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2012 DIGILAW 170 (HP)

Kaushalya v. Dehro

2012-04-09

RAJIV SHARMA

body2012
JUDGEMENT Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 28.11.2011 rendered by the learned Additional District Judge, Fast Track Court, Chamba in Civil Appeal No. 22 of 2011. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for declaration and injunction against respondents-defendants (hereinafter referred to as ‘defendants’ for convenience sake) that Sh. Munshi Ram husband of the plaintiff was owner in possession of the land detailed in the plaint measuring 15-9-00 bighas situated in Mauza Sach, Tehsil and District Chamba and that defendant No.1, namely, Dehro is not owner in possession of the suit land as she is wife of one Sh. Dumanu Ram. She is completely stranger to the suit property. According to her, defendant No.1 in connivance with the revenue officials wrongly and illegally represented herself as wife of deceased Munshi Ram and got mutation No. 356 dated 11.9.1972 attested in her favour. Thereafter, she procured the revenue papers. She came to know about the wrong revenue entries. Revenue entries and mutation were challenged by respondents No. 2 and 3, namely, Chain Lal and Suti by way of civil suit bearing No. 266/95/93 and before the learned District Judge, Chamba in Civil Appeal No. 19/1996 as well as before this Court in RSA No. 50/1998. According to her, the mutation and judgments were not binding on her since she was not made party in these proceedings. She further pleaded that defendant No.1 sold the suit property to defendants No. 1-A and 1-B vide registered sale deeds dated 12.8.2004 and 29. 10.2004 and mutation Nos. 932 dated 18.9.2004 and No. 939 dated 9.3.2005 are illegal.The cause of action according to the plaintiff arose to her on 11.9.1972 when the wrong and illegal mutation was sanctioned during the month of August, 2002. 3. Suit was contested by defendants No. 1, 1-A and 1-B. According to defendant No. 1, the suit has been instituted to harass her. According to her, the suit has been filed at the instance of defendants No.2 and 3, namely, Chain Lal and Smt. Suti, who remained unsuccessful upto the High Court. The plaintiff is wife of Netar. 3. Suit was contested by defendants No. 1, 1-A and 1-B. According to defendant No. 1, the suit has been instituted to harass her. According to her, the suit has been filed at the instance of defendants No.2 and 3, namely, Chain Lal and Smt. Suti, who remained unsuccessful upto the High Court. The plaintiff is wife of Netar. It was reiterated that Munshi Ram was husband of defendant No.1 and after his death; she has inherited the suit land, which was in her possession and the mutation was attested in the presence of Smt. Suti and Chain Lal. It was denied that the plaintiff has ever remained in physical possession of the suit property. Defendant No.1- A in his written statement has stated that the plaintiff never remained in possession of the suit land. He was bona fide purchaser of the suit property for consideration. Respondent No. 1-B has also stated that the plaintiff has never remained in possession of the suit land. He was the bona fide purchaser. 4. The replication was filed to the written statement filed by the defendants. Issues were framed on 5.12.2005 and 5.4.2008. Learned Civil Judge (Senior Division) dismissed the suit on 18.6.2011.Plaintiff preferred an appeal before the Additional District Judge, Fast Track Court, Chamba. He also dismissed the same on 28.11.2011. Hence, the present Regular Second Appeal. 5. Mr. N.K. Thakur, learned Senior Advocate has strenuously argued that both the courts below have misread and misconstrued the oral as well as documentary evidence led by the parties. He specifically argued that the courts below have misread Ex.PW-3/A in particular. 6. Notice was issued to the respondents. Mr. M.S. Guleria has put in appearance on behalf of respondent No.1 and Mr. Ashok Sharma has put in appearance on behalf of respondent No.3. Mr. M.S. Guleria and Mr. Ashok Sharma have supported the judgments and decrees passed by both the courts below. 7.I have heard the learned counsel for the parties and have perused the judgments carefully. 8.Plaintiff has appeared as PW- 1. She has produced her evidence by way of affidavit Ex. PW- 1/A. According to Ex.PW- 1/A, Dehro was not wife of Munshi Ram. She was wife of Dumanu. She came to know about mutation No. 356 in the month of August, 2002. PW-2 is Man Singh. 8.Plaintiff has appeared as PW- 1. She has produced her evidence by way of affidavit Ex. PW- 1/A. According to Ex.PW- 1/A, Dehro was not wife of Munshi Ram. She was wife of Dumanu. She came to know about mutation No. 356 in the month of August, 2002. PW-2 is Man Singh. He has also led his evidence by way of affidavit Ex.PW-2/A. According to the affidavit, Munshi Ram, husband of the plaintiff was owner of the suit land after his demise, plaintiff came in possession. Defendant No.1 was not widow of Munshi Ram. She is widow of Dumanu. PW-3 Vikram Kumar, Secretary has proved the Pariwar register Ex.PW-3/A. According to Ex.PW-3/A, the plaintiff is shown to be the wife of Munshi, but in his cross-examination, he has admitted that he has not brought any record of the entry of marriage of plaintiff and Munshi and is not aware as to who has made the entry in the register. 9. Defendant No.1 has appeared as DW- 1. She has corroborated her stand in the written statement. 10. Mutation No. 356 was attested on 11.9.1972. The issue of marriage of plaintiff with Munshi Ram has been dealt with in previous civil suit No.266/95/93 by the learned Civil Judge in judgment dated 27.8.1996. Learned Civil Judge has held that plaintiff was not legally wedded wife of Munshi Ram. The Appeal was carried out against the judgment and decree dated 27.8.1996 bearing Civil Appeal No. 19/1996 before the learned District Judge, Chamba. He dismissed the same on 13.7.1997. Thereafter, RSA No. 50/1998 was preferred before this Court. This Court dismissed the same vide judgment dated 1.7.2002. It cannot be presumed that the plaintiff was not aware of these proceedings for 30 years. 11. Plaintiff has claimed that she resides at village Guganh. She is residing there for the last 20 years. However, in affidavit Ex.PW- 1/A, the address of the plaintiff is village Bhujja. She has admitted that mother- in-law Suti and brother-in-law Chain Lal had filed case before the Tehsildar that Dehro defendant No.1 was not wife of Munshi Ram. She has admitted that the case was rejected by the Tehsildar. She has also admitted about the litigation which came up to this Court. She has also admitted that she did not become party in the earlier litigation. She has admitted that the case was rejected by the Tehsildar. She has also admitted about the litigation which came up to this Court. She has also admitted that she did not become party in the earlier litigation. She testified that she faintly knows Netar Singh, but she specifically denied that she is wife of Netar Singh. She has not explained in whose house she is residing in village Bhujja. She has not explained when she solemnized marriage with Munshi Ram. The plaintiff has also not placed on record any material to establish her marriage. PW-2 Man Singh has admitted that plaintiff resides in village Guganh and also in village Bhujja but failed to disclose in whose house she resides in village Bhujja. Now, as far as Pariwar register Ex.PW-3/A is concerned, PW-3 Vikram Kumar has stated that the entry has been made on the basis of old register, however, the fact of the matter is that the old register was not produced. PW-3 has not disclosed anything about the relationship of plaintiff with Munshi Ram except proving Ex.PW-3/A. Munshi Ram has died in the year 1972. It is difficult to believe that she came to know about the mutation No. 356 dated 11.9.1972 in the month of August, 2002. There are also cuttings in Ex.PW-3/A, which have not been explained in any manner. In earlier litigation, which had come upto this Court, it was conclusively held that the plaintiff was not wife of Munshi Ram. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the judgments. 12. Consequently, in view of the observations and analysis made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.