Sudesh Kumari vs Sukhdev Raj and another

Sat Pal, J.—This appeal has been directed against the judgment dated 18th April, 1979 passed by the Additional Distt. Judge, Karnal.

Briefly stated, the facts of the case are that Sukhdev Raj and Madan Lal (who are the respondents in this case) filed a suit for declaration to the effect that they were the owners in possession of the land measuring 11 kanals 13 marlas mentioned in the plaint and defendant Sudesh Kumari (who is the appellant in this case) had no right. It was further prayed that the defendants be restrained from interfering with the possession of the plaintiffs on this land. The plaintiffs also claimed possession in case the defendant was found in possession of the suit land. Relying on the evidence of DW1, Ram Nath, who is the father of defendant Sudesh Kumari and DW 2 Ganga Bishan (the cousin brother of Ram Nath) and also relying on the admissions made by the plaintiff Sukhdev Raj during the mutation proceedings, the learned trial Court came to the conclusion that the defendant Sudesh Kumari was the daughter of Ram Nath through his first wife Ram Rakhi. In view of these findings, the learned trial court dismissed the suit of the plaintiffs vide judgment dated 3rd September, 1977. Aggrieved by the judgment passed by the learned trial Court, the plaintiffs filed an appeal which was allowed by the learned Additional District Judge vide his judgment dated 18th April, 1979. The learned Additional District Judge held that the sole claim of the defendant Sudesh Kumari was based on the recital in the judgment of Assistant Collector, IInd Grade, to the effect that one of the plaintiffs Sukhdev Raj made an admission whereas the said statement of the plaintiff had not been proved on record. It was further observed by the learned Additional District Judge that the most suspicious and damaging circumstance against the defendant was that she did not choose to appear in the witness box and she did not sign the written statement. It was further observed that no reason or explanation had been given in the written statement or in the grounds of appeal as to why she had executed power of attorney in favour of Raj Pal. Relying on these findings, the learned Additional District Judge held that the defendant had not been able to prove herself to be the legal heir of Thakur Das and as such she was not entitled to claim property in dispute. Accordingly, the appeal was accepted by the learned Additional District Judge and the suit of the plaintiffs was decreed and it was held that the plaintiffs were exclusive owners in possession of the land in dispute. Aggrieved by this judgment, the present appeal has been filed by the defendant.

Mr. Jain, learned senior counsel, appearing on behalf of the appellant, submitted that it had been clearly proved by the evidence of DW Ram Nath, who is the father of appellant Sudesh Kumari that she was born from his first wife, Ram Rakhi. Ram Nath had further proved that at the time of partition, Sudesh Kumari was 8/9 years old and Ram Rakhi died two years before partition. He submitted that the fact that Sudesh Kumari was the daughter of Ram Nath from his first wife had also been proved by DW 2 Ganga Bishan who happened to be the cousin brother of Ram Nath. The learned counsel also drew my attention to the evidence of the witnesses examined on behalf of the plaintiffs. He submitted that PW1 Iqbal Chand had admitted that Ram Rakhi was the first wife of Ram Nath and one daughter was born to Ram Rakhi though he stated that the said daughter had died in Pakistan but another witness PW 3 Manohar Lal examined on behalf of the plaintiffs stated that Ram Rakhi had no child. PW 2 in his crossexamination had stated that he did not know as to whether Sudesh Kumari was the daughter of Thakur Dass. PW 4 had also stated that he had neither seen Ram Rakhi, Ram Nath nor Sudesh Kumari. He also drew my attention to the statement of PW 5 Sukhdev Raj, who is one of the plaintiffs and submitted that in his statement before the trial Court, this witness had stated that Ram Rakhi had no child but before the SDM, he had clearly admitted that Sudesh Kumari was the daughter of Ram Nath and Ram Rakhi and this fact was fully proved from the order dated 22nd June, 1972 passed by the Collector, Karnal, certified copy of which had been proved as Exhibit D.2. The learned counsel further submitted that the observation of the first appellate Court that the most suspicious and damaging circumstance against the defendant was that she did not choose to appear in the witness box, was erroneous. He submitted that during the pendency of the case before the learned first appellate court, the statement of Sudesh Kumari was recorded on 13th March, 1979 and in her statement she had stated that Raj Pal who had been prosecuting this case in the trial court as also in the first appellate court was her sister''s husband and he was duly authorised by her to prosecute the case vide registered power of attorney dated 18th June, 1969, executed by her in favour of said Raj Pal. She further stated that she owned the written statement filed by Raj Pal in the lower court and the counsel was Sh. A.K. Sawhney Advocate. He submitted that from this statement, it was clear that the defendant had appointed Raj Pal as her power of attorney to prosecute the case on her behalf. He further submitted that the statement of DW 1 Ram Nath, who is the father of Sudesh Kumari, was the best evidence to prove that Sudesh Kumari was born from his first wife Ram Rakhi and in fact the learned trial court had dismissed the suit of the plaintiffs relying on the evidence of said Ram Nath and his cousin brother Ganga Bishan. He, therefore, contended that the appeal filed by the appellants should be allowed.

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record.

Learned Additional District Judge reversed the findings of the learned trial court on the ground that the sole claim of the defendant Sudesh Kumari was based on the recital in the judgment of the Assistant Collector to the effect that one of the plaintiffs Sukhdev Raj made an admission whereas the said statement of the plaintiff had not been proved on record. Another ground given by the learned Additional District Judge was that defendant Sudesh Kumari did not choose to appear in the witness box and did not sign the written statement and there was no explanation as to why she had executed power of attorney in favour of Raj Pal. From the records, I, however, find that the aforesaid findings given by the learned Additional District Judge are perverse inasmuch as the learned Additional District Judge has failed to take into consideration the legal evidence on record which proved that Sudesh Kumari was born from Smt. Ram Rakhi, the first wife of Ram Nath. From the evidence of DW1 Ram Nath, who is the father of defendant Sudesh Kumari, it is clear that said Ram Nath has proved that Ram Rakhi was married to Ram Nath and from this marriage defendant Sudesh Kumari was born in West Pakistan about 8/9 years before the partition. This fact has also been proved by DW2 Ganga Bishan, who is the cousin brother of Ram Nath. On the contrary, the evidence of the witnesses examined on behalf of the plaintiffs does not inspire confidence on this point. For instance Sukhdev Raj stated before the learned trial Court that Ram Nath had no child from his first wife Ram Rakhi, whereas PW1 Iqbal Chand, who is the father of the plaintiffs stated before the trial court that one Sudesh Kumari who was the daughter of Ram Rakhi had died at the age of 9/10 years at Akalgarh in Pakistan. PW2 Paras Ram who was also examined by the plaintiffs stated in his crossexamination that he was not aware that defendant Sudesh Kumari was the grand daughter (dohti) of Thakar Dass. Keeping in view the said evidence, it is clearly proved that defendant Sudesh Kumari was the daughter of Ram Nath from his first wife and as such was entitled to her share in the property in dispute. The observations of the learned Additional District Judge that the suspicious and damaging circumstance against the defendant was that she did not choose to appear in the witness box is also not of much significance in view of the evidence of Ram Nath, who is the father of defendant Sudesh Kumari. The parents of a person are the relevant witnesses to prove as to whether a person was their child. It will also be relevant to point out here that during the pendency of the appeal before the learned Additional District Judge, the statement of defendant Sudesh Kumari was recorded by the learned Additional District Judge on 13.3.1979. In her statement, she had stated that Raj Pal, who had been prosecuting the case in the trial court as also in the Appellate Court was her sister''s husband and he was duly authorised by her to prosecute the case vide registered power of attorney dated 18.6.1969 executed by her in favour of said Raj Pal. She further stated that she owned the written statement filed by Raj Pal in the lower court and counsel Sh. A.K. Sawhney, Advocate. Since defendant Sudesh Kumari had executed power of attorney in favour of Raj Pal, who had signed the written statement and had been prosecuting the case, her case could not be adversely affected simply because she did not choose to appear in the witness box particularly when her father had proved that defendant Sudesh Kumari was his daughter from his first wife Ram Rakhi who died two years before partition.

In view of the above discussion the appeal is allowed and the judgment dated 18.4.1979 passed by the learned Additional District Judge, Karnal is set aside and the suit of the plaintiffs stands dismissed. Parties are, however, left to bear their own costs.