IMPORTANT POINT
A widow loses her rights in her deceased husband's property upon remarriage, and a plaintiff must independently establish ownership and possession to succeed in a claim for injunction.

JUDGMENT :

Hon'ble Kshitij Shailendra, J.

1. Heard Shri H.N. Singh, learned Senior Counsel assisted by Shri Raghvendra Shankar Srivastava for the appellant and Shri Tripathi B.G. Bhai, learned counsel for the contesting respondents.

2. The instant second appeal has been filed by the defendants-appellants of Original Suit No. 132 of 1979 challenging the judgment and decree dated 11.10.1984, whereby the learned Special Judge, Ghazipur has set aside the trial court’s judgment dismissing the suit and has, consequently, granted a decree in favour of the plaintiff-respondent permanently restraining the defendants-appellants from causing interference in the possession of the plaintiff over the disputed portion of the land.

3. During the course of hearing, the Court found that narration of facts contained in the judgments of the trial court and the first Appellate Court, when compared to the original pleadings, was found lacking and, therefore, the Court is narrating the relevant facts after perusing the original record.

4. Since shares of the respective parties, their entitlement and divestment is the issue directly involved in the present case, it is necessary to draw a family tree of one Thanu, as pleaded in first paragraph of the plaint. It depicts as follows:

PLAINT CASE

5. As per the plaintiff Deena Nath, a partition took place amongst the aforesaid family members in or about year 1881, according to which, parties started residing as per the shares separately allotted to them. Plot No. 213, area 6 biswa, 16 dhurs, was the joint property of Baiju, Sarnaam and Tallu, recorded as such in the settlement year 1981-82. The property, on account of its location and proximity, was jointly used by all the three branches. Bhagirathia wife of Algu, after the death of Algu, resided in the house in the capacity of his widow and the plaintiff’s father took possession over the share succeeded by Bhagirathia in the disputed property, which was surrounded by a boundary wall after the death of Bhagirathia. Consolidation operations began in the village and the land covered by gatas No. 213/2 and 213/3, having been declared as Abadi, was chaked out from the consolidation operations under the order dated 12.02.1962 and it was allotted a new number 114. In paragraph No. 6 of the plaint, it was stated that Bhagirathia had started living with plaintiff’s father and, hence, the plaintiff’s father came in possession over her estate, which was succeeded by the plaintiff as owner thereof. The cause of action for filing suit was alleged on account of interference caused by defendants, i.e. Hari, Doodh Nath, Smt. Dhanauti and Ram Daras shown in the family tree, over the disputed portion described by alphabets mentioned in the prayer clause co-relating the same to the plaint map and, consequently, a decree for injunction was claimed. The plaintiff’s claim, as such, was based upon the plea that Bhagirathia started living with plaintiff’s father Hira and, hence, the plaintiff’s father and, after his death, the plaintiff became owner of the disputed land to the divestment of all the defendants.

CONTEST BY DEFENDANTS

6. A joint written statement was filed by all the defendants stating that Bhagirathia, after the death of Algu, performed second marriage with Mahadeo and out of the said wedlock, one son namely, Doodh Nath (defendant No. 2) and a daughter namely, Phulmaniya were born. Phulmaniya was married to one Aditya and had two sons, namely, Indradeo and Ram Chander. The year of marriage between Bhagirathia and Mahadeo was pleaded through amendment as 1919. The plea of partition set up by the plaintiff was admitted with further statement that certain Neem tree was purchased by Bhagirathia for a sum of Rs.32/- on 20.02.1946 in an auction held pursuant to execution proceedings. It was further pleaded that Bhagirathia was never dispossessed by the plaintiff’s side and continued to enjoy adverse possession over the estate left by her first deceased husband Algu, and settled