SA No 542 Of 1992
1 Rampriksha Singh Dead
2 Bhupendra Narayan Singh
3 Surendra Narayan Singh
4 Umesh
5 Hira Sai
6 Dijo
7 Lal Sai
8 Congress
9 Dhansai
10 Firoj
11 Chameli
...Petitioners
Verses
1 Homeshwarnath Singh Dead
2 Narayan Singh
3 Keyur Bhushan Singh
4 Deveshwarnath Singh
...Respondents
! Mr Ratan Pusty Advocate for the appellants
^ Mr AK Prasad Advocate for the respondents
CORAM: Honble Mr TP Sharma J
Dated: 12/12/2011
: Judgement
JUDGMENT
SECOND APPEAL UNDER SECTION 100 OF CIVIL PROCEDURE CODE 1908 Passed on 12122011
1. By this second appeal under Section 100 of the Civil
Procedure Code, 1908 (in short `the Code') appellants have
challenged the legality and propriety of the judgment and
decree dated 15/7/1992 passed by Second Additional Judge to
the Court of District Judge, Ambikapur, Surguja in Civil
Appeal No. 31-A/1988 decreed the suit for declaration and
permanent injunction filed on behalf of original plaintiff
Fulmania.
2. Present second appeal has been admitted on following substantial questions of law:-
1. "Whether by virtue of the dismissal of the earlier Civil Suit No. 13A/74 on 1-4-76 between the same parties in respect of the same property, the present is barred under Order 9 Rule 9 of the C.P.C.?
2. Whether the finding of the two Courts below that Fulmania's mother was daughter of Ledura is perverse being contrary to the admission of Fulmania?
3. Whether the order dated 3/8/79 bringing the legal representatives of the respondent is contrary to law?"
3. As per case of original plaintiff, Fulmania, maternal
granddaughter of Ledwa Cherwa was owner of suit property
i.e. house & Badi situated at Kedarpur, Ambikapur. Ledwa
was having only daughter Mandobai, he died in the year
1964. Mandobai was residing with her father, after death of
her mother since 1952. After death of Ledwa, she inherited
her father's property as a sole owner; she died in the year
1976. After her death, property was inherited by her
daughter, sole heir Fulmania, wife of Homeshwarnath Singh
predecessor in-title of respondents. Fulmania was also
residing in the same house with Homeshwarnath Singh and
after death of Fulmania and Homeshwarnath Singh, present
respondents are residing in aforesaid house. Appellants
without any right had tried to interfere in peaceful
possession of Fulmania then she filed civil suit for
declaration, title and permanent injunction. She has
specifically claimed in her plaint that they were members
of Scheduled Tribes but they have adopted most of Hindu Law
especially relating to succession although, they are
governed by their own customs which were their Personal
Law. She had further pleaded that marriage between Cherwa
caste and Kanwar caste was permissible in their custom.
4. By filing written statement, present appellants have denied allegations made in plaint and has specifically claimed that Mandobai was not daughter of Ledwa and Fulmania was also not maternal granddaughter of Ledwa. Ledwa was having two daughters who were married and were residing in their matrimonial house. After death of wife of Ledwa, nobody was in his house to take his care, his only sister Chawabai was residing with him. Fulmania has not inherited the property but after death of Ledwa, his sole sister Chawabai inherited the property who was in possession of property. Parties are governed by Hindu Law. Respondent Dhansai has filed separate written statement in which he has pleaded that after death of Ledwa, Chawabai has sold the property to defendant No. 1 Rampariksha Singh. During pendency of trial, Fulmania died and after recording evidence, Homeshwarnath Singh has been impleaded legal representative of Fulmania.
5. After providing an opportunity of hearing to the parties, learned Civil Judge Class-II, Ambikapur has decreed the suit which was challenged before the Lower Appellate Court and Lower Appellate Court has dismissed the appeal and affirmed the judgment and decree passed by trial Court.
6. Mr. Ratan Pusty, Advocate for the appellants and Mr.
A.K. Prasad, Advocate for the respondents are heard.
7. Judgment and decree of both the Courts below and
record of both the Courts below perused.
8. Learned counsel for the appellants submits that alleged plaintiff Fulmania has filed civil suit No. 13- A/1974 for declaration and permanent injunction against Chawabai, which was dismissed for want of prosecution. She has filed application for restoration and same was also dismissed therefore, subsequent civil suit on same cause of action is barred under Section 11 of the Code.
9. Learned counsel for the appellants further submits
that in order to succeed in suit, Fulmania was under
obligation to prove the fact that her mother Mandobai was
daughter of Ledwa, original title holder of suit property
in terms of Section 50 of the Indian Evidence Act but
Fulmania has not adduced any evidence in terms of Section
50 of the Indian Evidence Act to prove relationship. In
absence of such prove, Fulmania was not entitled to file
any suit or to protect any possession.
10. Learned counsel for the appellants also submits that
Homeshwarnath Singh was not legally wedded husband of
Fulmania. As per his evidence, during subsistence of his
first marriage with another woman, he married with Fulmania
which was not lawful marriage and was void in terms of
Section 5 of the Hindu Marriage Act therefore, implicating
as Homeshwarnath Singh as plaintiff i.e. legal
representative of deceased Fulmania vide order dated
3/8/1979 was contrary to law.
11. Learned counsel for the appellants also submits that
in the present case, relationship was under dispute and
respondents were under obligation to prove the relationship
expressed by conduct as to the existence of such
relationship but respondents have failed to adduce evidence
of such character only by deposing that Mandobai was
daughter of Ledwa was not sufficient to prove relationship
in terms of Section 50 of the Indian Evidence Act.
12. Learned counsel for the appellants placed reliance in
the matter of Dolgobinda Paricha v. Nimai Charan Mishra and
Others1 in which Supreme Court has held that in order to
prove relationship of person, parties are required to
adduce evidence of opinion expressed by conduct as to the
existence of such relationship is a relevant fact but the
person whose opinion expressed by conduct is relevant must
be member of family as a person who or otherwise has
special means of knowledge on the particular subject of
relationship.
13. Learned counsel for the appellants further placed reliance in the matter of Sitaram Nai v. Puranmal Sonar and Ohters2 in which High Court of Orissa has held that Section 50 does not make evidence of mere general reputation admissible as proof of relationship. It is the conduct or outward behaviour which must be proved in the manner laid down in Section 60 of the Evidence Act.
14. Learned counsel for the appellants also placed reliance in the matter of Balaram Das and Another v. Jayakrushna Das and Others3 in which High Court of Orissa has held that the act does not contain any express provision making evidence of general reputation admissible as proof or relationship. Opinion evidence about the existence of such relationship, however, is admissible provided such evidence satisfies the tests laid down by Section 50. It is only "opinion" as expressed by conduct which is made relevant. Section 50, however, does not state as to how the conduct or external behaviour which expressed the opinion of a person has to be proved.
15. Learned counsel for the appellants also placed reliance in the matter of Niranjan Singh (deceased by L.Rs.) v. Bant Singh s/o Bakshi Singh and Another4 in which High Court of Punjab & Haryana has held that witnesses giving evidence as to relationship in dispute, not residents of village where persons of disputed relationship resided but from different village, witnesses also not uttering single word regarding his conduct with regard to relationship in dispute, evidence thus, not in conformity with Section 50, self-serving statement of defendant, not material.
16. Learned counsel for the appellants also placed reliance in the matter of Sonam Tsering v. Kunzang Sherab5 in which High Court of Sikkim has held that when a Court is to judge the relationship of a person to another, it is only permitted to take into consideration the belief of a person provided it is expressed by conduct in case the witness has special means of knowledge. Section 50 requires that opinion expressed by conduct alone or in other words, conduct based on opinion is admissible in evidence.
17. Learned counsel for the appellants also placed reliance in the matter of The Kalyanmal Mills Ltd., Indore v. Volimohammed and Another6 in which High Court of Madhya Pradesh has held that the term `legal representative' means not only a person, who in law represents the estate of a deceased person, but also includes any person who intermeddles with the estate of the deceased, although such intermeddler may not in law represent the estate of a deceased person.
18. Learned counsel for the appellants also placed reliance in the matter of Raghuvir Kumar (minor) by next friend and Mother Smt. D.P. Kamala-kumari and Another v. Smt. Shanmughavadivu and Others7 in which High Court of Madras has held that long cohabitation for 15 years as husband and wife gives strong presumption in favour of valid marriage arises and existence of previous wife is not sufficient to rebut presumption when second marriage is not prohibited by law.
19. Learned counsel for the appellants also placed reliance in the matter of The Accommodation Controller, Madras v. G. Rukmani Ammal8 in which High Court of Madras has held that occupation may, no doubt, be physical but it does not follow that the owner should actually reside in a portion of the house all the 24 hours in a day, keeping the portion locked by owner is sufficient to prove factum of occupation.
20. On the other hand, learned counsel for the respondents
opposed the second appeal and submits that previous suit
filed on behalf of Fulmania has been dismissed on default
and same has not been restored therefore, pervious suit has
not been decided finally between the parties and in absence
of any final decision or finality of decision, present
subsequent suit will not operate resjudicata.
21. Learned counsel for the respondents further submits that in the present case, relationship of Fulmania & Ledwa was in question. Respondents have adduced sufficient evidence in terms of Section 50 of the Indian Evidence Act and successfully discharged their onus but appellants have failed to discharge their onus and in absence of discharging such onus on behalf of appellants, respondents have successfully proved relationship and discharged burden to prove such relationship.
22. Learned counsel for the respondents also submits that definitely, Homeshwarnath Singh was under obligation to prove that he was legally wedded husband of Fulmania, he has proved aforesaid facts even otherwise Fulmania, original plaintiff who has filed suit has specifically mentioned in her pleadings that she was wife of Homeshwarnath Singh.
23. In the present case, as per undisputed facts, Ledwa was original owner of the property; Ledwa was member of Scheduled Tribes. As per pleading of plaintiffs, they have adopted Hindu Law although, they are having their Personal Law and they are also governed by their customs. Ex. D1, D- 2 & D-3, alleged copy of order-sheets reveal that suit filed on behalf of Fulmania has been dismissed for want of prosecution and application for restoration has also been dismissed i.e. dispute between parties has not been finally adjudicated therefore, civil suit No. 13-A/1974 will not operate as resjudicata in subsequent suit, the present suit.
24. Relationship of Ledwa with Mandobai as father & daughter was under dispute. Both the parties have led evidence. PW1 Homeshwarnath Singh has deposed that Mandobai was daughter of Ledwa and Fulmania was daughter of Mandobai. As per his evidence, he was stranger to family but in Para-54, he has specifically deposed that Fulmania was granddaughter of Ledwa. PW2 Sukhlal, next-door neighbour of Ledwa has deposed that Fulmania was granddaughter of Ledwa, he has deposed about death of Fulmania, Ledwa & mother of Fulmania. PW3 Ayodhya R/o Balrampur has also deposed relationship, in Para-30 of his cross-examination, he has specifically admitted that he was knowing Ledwa since his childhood, he is also member of Cherwa caste.
25. DW1 Rampariksha Singh has not been deposed anything relating to relationship between Mandobai & Ledwa but he has examined DW2 Firozbai who has deposed that she is daughter of Chawabai who has claimed herself as sister of Ledwa. She has deposed that Ledwa was his maternal uncle and Fulmania was not related to her or her maternal uncle. As per Para-2 of her evidence, Ledwa was not having any son or daughter. She as defendant has filed written statement in which she has pleaded that Ledwa was having two daughters who went to their matrimonial house after their marriage. Pleading was confronted to this witness, in Para- 15 of her evidence; she has deposed that how it has been written she do not knew. As per aforesaid allegations, Ledwa was having one daughter Mandobai. As per written statement, Ledwa was having two daughters who were residing in their matrimonial house but respondents have not proved any facts to show that who are they, what are their names and where they were residing. DW2 Firozbai alleged relative of Ledwa and defendant/defendant's witness was under obligation to depose and express opinion relating to conduct but instead of deposition or expressing opinion about conduct, she has deposed contrary to her pleadings. This shows that defendant and their witnesses are tried to suppress and withhold evidence, which would have been in their knowledge as alleged relative. In these circumstances, only evidence of plaintiff's witnesses were remaining for consideration. Aforesaid plaintiffs witnesses had deposed that Mandobai was daughter of Ledwa.
26. PW2 Sukhlal was neighbour of Ledwa, he has deposed on the basis of his personal knowledge of facts that Ledwa was residing in his house, Fulmania was granddaughter of Ledwa and he has also seen mother of Fulmania. PW3 Ayodhya R/o Balrampur has deposed that he was knowing Ledwa, he is member of same caste and he has deposed that Ledwa was residing at Kedarpur, his daughter was Mandobai and Fulmania was daughter of Mandobai. He has further deposed that Mandobai and Fulmania were residing with Ledwa. Although, these witnesses have not deposed about conduct of persons and express their opinion on the basis of such conduct except the fact that Mandobai and Fulmania were residing in the house of Ledwa, which was not otherwise possible in absence of any relation.
27. In the present case, relation of Ledwa with Mandobai was under dispute, specific plea relating to such dispute has been taken by appellants in their pleading although, in order to prove the claim of plaintiffs, original plaintiff Fulmania was under obligation to prove aforesaid relationship. Plaintiffs have examined aforesaid witnesses to discharge burden, initially, after evidence of aforesaid witnesses that they were having personal knowledge about relation, the onus shifted upon appellants to disprove the aforesaid facts and to prove that Mandobai was not daughter of Ledwa even otherwise in order to claim title over property of Ledwa on the ground of succession by his alleged sister Chawabai, present appellants were under obligation to prove the fact that Mandobai was not daughter of Ledwa. Present appellants were having material witness i.e. defendant DW2 Firozbai, daughter of Chawabai alleged close relative of Ledwa who had deposed that Mandobai was not daughter of Ledwa. As per pleading of defendant, Ledwa was having two daughters but she has denied her pleadings relating to such facts, in Para-15 of her cross examination, evidence of this witness reveal that either she is not having any knowledge although, she must have such knowledge as relative or she is supressing the truth. Present appellants have not adduced any other evidence to discharge their burden and onus. Appellants/defendants have failed to discharge their burden and onus. In these circumstances, only evidence adduced on behalf of the respondents were remaining for consideration as held in cases of Sitaram Nai, Balaram Das and Another, Niranjan Singh (deceased by L.Rs.) & Sonam Tsering (Supra), party is required to adduce evidence of family member or person having special means of knowledge particularly subject of relationship, he is required to deposed that on what basis he has formed such opinion that they are relative witnesses examined on behalf of plaintiff has deposed that they were closed to family of Ledwa, Mandobai was daughter of Ledwa and Fulmania was daughter of Mandobai. They have also deposed that Mandobai was residing with Ledwa during his lifetime; Fulmania was also residing with Mandobai during lifetime of Mandobai. In absence of any relation or other circumstances, it was not possible for Mandobai and Fulmania to live in the house of Ledwa. In absence of any other evidence and the fact that present appellants have failed to discharge burden and prove of such relationship, aforesaid evidence is sufficient to discharge burden of plaintiffs/respondents and is sufficient to prove the fact that Mandobai was daughter of Ledwa and Fulmania was daughter of Mandobai.
28. As regard the relation between present respondent
Homeshwarnath Singh and Fulmania is concerned,
Homeshwarnath Singh himself has admitted that at the time
of his marriage with Fulmania, his first wife Sonkaliya was
alive (Para -16 of his evidence), plaintiffs have pleaded
that although, they are member of tribe but they have
adopted Hindu Law and customs but they have also pleaded
that they are having their own Personal Law and customs.
29. At the time of filing suit, Fulmania has specifically pleaded that she is wife of present respondent Homeshwarnath Singh. Homeshwarnath Singh himself has deposed that he is husband of Fulmania. DW2 Firozbai has also admitted in Para-19 of her evidence Fulmania was residing with Homeshwarnath Singh as wife. In absence of strict application of Hindu Marriage Act, prevailing custom and caste of parties cannot be ignored. Aforesaid evidence is sufficient to prove the fact that Homeshwarnath Singh is a husband of Fulmania and while bringing Homeshwarnath Singh on record as a legal representative of Fulmania, trial Court has not committed any illegality. Previous Civil Suit No. 13-A/1974 has not heard and decided finally therefore, that will not operate as resjudicata in the present suit. Finding of both the Courts below relating to relationship of Ledwa and Mandobai is not perverse. Trial Court has not committed any illegality in impleading respondent Homeshwarnath Singh as a legal representative of deceased Fulmania. Consequently, substantial questions of law No. 1, 2 & 3 are decided as negative. On the basis of finding on aforesaid substantial questions of law, I do not find any substance in the second appeal, same is deserves to be dismissed and is hereby dismissed.
30. Parties shall bear cost of appeal.
31. Advocate fees if certified as per schedule or to the extent of certificate which ever is less.
32. Decree be drawn up accordingly.
JUDGE