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2019 DIGILAW 513 (HP)

Hari Chand v. Kumari Anita

2019-04-30

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The plaintiff is the appellant and aggrieved by the impugned judgments and decrees passed by both the learned courts below, has filed the present appeal. The parties shall be referred to as the plaintiff and defendants. 2. Briefly stated the facts leading to filing of the present appeal are that the plaintiff filed a suit for declaration against the defendants that defendants No. 1 and 2 are not born from the wedlock of the plaintiff and they are not entitled to succeed to the property of the plaintiff. It is averred that he is co-owner in joint possession of land comprised in Khata Khatauni No.4/4 plots 19 measuring 55-0 Bighas to the extent of 1/5th share, Khata Khatauni No.5/5 to 8, plots 4 measuring 15-13 bighas to the extent of 1/20th share, Khata Khatauni No. 22/29 to 30 plots 4 measuring 43-13 bighas to the extent of 10/285 share total measuring 13-7 Bighas situated in Village Jamlog and Khata Khatauni No. 7/14 plots 3 measuring 3-15 bighas to the extent of 16/672 share, Khata Khatauni No. 8/15 to 16 plots 22 measuring 219-19 bighas to the extent of 1/28 share, Khata Khatauni No. 9/17 to 22 plots 15 to the extent of 1/28 share and Khata Khatauni No. 17/54 to 56 plots 28 measuring 261-1 Bighas to the extent of 1/112 share, total measuring 3-15 bighas situated in Village Bando Bharan, Tehsil Pachhad, District Sirmaur, H.P. It is further averred that the plaintiff was married to defendant No.3 in the year 1994, who was already married to Mohan Lal of Village Zajar; Balkoo of Village Deedag and Keshwa Nand of Village Kolath. At the time of marriage with plaintiff, she was having a female child Nikki alias Anita, defendant No.1, who was one year old. The defendant No.1 is recorded in the family of Shri Kanshi Ram, father of defendant No.3 in the Pariwar register. At the time of marriage of the plaintiff with defendant No.3, she was already pregnant and she delivered female child, namely, Ranjana, defendant No.2 two months after the marriage. Thus, defendants No. 1 and 2 are not children of defendant No.3 from the loins of the plaintiff. The Sub Divisional Judicial Magistrate, Rajgarh in criminal case No. 41/4 of 1999 on 3.1.2000 awarded maintenance to defendants No. 1 to 3 and Rakesh. Thus, defendants No. 1 and 2 are not children of defendant No.3 from the loins of the plaintiff. The Sub Divisional Judicial Magistrate, Rajgarh in criminal case No. 41/4 of 1999 on 3.1.2000 awarded maintenance to defendants No. 1 to 3 and Rakesh. Defendant No.3 at that had admitted that Kumari Ranjana was born 3-4 months after the marriage with the plaintiff. Therefore, defendants No. 1 and 2 are not the children of the plaintiff, thus, they are not entitled to maintenance etc. Hence, the suit. 3. The defendants contested the suit by filing written statement, wherein preliminary objections regarding maintainability and estoppel were taken. On merits, they averred that defendant No.3 is legally wedded wife of the plaintiff and all children of defendant No.3 are from the plaintiff. Defendant No.3 denied that she was married to Mohan Lal, Keshwa Nand and Bhalkoo. 4. After recording the evidence and evaluating the same, the learned trial court dismissed the suit vide judgment and decree dated 15.6.2005 and the appeal filed against the said judgment and decree also came to be dismissed by the learned first appellate court vide judgment and decree dated 4.1.2006 constraining the plaintiff to file the instant appeal. 5. On 10.4.2006, the appeal was admitted on the following substantial questions of law:- (i) Whether the trial court as well as first appellate court erred in law in holding that the order made under Section 125 of the Code of Criminal Procedure for the grant of maintenance is final and not subject to civil suit? (2) Whether the learned first appellate court erred in law in ignoring the admissible evidence which, if considered, would have led to opposite conclusion? 6. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. 7. It is vehemently argued by learned counsel for the plaintiff that the learned courts below have ignored the basic principles of law that it is the judgment of the civil court that is binding on criminal court and not vice versa and, therefore, the learned courts below have erred in basing their findings upon the proceedings carried out under Section 125 of the Criminal Procedure Code, wherein defendants No. 1 and 2 were granted maintenance on the ground that they were daughters of the plaintiff from defendant No.3. 8. 8. Even though the argument appears to be attractive and insofar as the legal position is concerned, the same is also correct, but the moot question is whether the findings rendered by both the learned courts below are based upon findings rendered by the criminal court. 9. For this purpose, if one would advert to the findings recorded by the learned trial court, it would be noticed that the court has only held that the order of granting maintenance to defendants No. 1 and 2 under Section 125 of the Criminal Procedure Code had attained finality and nowhere have the courts below proceeded to conclude that since the order of granting maintenance was final, it could not be subject matter of the civil suit. Both the learned courts below have independently assessed the oral and documentary evidence and only thereafter have proceeded to dismiss the suit filed by the plaintiff after concluding that the plaintiff had failed to establish on record that defendants No. 1 and 2 were not born to defendant No.3 from his loins. The evidence shall be referred to in detail while answering substantial question of law No.2. 10. What in fact is more intriguing is that in case the plaintiff was very sure and confident about the suit filed by him questioning the paternity of defendants No. 1 and 2, then why did he not seek DNA profiling test before either of the courts below or for that matter before this Court, which would have determined the paternity beyond all reasonable doubts. 11. In such circumstances, the learned first appellate court was right in invoking the provisions of Section 112 of the Indian Evidence Act and applying the presumption there under. This substantial question of law is accordingly answered against the plaintiff. SUBSTANTIAL QUESTION OF LAW NO.2 12. At the outset, it needs to be observed that the plaintiff has not disclosed his date and month of marriage with defendant No.3, which according to him, took place in the year 1994. As against this, the case of the defendants is that the marriage of defendant No. 3 and the plaintiff was solemnized in the year 1990 and said fact was duly proved and corroborated by DW2 Virender and defendant No.3, who appeared in the witness box as DW1 and stated on oath that her marriage with the plaintiff was solemnized 15 years back. To the similar effect is the testimony of her brother, DW2 Virender. The statements of both these witnesses were recorded on 14.3.2005 and clearly could establish that the marriage was solemnized somewhere in the year 1990. 13. Therefore, in the given circumstances, the learned courts below had committed no error in concluding that the question of recording wrong entry in the birth register, Ext.PW1/C, where defendant No.2 is shown to have born on 11.8.1994 does not arise. 14. Even otherwise, in case cross examination of the plaintiff is adverted to, it would be noticed that while appearing as PW1, he himself had been candid enough to admit that when he admitted defendant No.1 in the school, he recorded her as his own daughter. When further cross-examined, he admitted that his marriage with defendant No.3 was the result of negotiation, which was initiated by Kanshi Ram and he had married defendant No.3 after fully understanding what he was doing. He further admitted that prior to his marriage with defendant No.3, he had already married twice and both his wives had already left him. 15. No doubt, in pariwar register, Ext. PW1/A, one Nikki is entered as daughter of Urmila Devi, defendant No.3, but it is not at all proved that whether Nikki is the same child, whose name is Anita (defendant No.1) nor does it mean that merely because Nikki was recorded as daughter of Urmila, she was not born to Urmila out of the loins of the plaintiff. 16. Another mitigating circumstance against the plaintiff is the proceedings initiated by defendant No.3 under Section 125 of the Criminal Procedure Code, in which, the court ordered maintenance and the said order has attained finality. In case defendants No.1 and 2 were not born to defendant No.3 out of loins of the plaintiff, then the reason as to why the plaintiff did not assail the order of maintenance is not forthcoming. 17. Learned counsel for the plaintiff has failed to point out any part of the pleadings or for that matter even the evidence that has an important bearing in this case, which has been ignored by the courts below. 18. On the basis of aforesaid discussion, this substantial question of law is also answered against the plaintiff. 19. 17. Learned counsel for the plaintiff has failed to point out any part of the pleadings or for that matter even the evidence that has an important bearing in this case, which has been ignored by the courts below. 18. On the basis of aforesaid discussion, this substantial question of law is also answered against the plaintiff. 19. For the forgoing reasons, I find no merit in this appeal and the same is accordingly dismissed leaving the parties to bear their own costs. Pending applications, if any, also stands disposed of.