IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 18 of 2000 Judgment reserved on : 8.12.2010 Date of decision: 21. 02. 2011. Bainsu …Appellant. Versus Sher Singh and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Dushyant Dadwal, Advocate For the respondents : Mr. N.K.Thakur, Advocate, for respondents No.1 and 2. Kuldip Singh , Judge The appellant was defendant No.1 and has come in appeal against judgment, decree dated 8.9.1999 passed by the learned District Judge, Chamba in Civil Appeal No. 45 of 1995 affirming judgment, decree dated 8.5.1995 passed by learned Sub Judge 1st Class, Chamba in Civil Suit No. 67 of 1991. 2. The facts, in brief, are that Sher Singh, respondent No.1 had filed a suit for declaration that he and proforma defendants Rattan Chand and Gian Chand were owners in possession of the suit property described in the plaint, consequential relief of permanent prohibitory 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 injunction against appellant was prayed. In the alternative, prayer for possession of the suit property was made. 3. The suit was filed on the allegations that Smt. Timru wife of Magha was owner in possession as co-sharer of the suit property. Smt. Timru was sister-in-law (Bhabhi) of respondents No.1, 2 and Gian Chand. Smt. Timru died on 25.6.1991. The respondents No.1, 2, Smt. Timru and Gian Chand were ‘Gaddi’. As per custom, widow is entitled to maintenance from the property inherited by her from her husband during her life time. The Hindu Succession Act, 1956 (for short ‘Act’) is not applicable to ‘Gaddis’. 4. Smt. Timru had executed a gift deed in favour of Mool Chand, which was challenged by respondents Sher Singh and Gian Chand. Gian Chand was proforma defendant in the suit and the suit was decreed by learned Sub Judge, Chamba on 28.10.1977 vide Ex.P-1. It was held that at the time of opening of succession after the death of Smt. Timru, the gift deed shall have no prejudicial effect on the rights and interest of the reversioners. It has been alleged that on the death of Smt. Timru, the respondents and Gian Chand were owners in possession of the suit property, but appellant took forcible possession of house and cow-shed on 26.6.1991 and started interfering in the peaceful possession of respondents and Gian Chand over the rest of the suit property. In these circumstances, the suit was filed. 5. The respondent No.2 admitted the claim of respondent No.1. Gian Chand, who was proforma defendant No.3 was proceeded exparte on 23.4.1992. The suit was contested by appellant by filing written statement. He took preliminary objections of estoppel, maintainability, 3 resjudicata and locus-standi of respondent No.1 to file the suit. On merits, he pleaded that Smt. Timru had inducted the appellant as her tenant. He denied that he took possession of the house and cow-shed on 26.6.1991. The appellant prayed for dismissal of the suit. The respondent No.1 filed replication and reiterated his stand. 6. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff and proforma defendants No.2 to 4 are the legal heirs of the deceased Smt. Timru and are entitled to succeed to the property of deceased Smt. Timru as alleged? OPP 2. Whether the defendants are interfering in the peaceful possession of the plaintiff over the suit property as alleged? OPP 3. In case, the defendants succeeds in getting the possession of the suit property, whether the plaintiff and proforma defendants are entitled to get back the possession of the suit property from the defendant No.1 as alleged? OPP 4. Whether the plaintiff is entitled to get the possession of the disputed house of two rooms situated over the land comprised in Khasra Number 208/3 measuring 1 biswa and cow-shed comprised in Khasra No. 208/1 measuring 1 biswa from the defendant No.1 as alleged? OPP 5. Whether the plaintiff is estopped from filing the present suit on account of his act and conduct as alleged? OPD 6. Whether the suit of the plaintiff is not maintainable in the present form as alleged? OPD 7. Whether the suit of the plaintiff is barred by the principles of resjudicata as alleged? OPD 8. Whether the defendant No.1 was tenant over the suit land/property as alleged? OPD 9. Relief. The issues No.1, 3 and 4 were answered in affirmative, issues No. 2, 5 to 8 in negative and the suit of the respondent No.1 was decreed for possession on 8.5.1995. In appeal, the learned District Judge on 8.9.1999 has affirmed the judgment, decree dated 8.5.1995, hence the 4 second appeal, which has been admitted on following substantial questions of law:- 1. Whether the Courts below could have taken into account the alleged custom which was neither pleaded nor established? 2. Whether the Courts below have mis-read and mis- interpreted the document Ex.D-1? 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 the Courts below have erred in taking into consideration the alleged custom which was neither pleaded nor established. The Courts below have mis-read and mis-interpreted Ex.D-1. The learned counsel for respondents No.1 and 2 has supported the impugned judgment, decree and has stated that no substantial questions of law emerges from the material on record. The ‘Gaddis’ of Chamba in the matter of succession and alienation are governed by custom and not by Hindu Succession Act, 1956. He has relied judgment dated 12.1.2001 in RSA No. 304 of 1998. 8. The substantial question of law No.1 is taken first for determination. The learned counsel for respondents No.1 and 2 has submitted that custom has been pleaded in the plaint and it has otherwise been proved on record. He has submitted that in Civil Suit No. 78 of 1984 decided on 2.11.1985 by learned Senior Sub Judge, Chamba vide judgment Ex.D-2, there was a specific issue whether the parties to the suit are governed by custom being Gaddies by caste. There was another issue whether the Hindu Succession Act is not applicable to the plaintiff and defendant No.2. In judgment dated 2.11.1985, both the issues were 5 decided in affirmative. The judgment dated 2.11.1985 was upheld by learned District Judge vide judgment dated 26.2.1988 Ex.D-3. He has also submitted that in RSA No. 304 of 1998 decided on 12.1.2001, the High Court has upheld the findings of the courts below that Smt. Timru widow of Magha had no absolute interest in the property. In RSA No. 304 of 1998 the suit was filed by Sher Singh on the ground that Smt. Timru widow of Magha was owner in possession of one cow-shed. Sher Singh, Rattan Chand and Gian Chand were real brothers of Magha. They were ‘Gaddi’ by caste and were governed by custom in the matter of succession and alienation, the Hindu Succession Act, 1956 is not applicable to them. Smt. Timru had limited interest in the property of her husband and she could not alienate the property of her husband. It cannot be said that the custom has not been pleaded and proved. The parties were aware of the controversy of custom and they led evidence. The learned trial Court has recorded specific findings on custom which have been upheld by the learned District Judge. The findings on custom recorded by the two Courts below emerges from the evidence on record. Thus, substantial question of law No.1 is decided against the appellant. 9. It has been contended on behalf of the appellant that Ex.D-1 has been mis-read and mis-interpreted by the Courts below. In the written statement filed by the appellant, it has not been pleaded when he was inducted as tenant by Smt. Timru and on what terms. The written statement is dated 27.6.1992. Ex.D-1 is dated 5.8.1989 but in the written statement, there is no reference of agreement dated 5.8.1989 Ex.D-1. The tenancy is a creation of contract which is to be pleaded and proved. The appellant has appeared as DW-1 and he has stated that Smt. Timru 6 had given him land for cultivation and a writing to this effect was executed. He had been cultivating the land for the last about 10 years prior to the execution of the writing. He has identified his signatures on writing Ex.D-1. He has stated that writing dated 5.8.1989 was shown by him to his Advocate at the time of preparation of the written statement. DW-2 Anand Sagar is the nephew of Henari Methew, document writer. He has stated that Ex.D-1 is written and signed by Henary Methew. DW-3 Baldev has stated that he is a witness to Ex.D-1. There was another witness Chimnu, who signed the writing. 10. The stand of appellant is that he had been cultivating the land as tenant ten years prior to the execution of the writing Ex.D-1. It is not understandable why and for what purpose writing Ex.D-1 was prepared when appellant was already in possession of the suit land. The writing Ex.D-1 is a suspicious document. The scribe of the writing has died. DW-1 is an interested witness so far writing is concerned. Chimnu attesting witness of writing has not been examined. DW-3 Baldev another attesting witness of the writing is a resident of place 30 KM away from the suit land. The appellant claimed that writing dated 5.8.1989 was with him at the time of filing of the written statement and was also shown to the Advocte, but why reference of the writing dated 5.8.1989 an important document from the point of view of appellant, has not been made in the written statement, that has not been explained. The basic contract of tenancy has neither been pleaded nor proved by the appellant. The two courts below have rightly considered Ex.D-1 and on the basis of Ex.D-1 it cannot be said that appellant is a tenant on the suit land. The appellant 7 has failed to point out mis-reading and mis-interpretation of Ex.D-1. The substantial question of law No.2 is decided against the appellant. 11. The respondent No.3 had died during the pendency of the second appeal and his name was ordered to be deleted vide order dated 7.8.2000 subject to the liberty to the respondents to agitate about the effect, if any, of deletion at the time of final arguments in the appeal. The learned Sub Judge had decreed the suit in favour of respondents No.1, 2 and Gian Chand. The name of respondent No. 3 Gian Chand was deleted in second appeal on 7.8.2000. The deletion of the name of respondent No.3 has been made at the instance of appellant on the ground that his whereabouts are not known and he was exparte in the courts below. The deletion has not been ordered on the ground that respondent No.3 has died and has left no legal representative. In view of the deletion of the name of respondent No.3, the appeal has become incompetent inasmuch as decree passed by the two Courts below in favour of appellant No.3 has attained finality. 12. In view of the above discussion, there is no merit in the appeal which is accordingly dismissed. No costs. ( Kuldip Singh ), Judge. February 21, 2011 (GR)