Dismissed

Ram Kali @ Ramli & Ors. v. Ratni and Ors.

Punjab & Haryana HC23 Jan 2014RSA/362/2014

Case brief

AI extract

What is this about?

The High Court dismissed a regular second appeal filed by plaintiffs challenging the dismissal of their suit for declaration of title and partition. The Court held that no substantial question of law arose, the amendment application was baseless, and the suit was time-barred as the plaintiffs' mother failed to assert her claim for over 40 years.

What did the court decide?

Instant regular second appeal dismissed; application for condonation of delay dismissed; no order as to costs.

Ram Kali @ Ramli & Ors. Vs Ratni and Ors. — Partition | Punjab & Haryana HC (2014)

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RSA No.362 of 2014 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.362 of 2014 (O&M) Date of Decision 23.01.2014

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Ram Kali@ Ramli and another

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....Appellants

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Versus

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Smt. Ratni and others

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....Respondents

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CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. Ajay Kumar Pipaniya, Advocate for the appellants.

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1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?

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RAMESHWAR SINGH MALIK J.

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Feeling aggrieved against the concurrent findings recorded by the learned courts below, in their suit for declaration with consequential relief of joint possession and permanent injunction, plaintiffs have approached this Court by way of instant regular second appeal.

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Brief facts of the case as recorded by learned lower appellate court in para 2 of the impugned judgment, are that the plaintiffs-appellants filed suit for declaration, with consequential relief of joint possession and permanent injunction, alleging that Amar

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Kumar Amit 2014.03.25 10:36 I attest to the accuracy and integrity of this document

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RSA No.362 of 2014 (O&M)

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Singh-father of the plaintiffs and defendant was owner in possession of different parcels of land measuring 55 kanals 3 marlas, 1 kanal 0 marlas, 9 kanal 8 marlas, 8 kanal 0 malra. Besides this, he was having share in shamlat thola, mentioned in mutation No. 678. Amar Singh died on 31.10.1955 leaving behind his wife Smt. Chhoti, his son Baljit-defendant and his daughters-plaintiffs. Since Hindu Succession Act, 1956 ('Act of 1956' for short) had not come into operation, plaintiffs could not succeed to the land left by their fatherAmar Singh. The land was inherited to the extent of one half share each by Baljit and his mother Smt. Chhoti.

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After coming into force the Act of 1956, Smt. Chhoti became absolute owner of the land to the extent of one half share. Thereafter, Smt. Chhoti expired on 25.5.1995. Plaintiffs and defendant were her legal representatives. However, mutation No. 678 was entered in favour of defendant on 24.5.1956 qua entire suit land whereas the same should have been mutated in favour of defendant and Smt. Chhoti. Challenging the mutation No. 678, plaintiffs filed the present suit, saying that they came to know about it only in the month of May 2006.

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Having been served in the suit, defendant appeared and filed written statement taking preliminary objections with regard to the maintainability of the suit, locus standi and the suit being time barred. On merits, it was stated that defendant was the absolute owner in possession of the suit land and plaintiffs had no right to challenge the mutation No. 678, duly sanctioned in the year 1956 after the death of Amar Singh on 31.10.1955. When the succession Kumar Amit 2014.03.25 10:36 I attest to the accuracy and integrity of this document

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RSA No.362 of 2014 (O&M)

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of Amar Singh opened, the Act of 1956 was not applicable, because of which, the entire land falls to the share of defendant alone. It was also asserted that, as a matter of fact, Smt. Chhoti was wife of Deep Chand and after the death of her husband Deep Chand, she started living with Amar Singh. She inherited property from her husband Deep Chand and had given all the said property to her daughters. Smt. Chhoti had no right to inherit the property of Amar Singh. Since mutation No. 678 was rightly sanctioned about 50 years ago, plaintiffs had no right to challenge the same at this belated stage. Dismissal of the suit was prayed for.

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On completion of pleadings of the parties, the learned trial court framed the following issues:-

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“1. Whether the plaintiffs are owners to the extent of

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1/6^th share each of the land as mentioned in Para No. 1 (A) to 1(E) of the plaint? OPP.

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2. If issue No.1 is proved, whether the mutation bearing No. 678 dated 24.5.1956 sanctioned in favour of defendant alone of the entire land is liable to be corrected?OPP.

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3. Whether the suit of the plaintiffs is not maintainable in present form? OPD.

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4. Whether the plaintiffs have no locus standi to file the present suit?OPD.

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5. Whether the suit filed by the plaintiff is time barred?OPD

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6. Relief”

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Kumar Amit 2014.03.25 10:36 I attest to the accuracy and integrity of this document

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RSA No.362 of 2014 (O&M)

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With a view to substantiate their respective stands taken, parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, the learned trial court came to the conclusion that plaintiffs have failed to prove their case. Accordingly, suit was dismissed vide judgment and decree dated 31.1.2011. Plaintiffs filed their first appeal, which also came to be dismissed by the learned Additional District Judge, vide impugned judgment and decree dated 5.8.2013. Hence this regular second appeal at the instance of the plaintiffs.

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Learned counsel for the appellants submits that learned courts below have proceeded on a misconceived approach, while not appreciating the true facts of the case in correct perspective, because of which the impugned judgments were liable to be set aside. After the death of Amar Singh, Smt. Chhoti would inherit half share in the suit land. He further submits that learned courts below misdirected themselves while passing the impugned judgments and decrees, which were based on patently illegal approach and liable to be set aside. He prays for setting aside the impugned judgments and decrees by allowing the present appeal.

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Having heard the learned counsel for the appellants at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the case, coupled with the fact that no substantial question of law is involved, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Kumar Amit 2014.03.25 10:36 I attest to the accuracy and integrity of this document

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RSA No.362 of 2014 (O&M)

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Code of Civil Procedure ('CPC' for short), for the following more than one reasons.

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It is a matter of record that late Sh. Amar Singh died on 31.10.1955 and the suit property was owned by him. It is also not disputed on record that after the death of Sh. Amar Singh, the entire suit property was inherited by Baljit Singh-defendant. In this regard, mutation No. 678 dated 24.5.1956 came to be sanctioned in favour of Baljit Singh-defenant alone. Further, mutation No. 678 dated 24.5.1956 was never challenged by Smt. Chhoti during her lifetime, i.e. for about 40 long years, because she died in the year 1995. It is also not in dispute that at the time of death of Sh. Amar Singh, the Act of 1956 had not come into force and the suit property was to devolve upon the defendant-Baljit Singh alone, as per the relevant provisions of the Hindu Law. After the death of Deep Chand, Smt. Chhoti inherited the property owned by Deep Chand and she gave the said property to her daughters vide mutation No. 518 (Ex. D2 and Ex.D2/A). Having said that, this Court feels no hesitation to conclude that the learned courts below committed no error of law, while passing the impugned judgments and decrees and the same deserve to be upheld.

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After having lost before the learned trial court, plaintiffs, after realising that their suit for declaration with consequential relief of joint possession and permanent injunction was not maintainable, moved an application under Order 6 Rule 17 CPC for amendment of plaint, with a prayer that their suit be treated as suit for declaration and partition with consequential relief of injunction. Since this Kumar Amit 2014.03.25 10:36 I attest to the accuracy and integrity of this document

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RSA No.362 of 2014 (O&M)

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application moved by the plaintiffs-appellants was based on an afterthought and was without any substance, the learned lower appellate court rightly dismissed the same.

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Coming to the issue of limitation, both the learned courts below have held that the suit was time barred. It goes without saying that during her lifetime for 40 long years, Smt. Chotti never asserted any kind of claim on the suit property. Plaintiffs failed to bring on record any cogent and convincing evidence to discharge their onus, so as to bring their suit within limitation. It was a suit for declaration and the limitation was three years, whereas the suit came to be filed in the year 2006, i.e. long 50 years. In this view of the matter, it is unhesitatingly held that suit filed by the plaintiffs-appellants was hopelessly time barred. Thus, the impugned judgments and decrees passed by the learned courts below deserve to be upheld for this reason also.

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It is the settled proposition of law that presumption of truth attaches to the entries in the revenue record. However, it is also equally true that this presumption is rebuttable. Mutation does not confer any title. So far as the mutation in present case was concerned, it came to be sanctioned as far back as on 24.5.1956. Thereafter, Smt. Chhoti lived for about 40 years, but never raised any objection in this regard either by challenging the mutation or claiming any kind of right qua the suit property. In such a situation, only possible inference that could be drawn was that Smt. Chhoti had accepted the mutation in favour of the defendant-respondent and waived off her right in the suit property, if any. If the plaintiffs would Kumar Amit 2014.03.25 10:36 I attest to the accuracy and integrity of this document

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RSA No.362 of 2014 (O&M)

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have any claim that would be only through their mother Smt. Chhoti and that too, only if she would have pressed her right against the defendant, during her lifetime.

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Once Smt. Chhoti had waived off her right, if any, it was too late in the day for the appellants to lay their claim against the suit property, at this belated stage. In fact, plaintiffs have miserably failed to prove their case, because of which the impugned judgments and decrees passed by the learned courts below deserve to be upheld.

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During the course of hearing, learned counsel for the appellants failed to point out any jurisdictional error or patent illegality apparent on the record of the case in either of the impugned judgments and decrees passed by the learned courts below. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the learned courts below. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, while exercising its appellate jurisdiction under Section 100 CPC. Thus, the impugned judgments and decrees passed by the learned courts below deserve to be upheld. Similarly, application for condonation of delay has also been found to be devoid of any merit. As no sufficient ground has been made out for condoning the delay, the application is ordered to be dismissed.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the

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case noted above, coupled with the reasons aforementioned, this

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Kumar Amit 2014.03.25 10:36 I attest to the accuracy and integrity of this document

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RSA No.362 of 2014 (O&M)

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Court is of the considered view that the present appeal is devoid of merit and without any substance. Thus, it must fail. No case for interference has been made out.

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Resultantly, the instant regular second appeal stands dismissed, however, with no order as to costs.

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(RAMESHWAR SINGH MALIK) JUDGE

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AK Sharma 23.01.2014

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Kumar Amit 2014.03.25 10:36 I attest to the accuracy and integrity of this document

Ram Kali @ Ramli & Ors. v. Ratni and Ors.

Case brief

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Ram Kali @ Ramli & Ors. v. Ratni and Ors.

Case brief

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