GIANO Vs. PURAN

JUDGEMENT

(1.) This order shall dispose of R.S.A. No. 2447 of 1995 and R.S.A. No. 2334 of 2001. Parties in both the appeals are the same. The first appeal (for brevity "the first case") arises from a civil suit filed by the plaintiff-appellant Smt. Giano in which she has prayed for possession of share of the suit land on the basis of a registered gift deed No. 1754, dated 3-9- 1974. She has further prayed for possession of 1 /9th share in the other part of the suit land on the basis of inheritance claiming herself to be the daughter of one Mai Dhan, whose estate is subject-matter of the dispute. There are two judgments and decrees in favour of the defendant-respondents, namely, Puran and Jage Ram, who are admittedly sons of Mai Dhan. Those judgments and decrees dated 31-7-1981 suffered by her father Mai Dhan in favour of her brother Jage Ram in Civil Suit No. 459 of 1981 and the other judgment and decree is in favour of her other brother in Civil Suit No. 56 of 1980, Consequently, mutation Nos. 1659 and 1764 have also been challenged being illegal and void etc. The other appeal (for brevity "the second case") has arisen out of the civil suit filed by Puran and Jage Ram (who are referred to as defendant-respondents). Both the brothers had claimed to be exclusive owners in possession of another piece of land, which is different than the land involved in the first case on the basis of the jamabandi for the year 1990-91. They have also challenged the order dated 31-1-1994 passed by the Assistant Collector 1st Grade. Panipat sanctioning mutation No. 2145 in favour of the plaintiff-appellant and challenge has also been made to the order dated 16-5-1996 passed by the Commissioner, Rohtak upholding the order of the Assistant Collector 1st Grade. The revenue authorities have sanctioned 1/3rd share of the suit land involved in the second case by accepting the plaintiff-appellant as owner being daughter of Mai Dhan. The question of relationship of Smt. Giano plaintiff-appellant with Mai Dhan has been disputed by the defendant-respondents and is common feature in both the appeals. Both the appeals have been filed under Section 100 of the Code of Civil Procedure, 1908.

(2.) The estate of one Mai Dhan is the subject-matter of dispute in the instant appeal. It is admitted fact that Mai Dhan had two sons, namely, Puran and Jage Ram. There is a dispute as to whether the plaintiff-appellant Smt. Giano is their real sister or she was born out of the wedlock of her mother with one Hira, who had died. After the death of Hira, her mother Bhagwani is alleged to have contacted a karewa marriage with Mai Dhan. It is pleaded case of the defendant- respondents that they were born after the solemnization of karewa marriage of Bhagwani with their father Mai Dhan. The plaintiff-appellant has strongly relied upon a gift deed dated 3-9-1974 executed by Mai Dhan gifting her share of the suit property. The original gift deed is alleged to be in possession of Puran, who did not produce it. Certified copy of the gift deed has been produced on record by Shri Kuldeep Singh, Registry Clerk PW3 from the office of the Sub-Registrar, which has been exhibited as PW3/1. The trial Court after the completion of pleadings framed numerous issues. Issues No. 1 to 6, which are pivotal into controversy raised between the parties read as under :-

(3.) The trial Court in its judgment and decree dated 17-2-1995 has recorded a categoric finding that the plaintiff-appellant is daughter of Mai Dhan and the claim of the defendant-respondents that she was born to Bhagwani, their mother has been rejected. The basis of the aforementioned finding is the statement of the plaintiff appellant, who appeared as PW1, Amar Singh PW5 and defendant-respondent No. 2 Jage Ram, who appeared as DW1. The view of the trial Court is discernible from para No. 7, which deserves to be reproduced in extenso and the same reads as under :-