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Smt. Giano Devi Vs. Mangal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtHimachal Pradesh High Court
Decided On
Case NumberL.P.A. No. 34 of 1971
Judge
Reported inAIR1985HP82
ActsCode of Civil Procedure (CPC) , 1908 - Section 100
AppellantSmt. Giano Devi
RespondentMangal Singh and ors.
Appellant Advocate P.N. Nag, Adv.
Respondent Advocate Chhabil Dass, Adv.
DispositionAppeal dismissed
Cases ReferredTarlok Chand v. Thakar Dass
Excerpt:
- .....may be stated. the plaintiffs filed the suit for declaration that they were in possession of the suit property as its owners and, in the alternative, for possession of the suit property. the case of the plaintiffs was that the suit property originally belonged to one onkar singh. he died on march 20, 1933 and. on his death, the property was inherited by his widow smt. giano devi, the defendant, as a life tenant and mutation was attested in her favour on april 22, 1933. four or five years after the death of onkar singh, the defendant contracted a second marriage with one girdhari lal of tehsil, palhankot and lived with him in his house and gave birth to seven or eight children through him. due to this remarriage, the defendant forfeited her rights in the property of her husband and the.....
Judgment:

H.S. Thakur, J.

1. This Letters Patent Appeal is directed against the decree and judgment of the learned Single Judge (M. R. Ansari, J.), dated May 19, 1970. The appellant in the present appeal is the defendant in the suit whereas the respondents are the plaintiffs. The appellant shall hereinafter he referred to as the 'defendant' and the respondents as the 'plaintiffs'.

2. A few facts relevant to decide this appeal may be stated. The plaintiffs filed the suit for declaration that they were in possession of the suit property as its owners and, in the alternative, for possession of the suit property. The case of the plaintiffs was that the suit property originally belonged to one Onkar Singh. He died on March 20, 1933 and. on his death, the property was inherited by his widow Smt. Giano Devi, the defendant, as a life tenant and mutation was attested in her favour on April 22, 1933. Four or five years after the death of Onkar Singh, the defendant contracted a second marriage with one Girdhari Lal of Tehsil, Palhankot and lived with him in his house and gave birth to seven or eight children through him. Due to this remarriage, the defendant forfeited her rights in the property of her husband and the said property reverted to the plaintiffs, who are the reversioners of Onkar Singh deceased. The plaintiffs were themselves in continuous possession of the suit property ever since the defendant married Girdhari Lal and she left the village where the suit property was situated, It was contended by the plaintiffs that the defendant was interfering with their possession in the suit property. As such, they filed the suit against the defendant.

3. The defendant in her written statement denied that she had married Girdhari Lal orthat she had left the village of her deceased-husband. It was contended by her that she continued to live in the village and continued to he in possession of the suit property. In the alternative, it was asserted by her that even if she forfeited her rights in the suit property, due to her re-marriage, she continued to be in possession of the suit property for over twelve years and thereby perfected her rights in the property by adverse possession. It was contended by her that thereby she became the absolute owner of the suit property under the Hindu Succession Act, 1956.

4. The trial Court after framing the issues and considering the evidence led by the parties, decreed the suit of the plaintiffs. The trial Court observed that the defendant had in fact married Girdhari Lal and under the customary law governing the parties, she had forfeited her rights in the suit property even before the coming into force of the Hindu Succession Act. It was further held that the defendant had not proved that she was in actual possession of the suit property for over twelve years and that she had not perfected her title in the suit property by adverse possession.

5. The defendant aggrieved by the decree and judgment passed by the trial Court, preferred an appeal before the District Judge. The learned counsel for the defendant conceded before the learned District Judge that it had been amply proved that the defendant had re-married Girdhari La! and had given birth to the children from his loins and that she had forfeited her rights in the property of her deceased-husband, but she had become owner by adverse possession.

6. The only contention that was raised before the learned District Judge was that the defendant continued to be in possession of the suit property for more than twelve years prior to the filing of the suit and thereby perfected her title to the suit property by adverse possession. The learned District Judge upheld the contention and held that no doubt the defendant had forfeited her rights in the property somewhere in the year 1938-39 but she continued to be in possession of the suit property even thereafter and that she had been in possession of the suit property for more than twelve years on the date of thecoming into force of the Hindu Succession Act, 1956. On the basis of that conclusion, it was held that the defendant became an absolute owner of the suit property under the Hindu Succession Act. Consequently, the appeal was allowed and the suit of the plaintiffs was dismissed.

7. Aggrieved by the decree and judgment passed by the learned District Judge, the plaintiffs preferred an appeal to this Court and the learned Single Judge after considering the facts of the case and the impact of law, set aside the decree and judgment passed by the learned District Judge and upheld the judgment of the trial Court,

8. The defendant being dissatisfied with the judgment of the learned Single Judge has preferred this Letters Patent Appeal. The defendant having conceded that she had remarried after her husband's death and thereby forfeited her rights in the suit property, the only point which survives for consideration is whether the defendant had perfected her title in the suit property by adverse possession or not,

9. It is contended by Shri P. N. Nag, learned counsel for the appellant, that the judgment of the learned District Judge is based on facts and that the learned Single Judge reversed the said judgment without considering the settled principle of law that the findings of fact arrived at by the learned District Judge are binding and cannot be negatived. It has been emphasised by him that the learned Single Judge has not properly appraised the evidence on the record. It is contended that no doubt the defendant got married to Girdhari Lal but she continued to retain the possession of the property in suit partly herself and partly through the tenants including the plaintiffs who were paying rent to her. The learned Single Judge has made specific reference to the receipts issued by Khiali Ram, Lambardar of the area marked Exs.D. 1 and D. 2, in token of the payment of the land revenue, in respect of the land in dispute. A perusai of these receipts shows that they were issued on 3rd March, 1963 and 18th June, 1963 respectively though the suit was filed by the plaintiffs on 13/14-8-1963.

10. The contention of the learned counselfor the appellant-defendant that the learned Single Judge has erred in reversing the findings of fact arrived at by the learned District Judge, it may be pointed out that the same cannot be sustained as the learned Single Judge was competent to interfere with the findings of fact arrived at by the learned District Judge under certain circumstances. Their Lordships of the Supreme Court in Smt. Sonawati v. Sri Ram (AIR 1968 SC 466) observed as under (at p. 470):

'Counsel for the appellants contended that the finding recorded by the First Appellate Court that Pritam Singh was in 'cultivatory possession' in 1359 Fasli was binding upon the High Court in Second Appeal. For reasons already set out, possession of a person in wrongful occupation cannot be deemed cultivatory possession. Again the Appellate Judge in arriving at his conclusion ignored very important evidence on the record, and on that account also the conclusion was not binding on the High Court. Pritam Singh's name was recorded in the Khasra for the year 1359, Fasli as sub-tenant 'without settlement of rent.'

Pritam Singh did not offer to give evidence at any stage of the trial before the Assistant Collector, and it was not his case that he had entered into any contract of sub-tenancy with Tola Ram and Lajja Ram...................The High Court was, in ourjudgment, right in reaching the conclusion that Pritam Singh was not in 'cultivatory possession' of the land in 1359 Fasli.'

In a recent judgment, the Supreme Court in C. A. No. 463/82 (Surinder Singh v. Hardial Singh) decided on October 29,1984 (Reported in AIR 1985 SC 89), has held that ordinarily a finding reached by the High Court on assessment of the evidence, particularly when it is oral, would not be interfered with by this Court; but where the Court is satisfied that on account of a wrong approach to a matter, injustice has been done to one of the parties before it, it would not only be within the power of this Court but it would be its obligation to rectify the mistake and to do justice to the party.

11. Adverting to the contention that the defendant-appellant had perfected her title in the property in dispute by adverse possession,it may be observed that the same cannot he sustained. The learned Single Judge has referred to a decision in Tarlok Chand v. Thakar Dass (1968) 4 Delhi LT 170 wherein it is observed that a decision regarding a party's possession being adverse, being an inference from facts, its correctness as a legal conclusion to be drawn or not, is one of law and can be considered in second appeal. The learned counsel for the defendant-appellant has referred to revenue records Exs.D. 3 to D. 7 and D. S. Ex. D. 9 relates to the jamabandi for the year 1938-39. In those jamabandi entries the defendant is shown as the owner of the suit property and aiso as cultivating the suit property either by herself or through her tenants. There is no doubt that presumption of correctness is attached to such entries but this presumption is rebuttable. Even in the subsequent jamabandis, the defendant is entered as an owner but the possession of part of the property is recorded in her favour and partly the possession is with tenants. These entries do not, however, prove that the defendant had the title to the ownership of the suit property when by operation of law she had lost her title to the suit property after she married Girdhari Lal on her previous husband's death. In fact, the entries regarding the actual possession in favour of the defendant arc contradicted by the concurrent findings of all the Courts below that the defendant had left the village of her late husband when she married Girdhari Lal and she continued to live with him in his village. Even the learned District Judge contradicted the entries regarding the actual possession of the suit land by the defendant. In fact, it is established that the defendant was not in actual possession of the suit property but the plaintiffs were in possession thereof. P.Ws. 1 to 4, who are independent witnesses and who are also competent to depose about this fact, have in unequivocal terms stated that the defendant had left the village of her late husband and lived with Girdhari Lal to whom she got married and seven or eight children were also born to her. The learned Single Judge has correctly observed that the learned District Judge has not considered the testimony of these witnesses. A perusal of the statements of D.Ws., including the defendants, indicates that no specific claim by adverse possession has been made in their statements. Thedefendant in her statement has deposed that she did not marry Girdhari Lal but lived at the house of her late husband Onkar Singh continuously. It is further stated by her that she had been receiving batai from her tenants. In her cross-examination, she has stated that she gave birth to numerous children. DW Dhian Singh in his cross-examination has stated that the 'batai' was sometime received by the defendant herself and sometime by her mother-in-law. DW Saran Singh has stated that after the death of Onkar Singh, the defendant had been living at his house and that he paid 'batai' to the defendant. He even stated that the defendant did not get re-married to Girdhari Lal, The Courts below have, however, found that the defendant had re-married and she lived at the house of Girdhari Lal and gave birth to several children. Under the circumstances, the testimony of the D. Ws. cannot be considered reliable. On the contrary, the witnesses produced by the plaintiffs are responsible persons. P.W. 1 is Sarpanch of the area who has stated that the defendant came to the village of her deceased-husband only once on the death of her mother-in-law. So far as receipts Exs.D. 1 and D. 2 arc concerned, they appear to have been procured immediately before the filing of the suit. No such receipts were produced for any previous years. As such, it cannot be said that the defendant was in the exclusive possession of the suit property and that an inference can be justly drawn that the defendant was in adverse possession of the suit property for more than twelve years prior to the filing of the suit. For the foregoing reasons, it cannot be inferred or concluded that the defendant became the absolute owner of the suit property under the Hindu Succession Act.

12. In view of the aforesaid discussion, we are satisfied that there is no substance in this appeal and the same is dismissed. However, keeping in view the fact that the appellant is a lady, the parties arc left to bear their own costs in this appeal.


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