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2014 DIGILAW 1522 (HP)

Thelu v. Lakhanu

2014-10-28

RAJIV SHARMA

body2014
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree passed by the learned Addl. District Judge, (Fast Track Court), Chamba, dated 30.11.2011, passed in Civil Appeal No. 18 of 2010. 2. Key facts, necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff, for the convenience sake), has filed a suit for declaration, possession and permanent prohibitory injunction against the appellants-defendants as well as the proforma defendants (hereinafter referred to as the defendants for the convenience sake). 3. The plaintiff is deaf and dumb by birth. She was under the guardianship of Punnu Ram after the death of her father Bali Ram. Punu Ram after the death of Bali Ram was looking after her. He was maintaining her. The interest of the next friend was not adverse in any manner. The father of the plaintiff was owner-in-possession of the suit land, as detailed in the plaint. Sh. Bali Ram expired leaving behind plaintiff as sole legal heir, being daughter of the deceased. Gangu was real Uncle of the plaintiff, who in connivance with the revenue officials, got mutation No. 153 dated 19.10.1980, sanctioned and attested in his favour at the back of the plaintiff. The plaintiff was minor. She was never served. After the death of Gangu, mutation No. 212 dated 13.2.1990 was sanctioned and attested in favour of the contesting defendants. She being the sole legal heir of deceased Bali Ram was owner in possession of the suit land. The contesting defendants forcibly in the month of May, 2000, took the possession of the suit land except Khasra Nos. 76 & 80. She obtained the revenue papers in the month of June, 2000 only then she came to know for the first time that the suit land has been mutated in favour of the contesting defendants. She was in peaceful possession of the suit land comprised in Kh. Nos. 76 & 80 as owner being heir of deceased Bali Ram. The defendants on the basis of the revenue entry took the forcible possession of land measuring 13.4. bighas out of the entire land of 18.18 bighas situated at Mauza Dalla and cultivated maize crop. 4. The suit was resisted by the defendants. According to them, the plaintiff was not daughter of Bali Ram. The defendants on the basis of the revenue entry took the forcible possession of land measuring 13.4. bighas out of the entire land of 18.18 bighas situated at Mauza Dalla and cultivated maize crop. 4. The suit was resisted by the defendants. According to them, the plaintiff was not daughter of Bali Ram. It was admitted that Bali Ram was owner-in-possession of the suit land. The contesting defendants are legal heirs of deceased Bali Ram. Gangu Ram was real brother of deceased Bali Ram and after the death of Gangu Ram, the contesting defendants are the legal heirs. Gangu Ram was in physical possession of the suit land. The plaintiff has no right, title or interest over the suit land. The mutations were legal and valid. 5. The plaintiff filed replication. The legal heirs of defendant Pan Chand were brought on record vide order dated 1.5.2010. The learned Civil Judge (Sr. Divn.) Chamba, framed the issues on 7.1.2003 and 20.8.2004. The learned Civil Judge (Sr. Divn.), Chamba, decreed the suit on 1.6.2010. Defendants No. 2, 3 & 4, as arrayed in the suit and one of the legal heirs Khem Raj of deceased Paan Chand filed an appeal before the learned Addl. District Judge, Fast Track Court, Chamba. The learned Addl. District Judge, Fast Track Court, Chamba, dismissed the same on 30.11.2011. Hence, this regular second appeal. There was no representation on behalf of respondents No. 2 to 12. They were proceeded against ex parte. 6. Mr. Naresh Thakur, learned Senior Advocate, on the basis of the substantial questions of law, has vehemently argued that both the Courts’ below have misread and misconstrued the oral as well as documentary evidence. According to him, the plaintiff has miserably failed to prove that she was daughter of Bali Ram. He further contended that the suit is barred by limitation. On the other hand, Mr. Neel Kamal Sharma, Advocate appearing for defendant No. 1 has supported the judgments and decrees passed by both the Courts’ below. 7. Since all the substantial questions of law are interconnected, these were taken up and decided together to avoid repetition and discussion of evidence. 8. The learned Appellate Court has framed the following issues for determination: “1. Whether the plaintiff is not daughter and sole legal heir of deceased Bali Ram? 2. 7. Since all the substantial questions of law are interconnected, these were taken up and decided together to avoid repetition and discussion of evidence. 8. The learned Appellate Court has framed the following issues for determination: “1. Whether the plaintiff is not daughter and sole legal heir of deceased Bali Ram? 2. Whether the plaintiff is not deaf and dumb and being so, Punnu Ram was not competent to file and maintain the suit on behalf of plaintiff as her next friend? 3. Whether the impugned judgment and decree dated 1-6-2010 passed by the learned Civil Judge (Senior Division) Chamba in Civil Suit No. 131/2000 titled as Lakhanu Versus Paan Chand deceased through LRs and others is legally sustainable in the eyes of law and facts? 4. Final order.” 9. It was not in dispute that Bali Ram was owner of the suit land to the extent of ½ share as per Jamabandi Ext. P5, for the year 1977-78. He was shown as joint owner-in-possession over the suit land. 10. The plaintiff has appeared as PW-1. She deposed that she is the daughter of the deceased Bali Ram. She was in possession of 4 bighas of land out of the suit land and defendants have no concern with deceased Bali Ram. The plaintiff has placed on record the copy of Parivar Register Ext. P1. In Ext.P1, plaintiff is shown as daughter of deceased Bali Ram. She has also placed on record identity card issued by the Election Commission of India. 11. PW-2 Hira Lal has deposed that plaintiff was known to him. The name of the father of the plaintiff was Bali Ram. The name of the mother of plaintiff was Molku. The defendants have not placed any evidence to establish that Bali Ram had any other class-I heir. 12. According to DW-1, Lakhnu was not daughter of Bali Ram. The defendant has not examined even a single witness to rebut the copy of Parivar Register Ext. P1. A suggestion was put to PW-1 that Molku was wife of Nirmal and she has 5 children including the plaintiff. PW-1 has shown ignorance. DW-1 has clearly admitted in his cross-examination that Molku was wife of Bali Ram. He has also admitted that Molku died before Bali Ram. Bali Ram died on 31.3.1980. In his crossexamination, DW-1 has admitted that plaintiff was residing at the house of Bali Ram as his daughter. PW-1 has shown ignorance. DW-1 has clearly admitted in his cross-examination that Molku was wife of Bali Ram. He has also admitted that Molku died before Bali Ram. Bali Ram died on 31.3.1980. In his crossexamination, DW-1 has admitted that plaintiff was residing at the house of Bali Ram as his daughter. Defendants have not placed any tangible evidence on record to establish that Molku was married to Nirmal. 13. Now, as far as copy of Parivar Register Ext. P1 is concerned, the mother’s name of plaintiff has not been mentioned. However, the fact of the matter is that plaintiff’s mother died before the death of her father. It is for this reason that the name was not recorded in Ext. P1. In Voter Identity Card Ext. P2, Bali Ram has been shown as the father of the plaintiff, these documents have been prepared by the public servants in discharge of their lawful duties. There is presumption of truth attached to them. Nothing contrary has been placed on record by the defendants to disapprove Ext. P-1 and P-2. 14. PW-2 Hira Lal is an independent witness. He is resident of the same area. Both the Courts’ below have rightly come to the conclusion that plaintiff was daughter of Bali Ram on the basis of oral as well as documentary evidence. PW-1 Punnu Ram is the next friend of the plaintiff. According to him, the plaintiff is unable to hear and speak. Even DW-1, Thelu Ram has admitted in his cross-examination that plaintiff was deaf and dumb. DW-2 Paras Ram has admitted that plaintiff only understands through signs and is hard of hearing. PW-3 Dr. S.K. Mahajan has also deposed that Medical Board was constituted to examine the plaintiff on 16.10.2004. They issued certificate Ext. PW-3/A. The disability of the plaintiff was to the extent of 80%, permanent in nature. It was a case of profound deafness and disability was in relation to hearing and speech. PW-1 has moved an application under Order 32 Rule 4 CPC. The learned trial Court has framed two more issues on 20.8.2004, vide issue Nos. 10(a) and 10(b), including whether the plaintiff was deaf and dumb. 15. The findings that plaintiff is deaf and dumb are duly supported by evidence. The plaintiff was deaf and dumb. There is nothing on record to suggest that she was able to watch her interest. The learned trial Court has framed two more issues on 20.8.2004, vide issue Nos. 10(a) and 10(b), including whether the plaintiff was deaf and dumb. 15. The findings that plaintiff is deaf and dumb are duly supported by evidence. The plaintiff was deaf and dumb. There is nothing on record to suggest that she was able to watch her interest. The suit was filed during her disability. She has applied for revenue papers only in the month of June, 2000, when she was forcibly evicted. She being the class-I heir, was entitled to inherit the estate of Bali Ram. Gangu Ram, being brother was not entitled to inherit the estate of Bali Ram. Mutation No.153 dated 19.10.1980 was illegal and Mutation No. 212 attested on 13.2.1990 has rightly been declared null and void by both the Courts’ below. Plaintiff has been correctly declared owner of the suit land as per the decree. The Courts’ below have correctly appreciated the oral as well as documentary evidence. The plaintiff has conclusively proved that she is the daughter of Bali Ram. The suit was filed within the limitation. The substantial questions of law are answered accordingly. 16. Consequently, there is no merit in the appeal and the same is dismissed.