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2001 DIGILAW 685 (PNJ)

Kapoor Singh v. Gurdial Kaur

2001-07-13

M.L.SINGHAL

body2001
JUDGMENT M.L. Singhal, J. - This is revision against the order dated 30.9.1997 of Additional Civil Judge (Sr. Division), Malout whereby he dismissed the plaintiffs application under Order 6 Rule 17 CPC for amendment of the plaint. 2-3. Kapoor Singh son of Surain Singh and Gurbachan Singh filed suit for declaration against Gurdial Kaur - Widow, Pargat Singh, Mehal Singh and Sukhwant Singh son of Sucha Singh and Bohar Singh and Puran Singh to the effect that they and defendants No. 1 to 4 (being LRs of deceased Kartar Kaur) are joint owners i.e. plaintiffs to the tune of 1/3rd share each and defendants No. 1 to 4 1/3 share) of land measuring 39 kanals 1 marla as detailed in the heading of the plaint on the basis of inheritance of deceased Kartar Kaur alias Gurnam Kaur widow of Makhan Singh and that mutation of inheritance No. 1736 dated 13.3.1990 of deceased Kartar Kaur alias Gurnam Kaur widow of Makhan Singh sanctioned on the basis of alleged will said to have been executed by deceased Kartar Kaur alias Gurnam Kaur in favour of defendant No. 5 - Bohar Singh is in operative and has no effect on the right, title or interest of the plaintiffs and defendants No. 1 to 4 in the said land as the deceased Kartar Kaur alias Gurnam Kaur never executed any will and further the name of deceased Kartar Kaur alias Gurnam Kaurs husbands father is Thakar Singh alias Thakra (who was son of Gopi Ram Singh) and that the revenue entries regarding Makhan Singh (Kartar Kaurs husband) are wrong and incorrect and the result of mistake on the part of the revenue officials and the suit for possession by way of redemption of land measuring 39 kanals 1 marla ibid mortgaged by its owner Kartar Kaur alias Gumam Kaur widow of Makhan Singh son of Thakar Singh alias Thakra vide registered mortgage deed dated 7.6.1971 and mutation of mortgage No. 820 dated 29.2.1972 for consideration of Rs. 14, 000/-. It was alleged in the plaint that deceased Kartar Kaur alias Gumam Kaur widow of Makhan Singh son of Thakar Singh alias Thakra was owner of land measuring 39 kanals and 1 marla. Name of deceased Kartar Kaur alias Gumam Kaurs husbands father was Thakra alias Thakar Singh and not Ram Singh as written in the revenue record. 14, 000/-. It was alleged in the plaint that deceased Kartar Kaur alias Gumam Kaur widow of Makhan Singh son of Thakar Singh alias Thakra was owner of land measuring 39 kanals and 1 marla. Name of deceased Kartar Kaur alias Gumam Kaurs husbands father was Thakra alias Thakar Singh and not Ram Singh as written in the revenue record. Thakra alias Thakra Singh has four sons namely Surain Singh, Partap Singh, Sulkhan Singh and Makhan Singh. Deceased Kartar Kaur alias Gurnam Kaur was wife of Makhan Singh son of Thakra alias Thakar Singh son of Gopi son of Ram Singh. Due to mistake of the revenue officials, fathers name of Makhan Singh was wrongly written as Ram Singh instead of Thakra alias Thakar Singh. Surain Singh, Partap Singh, Sulakhan Singh and Makhan Singh held land in Pakistan. In lieu of that land, they were allotted land in village Dhogari/Dhogri Tehsil and Distt. Jalandhar. In the pedigree table, the name of the father of Makhan Singh, husband of deceased Kartar Kaur alias Gumam Kaur is Thakar Singh alias Thakra and not Ram Singh. Kartar Kaur alias Gurnam Kaur died issueless on 16.9.1982 and Makhan Singh died during her life time. As such other three sons of Thakar Singh alias Thakra namely Surain Singh, Partap Singh and Sulkhan Singh, became legal heirs of deceased Kartar Kaur alias Gurnam Kaur. Surain Singh, Partap Singh and Sulakhan Singh also died. Surain Singh left behind Kapoor Singh plaintiff No. 2 and Partap Singh was survived by Sucha Singh who died in the year 1989 leaving behind Gurdial Kaur, Pargat Singh, Mehal Singh and Sukhwant Singh defendants No. 1 to 4. Aforesaid Kartar wife of Makhan Singh while being owner of the suit property mortgaged the same to Puran Singh defendant No. 6 for Rs. 14, 000/- vide registered mortgage deed dated 2.6.1971, mortgage mutation No. 820 dated 29.2.1972. Puran Singh defendant was already in possession of the land as Gair Marusi/tenant on chakota basis. After the death of the original owner Kartar Kaur alias Gurnam Kaur, defendant No. 5 Bohar Singh in connivance with the revenue authorities got sanctioned mutation of inheritance No. 1736 dated 13.3.1990 on the basis of some alleged, forged and fabricated will alleged to have been executed by Kartar Kaur alias Gurnam Kaur and is showing himself to be the owner of the suit property. Deceased Kartar Kaur alias Gurnam Kaur had never executed any will. If there is any such will alleged to have been executed by Kartar Kaur alias Gurnam Kaur that is false, forged and fabricated and is inoperative qua the rights of the plaintiffs and defendants No. 1 to 4. Plaintiff and defendants No. 1 to 4 are entitled to inherit right, title and interest in the suit property left by deceased Kartar Kaur alias Gurnam Kaur. Plaintiffs are ready and willing to pay the mortgage money to defendant No. 6 the mortgagee in consideration of redeeming the land. In nutshell the plaintiffs have claimed that they are entitled to inhere Kartar Kaur alias Gurnam Kaur widow of Makhan Singh son of Thakar Singh alias Thakra son of Gopi son of Ram Singh on the basis of relationship delineated in the pedigree table and that Bohar Singh was not entitled to her inheritance on the basis of any will set up by him as the will set up by him was false, forged and fabricated and further they are entitled to redeem the mortgage created by Kartar Kaur alias Gumam Kaur in favour of Puran Singh vide registered mortgage deed dated 2.6.1971 on the basis of being heirs of Kartar Kaur alias Gurnam Kaur. Defendant No. 5 Bohar Singh contested the suit of the plaintiffs urging that this land has not been in any way connected with the one as belonging to Kartar Kaur widow of Makhan Singh son of Thakar Singh and that Kartar Kaur was not the daughter-in-law of Ram Singh in whose name the land stands. It was no where alleged that this land was not inherited even by this Kartar Kaur from her mother or father. In that eventuality, the land will be inherited by the heirs of her father and not those of her husband. Kartar Kaur had executed will on 15.6.1986 in favour of Bohar Singh while she was physically fit and mentally alert and in a sound disposing mind and it was on the basis of this will that inheritance of Kartar Kaur was mutated in favour of Bohar Singh. Plaintiffs and defendants No. 1 to 4 have no right, title or interest in the suit property. They are not entitled to redeem the land. 4. Plaintiffs and defendants No. 1 to 4 have no right, title or interest in the suit property. They are not entitled to redeem the land. 4. During the pendency of the suit, plaintiffs filed an application for amendment of the plaint under order 6 Rule 17 read with Section 151 CPC. By way of amendment, they sought to add the following lines : "That the facts mentioned in paras No. 2 to 4 are also finding corroboration from the judgment and decree dated 5.8.1986 vide civil suit No. 30/1985 titled Sucha Singh and others v. Ajit Singh and others. This civil suit was instituted by the present plaintiffs and deceased Sucha Singh predecessor in interest of defendant Nos. 1 to 4 regarding the land left by aforesaid Kartar Kaur alias Gurnam Kaur. The aforesaid suit was decreed on 5.8.1986." 5. It was alleged that this amendment is necessary for the just decision of the suit and to decide the matter in question completely and effectually i.e. regarding pedigree-table relationship of the plaintiffs and defendant Nos. 1 to 4 with deceased Kartar Kaur alias Gurnam Kaur, name of father of the husband of deceased Kartar Kaur alias Gurnam Kaur, the date of death of deceased Kartar Kaur alias Gurnam Kaur as the defendant pleaded that in para 4 that Kartar Kaur had died after the year of 1986 i.e. after executing will dated 15.6.1986, whereas plaintiffs have specifically pleaded in para 4 that Kartar Kaur had died in the year 1982. Previously, the plaintiffs had filed an application for permission to produce and prove the aforesaid judgment and decree dated 5.8.1986 by way of additional evidence vide application dated 2.8.1997. If the proposed amendment is allowed, additional evidence can be let in only on the facts sought to be put forth through the proposed amendment. In case the proposed amendment is allowed, no other issue shall arise nor there would be any necessity of formal proof to prove the documents as they were public documents, certified copy of which can be tendered into evidence. Certified copies of judgment and decree dated 5.8.1986 are already on record. It was also alleged that the defendants have not yet closed evidence and they can rebut the documents by leading evidence. There shall be no prejudice to the defendants if the proposed amendment is allowed. 6. Certified copies of judgment and decree dated 5.8.1986 are already on record. It was also alleged that the defendants have not yet closed evidence and they can rebut the documents by leading evidence. There shall be no prejudice to the defendants if the proposed amendment is allowed. 6. The application was opposed by defendants No. 5 and 6 urging that the proposed amendment of the plaint at this belated stage is not tenable. The amendment sought for is not an amendment but is a sort of evidence, production of which has already been declined by the Court. The order of the Court refusing the production of additional evidence cannot be got reviewed/altered in this manner. Evidence regarding relationship of the plaintiffs and defendant Nos. 1 to 4 with Kartar Kaur alias Gurnam Kaur and other connected matters has already been led by the plaintiffs and production of this evidence was declined by the court. 7. Vide order dated 30.9.1997, this application for amendment was declined. 8. Aggrieved by this order dated 30.9.1997, plaintiffs have come up in revision to this Court. 9. In my opinion, the proposed amendment should be allowed as if the proposed amendment is allowed para 4 of the plaint will be more elaborated. Para no 4 of the plaint as originally framed reads as follows : "That Kartar Kaur alias Gurnam Kaur had died issueless in the year 1982 (16.9.1982) and Makhan Singh had died during her life time, hence other three sons of Thakar Singh alias Thakra namely Surain Singh, Partap Singh and Sulakhan Singh had also died. Surain Singh left behind Kapoor Singh plaintiff No. 2 and Partap Singh was survived by Sucha Singh who died in the year of 1989 leaving behind Gurdial Kaur, Pargat Singh, Mehal Singh and Sukhwant Singh defendant Nos. 1 to 4." 10. Through the proposed amendment, they want to add that, the facts mentioned in para Nos. 2 to 4 are also finding corroboration from the judgment and decree dated 5.8.1986 vide civil suit No. 30/1985 titled Sucha Singh and others v. Ajit Singh and others. This civil suit was instituted by the present plaintiffs and deceased Such Singh predecessor in-interest of defendant Nos. 1 to 4 regarding the land left by aforesaid Kartar Kaur alias Gurnam Kaur on the basis of natural heirs of deceased Kartar Kaur alias Gurnam Kaur. The aforesaid suit was decreed on 5.8.1986. This civil suit was instituted by the present plaintiffs and deceased Such Singh predecessor in-interest of defendant Nos. 1 to 4 regarding the land left by aforesaid Kartar Kaur alias Gurnam Kaur on the basis of natural heirs of deceased Kartar Kaur alias Gurnam Kaur. The aforesaid suit was decreed on 5.8.1986. 11. It is true that in the aforesaid suit, Gurdial Kaur etc, defendants were not defendants. It is equally true the judgment can furnish a judicial instance what had weighed with court in decreeing the suit of Sucha Singh and others. This judgment and decree dated 5.8.1996 is already on the record of this case. It can be read into evidence only if foundation for its being read in evidence is laid in the plaint. 12. So, the proposed amendment is allowed on payment of Rs. 1000/- as costs. Revision allowed.