IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.232 of 1995. Date of decision: 08.03.2010. Dev Raj … …Appellant Versus Smt.Narvada Devi & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.Subhash Sharma, Advocate. For Respondents 1(a): Mr.K.D. Sood, Advocate. To 1(c) and 2. Dev Darshan Sud,J. This appeal has been preferred by the plaintiff against the judgment and decree of the learned District Judge reversing the judgment and decree of the learned trial Court dismissing the suit instituted by the plaintiffs for declaration that they are exclusive owners in possession of the suit land comprised in Khasra No.60, measuring 6-14-15 Bighas, Khasra No.153, measuring 2-13-4 Bighas, situated in village Fatehpur, Khasra No.277, measuring 0-3-14 Bigha, Khasra Nos.214, 218, 278, 282 and 301, measuring 3-0-10 Bighas, Khasra Nos.276 and 194, 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 measuring 17-9 Bighas, Khasra Nos.3, 12, 319, 320, 326, 327, 329, 331, 342 and 351, measuring 8-10-3 Bighas, situated in village Ghiri, Khasra Nos.262, 295, 347 and 348, measuring 0-17-19 Bigha, situated in village Bahot and Khasra No.133, measuring 156-0 Sq.meters, situated in village Bari by virtue of adverse possession and the sale deeds executed by defendant Jiwani in favour of defendants-respondents Tara Pati and Rattan Dass are illegal and void. An alternate prayer was made that in case the plaintiffs have not become owners of the suit land by adverse possession then they being in peaceful possession of the suit land since the year 1950, a decree for permanent injunction may be passed in their favour restraining the defendants from interfering in the peaceful possession of the plaintiffs. The facts pleaded by the plaintiffs are that the plaintiffs are in continuous hostile and adverse possession of the land since 1950 and are utilizing and appropriating the entire produce from this land. The defendants do not have any right of ownership to this land. Smt.Jiwani, who was impleaded as defendant No.3 in the trial Court, without any right, sold her share in the suit land by sale deeds dated 18.4.1983, 20.4.1983 and 4.6.1983 to defendants No.1 and 2, Tara Pati and Rattan Dass. She had no right, title or interest to sell this land. 3 The learned trial Court, dismissed the suit by a judgment dated 29.9.1988. An appeal was filed before the learned District Judge and an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint was also filed which application was allowed and a revision being Civil Revision No.20 of 1992 carried out to this Court by the defendants against the order allowing amendment was dismissed on 2.12.1992. Four additional issues being issues Nos.6-A, 6-B, 6-C and 9-A, namely:- 6-A. Whether Shri Kaku and Mst.Jiwanu had executed a document alleged to be gift/will in favour of Dev Raj plaintiff in their sound disposig mind as alleged? OPP. 6-B. Whether Smt.Jiwanu married one Thakur son of Narotam before the enforcement of Hindu Succession Act, if so, its effect? OPP. 6-C. Whether the new pleas as taken by the plaintiffs are false and vexatious to their knowledge and the suit is liable to be dismissed with special costs as alleged? OPD. 9-A. Whether the defendants have purchased the share of the defendant No.3 in the suit land for consideration to the knowledge of plaintiffs as bonafide purchaser for valuable consideration as alleged? OPD. 4 were framed and the learned trial Court was directed to return its findings on these issues. These issues were framed on the amendment carried out by the plaintiffs stating that Jiwani and her husband Kaku had made a gift of the suit land in favour of the plaintiff-appellant Dev Raj alias Binhu as he was the nearest reversioner and put him in possession of the suit land on 16.2.1950. They had also produced a document that Jiwani had married one Shri Thakur son of Shri Narotam, in April/May, 1953 and is living as his wife, as such, she had lost all rights, title or interest in the land. On the issues, as framed, findings of the trial Court were called for. The learned trial Court, after recording evidence on these issues, found that gift deed Ex.PW-7/A had been executed by the defendants in favour of Dev Raj plaintiff and that it was valid and binding on the interest of Jiwani. On the issue of re-marriage, issue No.6-B, the Court held that Jiwani had re-married which point was proved by the testimonies of PW-7 plaintiff himself, PW-9 Tilak Chand, PW-10 Mast Ram, PW-11 Devki Nandan and PW-13 Shuk Ram, who had stated that after the death of Kaku, Jiwani had remarried one Thakur, resident of village Kunnu. PW-7, plaintiff, went to the extent of saying that he attended the Bhoj (feasting) ceremony of this marriage. According to the learned trial Court, the factum of marriage was 5 corroborated by Ex.PW-6/A, copy of the Parivar Register. Issue No.6-C was held against the defendants. These findings were sent to the learned appellate Court in compliance to its directions dated 12.3.1993, by which the amendment had been allowed, additional issues framed and findings called thereon. The defendants filed their objections under Order 41 Rule 26 of the Code of Civil Procedure to the findings returned by the learned trial Court. The learned District Judge, on a thorough examination of the evidence and documents on record, dismissed the suit of the plaintiffs holding that Ex.PW-7/A was a document shrouded by suspicious circumstances and Ex.PW-6/A did not prove the remarriage of Jiwani. The plaintiff is now in appeal. This appeal was admitted by this Court on 3.9.1997 by a single order “Heard. Admitted”. No substantial question of law was specified as arisen for determination out of this appeal. When this appeal was taken up for hearing, questions No.2 and 5, namely:- “2. Whether the re-marriage of respondent-defendant No.3 before coming into being of the Hindu Succession Act still permits her to inherit the estate of her erstwhile deceased husband? 6 5. Whether Ext.PW-6/A proving the fact of respondent-defendant No.3 has re-married with one Shri Thakur has been rightly and correctly appreciated by the courts below? were taken as substantial questions of law requiring determination by this Court. Questions No.3 and 4 are ancillary to the answers to these two questions and question No.1 has been declined to be admitted as it calls for a total re-appreciation of the entire evidence on the record which exercise is not permissible in law except when perversity of conclusion from the facts on record is so glaring that appreciation of evidence is required by this Court to come to a particular conclusion. Learned counsel appearing for the plaintiff- appellant submits that the learned appellate Court was totally incorrect in appreciating the findings which were returned by the learned trial Court on the issues as settled after the amendment was allowed. Having found these issues, namely, issue Nos.6-A and 6-B in favour of the plaintiffs, after a thorough examination on the oral and documentary evidence on the record, the learned appellate Court was in grave error in dismissing the suit filed by the plaintiff. Learned counsel submits that the first appellate Court being the final fact finding Court was duty bound to consider the entire facts on the record. 7 In particular he refers to the decision of the Supreme Court in Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs., (2001)3 SCC 179, Madhukar and Others vs. Sangram and Others, (2001)4 SCC 756, H.K.N. Swami vs. Irshad Basith (Dead) by LRs., (2005)10 SCC 243, A.Ambikamba Dead by LRs. and Another vs. B.Ranagaswamy Dead by LRs., (2005)9 SCC 374 and State Bank of India vs. Smt.Mangalabai G.Deshmukh and Others, AIR 2005 Bombay 221 and urges that first appeal is a valuable right and the findings of the appellate Court cannot be conjectural but the reasons given for reversing these findings must be such as can stand the scrutiny of law. There is no dispute with respect to this proposition. Question No.2:- For deciding this question, I cannot persuade myself to hold that the appellate Court was wrong in holding that no remarriage has taken place at all before coming into force of the Hindu Succession Act as pleaded. In fact, the record shows that the learned trial Court has been slipshod in dealing with this issue, whereas the learned appellate Court has given valid and cogent reasons for holding that the findings on this issue are wrong. On the question of remarriage, the learned appellate Court holds that the factum of the death of Kaku who was the husband of Jiwani and the date of death i.e. 24.2.1950 is not disputed by anyone. PW-7 Dev Raj, who appeared as his 8 own witness, has stated in his evidence that sometime after the death of Kaku, Jiwani left his house and remarried one Thakur. In addition, the statements of PW Govind Ram, PW-6 Padam Nath and Parivar Register Ex.PW-6/A purportedly proved her remarriage. Adverting to the cross-examination, the learned appellate Court holds that in his cross-examination he states that ceremony of `Nath’ was performed 4 or 5 years previous to his making the statement in the Court which was on 7.4.1983 which means that the remarriage, if any, took place in 1988-89. This would change the entire complexion of the case. The statement of PW-6 Padam Nath and document Ex.PW-6/A was discarded by the learned Court on a number of grounds. The Court holds that there is nothing in this document which proves the factum of marriage. The register contains blanks at places, the pages are in a shabby condition, there is no certificate on the register certifying the number of pages and consecutive numbering etc. The register contains atleast three entries in the name of “Jiwani”. The Court then holds that in case Jiwani had married Thakur prior to the coming into force of Hindu Succession Act and the land in suit had been gifted by Kaku to the plaintiff the revenue entries would not have continuously shown Jiwani as one of the co- sharers of the suit land for about four decades. I cannot persuade myself to hold that these clear and 9 cogent reasons given by the learned appellate Court are in any manner perverse or that the reasoning adopted for rejection of this documents are not in accordance with the established principles of accepting the veracity of evidence. This question is, therefore, answered against the appellant. Question No.5:- Having held that there has been no valid remarriage, question No.5 is also decided against the plaintiff. Learned counsel has placed great reliance on Ex.PW-7/A to urge that this gift had been made by this document, Kaku and Jiwani had gifted movable and immovable property owned and possessed by Kaku in favour of the plaintiff-appellant and its due execution has been proved. The learned Court rejects this document holding that it is shrouded by suspicious circumstances and cannot be relied upon. The Court holds that when this stamp paper was issued, the date given is 14.2.5. This document has seen the light of the day only when the amendment application was filed which was again a suspicious circumstance. Merely allowing the amendment did not accept the veracity and authenticity of this document. The document was allegedly written on 16.2.50 and the stamp paper was issued by Suket which was a Princely State in India. It is an established fact that India gained independence in 1947. Where and how this stamp 10 paper was procured remains an obscure mystery. Thirdly, the due execution of the document has not been proved. It was purportedly executed and signed by Jiwani and Kaku, however, nobody has identified the signatures of Jiwani and Kaku and DW-1 Tarapati has testified that Jiwani and Kaku were illiterate and could not sign and used to thumb mark the documents. The Court holds that the evidence of DW-1 Tarapati is corroborated by the fact that the sale deeds executed by Jiwani in favour of defendants No.1 and 2 whose authenticity was not doubted have not been signed by Jiwani. The Court then further goes on to hold that the document was not acted upon for more than 40 years by the beneficiary. I am not recounting the other factors detailed by the learned District Judge for discarding this document. Having come to the finding that the document Ex.PW-7/A does not prove the gift, there is obviously no merit in the suit of the plaintiff. This appeal is accordingly dismissed with costs throughout. All interim orders are vacated. All miscellaneous applications are disposed of. March 8, 2010 (Dev Darshan Sud) (aks) Judge.