IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 464 of 1998. Judgment reserved on 20th March, 2010. Date of Decision: 6th April, 2010. Ravinder Kumar .. Appellant. Versus Bansi Ram .. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. R.K. Bawa, Senior Advocate with Mr. Inderjit Narwal, Advocate. For the respondent: Ms. Seema Kaushal, Advocate. Surinder Singh, J . This Regular Second Appeal was admitted on 13th May, 1999 on the following substantial questions of law: 1) Whether adverse inference ought to have been drawn against the plaintiffs as plaintiff No.2 has not appeared in the witness box during the course of the proceedings and has not proved her marriage with late Shri Surtia and the paternity of plaintiff No.1 to be the son of late Shri Surtia with the help of any oral or documentary evidence? 2) Whether once the separation between said Surtia and Smt. Mathru has been admitted by the plaintiffs in the year 1953 and further they have admitted the factum of marriage between Smt. Muni Devi and Shri Surtia, the 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - relationship of husband and wife between Shri Surtia and Smt. Muini Devi has been proved in accordance with law? 3) Whether the learned Courts below could fix the date of marriage between the parties, i.e., Shri Surtia and Smt. Muni Devi to be in the year 1958 in the absence of any specific pleadings and averments in this behalf by the plaintiffs and also in the absence of any evidence led by them in this behalf? 4) Whether in case it is proved that the marriage between Smt. Muni Devi and Shri Surtia had taken place in the year 1953-54, i.e. prior to the commencement of the Hindu Marriage Act, 1956, whether Smt. Muni Devi is legally entitled to inherit the properties of Shri Surtia even if his earlier marriage is proved with Smt. Mathru? 5) Whether in view of the fact that plaintiff No.1 has not objected to the attestation of the mutation in favour of late Smt. Muni Devi and also it was at his instance that the mutation was attested in favour of the said Smt. Muni Devi, the plaintiffs were estopped from filing and maintaining the present suit? 6) Whether as the gift deed in dispute is a registered document and the possession of the land in dispute has been handed over to the present appellant by Smt. Muni Devi by way of the registered gift deed, it can be held that the possession is still with the respondents/ plaintiffs? 7) Whether the learned Courts below have fallen in error in holding that the civil Court has a jurisdiction to grant the reliefs as claimed by the plaintiffs? 8) Whether the learned Courts below have fallen in error holding that the State of Himachal Pradesh is not a necessary party in the present suit? In the instant appeal filed under Section 100 of the Code of Civil Procedure, the defendant/appellant has challenged the judgment and decree dated 1st August, 1998, passed by the learned District Judge, Shimla, in Civil Appeal No.116-S/13 of 1995 having - 3 - arisen out of Civil Suit No.150/1 of 1991, decided by the Sub Judge 1st Class, Court No.2, Shimla, vide his judgment and decree dated 25th May, 1995, whereby he had decreed the suit for declaration with further relief of permanent prohibitory injunction filed by the plaintiff/ respondents. The factual background of this lis is that Shri Surtia was the owner in possession of the suit land mentioned in the plaint. After his death mutation No.452 of inheritance of his estate was accepted and attested on 20th December, 1990 by the revenue authorities in favour of the plaintiff/respondents and also Smt. Muni Devi. Later said Smt. Muni Devi had gifted a portion of the suit property in favour of the present appellant on 26th February, 1991. The plaintiffs filed the civil suit and sought declaration that they had inherited the estate of Shri Surtia to the exclusion of Smt. Muni Devi, who was impleaded as defendant No.1 and mutation No.452 attested on 20th December, 1990 by the revenue authorities qua his estate in favour of defendant No.1 Smt. Muni Devi who was not the heir of the deceased, was illegal, void and of no consequence. Further they also sought the relief that the gift made by Smt. Muni Devi in favour of the defendant/appellant, vide deed No.114 dated 26th February, 1991 was illegal, void and not binding on them with the consequential relief of permanent prohibitory injunction restraining him from causing any interference in the suit land. It was the positive case of the plaintiff/respondents that Smt. Mathru Devi (plaintiff No.2) was legally wedded wife of Shri Surtia and plaintiff No.1 Bansi Ram was born from the said wedlock. Shri Surtia died in the month of January, 1990 and the plaintiff/respondents inherited his property to the exclusion of all others being Class-I legal - 4 - heirs and that Hira Singh ‘Nambardar’ by using his influence on the revenue officials, got a false report of mutation entered that Shri Surtia had two wives, namely Smt. Mathru and Smt. Muni Devi and son Bansi Ram. It is alleged that the said mutation was accepted and attested at the back of the plaintiff/respondents and thereafter ‘Nambardar’ Hira Singh got a portion of the land gifted in favour of his son-in-law the defendant/appellant from Smt. Muni Devi, who was in no way related to Smt. Muni Devi. It was also the case of the plaintiff/respondents that Shri Surtia and Smt. Muni Devi were from lower caste, whereas Ravinder Kumar, appellant was from upper caste and there was no occasion for Smt. Muni Devi to gift the property in his favour. The suit was resisted and contested by the defendants. Although, the written statement was filed on behalf of the defendants, but it was verified by Ravinder Kumar, appellant. They took up the preliminary objections of jurisdiction, estoppel, vis-a-vis no cause of action. Defendant/appellant denied that Smt. Mathru was the wife of Shri Surtia and plaintiff Bansi Ram was born from the said wedlock. The specific case of the defendant/appellant is that Smt. Mathru had separated from Shri Surtia in the year 1953 and she never resided with him. Thereafter in the year 1954 Shri Surtia married Smt. Muni Devi and both of them lived together as husband and wife till the death of Shri Surtia. It was also the case of the defendant/appellant that plaintiff/respondent Bansi Ram himself has reported to the Patwari on 16th February, 1990 that he alongwith his mother Smt. Mathru and Smt. Muni Devi were the legal heirs of Shri Surtia and upon such report the mutation of inheritance in their favour was accepted and attested to their knowledge. Smt. Muni Devi of her own free Will executed a gift - 5 - deed in favour of the defendant/appellant and he was put into possession of the suit property. On the pleadings of the parties, the learned trial Court framed the following issues:- 1) Whether the plaintiffs alone are successors-in-interest of late Surita? OPP. 2) Whether the plaintiffs are in possession of suit land? OPP. 3) Whether defendant No.1 is also entitled to succeed as alleged? OPD-1. 4) Whether State of H.P. is necessary party? OPD. 5) Whether the plaintiffs are estopped to file this suit due to their acts, deeds and conduct? OPD. 6) Whether this Court has no jurisdiction to grant the relief qua the correction of revenue entries and mutation as alleged? OPD. 7) Relief. The parties led their respective evidence, on the conclusion of the trial and upon hearings the parties the learned trial Court held that defendant Muni Devi was not legally wedded wife of deceased Shri Surtia, thus she was not entitled to inherit his property and further that Smt. Mathru was the widow of Shri Surtia and plaintiff Bansi Ram his son, as such, they were exclusively entitled to inherit the estate of Shri Surtia. Other issues were answered in favour of the plaintiffs and the suit was decreed in favour of the plaintiffs. The appellant assailed the judgment and decree before the learned District Judge. The learned District Judge, while deciding the matter framed the following points for determination: - 6 - 1) Whether the learned trial Court has fallen in error in holding that the State of H.P. is not a necessary party? 2) Whether the learned trial Court has fallen in error in holding that the civil court has the jurisdiction to grant the relief claimed by the plaintiffs? 3) Whether the learned trial court has erred in holding that the plaintiffs are estopped to file the suit by their acts, deeds and conduct? 4) Whether the learned trial court has fallen in error in returning the finding that Smt. Muni Devi, impleaded as defendant No.1, was not the legally wedded wife of Surtia? 5) Whether the learned trial court has erred in holding that the plaintiffs are in possession of the suit land? All the above points were answered in negative, consequently the appeal was dismissed. Having felt aggrieved and dissatisfied with the judgment and decree passed by the learned District Judge, the present Second Appeal has been filed by appellant. Shri R.K. Bawa, learned Senior Advocate duly assisted by Shri Inderjit Narwal, vehemently argued that the learned District Judge has come to a wrong conclusion that Smt. Muni Devi was married in 1958 and not in the year 1953 in fact there was separation between Shri Surtia and Smt. Mathru in the year 1953 and vehemently argued that it is proved on record that Smt. Mathru was divorced. Since the marriage of Smt. Muni Devi with Shri Surtia was admitted by the plaintiff/respondents, the suit filed by the plaintiffs/ respondents ought to have been dismissed. Contra, Ms. Seema Kaushal, learned Counsel for the plaintiff/respondents forcefully argued that there are concurrent findings - 7 - of fact and no substantial question of law has arisen, while supporting the impugned judgments and decrees prayed for the dismissal of the appeal. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the evidence on record to answer the above points. In written statement the defendant/appellant denied that Smt. Mathru was legally wedded wife of Shri Surtia and plaintiff Bansi Ram was born out from the wedlock, but however, simultaneously it was averred that Smt. Mathru started living separately from Shri Surita in the year 1953, thereafter she never joined the company of Shri Surtia. There is not even a flitting reference in the written statement that their marriage was dissolved at any point of time. It is also denied that plaintiff/respondent Bansi Ram was born prior to 1953. Bansi Ram while appearing as PW-1 stated that even after desertion his father Surtia never married again. The first appellate Court has taken note of these pleadings and correctly held that mere desertion of the spouse does not put the marriage to an end. Plaintiff Bansi Ram testified before the trial Court that he took birth in the year 1949 and this part of his testimony was not challenged. Although, there is some evidence that Smt. Muni Devi was residing with Shri Surtia and their relations got strained. Ultimately notice dated 18th December, 1976 Ext.PW-1/G was sent to Shri Surtia wherein she categorically stated that she was married to Surtia about 18 years back, on calculation it comes to the year 1958. The said notice was for providing maintenance to the tune of Rs.200/- per month. Once it is held that there was no desertion of marriage inter se Smt. Mathru and Shri Surtia, then her alleged marriage with Shri Surtia in the year 1958 becomes illegal and void as - 8 - by that time Hindu Marriage Act, 1956 has come into force and during the subsistence of his first wife Shri Surtia could not have second spouse, i.e., Smt. Muni Devi. Further the alleged writing Ext.PW-2/A whereby Smt. Muni Devi has divorced Shri Surtia is no proof of legal subsistence of marriage, as by no stretch of imagination Muni Devi could have been legally wedded by Shri Surtia. Even before the Assistant Collector IInd Grade plaintiff/respondent Bansi Ram had also made the statement Ext.DA wherein there is a reference of second wife having been brought by Shri Surtia in the year 1958, which ended by customary divorce in the year 1977. Shri R.K. Bawa, learned Senior Advocate when confronted with this situation argued that Smt. Muni Devi was illiterate and notice Ext.PW-1/G was scribed by somebody else and it cannot be taken as exact date of marriage as mentioned therein, is devoid of any merit as the averments were not challenged anywhere till date. Pertinently, during the proceedings of the case before the learned trial Court Smt. Muni Devi did not put in appearance and examined herself to testify the fact that she was married to Shri Surtia in the year 1953. She also had not signed the written statement. It is only the defendant/appellant who had attested the verification. There is also a clear cut averment in the plaint filed by the plaintiff/respondents whereby it is mentioned that Smt. Muni Devi was neither married to Shri Surtia nor acquired the status of his wife nor she lived as his wife till the date of death of Shri Surtia. The said averment is enough to prove that Smt. Muni Devi was not the legally wedded wife of Shri Surtia against the above proved facts. Admittedly Shri Surtia died in the month of January, 1990 and it stands proved that at the time of death of Shri Surtia Smt. Muni Devi was not residing with him as their ties as - 9 - husband and wife had come to end by a writing, proved by its scribe PW-2 Shri Anant Ram, also by PW-4 Surat Ram and PW-5 Smt. Dharmi, the sister-in-law of Smt. Muni Devi. She also testified that after the divorce Smt. Muni Devi lived with one Shri Krishnu as his wife and after 6-7 months she also deserted him and again she started living in her village where she resided till her death. Therefore, in view of these proved facts, there is no question of physical possession of Smt. Muni Devi of the land alleged to have been gifted to the defendant/appellant. For the aforesaid reasons, Smt. Muni Devi was neither in possession of the suit land nor she was the legally entitled to hold the property of Shri Surtia. The mutation alleged to have been entered at the instance of plaintiff Bansi Ram does not operate as estopel. In view of these proved facts and in the circumstances, the learned District Judge while dismissing the appeal of the defendant/appellant was justified in affirming the judgment and decree of the learned trial Court. There are concurrent findings of facts and no substantial law point is involved, as such, the above questions are accordingly answered. The appeal is without any merit, hence dismissed. No other points urged. Parties are left to bear their own costs. April 6, 2010. (Surinder Singh), (rc) Judge.