Smt. Sakunbai vs Smt. Rukmanibai
2023 Latest Caselaw 6529 MP

                          1                     S.A.No.1570/2018




IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 24th OF APRIL, 2023
              SECOND APPEAL No. 1570 of 2018

BETWEEN:-

SMT. SAKUNBAI W/O LATE SHANKARLAL
YADAV, AGED ABOUT 57 YEARS, VILLAGE
MANWADA    TEHSIL   BABAI,   DISTRICT
HOSHANGABAD (MADHYA PRADESH)
                                               .....APPELLANT

(BY SHRI SANJAY SHARMA - ADVOCATE)

AND


1.    SMT. RUKMANIBAI W/O RAMSNEHI YADAV
      D/O MANGAL PRASAD, AGED ABOUT 49
      YEARS,   GWALTOLI     HOSHANGABAD
      TEHSIL AND DISTRICT HOSHANGABAD
      (MADHYA PRADESH)

2.    ASHOK KUMAR S/O SUKHRAM, AGED
      ABOUT 36 YEARS, VILLAGE MANWADA
      TEH.    BABAI     AND    DISTRICT
      HOSHANGABAD (MADHYA PRADESH)

3.    GUDDU @ KAMLESH S/O SUKHRAM, AGED
      ABOUT 31 YEARS, VILLAGE MANWADA
      TEH.    BABAI     AND    DISTRICT
      HOSHANGABAD (MADHYA PRADESH)

4.    ASHABAI D/O SUKHRAM, AGED ABOUT 30
      YEARS, VILLAGE MANWADA TEH. BABAI
      AND DISTRICT HOSHANGABAD (MADHYA
                                 2                           S.A.No.1570/2018



      PRADESH)

5.    MEERABAI   W/O   RAMCHARAN     D/O
      FATEHCHAND YADAV VILLAGE AARI TEH.
      BABAI AND DISTRICT HOSHANGABAD
      (MADHYA PRADESH)

6.    STATE OF M.P. THROUGH COLLECTOR
      DISTT.   HOSHANGABAD    (MADHYA
      PRADESH)
                                                        .....RESPONDENTS

(BY MS. SHANTI TIWARI - PANEL LAWYER FOR THE RESPONDENT NO.6/STATE)

      This appeal coming on for admission this day, the court passed
the following:
                              JUDGEMENT

Heard on the question of admission.

This Second Appeal under Section 100 of CPC against the judgment and decree dated 21.03.2018 passed District Judge, Hoshangabad in Civil Appeal No.9-A/2015 and Civil Appeal No.5- A/2015 arising out of judgment and decree dated 15.04.2015 passed by IInd Civil Judge Class-I, Hoshangabad, District Hoshangabad in Civil Suit No.14-A/2014.

2. The facts necessary for disposal of the present appeal in short are that, the respondent/plaintiff filed a suit for declaration of title and permanent injunction as well as for possession. It was the case of the respondents that Shankar Lal was the father of the plaintiff who expired on 12.12.2008. Her mother Batesiya Bai is still alive but she has performed second marriage and is residing with her second husband namely Mangal Yadav at village Rohna. It was claimed that

the plaintiff is the only surviving legal heir of Shankar Lal. Shankar Lal had agricultural land bearing Khasra No.93/1 area 0.77 acre, Khasra No. 344/2 area 0.65 acre situated at village Manvada Tahsil Babai, District Hoshangabad. Khasra No. 88 area 0.25 and Khasra No.89 area 0.60 acres situated in village Manvada are jointly recorded in the name of her father Shankar Lal and uncle Shukram, Visnu and her aunt Marro wd/o Fatehcand. It was claimed that all the co-owners have expired and the plaintiff is the sole surviving heir of Shankar Lal whereas defendants No.2, 3 and 4 are the legal representatives of Sukhram. Vishnu and his wife have expired issueless and Marro is the wd/o Fatehchand, who is the sole surviving heir of Fatehchand. The father of the plaintiff expired at the age of 65 years and at the time of his death, he was medically sick and was being looked after by the plaintiff and the agricultural land was being looked after by the plaintiff and her husband. It was claimed that the defendants No. 1, 2 and 3 are trying to illegally grab the property belonging to the plaintiff and they are intending to get their name mutated in the revenue records. It was further pleaded that Shakun Bai (Defendant No.1) is not the wife of Shankar Lal but after the death of Sankar Lal, she moved an application for mutation of her name by claiming her to be the wife of Shankar Lal on which an order dated 05.11.2009 was passed by Naib Tahsildar thereby mutating the name of Shakun Bai in respect of Khasra No.88 area 0.25 acres, Khasra No.89 area 0.60 acres, Khasra No.93/1 area 0.312 hectares and Khasra No.344/2 area 0.263 hectares. The plaintiff filed an appeal and a stay order was passed by SDO, Hoshangabad but the appeal was ultimately dismissed on the ground

that the dispute involves question of title and the plaintiff can get her title declared from a competent Court of civil jurisdiction.

3. It was further claimed that the plaintiff filed an appeal before the Commissioner, Narmadapuram, Division Hoshangabad and there is an interim order in her favour. It was specifically pleaded that Shakun Bai was not wife of Shankar Lal whereas the Shakun Bai is the daughter of Devilal and Kamlabai. Marriage of Shakun Bai took place with Ram Vilash Yadav and after leaving Ram Vilash Yadav, she performed second marriage with Jagdish and after leaving Jagdish she performed third marriage with Gareeb Das Manvada. From the relationship Gareeb Das and Shakun Bai, Chandra Bai was born who is residing with defendant No.1. After the death of Gareeb Das, the defendant No.1-Shakun Bai started residing with Raghuveer. Shakun Bai was never the wife Shankar Lal and she had never resided with Shankar Lal. Since the parental home of Shankun Bai is situated in front of house of Shankar Lal, therefore, she was aware of details of the property of Shankar Lal. Thus, in connivance with Niab Tahsildar, she successfully got her name mutated in revenue records. Thus, it was claimed that the plaintiff is the sole surviving heir and owner of the properties of Shankar Lal. On 27.10.2010, the defendants No. 1 to 3 extended a threat to the plaintiff and her husband that in case if they come to the agriculture land, then they would be killed. When the plaintiff tried to lodge a report, then they were suggested by the Police to approach the Court.

4. In nutshell, it was claimed by the plaintiff that she is the daughter of Shankar Lal and Shakun Bai is not the wife of Shankar Lal

and therefore, she has no right or title in the land in dispute. It was further claimed that apart from the plaintiff, the legal representatives of Sukhram i.e. defendants No. 2, 3 and 4 and legal representatives of Fatehchand i.e. defendant No.5 will have share in the property in dispute.

5. The defendant No. 1 filed a written statement and claimed that she is legal wedded wife of Shankar Lal and it was denied that the plaintiff is the daughter of Shankar Lal.

6. The defendants No. 2 and 3 admitted in their written statement that Shankar Lal died on 12.12.2008. The other plaint averments were denied. It was claimed that Shankar Lal and Vishnu did not perform marriage and died as bachelor.

7. The trial Court after framing issues and recording evidence held that the plaintiff is the daughter of Shankar Lal, however he held that the defendant No.1 has perfected her title by way of adverse possession on Khasra No.393/1 and 344/2 and dismissed the suit in toto even in respect of Khasra No. 88 and 89.

8. The respondent/plaintiff preferred an appeal, which was registered as Civil Appeal No.5-A/2015 whereas the appellant/defendant No.1 also preferred an appeal, which was registered as Civil Appeal No. 9-A/2015. The appeal filed by the appellant was against a finding that the plaintiff is the daughter of Shankar Lal.

9. Since, the decree was in favour of the appellant, therefore, her appeal under Section 96 of CPC was not maintainable and she could have challenged the finding by filing a cross-objection.

However, since the appellate Court entertained the appeal filed by the appellant, therefore, no further deliberation is required on the said aspect. The Appellate Court by the impugned judgment and decree affirmed the finding given by the trial Court that the plaintiff is the daughter of Shankar Lal and reversed the finding given by the trial Court that the defendant No.1/appellant is the wife of Shankar Lal.

10. Challenging the judgment and decree passed by the Court below, it is submitted by the counsel for the appellant that so far as the reversal of finding with regard to the status of defendant No.1 as wife of Shankar Lal is concerned, the same is misconceived. The Appellate Court has not considered the Voter List (Ex,D/1 and D/2), in which it was specifically mentioned that the defendant No.1/appellant is the wife of Shankar Lal. The Appellate Court has also erroneously relied upon a copy of plaint Ex./15 to hold that the appellant was not the wife of Shankar Lal without noticing the fact that the appellant was not a party to the said suit and therefore it is submitted that the findings given by the First Appellate Court are perverse and proposed the following substantial questions of law:-

(i) Whether Ex.P-2, P-3 and Ex.P-15, have been proved according to law and the pleadings made in Ex.P-15 are binding upon the appellant?

(ii) Whether, the learned appellate Court is right in reversing the finding recorded on issue No.2 to 6 by the trial Court?

(iii) Whether, the plaintiff has proved that she is the daughter of Shankarlal?

(iv) Whether, the findings recorded by the Learned Appellate Court are perverse because material admissions made by the plaintiff in cross examination has been overlooked?

11. Heard the learned counsel for the appellant.

12. So far as the copy of plaint (Ex.P/15) is concerned, the appellant is correct in submitting that Shakun Bai defendant No.1 was not a party to the said suit. Therefore, he is right in submitting that any statement made by a third party will not have any binding effect against the appellant.

13. However, there is another aspect of the matter. The appellant has relied upon two Voter Lists (Ex.D/1 and D/2). The undisputed fact is that Shankar Lal expired on 12.12.2008. Voter List (Ex.D/1) is of the year 2011. Voter List (Ex.D/2) is of the year 2013. Thus, both the documents relied upon by the appellant were prepared after the death of Shankar Lal. So far as the Rin Pustika (Ex.D/3) and Bhu-Adhikar (Ex.D/4)Kistbandi Khatoni (Ex.D/5) are concerned they were prepared after the death of Shankar Lal. Therefore, these documents will not throw any light to the status of the appellant/defendant No.1. The Gram Panchayat, Manvada had issued a certificate dated 02.05.2008 (Ex.D/3) to the effect that Shakun Bai is the wife of Shankar Lal. This is the only document which was purportedly issued prior to the death of Shankar Lal and on which reliance has been placed to show that Shakun Bai was the wife of Shankar Lal. Although, this document has been exhibited as Ex.D/3, however, one thing is clear that this document is not a public document. The Sarpanch of Gram Panchyat,

Manvada namely Krishnabai was not examined to prove the execution of this document. Furthermore, this document is merely in the nature of declaration. The counsel for the appellant could not point out any legal sanctity of this document. It is also not pointed out that under which provison of law this document has been issued. The appellant did not examine Smt. Krishnabai to prove that the document was issued by her as well as to prove the basis on which the said document was issued. Therefore, certificate issue by Gram Panchayat, Manvada, Janpad Panchayat Babai, District Hoshangabad dated 02.05.2008 (Ex.P/3) will not give any strength to the case of the appellant.

14. It is submitted by the counsel for the appellant that it is cardinal principle of civil law that the plaintiff has to stand on her own legs and since the plaintiff has failed to prove that the appellant is not the wife of Shankar Lal, therefore, it should have been held that the appellant is the wife of Shankar Lal.

15. Considered the submissions made by the counsel for the appellant.

16. There is no dispute with regard to cardinal principle of civil law as submitted by the counsel for the appellant, therefore, the counsel for the appellant was requested to point out the evidence, which plaintiff can place to show that the defendant/appellant No.1 is not the wife of Shankar Lal. It is submitted by the counsel for the appellant that pleadings and oral evidence in this regard is not sufficient and something more was required. However, he was not in a position to point out any certificate, which can be issued by any authority under any provision of law declaring that 'A' is not the wife

of 'B'. On the contrary, the requirement of law is that marriage certificate is to be issued and there is no provision that a general certificate is to be issued that 'A' is not the wife of 'B'. Even, the counsel for the appellant could not suggest any other evidence, which could have been produced by the respondent/plaintiff to prove that Shakun Bai is not the wife of Shankar Lal. It has been specifically pleaded by the plaintiff in her plaint that Shakun Bai was not the wife of Shankar Lal. She has never resided with him.

17. Under these circumstances, since there was specific pleadings, which were supported by the evidence of the plaintiff coupled with the fact that the appellant has failed to prove that she was the wife of Shankar Lal, this Court is of the considered opinion that the findings recorded by the First Appellate Court with regard to the status of Shakun Bai cannot be said to be erroneous.

18. So far as the declaration with regard to the status of the plaintiff is concerned both the Courts below have given a concurrent finding of fact that the plaintiff is daughter of Shankar Lal. Unless and until concurrent finding of fact recorded by the both the Courts below are shown to be perverse and contrary to record, this Court cannot interfere with the same.

19. Under these circumstances, this Court is of the considered opinion that no substantial question of law arises in the present appeal.

20. Ex consequenti, judgment and decree dated 21.03.2018 passed District Judge, Hoshangabad in Civil Appeal No.9-A/2015 and Civil Appeal No.5-A/2015 as well as judgment and decree dated

15.04.2015 passed by IInd Civil Judge Class-I, Hoshangabad, District Hoshangabad in Civil Suit No.14-A/2014 are hereby affirmed.

21. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

vinay* Digitally signed by VINAY KUMAR BURMAN Date: 2023.04.25 19:15:50 +05'30'