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IN THE HIGH COURT OF MADHYA PRADESH
G.S. Ahluwalia, J.
Dwarika Prasad Patel v. Smt. Marri
Second Appeal No. 466 of 2007 (Jabalpur): against the judgment and decree dated 3.3.2007 passed by the II Additional District Judge (Fast Track Court), Maihar, District Satna in Civil Appeal No. 9A/2006; Decided on 7.2.2023
¼1½ lk{; vfèkfu;e] 1872 && vk- 41 fu- 27 [kaM ¼d½ rFkk ¼d&d½ && f}rh; vihy esa vfrfjä lk{; && xzkárk && Òj.k&i¨"k.k vkns'k dh çfrfyfi çLrqr djuk pkgk x;k && eqdnesckt d¨ vfÒokd~ djuk rFkk lkfcr djuk g¨rk gS fd lE;d~ rRijrk d¢ ckotwn nLrkost mlds dCts esa ugÈ Fkk && bl lacaèk esa ,d 'kCn Òh ugÈ && Òj.k&i¨"k.k ds çdj.k esa vihykFkÊ Lo;a i{kdkj Fkk && Òj.k& i¨"k.k d¢ vkns'k dh çfrfyfi vfHkys[k ij ysus d¢ fy, vPNk vkèkkj crkus esa vlQy jgk && vkosnu [kkfjtA ¼2014½ 13 ,l lh lh 468 rFkk ¼2012½ 8 ,l lh lh 148 vuqlfjrA ¼iSjk 11 ls 14
¼2½ fganw mÙkjkfèkdkj vfèkfu;e] 1956 && èkkjk 14 ¼1½ && ykxw g¨uk && laifÙk esa efgyk dk vfèkdkj && oknh&çfroknh dk ifr&iRuh dk lacaèk vfookfnr && çfroknh ifr us çFke fookg ds vfLrRo d¢ n©jku nwljk fookg dj fy;k && oknh iRuh d¨ mld¢ nkaiR;x`g ls fudky fn;k && çfroknh ifr }kjk laikfnr djkj }kjk iRuh d¨ mld¢ Òj.k&i¨"k.k ds fy, Òwfe nh xà && dCtk Òh fn;k x;k
&& ;g vfÒokd~ fd;k x;k v©j lk{; }kjk lkfcr fd;k x;k && mld¢ vFkkZr~ fganw efgyk }kjk èkkfjr Òwfe] pkgs vfèkfu;e d¢ ço`Ùk g¨us d¢ iwoZ vftZr dh xà g¨ ;k i'pkr~ mld¢ }kjk iw.kZ Lokeh ds :i esa èkkfjr g¨xh] lhfer Lokeh d¢ :i esa ugha && èkkjk 14 ¼1½ ykxw g¨xh && èkkjk 14 ¼1½ d¢ çÒko ls oknh mldh iw.kZ Lokeh g¨ xÃ] lhfer Lokeh ughaA ¼1977½ 3 ,l lh lh 99 vuqlfjr ¼iSjk 19 ls 28
¼3½ djkj &&jftLVaªhdj.k dh vis{kk && djkj }kjk iRuh d¨ mld¢ Òj.k&i¨"k.k ds fy, Òwfe nh xà && dCtk Òh fn;k x;k && ;g vfÒokd~ fd;k x;k v©j lk{; }kjk lkfcr fd;k x;k && og laifÙk dh iw.kZ Lokeh g¨ xà && ,sls djkj dk jftLVaªhdj.k visf{kr ugÈA ¼iSjk 24 ls 29
¼4½ jftLVªhdj.k vfèkfu;e] 1908 && èkkjk 17 && djkj dk jftLVªahdj.k && djkj }kjk iRuh d¢ Òj.k&i¨"k.k d¢ fy, Òwfe nh xà && dCtk Òh fn;k x;k && ;g vfÒokd~ fd;k x;k v©j lk{; }kjk lkfcr fd;k x;k && og laifÙk dh iw.kZ Lokeh g¨ xà && ,sls djkj dk jftLVaªhdj.k visf{kr ugÈA ¼iSjk 24 ls 29
¼5½ ifjlhek vfèkfu;e] 1963 && vuq-154 && lafonk d¢ fofufnZ"V vuqikyu ds fy, okn && ifjlhek dk ç'u && djkj dk fnukad 23-6-1981 && okn 10-7-1997 d¨ çLrqr && lafonk d¢ fofufnZ"V vuqikyu d¢ fy, okn dk 'kh"kZd fn;k x;k ijarq vuqrks"k [kaM esa çkFkZuk dh xà fd oknh d¨ ÒwfeLokeh Ĩf"kr fd;k tk, && ;g Hkh Ĩf"kr fd;k tk, fd og vius thoudky esa laifÙk dk miÒ¨x djus dh gdnkj gS && LFkk;h O;kns'k pkgk x;k && ;g ugÈ dgk tk ldrk fd okn lafonk d¢ fofufnZ"V vuqikyu d¢ fy, Fkk && ifjlhek dk ç'u mRiUu ugÈ g¨rkA ¼iSjk 30 ,oa 31
¼6½ çfrdwy dCtk && vis{kk && çfrdwy dCts dk nkok djus ds fy, çfroknh d¨ okLrfod Lokeh dk LokfeRo Lohdkj djuk vko';d && okLrfod Lokeh dk LokfeRo Lohdkj fd, fcuk çfroknh nkok ugÈ dj ldrk fd okLrfod Lokeh d¢ fo#) mldk gd ifjiw.kZ g¨ x;kA ¼iSjk 33
¼7½ naM çfØ;k lafgrk] 1973 && èkkjk 125 && Òj.k&i¨"k.k && ,slh d¨Ã fofèk ugÈ fd iRuh fofèk d¢ ,d micaèk d¢ vèkhu Òj.k&i¨"k.k çkIr dj jgh gS rks og fofèk d¢ fdlh vU; micaèk ds vèkhu Òj.k&i¨"k.k dh jkf'k fcYdqy Hkh çkIr ugÈ dj ldrhA ¼2021½ 2 ,l lh lh 324 fufnZ"VA ¼iSjk 37
(1) Evidence Act, 1872 -- O. 41, R. 27 Cl. (a) and (aa) -- additional evidence in second appeal -- admissibility -- copy of order of maintenance sought to be filed -- litigant has to plead and prove that inspite of due diligence, document was not in his possession -- not a single whisper in that regard -- appellant himself was party in proceeding of maintenance case -- failed to make out good ground for taking copy of order of maintenance on record -- application rejected. (2014) 13 SCC 468 and (2012) 8 SCC 148 followed.
[Paras 17 to 21
(2) Hindu Succession Act, 1956 -- S. 14 (1) -- applicability -- right of female in property -- relationship of husband and wife between plaintiff and defendant undisputed -- defendant husband performed second marriage during subsistence of first marriage -- plaintiff wife turned out of her matrimonial house -- by agreement executed by defendant husband, land given to wife for her maintenance -- possession also given -- same pleaded and proved by evidence -- land held by her, i.e., female Hindu, whether acquired before or after commencement of Act, shall be held by her as full owner and not as limited owner -- section 14 (1) would apply -- by virtue of section 14 (1), plaintiff became full owner thereof and not limited owner. (1977) 3 SCC 99 followed. [Paras 19 to 28
(3) Agreement -- requirement of registration -- land given by agreement to wife for her maintenance -- possession also given -- same pleaded and proved by evidence -- she become full owner of property -- registration of such agreement not required.
[Paras 24 to 29
(4) Registration Act, 1908 -- S. 17 -- registration of agreement -- land given to wife by agreement for her maintenance -- possession also given -- same pleaded and proved by evidence -- she became full owner of property -- registration of such agreement not required. [Paras 24 to 29
(5) Limitation Act, 1963 -- Art. 154 -- suit for specific performance of contract -- question of limitation -- agreement dated 23.6.1981 -- suit filed on 10.7.1997 -- titled as suit for specific performance of contract but prayer in relief clause that plaintiff be declared Bhumiswami -- also be declared that she is entitled to enjoy property during her lifetime -- permanent injunction sought -- it cannot be said that suit was for specific performance of contract -- question of limitation does not arise. [Paras 30 & 31
(6) Adverse Possession -- requirement -- to claim adverse possession, it is necessary for defendant to accept ownership of true owner -- without accepting ownership of true owner, defendant cannot claim that he had perfected his title against true owner. [Para 33
(7) Criminal P. C., 1973 -- S. 125 -- maintenance -- there is no law that if wife is getting maintenance under one provision of law, she cannot get maintenance amount at all under another provision of law. (2021) 2 SCC 324 referred to. [Para 37
JUDGMENT
1. This second appeal under section 100 CPC has been filed against the judgment and decree dated 3.3.2007 passed by Second Additional District Judge (Fast Track Court) Maihar, District Satna in civil Appeal No.9A/2006 thereby reversing the judgment and decree dated 29.1.2005 passed by Civil Judge Class-1 Maihar, District Satna in Civil Suit No.55A/1997.
2. The appellant is the defendant, who lost his case before the First Appellate Court.
3. The facts necessary for disposal of the present appeal in short are that the plaintiff and the appellant are husband and wife. The plaintiff as well as defendant were blessed with one daughter Ramkumari and thereafter, he turned the plaintiff out of his house alongwith his daughter and kept another lady. Accordingly, the plaintiff came back to the house of her father. A social meeting was convened and accordingly, the defendant gave the disputed land to the plaintiff for her maintenance during her lifetime and it was also mentioned in the said document that after her death, the successor of the plaintiff would inherit the property. It is further alleged that on 27.2.1997 the defendant and his second wife Rampatiya trespassed in the house at about 12 in the night and took away the agreement which was kept in the box as well the gold and silver ornaments and an amount of Rs.1400/-. The report of the said incident was lodged by the plaintiff in Police Station Maihar on 28.2.1997 but no action was taken. It was pleaded that the defendant has taken away the original agreement ascertaining that he would forcefully take the possession of the land in dispute and would burn the original agreement and thus, the suit was filed for declaration of title and for a declaration that the plaintiff is entitled to use the said land for maintenance purposes as well as for permanent injunction thereby restraining the defendant from interfering with the peaceful possession of the plaintiff either by himself, through his agents or servants.
4. The defendant/appellant filed his written statement and admitted that the plaintiff is his legally wedded wife. It was claimed that the land in dispute i.e. Araji Nos.198, 898/1, 867/1d situated in Village Katiakhurd and khasra No.898 area 7 bigha (15 decimal) situated in Kanchanpur belong to the defendant. It was admitted that one daughter Ramkumari was born out of the wedlock of the plaintiff and defendant. It was also admitted that the defendant has kept another lady Rampatiya and married her in the year 1975-76. However, it was denied that after keeping the second lady the plaintiff was turned out of the house. It was also denied that any social meeting was convened and the defendant had executed an agreement and also denied that the possession of the said land was given. Since the defendant has married another lady with the consent of the plaintiff, therefore the plaintiff and Rampatiya were residing in the same house. It was also denied that on 27.2.1997 the defendant and his second wife forcefully took away the agreement. On the contrary, it was pleaded that from the last 4-5 years the plaintiff was having ill will towards the second wife and therefore, the defendant was giving 6 khandi of rice (1khandi = 6 kgs), 6 khandi of wheat apart from groceries, vegetables and also gave 2-3 rooms for her residence. Accordingly, it was prayed that the suit filed by the plaintiff be dismissed.
5. The trial Court after framing issues and recording evidence dismissed the suit on the ground that the agreement is not a registered document. It was held that although the execution of the agreement is proved but the possession of the land in dispute was never given to the plaintiff. It was further held that the suit is barred by time.
6. Being aggrieved by the judgment and decree passed by the trial Court, the plaintiff/respondent preferred an appeal which has been allowed by the First Appellate Court by the impugned judgment and decree.
7. Challenging the judgment and decree passe
Second appeals under CPC S.100 do not permit re-appreciation of evidence; concurrent findings upheld absent perversity or substantial question of law. Adverse possession claim fails without rebutting....
Mere possession for a long time does not convert permissive possession into adverse possession. The burden of proof rests on the party claiming adverse possession, and unregistered documents may not ....
The main legal point established in the judgment is the importance of considering material aspects and appreciating the findings of the trial court in property dispute cases.
A second appeal under the Code of Civil Procedure is restricted to substantial questions of law. Appellate courts cannot reappreciate evidence or substitute factual findings unless the lower court's ....
Point of law - The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i....
Adverse Possession – When a possession is sought on the ground of Sada-deed of Dar Raiyat, law of adverse possession is not available.
The judgment emphasizes the importance of proving adoption as per the provisions of the Hindu Adoption and Maintenance Act 1956 and the necessity of formulating substantial questions of law at the ti....
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