Jaymaniya Dead Through Lrs Vs Bundkunwar (Died) Through His Legal Heirs

1.1 - Smt. Pushpa Sarthi W/o Radheshyam Sarthi, Aged About 40 Years R/o Mahalpara, Mouhari Baikunthpur, Tahsil Baikunthpur, District Koriya, Chhattisgarh

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...Appellant

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versus

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Bundkunwar (Died) Through His Legal Heirs 1.1 - (A) Krishna D/o Late Gariba Aged About 60 Years R/o Juna Para, Baikunthpur, District Koriya Chhattisgarh. 1.2 - (B) Bholaram S/o Late Latharam Nepali Aged About 45 Years R/o Juna Para, Baikunthpur, District Koriya (CG) 1.3 - (C) Sarita W/o Surendra Aged About 35 Years R/o Barbaspur, Tahsil Manendragarh, District Koriya Chhattisgarh. 1.4 - (D) Seeta W/o Bhikham Ram Aged About 28 Years R/o Village Chhintola, Tahsil Ambikapur, District Sarguja (CG) 1.5 - (E) Geeta W/o Chandrika Aged About 28 Years R/o Village Badgaon, Tahsil Baikunthpur, District Koriya (CG)

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State of Chhattisgarh, Through Collector Korea, Baikunthpur, Tahsil And District Korea, Chhattisgarh

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Rukhsar Ahmed S/o Late Hasan Raza, Aged About 42 Years R/o Baikunthpur, Dabaripara, Baikunthpur, P.S. And P.O. And Tahsil Baikunthpur, District Korea, Chhattisgarh

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... Respondents

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For Appellant : Mr. Rajneesh Singh Baghel, Advocate For Respondent No.1A to 1E : Mr. Arham Siddiqui, Advocate For Respondent No.2 : Mr. Kalpesh Ruparel, Panel Lawyer

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SB: Hon’ble Mr. Justice Parth Prateem Sahu

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C A V Order

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This second appeal is filed challenging legality and sustainability of the judgment and decree dated 30.11.2012 passed in Civil Appeal No.20A/2012 by learned 1^st Additional District Judge, Manendragarh at Baikunthpur, District Koriya by which judgment dated 30.4.2008 passed by learned 2^nd Civil Judge Class-1, Baikunthpur in Civil Suit No.59A/2006 is set aside and suit of plaintiff is decreed.

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Facts relevant for disposal of this appeal are that plaintiff/ original respondent No.1 filed a suit for declaration of title, declaring the plaintiff to be owner of land subject matter of suit. Further, relief of injunction is also sought against the defendants of not to interfere in peaceful possession of plaintiff over disputed land either herself or through her servant, relatives or any other representative on the ground that land mentioned in Schedule-A is ancestral property situated in village Baikunthpur. This land was self acquired property of Hiralal and Dwarika as it was allotted to Hiralal during Sarguja-Koriya Estate Settlement, who was in possession during his lifetime till 1969 when he died. After death of Hiralal, Dwarika succeeded the property of Hiralal

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and his name was recorded. Dwarika was married to one Dubobai, who lived as his wife till her death in the year 2000. Dwarika and Dubobai were not having any children. They started living with plaintiff and her daughter, who were taking care of them. Dwarika died in the year 1998. It was further pleaded that defendant No.1, who was working as servant in the house of Dwarika, was not having any relation with Dwarika. Defendant No.1 got her name mutated in revenue records in place of Dwarika without knowledge of plaintiff vide order dated 25.3.1992. Plaintiff is only successor of deceased Dwarika. He is in continuous possession of suit property and is also paying land revenue of land. Radheshyam, husband of Pushpa (daughter of sister of defendant No.1) got the Will deed executed on 25.10.2005, however, defendant’s No.1 name is recorded illegally in revenue record after death of Dwarika and therefore, she is not having any right to transfer the property by way of sale or Will in favour of others. Cause of action for filing suit is pleaded that when Radheshyam, husband of Pushpa, beneficiary of Will, started dumping bricks, stones on part of disputed land for forceful possession upon which she collected revenue records and then she came to know about illegal act of defendant No.1.

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Defendant No.1 submitted written statement to the plaint filed by plaintiff denying all adverse pleadings made therein. It was pleaded that Dwarika and plaintiff are children of Late Hiralal. She denied that Dubo was wife of Dwarika. It was pleaded that Dubo was wife of Jung Bahadur from whom she was having children. Thereafter she married with Gulam Mohammed after accepting Islam religion. It was also pleaded that defendant No.1 sold part of land bearing Khasra No.231 to one Shri D.D. Verma, vide sale deed dated 2.4.1992. Land admeasuring 1.02 decimal situated in village Mohari Baikunthpur was given to plaintiff by Late Dwarika. Defendant No.1 resided with Dwarika till his death as husband-wife. After death of Dwarika, she became lonely as she was issueless. Smt. Pushpa took care of her thereafter and out of love and affection towards Pushpa, she executed Will in her favour. Defendant No.1 has constructed a house on the part of disputed land and is residing along with Smt. Pushpa wife of Radheshyam. Plaintiff got knowledge of mutation of name of defendant No.1 in the year 1992 when she executed sale deed of part of land in favour of D.D. Verma. Suit filed by plaintiff is barred by limitation because mutation of name of Dwarika in revenue record dated 15.11.1976 was not put to challenge and subsequent mutation order dated 23.3.1992 in favour of defendant No.1 is also not challenged.

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Learned trial Court upon appreciating pleadings and evidence brought on record by respective parties, dismissed the suit recording a finding that plaintiff failed to prove that she can be declared owner of the suit property being sole legal heir and further that she is not entitled for relief of injunction. Issue No.4 framed by learned trial Court ‘whether suit filed by plaintiff was within time’ is decided in negative. Learned trial Court while deciding Issue No.4 with regard to limitation has observed in Para-10 of judgment that after death of father of plaintiff in the year 1969, name of her brother Dwarika is substituted in revenue records, at that time she did not raise any objection. It is also recorded that plaintiff was having knowledge of mutation of name of her brother Dwarika. After death of Dwarika, name of defendant No.1 was recorded/ substituted in revenue records in place of Dwarika, however, no objection was raised and suit was filed beyond limitation only in the year 2006. It was thus held that suit was filed beyond period of limitation. Learned trial Court further recorded that plaintiff denied that defendant No.1 was not the valid wife of deceased Dwarika but admitted that defendant No.1 was wife of Dwarika.

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Judgment and decree passed by learned trial Court was put to challenge in an appeal by plaintiff and learned first appellate Court allowed the appeal, declared plaintiff

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Boondkunwar to be bhumiswami of the suit land and restrained defendants from interfering with her possession. Learned first appellate Court in Para-11 of its judgment has recorded a finding that at the time of mutation of name of defendant No.1, plaintiff was not informed or noticed; plaintiff got knowledge of mutation of name of defendant No.1 from documents of revenue records which she collected, only when Radheshyam, husband of Pushpa, started dumping stone, bricks on suit land to raise construction thereon and, thus, the suit was filed within limitation.

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This second appeal is admitted for hearing on following substantial questions of law:-

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“(i) Whether the lower appellate Court while reversing the finding of the trial Court was justified in holding that original defendant- Jaymaniya was not the legally wedded wife of Dwarika?

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(ii) Whether the lower appellate Court has erred in reversing the finding of the trial Court even without reversing the finding of the trial Court with regard to issue No.4 ?”

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Let us first consider whether learned first appellate Court justified in deciding issue No.4 in favour of plaintiff, which relates to limitation, without reversing finding of learned trial Court.

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Learned first appellate Court in Para-11 of judgment has clearly held that the suit was within limitation and finding recorded by learned trial Court in this regard is erroneous and liable to be set aside. Finding recorded by learned first appellate Court on the question of limitation is upon proper appreciation of evidence available in record in particularly admission made by defendant No.1 in her evidence that at the time of mutation of her name, plaintiff was not intimated and mutation was done by joint efforts of Pushpa and her husband Radheshyam.

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Learned trial Court has taken into consideration mutation entry of the year 1976 in the name of Dwarika and date of mutation entry in the name of defendant No.1 in the year 1992, but failed to consider whether the plaintiff was having any knowledge of mutation of name of defendant No.1 or not. No specific finding is recorded as to date of knowledge of mutation of name of defendant No.1 in revenue record. In view of aforementioned facts of case, evidence available on record, in particularly statement of defendant No.1 wherein she admitted that plaintiff was not informed or given notice about application filed for mutation or proceeding initiated for mutating name of defendant No.1 in revenue records, the finding recorded by learned first appellate Court holding that finding of learned trial Court on Issue No.4 is erroneous, is

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based upon proper appreciation of facts and evidence. Learned first appellate Court has elaborately discussed the issue of limitation and arrived at a conclusion that finding of learned trial Court on the question of limitation is erroneous.

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In case of Daya Singh vs Gurudev Singh , reported in (2010) 2 SCC 194 , question for consideration was whether mere existence of an adverse entry in the revenue records had given rise to the cause of action or had it accrued when the right was infringed or threatened to be infringed, and Hon’ble Supreme Court relying upon decision in Bolo v Koklan, reported in AIR 1930 PC 270 and C. Mohammad Yunus vs Syed Unnisa, reported in AIR 1961 SC 808 has observed that cause of action, would accrue only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. Mere existence of an adverse entry in the revenue records would not give rise to cause of action. Relevant paras of the judgment are quoted below:-

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“13. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the Schedule which has prescribed the period of limitation relates to suits concerning declarations. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues.

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In support of the contention that the suit was filed within the period of limitation, the learned Senior Counsel appearing for the appellant-plaintiffs before us submitted that there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In support of this contention the learned Senior Counsel strongly relied on a decision of the Privy Council in reported in AIR 1930 PC 270 Bolo v. Koklan. In this decision Their Lordships of the Privy Council observed as follows:

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‘… There can be no ‘right to sue’ until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.’

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A similar view was reiterated in C. Mohammad Yunus v. Syed Unnissa AIR 1961 SC 808 in which this Court observed: (AIR p.810, para 7)

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‘7.… The period of six years prescribed by Article 120 has to be computed from the date when the right to sue accrues and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right.’

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In C. Mohammad Yunus, this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry in the revenue records cannot give rise to cause of action.

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Keeping these principles in mind, let us consider the admitted facts of the case. In para 16 of the plaint, it has been clearly averred that the right to sue accrued when such right was infringed by the defendants about a week back when the plaintiffs had for the first time come to know about the wrong entries in the record of rights and when the defendants had

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refused to admit the claim of the plaintiffs. Admittedly, the suit was filed on 21st of August, 1990. According to the averments made by the plaintiffs in their plaint, as noted herein above, if this statement is accepted, the question of holding that the suit was barred by limitation could not arise at all. Accordingly, we are of the view that the right to sue accrues when a clear and unequivocal threat to infringe that right by the defendants when they refused to admit the claim of the appellants, i.e. only seven days before filing of the suit. Therefore, we are of the view that within three years from the date of infringement as noted in Para 16 of the plaint, the suit was filed. Therefore, the suit which was filed for declaration on 21.8.1990, in our view, cannot be held to be barred by limitation.

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Therefore, the courts below including the High Court had proceeded entirely on a wrong footing that the cause of action arose on the date of entering into the compromise and, therefore, the suit was barred by limitation, whether or not the compromise decree was acted upon and whether delivery of possession had taken place has to be decided by the trial court before it could come to a proper conclusion that the suit was barred by limitation.”

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In case of Rajasthan High Court Advocates' Association

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vs Union of India , reported in (2001) 2 SCC 294 , Hon’ble Supreme Court has held thus:

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“17.The expression "cause of action" has acquired judicially settled meaning. In the restricted sense cause of action means the circumstances forming infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of right, but infraction coupled with right itself…..” Every fact, which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in “cause of action”. It has to be left to be

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determined in each individual case as to where cause of action arises….”

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In view of above discussed facts, in particular admission of defendant No.1 that plaintiff was not aware about mutation entries, and in light of above decisions, substantial question of law No.2 as framed in this appeal, is answered in negative.

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So for as substantial question of law No.1 as framed, is concerned, there is admission on the part of defendant No.1 that first wife of Dwarika was Dubo. Though in pleadings of written statement she stated that Dubo had married to some other person and also adopted other religion. However, there is no specific evidence as to when Dubo performed marriage with some other person. There is further admission on the part of defendant No.1 that she started living with Dwarika during lifetime of Dubo. She further admitted that prior to 2-3 years, she was not aware as to where land, subject matter of suit, is situated. Whereas, according to pleadings, Dwarika died in the year 1996.

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To submit that defendant No.1 was accepted as wife of Dwarika, learned counsel for appellant has referred evidence of plaintiff and submitted that plaintiff herself accepted defendant No.1 to be her sister-in-law (Bhabhi) i.e. wife of her brother Dwarika, therefore, learned trial Court correctly recorded finding that defendant No.1 is wife of Dwarika.

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Defendant No.1 continuously lived for long time with Dwarika and therefore there is presumption of their relationship as husband-wife.

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Admittedly, the parties to suit are followers of Hindu religion and governed by the Hindu Law. Section 5 of the Hindu Marriage Act, 1955 (for short ‘the Act of 1955’) deals with conditions for a Hindu marriage. Under Section 5 of the Act of 1955 it is clearly mentioned that a marriage may be solemnized between any two Hindus, if conditions mentioned therein are fulfilled, one of such conditions is “neither party has a spouse living at the time of the marriage”.

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In case of Krishnaveni Rai vs Pankaj Rai, reported in AIR 2020 SC 1156 , Hon’ble Supreme Court has observed as under:-

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“29. Marriage in contravention of Section 5(i) of the Hindu Marriage Act, that is, where either party or both have a spouse living at the time of marriage is void. Similarly, a marriage is void if the parties to the marriage are within the degrees of prohibited relationship unless the custom or usage governing each of them permits of such marriage, or if the parties are sapindas of each other unless, again, the custom or usage governing each of them permits marriage between the two. [Sections 5(iv) and 5(v)]”

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Recently, in Civil Appeal No.2536/2019, parties being Sukhdev Singh vs Sukhbir Kaur , decided on 12.2.2025, the Hon’ble Supreme Court observed thus:-

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A marriage is void when either of the parties to the marriage has a spouse living, and the marriage with the spouse is subsisting….”

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In case at hand, plaintiff in the plaint has clearly pleaded that her brother Dwarika was married to one Dubo. Defendant No.1 was not married to Dwarika, however, she was working in the house of Dwarika as servant and thus questioned lawful marriage of defendant No.1 with Dwarika. In para-13 of evidence, defendant No.1 admitted that Dwarika kept her during lifetime of Dubo. She did not say that Dwarika performed marriage with her. Categorical statement of defendant No.1 that Dwarika kept her during lifetime of Dubo, makes relationship of defendant No.1 with Dwarika as husband-wife, void.

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Property of a male dying intestate can be succeeded by relatives of deceased as provided under the Hindu Succession Act, 1956 (for short ‘the Act of 1956’). Devolution of interest in co-parcenary property was earlier governed by the pre-amended Section 6 under the Act of 1956. Section 8 of the Act of 1956 deals with general rules of succession in the case of males, which is extracted below:-

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“8.General rules of succession in the case of males.―The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:―

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(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

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(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

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(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

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(d) lastly, if there is no agnate, then upon the cognates of the deceased.”

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Section 10 of the Act of 1956 talks of distribution of property among heirs in class-1 of the Schedule. Widow is having share in the property of Hindu male died intestate. The expression ‘widow’ means a lady who was validly married under the provisions of the Act of 1955. If her marriage with male died intestate is void under the law, on his death she would not get status of widow under Class-1 of the Schedule of the Act of 1956. To succeed property of Hindu male died intestate as a widow under the Act of 1956, there should be a marriage of widow with male as provided under Section 5 of the Act of 1955.

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Learned trial Court has only considered that plaintiff (PW-2) in her evidence has accepted status of defendant No.1 to be her

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bhabhi (wife of her brother) and not taken into consideration admission made by defendant No.1 in her evidence that she was kept by Dwarika during lifetime of Dubo, wife of Dwarika. Learned first appellate Court in para 17, 18 & 19 of its judgment considered status of defendant No.1 as not a validly married wife of Dwarika which in the opinion of this Court cannot be said to be erroneous in view of above discussion.

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So far as decision in case of Chowdamma (supra) relied upon by learned counsel for appellant is concerned, the same being distinguishable on facts is of no help to the appellant. In that decision, in Para-6 Hon’ble Supreme Court while considering fact has observed that birth of plaintiff No.1 & 2 to first wife of Dasabovi @ Dasappa and subsequently he fell in love with defendant No.1, developed relationship with her, brought her to his house and started living with her as husband-wife. Due to bringing second wife, first wife along with her children left the company of Dasabovi @ Dasappa. Learned trial Court dismissed suit for partition filed by plaintiffs, who are children of first wife of Dasabovi. However, the High Court set aside the judgment of trial Court and decreed the suit. In said facts of case, Hon’ble Supreme Court taking note of Section 50 of the Evidence Act and its various earlier decisions has arrived at conclusion that plaintiffs have discharged the burden of proof placed upon

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them by establishing their assertion that deceased Dasabovi had a valid marital relationship with their mother and they lived as husband and wife.

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In case at hand, there is specific pleading in plaint that wife of Dwarika was Dubo; defendant No.1 started residing with Dwarika; in evidence defendant No.1 has not brought anything to show that she was validly married by Dwarika; rather she admitted that Dwarika kepther during lifetime of Dubo, wife of Dwarika. Therefore, in view of evidence available on record the onus shifted upon defendant No.1 to prove that she was validly married wife of Dwarika, in which she failed.

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In view of above discussion substantial question of law No.1 is decided in affirmative. Finding recorded by learned first appellate Court that defendant No.1 was not legally wedded wife of Late Dwarika is affirmed and maintained.

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For the foregoing reasons and discussions, both the questions of law are decided against appellants. There is no merit in this appeal and it is dismissed. No order as to costs.

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A decree be drawn-up accordingly. Record of both Courts below be sent back forthwith.

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Sd/(Parth Prateem Sahu) Judge

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roshan/-

Jaymaniya Dead Through Lrs v. Bundkunwar (Died) Through His Legal Heirs

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Jaymaniya Dead Through Lrs v. Bundkunwar (Died) Through His Legal Heirs

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