Suresh Kumar vs Leela And Others

Rekha Borana, J

The present appeal has been preferred against the order dated 09.05.2023 passed by the Additional District Judge, Jalore in Civil Misc. Case No.28/2022 (CIS No.31/2022) whereby the application under Order 39 Rules 1 and 2 r.w. Section 151 of the Code of Civil Procedure as preferred by the plaintiff has been rejected.

Learned counsel for the appellant submits that the learned Court below has wrongly decided the issue of prima facie case against him ignoring the specific documents placed by him on record whereby Tola Ram had applied for the grant of death certificate of his wife Bhaatki. The said application was even supported by an affidavit of Tola Ram which clearly proved that his wife Bhaatki was the daughter of Hakma Ji. The said documents were the best evidence in possession of the plaintiff which were placed on record by him but have erroneously been ignored by the learned Court below.

Learned counsel further submitted that the onus to prove that Bhaatki was married to Tola Ram and was daughter of Hakma Ji had wrongly been concluded to be on the plaintiff and the Court below wrongly held that because the plaintiff did not place on record any document to prove that Bhaatki was the daughter of Hakma Ji, he has not succeeded in proving any prima facie case in his favour.

Per contra, learned counsel for the respondents submitted that the documents which the plaintiff is harping upon are of 19.07.2022, that is, the same date on which the alleged sale deed was placed before the registering authority for registration. Meaning thereby, the said documents have been created on the same date only with an intent to some how get the document registered. Counsel further relied upon Section 15 of the Hindu Succession Act, 1956 and submitted that even otherwise, by virtue of the said provision, Tola Ram would not be entitled to any right of ownership over the property in question.

Heard learned counsel for the parties and perused the record.

A bare perusal of the record shows that Tola Ram (defendant No.2), from whom the plaintiff alleges to have purchased the property vide a sale deed, himself has specifically denied the factum of the said execution. Further, Tola Ram has in clear terms stated that Bhaatki, his wife, was neither the owner of the land in dispute nor daughter of Hakma Ram. Further, defendant No.1 Leela has also stated that Bhaatki, her sister, was unmarried.

In view of the above specific submissions of the defendants and in view of the fact that there is no public document or any other document available on record to prove/show that Bhaatki, the owner of the property in question, was the wife of Tola Ram, the Court below could not have reached to any other finding.

So far as the documents relied upon by learned counsel for the appellant are concerned, the same have rightly not been considered by the Court below as the effect of the said documents, even if proved on record, could be only qua the liability of Tola Ram, to return the consideration amount, if any, received by him in pursuance to the alleged agreement. The document/affidavit, if any, of Tola Ram can in no way bind Leela or the other defendants.

Further, the impact of Section 15 of the Hindu Succession Act, 1956 cannot also be prima facie ignored as admittedly Bhaatki was a minor in the year 1971, when the property in question was purchased.

In view of the above observations, this Court does not find any ground to interfere in the order impugned and the present appeal is hence, dismissed.

The stay application as well as all the pending applications, if any, stand disposed of.