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2013 DIGILAW 1549 (MP)

Nand Kishore v. Ram Singh

2013-12-13

ROHIT ARYA

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JUDGMENT 1. The instant appeal is directed against the reversing judgment of the first appellate Court dated 22nd September, 2001 passed in Civil Appeal No.6-A/1991 and 14-A/1992 setting aside the judgment and decree dated 29th November, 1989 passed in Civil Suit No.347-A/1984. 2. This Court vide order dated 26.4.2008 had admitted the appeal on the following substantial question of law : “(1) Whether in view of undisputed fact that Harru died in the year 1962 and Ram Singh was born after his death in the year 1965-66, the Courts below committed error in decreeing the suit of the respondents by holding that he has 1/2 share over the suit property?” 3. Necessary facts relevant for decision of this appeal as per plaint allegations are that one Ram Singh s/o Harru Lodehi and Deva w/o Harru instituted a Civil Suit No.347-A/1984 on 2.9.1984 for declaration of title and permanent injunction seeking ownership rights over the suit land and permanent injunction against the defendant No.1 Vaide from interfering in the possession of the plaintiffs on the premise that Harru was Bhoomiswami of the suit land described in the schedule “A” appended to the plaint. Harru had 4 heirs viz. wife Deva (plaintiff No.2), son Ram Singh (plaintiff No.1), daughters Vaide (defendant No.1) and Kalia. Prior to filing of suit Harru died 18 years ago and Kalia died 12 years ago. Accordingly it was claimed that in view of section 15(1)(c) of the Hindu Succession Act, 1956, share of Kalia devolved upon mother Deva. Accordingly, the plaintiffs claimed title over 3/4 share in the suit property as against defendant No.1 Vaide. 4. Defendant No.1 Vaide by filing written statement has denied the plaint allegations and took the stand that Ramsingh was not the son of Harru and Deva. Deva also ceased to be the wife of Harru. It was claimed that only defendant Vaide and deceased Kalia are the daughters of Harru. It was further asserted that during lifetime of Harru, plaintiff No.2 Deva divorced Harru and married to one Julla as per the prevailing customs. From the wedlock of Julla and Harru, plaintiff No.1 Ramsingh was born. On such premises, defendants claimed that neither the plaintiff No.1 nor the plaintiff No.2 have any right in the suit property left behind by Harru. From the wedlock of Julla and Harru, plaintiff No.1 Ramsingh was born. On such premises, defendants claimed that neither the plaintiff No.1 nor the plaintiff No.2 have any right in the suit property left behind by Harru. After the death of Harru, sole survived heir is defendant No.1 Vaide only as another daughter Kalia has already been died. Hence, defendant No.1 Vaide is the sole owner of the suit land owned and left behind by Harru. The suit land is in the name of defendant No.1 Vaide and she is in the cultivating possession. The defendant No.1 has also taken a stand that even otherwise she has perfected the title over the suit land by adverse possession. 5. The trial Court framed the issues and allowed the parties to lead evidence. The trial Court upon critical evaluation of the evidence on record, recorded a finding to the effect that (i) neither the plaintiff No.2 had divorced the Harru nor did she re-marry to Julla; (ii) plaintiff No.2 Deva is the widow of Harru; (iii) plaintiff No.1 Ramsingh was not born out of wedlock of Deva and Julla. As a matter of fact, there is no evidence on record to establish conclusively that Ramsingh was not son of Harru. The trial Court reached to the aforesaid conclusion merely on the basis of revenue entries of year 1962-63 as according to trial Court after the death of Harru, name of Ram Singh was not recorded in the revenue record and assumed his date of birth in 1965-66. It is pertinent to mention here that there is nothing on record to establish about the period of death of Harru. On the aforesaid factual determination, the trial Court decreed the suit to the effect that plaintiff No.2 is entitled for 2/3 share in the property left by Harru and defendant No.1 was held to be entitled for 1/3 share in the property left by Harru by the impugned judgment. 6. Being aggrieved thereby, appellant of present appeal preferred Civil Appeal No.6-A/1991 claiming that the plaintiff No.2 Deva was not entitled for any share as she had remarried to Julla in the lifetime of Harru. They claimed that evidence in this behalf have not been correctly appreciated by the Court below, therefore, according to the appellants therein, Deva had no right to suit property left behind by Harru. They claimed that evidence in this behalf have not been correctly appreciated by the Court below, therefore, according to the appellants therein, Deva had no right to suit property left behind by Harru. Another Civil Appeal No.14-A/92 was preferred by plaintiff-respondent No.1 Ram Singh. The plaintiff No.2 Deva was also made party to the same vide plaintiff No.2 who died during the pendency of the appeal in the year 1994. In that appeal, the appellant Ramsingh has asserted that he is the son of Harru and having 1/4 share of the property left behind by Harru. The first appellate Court has reversed the findings of the trial Court regarding alleged marriage of Deva with Julla and recorded the finding that neither she divorced Harru nor re-married Julla. She is widow of Harru. The first appellate Court reversed the findings of the trial Court to the effect that Ram Singh was born out of wedlock of Harru and Deva and not that of Julla and Deva as alleged. 7. As regards possession, the first appellate Court held that suit land has not been partitioned and, therefore, parties are in joint possession. Accordingly, the first appellate Court dismissed the appeal of the defendant No.1 Vaide and allowed the appeal that of plaintiff No.1 and decree was modified accordingly to the extent that plaintiff No.1 is entitled for 3/4 share as plaintiff No.2 has bequeathed her property to plaintiff No.1 by Will and defendant No.1 is entitled for 1/4 share. It was not the case of the defendant No.1 that Ramsingh was born from some other person. Accordingly the Civil Appeal No.6-A/91 preferred by defendant No.1 was dismissed and Civil Appeal No.14-A/92 filed by the plaintiff No.1 was allowed. The first appellate Court after independent critical evaluation of the entire evidence brought on record by both the sides, the first appellate Court has found that there is no documentary evidence i.e. voter list, ration card etc. on record to establish that plaintiff No.2 Deva had remarried Julla. As regards defence witnesses DW1 to DW4, the Court below have found that DW3 is relative of DW1 and DW4 is husband of DW1 and DW2 is one of the claimants. As such the statements being given by these witnesses along with defendant No.1 are statements by interested persons. on record to establish that plaintiff No.2 Deva had remarried Julla. As regards defence witnesses DW1 to DW4, the Court below have found that DW3 is relative of DW1 and DW4 is husband of DW1 and DW2 is one of the claimants. As such the statements being given by these witnesses along with defendant No.1 are statements by interested persons. However, deposition that plaintiff No.2 Deva had remarried Julla during lifetime of Harru is not found to be credible. Apart from this, there are contradictions and inconsistence in the statements of interested witnesses. The first appellate Court, therefore, in paras 24 and 25 has held that Dewa was the legally married wife of Harru. This finding of fact is absolutely impregnable and no illegality or perversity is found by this Court while confirming the aforesaid conclusion by both the Courts below. 8. As regards issue No.2 as to whether the plaintiff No.1 is born of wedlock of Deva and Harru. The first appellate Court has discussed the evidence on record in paras 27, 28 and 29 and record its conclusion in paras 31 and 32 that the plaintiff No.2 has stated that Ram Singh was born out of the cohabitation of Harru and herself. That apart PW4 who is from the family of Harru has also confirmed the fact that plaintiff No.1 Ramsingh is son of his uncle Harru. The Courts below have found that defence witnesses were interested persons as discussed hereinabove. Defendant No.1 in her deposition stated that she heard from villagers that Ramsingh was born of Deva and Julla, which is toed by the aforesaid interested witnesses. Such statements are found to be hypothetical. That apart, the defence witnesses have expressed their ignorance as to in which village Ram Singh was born. Apart from the weak evidence of defence, the first appellate Court has also found that the defence witnesses are interested witnesses being relative to each other. Hence, their deposition in their evidence have been found to be concocted. The first appellate Court has also found that there is no evidence on record to show that Ram Singh at any point of time was shown to be son of Julla in revenue records, voter list, ration card, birth and death register. Hence, their deposition in their evidence have been found to be concocted. The first appellate Court has also found that there is no evidence on record to show that Ram Singh at any point of time was shown to be son of Julla in revenue records, voter list, ration card, birth and death register. Accordingly, the first appellate Court has reversed the findings of the trial Court and held that Ram Singh was born of plaintiff No.1 Deva and Harru. 9. As regards possession over the suit property, it has been found that suit property undisputedly belonged to late Harru which shall be succeeded by his wife plaintiff No.2 Dewa, son Ram Singh and dauther Vaide and another daughter Kalia who has already expired.l Merely because in the revenue records the name of defendant No.1 Vaide has been recorded, this by itself would not lead to the conclusion that she was the only heir of Harru or she had succeeded the entire property to the exclusion of plaintiffs No.1 and 2. It is a settled principle of law that property in possession of one of the co-owners shall always be deemed to have been in joint possession of co-owners and no adverse inference can be drawn otherwise. 10. The age of the plaintiff No.2 shown in the cause title of the plaint is an assumed date and not based on any documentary evidence, therefore, the conclusion drawn by the trial Court on the basis of age shown in the plaint that plaintiff was not the son of Harru was not correct. The plaintiffs are rustic villagers and are illiterate. If some age is shown against their names in the cause title that by itself cannot lead to assume the same as correct date of birth as there is no evidence on record that he was born somewhere in year 1966. This fact is presumed for the reason that name of defendant No.1 was recorded in the revenue record in respect of suit land in year 1962-63. Such assumption of trial Court that Ramsingh was born somewhere in 1966, therefore, was rightly negated by the first appellate Court. That apart there is presumption under section 112 of the Evidence Act about the legitimacy of a child. The parties seeking to rebut the presumption must show that husband and wife have no access during the relevant period. Such assumption of trial Court that Ramsingh was born somewhere in 1966, therefore, was rightly negated by the first appellate Court. That apart there is presumption under section 112 of the Evidence Act about the legitimacy of a child. The parties seeking to rebut the presumption must show that husband and wife have no access during the relevant period. There is no evidence placed on record that Deva and Harru had no access to each other. Section 112 of Evidence Act reads as under : “112. Birth during marriage, conclusive proof of legitimacy. -- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.” I may usefully refer to the judgment rendered by Supreme Court in the context of section 112 of the Evidence Act in the case of Smt. Kamti Devi and another v. Posho Ram [ (2001)5 SCC 311 ]. Para 10 of the aforesaid judgment reads as under : “10. But section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. Normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative. The raison d’etre is the legislative concern against legitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents.” 11. The raison d’etre is the legislative concern against legitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents.” 11. The first appellate Court has also discussed the issue of apportionment of the share amongst three to the effect that parties being Hindu by religion and governed by Mitakshara, after the death of Harru, the property was to be devolved upon his wife Deva, son Ramsingh and dauther Vaide since his another daughter had already died, and therefore, her share shall also go to the share of his mother plaintiff No.1 Deva. Accordingly 1/2 share (1/4 of Deva and 1/4 of deceased daughter Kalia) shall go to Deva and 1/4 shall go to plaintiff No.2 Ramsingh and remaining 1/4 share shall go to defendant No.1 Vaide and after the death of Deva, her share go to her son Ramsingh, accordingly he is entitled for 3/4 share of the suit property. 12. Suit is also found to be filed in limitation as discussed in paras 42 and 43 of the impugned judgment. The first appellate Court has also discussed the documents brought on record by way of filing application under Order XLI rule 27 of CPC and in paras 50 and 51, it has held that the application under Order XLI rule 27 CPC, whereby, certain Khasra entries sought to be brought on record are documents showing entry of name of defendant No.1 in revenue record, are of no consequence because it is a settled principle of law that property in possession of one of the co-owners shall always be deemed to have been in joint possession of co-owners and no adverse inference can be drawn otherwise. 13. The first appellate Court while reversing the findings of the trial Court on the issue whether Ramsingh is born of the cohabitation of Harru and Deva has again been discussed in detail by first appellate Court. There is no dispute over the fact that Ram Singh was given birth by plaintiff No.1 Deva. Further Julla himself in his evidence has stated that he has never married Deva and Ram Singh is not his son. It is not the case of the defendants that Ramsingh was born out of cohabitation of Deva with some third person. There is no dispute over the fact that Ram Singh was given birth by plaintiff No.1 Deva. Further Julla himself in his evidence has stated that he has never married Deva and Ram Singh is not his son. It is not the case of the defendants that Ramsingh was born out of cohabitation of Deva with some third person. Under such circumstances, the conclusion of the first appellate Court is based on the correct appreciation of evidence on record. The findings of the trial Court were rightly reversed. 14. Further the suit has rightly been found to be filed in time as no sooner Ram Singh attained the majority, he filed the suit as has been rightly discussed by first appellate Court in para 43 of the impugned judgment. 15. In the opinion of this Court the entire gamut of the matter is in the realm of facts. The conclusion drawn by the Courts below that plaintiff No.1 Deva was legally married wife of Harru and did not remarry to Julla during the lifetime of Harru is based on correct appreciation of evidence brought on record and does not warrant any interference in exercise of powers conferred under section 100 of CPC. 16. In view of the aforesaid discussion, the appeal is dismissed. No order as to costs.