Pritam Singh and Another vs Tilok Singh and Others

Teja Singh, C.J.—This is a second appeal from the judgment and decree of the District Judge Kapurthala at Fateh-Garh-Sahib, whereby he accepted the Plaintiff''s appeal from the decree and judgment of the trial Sub-Judge and granted them a decree for possession of the land and the Khola in dispute.

The suit property is situate in village Mamoonpur Tehsil Sirhind and originally bolonged to one Kirpa. On Kirpa''s death which took place in or about Samvat 1904, the property devolved upon his widow Mst. Hardevi, on 6-8-1968. Mst. Hardevi gifted half of the land to Bhagwana whom she regarded us her immediate reversioner and heir and delivered the possession to him. Bhagwana retained possession of the gifted land during his life time and on his death it was mutated in the name of and was taken possession of by, his sons Pritam Singh and Kapur Singh. On Mst her land was also mutated in favour of Bhag-wana''s sons Pritam Singh and Kapur Singh on 16-8-1995 Samvat. The Plaintiffs brought a suit for possession of the entire land that once belonged to Kirpa. Their allegations were that they were the heirs of Kirpa after Mst. Har devi''s death, and the Defendants whom they described as strangers had no right to retain Kirpa''s property. The Defendants pleaded that the Plaintiffs had no right to maintain the action because they were not related to Kirpa in any way. They further pleaded that the suit was barred by time that even if the Plaintiffs were proved to be Kirpa''s collaterals, they (the Defendants) being nearer collaterals had preferential right to succeed to him and that they were at least entitled to the land that had been gifted by Mst. Hardevi their latner Bhagwana. The trial Court held that the suit was within time but finding that the Defendants were nearer collaterals of Kirpa than the Plaintiffs dismissed the suit. Only two of the Plaintiffs, appealed to the District Judge, who set aside the linding of the trial Court regarding the alleged relationship of the, Defendants with Kirpa and decreed the suit of those Plaintiffs who were the Appellants before him.

The only question that has to be determined in appeal is whether the Defendants were the fourth degree collaterals of Kirpa as they alleged, because it was by the counsel for the Plaintiffs-Respondents that if fact is found in the Defendants'' favour, the Plaintiffs could not lay any claim to the suit property. Both sides are agreed that the Plaintiffs live at mamoonpur where the suit property is situate while the Defendants live at village Niamian in the Ropar tehsil of Ambala District. The distance between the two villages is only a few miles. The Defendants'' case is that they as well as the ancestors of Kirpa deceased and the Plaintiffs belonged to the same stock and originally they all lived Mamoounpur. Sometime, ago the Defendants'' ancestor left Manaoonpur and went to village Niamian and was the reason why no mention of them could be found in the revenue Papers of Mamomipur. The principal document relied upon by the Plaintiffs is Ex. PA, a certified copy of the pedigree-table of village Mamoonpur prepared in1961BK. According to this pedigree-table Sampuran Singh was the common ancestor of the Plaintiffs and Kirpa deceased. He had three sons, Bhana, Rama and Mohar Singh. Kirpa was thedescendant of Kama in the degree. Kalu lather of Jagat Singh Plaintiff and Nathu father of Tirlok and Hari Singh Plaintiffs were the descendants of Bhana, and Atar Singh grandfather of Joginder Singh and Karam Singh Plaintiffs was the descendant of Mohar Singh, also in the 7th degree. The Defendants did not question the correctness of this pedigree-table as it stood but they maintained that it was incomplete inasmuch as did not make any mention of the three sons Raja son of Ram Din, who had left Mamoonpur and had gone away to Niamian. To put in other words though according to Ex. PA Raja had only one son namely Hem Raj, the Defendants contended that he had in fact four sons, Hem Raj, Khazana, Thakria and Neki and since they were the descendants of Khazana and Kirpa was the descendant of Hem Raj, Raja was their common ancestor and they were his i.e. Kirpa''s collaterals in the 4th degree. A copy of the pedigree-table of village Niamian prepared in 1918 proves that Bhagwana father of the Defendants was the great grandson of Raja and the grandson of Khazana. This shows that the Defendants are also the descendants of Raja. What has now to be seen is whether this Raja was the same Raja ho is shown as the great grand-father of Kripa and the great grandson of Rama in Ex.

The tribe of the Defendants'' family in Ex. DI is given as Jat Dhindsa. The second document to which reference might be made the copy of the Fard Khewat of Mamoon[pur of the same year (Ex. PJ). From this it appears that Hemraj, Neki and Khazana sons of Raja Singh Jat Dhindsa has a joint Khata. Kafiat Denj of village Niamian of 1887-88 (AD) (-copy Ex. DZ/1-) contains the statement that the ancestor of the Dhindsa Jats who were living in the village had been brougnt there and settled by the ancestors of the residents of the village because of relationship. As it is not even alleged that there are any other Dhindsa Jats living in Niamian it can be safely inferred that the person referred to in the kafiat dehi was no other than Khazana the ancestor of the Defendants.'' In an earlier revenue record i.e. muntknib asamiwar of" village: Niamian for the year 1852 AD (copy Ex. DZ/4) we find three sons of Raja (Jat Dhindsa) namely Neki, Thakria and Kharana owning land jointly. In the copy of the Fard Khasra Khewat of village Mamoonpur prepared in the year 1917 Samvat also Hem Raj, Neki and Khazana are shown as the sons of Raja Singh Jat owning a joint Khata. Now reading all these documents together there cannot be any doubt that Khazana ancestor of the Defendants, Thakria and Neki were the sons of Raja and they came and settled in villge Niamian from Anr. village. This much was conceded by the learned District Judge, but he was in doubt whether Raja father of the said Khazana, Thakria and Neki was the same-person who was shown Hem Raj''s father in the pedigree-table Ex. PA.

He referred to a number of points which raised suspicion in his mind but in view of what I have said above my opinion is that. there is no ground for any suspicion and the documentary evidence produced by the Defendants in the trial Court taken together with the copies of the revenue records produced by the Plaintiffs prove that the Defendants as well as Kirpa deceased were descended, from the same Raja. The standard set by the District. Judge in holding the identity of Raja proved ignores the definition of the term proved as given in Section 3, Evidence Act. The section says, that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it exists. These words do not justify the attitude adopted by the District Judge in this connation which virtually means that you cannot hold a fact proved unless you are fully convinced that there is no possibility of its being not true. Standard of this kind can only be insisted upon, in a criminal case when before the Court is called upon to convict a person having committed any offence it has to satisfy itself that possibility of innocence is ruled out, but in a civil case all that is necessary to insist upon is that the proof adduced in support of a fact is such that should make a prudent man to act upon the supposition that it exists. In addition we have now before us the evidence that we allowed the Defendants to produce in this Court and this evidence has not only resolved all kinds of doubt that could possibly exist but has affirmatively established that the Defendants and Kirpa deceased are descended from one and the same Raja. The reasons for which we admitted additional evidence are given in our order of 18-11-1952 which should be read as a part of our final order. After we had admitted additional evidence of the Defendants we allowed the Plaintiffs-Respondents to produce evidence in rebuttal and they availed of this opportunity though the evidence produced by them is altogether valueless.

The most important document is the copy of an order of the Tahsildar Ropar dated 17-10-1978 in a civil case Bishena son of Hernraj v. Khazana son of Raja Ram. It was a suit for possession for certain land situated in village Niamian. It appears that in that case too one of the questions to be determined was the relationship between the parties. The Court appointed a Girdaw''sr Qanungo as a sort of a local commissioner to inquire into the matter and report. The copy of the Girdawar Qanungo''s report dated 27-8-1978 was to the effect that Raja was the common ancestorof Bishena and Khazana and he had land at two places village Mamoonpur of Patiala State and Village Niamian of Tehsil Kharar. The pedigree-table that the Girdawar Qanungo gave in his report is to the following effect:

Raja | ________________________________________ | | | | Khazana Thakria Neki Hemraj | ______________________________ | | | Gurmukh Wazira Bishana

Bishana son of Hemraj was the Plaintiff in that case and Khazana son of Raja was the Defendant. It is truethat no definite attempt has been made by the Defendants to show that the Qanungo is dead and he cannot therefore be produced as a witness to prove the report. I am aware of the technical objections that can be raised against the report being used as evidence in this case, because the maker of the report has not been put in the witness-box nor have the Defendants made any effort to prove that he is dead or he cannot be put in the witness-box for any other reason. But my opinion is that these objections are not insurmountable.

In the first place the report is more than 30 years old and it was produced from proper custody, I may mention here that we sent for the record hooper of Ambala District with the original record and the same was produced before us. So according to Section 90, Indian Evidence Act it may be presumed that the report was duly made and was signed by the Qanungo in whose hand-writing it purports to be. Secondly the report was made more than 70 years back and taking into consideration the fact that the Girdawar Qanungo was in service and consequently he must have been a grown up person then "it can legitimately be presumed he must have died by now and the statements regarding the parties'' relationship that are contained in the report are therefore good evidence u/s 32 (5), Evidence Act, because the Qanungo had been appointed to hold an injuiry into the matter and the inquiry held by him afforded him special means of on the question of relationship. More important than the Girdawar''s report are the statements made by Bishena and Khazana on the point of relationship and contained respectively in the plaint put in by Bishana and the evidence of Khazana in Anr. case between them - ''Bishana Hem Raj v. Khazana'', No. 49, instituted on 12-1-1874 and decided on 27-3-1874.

The plaint begins with the statement that Hemraj father of Bishana died before the settlement and because of poverty Gurmukh Singh and Wazira brOrs. of Bishana who was then minor, migrated to Mamoonpur in Patiala State along with Bishana himself and Neki and Khazana who were real uncles (chacha) of theirs. The plaint shows that it was the property left by Neki who is described to be the real uncle that was the subject matter of dispute in that case. The statement that Khazana made as a witness was to the effect that Raja was the common ancestor of the parties. He had four sons, namely Hemraj, Neki, Thakria and Khazana. Hemraj''s sons were Gurmukh Singh, Bishana and Wazira. Neki and Thakria died childless. Thakria had died before the settlement. Since Bishana and Khazana are both dead and they must have had knowledge of their relationship with Raja and inter se, their statements are not only relevant but are very valuable piece of evidence to show that the Defendants as well as Kirpa are the descendants of the same Raja. It is, true that the Plaintiffs are Kirpa''s collaterals'' of 8th degree but as I have observed in the earlier part of this order their own counsel admitted that if the Defendants are found to be nearer collaterals the Plaintiffs have no-right to the suit property in their presence. In the result I would allow the appeal, set aside the decree and the decision of the District Judge and restoring that of the trial Sub-Judge dismiss the Plaintiffs'' suit but leave the parties to bear their own costs throughout.

Before concluding it may be mentioned that the two Plaintiffs who had not joined in the appeal before the District Judge were made Respondents in that Court. They applied to the District Judge that they should also be made Appellants but the District Judge took no notice of this request of theirs, with the result that he merely decreed the suit in so far as it related to the Plaintiffs who were Appellants before him. In this Court all the Plaintiffs have been imp leaded as Respondents and the two Plaintiffs who did not appeal to the District Judge have put in cross-objections that they should also be granted a decree along with the Plaintiffs whose appeal was accepted by the District Judge. In view of the fact the we are accepting the Defendants'' appeal and holding that the Plaintiffs had no right whatsoever to succeed to Kirpa''s property in the presence of the Defendants no question of decreeing the claim of any of the Plintiffs can arise. Accordingly the cross-objections agree also dismissed without costs.

Guranam Singh, J.

I entirely agree.