Himachal Pradesh High Court
Smt. Besaru Alias Balsaru vs Bhago Devi on 16 March, 2018
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
RSA No. 65 of 2007.
Reserved on : 01.03.2018 Decided on: 16.03.2018.
Smt. Besaru alias Balsaru ....Appellant.
Versus
Bhago Devi ... Respondent.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? 1 Yes For the appellant : Mr. G.R. Palsra, Advocate.
For the respondent : Ex parte.
Ajay Mohan Goel, Judge.
By way of this appeal, the appellant/plaintiff has challenged the judgment and decree passed by the Court of learned District Judge, Mandi, in Civil Appeal No. 4 of 2006, dated 04.01.2007, whereby, learned Appellate Court while allowing the appeal filed by the present respondent, set aside the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.), Mandi, in Civil Suit No. 41 of 2003, dated 01.12.2005, vide which learned trial Court had decreed the suit so filed by the present appellant in the following terms:-
::: Downloaded on - 19/03/2018 23:01:19 :::HCHP"As per my above discussion and reasons, therefore, the suit of the plaintiff succeeds and is hereby decreed to the effect that the defendant Bhago Devi is .
the wife of Ganga Ram and is not widow of late Sh.
Phulgi Ram s/o Het Ram r/o Village Nagwain and she has no right, title and interest in the suit land which is comprised in Khewat No. 69, khatauni No. 88, khasra Nos. 1457/431, 432, 433, Kitta-3, measuring 2-2-8 bighas, situated in mauza Nagwain/509 Illaqua Balindhi Sanor Sub Tehsil Aut, Tehsil Sadar, District Mandi, H.P. and the revenue entries showing the defendant as joint owner in possession with the plaintiff are also wrong, illegal, null and void. The defendant is further restrained from interfering in the possession of the plaintiff with respect to the suit land in any manner whatsoever. A decree-sheet be prepared accordingly. Keeping in view the facts and circumstances of the case, parties are directed to bear their own costs. The file after due completion be consigned to records."
2. This appeal was admitted on 14.06.2007 on the following substantial questions of law:-
"a) Whether the 1st Appellate Court has misread, misconstrued and misinterpreted the oral as well as documentary evidence of the parties, especially statement of DW-1, Documents Ex. DB, and Ex.DW-
1/C, which has resulted into failure and miscarriage of justice to the appellant?
b) Whether the 1st Appellate Court has admitted and relied upon the inadmissible evidence while reversing the Judgment & Decree of Trial Court, which has also ::: Downloaded on - 19/03/2018 23:01:19 :::HCHP resulted into grab failure and miscarriage of justice to the appellant.?
c) Whether there is variance in the pleadings and .
proof on the part of respondent, which fact has been totally ignored by the 1st Appellate Court, which has materially prejudiced the case of appellant?"
3. As the respondent did not enter appearance despite service, she was accordingly ordered to be proceeded against ex parte.
4. Brief facts necessary for adjudication of this appeal are as under:-
Appellant/plaintiff (hereinafter referred to as 'plaintiff') filed a suit for declaration and injunction and in the alternative for possession on the grounds that the land comprised in Khewat No. 69, khatauni No. 88, bearing Khasra Nos. 1457/431, 432, 433, Kittas-3, measuring 2-2-8 bighas, situated in mauza Nagwain/509, Illaqua Balindhi Sanor, Sub-Tehsil Aut, Tehsil Sadar, District Mandi, H.P. (hereinafter referred to as 'suit land') was in the joint ownership and possession of the plaintiff and defendant and that the said entries in revenue records wherein defendant was reflected as joint owner in possession of the suit land alongwith the plaintiff were wrong, illegal, null and void.::: Downloaded on - 19/03/2018 23:01:19 :::HCHP
According to the plaintiff, defendant was wife of one Shri Ganga Ram, son of Shri Uttam, resident of Village Maasna, .
Tehsil and District Kullu and was residing in the house of Shri Ganga Ram prior to the year 1973. Defendant was also having one issue, namely, Krishna Devi, who born out of wedlock of defendant and Ganga Ram on 18.08.1972. Further as per the plaintiff, the defendant was not the widow of late Shri Phulgi Ram, son of Shri Het Ram, resident of Nagwain, Sub-Tehsil Aut, District Mandi and the entries reflecting defendant as joint owner in possession in the suit land as widow of late Shri Phulgi Ram are wrong, illegal, null and void. According to the plaintiff, the suit land was earlier owned and possessed by Phulgi Ram who died issue-less on 01.08.1980, leaving behind his mother late Smt. Sainu Devi who succeeded to the property of Phulgi Ram after his death.
Phulgi Ram was the mother-in-law of plaintiff and she bequeathed her right, title and interest in the suit land in favour of the plaintiff by way of a registered Will dated 21.12.1987. Further as per the plaintiff, she had succeeded to the said property after the death of Sainu Devi on the basis of the said Will. It was in this background that the plaintiff prayed for the following reliefs:-
::: Downloaded on - 19/03/2018 23:01:19 :::HCHP"It is, therefore, prayed that keeping in view the reasons and circumstances enumerated above, a decree for declaration to the effect that the defendant .
is the wife of Sh. Ganga Ram S/o Sh. Uttam Ram, R/o Muhal Phati Maasna, Tehsil and District Kullu, H.P. and is not the widow of late Sh. Phulgi Ram S/o Sh.
Het Ram, R/o Village Nagwain, Illaqua Balindhi- Sanor, Sub-tehsil Aut, Tehsil Sadar, District Mandi, H.P., and she has no right, title or interest in the suit land and the Revenue entries showing the defendant as joint owner in possession with the plaintiff are wrong, illegal, null and void, and not binding upon the right of the plaintiff, who is the exclusive owner in possession of the suit land and is liable to declared as such. The defendant may also kindly be restrained through a decree of permanent prohibitory injunction not to proclaim herself to be the widow of late Sh.
Phulgi Ram aforesaid and also not to cause any sort of unlawful interference in the peaceful possession and enjoyment of the plaintiff over the suit land as a consequential relief. In case the defendant succeeds in occupying the suit land during the pendency of the suit in that eventuality a decree for possession in the alternative be passed in favour of the plaintiff and against the defendant, with costs of the suit. And/or any other relief which the plaintiff may be found entitled to under the facts and circumstances of the case under consideration may also be awarded/granted in favour of the plaintiff and against the defendant, and justice be done for which the plaintiff shall ever pray."::: Downloaded on - 19/03/2018 23:01:19 :::HCHP
5. By way of written statement, defendant denied the claim of the plaintiff. In para 2 of the written statement, it .
was mentioned by the defendant that she was now the wife of Shri Ganga Ram and one daughter was born out of this wedlock. In the same breath, in the same paragraph, defendant however denied that she was residing in the house of Ganga Ram as his wife and that a daughter was born out of said wedlock on 18.8.1972. Defendant denied that she was not widow of late Shri Phulgi Ram. As per defendant, after the death of Phulgi Ram, she inherited the suit land being his widow alongwith mother of Phulgi Ram. She also denied that Smt. Sairu Devi had bequeathed her share in favour of plaintiff. She reiterated that she was joint owner in possession of the suit land to the extent of half share alongwith the plaintiff.
6. By way of replication, the plaintiff reiterated and reaffirmed the stand made in the plaint.
7. On the basis of pleadings of the parties, learned trial Court framed the following issues:-
"1.Whether the defendant is the wife of one Sh. Ganga Ram s/o Uttam and not the widow of Phulgi Ram as alleged? OPP.::: Downloaded on - 19/03/2018 23:01:19 :::HCHP
2. Whether the revenue entries showing the defendant as joint owner in possession as widow of late Sh. Phulgi Ram are wrong and illegal ? OPP .
3. Whether the plaintiff is exclusive owner in possession of the suit land as alleged ? OPP
4. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction ? OPP
5. Whether in the alternative the plaintiff is entitled for the relief of possession as claimed ? OPP
6. Whether the suit is not maintainable ? OPD
7. Whether the plaintiff has no locus standi to file the suit ? OPD
8. Whether the plaintiff has no locus standi to file the suit ? OPD
9. Relief."
8. On the basis of evidence led by the parties, both ocular as well as documentary in support of their respective cases, the issues so framed were answered by the learned trial Court in the following manner:-
"Issue No.1 : Yes.
Issue No. 2 : Yes.
Issue No. 3 : Yes.
Issue No.4 : Yes.
Issue No. 5 : In view of findings on issue No. 3 this
issue has become redundant.
Issue No. 6 : No.
Issue No. 7 :No.
Issue No. 8 :No.
Relief : Suit decreed as per operative part of
the judgment."
9. Learned trial Court vide its judgment and decree dated 01.12.2005 decreed the suit of the plaintiff. It was held by the learned trial Court that plaintiff had placed on record ::: Downloaded on - 19/03/2018 23:01:19 :::HCHP copy of parivar register of Ganga Ram Ext. PW2/A pertaining to the year 1978 in which Bhago Devi was reflected as wife of .
Ganga Ram. It further held that plaintiff had also placed on record death certificate of Phulgi Ram which demonstrated that Phulgi Ram had died on 01.07.1980. It further held that plaintiff had also placed reliance on copy of parivar register of Phulgi Ram Ext. PW6/A in which there was no entry of wife of Phulgi Ram. Learned trial Court further held that Ext. P-2, copy of parivar register of Ganga Ram, demonstrated that Bhago Devi was reflected as wife of Ganga Ram and Krishna Devi as daughter of Ganga Ram. It further held that the statement of PW4 Somlata Sharma, who had produced record of Zonal Hospital, Kullu proved that out of wedlock of Ganga Ram and Bhago Devi, second child was born on 18.08.1972 which was so recorded at serial No. 40 in Ext. PW4/A. It further held that factum of defendant being wife of Ganga Ram also stood admitted by defendant in para 2 of the written statement. Learned trial Court also held that though defendant claimed herself to be the wife of Phulgi Ram, but no evidence was led to substantiate the same as is required under Section 50 of the Evidence Act. It further held that as defendant had failed to prove on record that she was wife of ::: Downloaded on - 19/03/2018 23:01:19 :::HCHP Phulgi Ram and after his death, she became his widow and thus inherited the estate of Phulgi Ram and as such, revenue .
entries reflecting her to be co-owner alongwith plaintiff were wrong, illegal, null and void. On these bases, learned trial Court decreed the suit of plaintiff in terms of reliefs already quoted above.
10. In appeal, judgment and decree so passed by the learned trial Court stands reversed. Learned Appellate Court held that defendant Bhago Devi as DW1 had deposed in the Court that she was married to Phulgi Ram and three sons were born out of the said marriage. It further held that the defendant also deposed that the estate of her husband was inherited by her alongwith her mother-in-law. But as Mohan Singh, younger brother of her husband Phulgi Ram started torturing her, she was forced to leave matrimonial house.
Learned Appellate Court also held that she had never contracted any marriage with Ganga Ram and Krishna Devi was not her daughter. Learned Appellate Court held that no doubt defendant went to tell lie that she had no daughter named Krishna but this statement of her would not divest her of her right in the estate of her previous husband Phulgi Ram.
Learned Appellate Court thereafter held that unchastity of a ::: Downloaded on - 19/03/2018 23:01:19 :::HCHP widow or her re-marriage during the lifetime of her husband would not result in forfeiture of her right in the estate of her .
husband. It also held that as far as marriage of defendant with Ganga Ram was concerned it was neither in doubt nor in dispute but Phulgi Ram had not divorced his wife in accordance with law or for the purpose, if his wife had started leading unchaste life or settled in the house of some other person, the same would not divest such a wife of the right in the estate of her husband. Learned Appellate Court also held that in a previous litigation, plaintiff had claimed adverse possession qua the suit land against the defendant which was indicative of the fact that the plaintiff also admitted the proprietary title of the defendant qua the suit land. It was thus held by learned Appellate Court that though Bhago Devi was subsequently living as wife of Ganga Ram, yet same would not result in forfeiture of the right of the defendant to inherit estate of her previous husband Phulgi Ram as Phulgi Ram had died after Hindu Succession Act 1956 came into force. On these bases, it set aside the judgment and decree passed by the learned trial Court.
11. Feeling aggrieved, plaintiff filed the present appeal.
::: Downloaded on - 19/03/2018 23:01:19 :::HCHP12. I have heard learned counsel for the appellant and also gone through the records of the case as well as the .
judgments passed by both the learned Courts below.
13. I will deal with all the substantial questions of law, on which this appeal stands admitted, together. The genesis of the judgment and decree passed by the learned Appellate Court whereby it set aside the judgment and decree passed by learned Trial Court is that the defendant was the wife of late Phulgi Ram. A perusal of the records of the case demonstrates that the factum of marriage of defendant with Ganga Ram was not disputed by the defendant and in para 2 of the written statement, she also stated that out of this wedlock, one daughter was born. However, she clearly denied in the written statement that she was residing in the house of Ganga Ram before the year 1973 and that a daughter was born out of this wedlock on 18.08.1972. Para 2 of the written statement is quoted herein-below:-
"2. Para No.2 of the plaint is admitted only to the extent that the defendant is now the wife of Shri Ganga Ram and one daughter has been born out of this wedlock of the plaintiff and said Ganga Ram but rest of the contents of this para are wrong and denied to be correct. It is wrong and ::: Downloaded on - 19/03/2018 23:01:19 :::HCHP denied that the defendant is residing in the house of Ganga Ram as his wife prior to year 1973 and said daughter has been born on 18.8.1972 as .
alleged. The documents as mentioned in this para are concocted one and denied to be correct."
14. Ext. PW3/A is the death certificate of Phulgi Ram which demonstrates that Phulgi Ram died on 01.07.1980.
Ext. PW4/A is the copy of birth certificate which demonstrates that a female child was born on 18.8.1972 at Maasna and name of father as mentioned therein is Ganga Ram. Ext. P-2 is the copy of parivar register of Ganga Ram, in which, Bhago Devi is reflected as his wife and Krishna Devi is reflected as his daughter and the age of Krishna Devi is shown as 30 years and this certificate is issued on 30.07.2004. Similarly, Ext. P-3 is the copy of parivar register of Mohan Singh, which demonstrates that plaintiff Besaru Devi was the widow of Mohan Singh. In her statement in the Court as DW1, in the examination-in-chief, defendant had stated that she never married Ganga Ram and no daughter named Krishna Devi was born out of said wedlock. Smt. Som Lata Sharma, official from Zonal Hospital, Kullu, who entered the witness box as PW4 produced in the Court the relevant record, which as per her statement in the Court pertained to ::: Downloaded on - 19/03/2018 23:01:19 :::HCHP birth of a girl child on 18.8.1972 to Ganga Ram s/o Uttam Ram, resident of village Maasna, Tehsil and District Kullu .
and Bhago Devi which entry was at serial No. 40.
15. From the above, at least one thing is very clear and categoric that there is a contradiction between the averments made in the written statement by the defendant with her deposition made in the Court. Whereas in the written statement, the defendant has mentioned that Ganga Ram was her husband, however, while deposing in the Court as DW1 she has completely denied that she was ever married to Ganga Ram. Similarly, the factum of any girl child having been born out of her alleged wedlock with Ganga Ram has been denied in totality in the statement made in the Court.
Similarly, Ext. PW2/A, the copy of parivar register of Ganga Ram demonstrates that name of Bhago Devi is mentioned therein as his wife and Krishna Devi is entered as his daughter. Incidentally, this parivar register pertained to the year 1978. That being so, it is but obvious that it was Krishna Devi who was born somewhere in the year 1972 and Bhago Devi stood married to Ganga Ram as at the time of birth of Krishna Devi. Ext. P-2, which is again a copy of parivar register of Ganga Ram, which was issued in the year 2004 ::: Downloaded on - 19/03/2018 23:01:19 :::HCHP again reflects Bhago Devi to be his wife and Krishna Devi to be his daughter, aged 30 years. All these documents as well .
as the statement of defendant were taken into consideration by the learned trial Court while holding that plaintiff had successfully proved Bhago Devi to be the wife of Ganga Ram and that a girl child was born out of said wedlock as far back as in the year 1972.
16. There is no doubt that there is a variance in the pleadings and statement which was made by the defendant in the Court. Whereas in pleadings defendant admitted to be wife of Ganga Ram and mother of daughter born out of her wedlock with Ganga Ram but she denied the factum of her residing with Ganga Ram as his wife before the year 1973 or that any girl child was born to her from Ganga Ram on 18.8.1972, but while deposing in the Court, she completely refused being married to Ganga Ram or having given birth to Krishna Devi out of said marriage. This variation in the pleadings and the statement, in my considered view, has not been dealt with by the learned Appellate Court correctly.
17. Learned Appellate Court just in one sententence held that no doubt the defendant went to tell lie that she had no daughter with the name Krishna and thereafter also held ::: Downloaded on - 19/03/2018 23:01:19 :::HCHP that this statement of her would not divest defendant of her right in the estate of her previous husband Phulgi Ram.
.
Learned Appellate Court neither took note of the fact nor returned findings on the fact that in her statement she deposed that she was never married to Ganga Ram, yet learned Appellate Court has reversed the judgment and decree passed by the learned trial Court. Records demonstrate that during the pendency of the appeal before the learned First Appellate Court, an application was filed by the present respondent under Order 41, Rule 27 of CPC to place on record a certificate issued by Gram Panchayat, Nagwain Ext. DA, wherein it is mentioned that date of death of Phulgi Ram was not recorded in parivar register, Ext. DB copy of electoral list, Ext. DC, copy of birth certificate of one male child born on 20.01.1961, whose father name was Phulgi Ram. This application was allowed on 26.6.2006 when these three documents were ordered to be taken on record as Ext. DA, DB and DC.
18. Before learned trial Court only three documents were exhibited on behalf of the defendant i.e. Ext. DW1/C copy of mutation, Ext. DW1/A again a copy of mutation, DW1/B, copy of an order.
::: Downloaded on - 19/03/2018 23:01:19 :::HCHP19. I will first deal with documents which were exhibited by the defendant before the learned Trial Court.
.
Ext. DW1/A and Ext. DW1/C were the copies of mutation, which were attested on 22.1.1986. Entries in these mutations were assailed by way of suit so filed by the plaintiff. In order to demonstrate that defendant was not wife of Phulgi Ram, plaintiff placed on record Ext. PW2/A, copy of parivar register pertaining to the family of Ganga Ram of the year 1978 in which defendant was reflected as wife of Ganga Ram.
Similarly, death certificate of Phulgi Ram has also been placed on record by the plaintiff, as per which, Phulgi Ram died on 01.07.1980. In the parivar register of Phulgi Ram, copy of which is Ext. PW6/A, also there was no entry of wife of Phulgi Ram. Besides parivar register Ext. P-2 reflects defendant to be wife of Ganga Ram and Krishna to be daughter of Ganga Ram. As far as Ext. PW1/B is concerned which is an order passed by Sub Divisional Collector, Sadar, Mandi, though memo of parties mention Bhago Devi to be wife of Phulgi Ram, but then it is not as if the plaintiff was party to the said proceedings and this decision is also dated 5.12.2004. Thus, there was no evidence worth its name placed on record by the defendant before the learned trial ::: Downloaded on - 19/03/2018 23:01:19 :::HCHP Court from which it could be adduced or inferred that Bhago Devi was married to Phulgi Ram. The findings to the contrary .
returned by learned Appellate Court incidentally are based upon those documents which were filed by the defendant before the learned Appellate Court. In these circumstances, it is not clear that as to how learned Appellate Court concluded that there was complete misreading of the evidence on record by the learned trial Court while decreeing the suit of the plaintiff. In my considered view, findings returned by the learned Appellate Court in this regard are completely perverse as learned trial Court had correctly held that the defendant had not placed on record any evidence to prove that defendant was the wife of Phulgi Ram.
20. Now I will refer to documents which were exhibited before the learned Appellate Court. As observed above, on 26.6.2006 when an application under Order 41 Rule 27 CPC was allowed, three documents were exhibited i.e. Ext. DA, Ext. DB and Ext. DC. Thereafter on 30.08.2006, a voter list Ext. P-x placed on record by the present appellant was also taken on record.
21. Ext. DA is a certificate issued by Secretary, Gram Panchayat, Nagwain, dated 31.12.2005 wherein it is ::: Downloaded on - 19/03/2018 23:01:19 :::HCHP mentioned that date of death of Phulgi Ram was not recorded in the death register. Ext. DB is a copy of electoral list in .
which Bhago Devi is stated to be wife of Phulgi Ram. Her age therein is recorded as 28 years as on 01.01.1965. Ext. DC is the birth certificate of a male child born to Phulgi Ram on 20.01.1961. Ext. DW3/A is the death certificate of Phulgi Ram issued by the competent authority in which his date of death is recorded as 01.07.1980. In view of this, document Ext. DA, in my considered view, is totally insignificant. As far as Ext. DB is concerned, the same has been read by the learned Appellate Court in isolation and not in conjunction with other documents on record which were placed on record by the plaintiff before the learned trial Court, which proved beyond doubt that defendant was married to Ganga Ram and out of this wedlock, a girl child was also born in the year 1972. Ext. DC in no way furthers the cause of the defendant as it cannot be inferred from this document that as to who was the mother of the child who was so born.
22. In fact, learned Appellate Court while reversing the judgment and decree passed of the learned trial Court has failed to appreciate evidence placed on record by the plaintiff and has, in fact, completely misread and mis-construed the ::: Downloaded on - 19/03/2018 23:01:19 :::HCHP same including Ext. PW6/A. It has also misread, misconstrued and misinterpreted the documents of the .
parties including the statement of the defendant as well as Ext. DB and DW1/C. Learned Appellate Court has also erred in not appreciating the variance in the pleadings and statement of the defendant in its correct perspective and the appreciation of the documents placed on record by the defendant in appeal by way of application under Order 41, Rule 27 CPC by the learned Appellate Court has also been misdirected. The substantial questions of law are answered accordingly.
23. In view of above discussion, this appeal is allowed with costs. Consequently, judgment and decree passed by the learned Appellate Court in Civil Appeal No. 4 of 2006, dated 04.01.2007 are set aside and further judgment and decree passed by learned Civil Judge (Sr. Divn.), Mandi, in Civil Suit No. 41 of 2003, dated 01.12.2005, are upheld.
(Ajay Mohan Goel) Judge March 16, 2018.
(narender) ::: Downloaded on - 19/03/2018 23:01:19 :::HCHP