IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 40 of 1999. Reserved on: 02.08.2011. Decided on 19.08.2011. _____________________________________________________ Radha and another. …Appellants. -Versus- Jamuna Devi. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellants. : Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the respondent. : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 05.10.1998, passed by the learned District Judge, Shimla in Civil Appeal No. 62-S/13 of 1996. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the appellant-plaintiff, namely, Smt. Radha (hereinafter referred to as “the plaintiff” for convenience sake) instituted a suit for permanent prohibitory injunction against the respondent-defendant (hereinafter referred to as “the defendant” for brevity sake), restraining her from interfering in land bearing Khasra Nos. 2, 3, 4, 5 and 6, measuring 35 bighas, 19 biswas, situated in village Dhanain, Tehsil and District Shimla (hereinafter referred to “the suit land” for convenience sake). According to her, the suit land was earlier 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - owned by her father Trilok Chand and her father’s brother Amar Chand and that on the death of Trilok Chand, his half share in the land was inherited by her, her sister Prabha Devi, impleaded as proforma defendant No. 2, and her mother Jiwani and that on the death of Jiwani, she and her sister Prabha Devi inherited her share. She further pleaded that her father’s brother Amar Chand was un-married and issueless and on his death, which took place in February, 1989, she and her sister Prabha Devi inherited his share and thus she and the proforma defendant became joint owners, to the extent of one half share each of the entire suit land. She further claimed that the entire suit land was possessed by her and her sister Prabha Devi. She alleged that defendant without any right, title or interest in that land started interfering in her and proforma defendant’s possession over the suit land by making a false claim that she was the daughter of Amar Chand. It was further stated that the defendant Jamuna Devi moved an application for correction of entries in her favour to the Assistant Collector, Ist Grade, Shimla, but the said Assistant Collector dismissed her application with a direction that she should get her title established from the civil court. 3. The suit was contested by the defendant. According to her, the suit was not competent nor maintainable. According to her, the plaintiff was out of possession and was not entitled to the relief of injunction. On merits, it was stated that Amar Chand was the father of defendant and that on his death, she inherited his half share in the suit land. It was alleged that the defendant was in possession of Amar Chand’s share in the land as also in the house. According to her, Amar Chand had married a lady, named, - 3 - Chandu long long back and from their wed-lock, defendant was born, but when the defendant was one and half years of age, divorce took place between Amar Chand and Chandu and thereafter Chandu settled with one Daulat Ram. 4. Replication was filed by the plaintiff. The trial court framed the issues on 24.08.1990. The trial court decreed the suit in favour of the plaintiff. Thereafter, the defendant Jamuna Devi preferred an appeal before the learned District Judge, Shimla. The same was allowed on 05.10.1998. It is in these circumstances, that this Regular Second Appeal has been filed by the plaintiff and proforma defendant, namely Smt. Prabha Devi. The Regular Second Appeal was admitted on the following substantial questions of law on 20.05.1999: “1. Whether the evidence as produced by the respondent is beyond the scope of the pleadings and the same has not been brought on record in accordance with law. 2. Whether the adverse inference was required to be taken against the respondent for her failure to bring on record the documentary evidence in respect of the service record including pension and gratuity of late Sh. Amar Chand in which according to the respondent she was recorded as his nominee.” 5. Thereafter, an application bearing C.M.P. No. 751 of 2010 was preferred by the appellants for framing additional substantial questions of law. Reply was filed by the respondents. The application was allowed by this Court on 09.03.2011 and the Regular Second Appeal was deemed to have been admitted on additional substantial questions of law No. 1 to 5, framed at page 77 of the paper-book, in addition to earlier substantial questions - 4 - of law. The appellants have also moved an application under Order 41 Rule 27 of the Code of Civil Procedure bearing C.M.P. No. 991 of 2010. Reply was filed by the respondent. This application was also being taken up for hearing alongwith the appeal. 6. Mr. G.D. Verma, learned Senior Advocate has supported the judgment and decree passed by the learned trial court. According to him, the learned first appellate court has mis- lead and mis-appreciated the oral as well as documentary evidence. According to him, the learned first appellate court has come to wrong conclusion that defendant Jamuna Devi was daughter of Amar Chand. According to him, defendant Jamuna Devi was daughter of one Shri Rolu @ Daulat Ram, whose property she has inherited. 7. Mr. Bhupender Gupta, learned Senior Advocate has supported the judgment and decree passed by the 1st appellate court. According to him, defendant Jamuna Devi was daughter of Shri Amar Chand and was entitled to inherit the property of late Shri Amar Chand. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 10. Plaintiff Radha Devi has appeared as PW-1. According to her, the suit land is 35 bighas 19 biswas. She was in possession of the same with her sister Prabha Devi. The land was joint before the death of Shri Amar Chand. After the death of - 5 - Trilok Chand, she, her mother and her sister came in possession of the suit land. The name of her mother was Jiwani. After the death of Jiwani, she and her sister Prabha came in possession of the suit land. Amar Chand died issueless. She alongwith Prabha Devi became owner with possession of the suit land. There was common mess with Amar Chand. Defendant Jamuna Devi is not related to Amar Chand. The defendant has started interfering with their possession by claiming to be the daughter of Amar Chand. Defendant is living in village Jote. She is wife of one of Shri Bishan Dass (DW-4). They have also lodged F.I.R.. She has proved copy of Jamabandis Ex. PW-1/A and Ex. PW-1/B, copy of Sahjra Nasab Ex. PW-1/C and Sahjra Malikan Ex. PW-1/D. In her cross- examination, she has admitted that Amar Chand was also known as Chunia. She has admitted that the disputed house is two storeyed. She has denied the suggestion that in the lower storey, the electricity meter was installed by Jamuna Devi. She has admitted that Amar Chand was working in Education Department. She has denied that Amar Chand has nominated someone to get the benefits. She has denied the suggestion that Amar Chand was married to Chandu and from whose wed-lock, defendant Jamuna Devi was born. She volunteered that Jamuna Devi is the daughter of Daulat Ram. She has denied the suggestion that dispute between Amar Chand and Chandu with regard to divorce went to Raja Koti and the matter was decided. She did not know whether Ganesh Dass (DW-5) was Reader. She denied the suggestion that last rites of Amar Chand were performed by Jamuna Devi. These were performed by them. She denied the suggestion that Amar Chand used to live in the ground - 6 - floor. She has denied the suggestion that there was any litigation between her father and Amar Chand. She has denied the suggestion that defendant used to cultivate the land during the lifetime of Amar Chand. She has denied the suggestion that Jamuna Devi is in possession of the suit land. This is the evidence led by the plaintiff. 11. Defendant Jamuna Devi has appeared as DW-1. She deposed that name of her father is Amar Chand. He was residing in village Dhar. The name of her mother was Chandu Devi. She has died 10-20 years back. Her mother was married to one Shri Shiv Dutt. Thereafter, she solemnized marriage with Amar Chand. Amar Chand was also known as Chunia. The dispute arose between her mother and Amar Chand after her birth. The matter went to Rana Koti. Rana Koti ordered that she should stay with her mother for few years. Thereafter, her mother married one Shri Daulat Ram. Shri Daulat Ram was also known as Rolu. She gave birth to two children, namely, Hari Nand and Battu. She stayed with her previous husband 1 ½ years. The marriage was solemnized by Amar Chand. Thereafter, she came back to her matrimonial home and got married with Shri Bishan Dass. She was 15-16 years old at that time. Amar Chand was working in Education Department. He died four years back. He has nominated her to get the pension. Her father and uncle used to live separately. Her father used to cultivate 15-16 bighas of land. Her father owned two rooms. She used to look after her father. She has denied that she was the daughter of Rohlu. She did not know in which Panchayat her date of birth was recorded. She has denied the suggestion that when Rolu died, his property was - 7 - mutated in her favour alongwith two brothers. She submitted an application for the correction of entries. She did not know what order was passed by the competent authority and she could not produce the copy. She got the electricity meter installed four years back. She has categorically admitted in her cross-examination that after the death of Tarlok Chand, his property was mutated in the name of Jiwani, plaintiff and proforma defendant. She also admitted that the suit land was entered jointly in the name of Jiwani, Prabha, Radha and Tarlok Chand. She did not know how her name was entered in the copy of Jamabandi Ex. PW-1/B. She denied the suggestion that her name was entered after the death of Daulat Ram. She has reiterated that she submitted the application for correction of mutation and entries in the Jamabandi. This application was submitted about 15 years back. She was not aware what order was passed by the competent authority. She did not know even to whom the application was submitted. She did not have any document. She further stated that the application was given by Amar Chand and not by her. It was stated in the application that she was daughter of Amar Chand. She has admitted that she could not produce any document of the dispute which went before the Rana Sahib. She further stated that her name was got entered in the school by her father, but she could not produce any copy thereof. 12. DW-2 Shri Gauri Dutt has deposed that he knew Daulat Ram. He was also known as Rohlu Ram. He used to visit his house. He also knew Chandu. Chandu was brought by Daulat Ram as his wife. When Daulat Ram brought Chandu, she was accompanied by one daughter aged 1 ½ to 2 years. Jamuna- - 8 - defendant has no right over the property of Rohlu. He has admitted in cross-examination that Jamuna was living in Jote. The distance between Dhanain and Jote is about 5-6 kms. He has admitted that he was not present when the marriage was solemnized between Amar Chand and Chandu. He did not know whether the marriage was solemnized between Amar Chand and Chandu. He did not know that there was any dispute between Amar Chand and Chandu. 13. DW-3 Shri Mast Ram has deposed that he knew Amar Chand, who was resident of village Dhar. Chandu was married initially with Shri Shiv Dutt and thereafter she was married with Amar Chand. One daughter was born in the house of Amar Chand. Thereafter, the dispute arose between Amar Chand and Chandu Devi. Chandu Devi took the girl with her and the matter went before the Raja. The name of the girl is Jamuna. He has admitted in his cross-examination that when there used to be rit (divorce), it was reduced into writing. He did not know whether Jamuna Devi has inherited the property from Daulat Ram. According to him, Chandu stayed with Daulat Ram for 8 to 10 years. Thereafter added that she stayed with Amar Chand for 8- 10 years. He again stated that she stayed with Daulat Ram for 10 to 11 years. He did not know when Chandu left Amar Chand. He has categorically admitted that he has not come across any document whereby parentage of Jamuna as daughter of Amar Chand has been given. 14. DW-4 Bishan Dass has deposed that Amar Chand was resident of village Dhanain. He was also known as Chunia. His daughter is named Jamuna Devi. He solemnized the marriage - 9 - with Jamuna Devi 31-32 years back. It was solemnized under gader system. The marriage was reduced into writing vide Ex. DW- 4/A. A copy of the same was retained by her and the second copy was given to Amar Chand. Ex. DW-4/A was scribed by Megh Ram. It was signed by Devi Singh (DW-6). It was also signed by him and Jamuna Devi. According to him, at the time of marriage, Jamuna Devi was 52-53 years old. Jamuna Devi knew that Ex. DW-4/A was with him. Devi Singh was the first husband of Jamuna Devi. He also stated that the divorce was also obtained through Devi Singh in writing and copy whereof may be with Amar Chand. He did not know whether Jamuna Devi has inherited any property from Daulat Ram. He has testified in cross-examination that Ex. DW-4/A was written at the instance of Amar Chand and Amar Chand has signed the same. Thereafter, he stated that Amar Chand has not signed Ex. DW-4/A. Ex. DW-4/A was written at village Dhar. 15. DW-5 is Ganesh Dass. According to him, Shiv Dutt was the first husband of Chandu Devi. He was his brother. Chandu Devi left him and married Amar Chand in village Dhanain (Dhar). Jamuna Devi was born from the wed-lock of Amar Chand and Chandu Devi. He used to work with Rana Koti. The dispute went to Rana Koti for the custody of daughter. The Rana ordered that Jamba Devi will remain with her mother till she attains the age of 5-6 years and thereafter, the custody was to be handed over to Amar Chand. He further deposed that Amar Chand has married Jamuna Devi in village Mathu. Jamuna Devi left Devi Singh. In his cross-examination, he has admitted that he has not come - 10 - across any document whereby Jamuna Devi has been shown daughter of Amar Chand. 16. DW-6 Devi Singh was one of the marginal witnesses of Ex. DW-4/A. According to him, Ex. DW-4/A was scribed by Med Ram. In his cross-examination, he has also admitted that he did not come across any document establishing that Jamuna Devi was the daughter of Amar Chand. He has also admitted that whenever there is a divorce, it is reduced into writing. According to him, Ex. DW-4/A was written at the house of Amar Chand. 17. DW-7 is Shri Hari Nand, son of Shri Daulat Ram. According to him, Jamuna Devi is the daughter of Amar Chand. DW-8 Rajvir Singh is the Head Master. He has produced the record Ex. DW-8/A. 18. DW-9 is Parma Nand Verma, who was working as L.D.C. in the office of Electrical Sub-Division, Mashobra. According to him, the meter was installed in the house of Jamuna Devi on 19.07.1989. 19. DW-10 Kuldip Chand has brought the record from the office of Accountant General. According to him, Amar Chand has nominated Jamuna Devi as nominee. This is the oral as well as documentary evidence led by defendant Jamuna Devi. 20. Learned Sub Judge Ist Class (2), Shimla after pursuing the entire evidence, oral as well as documentary, has dismissed the suit on 09.09.1996. He has given a specific finding that Jamuna was not the daughter of Amar Chand. However, the learned first appellate court has reversed the well reasoned judgment of the trial Court only by referring to Ex. DW-4/A and by making a passing reference to the nomination made by Amar - 11 - Chand in his pension papers. Now, as far as Ex. DW-4/A is concerned, the same has not been signed by Amar Chand. Surprisingly, it has been signed by Daulat Ram. DW-4 Bishan Dass has stated that Amar Chand has signed the document. However, he later on stated in his statement that it was not signed by Amar Chand. There is variance in the statements of the witnesses produced by the defendant, the manner of executing and place of preparing Ex. DW-4/A. It has come in the evidence that Devi Singh has divorced Jamuna Devi and the divorce deed used to be prepared. This deed has not been placed on record. In view of the observations and discussions made hereinabove, the document Ex. DW-4/A was not admissible. Learned first appellate Court has mainly relied upon this document to prove that Jamuna Devi was the daughter of Amar Chand. It has come on the record that Jamuna Devi was admitted in the School, however, the school leaving certificate has not been placed on record. 21. Now, the most important evidence led by the defendant has been over looked by the first appellate court. It is not in dispute that Chandu Devi was married with Daulat Ram. The property of Daulat Ram which was situated in separate village, has been inherited by the plaintiff as is evident from Ex. PW-1/B and copy of mutation Ex. PR-1. This has been inherited by Jamuna Devi in equal shares with other children of Daulat Ram. In Ex. PW-1/C, i.e., Shajra Nasab, the defendant No. 1 is shown as daughter of Daulat Ram. According to Ex. PW-1/D, copy of Shajra Nasab, Amar Chand has died issueless and his brother Tarlok Chand had two daughters. The appellants have also moved an application under Order 41 Rule 27 of the Code of Civil - 12 - Procedure, whereby revenue record has been sought to placed on record. The documents produced by the plaintiff substantiate the plea of the appellant-plaintiff that Jamuna Devi was not the daughter of Amar Chand. These documents forms very basis of the claim made by the plaintiff. The court is of the considered view that these documents are necessary for just decision of the case. Accordingly, the application is allowed. 22. Their Lordships of the Hon’ble Supreme Court in Shyam Gopal Bindal and others Vs. Land Acquisition Officer and another (2010) 2 Supreme Court Cases 316 have held as under. “10. We have heard the learned counsel for the parties. It appears that the documents which were sought to be produced by the appellants formed the very basis of the claim made by the appellants in the civil suit. Their consideration by the court was necessary for a just decision of the case. The original plaintiff passed away during the pendency of the civil suit. The documents were thereafter sought to be brought on record at the earliest opportunity available to the legal representatives of the deceased plaintiff. Therefore, it could not be said that the appellants had not given any reason as to why the documents had not been produced in the trial court. It appears that the dismissal of the suit by the trial court for non-production of evidence by the plaintiff was mechanically affirmed by the Appellate Court. 11. It further appears that none of the issues have been decided by any of the courts below, on merits. All decisions have proceeded on the basis that the plaintiff/appellants have failed to produce evidence in support of their claim. The application was not examined keeping in view the principles laid down in Order 41 Rule 27 of the Civil Procedure Code. The documents sought to be produced are Judicial Orders declaring the ownership - 13 - rights of the appellants, that have a crucial bearing on the merits of the claim put forward by the appellants. It was pleaded by the appellants that original plaintiff having died during the pendency of the civil suit the documents could not be brought on record as they were not aware of the orders. A prayer was duly made before the Appellate Court which was repeated before the High Court for remanding the matter with an opportunity to adduce the additional evidence. In the facts and circumstances of this case, we are of the opinion that the Appellate Court as also the High Court erred in law in not accepting the application for additional evidence and not remanding the matter back to the trial court. 12. In view of the above, the appeal is allowed. The judgments of the High Court in S.B. Civil Second Appeal No.305 of 2006 dated 03.01.2008, Additional District Judge No.1, Ajmer in Civil Appeal No.134 of 1998 dated 10.02.2006 and Additional Civil Judge(A.B.) & Judicial Magistrate First Class, No.2, Ajmer in Civil Suit No.34/95(29/95) dated 26.10.1998 are set aside. The application for additional evidence is allowed. The matter is remanded back to the trial court for a fresh decision on merits. Plaintiffs as well as the defendants shall be permitted to place on record any additional documents.” 23. The defendant Jamuna Devi has gifted the property situate in village Deothi to her brother vide gift deed No. 444, dated 12.06.1981. 24. The defendant has tried to make out a case that after the dispute between Amar Chand and Chandu, the matter was taken before the Rana Koti, however, no tangible evidence has been placed on record by the defendant to prove that the matter in fact was taken before the Rana of Koti, except the self serving statements of witnesses. The learned first appellate Court has given undue importance to nomination of the defendant in the - 14 - pension papers of Amar Chand. Merely giving the name of defendant in the pension papers of Amar Chand will not prove the paternity. The defendant has also testified in her statement that an application was moved before the competent authority for the correction of revenue entries. However, neither any application nor the orders passed by the competent authority has been placed on record. Consequently, the court is bound to take adverse inference against the defendant. It has come in the statement of DW-2 Gauri Dutt that defendant was residing in village Jote and the distance between village Dhanain and village Jote was 5-6 Kms.. It was necessary for the first appellate court to consider the entire case, both on facts and points of law. It is also the duty of the first appellate Court to consider the reasons given by the trial court against which the first appeal was filed. 25. Accordingly, in view of the observations and discussions made hereinabove, the judgment and decree dated 05.10.1998, passed by the learned District Judge, Shimla in Civil Appeal No. 62-S/13 of 1996 is reversed and the judgment and decree dated 09.09.1996 passed by the learned Sub-Judge, Ist Class (2), Shimla in Civil Case No. 285/1 of 1995 is restored. The pending application(s), if any, stands disposed of. (Rajiv Sharma) Judge August 19,