Orissa High Court
Mst.Sukara Munda And Others vs Budhuni Munda And Others on 28 March, 2018
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A.No.31 of 1988
From the judgment and decree dated 23.11.1987 and 30.11.1987
respectively passed by Mr.B.N.Mishra, learned Additional District
Judge, Sambalpur in T.A.No.5 of 1986 confirming the judgment and
decree dated 6.1.1986 and 15.1.1986 passed by the learned Munsif,
Sambalpur in T.S.No.73 of 1982.
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Mst.Sukara Munda and others .... Appellants
Versus
Budhuni Munda and others .... Respondents
For Appellants -- Mr.Gautam Mishra,
Advocate
For Respondents -- None
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing :14.3.2018 & Date of Judgment:28.3.2018
Dr.A.K.RATH, J.This is a plaintiffs' appeal against confirming judgment. The suit was for declaration that defendant no.1 is not the legally married wife of late Hanu Munda.
2. The case of the plaintiffs is that the plaintiffs and defendant nos.1 and 2 are scheduled tribes. Plaintiff no.1 is the legally married wife of Hanu Munda. The marriage between them was solemnized according to caste and custom of Munda about 25 years back. Plaintiffs 2 to 7 are born out of their wedlock. Her husband 2 was serving as a Line Man under defendant no.3. While in service, he died on 15.5.1981 leaving behind him the plaintiffs. The plaintiffs claimed for payment of retiral dues of Hanu Munda. Defendant no.3 rejected their claim on the ground that defendant no.1 made a claim that she is the wife of Hanu Munda. Defendant no.1 is not the wife of Hanu Munda.
3. Defendant no.1 filed a written statement pleading, inter alia, that she is the legally married wife of Hanu Munda.
4. On the inter se pleadings of the parties, learned trial court framed five issues. Parties led evidence. Learned trial court dismissed the suit holding that plaintiff no.1 is not the legally married wife of Hanu Munda. Defendant no.1 is the legally married wife of Hanu Munda. Feeling aggrieved, the plaintiffs filed T.A.No.5 of 1986 before the learned Additional District Judge, Sambalpur. Learned appellate court came to hold that plaintiff no.1 and defendant no.1 both are the legally married wives of Hanu Munda and have equal interests over the properties including the service benefit left by Hanu Munda. It dismissed the appeal holding that in view of the frame of the suit with a negative prayer for a declaration that defendant no.1 was not the legally married wife of Hanu Munda, the plaintiffs are bound to be non-suited.
5. The Second Appeal was admitted on the substantial question of law enumerated in ground no.1 of the appeal memo. The same are:
"1) Whether in view of the finding of the lower Appellate Court to the effect that the defendant no.1 and plaintiff No.1 both are the legally married wives of Hanu Munda, the lower appellate court has committed an 3 illegality in dismissing the suit and the appeal and whether, the lower appellate court should have decreed the suit in part and given a declaration to the effect that the plaintiff No.1 was the wife of Hanu Munda and plaintiffs No.2 to 7 were the children of Hanu Munda."
6. Heard Mr.Gautam Mishra, learned Advocate for the appellants. None appeared for the respondents.
7. Mr.Mishra, learned Advocate for the appellants submitted that plaintiff no.1 and defendant no.1 belong to scheduled tribes. Learned appellate court having come to a conclusion that both plaintiff no.1 and defendant no.1 are the legally married wives of Hanu Munda committed a manifest illegality in dismissing the appeal. He further submitted that there was an ancillary prayer for declaration that plaintiff no.1 is the legally married wife of Hanu Munda. The same was struck off. Learned trial court proceeded in the premises that the suit has been filed for declaration that plaintiff no.1 is the legally married wife of Hanu Munda. He further submitted that the prayer can be moulded under Order 7, Rule 7 C.P.C. Sec.42 of the Specific Relief Act, 1877 and Sec.34 of the Specific Relief Act, 1963 is pari materia.
8. In Vemareddi Ramaraghava Reddy and others v. Konduru Seshu Reddy and others, AIR 1967 SC 436, the suit was filed for a declaration that the compromise decree is not binding upon the deity. A contention was raised that the declaratory suits are governed exclusively by Sec.42 of the Specific Relief Act, 1877. The plaintiff must satisfy the Court that he is entitled either to any legal character or to any right in any property. The plaintiff has brought the suit as a mere worshipper of the temple and that he has no legal or equitable right to the properties of the temple which 4 constitute the subject matter of the suit. The plaintiff has not asked for a declaration of his legal character as a worshipper of the temple but he has asked for the setting aside of the compromise decree in another suit with regard to nature of the temple properties. The apex Court held that Sec.42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the requirements of the section. The suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of Sec.42 of the Specific Relief Act.
9. In M/s.Supreme General Films Exchange Ltd. v. Brijnath Singhji Deo of Maihar and others, AIR 1975 SC 1810, Sec.42 of the Specific Relief Act, 1877 was the subject matter of consideration. The apex Court held that Sec.42 merely gives statutory recognition to a well-recognised type of declaratory relief and subject it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Sec.42. The circumstances in which a declaratory decree under Sec.42 should be awarded is a matter of discretion depending upon the facts of each case. No doubt a complete stranger whose interest is not affected by another's legal character or who has no interest in another's property could not get a declaration under Sec.42, Specific Relief Act with reference to the legal character or the property involved. Sec.42 of the Specific Relief Act, 1877 is pari materia to Sec.34 of the Specific Relief Act, 1963.
510. In view of the authoritative pronouncement of the apex Court in the decisions cited supra, the suit is maintainable. The finding of the learned appellate court that both the plaintiff no.1 and defendant no.1 are legally married wives of late Hanu Munda is confirmed. The substantial question of law is answered accordingly.
11. In the result, the appeal is allowed in part. Consequently, the suit is decreed.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack, The 28th March, 2018/CRB 6