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Braham Raj Singh Vs. Smt. Braham Raj Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 61 of 1979
Judge
Reported inAIR1982HP57
ActsCode of Civil Procedure (CPC) , 1908 - Section 10; ;Evidence Act, 1872 - Section 18; ;Limitation Act, 1963 - Schedule - Articles 64 and 65; ;Trusts Act, 1882 - Section 14
AppellantBraham Raj Singh
RespondentSmt. Braham Raj Devi and ors.
Appellant Advocate D. Gupta, Adv.
Respondent Advocate K.D. Sud, Adv.
DispositionAppeal allowed
Cases Referred(Punjab Municipal Committee Ludhiana v. Lakhmi Chand). In
Excerpt:
.....judge liable to be set aside. -..........the sons/relations of the deceased gajjan singh and they have no right to the property of gajjan singh deceased. it was further alleged that the aforesaid two defendants are asserting that the deceased gajjan singh had made a gift of a part of his property in their favour in the year 1950, but in fact no such gift was ever made by deceased gajjan singh. in the alternative it was prayed that if any gift is proved to have been made,then the same was a paper transaction only and gajjan singh remained in possession of the property and after the death of gajjan singh, plaintiffs re-mained in possession of this property and as such they have acquired title to the same by adverse possession. the plaintiffs further claimed that the defendants are threatening to interfere with the peaceful.....
Judgment:

Vyom Prakash Gupta, J.

1. This regular second appeal has been filed by defendant against the judgment and decree dated 8-6-1979 of District Judge, Hamirpur, by which the learned District Judge accepted the appeal of the plaintiffs-respondents and decreed the suit of the plaintiffs/respondents for possession of the disputed property.

2. The brief facts are that plaintiffs (respondents Nos. 1 to 6) filed a suit for declaration with respect to the property detailed in the plaint to the effect that they are the owners and in possession of the suit property and in the alternative they prayed for possession of the disputed property. The suit was originally filed in the Court of the Sub Judge, Hamirpur on 31-10-1968 on the allegations that one Gajjan Singh son of Shri Ranu was the owner of the suit land and he died on 26-6-1963 leaving behind the plaintiff No. 1 as his daughter, plaintiff No. 2 as his widow, and plaintiffs Nos. 3 to 6 as sons and daughters of his predeceased daughter Gian Devi. It was further stated that defendant/appellant Braham Raj Singh and the other defendant Samraj Singh (respondent No. 7) are not the sons/relations of the deceased Gajjan Singh and they have no right to the property of Gajjan Singh deceased. It was further alleged that the aforesaid two defendants are asserting that the deceased Gajjan Singh had made a gift of a part of his property in their favour in the year 1950, but in fact no such gift was ever made by deceased Gajjan Singh. In the alternative it was prayed that if any gift is proved to have been made,then the same was a paper transaction only and Gajjan Singh remained in possession of the property and after the death of Gajjan Singh, plaintiffs re-mained in possession of this property and as such they have acquired title to the same by adverse possession. The plaintiffs further claimed that the defendants are threatening to interfere with the peaceful ownership and possession of the plaintiffs claiming the property by gift as well as by inheritance on the ground that they are the sons of the deceased Gajjan Singh.

3. Samraj Singh defendant No. 1 filed his written statement on 5-6-1969 and admitted the claim of the plaintiffs but the present appellant, Braham Raj Singh who was defendant No. 2 denied the plaintiff's claim and pleaded that he is the son of Gajjan Singh deceased and has a right to inherit his property. It was further stated that the said Gajjan Singh had rightly gifted away his property in the year 1950 regarding which a mutation has also been sanctioned vide mutation No. 304.

4. It was further stated that the defendants are in possession of the property.

5. After replication the following issues were framed on 11-6-1969 by the trial Court :--

1. Whether the defendants are the sons of Gajjan Singh deceased. If so, to what effect ?

2. If issue No. 1 is not proved, whether the defendants are not the owners of a land of khata No. 14 and the alleged settlement deed was not acted upon?

3. Whether Gajjan Singh deceased did not hand over the possession of the land of khata No. 14 to the defendants at the time of the alleged settlement (Tahliq) and thus became owner of the suit land by adverse possession ?

4. Relief.

6. The Senior Sub Judge Hamirpur decided all the issues in favour of the defendants and in view of these findings the suit of the plaintiffs against defendant No. 2 (appellant) was dismissed but the suit against the defendant No. 1, Samraj Singh, (respondent-7) was decreed in view of the admission made by him, vide judgment and decree dated 14-6-1977. The plaintiffs feeling aggrieved from this judgment and decree filed an appeal with the District Judge, Hamirpur and the DistrictJudge, Hamirpur decided all the issues against the defendants and thus reversed the findings of the Senior Sub Judge, Hamirpur on all the issues and as a result thereof accepted the appeal and decreed the plaintiffs suit for possession with respect to the whole of the disputed property against both the defendants. In this appeal I have heard Shri Devinder Gupta, the learned counsel for Braham Raj Singh and Shri K. D. Sud, the learned counsel for the plaintiffs/respondents Nos. 1 to 6. The learned counsel for the appellant contended that the judgment of the trial court is correct and he assailed the judgment of the learned District Judge on the grounds that the learned District Judge has ignored very important oral and documentary evidence and has thus misinterpreted the law, It was contended that the judgment of the Senior Sub Judge is a well reasoned judgment based upon legal evidence and the learned District Judge has not given ample reasons for discarding the reasonings given by the Senior Sub Judge. It was also contended that important pieces of documentary evidence such as exhibits, DB., DC. DD, DE and DF have been ignored by the learned District Judge and that in view of the fact that there is a presumption in favour of legitimacy, the learned District Judge should not have set aside the well reasoned judgment of the Senior Sub Judge.

7. The learned counsel for the respondents contended that the learned District Judge has considered the documentary evidence as well as the oral evidence and that the findings of fact arrived at by the learned District Judge should not be interfered in the second appeal. It was further contended that the documentary and the oral evidence relied upon by the defendant/appellant does not at all prove that he is the legitimate son of Gajjan Singh deceased. The learned Counsel also referred to the written statement of Samraj Singh and contended that the admission of Samraj Singh is against his own interest and as such is binding upon the present appellant Braham Raj Singh. It was also contended that the defendant-appellant has not cared to produce the birth entries and that the documentary evidence produced by the defendantloses its value in view of the other over-whelming evidence.

8. I have considered the contentions of the learned counsel for the parties and have also gone through the records of the case.

9. Generally the findings of fact arrived at by the first appellate court are not to be interfered with in second appeal. But such findings can be reversed or interfered with, if it suffers from any substantial error or defect of procedure. A finding of fact can be said to suffer from substantial error or a defect in procedure if the said finding is arrived at by completely ignoring a particular piece of important and material evidence which has the effect by itself to unsettle that finding of fact in its entirely. (See : AIR 1974 SC 1178, Shikharchand Jam v, Digamber Jain Praband Karini Sabha, AIR 1971 SC 1049, Radha Nath Seal v. Haripada Jana, AIR 1968 SC 468, Smt. Sonawati v. Sri Ram; AIR 1978 Orissa 153, Pratap Chandra Patnaik v. Kamlala Kanta Das and 1973 Cur LJ 432 (Punjab Municipal Committee Ludhiana v. Lakhmi Chand). In the present case, I find that the learned District Judge has ignored very important and material documents which were referred to by the learned counsel for the appellant during the course of arguments. In such circumstances the learned counsel for the parties referred to the oral as well as documentary evidence produced by the parties in support of their contentions,

10. The admitted facts are that Gajjan Singh was living in Burma for a pretty long period and came to his village in Hamirpur district after his retirement in 1937. The defendant/appellant claims that he is son of Gajjan Singh and was born in Burma. On the other hand the contention of the plaintiffs is that the present appellant was purchased by Gujjan Singh and was brought from Burma when the appellant was about 2/3 years of age. The appellant was not the son of Gajjan Singh and was merely a servant. I will first like to refer to the documentary evidence produced on the record. The best person to know about the legitimacy or the relationship of appellant/defendant No. 2, was Gajjan Singh himself. There is a report roznamcha of patwari Ex. DAdated 21st January, 1950. By this report the said Gajjan Smgh (deceased) had stated that he has transferred his land measuring 685 kanals 3 marlas in favour of his sons Samraj Singh and Braham Raj Singh in equal shares. It is further stated that both the aforesaid sons will be the owners of the property in equal shares and that possession has also been transferred in their favour and the said Gajjan Singh has no concern with the aforesaid property. In this report of the patwari both Samraj Singh and Braham Raj Singh have been described by Gajjan Singh deceased as his 'sons' and on the basis of this report a regular mutation No. 304 (Ex. DF) was entered by the patwari on 21-1-1950, During the course of this mutation, Gajjan Singh appeared in person on 12-2-1950 before the Revenue Officer and admitted the factum of having made the 'tam-lik' (transfer of ownership) in favour of Samraj Singh and Braham Raj Singh with respect to the aforesaid property. The Revenue Officer has mentioned in his order dated 12-2-1950 that the transferor and the transferees are father and sons and are Rajputs agriculturists and on the basis of this order the mutation was sanctioned on 12-2-1950. After its sanctioning some review proceedings took place but they are not very material for the decision of the present dispute. It may be mentioned that a copy of the report made to the patwari (Village Officer) is admissible in evidence under Section 151 of the Punjab Land Revenue Act. The Patwari was a person who was competent to record a report of this nature, and is required under the law and the rules to maintain such records. It is further important to note that this report had been made to the Patwari at a time when there was no dispute regarding the parentage/legitimacy of the appellant. The proceedings of the mutation are also admissible in evidence. In these circumstances the admission of Gajjan Singh deceased in the report roz-namcha describing the appellant as his son has a great bearing with respect to the relationship of the appellant with the deceased Gajjan Singb. The said statement is also admissible under Section 32 of the Evidence Act. There is another very important document Ex. DE, the pedigree table of the parties on record. This is a copy of the record ofrights and is admissible in evidence. Under Section 44 of the Land Revenue Act, it has a presumption of truth. In this document the defendant/appellant is shown as son of Gajjan Singh deceased.

11. The learned District Judge has not referred to the documents Exs. DA, DF and DE or the admissions made by Gajjan Singh in these documents with respect to his relationship with the appellant. It is a material irregularity and illegality committed by the learned District Judge. As the learned District Judge has ignored very vital and important documents in the case, therefore, in the peculiar circumstances of the case, the judgment of the learned District Judge can be interfered with, if it is otherwise not sustainable. The school-transfer certificate Ex. DB has been exhibited and no objection was raised at the time of its being exhibited. In this certificate, the appellant is also shown to be son of Gajjan Singh. If the mode of proof regarding this transfer certificate had been objected to at the time of its admissibility then it was possible for the defendant appellant to have produced other evidence for proving the certificate. The District Judge has ignored this fact. In the military discharge certificate Ex. DC, the appellant is again shown to be the son of Gajjan Singh and his date of birth is given as 22nd November, 1935 while he was enrolled in the military in 1952 and served in military till 1967. There is nothing on record to show that as to why the parentage of the appellant was shown to be that of Gajjan Singh deceased in this document. It may be mentioned that there is no documentary evidence produced on behalf of the plaintiff to rebut the aforesaid documentary evidence produced by the defendant appellant.

12. As to the oral evidence of the parties, the learned District Judge has relied upon the evidence of Braham Raj Devi and Basanti Devi on the ground that these two ladies were admittedly the relations of Gajjan Singh. The Senior Sub Judge has discarded the evidence of these two ladies on the ground that they are the plaintiffs and are interested in defeating the claim of the appellant. The learned District Judge has not given any reason as towhy he has discarded the reasoning given by the learned Senior Sub Judge. The learned District Judge has further relied upon the statement of Shri Pra-bhdial witness recorded on 10-9-1975 and has described this witness to be a defendants' witness. A perusal of the record shows that this witness was produced by plaintiff in rebuttal and he cannot be deemed to be defendants' witness. Besides this there is evidence regarding conduct of Gajjan Singh to the effect that he got the appellant admitted in the school and this fact is also admitted by Shrimati Basanti plaintiff, The District Judge has not referred to this conduct of Gajjan Singh which was admittedly there. If the appellant was not his son then there was no occasion for Gajjan Singh to have him admitted in the School. The District Judge has further discarded the evidence of the defendants on the ground that Lachhman Singh who was a close relation of Gajjan Singh has not been produced by the defendants but at the same time it has been ignored that if this Lachhman Singh could be produced by defendants then the same man could also be produced by the plaintiffs for proving, that the appellant is not the son of Gajjan Singh. Similarly, statement of DW 4 Bhumi Devi who is admittedly also a close relation of the parties has been rejected by the District Judge on the ground that a letter had been written and mentioned by this witness but this letter was never produced by this witness. It is worthwhile noting that no suggestion for producing any such letter was put to the witness in the cross examination and it is not known as to whether any such letter was in his possession at the time when his statement was being recorded. As no cross examination of this witness has been conducted on this point, therefore, his statement cannot be brushed aside on this simple score with respect to DW-2 Hans Raj. DW-3 Sukh Lal and DW-4 Bhumi Devi the learned District Judge has only recorded that they are antagonists towards the plaintiffs but no cross examination of any type has been conducted on these witnesses to prove that they are in any way against the plaintiffs. Even the plaintiffs have not stated that they are inimical towards them. Anotherfact which has been taken note of by the District Judge is that the school admission certificate form has not been signed by Gajjan Singh. This is a mis-statement of facts which has not come in the evidence of any of the witnesses. No witness has stated that the school admission form was not signed by Gajjan Singh as no such suggestion was made to any witness. In view of the aforesaid salient featur.es, I am not in-clined to accept the reasonings given by the learned District Judge for discarding the evidence of the defendants on the point of relationship of the appellant with deceased Gajjan Singh. The oral evidence of the witnesses such as DW-1, DW-2, DW-3 and DW-4 clearly prove the conduct to the effect that Gajjan Singh was treating the appellant as his son and both were behaving with one another as if they are the father and son, DW-1, DW-2 and DW-4 also state that they are relations of Gajjan Singh, The said conduct is further apparent from the documentary evidence, which I have already discussed. The plaintiffs' witnesses PW-1 Dharam Singh, PW-2 Bakshi Ram also admitted that defendant appellant was treated as a son by deceased Gajjan Singh and that the appellant was also educated by Gajjan Singh and joined military service at the instance of Gajjan Singh. PW-3 Bakshi Ram and PW-9 Johndu also admit these facts. The evidence of PW-6 Lekh Raj, PW-7 Gian Chand and PW-8 Ranjit Singh is not relevant and admissible for the present controversy. I have already stated that the evidence of PW-10 and PW 11, that is, (Basanti Devi and Braham Raj Devi) cannot be believed as they are highly interested in defeating the claim of the defendant/appellant. PW 5 Sant Ram has stated that Gajjan Singh has purchased children from Burma. I am afraid that his evidence is not believable on this score and in view of the subsequent conduct of Gajjan Singh (which is evidenced by the documentary evidence) the statement of this witness appears to be false. The statements of PW-2, PW-4 and PW-9 are also not relevant,

13. As to the admission of Samraj Singh to the effect that he has admitted the claim of the plaintiffs in the written statement, the same cannot be heldto be binding on the defendant/appellant. It is no evidence against the defendant-appellant The said Samraj Singh never appeared in the witness box and defendant-appellant had no opportunity to cross-examine him,

14. The story of the plaintiff to the effect that Gajjan Singh purchased the defendant or brought him as a servant also does not appeal to reason. Defendant was only two or three years of age in 1937 and if he was only a servant then there was no occasion for Gajjan Singh to have admitted the defendant-appellant in the school or to have put him in the military service. If the purpose was to get the services from appellant as a servant then he would not have been treated as son,

15. The non production of birth entries also cannot be a ground against the defendant/appellant because it is an admitted fact that their birth took place in Burma at a time when Gajjan Singh was staying in Burma.

16. The cumulative effect of the aforesaid discussion is that the learned District Judge has wrongly decided issue No. 1 against defendant-appellant. Thus the findings of the learned District Judge on issue No. 1 are reversed and the findings of the Senior Sub Judge on this issue are affirmed.

17. As far as issues Nos, 2 and 3 are concerned, they are not very material for the controversy in dispute. It has already been held that Gajjan Singh had made a report regarding the transfer of the land in favour of the appellant in the year 1950, when appellant was admittedly a minor. No adverse possession can be claimed against him. Even otherwise after having held that the appellant is the son of Gajjan Singh deceased, the said transfer in his favour will be quite valid and legal. Gajjan Singh died in the year 1963 and the said transfer was never challenged by the plaintiffs during the lifetime of Gajjan Singh. Moreover, there is no question of acquiring any adverse possession by a father against a minor son and the possession of the father, if any will be deemed to be on behalf of his son. Besides this the recital in the report roznamcha and the mutation specifically shows that the possession had been transferred. Hence the findings on both these issues of the learned DistrictJudge are also reversed and the findings of the Senior sub Judge, are restored and affirmed.

18. The result of the above discussion is that the present appeal succeeds and the judgment and decree passed by the learneld District Judge on 8-6-1979 is set aside and that of the Senior Sub Judge dated 14-6-1977 is restored, The plaintiffs suit against the defendant/appellant is accordingly dismissed but the suit against Samraj Singh defendant shall stand decreed, as he had admitted plaintiff's claim. The parties are left to bear their own costs throughout.


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