AMAR SINGH Vs. CHHAJU SINGH AND ANOTHER

JUDGEMENT

(1.) THE following two questions of law have been referred to Full Bench by my brother Suri J.: -

(2.) THE necessity for reference arose because of a doubt having been cast in the course of arguments before the learned Single Judge in this Regular Second Appeal about the correctness of a Single Bench judgment of this Court in Ajaib Singh v. Mann Singh, (1968) 70 PLR 83, purported to be based on the ratio of the Supreme Court judgment in Dolgobinda Paricha v. Nimai Chran Misra : AIR 1959 S.C. 914.

(3.) BHURA son of Hira resident of village Sidhuwal, District Patiala, a sonless proprietor died without leaving a widow, on 16th June, 1962. Chhaju Singh and others, defendant -respondents, claiming to be collaterals of Bhura deceased took possession of his land. Amar Singh and others, plaintiffs, instituted a suit for possession against the defendants it being pleaded by them that the latter were in unlawful and forcible possession of the suit land and that the plaintiff -appellants being the children of Mst. Partapi who was Bhura's real sister and had predeceased him were entitled to recover the possession as heirs of the deceased. The defendants denied that the plaintiffs were children of Mst. Partapi or that their mother was in any way related to Bhura. Relationship of the plaintiffs with Mst. Partapi and that of Mst. Partapi with the deceased, therefore. came in dispute, An issue was framed by the trial Court to the effect whether the plaintiffs are the heirs of Bhura Singh deceased and as such entitled to succeed to the property indispute. Evidence was led to establish relationship of the plaintiffs with Mst. Partapi and that of the latter with Bhura. The evidence so produced included statements of witnesses who deposed with respect to variety of facts including conduct of Bhura deceased in regard to the daughters of Mst. Partapi as evidenced at the time of the marriages of the said daughters. For instance, it was stated that Bhura had come with Nanki Chhak (presents from the maternal uncle or maternal grandfather). It was said that Bhura had been treating these girls as his nieces Mst. Partapi was married in village Bahaman Majra and villagers from that village made statements to depose that Bhura used to visit Mst. Partapi in that village and call her as his sister and that the latter would call him as her brother. It is not necessary to refer to the details of the statements of different witnesses as to answer the reference it is not necessary to do so. The trial Court held the relationship of the plaintiffs with Bhura deceased proved whereas the Court of first appeal took a contrary view The statements of some witnesses were held ty the lower appellate Court to be inadmissible in evidence as they did not conform to the provisions of section 50 read with section 60 of the Indian Evidence Act, 1872, referred to hereinafter as the Act. In discarding evidence regarding disputed relationship, reliance was placed by the Court of first appeal on the judgment in Dolgobinda Paricha's case (supra). It was consequently held that the plaintiffs were not proved to be the children of the sister of Bhura. When the matter came up in second appeal before Suri J., the same question about the admissibility of evidence was raised and it is in these circumstances that the questions of law propounded by the learned Judge are before the Full Bench.