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2010 DIGILAW 787 (PNJ)

Hawa Singh v. Daya Nand And Others

2010-02-03

RAKESH KUMAR JAIN

body2010
Judgment Rakesh Kumar Jain, J. 1 Plaintiff No. 1 has preferred this appeal against judgment and decree of both the Courts below. 2 Plaintiff No. 1 along-with performa respondent Nos. 6 to 9 filed a suit for declaration with consequential relief of permanent injunction. Parties to the suit belong to the same family. Pedigree table as provided in para No. 1 of the plaint is reproduced below:- 3 Plaintiff No.l. and performa respondents have challenged judgment and decree passed in Civil Suit No.1086 of 17.11.1995 titled as Daya Nand V/s. Bhani, primarily on the ground that property in dispute is ancestral which could not have been transferred by Bhani by way of a decree in favour of defendant No.l. Daya Nand. 4 In the written statement, it was denied that the land in question is ancestral. Rather, it is claimed that Bhani-defendant No.5. had inherited the property in question from her husband by way of succession and had become absolute owner as per Section 14 of the Hindu Succession Act, 1956. 5 On the pleadings of the parties, following issues were framed:- 1. Whether the Civil Court decree and judgment dated 9.12.95 passed in Civil suit no.1086 is illegal, null and void ineffective,in operative and without jurisdiction on the ground mentioned in the plaint? OPP 2. Whether the Judgment and decree are mere paper transaction and fraud and mis-representation? OPP 3. Whether the plaintiffs are owners in possession of the suit and to the extent of 2/3rd share mentioned in the plaint? OPP 4. Whether the parties to the suit are agriculturist and they are governed by customary law in matter of alienation? OPP 5. Whether their exists any custom, a female has no right as alleged in the plaint, if so as to what effect? OPP 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the plaintiffs have no locus-standi to file the present suit? OPD 8. Whether the suit is barred U/O 23 rule 3-A CPC? OPD 9. Whether the defendant No.5 has become absolute owner in possession of the suit property? OPD 10. Relief. OPP 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the plaintiffs have no locus-standi to file the present suit? OPD 8. Whether the suit is barred U/O 23 rule 3-A CPC? OPD 9. Whether the defendant No.5 has become absolute owner in possession of the suit property? OPD 10. Relief. 6 In order to substantiate their respective cases, the plaintiffs examined Hawa Singh as PW-1 who proved Ex.P-1 jamabandi for the year 1991-92, Ex.P-2, mutation dated 24.2.1996, Ex.P-3 Sajra Nasab (Pedigree table), Ex.P-4 copy of judgment dated 9.12.1995, Ex.P-5 copy of decree sheet dated 9.12.1995, Mark-A copy of plaint dated 17.11.1995, Mark-B copy of written statement dated 6.12.1995, Satte appeared as PW-2, Shashi Bhushan, Sadar Patwari appeared as PW-3 and proved Ex.P-6 Excerpt (half in Urdu) and plaintiffs evidence was closed on 6.4.2005. 7 Defendants examined Bhagwan as DW-1 who tendered his affidavit as Ex.DWl/A and proved Ex.DlVoter list for the year 1989, Ex.D-2 Voter list for the year 1999, Ex.D-3 jamabandi for the year 2001-2002, Ex.D-4 Mutation dated 16.2.1996/24.2.1996, Ex.D-5 Voter list for the year 1981, Ex.D-6 Khasra Girdawari for the year 1999 to 2005, Ex.D-7 copy of judgment (same as Ex.P4), Ex.D8 copy of decree sheet (same as Ex.P5) and closed their evidence on 17.8.2005. 8 In rebuttal, plaintiffs tendered document Ex.P6/A (Hindi version of Urdu document of Ex.P6) and closed their evidence in rebuttal on 1.10.2005. 9 The trial Court dismissed the suit of the plaintiffs vide its judgment and decree dated 03.10.2005 which was challenged in appeal only by plaintiff No.1. 10 Learned first Appellate Court carved out four questions from the pleadings and arguments raised by learned counsel for the parties:- (i) Whether or not the suit property was ancestral? (ii) Whether or not Smt. Bhani was competent to alienate the suit property on the ground of prevalent custom? (iii) Whether or not the judgment and decree date 9.12.1995 required registration? (iv) Whether or not, the suit was barred under the provisions of Order 23 Rule 3-A of Code of Civil Procedure, 1908? 11 All the four questions were decided by learned first Appellate Court against the plaintiff/appellant and dismissed his suit vide its judgment and decree dated 12.4.2008. (iii) Whether or not the judgment and decree date 9.12.1995 required registration? (iv) Whether or not, the suit was barred under the provisions of Order 23 Rule 3-A of Code of Civil Procedure, 1908? 11 All the four questions were decided by learned first Appellate Court against the plaintiff/appellant and dismissed his suit vide its judgment and decree dated 12.4.2008. 12 The present appeal has been filed by plaintiff No.l alone on the following alleged substantial questions of law, namely: a) Whether a judgment and decree passed only as a mere paper transaction be enforced against the judgment debtor? b) Whether a judicial admission regarding existence of a custom needs to be proved? c) Whether their exists any custom to the effect that a female has no right to decree away the whole ancestral property? d) Whether there is a misreading of the evidence by both the courts below? e) Whether grave and manifest injustice has been caused to the appellants? 13 During the course of hearing of this appeal, record of the trial Court was summoned. 14 Although, aforesaid questions have been framed, but the appeal is based upon the fact as to whether the property in dispute was ancestral in the hands of Bhani when she had suffered a decree in favour of Daya Nand because if the property in dispute is non-ancestral, then the plaintiff would have no right to challenge the decree. 15 It is well settled that presumption is in favour of the land being non-ancestral unless and until it is proved to the contrary that it is ancestral. Burden was upon the plaintiff to prove the fact that the land in question, before it was inherited by Bhani, was ancestral in the hands of her husband Mange Ram. In order to prove this fact that the land in dispute is ancestral, reliance has been placed upon by the plaintiff on the document Excerpt Ex.P-6. 16 Learned first Appellate Court while relying upon the decision in the.case of Banta Singh and others v. Phuman Singh and another, 1972 P.L.J. 275 held that revenue excerpt must be formally proved by examining as witness the person who prepared it. It was also held that document Ex-P6 has not been proved by the witness who had prepared the same. It was also held that document Ex-P6 has not been proved by the witness who had prepared the same. It was further held that the document Ex.P-6 itself does not prove the nature and character of the suit property. 17 Learned counsel appearing for the appellant has miserably failed to find fault with the finding of learned first Appellate Court. In this regard, in the case of Banta Singh and others (supra), this Court has held as under:- "The revenue excerpt is no part of the record of rights and does not carry any presumption of correctness. It has to be formally proved by the examination in the witness box of the person who has prepared it on the basis of the entries in the various settlement records and jamabandis. It is an extract or synopsis of entries collected from diverse places and its value depends on how truly it has reproduced the original entries. If there is any doubt about a particular entry in the excerpt, it will always be open to the Courts to have it removed by reference to the original records on the basis of which the excerpt was prepared". 18 It is also provided that in Rules (v) and (vi) of Chapter-9 of High Court Rules & Order, Volume I as to how excerpt has to be proved. Rules (v) and (vi) aforesaid are reproduced below:- (v) Excerpt should be a true copy and should be proved.- Court must remember that unless proved the excerpt of the Special Kanungo or Patwari Muharrir is not evidence and must not be treated as such. The Special Kanungo or Patwari Muharrir must, when he goes to Court always bring with him the original records from which his excerpt has been compiled, so that he may be available for comparison. He must always be put on oath, and be asked to say whether the excerpt is a true copy of a portion of the original records. The excerpts must be a correct copy of such portions of the records as are relevant and not merely a summary or paraphrase. (vi) Comparison with original- The Court should, as a rule, compare, with the original records some of the entries in the abstract and initial at date those thus compared. The excerpts must be a correct copy of such portions of the records as are relevant and not merely a summary or paraphrase. (vi) Comparison with original- The Court should, as a rule, compare, with the original records some of the entries in the abstract and initial at date those thus compared. 19 The aforesaid rules provide that unless excerpts prepared by Kanungo or Patwari Moharrir is proved, it is not an evidence and must not be treated as such. The Special Kanungo or Patwari Muharrir must bring the original record when they go to the Court for their examination so that it may be available for comparison. He must always be put on oath, and be asked to say whether the excerpt is a true copy of a portion of the original records and as a rule, the Court should compare with the original record some of the entries in the abstract and initial and put a date on the entry so compared. In the present case, however, no such presumption can be attached. Therefore, it cannot be said that the plaintiff has been successful in proving the nature of land to be ancestral so as to maintain his suit. 20 Moreover, there is no evidence that Mange Ram had inherited the suit property from his great grand father. In the absence of positive evidence about the nature of the property in dispute being ancestral, presumption is that it is non ancestral and Bhani being its absolute owner had a right to alienate the same as per her sweet will, which she exercised by way of suffering a decree in favour of defendant No.l Daya Nand. 21 No other point has been argued before me by learned counsel for the appellant. 22 In view of the above, 1 do not find any question of law muchless substantial which is framed in para 9 of the memo of appeal. Thus, in view thereof, the present appeal is dismissed, though without any order as to costs.