^^. ....'• ^s^'^' ' ...»•>-' .^18"0" ^ -.^-' >..(°J .« ^ .v^^^ ^^••<^^^f^A^S ^^^.yr c^. 3,^h IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. ^' ^^ /2009 gl^g m^- Appellant Defendant Kamla Bai, aged about 58 years, W/o Late Manikchand Temburkar R/o Village Aarbira, Tahsil Dongargarh, Distt. Rajnandgaon Versus Respondents 1. Basanta Bai, Kept Manikchand Plaintiff Temburkar, By Caste Mahar, R/o Village Aarbira, Tahsil Dongargarh, Distt. Rajnandgaon 2. District Education Officer, Rajnandgaon 3. Block Development Education Officer, Block Office, Dongargarh, Distt. Rajnandgaon ^4. Treasurer Officer, Collector, Rajnandgaon 5.^ The State of Chhattisgarh, through Collector, Rajnandgoan SECQND APPEAL UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE 190S .^^^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Second Appeal No.319 of 2009 Kamla Bai versus Basanta Bai and others JUDGMENT Postfor 6-9-2010 Sd/- Prashant Kumar Mishra Judge sr M '^ ^i^^^ ^•^^^' HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice PrashanlKumar IVIishra Appellant Respondents Second Appeal No.319 ot2009 Kamla Bai versus Basanta Bai and others Present: Shri Parag Kotecha, counsel for the appellant. Shri Shashank Thakur, counsel for respondent No.1. Shri Ajay Dwivedi, Deputy Government Advocate for the State/respondents No.2 to 5. Second Appeal under Section 100 ofthe Code of Civil Procedure JUDGMENT (Delivered on 6'f*> September, 2010) This appeal under Section 100 ofthe Code of Civil Procedure, 1908 has been preferred by the defendant. The trial Court decreed the plaintiff's suit to declare that the plaintiff Basanta Bai is the legallymarried wife of Late Manikchand and isentitled to receive the family pension. The first appellate Court has dismissed the defendant/appellant's appeal under Section 96 of the Code of Civil Procedure, 1908, affirming the judgment and decree passed by the trial Court. 2. The instance second appeal has been admitted for hearing on the following substantial questions of law: lfc(t) Whether the Court below is not justified in holding that the appellant is not the legally wedded wife of Manikchand? (2) Whether the plaintiff's suit was barred by limitation?" 3. It is not in disputethat Late Manikchand Tembhurkar, son of Dularu Tembhurkar, resident of Village Arvira, Tahsil and P.S. Dongargarh had retired as Headmaster from the Government Primary School on 30-4-1994 and died on 25-1-2004. 4. Plaintiff's case, in short, is that she was married to the deceased according to Hindu customs and rituals about 40 years back. Son Devdutt and daughter Kusum were born out of the said wedlock. When she applied for receiving family pension, she came to know that name of the appellant was illegally recorded as thewife of the deceased and she has been allowed family pension. Notice under Section 80 of the Code of Civil Procedure, 1908 was served on defendants No.1 to 4 and thereafter the suit was filed. It was also stated by the plaintiff that the defendanVappellant Kamla Bai was, in fact, married to one Mahavir, son of Hiralal, resident of Dongargarh and was living as the keep of the deceased. According to the plaintiff, the cause of action for filing the present suit arose on 25-1- 2004 on the death of Manikchand and thereafter when she came to know about the grant of family pension to the defendant/appellant Kamla Bai and no action was taken on the notice under Section 80 of the Code of Civil Procedure, 1908, the suit was filed on 11-5- 2006. 5. Defendants No.1 to 4 stated that since the deceased had made the defendant Kamla Bai as his nominee in the pension form, they are duty bound to release pension to Kamla Bai. They stated ^fT*%, //-^. \ that this fact was informed to the plaintiff on 27-12-2005 by defendant No.2 and on 28-12-2005 by defendant No.4 yet the suit has been preferred, which deserves to be dismissed. 6. The appellant/defendant filed her written statement and stated that she is the legally married wife of Manikchand and her name was entered in the records at the instance of the deceased himself. The plaintiff is not the legally married wife of Manikchand and no decree can be passed contrary to the nomination filled-in by the deceased. 7. The plaintiff examined herself as PW-1, Panchram as PW-2, Devdutt as PW-3, Ramavtar as PW-4 and Kanhaiya as PW-5. On the other hand, the defendant Kamla Bai examined herselfas DW-1. 8. The trial Court, on appreciation of evidence, decided issues No.1 and 2 in favour of the plaintiff to hold that the plaintiff is the legally married wife of Manikchand and she is entitled to receive the amount of family pension. On issue No.3, the trial Court held that the suit is not barred by limitation. The first appellate Court has confirmed all the findings recorded by the trial Court and has dismissed the appeal preferred by Kamla Bai. 9. The first substantial question of law is as to whether the Court below is not justified in holding that the appellant is not the legally wedded wife of Manikchand. \ j\.0. ^The trial Court has considered the statements of plaintiffs "/ / witnesses, more particularly, the statement of PW-4 Ramavtar, who -S^N :.,/•',--••*% ^ „' !'te*i | ^:>yy I^Nia^n^ c 4 has stated that he was present at the timeof marriage of the plaintiff with Manikchand at Village Sendari. He has also stated that Kamla Bai was married to Mahavir, son of Hiralal, however, after leaving Mahavir, she came to live with Manikchand and had developed illicit relation. According to this witness, Kamla Bai was the 'Banair wife of Manikchand, meaning thereby that she was a keep and not the legally married wife. This witness is 70 years of age and belongs to the same caste as that of the plaintiff and Manikchand. PW-5 Kanhaiya has denied the suggestion in his cross-examination that Kamla Bai is the legally married wife and the plaintiff is the keep and has reiterated his statement made in the examination-in-chief that the plaintiff is the legally married wife of Manikchand. PW-3 Devdutt has also denied the suggestion that Kamla Bai was the legally married wife. This witness as well as PW-5 Kanhaiya admits that during the lifetime of Manikchand a meeting had taken place in the village about the distribution of property to the plaintiff Basanta Bai and the defendant Kamla Bai. PW-2 Panchram has also stated that several meetings had taken place for sorting out the dispute between Kamla Bai and Basanta Bai. 11. DW-1 Kamla Bai feigned ignorance that Devdutt is the eldest son of Manikchand. She admits that her age in the affidavit along with the written statement is mentioned as 40 years. She is also ignorant of the fact as to whether Basanta Bai is younger or elder to her. While it was asked to her as to whether her husband Mahavir was working in the Railways and she was married to Mahavir, she deniedthesuggestion, however, she did not say that she was never -^- te .^r'^ ^y-;.^. '>i '^^Si^ ^ > ^••-^- A' married to Mahavir. In paragraph 15 of the cross-examination, she admits that it is true that she and Basanta Bai both lived with the deceased for sometime and when the dispute arose, Manikchand made separate arrangements for both. According to the defendant Kamla Bai, the age of her eldest son Pravinchand is about 38 years. 12. From the statements of the witnesses, it would appear that on the one hand, the case of the plaintiff about the marriage with Manikchand is supported by the statements of PW-4 Ramavtar and PW-5 Kanhaiya, whereas the statement made by the defendant about her marriage with Manikchandis not supported by any other witness. She has not filed any document except the admitted position that her name was recorded as nominee/wife in the pension papers. From the statement of Kamla Bai in paragraph 15 of the cross-examination, it would appear that she has not specifically stated that she was never married to Mahavir. In paragraph 3 of her written statement, she states that she was not married to Hiralal, whereas in the plaint, the allegation is that she was married to Mahavir, son of Hiralal, therefore, the plaint averment regarding her marriage with Mahavir remains unanswered in the written statement. On the other hand, there is no material on record that the plaintiff Basanta Bai was ever married with any other person. According to PW-4 Ramavtar, 'Banalf wife is one who is already married and has been deserted by her husband and thereafter she goes to live with another person. In the absence of any pleading by the defendant Kamla Bai that Basanta Bai was ever married with any other person, :>" it cannot be said that Basanta Bai was the 'Banall' wife of '•(;lt-'.-..•-••»:, •', \^:y^ ,i !>: - ^ fi .^—^.^ <^v „ Manikchand. Since her marriage with Manikchand has been supported or proved by PW-4 Ramavtar, aged about 70 years, it is hetd that there is no perversity in the findings recorded by the two Courts below that the plaintiff Basanta Bai was the legally married wife of Manikchand and that the defendant Kamla Bai was not legally married wife of Manikchand. The first substantial question of taw is, thus, answered against the appellant/defendant and in favour of respondent No.l/plaintiff. 13. The second substantial question of law is about the suit being barred by limitation. The trial Court, while deciding issue No.3, has held that as per Article 58 of the Limitation Act, 1963, the period of limitation to file a suit for declaration is 3 years from the date of accrual of cause of action. As per the plaintaverment, the cause of action accrued for the first time on 25-1-2004 upon the death of Manikchand and thereafter when defendants No.1 to 4 did not correct the record after receipt of notice under Section 80 of the Code of Civil Procedure, 1908. In the written statement of defendants No.1 to 4, it has been stated that the plaintiff Basanta Bai was informed about the entitlement and grant of family pension to the defendant Kamla Bai vide letters dated 27-12-2005 issued by defendant No.2 and dated 28-12-2005 issued by defendant No.4. The suit has been filed on 11-5-2006. Thus, the suit clearly appears to be within limitation. The entitlement to family pension would arise only after death of Manikchand, therefore, the suit, having been Fpreferred within 3 years after 25-1-2004, is within limitation. The "^•^.;'t '•.. -^n ^ ^ second substantial question of law is, thus, answered against the appellant/defendant and in favour of respondent No.l/plaintiff. 14. In view of the above, the instant second appeal fails and is hereby dismissed. There shall be no order as to costs. 15. A decree be drawn-up accordingly. Sd/- Prashant Kumar Mishra Judge ^•11>1»1