Sahdeo Bhagat v. Badri Singh

property comprises of the lands gifted by the defendant no. 4 Radhika Devi stated to be the second wife of Jang Bahadur Singh under the deed dated 20.11.1989 executed in favour of the defendant nos. 1 and 2 and Schedule-3 property comprises of land sold by the defendant no. 4 to defendant no. 3 on 20.11.1989. It is, however, not in dispute that the property described in Schedule- 2 and 3 comprises of land which is half of the area of Schedule-1 land. The facts are in a very narrow compass. According to the plaintiff, the defendant no. 5 Most. Manbati Devi is the first wife Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 3 of Jang Bahadur Singh. According to the plaintiff during the life time of the first wife, Jang Bahadur Singh married the defendant no. 4, Radhika Devi in the year 1962 and which marriage was in violation of Section 5(1) of the Hindu Marriage Act, 1955. It is the case of the plaintiff that Jang Bahadur Singh died issueless in the year 1982. As per the plaintiff since the marriage of Radhika Devi with Jang Bahadur Singh was contrary to the provisions of Section 5 of the Hindu Marriage Act, she inherited no title or possession in the properties left behind by Jang Bahadur Singh and whose entire properties devolved upon the defendant no. 5 Most. Manbati Devi. It is the case of the plaintiff that the defendant no. 5 Most. Manbati Devi gifted the entire properties left behind by Late Jang Bahadur Singh in favour of the plaintiff under a gift deed dated 05.10.1989. It is further case of the plaintiff that since following this gift deed, the defendant no. 4 in most illegal manner and even in absence of any title executed a gift deed on 20.11.1989 in favour of the defendant nos. 1 and 2 and a sale deed in favour of the defendant no. 3 in relation to Schedule-2 and 3 properties respectively, hence the plaintiff apprehending trouble at the hands of the defendant nos. 1 to 3 instituted the suit for the relief set out hereinabove. On the basis of the rival pleadings the trial court framed seven issues requiring adjudication and which are as follows: Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 4

1. Is the suit as framed maintainable?

2. Has the plaintiff any cause of action or right to sue?

3. Is the suit barred by law of limitation waiver under Section 34 of the Specific Relief Act?

4. Whether Most. Radhika Devi defendant no. 4, was married before 1955 or in 1962?

5. Is defendant no. 4, entitled to succeed is the property of Late Jang Bahadur Singh?

6. Are the transfers made by the defendant no. 4 legal and valid and can be acted upon?

7. Is the plaintiff entitled to any relief? The sum and substance of the contention of the plaintiff before the trial court was that since the marriage of the defendant no. 4 Radhika Devi with Jang Bahadur Singh took place in the year 1962, hence it was a void marriage as per the provisions of Section 5 of the Hindu Marriage act and thus she did not inherit any title to the properties left behind by Late Jang Bahadur Singh to either gift the same to anybody or to make any sale therefrom. The plaintiff led 12 witnesses in support of his contention to declare the marriage of defendant no. 4 with Jang Bahadur Singh as a void marriage and also led documentary evidence of which Exhibit-4 and Exhibit-4A are voter list of the year 1959 and 1966 respectively, bears relevance on the matter in issue. The trial court on the basis of the rival pleadings and upon consideration of the oral and documentary evidence led by the parties was of the Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 5 opinion that whereas the plaintiff had failed to establish that the marriage of defendant no. 4 with Jang Bahadur Singh took place in the year 1962, the defendants had established the factum of marriage in the year 1954 by support of oral evidence. As all other issues framed by the trial court revolved around this very issue, the suit was dismissed vide judgment and decree dated

05.02.1993. Feeling aggrieved the plaintiff filed Title Appeal No. 12 of 1993 / 17 of 2008 and which has been dismissed by the impugned judgment and decree dated 30.11.2011 by the learned Additional District Judge-1st, Sitamarhi and hence this appeal. Mr. Jitendra Kishore Verma, learned counsel has appeared on behalf of the plaintiff to question the concurrent findings of the court below. Mr. Verma sensing the impediment by reason of a concurrent finding by the court(s) below proceeded to address this Court on this issue first and for the purpose relied upon a judgment of the Supreme Court reported in (2008) 12 SCC 796 (Kashmir Singh vs. Harnam Singh & Anr.) With reference to the said judgment it was submitted that non interference with the concurrent findings of the court below is not an absolute rule rather there are well known exceptions to this generalized opinion like in cases where the court(s) below have Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 6 ignored material evidence or have drawn wrong inference from proven facts by applying the law erroneously or have shifted the burden of proof etc. He submits that these are some of the instances in which there could be interference despite concurrent findings of the court below. Learned counsel next relied upon a judgment of the Supreme Court reported in AIR 2001 SC 965 (Santosh Hazari vs. Purushottam Tiwari) and with reference to paragraph-15 of the said judgment it was submitted that there are certain duties cast upon the appellate court and which has not been fully followed in the present case inasmuch as the appellate court judgment does not satisfy the test of reasonings. He further submits that the appellate court judgment is not in tune with the requirements envisaged under Order 41 rule 31 of the Code of Civil Procedure (hereinafter referred to as „the Code‟). Having addressed this Court on the issue of interference with concurrent findings of the court below, learned counsel next advanced his argument on the merits of the contest. The foundation of the argument of Mr. Verma rested on the issue of marriage of the defendant no. 4 with Jang Bahadur Singh and centered around the provisions of Section 106 of the Evidence Act (hereinafter referred to as „the Act‟) which runs as follows: Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 7 “106. Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” It was submitted by Mr. Verma that since it was the specific case of the plaintiff that the marriage of the defendant no. 4 with Jang Bahadur Singh took place in the year 1962, the marriage being a special information within the knowledge of the defendant no. 4, the onus had to be discharged by her. Learned counsel with reference to the observations of the trial court in paragraph-13 of its judgment that the burden lay upon the plaintiff to prove the factum of marriage and the year thereof submitted that the opinion expressed by the Trial Court is contrary to the provisions underlying Section 106 of the Act which shifts the onus on the defendant no. 4 since the knowledge regarding the date of marriage would be especially within the information of the defendant no. 4. Learned counsel in support of his submission has relied upon a judgment of the Allahabad High Court reported in A.I.R. 1940 Allahabad 63 (Ahmad Husain vs. Mt. Amir Bano). While continuing on the issue of burden of proof in establishing the factum of marriage, it was submitted that except oral evidence since nothing was brought on record by the defendant no. 4 to discharge her onus, the contentions advanced by the plaintiff had Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 8 to be accepted. The next issue raised by Mr. Verma to question the concurrent findings is the lack of appreciation by the court(s) below of the voter list led by the plaintiff as Exhibits 4 and 4A respectively. With reference to a judgment of the Full Bench of the Orissa High Court reported in A.I.R. 1972 Orissa 158 (Kirtan Sahu & ors. vs. Thakur Sahu & ors.) it was submitted that the entries in an electoral roll would be presumed to be proved unless disproved. Learned counsel with reference to Exhibit-4 which was a voter list of the year 1959 and did not reflect the name of the defendant no. 4 rather only showed the name of the defendant no. 5 as wife of Jang Bahadur Singh submitted that this document proves that until 1959 no marriage took place between defendant no. 4 and Jang Bahadur Singh. Turning next to the electoral roll of the year 1966 led as Exhibit-4A which showed the name of both the wives, it was submitted this falsifies the claim of defendant no. 4 about her marriage in 1954. On the strength of the said two documents it was sought to be canvassed by Mr. Verma that since the defendant no. 4 was yet to get married with Jang Bahadur Singh in the year 1959, hence her name was not reflected in the said electoral roll but finds mention in the electoral roll of 1966 led as Exhbit-4A which establishes the contention of the Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 9 plaintiff that the marriage had taken place in the year 1962. Advancing his argument mainly on the issue of burden of proof and documentary evidence on record in the form of electoral rolls, it is the contention of Mr. Verma that the failure on the part of the court(s) below to appreciate these issues appropriately is a substantial question of law for consideration by this Court. I have heard Mr. Verma, learned counsel for the plaintiff and I have gone through the judgments passed by the court(s) below. Of the seven issues framed by the trial court, issue nos. 4 and 5 are the core issues which are not only the foundation for the suit rather also have been raised before this Court as substantial questions of law. It is thus to be seen whether the plaintiff has made out a case for indulgence and whether the judgment and decree of the court(s) below borders on perversity insofar as its opinion on these issues are concerned and whether the evidence led by the plaintiff was sufficient to establish this fact. To begin with, this Court would first consider the argument of Mr. Verma that the judgment of the appellate court below is not in conformity with the requirements of Order 41 rule 31 of the Code which runs as follows: “31. Contents, date and signature of judgment.-The Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 10 judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c ) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” A bare perusal of the provision manifests that the appellate court is required first formulate points for determination and after framing such points the Court has to give its opinion together with reasons for arriving at such opinion. It is thus to be seen whether the requirements of Order 41 rule 31 has been followed by the appellate court while passing the judgment and decree impugned. Paragraph-5 of the judgment of the appellate court formulates the issues for determination and paragraph-6 of the appellate court judgment proceeds to determine the core issues involved in the dispute regarding the date of marriage of the defendant no. 4 with Jang Bahadur Singh. As I have already discussed at the outset, issue nos. 4 and 5 are the core issues involved in this dispute and the other issues are merely offshoot of these issues. The appellate court while Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 11 considering the issue has given its reasons not to delve with the findings of the trial court although not in so many words but it is not so insufficient so as to invite an interference. The next issue raised by the plaintiff is on the issue of burden of proof. I wonder for the occasion for Mr. Verma for having raised this issue. In the opinion of this Court there lay no occasion for raising such issue since both parties had led their respective evidence. It is not a case where the defendant no. 4 has shirked from leading evidence or has kept mum on the issue. Whereas the plaintiff‟s case is that she got married in the year 1962, the defendant no. 4 has led her evidence to establish that she got married in the year 1954 and successfully before the courts below. Thus in the opinion of this Court there was no occasion for Mr. Verma to question the findings on the anvil of Section 106 of the Evidence Act. The principles underlying Section 106 of the Act has been explained in a judgment of the Supreme Court reported in A.I.R. 1975 SC 667 (Ch. Razik Ram vs. Ch. J.S. Chouhan & Ors.) and paragraph 116 thereof would be relevant for the issue posed before this Court, the relevant extract of which runs as follows: “116. In the first place, it may be remembered that the principle underlying Section 106, Evidence Act which is an exception to the general rule governing burden of Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 12 proof-applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant-respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent………..” It is thus manifest that such information which is available to the others as well, cannot be a subject for invocation of Section 106 of the Act. A marriage is normally a public function with its own exceptions. Insofar as the present case is concerned, it is not the case of the plaintiff that the knowledge of marriage was exclusively within the possession of the defendant no. 4. That the plaintiff himself has tried to establish the marriage of the defendant no. 4 in the year 1962, is enough to take this matter away from the provisions of Section 106 of the Act. Even otherwise the provision of Section 106 is an exception to the general rule that the person making the charge has the onus to prove the same. Oral and documentary evidence was led not only by the plaintiff to establish the factum of marriage in the year 1962 rather the burden being shifted upon the defendant no. 4 she has well discharged the onus by leading her own evidence. In aforesaid view of the matter where it is the evidence led by the parties which has led to the concurrent findings of the courts Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 13 below on the issue of marriage the argument of Mr. Verma relying upon the provision of Section 106 appears to be completely misdirected. That would bring this Court to the last issue raised by the plaintiff regarding non appreciation by the courts below, of the evidence led by the parties to establish the factum of marriage of the defendant no. 4 Radhika Devi with Jang Bahadur Singh. Whereas the plaintiff has led as many as 12 witnesses during the course of trial, only three of them have deposed on the issue of marriage, namely, P.W. 3 Ram Govind Singh, P.W. 5 Manjhi Mahto and P.W. 11 Sahdeo Bhagat, the plaintiff himself. Now whereas P.W. 3 Ram Govind Singh does not even remember his own year of marriage, P.W. 5 has stated that the defendant no. 4 got married two years of 60. What does this word “60” mean, has not been explained by him. It is rather surprising that the plaintiff being a donee from the first wife Most. Manbati Devi, he could not get any family members of Jang Bahadur Singh to depose in this regard. Even the deposition of the plaintiff himself as Plaintiff Witness 11 does not resolve the issue inasmuch as the plaintiff himself has deposed that defendant no. 4 was 12 to 14 years at the time of her marriage in 1962. Now this evidence of the plaintiff goes contrary to his own evidence led as Exhibit-4A which is a Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 14 voter list of 1966 and bears the name of the defendant no. 4. If according to the plaintiff the defendant no. 4 was 14 years old at the time of her marriage in the year 1962, then in no circumstance her name could have appeared in the voter list of 1966 for she would only be aged 18 years and the minimum voting age at the relevant time was 21 years. Thus the evidence of plaintiff himself is self contradictory and contrary to his documentary evidence. A lot of reliance was put by Mr. Verma on the electoral roll led as Exhibits 4 and 4A. The Full Bench judgment of the Orissa High Court has held that the entry in an electoral roll would be presumed to be correct unless disproved. This Court is at loss to understand as to how this judgment would come to the aid of Mr. Verma. In my opinion this evidence in fact completely demolishes his argument about age and which is clear from the fact that the entry in the electoral roll of 1966 shows the age of the defendant no. 4 at 25 years. This single aspect itself explains why the name of defendant no. 4 did not appear in the voter list of 1959 because she had yet not attained 21 years rather would be only 18 years in the year 1959 and counting backwards, would be about thirteen years in the year 1954. Now according to the plaintiff the defendant no. 4 was aged about 14 years at the time of her marriage and from his own evidence, the defendant would be Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 15 of that age in and around the year 1954. Thus the very exhibits relied upon by Mr. Verma to question the age of the defendant no. 4 does not come to his aid rather supports the defendant no. 4. On the other hand, the defendant no. 4 led several witnesses to support her claim of marriage in the year 1954 of whom the Defendant- Witness No. 10 is Ratneshwar Jha who performed the marriage. D.W. 13 is Rajdeo Thakur, the barber who accompanied the barat. D.W. 14 Thaga Mahto and D.W. 16 Laxmi Mahto are Sarhu who have deposed the marriage happening in the year 1954. D.W. 15 Nathuni Mahto is the Bhagina of Jang Bahadur Singh and D.W. 17 is Yogendra Singh who also got married in the year 1954 and has deposed as such. It is in the aforementioned eloquent circumstances that the trial court held the evidence led by the defendant no. 4 on the issue of the date of marriage, to be more satisfying and weighty in comparison to the evidence led by the plaintiff and has dismissed the suit which finding has been affirmed by the appellate court. Coming to the issue of interference with the concurrent findings by the court below on the evidence available on record this Court is tempted to reproduce the relevant extract of a judgment of the Supreme Court reported in A.I.R. 1963 SC 1633 (Madamanchi Ramappa and another vs. Muthaluru Bojjappa) Patna High Court SA No.102 of 2012 (9) dt.18-12-2013 16 more particularly as found in paragraph-12 thereof. “12…….In other words, the learned Judge seems to think that the adequacy or sufficiency of evidence to sustain a conclusion of fact is a matter of law which can be effectively raised in a second appeal. In our opinion, this is clearly a misconception of the true legal position. The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which Courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the Courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question…..…..” For the reasons aforementioned, this Court is not persuaded to interfere with the concurrent findings of the court below and this appeal failing to raise any substantial question of law is dismissed accordingly. S.Sb/- (Jyoti Saran, J)