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2002 DIGILAW 858 (PNJ)

Maha Singh v. Bakhtawari

2002-08-29

V.K.BALI

body2002
Judgment V.K.Bali, J. 1. This appeal has been filed by the defendants to the original lis, against whom a decree for possession by way of redemption of land was passed. Hence, present Second Appeal on behalf of the defendants. 2. Brief facts of the case culminating into filing the present appeal reveal that Smt. Dhapan was the original owner of the property in dispute. She mortgaged her property to the predecessors-in-interest of the defendants in the year 1948. Daughter of Smt.Dhapan, namely, Bakhtawari, plaintiff in the original lis, filed suit, as mentioned above, for possession by way of redemption of mortgage. Learned trial Court decreed the suit.Ag-grieved, the defendants filed an appeal, which has since been dismissed on 22.9.1978. 3. The matter was contested by the defendants on number of grounds that would be reflected from the issues reproduced below:- "1. Whether the plaintiff is the owner and mortgagor of the land in dispute on the grounds pleaded in the plaint? OPP 2. On payment of what amount is the plaintiff entitled to redeem the mortgage on the suit land? OPP 3. Whether civil Courts at Sonepat have no jurisdiction to try the suit? OPD 4. Whether the suit is barred by resjudicata? OPD 5. Whether the suit is barred by time? OPD 6. Whether the suit is bad for misjoinder of causes of action and parties? OPD 7. Whether the land in suit is ancestral property qua the defendants, if so to what effect? OPD 8. Whether the suit is bad for non-joinder of all biswedars of the village? OPD. 9. Whether the plaintiff has a locus standi to file the suit? OPP 10. Whether the defendants are entitled to special costs under Section 35-A CPC, if so what extent? OPD. 11. Relief." 4. The main contention was with regard to Bakhtawari being daughter of Dhapan. This issue, like other issues, was determined in favour of the plaintiff. 5. Mr. H.S. Hooda, learned Senior Advocate appearing on behalf of the defendants vehemently contends that there is no legal evidence to connect Bakhtawari with the original landowner/mortgagor of the land in dispute and, therefore, the judgment and decree passed by learned trial Court and confirmed by learned first Appellate Court needs to be set aside. 6. I do not find any merit in the contention aforesaid of learned counsel. 6. I do not find any merit in the contention aforesaid of learned counsel. The question pertaining to Bhaktawari being daughter of Dhapan has been dealt with under issues 1 and 9. Findings recorded by learned appellate Court on the aforesaid issues run thus:- "The evidence of the plaintiff-respondents consists of the statement of PW-1 Piare Lal. PW-2 Mange, PW-3 Smt. Bakhtawari the plaintiff and PW-4 Surat Singh.The documentary evidence consists of a certified copy of the birth entry Ex.P1, copy of pedigree-table Ex.P-2, copy of mutation Ex.P-3 to Ex.P-7 and certified copy of the order of the Collector dated 29.6.54 Ex.P-8. The evidence of the defendant-appellants consists of the statement of DW-1 Chatru, DW-2 Tara Chand and DW-3 Dhan Singh. The documentary evidence of the defendant-appellants consists of a certified copy of the judgment of Sub Judge, Gohana dated 2.1.1971 in Bakhtawani v. Sri Chand and Ors. Ex.D-1. Another certified copy of the order of the District Judge. Rohtak dated 10.4.1972 which is Ex.D-1. It has been averred in para No. 3 of the plaint that Smt. Dhapan mortgaged the land in favour of the predecessor-in-interest of the defendant-appellants vide mutation No,1639 and 1640. One mutation is Ex.P-10 and is at page 14 of the records. The factum of mortgage is well established. The important part of the issue is whether Smt. Bakhtawari plaintiff now respondent is the daughter of Smt. Dhapan or not. In support of her claim. Smt. Bakhtawari plaintiff now respondent has appeared as PW-3 and her statement is at pages 98 and 99 of the records. There was not even a suggestion to her that she is not the daughter of Dhapan when she appeared as a witness. The other witnesses PW-4 Piare Lal and PW-2 Mange both have specifically stated that Smt. Bakhtawari plaintiff-respondent is the daughter of Dhapan and Dhapans husband was Dattu. Besides this, there is a certified copy of the birth entry from the office of the Registrar of Deaths and Births Ex.P-1, which clearly shows that she was born on 16.6.1896. There was no other child born and the evidence in rebuttal wherein DW-2 Tara Chand and DW-3 Dharam Singh defendant-appellant had come and made a denial that Dattu and Dhapan ever had any daughter. There was no other child born and the evidence in rebuttal wherein DW-2 Tara Chand and DW-3 Dharam Singh defendant-appellant had come and made a denial that Dattu and Dhapan ever had any daughter. There is no reason why the birth entry Ex.P-1 should not be relied upon and in view of the corroboratlon briefly referred to above the finding of the learned trial Court does not call for any interference and is hereby affirmed and it is held that the issues Nos. 1 and 9 were rightly decided by the learned trial Court in favour of the plaintiff-respondents. In Sukh Ram v. Kundan etc., 1979 Cur.L.J. 334, it has been held that the entry contained in birth and death register can be proved by filing certified copies cited on behalf of the appellants is in reality more helpful to the plaintiff-respondents." 7. In fact, Court finds overwhelming evidence on the record to prove Bhaktawari as daughter of Dhapan. Not only that statement made by plaintiff itself was not questioned in the cross-examination, said statement was also corroborated by Piare Lal (PW-1) and Mange (PW-2). The contention of learned counsel that in the birth certificate, Ex.P-1, name of the daughter is not mentioned is wholly meritless, as, naturally, a child is named lateron. It is further not disputed that what is mentioned in the birth certificate, Ex.P-1, is that a daughter was born to Dhapan. It is significant to mention that to rebut evidence, only defendants appeared as their own witnesses. They being interested witnesses, no reliance could be placed upon their testimony. 8. Finding no merit in this appeal, the same is dismissed, leaving however, the par ties to bear their own costs.