Danat Kaur alias Sant Kaur vs Harbans Kaur

S.K. Jain, J.—Banta Singh son of Shri Bute Singh owned 1/4th share in agricultural land measuring 154 Kanals 6 Marias, fully described in the plaint. He died on 11.12.1981 at village Makorar. His estate was mutated in favour of his daughter Harbans Kaur, Plaintiff herein, on 14.01.1982. Pleading that Danat Kaur defendant by making misstatement got the mutation of the estate of Banta Singh sanctioned in her favour and that of the plaintiff on her back and on its strength wanted to alienate the property in dispute. The plaintiff fifed Civil Suit No. 116 of 4.2.1982 for a decree of declaration to the effect that she was the owner of l/4th share in the suit land and for permanent injunction thereby restraining the defendant from alienating the same. The suit was contested by the defendant. She admitted that Banta Singh was the owner in possession of the land in dispute and that he had died. She asserted that she and the plaintiff were the daughters of the deceased and that the mutation of the inheritance of Banta Singh had rightly been sanctioned in favour of both of them, and they were the owners of the land in dispute to the extent of 1/2 share each.

Parties fought the litigation on the following issues:-

(1) Whether the plaintiff is the only legal heir of Banta Singh? OPP

(2) Whether the plaintiff is the owner in possession of the disputed property? OPP

(3) Whether the plaintiff is entitled to the injunction prayed for? OPP

(4) Whether the plaintiff has no locus standi to file the suit? OPD

(5) Whether the plaintiff has no cause of action? OPD

(6) Whether the suit is not maintainable in the present form? OPD

(7) Relief.

Learned Sub-Judge 1st Class, Sunam, vide its judgment and decree dated 23.2.1994, decreed the suit.

Feeling aggrieved, the defendant filed Civil Appeal No. 33 of 9.3.1984 which was heard by Additional District Judge III, Sangrur, who dismissed the same vide his judgment and decree dated 13.1.1986.

It is that judgment and decree of the first Appellate Court which has been appealed against by the defendant and which requires my examination of its sustainability.

I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and the judgments of both the Courts below.

There is no denying of the fact that Banta Singh was the sole owner of 1/4th share in the agricultural land measuring 154 Kanals 6 Marias situated in village Makaror which he had purchased from Smt. Kartar Kaur. It is also not disputed that he had died on 11.12.1981 at village Makaror. The sole question on the answer whereof the fate of this Regular Second Appeal hinges is as to whether the plaintiff was the only legal heir of Banta Singh deceased. It is not denied on behalf of the defendant that Harbans Kaur plaintiff was the daughter of Banta Singh deceased. But the defendant has asserted that she was also the daughter of Banta Singh and, therefore, the mutation of the estate of Banta Singh had rightly been sanctioned in her favour and that of the plaintiff to the extent of 1/2 share each.

In order to prove that she is the daughter of Banta Singh, the defendant had not led any evidence on record. However, pressing copy of mutation No. 2040 Ex. D-2 into service. Learned counsel for the appellant has vehemently argued that from the order of the Mutation Officer, it is evident that the plaintiff had admitted that she and the defendant were sisters and further that affidavits of the number of persons had also been filed before the said Officer in support of the said fact and therefore, the said admission was binding on the plaintiff and now she could not take the stand that the defendant was not the daughter of Banta Singh. In order to appreciate the said argument, I have carefully examined mutation Ex. D-1. In the order dated 14.1.1982 of the Assistant Collector 2nd Grade recorded on the said mutation, no doubt it mentioned that Harbans Kaur had stated that they were two sisters but at the same time it is also mentioned therein that Smt. Danat Kaur had asserted to be the only daughter of the deceased. Be that as it may, the fact remains that the mutation proceedings are summary proceedings. Statements of the parties are not recorded on oath, and the other side has no opportunity to cross-examine the witnesses and rebut the evidence led by its adversary. Therefore, such a recital in the order sanctioning the mutation was not an admission which could bind the party alleged to have made it.

Besides what has been stated above, Sumer Chand, Naib Tehsildar DW2, who has, proved mutation Ex.D-1 has not at all stated that the plaintiff had admitted the defendant as her sister. It casts a serious cloud of doubt on the correctness of the facts mentioned in the said order. The testimony of DW1 Lal Singh who has no special means of knowledge with regard to the family of Banta Singh and DW3 Piara Singh against whose brother the plaintiff had filed a suit does not, in any way, improve the case of the defendant. Had Smt. Danat Kaur, defendant, been the daughter of Bant Singh, deceased, normally a birth entry to that effect must have come into existence and even if a birth entry had not been got made to that effect then the relationship between Smt. Danat Kaur and Banta Singh could have been proved by their inter se conduct As mentioned herein before, the two witnesses DW 1 Lal Singh and DW 3 Piara Singh had no special means of knowledge about the relationship of these two persons either as a member of the family or otherwise. None of them have deposed to his own conduct towards Smt. Banta Kaur, these relationship was in dispute and on the basis of which such a witness had formed an opinion about her being the daughter of Banta Singh deceased. Therefore, none of them was not competent to give evidence regarding the relationship of Smt. Danat Kaur with Banta Singh deceased. In holding the above view, I am supported by the ratio laid down in Ajaib Singh v. Manna Singh 1968 CLJ 162.

Placing reliance on Khasra Girdawari entries Ex. D-2 and the admission of Shri Gurbachan Singh PW 3 to the effect that the plaintiff and the defendant were in possession of the suit land. Learned counsel for the appellant has argued that the suit being only for declaration and permanent injunction was not maintainable because relief of possession had not been sought This argument attractive at first sight, is, in my opinion, not tenable on the sound appreciation of the fact that girdawari entries are made in routine and in this case especially such entries was made on the basis of mutation Ex. D-2. Neither any Lambardar nor any right holder having land adjoining the land in dispute had been examined nor Girdawar or Patwari who had made, the entries in question had been summoned and examined. The admission of Shri Gurbachan Singh PW 3 in his cross-examination had no evidenciary value in view of the fact that he had also admitted that he did not visit the village where the land in dispute was situated. Therefore, his testimony can only be said to be hearsay evidence.

I, therefore, agree with the concurrent findings of fact recorded by two Courts below on issue Nos. 2 to 6 which are affirmed.

Resultantly, this appeal fails which be and is hereby dismissed. No costs.