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2003 DIGILAW 921 (PNJ)

Amar Kaur v. Dhanna Singh

2003-07-10

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 against the judgment of reversal passed by the District Judge, Faridkot on 18,4.2003 holding that the plaintiff-appellant has failed to prove that she alongwith defendant-respondents 6 and 7, namely, Balraj Singh and Bal-dev Singh are the legal heirs of Sarban Singh. It is appropriate to mention that the plaintiff-appellant Amar Kaur through one Balbir Singh has filed a suit for declaration to the effect that she alongwith her son Balraj Singh and Baldev Singh are the owners in possession of 1/34 share out of the suit land. The trial Court decreed the suit and granted the declaration that the plaintiff-appellant and defendant-respondent 6 and 7 are joint owners of the suit land and also passed a decree for joint possession. On appeal, the District Judge found that the attorney Balbir Singh through whom the suit has been filed never met plaintiff-appellant Amar Kaur any time before, on or after her marriage with Sarban Singh. It was also found that Sarban Singh had shifted to Malaysia in the year 1952. The question which has been determined by the District Judge is whether Amar Kaur plaintiff-appellant is the legally wedded wife and defendant-respondent 6 and 7 are the sons of Sarban Singh. The District Judge found that the facts with regard to relationship of Sarban Singh with Amar Kaur was only in the specific knowledge of Amar Kaur and no attorney could have deposed about that relationship. Neither Amar Kaur nor her sons defendant-respondents 6 and 7 have ever appeared before the Court. 2. I have heard Mr. J.S. Brar, learned counsel for the plaintiff-appellant who has argued that overwhelming evidence showing that Balraj Singh and Baldev Singh defendants No. 6 and 7 were born to Amar Kaur and their birth certificates issued by the Ma-laysian Government prove the fact that Amar Kaur is the wife of Sarban Singh and defendant-respondents No. 6 and 7 are her sons. According to the learned counsel those certificates could not be brushed aside by the learned District Judge. 3. According to the learned counsel those certificates could not be brushed aside by the learned District Judge. 3. I have thoughtfully considered the submissions made by the learned counsel but regret my inability to accept the same because the birth certificates Exs.P2 and P3 showing that Balraj Singh defendant-respondent No. 6 was born on 5.9.1970 and Baldev Singh defendants No. 6 and 7 was born on 15.7.1972 at General Hospital Maur Kau-lalampur (Malaysia) are not sufficient to establish the marriage of Amar Kaur with Sarban Singh. Under Section 50 of the Indian Evidence Act, 1872 in order to prove relationship between the parties, the plaintiff-appellant was required to produce such witnesses who had exclusive knowledge of relationship of the parties and any other documentary evidence. No witness has been produced showing that marriage was solemnised between Amar Kaur and Sarban Singh or that they had seen both of them living as husband and wife. Even Amar Kaur plaintiff-appellant has failed to appear in the witness box to prove her relationship. The statement of attorney of Amar Kaur, namely Balbir Singh has also been examined by the learned District Judge to conclude that he never saw Amar Kaur. The power of attorney was received through post. Sarban Singh died in the year 1989 at the age of 77 years. On the question of validity of the birth certificates, the learned District Judge has rightly held that those certificates cannot constitute the basis to conclude that there was relationship of husband and wife between the parties. Therefore, the appeal is liable to be dismissed. For the reasons stated above, this appeal fails and the same issed.