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2023 DIGILAW 1605 (ALL)

Krishna Chand Srivastava v. Rampati

2023-07-06

JASPREET SINGH

body2023
JUDGMENT Jaspreet Singh, J. This is the plaintiff's second appeal assailing concurrent judgement and decree passed by the Additional Munsif, Akbarpur, Faizabad in Regular Suit no. 24 of 1978 whereby the suit for injunction and partition filed by the plaintiffs was dismissed and the appeal preferred by the appellants before the Special Additional District bearing No. 252 of 1983 was also dismissed by means of judgement and decree dated 02.12.1998. 2. The aforesaid second appeal was admitted on 26.02.1999 on substantial question of law as formulated at serial Nos. 1 and 3 in the memo of appeal. "(I) Whether the lower appellate court in not formulating the points for determination in appeal as provided under Order 41, Rule 31 C.P.C. The judgement and decree rendered by the lower appellate court stand vitiated? (iii) Whether the statement made by Shiv Shankar Lal admitted to be the owner of the property in dispute relating to his nomination in the retirement file acknowledging that Smt. Saraswati being his wife and on her death the pensionary benefits will go to daughter Smt. Rampat, defendant-respondent, will not be admissible under Section 32 of the Evidence Act and which evidence being most relevant and material to the issue in controversy, the courts below in ignoring to consider the said statement the judgements and decrees rendered by the courts below stand vitiated?" 3. The record indicates that the original defendant/respondent died during the pendency of the appeal and is now substituted by the legal heirs. The appellants had also filed C.M.A. No. 46599 of 2016 under Order 41, Rule 27 (1) (aa) C.P.C. and by means of the said application, the appellants purport to bring on record a judgement passed by Hon'ble the Supreme Court dated 05.02.2016 passed, inter-se the parties, in respect of the issue of title which was being agitated by the parties in the consolidation courts. The Apex Court in its judgement dated 05.02.2016, though, set aside the order passed by the Writ Court arising out of the consolidation proceedings in respect of the issue of inheritance and succession as analyzed by the High Court but it was made subject to the outcome of the second appeal which is pending before this Court. 4. The Apex Court in its judgement dated 05.02.2016, though, set aside the order passed by the Writ Court arising out of the consolidation proceedings in respect of the issue of inheritance and succession as analyzed by the High Court but it was made subject to the outcome of the second appeal which is pending before this Court. 4. Since the judgement passed by the Apex Court is in respect of the similar controversy in between the same parties and is definitely a material judgement which has been passed during the pendency of the instant appeal, accordingly, the said application is allowed and the judgement dated 05.02.2016 passed by the Hon'ble Supreme Court in Civil Appeal No. 901 of 2016 is taken on record and its effect shall also be considered while considering the case of the parties. 5. In order to appreciate the controversy involved in the instant second appeal, brief facts leading to the appeal are being noticed hereinafter: 6. The property in question belonged to one Sri Shiv Shankar Lal. The appellants before this Court who were the plaintiffs before the Trial Court had filed a suit for injunction and partition bearing R.S. No. 24 of 1978 with the averments that Sri Shiv Shankar Lal upon the death of his first wife had re-married Sursati @ Satta. Upon the death of Sri Shiv Shankar Lal, his property devolved on Smt. Sursati @ Satta having half share and the other half was inherited by his daughter namely Smt. Ram Pati from the first wife. It was also stated that Smt. Sursati @ Satta had executed a registered will dated 18.10.1977 in favour of the plaintiffs (who were the sons of the brother of Smt. Sursati @Satta) i.e. in favour of her nephews. A reference was also made in the plaint regarding the dispute pending before the Consolidation Authorities and it was also urged that when the plaintiffs had gone to attend the post death ceremonies of Smt. Sursati @ Satta, the defendant with the help of other persons forcibly took over the possession of the entire house in question and despite having made complaints to all the relevant Authorities, yet no action was taken and thereafter the plaintiffs were compelled to institute the aforesaid suit. 7. 7. The suit came to be contested by the defendant with the plea that her father Sri Shiv Shankar Lal had never re-married nor Smt. Sursati @ Satta was his second wife. It was further stated that Smt. Sursati @ Satta was the daughter of Mohanlal and was a resident of Kakrahi village. She was married to one Sri Shatrughan Lal of Village Bhamuwanpur. Since Sursarti did not have good relations with her husband, hence, very often, she used to reside in Tanda District Ambedkar Nagar. Since Sri Shiv Shankar Lal was an employee in the post office in Tanda and Smt. Sursati used to do the kitchen and household work, accordingly, taking advantage, she got her fraudelent documents prepared by inserting her name as alias to read as Sursati @ Satta, thus, she neither had any right to execute the will nor she was the second wife and moreover there was no lady known by the name of Sursati @ Satta, accordingly, for all the aforesaid reasons, the suit was liable to be dismissed. 8. The Trial Court on the pleadings of the parties framed ten issues, however, the relevant issues upon which the suit was contested were:- (i) Whether the parties to the suit have any right in the ancestral property and if so, its effect? (ii) Whether the plaintiffs have a right of half share and entitled to the partition? (iii) Whether Smt. Sursati @ Satta was the legally wedded wife of Sri Shiv Shankar Lal? 9. The parties led their respective evidence both oral and documentary and anylysing the same, the Trial Court while dealing with the aforesaid three issues recorded a finding that the plaintiffs were unable to prove that Sursati also had an alias Satta. It also held that it could not be proved that Sursati was married to Shiv Shankar Lal and thus for the aforesaid reasons, it concluded that Smt. Sursati did not acquire any right of inheritance from Sri Shiv Shanker Lal and for the said reasons, she could not have executed any will in favour of the plaintiffs, accordingly, they were not entitled to get any relief, hence, the suit was dismissed by means of judgement an decree dated 28.05.1983 passed by the Additional Munsif, Akbarpur, District Faizabad. 10. 10. The plaintiffs preferred a Regular Civil Appeal bearing No. 252 of 1983 before the Special Additional District Judge, Faizabad who also by means of his judgement and decree dated 02.12.1998 dismissed the appeal which in turn prompted the plaintiffs/appellants to approach this Court by means of the present second appeal. 11. Sri Mohd. Arif Khan, learned Senior Counsel assisted by Sri Mohd. Aslam Khan, learned counsel for the appellants has submitted that there has been no proper consideration of the evidence by the Lower Appellate Court. Being a Court of First Appeal, it was incumbent upon the Lower Appellate Court to have considered not only the pleadings and submissions of the parties but also the evidence ought to have been considered threadbare and thereafter it could have recorded its finding but in the instant case after noticing the facts in a cursory manner, the Lower Appellate Court has merely recorded its conclusions agreeing with the findings of the Trial Court but not expressed its own reasons nor considered the evidence, hence, this procedure was against the mandate of Order 41, Rule 31 C.P.C. 12. The learned Senior Counsel further submits that how a first appeal is to be heard has been considered in a number of decisions and in support of his submissions, he has relied upon a decision of the Apex Court in Santosh Hazari v. Purshottam Tiwari 2001 (3) SCC 179 to contend that in case if the Lower Appellate Court did not exercise the powers appropriately as required of the First Appellate Court then this in itself is a substantial question of law where this Court would intervene. 13. The learned Senior Counsel has further submitted that the core issue which was to be considered by the two Courts was regarding the marital status of Smt. Sursati @ Satta. It is admitted that the death of Shiv Shanker and Smt. Sursati took place in 1970s. It is only when the suit was filed by the plaintiffs-appellants that the issue regarding the factum of marriage was raised by the defendant. In the circumstances where Sri Shiv Shanker Lal and Smt. Sursati @ Satta were living together as husband and wife for long then there was a strong presumption regarding the marriage of the two persons and any person disputing the same was required to lead the evidence to rebut the said presumption. 14. In the circumstances where Sri Shiv Shanker Lal and Smt. Sursati @ Satta were living together as husband and wife for long then there was a strong presumption regarding the marriage of the two persons and any person disputing the same was required to lead the evidence to rebut the said presumption. 14. It is also urged that in the instant case, the Trial Court erred in holding that since the plaintiff did not examine the priest who officiated the marriage and the Nau (Barber) a person who is generally associated with the marriage functions and has a role of delivering the invites, hence, the marriage could not be proved. This assumption of the Trial Court is illegal, inasmuch as, after almost more than 30 years, it was not possible to bring the said witnesses after tracing their whereabouts and could not be made a ground to reject the suit. In this regard, the learned Senior Counsel has drawn the attention of the Court to the decision of the Apex Court in Badri Prasad v. Deputy Director of Consolidation; (1978) 3 SCC 527 . 15. It is thus urged that where the plaintiffs had examined the relevant persons who were connected with Sursati and who proved that Smt. Sursati and Shiv Shankar Lal were residing as husband and wife and this has been materially ignored by the two Courts. It is also urged that the grounds upon which the suit has been dismissed are not cogent and the Trial Court failed to appreciate the documentary evidence which clearly indicated the name of Sursati @ Satta being recorded which was enough to establish the relationship of husband and wife which has been ignored rendering the two decisions liable for judicial intervention. 16. Sri I.D. Shukla, learned counsel for the respondent has submitted that it was a case of the plaintiffs that Smt. Sursati @ Satta was the second wife of Shiv Shankar Lal, thus, the burden was on the plaintiffs to establish the aforesaid facts. It is urged that any person who alleges a second marriage, it is for him to establish the same by proving the essentials ceremonies for a valid marriage. It is urged that any person who alleges a second marriage, it is for him to establish the same by proving the essentials ceremonies for a valid marriage. In case of any customary marriage then it must first be proved that the parties in question were subjected and governed to such customs and then how the marriage was performed as per the said custom, also had to be proved. 17. In the instant case, neither the essentials of the marriage has been proved nor it is urged that there is any custom in terms whereof the marriage took place, hence, it cannot be said that the two courts have committed any error in rejecting the plea raised by the plaintiff. 18. The learned counsel for the respondents further submits that it was specifically stated in the written statement that Sri Shiv Shankar Lal did not re-marry with any lady. It was also stated that the plaintiffs while claiming to be the nephews of Sursati, the second wife, could not indicate the name of the first wife of Sri Shiv Shankar Lal. There was no evidence to indicate the Sursati and Smt. Satta are one and the same woman and thus the twin effect is that neither it could be established that Sursati and Satta were one and that she used Satta as her alias nor the factum of marriage was proved and since the initial burden was on the plaintiff who could not discharge the same, coupled with the fact that the plaintiffs have to stand on their legs, hence, having failed to establish their case, the Trial Court as well as the Lower Appellate Court has committed no error in dismissing the suit and the appeal which is concluded by concurrent findings of fact, accordingly, the instant second appeal also deserves to be dismissed. 19. In support of his submissions, the learned counsel for the respondents has relied upon a decision of this Court in Smt. Indirapati v. DDC and Others; 1980 (6) ALR 560; Dinanath Verma and Others v. Gokaran and Others, 2003 (94) RD 321; Ghanshyam Gautam v. Smt. Nirmala Devi and Another 2017 (35) LCD 368 . 20. The Court has heard the leaned counsel for the parties and also perused the material on record. 21. 20. The Court has heard the leaned counsel for the parties and also perused the material on record. 21. At the very outset, it will be apposite to notice the decision of the Apex Court in Civil Appeal No. 901 of 2016 dated 05.02.2016 passed inter-se the parties in proceedings arising out of consolidation matters which reads as under:- "Leave granted. Heard Mr. S.R. Singh, learned senior counsel for the appellants and Mr. Alakshendra Mihsra, learned counsel for the respondents. Being aggrieved by the order dated 10.11.1981 passed by the Deputy Director of Consolidation, the respondents preferred Civil Miscellaneous Writ Petition No. 5568 of 1981. The grievance of the present appellants before the High Court was that they had a Will executed by late Sursati Bai widow of late Shiv Shankar Lal in their favour and, therefore, they are entitled to succeed under the U.P. Zamindari Abolition and Land Reforms Act, 1950 (Act 1 of 1951) (for short, 'the Act'). The High Court referred to Section 171 of the Act and came to hold that a widow did not have any interest in the property of Shiv Shankar Lal. It is submitted by Mr. Singh, learned senior counsel, that the High Court has wrongly appreciated the language employed in Section 171 of the Act. Mr. Alakeshwar, learned counsel for the respondents, fairly stated that the analysis of the High Court, as far as the right of succession is concerned, is not correct. However, it is submitted by him that both the Trial Court as well as the first appellate court have decided that the Sursati Bai is not the legally wedded wife of late Shiv Shankar Lal. At this juncture, Mr. Singh, learned counsel would submit that the finding recorded by the civil court is under assail in Second Appeal No. 72 of 1999. It can be said without any hesitation that if eventually Sursati Bai is not treated as the legally wedded wife of Shiv Shankar Lal, the claim based on the Will will not survive. Be that as it may, as we find that the analysis of the High Court in the writ petition is absolutely erroneous, it is not sustainable and accordingly we set aside the order passed by the High Court. If eventually the appellants succeed in the second appeal, that will shall govern the rights. The appeal is allowed to the extent indicated above. If eventually the appellants succeed in the second appeal, that will shall govern the rights. The appeal is allowed to the extent indicated above. There shall be no order as to costs." 22. It would be seen that the issue which was raised before the Apex Court was regarding the right of Smt. Sursati who inherited the share of Shiv Shankar Lal. As per the High Court who dismissed the writ petition held that the widow did not have a right to inherit, however, the Apex Court clearly noticed that the analysis made by the High Court was erroneous and it was set aside. It was also noticed by the Apex Court that the issue in question regarding Smt. Sursati being the legally wedded wife of Sri Shiv Shankar Lal was engaging the attention of the High Court in Second Appeal No. 72 of 1999 and thus it set aside the judgement passed by the High Court in the writ petition arising out the consolidation proceedings. In case if the appellants succeeded in proving that Smt. Sursati was the legally wedded wife of Shiv Shankar Lal in the second appeal then the will would govern the rights of parties. 23. Apparently, the issue before this Court can be noticed in two parts in light of the two substantial questions of law upon the which the present second appeal was admitted. 24. The first relates to the procedural aspect as to how the Lower Appellate Court has dealt with the First Appeal in terms of Section 96 C.P.C. read with Order 41, Rule 31 C.P.C. and the other is the substantive part which relates to the rights of the parties. This Court shall first take up the substantive question and then would revert to the procedural aspect. 25. From the perusal of the pleadings and the evidence available on record, the crux of the controversy between the parties was as to whether Smt. Sursati @ Satta was the wife of Shiv Shankar Lal. 26. This Court shall first take up the substantive question and then would revert to the procedural aspect. 25. From the perusal of the pleadings and the evidence available on record, the crux of the controversy between the parties was as to whether Smt. Sursati @ Satta was the wife of Shiv Shankar Lal. 26. The learned Senior Counsel for the appellants while vehemently submitting that the two courts have erred in failing to notice the evidence on record has submitted that a document filed which was a copy of the Pariwar Register bearing paper No. Ga-12, Ga-13 which was a document issued by the Election Officer, Paper No. Ga-14, a copy of the Kutumb Register bearing Paper No. 25, Ration Card bearing Paper No. Ga-35, a certificate issued by the Tehsildar bearing Paper No. Ga-40 all indicate that Smt. Sursati @ Satta was the widow of Shiv Shankar Lal and the same have been ignored. 27. It is submitted that all these documents clearly indicate that the name of Satta and Sursati @ Satta has been recorded as wife of Shiv Shankar Lal and this was ample evidence to establish that Sursati @ Satta was the wife of Shiv Shankar. Even in the service record, there is a reference to Smt. Saraswati which is none but a reference to Smt. Sursati @ Satta and this clearly also established the relationship between Shiv Shankar Lal and Sursati that they were cohabiting together and even in his service record, Shiv Shankar had recorded the name of Sursati @ Satta. 28. Having considered the aforesaid documents as well as the evidence available on record, what this Court finds is that the defendant who is admittedly the daughter of Shiv Shankar had clearly denied that there was any lady by the name of Sursati @ Satta. The plaintiffs have gone to trial knowing fully well that they were required to establish that Smt. Sursati also had an alias which was used by her as Satta and that she was married to Shiv Shankar. As far as the documents which have been referred by the learned Senior Counsel for the appellants is concerned, it would indicate that they only reveal that the name of Satta is shown as wife of Sri Shiv Shankar. As far as the documents which have been referred by the learned Senior Counsel for the appellants is concerned, it would indicate that they only reveal that the name of Satta is shown as wife of Sri Shiv Shankar. In so far as the ration card is concerned, it has been noticed by the two courts that there has been an overwriting in the name of Satta. There is no clear evidence led by the plaintiff and their witnesses to suggest that Sursati and Satta were one and the same person. 29. This Court further finds that P.W. 2 who is said to be the husband of the elder sister of Sursati (Sadoo of Shiv Shankar) also could not give any clear evidence in this regard. The most astonishing fact is that P.W. 2 Murlidhar who deposed as being the Sadoo of Shiv Shankar, his testimony gets washed out on account of the fact that in the testimony of P.W.1, it was stated that the name of husband of the elder sister of Sursati (i.e. Sadoo) was Jayanti Lal. 30. In this light, it could not be said that whether Murlidhar was actually the brother-in-law (Sadoo) of Shiv Shankar. The only significant person related to the family was the P.W. 2 who himself could not establish his own relationship which was contradicted by the P.W.1. There was nothing on record to indicate that the elder sister of Sursati had expired and that why she was not examined as a witness. None from the family of Sursati was examined either to give any indication regarding the date, time and place of wedding with Shiv Shankar. There was no effort made to prove the factum of marriage by any means. Another fact that needs to be seen is that there was no evidence led by the plaintiffs even to establish long cohabitation between Sursati @ Satta and Shiv Shankar as husband and wife. 31. In absence of any such evidence, the decision cited by learned Senior Counsel in case of Badri Prasad (supra) cannot have any applicability nor it helps the case of the appellants. 31. In absence of any such evidence, the decision cited by learned Senior Counsel in case of Badri Prasad (supra) cannot have any applicability nor it helps the case of the appellants. In so far as the reference to Smt. Saraswati in the service record of Sri Shiv Shankar is concerned, in absence of any other cogent evidence, all that can be culled out from it is that Sri Shiv Shankar may have had some relationship which may not be in the nature of marriage and thus in absence of proving the factum of marriage with Sursati @ Satta, she could not have inherited any rights in the property of Sri Shiv Shankar, consequently, she did not even have the right to execute the will in favour of the plaintiffs. 32. Another distinguishing feature that can be drawn from the evidence is that throughout the proceedings, the plaintiffs did not make any effort or indicate that who the first wife of Sri Shiv Shankar was. In absence of any evidence to this extent as well as noticing the fact that in the documents, there is a reference of Smt. Satta but again no reference or evidence to indicate that Smt. Sursati was a lady using the alias of Satta and that Sursati @ Satta were one and the same could not be proved. 33. Apparently, even the oral evidence led by the plaintiff and his witnesses do not shed much light on the aforesaid. The Trial Court as well as the Lower Appellate Court have considered this aspect of the matter and have taken a view which does not seem to be peverse or improbable which may persuade this Court to take any contrary view. 34. Moreover, it is now well settled that where the view taken by the Trial Court is not perverse or improbable but is based on a reasonable appreciation of evidence available on record. The Appellate Court generally leans in favour of the view taken by the Trial Court and it may not take a contrary view merely because another view is possible. 35. The Appellate Court generally leans in favour of the view taken by the Trial Court and it may not take a contrary view merely because another view is possible. 35. Taking a holistic view of the matter, this Court finds that there is no clear evidence led by the plaintiffs to establish that Sursati and Satta are one and the same women using Satta as her alias nor the marriage of Sursati with Shiv Shankar Lal was established, hence, the findings returned by the two courts is not perverse nor this Court is inclined to disturb the said findings of facts in exercise of powers under Section 100 C.P.C., hence, the question at serial no. (iii) as framed in the memo of appeal stands answered. 36. In so far as the procedural irregularity in deciding the appeal is concerned, this Court finds that the Lower Appellate Court has considered the respective contentions and has also taken note of the evidence which was led and the inference drawn by the Trial Court and has concurred with the findings. It may be true that the Lower Appellate Court has not considered the evidence thread-bare of each and every witness but at the same time, it cannot be said that the findings of fact which have been returned by the Trial Court and which has been concurred by the Lower Appellate Court are perverse which may persuade this Court to intervene in circumstances. Merely, because there may have been some procedural slip but not enough to have caused any prejudice to the plaintiffs. Thus, unless and until the procedural lapse is so great which affects the merit and the judgement of the Lower Appellate Court is such that a superior court sitting in appeal cannot ascertain the links and cannot form an opinion that what prevailed in the mind of the Lower Appellate Court while passing the judgement, hence, in this view of the matter, this Court is not inclined to disturb the findings of fact merely because the Lower Appellate Court did not refer and deal with each and every evidence of every witness. The Lower Appellate Court has considered the overall evidence and has concurred with the findings and in the aforesaid backdrop, this Court is not inclined to upset the judgement of the Lower Appellate Court on this technical point especially when this Court has taken a holistic view and has also considered the evidence invoking the powers of Section 103 C.P.C., thus, for all the aforesaid reasons, this Court does not find that there is any merit in the appeal which is accordingly dismissed. The judgement and decree passed by the Trial Court dated 28.05.1983 passed in Regular Suit No. 24 of 1978 is affirmed. In the facts and circumstances, there shall be no order as to costs. The records of the Trial Court be returned expeditiously.