Smt. Shanti Devi vs Mr. Nittin Sarin, Advocate

consequential relief of injunction, with liberty to the appellant herein to get her half share by partition. The plaintiff / respondent filed a suit claiming herself to be the exclusive owner in possession of the house and Bari mentioned in the heading of the plaint by succession. The case set up by the plaintiff / respondent was, that the defendants had no concern with the suit property, but they conspired R.S.A. No. 2214of 1985 **** -2- together and were threatening to interfere in possession of the plaintiff / respondent, to occupy the suit property forcibly without any right or authority. The case of the plaintiff was, that the defendants were neither related to her, nor they had any relation with her deceased husband. The house of defendant No.2 was said to be adjacent to the house of the plaintiff, and in order to usurp the property of the plaintiff, he had conspired with defendant No.1 to oust him from the property. Consequential relief of injunction was prayed for. The suit was contested by the defendant / appellant, wherein the averments regarding ownership and possession of the plaintiff / respondent were denied. The stand of the defendant No.1/ appellant was, that she was owner in possession of the suit property being the daughter of Sh. Mela Ram deceased. It was also pleaded, that in Civil Suit No. 155 decided in Civil Appeal No. 237/297 of 1979 titled as 'Devo Vs. Puran Chand', she was held to be the daughter of Mela Ram deceased. It was asserted, that plaintiff / respondent was not the widow of Mela Ram deceased, but she was the wife of one Badri Nath resident of village Lodhi Gujran Tehsil Akhnur, Distt. Jammu. Preliminary objection was taken, that the plaintiff was not in possession of the suit property, therefore, the suit was not maintainable in the present form. Stand was also taken, that the description of the property was not correctly given. It was also asserted, that Smt. Santi Devi was not the widow of late Mela Ram. In the replication, the plaintiff reiterated the averments R.S.A. No. 2214of 1985 **** -3- made in the plaint and denied those made in the written statement. On the pleadings of the parties, the learned trial Court framed the following issues :-

1. Whether the plaintiff is exclusive owner in possession of the suit property as claimed?OPP

2. Whether the suit in the present form is not maintainable?OPD

3. Whether the suit is properly valued for the purposes of Court fee and jurisdiction?OPD

4. Whether the plaintiff is entitled to the injunction and declaration prayed for?OPD

5. Relief.” On appreciation of evidence, the learned trial Court on issue No.1 held, that Des Raj PW4 had admitted, the defendant to be daughter of Mela Ram deceased, therefore, the learned trial Court held, that the evidence of Nand Lal PW3 was unbelievable, as while supporting the case set up by plaintiff claiming to be the wife of deceased Mela Ram and had also proved Ex. P-1. He denied that defendant / appellant was daughter of Mela Ram. The learned trial also Court held, that the plaintiff / respondent had concealed the fact of her marriage with Badri Nath. It was only in view of the stand taken in the written statement, that she claimed to be widow of Badri Nath r/o village Lodhi Gujran Tehsil Akhnur Distt. Jammu. The learned trial Court in view of the pleadings held, that in Ex. P-1 Smt. Shanti was shown to be widow of Amar Nath, therefore, the learned R.S.A. No. 2214of 1985 **** -4- trial Court came to the conclusion that Ex. P-1 could not be connected with plaintiff to held her to be the widow of late Mela Ram. The learned trial Court also considered the deposition of the plaintiff in cross-examination, where she had denied knowing any person by the name of Badri Nath. In the evidence she deposed to be the widow of Amar Nath, which was held by the learned trial Court to be a case of shifting of stand from time by time. Thereafter her evidence could not be believed. The learned trial Court, came to the conclusion, that the plaintiff / respondent had shifted her stand because her husband was still alive. The learned trial Court also considered the documentary evidence on record i.e. the judgment and decree passed by the Civil Court earlier, to reach to conclusion, that Smt. Shanti Devi was wife of Badri Nath, who was still alive, and held, that plaintiff failed to prove that she was widow of Mela Ram, as she could not be a legally wedded wife of any other person including Mela Ram deceased., as she had a living spouse. The learned trial Court also took note of the fact, that on an earlier occasion plaintiff / respondent had tried to grab the property, by setting up a false Will in favour of her son, but after she failed in her attempt ,now she filed the present suit to claim the property. Therefore, finding was recorded that the plaintiff had failed to prove that she was widow of Mela Ram deceased, and could not claim herself to be the owner being widow of Mela Ram after his death. R.S.A. No. 2214of 1985 **** -5- Issue No.1 was decided against the plaintiff / respondent for the reasons stated. On issue No.2, the learned trial Court held, that as the possession of the plaintiff / respondent was not proved, the suit in the present form was not maintainable. Whereas issue No.3 was decided in favour of the plaintiff / respondent holding, that the proper Court fee had been fixed on the plaint. Issue No.4 was decided against the plaintiff / respondent, and it was held, that plaintiff / respondent was not entitled to the injunction prayed and dismissed the suit. In appeal, the learned lower appellate Court reversed the findings recorded by the learned trial Court, and decreed the suit. In order to reverse the finding rendered by the learned trial Court, the learned lower appellate Court did not accept the contention of the defendant / appellant, that the plaintiff / respondent had taken a somersault by claiming herself to be not wife of Badri Nath, and to be wife of Amar Nath. The learned lower appellate Court also did not accept that Ex. P-1 did not relate to the plaintiff / respondent. The reason for rejecting this stand by the learned lower appellate Court was that in Ex. P-1, the residence of Amar nath was given Gori Pargna Udhampur, which was in fact the residence of parents of the plaintiff / respondent, therefore, possibility of Amar Nath having been mentioned in Ex. P-1, could not be a ground to reject the document duly exhibited. The learned lower appellate Court held that Ex. P-1 R.S.A. No. 2214of 1985 clearly related to Shanti. **** -6- Nand Lal (PW3), the real brother of Mela Ram deceased, admitted the factum of her marriage to Shri Mela Ram in the year 1955 through Chandar Andazi. The learned lower appellate Court also held, that Ex. P-1 was drawn up when they were united into the bond of marriage, in view of other evidence on record. The learned lower appellate Court also did not accept the stand of the defendant that evidence of PW-4 was not admissible being not in terms of Section 50 of the Evidence Act, as he had not disclosed about the conduct of Shanti towards Shri Mela Ram and vice versa, so as to prove the relationship though he had deposed that they were living as husband and wife. The learned lower appellate Court also held, that in the previous suit defendant No.2 being Mukhtiar Aam of Parkasho Devi and Sumitra Devi, had categorically pleaded, that the plaintiff / respondent was wife of Mela Ram, and nothing was shown, whether late Shri Mela Ram, who was party to the suit, had denied this relationship. The learned lower appellate Court also considered, that in the voters record, Smt. Shanti was consistently recorded as voter, with late Shri Mela Ram to hold, that she was widow of Mela Ram having married him after the death of her husband, in the year 1955 when she was widow, and that she had cohabited with Shri Mela Ram as his wife. The plaintiff / appellant being daughter of Mela Ram, was held entitled to ½ share in the house in dispute. She was further allowed to seek possession of her share by partition. R.S.A. No. 2214of 1985 **** -7- The learned lower appellate Court found the plaintiff / respondent to be in possession, and protected the possession till the time possession was taken by the defendant / appellant by way of partition. Mr. M.L. Sarin, learned senior counsel appearing on behalf of the appellants contended, that this appeal raises the following substantial question of law for consideration by this Court :- “Whether the learned lower appellate Court could reverse the judgment of the learned trial Court without meeting with the reasoning given by the learned Court?” In support of the substantial question of law, the learned senior counsel for the appellant, vehemently contended, that in the judgment passed the learned trial Court held that Ex. P-1 did not relate to the plaintiff / respondent, as in this document, the plaintiff / respondent was shown to be widow of Amar Nath, whereas her case in the pleading was that she was widow of Badri Nath, therefore, the reasoning given by the learned trial Court, was not met by the learned lower appellate Court, while reversing the finding on issue No.1. It was also the contention of the learned senior counsel for the appellant, that the learned lower appellate Court failed to take note, that the evidence of PW3 was rejected because of his conduct in denying the relationship of the defendant / appellant with Mela Ram, which in the previous suit was proved, was ignored while reversing the judgment of the learned trial Court. R.S.A. No. 2214of 1985 **** -8- The learned lower appellate Court thus failed to meet with the reasoning given by the learned trial Court before reversing the finding. In support of this contention, the learned senior counsel for the appellant relied upon the judgments of the Hon'ble Supreme Court in the cases Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRs. (2001) 3 Supreme Court Cases 179, Madhukar and Others Vs. Sangram and others (2001) 4 Supreme Court Cases 756 and S. Sankaran v. D. Kausalya JT 2007(4) SC

251. On consideration, I find no force in the contentions, raised by the learned senior counsel for the appellant. The proposition of law relied upon cannot be disputed, that the learned lower appellate Court is bound to meet the reasoning given by the learned trial Court to differ with the finding of the learned trial Court. However, in this case, the learned lower appellate Court had in fact reversed the finding given by the learned trial Court by meeting with the reasoning given to hold, that Smt. Shanti Devi plaintiff / respondent was widow of late Mela Ram. The learned lower appellate Court gave good reasons to accept document Ex. P-1. By pointing out that address given of Amar Nath was not Gori Pargna Udhampur, which was the residence of parents of the plaintiff / respondent, therefore, no adverse inference could be drawn against the plaintiff / respondent. The reading of the judgment passed by the learned lower appellate Court shows, that the learned Court accepted Ex. P-1, in view of the evidence on R.S.A. No. 2214of 1985 **** -9- record by way of statement of Nand Lal i.e. brother of Shri Mela Ram, who not only proved Ex. P1 but also categorically deposed about the marriage and relationship of plaintiff with Mela Ram. PW3 Nand Lal was the best person, to know about the relationship of the parties. The learned lower appellate Court also did not agree with the reasoning given by the learned trial Court to reject his statement merely for the reason that he had denied the relationship of plaintiff / respondent with Mela Ram, as the civil cases are decided on probabilities after appreciating evidence, merely because in statement of witness one line here and there is stated wrongly, cannot be a ground to reject the evidence in totality, as done by the learned trial Court. It cannot, therefore, be said, that the learned lower appellate Court had not met with the reasoning given by the learned trial Court in accepting the plea of relationship. It was not only Ex. P- 1 and the oral evidence but also evidence by way of voter list showing that Shanti Devi was living with Mela Ram. The learned Court also considered the previous judgment, on which reliance was placed by the defendant / appellant. The substantial question of law, is answered against the appellant, as it does not arise in the present case, as the learned lower appellate Court reversed the judgment and decree of the learned trial Court by meeting with the reasoning given by the learned trial Court. No other point was urged. R.S.A. No. 2214of 1985 **** -10- For the reasons stated, finding no merit, this appeal is dismissed by upholding the judgment passed by the learned lower appellate Court, but with no order as to costs.

09.07.2010 'sp' (VINOD K. SHARMA) JUDGE