JAI WANTI Vs. BARU RAM

JUDGEMENT

(1.) THE suit was filed for declaration and recovery of possession of property by the plaintiffs claiming as widow, son and daughter of Amolak Ram. The property was admittedly in the possession of the defendants, who claimed that despite a sale deed standing in the name of the 1st plaintiff, they had been in possession of the property under an oral sale from Amolak Ram and that they had prescribed the title of the property by adverse possession. The defendants had also contended that the plaintiffs were not the legal heirs of Amolak Ram to stake a claim to the properties. The trial Court and the Appellate Court found that the oral sale as pleaded by the defendants was not true and that further the defendants had also not prescribed title of the property by adverse possession. The suit, however, came to be dismissed only on a finding that the relationship of the plaintiffs as widow and children of Amolak Ram had not been established. The grievance of the appellants was that there had been substantial evidence relating to the joint living of the 1st plaintiff and Amolak Ram for several number of years and the treatment of the society of the couple as husband and wife. The 1st plaintiffs brother had been examined as PW -2 and the paternal uncle had been examined as PW -3. Both of whom spoke from the personal knowledge that they had known the 1st plaintiff and the Amolak Ram as husband and wife and that they had been living together. The plaintiffs also relied on an admission by the defendant himself that Amolak Ram had gone away from his native village at Gharaunda and was living at Jagadhari in his father -in -law Kishan Lal's house. The 1st plaintiffs father's name was admittedly Kishan Lal. The plaintiffs would, therefore, rely on this as an admission though in a way haltingly that the 1st plaintiff's relationship to Amolak Singh had been established. The evidence, however, was not believed on an important omission which the Court below had pointed out that the 1st plaintiff had herself not examined and only the 2nd plaintiff, who claimed to be the son had been examined. He produced a degree certificate from Kurukshetra University describing him as the son of Amolak Ram but the Court rejected this document as not worthy of acceptance.

(2.) THOUGH I may note that non -examination of the 1st plaintiff could be vital in a situation when there was no direct evidence available on the ceremony of marriage, in this case, there was voluminous evidence which had been placed before Court for eliciting the relationship of the 1st plaintiff with Amolak Ram and that plaintiffs No. 2 and 3 were their children. The University degree certificate of the 2nd plaintiff was also an important document of proof relating to the relationship of the 1st plaintiff with Amolak Ram. The evidence of PW -2 and PW -3 also could not have been merely discarded, who had spoken about the long relationship of the 1st plaintiff with Amolak Ram. The brother of the 1st plaintiff was most competent to speak about his sister's marriage. There is a presumption of lawful marriage by long cohabitation and the law frowns upon inference of illegitimacy of children born to a man through a woman through long relationship. In Gokai Chand Vs. Parvin Kumari : AIR 1952 SC 231, the Supreme Court held that continuous long cohabitation of man and woman as husband and wife itself raised a presumption under Section 114 of the Evidence Act. In Challama Vs. Tilaga and others : 2009 (9) SCC 299, the presumption of marriage was raised in succession proceedings. The defendants' admission that Amolak Ram had been living away at Jagadhari in his father -in -law's place was material, for it was too much of a co -incidence, if not for truth, that the 1st plaintiffs father's name was also Kishan Lal. Though on an issue of fact normally the High Court will not interfere, I find that the Court has completely discarded the most valuable evidence which were placed before the Court and also failed to draw an important legal inference which the law enjoined that a Court should apply in case of long cohabitation between a man and woman and the manner in which the society treated such a couple that there arose an imperative to presume a lawful marriage. The decisions of the Court below are set aside and the plaintiffs' claim to title of the property as legal heir of Amolak Ram is upheld. The second appeal is allowed with costs throughout.