SARWAN SINGH Vs. JAGIR KAUR

JUDGEMENT

(1.) This is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code'), challenging concurrent findings of fact recorded by both the Courts below holding that the plaintiff-respondent who is wife of defendant-respondent 2 Bhajan Singh is entitled to recover Rs. 4000/- as arrears of maintenance from 1-9-1994 to 28-2-1995 @ Rs. 800/- per month with proportionate costs. The suit of plaintiff-respondent No. 1 has also been decreed for declaration to the effect that from March 1995 onwards she is entitled to get maintenance @ Rs. 800/- per month from her husband. The amount of maintenance paid to her during pendency of the suit, on the basis of interim order is required to be adjusted and charge in respect of maintenance awarded to her has been created upon the land, fully described in the head note of the plaint. The suit with respect to setting aside the decree dated 12-11-1994 in case titled as Swaran Singh v. Bhajan Singh has been dismissed. Brief facts :Jagir Kaur plaintiff-respondent 1 and Bhajan Singh defendant-respondent 2 got married on 10-4-1992. She started living with her husband at her in- laws' house. But this happy arrangement did not last long. On account of strained relationship between plaintiff-respondent 1 and defendant-respondent 2, Jagir Kaur started living separately in a portion of the same house. It is pertinent to point out that brother of defendant-respondent 2 filed a civil suit No. 250 of 1994 on 22-9-1994 titled as Swaran Singh v. Bhajan Singh, which was decreed on 12-11-1994 on the basis of admissions made by defendant-respondent 2. The claim made by Swaran Singh in the suit was that he is owner in possession of the land in dispute. He has claimed that the payment of installments even in respect of share of Bhajan Singh in the land in dispute, used to be made by him. A compromise was alleged to have been effected and a decree dated 12-11-1994 was passed by the Lok Adalat granting declaration in favour of Swaran Singh defendant-appellant. Plaintiff- respondent 1 Jagir Kaur levelled numerous allegations against the members of her husband's family as well as her husband in the civil suit No. 273 filed on 24-3-1995. She also claimed arrears of maintenance amounting to Rs. 6000/- and future maintenance @ Rs. 1000/- per month. She further claimed that maintenance amount be created as charge on the land in dispute by impleading the defendant-appellant as a party to the suit. The decree dated 12-11-1994 has also been challenged by the plaintiff-respondent by alleging that it had been deliberately suffered by her husband defendant-respondent 2 in favour of defendant- appellant in order to defeat her legitimate right to claim maintenance. The trial Court accepted the claim of plaintiff-respondent 1 and held her entitled to recover a sum of Rs. 4000/- as arrears of maintenance. A declaration has also been granted in her favour to the effect that she is entitled to maintenance @ 800/- per month from her husband Bhajan Singh defendant-respondent 2 and a charge of maintenance was created on the land in dispute in respect of which decree dated 12-11-1994 was suffered by her husband defendant-respondent 2 in favour of the defendant-appellant.

(2.) The view of the trial Court was challenged by the defendant-appellant as well as plaintiff-respondent 1. Both the appeals have been dismissed by the Lower Appellate Court by a common judgment and decree dated 25-3-2002. On the issue whether the judgment and decree dated 12-11-1994 was obtained by the defendant-appellant in collusion with defendant respondent 2 in order to defeat the rights of plaintiff-respondent 1, the Lower Appellate Court has held as under :

(3.) Learned Lower Appellate Court further held that the plaintiff-respondent 1 is entitled to create a charge on the land in dispute because defendant-appellant had knowledge of her claim of maintenance against defendant-respondent 2 her husband. The view of the learned Lower Appellate Court in that regard reads as under: "18. Plaintiff as wife of defendant No. 1 had no right or title in the suit land, during his life time. However, her maintenance could have been made a charge on that land by virtue of Section 27 of the Hindu Adoptions and Maintenance Act, 1956. According to Section 28 of that Act, right to receive maintenance by the plaintiff can be enforced against defendant No. 2 if it is proved on the record that at the time of decree regarding the suit land was passed in his favour, he had notice of the right of the plaintiff or if the transfer in his favour was gratuitous. Therefore, the plaintiff has locus standi to file the suit that her right of maintenance is to be created a charge on the land in dispute, which was owned by her husband, but she had got no locus standi to get the decree, dated 12-11-1994 set aside and this point is accordingly decided against her."