IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 114 of 2001 Judgment reserved on : 18.4.2011 Date of decision: 10.5.2011 Budhi Ram …Appellant. Versus Sunita Devi and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellant : Mr. G.D.Verma, Senior Advocate, with Mr. B.C.Verma, Advocate. For the respondents : Mr. T.S. Chauhan, Advocate for respondents No.1(a) to 1(e), 2 and 3. Kuldip Singh , Judge This appeal has been directed against judgment, decree dated 19.12.2000 passed by learned District Judge, Bilaspur in Civil Appeal No. 36 of 1994 affirming judgment, decree dated 26.2.1994 passed by learned Senior Sub Judge, Bilaspur in Civil Suit No. 92/1 of 1990. 2. The facts, in brief, are that Budhi Ram, appellant, Ram Dittu proforma respondent No.4 and deceased Dila Ram were brothers and were joint owners of the land more specifically detailed in the plaint. It has been alleged that in the year 1969 partition took place and they started living separately. Dila Ram died on 3.7.1989 and his estate was inherited 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 by Dev Raj predecessor-in-interest of respondents No.1(a) to 1(e) and respondents No.2 and 3 vide mutations No.125 and 574 attested on 17.10.1989. Dev Raj, Des Raj and Smt.Suharoo were identified before Assistant Collector, IInd Grade at the time of attestation of mutation as the only legal representatives of Dila Ram. Smt. Suharoo was identified as widow of Dila Ram whereas Dev Raj and Des Raj were identified sons of Dila Ram. The appellant and proforma respondent No.4 were not present at the time of attestation of mutation. 3. The further case of the appellant is that Smt. Suharoo married to Nihala who died in the year 1968 and from the loins of Nihala two daughters and one son were born to Smt. Suharoo. On the death of Nihala, Smt. Suharoo started living with Dila Ram in the year 1969 as his concumbine alongwith her children. Dev Raj was born on 2.8.1970 and Des Raj on 22.10.1972, who were brought up by Dila Ram as his sons and were admitted in the school by Dila Ram showing them as his sons. 4. It is also the case of the appellant that Dev Raj, Des Raj and Smt. Suharoo were not the heirs of Dila Ram and mutations of inheritance regarding the estate of deceased Dila Ram were wrongly attested in their favour. Smt. Suharoo is the widow of Nihala. Dev Raj, Des Raj are not the sons of Dila Ram. The appellant and proforma respondent No.4 are the only heirs of Dila Ram and entitled to inherit the property of Dila Ram after his death. The entry of possession of deceased Dila Ram on Khasra No. 145 in revenue record was wrong and not binding on appellant. The Khasra No. 145 was jointly owned by appellant, deceased Dila Ram and proforma respondent No.4. The appellant had constructed a house over khasra No. 145 which was 3 demolished by Dev Raj, Des Raj and Smt. Suharoo in the year 1990 illegally, who are under legal obligation to reconstruct the house, restore its original position and handover the possession to appellant. It has also been stated that in case it is not possible then a direction may be given to pay due and proper compensation to appellant. The relief of permanent prohibitory injunction has also been prayed. 5. The suit was contested by Dev Raj, Des Raj and Smt. Suharoo. It has been alleged that Smt. Suharoo on 22.5.1969 performed marriage with Dila Ram by way of ‘Nath Chadar’ a recognised custom for widow in the Illaqua. Smt. Suharoo remained wife of Dila Ram till his death on 3.7.1989. Dev Raj and Des Raj were born from this marriage to Smt. Suharoo. Dila Ram and Smt. Suharoo were treated as husband and wife in the Illaqua for all purposes. Dev Raj, Des Raj and Smt. Suharoo have rightly inherited the estate of Dila Ram. The appellant and proforma respondent No.4 have no right to inherit the estate of Dila Ram in presence of Dev Raj, Des Raj and Smt. Suharoo. 6. On the pleadings of the parties the following issues were framed :- 1. Whether the plaintiff and proforma defendant No.4 are the only L.Rs of deceased Dila Ram and the mutation No. 125 and 574 attested on 17.10.1989 are wrong and illegal as alleged and if so its effect? OPP 2. Whether the defendant No.3 is not the wife of late Dila Ram and defendants Nos. 1 and 2 are not sons of Dila Ram and entries showing defendants Nos. 1 and 2 as sons of Dila 4 Ram and defendant No.3 as wife of Dila Ram are wrong? OPP 3. Whether the defendants Nos. 1 to 3 have no right or interest in the property of Dila Ram? OPP 4. Whether the plaintiff is entitled for the relief of permanent injunction as prayed? OPP 5. Whether Khasra No. 145, showing late Dila Ram to be a sole non-occupancy tenant are illegal and wrong? If so, its effect? OPP 5-A. Whether the defendants Nos. 1 to 3 demolished the house of the plaintiff existing in Khasra No. 145 and if so whether the plaintiff is entitled to the mandate restoring the house in its original position and if this mandate cannot be granted whether the plaintiff is entitled to compensation and if so to what extent? OPP 6. Whether the suit is not maintainable? OPD 7. Whether the plaintiff has no cause of action? OPD 8. Whether this court has no jurisdiction to entertain and try the present suit? OPD 9. Whether the suit is false and vague and is not maintainable? OPD 10. Relief. The issues No.1 to 9 were answered in negative and suit was dismissed on 26.2.1994. In appeal, the learned District Judge on 19.12.2000 has affirmed the judgment dated 26.2.1994, hence second appeal which has been admitted on the following substantial questions of law: 5 1. What is the effect of material contradiction about the status of the parties as contained in Ex.DA, DB, PJ, DD and PE and whether these documents have been misread and misconstrued. 2. What is the effect of contradictory date of births of defendant Dev Raj in Ex.DA wherein he is shown to have born on 2.8.70 and Ex.DD in which he is shown to have born on 28.7.1970 and in Ex.PJ in which Sh. Dev Raj is shown to have born on 20.4.68. 7. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellant that there are material contradictions regarding status of the parties as contained in Ex.DA, date of birth certificate of Dev Raj, Ex.DB, date of birth certificate of Des Raj, Ex.PJ, Family Register of Dila Ram, Ex.DD, again Family Register of Dila Ram and Ex.PE death certificate dated 3.7.1989 of Dila Ram. These documents have been misread and misconstrued. The learned counsel for respondents No.1(a) to 1(e), 2 and 3 has supported the impugned judgment, decree. He has submitted that no substantial question of law is involved in the appeal, the Courts below have rightly decided the lis between the parties. There is no misreading or misconstruction of the documents as contended on behalf of the appellant. 8. The substantial questions of law No.1 and 2 referred to above, can be conveniently decided collectively, therefore, both the substantial questions of law are taken up together for decision. Ex.PE is the death certificate of Dila Ram showing his date of death 3.7.1989. The 6 plaintiff in the plaint itself has pleaded that Dila Ram had expired on 3.7.1989, hence no fault can be found with Ex.PE. 9. Ex.PJ is the Family Register of Dila Ram and Ex.DD is also Family Register of Dila Ram. In Ex.PJ, Dev Raj and Des Raj have been shown as sons of Dila Ram with their dates of birth 20.4.1968 and 20.10.1972 respectively. The name of Smt. Suharoo has not been shown in Ex.PJ. In Ex.DD, Smt. Suharoo has been shown widow of Dila, but there is a note dated 31.12.1989 that her name has been shifted in the family of his first son. Dev Raj and Des Raj have been shown sons of Dila Ram in Ex.DD with their dates of birth 28.7.1970 and 22.10.1972. 10. Ex.DA is the certificate to the effect that date of birth of Dev Raj is recorded in the Family Register Part-1 at Page 137. Ex.DB is the certificate certifying date of birth of Des Raj 22.10.1972. It is significant to note here that Ex.PJ is the hand made copy of Family Register of Dila Ram whereas Ex.DD is the Photostat copy of Page No. 137 pertaining to Family Register of Dila Ram. The date of birth of Dev Raj in Ex.PJ has been shown 20.4.1968 whereas in Ex.DD, the date of birth of Dev Raj has been shown as 28.7.1970. 11. The margin of error in the photostat copy is less in comparison to the copy made by hand. Thus, even if the date of birth of Dev Raj is taken 28.7.1970 as per Ex.DD, it does not improve the case of the petitioner. The date of birth of Des Raj in Ex.DD and Ex.PJ is recorded 22.10.1972 and 20.10.1972 respectively. The difference of date of birth of Des Raj in Ex.DD and Ex.PJ is explainable for the same reasons and it does not improve the case of the appellant. The minor variations in the dates of birth of Dev Raj and Des Raj in Ex.PJ and 7 Ex.DD are not of any significance inasmuch as in Family Register Ex.PJ and Ex.DD the approximate age and date of birth is required to be given as per column No.7 of both the documents. 12. The name of Smt. Suharoo is very much recorded in Ex.DD as wife of Dila Ram but her name in the Family Register of Dila Ram has been struck off on 31.12.1989 as she started living with her another son. This does not mean that in the Family Register at the relevant time Smt. Suharoo was not recorded as wife of Dila Ram. There is thus no misreading and misconstruction of Ex.DA, Ex.DB, Ex.PJ, Ex. DD and Ex.PE. 13. It has been submitted that the custom has not been pleaded nor there is an issue to this effect and it has also not been proved. The learned counsel for the appellant has relied Sardar Mohammad vs. Hosyara and others 1989, S.L.J. 574 on the point that pleading and proof of custom is necessary. The issue No.2 is wide enough to include the controversy whether Smt. Suharoo is the widow of Dila Ram and Dev Raj and Des Raj his sons. In the written statement it has been pleaded that after the death of Nihala, Smt. Suharoo performed marriage with late Dila Ram by way of custom of ‘Nath Chadar’ and they remained as husband and wife till the death of Dila Ram on 3.7.1989. In presence of these pleadings, it cannot be said that the custom of marriage by Smt. Suharoo with Dila Ram was not pleaded. 14. The appellant has appeared himself as his own witness as PW-1 and has shown his ignorance that Dila Ram married with Smt. Suharoo under the custom of ‘Nath Chadar’. He has also stated that he does not know that in their family widow re-marriage is permissible. The 8 appellant on the custom of ‘Nath Chadar’ himself is not certain and he has not denied the custom of ‘Nath Chadar’ in his family.The learned trial Court has recorded a finding that even the mother of the appellant Nagarju performed Nath Chadar ceremony with another person on the death of the father of the appellant. The learned trial Court has recorded a specific finding that Dila Ram married with Smt. Suharoo under the custom of ‘Nath Chadar’. This finding has been affirmed by the learned District Judge. In these circumstances, Sardar Mohammad (supra) is not applicable when on facts it has been established in the present case that there are pleadings of custom of ‘Nath Chadar’ marriage in the written statement and same has been proved. Thus, seen from any angle, the appellant has failed to make out any case for interference. There is no merit in the appeal. The substantial questions of law No.1 and 2 are decided against the appellant. 15. In view of the above discussion, the appeal is dismissed with no order as to costs. ( Kuldip Singh ), Judge. May 10, 2011 (GR)