IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 102 of 1995 and RSA No. 122 of 1995 Reserved on : 26th March, 2008 Date of Decision: 7th May, 2008 RSA No. 102 of 1995 Sanjeev Kumar and others Appellants Versus Piaro Devi Respondent RSA No. 122 of 1995 Piaro Devi Appellants Versus Phulan Devi and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. RSA No. 102 of 1995 For the appellants: Mr. Bhupender Gupta, Sr. Advocate, with Mr. Janesh Gupta, Advocate. For the respondent: Ms.Devyani Sharma, Advocate. RSA No. 122 of 1995 For the appellant : Ms.Devyani Sharma, Advocate. For the respondents Mr.Bhupender Gupta, Sr. Advocate, with Mr.Janesh Gupta, Advocate. Sanjay Karol, J. The present appeals arise out of common judgment, hence are being heard and disposed of together. Civil Suit No. 185 of 1985, titled as Smt. Piaro Devi vs. Phoolan Devi and Smt. Sahini Devi, was decreed by Senior Sub Judge, Whether the reporters of Local Papers are allowed to see the Judgment? 2 Hamirpur, H.P., vide judgment and decree dated 30.6.1988. Appeal filed by Smt. Phulan Devi and Smt. Sahini Devi being Civil Appeal No. 122 of 1988, was disposed of by the District Judge, Hamirpur, HP., in terms of judgment and decree dated 30.1.1995. The lower Appellate Court upheld the trial Court’s findings against the defendants but, however, reversed the findings made in favour of the plaintiff and, therefore, dismissed the suit. Thus both the plaintiff and defendants have filed the present appeals. Smt. Piaro Devi, plaintiff is the appellant in RSA No. 122 of 95 and Smt. Phulan Devi and Smt. Sahini Devi were original defendants. Smt. Sahini Devi died during the pendency of appeal, as such, her legal representatives and Smt. Phulan Devi are appellants in RSA No. 102 of 1995. The plaintiff as owner of land comprised in Khata No. 10, Khatauni No. 10, Khasra Nos. 79, 86, 176, 189, 190, 269, measuring 5 Kanals 18 Marlas, as entered in Jamabandi for the year 1983-84 situated in Tika Dagoon, Tappa Majhog Sultani, Tehsil and District Hamirpur, H.P. (hereinafter referred to suit land) filed a suit seeking prayer for permanent prohibitory injunction restraining the defendants from interferring with the ownership and possession of the suit land on the premise that she as legal heir of Shri Prabhu became owner by succession and also Will dated 1.4.1982. She was the daughter of Shri Prabhu and Smt. Prabhi. The defendants resisted the suit on the ground that Prabhu was not married to Smt. Prabhi and the plaintiff was not the daughter of said Prabhu, which fact is evident from the proceedings initiated by Smt. Prabhi for maintenance under Section 125, Cr.P.C. The defendants also 3 claimed ownership on the strength of last Will dated 24.5.1983 left by Shri Prabhu in favour of Shri Durga Dass, predecessor-in-interest of the defendants. From the pleadings of the parties, the trial Court framed the following issues:- “(1) Whether the plaintiff is owner in possession of the land in suit? OPP 2. Whether Prabhu Ram deceased made a valid Will dated 24.5.1983 in favour of Durga Dass, predecessor-in-interest of the defendants bequeathing the suit property as alleged? OPD 3. Whether the plaintiff is entitled to the relief of injunction prayed? OPP 4. Whether the plaintiff has no cause of action and locus standi to file the suit against the defendants? OPD 5. Relief.” The trial Court decided Issues No.1 and 3 in favour of the plaintiff by holding that from the record, including the defendants’ witnesses, it was evident that Smt. Prabhi was living with Shri Prabhu and Smt. Piaro was their daughter. The Court found the plaintiff to have proved the Will (Ext.PW-3/A) in accordance with law and, therefore, declared her to be owner in possession of the suit land. The Will dated 24.5.1983 (Ext.DW-2/A) propounded by the defendants was found to be shrouded with suspicion, not having been executed by the testator for the reason that he was old, infirm, sick and was not in sound disposing state of mind. The Will was got executed just 17 days prior to his death. During the pendency of appeal, vide order dated 14.2.1989 the first Appellate Court allowed additional evidence and as such, five 4 witnesses were examined to prove that Will (Ext.PW-3/A) stood revoked vide revocation deed (Ext.AW-1/A). Appreciating the material on record, the first Appellate Court dismissed the plaintiff’s suit holding that the plaintiff had failed to prove the fact that she was daughter of deceased Shri Prabhu and, therefore, not entitled to succeed his estate. Whether the plaintiff was in possession of the suit land and whether she was entitled to a decree of injunction on that ground, however, was not considered by the Court below. The appeals were admitted on the following substantial questions of law :- RSA No. 102 of 1995 “1. Whether in the absence of any positive evidence regarding the physical and mental health of the executant of a Will, were the Courts justified to infer that the deceased was not in perfect state while executing DW-2/A, do these findings are the result of misreading of the evidence and stands vitiated? 2. Whether the judgment in Criminal Proceedings deciding the question of relationship admissible under the provisions of the Evidence Act and forms a good piece of evidence, can such evidence be discarded merely on the ground that the same is rendered in a Criminal proceedings? 3. When the mutation on the basis of the Will stood attested in favour of the defendant-appellants without any challenge for considerable point of time, can such facts be ignored by the courts below while rendering the findings on the validity of the Will on the basis of such mutation was attested?” 5 RSA No. 122 of 1995 “1. Whether the learned lower appellate court has erred in not reading the documentary evidence proving the appellant to be in possession of the suit land and thus erred in not granting the relief of injunction in her favour. 2. Whether the learned lower appellate Court has not read the admission of the witnesses of the respondents proving the appellant to be the daughter of Prabhu since deceased? 3. Whether a person in possession can maintain a suit for injunction against a person having no title to the property? 4. Whether the suit of the appellant could have been dismissed without their being any issue to prove her relationship with Prabhu (since deceased) and without giving her an opportunity to prove the same?” At the outset, Ms. Devyani Sharma, learned counsel appearing for the appellant Smt. Piaro Devi, does not press Substantial Question of law No.4 in RSA No. 122 of 1995. I have heard the learned counsel for the parties and perused the material on record. From the sworn testimony of Shri Hans Raj Sharma, Tehsildar, Indora, (AW-1), it is evident that Will (Ext.PW-3/A) stood revoked vide revocation deed dated 26.7.1982 (Ext.AW-1/A). It is, therefore, evident that plaintiff has not succeeded to the estate on the basis of Will. The plaintiff and her witnesses Roshan Lal (PW-2), Tulsi Ram (PW-3), Rattan Chand (PW-4) and also the defendants witnesses Prithvi Chand (DW-5) and Babu Ram (DW-6) have proved that Smt. Prabhi had been living with Shri Prabhu, for over 50-55 years and Smt. Piaro after her birth also lived with them. They were cooking his food in 6 the adjoining room till about 6-7 days prior to his death. Prabhi had also filed maintenance petition under Section 125, Cr.P.C. claiming maintenance. These facts cumulatively prove that they were living together and even if the parents were not legally married but the plaintiff was born out of their relationship. The Will Ext.DW-2/A propounded by the defendants is dated 24.5.1983 and immediately thereafter testator expired on 11.6.1983. Between March, 1982 and June, 1983 deceased had executed three Wills being Ext.DW-3/2 dated 22.3.1982 executed in favour of Smt. Kailasho, which stood superseded vide Will dated 1.4.1982 (Ext.PW-2/A) executed in favour of Smt. Piaro, which stood revoked vide revocation deed Ext.AW-1/A. Will dated 12.11.1982 executed in favour of Naranu, was superseded vide Will dated 24.5.1983 (Ext.DW-2/A) executed in favour of Durga Dass. The witnesses to the Will Subhash Chand (DW-3) and Braham Dass (DW-4) have materially contradicted the other defendants’ witnesses. According to DW-1, deceased was infirm and bed ridden to the extent that it was the defendants who were looking after him in his bed even for his ablutions, but, however, DW-3 and DW-4 both have deposed that they had met the deceased in the Bazzar at Hamirpur when they were asked to witness the Will, which they signed as witnesses. Importantly, Ext.DW-2/A does not even mention the execution/ revocation or supersession of prior Wills. Neither does it assign any reason as to why the plaintiff the only legal heir was excluded from inheritance. It is not the case of the defendants that the plaintiff was having strained relations with her father Prabhu. It is the admitted case of the parties that the defendants had no relation whatsoever with Prabhu. It 7 is also not the defendants’ case that they had been taking care of the deceased for long time and the Will was executed as a consideration for the services rendered to the deceased. Ext.DW-2/A does not even record this fact. DW-5 and DW-6 have proved that Shri Prabhu was living with Smt. Prabhi till about 6-7 days prior to his death when the defendants had taken him to their house. Shri Prabu’s prolonged illness for more than one year has been proved by the defendants’ witnesses. Further DW-1 and DW-2 have not deposed that Prabhu was in sound disposing state of mind. The defendants have failed to plea and prove any justifiable reason for executing the Will Ext.DW-2/A in their favour to the exclusion of the other beneficiary. The Will Ext.PW-2/A thus cannot be said to be free from suspicion and executed in a sound disposing state of mind. Much reliance has been placed on the maintenance proceedings initiated by Smt. Prabhi under Section 125, Cr.P.C. to contend that Prabhu had disputed the paternity of plaintiff. I would, with affirmation reproduce the findings of the trial Court in this regard:- “The Ld. Counsel for the defendants by referring to order passed by the learned Chief Judicial Magistrate on 18.5.1983 in a petition for maintenance under Section 125, Cr.P.C., copy of which is Ext.D-1, argued that petition was dismissed by the learned Chief Judicial Magistrate holding Prabhi is not a legally wedded wife Prabhu and Piaro Devi is the daughter of Shankar. It appears that the defendants have placed much reliance upon this order unmindful of the legal sanctity available. No doubt it is a good piece of evidence but the finding of the learned Magistrate in the maintenance petition is not binding nor a substantive piece of evidence for a decision of the rights of the parties to a property. Secondly, the order itself discloses that the learned Magistrate was 8 not required to give finding about the paternity of Piaro Devi. The application was on behalf of Prabhi only as wife. No maintenance for Piaro was claimed as daughter of Prabhu. Thirdly, the maintenance application filed by Prabhi against Prabhu, itself is a good evidence of her claim that she is a wife of Prabhu, suggests cohabitation with Prabhu. The document D-1 read with the statements of DW-5, 6 and 4 PWs leads to a conclusion that Piaro Devi is the daughter of Prabhu. Therefore from the evidences on record it proves beyond doubt that Piaro Devi has succeeded to the estate of her father Prabhu as a sole legal heir as well as under the registered Will Ex.PW-3/A.” Substantial question of law No.2 in RSA No.102 of 1995 is left open. Even the defendants’ witnesses examined before the lower Appellate court have affirmed the fact that revocation deed Ext.. AW-1/A was executed by the deceased in favour of his daughter, the plaintiff and that the plaintiff used to reside in the house of Prabhu even after her marriage. Milap Chand (AW-2), Braham Dass (AW-3), Rattan Chand (AW-4), Meena Kumari (AW-5) have in fact deposed that at the time of execution of Will Ext.PW-3/A, the deceased was of sound disposing state of mind and the deceased had executed the Will in favour of his daughter Smt. Piaro Devi, plaintiff. Ext. PW-3/A clearly records that the Will is executed in favour of daughter, Smt. Piaro. The first Appellate Court dismissed the plaintiff’s suit on the ground that plaintiff had deliberately excluded her mother Smt. Prabhi from inheritance and, therefore, had not arrayed her as a party to the suit. The Court found that the plaint was lacking in material particulars inasmuch as the plaintiff had not shown that in what capacity she had 9 inherited the property from deceased Prabhu and, therefore, there being obscurity in the pleadings, the suit was dismissed. The view taken by the first Appellate Court is unsustainable as the plea taken by the parties was substantiated and the parties witnesses were examined and cross-examined at length on all the issues including plaintiff being daughter of Shri Prabhu, which in my view, duly stands proved from the record, therefore, the first Appellate Court seriously erred in dismissing the plaintiff’s suit. The Court below totally lost sight of the fact that the plaintiff was in possession and having come to the conclusion that the defendants had no right whatsoever, it ought to have considered the plaintiff’s prayer for granting an injunction restraining the defendants from interferring with the plaintiff’s peaceful possession on the suit land. It is a settled law that where a person is in settled possession of the property even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. [Dalip Singh and others vs. State of H.P. and others, 1992 (1) Sim.L.C. 320] The findings returned by the lower Courts on Issue No.2 need to be upheld as the Issue stands pleaded and proved by the parties. The defendants, on the basis of Will Ext.DW-2/A had got their names recorded in the revenue record vide order of Settlement Officer cum Collector dated 16.1.1984 (Ext.D-6). The appeal against the same was dismissed on the ground that the civil proceedings between the parties were pending before the Civil Court, therefore, passing of any order would not, in any manner, be binding or determinative of the parties’ right. 10 The substantial questions of law are answered accordingly. For the aforesaid reasons, RSA No. 122 of 1995 is allowed and RSA No. 102 of 1995 is dismissed. No costs. 7th May, 2008 (Sanjay Karol), (C) Judge.