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PETITIONER: JOGINDER SINGH & ANR.

       Vs.

RESPONDENT: SMT. JOGINDERO & ORS.

DATE OF JUDGMENT:       23/01/1996

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) SINGH N.P. (J)

CITATION:  1996 AIR 1654            JT 1996 (1)   467  1996 SCALE  (1)501

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Faizan Uddin, J. 1.    This appeal has been directed against the judgment and decree passed  by the  High Court  of Punjab  &  Haryana  at Chandigarh dated March 12, 1982 in Regular Second Appeal No. 172/1972 reversing  the judgment  and decree dated 11.1.1972 based by  the Additional  District Judge.  Amritsar in Civil Appeal No.  307/1971 and  restoring the  judgment and decree dated 1.2.1969  passed by  the Sub-Judge,  Class II.  Taran- Taran in case No. 32/1967. 2.     Smt.   Joginderd  alias   Gindo  and   Smt.  Chhindo, plaintiffs/Respondent Nos. 1 and 2 are the daughters of Smt. Soman,   defendant/Respondent   No.   4.   Shingara   Singh, plaintiff/Respondent No.  3 is  sister’s son  of Smt. Soman. The land  in suit  as admeasuring  60 kanals  and 17  marlas belonged to  Smt. Soman.  According to  the plaintiffs. Smt. Soman, defendant/Respondent  No. 4  made a gift of said land in favour  of the plaintiffs by a registered gift deed dated April 12,  1960 with  delivery of  possession. The defendant No. 1  Surain Singh  (who died  during the  pendency of  the Second Appeal  before the  High Court  and is represented by his legal  representatives) and  Bur Singh, defendant No.2 / Respondent No.  5 herein  are tenants in respect of the suit land under  defendant No.  4. Smt.  Soman. It was alleged by the plaintiffs  that the  defendants No.  1 to  3  with  the connivance of  the revenue  authorities got  their own  name mutated on  April  17,  1967  in  the  revenue  records  and declined  to   admit  the   claim  of  the  plaintiffs  and, therefore, the plaintiffs instituted the suit for possession of the land. 3.    The  defendants No. 1, 2 and 3 resisted the plaintiffs suit by  contending that  Smt. Soman,  defendant No. 4 after the death  of her  husband, Gujjar Singh, had remarried and, therefore, Smt.  Soman had  no subsisting  right,  title  or interest in  the property  in dispute. They also denied that

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the plaintiffs  No. 1  and 2 are the daughters of Smt. Soman from her  late husband Gujjar Singh. The relationship of the plaintiff No.  3. Shingara  Singh, with  Smt. Soman  and her husband was  also denied. They further took the plea that no gift deed  as alleged by the plaintiffs was ever executed in their favour  and even  if Smt.  Soman had executed any such deed of  gift the  same was not binding on the defendants as Smt. Soman  had no  subsisting right  in the said land. They took the stand that they were cultivating the land as owners thereof and not as tenant. 4.    However, at the trial the defendants admitted that the plaintiffs No.  1 and 2 were the daughters of Smt. Soman and accordingly there  was no  contest  on  issue  No.  1  which related to  the relationship  of the  plaintiffs  with  Smt. Soman. Similarly the parties gave up the dispute with regard to the  previous litigation in respect of the suit property. However, on  a close  analysis of  the oral  and documentary evidence adduced by the parties the trial Court recorded the finding that  the defendants  had failed  to establish  that Smt. Soman, defendant No. 4 had remarried after the death of her former husband. Gujjar Singh, and, therefore she was not divested of  her right,  title and interest in the property. The trial  Court also  recorded the  finding that Smt. Soman had made a gift of the suit land in favour of the plaintiffs by the registered deed of gift dated April 12, 1960 and that the defendants  were recorded  as tenants  under Smt. Soman, defendant No.  4 in Khasra Girdawari in the year 1961-62 and 1963-64 onwards  and they  being the  tenants of  Smt. Soman were estopped  from contending  that they were in possession of the land in their own rights as owners. On these findings the learned  Trial Judge  decreed the  plaintiffs  suit  for possession. On  appeal by  the defendant No. 1, Surain Singh (since deceased)  learned Additional District Judge reversed the aforementioned  findings recorded by the Trial Court and dismissed  the   plaintiffs  suit  with  costs.  Before  the appellate Court the defendant Surain Singh did not challenge the  findings   with  regard  to  the  relationship  of  the plaintiffs with Smt. Soman hor he disputed the factum of the gift of  the suit  land to  the plaintiffs.  The only ground canvassed before  the appellate  Court was  that since  Smt. Soman had  remarried after  the death  of her husband Gujjar Singh, she  had ceased to be the owner of the land by reason of  which  the  alleged  gift  conferred  no  title  on  the plaintiffs. The  appellate Court  took the  view  that  Smt. Soman had  appeared before  the Revenue Officer and admitted her  marriage   with  Ajaib   Singh  as   contended  by  the defendants. In  recording the  finding, the  appellate Court relied on Ext. D.3 which is the birth entry of one Smt. Amar Jito, a  daughter born  to Ajaib  Singh and  in the  remarks column of which name of Smt. Soman is mentioned as mother of Amar Jito  which according  to  the  first  appellate  court proved that Smt. Soman had remarried with Ajaib Singh and on the basis  of the  aforesaid evidence set aside the findings recorded by  the Trial  Court by  holding that remarriage of Smt.  Soman  was  established.  On  further  appeal  by  the plaintiffs the  High Court  in second appeal, disagreed with the first appellate Court and found favour with the findings recorded by  the trial  Court and,  therefore, set aside the findings recorded  by the first appellate Court and restored the judgment  and decree  passed by  the trial Court against which this  appeal has  been preferred  under Article 136 of the  Constitution   by  the  legal  representatives  of  the deceased Surain Singh. 5.    Learned counsel for the appellants taking support from the findings  recorded by the first appellate Court assailed

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the view taken by the High Court by contending that the High Court committed  a serious error in holding that Late Surain Singh and  Bur Singh  being tenants  under Smt.  Soman, were estopped from  challenging the  title of  the owner. He also submitted that  there was  convincing evidence  to establish remarriage of Smt. Soman by reason of which she had lost all rights in  the property in suit and had no right to transfer the same  to the  plaintiffs. After going through the record and  the   impugned  judgment   we  find  no  merit  in  the aforementioned submissions. It may be noticed that the first appellate Court  had reversed the finding of the trial Court with record  to the remarriage of Smt. Soman on the basis of Ext. P.4  which is  said to  be the  copy of mutation in the revenue record.  It  appears  that  the  said  mutation  was effected on  the basis  of certain statement alleged to have been made  by Smt.  Soman. But there is no statement as such on record  to show  the admission  on the part of Smt. Soman that she had remarried with Ajaib Singh. It appears that the first appellate Court took the copy of mutation as statement of admission  on the  part of  Smt. Soman and relying on the said copy of mutation Ext. P.4 took the view that Smt. Soman had admitted  in the  mutation that  she had  entered into a marriage with  Ajaib Singh.  The first  appellate Court also took into consideration Ext. D.3 which is the birth entry of one Amar  Jito who  is said to be the daughter born to Ajaib Singh and  in the  remarks column thereof the name of mother of Amar  Jito is  given as Soman. There is no evidence as to who made  this entry.  There is  also no evidence to suggest that the  entry relates  to the  daughter born  out  of  the alleged wedlock  between Ajaib  Singh and Soman. There is no evidence that  entry of Soman in Ext.D.3 is the same lady as defendant  /   Respondent  No.   4.  In   these  facts   and circumstances and  particularly in  view of  the evidence of Mohinder Singh.  PW 5  the real  brother of  Ajaib Singh who stated that  his brother  Ajaib  Singh  never  married  Smt. Soman, it is difficult to accept the view taken by the first appellate Court. 6.    Late  Surain Singh  and Respondent  Bur Singh  did not seriously dispute  that they  were not  tenants  under  Smt. Soman in  respect of  the land  in dispute  and  adduced  no evidence in  that behalf.  On the  contrary Khasra Girdawari Ext.P.6 clearly  indicated that  the deceased  Surain  Singh (who is  represented by  his legal  representatives in  this appeal) and  Bur Singh  were tenants  under Smt.  Soman with regard to  the land  in suit.  This being  the position  the tenants could  not be permitted to deny or dispute the title of the  owner. This  is a settled view that having regard to the provisions  of Section 116 of the Evidence Act no tenant of immovable property or person claiming through such tenant shall, during  the continuance  of the tenancy, be permitted to deny  the title  of the  owner of  such property. In this connection it  would be  relevant to make a reference to the decision of  this Court  in Veerraju  Vs. Venkanna [1966 (1) SCR 831  (839) =  AIR 1966 SC 629 ] wherein this Court, with reference to  the decision of Privy Council took the view as under:-      "A  tenant   who  has   been  let   into      possession cannot  deny  his  landlord’s      title, however  defective it  may be, so      long  as  he  has  not  openly  restored      possession   by    surrender   to    his      landlord". 7.    In  the facts  and circumstances stated above, we find no  merit  in  this  appeal.  Consequently,  the  appeal  is dismissed with costs throughout.

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