Gobinder Singh vs Jaspal Kaur and Others

Hemant Gupta, J.—Defendant No. 3 is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court on 14.1.2005, whereby mutation No. 3510 with regard to inheritance of the share of Smt. Jangir Kaur in favour of Smt. Choto was declared null and void and the decree dated 14.12.1991 in a suit filed by Jaswant Singh and his son Gobinder Singh (the present, appellant) against Choto and the decree dated 19.5.1992 suffered by Jaspal Kaur in favour of the present appellant was set aside holding that the same was not binding on Jaspal Kaur plaintiff.

One Jasmer Singh, who died on 10.10.1984 had two wives, namely, Partap Kaur and Jangir Kaur. Said Jasmer Singh had son Jaswant Singh and daughter Choto out of his wedlock with Partap Kaur and daughter Jaspal Kaur out of his wedlock with Jangir Kaur. There was a settlement wherein Jasmer Singh, Partap Kaur, Jangir Kaur and Jaswant Singh got 1/4th share each in the land measuring 676 kanals 12 marlas. Such facts are not disputed by any of the parties at this stage.

2.1 Jangir Kaur, mother of the plaintiff died on 15.10.1985. The present suit for declaration and for joint possession was filed on 24.1.1994. The plaintiff challenged mutation No. 3510 regarding the estate of Jangir Kaur in favour of Choto and subsequent decree suffered by Choto regarding share of Jangir Kaur in favour of Jaswant Singh on 14.12.1991. The challenge was also to a decree dated 19.5.1992 suffered in favour of the present appellant allegedly by Jaspal Kaur, plaintiff. It is alleged that the plaintiff is the only daughter of Jangir Kaur out of her wedlock with Jasmer Singh and thus, entitled to succeed her entire 1/4th share. Choto, daughter of Jasmer Singh out of his wedlock with Partap Kaur has wrongly got the mutation sanctioned in her favour alleging herself to be daughter of Jangir Kaur and thus, the said mutation is illegal since Choto could not succeed to the estate of Jangir Kaur and, therefore, she could not even suffer the decree regarding the share of Jangir Kaur in favour of Jaswant Singh. On the other hand, the hand, the decree dated 19.5.1992 was challenged on the ground that the appellant has got the said decree by impersonation and fraud and thus, not binding on the plaintiff.

The learned trial Court returned a finding that Jaspal Kaur is the sole daughter of Jangir Kaur, out of her wedlock with Jaswant Singh and that Choto has got sanctioned mutation of the estate of Jangir Kaur wrongly but the suit was dismissed holding the same to be barred by limitation. The decree dated 19.5.1992 was found to be suffered by Jaspal Kaur and thus, the suit was dismissed in its entirety. However, the learned first Appellate Court affirmed the finding regarding Jaspal Kaur plaintiff being daughter of Jangir Kaur out of her wedlock with Jasmer Singh and held that Choto was in fact, daughter of Partap Kaur out of her wedlock with Jasmer Singh and thus Choto is not entitled to succeed to the estate of Jangir Kaur. Consequently, the mutation and the decree in respect of estate of Jangir Kaur was set aside. The Court also found that the decree dated 1.9.5.1992 allegedly suffered by Jaspal Kaur, is an act of impersonation and fraud and thus, not binding on the plaintiff and that since the plaintiff has filed suit on the basis of title having inherited the same from her mother Jangir Kaur, the suit cannot be said to be barred by limitation.

Before this Court, learned Counsel for the appellant has vehemently argued that the first Appellate Court has not taken into consideration the statement of DW2 Param Pal Singh, Advocate, who has categorically deposed that the plaintiff was the same woman, who appeared before the Court, when she made statement to suffer decree in favour of the appellant on 6.5.1992. Once, the identity of the plaintiff is established, the finding recorded that the decree is actuated by fraud and misrepresentation is not tenable. It was also argued that the plaintiff has suffered a decree on 25.1.1992 in favour of her brother Nachhattar Singh in respect of the land inherited from her maternal side situated at village Tamkot and also suffered a decree in respect of the land inherited by her from paternal side on 19.5.1992. Therefore, the conduct of the plaintiff in suffering the consent decree cannot be said to be an act of fraud or misrepresentation.

Having heard learned Counsel for the parties at some length, I do not find any illegality or irregularity in the findings recorded.

Learned Counsel for the appellant has not raised any argument to dispute the finding recorded by both the Courts below that in fact, Choto is daughter of Partap Kaur out of her wedlock with Jasmer Singh. In view of the said fact, the mutation of estate of Jangir Kaur in favour of Choto and the decree suffered by Choto in favour of Jaswant Singh is not in dispute in appeal.

The suit which led to the judgment and decree Exhibits P.41 and 42 dated 19.5.1992 was filed on 30.10.1990 vide plaint Exhibit DW7D (Civil Suit No. 1414/90). The defendant, now plaintiff, is reflected as daughter of Jasmer Singh of Village Dayalpur Mirza although she has been residing at village Manawala, District Amritsar now village Hakimpura, Patiala, since her marriage. She was not even reflected as a married woman. The summons dated 21.11.1990 for 3.5.1991 sent to village Dayalpur Mirza, were allegedly received by a person, who put the thumb impressions as Jaspal Kaur. The thumb impressions of her right and left thumb were examined by Document Expert Dr. Atul Kumar Singla PW1, who has opined that the subsequent thumb impressions of the plaintiff obtained in Court, do not tally with the questioned thumb impressions appended on the summons in the aforesaid suit. On the other hand, DW1 V.B. Bhatnagar, Documents and Finger Prints Expert examined by the appellant has not compared the thumb impressions on the summons with the thumb impressions of the plaintiff. Therefore, the first Appellate Court has rightly concluded that the summons of the suit filed by the appellant were not served upon the plaintiff.

Still further, the exparte proceedings against the present plaintiff were initiated on 18.7.1991 though the power of attorney Exhibit PW2/9 is dated 16.7.1991 in favour of DW2 Param Pal Singh. DW2 Param Pal Singh has deposed that, in fact, Jaswant Singh, father of the appellant brought Jaspal Kaur to him 4-5 months prior to the filing of the suit. He has deposed that Mohinder Singh Bhaiyya will be the counsel for the plaintiff i.e. Gobinder Singh and Param Pal Singh will be the Advocate for the defendant i.e. Jaspal Kaur. DW3 Gobinder Singh deposed that one year prior to the filing of the suit No. 1414/90 he had gone to DW2 Param Pal Singh, Advocate along with Jaspal Kaur. He has also deposed that Jaspal Kaur put her signatures in his presence before Shri Param Pal Singh, Advocate. It is, thus, evident that even prior to filing of the suit by the present appellant, the signatures of Jaspal Kaur were obtained on the power of attorney. Though the signatures were obtained on power of attorney in favour of an Advocate even prior to the filing of the suit, still DW2 Param Pal Singh put in appearance on her behalf before the trial Court on 6.5.1992 when an application was filed for setting aside of exparte proceedings. On the same date, the exparte proceedings are set aside. A written statement admitting the claim of the plaintiff (the present appellant) was filed and the statement of Jaspal Kaur was recorded. On the basis of the said written statement and the statement in Court, the decree is passed on 19.5.1992. The conduct of the appellant, as per his own statement, that signatures were obtained even prior to the filing of the suit shows that the manipulations were in the mind of the appellant even before the filing of the suit. Still further if the signatures were obtained even prior to the filing of the suit, then why the exparte proceedings were permitted to be initiated against the plaintiff and then the same were set aside and the admission written statement was filed on the same day. The entire conduct of proceedings, speak volumes of the manipulations undertaken by the appellant to secure a decree from Jaspal Kaur.

Still further the statement of DW1 Dr. Anil Kumar Singla, who has compared the signatures on the Vakalatnama, application and the written statement has been found to be much more trustworthy by the learned first Appellant Court, than the statement of V.B. Bhatnagar, the expert produced by the defendants. It has been found that the opinion of the expert produced by the plaintiff is well reasoned. The reasons have been given by the learned first Appellate Court as to why the report of Dr. Atul Kumar Single, is preferred. Such reasons cannot be said to be irrelevant. Such reasons are in the realm of appreciation of evidence and having returned a finding on the basis of appreciation of evidence, it cannot be said that the findings recorded suffer from any illegality.

Though DW2 Param Pal Singh, Advocate, has deposed that the lady, who has signed the documents is the same lady, who is present in the Court, but his statement is that of untrustworthy witness. Firstly, it is not explained by him as to why he would obtain signatures of the plaintiff Jaspal Kaur even prior to the filing of the suit and then why he has not put in appearance on the date fixed. Still further, the report of the expert produced by the plaintiff is categorical to the effect that power of attorney; application and the written statement do not carry the signatures of the plaintiff. The plaintiff has categorically deposed to the said effect. Even the summons of the suit in which the decree has been passed are conclusively proved not to be served upon the plaintiff. If the summons were not served then how the plaintiff would dream of coming to the Court; submit an admission written statement and statement in the Court. It is admitted by DW2 that he has a long acquaintance with Jaswant Singh, father of the applicant for 10-15 years. Thus, the interest of the said witness to depose in favour of the appellant regarding the identity of the plaintiff is made out. The finding recorded by the learned first Appellate Court that the decree dated 19.5.1992 is an act of impersonation is based upon proper appreciation of evidence.

The argument that the plaintiff has suffered a decree in favour of Nachhattar Singh in respect of the land situated in village Tamkot inherited by her from maternal side and, therefore, she could very well suffer decree in respect of the land inherited from paternal side, is based upon surmises and conjectures. The sufferance of the decree in respect of the land situated in one village cannot form the basis to uphold the decree in respect of the land situated in another village. It is a question of fact as to whether the decree suffered in respect of the land in dispute is a voluntary act or is an act of impersonation, fraud or misrepresentation. The learned first Appellate Court has discussed the entire evidence threadbare to return a finding that the decree in respect of 1/4th share of the land falling to the share of Jangir Kaur is an act of impersonation and fraud. Such fraud and impersonation cannot be given colour of legitimacy in respect of a decree suffered by the plaintiff in respect of another land in favour of her brother.

As a matter of fact, the entire arguments of the learned Counsel for the appellant are in the realm of re-appreciation of evidence. Though the appreciation of evidence is not within the scope of Regular Second Appeal, yet I have examined the same in view of the argument raised by the learned Counsel for the appellant. However, I do not find any reason to take a different view than the one what has been taken by the learned first Appellate Court.

I do not find that any substantial question of law arises for consideration in the present appeal. Hence, the present appeal is dismissed.