Ram Asrey & Others vs Ram Jeet Dubey & Another
2021 Latest Caselaw 4356 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Court No. - 21
 
Case :- SECOND APPEAL No. - 138 of 1982
 
Appellant :- Ram Asrey & Others
 
Respondent :- Ram Jeet Dubey & Another
 
Counsel for Appellant :- H.S.Sahai,Mohd.Aslam Khan,Mohd.Shadab Khan,Preeti Saxena,Raj Kumar Maurya,Ved Prakash Verma
 
Counsel for Respondent :- Umesh Chandra,Ishwar Dutt Shukla,Pramod Kumar,Santosh Kumar Mehrotra
 
Hon'ble Jaspreet Singh,J.

This is the plaintiff's second appeal against the concurrent judgments and decree passed by Munsif, Akbarpur, District Faizabad in a Regular Suit No. 191 of 1976 whereby the suit of the plaintiff was dismissed which was carried forward before the Lower Appellate Court in Civil Appeal No. 288 of 1979 which was also dismissed by means of judgment and decree dated 16.01.1982 passed by the District Judge, Faizabad.

Being aggrieved against the aforeasaid judgment and decree, the instant second appeal was preferred which was admited by this Court by means of order dated 26.03.2014 on the following substantial questions of law as which are being reproduced hereinafter for ready reference:

(I) Whether the courts below after recording a finding that Smt. Subra remarried with Jhunnu which finding had also become final as a result of the orders passed under the consolidation operations, the courts below in not considering the fact that no custom having been established or proved by the defendant-respondents to the effect that notwithstanding the marriage the widow will continue rights over the property of her former husband, could hold the sale deed valid ?

(II) Whether the courts below in not considering the possessory title of the plaintiff and Dwarika, the predecessor-in-interest of the plaintiffs-appellants the findings recorded as such stand vitiated ?

(III) Whether the plea of adverse possession specifically having been taken a specific issue having been framed to that effect, the courts below in not considering the valuable plea and valuable rights accrued to the plaintiffs on account of adverse possession had any right and in the alternative the findings stand vitiated ?

(IV) Whether the specific plea and evidence having been led to the effect that immediately after the death of Nohar, Smt. Subra remarried and migranted to other village and started living with her subsequent husband and also no evidence of possession having been led or established with respect to Smt. Lalli, the Courts below in not accepting the position of the plaintiffs and Dwarika, predecessor-in-interest of the plaintiffs, the findings stand vitiated?

(V) Whether no issue having been framed to the effect that there was any family custom whereby the remarried widow will continue her rights over the property of her husband and non-framing of issues causing serious prejudice to the plaintiff's case, the findings recorded by the Courts below stand vitiated?

(VI) Whether the plaintiffs having been established their possessory title over the property in dispute and at any rate the plaintiffs having matured their rights on the basis of possession. The Courts below in not decreeing the suit of the plaintiffs and in not considering their rights on the basis of their posessory title could dismissed plaintiff's suit?

(VII) Whether the Courts below in not considering the fact that the house being ancestral and Dwarika father of the appellant no. 1 having been found to be nephew of Nohar at any rate the plaintiffs will not get right over the property in dispute at least to the extent of half share?

Factual Matrix:-

Before adumerating the substantial questions of law, brief facts giving rise to the instant second appeal are being noted first:

One Sri Dwarika instituted a suit for permanent injunction against Ramjeet, Abdul Kalam and Ram Sunag Singh which was registered as R.S. No. 191 of 1976. It was pleaded that the property in question was ancestral of which the plaintiff was in possession. It was further pleaded that the defendants on the basis of an alleged sale deed having got exected from one Smt. Sughari widow of Nohar and Smt. Lalli (alleged daugther of Sri Jhinnu and Sughari) were attempting to interfere in the peaceful possession of the plaintiff.

It was specifically pleaded that the property in question initially belonged to one Sri Nohar who was the cousin uncle (chachere chacha as pleaded in para 3 of the plaint). Upon death of Sri Nohar (about 28 years ago from the date of institution of the suit) he was survived by his two year old son and his widow Smt. Sughari. When the son was 5 years old, he also expired. Thereafter Smt. Sughari re-married as per custom (Ghar Baithwa Riti) and since then had been living and residing with Sri Jhinnu. It was also pleaded that Smt. Lalli was the daughter of Sri Jhinnu with his first wife and that Smt. Lalli was not the daughter of Sri Nohar. It was apprehended that the defendant who had got a sale deed executed from Smt. Sughari and Smt. Lalli had made an attempt to occupy the said property, hence the suit for permanent injunction.

It was also pleaded that no rights in the property in question accrued to either Smt. Sughari or Smt. Lalli and that the plaintiff is entitled to injunction restraining the defendants from interfering in the peaceful possession of the property in question. Subsequently by way of an amendment it was pleaded that after the death of Sri Nohar, the plaintiff has been in possession of the property in question and with the passage of time, the plaintiff had also perfected his rights by adverse possession.

The defendant no. 1 Sri Ramjeet filed a separate written statement whereas defendant nos. 2 and 3 jointly filed a separate written statement.

Primarily the defence as pleaded in the written statement was that the property belonged to Sri Nohar and upon his death the same devolved on his widow Smt. Sughari and his daughter Smt. Lalli. Both joined and sold the property to the defendants on the 01st of July, 1970 and the defendants were put in possession. However, the plaintiff in order to occupy the property forcibly created a door on the western wall in order to give an impression and show his possession. It was specifically denied that the plaintiff had any right. It was also denied by the defendants that Smt. Sughari had remarried with Sri Jhinnu. The defendant also filed an additional written statement wherein they also raised a plea that they had perfected their rights by adverse possession.

On the basis of the pleadings, the Trial Court framed 8 issues, however, the issues germane to the controversy are issue nos, 2, 4, 5, 6 and 8 which read as under:-.

Issue No. (2) Whether the plaintiff is the owner of the property in dispute; (4) whether the pedigree shown in para 9-A of the written statement of the defendant no. 1 is correct (5) whether Smt. Sughari re-married to Sri Jhinnu as alleged in paragraph 2 and 3 of the plaint; (6) Whether Smt. Lalli is not the daughter of Nohar as alleged in para 3 of the plaint and (8) whether the defendant had become the owner of the proeperty by adverse possession.

The parties led their respective evidence and the Trial Court considering issues nos. 2, 5 and 6 together held that the property in question did belong to Sri Nohar. On the issue regarding re-marriage of Smt. Sughari it held that the plaintiffs were unable to prove that Smt. Sughari had re-married with Sri Jhinu as per Ghar Baithwa Custom. However, it relied upon a document filed before the Consolidation Authorities i.e. a decision dated 23.06.1972 wherein it was indicated that Smt. Sughari had re-married and was shown as wife of Sri Jhinnu and on the aforesaid basis it held that Smt. Sughari had re-married with Sri Jhinnu but since the plaintiff did not plead or lead any evidence regarding the custom that upon re-marriage the widow i.e. Smt. Sughari would lose her right in the property inherited from her husband, therefore, it held that she continued to have rights in the property inherited by her husband and even though she re-married, the same would not affect her right or title over the property.

The Trial Court also relied upon an extract of register relating to births wherein there was an entry dated 18.01.1940 indicating that a daughter was born to Sri Nohar. The Trial Court relied upon the evidence of Sri Bukkal, husband of Smt. Lalli and concluded that Smt. Lalli was the daughter of Sri Nohar. It also recorded a finding that since the name of Smt. Sughari after the death of Sri Nohar continued to be recorded in the revenue record and even as per the plaintiff-witness no. 2 who stated that after the death of Sri Nohar, Smt. Sughari continued to reside in the premise, hence, it concluded that Smt. Sughari continued to be in possession and that the plaintiff had failed to prove that he had perfected his rights by adverse possession. In the aforesaid manner, the issues nos. 2, 5 and 6 were decided in the negative against the plaintiff/appellant.

The Trial Court while dealing with issue no. 4 held that the defendant failed to establish the geneology. It also decided issue no. 8 regarding the adverse possession which was framed on the pleadings of the defendant against the defendants and by means of the judgment and decree dated 17.05.1979 dismissed the suit.

The First Appellate Court upon hearing Civil Appeal No. 288 of 1979 concured with the findings recorded by the Trial Court. It also considered another aspect and expressed its opinion that since it was proved that Smt. Lalli was the daughter of Sri Nohar then even assuming if Smt. Sughari (widow of Nohar) re-married with Sri Jhinnu and may have lost the right in the property even then Smt. Lalli being the daughter was competent to convey the title and for the said reason the suit of the plaintiff could not succeed and with the aforesaid reasoning affirmed the findings of the Trial Court and dismissed the appeal.

From the perusal of the substantial questions of law upon which the instant second appeal has been admitted as noted above, it would indicate that questions of law at serial nos. (I) and (V) relate to the question of re-marriage of Smt. Sughari and her loosing right in the property upon re-marriage. The questions of law framed at serial no. (II) and (IV) relate to possessory title of the plaintiff in context with that of Smt. Lalli and similarly the question of law at serial no. 3 relates to adverse possession so also the question framed at serial no. (VI), whereas question of law at serial no. (VII) is in respect of the right of the plaintiff in the property in question.

Submissions of the learned counsel for the parties:-

Sri Mohd. Arif Khan, learned Senior Counsel assisted by Sri Mohd. Aslam Khan and Deepankar Kumar, learned counsel for the plaintiff/appellant while pressing the aforesaid second appeal on the questions of law as mentioned above has primarily urged that (i) the plaintiff by amending the plaint had specifically raised an issue of adverse possession. It was specifically pleaded in paragraph 4-A and its contents were denied by the defendant but no issue was framed. It is further urged that since the issue was not framed, the plaintiff was prevented from leading any evidence and the Trial Court while considering issues nos. 2, 5 and 9 has also recorded a finding that the plaintiff could not establish his right of adverse possession. It is urged that the Trial Court had committed a grave error in returning such a finding when there was no issue or evidence in respect thereto.

(ii) It is also urged that the Trial Court further committed an error in deciding the issue of adverse possession in context of the defendants while deciding issue no. 8 whereas apparently the sale deed of the defendants was dated 04.07.1970 and prior thereto the defendants did not claim possession, moreover, ths suit itself was preferred in the year 1970. For the said reason, the plea of adverse possession raised by the defendants was apparently bad yet the same has been decided but though the plaintiffs who had substantively raised the aforesaid plea by pleading that after the death of Sri Nohar in the year 1942, the plaintiffs came in possession and had perfected their right by adverse possession and this aspect of the matter not having been decided nor the issue having been framed has causes substantial injustice and for this reason alone the second appeal deserves to be allowed.

(iii) It is further submitted by the learned Senior Counsel for the appellant that both the Courts have failed to notice that the property in question belonged to Sri Nohar. It has been recorded by the two courts that Sri Nohar died in the year 1942. Upon his death, the property would be inherited by his widow Smt. Sughari, however, upon her re-marriage with Sri Jhinnu, she would loose her right and thus the property would devolve on the reversioners and since Nohar was the "Cousin Uncle" of the plaintiff, hence, the property devolved on him and he being in its possession was entitled to protect the same against all strangers including the defendants.

(iv) It is further submitted that once it was held by the Trial Court that Smt. Sughari had remarried with Sri Jhinu, the necessary consequence would be that she would lose her right in the property inherited from her earlier husband, the moment she re-married. There was no material available on record to establish that Smt. Lalli was the daughter of Nohar and that being so, the property would then devolve upon the reversioners i.e. the plaintiff and this aspect of the matter has not been considered resulting in sheer miscarriage of justice.

(v) It is also urged that the Trial Court has committed an error in relying upon the notion that where a custom is pleaded regarding a type of marriage, then it was also necessary to plead and prove that upon re-marriage the lady would lose her right in the property of her first husband. It is submitted that the finding of the Trial Court in this regard is inconsistent, inasmuchas, it agreed that Smt. Sughari had remarried but failed to take note of the fact that upon her re-marriage, she would lose the right in the property inherited from her earlier husband Sri Nohar which was by operation of law and not mere custom. It is also urged that there was no effort made by the defendant to prove the geneology and moreover issue no. 4 has been decided against the defendant which indicated that they could not establish the geneology, hence the defendant could not get the benefit and for the said reason, the suit of the plaintiff could not have been dismissed especially when the possession was admitted by the defendant, as in the pleadings of the defendants, it was stated that the plaintiff had forcibly opened a door on the western wall demarcating the property to show his possession.

(VI) Lastely, It was also urged that both the Courts also committed an error in treating Smt. Lalli as the daughter of Sri Nohar and affirmed the finding of the Trial Court. Thus, the second appeal deserves to be allowed.

In support of his submissions has relied upon the provisions of the Hindu Widows Remarriage Act, 1856 as well as the provisions of Hindu Womens Right to Property Act 1937. He has also relied upon the case of Lakshmi Ammal Vs. Thangavel Asari reported in AIR 1953 Madras 977, Mst. Bhuri Bai Vs. Mst. Champi Bai and Another reported in AIR 1968 Rajasthan 139, Velamuri Venkata Sivaprasad (Dead) By Lrs. Vs. Kothuri Venkateswarlu (Dead) by Lrs. And Others reported in 2000 (2) SCC 139, a decision of the Chhatisgarh High Court in the case of Sona Dei Vs. Mst. Tulsa (Dead) through Lrs. Reported in AIR Online 2019 CHH 1261 and on the case of Savitri And Others Vs. Surendra Mohan Mohana reported in 1987 Volume 5 LCD 137.

Per contra, Sri I.D. Shukla, learned counsel appearing for the respondent-defendant while refuting the submissions of the appellant has submitted (i) that once the defendant while delivering its defence had clearly indicated that they were claiming the property on the basis of a sale deed dated 04.07.1970 then it was not open for the plaintiff to have maintained the suit for simplicitor injunction and that it was necessary for the plaintiff to have sought a declaration of his title. In support of his submissions, he relied upon the decision of the Apex Court in the case of Anathulla Sudhakar Vs. P. Buchi Reddy reported in 2008 (4) SCC 594. (ii) Sri Shukla also urged that a person who pleads a custom must prove the same. It is submitted that though the plaintiff pleaded that Smt. Sughari had re-married by Ghar Baithwa Custom but he did not prove the same, coupled with the fact that not only the aforesaid custom of marriage was required to be proved but it was also incumbent on the plaintiff to prove that upon re-marriage by Ghar Baithwa Custom, the lady would lose her right in the property of her earlier husband. In support of his submission, he relies upon a decision of this Court in the case of Deena Nath Verma Vs. Gokaran reported in 2003 (94) RD 323 wherein it has been held that Ghar Baithwa Custom is not a legal marriage unless Satpati is performed. Relying upon it, it has been urged that since the re-marriage of Sughari was not legal, consequently, the Smt. Sughari was not divested of her right in the property inherited from her earlier husband especially when there was no custom pleaded and proved to the contrary.

(iii) It is also urged by Sri Shukla that the plaintiff had urged that Sri Nohar was his cousin uncle, then it was neceesary for the plaintiff to have proved the necessary geneology connecting the plaintiff to Sri Nohar and unless and until every link thereof is proved, it could not be said that the plaintiff would have inherited the property from Sri Nohar. In absence of any proper pleadings and proof regarding the relationship of the plaintiff with Nohar, the plaintiff at best would be a stranger to the property who would not have any right to file the said suit and for the aforesaid reason, the suit as well as the appeal were rightly dismissed by the two courts below. He relies upon the decision of the Apex Court in the case of State of Bihar Vs. Radha Krishnan Singh & Others reported in 1983 (3) SCC 118.

(iv) Sri Shukla further urged that since the findings was returned by the Trial Court relying upon an extract of the birth register which indicate that a daughter was born to Sri Nohar and even the husband of Smt. Lalli had deposed before the Court that Smt. Lalli was the daughter of Sri Nohar and Smt. Sughari. This being a pure finding of fact based on evidence cannot be assailed, hence, even though for the sake of argument, if the right of Smt. Sughari was not perfected but since the sale deed was executed by Smt. Lalli as well hence as far as the title of the defendants is concerned, it was complete and no interference is called for by this Court.

(v) It has further been urged that the plaintiff could not be permitted to raise the plea of adverse possession as it was a mutually destructive plea. The plaintiffs had pleaded ownership on the basis of inheritence and thereafter by amendment raised the plea of adverse possession. Since the plaintiff did not lay proper foundation in the pleadings nor lead any evidence nor made any attempt to get any issue framed hence at this second appellate stage the plaintiff cannot be permitted to plead foul.

(vi) Moreover, it is urged that the plaintiff had to contest the suit on its own strength and could not take the benefit of any weakness of the defence. As the plaintiff failed to establish the relationship with Sri Nohar nor could prove his right over the property nor his possession and even though the plaintiff was in the knowledge of the sale deed in favour of the defendant yet the same was never challenged, hence for all the reasons the appeal deserves to fail.

Evaluation of arguments advanced and analysis of law:-

The Court has considered the rival submissions and also perused the Lower Court records.

The controversy between the parties and involved in the instant second appeal can succinctly be stated as under:-

(i) The plaintiff claims title to the property of Sri Nohar being a reversioner heir and as per their stand, upon death of Sri Nohar his property devolved upon his widow Smt. Sughri who lost the same upon re-marriage with Sri Jhinu. Smt. Lalli was not the daughter of Nohar hence the plaintiff being reversioners would inherit the property.

(ii) The defendant state that upon death of Sri Nohar his estate was inherited by his widow Smt. Sughri and his daughter Smt. Lalli. Through Smt. Sughri did not re-marry but even assuming she re-married then at best the right of Smt. Sughri would be lost but then it would vest with Smt. Lalli who had executed the sale deed hence title of the defendant is complete.

In view of the aforesaid exposition and to adjudicate the instant second appeal and to answer the questions of law so framed, this Court is required to note and ascertain on the given facts of the case, the following:-

(a) As per the prevalent law, upon the death of Sri Nohar who would succeed to his estate.

(b) What would be the effect of remarriage of Smt. Sughri with Sri Jhinu and whether upon re-marriage Smt. Sughri would loose her right in the property of her earlier husband.

(c) If Smt. Sughri lost her right in the property of her earlier husband upon re-marriage then whether that right would vest with the daughter or with the reversioners.

The material on record as well as from the perusal of the statement, certain facts which are borne out is, that the plaintiff has claimed Nohar to be his cousin uncle. Apart from a bare statement in the pleadings, there is no geneology which has been set up nor it has been explained or indicated either in the plaint, additional pleadings or even in the evidence as to how the plaintiffs was related to Sri Nohar.

From the evidence it could be deciphered that Sri Nohar expired sometime in the year 1942. At that relevant time, the Hindu Law (based on Shastras) was applicable. The succession/inheritence for the present purposes would have to be considered as per the prevailing law in the year 1942.

As per Mulla on Hindu Law 21st Edition in Section 38, 3 classes of heirs are recognized by the Mitakshara namely (a) Gotrajas Sapindas (b) Samanodakas (c) Bandhus. It further provides that the first class succeeds the second and the second succeeds before the third.

Section 39 which is the first Class, the Gotrajas Sapindas provides for the sapinda relationship which extends to 7 degrees recknoned from and inclusive of the deceased.

In the aforesaid class a certain order has been devised which is reproduced hereinafter for clarity:-

38. The classes of heirs:- (1) There are three classes of heirs recognised by Mitakshara, namely;

(a) gotraza sapindas;

(b) Samanodakas; and

(c) bandhus.

(2) The first class succeeds before the second, the second succeds before the third.

39. The gotraza sapindas of a person, according to Mitakshara, are:

(i) His six male descendents in the male line; i.e. his son, son's son, etc. being S1 to S6 in Table IV. 1.

(ii) His six male ascendents in the male line, the wives of the first three of them, and probably also of the next three; i.e. his father, father's father, father's father's father, etc. being F1 to F6 in the table and their wives, that is M1 to M6, being the mother, father's mother, father's father's mother, etc.

(iii) The six male descendents in the collateral male line of each of his male ascendents; i.e. x1 to x6 in the line of F1, being his brother, brother's son, brother's son's son, etc.

x1 to x6 in the line of F2, being his paternal uncle, paternal uncle's son, etc;

x1 to x6 in the line of F3, being his parental grand-uncle, parental grand-uncle's son, etc;

x1 to x6 in the line of F4;

x1 to x6 in the line of F5; and

x1 to x6 in the line of F6.

(iv) His wife, daughter, and daughter's son.

The sapindas as 57 in number as shown below:-

S1 to S6								 6
 
F1 to F6 and their wives M1 to M6				12
 
x1 to x6 in each of the six lines from F1 to F6			36
 
wife, daughter and daughter's son.				3
 
								========
 

 

From the perusal of the aforeaid, it would indicate that apart from the 6 male descendents, 6 male ascendents in the male line, 6 male descendents in the collateral male line it also includes the wife, daughter and daughter's son. The order of succession amongst the Sapinda has been noted in Section 43.

At this stage, it will also be relevant to notice that the provisions of Hindu Women Right to Property Act, 1937 which was already in existence as the aforeasid Act had come into effect from 14.04.1937.

Section 3 of the said Act relating to devolution of property reads as under:-

"3. Devolution of property. -

(1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son:]

Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son:

Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.

(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner.

(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, (XXXIX) of 1925) applies."

Thus, it would be seen that the widow would also be entitled to the share in the property of her deceased husband.

At this stage, it will also be relevant to notice that with the advent of the Hindu Widows Remarriage Act 1856, the Act ameliorated the conditions of a Hindu widow and provided that no marriage contracted between Hindus shall be invalid and no such marriage shall be illegitimate by the reason of women having previously married or betrothed to another person who was dead at the time of such marriage or any custom and any interpretation of Hindu law to the contrary notwithstanding.

Section 2 of the aforesaid Act of 1856 provided that any right or interest which a widow gets in her husband's property, by way of maintenance or inheritence or by virtue of any testimentary disposition and without express permission to re-marry then only a limited interest in such property with no power to alienate the same would be available to such a widow and upon her remarriage she shall cease to have any right in the property of her deceased husband and the next heirs of her deceased husband or the persons entitled to her property on her death shall thereon succeeds to the same.

Section 2 of the Hindu Widows Re-marriage Act, 1856 reads as under:-

"2. "Rights of widow in deceased husband's property to cease on her re-marriage- All rights and interests which any widow may have in her deceased husband's property by way of maintenance, or by inheritence to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, with no power of alienating the same, shall upon her re-marriage cease and determine as if she had then died; and the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same."

From the conjoint reading of the aforesaid sections and the interplay of the aforesaid Acts what transpires is, that upon the death of Nohar in the year 1942, his rights would devolve on his widow as well as the daughter who being in the class of Gotra Sapinda would inherit and have a right in the property unless any heir higher in order is present. It is also clear from the provisions of the Hindu Womens Right to Property Act 1937 as well as Section 2 of Hindu Widows Remarriage Act, 1856 that in so far as the widow is concerned upon her re-marriage she would lose her right in the property of her deceased husband. It would also be relevant to notice that this contingency/liability which the widow incurs is recognised through a Statute and is not based purely on custom.

It is only when that the persons as enumerated in the preceeding class lose their right to inherit the property that the property then vests with the reversioners. It would also be seen that a reversionary heir although had contingent interest which is recognised by the courts of law as having a right to demand from the estate to be kept free from danger during its enjoyment by a widow or other limited heir, however, the rights can only be exercised once they are matured.

In the instant case, if the aforesaid principles are applied, it would be for the plaintiff to have clearly pleaded his right of having succeeded to the property as a reversionery heir as that he was higher in order of succession to the widow/daughter. In order to claim the aforesaid, it was necessary for the plaintiff to have specifically pleaded and explained how he was related/connected with Nohar. He also ought to have explained and proved that upon the death of the Nohar, who were the legal heirs and when the plaintiff succeeded at that time there was no nearer heir of the deceased than the plaintiff.

The Apex Court in the Case of State of Bihar and Others Vs. Radha Krisha Singh and Others reported in 1983 (3) SCC 118 had the occasion to consider the issue of succession, the geneology, its importance and how the same is to be proved. In paragraph 19, 24, 147 and 195, the Apex Court has held as under:-

"19. The principles governing such cases may be summarised thus:

"(1) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the courts before accepting or relying on the genealogies:

a. Source of the genealogy and its dependability.

b. Admissibility of the genealogy under the Evidence Act.

c. A proper use of the said genealogies in decisions or judgments on which reliance is placed.

d. Age of genealogies.

e. Litigations where such genealogies have been accepted or rejected.

(2) On the question of admissibility the following tests must be adopted:

a. The genealogies of the families concerned must fall within the four-corners of Section 32(5) or Section 13 of the Evidence Act.

b. They must not be hit by the doctrine of post litem motam.

c. The genealogies or the claims cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible.

d. Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved."

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24. It is well settled that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved. In the instant case, although the plaintiffs have produced oral and documentary evidence to show that Ramruch Singh and Debi Singh were brothers being the sons of Bansidhar Singh this position was not accepted by the trial court as also by M.M. Prasad, J., who dissented from the other two Judges constituting the Special Bench who had taken a contrary view and had held that the plaintiffs had fully proved the entire genealogy set-up in the plaint. This, therefore, makes our task easier because we need not discuss in detail the evidence and documents to show the connection of the plaintiffs up to the stage of Gajraj Singh though we may have to refer to the evidence for the purpose of deciding the main issue viz. whether or not Gajraj Singh was the son of Ramruch Singh and Ramruch Singh a brother of Debi Singh and son of Bansidhar Singh."

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146. We would now discuss the evidence both oral and documentary in the light of the principles laid down by the aforesaid decisions. By way of introduction, it may be noted that in the present case the onus lies squarely on the plaintiff Radha Krishna Singh to prove his case by showing that he was the next reversioner of the late Maharaja and that every link in the genealogical tree which he has set out in the plaint was proved. Only after he has discharged his burden by proving the aforesaid facts, could the defendants be called upon to rebut their case. On a careful scrutiny of the evidence it seems that what the plaintiff has done is to file any and every document, deposition, statement, declaration, etc., where there is any genealogy which connects him with either the Maharaja of Banaras or his gotias without making any attempt to prove the main link on which rests the entire fabric of his case. The result has been that the plaintiffs have landed themselves into a labyrinth of delusion and darkness from which it is difficult for them to come out and the case made out by them has been reduced to smithereens and smoulders and despite all their snaring and snarling they have miserably failed to prove the pivotal point viz. the link between Ramruch Singh, Gajraj Singh, Debi Singh and Bansidhar Singh."

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195. In order to appreciate the evidence of such witnesses, the following principles should be kept in mind :

"(1) The relationship or the connection however close it may be, which the witness bears to the persons whose pedigree is sought to be deposed by him.

(2) The nature and character of the special means of knowledge through which the witness has come to know about the pedigree.

(3) The interested nature of the witness concerned.

(4) The precaution which must be taken to rule out any false statement made by the witness post litem motam or one which is derived not by means of special knowledge but purely from his imagination, and

(5) The evidence of the witness must be substantially corroborated as far as time and memory admit."

This aspect of the matter has also been considered by a Division Bench of this Court in the case of Smt. Dharma Devi and Others Vs. Narayan Prasad Jaiswal reported in 1988, (6) LCD 459 wherein again referrring to the geneology as well as considering the issue of succession in paragraph 38 and 39, it has been held as under:-.

"38. It is an elementary principle of law that where a person claims relief on the basis of title, he has to establish the title. If he claims title to a property on the basis of inheritence, he has not only to show that he would inherit the property, but also that there was no other preferential heir alive who would exclude him. It will be useful to reproduce here a few sentences from Mogha's treatise on the "Law of Pleadings In India" 13th Edition : Page 17, as under :-

" It is common to plead that the plaintiff is the legal heir of the deceased. This is an inference of law. What the plaintiff should show is how he is connected with the deceased. He should also account for other relations who were nearer to the deceased than the plaintiff."

39. Non-existence of a nearer has to be proved by the plaintiff but what will be quantum of evidence required to prove this fact will depend upon the facts of each case."

Since the plaintiffs were claiming the property on the basis of inheritence as reversionery heir then the burden was on the plaintiff to prove that they are the only heirs entitled to the property with no nearer heir. This proposition has long been settled as way back as in the year 1927 when a Division Bench of this Court in the case of Javitri Vs. Gendan Singh and Others reported in AIR 1927 Alld. 727 held as under:-

"It is incumbent on a plaintiff seeking to succeed to property as a reversioner to establish affirmatively the particular relationship which he puts forward. He is bound to satisfy the Court that to the best of his knowledge, there are no nearer heirs and for this purposes , he can rely on the statement of witnesses called for defence".

Thus, in the aforesaid backdrop, from the record, it would indicate that as far as the plaintiff is concerned, apart from making a bald statememt in the pleadings that Nohar was his cousin uncle, there has been no effort either in the pleadings or evidence to establish the link of relationship of the plaintiff with Nohar, nor it has been pleaded or proved the degree of relationship and in what class or order the plaintiff claims or how he is higher in order of succession than the widow/daughter of Nohar or of being the nearest heir of Sri Nohar upon which his right of reversionery inheritence could be established. Rather there is no pleadings to establish the relationship of Nohar with the plaintiffs nor any evidence to said effect including on the point that at the time of plaintiff claiming right of inheritence who were the other heirs and that the plaintiffs was the nearer heir.

On the other hand, it is not disputed that Smt. Sughari was the widow who would have inherited the property. Though, as per the claim of the plaintiff Smt. Lalli was not the daughter of Sri Nohar whereas the defendants have specifically stated that Smt. Lalli was the daughter of Nohar.

The two Courts below have proceeded on the premise that Smt. Sughari had re-married with Jhinnu. In order to arrive at the aforesaid conclusion though the oral evidence as well as the evidence on the point of Ghar Baithwa Customary Marriage did not find favour with the Trial Court, however, it relied upon a decision rendered by the Consolidation Authorities wherein there was a mention regarding Smt. Sughari being the wife of Sri Jhinnu. Though, this finding was returned by the Trial Court, however, while the first appeal was filed by the plaintiff, the defendant whose specific case was that Smt. Sughari had not re-married did not file any cross appeal to assail the aforesaid finding. The aforesaid finding regarding re-marriage even though based on scanty evidence, yet the same having not been assailed, this Court is not inclined to permit the defendants to raise the aforesaid plea at this stage in exercise of powers under Section 100 C.P.C. to put the plaintiff in an even worse situation than he already is in.

Thus, it would evolve that upon the death of Nohar, his property would be inherited by his widow Smt. Sughari and Smt. Lalli who is said to be the daughter. Upon the re-marriage of Smt. Sughari with Jhinu in terms of Section 2 of the Hindu Widows Re-marriage Act, 1856 and The Hindu Women Rights to Property Act, 1937 she would lose her right in the property of her earlier husband.

Now what is required to be considered is, whether Smt. Lalli is the daughter of Nohar as pleaded by the defendants or is the daughter of Smt. Sughari or Jhinu. In this regard, apart from bald statement of the plaintiff, there is nothing on record to substantiate the version of the plaintiff. On the other hand, the defendants have filed an extract of the register of birth which indicates that a daughter was born to Sri Nohar in the year 1940 and the same has been considered by the courts below.

There is no evidence contrary to the aforeaid document. The relationship of Smt. Lalli and Nohar has further been corroborated by producing Sri Bukkal, the husband of Smt. Lalli who stated that Smt. Lalli was the daughter of Smt. Sughari and Nohar. This statement has been relied upon by both the two Courts below and have recorded their findings that Smt. Lalli is the daughter of Sri Nohar and Smt. Sughari. This being a finding of fact, this Court is not inclined to interfere or upset the same merely because another view may be possible.

Thus, the effect would be that even though Smt. Sughari lost her right of widow's estate upon re-marriage and thereupon the daughter Smt. Lalli being the nearer heir would succeed having right and title to the property to the widow's estate. Smt. Lalli thus being the owner and as she executed the sale deed in favour of the defendantsm thus right of Smt. Lalli to execute the sale deed is upheld and this view has also been taken by the Lower Appellate Court. This Court does not find any perversity requiring any interference from this Court.

Now adverting to the submissions as to whether the plaintiff had perfected their rights by adverse possession. In this regard, it has been urged that though the plea was taken by the plaintiff but since no issue was framed nor any evidence was led and it has prejudiced the plaintiff. Considering the material available on record, the plea of adverse possession though incorporated in the pleading by way of an amendment, however, at no point of time any effort was made by the plaintiff to make any application under Order 14 Rule 5 for getting an additional issue framed. Even though, the aforesaid ground was raised before the First Appellate Court, yet never a real attempt was made to establish any prejudice or that the matter required a re-look nor any attempt to lead evidence before the Lower Appellate Court.

At this stage, it has been vehemently urged that this was a substantive plea which ought to have been considered by the two Courts below. Apparently, in the first place, this Court is of the view that the plea of adverse possession as raised by the plaintiff along with his claim as the reversioner heir is a mutually destructive plea.

It has now been well settled that where a party pleads adverse possession then it has to be specifically pleaded. Evidence has to be properly led. In the instant case, the basic ingridients which are required to be pleaded for adverse possession have not been pleaded. It would be noticed that a bald plea stating that the plaintiff is in possession has perfected his rights by adverse possesion has been made. It has not been averred as to who was the actualy owner against whom the possession is being claimed to be hostile and adverse. It has also not been pleaded as to when the plaintiff came in possession so that he has matured his rights as provided in Article 65 of the Limitation Act, 1960.

Thus, what this Court finds is that the pleading of adverse possession in the first place could not be set up by the plaintiff to claim ownership over the property when he had already taken the plea of having inherited the same as a reversioner heir. This plea being mutually destructive was not available for the plaintiff. This Court is fortified in its view in light of the decision of the Apex Court in the case of Gurdwara Sahib Vs. Gram Panchayat, Village Sirthala and Another reported in 2014 (1) SCC 669.

Even otherwise the plaintiffs have failed to lay the proper foundation regarding the plea of adverse possession. It is not the mere length of the possession which is material rather what is necessary to be pleaded and prove is that the possession must be hostile expressly or implied in denial to the title of the true owner and such possession must be adequate in continuity, publicly to show that it is adverse to the true owner. The open and hostile possession must be to the notice of the actual owner and the plaintiff is bound to prove that his possession has been for more than 12 years.

Another aspect needs to be noticed. The plaintiff did not lay adequate pleadings regarding the plea of adverse possession. It was incumbent on the plaintiff to have specifically pleaded (a) on what date he came in possession; (b) what was the nature of his possession (c) whether the factum of possession was not known to the other party; (d) for how lay the possession continued; (e) and that his possession was open and undisputed.

This Court in the case of Abdul Salam Vs. Imrana Siddiqui reported in 2019 SCC Online Alld 3924 had the occasion to consider the requisites and the law regarding adverse possession and had noticed the decision of the Apex Court in the case of State of Haryana Vs. Mukesh Kumar and Others reported in 2011 (10) SCC 404 and also of Hemaji Waghaji Jat vs Bhikhabhai Khengarbhai Harijan reported in 2009 (16) SCC 577 and the relevant paragraph of the said report reads as under:-

"The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."

In the aforesaid case, it has not been indicated either in the pleadings or in the evidence regarding the essential ingredients of adverse possession nor prejudice has been shown as to how and why the plaintiff could not lead the evidence, hence, merely to say that an issue has not been framed and the plaintiff could not lead the evidence, per se this submission does not impress the Court.

It is one thing to say that the issue was not framed and it is another that in absence of any issue, the evidence could not be led. The plaintiff has not indicated any circumstance that he could not lead the evidence merely because the issue was not framed. There was really no effort to lead the evidence on the aforesaid point nor any attempt was made before the Lower Appellate Court.

In view of the aforesaid, this Court does not find merit in the plea that for non-framing of the issues on the question of adverse possession though it was raised by the plaintiff in its pleadings any prejudice has been caused nor for the reasons already indicated above, this Court is not inclined to remand the matter for the aforesaid purpose and this Court is also fortified in its view in light of the decision of the Apex Court in the case of M.S. Jagadambal Vs. Southern Indian Education Trust and Others reported in 1988 Suppl. SCC 144 (para 12 of the said report reads as under):-

"12. We are not persuaded by the alternate contention urged by learned Counsel for the respondents. The trial court did not frame an issue as to the defendants perfecting title to the suit property by adverse possession. The defendants did not produce any evidence in support of the plea of adverse possession. It is not the case of the defendants that they were misled in their approach to the case. It is also not their case that they were denied opportunity to put forward their evidence. It is, therefore, not proper for us at this stage to remand the case to enable the defendants to make good their lapse."

Thus, in view of the aforesaid discussions, this Court finds that there is no error committed by the two Courts and accordingly, the instant second appeal fails and the judgment and decree dated 17.05.1975 passed in R.S. No. 191 of 1970 and the Judgment and decree of the Lower Appellate Court dated 16.11.1982 in Civil Appeal No. 288 of 1979 are affirmed.

The second appeal stands dismissed, there shall be no order as to costs.

The office is directed to remit the record of the Trial Court to the Court concerned within a period of two weeks.

[Jaspreet Singh, J.]

Order Date: 23.03.2021

Asheesh