IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 407 of 2011. Reserved on: 16.09.2011. Decided on: 27.09.2011. ________________________________________________ Narad Thakur. …Appellant. -Versus- Poshi Devi. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant. : Mr. G.R. Palsra, Advocate. For the respondent. : None. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 14.07.2011, passed by the learned District Judge, Mandi, District Mandi, H.P. in Civil Appeal No. 163 of 2009. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellant-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) has filed a suit for declaration and injunction against the respondent-defendant (hereinafter referred to as “the defendant” for brevity sake). According to the plaintiff, he was married to one Smt. Jindi Devi in the year 1975. According to him, the defendant was a stranger, having no concern whatsoever with him. According to him, the defendant, in order to blackmail and fleece the plaintiff, started proclaiming in the village that she was the wife of plaintiff. 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - According to the plaintiff, defendant has also filed a petition under Section 125 of the Code of Criminal Procedure in April, 1988 before learned Chief Judicial Magistrate, Mandi alongwith her son Tara Chand. According to the plaintiff, the petition was compromised and he was forced by the circumstances to give in writing that he would give 8-17-12 bighas of land in Khata No. 12/11, Khatauni No. 24, Khasra No. 1068/1046, situated at Anah/12, Tehsil Chachiot to the defendant. The petition was decided on 05.10.1988. Thereafter, the defendant filed a Civil Suit against the plaintiff. The suit was decreed by the learned Civil Judge, Chachiot at Gohar on 30.11.2004. Plaintiff filed an appeal before the learned District Judge, Mandi, which was dismissed by the learned Fast Track Court, Mandi on 11.10.2006. Thereafter, plaintiff preferred a Regular Second Appeal, bearing R.S.A. No. 515 of 2006. The same was dismissed by this Court on 28.05.2007. Plaintiff came across one document dated 05.07.2007, whereby according to him, the defendant has given in writing to him that he had no connection with him as a wife or otherwise. It is in these circumstances, the present suit has been filed. Plaintiff has prayed that the judgment and decree passed by the learned Civil Judge, Chachiot, judgment and decree passed by the learned District Judge, Mandi and by the High Court be declared null and void, being the result of mis-representation. 3. The suit was contested by the defendant. The defendant has given the sequence, the manner in which the earlier suit filed by the defendant was decreed by the trial court and the judgment and decree was up-held up to this Court. According to the defendant, it was the gross mis-use of the process of the Court - 3 - and the suit be dismissed with exemplary costs. Defendant has admitted that she has filed a petition, under Section 125 of the Code of Criminal Procedure in 1988. Plaintiff has given in writing to her that he will give her land, measuring 8-17-12 bighas, situated in Khata No. 12/11, Khatauni No. 24, Khasra No. 1068/1046, situated at Anah/12, Tehsil Chachiot alongwith the house upon a part of this land in lieu of maintenance. 4. Replication was filed by the plaintiff, reiterating the stand taken in the plaint. 5. Trial Court framed the issues on 30.04.2008 and thereafter additional issues were framed on 16.09.2009. Civil Judge (Junior Division), Chachiot at Gohar, District Mandi, H.P. dismissed the suit on 27.10.2009. Plaintiff preferred an appeal before the learned District Judge, Mandi, District Mandi, H.P.. The same was dismissed on 14.07.2011. Hence, this Regular Second Appeal. 6. Mr. G.R. Palsra, learned counsel for the appellant, on the basis of substantial questions of law framed at page No. 6 of the paper-book, has vehemently argued that both the Courts below have mis-appreciated and mis-read the oral as well as documentary evidence. According to him, defendant was not the wife of plaintiff. 7. Plaintiff has appeared as PW-5 and also as RPW-1. According to him, he married Jindi Devi in the year 1975 and a son Hitender and daughter Alka were born. He then stated that defendant was a stranger, who filed a petition under Section 125 of the Code of Criminal Procedure against him in the year 1988. He was a Government servant at that time. According to him, - 4 - defendant filed a number of complaints in his department and also before the Chief Minister to pressurize and compel him to enter into a compromise. In these circumstances, he had to give land measuring 8-17-12 bighas and a house to the defendant. He has admitted that defendant has filed a suit against him in the year 2003 with regard to this property. He has stated about the filing of appeals before the learned Fast Track Court and this Court. In cross-examination, he denied that he had married Poshi in the year 1973 and that Tara Chand was born out of this marriage. He has placed on record the order passed by the learned C.J.M. Ex. PW-5/A and the compromise deed Ex. PW-5/B. He has also placed on record his statement Ex. PW-5/C. 8. Plaintiff has examined PW-1 Jalam Singh. He has deposed that on 12.12.1976, a writing was prepared in the house of father of Poshi Devi, copy of which is marked-X, which was signed by him and it also bears the signature of Devi Ram. According to him, Poshi Devi and Karam Singh had appended their thumb impressions on it. In his cross-examination, he has admitted that he did not know who has written mark-X. He did not remember about the contents of mark-X. 9. PW-2 Devi Ram has testified that Poshi Devi was residing in the house of plaintiff for the last 8-10 years and before that she was residing at her parents house. In his cross- examination, he has admitted that plaintiff and Poshi had earlier married each other and a son Tara Chand was born. 10. PW-3 Daya Ram has stated that the wife of the plaintiff is Jindi Devi and their children are residing in the house at Mandi. According to him, the defendant was residing in the - 5 - house of Narad for the last 10 to 15 years. In his cross- examination, he has also admitted that Poshi was the wife of Narad and a son Tara Chand was born. 11. Defendant has appeared as DW-1. According to her, she married Narad 30 years back and two sons were born, out of which, one son died and the other is Tara Chand. She has categorically stated that she has filed a maintenance petition against the plaintiff. Plaintiff has given land to her and a house in a compromise. She has been residing in the house for the last 20 years. She has denied the suggestion that writing Mark-X was prepared in her presence in the year 1976. She has denied the suggestion that she was not married to the plaintiff. She has denied the thumb impression on mark-Y. She has specifically denied the execution of a writing of document in the year 1976. 12. Tara Chand, son of the defendant has appeared as a witness. He has deposed that he and his mother were residing in the house and were in possession of the land for the last 20-21 years. He denied that he and his mother had come to the house of his father in the year 2001. 13. What emerges from the facts enumerated hereinabove, is that the defendant being the wife of plaintiff, has instituted proceedings under Section 125 of the Code of Criminal Procedure against the plaintiff. The matter was compromised vide Ext. PW-5/B. The orders were passed by the learned Chief Judicial Magistrate vide Ex. PW-5/A. Plaintiff has also placed on record his statement Ex. PW-5/C. He has agreed to give to the defendant land, measuring 8-17-12 bighas, situated in Khata No. 12/11, Khatauni No. 24, Khasra No. 1068/1046, situated at - 6 - Anah/12, Tehsil Chachiot alongwith the house upon a part of this land in lieu of maintenance. Defendant has instituted a suit against the plaintiff. The suit was decreed and the appeal preferred by the plaintiff before the 1st Appellate Court was dismissed. The Regular Second Appeal preferred by the plaintiff was also dismissed on 28.05.2007. Thus, the judgment and decree passed by the trial Court have attained finality. 14. Plaintiff has solely relied upon the document marked- X, which according to the plaintiff, was executed by the defendant in the year 1976. According to the plaintiff, the defendant has stated in this document that she has no relationship with the plaintiff. This document was never produced by the plaintiff before the learned Chief Judicial Magistrate and before the Courts below when the suit was instituted by the defendant against him. Plaintiff has also taken a stand in the proceedings before the learned Chief Judicial Magistrate, under Section 125 of the Code of Criminal Procedure that a customary divorce has taken place between him and Maghi Devi on 12.12.1976. However, the plaintiff has not clarified as to who Maghi Devi was. Plaintiff has also annexed alongwith Ex. PW-5/B, i.e., compromise deed, a copy of the divorce deed Ex. PW-5/D. It is stated that the divorce between the parties has taken place in the month of October, 1976 according to customary rites and it is specifically mentioned that earlier the dissolution deed was executed on a plain paper and now for strict proof, it is being entered on non judicial paper. Thus, the case of the plaintiff that the defendant was not his legally wedded wife is falsified. - 7 - 15. PW-2 has also not supported the plaintiff. In his cross-examination, he has testified that plaintiff and defendants were married to each other and a son Tara Chand was born. PW-3 Daya Ram has also testified in his cross-examination that Poshi was the wife of Narad and a son Tara Chand was born out of the wedlock. Plaintiff has placed on record Ex. PW-5/D. The alleged writing Mark-Y, dated 12.12.1976 has not been proved by the plaintiff. Plaintiff did not know who has scribed the document and did not remember what was written in it. DW-2 has not said anything about this document. The defendant has also denied the thump impression on the document. The suit filed by the plaintiff against the defendant has been decreed by the trial Court and the same, as noticed above, has been up-held up to this Court. Plaintiff has not challenged the status of the defendant. The documents relied upon by him mark-X and Mark-Y have not been duly proved. Mark-X is the photo copy and mark-Y is original. He has not mentioned about these documents when the proceedings were initiated before the Chief Judicial Magistrate, learned Civil Judge (Junior Division), Chachiot at Gohar and when the defendant has filed the Civil Suit against him, rather Ex. PW-5/D makes it abundantly clear that the marriage between him and the plaintiff was dissolved. Plaintiff has not mentioned about mark-Y in his plaint. In view of the observations and discussions made hereinabove, filing of the suit by the plaintiff was gross misuse of the process of the Court. The matter before the learned Chief Judicial Magistrate, Chachiot at Gohar was compromised. The defendant has to file the Civil Suit against the plaintiff for the recovery of the land, which the plaintiff has agreed to give to the - 8 - defendant in lieu of compromise. The judgment and decree passed by the learned Civil Judge (Junior Division), Chachiot at Gohar has been up-held up to this Court. Both the Courts below have correctly appreciated the oral as well as documentary evidence. 16. In view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed with costs quantified at `10,000/-, so also the pending application(s), if any. No costs. (Rajiv Sharma) Judge September 27, 2011. (bhupender) - 9 -