TULSA Vs. DURGHATIYA

JUDGEMENT

(1.) Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Madhya Pradesh High Court at Jabalpur. The appeal under Section 100 of the Code of Civil Procedure, 1908 (in short the "Code") was directed against the judgment and decree dated 29.10.1988 passed by learned IInd Additional District Judge, Satna in Civil appeal No. 138-A of 1987. The appeal before the First appellate court was directed against the judgment and decree dated 26.4.1985 passed by learned Second Civil Judge Class I, Satna in Civil Suit No. 52- A of 1982. The suit was filed by the respondents herein for nullifying and setting aside sale deed dated 10.9.1980 and also for permanent injunction of land at Sl. Nos. 4009, 4010, 4011 and 4014. The sale deed dated 10.9.1980 was in respect of lands at Sl. Nos. 3853, 3993, 4002, 4003, 4004, 4009. 4010, 4014, 4015 and 4021 of Mauza Nayagaon, Tehsil Raghurajnagar, District Satna. According to them the disputed property is the joint ancestral property of Radhika Singh, Sunder Singh and the husband of plaintiff No.1, Dadau Singh who was the father of the other two plaintiffs - Smt. Rani and Smt. Butan. Vansh Gopal had three sons, Radhika Singh, Sunder Singh and Dadau Singh. Sunder died without any legal heir. No partition had taken place between Radhika and Sunder and Radhika, Sunder and Dadau all used to do cultivation jointly. As Radhika and Sunder died without leaving legal heirs, the plaintiffs became the sole owners of the property. Loli, the original defendant No.1 is the wife of Mangal Kachhi and his daughter Tulsa Bai, the present appellant was born to Loli and Mangal Kachhi. After the birth of her daughter Tulsabai, deceased Radhika Singh, kept defendant No.1 as a mistress in his house and left for somewhere else taking her along and came back after many years. She gave birth to three daughters namely Vidya, Badaniya and Rajaniya. Defendant No.1 was a Kachhia by caste and was also the cognitive of deceased Radhika, so she had no legal rights in the property. After the death of Radhika, Defendant No.1 was residing with Badri Prasad Pandey. Badri Prasad got sale deed executed in favour of defendant No.1 of disputed property with intention to usurping the land. Plaintiffs are in possession. They came to know about the transaction when defendant Nos.2 to 4 submitted an application for transfer of land in their names and then it came to light that defendant No.1 had no title over the land and the land was in possession of plaintiffs 1 to 3. On 17.12.1984 plaintiffs got the information that the defendant Nos.2 and 3 have got their names mutated in respect of certain lands, therefore the suit was filed. In the written statement filed the defendants took the stand that the family tree indicated by the plaintiff was correct. Out of the land 12 acres owned by the family of Durghatiya, the plaintiff No.1 had sold her share of land. About 30 years back partition has taken place between Dadau and Sunder. Dadau had separated after taking his share. He got the land in certain villages. Radhika and Sunder used to live jointly and used to do cultivation over the land which they got in partition. They died while living jointly in the year 1970. Plaintiff-Durghatia and Radhika had sold their land in the capacity of owners during their lifetime. Sunder did not marry and had no issue. Defendant No.1 is the widow of Radhika. They were blessed with five daughters and one son, out of which one son and one daughter died. The eldest daughter Tulsa and the younger daughter were given in marriage by Radhika. Plaintiff No.1 used to regard defendant No.1 as her jethani. Radhika and defendant No.1 lived together for thirty years as husband and wife and, therefore, she had legitimate claim over the property as his wife. It was also disputed that defendant No.1 was living with defendant Nos.2 to 5. Defendant No.1 had sold the lands to defendant Nos.2, 3 and 4 had also given possession. Defendant No.1 had taken a debt on the marriage of her son and for that purpose she sold the land. She claimed that she had right to sell the land and therefore no question of having any illegal possession. Four issues were framed by the trial court and the important and vital issue was framed as issue No.2 which read as follows :

(2.) As noted above, the first appellate court allowed the appeal. The trial court noted that there was a presumption of valid marriage, as for decades Radhika and plaintiff No.1 lived together, their daughters were given in marriage by Radhika. Loli the defendant No.1 was earlier married to Mangala Kochhi and after his death she married Radhika. It is to be noted that the stand of the plaintiffs was that Loli married Radhika during the lifetime of Mangal Katchhi. The trial court rejected this plea. The first appellate court observed that Loli started living with Radhika during the life time of Mangal Katchhi, so the presumption of valid marriage was not there. The judgment and decree of the first appellate court was challenged before the High Court. The High Court formulated the following questions for adjudication:

(3.) After discussing the respective stand of the parties, the High Court came to a somewhat peculiar finding. It held that the findings recorded by the appellate court may be erroneous, but it does not appear to be perverse.