Himachal Pradesh High Court
Prabhu Ram vs Of on 16 August, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 525 of 2004.
Reserved on : 2nd August, 2016.
.
Decided on : 16th August, 2016.
Prabhu Ram .....Appellant/defendant.
Versus of Smt. Nardoo (since deceased ) through her legal representatives and another ....Respondents.
Coram:
rt The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 . Yes.
For the Appellant: Mr. T.S. Chauhan, Advocate.
For the Respondents: Mr. Sanjeev Kuthiala, Advocate.
Per Sureshwar Thakur, Judge.
The instant Regular Second Appeal stands directed by the defendant/appellant against the impugned rendition of the learned Additional District Judge, Solan, H.P., whereby he dismissed the appeal of the defendant/appellant herein and affirmed the judgment and decree rendered by the 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:01:49 :::HCHP
...2...
learned Sub Judge, Nalagarh, District Solan, H.P., whereby the .
latter Court rendered a decree for declaration qua the plaintif being owner of 1/3 share with a consequential relief of permanent prohibitory injunction restraining the defendants of from changing the nature and character or user of the suit land. The defendant/appellant herein stands aggrieved by the judgment and decree of the learned Additional District Judge, rt Solan. His standing aggrieved, he has therefrom preferred the instant appeal before this Court for seeking from this Court an order reversing the findings recorded therein.
2. The subject matter of the dispute is land comprised in Khewat\Khatauni Nos. 14/11/27 measuring 16 bighas 11 biswas and khewat/khatauni No. 15/12/28 measuring 37 bighas 11 biswas situate in village Sehlar, Pargana Dharampur, Pahar, Tehsil Nalagarh, District Solan, H.P. The case of the plaintif is that Sh. Santu was father of the defendants. He was also father of Puran, husband of the plaintif. Sh. Puran died during the life time of Santu and left behind plaintif as his wife. The plaintif remained in the ::: Downloaded on - 15/04/2017 21:01:49 :::HCHP ...3...
house of the defendants and Santu used to cultivate the land .
in suit. Santu died and mutation No. 94 was sanctioned on 24.2.1996 in favour of the defendants to the exclusion of the plaintif. The plaintif is the successor of Santu being widow of of predeceased son and is entitled to succeed along with defendants to the estate of Santu to the extent of 1/3rd share in the land in suit. So, the plaintif filed the suit for declaration rt that she was joint owner and joint possession of 1/3rd share in the suit land along with a decree for permanent injunction restraining the defendants from ousting the plaintif from joint occupation of the land in suit. The plaintif in alternative prayed for grant of maintenance at the rate of 1000/- per month under the provisions of Hindu Adoption and Maintenance Act, 1956.
3. Defendant No.1 contested the suit and averred that the deceased Santu had 7bighas 8biswas co-parcenary interest in the Joint Hindu Ancestral and Coparcenary Property. The plaintif was not widow of Puran and was not owner in possession of the land in suit to the extent of 1/3 rd share.
::: Downloaded on - 15/04/2017 21:01:49 :::HCHP...4...
The land has been inherited by the deceased Santu from his .
father Kishanoo. The coparcenary interest/share of Santu devolved on the defendants No.1 and 2 being his Class-I heirs. Legal objections about the maintainability as the of plaintif was the wife of Sh. Sunder Defendant No.2, locus standi, limitation and estoppel as the plaintif was residing in the house of Sunder for the last 35 years have been raised.
rt
4. The plaintif/respondent herein filed replication to the written statement of the defendant/appellant, wherein, he denied the contents of the written statement besides re-
affirmed and re-asserted the averments, made in the plaint.
5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:-
1. Whether the plaintif is widow of late Sh. Puran, as alleged?OPP
2. If issue No.1 is proved, whether the plaintif is entitled to inherit property of late Sh. Puran to the extent of 1/3rd share, as alleged?OPP
3. Whether the plaintif is entitled for relief of injunction, as prayed for?OPP
4. Whether the suit is not maintainable?OPD
5. Whether the plaintif has no locus standi to file the present suit?OPD ::: Downloaded on - 15/04/2017 21:01:49 :::HCHP ...5...
6. Whether this suit is barred by limitation?OPD .
7. Whether the plaintif is estopped to file the present suit on account of act, conduct and acquiescence?
OPD
8. Relief.
6. On an appraisal of the evidence, adduced before of the learned trial Court, the learned trial Court decreed the suit of the plaintif. In an appeal, preferred therefrom by the rt defendant/appellant herein, the learned first Appellate Court dismissed his appeal.
7. Now the defendant/appellant has instituted the instant Regular Second Appeal before this Court assailing the findings recorded by the learned First Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 01.12.2004, this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree, rendered by the learned First Appellate Court, on the hereinafter extracted substantial question of law:-
1. Whether the impugned judgment and decree of the learned trial Court as affirmed by the learned first Appellate Court is dehors the evidence on record and result of misreading of the evidence and against the settled position of law?::: Downloaded on - 15/04/2017 21:01:49 :::HCHP
...6...
Substantial question of Law No.1:
.
8. Santu, the predecessor-in-interest of Puran Chand, his predeceased son and of the defendants uncontrovertedly stood bestowed absolute dominion as owner of the suit land of in sequel to the Pepsu Abolition of Ala Malkiat rights, he hitherto enjoyed upon the suit land. Santu expired on 28.3.1995. On his demise mutation qua his estate stood rt attested vis-a-vis the defendants besides obviously to the exclusion of the plaintif despite hers throughout holding the status of a widow of Puran Chand, the predeceased son of Santu, the last male absolute owner of the suit property, whereupon she held a compatible legal right with them qua mutation of inheritance qua the estate of Santu also standing attested qua her. The suit wherein she claimed a declaratory decree qua hers holding entitlement to the extent of 1/3rd share along with the defendants/appellant stood decreed. An appeal carried therefrom by the aggrieved defendant, stood dismissed.
::: Downloaded on - 15/04/2017 21:01:49 :::HCHP...7...
9. The defendant/appellant had foisted a ground for .
ousting the assertion of entitlement of the plaintif/respondent herein qua hers holding an indefeasible right along with the defendants to the extent of 1/3rd share in the estate of Santu, of the father of her predeceased husband Puran Chand, on the anchorage of the plaintif not holding the status of a widow of their predeceased brother Puran Chand. Forthright categorical rt evidence stood adduced by the plaintif qua hers throughout the life span of Puran Chand holding a relationship with him as his spouse also she proved qua hers on his demise not holding a re-marriage, evidence whereof stood corroborated by PW-2 and PW-3. The aforesaid factum also stands acquiesced by DW-1, DW-2 and DW-3. Cumulatively hence it stood unflinchingly proved of the plaintif during the life time or life span of her predeceased husband, Puran Chand holding with him a relationship of his spouse also it is evident of hers on his demise remaining unmarried.
10. Be that as it may, defendant No.2, Sunder acquiesced in his cross-examination qua his at the time of ::: Downloaded on - 15/04/2017 21:01:49 :::HCHP ...8...
demise of Puran Chand standing already married to one .
Kashmiro Devi besides his from his marriage with Kashmiro rearing children. Also he acquiesced in his cross-examination of his cohabiting with the plaintif, in sequel, whereof she of reared children from his loins. However, the matrimony of defendant No.2 Sunder with Kashmiro stands not proven to be dissolved. Consequently, even if, the plaintif on the rt occurrence of demise of her husband Puran Chand, cohabited with Sunder and also from her cohabitation with defendant No.2 Sunder, she reared children from his loins, it would not beget any presumption of both the plaintif and defendant No.2 Sunder cohabiting as legally wedded husband and wife, unless, for reiteration, forthright evidence stood adduced in display of defendant No.2 Sunder before cohabiting with the plaintif, his lawfully severing his marital ties with Kashmiro.
Since, the aforesaid evidence stands unadduced hereat the mere factum of cohabitation occurring inter se the plaintif and defendant No.2 would not rear a conclusion of the plaintif on the demise of her husband Puran Chand ::: Downloaded on - 15/04/2017 21:01:49 :::HCHP ...9...
remarrying him nor also any inference is warranted thereupon .
of hers not being construable to be the widow of her predeceased husband. Consequently, it is aptly concluded of hers being the surviving widow of her predeceased husband of Puran Chand, hence, she on demise of Santu, the common ancestor of her predeceased husband Puran Chand and also of the defendants, standing entitled along with them to a rt share in the property of her father-in-law, deceased Santu. In sequel, the attestation of mutation of inheritance by the revenue agency concerned qua the estate of deceased Santu vis-a-vis the defendants and to the exclusion of the plaintif is palpably erroneous. Accordingly, mutation No.94 of 24.2.1996 is quashed and set aside.
11. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court stand based upon a proper and mature appreciation of the evidence on record. While rendering the findings, both the learned Courts below have not excluded germane and apposite material from ::: Downloaded on - 15/04/2017 21:01:49 :::HCHP ...10...
consideration. Accordingly, the substantial question of law .
stands answered in favour of the plaintif/respondent and against the defendant/appellant.
12. In view of above discussion, the present Regular of Second Appeal is dismissed. In sequel, the judgments and decrees rendered by both the learned Courts below are maintained and affirmed. All pending applications also stand rt disposed of. No order as to costs. Records be sent back forthwith.
(Sureshwar Thakur) 16 th August, 2016. Judge.
(jai) ::: Downloaded on - 15/04/2017 21:01:49 :::HCHP