Vs. Smt. Inder Kaur & Ors  INSC 1001 (23 August 1996)
Pattanaik (J) G.B. Pattanaik (J) Ramaswamy, K.
1996 SCALE (6)333
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.
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 of Gurbax
Singh had executed the sale deed in question.
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.
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.
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.
these pleadings the learned trial Judge framed as many as 8 issues and recorded
the following findings:
Singh was the owner of the disputed property.
@ Kirpal Kaur was the other daughter of Gurbax Singh apart from plaintiff and Inder
Kaur, defendant no. 5 was not his daughter.
Kaur in fact is the daughter of Harnam Singh, brother of Gurbax Singh.
Gurdip Kaur executed a Will dated 29th February, 1968 in favour of her two
daughters the plaintiff and Roori @ Kirpal Kaur.
Mutation of the property in the name of the plaintiff and Inder Kaur does not
convey any title in favour of said Inder Kaur.
succession certificate had been issued in favour of the plaintiff and Roori to
succeed the estate of Gurdip Kaur.
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
Defendants 1 to 4 cannot claim to be bona fide purchasers of the disputed
The valuation of the suit for the purpose of court fee and jurisdiction is
possession of defendant nos.1 to 4 is that of a trespasser and plaintiff is
entitled to file the suit for recovery of possession.
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
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.
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.
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 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.
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.