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2018 DIGILAW 2235 (HP)

Jaya Sharma v. Prabhat Chand

2018-12-17

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The instant appeal is directed, against, the impugned verdict recorded, upon, Civil Appeal No.47 of 2003, by the learned First Appellate Court, whereby, it reversed the verdict pronounced by the learned trial Court, upon, Civil Suit No.86/1 of 2001, whereunder, the latter Court, had, decreed the plaintiff''s suit, for rendition of a decree, for, permanent prohibitory injunction. 2. Briefly stated the facts of the case are that the plaintiff filed a suit for permanent prohibitory injunction against the defendants. It is averred that she is resident of ward No.1 near temple Shree Naina Devi Ji and is in possession of suit property. It was averred that late Shri Roshan Lal, father-in-law of the plaintiff was owner of huge property including building at different places at Shree Naina Devi Ji consisting of more than 80 rooms. Defendant No.1 had contracted second marriage which was illegal and void, and, therefore, to keep peace in the family in 1986, Roshan Lal, father-in-law of the plaintiff had given the suit property to the plaintiff, who was put in possession of the same also and continued in possession of the same. Roshan Lal died in 1998 and the plaintiff had been enjoying the suit property given in her maintenance and as a charge created against this property. It was further alleged that in March, 2001, defendants started interfering in peaceful possession of the plaintiff over the suit land and plaintiff approached the Municipal Panchayat of Shri Naina Devi Ji in which compromise was arrived at and it was agreed that the management of the suit property will remain in the hands of the plaintiff who will be entitled to all the income from the suit property and will pay allowances to her husband for his maintenance. It was further alleged that in the first week of August, 2001, defendants started interfering in possession of the plaintiff and she lodged a complaint with S.D.M. Bilaspur and in October, 2001, the defendants have again threatened to dispossess her forcibly from the suit property, hence, the suit filed by the plaintiff. 3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections qua maintainability, cause of action, estoppel and jurisdiction They also pleaded that the plaintiff was not the wife of defendant No.1. 3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections qua maintainability, cause of action, estoppel and jurisdiction They also pleaded that the plaintiff was not the wife of defendant No.1. Defendants further pleaded that the plaintiff was not resident of Shree Naina Devi Ji, nor she was in possession of the suit land. The property of deceased has been inherited by defendants, whereas, the plaintiff has no right, title or interest in the suit property. It was also pleaded that the plaintiff is residing near Ghanahati, District Shimla, where she is employed as a teacher and suit property was never given to her by any person, and as such, the suit is liable to be dismissed. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP. 2. Whether in alternative the plaintiff is entitled for the possession, as prayed for?OPP 3. Whether the suit was not maintainable as alleged? OPD. 4. Whether the plaintiff has no legal enforceable cause of action, as alleged?OPD. 5. Whether the plaintiff is estopped to file this suit as alleged?OPD. 6. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom by the defendants/respondents herein before the learned First Appellate Court, the latter Court allowed the appeal, and, reversed the findings recorded by the learned trial Court. 6. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein she assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 15.7.2005, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial questions of law:- 1. Whether the Lower Appellate Court has committed grave error of law in holding Ex.PA to be inadmissible evidence for want of production of original by ignoring the admissions made by the defendant No.1 was signatory to the Ex.PA? Whether the Lower Appellate Court has committed grave error of law in holding Ex.PA to be inadmissible evidence for want of production of original by ignoring the admissions made by the defendant No.1 was signatory to the Ex.PA? Was not Ex.PA material document liable to be considered for determining the controversy involved in the proceedings when defendant No.1 himself admitted the said document to be correct and also acknowledged the conditions mentioned therein? 2. Whether the Lower Appellate Court has committed grave procedural error I reversing the well reasoned findings of the Trial Court with wrong premises that such findings are based on inadmissible documents i.e. Ex. PA? 3. Whether the Lower Appellate Court has acted with material illegality and irregularity in recording the findings that marriage between the plaintiff and defendant No.1 was also void marriage when there was neither any issue nor such dispute arose from the pleadings of the parties? Substantial questions of Law No.1 to 4: 7. The entire fulcrum of the lis, hence, engaging the parties at contest, is, squarely rested, upon, valid, and, permissible proof, being adduced by the plaintiff, vis-a-vis, the execution of Ex.PA, (i) given thereunder hers rather staking a claim for rendition of a decree, for permanent prohibitory injunction. Ex.PA is a photo copy. The recitals borne in Ex.PA, and, the signatures of all the signatories thereto, obviously, when are borne in a photo copy, thereupon, per se, the, afore obviously, is, not primary evidence, vis-a-vis, the relevant factum probandum. The further effect thereof is qua Ex.PA being inadmissible in evidence, (ii) besides all the contents thereof not carrying any probative vigour or any evidentiary worth, (iii) the afore stains gripping Ex.PA, were, however erasable, upon, the plaintiff being permitted to, upon, hers begetting satiation of the principles enshrined in Section 65, of, the Indian Evidence Act, to, adduce, hence, Ex. PA, as secondary evidence, vis-a-vis, original thereof. The records appertaining to the civil suit No. 86/1 of 2001, omit to make disclosures qua the aforesaid endeavour being recoursed by the plaintiff. Consequently, the rigor of the statutory bar, against, the afore photo copy being inadmissible in evidence, with, the further concomitant effect of all, the, recitals borne therein, being unreadable, besides not carrying any evidentiary worth rather begetting their mightiest attraction, vis-a-vis, Ex.PA. 8. Consequently, the rigor of the statutory bar, against, the afore photo copy being inadmissible in evidence, with, the further concomitant effect of all, the, recitals borne therein, being unreadable, besides not carrying any evidentiary worth rather begetting their mightiest attraction, vis-a-vis, Ex.PA. 8. However, the learned counsel appearing for the appellant/plaintiff has contended with much vigour (i) that with the defendant in his cross-examination, hence, admitting, the execution of Ex.PA, and, in his crossexamination, also his, making further echoing that it stood drawn, vis-a-vis, the suit property, (ii) thereupon, the rigor of the afore statutory bar being relaxed, and, thereupon, Ex.PA, dehors the apt recoursing being made by the plaintiff, the afore being admissible and readable in evidence. The aforesaid contention addressed before this Court by the learned counsel, for the appellant is unmeritworthy, for the reasons, (a) that a closest reading of Ex.PA, rather making a vivid, and, graphic echoing, qua Ex.PA also carrying, the, signatures, of, the Pradhan of the Gram Panchayat concerned, besides the signatures of other co-signatories thereto also existing thereon, (b) the existence of afore signatures therein, necessitated, candid apposite proof rather emanating from the Pradhan of the Gram Panchayat concerned, besides enjoined proof of signatures of all the co-signatories thereof, comprised in each of them, stepping into the witness box, for hence proving, the, existence of their valid signatures thereon. However, neither the Pradhan of the Gram Panchayat concerned nor all the signatories thereof, (c) apart from the plaintiff or one Prabhat Kumar, hence stepped, into the witness box, for hence proving, the, existence(s) thereon, of, their respective valid signatures thereon, (d) whereas, proof qua therewith was imperative, for thereafter securing clinching finding, qua Ex.PA, being free from any taint of concoctions, spuriousness, and, fictitiousness. Contrarily, non adduction of the aforesaid evidence, does, prima facie render Ex.PA, to, stand ingrained, with vices of spuriousness, and, fictitiousness, and, the further effect thereof is qua Ex.PA, hence, being neither admissible or readable in evidence nor the plaintiff being entitled to derive any capitalization therefrom. 9. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court being based, upon, a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. 9. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court being based, upon, a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the respondents/defendants, and, against the plaintiffs/appellants. 10. In view of the above discussion, there is no merit in the instant Regular Second Appeal, and, it is dismissed accordingly. In sequel, the judgement and decree rendered by the learned District Judge, Bilaspur, H.P., upon, Civil Appeal No. 47 of 2003, is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.