Bega and ors. Vs. Bir Singh and ors.

Bega and ors. vs Bir Singh and ors.

Disposition Application dismissed Court Punjab and Haryana Decided May 26, 2008

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Citation: sooperkanoon.com/628186
Court: Punjab and Haryana High Court
Judge: Ranjit Singh, J.
Decided On: May 26, 2008
Subject: Civil
Disposition: Application dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestra...

Key legal issue: Civil
Outcome / disposition: Application dismissed

Parties & Advocates

Appellant / Petitioner

Bega and ors.

Respondent

Bir Singh and ors.

Legal References

Cases Referred: Kans Raj and Anr. v. Salig Ram Tandon
Reported In: (2008)151PLR476

Excerpt

.....contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of..........under order 18 rule 17 cpc is filed, the witnesses could not have been examined once again.3. i have perused the judgment in the case of kans raj (supra). i fail to understand as to how ratio of law laid down in this case would be attracted to the facts of the present case. the issue in kans raj's case (supra) was re-call of a witness for cross examination, though earlier the witness has been cross-examined at length and no request had been made for deferring the cross-examination. it was accordingly observed by the court that right to cross-examine the witness stood exhausted and thus the court found that the trial court has rightly and properly exercised its discretion not to re-call witness for further cross-examination. the facts as noticed in the judgment of kans raj (supra) are clear in this regard. the perusal of the judgment would show that the cross-examination was closed by the trial court and no prayer at that stage was made for either reserving any further right of cross-examination or deferring the same. later, an application was moved for the re-call of the respondent-landlord to afford another opportunity for cross-examining him with regard to some account books. this prayer was rejected and was subject matter of a challenge when it was observed mat the trial court had rightly exercised the discretion. this judgment, thus, is no proposition of law that re-call of the witness has to be on an application under order 18 rule 17 cpc nor would contain any restriction on the right of the court to re-call or re-examine any witness at any stage.4. i am not inclined to accept the contention raised by the counsel for the petitioners on merits. the trial court has observed that the examination of the witness was to be deferred but it could not be so recorded inadvertently. it is, thus, observed that this was a technical mistake of which the petitioners are trying to take advantage. when the testimony of pw-1 as recorded on 10.1.2007 is perused, it will be.....

Full Judgment

Ranjit Singh, J.

1. Counsel for the defendants raised an objection about examination of Sunder Singh Patwari when he appeared to give evidence on 8.8.2007 on the ground that he had already been examined on 10.1.2007 and, thus, cannot be examined again. The plaintiffs' counsel, however, pointed out that the evidence of the witness could not be recorded on 10.1.2007 as he was in possession of a record which was in Urdu and the witness had stated that he was unable to read the record. This, according to the counsel for the plaintiffs, would not be in evidence which can be termed as examination of a witness to debar the witness from being examined again. The trial court noted the version of the witness stated on 10.1.2007 and found that the witness had not deposed anything and as such was to be deferred, but could not be so recorded inadvertently. Finding this to be a technical mistake, the witness, who had come present with the record, was permitted to be examined.

2. This order has been impugned through the present revision petition. Learned counsel for the petitioner has placed heavy reliance on the case of Kans Raj and Anr. v. Salig Ram Tandon 1977(2) R.L.R. 851 to contend that unless an application under Order 18 Rule 17 CPC is filed, the witnesses could not have been examined once again.

3. I have perused the judgment in the case of Kans Raj (supra). I fail to understand as to how ratio of law laid down in this case would be attracted to the facts of the present case. The issue in Kans Raj's case (supra) was re-call of a witness for cross examination, though earlier the witness has been cross-examined at length and no request had been made for deferring the cross-examination. It was accordingly observed by the court that right to cross-examine the witness stood exhausted and thus the court found that the trial court has rightly and properly exercised its discretion not to re-call witness For further cross-examination. The facts as noticed in the judgment of Kans Raj (supra) are clear in this regard. The perusal of the judgment would show that the cross-examination was closed by the trial court and no prayer at that stage was made for either reserving any further right of cross-examination or deferring the same. Later, an application was moved for the re-call of the respondent-landlord to afford another opportunity for cross-examining him with regard to some account books. This prayer was rejected and was subject matter of a challenge when it was observed mat the trial court had rightly exercised the discretion. This judgment, thus, is no proposition of law that re-call of the witness has to be on an application under Order 18 Rule 17 CPC nor would contain any restriction on the right of the court to re-call or re-examine any witness at any stage.

4. I am not inclined to accept the contention raised by the counsel for the petitioners on merits. The trial court has observed that the examination of the witness was to be deferred but it could not be so recorded inadvertently. It is, thus, observed that this was a technical mistake of which the petitioners are trying to take advantage. When the testimony of PW-1 as recorded on 10.1.2007 is perused, it will be found that virtually he has not given any evidence on the said date. Just to appreciate this aspect, his entire examination-in-chief is re-produced below:

The disputed village is in my Halqa (jurisdiction). I have brought the summoned record. Some of the Jamabandis in my record are in Urdu which I cannot read. Because of the reason that the record is in Urdu I cannot make the statement in that regard. The record which has brought is produced.

Obviously, the witness has not given any version or a deposition as he did not know Urdu, the language in which the record which was brought by him was available. It can be seen that the court would have definitely wished to defer examination of the witness, which could not be inadvertently recorded. Even if some cross-examination of the witness was conducted by the defendants, that would not make much difference because such a cross-examination was only on the aspect which was deposed to in the examination-in-chief which does not contain any version. The action of the trial court, as such, is perfectly legal and justified and would not call for any interference.

Dismissed.

Same Court & Year Punjab and Haryana · 2008 Same Parties Bega and ors. vs Bir Singh and ors. Same Subject Civil Same Judge Ranjit Singh, J.

Civil