Himachal Pradesh High Court
Udey Ram vs Ranganath And Others on 17 August, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17TH DAY OF AUGUST, 2021
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
REGULAR SECOND APPEAL NO. 209 OF 2008
Between:-
UDEY RAM
S/O SHRI KARMU,
R/O PANJAIN, ILLAQUA THUJRI,
SUB TEHSIL BALI CHOWKI,, DISTT. MANDI,
H.P.
... APPELLANT
(BY MR. G.R. PALSRA, ADVOCATE)
AND
1. SMT. MEENA KUMARI
D/O SHRI CHET RAM
2. LACHHMI NAND,
MINOR SON OF MEENA KUMAR
THROUGH HIS NATURAL GUARDIAN
SMT. MEENA KUMARI,
R/O VILLAGE SANSOT, ILLAQUA SANOR,
SUB TEHSIL AUT, DISTT. MANDI,
H.P.
.. RESPONDENTS
(MR. JANESH GUPTA, ADVOCATE FOR R-1 & R-2)
This appeal coming on for orders this day, the court delivered the following:
JUDGMENT
By way of instant Regular Second Appeal filed under S.100 CPC, challenge has been laid to judgment and decree dated 18.1.2008 ::: Downloaded on - 31/01/2022 22:53:32 :::CIS 2 passed by learned Additional District Judge, Mandi, HP in Civil Appeal No. 60 of 2005, affirming judgment and decree dated 30.6.2005, passed by Civil Judge (Junior Division), Chachiot at Gohar in Civil Suit No. 316 .
of 1997, whereby suit for declaration and injunction having been filed by the appellant-plaintiff (hereinafter, 'plaintiff') came to be dismissed.
2. Precisely the facts of the case as emerge from the record, are that the plaintiff filed a suit for declaration and injunction against the respondents/defendants (hereinafter,'defendant') seeking therein declaration therein that defendants Nos. 1 and 2 are not his legally wedded wife and son. Plaintiff pleaded before learned court below that Smt. Subhadra Devi was his legally wedded wife and out of their wedlock two children were born. He further averred before learned court below that defendant No.1 started claiming herself to be legally wedded wife of plaintiff with a view to grab his property. He also averred that since defendant No.1 got recorded defendant No.2 as his son in the Panchayat record, in connivance with Panchayat officials and as such, a decree of declaration that defendant Nos.1 and 2 are not his legally wedded wife and son, respectively be granted, and entries in Panchayat record, showing defendant No.2 to be his son, be declared null and void and not binding upon him, with consequential relief of permanent prohibitory injunction, restraining defendant No.1 from claiming herself to be his legally wedded wife.
::: Downloaded on - 31/01/2022 22:53:32 :::CIS 33. Aforesaid claim of the plaintiff, came to be resisted by defendants by way of written statement, wherein they claimed that the plaintiff had divorced Subhadra Devi alias Kheoramni in 1991 and .
thereafter, plaintiff solemnized marriage with defendant No.1, and defendant No.2 was born on 30.7.1994 in the hospital at Mandi, out of their wedlock. Defendants claimed that the plaintiff with a view to deprive defendants of their right in his property, purposely did not get defendants recorded as his wife and son in Panchayat record whereas, defendant No. 1 had been residing with the plaintiff since the date of her marriage. r
4. On the basis of pleadings of the parties, learned trial Court framed following issues on 29.11.204, for determination:
"1) Whether the defendant No. 1 is not legally wedded wife of the plaintiff and the defendant No.2 is not born out of the wedlock of the plaintiff and defendant no. 1 as alleged? OPP
2) Whether the Panchayat entry showing the defendant no.2 as son of the plaintiff are forged, illegal and void as alleged? OPP
3) Whether the present suit is not maintainable? OPD
4) Whether the plaintiff has no enforceable cause of action to file the present suit? OPD
5) Relief?"
5. Learned trial Court on the basis of evidence led on record by respective parties, dismissed the suit having been filed by the plaintiff vide judgment and decree dated 30.6.2005. Being aggrieved ::: Downloaded on - 31/01/2022 22:53:32 :::CIS 4 and dissatisfied with aforesaid judgment and decree passed by learned trial Court, plaintiff preferred an appeal in the court of learned Additional District Judge, Mandi, but the same was also dismissed vide judgment .
and decree dated 18.1.2008. In the aforesaid background, appellant has approached this court in the instant proceedings, praying therein to decree his suit after setting aside the judgments and decrees passed by both the learned Courts below.
6. Instant appeal came to be admitted by this court on 11.12.2008, on the following substantial questions of law:
"1. Whether both the courts below have misread, misinterpret, misconstrued the oral as well as documentary evidence of the parties especially statement of PW1, PW6, document Ex.PW4/A and Ex PW4/B, which has materially prejudiced the case of the appellant?
2. Whether both the courts below have ignored the best evidence led by the appellant as PW6 Khem Raj has clearly admitted that respondent No.1 is his legally wedded wife and respondent No.2 is his legitimate son which evidence has proved the case of the appellant but the findings of both the courts below are contrary to the record which has materially prejudiced the case of the appellant as a whole?
3. Whether the statement of DW1 Meena Kumar amounts admission as per Under Section 17 of Indian Evidence Act as she has admitted that she resided at her parental house since 1992 to 1996, which statement finds corroboration from the statement of PW6 Khem Raj?
4. Whether statement of DW1 Meena Kumari do not inspire confidence which has been wrongly relied upon by the ::: Downloaded on - 31/01/2022 22:53:32 :::CIS 5 courts below because she has denied the factum of giving birth to Mukesh and Rakesh as her sons and document ex PW4/A falsify her statement in this regard?
7. I have heard learned counsel for the parties and perused .
the material available on record.
8. Since all the substantial questions of law are inter linked and their answer can be explored by looking into entire evidence, same are taken up together for determination
9. Having heard learned counsel for the parties and perused evidence, be it ocular or documentary, led on record by parties, this court finds it difficult to agree with Mr. G.R. Palsra, Learned Counsel appearing for the appellant that the learned courts below have misread the evidence as a consequence of which findings contrary to record have come on record, rather, this court having scanned the entire evidence finds that both the learned Courts below have appreciated the evidence in its right perspective and as such, no interference is called for.
10. In nutshell, claim of the plaintiff in the suit is that defendants Nos.1 and 2 are not his legally wedded wife and legitimate son but the evidence available on record clearly proves that the plaintiff after his divorce with his earlier wife Subhadra alias Kheormani Devi, solemnized marriage with defendant No.1 in the year 1992 and since then, plaintiff and defendant No.1 had been living together as husband and wife. Similarly there is ample evidence available on record, ::: Downloaded on - 31/01/2022 22:53:32 :::CIS 6 suggestive of the fact that defendant No.2, Lachhmi Nand was born out of wedlock of plaintiff and defendant No.1, on 30.7.1994.
11. PW-1 Udey Ram deposed that Smt. Kheormani alias .
Subhadra is his legally wedded wife and out of their wedlock, daughter Jaya Devi and son Dine Ram were born. He denied the factum with regard to his marriage with defendant No.1 Meera Kumari but in his cross-examination, he admitted that defendant No.1 started living with him after 1992. He also admitted that he had divorced Subhadra in the year 1991.
12. PW-2 Subhadra Devi though claimed that she is legally wedded wife of the plaintiff and out of their wedlock, one son and one daughter were born but she also admitted in her cross-examination that she had divorced plaintiff in the year 1991.
13. PW-4 Puran Chand, Secretary Gram Panchayat Banara, Tehsil Karsog, while proving copy of Parivar register, Ext. PW-4/A, admitted that Meena Kumari stands recorded as wife of Khem Raj. This witness also proved birth certificate of Mukesh Ext. PW-4/B wherein Mukesh is recorded as son of Meena Kumari and Khem Raj.
14. PW-5 Labh Singh deposed that Subhadra was married to Udey Ram in 1981-82 but later on some differences cropped up between them in 1991. This witness also deposed that he never saw defendant No.1 residing in the house of the plaintiff and no child was born to defendant Meena Kumari from the loins of the plaintiff.::: Downloaded on - 31/01/2022 22:53:32 :::CIS 7
15. PW-6 Khem Raj deposed that defendant No.1 was married to him in the year 1996 and two sons, Rakesh and Mukesh were born from their wedlock. This witness also deposed that he was having .
relation with defendant No.1 since 1992 and defendant No.2 Lachhmi Nand was born in 1994 due to his relationship with Meena Kumari.
16. Defendant while deposing as DW-1 stated that she was married to the plaintiff 12-13 years back and Lachhmi Nand, defendant No.2 was born on 30.7.1994 at Zonal Hospital, Mandi. She claimed that the plaintiff got entered the name of Lachhmi nand in the Panchayat record and Subhadra Devi was divorced by the plaintiff and after said divorce, said Subhadra Devi married to Hira Lal.
17. DW-3, Devinder Kumar Kapoor Election Kanungo proved the voter list of family of Udey Ram and the same was marked as 'X', perusal whereof reveals that defendant No.1 was entered as legally wedded wife of the plaintiff.
18. DW-4, Manoj Kumar also proved copy of Parivar register, Ext. DW-4/A, wherein admittedly defendants Nos.1 and 2 have been shown as legally wedded wife and son of the plaintiff.
19. DW-5 Gauri Shankar proved Exhibit DW-5/A i.e. certificate issued by Registrar, Births and Deaths, Mandi, wherein defendant No.2 has been shown to be son of the plaintiff.::: Downloaded on - 31/01/2022 22:53:32 :::CIS 8
20. DW-6 Telu Devi, mother of Meena Kumari deposed that defendant No.1 was married to Udey Ram 13 years back and defendant No.2 was born out of their wedlock.
.
21. Cross-examination conducted on aforesaid witnesses of defendants, if read in its entirety, nowhere suggests that the plaintiff was bale to extract from these witnesses, anything contrary to what they stated in their examination-in-chief. Though the evidence clearly reveals that prior to marriage of defendant No.1 with the plaintiff, Smt. Kheormani alias Subhadra was legally wedded wife of Udey Ram and two children were born from their wedlock, but evidence further clearly reveals that after divorce of plaintiff with Subhadra Devi alias Kheormani, marriage inter se plaintiff and defendant No.1 was solemnized and out of their wedlock one son i.e. defendant No.2 was born.
22. Admission made by the plaintiff in his cross-examination that Meena Kumari, defendant No.1 started living with him after 1992, itself amounts to admission of marriage inter se him and the defendant No.1, as such, his claim made in plaint that he has no relation with defendant No.1 and she never lived within him, deserves outright rejection being false and contrary to his deposition made before the court of law on oath.
23. Documentary evidene, Ext. DW-5/A i.e. certificate issued by Registrar, Births and Deaths, Municipal Council, Mandi, clearly ::: Downloaded on - 31/01/2022 22:53:32 :::CIS 9 reveals that defendant No.2 was born on 30.7.1994 and plantiff is his father. Similarly, copy of voter list, mark X, reflects defendant No.1 to be legally wedded wife of plaintiff. Similarly in Parivar register maintained .
by Gram Panchayat Panjain, Exhibit P-2, defendant No.2 Lachhmi Nand has been shown to be son of the plaintiff Udey Ram. If the evidence led on record by defendant is read in its entirety, it clearly proves that defendant No.1 is legally wedded wife of plaintiff and defendant No. 2 is the legitimate son of the plaintiff, as such, learned courts below, after having carefully scanned entire evidence rightly dismissed the suit of the plaintiff. Since judgments and decrees passed by learned courts below are based on proper appreciation of evidence, this court finds no merit in the claim of the counsel representing the plaintiff that learned courts below have misread and misinterpreted the evidence, rather, this court is of the definite view that both learned courts below have appreciated the evidence in its right perspective, as such, no interference is called for.
24. Substantial questions of law are answered accordingly.
25. Now, it would be appropriate to deal with the specific objection raised by the learned counsel representing the defendants with regard to maintainability and jurisdiction of this Court, while examining concurrent findings of law and facts returned by both the Courts below. Learned counsel for the defendants, invited the attention of this Court to the judgment passed by Hon'ble Apex Court in ::: Downloaded on - 31/01/2022 22:53:32 :::CIS 10 Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, wherein the Hon'ble Supreme Court has held:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that .
the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." (p.269)
26. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Apex Court and true it is that in normal circumstances High Court, while exercising powers ::: Downloaded on - 31/01/2022 22:53:32 :::CIS 11 under Section 100 CPC, is restrained from re-appreciating the evidence available on record.
27. The Hon'ble Apex Court in Parminder Singh versus .
Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017, has held as under:
"14) In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal."
28. It is quite apparent from aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned Courts below can not be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by learned Courts below, rather same are based upon correct appreciation of evidence as such, deserve to be upheld.
29. Consequently, in view of detailed discussion made herein above, I find no merit in the appeal at hand, which is accordingly dismissed. Judgments and decrees passed by both the learned Courts below are upheld.
::: Downloaded on - 31/01/2022 22:53:32 :::CIS 1230. Pending applications, if any, are disposed of. Interim directions, if any, stand vacated.
(Sandeep Sharma), .
Judge
August 17, 2021
(vikrant)
r to
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