Shiv Charan S/O Angad Singh vs Smt. Pooni Bai D/O Smt. Laddu Bai on 31 October, 2023

[Cites 19, Cited by 0]

Rajasthan High Court - Jaipur

Shiv Charan S/O Angad Singh vs Smt. Pooni Bai D/O Smt. Laddu Bai on 31 October, 2023

1. In the present civil first appeal, preferred by and on behalf of appellant-defendant No.1 under Section 96 of the Code of Civil Procedure (CPC), challenge has been made to judgment and decree dated 14.11.1990 passed in Civil Suit No.4/1985 (7/1979) titled Mst. Pooni Bai Vs. Shiv Charan and others, passed by the Court of Additional District & Sessions Judge, Karauli, whereby and whereunder the civil suit for possession filed by respondent No.1- plaintiff Smt. Pooni Bai has been decreed and she has been held entitled to get possession of the portion of house, marked with "A" in the map, available on record as Exhibits 3, 4 & 5, from defendants. Since the defendant No.1 is in actual and physical possession over the portion of house marked as "A", in respect of which the decree for possession has been passed, therefore, only defendant No.1 has challenged the judgment and decree by way of present first appeal.

2. Heard learned counsel for both parties at length and scanned the record.

3. It is factually not in dispute that parties to the present lis belong to one family and are successors/legal representatives of late Smt. Laddu Bai. One Sh. Angad Singh and Smt. Pooni Bai, being natural heirs of Smt. Laddu Bai, were real brother and sister. Appellant-defendant No.1 Shiv Charan is natural son of late (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (3 of 38) [CFA-3/1991] Sh. Angad Singh and respondents No.2 to 4 are other successors of late Sh. Angad Singh. After death of Smt. Laddu Bai, her daughter Smt. Pooni Bai instituted the present civil suit for possession against two sons and widow of late Sh. Angad Singh i.e. against her deceased brother's legal representatives. The civil suit has been decreed in her favour vide impugned judgment, which is under challenge in the present first appeal at the behest of appellants. During course of suit, the widow of Sh. Angad Singh passed away, hence his two daughters were also substituted and brought on record.

4. The property in question, in the present first appeal, which is marked as "A" in the map (Exhibits 3,4 & 5) is a part of a three storied residential house, situated at Mohalla Gonsai Pada, District Karauli.

5. Facts of the present case as culled out from the record and which are necessary to be taken into consideration to decide the present first appeal are that:

5.1 Smt. Pooni Bai, the original sole plaintiff, instituted the present civil suit on 05.03.1979 stating inter alia that the entire three storied house situated at Mohalla Gonsai Pada, Karauli along with the Jagir land at Village Manthai were given to her mother Smt. Laddu Bai, by the then Raja of Riyasat Karauli namely Sh.

Bhompal Ji in samwat 1985 (according to the english calendar it is year 1928) against the services rendered by her mother to nurture of son of Raja Bhompal, namely Sh. Ganeshpal as Dhai Ma.

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5.2          It was stated that since then, plaintiff's mother Smt.

Laddu Bai started to live in this house and because the plaintiff became widow, hence she also came back to Karauli and started to reside with her mother in the house in question. 5.3 It was stated that plaintiff's mother executed a Will dated 21.01.1955 of the house in question in favour of plaintiff and thereafter, plaintiff's mother passed away on 06.06.1956, so by virtue of the Will dated 21.01.1955, the absolute ownership of the house in question was claimed to be inherited by the plaintiff alone.

5.4 It was stated that Sh. Angad Singh, who happens to be her real brother and was father of defendants No.1 and 2 and husband of defendant No.3, was permitted by the plaintiff, being her brother, to reside in some portion of the house in question as her licensee and he lived in that portion of house during his lifetime. It is further stated that later on, Angad Singh had also executed one Will dated 07.06.1958 for the house in question in her favour and then passed away on 15.08.1958. It is pleaded that thereafter, defendant No.1-Shiv Charan, who is son of Angad Singh is residing and in possession of the portion "A" of the house in question and defendant No.2 is living in possession of portion "C" of the house in question, but their possession was stated to be with the permission of the plaintiff, as her licensee. 5.5 It was stated that portion marked as "B" is in actual and physical possession of the plaintiff herself, where she is residing and since defendants started to make alterations in their portions "A" & "C" unauthorizedly, therefore, plaintiff asked them (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (5 of 38) [CFA-3/1991] on 04.02.1979, to vacate and hand over the possession of their portions, to the plaintiff, but the same was not done, hence, thereafter, cause of action alleged to be accrued and the plaintiff filed present civil suit for possession on 05.03.1979. 5.6 At the final stage of trial of present suit, on the prayer of plaintiff, the trial Court allowed the plaintiff, to amend the plaint vide order dated 27.03.1990 and Para No.10-A was added by the plaintiff in the plaint, claiming an alternative case that entire house property was streedhan, of Smt. Laddu Bai and being sole widow daughter of Smt. Laddu Bai and having no means of livelihood, she got the property. After this amendment, an additional Issue No.9 was framed by the trial Court. 5.7 It is to be noted that in the prayer of plaint, plaintiff apart from asking for the possession, on the basis of claiming her sole ownership, also made an alternative prayer for seeking partition of the house in question, in case defendants establish their right and share in the house in question.

5.8 Appellant-defendant No.1 submitted his separate written statement and categorically denied his possession over the portion marked as "A" in the house in question, as permissive and as licensee of plaintiff, but stated to be as owner. It was denied that the Jagir land and house in question were given by Maharaja Sh. Bhompal Ji to Smt. Laddu Bai and Laddu Bai bequeathed the house to plaintiff through her Will. The ownership of Smt. Laddu Bai so also plaintiff over the house in question was denied and it was contended that the house in question was a Nazul property and Maharaja Bhompal Ji gave the house in (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (6 of 38) [CFA-3/1991] question to Sh. Angad Singh, father of defendant No.1, and he is residing in the house in question since time of his father from year 1948. The execution of the Will of house in question by Sh. Angad Singh in favour of plaintiff was also categorically denied; The defendant also took an alternative plea of adverse possession. The principal prayer of plaintiff for possession so also the alternative prayer of partition were denied specifically and the suit was prayed to be dismissed with cost.

5.9 Defendants No.2, 3/1 & 3/4-respondents No.2 to 4, who are also son and daughters of late Sh. Angad Singh, submitted their separate and joint written statement wherein they only disputed/denied the avertments of plaint only in respect of execution of the Will of Sh. Angad Singh in favour of plaintiff, but the all other facts pleaded by plaintiff, were not denied, rather accepted. Thus, defendants No.2,3/1 & 3/2 supported the case of plaintiff for possession, accepting her sole ownership over the entire house.

5.10 As per amended pleadings of the parties, as many as nine issues were settled by the trial Court. Issue Nos.1 & 2 are the clinching and foremost issues of importance, which pertain to, as to whether the plaintiff is owner of portions marked as "A" and "C" in the house in question by virtue of Will? and, as to whether the plaintiff permitted defendants No.1 and 2, to live in the portion of house in question as her licensee, since about 8-10 years from the date of suit? The issue No.3 pertains to carrying out alterations by the defendants No.1 & 2 in their respective portion of the house in question and declined to hand over the possession to plaintiff. (Downloaded on 11/11/2023 at 09:05:09 PM)

[2023:RJ-JP:25493] (7 of 38) [CFA-3/1991] Issue No.4 is in respect of valuation of the suit property, Issue No.5 is about insufficiency of court fee, Issue No.6 is about, as to whether the suit is barred by limitation? And Issue No.7 is of relief. Issue No. 8 was additionally framed, on the additional and alternative plea of defendant No.1 in respect of claiming of adverse possession over the portion marked as "A" in the house in question. Issue No.9 was framed additionally, in respect of alternative case pleaded by plaintiff in Para No.10-A of the plaint, claiming her ownership over the house in question, treating the same as streedhan of Smt. Laddu Bai, being widow and dependent daughter of Smt. Laddu Bai.

5.11 Both the parties adduced their respective oral and documentary evidence. From the side of plaintiff, plaintiff-Smt. Pooni Bai (PW-1) deposed her statements and Sh. Chote Lal (PW-

2), who is the witness of Will of Smt. Laddu Bai alleged to be executed in favour of plaintiff, Heera Singh (PW-3) and Gopi Lal (PW-4) were examined and documents-Exhibit 1 to 5 were produced by the plaintiff. Exhibit 1 is the Will of Smt Laddu Bai, Exhibit 2 is Will of Sh. Angad Singh and Exhibits 3, 4 and 5 are three site maps of the house in question in respect of all its three floors, showing partition marked as A, B & C separately. 5.12 From the side of defendants, only defendant No.1 contested the suit and defendant No.1- Shiv Charan himself appeared as DW-1 and got recorded statements of his witnesses DW-2, DW-3 & DW-4 and also produced documents-Exhibit A1 to A22 on record.

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5.13         Learned trial Court decided Issue Nos.1,2,3 & 9 in

favour of plaintiff and plaintiff was held to be absolute owner of the house in question on the basis of Will (Ex.1), executed by her mother and while deciding Issue No.9, the house in question was held to be streedhan of Smt. Laddu Bai and plaintiff to be her sole successor of the house. The defendant No.1 was held to be in possession over the portion marked as "A" of the house in question, but his possession was assumed as licensee of plaintiff. The execution of the Will by Sh. Angad Singh in favour of plaintiff was not found proved. The plea of defendant No.1 to claim adverse possession was decided against the defendant. The valuation of the suit property was assessed to be higher than valued by the plaintiff and accordingly, plaintiff was held liable to pay additional court fee. The plaintiff's suit for possession in respect of portion marked as "C" was not decreed, since defendant No.2 supported the plaintiff's case, but the suit was decreed in respect of portion "A" only and vide judgment and decree dated 14.11.1990, the plaintiff has been held entitled to get the possession of portion marked as "A", as shown in sitemaps (Exhibits 3,4 & 5) from the defendants.

5.14 Since portion "A" is in actual and physical possession of appellant-defendant No.1 only, therefore, defendant No.1 alone has assailed the judgment and decree for possession passed by the trial Court, by way of filing the present first appeal.

6. During course of first appeal, the appellant-defendant No.1 passed away and his natural heirs have come on record. Respondent No.1-plaintiff Smt. Pooni Bai also died during course (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (9 of 38) [CFA-3/1991] of first appeal and in her place, one person Sh. Shailendra Singh sought his substitution, placing reliance on the Will of Smt. Pooni Bai in his favour. The Will of Smt. Pooni Bai was denied and disputed by the appellants, however, this Court, only for the purpose of continuing the proceedings of the present first appeal, allowed the substitution of Sh. Shailendra Singh as legal representative of deceased Smt. Pooni Bai to contest the appeal. Since other defendants/respondents supported the case of plaintiff, their status need not to be discussed elaborately, however, it is suffice to state that legal representatives of deceased respondents, have also come on record.

7. Learned Senior Counsel, appearing on behalf of appellants argued that the trial Court has committed error of law and fact in holding the plaintiff as absolute owner of the house in question and treating the defendant No.1-appellant as her licensee. He submits that plaintiff Smt. Pooni Bai derives her title from Smt. Laddu Bai and on record, there is no titled document of the house in question in favour of Smt. Laddu Bai, therefore, merely on the basis of her Will, plaintiff Smt. Pooni Bai cannot be assumed to be owner, moreover when the alleged Will of Smt. Laddu Bai in favour of plaintiff has also not been proved in accordance with law and free from suspicious circumstances. The witness of Will, Sh. Chote Lal (PW-2) did not turn up to complete his cross examination, hence his evidence has wrongly been relied upon by the trial Court in favour of plaintiff to prove the execution of Will. He submits that evidence of PW-2, produced to prove the Will, deserves to be discarded. In support of his contentions, learned Senior Counsel (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (10 of 38) [CFA-3/1991] has placed reliance on a judgment of Hon'ble Supreme Court in case of Gopal Saran Vs. Satyanarayan [(1989(3) SCC 56]. Learned counsel argued that the trial Court committed error of fact and law in deciding Issue No.9 and wrongly held the entire house to be streedhan of the plaintiff's mother Smt. Laddu Bai which is an afterthought case of plaintiff, put forth by way of amendment in plaint at the fag end of trial, when plaintiff could not prove absolute ownership of Smt. Laddu Bai on the house property.

It has further been argued that Sh. Angad Singh, father of defendant No.1, was residing in the part of the house in question since beginning till his death and defendant No.1 too was residing in the portion of house as owner being family members, but the trial Court ignored such material fact on record and wrongly assumed that defendant No.1 is licensee of plaintiff, only because she has been held to be the owner of the entire house. It has been submitted that indeed the defendant is in possession over the portion of house in question as owner and the decree for possession passed against the defendant deserves to be quashed. It has also been submitted that parties may be left to be in possession of the portion of house in question as stated by the plaintiff in the plaint and the parties be remain continue to be in possession of their respective portions, since they are all members of one family.

8. Per contra, learned counsel appearing on behalf of respondent No.1-plaintiff opposed the appeal and supported the (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (11 of 38) [CFA-3/1991] impugned judgment and decree. Learned counsel submits that the trial Court has committed no illegality in considering the evidence of Sh. Chote Lal (PW-2) and rightly placed reliance on Section 33 of the Indian Evidence Act, thus the Will of Smt. Laddu Bai in favour of plaintiff Smt. Pooni Bai has rightly been held proved, as such the plaintiff has rightly been declared as the absolute owner of the house in question. It has been submitted that since the defendant-appellant remained failed to show his own ownership over the portion in his possession in the house in question, therefore, his possession has rightly been treated as licensee of the plaintiff and the decree for possession, impugned herein, is lawful, just and proper, hence the same warrants no interference by this Court, rather is liable to be affirmed. In support of his contentions, learned counsel for respondent-plaintiff has placed reliance on two judgments of Rajasthan High Court in cases of Jai Raj Singh Vs. Shanti Kishan Singh [2004(1) DNJ (Raj.) 441] & Abdul Munir Khan Vs. Gulzar Singh [(2005(5) WLC (Raj.) 215].

9. This Court, during course of arguments, put a pertinent query from the counsel for respondent-plaintiff, as to whether respondent wants to pursue her alternative case of partition as pleaded in the plaint, in case this Court comes to a final conclusion that the plaintiff is not the sole owner of the house in question and the decree for possession passed in favor of plaintiff is not liable to sustain. In response thereto, learned counsel, on instructions of respondent No.1/1 Shailendra Singh, who was present in person in the Court, stated at bar that he does not press the alternative (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (12 of 38) [CFA-3/1991] prayer made by the plaintiff in the plaint for seeking partition of the house in question, irrespective of the fact that this Court, in the present first appeal sustains or set aside the judgment and decree for possession passed in favour of plaintiff by the trial Court. Thus, respondent No.1/1, being sole legal representative of the deceased plaintiff Smt. Pooni Bai, chooses only to press the suit for prayer of possession only and willingly foregoes alternative prayer made by the plaintiff in the plaint for seeking partition of the house in question.

10. Having heard rival contentions of learned counsel for both parties and after going through the entire record of the trial Court as also from perusal of the impugned judgment, this Court finds that the present first appeal can be considered and involves following points of determination:-

(I) Whether the ownership of Smt. Laddu Bai over the house in question is proved and if yes, whether the plaintiff Smt. Pooni Bai acquired the ownership of the house in question from Smt. Laddu Bai by virtue of her Will dated 21.01.1955 (Ex.1) or the property was Streedhan of Smt. Laddu Bai and after her death, plaintiff got the entire house property in succession, being widow daughter of Smt. Laddu Bai?

(This Point covers Issues No.1 & 9) (II) Whether the possession of appellant-defendant No.1 over the portion marked as "A" of house in question, is with the permission of plaintiff as her licensee?

(This Point covers Issues No.2,3 & 8) (III) Whether impugned decree for possession passed by the trial Court, in favour of plaintiff is liable to be sustained or set aside or deserves to be modified in any manner?

(This Point covers all other remaining Issues.) (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (13 of 38) [CFA-3/1991] Point No.(I):-

11. According to pleadings of the amended plaint, plaintiff Smt. Pooni Bai derived her title/ownership over the house in question from her mother Smt. Laddu Bai on the basis of Will dated 21.01.1955 (Ex.1), allegedly executed by Smt. Laddu Bai to bequeath the house in question solely to plaintiff and simultaneously, plaintiff also make out an alternative case of her ownership on the basis that the house in question be treated streedhan, of Smt. Laddu Bai and being sole surviving widow daughter of Smt. Laddu Bai and having no means for her livelihood, plaintiff is sole successor of her Streedhan. Issues No.1 and 9 were specifically framed by the trial Court in this respect. As far as sole ownership of the house in question, allegedly acquired by Smt. Laddu Bai is concerned, although no independent issue has been framed, yet the same may be considered in issue No.1 being an intrinsic part of Issue No.1.

12. According to the plaintiff (PW-1), the house in question, comprising three storied building, was given by the then Raja of Riyasat Karauli namely Sh. Bhompal Ji to Smt. Laddu Bai, in lieu of nourishment and nurture of Sh. Ganesh Pal, the son of his highness Sh. Bhompal Ji. Although the fact that Smt. Laddu Bai nurtured and nourished Sh. Ganesh Pal, as his Dhai Ma is not a disputed fact, yet it is disputed that the house with Jagir land was solely given to Smt. Laddu Bai only. According to defendant No.1, the house and Jagir land were given to his father Sh. Angad Singh, who was only male member in the family and son of Smt. Laddu Bai. It has come on record that the husband of Smt. Laddu (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (14 of 38) [CFA-3/1991] Bai had already passed away and when this house was given by the then Raja, Smt. Laddu Bai with her son Sh. Angad Singh, started to live in the house. It has already come on record that the plaintiff Smt. Pooni Bai, though has gotten marriage, however, according to her statements as PW-1, she became widow in childhood and came back to live with her mother in the house in question. From the evidence on record, it appears that Sh. Angad Singh too resided in the house in question during his lifetime until death and this fact has also been admitted by plaintiff (PW-1) Smt. Pooni Bai in her cross examination. Plaintiff's witness Sh. Heera Singh (PW-3) states in his evidence that the house in question belongs to Sh. Shiv Charan S/o Shri Angad Singh and Smt. Pooni Bai.

13. Smt. Pooni Bai, herself has come up with a case that Sh. Angad Singh too conferred ownership of the house in question upon the plaintiff by, executing a Will dated 07.06.1958 (Ex.2). Thus, in this way, plaintiff Smt. Pooni Bai is not only derived ownership of the house in question from her mother Smt. Laddu Bai through the Will dated 21.01.1955 (Ex.1), but also make out a case that Sh. Angad Singh, her brother too transferred the ownership of house in question to her by executing another Will dated 07.06.1958 (Ex.2). Plaintiff has not produced any substantive evidence to prove that Raja Shri Bhompal Ji gave the house in question to Smt. Laddu Bai alone. No written document, in conformity to giving the house property only to Smt. Laddu Bai has been produced on record. PW-1 in her evidence as also other witnesses of plaintiff, nowhere categorically stated the date, (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (15 of 38) [CFA-3/1991] month and manner in which the house in question was given by Raja Sh. Bhompal Ji to Smt. Laddu Bai alone. Only a reference of Samwat 1985, which comes in the English calendar year as 1928, has been given. Defendant No.1 Shiv Charan (DW-1) deposed that the house property was a Nazul property as per document-Exhibit A19, which was received by his father Sh. Angad Singh. In the cross examination of defendant No.1 Shiv Charan (DW-1), from the side of plaintiff, a suggestive question was put that a patta of house in question was issued in the name of Smt. Laddu Bai and pattas are in custody of defendant No.1, who has not produced the same. The suggestive question as put forth from the side of plaintiff, is not a case of plaintiff in the pleadings or in evidence. Thus, this Court finds that as per the oral evidence, produced by the plaintiff, the factum of giving the house in question by Raja Sh. Bhompal Ji to Smt. Laddu Bai alone is not established and indisputably, there is no document, in conformity and to prove the transfer of ownership of house property to Smt. Laddu Bai alone.

14. After coming into force of the Transfer of Property Act, 1882 (hereinafter for short "the Act of 1882"), Section 9 talks about the oral transfer. As per Section 9, a transfer of property may be made without writing in every case in which a written document is not expressly required by law. The Act of 1882 requires transactions of sale, Section 54, mortgage, specified in Section 58, lease, specified in Section 105, Exchange, specified in Section 118, Gifts envisaged under Section 122 and transfer of actionable claim under Section 130 etc. to be in writing. In this way, although, the Act of 1882 recognizes oral transfers, but only where the transfer (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (16 of 38) [CFA-3/1991] of property is not expressly required to be made through a written document as expressly required by law.

15. In the plaint, plaintiff has not indicated that any document/ patta was issued/ executed by Raja Shri Bhompal Singh Ji, to give the property of Jagir land and house property to Smt. Laddu Bai. However, plaintiff stated in her cross-examination that documents of patta were issued by Raja in the name of her mother Smt. Laddu Bai, but defendant took such documents in his possession on the pretext of providing the compensation to the plaintiff from the Government, against resumption of Jagir land. Similarly, from the side of plaintiff, it was suggested to defendant (DW-1) in his cross-examination that all pattas of properties were issued in the name of Laddu Ji and defendant took pattas from Pooni Bai by saying to determine the compensation of Jagir land and then kept pattas in his possession. Thus, by such evidence, it appears that plaintiff accepted for issuance of pattas by Maharaja in the name of Smt. Laddu Bai, but neither such pattas or any other documents to show the title of properties in the name of Smt. Laddu Bai were produced nor plaintiff took any steps, to summon such pattas from the custody of defendant, if documents were obtained by defendant and were in his possession. In this view, obviously case of plaintiff, is not that of oral transfer of the properties.

16. It is note worthy that plaintiff has nowhere specified the kind of transfer of properties, i.e. whether by way of sale, gift or otherwise. If transfer is treated as sale, certainly consideration of (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (17 of 38) [CFA-3/1991] price was not made by Smt. Laddu Bai, hence, the transaction cannot be treated as sale. If pattas were issued as gifts, by virtue of Section 122 and 123 of the Act of 1882, the transaction of gift of any immovable property is required to be effected by way of registered instrument, which is further required to be signed by or on behalf of donor and to be attested by at least two witnesses. Thus, as per provisions of the Act of 1882, gift of an immovable property can be effected only by way of registered instrument.

17. Indisputably, no registered instrument in support of contention that the house property was given by Raja Sh. Bhompal Ji to Smt. Laddu Bai alone has been produced on record by the plaintiff. In the impugned judgment, while deciding Issue No.1, the trial Court has not adverted its attention to this aspect and there is no specific findings of the trial Court, as to how and in what manner, Smt. Laddu Bai alone acquired the ownership of the house in question. In respect of Jagir land at Madhai, plaintiff PW- 1 accepts in her evidence to receive compensation of Rs.7,000/- in lieu of presumption of jagir land by the Government, but no document in respect of receiving the compensation from the Government by plaintiff was produced on record. On the contrary, in the register of Nazul Properties for the year 1954-55 (Ex-A19), maintained in the office of Zila Parishad, Karauli in register No.8, entry No.192, the house property is recorded in the name of Shri Angad Singh, which has been verified by the employee of Zila Parishad appeared as DW4 namely Ramesh Sharma. In the Municipality record, the house tax of the house property is deposited in the name of Laxmi Narain and Shiv Charan, sons of (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (18 of 38) [CFA-3/1991] Shri Angad Singh (Ex-A20). Though, no direct document of patta in the name of Shri Angad Singh, too has not been placed on record, but the plaintiff herself put a case to derive title of house property from Shri Angad Singh through his Will dated 07.06.1958 (Ex-2), thus, plaintiff admits that Shri Angad Singh was also owner of the house. Plaintiff admits in her evidence that Shri Angad Singh, with his two sons and daughters lived in the house in question since beginning along with Smt. Laddu Bai. Plaintiff also admits that Shri Angad Singh died in this house only and after his death, his sons Shiv Charan and Laxmi Narain are residing therein. Plaintiff admits that Shiv Charan carried out maintenance and repairing work in the house and incurred about Rs.30,000/- to 40,000/-. Thus, in view of all such evidence and material on record as well as admission of plaintiff, it can not be conclude and held that Smt. Laddu Bai alone was the owner of the house property, rather Shri Angad Singh was admitted to be owner by the plaintiff and parties were living in the house as part of family and family members and not as licensee of each other.

18. In view of aforesaid discussions, this Court has no hesitation in holding that in absence of any documentary and other cogent evidence, the case of plaintiff that Smt. Laddu Bai alone was the owner of the house in question, is not proved.

19. Plaintiff Smt. Pooni Bai is claiming to acquire ownership of house in question from Smt. Laddu Bai through her Will dated 21.01.1955 (Ex.1). In respect of "Will", it is trite law that the execution of Will must be held to have been proved according to (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (19 of 38) [CFA-3/1991] the statutory requirements under Section 63 of India Succession Act, 1925 and under Section 68 of the Indian Evidence Act, 1872 so also the Will must be found ordinarily free from suspicious circumstances. Although, in view of findings as recorded in the foregoing paras that Smt. Laddu Bai alone was not the owner of the house in question, the claim of plaintiff to acquire ownership of house in question from Smt. Laddu Bai through her Will, does not stand good. Learned trial Court has concluded that the execution of Will of Smt. Laddu Bai stands proved in accordance with law but learned trial Court has not adverted to the aspect that Will of Smt. Laddu Bai is shrouded by the suspicious circumstances, which make the Will ungenuine, unacceptable and non-reliable document. Merely because, one of the witness of Will namely Shri Chote Lal (PW-2) was produced by plaintiff to prove the execution of Will, the Will in question should not have been treated as genuine and valid document, to held that the ownership stand vested to the plaintiff alone.

20. Learned Senior Counsel for appellant defendant raised a serious objection to rely upon evidence of Chote Lal (PW-2), because he did not turn up before the trial Court to get complete his cross-examination, hence, he submits that evidence of Chotelal (PW-2) cannot be relied upon and be treated as non-est more particularly, in light of judgment of Supreme Court in case of Gopal Sharan (supra), but in the opinion of this Court, such an objection is not sustainable on facts of the present case. This Court finds that Chote Lal (PW-2) deposed his evidence-in-chief on 12.11.1982 and he was cross examined as well, on that day, (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (20 of 38) [CFA-3/1991] however, because of end of Court hours, his cross-examination could not be completed. The witness re-appeared for his cross- examination, as directed twice i.e. on 08.04.1983 and again on 31.05.1983, but since Presiding Officer of the Court was on leave, hence, his rest cross-examination was not done. It transpires from order-sheets that thereafter when he did not turn up on the next date, his presence was sought to be ensured by way of issuing bailable warrants, but he didn't appeared and lastly evidence of plaintiff was closed on 08.04.1985. Plaintiff, thereafter, moved an application, disclosing that witness Chote Lal was suffering from Laprosy and he died on 27.09.1984, therefore, in such circumstances, his evidence can be taken into consideration, more so when on his evidence-in-chief, he had substantially been cross examined by the defendant, before his death. Resort to Section 33 of the Evidence Act supported with judgment of Lahore High Court in case of Diwan Singh Vs. Emperor [AIR 1933 Lahore 561] was taken.

Learned trial Court in the impugned judgment has categorically observed that non-completion of cross-examination of Chote Lal (PW-2) was not due to his willful and deliberate non- appearance, but was just circumstantial due to his illness and than due to his death. The trial Court also observed that a perusal of cross-examination of Chote Lal reveals that he had substantially been cross-examined by the defendant. Thus, in the backdrop of such factual matrix and after placing reliance upon Section 33 of the Evidence Act, as also guided by the judgment of Lahore High Court,derived in case of Diwan Singh (supra), the trial Court (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (21 of 38) [CFA-3/1991] proceeded to rely upon the evidence of witness Chote Lal. In the present appeal, the appellant has not shown that the factual aspect, as discussed by the trial Court, was not true that witness Chote Lal had passed away on 27.09.1984, after suffering from illness before closing his evidence on 08.04.1985. Therefore, in the backdrop of such factual matrix, this Court is also of considered opinion that evidence of Chote Lal is not liable to be discarded and cannot be treated as non-est. Learned trial Court committed no illegality in placing reliance upon the evidence of Chote Lal (PW-2) with the aid of Section 33 of the Evidence Act and the judgment of Lahore High Court in case of Diwan Singh (supra). As far as judgment of Hon'ble Supreme Court in case of Gopal Sharan (supra) on which counsel for appellant has placed reliance is concerned, in that case party did not presented himself for cross-examination, therefore, in that backdrop of factual matrix, the Supreme Court held that it is not safe to rely on the examination-in-chief of that party. In the present case at hand, witness Chote Lal (PW-2) had substantially been cross examined and his cross-examination could not be completed because of end of Court hours and later on unfortunately he passed away because of laprosy. Thus, in such circumstances, the evidence of Chote Lal (PW-2), who is one of witness of Will and appeared to prove the execution of Will in question (Ex.1), has rightly been relied upon by the trial Court and this Court has concurrence with the view of the trial Court in this respect.

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[2023:RJ-JP:25493] (22 of 38) [CFA-3/1991]

21. Nevertheless, mere proving of execution of Will dated 21.01.1955 (Ex.1) by one of the witness of Will, Chote Lal (PW-2), the Will does not stand prove as genuine and valid to clothe the plaintiff with absolute ownership of the entire house property. Firstly, Smt. Laddu Bai herself who allegedly executed this Will in favour of plaintiff has not been found to be the absolute owner of the entire house property as discussed hereinabove and secondly, the Will cannot be said to be free from suspicious circumstances nor its exception can be held proved on the basis of evidence of plaintiff.

22. Learned counsel for respondent-plaintiff by referring the judgment of Coordinate Bench of Rajasthan High Court passed in case of Jai Raj Singh Vs. Shanti Kishan Singh [2004 (1) DNJ (Raj.) 441] sought to convince the Court that the execution of Will stands proved in accordance with Section 63 of the Indian Succession Act, 1925 as also under Section 68 of the Indian Evidence Act, 1872 as one of the witness of Will namely Chote Lal (PW-2) had appeared before the trial Court and deposed his evidence to prove the execution of Will in accordance with law. He also deposed that the scriber of Will namely Shree Lal and another witness namely Dhanna have passed away. Therefore, when signature/mark of executant Smt. Laddu Bai on the Will in question in presence of and with signatures of two witnesses have been proved, the Will should be treated as genuine. But this Court finds that the requirement of proving the execution of Will, by producing at least one witness of Will in question is one thing, which is certainly an essential and statutory requirement to prove (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (23 of 38) [CFA-3/1991] the execution of the Will but it is also necessary that before placing reliance of Will, the Court must be satisfied that the Will is free from all kinds of suspicious circumstances.

23. This Court has noticed that the Will in question is shrouded by various suspicious circumstances which are apparent on the face of record and from perusal of the Will itself.

(i) Admittedly, plaintiff has relied upon two Wills, one alleged to be executed by her mother Smt. Laddu Bai dated 21.01.1955 (Ex.1) and another alleged to be executed by her brother Shri Angad Singh dated 07.06.1958 (Ex.2). According to plaintiff, her mother Smt. Laddu Bai as well as her brother Shri Angad Singh bequeathed the ownership of house property upon her through two separate Wills, but as a matter of fact, the execution and existence of Will of Smt. Laddu Bai (Ex.1) is clearly denied in the Will of Shri Angad Singh (Ex.2). The Will (Ex.1) itself stands contrary to the another subsequent Will (Ex.2) relied upon by the plaintiff herself, so both Wills cannot be held to be correct and valid simultaneously. Further by placing reliance on both Wills, plaintiff Smt. Pooni Bai herself has given an impression that the ownership of house property was vested in her by mother Smt. Laddu Bai as also by her brother Shri Angad Singh, thus, it has been accepted by plaintiff that Shri Angad Singh was also having ownership of the house property. In this way, Will Ex.1 stands suspicious. In addition, witness Chote Lal (PW-2) has also adduced the evidence to prove execution of both Wills. He is attesting witness in both Wills. The evidence of Chote Lal, in respect of (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (24 of 38) [CFA-3/1991] execution of Will (Ex.2) has not been found satisfactory. The another witness of Will (Ex.2), i.e. PW-4 Gopi Lal had turned hostile and therefore, the execution of Will of Angad Singh (Ex.2) was not held proved but even if the execution of another Will (Ex.2) could not be proved in accordance with law, same does not improve the case of plaintiff to claim absolute ownership of house property from Smt. Laddu Bai on the basis of Will (Ex.1) only and the Will Ex.1 cannot be treated as genuine and valid. Plaintiff is bound to face the consequences to place reliance on two different Wills, simultaneously at a time, to confer ownership of the house property unto herself, which are not in consonance to each other.

(ii) In addition, it is note worthy that in the Will (Ex.1), there is recital that Smt. Laddu Bai has one son Shri Angad Singh and one daughter Smt. Pooni Bai whereas plaintiff Smt. Pooni Bai states in her evidence-in-chief that they are three sisters. In her statement recorded on 02.09.1982, during cross-examination, she stated that her two sisters namely Sua Bai and Gulo Bai had passed away before execution of Will by mother Smt. Laddu Bai, on the contrary in her additional statements recorded on 21.07.1990, PW-1 stated that her sister Gulo Bai died after death of her mother. As per evidence of appellant-defendant Shiv Charan (DW-1), all three daughters of Smt. Laddu Bai were alive at the time of her death. Further PW-1 admits that heirs of her sisters Sua Bai and Gulo Bai are alive. She also stated that her brother Shri Angad Singh had two sons namely Shiv Charan and Laxmi Narain and two daughters. One of his daughter, Smt. Vimla Bai became widow at the age of 9 years and she was maintained and (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (25 of 38) [CFA-3/1991] educated by her mother Smt. Laddu Bai. Thus, it appears that there were other family members of Smt. Laddu Bai who were alive and if Will in question was written, as per instructions of Smt. Laddu Bai certainly the reference of her other two daughters Sua Bai and Gulo Bai as also of other; family members would have been there in the Will. But in her Will, there is no whisper about her two daughters and other dependents/family members.

(iii) It is also note worthy that by evidence of plaintiff Smt. Pooni Bai PW-1, it appears that she was present in person at the time of execution of Will and she stated that witnesses put their signature on the Will in her presence. PW-2 states that paper to write the Will was made available by Pooni Bai and she brought breakfast. The participation of plaintiff, who is sole beneficiary of the Will in question has been treated in law as one of suspicious circumstances.

(iv) There is no evidence from the side of plaintiff that Smt. Laddu Bai was in fit and sound state of mind, at the time of execution of Will.

(v) A perusal of the Will (Ex.1) as a whole does not inspire confidence nor leads to inference that same was written as per instructions of Smt. Laddu Bai. All such circumstances, referred hereinabove are material and relevant to be considered, before placing reliance on the Will and treating the same as genuine, valid and lawful document. The trial Court has not adverted on such suspicious circumstances, hovering around the Will in question on its face value. The suspicious circumstances, which (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (26 of 38) [CFA-3/1991] have been referred hereinabove were required to be removed by the plaintiff, propounder of the Will by adducing sufficient evidence to the satisfaction of the Court. No evidence on record has been adduced by plaintiff to remove/satisfy such suspicious circumstances.

24. A reference of the celebrated judgment of the Supreme Court, in case of H.Venkatachala Iyengar Vs. B.N. Thimmajamma [AIR 1959 SC 443], which has been followed in catena of subsequent judgments of the Supreme Court and still holds the field, would be apropos to the issue under consideration. The relevant portion of the judgment, para 22 and 23 are being reproduced hereunder:-

"22. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

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[2023:RJ-JP:25493] (27 of 38) [CFA-3/1991]

23. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson (1946) 50 C.W.N. 895, "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."

25. In the judgment of Jai Raj Singh (supra) relied upon by counsel for respondent-plaintiff, in para 28 and 29, the Court has observed that the execution of Will should be proved beyond suspicious circumstances. The suspicious circumstances may be as to the genuineness of signatures of testators, the condition of testators' mind, the deposition made in the well being unnaturally, improbable or unfair in light of relevant circumstances or there may be other indications in the Will to show that testators' mind was not free. It has been observed that in such a case, the Court would naturally accept that all legitimate suspicion should be completely removed before the document is accepted as the last Will of executor. If the propounder himself take a prominent part in the execution of Will, which confers substantial benefit on him, that is also a circumstance to be taken into account and the (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (28 of 38) [CFA-3/1991] propounder is required to remove doubts by clear and satisfactory evidence.

26. The Supreme Court, in case of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria [2008 (15) SCC 365] has observed that whether the Will is surrounded by suspicious circumstances or not, is essentially a question of fact, the inference of suspicious circumstances may be drawn having regard to the evidence on record. It was held that it is trite law that the execution of Will must be held to have been proved not only when the statutory requirements for proving the Will are satisfied but the Will is also found to be ordinarily free from suspicious circumstances. When such evidence are brought on record, the Court may take aid of presumptive evidence also.

27. Apart from above, learned trial Court has also committed error of fact and law in not appreciating that plaintiff (PW-1) in her evidence admits her presence at the time of execution of Will by Smt. Laddu Bai. Her presence has been verified by PW-2 Chote Lal as well because he stated in his cross-examination that the paper on which the Will of Laddu Ji written, was made available by Pooni Bai and she brought breakfast etc. The trial Court further committed error in not appreciating contradictions and discrepancies in the statement of PW-2 and blindly relied upon his evidence to held prove the execution of Will. The Will was alleged to be executed on 21.01.1955 which is winter season whereas PW-2 stated that it was Month of June (Hot summer) when Will was executed. There is contradiction in his evidence about (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (29 of 38) [CFA-3/1991] execution of Will on stamp paper and plane paper. In addition, the evidence of PW-2 may not be treated as trustworthy, because he is witness of both Wills (Ex-1 and Ex-2). PW-2 apart from deposing his evidence in respect of execution of Will (Ex-1), putting impression/mark by Smt. Laddu Bai on the Will in presence of witnesses he also deposed evidence to put sign by Angad Singh on Will (Ex-2) in his presence and witnesses. The Will of Angad Singh (Ex-2) has not been held proved and the evidence of PW-2 in respect of Will (Ex-2) has not been found trustworthy and does not corroborate with PW-4, another witness of Will Ex.2. In this view, it is not safe to rely the evidence of PW-2, in respect of execution of Will (Ex-1) as wholly trustworthy and solely on the basis of his evidence, the execution of Will Ex-1 under the impression/mark of Smt. Laddu Bai as also written as per her instructions, cannot be believed and cannot be held proved.

28. Therefore, finally, on appreciation of evidence in entirety as also other aspects, discussed hereinabove, this Court is of considered opinion that the Will dated 21.01.1955 (Ex.1), allegedly executed by Smt. Laddu Bai in favour of plaintiff cannot be held to be a genuine and valid document to confer the ownership of the house property upon the plaintiff. Learned trial Court committed error of fact as also of law in placing reliance upon the Will to assume and confer the ownership of house property upon plaintiff alone. In light of discussion and observations made hereinabove, findings of the trial Court on issue No.1, in this respect are hereby set aside. (Downloaded on 11/11/2023 at 09:05:09 PM)

[2023:RJ-JP:25493] (30 of 38) [CFA-3/1991]

29. Learned trial Court, while deciding issue No.9, has held that the house property was received to Smt. Laddu Bai on the basis of her labour and skill, therefore, it was treated as her Streedhan and further placing reliance on Section 147 of the Book from Mulla's on Hindu Law, the trial Court held that the Streedhan of Smt. Laddu Bai devolve after her death upon her widow daughter namely Pooni Bai i.e. plaintiff, since she was having no means for her livelihood. This Court is of the opinion that the trial Court has fell into error of fact and law in deciding issue No.9.

The trial Court failed to consider that plaintiff make out an alternative case in pleadings by addition of para No.10-A in respect of alleging the house property as Streedhan of Laddu Bai, at the fag end of the trial of suit and after conclusion of evidence of parties. This was wholly an afterthought of plaintiff, apparently when in her evidence, plaintiff miserably failed to prove the absolute ownership of Smt. Laddu Bai over the house property, alleged to be assigned by Raja Shri Bhompal Singh Ji. Plaintiff knew that no cogent and convincing evidence, documentary evidence have been produced on record to prove the transfer of ownership of house property to Smt. Laddu Bai by Raja Shri Bhompal Singh Ji, then she tried to make out an alternative case that the property be treated as Streedhan of Smt. Laddu Bai. Such change of stand of plaintiff, does not stand in conformity to the Will (Ex-1), allegedly executed by Smt. Laddu Bai in favour of plaintiff and which was her basic case in the original plaint. (Downloaded on 11/11/2023 at 09:05:09 PM)

[2023:RJ-JP:25493] (31 of 38) [CFA-3/1991] Otherwise also, what kind of properties received by female should be treated as her Streedhan, is well described in the Hindu Law. The meaning of 'Streedhan' has been defined Stree- Women and Dhan- Property i.e. literally the Women's property. According to Mitakshara Hindu Law, Streedhan of a female is that which was given by the father, by the mother, by the husband, or by brother; and that which was presented by the maternal uncles and rest at the time of wedding before the Nuptial fire; and a gift on a second marriage or gratuity on account of supersession; and, the property obtained by way of inheritance, purchase, partition, adverse possession etc. The gifts and bequests given by strangers to a female has not been treated as Streedhan of the female under the Mitakshara Hindu Law, although few of schools recognize such property as Streedhan of female to whom present parties do not belong. Obviously, Raja Bhompal Singh Ji, who allegedly gave the house property to Smt. Laddu Bai do not fall in any of her relationship as mentioned hereinabove nor the property was given to Smt. Laddu Bai as gift before the Nuptial fire or at the bridal procession or as gift after marriage or in lieu of maintenance. Therefore, in such facts and circumstances the alternative case tried to make out by plaintiff to treat the house property as Streedhan of Smt. Laddu Bai is not liable to be accepted. In the opinion of this Court, findings of the trial Court, treating the house property as Streedhan of Smt. Laddu Bai, are erroneous and as such are hereby set aside.

As a natural corollary, findings of the trial Court, while deciding issue No.9, to devolve the house property on the plaintiff (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (32 of 38) [CFA-3/1991] alone by way of succession, treating her as without having means and widow daughter of Smt. Laddu Bai and by virtue of Section 147 of the Mulla's Hindu Law are also not sustainable and are liable to be ignored. Ultimately, the issue No.9 as a whole is adjudicated against the plaintiff. With observations discussed hereinabove, the point No.I is decided against the plaintiff- respondent and in favour of appellant-defendant. Point No.(II):-

30. Learned trial Court while deciding issue No.2 and 8 collectively, held that defendant No.1 failed to prove his adverse possession over the portion "A" in the house property for more than 12 years without interruption, prior to filing of the present suit, whereas plaintiff has been found to be absolute owner of the entire house, in view of findings of issues No.1 and 9, therefore, the possession of defendant No.1 was assumed to be a permissive possession and is in the capacity of licensee of plaintiff. As per evidence and material available on record, the assumptions drawn by the trial Court to treat the possession of defendant No.1 with the permission of licensee of plaintiff, is arbitrary, erroneous and perverse.

31. It was incumbent for plaintiff to prove her case that the portion "A" and "C" was given to defendant No.1 and 2 independently, 8-10 years ago prior to filing of the suit and both defendants were her licensees. The present suit was instituted on 05.03.1979. According to plaintiff's case, the defendant No.1 came in possession of portion "A", 8-10 years ago i.e. in the year about (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (33 of 38) [CFA-3/1991] 1969-70. Though, defendant No.2, Laxmi Narain supported plaintiff's case, yet plaintiff did produce Laxmi Narain in her evidence, to prove that he came in possession of portion "C" only in the year 1969/70 and with the permission of plaintiff.

Defendant No.1, has categorically denied his possession on portion "A" with permission of plaintiff and as her licensee, rather contended that he was residing in the house since childhood with his father Shri Angad Singh and during course of his employment, his children and wife were residing continuously in the house. Plaintiff Pooni Bai admits that in her evidence that upbringing, education and marriage of Shiv Charan and Laxmi Narain, defendant No.1 and 2, who are sons of her brother Shri Angad Singh, held in the house in question. PW-1 admits that her brother Angad Singh till his death lived in the house in question. PW-1 admits her brother Angad Singh, as owner of the house in question from whom she derived to acquire ownership through his Will (Ex-2), though, same was not proved. PW-1 in her statements recorded on 02.09.1982, stated that Shiv Charan defendant No.1 leave his job 30 years ago and since thereafter, he is residing in the house with his children and family. Plaintiff's witness PW-4 (Gopi Lal) in his cross-examination held on 10.07.1984 states that Shiv Charan resides in the portion of house since about 34-35 years. So as per statement of PW-1 and PW-4, defendant No.1 is residing in the house since 1948-49. It is admitted case of plaintiff that defendant No.1 incurred about Rs.40,000/- in making addition/alteration, repairing and maintenance of the house in question. Defendant No.1 himself has pleaded in written (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (34 of 38) [CFA-3/1991] statement that he started to reside in the house in question since 1948; He has adduced oral as well as documentary evidence from Ex-A1 to Ex-A4, Ex-A21 and Ex-A22 to show the addition/alteration work carried out in the house and expenses incurred by him. Two of witnesses (DW-2 Shamsherpal and DW-3 Dwarka) have been produced in support of such evidence. Ex-A21 is receipt dated 06.03.1963, Ex-A3 is of dated 09.02.1964, Ex-A22 is of year 1969. The other documents Ex-A5 to A11 are payment receipts of water consumption, Ex-A12, A13 and A14 (dated 10.07.1962) are receipts of house tax deposition, Ex-A15-A16 (dated 06.06.1963) receipts also show deposition of house tax in Nagar Palika, Ex-18 is the certificate issued by Water Works Department. Plaintiff (PW-1) admits that the house tax was being deposited by defendant No.1 and 2. Plaintiff did not produce any receipts for deposition of water, electricity consumption, house tax etc. Thus, in view of overall evidence, the trial Court wrongly presumed the possession of defendant No.1 as permissive possession, over portion "A" of house in question. Documents Ex- A21 and Ex-A22 were wrongly disbelieved by the trial Court, merely because reference of both documents was not given in the written statement. In the written statement, defendant No.1 has pleaded material fact that his possession over portion of house in question is since 1948 as owner and family member and in conformity to such pleadings, evidence was adduced. Ex-A21 and Ex-A22 were also proved by DW-2 and DW-3. There is no positive evidence of plaintiff to give possession of portion "A" to defendant (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (35 of 38) [CFA-3/1991] No.1 in the year 1969-70 as her licensee. Plaintiff's witness PW-3 do not corroborate plaintiff's case that the possession of defendant No.1 and 2 over the respective portion of the house in question was with the permission of plaintiff. Thus, the trial Court committed perversity in disbelieving on the document Ex-A21 and Ex-A22 as also drawing an inference, contrary to other evidence on record, that the defendant No.1 was licensee of plaintiff and lived in the house with her permission. Even if, defendant No.1 could not prove his adverse possession as pleaded by him, yet his possession in the house was as a family member and as co-owner, which cannot be disbelieved. It appears that, parties in the suit were living in their respective portion of the house being part of one family and as Co-owner.

32. In view of discussion made hereinabove, findings of the trial Court treating the possession of appellant defendant No.1 over the portion "A" as licensee and with the permission of plaintiff cannot be sustained and to this extent findings are set aside. Accordingly, the point No.II is adjudicated against the respondent plaintiff and in favour of appellant.

Point No.(III):-

33. The trial Court passed the impugned decree for possession in favour of plaintiff, treating plaintiff as an absolute owner of the entire house and treating the possession of defendants as licensee and with permission of plaintiff. This Court, while deciding point No.I and II, as above, have adjudicated both points against the plaintiff. However, counsel for respondent-plaintiff made an (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (36 of 38) [CFA-3/1991] attempt to protect the impugned decree for possession by saying that appellant-defendant N.1 remained fail to establish his ownership in the house in question qua plaintiff, as claimed by him, therefore, in view of judgment delivered by the Coordinate Bench of the High Court in case of Abdul Munir Khan (supra), the defendant No.1 has no right to retain the possession and plaintiff be allowed to take the possession by sustaining the impugned decree.

This Court finds that facts of Abdul Munir Khan's case were entirely different. That was a case where the land of Badodia Basti, Jaipur was acquired by the then Urban Improvement Trust and piece of land described as plot No.130 in the Badodia Basti, Jaipur was in possession of plaintiff-appellant. On the basis of possession, the allotment letter was issued by the UIT in favour of plaintiff. The possession of plaintiff was dispossessed by defendants forcefully and then, plaintiff filed suit for possession. Defendants remained fail to prove in title for said piece of land and could not prove their possession lawful. In that backdrop of facts, plaintiff appellant was treated as rightful owner of plot No.130 in Badodia Basti, Jaipur and therefore, treating the possession of defendants as trespasser, the suit for possession was decreed in favour of plaintiff and against defendant. Neither on facts nor on law, the ratio of judgment is applicable to the facts of the present case. In the present case, plaintiff alleging herself to be absolute owner of entire house filed the present suit for possession, alleging defendants to be her licensee. In view of discussion made hereinabove, this Court has decided both points against the (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (37 of 38) [CFA-3/1991] plaintiff, therefore, plaintiff is not entitled to sustain the decree for possession.

34. According to conclusion arrived at by this Court, while deciding points No.I and II, as above, the impugned decree for possession passed by the trial Court in favour of respondent- plaintiff is not sustainable and deserves to be set aside. In view of conclusion that the impugned decree is liable to be set aside, the discussion on the other issues except issue pertaining to valuation of suit property and payment of balance Court fee, becomes insignificant. Findings of the trial Court on issue No.4 and 5, pertaining to valuation and Court fee are concerned, do not call for any interference on merits as trial Court has decided these issues as per evidence on record and after appreciation of evidence in accordance with law. The balance Court fee of Rs.19,000/- as ordered by the trial Court in the impugned judgment, if has not been paid by plaintiff, same is liable to be paid.

35. The alternative prayer made by plaintiff in the plaint for partition, has been not pressed by the counsel for respondent- plaintiff, as noted in para 9 of this judgment.

36. Further, in order to quietus the dispute about respective possession of parties and in order to prevent future litigation in respect of claiming possession or partition, the contention of counsel for appellant is also taken on record that since parties to the present lis are members of one family, therefore, parties may remain continue to be in possession of the respective portion, (Downloaded on 11/11/2023 at 09:05:09 PM) [2023:RJ-JP:25493] (38 of 38) [CFA-3/1991] whereever, they are in possession for the house in question, as stated in the plaint.

37. Point No.III stands decided accordingly.

38. The upshot of discussion is that the present first appeal succeeds and is hereby allowed. The impugned decree for possession, passed in favour of plaintiff and against defendant is hereby set aside. The civil suit filed by respondent plaintiff Smt. Pooni Bai is dismissed in toto. There is no order as to costs.

39. Decree be framed accordingly.

40. Stay application and other pending application(s), if any, stands disposed of.

41. Record of the trial Court be sent back forthwith.

(SUDESH BANSAL),J NITIN/ (Downloaded on 11/11/2023 at 09:05:09 PM) Powered by TCPDF (www.tcpdf.org)

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Rajasthan High Court - Jaipur