. So, in these circumstances also, the above said finding are erroneous, perverse, illegal and liable to be set aside.

In reply to the above noted submissions, learned counsel for the plaintiffs has submitted that the onus always lies upon the party, who alleges a fact. The present appellants have alleged that there was compromise between Gulab Kaur and Mihan Singh, and the said compromise has been accepted by both the Courts below. However, the RSA No.352 of 1985. 11 First Appellate Court was well within its rights to observe that appellants have failed to prove that the suit property is the same, which was subject matter of the earlier litigation. The documents sought to be produced by way of additional evidence cannot be allowed as these documents were well within the knowledge and can be produced by due diligence. It is further submitted by counsel for the plaintiffs that the documents were not required to be produced by the Court permission. To support this contention, learned counsel for the plaintiffs has relied upon authority The Municipal Corporation of Greater Bombay vs.

Lala Pancham and others AIR 1965 Supreme Court 1008 . I have given my thoughtful consideration to the rival submissions made by both the parties and have gone through the records of the case. So far as the fact that there was compromise between Mihan Singh alias Jeet Singh and Gulab Kaur and in that compromise, life estate was given to Mihan Singh alias Jeet Singh is concerned, both the Courts below have given a concurrent finding in this regard. That being a finding of fact cannot be challenged. Both the Courts below have also given a finding that there is a registered Will executed by Gulab Kaur in favour of defendant Nos.5 and 6 and that Will is duly proved and is a valid document. That also being a finding of fact, the same cannot be interfered. The appellants have been dislodged by the First Appellate Court simply on the ground that they have failed to prove that the compromise in suit No.683 of 1943 was in respect of suit property.

In other words, the present appellants have failed to prove that land covered by the previous suit is the RSA No.352 of 1985. 12 same which is subject matter in the present suit. In this regard, the pleadings of the parties are relevant. Defendant Nos.3 to 6 in para No.6 of the written statement have pleaded that in suit instituted by Jeet Singh alias Mihan Singh against Smt. Gulab Kaur, a compromise decree was passed on 10.6.1944 on the condition that if Jeet Singh died issueless and without wife, then Gulab Kaur and then defendant and her issues were succeed to the property of Jeet Singh. Jeet Singh has died issueless. Gulab Kaur and after her death defendants Nos. 3 and 4 are entitled to get the land in suit. Defendant Nos.3 and 4 are also cognates of Kehar Singh, whose land was inherited by Smt. Gulab Kaur in the year 1938. The plaintiffs have no right to the suit land. The statement of Jeet Singh alias Mihan Singh given in Civil Suit No. suit No.683 of 1943 decided on 10.6.1944 also confirmed as well as Smt.

Gulab Kaur is entitled to inherit the property. In replication, the plaintiffs have pleaded that para No.6 of the written statement is wrong hence denied. Defendant Nos. 3 to 6 have no right in the property and alleged decree has no effect on the rights of the plaintiffs. So, from the above said pleadings, it is clear that plaintiffs have not taken specific stand that the compromise is not in respect of the suit property. Both the Courts below have accepted the compromise and defendants Nos.5 and 6 as the heirs of Gulab Kaur. It is also accepted that Jeet Singh has limited rights in the property. However, to clear the doubts, the present appellants have sought to produce the copy of the khatoni istemal and copies of jamabandies. It is settled law that in order to provide justice to the parties, additional evidence can be allowed even in second RSA No.352 of 1985. 13 appeal. In all these authorities, Bhupinder Singh's case (supra) ; Punjab Wakf Board's case (supra) ; Pirbhu Dayal and others's case (supra) and Gurdial Singh's case (supra), it has been held that where the authenticity of the document is not in dispute and documents are relevant for the just decision of the case and in that case additional evidence should be allowed.

So, I have no hesitation in holding that the documents sought to be produced are essential for the just decision of the case and the same are taken on record as Exhibited AX-1 to AX-4. From the perusal of the khatoni istemal and the jamabandies, it is crystal clear that suit land has been allotted in lieu of the land owned by Jeet Singh alias Mihan Singh during his life time. No specific issue was framed regarding the fact that whether the compromise was in respect of the suit land or not. So, in these circumstances, the First Appellate Court has committed illegality in holding that plaintiffs have failed to prove that subject matter of present suit is covered by the land mentioned in earlier Civil suit No.683 of 1943. So far as the authority The Municipal Corporation of Greater Bombay's case (supra) is concerned, that authority is distinguishable as in that case it has been held that Appellate Court cannot order a fresh trial.

In that authority also it has been observed by the Apex Court that if the documents on the record are relevant on the issue, the Court should proceed to consider those documents in deciding the issue. In view of the above discussion, the above question of law stands determined in favour of the appellants and finding of the trial Court on issue Nos.3, 5 and 6 stands answered in favour of defendant Nos.3 to 6. Consequently, the appeal preferred by the appellants stands accepted while deciding issue Nos. 3, 5 and 6 in favour of the appellants. Decree sheet be RSA No.352 of 1985. 14 prepared. compliance. A copy of this judgment be sent to the trial Court for strict August 12th , 2010 ( K.C.PURI ) JUDGE