Himachal Pradesh High Court
Fate Ram And Others vs Smt. Parvati on 8 May, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 156 of 2004 .
Reserved on 30th March, 2015 Decided on: 8th May, 2015 Fate Ram and others .......Appellants.
Versus
Smt. Parvati ...Respondent.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?1 Yes. For the appellants: Mr. B.K. Malhotra, Advocate. For the respondent:
r Mr. G.R. Palsra, Advocate.
Dharam Chand Chaudhary, Judge.
Challenge herein is to the judgment dated 17.12.2003 passed by learned Additional District Judge, Mandi in Civil Appeal No. 16 of 1999 affirming thereby the judgment and decree passed by learned Sub Judge, 1st Class, Court No.1, Mandi in Civil Suit No. 103/98 (92) on the dismissal of the first appeal.
2. It is the defendants, who are in second appeal before this Court. The complaint is that the judgment and decree passed by both Courts below is against the law and also the facts of the case. Learned 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 2lower appellate Court while deciding the appeal has fell into error in not appreciating the facts relating to the .
status of the defendants as tenants and failure to draw appropriate inferences from the proved facts has vitiated the judgment and decree under challenge. The Courts below allegedly fell into a grave error giving undue weightage to the factum of the non-production of rent receipts of the defendants, because in view of the evidence brought on record by the plaintiff herself, the rent receipts were not being issued by the land-lord hence the non-production thereof should not have been given much importance. The factum of the plaintiff and her mother both are residing for the last more than 40 years at Bajaora, District Kullu has not been taken into consideration. The plea of the defendants that the rent used to be deposited with one Smt. Charan Dassi, maternal aunt of plaintiff is duly proved from the evidence produced by the plaintiff herself. Said Charan Dassi has not been produced to deny this fact, had the rent been not deposited with her. The judgment and decree on account of non-appreciation of the ::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 3 evidence as has come on record by way of own statement of the plaintiff that she is not the daughter of .
Smt. Padmu born to her from the lions of Sh. Gholu her previous husband, from whom the property in dispute had come to her. The plaintiff, therefore, not born to Smt. Padmu from lions of Sh. Gholu, the previous owner of the suit land is not entitled to claim the same in any manner whatsoever nor has any locus-standi to file the suit. The revenue entries qua the suit land stood duly rebutted were wrongly relied upon. On account of clubbing of the main issues for decision, the judgment and decree under challenge is vitiated and has been sought to be quashed and set aside.
3. The appeal has been admitted on the following substantial questions of law:
a) Whether the courts below erred in law in decreeing the suit for permanent injunction?
b) Whether the succession to the property inherited by a female from her previous husband could not have devolved upon the legal heirs of second husband?::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 4
4. If coming to the factual matrix, the suit land is measuring 17-14-8 bighas entered in Khewat No. 10, .
Khatauni No. 11, Khasra Nos. 266, 313, 316, 337, 381, 383, 390, 427, 428, 474, 488, 514, 518, 525, 581, 586, 589, 592 and 607 Kitas 20 situated at village Tundla/443, Ilaqua Badar, Tehsil Sadar, District Mandi. Its previous owner was one Sh. Gholu.
to Smt. Padmu, mother of the respondent-plaintiff was married to said Shri Gholu. The suit property came in the hands of Smt. Padmu on the death of her previous husband through Gholu. Said Smt. Padmu settled with one Hukme Ram at village Bajaora, District Kullu. The respondent-plaintiff was born to her from the lions of said Shri Hukme Ram. Smt. Padmu, mother of the plaintiff also died and mutation No. 121 of the suit land came to be sanctioned and attested in favour of the plaintiff on 9.10.1992, as is apparent from the copy of Jamabandi for the year 1990-91, Ext. P-A. The respondent-plaintiff filed the suit for the decree of permanent prohibitory injunction and also for possession of the suit land as a consequential relief on the ground that though it is she who is owner in possession of the suit ::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 5 land, however, the defendants are threatening to take forcible possession thereof form her. Subsequently, by .
way of amendment, it is pleaded that she was dispossessed forcibly by them from the suit land in November, 1995.
5. In the written statement, the defendants raised the question of maintainability of the suit and locus of the plaintiff to file the same. On merits, they claim themselves to be in possession of the suit land in the capacity of tenant on payment of ¼ of the produce as rent. Smt. Padmu though might be recorded as owner of the suit land, however, it is they who are in possession thereof in the capacity of tenant. The entries to the contrary regarding possession of the suit land have been said to be wrong and against the facts. It is denied that plaintiff is in possession of the suit land, therefore, no question of any interference at their instance does arise. As regards the claim of the plaintiff that she is owner in possession of the suit land, it is specifically averred as under:
::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 6"....In addition to it, it may be added that the plaintiff is claiming herself to be the successor of .
late. Smt. Padmu wife of Gholu, but as a matter of fact she had left the house of Gholu much earlier during the life time of Gholu and settled in the house of one Sh. Hukme Ram who is her father and as such she has no right in the estate of late Sh. Gholu earlier husband of said Smt. Padmu, Photocopy of Parivar Register, Shajra Nasab, Copy of affidavit, copy of death register, copy of Jamabandi Istemal of Mauja Tundhla and Niul, "report of Kanungo" are attached herewith in proof thereof."
6. It is denied that the plaintiff was dispossessed by them forcibly in the month of November, 1995. Such assertions in the plaint have been claimed to be malafidely raised with the motive to maintain the suit.
7. The plaintiff in replication filed to the written statement has denied the contents of the preliminary objections being wrong and on merits while reasserting the case as set out in the plaint denied the contentions to the contrary in the written statement.
::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 78. On the basis of pleadings of the parties, following issues were framed:
.
1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP
2. Whether the defendants are threatening to dispossess the plaintiff over the suit land, as alleged? OPP
3. If issues No. 1 and 2 proved in affirmative, whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP 3a. Whether the defendant has dispossessed the plaintiff during the pendency of the suit, if so, its effect? OPP 3b. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so, what is the correct valuation? OPD
4. Whether the plaintiff has no locus-standi to file the present suit? OPD
5. Whether the suit is bad for non-joinder of necessary parties? OPD 5a. Whether the defendants are tenant in possession of the suit land? OPD.
6. Relief.
9. After taking on record the evidence produced by the parties on both sides and hearing arguments, learned trial Court has decreed the suit.
::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 8Learned lower appellate Court has dismissed the appeal and affirmed the judgment and decree passed by the .
trial Court.
10. Shri B.K. Malhotra, learned counsel representing the appellants-defendants has strenuously contended that it was deceased Gholu admittedly was the owner of the suit land. No doubt, Padmu was his wife, however, she left him during his life time and settled with one Hukme Ram at village Bajaora in District Kullu.
Also that, the plaintiff who has been born to Smt. Padmu from the lions of said Shri Hukme Ram in terms of Section 15(2) (b) of the Hindu Succession Act is not entitled to claim any right, title or interest in the suit land being not the daughter of said Shri Gholu. The plea to this effect duly raised in the written statement has been ignored by both Courts below, as neither any issue framed to this effect nor any findings recorded. Mr. Malhotra, has, therefore, canvassed that after framing of an additional issue to this effect and quashing the judgment and decree under challenge, the suit deserves to be remanded as a whole.
::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 911. On merits, it is urged that said Smt. Padmu and for that matter the respondent-plaintiff are residing .
at village Bajaura in District Kullu, whereas, the suit land is situated in District Mandi, there is no question of the plaintiff in possession of the suit land. The defendants rather have been proved to be in settled possession thereof in the capacity of tenant. When the respondent-
plaintiff was not in possession of the suit land, decree for permanent prohibitory injunction could have not been passed.
12. Mr. G.R. Palsra, learned counsel representing the respondent-plaintiff has urged that the plea of tenancy raised by the defendants in the written statement is itself sufficient to arrive at a conclusion that they admit the plaintiff to be owner of the suit land.
They, rather throughout admitted her mother late Smt. Padmu owner of the suit land and after her death, they admit her to be the owner thereof. Therefore, it is urged that the judgment and decree under challenge being legally and factually sustainable calls for no interference.
::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 1013. As noticed hereinabove, interesting questions of law arise for determination in the present appeal. It is .
to be seen that in the given facts and circumstances, decree for perpetual injunction should have been granted by both Courts below, particularly when the issue of the competency of the respondent-plaintiff to succeed to her mother late Smt. Padmu so far as the suit land is concerned, being not born to her from the lions of late Sh. Gholu, admittedly the previous owner of the suit land is neither discussed nor any issue in this regard framed. As a matter of fact, the issue qua competency of the plaintiff to inherit the suit land being vital one, should have been considered and decided. The Courts below should have not swayed merely by the entries in the revenue record showing the plaintiff to be owner in possession of the suit land. What is important in the given facts and circumstances was to ascertain the source, whether lawful resulted in sanction and attestation of mutation No. 121 qua the suit land in the name of the plaintiff, without going into such question the decree for permanent prohibitory injunction and as a consequential ::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 11 relief for possession of the suit land could have not been granted.
.
14. Plaintiff not born to Smt. Padmu from the lions of Gholu stands proved from her own statement while in the witness box as PW-1, because when cross-examined she tells us that her mother Padmu when settled with Hukme Ram, she born to her from the lions of said Shri Hukme Ram. The plaintiff is born from the lions of Hukme Ram is, therefore, proved from her own statement and no other and further evidence is required in this regard.
It takes us to Section 15(2) (b) of the Hindu Succession Act, which read as follows:
"(2) Notwithstanding anything contained in sub-
section (1),-
(a).....
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section(1) in the order specified therein, but upon the heirs of the husband."
15. It is crystal clear from the bare perusal of the Section ibid that the son or daughter begotten by the ::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 12 deceased female not through her husband, whose property was with her during her lifetime but from .
someone else, such son or daughter have no right to inherit such property on her death. Object of Section 15(2) is to ensure that the property left by a Hindu female does not loose its real source. If it was the property she r to had inherited from her parents, the same on her death should go to legal heirs of her father. In case the property was inherited by her from her husband or her father-in-law the same on her death shall devolve upon the heirs of the husband or her father-in-law i.e. the source from which the property was inherited by her.
The Apex Court in (2009) 15 Supreme Court Cases 66 has held that when the property is devolved upon the deceased Hindu female from the parent's side, on her death, the same would go to her parents family and not to her husband's family. Similarly, in case where she had inherited some property from her husband or from her husband's family, on her death, the same would revert back to her husband's family and not to her own heirs.
The Apex Court in Bhagat Ram (D) by L.Rs versus Teja ::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 13 Singh (D) by L.Rs., AIR 2002 Supreme Court (1) has held that the factum of a Hindu female originally had a .
limited right and later acquired full right, in any way would not alter the rules of Successions given in sub-
Section (2) of Section 15 of the Act.
16. As noticed supra, the plaintiff admittedly is r to born to Padmu from the lions of Sh. Hukme Ram, therefore, she is not the heir of Gholu, the previous husband of said Smt. Padmu. The question of competency of the plaintiff to inherit the suit land on the death of Smt. Padmu was raised in the written statement.
Learned trial Court, however, has ignored this vital aspect of the matter because neither any issue has been framed nor is there any adjudication in this regard.
Mr. Malhotra, learned counsel has relied upon the judgment of the Apex Court in Remco Industries Workers House Building Co-operative Society versus Lakshmeesha M. and others, AIR 2003 Supreme Court 3167 and on the strength of the ratio thereof has argued that when an issue arises from the pleadings of the parties is not redressed by the trial Court, the appellate ::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 14 Court can remand the suit as a whole. This judgment read as follows:
.
"18. From the above resume of facts and the nature of orders of grants of Occupancy rights to the contesting parties, we find that the basic issue of the effect of earlier grant dated 28-5- 1965 (Ex. D-3) in favour of the tenant -
Muniyappa on the subsequent granted dated 9-12-1969 (Ex. P-1) in favour of plaintiff/respondent was neither addressed to by any of the Courts below nor a decision has been rendered on the same. The issue of effect f Ext. D-3 on Ex. P1 and the identity of the land under the two grants is vital to the just decision of the case. The powers of the appellate Court are not inhibited by the acts or omissions of the parties. Rule 25 of Order 41 of the Code of Civil Procedure empowers the appellate court to frame an issue and remit it for trial which has been omitted to be framed and tried by the trial Court and which appears to the appellate Court essential to the right decision of the case, Rule 23-A. Order 41 introduced by CPC Amendment Act No. 104 of 1976 w.e.f. 1-2-1977 confers powers on the appellate Court to remand whole suit for re- trial. In our considered opinion, this is a fit case ::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 15 where this Court should exercise powers of remand under Order 21, Rule 25 read with Rule .
23-A of CPC."
17. On the strength of the ratio of the judgment supra, Mr. Malhotra has urged that after framing of an issue qua competency of the plaintiff to inherit the suit land on the death of her mother Smt. Padmu, the suit as
18. to a whole be remanded to the trial Court.
It is to be seen from the above quoted plea specifically raised by the defendants in the written statement that mother of the plaintiff had settled with Sh.
Hukme Ram perhaps after the death of her previous husband, Gholu, whose property is the subject matter of dispute in the present lis. Also that the plaintiff is born to her mother Smt. Padmu aforesaid from the lions of Hukme Ram. Therefore, she is not entitled to inherit the suit property. The plea so raised being vital one, should have been considered and duly redressed. The trial Court, however, has failed to frame any issue and also to decide the same after affording the parties due opportunity of being heard. This being a vital issue raised ::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 16 by the defendants should have not been ignored. As a matter of fact, without deciding the question of .
entitlement of the plaintiff to inherit the suit land, a decree for permanent prohibitory injunction or for possession of the suit land could have not at all been granted. No grounds seem to have been raised in this regard in learned lower appellate Court, however, may be that in the lower Courts', the pleadings are notoriously drafted. Before this Court one of the grounds raised for setting aside the impugned judgment and decree pertains to this aspect of the matter. Any how, a specific plea was raised in the written statement, therefore, the trial Court was under an obligation to have framed an issue and decide the same in accordance with law. The parties having not agitated the point raised in the pleadings is hardly of any consequence, as in view of the ratio of the judgment of the Apex Court in Remco Industries Worker's case supra, the powers of the appellate Court are not inhibited by the acts or omission of parties. Therefore, when in the considered opinion of this Court, a very vital issue having ::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 17 arisen in view of the pleadings on record stand ignored and redressal thereof is essentially required for the just .
and effective decision of the suit, an additional issue needs to be carved out and the suit remanded as a whole to the trial Court.
19. Consequently, it is deemed appropriate to frame an additional issue, which reads as follows:
Whether the suit property inherited by Smt. Padmu from her previous husband late Gholu, could have not been devolved upon the plaintiff not born to said Padmu from the lions of Gholu, the owner thereof but from the lions of one Hukme Ram and if so to what effect? OPD.
20. The judgment and decree under challenge, which does not decide the controversy under the additional issue so framed is, therefore, perverse and not legally and factually sustainable. Consequently, leaving all questions of law open to be considered and decided on merits, the same deserves to be quashed and set aside and the suit remanded as a whole to learned trial Court for fresh disposal in accordance with law.
::: Downloaded on - 15/04/2017 18:08:37 :::HCHP 1821. In view of what has been said hereinabove, this appeal succeeds and the same is accordingly .
allowed. The judgment and decree impugned in the present appeal is quashed and set aside. The suit is remanded to the trial Court for fresh disposal after taking on record the evidence, if any, sought to be produced by the parties on the additional issue carved-out hereinabove in this judgment and also affording them due opportunity of being heard.
22. In view of the suit pertains to the year 1992, it is expected from learned trial Court to decide the same expeditiously, however, not later then 30th September, 2015. The parties through learned counsel representing them are directed to appear in the trial Court on 23rd May, 2015. The Registry to ensure that the record is received in the trial Court well before the date fixed.
23. The appeal stands disposed of accordingly.
Pending application(s), if any, shall also stand disposed of.
May 8, 2015 (Dharam Chand Chaudhary)
(naveen) Judge
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