Amar Nath v. Indrawati — 1987 DIGILAW 1264 (ALL)

JUDGMENT Brijesh Kumar, Member - This is a second appeal arising out of the judgment and decree passed by the Additional commissioner Varanasi Division, Varanasi on March 21, 1985 in appeal No. 133 of 1982, Varanasi - Gauri v. Indrawati. 2. Briefly stated, the facts of the case are that Smt. Indrawati filed a suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act in the court of the Assistant Collector 1st Class Chandauli(west) Varanasi, claiming share in the land in dispute with the prayer to partition her share. The defendant-appellant Gauri filed objection claiming to be the sole tenure-holder of the land in dispute and denying the claim of the plaintiff-respondent. The trial court decreed the suit on April 22, 1982. Aggrieved by this order, the defendant-appellant Gauri preferred an appeal before the Commissioner. The learned Additional Commissioner dismissed the appeal on March 21, 1985. The defendant-appellant Gauri filed objection claiming to be the sole tenure-holder of the land in dispute and denying the claim of the plaintiff-respondent. The trial court decreed the suit on April 22, 1982. Aggrieved by this order, the defendant-appellant Gauri preferred an appeal before the Commissioner. The learned Additional Commissioner dismissed the appeal on March 21, 1985. Against this order, second appeal has been filed before this court on the ground that the decree passed under Section 229-B of the Act on December 4 1978 was not finally set aside by the court, that the order of the S.D.O. dated July 5, 1979 setting aside the aforesaid judgment and decree dated December 4, 1978 is still subjudice before the Board of Revenue in reference made by the Additional Commissioner, Varanasi Division, Varanasi vide his order dated November 12, 1979 to set aside the subsequent order of the S.D.O. dated July 6, 1979 and the courts below have wrongly and illegally ignored the decree dated December 4, 1978 declaring the defendant as sole tenure-holder of the land in dispute and expunging the name of Smt. Indrawati, the suit filed under Section 176 of the Act was not maintainable because the decree dated December 4, 1978 made in favour of the defendant against the plaintiff has been set aside, that the trial court has failed to decide the issued number 3 regarding remarriage of Smt. Indrawati on erroneous assumption that in the partition suit the said issue touching the title of the parties could not be decided, that the trial court has wrongly observed that the title of Smt. Indrawati plaintiff was admitted to the defendants, that the remarriage of Smt. Indrawati was proved by oral evidence adduced by the defendant, that the oral evidence adduced by the defendant on the point of remarriage could not be discarded for want of documentary evidence, that the defendant appellant have proved that he was the sold Bhumidar in possession of the land in dispute and that the plaintiff respondent's point was barred under Section 34 of the Specific Relief Act. 3. I have heard the learned counsel for the parties and have also perused the record. Sri Sankatha Rai, counsel for the appellant has pleaded that the earlier decree finally settled would act as res-judicate. 3. I have heard the learned counsel for the parties and have also perused the record. Sri Sankatha Rai, counsel for the appellant has pleaded that the earlier decree finally settled would act as res-judicate. His second submission is that the oral evidence on record was not properly appreciated and examined by the courts below. The learned counsel has drawn my attention towards the statement of PW-2 Shiv Nath who has said that Smt. Indrawati and Sahadur were living together as husband and wife. He has further argued that in view of the rulings given by the Hon'ble supreme Court, it is not necessary to prove the ceremonies of marriage. His third submission is that the area of the land being only 2.73 acres cannot be partitioned. He has also argued that no finding on actual possession has been given. 4. Sri I.B. Singh, counsel for the respondent has argued that an ex-parte decree passed earlier does not operate as res-judicate. He has placed reliance on 1984 R.D. 35. On the point of remarriage, he has argued that the statement of PW-1 Gauri is based on hear-say and PW-2 Shiv Nath was not in the village when the alleged remarriage took place. PW-3 never seen Sahadur. He has further submitted that the finding given by the first appellate court on the point of remarriage is binding in second appeal. In support, he has placed reliance on Nasrul Haq v. Jitendra Nath Dey, AIR 1984 S.C. 1799 . As regards the area of the land in suit, the learned counsel has maintained that the dispute area is 3.45 acres and not 2.87 acres as alleged by the learned counsel for the appellant. As regards issue number 2, the learned counsel has pleaded that the possession of a co-tenure is the possession of all other co-tenure holder. Replying to the arguments on the point of oral evidence, the learned counsel has pleaded that Section 50 of the Indian Evidence Act is not applicable to the present case. 5. I have carefully considered the arguments advanced by the learned counsel for the parties and have also gone through the record. The appellant has filed a copy of the judgment dated December 4, 1978 passed by the S.D.O. Chanduli (West) in case No. 95/358 of 1978 under Section 229-B of the Act. 5. I have carefully considered the arguments advanced by the learned counsel for the parties and have also gone through the record. The appellant has filed a copy of the judgment dated December 4, 1978 passed by the S.D.O. Chanduli (West) in case No. 95/358 of 1978 under Section 229-B of the Act. It appears from this order that Gauri, father of the appellant, has filed a suit under Section 229-B of the Act claiming sole Bhumidhari of the land in suit. The trial court has recorded that Smt. Indrawati respondent in the present case did not appear to contest the suit despite notice. The case was, therefore proceeded ex-parte against her and consequently decreed. Now the question for consideration is whether this decree will act as res-judicata against the present suit filed under Section 176 of the Act. Section 11, C.P.C. provides that 'No court shall try any suit or issued in which the matter directly and substantially in issue in former suit between the same parties, or between parties under whom they or any of them claim, litigation under the sale title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. 6. The appellant had brought the above-mentioned suit under Section 229-B of the Act against the respondent Indrawati on the grounds that she, after the death of her husband Shanker who was the real brother of Gauri, had remarried one Sahdur resident of Chaubeypatti and consequently ceased to have any title or share in the land is dispute. Smt. Indrawati is alleged not to have contested the suit despite notice. Sri Sankatha Rai counsel for the appellant has pleaded that the decree passed in favour of the appellants will act as res-judicata. The learned for the respondent has cited case law Bulari and others v. D.D.C., 1984 R.D. 35 and pleaded that in view of the ruling given by the Hon'ble K.N. Misra, J. of the Allahabad High Court, an ex-parte decree will not act as res-judicate. It has been observed by the Hon'ble High Court that in order to supply the principle of res-judicate, it is necessary that the claim must be heard and determined by the court. It has been observed by the Hon'ble High Court that in order to supply the principle of res-judicate, it is necessary that the claim must be heard and determined by the court. It is settled that before an earlier decision cane be considered as res-judicate, the earlier matter must be heard and decided between the same parties. I respectfully agree with the observations made by the Hon'ble High Court. In the present case, the decree obtained ex-parte will not act as res-judicata. The contention made by the learned counsel for the appellant is, therefore, not acceptable. 7. It also appears from the copy of the order dated July 5, 1979 passed by the S.D.O. Chandauli (West) that Smt. Indrawati had moved an application for setting aside the decree dated December 4, 1978 with the allegations that the ex-parte decree was obtained by fraud. The trial court allowed the restoration application by means of his order dated July 5, 1979. The appellant filed a revision against this order before the Commissioner, Varanasi. The learned Additional Commissioner made a reference on January 12, 1979 recommending to the Board to set aside the order dated July 5, 1979 in revision number 245 of 1979 - Gauri v. Indrawati. No final order appears to have been passed on the recommendation. In the circumstances, the reference made by the learned Additional Commissioner will not have any bearing on the merits of the case. 8. The next question for consideration is whether it is proved beyond all reasonable doubt that the respondent Smt. Indrawati remarried. The learned trial court did not decide this vital issued number 3 observing that it is not necessary under Section 176 of the Act to decided this issue. The learned trial court committed gross irregularity in leaving the issued undecided. Where the entire case hinges on the proof of remarriage, it was imperative upon the trial court to give specific finding on issue number 3. The first appellate court, however, touched this issue and it not place reliance on the testimony of DW-1 and 2. He brushed aside the testimony on the ground that mere oral evidence is not sufficient to prove the remarriage. He has also come to the conclusion that ceremonies of the alleged marriage is not proved. The learned counsel for the appellant has argued that it is not at all necessary to prove the ceremonies. He brushed aside the testimony on the ground that mere oral evidence is not sufficient to prove the remarriage. He has also come to the conclusion that ceremonies of the alleged marriage is not proved. The learned counsel for the appellant has argued that it is not at all necessary to prove the ceremonies. It is sufficient to establish that both the appellant Indrawati and Sahadur were living together as husband and wife. The learned counsel for the respondent has argued the finding of fact is not to be questioned before the second appellate court. I am inclined to accept the contention made by the learned counsel for the respondent. It is a settled law that finding of fact given by the first appellate court is not to be questioned in second appeal. After from this, the testimony of DW-1 and 2 does not inspire confidence. The testimony of DW-1 Gauri is based on hear-say. DW-2 has merely said that he had been seeing the respondent Indrawati and Sahadur living together as husband and wife. Only this piece of evidence is not sufficient to prove to the hilt the remarriage of the respondent Smt. Indrawati I am, therefore, not inclined to place reliance on the evidence adduced by the appellant. 9. The next question raised by the learned counsel for the appellant is that the area of the disputed land being only 2.87 acres cannot be partitioned. This contention has been challenged by the learned counsel for the respondent. It appears from the plaint that the total area of plot No. 203 of Khata No. 165 and plot Nos. 323, 325/2, 194/2 and 205/5 of Khata No. 14, is 3.45 acres. This area is more than 3.125 acres. I am, therefore, satisfied that the aggregate of the land in dispute for division of holding exceeds 3.125 acres. The contention made by the learned counsel for the appellant does not, therefore, carry any weight. 10. In the result, the appeal is dismissed. The parties shall bear their own costs. Let records be returned to the courts below.