Dukhni v. Tijia — 1976 DIGILAW 227 (ALL)

JUDGMENT S. Mubarak Hasan, Member. - These are the two connected Second appeal against the judgment and decree dated May 25, 1971 passed by Additional Commissioner Varanasi in appeals against the judgment and decree dated Nov. 15, 1969 passed by the Judicial Officer Mirzapur in two suits u/s 229-B 176 of the U.P.Z.A. and L.R. Act. 2. In suit no. 5, the plaintiffs claimed to be co-bhumidhars to the extent of share and in suit no. 6 they claimed to be co-bhumidhars and co-sirdar to the extent of ?th share. Plaintiffs alleged in both the suits that the land in suit originally belonged to Ram Prasad and after his death it was inherited by his widow Mst. Chaurasi. They also alleged that Mst. Chaurasi died leaving behind her four daughters namely Mst. Tijiya, Mst. Naurangia, Mst. Gidri and Mst Dukhni. They further alleged that Mst. Dukhni being unmarried daughter she inherited to entire property after the death of Mst. Chaurasi. They further alleged that Mst. Dukhni was married in 1966 and consequently all the sister became entitle to inherit the land which originally belonged to Ram Prasad Mst. Dukhni defendant only contested both the suits. She denied the plaint allegations and alleged that the plaintiffs were not the daughters of Ram Prasad. She also alleged that Mst. Chaurasi had remarried one Sheo Shanker during the lifetime of her first husband Ram Prasad and that the plaintiffs were the daughter of Sheo Shanker. She (defendant) claimed to be the sole heir of Ram Prasad. She also claimed to have acquired sirdari rights in the disputed land on the basis of the adverse possession. The defendant Ram Nah and Deo Nath also filed written statement in suit no. 6 on similar lines. 3. On Nov. 15, 1969, the Judicial Officer, Mirzapur decreed the plaintiff's suits holding that the plaintiff's were the daughters of Ram Prasad and were co-tenure-holders alongwith the defendant. It also held that the defendant appellant had not been in adverse possession. 4. On May, 25, 1971 the lower appellate court affirmed the judgment and decree passed by the trial court and dismissed the appeal. 5. It also held that the defendant appellant had not been in adverse possession. 4. On May, 25, 1971 the lower appellate court affirmed the judgment and decree passed by the trial court and dismissed the appeal. 5. On one of the dates fixed for hearing of the appeals, the learned counsel for the appellant argued that the statements of Ram Nath D.W.1 and Nachkau D.W.2 did not bear the certificate of the Presiding Officer to the effect that their statements were recorded on his dictation and in his presence. A report was then called for from the trial court on April 2, 1975 Sri S.N. Rai, S.D.M. Sadar Mirzapur reported on May 12, 1975 that he first 5 lines of the statements of both D.Ws. 1 and 2 were recorded by the Reader and the rest of the statements were recorded by the Presiding Officer himself. Thereafter the appellant's counsel raised objection against the report dated May 12, 1975. Another report was then called for from the trial court. The trial court examined the reader of the court and submitted report dated Dec. 23, 1975 affirming the earlier report. The learned counsel for the appellant submitted that the report dated Dec. 23, 1975 was based on the statement of Shambhoo Nath Pandey the Reader of the court. He contended that the appellant had not been given opportunity to cross-examine the reader and therefore, it was unsafe to presume that Sri Singhal judicial Office recorded the statements of D.Ws. 1 and 2. He further contended that compliance of Order 18 Rules 4 and 5 C.P.C. has not been done and, therefore, the cases be remanded to the trial court for decision afresh after recording the statements of D.Ws 1 and 2. The learned counsel for the respondents argued that the D.Ws 1 and 2 were examined by the defendant-appellant himself. He further argued that the plaintiff has no objection to their statements. He further argued that it is not the case of the parties that any third person besides the reader and the Presiding Officer of the court recorded the statements. He further argued that the defendant appellant did not seek any opportunity to cross-examine the reader. He contended that there is no prejudice to the appellant. He further contended that the statements of D.Ws 1 and 2 were recorded according to law and there is no defect in them. He further argued that the defendant appellant did not seek any opportunity to cross-examine the reader. He contended that there is no prejudice to the appellant. He further contended that the statements of D.Ws 1 and 2 were recorded according to law and there is no defect in them. Lastly, the argued that the objections raised by the learned counsel for the appellant now were never raised before the trial court or before the lower appellate court or in the grounds of appeal before this court. He contended that the appellant should no be permitted to raise this objection. 6. On the March 10, 1976 an affidavit of Ram Narain alleged to the Pairokar of the appellant was the filed on behalf of the appellant. It was alleged in the affidavit that the statements of P.W.1 Horilal, P.W. 2 Mst. Tijiya, D.W.1 Ram Nath D.W.2, Nachkau and D.W. 3 Ramadhar were not recorded by the Presiding Officer and that he (Presiding Officer) was absent when their statements were recorded. On the same date a counter affidavit was filed by Kalindri Prasad on behalf of the respondents in which the allegations in the affidavit of Ram Nath dated March 10, 1976 were denied and it was alleged that the statements of the witnesses produced on behalf of the parties were recorded in the presence of the Presiding Officer. It was also alleged that the deponent was present all the time when the aforesaid statements were being recorded in the court room of Sri Singhal and he had seem Mr. Singhal personally writing the statements of Nachkau and Ram Nath. It was also alleged that he statements of all the witnesses were admissible and were not vitiated by any date of procedure. Thereafter on March 24, 1971 an affidavit of Ram Narain was again filed in which the allegations made in the counter, affidavit of Kalindri Prasad were denied. 7. On March 25, 1975, when the appeals were finally heard on merits, the learned counsel for the appellant argued that no certificate had been given by the Presiding Officer on the statement of P.W. 1 Hori Lal. He further argued that no the thumb mark below the statement of Mst. Tijiya it is not noted as to whose thumb impression it was. He further argued that no the thumb mark below the statement of Mst. Tijiya it is not noted as to whose thumb impression it was. He further argued that each page of the statement of D.W.1 Ram Nath and not ben signed and it is not noted on the thumb impression below his statement as to whose thumb impression it was. He further argued that each page of the statement of Nachkau D.W. 2 had not been signed and there is nothing to show as to whose thumb impression was affixed below his statement. He further argued that a thumb impression was affixed below the statement of Ramadhar but it had not been noted as to whose thumb impression it was. THe learned counsel for the respondents argued that the objection regarding the alleged defects in the statements of witnesses was not raised by the appellant before the trial court or before the lower appellants court on in the grounds of appeal. He contended that this objection should not be permitted to be raised now. 8. The learned counsel for the appellant argued that the judgment of the lower appellants court is against the provision of order XLI R. 31 C.P.C. He contended that the judgment of the lower appellate court is no judgment in the eye of law. He further argued that at the time of death of Mst. Chaurasi in 1953 the defendant appellant being the only unmarried daughter was preferential heir and her name was mutated in the village records over the disputed land in 1953. He further argued that the defendant-appellant remained in possession throughout til 1966. He contended that the property once vested in the defendant-appellant it could not be divested as a consequence of subsequent change in law. He place reliance on the cases reported in 1961 R.D. at page 380. 1970 R.D. at page 249 and 1964 R.D. at page 312. He further argued that the defendant-appellant having remained in adverse possession from 1953 to 1966 acquired sirdari rights in the land in dispute. He placed reliance on the cases reported in 1961 R.D. at page 380 and 1970 R.D. at page 249. He further argued that the suit were filed before the expiry of the period of notice to the State and hence they were premature. He placed reliance on the case reported in 1969 A.L.J. (S.C.) at page 570. He placed reliance on the cases reported in 1961 R.D. at page 380 and 1970 R.D. at page 249. He further argued that the suit were filed before the expiry of the period of notice to the State and hence they were premature. He placed reliance on the case reported in 1969 A.L.J. (S.C.) at page 570. He further argued that the courts below did not consider that the finding of the courts below did not consider the evidence judicially. He contended that the finding of the courts below that Mst. Chaurasi did not remarry Shiva Shanker is perverse. 9. The learned counsel for the respondents argued that the trial court discussed and considered the entire oral and documentary evidence on record in detail. He further argued that the lower appellate court considered the relevant evidence on record and having applied its mind to the case, affirmed the judgment and decree passed by the trial court. He contended that the judgment of the lower appellate court being of affirmance it was not necessary for it to discuss all the evidence on record in detail. He further contended that the judgment of the lower appellate court does not suffer from any illegality or irregularity. He further argued that the defendant-appellant was admittedly married on June 8, 1966. He contended that succession opened on June 8, 1966 and by virtue of the provision contained in Section 172(1)(b) of the U.P.Z.A. and L.R. Act all the four married daughters became entitled to inherit the property left by the last male tenant Ram Prasad. He further argued that possession before 1966 was irrelevant as succession opened in 1966. He contended that there was no question of the defendant-appellants acquiring vested rights in the disputed land. He further contended that the cases Uchan Singh and another v. Board of Revenue and other 1961 R.D at page 380, Mst. Ram Kuar v. Jangi 1964 R.D. at page 310 and Puri v. Dy. Director of consolidation U.P. Lucknow 1970 R.D. at page 249 do not apply to the facts of the present case. He further argued that after 1966 the defendant-appellant had not completed 12 years of possession by the time when the present suits were filed. He further argued that both the courts below have given concurrent finding of fact that the defendant-appellant had not been in adverse possession. He further argued that after 1966 the defendant-appellant had not completed 12 years of possession by the time when the present suits were filed. He further argued that both the courts below have given concurrent finding of fact that the defendant-appellant had not been in adverse possession. He contended that the finding of fact in this regard cannot be assailed. He further argued that both the courts below after considering relevant evidence on record gave finding of fact that Mst. Chaurasi did not remarry Shiva Shankar. He contended that the finding of fact in this regard is not perverse. He further argued that notice to the U.P. State was sent by registered post on June 12, 1968 and the suits were filed on Oct. 11, 1968. He contended that the suit were not premature. He further argued that in any case no objection regarding notice was raised by the appellant before the trial court or before the lower appellate court or in the grounds of appeal before this court. He contended that this point should not now be permitted to be raised at this stage is arguments. 10. I have considered the arguments of the learned counsels of these parties and have perused the record. 11. The only objection raised on behalf of the defendant-appellant at the time of initial hearing of the appeals was that the statements or Nachkau and Ram Nath D.Ws. did not bear the certificate of Presiding Officer to the effect that their statements were recorded on his dictation and in this presence. A report was then called for from the trial court on April 2, 1975 and it reported on May 12, 1975 that the first 5 lines of the statements of both these witnesses were recorded by the reader and the rest of the statements were recorded by the Presiding Officer himself. The appellants counsel raised objection against this report and consequently another report was called for from the trial court and it reported on Dec. 23, 1975 affirming the earlier report. This report was also assailed by the learned counsel for the appellant. He submitted that this report was based on the statement of Shambhoo Nath Pandey reader. He contended that the appellant was not given by opportunity to cross-examine him. This allegation appears to be an after thought. 23, 1975 affirming the earlier report. This report was also assailed by the learned counsel for the appellant. He submitted that this report was based on the statement of Shambhoo Nath Pandey reader. He contended that the appellant was not given by opportunity to cross-examine him. This allegation appears to be an after thought. It does not appeal for her record that the appellant sought any opportunity before the trial court to cross-examine Shambhoo Nath Pandey. Thereafter the appellant changed his stand. On 10.3.1976 an affidavit was filed on behalf of the appellant in which it was alleged that the statements of P.W.1 Hori Lal, P.W. 2 Mst. Tijiya, D.W.1 Ram Nath, D.W. 2 Nachkau and D.W. 3 Ramdhar were not recorded by the Presiding Officer and that he (the presiding officer) was absent when their statements were recorded. This allegation of the appellant in the affidavit was clearly as after though. Thereafter a counter affidavit was filed on behalf of the respondent on March 10, 1976 disputing the allegations contained in the affidavit filed on behalf for the appellant. On March 24, 1976 another affidavit was file on behalf other appellant in which the allegations in the affidavit filed on behalf of the respondents were denied on March 25, 1976 when final arguments were being heard in the appeals, the appellants counsel raised fresh objections regarding the statements of witnesses. The appellant has been changing his stand with regard to the alleged defects in the statement of witnesses on every date. The objection that the statements of witnesses were not recorded as contemplated u/o Rules 4 and 5 C.P.C. was never raised by the appellant before the trial court or before the lower appellate court or in the grounds of appeal in this court. He cannot be permitted to raise this objection now in the courts of arguments. From the reports of the trial court and also from the affidavit filed on behalf of the respondents. I am inclined to think that the statements of witnesses were recorded in presence of the Presiding Office, Sri Singhal and that there is no defect in them. The allegations in this regard made by the appellant are frivolous. 12. The trial court discussed and considered the oral and documentary evidence on record in detail. I am inclined to think that the statements of witnesses were recorded in presence of the Presiding Office, Sri Singhal and that there is no defect in them. The allegations in this regard made by the appellant are frivolous. 12. The trial court discussed and considered the oral and documentary evidence on record in detail. The lower appellate court considered the relevant oral and documentary evidence and having applied its mind to the case affirmed the judgment and decree passed by the trial court. The judgment of the lower appellate court being of affirmance, it was not necessary for it to discuss all the evidence on record in detail. The judgment of the lower appellate court is a proper judgment as contemplated u/o XLI Rule 31 C.P.C. 13. Registered notice was sent to the U.P. State on June 12, 1968 and the suits were filed om Oct. 11, 1968. The suits were not premature. In any case no object regarding notice was raised by the appellant before the trial court or before the lower appellate court or in the grounds of appeal before this court. This objection cannot now be permitted to be raised at the stage of arguments. 14. After considering the entire evidence on record the trial court gave finding of fact that Chaurasi did not remarry Shiva Shakar. The lower appellate court affirmed this finding. The finding of fact in this regard being based on correct appraisal of evidence on record cannot be assailed of evidence or record cannot be assailed. The contention of the learned counsel for the appellant that this finding of fact is perverse is without any substance. It is proved that the plaintiffs were also the daughters of Ram Prasad and Mst. Chaurasi. Mast Chaurasi died in 1953. Mst Dukhni defendant-appellant being the only unmarried daughter at that time as the preferential heir. She accordingly succeeded Ms. Chaurasi and her name was mutated over the dispute land in the village record. She (Mst. Dukhni, defendant-appellant) was married on June 8, 1966 and therefore, succession opened afresh and the plaintiffs who were also married daughters became entitled to inherit the property left by the last male tenant Ram Prasad u/s 172(1)(b) of the U.P.Z.A. and L.R. Act. Chaurasi and her name was mutated over the dispute land in the village record. She (Mst. Dukhni, defendant-appellant) was married on June 8, 1966 and therefore, succession opened afresh and the plaintiffs who were also married daughters became entitled to inherit the property left by the last male tenant Ram Prasad u/s 172(1)(b) of the U.P.Z.A. and L.R. Act. In this cases reported in 1961 R.D. at page 380, 1964 R.D. at page 310 and 1970 R.D. at page 249 it was held that if a vested right was acquired by any party then a subsequent amendment in the law of limitation will not affect that vested right. In the present cases the position is quite different. There was no question of divesting of any alleged vested right acquired by the appellant. The rulings cited above do not apply to the fact of the present cases. Succession having opened in the 1966 the period of possession of the appellant over the disputed land before 1966 was irrelevant. Both the courts below have given concurrent finding of fact that the defendant-appellant had not been is adverse possession. The finding of fact in this regard cannot be assailed. After 1966 the defendant appellant had not completed 12 years of possession by the time when the present suits were filed. The suits filed by the plaintiffs were well within time. There is no illegality in the judgment and decree passed by the lower appellate court. The appeal are, accordingly, dismissed with costs. This order will govern Second Appeal No. 206 of 1970-71 Mirzapur also.