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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Smt. Roshni Devi, Wd/o. Late Sh. Jagat Ram, S/o. Sh. Khajana Ram - Appellant
Versus
Smt. Dolima Devi (deleted) & Ors. - Respondents
Regular Second Appeal No. 49 of 2007
Decided On : 21-09-2022
Maintenance - Property Rights - Hindu Succession Act - [Hindu Succession Act, 1956, Section 19, Transfer of Property Act, Section 6] - The court discussed the rights of the appellant to claim maintenance from the property in suit, her right of succession in the estate of late Sh. Khajana Ram, and the collusiveness of the decree in Civil Suit No. 219 of 1991. The court upheld the judgment and decree dated 30.12.2002, with modifications that the appellant will be entitled to inherit the estate of Khajana Ram strictly in accordance with Hindu Succession Act and will be held entitled to joint possession of the suit land till she gets her share partitioned.
Fact of the Case:
The appellant, Roshni Devi, claimed herself to be the wife of Jagat Ram, son of Khajana Ram, and filed Civil Suit No. 266 of 1992 against Khajana Ram for maintenance. During the pendency of this suit, Man Chand filed Civil Suit No. 219 of 1991 seeking declaration that he had become the owner of the suit property by way of adverse possession. Roshni Devi filed another Civil Suit against Khajana Ram and Man Chand, challenging the decree in Civil Suit No. 219 of 1991 as a result of collusion and fraud.
Finding of the Court:
The court found that Roshni Devi had the right to claim maintenance from the property in suit and upheld the judgment and decree dated 30.12.2002, with modifications regarding her entitlement to inherit the estate of Khajana Ram and joint possession of the suit land.
Issues: The issues included the appellant's entitlement to maintenance, declaration, and possession, as well as the maintainability of the suit, cause of action, locus standi, and estoppel. The court also considered jurisdiction, limitation, res judicata, and the filing of the plaint in accordance with the Civil Procedure Code.
Ratio Decidendi: The court held that the pendency of Civil Suit No. 266 of 1992 at the time of passing of the decree in Civil Suit No. 219 of 1991 was sufficient to afford cause of action to Roshni Devi. Additionally, the court found that Roshni Devi, as the wife of the pre-deceased son of Khajana Ram, would have cause of action to challenge any illegal action affecting her rights available on inheritance.
Final Decision: The appeal succeeded, and the judgment and decree dated 18.12.2006 were set aside. The judgment and decree dated 30.12.2002 were upheld, with modifications regarding the appellant's entitlement to inherit the estate of Khajana Ram and joint possession of the suit land.
JUDGMENT :
Appellant is in appeal against the judgment and decree dated 18.12.2006, passed by learned District Judge, Hamirpur, H.P. in Civil Appeal No. 10 of 2003, whereby the judgment and decree dated 30.12.2002, passed by learned Sub Judge, 1st Class, Barsar in Civil Suit No. 73/1998/92 has been reversed and the suit of the plaintiff has been dismissed.
2. Parties herein shall be referred by their names for the reason that due to long pendency of litigation, the original defendants have been substituted by number of legal representatives. Roshni Devi (appellant herein) was the plaintiff, whereas Khajana Ram and Man Chand were defendant No.1 and defendant No.2 respectively in civil suit before learned trial Court. Khajana Ram died and he was represented by his daughters Harbanso Devi and Narato Devi (respondents No. 2 and 3 before learned lower appellate Court). Man Chand was survived by legal representatives, who were the appellants before learned lower appellate Court.
4. Roshni Devi claimed herself to be wife of Jagat Ram, son of Khajana Ram (defendant No.1). Jagat Ram, husband of Roshni Devi had predeceased his father. Roshni Devi had filed Civil Suit No. 266 of 1992 against Khajana Ram for maintenance being his daughter-in-law. In Civil Suit No. 266 of 1992, Roshni Devi had obtained injunction against Khajana Ram, restraining him from alienating, encumbering or charging the suit property.
5. During the pendency of Civil Suit No. 266 of 1992, Man Chand filed Civil Suit No. 219 of 1991 against Khajana Ram, seeking declaration that he had become owner of suit property by way of adverse possession. Khajana Ram was represented in said suit by his attorney Kishan Singh. By way of written statement filed in Civil Suit No. 219 of 1991, the claim of Man Chand was admitted on behalf of Khajana Ram. Kishan Singh (attorney of Khajana Ram) also made a statement before Civil Court that he had no objection in case the suit was decreed. Accordingly, a decree was passed by Civil Court on 26.12.1991 in Civil Suit No. 219 of 1991 and Man Chand was declared owner of suit property by way of adverse possession.
6. Roshni Devi filed another Civil Suit against Khajana Ram and Man Chand, challenging the decree dated 26.12.1991, passed in Civil Suit No. 219 of 1991 being result of collusion and fraud. The suit was numbered as Civil Suit No. 73/1998/92. It was alleged that Man Chand had colluded with Khajana Ram with a purpose to defeat the rights of Roshni Devi in pending Civil Suit No. 266 of 1992. Khajana Ram died on 24.7.1993. Roshni Devi amended here plaint by including her claim of inheritance as daughter-in-law of Khajana Ram and accordingly made additions to the prayer clause also.
7. The suit land in Civil Suit No. 266 of 1992, Civil Suit No. 219 of 1991 and Civil Suit No. 73/1998/92 was the same i.e. khata No. 124, khatauni No. 132, Khasra Nos. 819, 821, 836, 883, 884, 927 and 937, kita-7, measuring 36 kanals, 2 marlas, situated in Tikka Thana, Tappa Bani, Tehsil Barsar, District Hamirpur, H.P.
8. In defence, jointly raised by defendants Khajana Ram and Man Chand, the status of Roshni Devi as wife of Jagat Ram was denied. The right of Roshni Devi claiming maintenance from Khajana Ram was contested. The decree dated 26.12.1991, passed in Civil Suit No. 219 of 1991 was stated to be a perfectly legal document.
9. During the pendency of Civil Suit No. 73/1998/92, Roshni Devi withdrew her suit for maintenance being Civil Suit No. 266 of 1992 on 27.3.1995.
10. Learned trial Court framed the following issued :
(2) Whether the Plaintiff is entitled to the declaration prayed for? OPP.
(3) Whether the Plaintiff is entitled to a decree for possession as claimed? OPP
(4) Whether the suit is not maintainable in the present form? OPD.
(5) Whether the Plaintiff has a cause of action? OPP.
(6) Whether the Plaintiff has the loc
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