Surjit Kaur vs Bikkar Singh

Arun Palli, J.

CM No. 4605-C of 2013

For the reasons stated in the application, the same is allowed. The delay of 166 days in refiling the appeal is condoned.

RSA No. 1744 of 2013 (O&M)

Suit filed by the plaintiffs was dismissed by learned trial Court vide judgment and decree dated 10.05.2011. Appeal preferred against the said decree also failed and was, accordingly, dismissed by learned first Appellate Court, vide judgment and decree dated 18.05.2012. That is how, the plaintiffs are before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

In a suit filed by plaintiffs, they prayed for a declaration that the judgment and decree, passed by the then learned Sub Judge 1st Class, Gidderbaha, in Civil Suit No. 306 dated 19.10.1972 decided on 23.10.1972, regarding land measuring 126 kanal 18 marlas was illegal, null and void. Consequently, even the mutation No. 8618, which was sanctioned pursuant to the said decree, was also liable to be set aside. Thus, plaintiffs prayed for a decree for joint possession of the suit property and by a consequential relief prayed for injunction restraining defendants No. 1 to 4 from alienating the suit land.

In short, the case set out by plaintiffs was that they along with Jangir Kaur (defendant No. 5), mother of defendant No. 6 to 16, namely, Gian Kaur and Bhano were real sisters and married at different places. Buta Singh and his wife Harnam Kaur (daughter of Baghel Singh) were their parents. Harnam Kaur was purported to have inherited land in Village Ali Ke from her brother and father. Post-death of Buta Singh, excluding the suit land, his remaining estate was succeeded to by Harnam Kaur and his five daughters in equal shares i.e. 1/6th share each. Buta Singh died on 07.10.1974. He remained owner in possession of the suit property during his life time and after his death, his wife Harnam Kaur and five daughters were owners in possession thereof. Buta Singh did not have any son and was, therefore, looked after his wife and five daughters. He had not taken any person in adoption nor executed any Will during his life time. Plaintiffs were illiterate and had filed another suit titled "Jangir Kaur and others v. Bikkar Singh and others" through their mother Harnam Kaur that Bikkar Singh and Baldev Singh fraudulently obtained a decree in their favour by impersonation of Harnam Kaur. Harnam Kaur died on 23.01.2010. It was after her death, plaintiffs also came to know that Bikkar Singh (defendant No. 1) had also fraudulently got suffered a decree in his favour by impersonation of Buta Singh, in Civil Suit No. 306 dated 19.10.1972 decided on 23.10.1972. Thus, plaintiffs have challenged the judgment and decree dated 19.10.1972 regarding land measuring 126 kanal 18 marlas purportedly suffered by their father Buta Singh in favour of Bikkar Singh (defendant No. 1).

Defendants No. 1, 2, 14 and 15 pleaded in defence that the suit was barred by time as plaintiffs had challenged the decree, dated 23.10.1972, after a gross delay of 32 years. Further, Buta Singh had died on 07.10.1974 in Village Kotli Ablu, and plaintiffs and other defendants had full knowledge regarding the Will executed by Buta Singh as well as the decree suffered by him in favour of defendant No. 1. Plaintiffs had not challenged the registered Will dated 20.05.1970. It was averred that Buta Singh did not have any son so, he and his wife Harnam Kaur had brought defendant No. 1 from Village Ali Ke and they treated Bikkar Singh as their son and likewise, Bikkar Singh treated Buta Singh and Harnam Kaur as his parents and had rendered services to them. Resultantly, Buta Singh executed a registered Will dated 20.05.1970 in favour of Bikkar Singh. He had 31-32 killas of land in Village Kotli Ablu qua which he also suffered a decree in question in favour of Bikkar Singh. Remaining land was inherited by plaintiffs, their sisters and widow Harnam Kaur on 24.04.1975. It was maintained that defendant No. 1 was in possession of the suit land for the last more than 35 years and plaintiffs were fully conscious of his possession. Thus, defendant No. 1-Bikkar Singh was purported to be the owner of the suit property on the basis of the decree as well as the Will.

Defendant No. 2 (Angrej Kaur) filed a separate written statement and, inter alia, pleaded that suit of plaintiffs was hopelessly barred by time as the decree assailed in the year 23.10.1972 was to the knowledge of the plaintiffs. Even if the suit of plaintiffs was to be considered within limitation, yet defendant had become owner in possession of the suit land by way of adverse possession. It was asserted that Buta Singh was a Havildar in Military and had died about 31 years ago. It was denied that Harnam Kaur never suffered any decree in favour of Baldev Singh and Bikkar Singh. Decree passed in Civil Suit No. 306 dated 19.10.1972 was purported to be valid and binding. It was maintained that plaintiffs knew about the decree suffered by Buta Singh in favour of Bikkar Singh and thereafter, the decree suffered by Bikkar Singh in favour of Angrej Kaur. Defendants No. 14 and 15 also pleaded that suit filed by plaintiffs was barred by time and they had no locus or cause of action to file suit.

On an analysis of the matter in issue and the evidence, learned trial Court arrived at a conclusion that decree dated 23.10.1972 was passed 32 years prior to the filing of the present suit. Plea set out by plaintiffs that they actually acquired knowledge of the said decree and consequent mutation just before filing the present suit, when defendants filed written statement in another suit titled "Jangir Kaur and others v. Bikkar Singh and others", was found to be not believable. It was observed that plaintiffs were daughters of Buta Singh, who was absolute owner of the suit property along with other properties and died on 07.10.1974. Post-death of Buta Singh, plaintiffs along with their other sisters inherited all other properties owned by Buta Singh. Thus, it could not be believed that plaintiffs had no knowledge as to how much property was owned by their father before his death. As plaintiffs kept mum for more than 30 years. Therefore, the suit filed by plaintiffs was hopelessly time barred.

Vis-�-vis the judgment and decree dated 23.10.1972, it was observed that plaintiffs had failed to satisfy the Court as to how the said decree was illegal, null and void. How, Buta Singh could be said to be incompetent to suffer the said decree. Further, burden to prove that the decree dated 23.10.1972 was obtained by defendant No. 1 by impersonation, was upon the plaintiffs. However, except the bald statement of plaintiffs, they failed to prove on record that the statement suffered by Buta Singh in the said proceedings was a result of fraud, misrepresentation and impersonation. Therefore, plaintiffs failed to prove that the decree dated 23.10.1972, passed on the basis of statement of Buta Singh, was a result of fraud. As a result, learned trial Court vide judgment and decree dated 10.05.2011 dismissed the suit of the plaintiffs with costs.

Being dissatisfied with the said decree, plaintiffs preferred an appeal. Learned first Appellate Court analyzed the matter in issue, evidence on record in its entirety and on an analysis thereof found itself in concurrence with the view drawn by learned trial Court and findings recorded in support thereof. It was observed that defendant had examined Surjit Singh, Document Writer (DW1), who proved the Will (Ex. DW1/A) scribed by him at the instance of Buta Singh. He also proved his register (Ex. DW1/B), wherein, Will was entered into after it was scribed. In the Will (Ex. DW1/A), there was a specific recital that Buta Singh had no male child and Bikkar Singh (son of his brother-in-law) was looking after him. Will in question was a registered document. Similarly, even in the decree (Ex. D6), there was a specific recital that Bikkar Singh was adopted by Buta Singh. Bikkar Singh himself appeared as DW1 and deposed so. It was observed by learned first Appellate Court that there was no rebuttal to the same. Finding with regard to the suit being barred by time was affirmed as Buta Singh died on 07.10.1974 and post his death, some other properties were inherited by plaintiffs, their other sisters and widow of Buta Singh. And they even alienated their shares. Thus, plaintiffs could not plead ignorance vis-�-vis the decree dated 23.10.1972. It was observed that Buta Singh never challenged the decree in question during his life time. Plea of plaintiffs that the said decree required registration was also found to be devoid of merit. Insofar as the question as to whether the decree dated 23.10.1972 was a result of fraud, misrepresentation and impersonation, except the bald statement of plaintiffs, they had failed to produce any evidence. As a result, learned first Appellate Court, vide its judgment and decree dated 18.05.2012, dismissed the appeal.

I have heard learned counsel for the appellants and examined the judgments rendered by both the Courts below.

Learned counsel for the appellants could not show or point out during the course of hearing as to how the findings recorded by both the Court were perverse or the conclusions arrived at were contrary to the position on record. Nothing was urged to demonstrate as to how the judgments and decree being assailed in the present appeal suffered from any illegality or irregularity.

In the wake of the position as set out above and the conclusions that have concurrently been recorded by both the Courts, there does not exist any ground, least plausible in law, to interfere with the decrees being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration in the present appeal. The same being devoid of merit is, accordingly, dismissed.