The High Court
Case Details
RSA-5226-2019 (O&M) -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 113 Zile Singh RSA-5226-2019 (O&M) Date of Decision: 01.05.2025 .… Appellant Versus Rajwanti and others .... Respondents CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA Present: - Mr. Jitender Nara, Advocate for the appellant. NIDHI GUPTA, J. *** CM-14792-C-2019 Prayer in the present application filed under Section 151 CPC is for condonation of delay of 800 days in refiling the accompanying appeal, which is duly accompanied by an affidavit of the clerk of learner counsel for the appellant. 2. The only reason cited by learned counsel for the applicant/appellant in the said application for cause of delay of 800 days in refiling the appeal is as under:- “That when the case was returned back with some objections and collected by the clerk Sh. Ramesh to the counsel. Thereafter collected the brief which was lying in objections but then he put the paper book in the miscellaneous brief alongwith some blank vakalatnamas and proforma of memo of parties but
Legal Reasoning
the clerk to the counsel for the appellant inadvertently placed the miscellaneous brief among the decided briefs in the office of the counsel for the appellant, but it skip from his mind to take out the paper book of the present appeal from the miscellaneous brief. It also skip from the mind of the counsel DIVYANSHI 2025.05.03 17:28 I attest to the accuracy and integrity of this document RSA-5226-2019 (O&M) -2 - for the appellant due to pressure of work. Though the appellants were told that the appeal has been filed and they will be apprised about the status but then it skipped from the mind. Now, the appellants contacted the counsel on 16.05.2019 and inquired about the status of their appeal. Then it was learnt that the appeal is still in objection and after searching the paper book by the clerk to the counsel for the appellant/applicant, it was found in the above mentioned brief amongst the decided cases. Thereafter, the objections were removed and the appeal was refiled on 20.05.2019 without causing any further delay. But the registry again raised objection on 14.09.2019 and it was again refilled on 25.09.2019 after removing all the objections. But in this course a delay of 800 days occurred which is not malafide and intentional but due to the above stated genuine reasons and due limitations of human faculty.” 3. The said reason is vague and general and does not constitute sufficient cause for condonation of extraordinary and inordinate delay of 800 days. It is established position in law that delay of each day has to be explained. 4. Hence, the present application is dismissed. RSA-5226-2019 (O&M) The plaintiff is in second appeal against the concurrent judgments and decrees of the learned courts below, whereby the suit filed by the plaintiff for declaration that the plaintiff and performa defendants No. 2 and 3 are the owners of 1/4th share of Sh. Ram Bhagat in the suit land as described in the plaint; and declaration to the effect that defendant No.1- Rajwanti is not the widow of Ram Bhagat; alongwith consequential relief of injunction mandating the revenue authorities from restraining the DIVYANSHI 2025.05.03 17:28 I attest to the accuracy and integrity of this document RSA-5226-2019 (O&M) -3 - sanctioning of the mutation No. 1839 in favour of defendant No.1, has been dismissed by both the Courts below. 2. It is submitted by learned counsel for the plaintiff that the only dispute in the present case is regarding the alleged karewa marriage of defendant No.1 with Ram Bhagat. It is submitted that defendant No.1 was previously married to Udey Bhan, who was real brother of the plaintiff and defendants No. 2 and 3. Defendant No.1 is the widow of Udey Bhan. It was the case of defendant No.1 that she along with her son Satpal had inherited 1/4th share of Udey Bhan, being his legal representatives. Defendant No.1 had further stated that upon the death of Udey Bhan, she had performed karewa marriage with Ram Bhagat. Ram Bhagat was also the real brother of the plaintiff and defendants No.2 and 3. Ram Bhagat was the co-sharer in the land of their father Kanhaiya. Ram Bhagat had remained unmarried, issueless and had not been seen or heard of since the last 8 years. It was contended that Rajwanti was alleging karewa marriage only to grab his share of suit land as well. It is submitted that out of greed, malice and taking undue advantage, defendant No.1 Rajwanti had lodged missing report of Ram Bhagat averring herself to be his widow. In furtherance of conspiracy Rajwanti had unsuccessfully approached the Assistant Collector 1st Grade, Jhajjar, Haryana, vide unsanctioned mutation No. 1839 for transfer of share of Ram Bhagat averring herself to be his widow. 3. Learned counsel for the plaintiff submits that in this background the learned Courts below were in patent error in dismissing the suit of the plaintiff as defendant No.1 Rajwanti had totally failed to prove her karewa marriage with Ram Bhagat. It is submitted that learned Courts DIVYANSHI 2025.05.03 17:28 I attest to the accuracy and integrity of this document RSA-5226-2019 (O&M) -4 - below have failed to consider that Rajwanti had even failed to mention in her pleadings the exact date, month and yet as to when she had performed karewa marriage with Ram Bhagat. In fact, in her pleadings, she had even failed to mention that she had performed karewa marriage as per the customs of community/society. It was also not mentioned anywhere that the respectables from her parents' side and in laws side were present when the said karewa marriage was allegedly performed. It is contended that as such, there is nothing whatsoever on record to indicate that karewa marriage was performed between contesting respondent Rajwanti and Ram Bhagat. Moreover, even if there is any such evidence on record, the same could not be considered as it is settled law that evidence beyond pleadings is not admissible. 4. Thus, there is no clear pleading establishing that Rajwanti had ever performed karewa marriage with Ram Bhagat what to speak of any cogent evidence to that effect. 5. It is further submitted that learned Courts below also ought to have considered that Rajwanti was getting widow pension being the widow of Udey Bhan. Even in the voter list, Rajwanti had shown herself to be widow of Udey Bhan and not of Ram Bhagat. 6. It is further submitted that learned Courts below have failed to consider that jamabandi Ex.P1 clearly shows the plaintiff and performa defendants No.2 and 3 as co-sharers in the suit property along with their brother Ram Bhagat. This fact has also been admitted by Rajwanti in her written statement. It is contended that as such, the suit for declaration without seeking relief of possession is perfectly competent and maintainable. DIVYANSHI 2025.05.03 17:28 I attest to the accuracy and integrity of this document RSA-5226-2019 (O&M) -5 - Thus, the plaintiff and performa defendants are entitled to get share of Ram Bhagat in his property in view of the fact that Ram Bhagat has not been seen or heard since last more than one decade. 7. It is lastly submitted that as karewa marriage between Rajwanti and Ram Bhagat is not proven on record, therefore, mutation No. 1839 cannot be sanctioned by the revenue authorities. 8. 9. No other argument is raised on behalf of the appellant/plaintiff. I have heard learned counsel for the appellant/plaintiff and perused the case file in great detail. 10. I find no merit in the submissions advanced by learned counsel for the appellant. Firstly, it deserves mention that in the plaint, there is no pleading or any averment by the plaintiff that Ram Bhagat has expired. In this circumstance, it has been correctly opined by learned Courts below that estate of Ram Bhagat would open only upon his death. Plaintiff has admittedly failed to prove the factum of death of Ram Bhagat. Therefore, estate of Ram Bhagat cannot be opened merely on filing of the suit. 11. It has been contended by the appellant that Rajwanti had produced no proof of her karewa marriage with Ram Bhagat before the learned Courts below. However, it was the clearly pleaded case of Rajwanti in her written statement that she had performed karewa marriage with Ram Bhagat, after which they had resided together as husband and wife. She had claimed that her karewa marriage with Ram Bhagat entitled her exclusively to the share of Ram Bhagat in the suit property being his class-1 legal heir. Even in her evidence as DW4, she had reiterated her pleaded case. It is not denied by learned counsel for the appellant that the plaintiff was not able to DIVYANSHI 2025.05.03 17:28 I attest to the accuracy and integrity of this document RSA-5226-2019 (O&M) -6 - rebut the specific and cogent contention of Rajwanti that she had contracted and consummated karewa marriage with Ram Bhagat. In fact, during cross- examination, the plaintiff’s material witnesses have candidly admitted that Rajwanti is the widow of Ram Bhagat and that both of them had been residing together after contracting karewa marriage. It has also been admitted that missing report of Ram Bhagat was lodged by his wife Rajwanti. It was also admitted that Rajwanti was in exclusive possession of the suit land belonging to Ram Bhagat. This fact was admitted even by the plaintiff that the revenue record qua the suit land is not exclusively in his name. In this regard, it is duly mentioned that PW2 Suresh had admitted in his cross-examination that Ram Bhagat, Rajwanti and Satpal were residing jointly; Rajwanti was cultivating land of both Udey Bhan and Ram Bhagat. PW3 had further admitted that Rajwanti and Ram Bhagat were residing in the same house as husband and wife. In the face of this evidence led by the plaintiff witness themselves, arguments on behalf of the plaintiff that Rajwanti in her written statement had failed to mention any details of her karewa marriage holds no ground. 12. It is settled position in law that admission is the best evidence. In the present case, in view of the admission of defendant No.1/Rajwanti, as also the plaintiff witness no.3, no further evidence was needed of the kareva marriage between Rajwanti and Ram Bhagat. The Hon’ble Supreme Court in “Divisional Manager, United India Insurance Co. Ltd. & anr. vs. Samir Chandra Chaudhary” Law Finder Doc Id # 83537, has held that an “admission of fact is good evidence” against the person admitting the same unless it is legally explained away to be made under a bona fide DIVYANSHI 2025.05.03 17:28 I attest to the accuracy and integrity of this document RSA-5226-2019 (O&M) -7 - mistake. In the present case, there is no such pleading by the plaintiff that the admission has been made by Rajwanti or even by PW3 under a bona fide mistake. Thus, in view of the admissions made by PW3 and by defendant no.1 herself, the plea of the plaintiff that karewa marriage was not proven, is liable to be rejected. In this regard, following judgments of this Court are relevant: - 1. Smt. Ji Kaur vs. Smt. Bhullan etc. Law Finder Doc Id # 114579; 2. Jai Lal and another vs. Mst. Hans Kaur, Law Finder Doc Id # 128845; 3. Mst. Ranbir Kaur and others vs. Angrez Kaur alias Charanjit Kaur and another, Law Finder Doc Id # 76842; and 4. Darbara Singh son of Inder Singh of Village Cheema, Tehsil and District Sangrur vs. Jaswant Kaur widow of Chand Singh of Village Cheema, Tehsil and District Sangrur and others, Law Finder Doc Id # 523620. 13. Further, suit of the plaintiff was not maintainable as it is the settled position in law that as per Section 34 read with Section 41 of the Specific Relief Act, simplicitor suit for declaration and injunction without having possession is not maintainable. As noticed above, it has been admitted by the plaintiff himself as also by PW3 that Rajwanti was in possession of suit land in share of Ram Bhagat. Moreover, even the suit property was not specifically described by the plaintiff in the plaint. Again, it is established position in law that in a suit for declaration in respect of immovable property, it is indispensable for the plaintiff to clearly describe suit property. 14. Arguments of the plaintiff that Rajwanti was receiving pension as widow of Udey Bhan or that in the voter list Ex.PW5/A her name is DIVYANSHI 2025.05.03 17:28 I attest to the accuracy and integrity of this document RSA-5226-2019 (O&M) -8 - recorded as widow of Udey Bhan, not only irrelevant but also do not hold ground in view of the admission made by the plaintiff’s witnesses themselves. In any event, the case of the plaintiff has to stand on his own legs and plaintiff cannot take advantage of any purported weakness in the case of the defendant. 15. Lastly, as per the judgment of the Hon’ble Supreme Court in “State of Rajasthan vs. Shiv Dayal”, (2019) 8 SCC 637, it is not open for this Court to interfere in the concurrent findings of fact returned by the Courts below “unless it is pointed out that it was de hors the pleadings or it was based on no evidence or based on misreading of material on record and documents.” 16. The Hon’ble Supreme Court in the judgment of “Mst. Sugani vs. Rameshwar Das and another” Law Finder Doc Id# 123580, has gone on to further hold that “the concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers in second appeal”. Again, in Avtar Singh Vs. Bimla Devi and others, 2021(4) RCR (Civil) 402. Hon'ble Apex Court has held that finding of fact cannot be interfered with in exercise of second Appellate jurisdiction. 17. Learned counsel for the appellant is unable to dispute or controvert the above said facts and findings of the learned Courts below. 18.
Decision
In view of the above, I find no ground is made out to interfere in the impugned judgments and decrees of the learned Courts below. The present regular second appeal is accordingly, hereby dismissed on merits, as well as on grounds of delay. DIVYANSHI 2025.05.03 17:28 I attest to the accuracy and integrity of this document RSA-5226-2019 (O&M) -9 - 19. Pending applications, if any, stand disposed of. 01.05.2025 Divyanshi (NIDHI GUPTA) JUDGE Whether speaking/reasoned: Whether reportable: Yes/No Yes/No DIVYANSHI 2025.05.03 17:28 I attest to the accuracy and integrity of this document