Allahabad High Court
Smt. Laxminiya vs Deena Nth on 30 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:121749 Reserved on 18.07.2024 Delivered on 30.07.2024 AFR Court No. - 36 Case :- SECOND APPEAL No. - 80 of 1985 Appellant :- Smt. Laxminiya Respondent :- Deena Nath Counsel for Appellant :- A.N. Bhargava,R.P. Srivastava, R.S.Srivastava, Raghvendra Shankar Srivastava Counsel for Respondent :- Chandra Prakash, Jai Prakash Rai, Kalindra Kumar Rai, Pramod Kumar Srivastava, Tripathi B.G. Bhai Hon'ble Kshitij Shailendra,J.
1. Heard Shri H.N. Singh, learned Senior Counsel assisted by Shri Raghvendra Shankar Srivastava for the appellant and Shri Tripathi B.G. Bhai, learned counsel for the contesting respondents.
2. The instant second appeal has been filed by the defendants-appellants of Original Suit No. 132 of 1979 challenging the judgment and decree dated 11.10.1984, whereby the learned Special Judge, Ghazipur has set aside the trial court's judgment dismissing the suit and has, consequently, granted a decree in favour of the plaintiff-respondent permanently restraining the defendants-appellants from causing interference in the possession of the plaintiff over the disputed portion of the land.
3. During the course of hearing, the Court found that narration of facts contained in the judgments of the trial court and the first Appellate Court, when compared to the original pleadings, was found lacking and, therefore, the Court is narrating the relevant facts after perusing the original record.
4. Since shares of the respective parties, their entitlement and divestment is the issue directly involved in the present case, it is necessary to draw a family tree of one Thanu, as pleaded in first paragraph of the plaint. It depicts as follows:
थानू ।---------------------।---------------------------------।
। । ।
हासा मोतीलाल माधो
। । ।
बैजू सरनाम तल्लू
। । ।
।-------।------।-------। ।-----------------। ।
। । । । । । ।
नीरू गुल्लू सुन्दर गोपी दुवरी मौलवी रामनरायन
x । । । । x ।
। । --------- ।-------।-------। ।
। । । । । । । हीरा
। । । । लखन जतन अलगू ।
महादेव हरी उग्रह कुन्ज x x । ।
। । विहारी । ।
। । । भगीरथिया दीनानाथ
। । ।
दूधनाथ धनौती रामदास
PLAINT CASE
5. As per the plaintiff Deena Nath, a partition took place amongst the aforesaid family members in or about year 1881, according to which, parties started residing as per the shares separately allotted to them. Plot No. 213, area 6 biswa, 16 dhurs, was the joint property of Baiju, Sarnaam and Tallu, recorded as such in the settlement year 1981-82. The property, on account of its location and proximity, was jointly used by all the three branches. Bhagirathia wife of Algu, after the death of Algu, resided in the house in the capacity of his widow and the plaintiff's father took possession over the share succeeded by Bhagirathia in the disputed property, which was surrounded by a boundary wall after the death of Bhagirathia. Consolidation operations began in the village and the land covered by gatas No. 213/2 and 213/3, having been declared as Abadi, was chaked out from the consolidation operations under the order dated 12.02.1962 and it was allotted a new number 114. In paragraph No. 6 of the plaint, it was stated that Bhagirathia had started living with plaintiff's father and, hence, the plaintiff's father came in possession over her estate, which was succeeded by the plaintiff as owner thereof. The cause of action for filing suit was alleged on account of interference caused by defendants, i.e. Hari, Doodh Nath, Smt. Dhanauti and Ram Daras shown in the family tree, over the disputed portion described by alphabets mentioned in the prayer clause co-relating the same to the plaint map and, consequently, a decree for injunction was claimed. The plaintiff's claim, as such, was based upon the plea that Bhagirathia started living with plaintiff's father Hira and, hence, the plaintiff's father and, after his death, the plaintiff became owner of the disputed land to the divestment of all the defendants.
CONTEST BY DEFENDANTS
6. A joint written statement was filed by all the defendants stating that Bhagirathia, after the death of Algu, performed second marriage with Mahadeo and out of the said wedlock, one son namely, Doodh Nath (defendant No. 2) and a daughter namely, Phulmaniya were born. Phulmaniya was married to one Aditya and had two sons, namely, Indradeo and Ram Chander. The year of marriage between Bhagirathia and Mahadeo was pleaded through amendment as 1919. The plea of partition set up by the plaintiff was admitted with further statement that certain Neem tree was purchased by Bhagirathia for a sum of Rs.32/- on 20.02.1946 in an auction held pursuant to execution proceedings. It was further pleaded that Bhagirathia was never dispossessed by the plaintiff's side and continued to enjoy adverse possession over the estate left by her first deceased husband Algu, and settled the same during his life time in favour of her son Doodh Nath and children of her daughter Phulmaniya, who are in possession over the same. A plea of defeat of plaintiff's father as against Bhagirathia during consolidation operations was also taken and it was also alleged that the plaintiff's house was not over the disputed area, but was adjacent to the same and about which, a compromise had been facilitated by the Assistant Consolidation Officer during consolidation operations. The allegation of some manipulations made in the revenue records was also levelled and as far as the plea of the plaintiff that Bhagirathia joined the company of the plaintiff's father, the same was specifically denied and, in so many words at various places in the written statement, second marriage with Mahadeo in the year 1919 and birth of offspring from the said wedlock was pleaded.
REPLICA
7. The plaintiff filed replica reiterating the plaint version and as regards consolidation operations, it was alleged that Bhagirathia did not get anything out of the said operations, but her share stood vested in Gram Sabha, the Pradhan whereof was inimical not only to the plaintiff's father, but also defendants.
TRIAL COURT'S JUDGMENT
8. After the parties led oral and documentary evidence, the trial court dismissed the suit by judgment and order dated 12.10.1982. It accepted the plea of defendants as regards performance of marriage between Bhagirathia and Mahadeo in the year 1919 and also birth of offsprings from the said wedlock. It observed that since Doodh Nath-defendant No. 2, son of Bhagirathia is in possession over the disputed property, he would be deemed to be the owner thereof. Other observations made in the trial court's judgment are not of much significance as far as the questions to be decided in the present appeal are concerned.
FIRST APPELLATE COURT'S JUDGMENT
9. The plaintiff filed Civil Appeal No. 481 of 1982 against the trial court's judgement. The appeal has been allowed by the judgment and order impugned and a decree for injunction has been granted against the present appellants.
10. The lower Appellate Court has also accepted the defence plea as regards marriage between Bhagirathia and Mahadeo, but, by a very lengthy deliberation made in the judgment, it dealt with succession of the estate left by late Bhagirathia, who died in the year 1956, as per the provisions of Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950. The lower Appellate Court held that since defendants had taken plea of adverse possession of Bhagirathia over the estate left by her first deceased husband Algu, she would not retain it in the capacity of absolute owner and, hence, plaintiff's possession would be deemed to be proved. As regards consolidation operations, issuance of Bhumindhari sanad in favour of defendant No. 2-Doodh Nath along with Bhagirathia, declaration of Abadi and chaking out of the same was also discussed by the lower Appellate Court.
ADMISSION ORDER PASSED IN INSTANT SECOND APPEAL
11. The instant second appeal was admitted by order dated 18.01.1985 on ground Nos. 2, 10 and 11 contained in the memo of appeal that are quoted as under and numbered as substantial questions of law No. 1, 2 and 3 for the sake of convenience:-
(1) Because even according to the plaintiff's allegation, he would be a co-sharer (though the appellants do not admit the same) and the injunction as prayed for has illegally being (been) granted.
(2) Because even if Smt. Bhagirathia had remarried, she would not lose her rights in the property nor was the (there) any evidence to hold the same.
(3) Because Algu had died and remarriage of Bhagirathia with Mahadeo took place in 1919, since then Bhagirathia remained in possession and prescribed new rights.
12. Though, the language used in grounds No. 2, 10 and 11, described as substantial questions law No. 1, 2 and 3, is not happily worded, the issues involved in the instant appeal revolve around the pivot as to what would be the position of the estate succeeded by Bhagirathia after death of her first husband Algu and what would be the effect of her second marriage with Mahadeo, which was solemnized in the year 1919.
SUBMISSION OF APPELLANTS
13. Shri H.N. Singh, learned Senior Counsel appearing for the appellants vehemently argued that there was no pleading in the plaint as regards second marriage performed in between Bhagirathia and Mahadeo and, therefore, the divestment of estate succeeded by Bhagirathia from her first deceased husband Algu, not being the plaint case, the lower Appellate Court has wrongly held that Bhagirathia lost her title and possession after performing marriage with Mahadeo; that there was no evidence to prove plaintiff's possession and, hence, the suit could not be decreed; that the suit was not filed for declaration that defendant Doodh Nath is not the owner and, hence, it was not maintainable; that title of plaintiff was under cloud, so decree of injunction is invalid; that if title is proved, but possession is not proved or vice-versa, in both the cases plaintiff would fail; that plaintiff's plea as regards relationship between his father Hira and Bhagirathia after the death of Algu was not established by any cogent evidence; that devolution of interest left by Bhagirathia after her death, which took place in the year 1956, as per the provisions of Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950, was not an issue involved in the present case and, therefore, the lower Appellate Court has committed a patent error in understanding the case; that once the plaintiff's father lost battle against the defendants in consolidation operations, the civil suit filed re-agitating the same issue was not maintainable, that bhumidhari sanad having been executed in the name of Bhagirathia and her son Doodh Nath (defendant No. 2), any discussion regarding divestment of interest in the estate left behind by Algu co-relating the same to remarriage of Bhagirathia was uncalled for; that even if there was some weakness in the defence case, the same was not sufficient to decree the suit as the plaintiff has to stand on his own legs, but he failed to establish the very factum of coming into possession based upon his plea of alleged relationship between Bhagirathia and his father Hira.
14. In support of his case, Shri Singh has placed reliance upon the judgement of Apex Court in Anathula Sudhakar vs P. Buchi Reddy (dead) by Lrs. And others, 2008 (4) SCC 594 with special emphasis on paragraph No. 21 thereof laying down the following ratio:-
"21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
SUBMISSION OF RESPONDENT
15. On the other hand, Shri Tripathi B.G. Bhai, learned counsel for the respondents, by referring to Section 2 of the Hindu Widow's Remarriage Act, 1856, vehemently argued that once the defendants themselves pleaded about remarriage by Bhagirathia with Mahadeo in the year 1919, which plea was accepted by both the courts below, whatever estate she succeeded from her deceased first husband Algu, she was left with no rights therein. He further argued that the disputed plot had been declared as Abadi and, consequently, chaked out from the consolidation operations and, hence, the Appellate Court has rightly held that Bhagirathia was left with no rights. He submits that the Act of 1856 is not dependent upon the nature of land whether it is abadi or agricultural and once Bhagirathia was left with no rights and as per her own case that she joined Mahadeo's company after performing second marriage with him, the plaintiff's possession has been rightly found over the disputed property and, consequently, the defendants have been rightly injuncted. Shri Tripathi, however, concedes to the aspect that after the death of Bhagirathia in 1956, succession of her share would be of no consequence as her heirs would not get better rights then what she had succeeded from late Algu and, consequently, the discussion on succession based upon the provisions of U.P. Zamindari Abolition & Land Reforms Act, 1950, was uncalled for, but it would not affect the merits of the plaintiff's case.
16. Shri Tripathi has vehemently pressed Section 2 of the Act of 1956 in service and has also relied upon the following judgments:-
(1) Lurkhur vs. Jhuri and others, 1972 RD 271.
(2) Kizhakke Vattakandiyil Madhavan (Dead) through LRs. vs. Thiyyurkunnath Meethal Janaki and others, 2024 (1) ARC 688 (SC).
ANALYSIS OF RIVAL CONTENTIONS
17. Having heard the learned counsel for the parties, the main question that arises for consideration is as to what rights Bhagirathia succeeded from her deceased first husband Algu and what is the effect of performance of marriage by her with Mahadeo in the year 1919. The other question is as to what rights the plaintiff would get to obtain a decree for injunction in respect of estate left behind by Algu.
18. Once both the courts below have found performance of marriage between Bhagirathia and Mahadeo in 1919 as a fact proved, about which both the learned counsel have also no dispute, it is necessary to refer to Section 2 of the Hindu Widow's Remarriage Act, 1856 as argued by Shri Tripathi from the respondent side. The provision reads as under:
"2. Rights of widow in deceased husband's property to cease on her remarriage- All rights and interests which any widow may have in her deceased husband's property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any Will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her remarriage cease and determine as if she had then died; and the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same."
19. A bare perusal of Section 2 would show that the widow shall, upon her remarriage, cease to have any right in respect of her deceased husband's property and she would be treated as dead soon after her second marriage. The estate left behind by her deceased husband, then, shall devolve upon the next heirs of her deceased husband.
20. The Division Bench of this Court in Lurkhur (supra), by referring to a very old decision in the case of Mst. Parbati vs. Ram Prasad, AIR 1933 Oudh 92 and judgment of Privy Council in Mt. Lajwanti vs. Safa Chand, AIR 1924 Privy Council 121, held that when a hindu widow remains in possession of her first husband's property even after her remarriage for more than 12 years, the mere fact of a re-marriage, in the absence of any assertion of absolute ownership or change in the manner of her possession, cannot enlarge her estate into an absolute one. She thereby acquires title only to a widow's estate which inures to the estate of her deceased husband, and would, on her death, descend to his reversioner.
21. In Velamuri Venkata Sivaprasad (Dead) by LRs. vs. Kothuri Venkateswarlu (dead) by LRs. and Others, 2000 (2) SCC 139, the Supreme Court has held that Section 2 of the Act of 1856 has taken away the right of a widow in the event of remarriage and the statute is very specific to the effect that the widow on remarriage would be deemed to be otherwise dead. The words "as if she had then died" are rather significant and the legislature intended that in the event of a remarriage, one loses the rights of even the limited interest in such property and the next heirs of her deceased husband shall succeed to the same. It is, thus, a statutory recognition of a well-reasoned pre-existing Shastric law. The judgment in Velamuri Venkata Sivaprasad (supra) has very recently been considered by the Supreme Court in the judgment of Kizhakke Vattakandiyil Madhavan (supra).
22. In view of above discussion, this Court is of the considered view that Bhagirathia lost her title in the estate left by her deceased husband Algu after she performed marriage with Mahadeo in the year 1919 and, to that extent, the finding of lower Appellate Court is in consonance with law and arguments of Shri Tripathi do have substance. On arriving at the said conclusion, the Court has now to see the impact of such finding on the claim for injunction and as to whether mere divestment of interest or title in the estate of deceased Algu would suffice passing of a decree in favour of plaintiff-respondent.
23. The specific plea of the plaintiff in paragraph 10 of the replica was that Bhagirathia's share succeeded by her from late Algu had vested in Gram Sabha, as also observed by the lower Appellate Court. Once it is so, a question would arise as to how, in absence of Gram Sabha being a party to the proceedings, the plaintiff could have succeeded to obtain a decree against the defendants. The plea of the plaintiff that he acquired ownership and possession on account of relationship between Bhagirathia and plaintiff's father Hira, does not stand substantiated by any cogent oral or documentary evidence. The lower Appellate Court has, while arriving at a conclusion that Bhagirathia did not retain her possession as absolute owner of the property on account of performance of remarriage with Mahadeo, immediately reached to a conclusion that the plaintiff's possession over the property had been proved by documentary evidence and circumstances of the case. The relevant portion of the Appellate Court's judgment in this regard reads as under:-
"In my opinion, therefore, remarriage of Smt. Bhagirathia with Mahadeo stands proved. After remarriage, Smt. Bhagirathia did not retain her possession over the disputed property and in a case she did not become absolute owner of the same, the plaintiff's possession over the property in dispute has been proved by documentary evidence and circumstances of the case."
24. In the opinion of this Court, mere divestment of interest in the deceased Algu's property would not be sufficient to prove the plaintiff's case for title and possession so as to grant a decree for injunction, particularly when he failed to prove his plaint case of coming in possession through his father Hira out of unproved relationship between Bhagiratia and his father. A plaintiff cannot get strength from the defence case, but has to succeed on his own legs and merits of his claim.
25. There is another very significant aspect as to why the decree of injunction could not be passed. Once it was held that Bhagirathia ceased to have an interest or rights in Algu's property after she performed remarriage, Algu's estate would, then, devolve upon his other natural successors as per the law prevailing at that time. No successor of the deceased Algu was impleaded as a party to the suit, either initially or after the defendants put their defence. What the Court notices from the family tree is that Hari, Doodh Nath, Smt. Dhanauti and Ram Daras alias Ram Das, i.e. all the defendants, belonged to a different branch coming from Baiju, whereas Algu belonged to a different branch coming from Sarnaam. Therefore, in order to succeed, it was incumbent for the plaintiff to claim injunction against the natural successors of Algu. Even if it is presumed or accepted that Algu and Bhagirathia had no issue, in that event too, succession could not stop flowing and it would revert to the successors in law as per the family tree, may be from bottom to top through reversion of rights. It is well settled that claim for injunction intrinsically involves declaration of title and in absence of real successors of deceased Algu, plaintiff could not succeed against Bhagirathia or other persons belonging to different branch coming from Baiju, Gopi, Sundar, etc. The case of the plaintiff, therefore, was liable to fall as he himself alleged vesting of property in Gram Sabha on the one hand but even then proceeded against the persons, who did not succeed rights in the property. In fact, the plaintiff's case was based upon a plea of possession alone and though title was asserted in favour of the plaintiff's father Hira, no source thereof having been established on record, the suit was liable to be dismissed on this ground, if not on the grounds mentioned by the trial court in its judgment. Had the co-sharers, i.e. successors from late Algu been on record, a situation for claim for partition would also have arisen and, in that situation, the suit simplicitor for injunction could not have been maintainable; however the plaintiff very cleverly avoided real contest in the given facts of the case and proceeded on his plea of possession and alleged ownership by putting an unsuccessful story of alleged relationship in between Bhagirathia and his father Hira. Dislodging the plaintiff's claim for injunction is, therefore, found in consonance with the ratio laid down by the Supreme Court in paragraph 21 of Anathula Sudhakar (supra).
CONCLUSION
26. Consequently, the substantial questions of law framed by this Court are answered in the manner that though, after performance of remarriage by Bhagirathia with Mahadeo in the year 1919, she ceased to have any right or interest in the estate of her deceased husband Algu, the same was not sufficient to decree the suit for injunction and, consequently, the judgment of the lower Appellate Court granting a decree deserves to be set aside.
27. Accordingly, the second appeal succeeds and is allowed with above findings and observations.
28. The judgement of First Appellate Court dated 11.10.1984 passed in Civil Appeal No. 481 of 1982 (Deena Nath vs Lachhminia and others) is hereby set aside. The Original Suit No. 132 of 1979 (Shri Deena Nath vs Shri Hari and others) stands dismissed.
29. Office is directed to remit the record of first appellate court as well as trial court to the District Judge, Gazipur forthwith so as to facilitate return of original documents to the concerned parties by the District Court office in accordance with the provisions of General Rules (Civil).
Order Date :-30.07.2024 Sazia (Kshitij Shailendra,J)