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1985 DIGILAW 457 (ALL)

Rajo v. Bhagwan Singh

1985-04-19

PARMATMA SINGH

body1985
JUDGMENT Parmatma Singh, Member- This second appeal has been filed against the judgment and decree dated 22-2-84 passed by the learned Additional Commissioner Sri M.M. Gopal, in Appeal No. 25/83-84 arising out of a suit under Section 229-B of U.P. Act I of 1951. 2. Briefly stated, the facts of the case are that Bhagwan Singh filed a suit under Section 229-B of U.P. Act I of 1951, alleging that Sunahri Lal was bhumidhar of plot no. 612, area 14-11-18 out of which he transferred his half share to his elder brother Jaisingh's widow Smt. Bhan Kunwari, that on account of a mistake the name of Smt. Bhan Kunwari was recorded against the whole of the plot that Smt. Bhan Kunwari remarried with Sunahri Lal, that Smt. Bhan Kunwari died on 14-5-75 and thereafter Sunahri Lal also died after two months. The plaintiff prayed for a declaration of his bhumidhari rights on the basis of his being the brother of Sunahri Lal. The suit was contested by Smt. Rajo on the grounds that mutation had been done in her favour, that the suit of the plaintiff should be dismissed. The suit was dismissed by the trial court on 31-7-82. An appeal was preferred before the Additional Commissioner who allowed the appeal on 23-2-34. 3. I have heard the learned counsel for the appellant, and have perused the record. None has appeared on behalf of the respondents. 4. The suit was dismissed by the trial court on 31-7-82. An appeal was preferred before the Additional Commissioner who allowed the appeal on 23-2-34. 3. I have heard the learned counsel for the appellant, and have perused the record. None has appeared on behalf of the respondents. 4. The learned counsel for the appellant submits that the learned lower appellate court has not considered the vital Bhan Kunwari documentary evidence of the appellant, that after the death of Smt. Munwari, the last recorded tenant, a report for mutation was made by the plaintiff-respondent Bhagwan Singh claiming inheritance from her as brother of Jai Singh, that in the said report the fact of Smt. Man Kunwari's remarriage with Sunahri Lal was not mentioned, that from the statement of plaintiff-respondent in the mutation case before the Tahsildar it was conclusively established that he was not the brother of deceased Sunahri Lal, that Smt. Man Kunwari had not remarried with Sunahri Lal and that Sunahri Lal had neither died after Smt. Man Kunwari nor succeeded her, but the learned Additional Commissioner did not consider it, that Smt. Man Kunwari had purchased half share of the land in suit from Sunahri Lal and the remaining half share of Sunahri Lal was acquired by her as surviving co-tentant after his death, that the suit was barred by the provisions of Section 34 of Specific Relief Act. The learned counsel for the appellant, relying on the ruling reported in 1972 A.W.R 48 (Rev.), also submits that no notice under Section 106 of U.P. Panchayat Raj Act was given and in view of this the suit was not maintainable and in the plaint also there was no mention regarding an issuance of a notice under Section 105 Panchayat Raj Act but this aspect of the matter was not considered by the court below. He further submits that the learned Additional Commissioner wrongly came to the conclusion that there was remarriage of Smt. Man Kunwari with Sunahri Lal, as there was no evidence regarding remarriage and no ceremonies of marriage were performed, reliance being placed on the rulings reported in AIR 1980 SC 186 and 1982 A.W.C. (Rev.) 8. 5. Section 106 of the U.P. Panchayat Raj Act reads as under:- "106. 5. Section 106 of the U.P. Panchayat Raj Act reads as under:- "106. Suits against Gaon Sabhas, Gaon Panchayats their officers, or the officers and servants of Nyaya Panchayats.-(l) No suit or other legal proceeding shall be instituted against a Gaon Sabha or Gaon Panchayat or Bhumi Prabandhak Samiti or against a member or officer or servant thereof or of a Nyaya Panchayat or against any person acting under the direction of any of these bodies or persons for anything done or purporting to have been done in official capacity under this Act, until the expiration of two months next after notice in writing has been, in the case of a Gaon Sabha or Gaon Panchayat delivered in or left at the office of the Gaon Sabha/Panchayat concerned and in the case of a member, officer or servant or any person acting under his direction or the direction of the Gaon Sabha, Gaon Panchayat or Nyaya Panchayat delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the reliefs sought, the amount of compensation, if any claimed, and the name and place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been so delivered or left." From a plain reading of the section, it is evident that for suits which are to be filed against Gaon Sabha, Gaon Panchayat or Bhumi Prabandhak Samiti or against a member or officer or servant thereof or of Nyaya Panchayat, a notice under Section 106 Panchayat Raj Act has to be given to Gaon Sabha. Gaon Panchayat or Nyaya Panchayat etc. as the case may be. In a suit under Section 176 of U.P. Act I of 1951, in accordance with sub-section (2) thereof, Gaon Sabha is made a party to the proceedings. In the instant case the suit was not filed against the Gaon Sabha but Gaon Sabha was only impleaded as a party just to make the compliance of provisions of sub-section (2) of Section 176. In view of this, I am not inclined to accept the contention of the learned counsel that the suit was bad for non-issuance of a notice under Section 106 of U.P. Panchayat Raj Act, as he has not been able to show that any interests of Gaon Sabha were involved in the partition suit. In view of this, I am not inclined to accept the contention of the learned counsel that the suit was bad for non-issuance of a notice under Section 106 of U.P. Panchayat Raj Act, as he has not been able to show that any interests of Gaon Sabha were involved in the partition suit. 6 The decision relied upon by the learned counsel for the appellant reported in AIR 1980 SC 186 (Supra), relates to the marriages of Brahmins. It is no doubt that marriages in Brahmins are accompanied with the performance of certain rites and ceremonies as provided under the Hindu personal law, as laid down in 'Manu Smriti', the Code of laws. Manu has enumerated eight types of marriages in Chapter III of Manu Smriti in the 21st Sloka- czgkzkS nSoLrFkS okL"kZ izkuo;LrFkk lqj % xkU/koksZ jk{kl'pSo iS'kk'p"Veh b;% euqLe`fr 3@21 For Brahmins four types of marriages have been prescribed by Manu in 24th Sloka of Chapter III of the Manu Smriti. They are : czkgkz; nSo vk/;Z and intkiR; . Their characteristics have been enumerated in 3/27th to 3/30th Slokas. Certain traditional ceremonies are also performed in marriages. In the instant case, there is no evidence that Smt. Man Kunwari belonged to the category of Brahmins. Hence, the benefits from the decisions relied upon by the learned counsel for the appellant will not be available to him. Except for Brahmins, the marriages in other castes in Hindus can be performed only through mutual agreements, as prescribed in Manu Smriti, Chapter III Sloka 35. In the instant case the learned Additional Commissioner has relied upon the statements of P.Ws Babu Lal, Brijlal and Bhagwan Singh and on that basis he has concluded that Smt. Man Kunwari remarried and was living with Sunahri as his wife. Since there is no evidence on file to prove that Smt. Man Kunwari belonged to the Brahmin caste, her living together with Sunahri as a wife was a sufficient ground for arriving at the conclusion about her remarriage with Sunahri. He has also given a finding of fact that the heir of Sunahri was his brother Bhagwan Singh and he was bhumidhar of the land in suit. The learned Additional Commissioner has examined the evidence on the record in great detail and has rightly set aside the finding of the learned trial court. He has also given a finding of fact that the heir of Sunahri was his brother Bhagwan Singh and he was bhumidhar of the land in suit. The learned Additional Commissioner has examined the evidence on the record in great detail and has rightly set aside the finding of the learned trial court. The learned counsel for the appellant has failed to show any illegality being committed in the conclusions arrived at by the learned Additional Commissioner. 7. Consequently, this second appeal has no force and is hereby dismissed.