JAGDISH Vs. USHA DEVI AND OTHERS

JUDGEMENT

(1.) The appellant-plaintiff No.4 is aggrieved of the judgments and decrees passed by both the Courts below whereby the suit for declaration to the effect that Mutation No.465 dated 17.05.1954 and subsequent entries regarding ownership and possession of the land in the hands of defendants is illegal, void ab initio and non est qua plaintiffs' share and declaration of plaintiffs to be owners to the extent of their shares, has been dismissed.

(2.) Mr. Aayush Gupta, learned counsel for the appellant-plaintiff No.4 submits that Jai Ram was married to Tulsa and out of their wedlock, two daughters namely Piari and Parnami @ Kreshni were born and plaintiffs are the legal representatives of the above-mentioned daughters. After the demise of Tulsa, Jai Ram married again with Kartari and out of her loins, one daughter Teji @ Reshma born and defendants are legal representatives of Teji @ Reshma. Jai Ram died on 07.01.954. The mutation No.465 dated 17.05.1954 qua estate of Jai Ram was effected in favour of defendants only i.e. legal representatives of children born out of the marriage of Jai Ram with Kartari whereas the interest of the plaintiffs i.e. successor-in-interest of Piari and Parnami @ Kreshni, daughters of Jai Ram and Tulsa, had not been taken into consideration, much less, kept in tact.

(3.) In order to prove the factum of marriage between Jai Ram and Tulsa, the plaintiffs have examined PW2-Amar Singh son of Mukh Ram, resident of the same village and PW-4 Jogi Ram. There is compliance of Section 50 of the Indian Evidence Act. Copy of birth certificate of Parnami @ Kreshni was produced on record as Ex.PC, who is stated to have born on 24.10.1932. The Courts below have non-suited the same on the ground of mode of proof and admissibility. Both the Courts below have abdicated in not referring the cross-examination of PW-2, Amar Singh, as the tenor and mode of cross-examination leads to an irresistible conclusion that Jai Ram and Tulsa were married and out of their loins, two daughters namely Piari and Parnami @ Kreshni were born and the aforementioned witnesses i.e. PW-2 and PW-4 treated Jai Ram as their uncle (Taya) and Tulsa as aunt (Tayi). The aforementioned witnesses had also stated that after the demise of Tulsa, Jai Ram married Kartari and they attended marriage of Jai Ram and Kartari. Thus, the factum of second marriage of Jai Ram with Kartari and birth of Piari and Parnami @ Kreshni out of wedlock between Jai Ram and Tusla, 1st wife, has been proved and therefore, Mutation No.465 dated 17.05.1954 was liable to be set aside.