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PETITIONER: SMT. SAWARNI

       Vs.

RESPONDENT: SMT. INDER KAUR AND OTHERS

DATE OF JUDGMENT:       23/08/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) RAMASWAMY, K.

CITATION:  1996 SCALE  (6)333

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      Leave granted.      This appeal  by  special  leave  is  by  the  plaintiff against the  judgment and drecee of the High Court of Punjab and Haryana  in Regular  Second  Appeal  No.  1253  of  1994 dismissing the  second appeal  in limine. thereby confirming the judgment  and decree of the Additional District Judge in Case No. 66 of 1986.        The plaintiff filed the suit for declaration of title and possession  over the disputed land. It was allege in the plant that  one Gurbax  Singh was  the admitted owner of the land in question and he died leaving behind his widow Gurdip Kaur and daughters Swarni, the plaintiff, and Roori @ Kirpal Kaur. Said  Gurbax Singh purchased the land in question from one Dhara  Singh under  a registered  sale  deed  dated  5th September, 1958.  Widow Gurdip Kaur died on 14th April, 1968 and on  her death  plaintiff  and  Roori  succeeded  to  the disputed land  in question.  Gurdip Kaur also had executed a Will on  29th February,  1968 in favour of her two daughters the plaintiff  and Roori. plaintiff and Roori had obtained a succession certificate  claiming to  be the  legal heirs  of Gurdip Kaur  from the  Civil Court  on 4th April, 1975. Said Roori was not heard of and did not claim any interest in the disputed property,  but defendant  nos. 8 and 9 are the sons of said  Roori and  defendant no.  7  is  her  husband  and, therefore. in  the property  of Gurbax  Singh, plaintiff  as well defendant  nos. 7  to 9  are the successors in interest and are entitled to share half and half. It was also alleged that defendant  nos. 5  and 6 without having any interest in the property  forcibly occupied  a portion  of the  disputed property taking  advantage of  the absence of plaintiff from the suit  village and,  therefore, the  plaintiff filed  the suit for  the relief  as already stated. It was also averred in the plaint that defendant no. 1 claimed to have purchased the property  from defendant  no. 5  - Inder  Kaur and  said defendant no.  5 claiming herself to be one of the daughters

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of Gurbax  Singh had  executed the  sale deed  in  question. Plaintiff contended  that defendant no. 5 is the daughter of Harnam Singh  brother of  Gurbax Singh  and not  daughter of Gurbax Singh  as alleged and, therefore, she had no title to the property  to pass  on in  favour of defendant no 1 under the registered sale deed in question.      Defendant nos 5 and 6 in their written statement though admitted plaintiff  to be  one of  the daughters  of  Gurbax Singh, but  pleaded that  the other daughter of Gurbax Singh is Inder  Kaur, the  defendant no. 5 and Roori @ Kirpal Kaur was not  the daughter of Gurbax Singh. The execution of Will by Gurdip Kaur, widow of Gurbax Singh was also denied and it was averred  that the  said Will  is a forged and fictitious document. The defendants also denied the factum of obtaining a succession certificate by the plaintiff and said Roori. It was thus  contended that  since lnder Kaur had half share in the disputed  property being  daughter of  Gurbax Singh, she executed the  sale deed  in favour  of defendant nos. 1 to 4 and defendant  no. 6  on receipt  of valuable consideration. Thus, the  possession of defendant nos. 5 and 6 or defendant nos. 1  to 4 is that of a true owner and they cannot be held to ba  trespassers. Defendant  nos. 1  to 4 filed a separate written statement  and  took  the  same  stand  as  that  of defendant nos.  5 and  6. It was also averred in the written statement that  the land  in question  had been  mutated  in favour of  plaintiff and  Inder Kaur  which establishes  the rightful ownership of defendant no. 5. Defandant nos. 7 to 9 filed a  written statement  admitting the plaintiff’s claim. On these pleadings the learned trial Judge framed as many as 8 issues and recorded the following findings:      I) Gurbax  Singh was  the owner  of      the disputed property.      II) Roori  @ Kirpal  Kaur  was  the      other  daughter   of  Gurbax  Singh      apart  from   plaintiff  and  Inder      Kaur, defendant  no. 5  was not his      daughter.      lII) Inder  Kaur  in  fact  is  the      daughter of  Harnam Singh,  brother      of Gurbax Singh.      IV) Smt.  Gurdip  Kaur  executed  a      Will dated  29th February,  1968 in      favour of  her  two  daughters  the      plaintiff and Roori @ Kirpal Kaur.      V) Mutation  of the property in the      name of  the  plaintiff  and  Inder      Kaur does  not convey  any title in      favour of said Inder Kaur.      VI) A  succession  certificate  had      been  issued   in  favour   of  the      plaintiff and  Roori to succeed the      estate of Gurdip Kaur.      VII)  The  sale  deed  executed  by      defendant no.  5 -  Inder Kaur,  in      favour of defendant nos. 1 to 4 did      not convey  any title  since  Inder      Kaur herself  had no  title to  the      property.      VIII)  Defendants  1  to  4  cannot      claim to be bona fide purchasers of      the disputed property.      IX) The  valuation of  the suit for      the  purpose   of  court   fee  and      jurisdiction is proper.      X) The possession of defendant nos.

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    1 to  4 is that of a trespasser and      plaintiff is  entitled to  file the      suit for recovery of possession.      With these  findings the  suit having been declred, the defendant  nos.  1  to  4  preferred  an  appeal  which  was registered as  Civil Appeal  No. 98  of 1985/1992. Defendant nos. 5  and 6  also preferred an appeal which was registered as Civil  Appeal No.  66  of  1986  and  both  appeals  were disposed of  by a common judgment by the Additional District Judge. Amritsar.  The learned Additional District Judge came to the  conclusion that  plaintiff could  not have filed the suit so  far as  half share  of Roori  is concerned. He also came to  the conclusion  that the  Will  or  the  succession certificate is of no consequence in establishing whether the Roori is  one of  the daughters  of Gurbax  Singh. With this conclusion, he  set aside  the judgment  and dacree  of  the trial court  so far  as half  share of  Roori’s interest  is concerned. He also held that since lnder Kaur was mutated in the revenue  records she  had the right to sell her share in favour of  defendant nos.  1 to 4 and consequently defendant nos. 1  to 4  derived right, title and interest by virtue of the sale  deed in  their favour executed by lnder Kaur. With these findings  he reversed  the judgment  and decree of the trial  court   and  allowed   the  appeal.   The  plaintiff, therefore, carried  the matter  in Second Appeal to the High Court. The High Court, however, having dismissed the same in limine, the  present appeal by way of special leave has been filed.      Mr. A.S.  Sohal,  learned  counsel  for  the  appellant contended  that   the  learned   Additional  District  Judge committed gross  error of  law in  coming to  the conclusion that the  mutation order  in favour  of Inder  Kaur conveyed valid title  on her  which she  could convey  in  favour  of dafendant nos.  1 to  4 under  the registered  sale deed  in question. He  further contended  that the  findings  of  the learned trial  Judge on  the question  whether Roori was the daughter of  Gurbax Singh  or Indar Kaur was the daughter of Gurbax Singh  not having  been reversed,  it was not open to come to  the conclusion  that Inder  Kaur had valid title to half share  of the  property of  Gurbax Singh.  The  learned counsel also  urged that  in view  of the  Will executed  by Gurdip Kaur,  widow of  Gurbax Singh  in favour of plaintiff and Roori  and in  view of the succession certificate issued by the  civil court  in their  favour. the  lower  appellate court was wholly in error in ignoring the same and in coming to a  conclusion that  plaintiff could  not file the suit in respect of  half share  of Roori.  It was further urged that the High  Court without  applying  its  mind  dismissed  the second appeal  in limine has committed sarious error of law. The learned  counsel for  the respondents  on the other hand contended  that   a  court   of  fact  having  examined  and scrutinised the  evidence on  record and  having reached his conclusion, the  second appellate  Court rightly  refused to interfere with the same and accordingly this Court would not be entitled  to interfere with the same under Article 136 of the Constitution.      Having heard  the learned  counsel for  the parties and having scrutinised  the judgment  of the trial Judge as well as that  of the  lower appellate  court, we  find sufficient force in  all the  contentions raised by the learned counsel for the appellant. At the outset, it may be noticed that the plaintiff had  filed the  suit claiming  half  interest  for herself and  claiming half interest in favour of the husband and sons  of Roori  and, therefore,  the learned  Additional District  Judge  was  wholly  in  error  to  hold  that  the

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plaintiff could not have filed the suit in question. In view of rival  stand of  the parties the main question that arose for consideration  was wheter  Roori was  daughter of Gurbax Singh or  Inder Kaur,  defendant no.  5 was  the daughter of same Gurbax  Singh? The  learned trial Judge after elaborate discussion  of   the  evidence   on  record  both  oral  and documentary came  to the  positive conclusion  that  it  was Roori who was the daughter of Gurbax Singh as alleged by the plaintiff and  not Inder  Kaur. The  lower  appellate  Court without  focusing  his  attention  to  the  weighty  reasons advanced by  the  trial  court  and  without  examining  the materials on  record in  that respect even did not set aside the said  finding of  the trial  Judge and  yet reversed the decree of  the trial Judge. We have no hesitation to come to the conclusion  that the  said judgment  of  the  Additional District Judge  is wholly  unsustainable in law. The crucial point being  as to  who was  the second  daughter of  Gurbax Singh, namely  Roori or  Inder Kaur,  and  the  trial  Judge having come to the positive conclusion that it was Roori who was the second daughter of Gurbax Singh, the lower appellate Court was  not justified  in not  considering  the  material evidence as  well as reasons advanced by the trial Judge and merely coming  to the  conclusion that  the evidence  on the file do  not prove Roori to be the daughter of Gurbax Singh. Further, the  lower appellate  Court has  not  come  to  any positive finding  that Inder Kaur was the daughter of Gurbax Singh. He  has been swayed away by the so called mutation in the revenue  record in  favour of  Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor  has it  any presumptive  value on  title. It only enables the  person in  whose favour  mutation is ordered to pay the  land revenue  in question.  The learned  Additional District Judge was wholly in error in coming to a conclusion that mutation  in favour  of Inder Kaur conveys title in her favour. This  erroneous conclusion  has vitiated  the entire judgment. That apart, as it would be seen, the learned trial Judge had  considered the oral evidence adduced on behalf of the parties  to establish the respective stand as to who was the second  daughter of  Gurbax Singh  and on perusal of the same came  to the  conclusion that  it was Roori who was the second daughter  of Gurbax  Singh. The  Additional  District Judge has  not even  discussed anything  about the said oral evidence and  the reasonings advanced by learned trial Judge in coming  to the  conclusion that  it was Roori who was the second daughter  of Gurbax  Singh Non  consideration of  the oral evidence adduced by the parties, by the lower appellate Court vitiates  the  ultimate  conclusion  on  the  question whether Roori  was daughter  of Gurbax  Singh or  not. It is further seen  that Gurdip  Kaur, widow  of Gurbax  Singh had executed a Will in respect of the entire estate in favour of plaintiff and  Roori  and  after  death  of  Gurdip  Kaur  a succession certificate  had been  issued by  the civil court under the  Indian Succession  Act in favour of plaintiff and said Roori.  The  said  succession  certificate  and  rights flowing therefrom  cannot be  ignored. Admittedly no attempt has been  made by  defendant  nos.  1  to  4  to  annul  the succession certificate  on the  grounds available  under the Succession Act.  The  Additional  District  Judge  committed serious error  of law  in not  considering the said Will and the succession  certificate in  question which unequivocally clinches the matter and thereby the ultimate judgment of the Additional District  Judge is  vitiated. The High Court also was in error in not examining these questions and dismissing the Second Appeal in limine.      In the aforesaid premises, we set aside the judgment

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and decree of the High Court in Second Appeal as well as that of the Additional District Judge in Case No. 66 of 1986/1993 and confirm the judgment and decree of the Senior Sub Judge, Tran Taran in suit No. 218 of 1982. This appeal is allowed but in the circumstances without any order as to costs