Smt. Reshmi vs Smt. Zaituni and others

Tejinder Singh Dhindsa,J.—Defendant-appellant Reshmi is in second appeal before this Court.

Plaintiffs filed a suit seeking a declaration and joint possession as a consequential relief that they are owners of the suit land to the extent of 14/24 share i.e. 7/24 share each as daughters of Budha. Briefly, it was stated that Budha (now deceased) was owner in possession of the land, details of which were furnished in para 1 of the plaint situated in village Bilochpur and village Hafjabad Majra, Bilochpur. Upon his death, Reshmi the daughter of Budha from his first wife had filed a suit setting up a Will of Budha and the same had been struck down by the Additional District Judge, Gurgaon in appeal, who had declared defendants no.2 and 3 i.e. widows of Budha to be owners of 1/8th share, whereas defendant no.1 was held to be owner of 7/8th share. Plaintiffs stated that they were also daughters of Budha and were thus entitled to inherit his estate. It was against such brief factual backdrop to claim their share of inheritance that the suit for declaration and joint possession was instituted. Defendant no. 1 i.e. the present appellant contested the suit and denied the allegations and assertions made by the plaintiffs and stated that she is the only daughter of Budha.

Upon the respective pleadings of the parties, following issues were struck:-

Whether the plaintiffs are daughters of the late Shri Budha son of Fatoo; if so to what effect?OPP.

Whether the plaintiffs inherited the lands and properties left by late Budha to the extent of 60/24 share as alleged?OPD.

Whether the plaintiffs are estopped from filing the present suit by their act and conduct?OPD.

4 Whether the suit is barred by the principle of resjudicata?OPD.

Whether Budha deceased executed a valid will dated 2.10.1976 in favour of defendant no.1 if so to what effect?OPD.

Whether the plaintiffs have no locus standi to file the present suit?OPD.

Relief.

The Trial Court decreed the suit of the plaintiffs and held the plaintiffs to be daughters of late Budha son of Fatoo and they were held entitled to the extent of 14/24 share i.e. 7/24 share each in respect of the land and property left by late Budha and which was wrongly allotted to defendant no.1, Reshmi. Being aggrieved Reshmi, defendant-appellant preferred a civil appeal and vide judgement dated 20.7.1984 the Additional District Judge, Faridabad affirmed the findings of the Trial Court and dismissed the appeal. Resultantly, defendant-appellant is in second appeal before this Court.

I have heard Mr. R.S. Sihota learned senior counsel appearing for the appellant and Mr. O.P. Goyal learned senior counsel appearing for the respondents at length.

Learned senior counsel appearing for the appellant has vehemently argued that the courts below have grossly erred in concluding that the plaintiffs-respondents no.1 and 2 are in fact the daughters of Budha. Learned counsel contends that there has been a misreading and mis-appreciation of the evidence in as much as in terms of referring to the testimony of the witnesses of the plaintiffs, it was sought to be pointed out that Zaituni, plaintiff-respondent no.1 was herself interested being a plaintiff and her statement could not have been accepted at its face value to prove her relationship with Budha. PW-2 Israeli had testified that Budha had one daughter from Bishmillah and who was stated to be still alive. Such fact, learned counsel would contend was nobody''s case and as such the clear inference that could be drawn was that PW-2 had no knowledge whatsoever of the exact relationship of the plaintiffs with Budha. The testimony of PW-4 Mehtabi also as per counsel for the appellant could not have been relied upon, she being the mother of the plaintiffs. Still further, learned senior counsel appearing for the appellant contended that the affidavit Ex.PW-7/1 had been relied upon by the courts below and the same was a glaring error as the same had been got executed from the defendant-appellant Reshmi under duress and had in fact been taken by the remaining defendants forcibly. In furtherance of such contention, learned counsel would draw the attention of this Court to an application Ex.D1 that had been moved by the brother of the defendant-appellant, whereby his search warrant vide order Ex.D-2 had been obtained with regard to the defendant-RSA No. 2453 of 1984 (O&M) -4-appellant. Accordingly, the admission of the defendant-appellant could not have been taken into consideration. Lastly, learned counsel for the appellant would also contend that Ex.P-5 i.e. birth entry of Maujbi that has been placed on record by the plaintiffs had been misread by the courts below as there was no identity of Maujbi mentioned therein.

Learned senior counsel appearing for the plaintiffs-respondents on the other hand contends that the findings of the courts below are well reasoned and based on due appreciation of evidence and as such no interference in second appeal is called for.

I have given my thoughtful consideration to the contentions advanced by the respective counsel for the parties and have also gone through the documents on record carefully. In my considered opinion the present second appeal deserves to be dismissed. In the cases of Madhvan Nair Vs. Bhaskar Pillai reported as 2005 (10) SCC 533, Harjeet Singh Vs. Amrik Singh reported as 2005 (5) SCC 270 and Gurdev Kaur and Others Vs. Kaki and Others, while examining the scope of Section 100 of the Code of Civil Procedure, it was laid down that the High Court has no jurisdiction to interfere with the findings of fact as arrived at by the courts below even if the same are grossly erroneous. It was held that the legislative intent was very clear and the Legislature never wanted the second appeal to become a "Third Trial on facts". The jurisdiction of the High Court in interfering with the judgements of the courts below is clearly confined only as regards hearing of substantial questions of law. Both the courts below have duly appreciated the evidence led on record and have furnished cogent and valid reasoning to hold the plaintiff-respondent no.1 to be the daughter of Budha, deceased. The document Ex.P-5 relating to the RSA No. 2453 of 1984 (O&M) -5-birth of Maujbi in the year 1954 to Budha son of Fatoo at village Hafjabad Majra has been held to be sufficient evidence in itself to show plaintiff-respondent Maujbi to be the daughter of Budha. Such record was prepared in the year 1954 i.e. much prior to the present dispute having arisen. There was neither any allegation not was it proved to be forged. Even the testimony of Badlu, DW-4 in its cross-examination has been referred to, wherein he admitted that the plaintiffs-respondents used to reside in the house of Budha and used to address Mehtabi as their mother and Budha as their father. Badlu, DW-4 had also testified in the cross-examination that Budha himself used to refer to plaintiffs-respondents as the daughters. Such version also stands corroborated by DW-7 Idrish. The testimony of Zaituni, plaintiff herself was categoric to the extent that she was being treated by Budha as his daughter and likewise she treated Budha as her father. Likewise is the statement of the other daughter namely Maujbi. Both the courts below have held the requirement of Section 50 of the Indian Evience Act to be complied with as there was no ostensible justification for the plaintiffs-respondents to have made a false statement regarding their relationship with Budha. The testimony of Israeli, PW-2, who is the son of the brother of Budha''s father has also been held to be crucial in as much he was found to be a person, who would possess special knowledge regarding the relationship of plaintiffs-respondents with Budha. Shakuri i.e. the sister of Budha has also stated that the plaintiffs-respondents are the daughters of Mehtabi and Budha.

Learned senior counsel has been unable to persuade me to hold that the findings of the courts below are based on mis-appreciation of evidence led on record. I do not find the findings to be perverse. The RSA No. 2453 of 1984 (O&M) -6-concurrent findings of fact are binding on this Court.

For the reasons recorded above, the present second appeal is dismissed as it raises no question of law much less substantial question of law.