Rajasthan High Court
Shiv Charan S/O Angad Singh vs Smt. Pooni Bai D/O Smt. Laddu Bai on 31 October, 2023
Bench: Sudesh Bansal
[2023:RJ-JP:25493]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 3/1991
Shiv Charan S/o Angad Singh, Resident of Gonsai Pada,
Karauli:-
1/1. Smt Mithlesh Kumari D/o Late Shri Shivcharan W/o Late
Shri Surender Singh
1/2. Shri Krishna D/o Late Shri Shivcharan W/o Rajendra Singh
1/3. Yasvendra Singh S/o Late Shri Shivcharan
1/4. Ashok Singh S/o Late Shri Shivcharan
1/5. Dipti D/o Late Shri Shivcharan W/o Vivek Pratap
All residents of Near Circuit House, Karauli
...Defendants-Appellants
Versus
1. Smt. Pooni Bai D/o Smt. Laddu Bai, R/o Gonsai Pada, Karauli,
since deceased through her legal representatives-
1/1. Shailendra Singh S/o Shri Rajendra Singh R/o Gonsai Pada,
Karauli
2. Laxmi Narain S/o Shri Angad Singh, since deceased through
his legal. heirs and representatives-
2/1. Rajendra Singh S/o
2/2. Dharmendra Singh S/o
2/3. Smt. Kamla Devi D/o [since Deceased]
2/4. Smt. Vidya D/o
2/5. Dharmo widow of
Late Laxmi Narain, Residents of opposite Government College,
Karauli.
3. Smt. Vimla Devi D/o Angad Singh, Resident of Girls Higher
Secondary School, Banipark, Jaipur (since deceased)
4. Smt. Basanti Wife of Vijay Singh R/o Sindhi Pada, Jhalawar
(since deceased)
5. Smt. Satya Naraini Bai, D/o Late Shri Phundi Lal w/o Shri
Hanuman, resident of Infront of Retwali Mahadev Temple, Bundi
Distt. Bundi
----Plaintiff-Respondents
For Appellant(s) : Mr. J.P. Goyal, Sr. Adv. assisted by
Ms. Jyoti Swami
For Respondent(s) : Mr. Prahlad Sharma
(Downloaded on 11/11/2023 at 09:05:09 PM)
[2023:RJ-JP:25493] (2 of 38) [CFA-3/1991]
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
Judgment Reserved On 27/09/2023
Judgment Pronounced On October 31st , 2023
BY THE COURT
REPORTABLE
1. In the present civil first appeal, preferred by and on behalf of
appellant-defendant No.1 under Section 96 of the Code of Civil
Procedure (CPC), challenge has been made to judgment and
decree dated 14.11.1990 passed in Civil Suit No.4/1985 (7/1979)
titled Mst. Pooni Bai Vs. Shiv Charan and others, passed by the
Court of Additional District & Sessions Judge, Karauli, whereby and
whereunder the civil suit for possession filed by respondent No.1-
plaintiff Smt. Pooni Bai has been decreed and she has been held
entitled to get possession of the portion of house, marked with "A"
in the map, available on record as Exhibits 3, 4 & 5, from
defendants. Since the defendant No.1 is in actual and physical
possession over the portion of house marked as "A", in respect of
which the decree for possession has been passed, therefore, only
defendant No.1 has challenged the judgment and decree by way
of present first appeal.
2. Heard learned counsel for both parties at length and scanned
the record.
3. It is factually not in dispute that parties to the present lis
belong to one family and are successors/legal representatives of
late Smt. Laddu Bai. One Sh. Angad Singh and Smt. Pooni Bai,
being natural heirs of Smt. Laddu Bai, were real brother and
sister. Appellant-defendant No.1 Shiv Charan is natural son of late
[2023:RJ-JP:25493] (3 of 38) [CFA-3/1991]
Sh. Angad Singh and respondents No.2 to 4 are other successors
of late Sh. Angad Singh. After death of Smt. Laddu Bai, her
daughter Smt. Pooni Bai instituted the present civil suit for
possession against two sons and widow of late Sh. Angad Singh
i.e. against her deceased brother's legal representatives. The civil
suit has been decreed in her favour vide impugned judgment,
which is under challenge in the present first appeal at the behest
of appellants. During course of suit, the widow of Sh. Angad Singh
passed away, hence his two daughters were also substituted and
brought on record.
4. The property in question, in the present first appeal, which is
marked as "A" in the map (Exhibits 3,4 & 5) is a part of a three
storied residential house, situated at Mohalla Gonsai Pada, District
Karauli.
5. Facts of the present case as culled out from the record and
which are necessary to be taken into consideration to decide the
present first appeal are that:
5.1 Smt. Pooni Bai, the original sole plaintiff, instituted the
present civil suit on 05.03.1979 stating inter alia that the entire
three storied house situated at Mohalla Gonsai Pada, Karauli along
with the Jagir land at Village Manthai were given to her mother
Smt. Laddu Bai, by the then Raja of Riyasat Karauli namely Sh.
Bhompal Ji in samwat 1985 (according to the english calendar it is
year 1928) against the services rendered by her mother to
nurture of son of Raja Bhompal, namely Sh. Ganeshpal as Dhai
Ma.
[2023:RJ-JP:25493] (4 of 38) [CFA-3/1991]
5.2 It was stated that since then, plaintiff's mother Smt.
Laddu Bai started to live in this house and because the plaintiff
became widow, hence she also came back to Karauli and started
to reside with her mother in the house in question.
5.3 It was stated that plaintiff's mother executed a Will
dated 21.01.1955 of the house in question in favour of plaintiff
and thereafter, plaintiff's mother passed away on 06.06.1956, so
by virtue of the Will dated 21.01.1955, the absolute ownership of
the house in question was claimed to be inherited by the plaintiff
alone.
5.4 It was stated that Sh. Angad Singh, who happens to be
her real brother and was father of defendants No.1 and 2 and
husband of defendant No.3, was permitted by the plaintiff, being
her brother, to reside in some portion of the house in question as
her licensee and he lived in that portion of house during his
lifetime. It is further stated that later on, Angad Singh had also
executed one Will dated 07.06.1958 for the house in question in
her favour and then passed away on 15.08.1958. It is pleaded
that thereafter, defendant No.1-Shiv Charan, who is son of Angad
Singh is residing and in possession of the portion "A" of the house
in question and defendant No.2 is living in possession of portion
"C" of the house in question, but their possession was stated to be
with the permission of the plaintiff, as her licensee.
5.5 It was stated that portion marked as "B" is in actual
and physical possession of the plaintiff herself, where she is
residing and since defendants started to make alterations in their
portions "A" & "C" unauthorizedly, therefore, plaintiff asked them
[2023:RJ-JP:25493] (5 of 38) [CFA-3/1991]
on 04.02.1979, to vacate and hand over the possession of their
portions, to the plaintiff, but the same was not done, hence,
thereafter, cause of action alleged to be accrued and the plaintiff
filed present civil suit for possession on 05.03.1979.
5.6 At the final stage of trial of present suit, on the prayer
of plaintiff, the trial Court allowed the plaintiff, to amend the plaint
vide order dated 27.03.1990 and Para No.10-A was added by the
plaintiff in the plaint, claiming an alternative case that entire
house property was streedhan, of Smt. Laddu Bai and being sole
widow daughter of Smt. Laddu Bai and having no means of
livelihood, she got the property. After this amendment, an
additional Issue No.9 was framed by the trial Court.
5.7 It is to be noted that in the prayer of plaint, plaintiff
apart from asking for the possession, on the basis of claiming her
sole ownership, also made an alternative prayer for seeking
partition of the house in question, in case defendants establish
their right and share in the house in question.
5.8 Appellant-defendant No.1 submitted his separate
written statement and categorically denied his possession over the
portion marked as "A" in the house in question, as permissive
and as licensee of plaintiff, but stated to be as owner. It was
denied that the Jagir land and house in question were given by
Maharaja Sh. Bhompal Ji to Smt. Laddu Bai and Laddu Bai
bequeathed the house to plaintiff through her Will. The ownership
of Smt. Laddu Bai so also plaintiff over the house in question was
denied and it was contended that the house in question was a
Nazul property and Maharaja Bhompal Ji gave the house in
[2023:RJ-JP:25493] (6 of 38) [CFA-3/1991]
question to Sh. Angad Singh, father of defendant No.1, and he is
residing in the house in question since time of his father from year
1948. The execution of the Will of house in question by Sh. Angad
Singh in favour of plaintiff was also categorically denied; The
defendant also took an alternative plea of adverse possession. The
principal prayer of plaintiff for possession so also the alternative
prayer of partition were denied specifically and the suit was
prayed to be dismissed with cost.
5.9 Defendants No.2, 3/1 & 3/4-respondents No.2 to 4,
who are also son and daughters of late Sh. Angad Singh,
submitted their separate and joint written statement wherein they
only disputed/denied the avertments of plaint only in respect of
execution of the Will of Sh. Angad Singh in favour of plaintiff, but
the all other facts pleaded by plaintiff, were not denied, rather
accepted. Thus, defendants No.2,3/1 & 3/2 supported the case of
plaintiff for possession, accepting her sole ownership over the
entire house.
5.10 As per amended pleadings of the parties, as many as
nine issues were settled by the trial Court. Issue Nos.1 & 2 are the
clinching and foremost issues of importance, which pertain to, as
to whether the plaintiff is owner of portions marked as "A" and "C"
in the house in question by virtue of Will? and, as to whether the
plaintiff permitted defendants No.1 and 2, to live in the portion of
house in question as her licensee, since about 8-10 years from the
date of suit? The issue No.3 pertains to carrying out alterations by
the defendants No.1 & 2 in their respective portion of the house in
question and declined to hand over the possession to plaintiff.
[2023:RJ-JP:25493] (7 of 38) [CFA-3/1991]
Issue No.4 is in respect of valuation of the suit property, Issue
No.5 is about insufficiency of court fee, Issue No.6 is about, as to
whether the suit is barred by limitation? And Issue No.7 is of
relief. Issue No. 8 was additionally framed, on the additional and
alternative plea of defendant No.1 in respect of claiming of
adverse possession over the portion marked as "A" in the house in
question. Issue No.9 was framed additionally, in respect of
alternative case pleaded by plaintiff in Para No.10-A of the plaint,
claiming her ownership over the house in question, treating the
same as streedhan of Smt. Laddu Bai, being widow and dependent
daughter of Smt. Laddu Bai.
5.11 Both the parties adduced their respective oral and
documentary evidence. From the side of plaintiff, plaintiff-Smt.
Pooni Bai (PW-1) deposed her statements and Sh. Chote Lal (PW-
2), who is the witness of Will of Smt. Laddu Bai alleged to be
executed in favour of plaintiff, Heera Singh (PW-3) and Gopi Lal
(PW-4) were examined and documents-Exhibit 1 to 5 were
produced by the plaintiff. Exhibit 1 is the Will of Smt Laddu Bai,
Exhibit 2 is Will of Sh. Angad Singh and Exhibits 3, 4 and 5 are
three site maps of the house in question in respect of all its three
floors, showing partition marked as A, B & C separately.
5.12 From the side of defendants, only defendant No.1
contested the suit and defendant No.1- Shiv Charan himself
appeared as DW-1 and got recorded statements of his witnesses
DW-2, DW-3 & DW-4 and also produced documents-Exhibit A1 to
A22 on record.
[2023:RJ-JP:25493] (8 of 38) [CFA-3/1991]
5.13 Learned trial Court decided Issue Nos.1,2,3 & 9 in
favour of plaintiff and plaintiff was held to be absolute owner of
the house in question on the basis of Will (Ex.1), executed by her
mother and while deciding Issue No.9, the house in question was
held to be streedhan of Smt. Laddu Bai and plaintiff to be her sole
successor of the house. The defendant No.1 was held to be in
possession over the portion marked as "A" of the house in
question, but his possession was assumed as licensee of plaintiff.
The execution of the Will by Sh. Angad Singh in favour of plaintiff
was not found proved. The plea of defendant No.1 to claim
adverse possession was decided against the defendant. The
valuation of the suit property was assessed to be higher than
valued by the plaintiff and accordingly, plaintiff was held liable to
pay additional court fee. The plaintiff's suit for possession in
respect of portion marked as "C" was not decreed, since defendant
No.2 supported the plaintiff's case, but the suit was decreed in
respect of portion "A" only and vide judgment and decree dated
14.11.1990, the plaintiff has been held entitled to get the
possession of portion marked as "A", as shown in sitemaps
(Exhibits 3,4 & 5) from the defendants.
5.14 Since portion "A" is in actual and physical possession of
appellant-defendant No.1 only, therefore, defendant No.1 alone
has assailed the judgment and decree for possession passed by
the trial Court, by way of filing the present first appeal.
6. During course of first appeal, the appellant-defendant No.1
passed away and his natural heirs have come on record.
Respondent No.1-plaintiff Smt. Pooni Bai also died during course
[2023:RJ-JP:25493] (9 of 38) [CFA-3/1991]
of first appeal and in her place, one person Sh. Shailendra Singh
sought his substitution, placing reliance on the Will of Smt. Pooni
Bai in his favour. The Will of Smt. Pooni Bai was denied and
disputed by the appellants, however, this Court, only for the
purpose of continuing the proceedings of the present first appeal,
allowed the substitution of Sh. Shailendra Singh as legal
representative of deceased Smt. Pooni Bai to contest the appeal.
Since other defendants/respondents supported the case of
plaintiff, their status need not to be discussed elaborately,
however, it is suffice to state that legal representatives of
deceased respondents, have also come on record.
7. Learned Senior Counsel, appearing on behalf of appellants
argued that the trial Court has committed error of law and fact in
holding the plaintiff as absolute owner of the house in question
and treating the defendant No.1-appellant as her licensee. He
submits that plaintiff Smt. Pooni Bai derives her title from Smt.
Laddu Bai and on record, there is no titled document of the house
in question in favour of Smt. Laddu Bai, therefore, merely on the
basis of her Will, plaintiff Smt. Pooni Bai cannot be assumed to be
owner, moreover when the alleged Will of Smt. Laddu Bai in favour
of plaintiff has also not been proved in accordance with law and
free from suspicious circumstances. The witness of Will, Sh. Chote
Lal (PW-2) did not turn up to complete his cross examination,
hence his evidence has wrongly been relied upon by the trial Court
in favour of plaintiff to prove the execution of Will. He submits that
evidence of PW-2, produced to prove the Will, deserves to be
discarded. In support of his contentions, learned Senior Counsel
[2023:RJ-JP:25493] (10 of 38) [CFA-3/1991]
has placed reliance on a judgment of Hon'ble Supreme Court in
case of Gopal Saran Vs. Satyanarayan [(1989(3) SCC 56].
Learned counsel argued that the trial Court committed error of
fact and law in deciding Issue No.9 and wrongly held the entire
house to be streedhan of the plaintiff's mother Smt. Laddu Bai
which is an afterthought case of plaintiff, put forth by way of
amendment in plaint at the fag end of trial, when plaintiff could
not prove absolute ownership of Smt. Laddu Bai on the house
property.
It has further been argued that Sh. Angad Singh, father of
defendant No.1, was residing in the part of the house in question
since beginning till his death and defendant No.1 too was residing
in the portion of house as owner being family members, but the
trial Court ignored such material fact on record and wrongly
assumed that defendant No.1 is licensee of plaintiff, only because
she has been held to be the owner of the entire house. It has
been submitted that indeed the defendant is in possession over
the portion of house in question as owner and the decree for
possession passed against the defendant deserves to be quashed.
It has also been submitted that parties may be left to be in
possession of the portion of house in question as stated by the
plaintiff in the plaint and the parties be remain continue to be in
possession of their respective portions, since they are all members
of one family.
8. Per contra, learned counsel appearing on behalf of
respondent No.1-plaintiff opposed the appeal and supported the
[2023:RJ-JP:25493] (11 of 38) [CFA-3/1991]
impugned judgment and decree. Learned counsel submits that the
trial Court has committed no illegality in considering the evidence
of Sh. Chote Lal (PW-2) and rightly placed reliance on Section 33
of the Indian Evidence Act, thus the Will of Smt. Laddu Bai in
favour of plaintiff Smt. Pooni Bai has rightly been held proved, as
such the plaintiff has rightly been declared as the absolute owner
of the house in question. It has been submitted that since the
defendant-appellant remained failed to show his own ownership
over the portion in his possession in the house in question,
therefore, his possession has rightly been treated as licensee of
the plaintiff and the decree for possession, impugned herein, is
lawful, just and proper, hence the same warrants no interference
by this Court, rather is liable to be affirmed. In support of his
contentions, learned counsel for respondent-plaintiff has placed
reliance on two judgments of Rajasthan High Court in cases of Jai
Raj Singh Vs. Shanti Kishan Singh [2004(1) DNJ (Raj.)
441] & Abdul Munir Khan Vs. Gulzar Singh [(2005(5) WLC
(Raj.) 215].
9. This Court, during course of arguments, put a pertinent
query from the counsel for respondent-plaintiff, as to whether
respondent wants to pursue her alternative case of partition as
pleaded in the plaint, in case this Court comes to a final conclusion
that the plaintiff is not the sole owner of the house in question and
the decree for possession passed in favor of plaintiff is not liable to
sustain. In response thereto, learned counsel, on instructions of
respondent No.1/1 Shailendra Singh, who was present in person in
the Court, stated at bar that he does not press the alternative
[2023:RJ-JP:25493] (12 of 38) [CFA-3/1991]
prayer made by the plaintiff in the plaint for seeking partition of
the house in question, irrespective of the fact that this Court, in
the present first appeal sustains or set aside the judgment and
decree for possession passed in favour of plaintiff by the trial
Court. Thus, respondent No.1/1, being sole legal representative of
the deceased plaintiff Smt. Pooni Bai, chooses only to press the
suit for prayer of possession only and willingly foregoes alternative
prayer made by the plaintiff in the plaint for seeking partition of
the house in question.
10. Having heard rival contentions of learned counsel for both
parties and after going through the entire record of the trial Court
as also from perusal of the impugned judgment, this Court finds
that the present first appeal can be considered and involves
following points of determination:-
(I) Whether the ownership of Smt. Laddu Bai over the
house in question is proved and if yes, whether the
plaintiff Smt. Pooni Bai acquired the ownership of the
house in question from Smt. Laddu Bai by virtue of her
Will dated 21.01.1955 (Ex.1) or the property was
Streedhan of Smt. Laddu Bai and after her death, plaintiff
got the entire house property in succession, being widow
daughter of Smt. Laddu Bai?
(This Point covers Issues No.1 & 9)
(II) Whether the possession of appellant-defendant No.1
over the portion marked as "A" of house in question, is
with the permission of plaintiff as her licensee?
(This Point covers Issues No.2,3 & 8)
(III) Whether impugned decree for possession passed by
the trial Court, in favour of plaintiff is liable to be
sustained or set aside or deserves to be modified in any
manner?
(This Point covers all other remaining Issues.)
[2023:RJ-JP:25493] (13 of 38) [CFA-3/1991]
Point No.(I):-
11. According to pleadings of the amended plaint, plaintiff Smt.
Pooni Bai derived her title/ownership over the house in question
from her mother Smt. Laddu Bai on the basis of Will dated
21.01.1955 (Ex.1), allegedly executed by Smt. Laddu Bai to
bequeath the house in question solely to plaintiff and
simultaneously, plaintiff also make out an alternative case of her
ownership on the basis that the house in question be treated
streedhan, of Smt. Laddu Bai and being sole surviving widow
daughter of Smt. Laddu Bai and having no means for her
livelihood, plaintiff is sole successor of her Streedhan. Issues No.1
and 9 were specifically framed by the trial Court in this respect. As
far as sole ownership of the house in question, allegedly acquired
by Smt. Laddu Bai is concerned, although no independent issue
has been framed, yet the same may be considered in issue No.1
being an intrinsic part of Issue No.1.
12. According to the plaintiff (PW-1), the house in question,
comprising three storied building, was given by the then Raja of
Riyasat Karauli namely Sh. Bhompal Ji to Smt. Laddu Bai, in lieu
of nourishment and nurture of Sh. Ganesh Pal, the son of his
highness Sh. Bhompal Ji. Although the fact that Smt. Laddu Bai
nurtured and nourished Sh. Ganesh Pal, as his Dhai Ma is not a
disputed fact, yet it is disputed that the house with Jagir land was
solely given to Smt. Laddu Bai only. According to defendant No.1,
the house and Jagir land were given to his father Sh. Angad
Singh, who was only male member in the family and son of Smt.
Laddu Bai. It has come on record that the husband of Smt. Laddu
[2023:RJ-JP:25493] (14 of 38) [CFA-3/1991]
Bai had already passed away and when this house was given by
the then Raja, Smt. Laddu Bai with her son Sh. Angad Singh,
started to live in the house. It has already come on record that
the plaintiff Smt. Pooni Bai, though has gotten marriage, however,
according to her statements as PW-1, she became widow in
childhood and came back to live with her mother in the house in
question. From the evidence on record, it appears that Sh. Angad
Singh too resided in the house in question during his lifetime until
death and this fact has also been admitted by plaintiff (PW-1)
Smt. Pooni Bai in her cross examination. Plaintiff's witness Sh.
Heera Singh (PW-3) states in his evidence that the house in
question belongs to Sh. Shiv Charan S/o Shri Angad Singh and
Smt. Pooni Bai.
13. Smt. Pooni Bai, herself has come up with a case that Sh.
Angad Singh too conferred ownership of the house in question
upon the plaintiff by, executing a Will dated 07.06.1958 (Ex.2).
Thus, in this way, plaintiff Smt. Pooni Bai is not only derived
ownership of the house in question from her mother Smt. Laddu
Bai through the Will dated 21.01.1955 (Ex.1), but also make out a
case that Sh. Angad Singh, her brother too transferred the
ownership of house in question to her by executing another Will
dated 07.06.1958 (Ex.2). Plaintiff has not produced any
substantive evidence to prove that Raja Shri Bhompal Ji gave the
house in question to Smt. Laddu Bai alone. No written document,
in conformity to giving the house property only to Smt. Laddu Bai
has been produced on record. PW-1 in her evidence as also other
witnesses of plaintiff, nowhere categorically stated the date,
[2023:RJ-JP:25493] (15 of 38) [CFA-3/1991]
month and manner in which the house in question was given by
Raja Sh. Bhompal Ji to Smt. Laddu Bai alone. Only a reference of
Samwat 1985, which comes in the English calendar year as 1928,
has been given. Defendant No.1 Shiv Charan (DW-1) deposed that
the house property was a Nazul property as per document-Exhibit
A19, which was received by his father Sh. Angad Singh. In the
cross examination of defendant No.1 Shiv Charan (DW-1), from
the side of plaintiff, a suggestive question was put that a patta of
house in question was issued in the name of Smt. Laddu Bai and
pattas are in custody of defendant No.1, who has not produced
the same. The suggestive question as put forth from the side of
plaintiff, is not a case of plaintiff in the pleadings or in evidence.
Thus, this Court finds that as per the oral evidence, produced by
the plaintiff, the factum of giving the house in question by Raja
Sh. Bhompal Ji to Smt. Laddu Bai alone is not established and
indisputably, there is no document, in conformity and to prove the
transfer of ownership of house property to Smt. Laddu Bai alone.
14. After coming into force of the Transfer of Property Act, 1882
(hereinafter for short "the Act of 1882"), Section 9 talks about the
oral transfer. As per Section 9, a transfer of property may be made
without writing in every case in which a written document is not
expressly required by law. The Act of 1882 requires transactions
of sale, Section 54, mortgage, specified in Section 58, lease,
specified in Section 105, Exchange, specified in Section 118, Gifts
envisaged under Section 122 and transfer of actionable claim
under Section 130 etc. to be in writing. In this way, although, the
Act of 1882 recognizes oral transfers, but only where the transfer
[2023:RJ-JP:25493] (16 of 38) [CFA-3/1991]
of property is not expressly required to be made through a written
document as expressly required by law.
15. In the plaint, plaintiff has not indicated that any document/
patta was issued/ executed by Raja Shri Bhompal Singh Ji, to give
the property of Jagir land and house property to Smt. Laddu Bai.
However, plaintiff stated in her cross-examination that documents
of patta were issued by Raja in the name of her mother Smt.
Laddu Bai, but defendant took such documents in his possession
on the pretext of providing the compensation to the plaintiff from
the Government, against resumption of Jagir land. Similarly, from
the side of plaintiff, it was suggested to defendant (DW-1) in his
cross-examination that all pattas of properties were issued in the
name of Laddu Ji and defendant took pattas from Pooni Bai by
saying to determine the compensation of Jagir land and then kept
pattas in his possession. Thus, by such evidence, it appears that
plaintiff accepted for issuance of pattas by Maharaja in the name
of Smt. Laddu Bai, but neither such pattas or any other
documents to show the title of properties in the name of Smt.
Laddu Bai were produced nor plaintiff took any steps, to summon
such pattas from the custody of defendant, if documents were
obtained by defendant and were in his possession. In this view,
obviously case of plaintiff, is not that of oral transfer of the
properties.
16. It is note worthy that plaintiff has nowhere specified the kind
of transfer of properties, i.e. whether by way of sale, gift or
otherwise. If transfer is treated as sale, certainly consideration of
[2023:RJ-JP:25493] (17 of 38) [CFA-3/1991]
price was not made by Smt. Laddu Bai, hence, the transaction
cannot be treated as sale. If pattas were issued as gifts, by virtue
of Section 122 and 123 of the Act of 1882, the transaction of gift
of any immovable property is required to be effected by way of
registered instrument, which is further required to be signed by or
on behalf of donor and to be attested by at least two witnesses.
Thus, as per provisions of the Act of 1882, gift of an immovable
property can be effected only by way of registered instrument.
17. Indisputably, no registered instrument in support of
contention that the house property was given by Raja Sh.
Bhompal Ji to Smt. Laddu Bai alone has been produced on record
by the plaintiff. In the impugned judgment, while deciding Issue
No.1, the trial Court has not adverted its attention to this aspect
and there is no specific findings of the trial Court, as to how and in
what manner, Smt. Laddu Bai alone acquired the ownership of the
house in question. In respect of Jagir land at Madhai, plaintiff PW-
1 accepts in her evidence to receive compensation of Rs.7,000/- in
lieu of presumption of jagir land by the Government, but no
document in respect of receiving the compensation from the
Government by plaintiff was produced on record. On the contrary,
in the register of Nazul Properties for the year 1954-55 (Ex-A19),
maintained in the office of Zila Parishad, Karauli in register No.8,
entry No.192, the house property is recorded in the name of Shri
Angad Singh, which has been verified by the employee of Zila
Parishad appeared as DW4 namely Ramesh Sharma. In the
Municipality record, the house tax of the house property is
deposited in the name of Laxmi Narain and Shiv Charan, sons of
[2023:RJ-JP:25493] (18 of 38) [CFA-3/1991]
Shri Angad Singh (Ex-A20). Though, no direct document of patta
in the name of Shri Angad Singh, too has not been placed on
record, but the plaintiff herself put a case to derive title of house
property from Shri Angad Singh through his Will dated 07.06.1958
(Ex-2), thus, plaintiff admits that Shri Angad Singh was also
owner of the house. Plaintiff admits in her evidence that Shri
Angad Singh, with his two sons and daughters lived in the house
in question since beginning along with Smt. Laddu Bai. Plaintiff
also admits that Shri Angad Singh died in this house only and
after his death, his sons Shiv Charan and Laxmi Narain are
residing therein. Plaintiff admits that Shiv Charan carried out
maintenance and repairing work in the house and incurred about
Rs.30,000/- to 40,000/-. Thus, in view of all such evidence and
material on record as well as admission of plaintiff, it can not be
conclude and held that Smt. Laddu Bai alone was the owner of the
house property, rather Shri Angad Singh was admitted to be
owner by the plaintiff and parties were living in the house as part
of family and family members and not as licensee of each other.
18. In view of aforesaid discussions, this Court has no hesitation
in holding that in absence of any documentary and other cogent
evidence, the case of plaintiff that Smt. Laddu Bai alone was the
owner of the house in question, is not proved.
19. Plaintiff Smt. Pooni Bai is claiming to acquire ownership of
house in question from Smt. Laddu Bai through her Will dated
21.01.1955 (Ex.1). In respect of "Will", it is trite law that the
execution of Will must be held to have been proved according to
[2023:RJ-JP:25493] (19 of 38) [CFA-3/1991]
the statutory requirements under Section 63 of India Succession
Act, 1925 and under Section 68 of the Indian Evidence Act, 1872
so also the Will must be found ordinarily free from suspicious
circumstances. Although, in view of findings as recorded in the
foregoing paras that Smt. Laddu Bai alone was not the owner of
the house in question, the claim of plaintiff to acquire ownership
of house in question from Smt. Laddu Bai through her Will, does
not stand good. Learned trial Court has concluded that the
execution of Will of Smt. Laddu Bai stands proved in accordance
with law but learned trial Court has not adverted to the aspect
that Will of Smt. Laddu Bai is shrouded by the suspicious
circumstances, which make the Will ungenuine, unacceptable and
non-reliable document. Merely because, one of the witness of Will
namely Shri Chote Lal (PW-2) was produced by plaintiff to prove
the execution of Will, the Will in question should not have been
treated as genuine and valid document, to held that the ownership
stand vested to the plaintiff alone.
20. Learned Senior Counsel for appellant defendant raised a
serious objection to rely upon evidence of Chote Lal (PW-2),
because he did not turn up before the trial Court to get complete
his cross-examination, hence, he submits that evidence of
Chotelal (PW-2) cannot be relied upon and be treated as non-est
more particularly, in light of judgment of Supreme Court in case of
Gopal Sharan (supra), but in the opinion of this Court, such an
objection is not sustainable on facts of the present case. This
Court finds that Chote Lal (PW-2) deposed his evidence-in-chief on
12.11.1982 and he was cross examined as well, on that day,
[2023:RJ-JP:25493] (20 of 38) [CFA-3/1991]
however, because of end of Court hours, his cross-examination
could not be completed. The witness re-appeared for his cross-
examination, as directed twice i.e. on 08.04.1983 and again on
31.05.1983, but since Presiding Officer of the Court was on leave,
hence, his rest cross-examination was not done. It transpires from
order-sheets that thereafter when he did not turn up on the next
date, his presence was sought to be ensured by way of issuing
bailable warrants, but he didn't appeared and lastly evidence of
plaintiff was closed on 08.04.1985. Plaintiff, thereafter, moved an
application, disclosing that witness Chote Lal was suffering from
Laprosy and he died on 27.09.1984, therefore, in such
circumstances, his evidence can be taken into consideration, more
so when on his evidence-in-chief, he had substantially been cross
examined by the defendant, before his death. Resort to Section 33
of the Evidence Act supported with judgment of Lahore High Court
in case of Diwan Singh Vs. Emperor [AIR 1933 Lahore 561]
was taken.
Learned trial Court in the impugned judgment has
categorically observed that non-completion of cross-examination
of Chote Lal (PW-2) was not due to his willful and deliberate non-
appearance, but was just circumstantial due to his illness and than
due to his death. The trial Court also observed that a perusal of
cross-examination of Chote Lal reveals that he had substantially
been cross-examined by the defendant. Thus, in the backdrop of
such factual matrix and after placing reliance upon Section 33 of
the Evidence Act, as also guided by the judgment of Lahore High
Court,derived in case of Diwan Singh (supra), the trial Court
[2023:RJ-JP:25493] (21 of 38) [CFA-3/1991]
proceeded to rely upon the evidence of witness Chote Lal. In the
present appeal, the appellant has not shown that the factual
aspect, as discussed by the trial Court, was not true that witness
Chote Lal had passed away on 27.09.1984, after suffering from
illness before closing his evidence on 08.04.1985. Therefore, in
the backdrop of such factual matrix, this Court is also of
considered opinion that evidence of Chote Lal is not liable to be
discarded and cannot be treated as non-est. Learned trial Court
committed no illegality in placing reliance upon the evidence of
Chote Lal (PW-2) with the aid of Section 33 of the Evidence Act
and the judgment of Lahore High Court in case of Diwan Singh
(supra). As far as judgment of Hon'ble Supreme Court in case of
Gopal Sharan (supra) on which counsel for appellant has placed
reliance is concerned, in that case party did not presented himself
for cross-examination, therefore, in that backdrop of factual
matrix, the Supreme Court held that it is not safe to rely on the
examination-in-chief of that party. In the present case at hand,
witness Chote Lal (PW-2) had substantially been cross examined
and his cross-examination could not be completed because of end
of Court hours and later on unfortunately he passed away because
of laprosy. Thus, in such circumstances, the evidence of Chote Lal
(PW-2), who is one of witness of Will and appeared to prove the
execution of Will in question (Ex.1), has rightly been relied upon
by the trial Court and this Court has concurrence with the view of
the trial Court in this respect.
[2023:RJ-JP:25493] (22 of 38) [CFA-3/1991]
21. Nevertheless, mere proving of execution of Will dated
21.01.1955 (Ex.1) by one of the witness of Will, Chote Lal (PW-2),
the Will does not stand prove as genuine and valid to clothe the
plaintiff with absolute ownership of the entire house property.
Firstly, Smt. Laddu Bai herself who allegedly executed this Will in
favour of plaintiff has not been found to be the absolute owner of
the entire house property as discussed hereinabove and secondly,
the Will cannot be said to be free from suspicious circumstances
nor its exception can be held proved on the basis of evidence of
plaintiff.
22. Learned counsel for respondent-plaintiff by referring the
judgment of Coordinate Bench of Rajasthan High Court passed in
case of Jai Raj Singh Vs. Shanti Kishan Singh [2004 (1) DNJ
(Raj.) 441] sought to convince the Court that the execution of
Will stands proved in accordance with Section 63 of the Indian
Succession Act, 1925 as also under Section 68 of the Indian
Evidence Act, 1872 as one of the witness of Will namely Chote Lal
(PW-2) had appeared before the trial Court and deposed his
evidence to prove the execution of Will in accordance with law. He
also deposed that the scriber of Will namely Shree Lal and another
witness namely Dhanna have passed away. Therefore, when
signature/mark of executant Smt. Laddu Bai on the Will in
question in presence of and with signatures of two witnesses have
been proved, the Will should be treated as genuine. But this Court
finds that the requirement of proving the execution of Will, by
producing at least one witness of Will in question is one thing,
which is certainly an essential and statutory requirement to prove
[2023:RJ-JP:25493] (23 of 38) [CFA-3/1991]
the execution of the Will but it is also necessary that before
placing reliance of Will, the Court must be satisfied that the Will is
free from all kinds of suspicious circumstances.
23. This Court has noticed that the Will in question is shrouded
by various suspicious circumstances which are apparent on the
face of record and from perusal of the Will itself.
(i) Admittedly, plaintiff has relied upon two Wills, one alleged
to be executed by her mother Smt. Laddu Bai dated 21.01.1955
(Ex.1) and another alleged to be executed by her brother Shri
Angad Singh dated 07.06.1958 (Ex.2). According to plaintiff, her
mother Smt. Laddu Bai as well as her brother Shri Angad Singh
bequeathed the ownership of house property upon her through
two separate Wills, but as a matter of fact, the execution and
existence of Will of Smt. Laddu Bai (Ex.1) is clearly denied in the
Will of Shri Angad Singh (Ex.2). The Will (Ex.1) itself stands
contrary to the another subsequent Will (Ex.2) relied upon by the
plaintiff herself, so both Wills cannot be held to be correct and
valid simultaneously. Further by placing reliance on both Wills,
plaintiff Smt. Pooni Bai herself has given an impression that the
ownership of house property was vested in her by mother Smt.
Laddu Bai as also by her brother Shri Angad Singh, thus, it has
been accepted by plaintiff that Shri Angad Singh was also having
ownership of the house property. In this way, Will Ex.1 stands
suspicious. In addition, witness Chote Lal (PW-2) has also adduced
the evidence to prove execution of both Wills. He is attesting
witness in both Wills. The evidence of Chote Lal, in respect of
[2023:RJ-JP:25493] (24 of 38) [CFA-3/1991]
execution of Will (Ex.2) has not been found satisfactory. The
another witness of Will (Ex.2), i.e. PW-4 Gopi Lal had turned
hostile and therefore, the execution of Will of Angad Singh (Ex.2)
was not held proved but even if the execution of another Will
(Ex.2) could not be proved in accordance with law, same does not
improve the case of plaintiff to claim absolute ownership of house
property from Smt. Laddu Bai on the basis of Will (Ex.1) only and
the Will Ex.1 cannot be treated as genuine and valid. Plaintiff is
bound to face the consequences to place reliance on two different
Wills, simultaneously at a time, to confer ownership of the house
property unto herself, which are not in consonance to each other.
(ii) In addition, it is note worthy that in the Will (Ex.1), there
is recital that Smt. Laddu Bai has one son Shri Angad Singh and
one daughter Smt. Pooni Bai whereas plaintiff Smt. Pooni Bai
states in her evidence-in-chief that they are three sisters. In her
statement recorded on 02.09.1982, during cross-examination, she
stated that her two sisters namely Sua Bai and Gulo Bai had
passed away before execution of Will by mother Smt. Laddu Bai,
on the contrary in her additional statements recorded on
21.07.1990, PW-1 stated that her sister Gulo Bai died after death
of her mother. As per evidence of appellant-defendant Shiv Charan
(DW-1), all three daughters of Smt. Laddu Bai were alive at the
time of her death. Further PW-1 admits that heirs of her sisters
Sua Bai and Gulo Bai are alive. She also stated that her brother
Shri Angad Singh had two sons namely Shiv Charan and Laxmi
Narain and two daughters. One of his daughter, Smt. Vimla Bai
became widow at the age of 9 years and she was maintained and
[2023:RJ-JP:25493] (25 of 38) [CFA-3/1991]
educated by her mother Smt. Laddu Bai. Thus, it appears that
there were other family members of Smt. Laddu Bai who were
alive and if Will in question was written, as per instructions of
Smt. Laddu Bai certainly the reference of her other two daughters
Sua Bai and Gulo Bai as also of other; family members would have
been there in the Will. But in her Will, there is no whisper about
her two daughters and other dependents/family members.
(iii) It is also note worthy that by evidence of plaintiff Smt.
Pooni Bai PW-1, it appears that she was present in person at the
time of execution of Will and she stated that witnesses put their
signature on the Will in her presence. PW-2 states that paper to
write the Will was made available by Pooni Bai and she brought
breakfast. The participation of plaintiff, who is sole beneficiary of
the Will in question has been treated in law as one of suspicious
circumstances.
(iv) There is no evidence from the side of plaintiff that Smt.
Laddu Bai was in fit and sound state of mind, at the time of
execution of Will.
(v) A perusal of the Will (Ex.1) as a whole does not inspire
confidence nor leads to inference that same was written as per
instructions of Smt. Laddu Bai. All such circumstances, referred
hereinabove are material and relevant to be considered, before
placing reliance on the Will and treating the same as genuine,
valid and lawful document. The trial Court has not adverted on
such suspicious circumstances, hovering around the Will in
question on its face value. The suspicious circumstances, which
[2023:RJ-JP:25493] (26 of 38) [CFA-3/1991]
have been referred hereinabove were required to be removed by
the plaintiff, propounder of the Will by adducing sufficient evidence
to the satisfaction of the Court. No evidence on record has been
adduced by plaintiff to remove/satisfy such suspicious
circumstances.
24. A reference of the celebrated judgment of the Supreme
Court, in case of H.Venkatachala Iyengar Vs. B.N.
Thimmajamma [AIR 1959 SC 443], which has been followed in
catena of subsequent judgments of the Supreme Court and still
holds the field, would be apropos to the issue under consideration.
The relevant portion of the judgment, para 22 and 23 are being
reproduced hereunder:-
"22. Apart from the suspicious circumstances to which
we have just referred, in some cases the wills
propounded disclose another infirmity. Propounders
themselves take a prominent part in the execution of
the wills which confer on them substantial benefits. If
it is shown that the propounder has taken a prominent
part in the execution of the will and has received
substantial benefit under it, that itself is generally
treated as a suspicious circumstance attending the
execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory
evidence. It is in connection with wills that present
such suspicious circumstances that decisions of English
courts often mention the test of the satisfaction of
judicial conscience. It may be that the reference to
judicial conscience in this connection is a heritage from
similar observations made by ecclesiastical courts in
England when they exercised jurisdiction with
reference to wills; but any objection to the use of the
word 'conscience' in this context would, in our opinion,
be purely technical and academic, if not pedantic. The
test merely emphasizes that, in determining the
question as to whether an instrument produced before
the court is the last will of the testator, the court is
deciding a solemn question and it must be fully
satisfied that it had been validly executed by the
testator who is no longer alive.
[2023:RJ-JP:25493] (27 of 38) [CFA-3/1991]
23. It is obvious that for deciding material questions of
fact which arise in applications for probate or in
actions on wills, no hard and fast or inflexible rules can
be laid down for the appreciation of the evidence. It
may, however, be stated generally that a propounder
of the will has to prove the due and valid execution of
the will and that if there are any suspicious
circumstances surrounding the execution of the will
the propounder must remove the said suspicions from
the mind of the court by cogent and satisfactory
evidence. It is hardly necessary to add that the result
of the application of these two general and broad
principles would always depend upon the facts and
circumstances of each case and on the nature and
quality of the evidence adduced by the parties. It is
quite true that, as observed by Lord Du Parcq in
Harmes v. Hinkson (1946) 50 C.W.N. 895, "where a
will is charged with suspicion, the rules enjoin a
reasonable scepticism, not an obdurate persistence in
disbelief. They do not demand from the judge, even in
circumstances of grave suspicion, a resolute and
impenetrable incredulity. He is never required to close
his mind to the truth". It would sound platitudinous to
say so, but it is nevertheless true that in discovering
truth even in such cases the judicial mind must always
be open though vigilant, cautious and circumspect."
25. In the judgment of Jai Raj Singh (supra) relied upon by
counsel for respondent-plaintiff, in para 28 and 29, the Court has
observed that the execution of Will should be proved beyond
suspicious circumstances. The suspicious circumstances may be as
to the genuineness of signatures of testators, the condition of
testators' mind, the deposition made in the well being unnaturally,
improbable or unfair in light of relevant circumstances or there
may be other indications in the Will to show that testators' mind
was not free. It has been observed that in such a case, the Court
would naturally accept that all legitimate suspicion should be
completely removed before the document is accepted as the last
Will of executor. If the propounder himself take a prominent part
in the execution of Will, which confers substantial benefit on him,
that is also a circumstance to be taken into account and the
[2023:RJ-JP:25493] (28 of 38) [CFA-3/1991]
propounder is required to remove doubts by clear and satisfactory
evidence.
26. The Supreme Court, in case of Lalitaben Jayantilal Popat
Vs. Pragnaben Jamnadas Kataria [2008 (15) SCC 365] has
observed that whether the Will is surrounded by suspicious
circumstances or not, is essentially a question of fact, the
inference of suspicious circumstances may be drawn having regard
to the evidence on record. It was held that it is trite law that the
execution of Will must be held to have been proved not only when
the statutory requirements for proving the Will are satisfied but
the Will is also found to be ordinarily free from suspicious
circumstances. When such evidence are brought on record, the
Court may take aid of presumptive evidence also.
27. Apart from above, learned trial Court has also committed
error of fact and law in not appreciating that plaintiff (PW-1) in her
evidence admits her presence at the time of execution of Will by
Smt. Laddu Bai. Her presence has been verified by PW-2 Chote Lal
as well because he stated in his cross-examination that the paper
on which the Will of Laddu Ji written, was made available by Pooni
Bai and she brought breakfast etc. The trial Court further
committed error in not appreciating contradictions and
discrepancies in the statement of PW-2 and blindly relied upon his
evidence to held prove the execution of Will. The Will was alleged
to be executed on 21.01.1955 which is winter season whereas
PW-2 stated that it was Month of June (Hot summer) when Will
was executed. There is contradiction in his evidence about
[2023:RJ-JP:25493] (29 of 38) [CFA-3/1991]
execution of Will on stamp paper and plane paper. In addition, the
evidence of PW-2 may not be treated as trustworthy, because he
is witness of both Wills (Ex-1 and Ex-2). PW-2 apart from
deposing his evidence in respect of execution of Will (Ex-1),
putting impression/mark by Smt. Laddu Bai on the Will in
presence of witnesses he also deposed evidence to put sign by
Angad Singh on Will (Ex-2) in his presence and witnesses. The Will
of Angad Singh (Ex-2) has not been held proved and the evidence
of PW-2 in respect of Will (Ex-2) has not been found trustworthy
and does not corroborate with PW-4, another witness of Will Ex.2.
In this view, it is not safe to rely the evidence of PW-2, in respect
of execution of Will (Ex-1) as wholly trustworthy and solely on the
basis of his evidence, the execution of Will Ex-1 under the
impression/mark of Smt. Laddu Bai as also written as per her
instructions, cannot be believed and cannot be held proved.
28. Therefore, finally, on appreciation of evidence in entirety as
also other aspects, discussed hereinabove, this Court is of
considered opinion that the Will dated 21.01.1955 (Ex.1),
allegedly executed by Smt. Laddu Bai in favour of plaintiff cannot
be held to be a genuine and valid document to confer the
ownership of the house property upon the plaintiff. Learned trial
Court committed error of fact as also of law in placing reliance
upon the Will to assume and confer the ownership of house
property upon plaintiff alone. In light of discussion and
observations made hereinabove, findings of the trial Court on
issue No.1, in this respect are hereby set aside.
[2023:RJ-JP:25493] (30 of 38) [CFA-3/1991]
29. Learned trial Court, while deciding issue No.9, has held that
the house property was received to Smt. Laddu Bai on the basis of
her labour and skill, therefore, it was treated as her Streedhan
and further placing reliance on Section 147 of the Book from
Mulla's on Hindu Law, the trial Court held that the Streedhan of
Smt. Laddu Bai devolve after her death upon her widow daughter
namely Pooni Bai i.e. plaintiff, since she was having no means for
her livelihood. This Court is of the opinion that the trial Court has
fell into error of fact and law in deciding issue No.9.
The trial Court failed to consider that plaintiff make out an
alternative case in pleadings by addition of para No.10-A in
respect of alleging the house property as Streedhan of Laddu Bai,
at the fag end of the trial of suit and after conclusion of evidence
of parties. This was wholly an afterthought of plaintiff, apparently
when in her evidence, plaintiff miserably failed to prove the
absolute ownership of Smt. Laddu Bai over the house property,
alleged to be assigned by Raja Shri Bhompal Singh Ji. Plaintiff
knew that no cogent and convincing evidence, documentary
evidence have been produced on record to prove the transfer of
ownership of house property to Smt. Laddu Bai by Raja Shri
Bhompal Singh Ji, then she tried to make out an alternative case
that the property be treated as Streedhan of Smt. Laddu Bai. Such
change of stand of plaintiff, does not stand in conformity to the
Will (Ex-1), allegedly executed by Smt. Laddu Bai in favour of
plaintiff and which was her basic case in the original plaint.
[2023:RJ-JP:25493] (31 of 38) [CFA-3/1991]
Otherwise also, what kind of properties received by female
should be treated as her Streedhan, is well described in the Hindu
Law. The meaning of 'Streedhan' has been defined Stree- Women
and Dhan- Property i.e. literally the Women's property. According
to Mitakshara Hindu Law, Streedhan of a female is that which was
given by the father, by the mother, by the husband, or by brother;
and that which was presented by the maternal uncles and rest at
the time of wedding before the Nuptial fire; and a gift on a second
marriage or gratuity on account of supersession; and, the
property obtained by way of inheritance, purchase, partition,
adverse possession etc. The gifts and bequests given by strangers
to a female has not been treated as Streedhan of the female
under the Mitakshara Hindu Law, although few of schools
recognize such property as Streedhan of female to whom present
parties do not belong. Obviously, Raja Bhompal Singh Ji, who
allegedly gave the house property to Smt. Laddu Bai do not fall in
any of her relationship as mentioned hereinabove nor the property
was given to Smt. Laddu Bai as gift before the Nuptial fire or at
the bridal procession or as gift after marriage or in lieu of
maintenance. Therefore, in such facts and circumstances the
alternative case tried to make out by plaintiff to treat the house
property as Streedhan of Smt. Laddu Bai is not liable to be
accepted. In the opinion of this Court, findings of the trial Court,
treating the house property as Streedhan of Smt. Laddu Bai, are
erroneous and as such are hereby set aside.
As a natural corollary, findings of the trial Court, while
deciding issue No.9, to devolve the house property on the plaintiff
[2023:RJ-JP:25493] (32 of 38) [CFA-3/1991]
alone by way of succession, treating her as without having means
and widow daughter of Smt. Laddu Bai and by virtue of Section
147 of the Mulla's Hindu Law are also not sustainable and are
liable to be ignored. Ultimately, the issue No.9 as a whole is
adjudicated against the plaintiff. With observations discussed
hereinabove, the point No.I is decided against the plaintiff-
respondent and in favour of appellant-defendant.
Point No.(II):-
30. Learned trial Court while deciding issue No.2 and 8
collectively, held that defendant No.1 failed to prove his adverse
possession over the portion "A" in the house property for more
than 12 years without interruption, prior to filing of the present
suit, whereas plaintiff has been found to be absolute owner of the
entire house, in view of findings of issues No.1 and 9, therefore,
the possession of defendant No.1 was assumed to be a permissive
possession and is in the capacity of licensee of plaintiff. As per
evidence and material available on record, the assumptions drawn
by the trial Court to treat the possession of defendant No.1 with
the permission of licensee of plaintiff, is arbitrary, erroneous and
perverse.
31. It was incumbent for plaintiff to prove her case that the
portion "A" and "C" was given to defendant No.1 and 2
independently, 8-10 years ago prior to filing of the suit and both
defendants were her licensees. The present suit was instituted on
05.03.1979. According to plaintiff's case, the defendant No.1 came
in possession of portion "A", 8-10 years ago i.e. in the year about
[2023:RJ-JP:25493] (33 of 38) [CFA-3/1991]
1969-70. Though, defendant No.2, Laxmi Narain supported
plaintiff's case, yet plaintiff did produce Laxmi Narain in her
evidence, to prove that he came in possession of portion "C" only
in the year 1969/70 and with the permission of plaintiff.
Defendant No.1, has categorically denied his possession on portion
"A" with permission of plaintiff and as her licensee, rather
contended that he was residing in the house since childhood with
his father Shri Angad Singh and during course of his employment,
his children and wife were residing continuously in the house.
Plaintiff Pooni Bai admits that in her evidence that upbringing,
education and marriage of Shiv Charan and Laxmi Narain,
defendant No.1 and 2, who are sons of her brother Shri Angad
Singh, held in the house in question. PW-1 admits that her brother
Angad Singh till his death lived in the house in question. PW-1
admits her brother Angad Singh, as owner of the house in
question from whom she derived to acquire ownership through his
Will (Ex-2), though, same was not proved. PW-1 in her statements
recorded on 02.09.1982, stated that Shiv Charan defendant No.1
leave his job 30 years ago and since thereafter, he is residing in
the house with his children and family. Plaintiff's witness PW-4
(Gopi Lal) in his cross-examination held on 10.07.1984 states that
Shiv Charan resides in the portion of house since about 34-35
years. So as per statement of PW-1 and PW-4, defendant No.1 is
residing in the house since 1948-49. It is admitted case of plaintiff
that defendant No.1 incurred about Rs.40,000/- in making
addition/alteration, repairing and maintenance of the house in
question. Defendant No.1 himself has pleaded in written
[2023:RJ-JP:25493] (34 of 38) [CFA-3/1991]
statement that he started to reside in the house in question since
1948; He has adduced oral as well as documentary evidence from
Ex-A1 to Ex-A4, Ex-A21 and Ex-A22 to show the
addition/alteration work carried out in the house and expenses
incurred by him. Two of witnesses (DW-2 Shamsherpal and DW-3
Dwarka) have been produced in support of such evidence. Ex-A21
is receipt dated 06.03.1963, Ex-A3 is of dated 09.02.1964, Ex-A22
is of year 1969. The other documents Ex-A5 to A11 are payment
receipts of water consumption, Ex-A12, A13 and A14 (dated
10.07.1962) are receipts of house tax deposition, Ex-A15-A16
(dated 06.06.1963) receipts also show deposition of house tax in
Nagar Palika, Ex-18 is the certificate issued by Water Works
Department. Plaintiff (PW-1) admits that the house tax was being
deposited by defendant No.1 and 2. Plaintiff did not produce any
receipts for deposition of water, electricity consumption, house tax
etc.
Thus, in view of overall evidence, the trial Court wrongly
presumed the possession of defendant No.1 as permissive
possession, over portion "A" of house in question. Documents Ex-
A21 and Ex-A22 were wrongly disbelieved by the trial Court,
merely because reference of both documents was not given in the
written statement. In the written statement, defendant No.1 has
pleaded material fact that his possession over portion of house in
question is since 1948 as owner and family member and in
conformity to such pleadings, evidence was adduced. Ex-A21 and
Ex-A22 were also proved by DW-2 and DW-3. There is no positive
evidence of plaintiff to give possession of portion "A" to defendant
[2023:RJ-JP:25493] (35 of 38) [CFA-3/1991]
No.1 in the year 1969-70 as her licensee. Plaintiff's witness PW-3
do not corroborate plaintiff's case that the possession of defendant
No.1 and 2 over the respective portion of the house in question
was with the permission of plaintiff. Thus, the trial Court
committed perversity in disbelieving on the document Ex-A21 and
Ex-A22 as also drawing an inference, contrary to other evidence
on record, that the defendant No.1 was licensee of plaintiff and
lived in the house with her permission. Even if, defendant No.1
could not prove his adverse possession as pleaded by him, yet his
possession in the house was as a family member and as co-owner,
which cannot be disbelieved. It appears that, parties in the suit
were living in their respective portion of the house being part of
one family and as Co-owner.
32. In view of discussion made hereinabove, findings of the trial
Court treating the possession of appellant defendant No.1 over the
portion "A" as licensee and with the permission of plaintiff cannot
be sustained and to this extent findings are set aside. Accordingly,
the point No.II is adjudicated against the respondent plaintiff and
in favour of appellant.
Point No.(III):-
33. The trial Court passed the impugned decree for possession in
favour of plaintiff, treating plaintiff as an absolute owner of the
entire house and treating the possession of defendants as licensee
and with permission of plaintiff. This Court, while deciding point
No.I and II, as above, have adjudicated both points against the
plaintiff. However, counsel for respondent-plaintiff made an
[2023:RJ-JP:25493] (36 of 38) [CFA-3/1991]
attempt to protect the impugned decree for possession by saying
that appellant-defendant N.1 remained fail to establish his
ownership in the house in question qua plaintiff, as claimed by
him, therefore, in view of judgment delivered by the Coordinate
Bench of the High Court in case of Abdul Munir Khan (supra),
the defendant No.1 has no right to retain the possession and
plaintiff be allowed to take the possession by sustaining the
impugned decree.
This Court finds that facts of Abdul Munir Khan's case were
entirely different. That was a case where the land of Badodia
Basti, Jaipur was acquired by the then Urban Improvement Trust
and piece of land described as plot No.130 in the Badodia Basti,
Jaipur was in possession of plaintiff-appellant. On the basis of
possession, the allotment letter was issued by the UIT in favour of
plaintiff. The possession of plaintiff was dispossessed by
defendants forcefully and then, plaintiff filed suit for possession.
Defendants remained fail to prove in title for said piece of land and
could not prove their possession lawful. In that backdrop of facts,
plaintiff appellant was treated as rightful owner of plot No.130 in
Badodia Basti, Jaipur and therefore, treating the possession of
defendants as trespasser, the suit for possession was decreed in
favour of plaintiff and against defendant. Neither on facts nor on
law, the ratio of judgment is applicable to the facts of the present
case. In the present case, plaintiff alleging herself to be absolute
owner of entire house filed the present suit for possession,
alleging defendants to be her licensee. In view of discussion made
hereinabove, this Court has decided both points against the
[2023:RJ-JP:25493] (37 of 38) [CFA-3/1991]
plaintiff, therefore, plaintiff is not entitled to sustain the decree for
possession.
34. According to conclusion arrived at by this Court, while
deciding points No.I and II, as above, the impugned decree for
possession passed by the trial Court in favour of respondent-
plaintiff is not sustainable and deserves to be set aside. In view of
conclusion that the impugned decree is liable to be set aside, the
discussion on the other issues except issue pertaining to valuation
of suit property and payment of balance Court fee, becomes
insignificant. Findings of the trial Court on issue No.4 and 5,
pertaining to valuation and Court fee are concerned, do not call for
any interference on merits as trial Court has decided these issues
as per evidence on record and after appreciation of evidence in
accordance with law. The balance Court fee of Rs.19,000/- as
ordered by the trial Court in the impugned judgment, if has not
been paid by plaintiff, same is liable to be paid.
35. The alternative prayer made by plaintiff in the plaint for
partition, has been not pressed by the counsel for respondent-
plaintiff, as noted in para 9 of this judgment.
36. Further, in order to quietus the dispute about respective
possession of parties and in order to prevent future litigation in
respect of claiming possession or partition, the contention of
counsel for appellant is also taken on record that since parties to
the present lis are members of one family, therefore, parties may
remain continue to be in possession of the respective portion,
[2023:RJ-JP:25493] (38 of 38) [CFA-3/1991]
whereever, they are in possession for the house in question, as
stated in the plaint.
37. Point No.III stands decided accordingly.
38. The upshot of discussion is that the present first appeal
succeeds and is hereby allowed. The impugned decree for
possession, passed in favour of plaintiff and against defendant is
hereby set aside. The civil suit filed by respondent plaintiff Smt.
Pooni Bai is dismissed in toto. There is no order as to costs.
39. Decree be framed accordingly.
40. Stay application and other pending application(s), if any,
stands disposed of.
41. Record of the trial Court be sent back forthwith.
(SUDESH BANSAL),J
NITIN/
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