Sandip Kaur Vs Paramjit Kaur and Ors.

setting aside of the order dated 05.03.2020 (Annexure P6) passed by learned Civil Judge (Junior Division), Garhshankar, whereby application filed by the petitioner for leading additional evidence, has been dismissed.

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Brief facts of the case in chronological order are as under:-

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08.09.2010: Harbhajan Singh @Bhajan Singh, grandfather of the petitioner,

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and predecessor-in-interest of the parties, died intestate on 08.09.2010 leaving behind his 1 daughter Paramjit Kaur-Respondent/ Def.No.1, and 2 sons namely Jagtar Singh, Surjit Singh, who inherited estate of Bhajan in equal

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shares (i.e. 2K-11M-6S) each of village Data, Tehsil Garhshankar, District Hoshiarpur, Punjab.

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18.05.2011: Surjit Singh also died intestate on 18.05.2011 leaving behind his daughter Sandeep Kaur/ Plaintiff-Petitioner as his sole legal heir, who was born on 25.08.1989 out of loins of said Surjit Singh & Harbans Kaur/mother of Petitioner; being married since 1988; but later divorced vide Panchayati Divorce dated 17.07.1992 duly witnessed by Bhajan-grandfather of petitioner.

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13.03.2016: � Mutations No. 1815 and 1833 were wrongly got sanctioned by respondents/ defendants qua estate of Bhajan in favour of Resp./ Def. No.1 & Jagtar Singh only, by concealing the factum of Surjit Singh being one of the sons of Harbhajan Singh.

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01.07.2016: The plaintiff/petitioner had accordingly filed present Civil Suit dated 01.07.2016 (Annexure P1) seeking declaration that the petitioner is coowner in joint possession of 2 kanal 11 marla 6 sarsahies of suit land; with consequential relief of permanent injunction.

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09.01.2017: � The respondent/defendant No.1 had filed written statement dated 09.01.2017 (Annexure P2) to the above-said Suit.

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01.04.2017: The petitioner filed replication dated 01.04.2017 (Annexure P3).

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21.07.2017: On 21.07.2017, following issues were framed by the trial Court:-

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“1. Whether plaintiff is co-owner in joint possession of suit property? OPP

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2. Whether plaintiff is entitled to declaration as prayed for? OPP

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3. Whether plaintiff has locus to file the present suit? OPD

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4. Whether plaintiff is estopped from her own conduct, act etc. to file the present suit? OPD

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5. Relief.”

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19.11.2019: During the course of proceedings, Petitioner examined only 4 witnesses out of list of witnesses and closed her evidence. During the course of defendant evidence, DW-2 Surinder Pal during his cross examination on dated 19.11.2019, stated that Bhajan Singh has executed one sale deed on 15.06.1992 out of suit property; and then after leading some documentary evidence, defendant closed their evidence on 02.12.2019.

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03.01.2020: It is at this stage that the petitioner moved the instant application dated 03.01.2020 (Annexure P4) for adducing additional evidence stating therein that he wants to get the thumb impression of Harbhajan Singh @ Bhajan Singh compared through the Report of Expert.

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10.01.2020: The respondent/defendant No.1 had filed reply dated 10.01.2020 (Annexure P5) to the said application.

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05.03.2020: Vide impugned order dated 05.03.2020 (Annexure P6), said application of the petitioner has been dismissed.

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Learned counsel for the petitioner inter alia submits that the learned trial Court has wrongly dismissed the application of the petitioner for leading additional evidence as it failed to appreciate that Bhajan Singh had died intestate on 08.09.2010 leaving behind his daughter Paramjit Kaur/defendant No.1 and sons Jagtar Singh and Surjit Singh, who all inherited

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the estate of deceased Bhajan Singh in equal shares i.e. to the extent of 2 kanal

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11 marla 6 sarsahies each, as per Hindu Succession Act, 1956. However, unfortunately, father of the petitioner namely Surjit Singh had also died on 18.05.2011 leaving behind the petitioner as his sole legal heir as mother of the petitioner, namely Harbans Kaur had already taken divorce from Surjit Singh. Thus, the petitioner was co-owner in joint possession of the suit property to the extent of 2 kanal 11 marla 6 sarsahies being LR of deceased Surjit Singh. However, the defendant No.1 in connivance with Revenue Officials had wrongly got Mutation No.1815 and 1833 dated 13.03.2016 sanctioned with regard to estate of deceased Bhajan Singh and Surjit Singh while ignoring share of the petitioner. It is submitted that as soon as the petitioner found out about the said Mutations, she had filed the instant Suit.

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Ld. Counsel submits that the present application for additional evidence was instituted as the documents upon which thumb impressions of Harbhajan Singh are sought to compared with are the old documents; out of which sale deed is an official document and cannot be tampered with and comparing thumb impression on it with that of Harbhajan Singh contained on divorce deed, original of which is already on record as Ex.P-1 would in no way harm the case of respondent, who is denying said document being bogus one on the pretext of denying the marital relation of Surjit Singh with that of Harbans Kaur without any reason or rhyme but just taking undue benefit of

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absence of any other relevant document qua said marital relation between them with a view to usurp the legal share of the petitioner/ plaintiff.

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It is further submitted that the findings given vide impugned order while declining the application shows that the Ld. Court below has given absolutely frivolous findings while opining that though the petitioner has taken certified copy of said sale deed but as per settled law, no comparison could be taken from photocopy of the document and present application is silent regarding the availability of original document. The said findings show lack of judiciousness, as firstly the original of said document could not have been placed on record by the defendant or its witness despite so directed; and secondly the original record was well within the jurisdiction or domain of the Court below to be summoned from the concerned Registrar office and the expert could have been allowed to take thumb impression specimen from original record as per settled proposition of law. However, same was not done, hence the findings are against the judicial mandates and therefore, the impugned order is liable to be set aside on this score alone.

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Per contra, learned Senior Counsel appearing on behalf of respondent No.1 submits that the present application has been filed by the petitioner only as a ploy to delay the Suit proceedings. It is submitted that as there is no relevance of the said documents with the dispute at hand; and therefore, present Revision Petition deserves to be dismissed.

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No other argument is made on behalf of the parties.

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I have heard learned counsel for the parties and perused the case

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file in great detail.

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A perusal of the application P-4, filed by the petitioner for additional evidence shows that in Para 3 to 5 it is stated that: -

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“3. That during the leading the evidence by the defendant it transpired through the DW-2 Surender Pal that Bhajan Singh the father of Surjit Singh had sold land during his life time with Gurmeet Kaur the mother of DW2 as well as with father of DW2, but DW-2 failed to produce the said sale deeds and on inquiry the plaintiff came to know that Bhajan the grandfather of plaintiff had executed sale deed dated 15/06/1992 with Gurmeet Kaur w/o Baldev Singh, i.e. mother of DW-2 and she has obtained the certified copy of the said sale deed from the office of the SubRegistrar Garhshankar and the original sale deed executed by Bhajan bears his thumb impressions. The Divorce deed dated 17/07/1992 executed in between Harbans Kaur and Surjit Singh also bears the thumb impression of Bhajan Singh the father of Surjit Singh and grandfather of plaintiff. That the thumb impression of Bhajan Singh on the divorce deed as well as on the sale deed cannot be manipulated.

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4. That to prove that the divorce deed 17/07/1992 had really taken place between Surjit Singh and Harbans Kaur the plaintiff wants to get the thumb impression of Harbhajan Singh @ Bhajan Singh appended on the divorce deed dated 17/07/1992 compared with his thumb impression appended on the sale deed dated 15/06/1992 stated above.

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5. That the above said comparison of thumb impression through the report of the expert will clinch the controversy in dispute

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regarding the execution of the divorce deed, the relationship of the plaintiff with Surjit Singh as well.”

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Thus, the petitioner is trying to prove that she is legal heir of Surjit

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Singh; by trying to prove the marriage between her mother, Harbans Kaur and her father Surjit Singh s/o Harbhajan Singh; by getting compared the signatures of Harbhajan Singh on the sale deed dated 15.6.1992, with the admitted signature of Harbhajan Singh on the Panchayati divorce deed dated 17.7.1992.

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However, admittedly, the original sale deed dated 15.6.1992 is not available. As such, any comparison of signature carried out by the petitioner would not prove her Case in accordance with law. No doubt, petitioner has obtained certified copy of the sale deed. However, the same is not sufficient to prove signature of Harbhajan Singh as required under the Evidence Act.

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Furthermore, if petitioner is indeed granddaughter of Harbhajan Singh, it is difficult to believe that she would not have some document with which she could prove his standard signature with his alleged signature on the divorce deed. The list of dates above shows that petitioner has had ample opportunity of over two years to prove her case: from 21.7.2017, the date on which issues were framed till 19.11.2019, when her evidence was closed. It would therefore appear that petitioner has failed to exercise due diligence. Moreover, present application has been filed at the fag end of trial.

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Relevant findings returned by learned Civil Judge in the impugned

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order are as follows:-

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“4. I have heard the learned counsels for both the parties and have gone through the case file thoroughly. By way of the instant application the plaintiff intends to get the thumb-impression of Bhajna on divorce deed dated 17.07.1992 with that on the sale deed dated 15.06.1992. It has come in the application itself that DW2 Surinder Pal has deposed in his cross-examination that Bhajan Singh had sold land during his lifetime in favour of Gurmeet Kaur as well as with father of DW2. Perusal of the crossexamination of DW2 reveals that he was directed to bring the original sale deeds but his specifically deposed in his crossexamination dated 19.11.2019 that he is not in the possession of the above said sale deeds. No doubt the plaintiff has stated that he had obtained the certified copy of the sale deed dated 15.06.1992, but it is settled provision of law that the standard signatures for the purpose of comparison cannot be obtained from the photocopy of the document. The instant application of the plaintiff is silent regarding the availability of original document. Moreover, it is inconceivable that the plaintiff is not in knowledge of any document bearing the thumb-impressions of Bhajna and has to take the support of document to prove the thumb-impressions of Bhajna, which came to her knowledge during the pendency of this suit. The plaintiff has pleaded the alleged divorce deed in her pleadings. She had the ample opportunely to prove the said divorce deed in her evidence in affirmative. It was for the plaintiff to prove the said document by bringing on record all possible evidence. Now, the plaintiff cannot be allowed to cover up the lacuna by taking the benefit of the evidence of opposite party. This court of the view that the plaintiff has failed to satisfy this Court that despite due diligence, the

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plaintiff could not prove the said document during her evidence. The instant application seems to be an endeavour to delay the proceedings of this case. Thus, finding no merits in the present application, the same is dismissed. However, nothing herein mentioned above shall have bearing on the merits of the case.”

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