JAGAN NATH ETC Vs. STATE OF PUNJAB ETC

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree of the first appellate Court affirming on appeal, those of the trial Court dismissing the suit filed by the plaintiff-appellants for a declaration that they were owners in possession of the: suit land.

(2.) THE facts :hans Raj, who was a soldier in the army of the erstwhile State of Patiala laid down his life in the Kashmir operation in 1948, Land measuring 30 Bighas was allotted to Sat Lachhmi Devi, mother of Hans Raj as a posthumous reward to the deceased for his gallantry services. The suit land was allotted in consolidation of holding in lieu of 30 Bighas of land. The plaintiffs are the successors-in-interest of Smt. Lachhtni Devi. By an order dated January 12, 1970, the Collecctor, Ludhiana reversed the mutation order passed by the Assistant Collector in favoar of the plaintiffs That order was assailed in the suit. The respondents (hereinafter referred to as the defendants) maintained that Smt. Lachhmi Devi was not allotted the land as full owner but was given the same for life.

(3.) FROM the pleadings of the parties, the following issues were framed by the learned trial Judge : (1) Was Lachhmi Davi granted full ownership rights by the Maharaja of Paliala as alleged in para 1 of the plaint ? (2) If issue No. 1 is proved were the defendants entitled to forfeit the land in dispute ? (3) Whether the suit is not triable by civil courts ? (4) Whether the suit is not barred by time ? (5) Whither the suit is non prooperly stamped ? (6) Relief. 3. Issues No. 3, 4 and 5 were answered in favour of the plaintiffs. Issue No. 1 was decided against the plaintiffs and as a result thereof, issue No. 2 was answered in favour of the defendants. 4 The sole question which arises for determination is whether Smt. Lachhmi Devi, mother of Hans Raj, was given only life estate in the land given to her as posthumous reward for the services rendered by his deceased sou. The defendants in their written statement have taken a positive stand thit Smt. Lachhmi Devi was given the life estate. It was for them to prove by a positive evidence that she was given only a life estate. The burden of proof as to any particular fact lieson that person who wishes the Court to believe for its existance If he fails to prove it, the plea can be deemed to be rejected for want of evidence. The issue has to be answered against it. In the instant case, it was for the State to prove that Smt. Lachhmi Devi was given only a life estate and it has failed to establish it. 5. D W. I Sh Jagat Ram, District Nazul Clerk, Deputy Commissioner's Office, Patiala stated on oath that ha could not trace the order dated October 28, 1952 under which the allotment was made in favour of Smt. Lachhmi Devi, mother of Hans Raj D. W. 2 Ajaib Singh who was posted as Patwari Halqa at Fatehgarh Sahib, and entered the report in the Diary dated December 11, 1951 (Ex. D. J) In the report, is stated that land measuring 30 Bighas was allotted to Smt. Lachhmi Devi under the orders of the Deputy Commissioner in which if was mentioned that the allotment was for her life time. 6. This is the only evidence produced by the State to establish that allotment of land to Smt. Lachhmi Devi was only for her life time. The allotment as posthumous reward to Hans Raj deceased must have been made under the orders of the the State. The order under which the allotment was made has not been produced. The order of the Deputy Commissioner on the basis of which the report in the Daily Diary was entered has not been produced. Perusal of the report roznamcha Ex. D 1 indicates that the Patwari had entered on the basis of some order of the Deputy Commissioner that the allotment was for life. The copy of the order which purports to have been interpreted by the Patwari as suggestive of the fact that the allotment was for life, was not reproduced in extenso in the report, nor a copy of the same was appended to the report, in the absence of the original order alleged to have been passed by the State or the order of the Deputy Commissioner pursuant to which the report in the Daily Diary was made, it is difficult to hold that the allotment of Smt. Lachhmi Devi was for life. The defendants having failed to establish the plea that the allotment was for life, the only inference far non production of the original record is that the record was not supporting the plea of the defendants. 7. The copies of the Jambandis for the years 1950 to 1969, Ex P 4 to P-7. do not indicate that Smt. Lachhmi Devi was to hold the land for life On the basis of the allotment made in favour of Smt. Lachhmi Devi, Exhibits P-12 and P-13, ware attested in her favour. Mutation, Ex P-13. was sanctioned on October 28, 1952 by which bulk of the land allotted to her was mutated in her favour. The entry in the mutation does not indicate that the laud was allotted to her for life. Ex. P-12 is a copy of the mutation sanctioned on June 11,1955 under which a part of the land was mutated in favour of Smt. Lachhmi Devi in this mutation, it is entered that the allotment had been made to her for life. But the basis on which it was so recorded is not stated. In the absence of a Government order the Revenue Oilier could not record so. No value can foe attached Co it. Moreover in Ex. P-13 no such rider has been put to the rights of the allottee. it is not understandable how the rider has been placed while sanctioning mutation Ex. P-12. The documentary evidence produced by the plaintiffs clearly establishes that the allotment was made in favour of Smt. Lachhmi Devi without any limitation, which is now propounded. 8. Resultantly. there is no escape from the conclusion that Smt. Lachhmi Devi was allotted the land as a full owner and that the plaintiffs as the successors-in-interest will succeed 'to her. The decision under issues No. 1 and 2 is reversed. The judgments and decrees of the Courts below are set aside and the suit of the plaintiffs is decreed. 9. The appeal is allowed with no order as to costs, 10. I find no ground to allow additional evidence to be produced at this belated stage. C. M No. 1716-C of 1978 for permission to produce additional evidence is dismissed.