Sita Ram vs Mangla Ram and Others

L.N. Mittal, J.—Sita Ram plaintiff has filed the instant second appeal having failed in both the courts below.

Plaintiff''s case is that his mother Kalawati since deceased was daughter of Mam Chand. It was also alleged that defendants No. 1 and 2 and defendants No. 3 and 4 and proforma defendant No. 9 are sons and daughters of Mam Chand. Gora was wife of Mam Chand. Mam Chand was owner in possession of the suit land measuring 5 bighas 16 biswas being 1/4th share of 23 bighas 5 biswas and was also owner in possession of 4 bighas 1 biswa land being 1/4th share of 16 bighas 5 biswas land. Mam Chand died on 9.2.1983 and on his death, plaintiff and defendant Nos. 1 to 4 and proforma defendant No. 9 and Smt. Gora inherited suit land in equal shares i.e. 1/7th share each. Gora also died on 25.7.1990 and on her death, her share was inherited by plaintiff, defendant No. 1 to 4 and proforma defendant No. 9. Thus, the plaintiff claimed that plaintiff, defendant Nos. 1 to 4 and proforma defendant No. 9 are owners in possession of the suit land in equal shares i.e. 1/6th share each. Inheritance mutation of Mam Chand was wrongly sanctioned in favour of defendants No. 1 to 4 and Gora only and similarly inheritance mutation of Gora was wrongly sanctioned in favour of defendants No. 1 to 4 only. Defendants No. 1 to 4 on the basis of said mutations sold suit land to defendants No. 5 to 7 vide sale deed dated 16.11.1992. The said sale deed has also been challenged in the suit in addition to the inheritance mutations of Mam Chand and Gora.

Defendants No. 1, 2 and 5 to 8 contested the suit and denied the plaint allegations. It was pleaded that plaintiff''s mother Kalawati was not daughter of Mam Chand and Gora. It was alleged that only defendants No. 1 to 4 are sons and daughters of Mam Chand. Even proforma defendant No. 9 is not daughter of Mam Chand. Inheritance mutations of Mam Chand and Gora were rightly sanctioned. Sale deed by defendants No. 1 to 4 in favour of defendants No. 5 to 8 is also valid. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Charkhi Dadri vide judgment and decree dated 10.4.2003 dismissed the plaintiff''s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Bhiwani vide judgment and decree dated 19.5.2007. Feeling aggrieved, the plaintiff has preferred the instant second appeal.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the appellant contended that none of defendants No. 1 to 4 has stepped into witness box to depose that Kalawati and Mohra were not daughters of Mam Chand. It was contended that plaintiff himself stepped into witness box and also examined his father and two other witnesses including sister''s son of Mam Chand to prove that plaintiff''s mother Kalawati was daughter of Mam Chand. It was accordingly contended that finding of both the courts below is perverse and illegal. It was also contended that even Mohra was daughter of Mam Chand. She was shown to have predeceased Mam Chand at the time of inheritance mutation of Mam Chand although she was alive and is still alive.

On the other hand, learned Counsel for the respondent contended that both the courts below have appreciated the evidence and come to concurrent finding that the plaintiff''s mother Kalawati was not daughter of Mam Chand and said finding does not require interference in second appeal.

In so far as the contention regarding Mohra proforma defendant No. 9 being daughter of Mam Chand is concerned, said point is not in issue in the suit because proforma defendant No. 9 has not filed suit nor she filed any written statement nor made any counter claim nor she claimed herself to be daughter of Mam Chand nor relief if any to be granted to the plaintiff depends on the said question. The question whether Mohra is or is not daughter of Mam Chand is irrelevant for the decision of the suit.

In so far as plaintiff''s claim that his mother Kalawati was daughter of Mam Chand is concerned, courts below have appreciated the evidence on record and come to concurrent finding that Kalawati is not proved to be daughter of Mam Chand. In so far as testimony of plaintiff himself is concerned, he was just four and half years old when his mother died. Obviously, the plaintiff could not have personal knowledge that his mother was daughter of Mam Chand. On the contrary in mutation proceedings, the plaintiff stated that Mohra proforma defendant No. 9 is his maternal grand-mother. The plaintiff in the instant suit admitted that he had made said statement in mutation proceedings although plaintiff added that he wrongly stated the name of his maternal grand mother as Mohra in the mutation proceedings.

Statement of plaintiff''s father was also completely impeached in cross-examination and has been analyzed in detail by the courts below. Plaintiff''s father Kishan Lal PW2 could not tell the names of children of defendant No. 2 although defendant No. 2 is son of Mam Chand. Kishan Lal claimed himself to be son-in-law of Mam Chand being husband of Kalawati allegedly daughter of Mam Chand.

Much stress on behalf of appellant was laid on statement of Shri Ram PW4 who claimed himself to be sister''s son of Mam Chand. However, Shri Ram stated that he had visited village of Mam Chand only once and it was about 15 years back. This witness did not even participate in the death ceremonies of his maternal uncle Mam Chand and maternal aunt Gora. This witness could not tell when plaintiff''s mother Kalawati was married. This witness went to the extent of stating that he had never seen Kalawati. Consequently, statement of this witness that Kalawati was daughter of Mam Chand cannot be accepted. PW4 also stated that plaintiff was one and half years old when Kalawati died but the plaintiff himself stated that he was four and half years old when his mother died.

Defendants have examined Bhateri DW2 who is daughter-in-law of Mam Chand''s brother. Defendants also examined Khem Chand DW3 and Kurda Ram DW4. All of them have stated that Kalawati was not daughter of Mam Chand. Similar statements have been made by Man Singh DW6 and Dharam Chand DW5. Thus, defendants have led evidence to the effect that Kalawati was not daughter of Mam Chand. After appreciating and analysing evidence led by the parties, both the courts below have come to concurrent finding that Kalawati was not daughter of Mam Chand. The said finding is based on appreciation of evidence on record and cannot be said to be perverse or illegal so as to warrant interference in second appeal. Cogent reasons have been assigned by courts below for arriving at the said finding. Lower appellate court is final court of fact. The question whether Kalawati was or was not daughter of Mam Chand is a pure question of fact. Accordingly, no question of law much less substantial question of law arises for determination in the instant second appeal. This Court is not supposed to appreciate the evidence again while deciding second appeal, but even on appreciation of evidence by this Court, it is found that the finding recorded by the courts below that Kalawati was not daughter of Mam Chand is fully justified by the evidence on record.

For the reasons recorded hereinabove, no merit is found in this second appeal which is accordingly dismissed.