Point of Law : Plaint was clearly deficient in culling out requisite pleadings in accordance with law.

JUDGMENT :

SATYEN VAIDYA, J.

1. By way of this second appeal, appellant has assailed judgment and decree dated 26.11.2008 passed by learned District Judge, Kinnaur, Civil Division at Rampur Bushehr, H.P. in Civil Appeal No. 30 of 2008 whereby the judgment and decree dated 07.06.2008 passed by learned Civil Judge (Sr. Division), Rampur Bushehr, District Shimla in Case No. 15-1 of 2005 was affirmed.

2. Appellant was the plaintiff and respondents were defendants before the learned trial Court. The parties hereinafter shall be referred to by the status which they held before the learned trial Court.

3. Brief facts necessary for adjudication of appeal are that plaintiff and defendant No. 1 were married to each. Plaintiff claims that by a customary divorce, their marriage stood dissolved, whereas defendant No. 1 denies the factum of divorce and claims that her marriage with plaintiff still subsists. The status of defendant No. 2 as son of plaintiff is admitted.

4. Plaintiff filed a suit against defendants for possession of premises consisting of one room, one bathroom and W.C. in the house constructed over the land comprised in Khata Khatauni No. 63/131, Khasra No. 1207/331, measuring 0-01- 66 hectares, situate at Chak Khaneri, Tehsil Rampur, District Shimla, H.P. (hereinafter referred to as the ‘suit premises’).

5. Cause of action as pleaded by the plaintiff was that the defendants had forcibly taken possession of suit premises on 13.03.2005. They were ousted by the plaintiff on 14.3.2005 but they again occupied the said premises. As per plaintiff, after his customary divorce with defendant No. 1 she had no right, title or interest in the property exclusively owned by him.

6. Per contra, the suit was contested by the defendants by raising preliminary objections regarding maintainability and under valuation of suit. On merits, the factum of customary divorce was denied. It was asserted that defendant No. 1 was legally wedded wife of plaintiff. It was the plaintiff, who had deserted defendant No. 1 and her children. A daughter was also stated to be born to defendant No. 1 from the loins of the plaintiff. It was submitted that the plaintiff had married another lady and was living with her. Plaintiff had a son from that other lady. Defendant No. 1 alongwith defendant No. 2 and her daughter had been residing in ancestral house of plaintiff, but the same collapsed due to rain and snow. Thereafter, they were provided shelter by Sh. Chhering Ram. Plaintiff did not take pains to enquire about the well-being of the defendants and minor daughter. Since the defendants had no other shelter, they had every right to live with plaintiff. As per the defendants, they were ready and willing to live in the company of the plaintiff.

7. On the basis of pleadings of the parties, learned trial Court framed the following issues:

1. Whether relations inter-se the plaintiff and defendant No. 1 as husband and wife have come to an end in pursuance of a customary divorce, as alleged? OPP

2. Whether the defendants have forcibly occupied the premises in question, as alleged? OPP

3. If issue No. 2 is proved in affirmative, whether the plaintiff is entitled to a decree of possession of the suit premises, as alleged? OPP

4. Whether suit is not properly valued for Court fee and jurisdiction, if so, what is its correct valuation, as alleged? OPD

5. Whether the suit is not maintainable? OPD

6. Relief.

Issues No. 1 to 5 were decided in negative and accordingly the suit of the plaintiff was dismissed.

8. Plaintiff assailed the judgment and decree passed by learned trial Court in first appeal, but again remained unsuccessful. Hence, the present appeal.

9. Appeal was admitted on 22.10.2011 on the following substantial questions of law:

1. Whether the judgment/decree dated 26.11.2008 passed by the Court below is perverse, as findings are contrary to pleadings, as relevant material having been ignored and irrelevant material have been taken into consideration and thus findings are contrary to