Himachal Pradesh High Court
Ishwar Dass vs Of on 23 September, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
RSA No. 459 of 2002 & CMP No. 8073 of 2015
Judgment reserved on 19th July, 2016
Decided on: 23rd September, 2016
Ishwar Dass ..Appellant.
Versus
of
Smt. Neem Dassi deceased through her LRs Shesh Ram and
others.
.. Respondents.
Coram
rt
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. Ankush Dass Sood, Senior
Advocate with Ms. Shweta Joolka,
Advocate.
For the respondents: Mr. P.P. Chauhan, Advocate for
respondents No. 1(a) to 1(e).
Mr. Virender Verma, Addl. A.G for
the respondent-State.
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Dharam Chand Chaudhary, J.
Defendant Ishwar Dass is in second appeal before this Court, as learned lower appellate Court on reversal of judgment and decree dated 30th June, 2001, passed in Case No.09-01 of 1999-2001, has decreed the 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:18:04 :::HCHP -2-suit vide impugned judgment and decree dated 31st July, .
2002 and held the Neem Dassi (since dead), the predecessor-in-interest of the respondents (hereinafter referred to as the plaintiffs) owner in possession of the suit land. As a consequence thereof, the defendant has also of been restrained from causing any interference in the suit land. rt
2. It is seen that the subject matter of dispute is a parcel of land measuring 31-3 bighas entered in Khata Khatauni No.170/201, Kita 4, situate in revenue estate Phati Tawar, Kothi Kandi, Tehsil Nirmand, District Kullu. One Shri Luder Ram, husband of deceased plaintiff Neem Dassi, was owner of the suit land. She inherited the suit land on his death. On finding that the entries in revenue record qua possession of the suit land are in the name of her brother Rukam Ram (since dead). She made an application to Land Reforms Officer exercising the powers of Assistant Collector 1st Grade, Nirmand, registered as case No.2/98 with a prayer that the entries showing Rukam ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP -3- Ram as owner in possession of the suit land are wrong and .
that the same may be ordered to be corrected. The application was partly allowed vide order dated 6th May, 1998, Ext.PW-1/B, directing thereby the revenue staff to enter the suit land to the extent of 2/3rd in the name of of said Neem Dassi and 1/3rd in that of defendant Ishwar Dass with further observations that since Shri Rukam Ram rt was never in possession of the suit land, therefore, Neem Dassi aforesaid may file a suit in a civil Court having jurisdiction over the matter to challenge the entries showing him in possession of the suit land to the extent of 1/3rd share also. This seems to have led in filing the present suit in the trial Court by the deceased plaintiff Smt. Neem Dassi with the following prayer:
"That the plaintiff is in possession and cultivation of the land as comprised in Khata/Khatauni No.170/201 Kitas 4 measuring 31-8-0 bighas situate in Phati Tawar, Kothi Kandi, Tehsil Nirmand, District Kullu, HP with all ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP -4- right, title and interest and the entries in the .
revenue records (in column of possession in Jamabandi) showing the defendant in possession of 1/3rd share in the suit land are wrong, illegal and inoperative in law with of consequential relief of perpetual injunction restraining the defendant from interfering with rt the peaceful possession and cultivations of the plaintiff (owner) over the suit land."
on the ground that late Shri Rukam Ram was never in possession of the suit land or any portion thereof and rather it is she who throughout remained in possession thereof openly, continuously and to the knowledge and notice of the defendant as well as other legal heirs of deceased Rukam Ram. They never objected to her possession over the suit land. On coming to know about wrong entries qua possession of the suit land in revenue record in the month of January, 1998, she made an application before the Assistant Collector 1st Grade, ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP -5- Nirmand with a prayer to order correction thereof. The .
defendant, according to the plaintiff, has no right, title or interest in the suit land.
3. The defendant in the written statement raised the preliminary objections qua maintainability of the of suit, jurisdiction of the trial Court and also that in view of the protection of the provisions contained under HP rt Tenancy and Land Reforms Act, 1972, he can not be ejected from the suit land. The suit has also been sought to be dismissed on the ground that no cause of action exists in favour of the plaintiff and bad for want of proper valuation for the purposes of court fee and jurisdiction.
4. On merits, while submitting that the land was inherited by the plaintiff from her previous husband Luder Ram (now re-married to one Chet Ram), however, his father Rukam Ram remained cultivating the same throughout continuously and peacefully. It is for this reason the suit land was entered in his possession ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP -6- in the revenue record. The entries in the Jamabandi for .
the year 1993-94 have, therefore, been said to be correct, whereas, the order passed by Assistant Collector 1st Grade, Nirmand illegal, arbitrary, hence void ab initio. It is the defendant who allegedly is in of possession of the suit land after the death of his father Rukam rtRam. The plaintiff now started causing interference therein with the sole object to eject him forcibly from the suit land.
5. On such pleadings of the parties, learned trial Court has framed following issues:
1. Whether the plaintiff is entitled for the relief of declaration?
OPP.
2. Whether the plaintiff is entitled to the relief of injunction? OPP.
3. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD.
::: Downloaded on - 15/04/2017 21:18:04 :::HCHP -7-4. Whether the plaintiff has no cause of action .
tot file the present suit? OPD.
5. Whether the suit is not properly valued for the court fees and jurisdiction, as alleged?
OPD.
of
6. Whether the defendant has become owner rt by virtue of Section 104 of HP Land Reforms Act? OPD.
7. Relief.
6. The parties after having undergone the trial, learned trial Court on appreciation of the evidence available on record has held the defendant in possession of the suit land and having acquired title therein by virtue of the provisions contained under the HP Tenancy and Land Reforms Act and also that he has become owner of the suit land automatically under Section 104 of the Act ibid. It has further been observed that the present is a suit simplicitor for correction of revenue entries without seeking declaration to the ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP -8- effect that plaintiff is owner in possession thereof and as .
such the civil Court has no jurisdiction to try and entertain the same. The suit has also been held to be bad for non-joinder and mis-joinder of necessary parties, viz other legal heirs of deceased Rukam Ram.
of
7. As noticed supra, learned lower appellate Court has reversed the judgment and decree passed rt by learned trial Court and decreed the suit. The present appeal has been preferred on the grounds, inter alia, that the findings as recorded by learned lower appellate Court are based upon conjectures and surmises. The evidence as produced by the plaintiff herself before Assistant Collector 1st Grade that Shri Rukam Ram, father of the defendant was inducted by her as tenant to safeguard the suit property has not been appreciated at all and the lower appellate Court rather felled in error in not appreciating the order of Assistant Collector 1st Grade whereby the controversy qua the suit land was decided in the ratio of 2/3rd share ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP -9- and 1/3rd share between the plaintiff and defendant.
.
The defendant allegedly claiming only his 1/3rd share in the suit land which is in his possession. The own evidence produced by the plaintiff that she tried to snatch the possession of the suit land to the extent of of 1/3rd share from the defendant has been misread and misconstrued by learned lower appellate Court. Such rt evidence is the conclusive proof qua the defendant is in possession of 1/3rd share of the suit land. Learned lower appellate Court should have drawn an adverse inference against the plaintiff as she failed to step into witness box. However, it has not been done and the same resulted into miscarriage of justice to the defendant.
8. The plaintiff claims herself to be owner in possession of the suit land whereas the defendant is in possession thereof to the extent of 1/3rd share and as such has become owner under the provisions of HP Tenancy and Land Reforms Act. The civil Court has, ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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therefore, no jurisdiction to try and entertain the .
controversy. The judgment and decree under challenge, therefore, is said to be nullity. The plaintiff having been convicted in a case registered against her vide FIR No.55 of 1994 also demonstrates that it is the of defendant who was in possession of the suit land and not the plaintiff. Issue No.3 was decided in favour of the rt defendant and the lower appellate Court has not adverted to the findings arrived at on this issue.
Therefore, it has been submitted that the case is required to be remanded to the lower appellate Court.
9. The appeal has been admitted on the following substantial questions of law:
1. Whether the first appellate Court could have decreed the suit only on the ground that the tenancy could not have been created by a real sister in favour of her brother?::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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2. Whether the judgment of the first appellate .
Court is result of misreading and misappreciation of the evidence on record?
3. Whether the admission made by brothers of of the defendant could bind the defendant?
10. rt During the course of arguments, it transpired that suit land had come in the hands of deceased plaintiff Neem Dassi from her previous husband Ludar Ram. Admittedly, no issue was born to her from the lions of her previous husband and rather he died within 4-5 months of his marriage with deceased plaintiff Neem Dassi. Taking note of the provisions contained under Section 15(2) (b) of the Hindu Succession Act, the land inherited by a female Hindu from her husband or father-in-law on her death can only be inherited by the legal representatives of her husband and none else. On her death, the respondents born to her from the lions of Chet Ram, ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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with whom she had solemnized marriage after the .
death of her previous husband Ludar Ram were substituted as her legal representatives, however, in view of the provisions contained under Section 15(2) (b) of the Hindu Succession Act, since they could have not of inherit the suit land on her death, therefore, the following order came to be passed in this appeal on rt 8.5.2015:-
"The record reveals that the suit land came in the hands of deceased Neem Dassi from her previous husband Luder Ram. Whether she has any issue born and alive from the lions of said Luder Ram, the record is silent. The present respondent Shesh Ram etc., are born to her from the lions of Chet Ram with whom she was settled, perhaps after the death of her previous husband Luder Ram. The land inherited from husband by a Hindu woman, in terms of Section 15(2) (b) of the Hindu Succession Act, can only be inherited by the legal heirs of her husband and her father-in-law and none else. It is also not known that her husband Luder ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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Ram or her father-in-law had left behind any .
legal heir or not. The question on the death of said Smt. Neem Dassi, therefore, arises that the present respondents, who are born to her from the lions of Chet Ram can inherit the suit land or not. In order to decide this part of the matter of effectively and judiciously, further arguments need to be heard. On the request of learned counsel on both sides, list on 27th May, 2015."
rt
11. On the next date of hearing, learned counsel on both sides were in agreement that on re-marriage well before coming in force Hindu Succession Act, 1956, deceased plaintiff Neem Dassi had lost all her rights, title and interest in the suit land. Therefore, in the order passed on that day i.e. 27.5.2015, this Court has observed that the respondents, who were born to deceased plaintiff Neem Dassi from the lions of her second husband Chet Ram are not entitled to inherit the suit property, particularly, when on her re-marriage, she herself had lost all rights and interest therein. The order passed on that day reads as follows:-
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"In terms of the order passed on the previous date, .
heard for sometimes. As per the legal position, learned counsel on both sides are almost all in agreement that on re-marriage of Smt. Neem Dassi deceased respondent-plaintiff with Chet Ram, her rights and interests in the suit land stood forfeited and the land, as a matter of fact, should of have been reverted back to the heirs of her previous husband Ludar Ram or the heirs of her father-in-law. It being so, no right to sue survives in rt favour of the respondents herein, who admittedly are born to deceased respondent Neem Dassi from the lions of Chet Ram with whom she had solemnized second marriage. They, however, have been brought on record of this appeal, consequent upon the order passed on 25.9.2013 in an application filed under Order 22 Rule 4 CPC during the pendency of this appeal. Learned counsel for the appellant intends to take appropriate steps and address this Court on the issue of their substitution also. List on 26th June, 2015, as prayed."
12. Consequent upon this order, application CMP No. 8073/2015 has been filed by the appellant-
defendant for rejection of plaint with a further prayer to ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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recall the order dated 25.9.2013 passed in CMP(M) Nos.
.
1413, 1414 and 1418 of 2013, whereby the respondents herein were ordered to be substituted as legal representatives of deceased plaintiff Neem Dassi.
13. The appeal when heard further on 3.11.2015, of in view of this Court was considering an important and vital legal question that on solemnization of 2nd rt marriage well before coming in force the Hindu Succession Act, deceased plaintiff Neem Dassi could have still claim ownership in the suit land has necessitated to seek assistance from learned Additional Advocate General also. Therefore, following order came to be passed on that day:-
"Heard further.
In view of an important and vital legal question qua the competency of deceased plaintiff Smt. Neem Dassi, to claim the ownership of the suit land belonging to her previous husband Sh. Ludar Ram on solemnization of second marriage with one Chet Ram after his death ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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involved for adjudication. It is felt necessary .
that learned Additional Advocate General also to assist this Court in the matter after obtaining instructions from the Collector, Kullu District at Kullu particularly as to whether the previous owner Sh. Ludar Ram or his father of Kesu are survived by any legal heir(s) in terms of Section 15(2) of the Hindu Succession Act and if not, whether the suit land can be vested rt in the State Government and also as to why actually is in possession of the suit land on the spot at present, after verifying the factual position on the spot in this regard. The Collector to furnish the information as aforesaid by way of affidavit within a period of four weeks. The parties to the suit also to satisfy this Court as to on what basis they are claiming themselves to be owners or in possession of the suit land.
An authenticated copy of this order be supplied to learned Additional Advocate General for compliance."
14. In terms of this order, the Deputy Commissioner, Kullu has filed the compliance report on ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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his own affidavit, which reveals that the previous owner .
of the suit land was one Beli Ram. He had two sons, namely, Keshu and Kanshi Ram. Keshu was married to one Jeevan Dassi to whom Ludar Ram, previous husband of deceased plaintiff Neem Dassi was born.
of Keshu died earlier to his wife Smt. Jeevan Dassi. Said Smt. Jeevan Dassi came with her son Ludar Ram to rt Nirmand and started living there with his family. It is she who was owner in possession of the suit land. She gifted away the suit land to her son Ludar Ram in order to enable him to earn his livilhood. Mutation No. 702 was attested in the name of Ludar Ram aforesaid on 4.8.1937.
15. Ludar Ram later on was married to deceased plaintiff Neem Dassi. They did not have any issue and as such Ludar Ram died issueless somewhere in 1948.
The land in Nirmand Tehsil passed into the ownership of his wife deceased plaintiff Neem Dassi. As per 'Shazra Nasab' prepared at the time of settlement operations ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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(1955-1951), she was recorded as owner in possession of .
the suit land in the capacity of widow of Ludar Ram and by virtue of being in physical possession of the suit land. The land of Ludar Ram in Tehsil Rampur was recorded in the ownership of Amar Singh his cousin of being the son of Kanshi Ram, Ludar Ram's uncle. The mutation in this regard was attested on 25.7.1948. Smt. rt Neem Dassi died in the year 2007 and her inheritance has now been passed to the respondents herein born to her from the lions of her husband Chet Ram and they are continuing as owner in possession of the suit land.
16. It Is thus seen that deceased plaintiff Neem Dassi was the wife of Ludar Ram, who was owner in possession of the suit land. In the pleadings of the parties, nothing has come on record as to when the marriage was solemnized and what is the date of death of Ludar Ram and also the date when Neem Dassi solemnized 2nd marriage with Chet Ram. The compliance report filed by the Deputy Commissioner, ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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Kullu discussed in para supra, however, reveals that .
Ludar Ram died issueless in the year 1948. On his death, Neem Dassi aforesaid came to be recorded as owner in possession of the suit land. The compliance report makes reference to 'Shazra Nasab' prepared of during the settlement operations carried out in the area in 1950-51 in this regard.
rt The other property of deceased Ludar Ram in Rampur Tehsil was mutated in the name of his cousin Amar Singh on 25.7.1948.
Deceased plaintiff Neem Dassi had rightly inherited the suit land on the death of Ludar Ram being his wife.
Nothing has come on record qua her 2nd marriage with Chet Ram. PW-1 Sher Singh her son and attorney while in the witness box has stated in the very opening lines of his cross-examination that Neem Dassi was married to Ludar Ram 50-60 years ago, who died within 4-5 months of marriage with her. After his death she lived with one Govind for 4-5 months and it is thereafter she solemnized 2nd marriage with Chet Ram. Ludar Ram ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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appears to have died somewhere in July, 1948 .
because mutation of inheritance qua his land in Rampur Tehsil as per the compliance report was attested on 25.7.1948. Therefore, taking into consideration the testimony of PW-1 Sher Singh, if after of the death of Ludar Ram she lived with Govind for 4-5 months and thereafter solemnized 2nd marriage with rt Chet Ram, such marriage most probably had taken place in the year 1948 itself. Therefore, on her re-
marriage she forfeited her right to the estate of her deceased husband under Section 2 of the Hindu Widow's Re-marriage Act, 1856 and as such, had lost all rights and interest in the suit land. On coming into force the Hindu Succession Act, 1956, the suit land was required to be recorded in the ownership and possession of the legal heirs of her previous husband Ludar Ram or that of her father-in-law as required under Section 15(2) (b) of the Act ibid.
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17. The matter seems to be not agitated by .
anyone including Amar Singh, the cousin of Ludar Ram and it is for this reason, the deceased plaintiff continued to be recorded owner in possession of the suit land. The Apex Court in Velamuri Venkata of Sivaprasad (Dead) by LRs V. Kothuri Venkateshwarlu (Dead) by LRs and others (2000) 2 Supreme Court Cases rt 139, a case having more or less similar facts has held as under:
"12. Undisputably the Hindu Succession Act, 1956 in particular Section 14 has introduced far reaching changes having due regard to the role and place of womanhood in the country on the basis of the prevailing socio-economic perspective. It is now a well-settled principle of law that legislations having socio-economic perspective ought to be interpreted with widest possible connotation as otherwise, the intent of the legislature would stand frustrated. Recognition of Rights and protection thereof thus ought to be given its full play for which the particular legislation has been introduced in the Statute Book. Gender bias is being debated throughout the globe and the basic structure of the Constitution permeates equality of status and thus negates gender bias.::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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Gender equality is one of the basic principles of our Constitution. The endeavour of the law court should .
thus be to give due weightage to the requirement of the Constitution in the matter of interpretation of statutes wherein specially the women folk would otherwise be involved. The legislation of 1956 therefore, ought to receive an interpretation which of would be in consonance with the wishes and desires of framers of our Constitution........."
14. Having due regard to the language as above rt introduced by Section 14 question of attributing a different interpretation, apart from what has been given in Tulasamma's case, does not arise but needless however to note that in order to have the provision applicable there shall have to be some right existing and not de hors the same. In Raghubir's case (supra) the Shastric law has been taken recourse to in order to ascribe a pre-existing right so far as the widow is concerned by reason of the social and temporal relationship between the husband and the wife during the life time of the husband and the solemn obligation of the husband towards the wife. Hindu marriage is not a mere formality or a contract but has its due religious sanctity even in the present day society. Homam i.e. oblation to fire and Saptapadi (seven steps together ) are being observed in order to have a holy union between the ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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husband and the wife. In this context, the observations in the decision of Raghubir Singh's case .
seem to be apposite and in paragraph 14 of the Report, Dr. Anand, CJ observed:-
"According to the old Shastric Hindu law, marriage between two Hindus is a sacrament-
of a religious ceremony which results in a sacred and a holy union of man and wife by virtue of which the wife becomes a part and parcel of rt the body of the husband. She is, therefore, called ardhangani. It is on account of this status of a Hindu wife, under the Shastric Hindu law, that a husband was held to be under a personal obligation to maintain his wife and where he dies possessed of properties, then his widow was entitled as of right, to be maintained out of those properties. The right of a Hindu widow to be maintained out of the properties of her deceased husband is, thus a spiritual and moral right, which flows from the spiritual and temporal relationship of husband and wife, though the right is available only so long as the wife continues to remain chaste and does not remarry."
47. Incidentally, be it noted that the Succession Act of 1956 obviously is prospective in operation and in the event of a divestation prior to 1956, question of ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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applicability of Section 14(1) would not arise since on the date when it applied, there was already a re-
.
marriage disentitling the widow to inherit the property of the deceased husband. The Act of 1856 had its full play on the date of re-marriage itself, as such Succession Act could not confer the widow who has already re-married, any right in terms of of Section 14(1) of the Act of 1956. The Succession Act has transformed a limited ownership to an absolute ownership but it cannot be made rtapplicable in the event of there being a factum of pre divestation of estate as a limited owner. If there existed a limited estate or interest for the widow, it could become absolute but if she had no such limited estate or interest in lieu of her right of maintenance from out of deceased husband's estate, there would be no occasion to get such non- existing limited right converted into full ownership right.
18. This Court in Fate Ram and others V. Smt. Parvati Latest HLJ 2015 (HP) 816 while taking note of the law laid down by the Apex Court has also held as under:-
"15. It is crystal clear form the bare perusal of the Section ibid that the son or daughter begotten by ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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the deceased female not through her husband, whose property was with her during her lifetime but .
from someone else, such son or daughter have no right to inherit such property on her death. Object of Section 15(2) is to ensure that the property left by a Hindu female does not loose its real source. If it was the property she had inherited from her parents, the of same on her death should go to legal heirs of her father. In case the property was inherited by her from her husband or her father-in-law the same on rt her death shall devolve upon the heirs of the husband or her father-in-law i.e. the source from which the property was inherited by her. The Apex Court in (2009) 15 Supreme Court Cases 66 has held that when the property is devolved upon the deceased Hindu female from the parent's side, on her death, the same would go to her parents family and not to her husband's family. Similarly, in case where she had inherited some property from her husband or from her husband's family, on her death, the same would revert back to her husband's family and not to her own heirs. The Apex Court in Bhagat Ram (D) by L.Rs versus Teja Singh (D) by L.Rs., AIR 2002 Supreme Court (1) has held that the factum of a Hindu female originally had a limited right and later acquired full right, in any way would not alter the rules of Successions given in sub-Section (2) of Section 15 of the Act."::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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19. In the case in hand, the factum of re-marriage .
though has been established on record, however, not taken note of by both Courts below and even by the Assistant Collector 2nd Grade also who decided the of application filed for correction of entries in the revenue record showing the appellant-defendant to be in rt possession of the suit land. As a matter of fact, the appellant-defendant and for that matter his predecessor-in-interest Rukam Ram could have not claimed any right, title or interest in the suit land on the alleged ground of tenancy because when the deceased plaintiff Neem Dassi itself had lost all right, title or interest in the suit land after her re-marriage, how she could have inducted the defendant or their father as tenant in the suit land. Therefore, neither the deceased plaintiff Neem Dassi could have claimed herself to be owner in possession of the suit land nor the defendant. She could have also not filed the suit for ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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declaration and permanent prohibitory injunction. The .
suit land should have either been devolved upon heirs of her deceased husband Ludar Ram alone because Ludar Ram had died issueless or in the absence of his heirs, devolved upon the Himachal Pradesh of Government by way of Escheat under Section 29 of the Hindu Succession Act. The provisions contained under rt the Hindu Succession Act has escaped the notice of revenue authorities while allowing to continue entries in the revenue record showing Neem Dassi and for that matter the defendant as co- owner in possession of the suit land. This aspect of the matter has also lost sight of the learned trial Court and also learned lower appellate Court.
20. Therefore, not only the claim as laid by the plaintiff in the suit is false but the claim of the defendant that he having been inducted as tenant over the suit land by deceased plaintiff Neem Dassi has became owner thereof is also false. Therefore, neither the ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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successors (respondents herein) of deceased plaintiff .
Neem Dassi nor the defendant is entitled to claim any right, title or interest in the suit land. Therefore, the suit in all fairness and in the ends of justice was neither maintainable nor should have been entertained and of the plaint rather should have been rejected. No doubt, in reply to the application, CMP No. 8073 of 2015, it is rt denied that the provisions contained under Section 2 of the Hindu Widow's Re-Marriage Act, 1856 were attracted in this case, however, merely for rejection because there is no explanation as to why such provisions are not applicable in this case. On the other hand, the stand of the respondents is that their mother Neem Dassi remained in possession of the suit land for a period of 50-55 years and thereafter, it is they who are in possession of the same. By making such submissions, the respondents have reiterated the plea of adverse possession raised in the plaint. However, in view of the judgment of the Apex Court in Gurudwara Sahib Vs. ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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Gram Panchayat Village Sirthala, (2014) 1 SCC 669, the .
plea of adverse possession as raised in the plaint was not available to the plaintiff. Being so, the plaint is hereby ordered to be rejected and the application, CMP No. 8073 of 2015 allowed. Consequently, order of dated 25.09.2013 passed in CMP(M) Nos. 1413 and 1414 of 2012, impleading the present respondents as legal rt representatives of deceased Neem Dssi for the purpose of this appeal is also recalled. Consequently, this appeal does not survive and as such, there is no occasion for this Court to enter upon the controversy on merits and adjudicate the question of law as formulated at the time of its admission.
21. In view of what has been said hereinabove, the plaint is ordered to be rejected. There shall be a direction to the District Collector, Kullu to examine the matter thoroughly in accordance with law. In the event of Ludar Ram is survived by any heir(s) as per provisions contained under the Hindu Succession Act, ::: Downloaded on - 15/04/2017 21:18:04 :::HCHP
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to ensure that the suit land is devolved upon such .
heir(s). In the event of any heir of Ludar Ram is not found to be available, the Collector shall take the possession of the suit land and also necessary steps in accordance with law to get the same devolved on the of Government of Himachal Pradesh.
22. rtThe appeal is accordingly disposed of, so also the pending application(s), if any. No orders so as to costs.
September 23, 2016 (Dharam Chand Chaudhary),
(naveen) Judge.
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