Bhagat Singh and others vs Smt. Gian Kaur and another

P.S. Pattar, J.—This is a regular second appeal filed by Bhagat Singh and others Plaintiffs against the judgment dated April 22, 1965, of the Additional District Judge, Jullundur, dismissing their appeal against the judgment and decree dated February 7, 1964, of Sub-Judge 1st Class, Jullundur, dismissing their suit for possession of the land in suit fully described in the plaint against the Defendant.

The following pedigree table of the family of the parties will be useful in understanding the facts of this case:

Gurdit Singh the grand-father of Bhagat Singh and Jagat Singh Plaintiffs was the owner of some land in village lobar, Tehsil and District Jullundur, and on his death it was inherited by his two sons Bela Singh and Dalel Singh, Bela Singh had died sonless and his land was mutated in the name of his widow Ram Kaur. Ran(sic) Kaur died about 10 or 12 years prior to the institution of this suit and the property was mutated in the same of Gian Kaur, daughter of Bela Singh and Ram Kaur. However, the mutation in the name of Gian Kaur was sanctioned till her marriage Bhagat Singh and Jagat Singh Plaintiffs made an application to the Revenue Officer to delete the name of Gian Kaur from the revenue records because she had been married. This application was dismissed by the Tehsildar. Against that order the Plaintiffs filed an appeal before the Collector, Jullundur, who accepted the same. Gian Kaur then filed an appeal in the Court of the Commissioner , Jullundur. who accepted her appeal and set aside the order of the Collector. Thereafter the Plaintiffs Bhagat Singh and Jagat Singh filed suit for possession of the land in suit on the allegations that they were governed by custom in the matter of succession, according to which Gian Kaur was not entitled to the property in suit which was ancestral qua them. They also pleaded that they were preferential heirs of this land which belonged to their uncle Bela Singh.

Gian Kaur Defendant contested this suit and she denied the allegations made in the plaint It was denied that the Plaintiffs were collaterals of her father Bela Singh within five degrees, that the land was ancestral and they were governed by custom in the matter of succession. It was pleaded that she is a preferential heir of her father Bela Singh, that the suit was barred by limitation, that after coming into force of the Hindu Succession Act she had become full owner of the land. On the pleadings of the parties the following issues was framed by the trial Court:

Whether the Plaintiffs are collaterals of Bela Singh deceased within five degrees ?

If issue No. 1 is proved, whether the Plaintiffs have no locus standi to sue ?

Whether the suit property is ancestral qua the Plaintiffs and Bela Singh deceased 7

Whether the parties are governed by custom in matters of succession ?

Whether the Plaintiffs are preferential heirs to the suit property as against the Defendant ?

Whether the Defendant is an absolute owner of the suit property under the Hindu Succession Act ?

Whether the suit is time-barred ?

Relief.

The trial Court decided issue No. 1 in favour of the Plaintiffs and issues Nos. 3, 4 and 5 against the Plaintiffs. Issue No. 6 was decided in favour of the Defendants while issues Nos. 2 and 7 were decided against the Defendants. As a result, the suit of the Plaintiffs was dismissed with costs. Feeling aggrieved, the Plaintiffs filed an appeal against the decree in the Court of the District Judge, Jullundur. During the pendency of the appeal Jagat Singh Plaintiff-Appellant died and his legal representatives Harbans Kaur and others were brought on the record. This appeal was entrusted for decision to the Additional District Judge, Jullundur. Before the Additional District Judge, the decision of the trial Court on issues Nos. 3 and 4 was only contested. He affirmed the decision of the trial Court on these two issues and dismissed the appeal with costs. Thereafter this regular second appeal was filed by the Plaintiffs.

Mr. N. L. Dhingra, the Learned Counsel for the Respondent, contended that the decision of the lower appellate Court on issues No. 3 and 4 is a decision on question of fact based on evidence and, therefore, it cannot be interfered with in second appeal. In support of this contention he relied on Detty Pattabhiramaswamy v. S. Haryana AIR 1959 SC 57 wherein it was held as under:

The provisions of Section 1 CO (Civil Procedure Code) are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. Nor does the fact that the finding of the first, appellate Court is based upon some documentary evidence make it any the less a finding of fact. A judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence.

To the same effect was the law laid down in V. Ramachandra Ayyar and Anr. v. Ramalingam Chettiar A IR 1965 SC 302. It was further held in this decision that the High Court cannot interfere with the conclusions of fact recorded by the lower appellate Court however erroneous the said conclusions may appear to be to the High Court. In the instant ease the Additional District Judge after discussing the oral and documentary evidence produced by the parties held that the land in suit was not proved to be ancestral qua the Plaintiffs-Appellants and that they also failed to prove that they were governed by custom in matters of succession and held that both issues Nos. 3 and 4 were rightly decided by the trial Court against the Plaintiffs. The concurrent findings of both the Courts below on issues Nos. 3 and 4 are based on oral and documentary evidence and these findings cannot be interfered with in second appeal by the High Court. Mr. G. R. Majithia, the Learned Counsel for the Appellants did not contest the findings of fact arrived at by the lower appellate Court on these issues.

The parties to the case are Ramgarhias and it is in the evidence of the Plaintiffs themselves that Ramgarhias of their village work as masons and carpenters and they also carry on shops and are in service and they are not dependent upon agriculture. They do not belong to any predominantly agricultural tribe in Jullundur district. Therefore, the decision of the lower appellate Court on issues Nos. 3 and 4 is well-based and is correct. Under Hindu Law the daughter is a preferential heir to the property of her father than his collaterals. The decision on others issues was neither contested in the Court of the Additional District Judge nor in this Court.

For all these reasons it is held that there is no substance in this appeal and the same is a dismissed. There will be no order as to costs.