BEERU Vs. CHHAJJU

JUDGEMENT

(1.) THIS is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908(for brevity 'the Code'), challenging concurrent findings of fact recorded by both the Courts below holding that no cogent evidence has been adduced by the plaintiff-appellant to show that the defendant- respondent Chhaju was in fact son of Lal Chand prior to the mutation sanctioned in his favour on 10.11.1973 where he has been shown to be son of Surjan. The plaintiff-appellant are co-laterals and have been making claim to the property of Surjan. It has been concurrently found that the suit filed by the plaintiffappellant along with other brother against the mother of the defendant- R.S.A. No. 2271 of 2003 -2- respondent Chhaju (P-12) cannot be considered binding on the rights of the defendant-respondent. It has further been found that the judgment and decree dated 27.7.1074 passed in civil suit No.71 of 27.2.1973 are binding on the plaintiff-appellants and they are estopped by their conduct to seek the relief of declaration. The second suit would be even otherwise barred by principle of resjudicata. The mutation which was sanctioned on 10.11.1973 could not be challenged by filing a suit after 23 years in 1996 and the suit has also been found to be barred by limitation. Having heard the learned counsel I am of the considered view that no evidence has been adduced by producing any person who is supposed to have special means of knowledge of relationship of the defendant- respondent with Surjan or Lal Chand. The certificate where the name of Chhajju son of Lal Chand has been mentioned has not been accepted by the Courts below because that belong to entirely a different village and no connection could be established by adducing cogent evidence. It is well known that in such type of cases evidence admissible under Section 50 of the Evidence Act, 1872 has to be adduced, but nothing of that nature has been done. The findings are pure findings of fact especially on the issue of parentage of defendant- respondent Chhaju. No question of law warranting admission of appeal would arise. Accordingly, the appeal is held to be without merit and is dismissed. February 23,2006 (M.M. KUMAR) Jiten JUDGE