Charanjit Kaur & Ors. v. Rajwant Kaur & Ors.

CM stands disposed of. RSA No.2210 of 2010 (O&M) The appellants in this appeal, are the legal heirs of Tarsem Singh son of Hazara Singh and contesting respondents No.1 to 3 are the daughters of Hazara Singh, who are fighting each other to claim the property in dispute which was admittedly owned by Hazara Singh. As per the facts noticed in the impugned judgment and decree, Hazara Singh, who was the owner of the suit property, died in the year

1969. He was survived by his son Tarsem Singh, wife Gurmej Kaur and three daughters as aforesaid. These daughters i.e. respondents No.1 to 3 filed the present suit alleging that after the death of Hazara Singh in the year 1969, the mutation of inheritance was sanctioned in favour of all the legal heirs and the same was also incorporated in subsequent jamabandies on the basis of natural succession. According to them, Hazara Singh did not execute any Will but the defendants (i.e. the appellants) in connivance with the revenue officials got the mutations from the names of the plaintiff- respondents changed in their own names. The said wrong entries were not binding upon them. In the Month of December, 2003 when the plaintiffs needed some money and they wanted to mortgage the land, they came to know about the change of mutation entries deleting their names. The plaintiffs approached the office of Sadar, Kanungo and obtained the copies of the revenue record from which it was found that there was variation in the share of the plaintiffs in the revenue record and therefore, necessity arose to file the instant suit for declaration to the effect that the plaintiffs are co-sharers in equal share in the suit land on the basis of natural succession. Upon notice, the defendant-appellants put in appearance and filed their joint written statement raising various preliminary objections. On merits, the relationship between the parties was admitted. Death of Tarsem Singh and Hazara Singh was also admitted. Rests of the averments were denied as incorrect. It was contended that Hazara Singh during his lifetime executed a valid Will dated 5.6.1969 vide which he had bequeathed his entire property in favour of Tarsem Singh his only son who has since been expired and the same had been inherited by the defendants. In the replication to the written statement, averments of the plaint were reaffirmed and those of written statement were denied. From the pleadings of the parties, the following issues were framed:

1. Whether the suit of the plaintiff is maintainable in the present form?OPP

2. Whether the suit of the plaintiff is bad for non-joinder of the necessary parties? OPD

3. Whether the suit of the plaintiff is properly valued for the purpose of Court fee and jurisdiction? OPP

4. Whether the suit of the plaintiff is within time? OPP

5. Whether Hazara Singh executed Will dated 5.6.1969 in favour of Tarsem Singh? OPD

6.Whether the plaintiffs are entitled to the declaration? OPP

7. Whether the co-sharers in the suit land have been mentioned therein? OPD

8.Whether the plaintiff is entitled to the permanent injunction as prayed? OPP

9. Relief.” After affording the opportunities to the parties to lead the evidence, the trial Court decreed the suit partly in favour of the plaintiff- respondents by declaring that they were owners to the extent of 3/14 share of the suit land. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendant-appellants filed an appeal before the Lower Appellate Court which was dismissed. The Will propounded by the appellants was held to be not proved. The findings on the other issues were reaffirmed. However, while dismissing the appeal, the Lower Appellate Court found that once it was held that the estate of Hazara Singh was devolved upon the Class–I legal heirs on the basis of natural succession then the trial Court should have given the relief to the plaintiff-respondents as per their share and since the share of 3/14 as granted was less on the basis of natural succession and they were entitled to 3/10 share, it was held that the plaintiff-respondents were entitled to the extent of 3/10 share of the suit land as claimed by them in the suit. Still not satisfied, the appellants have approached this Court by way of instant appeal and submitted that the following substantial question of law arise in this appeal: “1. Whether the impugned judgments dated 4.7.2008 and 7.1.2010 are sustainable and in accordance with law?

2. Whether the findings of the learned Courts below are based on the factual position and in accordance with the record on the file?” In support of his appeal, learned counsel for the appellants has vehemently argued that findings of the Courts below to the effect that the Will propounded by the appellants is not proved, is erroneous as there is enough evidence on record to prove the same. I have heard learned counsel for the appellants and perused the impugned judgment and decree. Both the Courts below on appreciation of evidence have recorded a concurrent finding of fact that the Will in question cannot be held to be proved as the appellants have failed to produce any marginal witness of the Will and Dhira Singh, grand son of Puran Singh, one of the attesting witnesses, who was examined by the appellants, was not believed on the point that he could prove the signatures of his grandfather Puran Singh as he was not born at the time when the Will was executed. There is no material evidence on record which has been ignored while returning the findings against the appellants on the question of Will and therefore, it cannot be held that the findings of the Courts below on the question of Will are perverse so as to attract the intervention of this Court under Section 100 CPC. It is well settled that while exercising its jurisdiction under Section 100 CPC, the Court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel AIR 1964 SC 364, the Constitution Bench held as under:- “The High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not.” Faced with this situation, learned counsel for the appellants has further argued that the suit filed by the plaintiff-respondents was badly hit by limitation and the cause of action has accrued to them when the mutation was entered in favour of the appellants which was to the knowledge of the plaintiff-respondents and still they failed to file the suit within three years from their knowledge and therefore, on this account also, the suit of the plaintiff-respondents was liable to be dismissed. The argument of the appellants is against the well settled principles of law. It is well settled that a suit for declaration, claimed on the basis of inheritance and mutation does not confer any title. It is again well settled that a person claiming ownership on the basis of inheritance can file a suit when his rights are clouded. It has come on record in this case that the appellants have specifically pleaded in this case that when they were need of money and they wanted to mortgage the land, they approached the revenue authorities and at that point of time they came to know that their rights are being jeopardized. In this view of the matter, even the aforesaid argument regarding limitation is not available to the appellants. In the end, learned counsel for the appellants has vehemently argued that in the absence of any appeal on behalf of the respondents, challenging the judgment and decrees of the trial Court, the relief to the extent of 3/10 share as granted by the Lower Appellate Court could not have granted to them as the trial Court had granted them relief only to the extent of 3/14 share. The aforesaid argument is liable to be discarded. Under Order 41 Rule 33 CPC, the Lower Appellate Court has the power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decrees or order as the case may require, and this power may be exercised by the Court, notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. In my aforesaid view, I am also fortified with a judgment of the Hon’ble Supreme Court in Mahant Dhangir and another v. Shri Madan Mohan and others AIR 1988 SC 54. No other point was urged. In this view of the matter, I find no merit in this appeal. No substantial question of law arises. Dismissed. August 27, 2010 (RAKESH KUMAR GARG) JUDGE