Amol Rattan Singh, J.

CM No. 6867-C-2016

For the reasons stated in the application, the delay of 08 days in re-filing the appeal is condoned.

Application stands disposed of accordingly.

RSA No. 2587 of 2016 (O&M)

This is an appeal filed by the plaintiff after her suit for declaration to the effect that she is in owner in possession of a 1/3rd share of land measuring 70 kanals and 70 marlas, situated in village Haler Dalpat @ Mushalibpur, Had Bast No. 417, Tehsil Mukerian, District Hoshiarpur, was initially decreed in her favour by the learned Additional Civil Judge (Senior Division), Mukerian, but in the appeal filed by the defendants (present respondents no. 1 to 6), before the learned first appellate Court, the said judgment and decree was set aside and the suit of the plaintiff dismissed with costs through out.

2. The facts, as taken from the judgments of the learned courts below, are that the appellant-plaintiff (hereinafter referred to as plaintiff), contended that Kartar Chand and Sarwan Dass were brothers residing together but Kartar Chand was ill due to paralysis and was unable to walk or do any work. The appellant though married to Kartar Chand and being fully dependent upon him, in the circumstances being in great difficulty, she performed a 'Karewa' marriage with Sarwan Dass, after performing a 'Chaddar Anadazi' ceremony in the presence of family members and respectables.

It was further contended that the said marriage was never disputed by any relation of Sarwan Dass or anybody else. In some enquiry conducted by the SDM, Mukerian, also it was stated that the appellant, Jeeto, is the wife of the late Sarwan Dass, who was working as a Peon in the Government Senior Secondary School, Mehtabpur, Tehsil Mukerian. Hence, it was contended in the suit that being a legal heir of Sarwan Dass, the plaintiff was entitled to get his share in the property and all other benefits given by his department, after his death. It was further contended that defendant no. 1, Parkasho Devi, was the widow of Parkash Singh, another brother of Kartar Chand and Sarwan Dass, defendants no.2 to 4 were the daughters of Parkash Singh and defendant no.5 was the son of Kartar Chand. The status of Karnail Singh, son of Lachhman Dass (defendant no. 6) is not specifically given in the judgment of the learned courts below, but he is later referred to as the brother-in-law of the appellant-plaintiff.

3. Sarwan Dass is stated to have died on 18.04.1990 and was the owner of 1/3rd of the land described in detail in the head note of the plaint, i.e. the suit land, and it was contended that the defendants had no right to such share of Sarwan Dass, but in connivance with revenue staff had got sanctioned a mutation in their favour.

It was further contended that this fact came to the knowledge of the plaintiff in the month of February (i.e. in the year that the suit was filed- 2008), when she obtained a copy of mutation from the revenue department. Thereafter, it was stated that she requested the defendants many a time to admit her lawful claim but to no effect. Consequently, the suit was instituted on 30.07.2008.

4. Upon notice issued, defendants no.1 to 4 appeared and file a written statement taking preliminary objections with regard to maintainability, locus, concealment of facts etc.

On merits it was denied that the appellant was the legally wedded wife of Sarwan Dass, as she was actually the legally wedded wife of Kartar Chand and in fact from that marriage, defendant no. 5, Jagdish Singh, had been born, as had been his sisters, Rajni and Suneeta “etc.”.

It was further stated in the reply that Kartar Chand died on 01.07.1995, i.e. after Sarwan Dass and therefore, no second marriage could have been performed by the appellant during the life time of her husband, without a decree of divorce.

5. Yet further, it was contended that the enquiry conducted by the Sub-Divisional Magistrate was erroneous, on the basis of a false affidavit filed by the plaintiff herself.

However, the

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