Makhan Lal and Others vs Sheo Kaur and Others

N.K. Kapoor, J.—This judgment shall dispose of regular second appeal No. 199 and 200 of 1991 as both these appeals arise out of the common judgment of the Additional District Judge dated 29.5.1990.

The facts are being taken from the Regular Second Appeal No. 199 of 1991. This is defendants'' regular second appeal against the judgment and decree of the Additional District Judge affirming the judgment and decree of the trial Court.

Plaintiffs filed a suit for declaration, inter alia, on the ground that plaintiffs and defendant No. 1 are Hindus. Plaintiff No. 1 married defendant No.l sometime in the year 1958 and ever since then have been living as husband and wife. Out of their wedlock three daughters, namely, Sumantra, Santosh and Ram Bhateri (other plaintiffs) were born. Defendant No.l is a spent-thrift person and he is addicted to bad habits. For the last two years he has deserted the plaintiffs and the plaintiffs have no other sufficient means to maintain themselves. Defendant No.l is legally bound to maintain the plaintiffs. The defendant intended to alienate the land as detailed in Para No. 3 of the plaint to some other persons. Despite the injunction granted by the Court, he has transferred the land vide Civil Court decree dated 26.5.1984 in favour of defendants No. 2 to 5 and the remaining land by means of civil Court decree dated 7.6.1985 in favour of defendants No. 6 to 9. Thus both these decrees are null and void and not binding upon the rights of the plaintiffs. Hence the present suit.

Defendants put in appearance and filed written statement. The contesting defendants in their written statement controverted the allegations in the plaint. It was stated that the plaintiff No.l is not the legally wedded wife of defendant No.l. Other objections were also taken with regard to maintainability of the suit and the plaintiffs locus standi to file the same.

On the pleadings of the parties, following issues were framed:-

Whether the plaintiff is entitled for decree for maintenance by creating charge of the land in suit from the defendant? OPP

Whether the suit is not maintainable in the present from?OPD.

Whether the plaintiffs have no locus standi to file the present suit? OPD

Relief.

The trial Court examined issues No.l to 3 jointly and on appraisal of evidence came to the conclusion that the plaintiffs are entitled to declaration as prayed for i.e. entitled for maintenance by creating charge over the disputed property. Under issue No. 3-A-Whether the decrees dated 26.5.1984 and 7.6.1985 are illegal, null and void and liable to be set aside? OPD - it was held that since both the decrees were suffered by defendant No. 1 in favour of other defendants despite the injunction granted by the Court, both these decrees are not binding upon the right of maintenance of the plaintiff. Resultantly, the suit of the plaintiffs was decreed vide judgment and decree dated 6.10.1987.

The lower appellate Court found no ground to interfere in the findings of the trial Court and so dismissed the appeal.

The transferees on the basis of Civil Court decree dated 26.5.1984 and 7.6.1995 have assailed the finding of the Courts below terming the same to be illegal and otherwise unsustainable as per evidence on record. According to the appellants, the Courts below have misread the evidence leading to decreeing the suit of the plaintiffs which from its very inception is based upon the assumption of wrong facts. Elaborating, the counsel urged that the case set up by Smt. Sheo Kaar is that the she was married to Maha Singh and on his death performed Kareva marriage with Sher Singh way back in the year 1958. Since Sher Singh is addicted to bad habits, he is throwing away the valuable ancestral property for a song thereby depriving the plaintiffs even their right of maintenance and so a charge be created on this property for maintenance of the plaintiffs. According to the learned counsel for the appellants, this factual assertion of the plaintiffs stand disbelived as per own conduct, She, in fact, has been claiming herself to be widow of Maha Sigh and receiving family pension from the defence department till this day. In order to prove this fact, the appellants filed an application under Order 41 Rule 27 of the CPC seeking permission to lead evidence to prove that Sheo Kaur continues to claim herself to be widow of Maha Singh while withdrawing family pension right upon this day. Notice of this civil miscellaneous application was issued by the Court on March 7, 1991 and it was directed that the same would be heard alongwith the main case. According to the learned counsel for the appellants. Till today no reply has been filed by the respondent-plaintiffs. Thus, it should be taken that the assertion made by the appellants in this regard are factually correct and so the impugned judgment and decree are liable to be reversed on this ground alone.

Counsel for the respondent when confronted with this aspect of the matter had nothing to state but to admit that reply has not been filed by the respondent despite communication sent to her by him. With the application for adducing additional evidence, copies of documents submitted by Sheo Kaur alongwith affidavit have been placed on record. Original documents have not been placed. All the same, affidavit has been filed by one of the appellants in support of the application filed under Order 41 Rule 27 of the Code of Civil Procedure. The documents, if proved, will have bearing upon he point raised in the suit i.e. whether Smt. Sheo Kaur remarried Sher Singh as urged by her or remains as window of Maha Singh as recorded in the office of Controller of Defence Accounts (pension) Allahabad. This aspect of the matter, indeed, needs close scrutiny. The Court is also to examine the fact of submission of various forms accompanying the duly sworn affidavit by Smt. Sheo Kaur upon issue No. 1 which is crucial. Normally, this court would have called for the report from the trial Court in respect of this aspect of the matter and thereafter decide the appeal on merits. But in the present case, such a course does not appear to be appropriate on the facts of the present case as the decision of the Court below primarily hinges upon this vital issue. Being so, I accept this appeal, set aside he judgment and decree of the Courts below and remand the case to the trial Court for fresh adjudication permitting the appellants to prove the various documents annexed with the application under Order 41 Rule 27 of the CPC according to law. The plaintiff would also be permitted such other evidence as it may deem fit and proper.

Since the suit was filed in the year 1983, it is desired that the same will be expeditiously disposed of preferably within six months. No order as to costs. Parties are directed to appear in the trial Court on 2.3.1995.