- (1.) This is a regular second appeal filed by Smt. Tej Kaur plaintiff against the judgment dated 21st December, 1970 of the Additional District Judge, Amritsar, whereby he accepted the appeal of the defendants-respondents and set aside the decree passed by the trial Court in her favour and dismissed her suit with costs throughout.
(2.) The facts of this case are that Jhanda Singh the father of Tej Kaur plaintiff, and Nand Singh the brother of Jhanda Singh, owned one-third of the land in suit measuring 429 Kanals 19 Marlas fully described in the plaint and situated in the area of village Tharu, Tehsil Tarn Taran, District Amritsar. Jhanda Singh died about 17 years prior to the institution of this suit on 17th December, 1966 without leaving any male issue and his brother Nand Singh inherited his share in the land. Nand Singh died issueless and widowless in Malaysia in October, 1956. After the death of Nand Singh his one-third share in the land in suit was mutated by the Revenue authorities in the name of Tej Kaur plaintiff. Latter on, on the objections filed by the defendants-respondents who are the collaterals of Nand Singh and Jhanda Singh the mutation in the name of the plaintiff was cancelled and the land was mutated in the name of the defendants. Tej Kaur plaintiff filed suit for possession of one-third share of this land on the allegation that she being the niece of Nand Singh was entitled to inherit the land in preference to the defendants and the revenue authorities wrongly and illegally attested the mutation of this land in their names. The defendant Nos. 1, 2, 4, 10, 12, 18 and 19 contested the suit in the trial Court. They denied the allegations made in the plaint. It was pleaded that Nand Singh had not been heard of for the last more than 70 years and, therefore, he must be presumed to have died, that they had been in possession of the land for the last 40 years and had become its owners. From the pleadings of the parties, the following issues were framed by the trial Court :- (1) Whether the plaintiff Tej Kaur is the daughter of Jhanda Singh deceased ? (2) When did Nand Singh brother of Jhanda Singh die or presumed to be dead ? (3) Whether the defendants are the collaterals of Nand Singh deceased and of what degree, to what effect ? (4) Whether the defendants are in possession of the suit land for more than 40 years, if so, to what effect ? (5) Whether the defendants are estopped by their act and conduct from alleging the death of Nand Singh since seventy years and also denying the relationship of the plaintiff with Jhanda Singh and Nand Singh deceased ? (6) Whether the suit is within time ? (7) Relief. The Subordinate Judge decided issue No. 1, 5 and 6 in favour of the plaintiff and decided issue Nos. 3 and 4 against the defendants. On issue No. 2 it was held that it could not be definitely held that when Nand Singh died and, therefore, he did not give any finding on this issue, after discussing the evidence of the parties. As a result, the suit of the plaintiff was decreed with costs. Feeling aggrieved, some of the defendants filed an appeal against this decree in this Court of the District Judge. The remaining defendants were impleaded as respondents. The Additional District Judge affirmed the decision of the trial Court on issue Nos. 1, 3, 4 and 5. On issue No. 2, it was held that from the evidence of the parties it was clear that Nand Singh was dead but it could not be said that he died after the year 1956. The Additional District Judge also remarked that it was not proved that Nand Singh died after the passing of the Hindu Succession Act and as such Shrimati Tej Kaur had no right to succeed to Nand Singh and that she was entitled to inherit this property if Nand Singh was proved to have died after the passing of the Hindu Succession Act. As a result he accepted the appeal and set aside the judgment of the trial Court and dismissed the suit of the plaintiff with costs throughout. Feeling aggrieved, Tej Kaur plaintiff filed regular second appeal in this Court.
(3.) During the pendency of this appeal it came to notice that Santa Singh defendant-respondent No. 4 and Shrimati Parsino respondent No. 23 died on October 31, 1970, and June 16, 1969 respectively. Tej Kaur plaintiff-appellant filed two separate applications on May 22, 1972, for bringing the legal representatives of these respondents on the file and it was alleged that she could not know about their deaths. These applications came up for hearing before Hon'ble Tiwana J. on March 18, 1975, and he dismissed the same with the following remarks :- "The applications were made after a long lapse of time and no reasonable ground has been put forth for extending the time to implead the legal representatives of respondent Nos. 4 and 23. I do not find any reasonable ground to allow the time for moving these applications. These applications are declined. Since the applications have been dismissed, the regular second appeal be set down for hearing in the middle of May, 1975.";