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2004 DIGILAW 451 (PNJ)

Surto (Died) through LRs. v. Shanti

2004-04-16

ASHUTOSH MOHUNTA

body2004
JUDGMENT Ashutosh Mohunta, J. - In order to challenge the judgment and decree dated 21.4.1980 passed by the Additional District Judge, Karnal, whereby the suit filed by the plaintiff-respondent has been decreed in her favour after reversing the judgment and decree dated 30.12.1978 passed by the Sub-Judge IInd Class, Panipat, the defendants have filed the present appeal. 2. In brief the facts of the case are that Smt. Shanti plaintiff filed the present suit seeking a decree for declaration to the effect that she was the owner and in joint possession of one-half share of the suit property left behind by her maternal grandfather Neki, who died somewhere in the year 1959. According to her, she was the daughter of Smt. Phool Kaur, pre-deceased daughter of Neki. Smt. Phool Kaur died in the year 1934 and was married to Swaran, father of plaintiff Smt. Shanti. Defendant No. 1 Smt. Surto is the wife of Mam Chand (pre-deceased son of Neki) whereas defendant No. 2 Smt. Dhanno is his daughter. Both the defendants got mutated the entire land measuring 121 Bighas 15 Biswas, left behind by Neki in their names to the exclusion of the plaintiff. The plaintiff, contended that the mutation of succession of Neki was sanctioned by mis-representation and fraud and by concealment of facts. The suit was contested by the defendants. They took the plea that the plaintiff was not the daughter of Smt. Phool Kaur. However, the relationship of Smt. Phool Kaur with Neki has not been denied. As the suit was filed in the year 1973, objection was also taken with regard to limitation. Plea of owners by adverse possession was also raised by defendant Nos. 1 and 2. However, defendant Nos. 3 to 8 claimed themselves to be the bona fide purchasers for consideration of the suit land. On the pleadings of the parties following issues were framed by the trial Court :- 1. Whether the plaintiff and the defendants are the owners of the land in dispute ? If so, what is the share of each owner ? 2. Whether the plaintiff is related to Neki deceased, as alleged in para 2 of the plaint ? 3. If issue No. 1 is proved, whether the mutation in favour of the defendants alone is binding upon the plaintiff ? 4. Whether the suit is within time ? 5. If so, what is the share of each owner ? 2. Whether the plaintiff is related to Neki deceased, as alleged in para 2 of the plaint ? 3. If issue No. 1 is proved, whether the mutation in favour of the defendants alone is binding upon the plaintiff ? 4. Whether the suit is within time ? 5. Whether any fraud was played upon the plaintiff in the mutation proceedings ? If so, to what effect ? 6. Whether any misrepresentation or concealment of facts was made at the time of mutation ? If so, to what effect ? 7. Whether the suit is not maintainable in the present form ? 8. Whether the suit has not been properly valued for the purposes of Court-fee and jurisdiction ? 9. Whether the defendants are entitled to special costs ? If so, to what effect ? 10. Whether the plaintiff has waived her right by conduct and is estopped from brining this suit ? 10A. Whether defendant Nos. 3 to 8 are bona fide purchasers for value, without notice ? 10B. Whether the defendants have become the owner of the suit land by way of adverse possession ? 11. Relief. As the fate of the present suit was mainly depended upon the determination of relationship of the plaintiff with Neki through her pre-deceased mother Smt. Phool Kaur, the trial Court took up issue Nos. 1 and 2 together and decided the same at the first instance. After examining evidence adduced by the parties, the trial Court came to the conclusion that the plaintiff had failed to prove her relationship of daughter with Smt. Phool Kaur, pre-deceased daughter of Neki. Consequently, issue Nos. 1 and 2 were decided against her and in favour of defendant Nos. 1 and 2. Issue No. 3 was held to be have become redundant in view of the findings on issue Nos. 1 and 2. Issue No. 4 was found in favour of the plaintiff and issue Nos. 5 and 6 were decided against the plaintiff. Issue Nos. 7, 8, 9 and 10 were decided against the defendants as having not been pressed. Issue No. 10-A was decided in favour of defendant Nos. 3 to 8. Issue No. 10-B was decided against defendant Nos. 1 and 2 and it was held that they had not become owners by adverse possession. Issue Nos. 7, 8, 9 and 10 were decided against the defendants as having not been pressed. Issue No. 10-A was decided in favour of defendant Nos. 3 to 8. Issue No. 10-B was decided against defendant Nos. 1 and 2 and it was held that they had not become owners by adverse possession. Resultantly, the suit filed by the plaintiff was dismissed by the Sub Judge IInd Class, Panipat, vide judgment and decree dated 30.12.1978. However, the appeal filed by the plaintiff-respondent was allowed by the Additional District Judge, Karnal, vide judgment and decree dated 21.4.1980 after reversing the findings of the trial Court. Now the defendants have filed the present appeal and challenge has been made to the judgment and decree dated 21.4.1980 passed by the Additional District Judge, Karnal. 3. The primary challenge of the learned counsel for the appellants is to the findings of the Additional District Judge with regard to the establishment of relationship of Smt. Shanti with Smt. Phool Kaur. According to him, though Swarn, father of Smt. Shanti, and she herself have made self-contradictory statements with regard to her age at the time of recording of the statement of the plaintiff, even then the lower appellate Court has ignored this contradiction. Another ground of challenge of the learned counsel of the appellants is with regard to the limitation. According to him, the mutation was sanctioned as back as in the year 1959 and the present suit was filed in the year 1973, i.e., after about 14 years. 4. The contentions raised by the learned counsel for the appellants have vehemently been controverted by Mr. Pritam Saini, learned counsel for the respondent. According to him, the period of limitation is to be counted from the date of knowledge of the fraud having been played by the defendants upon the plaintiff. 5. I have heard the learned counsel for the parties and have gone through the evidence adduced on record. The following substantial questions of law arise for determination by this Court :- 1. Whether the finding of the lower appellate Court to the effect that the plaintiff-respondent was given birth by Smt. Phool Kaur, daughter of Neki, is vitiated on account of mis-reading of the statements of Swarn (P.W.2), Ram Dia (P.W.3), Dharma (P.W.4), Daya Chand (P.W.8) and Lehri (P.W.9)? 2. Whether the suit filed by the plaintiff is barred by Limitation ? 3. 2. Whether the suit filed by the plaintiff is barred by Limitation ? 3. Whether defendant Nos. 1 and 2 have become owners of the suit land by adverse possession ? So far the issue with regard to the relationship of Smt. Shanti plaintiff with Smt. Phool Kaur deceased is concerned, I do not find merit in the contention of the learned counsel for the appellants that the plaintiff has failed to establish her relationship as daughter of Smt. Phool Kaur on the ground that there is contradictions in the statements of the plaintiff and her father Swaran (P.W.2). At the time when the statement of Swaran (P.W.2) was recorded he might be about 75 years old. He is an illiterate rustic villager. Such persons are simpleton and are unable to keep proper account about the ages of their children. Even otherwise also, to the parents their children always look younger than their actual age. Thus, much importance cannot be attached to the version given by Swaran (P.W.2) with regard to the age of his daughter Smt. Shanti plaintiff. Smt. Shanti has given her exact age, which tallies with the version given by her father Swarn (P.W.2) that she was born two years prior to the death of her mother Smt. Phool Kaur in the year 1934. The statement of the plaintiff was recorded in the year 1974. Thus, exactly the age of Smt. Shanti tallies with her version that she was 42 years of age at the time of recording of her statement. The statements of P.W.3 Ram Dia, P.W.4 Dharma, P.W.8 Daya Chand and P.W.9 cannot be brushed under the carpet merely because Smt. Surto (defendant No. 1) had got lodged a report against them. Admittedly, Neki deceased had two brothers, namely, Harphool and Udmi. Daya Chand (P.W.9) is the son of Harphool, whereas Ram Dia (P.W.3) and Dharma (P.W.4) are the sons of Udmi. These witnesses have first hand knowledge about the pedigree table of the family and they could not be faulted on any material fact. Their statements find corroboration from the statements of P.W.1 Badlu, P.W.5 Jeetu and P.W.7 Hukma, who are independent witnesses. 6. Defendant Nos. 1 and 2 took up the plea that the plaintiff was the daughter of the second wife of Swaran (P.W.2) and not of Smt. Phool Kaur deceased. Their statements find corroboration from the statements of P.W.1 Badlu, P.W.5 Jeetu and P.W.7 Hukma, who are independent witnesses. 6. Defendant Nos. 1 and 2 took up the plea that the plaintiff was the daughter of the second wife of Swaran (P.W.2) and not of Smt. Phool Kaur deceased. The suggestion of second marriage has emphatically been denied by Swaran (P.W.2). In order to prove the second marriage of Swaran (P.W.2), the defendants examined D.W. 3 Neki Ram son of Raje, who claimed himself to be the maternal uncle of Smt. Shanti plaintiff. He deposed that the plaintiff Smt. Shanti was his sisters daughter. The name of his sister was Chhoto. He further stated that Chhoto was the daughter of one Shishu. He even did not know whether Smt. Chhoto was alive or dead. He failed to tell that how many brothers and sisters the plaintiff had. He then said that Smt. Chhotos real brother was one Mam Chand, who has died. He then admitted that Smt. Surto (defendant No. 1) had sold 10 Killas of land to his sisters son. It shows that he was a procured witness and no reliance can be placed on his testimony. Not only this, in the written statement filed on behalf of defendant Nos. 1 and 2 no specific plea has been taken that the plaintiff was not the daughter of Smt. Phool Kaur but she was the daughter of Smt. Chhoto. Otherwise also, it has nowhere been averred in the written statement that Smt. Phool Kaur had died issueless and Smt. Shanti was born to the second wife of Swaran (P.W.2). In case the plaintiff had not been the daughter of Smt. Phool Kaur, then defendant Nos. 1 and 2 would have taken this plea at the very outset and they would have examined many more witnesses to contradict the statements of the witnesses examined by the plaintiff. On the other hand, Hukma (P.W.7), who is the brother of Swaran (P.W.2) has given detailed account with regard to the birth of the children born out of the wed-lock of Smt. Phool Kaur deceased and Swaran (P.W.2). He brought with him the Bahi regarding the marriage of Swaran (P.W.2) with Phool Kaur deceased. He deposed that earlier a son was born from the wed-lock of Smt. Phool Kaur deceased and Swaran (P.W.2) and he died. He brought with him the Bahi regarding the marriage of Swaran (P.W.2) with Phool Kaur deceased. He deposed that earlier a son was born from the wed-lock of Smt. Phool Kaur deceased and Swaran (P.W.2) and he died. Thereafter, a daughter was born to them, i.e., Smt. Shanti. 7. Still further, the conduct of defendant Nos. 1 and 2 in selling a part of the suit property to defendant Nos. 3 to 8 vide sale deed (Ex. D1) further goes to highlight flaws in their evidence. The plaintiff had instituted this suit in the year 1973. The sale deed (Ex. D1) is dated 27.7.1976. In case the defendants were on firm footing, then they could not have sold away 18 Bighas 9 Biswas of land for Rs. 30,000/- to defendant Nos. 3 to 8 during the pendency of litigation. Defendant-respondent Nos. 3 to 8 also cannot be considered to be the bona fide purchasers for value. No prudent person would like to purchase land with regard to which litigation was going on. 8. In the light of the above discussion, it stands proved that Smt. Shanti plaintiff is the daughter of Smt. Phool Kaur deceased and defendant Nos. 3 to 8 are not bona fide purchasers for value. 9. With regard to the question about limitation, it is the case of the plaintiff that she came to know about the fraud played upon her by defendant Nos. 1 and 2 to the effect that they had got sanctioned the mutation in their name by mis-representation when she obtained a copy of the Jamabandi for the year 1970 with regard to the suit land on 3.8.1973. This version of the plaintiff cannot be disbelieved as she belonged to a different village and throughout she remained under impression that the suit land was being managed by defendant Nos. 1 and 2. Immediately on coming to know about the fraud having been played upon her, she filed the present suit on 22.8.1973. Thus, the period of limitation would start running from the date of knowledge and not from the date when the mutation was sanctioned in favour of defendant Nos. 1 and 2. Thus, it is held that the suit filed by the plaintiff was not barred by limitation. 10. Thus, the period of limitation would start running from the date of knowledge and not from the date when the mutation was sanctioned in favour of defendant Nos. 1 and 2. Thus, it is held that the suit filed by the plaintiff was not barred by limitation. 10. The plea of adverse possession taken on behalf of the defendant- respondents is also without any merit as it is settled law that the possession of one co-sharer is the possession of all the share holders. Consequently, I do not find any infirmity in the well-reasoned judgment and decree dated 21.4.1980 passed by the Additional District Judge, Karnal. Resultantly, there is no merit in this appeal. It is, accordingly, dismissed. However, there shall be no order as to costs. Appeal dismissed.