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2004 DIGILAW 590 (PNJ)

Balvinder Kaur v. Charan Kaur

2004-05-19

HEMANT GUPTA

body2004
JUDGMENT Hemant Gupta, J. (Oral) - The plaintiff-appellant is in second appeal aggrieved against the judgment and decree of the Courts below arising out of suit for possession of her half share. 2. One Atma Singh had two sons, namely, Jit Singh and Mohar Singh. The plaintiff claims that she is the daughter of Mohar Singh and, therefore, is entitled to succeed to the estate of Mohar Singh to the extent of half share along with his brother Balvinder Singh. The said suit was filed in the year 1975 against the widow and minor children of Balvinder Singh. It was the case of the plaintiff-appellant that Mohar Singh and Atma Singh have died after the commencement of the Hindu Succession Act, 1956, and, therefore, she as a daughter of Mohar Singh is entitled to succeed to the estate of Mohar Singh along with his brother Balvinder Singh. 3. The defendants contested the suit and denied the relationship of the plaintiff with Mohar Singh as that of daughter. It was also alleged that Mohar Singh and Atma Singh have also died prior to the commencement of the Hindu Succession Act, 1956. Both the courts have returned a concurrent finding of fact that the appellant is proved to be the daughter of Mohar Singh but dismissed the suit after returning a finding that Mohar Singh is not proved to have died after the commencement of the Hindu Succession Act, 1956. 4. Before this Court, learned counsel for the appellant has submitted that from the testimony of the witnesses of the plaintiff and birth certificate (Ex. PC), it is apparent that a female child was born in the family of Mohar Singh in the year 1951. Therefore, the findings recorded by the courts below that Atma Singh died at the time of partition of the country and Mohar Singh had pre-deceased him cannot be sustained. 5. Learned counsel for the appellant further argued that the application for the additional evidence was filed before the First Appellate Court for permission to lead evidence pertaining to death certificate of the year 1959 and release certificate for the year 1953 from Ferozepur Jail in respect of Mohar Singh. The said application was declined by the First Appellate Court for the reasons that the appellant earlier sought amendment in the plaint to plead the date of death of Mohar Singh as 25.3.1959 but such amendment was declined. The said application was declined by the First Appellate Court for the reasons that the appellant earlier sought amendment in the plaint to plead the date of death of Mohar Singh as 25.3.1959 but such amendment was declined. Revision against the said order was also dismissed. Therefore, the First Appellate Court has found that no case is made out for permission to lead additional evidence. 6. Learned counsel for the appellant has vehemently argued that although the appellant has sought amendment in the plaint to lead date of death of Mohar Singh in the revision petition yet while declining amendment of the plaint, this Court has permitted the appellant to move an application for additional evidence. Therefore, the application for additional evidence could not be declined by the First Appellate Court for the reasons that the revision petition against the order declining the amendment stands dismissed. 7. A perusal of the order passed by this court in Civil Revision No. 1708 of 1987 dated 22.12.1981 shows that the amendment in the plaint was declined for the reasons that Mohar Singh is alleged to have died on March, 1959 and suit was filed in the year 1975 i.e. after more than 14 years. It was found that no valid explanation has been furnished by the petitioner to seek amendment at this late stage. 8. The appellant has filed the suit for possession in the year 1975. The suit was decided in the year 1979. Earlier, the appellant has moved an application for additional evidence before the First Appellate Court for producing a copy of the Sale-deed and the Revenue record which was allowed on 10.3.1980. Thereafter, the appellant moved another application for amendment of the plaint which was declined. Thereafter the appellant moved an application for permission to lead additional evidence which was declined by the First Appellate Court on 6.9.1982. The appellant has not given any reasons as to why the evidence now sought to be produced by way of additional evidence could not be led during the course of trial. There is no explanation given as to why such additional evidence was not sought when application for additional evidence moved earlier which was allowed on 10.3.1980. Therefore, the appellant has not made out any case for permission to lead additional evidence. 9. There is no explanation given as to why such additional evidence was not sought when application for additional evidence moved earlier which was allowed on 10.3.1980. Therefore, the appellant has not made out any case for permission to lead additional evidence. 9. Learned counsel for the appellant has relied upon the judgment in the case of Parsotim Thakur and others v. Lal Mohar Thakur and others, AIR 1931 Privy Council 143 to contend that where the appellate Court requires the additional evidence, it can be permitted to be led in appeal. However, the said judgment is clearly distinguishable. It has been held in the said judgment itself that by way of additional evidence, the unsuccessful litigant cannot be permitted to patch up weak parts of his case and fill up omissions in court of appeal. Keeping in view the fact that the appellant has not sought production of these evidence, even in the first instance before the First Appellate Court, I do not think that the appellant has any justification for leading additional evidence at a subsequent stage. 10. Both the courts have examined the evidence led by the parties to return a finding that Mohar Singh and Atma Singh had died long before the coming into force of the Hindu Succession Act, 1956. Even if the argument of the learned counsel for the appellant that a female child was born to Mohar Singh in the year 1951 is accepted, still it cannot be said that Mohar Singh had died after the commencement of the Hindu Succession Act, 1956. One cannot lose sight of the fact that the appellant was permitted to lead additional evidence to produce Sale-deed dated 8.2.1960 alleged to be executed by Atma Singh and Gurdit Singh by the First Appellate Court earlier. It has been found that, in fact, Atma Singh has been impersonated by Dial Singh. It was the case where Dial Singh impersonated himself as Atma Singh in executing a sale-deed in the year 1960. The appellant has relied upon such manipulated sale-deed to prove her case which shows that the conduct of the appellant cannot be appreciated. The findings of fact have been recorded by the courts below that Mohar Singh and Atma Singh had died prior to commencement of the Hindu Succession Act, 1956. The finding is based on proper appreciation of evidence. No substantial question of law arises. Dismissed. Appeal dismissed.