1 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others S.B. CIVIL FIRST APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 10TH OCTOBER, 1991 PASSED BY SHRI DEV CHAND MEENA, RHJS, LEARNED ADDITIONAL DISTRICT JUDGE NO.2, KOTA IN SUIT NO.52 OF 1983 DISMISSING THE SUIT OF THE PLAINTIFF APPELLANTS FOR POSSESSION OF THE DISPUTED PROPERTY Date of Judgment :::: February 4th, 2010 P R E S E N T Hon'ble Mr. Justice Dalip Singh Mr. Harsh Saini, Counsel for the plaintiff-appellants. Mr. A.K. Pareek, Counsel for the defendant-respondents *** By the Court : This first appeal, under Section 96 of the Code of Civil Procedure, 1908 has been preferred by the plaintiffs against the judgment and decree dated 10.10.1991 passed by the learned Additional District Judge No.2, Kota in civil suit No.52/1983 dismissing the suit of the plaintiff-appellants for possession on the disputed property. 2 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others The case of the plaintiff-appellants is that the shop, in question belongs to one Mangidas, the father of the plaintiff- appellants. Their mother, Smt. Gajanandi Bai, after the death of Mangidas remarried one Amar Das. It is submitted in the plaint that after the remarriage of Smt. Gajanandi Bai, the deceased respondent No.2, with Amardas a son was born to her out of the wedlock namely; Bihari Lal, the defendant-respondent No.1 as also another son Laxmi Narayan, the defendant-respondent No.2. It was the case of the plaintiffs that the premises, in dispute is a house in which there are two temples of Laxmi Nathji and Hanumanji situated at House No.442 at Kotadi Gordhanpura, Kota in which the deceased Mangidas, the father of the plaintiff-appellants, used to reside and perform the `seva- pooja' in the two temples. It was the case of the plaintiffs that the relation between the plaintiffs and their mother as well as her children defendant No.1 and respondent No.2/1 remained cordial despite her having entered into matrimony with one Amar Das. In or about year 1974 Bihari Lal, the defendant- respondent No.1 came to Kota to pursue his studies and preparation for the examination to the I.T.I. Kota and sought permission of the plaintiffs to reside in one room in the disputed premises. It was contended by the learned counsel that while 3 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others permitting the defendant No.1 to stay in the premises the plaintiffs as a measure of abundant caution got a deed executed by the defendant No.1 - Bihari Lal on stamp paper acknowledging the fact that he was in permissive possession of the premises mentioned therein after the plaintiffs had permitted him to enter upon and reside in the same. It was also the case of the plaintiffs that the defendant-respondent, Smt.Gajanandi Bai started using part of the premises in or about 1978 and living there. The plaintiffs having allowed their mother to reside in the premises as well as the defendant No.1 to reside in the premises, after elapsed of a few years and despite the defendant having been allotted a house in the Housing Board colony refused to vacate, hence, the plaintiff realized that intentions of the defendants were not to vacate the premises. Hence, the plaintiffs asked the defendants to vacate. On the plaintiffs asking the defendants to vacate the premises the defendants declined, despite the fact that Bihari Lal, the defendant No.1 had started to live in a house allotted to him in the colony of the Hosing Board in Talwandi, Kota. The plaintiffs, therefore, filed the present suit for possession of both the rooms, in the possession, the defendants and also charges for the use and occupation @ Rs.100/- per month as damages. The defendant-respondents on their part contested 4 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others the suit and denied that the house with the temple was of the ownership of Mangidas. The defendants contended that the property in dispute belong to Madhodas, the father of the defendant No.2 - Smt. Gajanandi Bai and that Smt. Gajanandi Bai after the death of Madhodas became the sole owner of the property as Madhodas had no other surviving heir. The defendant-appellants denied the fact that the father of the plaintiffs Mangidas ever performed `seva-pooja' in the temples. The defendant-appellants denied having executed the license deed, Exhibit-1 or entering into permissive possession of the premises. On the pleadings of the parties, the learned trial Court framed as many as seven-issues. The prominent issues in the instant case were Issues No.1 and 6. Issue No.1 was whether the property described in Para No.2 of the plaint i.e. the house and the temples belonged to the father of the plaintiffs – Mangidas and that the plaintiff No.1 is performing `seva-pooja' after the death of Mangidas. Issue No.6 was whether the defendant No.2 Smt. Gajanandi Bai is the sole heir of deceased Madhodas and after his death she is in exclusive possession of the property in dispute and that the house in dispute belonged to the father of the defendant No.2 i.e. Madhodas. The learned trial Court decided the aforesaid two 5 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others issues as follows :- ''ऐसी सूरत मɅ उनकȧ (plaintiff) आयु से यह ःपƴ होता है Ǒक मǔÛदर कȧ सेवा पूजा करने योÊय वे मांगीदास कȧ मृ×यु के समय नहȣं थे, यहां पर जो आयु बतायी गयी है उसके बहत बाद का उनका जÛम होना पया जाता है ु परÛतु थोड़ȣ देर के िलये मांगीदास कȧ मृ×यु के समय उनका जÛम हआ भी मान िलया जावे तो भी सेवा पूजा ु करने कȧ बात साǒबत नहȣं होती है ÈयɉǑक मांगी दास कȧ मृ×यु के समय दोनɉ हȣ बहत छोटे थे इसिलये माता ु के साथ रहना ःवाभाǒवक था। ऐसी सूरत मɅ गजानÛदȣ बाई वादȣ एवं ूितवादȣगण का वादमःत मकान मɅ ूारàभ से रहना साǒबत होता है। मकान ǒववादमःत माधोदास का था इस बाबत भी कोई शहादत नहȣं है। ऐसी सूरत मɅ ǒववादमःत मकान के मािलकाना हक दोनɉ हȣ प¢ साǒबत नहȣं कर सके हɇ। इस मकान के दो कमरɉ मɅ ूितवादȣगण व बकाया मɅ वादȣगण का कÞजा होना पाया जाता है। ऐसी सूरत मɅ ूदश[-1 िलखावट के आधार पर ूितवादȣगण को जो Ǒक शुǾ से हȣ ǒववादमःत मकान मɅ िनवास कर रहे हɇ को लाइसेÛसी मानकर बेदखल नहȣं Ǒकया जा सकता है। ऐसी सूरत मɅ ǒववाघक संÉया-1 का िनण[य ǒवǾƨ वादȣगण तथा ǒववाघक संÉया 6 का िनण[य आंिशक Ǿप से ूितवादȣगण कȧ गजानÛदȣ बाई माधोदास कȧ एक माऽ वाǐरस थी तथा ǒववादमःत मकान मɅ काǒबज चली जा रहȣ थी, ूितवादȣगण के हक मɅ तथा मकान ूितवादȣ सं.2 के ǒपता माधोदास का था यह साǒबत नहȣं होने से उनके ǒवǾƨ िनǔण[त Ǒकया जाता है।'' Learned counsel for the plaintiff-appellants submitted that as per the evidence, which has come on record, so far as the possession of the property is concerned the learned trial Court has also held that the plaintiffs were in possession of the portion of the house and temples except the two rooms, though along with their mother - the defendant No.2 - Gajanandi Bai. The learned trial Court has also held in the findings, quoted here-in-above that the defendants have failed to prove that the house in dispute belongs to Madhodas, the father of 6 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others Smt.Gajanandi Bai {“इस मकान के दो कमरɉ मɅ ूितवादȣगण व बकाया मɅ वादȣगण का कÞजा होना पाया जाता है। ” } and further "मकान ǒववादमःत माधोदास का था इस बाबत भी कोई शहादत नहȣं है।”. Learned counsel for the plaintiff-appellants submitted that so far as the evidence on record is concerned, it is no doubt true that there is no documentary evidence submitted by either of the parties with regard to the title over the property in dispute. However, the plaintiffs i.e. PW-1 and PW-2 in the evidence have stated as follows : PW-1 Mohan Lal son of Shri Mangidas has stated that ''यह मकान माधोदास जी का नहȣं है। मांगी दास जी का है।'' Similarly, PW-2-Bajrang Lal son of Shri Mangidas has stated that “'' मकान व मǔÛदर मांगीदास जी का था .............'' यह गलत है Ǒक यह जायदाद माधवदास जी कȧ हो।'' It is submitted that so far as the aforesaid statements of the plaintiffs and his witnesses are concerned, there is no cross-examination whatsoever by the defendants of the aforesaid two witnesses regarding the assertion of the title of Mangidas. It has further been pointed out by the learned counsel that so far as the defendants' evidence is concerned Dw-1-Bihari Lal has not even stated that the house, in dispute was that of Madhod as pleaded in the written-statement. 7 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others So far as the aforesaid fact is concerned regarding the statement of PW-1 and PW-2 as well as the fact that the defendants as DW-1-Bihari Lal nor his witness DW-2 has stated that the property, in dispute belonged to Madhodas father of Smt. Gajanandi Bai. Since, this is only evidence on record, the Court is required to consider whether on the preponderance of the probabilities and in the evidence that has been brought on record the case of the plaintiffs stands proved or not. The learned trial Court also has come to the conclusion while deciding Issue No.1 that after the death of Mangidas, defendant No.2, the father of the plaintiffs and husband of the defendant No.2 all of them started residing in the premises, in dispute, as the plaintiffs were too small to have been left behind on their own in the paternal home. The evidence, which has been led by the plaintiff is only in the form of their oral statement in the Court asserting the title of their father Mangidas, which has not been challenged by cross- examianation or rebuttal of any sort by the defendants. No doubt the burden lies upon the parties, who has asserted a particular fact to prove the same and the Court is required to decide the question on the basis of the material placed before the Court. In the instant case, the plaintiffs in their pleadings stated that the house, in dispute belongs to Mangidas. As PW- 8 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others 1 and PW-2 Mohan Lal and Bajrang Lal have stated before the Court on oath that the house in question with the temples belongs to their father Mangidas. On this question there has been no cross-examination by the defendants of the two plaintiffs, who entered the witness-box. At the same time, the defendant No.1 Bihari Lal, who entered the witness-box as DW-1 having raised the plea in the written-statement while denying the ownership of Mangidas over the property in dispute and asserting the title of Madhodas father of the defendant No.2 has not stated anything with regard to the ownership of the house being that of Madhodas or denied the title of Mangidas. In the instant case, the statements of PW-1 and PW-2 remain uncontroverted and unchallenged by the defendants. When the plaintiffs' evidence remains uncontroverted and unrebutted it would be safe for the Court to come to a finding on the basis of the evidence on record now howsoever scanty the same may be if it is not denied relying upon the same. In the facts and circumstances, therefore, the findings of the learned trial Court on Issue No.1 and 6 that the plaintiffs failed to prove the ownership of Mangidas their father over the property in dispute is liable to be set aside. On the uncontroverted statements of PW-1 and PW-2 it is proved in the facts and circumstances of this case that the plaintiffs have 9 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others proved the fact that the property in dispute belonged to Mangi Lal, the father of the plaintiffs and further as has been held by the learned trial Court that they remained in possession over the property after the death of their father along with their mother. The finding on Issue No.6 is hereby set aside. The learned trial Court has itself not accepted the case of the defendants on Issue No.6 that the property in dispute belongs to Madhodas and has decided Issue No.6 against the defendants. When the property in dispute was not that of Madhodas and after the death of Mangidas, Smt. Gajanandi Bai along with her sons the plaintiffs, who are sons of Mangidas started to live in the disputed premises, without there being any other material regarding the title over the property of any other person it would be safe to hold in favour of the plaintiffs. So far as the question that Smt.Gajanandi Bai was the sole surviving heir of Madhodas is concerned under Issue No.6 the same is of no consequence. However, Smt. Gajanandi Bai, the defendant No.2 so long as she did not remarry had the right to remain in possession over the property of deceased husband Mangidas, but so soon as she remarried her right in the property of her late husband Mangidas ceased. In the present case, Bihari Lal the defendant No.1 has entered the witness-box as DW-1 and his statement, which 10 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others has been recorded in the Court on 03.08.1989 he has given his age as 36 years. On the basis of the above his year of birth would be 1953 i.e. prior to coming into force of the Hindu Succession Act, 1956. It has come in the evidence of DW-1 that up-to the age of five years he stayed with his father (Amardas) in Village Kethun where Amardas had a house as well as agricultural land, which he has after the death of Amardas been inherented by him goes to show that Smt.Gajanandi Bai the mother of the plaintiffs went to reside with Amardas in Village Ketun prior to 1956 and was thus not in possession of the property of her husband which the Hindu Succession Act, 1956 came into force nor did she have any right in the same as a result of remarriage. In that view of the matter, it cannot be held that the defendant No.2 Smt. Gajanandi Bai has any right or title over the property in dispute, which as per the findings given above have been held to be those of Mangidas. Issue No.2 in the instant case pertains to the license given by the plaintiffs to the defendant No.1 and Issue No.3 is also with regard to the permissive possession of the defendant No.2 Smt. Gajanandi, who took possession of another room in the premises. So far as both these issues are concerned, the 11 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others learned trial Court has decided the same together and has not accepted as genuine, Exhibit-1 license-deed said to have been executed by the defendant No.1 in favour of the plaintiffs. In coming to the findings, the learned trial Court has based the same upon its findings of Issue Nos.1 and 6 and held that the defendants were residing in the premises from the very beginning. As has been held above, the aforesaid findings on Issue Nos.1 and 6 have been reversed by this Court. Smt. Gajanandi Bai after her marriage with Amardas father of the defendant No.1 proceeded to reside with Amardas at Village Kethun. For the fact that Amardas has a residential house and agricultural land in Kethun is amply proved on record and it is admitted by DW-1 that his younger brother - Laxmi Narayan respondent No.2/1 is residing in the said property at Kethun. In that view of the matter for the trial Court to hold that the defendant No.2 deceased Smt. Gajanandi Bai along with the defendant No.1 was residing in the premises in dispute from the very beginning cannot be accepted. Since, Smt. Gajanandi Bai had no ownership or right or title in the premises in dispute after her marriage with Amardas the defendant No.1 Bihari Lal son of Shri Amardas and Smt. Gajanandi Bai would also have necessarily no right or title in the premises in dispute. The defendant's case that the property belonged to 12 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others Madhodas father of Smt.Gajanandi Bai has not been proved. In that view of the matter, the findings of the learned trial Court cannot be accepted. In the statement DW-1 Bihari Lal has in the first instance admitted that Exhibit-1 the license- deed has been executed by him. His statement reads as follows: ूदश[-1 पर E से F दःतÉत मेरे है। Though, later-on he has tried to deny that the signatures are not his. The comparison of the signatures of Exhibit-1 with the signatures of the defendant No.1 Bihari Lal on the written-statement appear to be even by the look by naked-eyes to have been made by the same person. Thus, even though subsequently Bihari Lal defendant No.1 has tried to deny his signatures on Exhibit-1. In fact he had admitted initially his signatures on Exhibit-1 and the same appear to be similar to the admitted signatures on the written-statement filed by the defendant No.1, it can safely be accepted that Exhibit-1 was executed by the defendant no.1 Behari Lal and he entered into possession of the property of the father of the plaintiff with permission of the plaintiff looking to the fact that their mother is one and the same namely Smt. Gajanandi Bai. The findings of the learned trial Court on Issue Nos.2 and 3 have been swayed on account of its findings on Issue Nos.1 and 6. Since, this Court has already reversed the 13 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others findings of the learned trial Court on issue Nos.1 and 6, the Issue Nos.2 and 3 are also decided in favour of the plaintiffs for the reasons given above. Learned counsel for the appellants has further contended that Issue No.5 with regard to valuation has wrongly been decided against the plaintiffs. In the instant case, in the plaint, the valuation which has been made is in respect of the disputed property, which is the room in possession of the defendant and not the entire house. The learned trial Court while deciding the issues relied upon the statement in this regard. The defendant's statement is as follows: ''वादमःत मकान कȧ कȧमत लगभग 30,000/- Ǿपये है।''. The house where the room is situated comprises, as per the evidence available on record of two temples of Laxminathji and Hanumanji and three rooms and if the total value, as per the defendant, who has raised the objection with regard to the valuation of the property is Rs.30,000/-. As per the above statement, the value given by the plaintiff in the plaint Para No.10 that the value of the property in dispute is Rs.8000/- (in 1982) can hardly be said to be under-valued. In the facts and circumstances, therefore, the findings on Issue No.5 are also set aside. So far as the question with regard to the damages for the use and occupation @ Rs.100/-per month is concerned, 14 S.B. Civil Regular First Appeal No.189 of 1991 Bajrang Lal son of Shri Mangidas and Others VERSUS Bihari Lal son of late Shri Amar Das and Others looking to the value of the property the claim of Rs.100/- per month appears to be highly excessive. In the facts and circumstances, the suit having been filed in the year 1982 the damages for the use and occupation for the same are determined as Rs.40/- per month. Accordingly, this appeal is allowed. The judgment and decree passed by the learned trial Court dated 10th October 1991 is set aside and reversed. The suit of the plaintiff is decreed for possession of the premises in dispute. The appellants shall also be entitled to get damages for the use and occupation of the premises from the date of filing of the suit till the actual delivery of possession @ Rs.40/- per month from the defendants. In the facts and circumstances, there shall be no orders as to costs. (Dalip Singh), J. Ashok/