Udey Ram vs Unknown
2021 Latest Caselaw 3972 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                     ON THE 17TH DAY OF AUGUST, 2021

                                      BEFORE




                                                                       .
                 HON'BLE MR. JUSTICE SANDEEP SHARMA





                REGULAR SECOND APPEAL NO. 209 OF 2008





    Between:-

    UDEY RAM
    S/O SHRI KARMU,
    R/O PANJAIN, ILLAQUA THUJRI,





    SUB TEHSIL BALI CHOWKI,, DISTT. MANDI,
    H.P.
                                                                   ... APPELLANT
    (BY MR. G.R. PALSRA, ADVOCATE)

    AND

    1.    SMT. MEENA KUMARI
          D/O SHRI CHET RAM

    2.    LACHHMI NAND,



          MINOR SON OF MEENA KUMAR
          THROUGH HIS NATURAL GUARDIAN
          SMT. MEENA KUMARI,




          R/O VILLAGE SANSOT, ILLAQUA SANOR,
          SUB TEHSIL AUT, DISTT. MANDI,
          H.P.





                                                               .. RESPONDENTS

    (MR. JANESH GUPTA, ADVOCATE FOR R-1 & R-2)





     This appeal coming on for orders this day, the court delivered the following:


                                JUDGMENT

By way of instant Regular Second Appeal filed under S.100

CPC, challenge has been laid to judgment and decree dated 18.1.2008

passed by learned Additional District Judge, Mandi, HP in Civil Appeal

No. 60 of 2005, affirming judgment and decree dated 30.6.2005, passed

by Civil Judge (Junior Division), Chachiot at Gohar in Civil Suit No. 316

.

of 1997, whereby suit for declaration and injunction having been filed by

the appellant-plaintiff (hereinafter, 'plaintiff') came to be dismissed.

2. Precisely the facts of the case as emerge from the record,

are that the plaintiff filed a suit for declaration and injunction against the

respondents/defendants (hereinafter,'defendant') seeking therein

declaration therein that defendants Nos. 1 and 2 are not his legally

wedded wife and son. Plaintiff pleaded before learned court below that

Smt. Subhadra Devi was his legally wedded wife and out of their

wedlock two children were born. He further averred before learned court

below that defendant No.1 started claiming herself to be legally wedded

wife of plaintiff with a view to grab his property. He also averred that

since defendant No.1 got recorded defendant No.2 as his son in the

Panchayat record, in connivance with Panchayat officials and as such,

a decree of declaration that defendant Nos.1 and 2 are not his legally

wedded wife and son, respectively be granted, and entries in Panchayat

record, showing defendant No.2 to be his son, be declared null and void

and not binding upon him, with consequential relief of permanent

prohibitory injunction, restraining defendant No.1 from claiming herself

to be his legally wedded wife.

3. Aforesaid claim of the plaintiff, came to be resisted by

defendants by way of written statement, wherein they claimed that the

plaintiff had divorced Subhadra Devi alias Kheoramni in 1991 and

.

thereafter, plaintiff solemnized marriage with defendant No.1, and

defendant No.2 was born on 30.7.1994 in the hospital at Mandi, out of

their wedlock. Defendants claimed that the plaintiff with a view to

deprive defendants of their right in his property, purposely did not get

defendants recorded as his wife and son in Panchayat record whereas,

defendant No. 1 had been residing with the plaintiff since the date of her

marriage. r

4. On the basis of pleadings of the parties, learned trial Court

framed following issues on 29.11.204, for determination:

"1) Whether the defendant No. 1 is not legally wedded wife of the plaintiff and the defendant No.2 is not born out of

the wedlock of the plaintiff and defendant no. 1 as alleged? OPP

2) Whether the Panchayat entry showing the defendant no.2

as son of the plaintiff are forged, illegal and void as

alleged? OPP

3) Whether the present suit is not maintainable? OPD

4) Whether the plaintiff has no enforceable cause of action

to file the present suit? OPD

5) Relief?"

5. Learned trial Court on the basis of evidence led on record

by respective parties, dismissed the suit having been filed by the

plaintiff vide judgment and decree dated 30.6.2005. Being aggrieved

and dissatisfied with aforesaid judgment and decree passed by learned

trial Court, plaintiff preferred an appeal in the court of learned Additional

District Judge, Mandi, but the same was also dismissed vide judgment

.

and decree dated 18.1.2008. In the aforesaid background, appellant

has approached this court in the instant proceedings, praying therein to

decree his suit after setting aside the judgments and decrees passed by

both the learned Courts below.

6. Instant appeal came to be admitted by this court on

11.12.2008, on the following substantial questions of law:

"1. Whether both the courts below have misread, misinterpret, misconstrued the oral as well as

documentary evidence of the parties especially statement

of PW1, PW6, document Ex.PW4/A and Ex PW4/B, which has materially prejudiced the case of the appellant?

2. Whether both the courts below have ignored the best evidence led by the appellant as PW6 Khem Raj has clearly admitted that respondent No.1 is his legally

wedded wife and respondent No.2 is his legitimate son which evidence has proved the case of the appellant but

the findings of both the courts below are contrary to the record which has materially prejudiced the case of the

appellant as a whole?

3. Whether the statement of DW1 Meena Kumar amounts admission as per Under Section 17 of Indian Evidence Act as she has admitted that she resided at her parental house since 1992 to 1996, which statement finds corroboration from the statement of PW6 Khem Raj?

4. Whether statement of DW1 Meena Kumari do not inspire confidence which has been wrongly relied upon by the

courts below because she has denied the factum of giving birth to Mukesh and Rakesh as her sons and document ex PW4/A falsify her statement in this regard?

7. I have heard learned counsel for the parties and perused

.

the material available on record.

8. Since all the substantial questions of law are inter linked

and their answer can be explored by looking into entire evidence, same

are taken up together for determination

9. Having heard learned counsel for the parties and perused

evidence, be it ocular or documentary, led on record by parties, this

court finds it difficult to agree with Mr. G.R. Palsra, Learned Counsel

appearing for the appellant that the learned courts below have misread

the evidence as a consequence of which findings contrary to record

have come on record, rather, this court having scanned the entire

evidence finds that both the learned Courts below have appreciated the

evidence in its right perspective and as such, no interference is called

for.

10. In nutshell, claim of the plaintiff in the suit is that

defendants Nos.1 and 2 are not his legally wedded wife and legitimate

son but the evidence available on record clearly proves that the plaintiff

after his divorce with his earlier wife Subhadra alias Kheormani Devi,

solemnized marriage with defendant No.1 in the year 1992 and since

then, plaintiff and defendant No.1 had been living together as husband

and wife. Similarly there is ample evidence available on record,

suggestive of the fact that defendant No.2, Lachhmi Nand was born out

of wedlock of plaintiff and defendant No.1, on 30.7.1994.

11. PW-1 Udey Ram deposed that Smt. Kheormani alias

.

Subhadra is his legally wedded wife and out of their wedlock, daughter

Jaya Devi and son Dine Ram were born. He denied the factum with

regard to his marriage with defendant No.1 Meera Kumari but in his

cross-examination, he admitted that defendant No.1 started living with

him after 1992. He also admitted that he had divorced Subhadra in the

year 1991.

12. PW-2 Subhadra Devi though claimed that she is legally

wedded wife of the plaintiff and out of their wedlock, one son and one

daughter were born but she also admitted in her cross-examination that

she had divorced plaintiff in the year 1991.

13. PW-4 Puran Chand, Secretary Gram Panchayat Banara,

Tehsil Karsog, while proving copy of Parivar register, Ext. PW-4/A,

admitted that Meena Kumari stands recorded as wife of Khem Raj. This

witness also proved birth certificate of Mukesh Ext. PW-4/B wherein

Mukesh is recorded as son of Meena Kumari and Khem Raj.

14. PW-5 Labh Singh deposed that Subhadra was married to

Udey Ram in 1981-82 but later on some differences cropped up

between them in 1991. This witness also deposed that he never saw

defendant No.1 residing in the house of the plaintiff and no child was

born to defendant Meena Kumari from the loins of the plaintiff.

15. PW-6 Khem Raj deposed that defendant No.1 was married

to him in the year 1996 and two sons, Rakesh and Mukesh were born

from their wedlock. This witness also deposed that he was having

.

relation with defendant No.1 since 1992 and defendant No.2 Lachhmi

Nand was born in 1994 due to his relationship with Meena Kumari.

16. Defendant while deposing as DW-1 stated that she was

married to the plaintiff 12-13 years back and Lachhmi Nand, defendant

No.2 was born on 30.7.1994 at Zonal Hospital, Mandi. She claimed that

the plaintiff got entered the name of Lachhmi nand in the Panchayat

record and Subhadra Devi was divorced by the plaintiff and after said

divorce, said Subhadra Devi married to Hira Lal.

17. DW-3, Devinder Kumar Kapoor Election Kanungo proved

the voter list of family of Udey Ram and the same was marked as 'X',

perusal whereof reveals that defendant No.1 was entered as legally

wedded wife of the plaintiff.

18. DW-4, Manoj Kumar also proved copy of Parivar register,

Ext. DW-4/A, wherein admittedly defendants Nos.1 and 2 have been

shown as legally wedded wife and son of the plaintiff.

19. DW-5 Gauri Shankar proved Exhibit DW-5/A i.e. certificate

issued by Registrar, Births and Deaths, Mandi, wherein defendant No.2

has been shown to be son of the plaintiff.

20. DW-6 Telu Devi, mother of Meena Kumari deposed that

defendant No.1 was married to Udey Ram 13 years back and defendant

No.2 was born out of their wedlock.

.

21. Cross-examination conducted on aforesaid witnesses of

defendants, if read in its entirety, nowhere suggests that the plaintiff

was bale to extract from these witnesses, anything contrary to what they

stated in their examination-in-chief. Though the evidence clearly reveals

that prior to marriage of defendant No.1 with the plaintiff, Smt.

Kheormani alias Subhadra was legally wedded wife of Udey Ram and

two children were born from their wedlock, but evidence further clearly

reveals that after divorce of plaintiff with Subhadra Devi alias

Kheormani, marriage inter se plaintiff and defendant No.1 was

solemnized and out of their wedlock one son i.e. defendant No.2 was

born.

22. Admission made by the plaintiff in his cross-examination

that Meena Kumari, defendant No.1 started living with him after 1992,

itself amounts to admission of marriage inter se him and the defendant

No.1, as such, his claim made in plaint that he has no relation with

defendant No.1 and she never lived within him, deserves outright

rejection being false and contrary to his deposition made before the

court of law on oath.

23. Documentary evidene, Ext. DW-5/A i.e. certificate issued

by Registrar, Births and Deaths, Municipal Council, Mandi, clearly

reveals that defendant No.2 was born on 30.7.1994 and plantiff is his

father. Similarly, copy of voter list, mark X, reflects defendant No.1 to be

legally wedded wife of plaintiff. Similarly in Parivar register maintained

.

by Gram Panchayat Panjain, Exhibit P-2, defendant No.2 Lachhmi

Nand has been shown to be son of the plaintiff Udey Ram. If the

evidence led on record by defendant is read in its entirety, it clearly

proves that defendant No.1 is legally wedded wife of plaintiff and

defendant No. 2 is the legitimate son of the plaintiff, as such, learned

courts below, after having carefully scanned entire evidence rightly

dismissed the suit of the plaintiff. Since judgments and decrees passed

by learned courts below are based on proper appreciation of evidence,

this court finds no merit in the claim of the counsel representing the

plaintiff that learned courts below have misread and misinterpreted the

evidence, rather, this court is of the definite view that both learned

courts below have appreciated the evidence in its right perspective, as

such, no interference is called for.

24. Substantial questions of law are answered accordingly.

25. Now, it would be appropriate to deal with the specific

objection raised by the learned counsel representing the defendants

with regard to maintainability and jurisdiction of this Court, while

examining concurrent findings of law and facts returned by both the

Courts below. Learned counsel for the defendants, invited the attention

of this Court to the judgment passed by Hon'ble Apex Court in

Laxmidevamma and Others vs. Ranganath and Others, (2015)4

SCC 264, wherein the Hon'ble Supreme Court has held:

"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that

.

the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and

there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule

property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In

exercise of jurisdiction under Section 100 CPC, concurrent

findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that

the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." (p.269)

26. Perusal of the judgment, referred hereinabove, suggests

that in exercise of jurisdiction under Section 100 CPC, concurrent

findings of fact cannot be upset by the High Court unless the findings so

recorded are shown to be perverse. There can be no quarrel (dispute)

with regard to aforesaid observation made by the Apex Court and true it

is that in normal circumstances High Court, while exercising powers

under Section 100 CPC, is restrained from re-appreciating the evidence

available on record.

27. The Hon'ble Apex Court in Parminder Singh versus

.

Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017,

has held as under:

"14) In our considered opinion, the findings recorded by the

three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore,

such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal."

28. It is quite apparent from aforesaid exposition of law that

concurrent findings of facts and law recorded by both the learned

Courts below can not be interfered with unless same are found to be

perverse to the extent that no judicial person could ever record such

findings. In the case at hand, as has been discussed in detail, there is

no perversity as such in the impugned judgments and decrees passed

by learned Courts below, rather same are based upon correct

appreciation of evidence as such, deserve to be upheld.

29. Consequently, in view of detailed discussion made herein

above, I find no merit in the appeal at hand, which is accordingly

dismissed. Judgments and decrees passed by both the learned Courts

below are upheld.

30. Pending applications, if any, are disposed of. Interim

directions, if any, stand vacated.

(Sandeep Sharma),

.

                                                        Judge





    August 17, 2021
       (vikrant)





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