1. This Second Appeal is directed against judgment and decree dated 29th August, 2008 and 5th September, 2008 respectively passed by learned Civil Judge (Senior Division), 3rd Court at Howrah in Title Appeal No. 14 of 2008 thereby reversing the judgment and decree dated 13th December, 2007 passed by learned Civil Judge (Junior Division), 7th Court at Howrah in Title Suit No.38 of 2003.
2. The appellant/plaintiffs case, in short, is that the suit property was purchased property of one Pijush Kanti Laha. He died on 8.10.94 leaving behind his father Balai Chandra Laha as his sole legal heir. After his death Balai Chandra Laha became the owner of the property and continued to possess the same. Balai Chandra Laha died on 13.12.95 leaving behind the present plaintiffs as his legal heirs. Since then present plaintiffs are in possession of the suit property and are realizing rent from the tenant.
3. Balai Chandra Laha during his life time filed a suit being Title Suit No.7 of 1995 in the Court of learned Civil Judge (Junior Division), 2nd Court at Howrah against Bantra Cooperative Bank Ltd. and in that suit vide order No.84 dated 10.2.2003 the defendant was held to be wife of deceased Pijush Kanti Laha. Though said order dated 10.2.2003 is under challenge before competent Court of law, the defendant was trying to dispose of the suit property claiming ownership of the same and accordingly the suit was filed with a prayer for (a) a decree for permanent injunction thereby restraining the appellant from transferring / alienating / encumbering any portion of the suit property till her alleged legal status is being finally adjudicated (b) for a further decree for permanent injunction against the appellant thereby restraining her from disturbing the peaceful possession of the respondents in respect of the suit property.
4. The respondent /defendant contested the suit by filing written statement denying material allegations of the plaint and contending inter alia that the plaintiffs had no right, title and interest over the suit property. Pijush Kanti Laha since deceased married defendant on 23.12.93 under Special Marriage Act. Pijush Kanti Laha expired on 8.10.94 under suspicious circumstances. Pijush Kantis father Balai Chandra Laha tried to deny the right of ownership of the defendant in the suit property and filed a case under Section 144 Cr. P. C. being M.P. Case No.2732 of 94 before learned S.D.M (Executive Howrah) against this defendant. In said case learned Court observed that the defendant was the married wife of Pijush Kanti Laha vide order dated 8.8.95. When defendant wanted to join as a party in Title Suit No.7 of 1995 filed by Balai Chandra Laha against Bantra Cooperative Bank Ltd. there was stiff resistance from the side of Balai Chandra Laha but as per direction of the Honble High Court learned Trial Court decided the status of the defendant as married wife of Pijush Kanti Laha since deceased. The defendant being the owner of the property has every right to enjoy the same and she has no intention to dispose of the same. The suit was liable to be dismissed.
5. On the basis of the pleadings of the parties several issues were framed. After contested hearing learned Trial Court refrained to make any adjudication regarding the claim of defendant as married wife of Pijush Kanti Laha since deceased on the ground that in another Title Suit being No.7 of 1995 the status of defendant was adjudicated as wife of Pijush Kanti Laha since deceased vide order No.84 dated 10.02.2003 but said order is under challenge in superior Court and that the defendant already filed a specific suit being Title Suit No.180 of 1994 for declaring her status as a legally married wife of Pijush Kanti Laha. Accordingly, learned Trial Court refrained from making any observation regarding marital status of the defendant for avoiding conflict of decisions on this issue.
6 Learned Trial Court disallowed the prayer (a) namely a decree for permanent injunction thereby restraining the appellant from transferring / alienating/encumbering any portion of the suit property till her alleged legal status is being finally adjudicated. However, learned Trial Court granted injunction in terms of prayer (b) and decreed the suit.
7. Against said judgment and decree an appeal was preferred in the Lower Appellate Court by the defendant wherein Lower Appellate Court allowed the same by observing that the prayer (b) is the ancillary prayer in aid of the main prayer (a) and that when main prayer (a) cannot be granted, ancillary prayer can not also be granted. It was further observed by learned Lower Appellate Court that the plaintiffs miserably failed to show that there was any activity on the part of the defendant either for disposing the suit property or disturbing the possession of the plaintiffs therein. Accordingly, he allowed the appeal thereby reversing the judgment and decree of Trial Court.
8. At the time of admission of this Second Appeal no substantial question of law was formulated. However, at the time of hearing of argument ground Nos. I IV were identified as the substantial questions of law involved in this case.
I. For that there exists a substantial question of law as to whether the learned Judge in the Appellate Court below erred in law and facts by coming to a conclusion that the respondent had made out prima facie case to establish herself as owner of the suit property and thus failed to consider that the dispute with regard to the marital status of the respondent and her pretended claim of being the wife of Late Pijush Kanti Laha, has not yet been adjudicated by appropriate Court of law and as such exceeded jurisdiction vested to him in law.
II. For that there exists a substantial question of law as to whether the learned Judge in the Appellate Court below erred in law and facts by not considering the evidence tendered by the respondent as well as the evidence on record in its true perspective wherein she had described herself as Manjuri Ghosal, wife of Prahlad Chandra Ghosal as well as other evidences to that aspect and upon considering the same ought to have restrained the respondent from disturbing the appellants in peaceful possession of the suit property in which the respondent had no right, title and interest.
III. For that there exists a substantial question of law as to whether the learned Judge in the Appellate Court below erred in law and facts by not considering that the respondents had failed to prove better title and possession over the suit property whereas from the materials on record the appellants have been able to prove that they are in possession over the suit property which warrants an order of injunction in favour of the appellants.
IV. For that there exists a substantial question of law as to whether the learned Judge in the Appellate Court below had erroneously decided the status of the respondent by putting reliance solely upon a piece of evidence, being a purported marriage certificate, whose veracity though had not yet been decided whereas other evidences speaks contrary.
9. Mr. Probal Kumar Mukherjee, learned advocate for the appellants/plaintiffs has assailed the impugned judgment and decree of learned Lower Appellate Court on the following grounds:-
(1) Respondent/defendant Manjuri Ghosal was the legally married wife of Prahlad Chandra Ghosal. Though one certified copy of decree of divorce dated 21.04.1974 (Ext. A) was filed by the respondent/defendant but it was not acted upon.
(2) Respondent /defendant also filed one marriage certificate of 1993 showing alleged marriage with Pijush Kanti Laha but said marriage was never consummated.
(3) In spite of said alleged marriage of respondent/defendant with Pijush Kanti Laha in 1993 defendant described herself as Manjuri Ghosal being wife of Prahlad Chandra Ghosal in Court papers and other papers executed even after 1993.
(4) Though in Title Suit No.7 of 1995 originally filed by Balai Chandra Laha, father of Pijush Kanti Laha and present appellants, present respondent was adjudicated as wife of Pijush Kanti Laha vide order No.84 dated 10.02.2003 but said order is under challenge in a superior Court. Apart from that said order being an interlocutory order that too under challenge in higher forum, cannot decide the marital status of respondent/defendant as wife of Pijush Kanti Laha since deceased.
(5) Learned Lower Appellate Court gave undue weightage on the purported marriage certificate of 1993 in between present respondent/defendant and Pijush Kanti Laha though it was not a point in issue in this suit of injunction.
(6) When admittedly present plaintiffs are in possession of the suit property and respondent/defendant, whatever his status and / or claim towards suit property, is admittedly out of possession. Learned Lower Appellate Court should have confirmed the judgment and decree of permanent injunction against respondent/defendant restraining her from interfering with peaceful possession of the appellant plaintiffs in the suit property.
10. Mr. Sujash Ghosh Dastidar, learned advocate for the respondent /defendant, on the other hand, has controverted the aforesaid submissions of learned advocate for the appellants by submitting as follows;
(1) The certified copy of decree of divorce dated 21.4.74 (Ext. A) in between respondent Manjuri Ghosal and Prahlad Chandra Ghosal conclusively proves severance of marital tie in between respondent Manjuri Ghosal and her former husband Prahlad Chandra Ghosal.
(2) Under Section 13(2) of Special Marriage Act, 1954 the marriage certificate of 1993 in between respondent Manjuri Ghosal and Pijush Kanti Laha is a conclusive evidence of the fact that a marriage under Special Marriage Act, 1954 was solemnized between them and that all formalities were performed.
(3) There is no evidence that said certificate was not genuine or that said certificate was challenged in any Court of law.
(4) There is no law that after marriage the wife is bound to use the surname of her husband. Using of surname of respondents former husband in some papers or Court documents do not ipso facto wipe out either the divorce decree in between defendant and her former husband or the marriage held between respondent and Pijush Kanti Laha under Special Marriage Act.
(5) There was neither any pleading nor any evidence that the possession of the appellant / plaintiff was threatened by the respondent defendant at any point of time. In absence of said pleading or evidence no decree of injunction as prayed for vide prayer (b) can be allowed.
(6) Learned Trial Court took out some solitary statements of respondent/defendant from here and there to form an unfounded opinion that there was threat of dispossession from the side of the respondent/defendant towards appellant /plaintiff.
(7) No substantial question of law was involved in this appeal and that on that score alone this appeal should have been dismissed.
11. There is no denial that Pijush Kanti Laha was the original owner of the suit property and that after his death his father Balai Chandra Laha and on his death present plaintiffs being legal heirs of Balia Chandra Laha, and brothers and sisters of Pijush Kanti Laha are in possession of the suit property. It is also an admitted fact that respondent/defendant filed certified copy of decree of divorce dated 21.04.1974 (Ext. A) to show that there was divorce in between herself and her previous husband Prahlad Chandra Ghosal. She also filed and proved original marriage certificate of 1993 (Ext. B) to show, at least prima facie, marriage in between herself and Pijush Kanti Laha under Special Marriage Act, 1954. It is true that even after issuance of said marriage certificate in 1993 present respondent/defendant used the surname of her previous husband namely Prahlad Chandra Ghosal in many places including Court papers. But that by itself cannot wipe out the veracity of marriage certificate of 1993 showing marriage in between respondent /defendant and Pijush Kanti Laha under Special Marriage Act, 1954. A lady is not bound to use the surname of her husband in all places and she may use her maiden surname or even surname of her first husband even after divorce.
12. It appears from the judgment of learned Trial Court that he placed much reliance on some portions of evidence of present respondent/defendant and came to the conclusion that the possession of appellant plaintiffs was under threat. The relevant parts of said depositions of respondent/defendant which learned Trial Court gave special emphasis are quoted below:-
I am deprived of from my constitutional right to enjoy my property. Again in paragraph 22A of the affidavit D.W.1 admitted in spite of the said declaration by valid competent Courts, the plaintiffs are not considering the suit property to me. Even in cross-examination D.W.1 stated the following. The statement that I claim ownership and in spite of claiming ownership I cannot enjoy the suit property is correct. It is fact that at present properties are in possession of the plaintiffs. They are not delivering the possession of the properties in my favour.
13. Admittedly, for proper appreciation of evidence of a witness, the entire evidence is required to be read as a whole. Apart from that even if I examine those chosen out parts of statements of respondent/defendant, still it appears that there was no threatening whatsoever to the appellant/plaintiffs for dispossession. Learned Lower Appellate Court was justified in holding that there was no evidence whatsoever to show that present respondent/defendant was planning to sell out suit property and / or to dispossess the appellant /plaintiffs therefrom.
14. The scope of second appeal under Section 100 Code of Civil Procedure is very limited. The High Court has power to interfere only if substantial questions of law are involved. The High Court cannot substitute its own opinion for that of the first appellate court unless it finds that the conclusions drawn by the lower court were erroneous being (1) contrary to the mandatory provisions of applicable law; (2) contrary to the law as pronounced by the Apex Court; or (3) based upon inadmissible evidence or no evidence. [(1999) 3 Supreme Court Cases 722 Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others)].
15. It came out that there was neither any pleading nor any evidence that respondent/defendant threatened the appellant /plaintiffs for dispossession from suit property. There was also no evidence whatsoever that she was making any arrangement or attempt to sell out the suit property to a third party. It only came out from the relevant portions of her evidence, on which learned Trial Court gave much stress, that she felt harassed and deprived for not getting possession of the suit property belonging to her husband Pijush Kanti Laha since deceased.
16. In view of the materials on record I am of the opinion that the findings of learned Lower Appellate Court cannot be said to be erroneous for being (1) contrary to the mandatory provisions of applicable law; or (2) contrary to the law as pronounced by the Apex Court; or (3) based upon inadmissible evidence or no evidence.
17. If that be the position then there is no scope of interference by this Court in this second appeal. As a result, the appeal stand dismissed on contest but without cost.
18. The impugned judgment and decree stand affirmed. Send down L.C.R. along with a copy of this judgment to the Lower Court expeditiously.
19. Urgent xerox certified copy of this judgment be supplied to learned Counsels of the party / parties, if applied for.