BIKKAR SINGH ETC Vs. NIRMAL KAUR ETC

JUDGEMENT

(1.) SUIT for joint possession and declaration was filed by Nirmal Kaur respondent herein against Niranjan Singh and others. The suit was filed on the allegations that late Karaka Singh was the owner of the suit land measuring about 30 bighas 9 biswas. He died after coining into force of the Hindu Succession Act, 1956. Upon his death, plaintiff and defendants No, 1 and 2 were entitled to the property on the plea of inheritance being legal heirs of the deceased, As defendants No. 1 and 2 were minor at that time, the suit was contested on the ground that the mutation recorded in the name of the plaintiff was illegal, null and void. According to the defendants, the plaintiff was trying to take unnecessary benefits of the illegal mutation entries recorded at the back of the contesting defendants. Further, according to the defendants, the plaintiff had no right in the property because she had already been married and residing in village Nathuwala Garbi Tehsil Moga. The right of inheritance was denied. The case was also contested by defendants No. 4 to 6 and 8 to 17 who claimed to be the bonafide purchaser for consideration and claimed protection of Section 41 of the Transfer of Property Act. These defendants claimed the sale through defendants 1 and 2 also alleged that Karaka Singh had died before 1956. The learned trial Court framed as many as 16 issues and issue No. 2, as framed by the trial Court, reads as under :

(2.) THE parties had produced evidence in support of their case and finally the suit was dismissed by the learned trial Court vide its judgment and decree dated 24. 4. 1993. This judgment and decree was assailed in appeal being appeal No. 10 of 1993 before the first appellate court (Additional District Judge Bathinda ). Alongwith appeal, an application under Order 41, Rule 27 of the Code of Civil Procedure was also filed. It was stated that the plaintiff is an illiterate lady and inspite of her due diligence she was not able to produce the copy of the death certificate of Karaka Singh and non-production of certificate was as a result of bonafide error. This application was opposed by the respondents in the first appeal. Vide order dated 25. 4. 1997, the learned Additional District Judge, Bathinda allowed the application, while imposing costs upon the appellant-respondent herein and permitted production of the death certificate of Karaka Singh at the appellate stage. It is this order dated 25. 4. 1997 which has been assailed in the present revision petition. 2. Learned counsel appearing for the petitioners has contended that there was no occasion for the learned first appellate Court to allow such application. He further contended that P. W. 1 and P. W. 2 have given a different version about the date of death of Karaka Singh and as such the present respondent is trying to fill up lacuna in his evidence.

(3.) ON the other hand, learned counsel appearing for the respondent relied upon 1997 (6) Supreme court Cases 507, Gurdev Singh and Ors. v. Mehnga Ram and Anr. , 1993 Civil Court Cases, 135 Gurnek Singh v. Gurbachan Singh, 1990 Civil Court Cases 687 Miss Jagirkaur v. State of Punjab.