1. The predecessors-in-interest of appellants instituted a Civil Original Suit on 16th October, 1983 against the respondents in the court of Sub-Judge, Udhampur. In the suit, the predecessors-in-interest of appellants prayed for issuance of decree for declaration to declare respondents not to be daughters of Dina Nath. It was further prayed it be declared that they are not entitled to get any share in the property. In the plaint, it was pleaded that Sri Kant, Dina Nath and Bhagat Ram were three brothers. Dina Nath had not married and Sri Kant died leaving behind his widow Mst. Kastu. It was further pleaded in the plaint that respondents/defendants are wrongly claiming themselves to be daughters of Dina Nath. 2. The defendants/respondents filed written statement, in which, they specifically pleaded that Sri Kant, who was real brother of Dina died, his widow, Kastu remarried with Dina in accordance with the custom and after this marriage of Dina with Kastu, they lived together as husband and wife and it is from this wedlock the respondents/defendants were born. It was also pleaded in the written statement that after the death of Dina, order on mutation was passed in favour of defendants/respondents, but the said order did not cover the whole of the share, which constrained them to file an appeal and after the orders passed in the appeal, the fresh order on mutation was passed in favour of the defendants/respondents. It was further pleaded by the defendants/respondents in the written statement that the order on mutation was passed in presence of predecessors-in-interest of present appellants. It was specifically pleaded that the defendants/respondents are legitimate daughters of Dina Nath. Kastu, their mother begot them to their father Dina Nath. The respondents accordingly prayed for dismissal of the suit. The learned trial court on 16th August, 1984 framed three issues, which are taken note of:- "i) ... Whether Dina deceased was a bachelor and he had not entered into marriage with Mst. Kastu the mother of defendants? O.P.P. ii) Whether the plaintiffs after the death of Dina are entitled to inherit the property and the compensation of the land of Dina deceased situated at Badali Which has been acquired by police lines Udhampur? O.P.P. iii) Relief..." 3.
Whether Dina deceased was a bachelor and he had not entered into marriage with Mst. Kastu the mother of defendants? O.P.P. ii) Whether the plaintiffs after the death of Dina are entitled to inherit the property and the compensation of the land of Dina deceased situated at Badali Which has been acquired by police lines Udhampur? O.P.P. iii) Relief..." 3. After the evidence of the parties was recorded, learned trial judge has dismissed the suit of the plaintiffs by holding that they have failed to prove the issue no. 1 in their favour. Accordingly issue no. 2 was decided against them and consequently the suit was dismissed. The appeal was filed against the decree and judgment of the learned trial court which also suffered dismissal. 4. This Civil 2nd Appeal is filed by the appellants on the principle ground that the learned trial court has recorded perverse findings of fact in the judgement by saying that the respondent's witness Des Raj had stated in his evidence before the learned trial court that Kastu was married with Dina Nath and from the said wedlock, respondents were born, when as a matter of fact, no such statement was made by the Des Raj. Learned counsel for the appellants referred to the statement of Des Raj to show that he had never made such a statement. Learned counsel, accordingly, stated that the decree and judgment is based on perverse evidence and in view of the law laid down by the Hon'ble Supreme court in case titled Kulwant Kaur and Ors. v. Gurdial Singh Mann and Ors. reported in (2001)4 SCC, 262 a substantial question of law is involved. Learned counsel, accordingly, prayed for admission of this appeal on this substantial question of law. 5. Mr. Sharma, learned counsel for the respondents, however, submitted that even if, it is assumed, that it was not proved during the trial that Kastu was legally wedded wife of Dina Nath, but the defendants would still be entitled to inherit Dina Nath as Kastu begot these daughters to Dina Nath. Learned counsel in support of his contention referred to case titled Revanasiddappa and Anr. v. Mallikaarjuna and Ore. reported in (2011) 11SCC, 1 as also referred to case titled Bharatha Amatha and Anr. v. R. Vijaya Renganathan and Ors. reported in (2010) 11S CC 483.
Learned counsel in support of his contention referred to case titled Revanasiddappa and Anr. v. Mallikaarjuna and Ore. reported in (2011) 11SCC, 1 as also referred to case titled Bharatha Amatha and Anr. v. R. Vijaya Renganathan and Ors. reported in (2010) 11S CC 483. Learned counsel further submitted that there are two concurrent facts in favour of the respondents and there being no substantial question of law involved, this appeal would merit dismissal. 6. The suit filed by the predecessors-in-interest of appellants was to declare that defendants/respondents are not daughters of Dina Nath and, as such, are not the legal heirs of Dina Nath. The issue no. 1 framed by the learned trial court was whether Dina Nath was a bachelor and he had not entered into marriage with Mst. Kastu, the mother of the defendants. There was no issue framed as to whether in absence of the valid marriage between Mst Kastu, the mother of defendants and Dina Nath, the defendants/respondents could not inherit Dina Nath. The specific case of the predecessors-in-interest of appellants was that Dina Nath had never married. The learned trial court after considering the evidence recorded the finding that Kastu was married with Dina Nath and inconsequence thereof dismissed the suit of appellants. This finding has been confirmed by the 1st Appellate Court. 7. What is not in dispute in view of the pleadings and the evidence that has come on record is that the respondents were, admittedly, daughters of Kastu. The issue was joined by the plaintiffs that they were not daughters of Dina Nath. The evidence has come on record on the side of the plaintiffs that the defendants/respondents were daughters of Kastu. It has also come on record that Kastu was living in the house of deceased Sri Kant. The plaintiffs, who were sons of Baghat Ram, brother of Dina Nath and Sri Kant, instituted a suit only after the defendants/respondents had come of age and order on mutation was passed in their favour. Before this they had not joined the issue about parentage of the defendants. From the evidence of the witnesses of plaintiffs, what emerges is that they have spoken half truth before the learned trial court.
Before this they had not joined the issue about parentage of the defendants. From the evidence of the witnesses of plaintiffs, what emerges is that they have spoken half truth before the learned trial court. On the one hand they admitted that defendants are daughters of Kastu, but they have simultaneously withheld the information from the court as to how the defendants were bom to Kastu. They have withheld the name of the person with whom Kastu was living. It was a duty of the respondents and their witnesses to disclose the name of the person who was living with Kastu to dispel the claim that Kastu was living with Dina Nath. On the other hand Des Raj a close relation of the plaintiffs has in unequivocal terms in his evidence stated before the learned trial court that kastu was living with Dina Nath and from this relationship the defendants were born. 8. Since the plaintiffs and their witnesses have failed to project a person, who could be said to be father of the defendants, the claim of the defendants that they are daughters of Dina Nath read in conjunction with the statement of one of the defendants and evidence of Des Raj would show that defendants are daughters of Dina Nath. In the civil suit, the issues are to be proved on the preponderance of probabilities of evidence. The plaintiffs have sought declaration that respondents were not daughters of Dina Nath. The evidence placed on record would prove that defendants are daughters of Dina Nath. The learned trial court's reference to Des Raj's statement in the impugned judgement that Dina Nath and Kastu made marriage, will not, however, change the status of the defendants/respondents of being daughters of Dina Nath. 9. Cause for filing the proceedings appears to be the amount of compensation which is to be paid to the owners, as the property has been acquired. 10. For admitting Civil 2nd Appeal to hearing, in view of the mandate contained in Section 100 CPC, it has to be shown that a substantial question of law is involved. 11. For the above stated reason, no substantial question of law is involved in this Civil 2nd Appeal and is, accordingly, dismissed alongwith connected CMA(s).