PUNJAB SINGH Vs. SHUGAN AND ORS.

JUDGEMENT

(1.) Punjab Singh, plaintiff, who succeeded before the trial court in establishing his right of succession to the estate of one Hira Devi after her demise, lost his cause before the first appellate court only on the ground of limitation, has come before this Court by way of regular second appeal.

(2.) Facts that are necessary to determine controversy between the parties may first be enumerated. The property of one Kundan who died in 1969 was inherited by his two sons, widow of another son who had pre -deceased Kundan and sons of another son who too had predeceased Kundan, in equal shares. Des Raj, Badan, Babu Ram and Punjab Singh alias Punjaba were the four sons of Kundan, whereas Smt. Hira Devi is the widow of predeceased son Babu Ram. Badan also predeceased Kundan, Inasmuch as Badan was survived by two sons namely Pitambar and Dharam Pal, they succeeded to the estate of Kundan that would have come to the share of their father Badan. Likewise Smt. Hira Devi succeeded to the share that would have been inherited by Babu Ram. She died on 6th June, 1980. Before her death, however, three sons of Des Raj (died in the year 1979), namely Shugan, Lapati Singh and Ved Pal got a decree on alleged consent of Smt. Hira Devi on 4th May, 1972, vide which the entire property of Hira Devi was transferred in favour of three sons of Des Raj on account of family settlement. After the demise of Smt. Hira Devi, Punjab Singh filed a suit for joint possession against three sons of Des Raj claiming himself to be the rightful person to succeed to the estate of Hira Devi and styling the decree obtained by sons of Des Raj to be void and nonexistent inasmuch as Hira Devi had never appeared before any court nor consented to part away with her estate to the sons of Des Raj. The case was contested by the sons of Des Raj (hereinafter to be referred to as defendants) on various grounds, like the plaintiff had no locus standi to file the suit; the suit was not maintainable and not within time; the plaintiff was estopped from filing the suit by his own act and conduct; it was bad for non -joinder of parties and cause of action and that it was not properly valued for purpose of court fee and jurisdiction. It was further pleaded in the written statement that the decree was not collusive and, in fact, had come into being in accordance with law, as also that the plaintiff was aware of the institution of the suit and the decree having been obtained by the defendants. Pleadings of the parties gave rise to the following issues:

(3.) During the pendency of the appeal, the appellant filed civil miscellaneous (O.M. No. 883 -C/1989) D.O. at Rule 27 read with Sec. 151 of the Code of Civil Procedure so as to bring on record date of attestation of Jamabandi relating to villager Koar, Tehsil and District Karnal for the year 1975 -76 by summoning Sadar Kanungo in the office of Collector Karnal alongwith original record regarding preparation, alteration and consignment of the aforesaid Jamabandi. The averment in the application aforesaid would go to show that as per the appellant, vide jamabandi for the year 1975 -76 on which reliance has been placed by the first appellate court for dismissing the suit of the appellant on the ground of limitation was in fact, attested by the revenue official concerned on 17th January, 1978, and it was made public only thereafter. The defendant also filed an application bearing C.N. No. 886C/1989 D.O.41 Rule 27 read with Sec. 151. Code of Civil Procedure, so as to compare disputed thumb impression, i.e. the thumb impressions on the statement made by Smt. Hira Devi in court as also the thumb impressions available on the power of attorney given by her to her lawyer with thumb impressions of Hira Devi said to available in the daily diary of revenue patwari. As per averments made in the application the case of the defendants is that when mutation on the basis of the decree obtained by them was sanctioned by the revenue officials, Hira Devi was present and had thumb -marked the said entry. Reply to both these applications was filed by the respective parties who opposed the applications. The applications were ordered to be heard alongwith the main case vide orders dated 15th March, 1989.