Himachal Pradesh High Court
Vidya Devi vs Rohanshu (Deceased) Through Lrs on 24 May, 2024
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.432 of 2005 Reserved on : 14.03.2024 Decided on : 24.05.2024 .
Vidya Devi .......Appellant Versus Rohanshu (deceased) through LRs .......Respondents Coram The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting? Yes For the appellant : Mr. G.C. Gupta, Senior Advocate, with Ms. Meera Devi, Advocate.
For the respondents : Mr. Rajinder Verma, Advocate for respondents No.1(n)(i) to 1(n)(iv) Virender Singh, Judge Appellant-Vidya Devi, has preferred the Regular Second Appeal, against the judgment and decree dated 24.03.2005, passed by the Court of learned Additional District Judge, Ghumarwin, District Bilaspur, H.P. (hereinafter referred to as the 'learned First Appellate Court'), ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 2 in Civil Appeal No.19/13 of 2004/97, titled as 'Shagli Ram (deceased) through Vidya Devi Versus Rohanshu and Others'.
2. Vide judgment and decree dated 24.03.2005, the .
learned First Appellate Court has dismissed the appeal, preferred by Shagli Ram (deceased) through Vidya Devi, which has been filed, against the judgment and decree dated 29.05.1997, passed by the Court of learned Senior Sub-
Judge, Bilaspur, Camp at Ghumarwin (hereinafter referred to as the 'learned trial Court') in Civil Suit No.139-1 of 1995/89, titled as 'Rohanshu Versus Sagli Ram (deceased) through LRs'.
3. Vide judgment and decree dated 29.05.1997, the learned trial Court has decreed the suit, filed by Rohanshu and granted the following relief:-
"36. In the light of my findings on the issues above, the plaintiff is entitled to the relief, the suit of the plaintiff is, therefore, decreed with costs to the effect that the plaintiff is owner in possession of the suit land by inheritance, and the mutation No. 127 dated 22.11.1984 attested in favour of the plaintiff is legal and the order of the Sub Divisional Collector, Ghumarwin dated 13.02.1989 vide which said mutation was set-aside is declared illegal, hence, null and void and in operative qua the right, title and interest of the plaintiff. The alleged Will of Sh. Rabbal since deceased in favour of the defendant is also declared illegal and thus in- operative qua right, title and interest of the plaintiff. The defendant/his L.Rs in the present suit as such are permanently restrained from causing interference in any manner in the ownership and possession of the plaintiff. Let a decree sheet be prepared accordingly and the file after completion be consigned to record room."::: Downloaded on - 24/05/2024 20:36:31 :::CIS 3
4. For the sake of convenience, the parties to the present lis are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.
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5. Brief facts, necessary for the adjudication of the present appeal, as borne out, from the record, are as under:-
5.1. Plaintiff-Rohanshu has filed the suit seeking the relief of declaration to the effect that she has become owner in possession of the land, measuring 5 bigha 6 biswa, comprising in rKhasra No.147/16, 148/16, 124/150, 157/153, Khewat No.29 min, Khatoni No.28-30 min, situated in Village Dharoti, Pargna Sunhani, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter referred to as the 'suit land'), by way of inheritance.
5.2 Plaintiff-Rohanshu has sought declaration to the effect that order dated 13.02.1989, passed by the Collector, Ghumarwin, is null and void and without jurisdiction. She has also sought the relief of injunction, restraining defendant from interfering the suit land. In the alternative, she has sought the relief of possession.
5.3 According to the stand, taken by the plaintiff-
Rohanshu, she has acquired the ownership rights, over the suit land, being wife of Rabbal, son of Sh. Roda. In this ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 4 regard, Mutation No.127 dated 22.11.1984 was sanctioned, after the death of Rabbal.
5.4 Elaborating her stand, it is the case of the plaintiff .
that her husband Rabbal had expired on 07.06.1984 and at that time, he was about 90 years of age. He fell ill in the month of January, 1975 and he died issueless.
5.5 During the ailment of the plaintiff, as well as, her husband Rabbal, both of them were looked after by Bhag Singh, son of Sohan Singh. When Rabbal was ill, he had lost his control over his mind. Even, after the death of Rabbal, Bhag Singh continued to look after the plaintiff and the whole suit land.
5.6 According to the plaintiff, in lieu of the services, rendered by Bhag Singh, she has executed a registered gift deed, in respect of the land, measuring 2 bigha 18 biswa, comprising in Khasra No.154/150, 157/153, Khewat No.29 min, Khatoni No.30 min situated in Village Dharoti, Pargna Sunhani, Tehsil Ghumarwin, District Bilaspur (H.P.).
Mutation, in this regard, was also entered in the revenue record and was sanctioned on 18.01.1986. The said Bhag Singh constructed a house and re-claimed the land, after obtaining the possession, in pursuance of the gift deed.
::: Downloaded on - 24/05/2024 20:36:31 :::CIS 55.7 Thereafter, defendant had filed Revenue Appeals bearing No.67/2 of 1986 and 68/2 of 1986, against Mutation No.127 dated 22.11.1984 and Mutation No.130 dated .
18.01.1986, before the Collector, Sub-Division Ghumarwin, District Bilaspur (H.P.), claiming that Rabbal had executed the Will, in his favour.
5.8 The said appeals are stated to be barred by limitation, but, according to the plaintiff, the Collector had accepted the appeals and set aside the mutations, as referred above.
5.9 It is the further case of the plaintiff that Rabbal had never executed any Will in favour of the defendant. The Will is also stated to be result of misrepresentation and fraud, as well as, undue influence.
5.10 In the nutshell, it is the case of the plaintiff that the alleged Will was not consciously executed document, by Rabbal. The transfer of the suit land being nauter land is also stated to be banned, by the Government, at the settlement time, as such, according to the plaintiff, Rabbal was not competent to transfer the same.
6. On the basis of above facts, the plaintiff has sought the relief, as claimed in the plaint.
::: Downloaded on - 24/05/2024 20:36:31 :::CIS 67. When put to notice, the suit has been contested/resisted by the defendant, by filing the written statement.
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7.1 In the written statement, defendant has taken the preliminary objections, with regard to the fact that the suit is not maintainable; that the suit has not been valued properly for the purpose of Court fee and jurisdiction; that the Civil Court has no jurisdiction to hear or decide the suit; that the plaintiff has no cause of action; that the suit is barred; that the plaintiff has no locus standi to file the suit; that the plaintiff is estopped to file the suit, by her own acts and conducts and that the suit is bad for non-joinder and mis-
joinder of necessary parties.
7.2 On merits, suit has been contested, by asserting the fact that Rohanshu is neither the owner of the suit land nor in possession of the same, as alleged.
7.3 It is the further case of the defendant that Mutation No.127 dated 22.11.1984 has been set aside, by the learned Sub-Divisional Officer (Civil), vide order dated 13.02.1989, as the same was attested, without issuing notice to the defendant.
7.4 It is the further case of the defendant that Rabbal was not married with the plaintiff and according to him, she ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 7 was concubine of Rabbal. Rabbal, who was real uncle of the defendant, was looked after by him. Rabbal had executed a Will, in favour of the plaintiff, on 24.12.1979, which was .
registered, with the Office of Sub-Registrar, Ghumarwin.
7.5 As per the defendant, by virtue of the Will, in question, movable and immovable properties of Rabbal, situated in Village Dharoti, Pargana Sunhani, Tehsil Ghumarwin, District Bilaspur (H.P.) and in Village Baithrin, Tehsil and District Una (H.P.), have been bequeathed, in his favour.
7.6 The stand of the plaintiff, with regard to the ailment of Rabbal, has also been controverted, by pleading that till 1984, Rabbal was hale and hearty. However, before his death, he suffered a heart-attack and expired on 07.06.1984, at the age of 75 years.
7.7 The stand of the plaintiff, qua the fact that Rabbal was looked after by Bagh Singh, has also been denied by the defendant, by asserting that it was the defendant, who used to look after his uncle. The last rites of Rabbal are also stated to be performed by the defendant. The gift deed, allegedly executed by plaintiff, in favour of Bagh Singh, is also stated to be null and void and has no bearing, on the rights of the defendant.
::: Downloaded on - 24/05/2024 20:36:31 :::CIS 87.8 Other contents, of the plaint, have also been denied. Thus, a prayer has been made to dismiss the suit.
8. Plaintiff has filed the replication, to the written .
statement, filed by the defendant, denying the preliminary objections, as well as, the contents of the written statement, by virtue of which, the suit has been contested, by re-
asserting the contents, of the plaint.
9. From the pleadings of the parties, following issues were framed by the learned trial Court, vide order dated 21.02.1992:-
"1. Whether the plaintiff is owner in possession of suit land after the death of Sh. Rabbal being his wife and by way of inheritance as alleged? OPP
2. Whether the order dated 13.02.1989 passed by Collector is wrong and illegal? OPP
3. Whether Sh. Rabbal executed a valid will in favour of the defendant as alleged? OPD
4. Whether the suit is not maintainable? OPD
5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
6. Whether this Court has no jurisdiction to hear and decide the suit? OPD
7. Whether the plaintiff has no cause of action? OPD
8. Whether the plaintiff is estopped to file the suit by her own acts, conducts, omissions and commissions? OPD
9. Whether the suit is bad for non-
joinder and mis-joinder of necessary parties? OPD
10. Relief."::: Downloaded on - 24/05/2024 20:36:31 :::CIS 9
10. After framing of the issues, parties to the lis were directed to adduce evidence.
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11. After closure of the evidence and upon hearing learned counsel for the parties, the learned trial Court has decreed the suit, as referred above.
12. It is worthwhile to record herein that during the pendency of the lis, before the learned trial Court, defendant-
Sagli Ram had expired and his mother, his widow and two sons were brought on record as defendants No.(i) to (iv).
13. Feeling aggrieved from the said judgment and decree dated 29.05.1997, passed by the learned trial Court, widow of defendant-Sagli Ram and his LRs had preferred the Civil Appeal, before the learned First Appellate Court, which was dismissed, vide judgment and decree dated 24.03.2005.
14. Being dis-satisfied from the said judgment and decree dated 24.03.2005, passed by the learned First Appellate Court, the present Regular Second Appeal has been preferred before this Court, by the appellants, on the ground that Smt. Rohanshu could not prove that she was legally-
wedded wife of Sh. Rabbal. According to the appellants, even, plaintiff-Rohanshu had not appeared before the learned trial Court as a witness and the evidence, so adduced, by her, with ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 10 regard to her alleged marriage, with Rabbal, is, too, short to prove the factum regarding marriage of plaintiff-Rohanshu with Rabbal.
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15. The findings of the learned Courts below, qua the fact that plaintiff-Rohanshu was the legally-wedded wife of Sh. Rabbal, are also stated to be not, sustainable, in the eyes of law.
16. The Will, which was executed, by Rabbal, in favour of defendant-Sagli Ram, according to the appellant, has wrongly been discarded by the learned Courts below, despite the fact that the same was duly registered, with Sub-
Registrar, Ghumarwin, who has made endorsement, regarding the mental state of Sh. Rabbal. Not only this, according to the appellants, it has been proved that the Will was read over and explained to Sh. Rabbal. The Will is stated to be duly proved by DW-4 Amar Singh, as well as, DW-3 Sukh Dev.
17. Supporting the Will, findings of the learned Courts below have been challenged, by the appellants, as according to them, the statements of DW-5 Dina Nath, as well as, PW-1 Bhag Singh and PW-2 Dharam Singh, have been misread, by the learned Courts below.
::: Downloaded on - 24/05/2024 20:36:31 :::CIS 1118. On the basis of above facts, a prayer has been made to allow the appeal, by setting aside the impugned judgment and decree, passed by the learned trial Court, .
which was affirmed by the learned First Appellate Court.
19. The present appeal has been admitted, by this Court, on 23.08.2005, on the following substantial questions of law;-
"1. Whether the execution of the will in favour of the deceased in favour of Late Shri Shagli Ram has been proved by the appellant and the findings to the contrary to the Courts below is the result of non consideration of the material evidence especially the statements of DW 3 and DW 4 and the fact that the will is a registered document?
2. Whether the courts below are justified in holding the respondent No.1 to be legally wedded wife of the deceased Shri Rabbal in the absence of any evidence under Section 50 of the Indian Evidence Act and non appearance of respondent No.1?"
20. In order to decide the controversy, involved in the present appeal, it would be just and appropriate, for this Court, to discuss the oral, as well as, documentary evidence, adduced by the parties, before the learned trial Court.
21. Firstly, plaintiff has examined Bhag Singh, General Power of Attorney of plaintiff-Rohanshu Devi as PW-1. He has deposed that Rabbal had expired on 07.06.1984 and thereafter, the estate left by him had come in ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 12 the possession of Rohanshu Devi. During his lifetime, Rabbal was being looked after, by this witness, as well as, his wife.
Rohanshu Devi has executed the gift deed in favour of this .
witness and thereafter, he has constructed the house over it.
Lastly, he has deposed that Rabbal has not executed any Will in favour of the defendant, nor he has ever seen Sagli Ram in Village Dharoti.
21.1 This witness has admitted, in the cross-
examination, that regarding the suit land, he has filed the case against Sagli Ram, which is pending adjudication. In addition to this, he has also deposed regarding the feeble condition of Rohanshu Devi. Further, he has deposed that for the last 2-3 months, from the date, when he appeared in the witness box, her ailment has aggravated. He further deposed that Rohanshu Devi has executed the Will in his favour.
Further, he has denied that plaintiff was not the wife of Rabbal, rather, she was his concubine. He has feigned his ignorance about the marriage of plaintiff with Rabbal. Rabbal was also having the property in District Una, regarding which, he has filed the case, before the Sub-Divisional Magistrate, Una. He has denied that on 24.12.1979, Rabbal had executed the Will, regarding the suit land, in favour of his nephew (defendant). In addition to this, he has denied all ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 13 other suggestions, which were put to him, with regard to the alleged Will, executed in favour of the defendant.
22. PW-2 Dharam Singh, has deposed that he is .
Pradhan of Village Dharoti, which falls under Neti Panchayat.
He further deposed that Rabbal was known to him.
Rohanshu-plaintiff was his wife. After the death of Rabbal, Rohanshu became the owner in possession of the land/estate, left by him, which was being cultivated, by Bhag Singh. Rohanshu has executed the Hibba, in favour of Bhag Singh. Rohanshu and Rabbal were being looked after, by Bhag Singh. As per the further deposition of this witness, defendant-Sagli Ram was not seen in the area. Rabbal remained ill for long time and his mental state became week.
He had fallen ill in the year 1975 and his last rites were performed, by Bhag Singh.
22.1 In the cross-examination, this witness deposed that he was earlier serving in Army and superannuated from service, in the year 1974. Rabbal had expired in the year 1985. He has feigned his ignorance that in the year 1985, Rabbal had executed the Will, in favour of the defendant.
When, the question was put to him, with regard to the marriage of plaintiff with Rabbal, he stated that at that time, he was toddler.
::: Downloaded on - 24/05/2024 20:36:31 :::CIS 1423. PW-3 Prem Singh deposed that he is the Lamberdar of the village. According to him, plaintiff is the wife of Rabbal and gift deed is stated to have been executed in .
favour of Bhag Singh. The documents were prepared by the Deed Writer, which were read over to the plaintiff, who, has accepted the same as correct and thereafter, had put her thumb impression over it. Thereafter, this witness and Bhishan Chand had put their thumb impressions. He has proved the gift deed Ex.PW5/A. Suit land is stated to be in possession of Bhag Singh and plaintiff.
24. PW-4 Jiunu Ram also deposed that the plaintiff is the wife of Rabbal and she is owner in possession of the estate of Rabbal. Part of the land was given to Bhag Singh.
Denying the suggestion that the plaintiff was not the wife of Rabbal, this witness has deposed that he was present in their marriage.
25. PW-5 Chuni Lal Thakur deposed that he is the Secretary of the Gram Panchayat. He has proved the documents Ex.P5 and Ex.P6 i.e. copies of the Parivaar Register. These entries were made in the year 1961.
25.1 In the cross-examination, this witness deposed that he was not born in the year 1961. He has further deposed that the relevant entry, regarding the family of ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 15 Rabbal, has been made, on the next page, upon which, verification has been done. He could not spell out, as to who has made the relevant entries, in the Parivaar Register. So far .
as the marriage registration record is concerned, according to him, entries were made, from the year 1972 and prior to that, no such register was maintained there. He has feigned his ignorance that Rohanshu was shown to be the wife of Chetu, in the relevant register, prior to the year 1972. He could not spell out as to when, the entries in the Parivaar Register, copies of which are Ex.P5 and Ex.P6, were made, as, no date has been mentioned on the said documents.
26. PW-6, Bhagat Ram, deposed that he was posted as Secretary of the Gram Panchayat, from the year 1952 to 1962 and thereafter, from the year 1979 to 1984. The original entries in the Parivaar Register, copies of which are Ex.P5 and Ex.P6, were made by him. The entries in the Parivaar Register are stated to have been made, on the information of the head of the family. In the relevant register, on page No.376, after house No.17, the entries of the family of Mahanti and thereafter, entries, with regard to the family of Munshi Ram, have been made. House of Rabbal was situated at a distance of about 100 mts., from the house of this person. Rabbal has disclosed to him that Rohanshu is his wife. The entries, with ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 16 regard to the family of Rabbal, son of Roda, are admitted to be made with different inks. Rest, he has denied all other suggestions, which were put to him, by learned counsel, .
appearing for the defendant.
27. To rebut this evidence, defendant has examined Santosh Singh as DW-1. According to him, Sagli Ram had expired, in the month of March, 1995 and he was his General Power of Attorney. Rabbal has executed the Will, in favour of Sagli Ram. The suit land is stated to be in possession of this witness. Rabbal has not solemnized any marriage.
27.1 As per this witness, Rohanshu was concubine of Rabbal. Rabbal is stated to have expired, due to the heart-
attack and his last rites were performed by Sagli Ram. The suit land is about 5-6 bigha, which was allotted to Rabbal.
This witness could not spell out the period, for which, Rohanshu lived with Rabbal. According to him, Rohanshu was not the wife of Rabbal, but, was wife of Chetu Ram. He has also admitted that Sagli Ram was residing at Ferozpur and last rites of Rabbal had been performed for 15 days and Sagli Ram, after the death of Rabbal, remained in village, for about 4-5 days.
28. DW-2 P.R. Sharma, Advocate has deposed that Will Ex.DW2/A was scribed by him, at the instance of Rabbal.
::: Downloaded on - 24/05/2024 20:36:31 :::CIS 17At that time, attesting witnesses Ranjit and Dina Nath were present. The Will was accepted to be correct by Rabbal and at that time, his mental condition was good. Rabbal has put his .
signatures over the Will Ex.DW2/A, in the presence of witnesses. Thereafter, the witnesses had signed, in the presence of Rabbal. This witness has feigned his ignorance about the fact that witness Dina Nath was his Clerk, in the year 1979, but, again stated that he was with him as Clerk for about 4-5 years. Rabbal was not personally known to him.
Paper for scribing the Will was brought by Rabbal. Will was scribed, during the day time. Rest, this witness denied all other suggestions, which were put to him, by learned counsel, appearing for the plaintiff.
29. DW-3 Sukhdev, Registration Clerk, Office of Assistant Collector, Ghumarwin, deposed that Will Ex.DW2/A was registered, with the Office of Registrar, Ghumarwin, on 24.12.1979. He has also proved the endorsements Ex.DW3/A and Ex.DW3/B. 29.1 In the cross-examination, this witness has deposed that Will was not entered, in his presence.
30. DW-4 Amar Singh deposed that he is acquainted with the signatures of Sh. Sunder Singh, Sub-Registrar, as, he worked with him. He has proved his signatures as ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 18 Ex.DW3/A. The endorsement was made, by this witness, at the instance of Sub-Registrar. Rabbal and witness Ranjit Singh had signed, in the presence of this witness and in the .
presence of Sub-Registrar. Sh. Sunder Singh, the then Sub-
Registrar has now expired. Neither Rabbal nor Ranjit Singh was personally known to this witness. On 24.12.1979, this witness was working as Ahlmad, in SDM office.
31. DW-5, Dina Nath, deposed that earlier, he was working as Clerk with Sh. Jeet Ram, Advocate, then, with Sh.
P.R. Sharma, Advocate and on the date, when, he appeared in the witness-box, according to him, he was working with Sh.
P.S. Thakur, Advocate. He further deposed that Rabbal was known to him, who got scribed his Will through Sh. P.R. Sharma, Advocate. However, he could not disclose about the person, in whose favour, the Will was executed. However, he proved the Will Ex.DW2/A. According to him, at the relevant time, Rabbal was having sound-disposing mind. Apart from this witness, another witness Ranjit Singh was also present there.
31.1 As per further deposition of this witness, the Will was read over, which has been accepted to be correct by Rabbal and thereafter, in the presence of witnesses, he has put his signatures. Thereafter, this witness and witness ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 19 Ranjit Singh put their signatures, over the Will, in the presence of Rabbal. This witness has stated that the Will was produced, before the Sub-Registrar, by Numberdar Ranjit.
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Thereafter, this witness, Ranjit Singh and Rabbal put their signatures, over the Will. Rabbal had come to Sh. P.R. Sharma, Advocate, voluntarily. Rohanshu (plaintiff) remained with Rabbal, till his death. This witness has also admitted that Rabbal was being looked after, by Bhag Singh, during his lifetime and that now, Bhag Singh is looking after Rohanshu Devi. After the death of Rabbal, his last rites were performed, by Bhag Singh. He has not seen defendant-Sagli Ram, looking after Rabbal or Rohanshu Devi. This witness could not disclose about the person, in whose favour, the Will was executed, nor, could disclose about the number of pages of the Will. He has admitted that Rabbal was not physically and mentally fit.
32. DW-6, Salig Ram, has deposed that Rohanshu was his paternal aunt (Bua), who was married with Chetu, resident of Varthi. Rohanshu was not married with Rabbal.
During the lifetime of Chetu, Rohanshu was having illicit relations with Rabbal.
32.1 In the cross-examination, this witness has admitted that at the time of alleged marriage of Chetu with ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 20 Rohanshu, he was not born. Chetu had expired about 25/30 years ago. According to him, Rohanshu was not married with Rabbal, however, she had started residing with Rabbal, .
during the lifetime of Chetu. This witness has feigned his ignorance about the fact that Rabbal and Rohanshu were residing as husband and wife.
33. Apart from this, parties to the lis have also adduced the documentary evidence.
33.1 Ex.P1 is the Jamabandi for the year 1985-86, Ex.P2 is the certified copy of order, passed by the Sub-
Divisional Collector, Ghumarwin, Ex.P3 is the copy of Mutation No.127 dated 22.11.1984, Ex.PW3/A is the gift deed, Ex.P4 is the General Power of Attorney, Ex.P5 & Ex.P6 are the copies of Parivaar Registers. Ex.D1 is the copy of Mutation No.2182, Ex.DA is the General Power of Attorney, Ex.DB to Ex.DF are the signatures of witnesses, testator etc. on Will Ex.DW2/A. Ex.DW3/A & Ex.DW3/B are the signatures of Sub-Registrar, Ghumarwin on Will Ex.DW2/A and Ex.PA & Ex.PB are the voter lists.
34. This is the entire evidence, led by the parties.
35. As per the stand, taken by the parties, before the learned trial Court, plaintiff-Rohanshu is claiming herself to be the widow of Rabbal and she has asserted her ownership ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 21 and possession over the suit land, after the death of Rabbal.
Plaintiff Rohanshu has asserted her claim, being widow and Class-I legal heir of Rabbal. Not only this, she has also sought .
the declaration, qua the order dated 13.02.1989, passed by the Collector, on the ground that the said order is illegal, wrong and without jurisdiction.
36. The suit land was inherited by Rohanshu, on the basis of Mutation No.127 dated 22.11.1984. The said mutation was challenged by Sagli Ram, who claimed himself to be the nephew of Rabbal, on the ground that Rabbal has executed the registered Will dated 22.12.1979, in his favour.
The said appeal has been decided on 13.02.1989. The copy of the said order is Ex.P2, according to which, order dated 22.11.1984, sanctioning the mutation, has been set aside by directing the revenue authorities to enter the mutation, in the name of defendant-Sagli Ram, on the basis of the registered Will.
37. According to the stand taken by the parties, plaintiff-Rohanshu claimed herself to be the owner in possession of the suit land, on the basis of the natural succession, being widow of Rabbal and the said status of Rohanshu has been denied by defendant-Sagli Ram, whereas, ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 22 the defendant has put forward the plea of registered Will, which is stated to be executed by Rabbal, in his favour.
38. Since, Rohanshu has approached the Court .
seeking declaration qua the ownership and possession of the suit land and to declare the order dated 13.02.1989, passed by the learned Collector, Ghumarwin, as illegal, wrong and void, on the basis of the fact that she is the wife of Rabbal. As per the pleadings, Rabbal had expired on 07.06.1984.
39. According to her further stand Rabbal fell ill, in the year 1975 and due to his illness, he expired on 07.06.1984 and during that period, he and plaintiff were looked after by Bhag Singh.
40. The plaintiff has challenged the order dated 13.02.1989, Ex.P2, on the basis of which, the mutation, sanctioned in favour of Rohanshu, by way of natural succession, was set aside and the orders have been passed to enter and sanction the mutation, in favour of Sagli Ram, on the basis of the registered Will. The plaintiff has also put forward the feeble, mental and physical condition of Rabbal, as a ground to seek the declaration.
41. The said stand has been contested/resisted by the defendant by taking a plea that Rohanshu was neither the wife of Rabbal, nor she is owner in possession of the suit ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 23 land. Asserting the fact that Mutation No.127 dated 22.11.1984, attested by the Assistant Collector, Grade-II, in favour of plaintiff-Rohanshu, was set aside, by the Sub-
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Divisional Officer (Civil), as, the same has been attested, behind his back and without issuing any notice to him, he has prayed that the same is not binding upon him.
42. Not only this, he has also put forward the plea that Rohanshu was not the wife of Rabbal, but, was concubine of Rabbal. The said Rabbal, who is claimed to be the uncle of defendant, executed the registered Will, on 24.12.1979. When replication was filed, the plaintiff has asserted the fact that she is the wife of Rabbal, by denying the stand of the defendant that the plaintiff is the concubine of Rabbal.
43. The controversy, in the present case, revolves around the fact as to whether plaintiff-Rohanshu has been able to prove the fact that she is owner in possession of the suit land, being wife of Rabbal.
44. To probabilize the said stand, plaintiff has examined her General Power of Attorney-Bhag Singh, in whose favour, she had executed a gift deed.
45. As per the version of Bhag Singh, plaintiff-
Rohanshu is owner in possession of the suit land and ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 24 according to him, he, along with, his wife, used to look after Rabbal and his wife (Rohanshu Devi). He has feigned his ignorance with regard to the date, when the alleged marriage .
of Rohanshu was solemnized with Rabbal.
46. Apart from this, PW-2 Dharam Singh also stated that Rohanshu was the wife of Rabbal and after his death, Rohanshu became the owner in possession of the suit land.
This witness, likewise PW-1, could not disclose the month and year of the alleged marriage of Rohanshu with Rabbal.
47. PW-4 Jiunu Ram, although, stated that plaintiff was the wife of Rabbal and according to him, her marriage was solemnized in his presence, but, he could not tell about the date of their marriage.
48. Admittedly, Rohanshu has not put appearance, in the witness box, to depose about her case, especially, about the fact that she was married to Rabbal and her marriage with Rabbal had subsisted, till his death. The stray sentence of deposition, by PW-1 Bhag Singh, GPA of Rohanshu, is too short to hold that the plaintiff was married with Rabbal.
49. The learned trial Court has decided issue No.1, in favour of the plaintiff, on the basis of the statements of PW-1, PW-2, PW-3, PW-4, PW-5, PW-6 and documentary evidence Ex.P5 and Ex.P6. Ex.P5 was produced and proved by PW-5 ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 25 Chunni Lal Thakur, Secretary, Gram Panchayat. This witness could not explain, as to when the entry, in Parivaar Register Ex.P5 and Ex.P6, was made.
.
50. PW-6 Mangat Ram is the person, who has made the entry in the Parivaar Register, copies of which are Ex.P5 and Ex.P6. In the examination-in-chief, this witness has deposed that it has been disclosed to him by Rabbal that Rohanshu is his wife.
51. Till the conclusion of the proceedings, before the learned trial Court, Rohanshu was alive and she had expired on 21.12.2005, when the lis was pending, before this Court.
Non-appearance of Rohanshu, in the witness-box, is fatal for her case. While holding so, the view of this Court is being guided, by the decision of the Hon'ble Supreme Court, in unreported case, bearing Civil Appeal No.1725 of 2010, titled as Iqbal Basith and Others Versus N. Subbalakshmi and Others. Relevant paragraph 9, of the said judgment, is reproduced, as under:-
"9. The present suit was instituted by the appellants in 1974 seeking permanent injunction as the respondents attempted to encroach on their property. The suit schedule property was described as no. 44/6. The respondents in their written statement claimed ownership and possession of property no. 42, acknowledging that other properties lay in between. A feeble vague objection was raised, but not pursued, questioning the title of the appellants. The respondents raised no genuine objection to the validity or ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 26 genuineness of the government documents and the registered sale deeds produced by the appellants in support of their lawful possession of the suit property. The original defendant no.1 did not appear in person to depose, and be cross examined in the suit. His younger .
brother deposed on the basis of a power of attorney, acknowledging that the latter had separated from his elder brother. No explanation was furnished why the original defendant did not appear in person to depose. We find no reason not to draw an adverse inference against defendant no.1 in the circumstances. In Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457 this Court observed as follows:
"17.....Having not entered into the witness-box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872."
52. The Hon'ble Supreme Court, in another case titled as 'Ishwar Bhai C. Patel Alias Bachu Bhai Patel Versus Harihar Behera and Another', reported in (1999) 3 Supreme Court Cases 457, has held that when a party does not present himself/herself for cross-examination and refused to enter in the witness-box in order to refute allegations against him/her, adverse presumption is to be drawn.
Relevant paragraphs 17 to 29, of the said judgment, are reproduced, as under:-
"17. Admittedly respondent No.1 had an account in the Central Bank of India Limited, Sambalpur Branch which his father, namely, respondent No.2, was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by respondent No.2. It has been given out in the statement of respondent No.2 that when the appellant had approached him for a loan of Rs.7,000/-, he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of respondent No.1 ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 27 and it was on his suggestion that the respondent No.2 issued the cheque to the appellant which the appellant, admittedly, encashed. This fact has not been controverted by the appellant who did not enter the witness box to make a statement on oath denying the .
statement of defendant (respondent) No.2 that it was at his instance that respondent No.2 had advanced the amount of Rs. 7,000/- to the appellant by issuing a cheque on the account of defendant (respondent) No.1. Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act, 1872.
18. As early as in 1927, the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh and another, AIR 1927 Privy Council 230, took note of a practice prevalent in those days of not examining the parties as a witness in the case and leaving it to the other party to call that party so that the other party may be treated as the witness of the first party. Their Lordships of the Privy Council observed as under:-
"Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's, own witness.
This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal, calling it 'a vicious practice, unworthy of a high-toned or reputable system of advocacy'."
19. They further observed as under:-
"But in any view her non-appearance as a witness, she being present in Court, would be the strongest possible circumstance going to discredit the truth of her case."
20. Their Lordships also took note of the High Court finding which was to the following effect:-
"It is true that she has not gone into the witness box, but she made a full statement before Chaudhri Kesar Ram, and it does not seem likely that her evidence before the Subordinate Judge would have added materially to what she had said in the statement."
21. They observed:-
"Their lordships disapprove of such reasoning. The true object to be achieved by a Court of justice can only ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 28 be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination."
.
22. This decision has since been relied upon practically by all the High Courts. The Lahore High Court in Kirpa Singh vs. Ajaipal Singh and others, AIR 1930 Lahore 1, observed as under:-
"It is significant that while the plaintiffs put the defendant in the witness-box they themselves had not the courage to go into the witness-box. Plaintiffs were the best persons to give evidence as to the "interest"
possessed by them in the institution and their failure to go into the witness-box must in the circumstances go strongly against them."
23. This decision was also relied upon by the Bombay High Court in Martand Pandharinath Chaudhari vs. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97, which observed as under:-
"It is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case."
24. The Lahore High Court in two other cases in 1934, namely, Bishan Das vs. Gurbakhsh Singh and Puran Das Chela vs. Kartar Singh took the same view.
25. A Divison Bench of the Patna High Court in Devji Shivji vs. Karsandas Ramji and another, relying upon the decision of the Privy Council in Sardar Gurbakhsh Singh vs. Gurdial Singh and another (supra) and the Madhya Pradesh High Court in Gulla Kharagjit Carpenter vs. Narsingh Nandkishore Rawat, have also taken the same view. The Madhya Pradesh High Court also relied upon the following observation of the Calcutta High Court in Pranballav Saha & Anr. vs. Sm. Tulsibala Dassi & Anr.:
"The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny."
26. The Allahabad High Court in Arjun Singh vs. Virender Nath and another, AIR 1971 Allahabad 29, held that :-
"The explanation of any admission or conduct on the part of a party must, if the party is alive and capable of ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 29 giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give."
27. It was further observed that:-
"If such a party abstains from entering the witness .
box it must give rise to an inference adverse against him.
28. A Division Bench of the Punjab & Haryana High Court also in Bhagwan Dass vs. Bhishan Chand and others, drew a presumption under Section 114 of the Evidence Act that if a party does not enter into the witness box, an adverse presumption has to be drawn against that party.
29. Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him. Since it was specifically stated by respondent No.2 in his statement on oath that it was at the instance of the appellant that he had issued the cheque on the account of respondent No.1 in the Central Bank of India Ltd., Sambalpur Branch, and the appellant, admittedly, had encashed that cheque, an inference has to be drawn against the appellant that what he stated in the written statement was not correct. In these circumstances, the High Court was fully justified in decreeing the suit of respondent No.1 in its entirety and passing a decree against the appellant also."
53. Even otherwise, the evidence of PW-1 is too short to prove the alleged marriage of Rohanshu with Rabbal. Not only the evidence of PW-1, but, also the evidence of PW-2, PW-3 and PW-4, is too short to fulfill the ingredients of Section 50 of the Evidence Act. Regarding the evidence of PW-1, it is no longer res integra that he cannot depose in place of the principal.
54. The Hon'ble Supreme Court in case S. Kesari Hanuman Goud Versus Anjum Jehan & Ors., reported in ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 30 2013(3) ICC 1, has elaborately discussed the provisions of Order III Rules 1 and 2 of CPC and held that the Power of Attorney holder cannot depose for principal, in respect of a .
matter, as regards which, the principal is entitled to be cross-
examined. Relevant paragraph 13, of the said judgment, is reproduced, as under:-
"13. It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal.
Provisions of Order III, Rules 1 and 2 CPC empower the holder of the power of attorney to "act" on behalf of the principal. The word "acts" employed therein is confined only to "acts" done by the power-of-attorney holder, in exercise of the power granted to him by virtue of the instrument. The term "acts", would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross- examined."
55. It is no longer res integra that the General Power of Attorney holder can appear, plead and act, on behalf of the party, but, he cannot become a witness on behalf of the party.
When, he is stepping into the witness-box, then, he is appearing in his own capacity. In this case, no steps have been taken to record the evidence of Rohanshu, even by appointing the Local Commissioner to record her evidence.
The term 'acts' as used in Rule 2 of Order III, does not include ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 31 to depose about those facts, which are in the personal knowledge of the plaintiff. PW-1 Bhag Singh has not produced any documentary proof any physical or mental incapacity of .
Rohanshu to step into the witness-box. Even, as per the provisions of Section 119 of the Evidence Act, the evidence of dumb witness could be recorded.
56. The Hon'ble Supreme Court, in case Vidhyadhar Vs. Mankikrao & Anr., reported in, 1999(2) Civil Court Cases 91 (S.C.), has elaborately discussed the provisions of Section 114 of the Evidence Act and held that the non-
appearance of the party, in the witness-box, gives an occasion to the Court to draw presumption against such party, by holding that the case, set up by him/her, is not correct.
Relevant paragraph 15, of the said judgment, is reproduced, as under:-
"15.Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bom.97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v.
Virender Nath and Anr. held that if a party abstains ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 32 from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors., AIR 1974 P&H 7, drew a presumption under Section 114 of the Evidence .
Act against a party who did not enter into the witness box."
57. Neither, the learned trial Court has considered the provisions of Order III Rules 1 and 2 of CPC, nor, the learned First Appellate Court has bothered to consider the effect of non-appearance of Rohanshu, in the witness-box. Since, Rohanshu has not appeared in the witness box to depose about her case, as such, this Court can consider the effect of her non-appearance in the witness box, in the Regular Second Appeal, filed under Section 100 of the CPC. While holding so, the view of this Court is being guided, by the Hon'ble Supreme Court, in case Rattan Dev vs Pasam Devi, reported in, 2003(1) ICC 215. Relevant paragraph 4, of the said judgment, is reproduced, as under:-
"4. In our opinion, the First Appellate Court was bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the Trial Court. While doing so, the First Appellate Court could have taken the factum of the non-examination of the plaintiff also into consideration. The manner in which the appeal has been disposed of by the First Appellate Court cannot be said to be satisfactory. Non- application of mind by the Appellate Court to other material, though available, and consequent failure of the Appellate Court to discharge its judicial obligation, did raise a question of law having a substantial impact on the rights of the parties, and therefore, the second appeal deserved to be heard on merits."::: Downloaded on - 24/05/2024 20:36:31 :::CIS 33
58. Plaintiff-Rohanshu, in the present case, has taken the plea that she is the legally-wedded wife of Rabbal. The said stand has been controverted by the defendants. In such .
a situation, the plaintiff had to prove the relationship by examining such witnesses, who had exclusive knowledge of relationship of the parties.
59. The Hon'ble Supreme Court in case Dolgobinda Paricha v. Nimai Charan Misra and others, reported in, AIR 1959 Supreme Court 914, has elaborately discussed the provisions of Section 50 of the Evidence Act. Relevant paragraph 6, of the said judgment, is reproduced, as under:-
"6. We proceed to consider the second question first. The Evidence Act states that the expression "facts in issue" means and includes any fact from which either by itself or in connection with other facts the existence, non- existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follow; "evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry ; and (2) all documents produced for the inspection of the Court. It further states that one fact is said to be relevant to another when the one is connected with the other in any one of the ways referred to in the provisions of the Evidence Act relating to the relevancy of facts. Section 5 of the Evidence Act lays down that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and 'of such other facts as are declared to be relevant and of no others. It is in the context of these provisions of the Evidence Act that we have to consider s. 50 which occurs in Chapter 11, headed "Of the Relevancy of Facts". Section 50, in so far as it is relevant for our purpose, is in these terms:-
"Section 50. When the Court has to form an opinion as to the relationship of one person to another, the opinion, ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 34 expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact On a plain reading of the section it is quite clear that it deals with relevancy of a .
particular fact. It states in effect that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the section clearly bring out the true scope and effect of the section. It appears to us that the essential requirements of the section are-(I) there, must be a case where the court has to form an opinion as to the relationship of one person to another; (2) in such a, case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3)but the person whose opinion expressed by conduct is relevant must be a, person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship ; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than more retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. We are of the view that the true scope and effect of section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299 at p. 309: (AIR 1943 Cal 76 at p. 80).
"It is only opinion as expressed by conduct'' which is made relevant. This is how the conduct comes in. The offered item of evidence is 'the conduct', but what is made admissible in evidence is 'the opinion', the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision : its immediate effect is only to move the Court to see if this conduct establishes any I opinion' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 35 infer 'the opinion ', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'.
When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, 'the opinion .
of a person'. It still remains for the Court to weigh such evidence and come to its own opinion as to the 'factum probandum'- as to the relationship in question."
We also accept as correct the view that S. 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship: 'Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201.
60. In order to prove the marriage of Rohanshu with Rabbal, the plaintiff has examined PW-1 Bhag Singh, who has simply stated that Rohanshu was wife of Rabbal. Similar statement has also been made by PW-2, PW-3 and PW-4. All the four witnesses have not stated that they used to treat Rohanshu and Rabbal as husband and wife and none of them have stated that they are from the same community, to which, the couple belongs. The voter list and copy of the Parivar Register are also too short to conclude that plaintiff-
Rohanshu and Rabbal were married or they were recognized as such by the persons, who are having the special knowledge of the relationship between Rohanshu and Rabbal.
60.1 PW-1 Bhag Singh has not deposed anything about his relationship with Rohanshu. PW-2 Dharam Singh is the resident of Baithi, whereas, Rabbal is stated to be the resident of Dharoti Pargna Sunhani Tehsil Jhandutta, District Bilaspur, H.P. Neither PW-1, nor PW-2, fall within the ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 36 definition of the person, having special knowledge of the relationship between the parties.
61. Even otherwise, the evidence of the plaintiff qua .
the fact that Rohanshu and Rabbal lived together as husband and wife, stands rebutted from the evidence of DW-1, who deposed, in the cross-examination, that Rohanshu was the wife of Chetu Ram. He has also denied the suggestion that Rohanshu was the wife of Rabbal.
62. The evidence r of DW-6 Salig Ram assumes significance, as, according to him, Rohanshu was his paternal aunt (bua) and was married with Chetu Ram resident of Varthi. He has specifically deposed that Rabbal had not solemnized marriage with Rohanshu and during the lifetime of Chetu Ram, Rohanshu had developed illicit relations with Rabbal. This factual deposition has been made in the examination-in-chief. Not only this, in the cross-examination, he has deposed that Rohanshu had not solemnized marriage with Rabbal and during the lifetime of Chetu Ram, she has started residing with Rabbal. No suggestion has been put to this witness that Rohanshu was not his paternal aunt (bua).
63. In such a situation, DW-6, who is the real nephew of Rohanshu, is the material witness and from his deposition, the presumption, in favour of the wedlock, cannot be drawn.
::: Downloaded on - 24/05/2024 20:36:31 :::CIS 37As such, the plaintiff cannot take the benefit of decision of the Hon'ble Supreme Court in the case titled as Badri Prasad V. Dy. Director of Consolidation, reported in, AIR 1978 SC .
1557, as relied upon, by the learned trial Court.
64. For getting the benefit of presumption, in favour of the wedlock, sine qua non is that the partners have lived together for a long spell as husband and wife. No such deposition has been made by any of the witnesses, rather, the evidence of DW-6 soiled the relationship of Rabbal and Rohanshu with illicit relations.
65. No suggestion has been put to DW-6 that Rohanshu and Rabbal were residing as husband and wife and there was no illicit relationship between them. The requirement of law is that a man and a woman live together as husband and wife. Law recognizes the valid relationship and not the illicit relationship, as deposed by DW-6. He is the best person, being the nephew of Rohanshu, to depose about the relationship. DW-6, being a person from the tradition-
bound society, has categorically stated about the illicit relationship of Rohanshu with Rabbal, during the lifetime of Chetu Ram, with whom, according to him, Rohanshu was married.
::: Downloaded on - 24/05/2024 20:36:31 :::CIS 3866. At the cost of repetition, the best person to depose about the pious relationship of husband and wife was the Rohanshu, who has not opted to put appearance in the .
witness-box for her cross-examination, by the defendant. Her non-appearance, before the Court, is fatal for her case.
67. In this case, substantial question of law No.1, in the considered opinion of this Court, does not fall within the definition of 'substantial question of law', as the defendant has not filed any counter-claim seeking declaration on account of the Will, executed in his favour, by Rabbal. So far as substantial question of law No.2 is concerned, in view of the discussion, made hereinabove, the same is decided in favour of the appellant-defendant and against the plaintiff.
68. No other point has been urged or argued, before this Court.
69. Considering all these facts, this Court is of the view that the judgment and decree, passed by the learned trial Court, is not sustainable in the eyes of law and learned First Appellate Court has also wrongly affirmed the same.
70. Consequently, the appeal is allowed, judgment and decree, passed by the learned trial Court, as affirmed by the learned First Appellate Court, is set aside and the suit, ::: Downloaded on - 24/05/2024 20:36:31 :::CIS 39 filed by the plaintiff, is ordered to be dismissed. No order as to costs.
71. Decree sheet be prepared accordingly.
.
72. Pending application(s), if any, also stand(s) disposed of.
73. Record be sent down.
(Virender Singh) Judge May 24, 2024 Gaurav Thakur ::: Downloaded on - 24/05/2024 20:36:31 :::CIS