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2010 DIGILAW 1715 (PNJ)

Bati @ Premwati v. Javitri

2010-05-18

MAHESH GROVER

body2010
JUDGMENT Mahesh Grover, J.:- C.M. No.3672-C of 2010 C.M. is allowed. Amended grounds of appeal and substantial question of law are taken on record. C.M.No.13836-C of 2009 Allowed as prayed for. C.M.Nos.13835 & 13837-C of 2009 in/and R.S.A.No.4610 of 2009 The defendant is in second appeal. The plaintiffrespondent filed a suit claiming herself to be the daughter of Mohar Singh and thereby laying a claim to his estate. Mohar Singh was owner to the extent of 1/3rd share in the suit land which was jointly held by him along with his brothers Suraj Mal and Hazari. The appellant disputed the claim and pleaded that she was the daughter of Mohar Singh. The entire controversy therefore centered around the determination of the fact as to whether the appellant or the defendant was the daughter of Mohar Singh so as to succeed his estate. 2. The parties went to trial on the following issues:- 1. Whether the plaintiff is owner and in joint possession of ½ share of estate left behind by her deceased father Mohar Singh, i.e. 1/6th share of the whole suit land, as alleged? OPP 2. Whether the mutation of inheritance, partition order dated 26.5.1997 and consequent revenue entries are incorrect, null and void and not binding on the plaintiff, as alleged? OPP 3. Whether the plaintiff is entitled to injunction, as prayed for? OPP 4. Whether the plaintiff has no locus-standi to file the suit? OPD 5. Whether the suit is not maintainable? OPD 6. Whether the defendant is entitled to special costs, if so to what amount? OPD 7. Relief. 3. Both the Courts below determined on the basis of material which is available for their appraisal that the plaintiff-respondent was the daughter of Mohar Singh and consequently she was entitled to inherit his estate. 4. Questioning the findings recorded by the Courts below in the instant regular second appeal learned counsel for the appellant has contended that in the proceedings before the revenue authorities pertaining to the sanctioning of mutation, Hazari had admitted that Mohar Singh was having one daughter. He thus placed reliance on Section 50 of the Indian Evidence Act to contend that apart from the statement of Hazari the statement of his son also became a relevant piece of fact which should have been considered by the Courts below to determine the relation of the parties. He thus placed reliance on Section 50 of the Indian Evidence Act to contend that apart from the statement of Hazari the statement of his son also became a relevant piece of fact which should have been considered by the Courts below to determine the relation of the parties. He thus contended that the findings recorded by the Courts below are erroneous, perverse, contrary to the evidence on record and hence liable to be set aside. He also contended that the application for getting DNA test conducted was erroneously not allowed by the Courts below and this exercise in itself would have led to the positive conclusion of the controversy. 5. I have heard the learned counsel for the appellant and have perused the material on record but I am unable to agree with the contentions raised by the learned counsel for the appellant. If the evidence on record is to be seen then the respondent produced a birth certificate Ex.P1 indicating that she was born on 18.12.1949 as a daughter of Mohar Singh. The registration of this certificate is on 24.12.1949, barely within six days of the birth. Ex.P2 is the birth certificate of the appellant showing her date of birth as 15.10.1953 and this certificate is registered on 17.12.1953. These are pieces of evidence which could not have been ignored by the Courts below and have therefore rightly relied upon the same. Such documents which are registered at the earliest point of time lend an authenticity to them and could not have been doubted unless the appellant by way of effective cross-examination and counter material dislodge them. The Courts have therefore rightly concluded that both the appellant and the respondent were born to Mohar Singh and were entitled to succeed to his estate. These are pure findings of fact which have been determined by the Courts below and in the absence of any substantial question of law the appeal being devoid of any merit is dismissed. Consequently the accompanying pending applications are also dismissed. --------------