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2005 DIGILAW 207 (JHR)

Mangra Dhobi v. Khedua Baraik

2005-03-11

N.N.TIWARI

body2005
JUDGMENT N.N. Tiwari, J. 1. This Second Appeal is against judgment and decree of reversal, filed by the Plaintiff-Respondent-Appellant. 2. The Plaintiff filed Title Suit No. 15/ 86 in the Court of Munsif, Gumla praying relief, inter alia, for cancellation of the sale deed No. 2032/79 dated 10.11.1979 and declaration of their right, title and interest with respect to the property which was the subject matter of the said sale deed and which was fully described in Schedule B of the plaint. The Plaintiff had also sought for confirmation of possession and alternatively for recovery of possession of the said Schedule B property. 3. The Plaintiffs case was that the land of Plot Nos. 702, 929, 1336, 1338 and 1430 appertaining to Khata No. 48 of village Bhargaon P.S. Sessai within the District of Gumla were recorded in the name of Dashrath Dhobi son of Bahuran Dhobi. Dashrath Dhobi died leaving behind two sons Chander Dhobi and Shalik Dhobi. Said Chander Dhobi was married to a lady of village Murmu but she died issueless. He then married another lady of village Amalia within the District of Gumla but she also died issueless then he kept the defendant No. 1 Nirsa Dhibin for his household work. Defendant No. 1 Nirsa Dhibin, was already married and she had a son and a daughter from Sohar Dhobi of village Konbir and both were alive. After the death of Dashrath Dhobi ancestral property described in Schedule B remained joint in the hands of his sons Chander Dhobi and Shalik Dhobi. When Chander Dhobi died, the said property exclusively succeeded by the sons of Shalik Dhobi who came in joint possession of the said property. It was stated that the defendant No. 1 Nirsa Dhibin without having any title or possession over the suit land illegally executed the registered sale deed No. 2032/79 dated 10.11.1979 purportedly transferring the Schedule B property in favour of Khedua Braik defendant No. 2. It was further stated that the said Nirsa Dhibin had no right, title and possession over the said land described in Schedule B of the plaint and she had no authority to transfer the same to anybody and as such by the sale deed defendant No. 2 Khedua Braik did not derive any title or possession over the Schedule B lands. However, on the basis of the said forged and fabricated sale deed, the defendant started laying false claim over the suit land. Hence the suit was filed. 4. The defendants case was that the genealogy given by the Plaintiffs was not correct and the defendant No. 1 Nirsa Dhibin was legally married wife of Chander Dhobi and she was not a maid (Dhangrin). The property belongs to the members of Dhobi Community where remarriage is not illegal. Re-marriage is permissible after the death of husband as the case may be. It was stated that after the death of earlier wife of Chander Dhobi said defendant No. 1 was married with Chander Dhobi and became his legally married wife. The defendant took plea that there was a partition between the brother Chander Dhobi and Shalik Dhobi and the lands of Schedule B were allotted to Chander Dhobi who remained in exclusive possession of the same. After the death of Chander Dhobi, the defendant No. 1 inherited the said land and came in peaceful possession of the same. Defendant No. 1 thereafter got her name mutated in respect of the properties of her husband and had been paying rent. It was stated that she had every right to execute the sale deed in exercise of her legal right and transfer the said property in favour the defendant No. 2 who had been in peaceful possession of the transferred land. 5. On the basis of the said pleadings several issues were framed. The parties led evidence in support of their respective claims. Learned trial Court, after thorough consideration of the evidences and materials on record, came to the findings that Nirsa Dhibin was not a legally married wife of Chander Dhobi and there was no previous partition between Chander Dhobi and Shalik Dhobi. It was held that said Nirsa Dhibin was the concubine of Chander Dhobi and she had no legal right to inherit the land after the death of Chander Dhobi and as such he had no right, title and interest over the suit land and had no authority or right to execute any sale deed. It was further held that the defendant No. 2 Khedua Baraik could not acquire any right, title and interest over the suit land. Learned Court below decided the vital issues in favour of the Plaintiffs and decreed the suit. It was further held that the defendant No. 2 Khedua Baraik could not acquire any right, title and interest over the suit land. Learned Court below decided the vital issues in favour of the Plaintiffs and decreed the suit. The defendant then preferred an appeal in the Court of the District Judge, Gumla. The said appeal was finally heard and disposed of by the 1st Addl. District and Sessions Judge, Gumla. Learned Court below generally discussed the cases and evidences on record and framed two questions. One, as to whether defendant No. 1 is the legally married wife of Chander Dhobi or not and another, whether the suit is barred by law of limitation. Learned lower appellate Court while discussing and considering the first point observed that in Mutation Case No. 132/1976-77 the land in question was mutated in favour of the said Nirsa Dhibin and after execution of sale deed, the name of Khedua Braik was also mutated. Learned Court then discussed the evidence of the PWs. and found no reason to disbelieve them, and held that Nirsa Dhibin was the legally married wife of Chander Bhobi. On the point of mutation, learned lower appellate Court observed that the sale deed was executed on 10.11.1979 in favour of the defendant No. 2 Khedua Baraik and the suit was brought assailing the same on 14.5.1986 after more than three years. It was further observed that the Plaintiff filed Objection Petition in the Mutation Proceeding, which was rejected on 11.2.1980 and the mutation order was passed in favour of the defendant No. 2. The suit filed in 1986, was barred by law of limitation. The learned lower appellate Court thus allowed the appeal and set aside the judgment and decree of the trial Court. 6. At the time of admission of this appeal, the following substantial questions were framed by this Court. (i) Whether the learned Court of appeal below is directed itself in deciding the question as to whether defendant No. 1 is wife of Chander Dhobi on the basis of a certain mutation order (Ext. C and C/1). (ii) (sic) in the event it will be held that the defendant No. 1 was legally married wife of Chander Dhobi. The learned Court of appeal is correctly referred Article 59 of the Limitation Act. 7. Mr. C and C/1). (ii) (sic) in the event it will be held that the defendant No. 1 was legally married wife of Chander Dhobi. The learned Court of appeal is correctly referred Article 59 of the Limitation Act. 7. Mr. S.K. Ughal, learned counsel appearing on behalf of the Appellant, submitted that the lower appellate Court has committed serious error of law as well as of fact in folding that defendant No. 1 is the wife of Chander Dhobi merely on the basis of the mutation orders (Ext. C and C/1). Learned counsel submitted that the mutation case was filed by the defendants showing defendant No. 1 Nirsa Dhibin as wife of Chander Dhobi in the petition and on that basis order was passed showing Nirsa as wife of Chander Dhobi and the same cannot be relied on as a documentary evidence to prove marriage between the said defendant No. 1 and Chander Dhobi. There is no other documentary evidence on the point and the oral evidence adduced, cannot be relied upon as a valid proof on the factum of marriage. Learned counsel submitted that in order to show relationship, the defendant set up a positive case that the defendant No. 1 was a validly married wife and the onus was on them to prove the said fact in accordance with law for proving relationship and giving an opinion on the relationship of one person with another expressed by conduct, the witnesses must have special means of knowledge on the set of fact, as required by Section 50 of the Evidence Act. The lower appellate Court has relied upon the evidences of DW 1, DW 2 and DW 5 but none of the said witnesses has any close relationship or any special means of knowledge on the said relationship and that the same cannot be relied upon for holding that the defendant No. 1 was the legally married wife of Chander Dhobi. Learned counsel placed reliance on a decision of Supreme Court in "Dalgobinda Paricha v. Nimai Charan Misra and Ors.". Reported in 1959 SC 194 and submitted that in absence of any evidence as required by the provisional Section 50, no other oral evidence can be said to be the legal evidence for proving the said fact of relationship. Learned counsel placed reliance on a decision of Supreme Court in "Dalgobinda Paricha v. Nimai Charan Misra and Ors.". Reported in 1959 SC 194 and submitted that in absence of any evidence as required by the provisional Section 50, no other oral evidence can be said to be the legal evidence for proving the said fact of relationship. Learned counsel submitted that the suit was for declaration of right, title and possession and as such the said suit does not come within the ambit of Article 59 rather the suit is within the scope of Article 65 of the Limitation Act and as such the suit is not barred by law of limitation. Learned counsel urged that both the substantial questions in view of the facts and circumstances and provisions of law should be answered in favour of the appellants. 8. Mr. K.K. Singh, learned counsel appearing on behalf of the respondents on the other hand submitted that after due appraisal of the evidence, the lower appellate Court has recorded its findings of facts and the same are in accordance with law and require no interference by this Court. Learned counsel submitted that there are evidences including the evidence of defendant No. 1 which go to prove the relationship. Some of the defendants witnesses are close co-villagers and their evidences are reliable and conform to the requirement of Section 50 of the Evidence Act. Learned counsel submitted that the plaintiff had made specific prayer for relief and the first prayer was for cancellation of sale deed dated 10.11.1979. The second relief for declaration of right, title and interest cannot be granted unless the plaintiff is found entitled to the first relief. First relief squarely falls within the ambit of Article 59 of the Limitation Act, 1963 by which the three years limitation is prescribed for filing a suit from the date when the facts entitling the plaintiff to have the instrument canceled was first become known to him. Learned counsel submitted that the plaintiff had knowledge of the sale deed from the date of its execution as it would be evident from the evidence on record and the plaintiffs themselves had appeared in the Mutation Proceeding before the Revenue Court and filed objection against the said Petition for Mutation filed by the defendant No. 2 on 11.2.1980 and on that date Mutation Proceeding was disposed of against the Plaintiffs. The suit was filed in 1986 and as such the suit was barred by law of limitation and the learned lower appellate Court has rightly held that the suit was barred by law of limitation, and the appeal has been rightly allowed. 9. After hearing the learned counsel and considering the materials on record and the provisions of law, I find that there is no documentary evidence to prove that the defendant No. 1 Nirsa Dhibin was a legally married wife of the Chander Dhobi. Ext. C and C/1 which are the C.C. of order sheet and order of the Mutation Proceeding have been mainly relied on for holding that Nirsa Dhibin was a legally married wife of Chander. There is no oral evidence of the quality required for proving relationship under Section 50 of the Evidence Act. The finding of the learned lower appellate Court that Nirsa Dhibin was legally married wife of Chander Dhobi is not based on any legal evidence and is vitiated in law. This question if thus answered in favour of the appellant. However, so far as question of limitation is concerned, admittedly the sale deed which has been sought to be cancelled was dated 10.11.1979 and on the basis of the said sale deed (Ext. B) the purchaser defendant had filed Mutation Case No. 132/1975-76 and in that Mutation Proceeding, the Plaintiffs had appeared and filed objection and that objection was rejected and the Mutation Proceeding was allowed in favour of the defendant No. 2 by order dated 11.2.1980. The plaintiffs had thus knowledge of the said deed at least on the date of the objection made by them on 11.2.1980. The suit was filed on 14.5.1986, admittedly, much beyond the prescribed period of limitation seeking the relief of cancellation of the sale deed. It has been rightly urged by the learned counsel for the respondents that unless the 1st claim for cancellation of the sale deed is decreed in favour of the plaintiff their right, title cannot be declared in respect of the suit land and second relief prayed for by them cannot be granted. In that view, I find no illegality in the finding of the Lower Appellate Court that the suit was barred by law of limitation. In that view, I find no illegality in the finding of the Lower Appellate Court that the suit was barred by law of limitation. Regard being had the nature of the suit, the provision of Article 59 of the Limitation Act has been correctly referred to and applied by the learned lower appellate Court in deciding the question of limitation. 10. In view of the above discussion and findings though the first substantial question is answered in favour of the appellants yet the plaintiffs-appellants cannot get the relief prayed for and the suit being barred by law of limitation cannot be decreed in their favour. 11. This appeal is accordingly disposed of. There shall be no order as to costs.