NAURATI DEVI ALIAS JOGINDERO Vs. MEHTAB SINGH

JUDGEMENT

(1.) The plaintiff-appellant Smt. Naurati Devi having failed in two Courts below has filed the present second appeal to impugn the verdict of these Courts against her. The suit for possession of half share in certain property was filed by the appellant on allegations which are briefly these. The property was originally held in equal shares by Kahna and Ghasitu two brothers as occupancy tenants. On the death of Kahna, his son Sadhu inherited his farther's half share. This Sadhu also died and that share then vested in his widow Shrimati Badami. In other line of descent, after the death of Ghasitu his son Kaula and on the latter's death, Kundan son of Kaula inherited the half share of the property. Kundan also died and there is no controversy to the extent that his daughter Shrimati Naurati Devi (appellant) inherited the estate. The allegation in the present suit filed by the appellant was that after the death of Sadhu, his widow Shrimati Badami had remarried with one Budhu and on account of this circumstances, she had lost her claim to the property which should vest in the appellant as the only surviving descendant of the other line. It was further alleged that the said Shrimati Badami had solds the property to Mehtab respondent No. 1. Part of the land so sold was pre-empted by Nanak respondent No. 2. The sale and the pre-emption aforesaid were also asserted to be incompetent on account of the inherent defect in the title of Shrimati Badami.

(2.) The suit was contested by the respondents and a number of issues touching upon the controversial matters were framed by the trial Court. The only two issues which have now been mooted are issues No. 1 and 7. Issue No. 1 pertains to the fact whether Shrimati Badami respondent had re-married Budhu after the death of her husband Sadhu and if so, the effect thereof. The concurrent finding of both the Courts in this matter is that no such re-marriage had been proved. The finding is based on appreciation of oral as well as documentary evidence. The only grievance of the learned counsel for the appellant in this behalf is that a copy of the written statement filed on behalf of Nanak respondent in an earlier suit filed by Shrimati Daurati Devi, ought to have been admitted in evidence. There is no justification for this contention. Both the Courts below have given cogent reasons for not allowing into evidence this document which did not see the light of the day till the stage of rebuttal to rebuttal. The onus of proving the issue having been placed on the appellate, it was her duty to produce this document at the time of leading affirmative evidence. The circumstances that the document had not even been relied upon was also validly considered while disallowing the prayer for letting in the document at that stage. Apart from this consideration, I fail to see how any admission made by the third person (Nanak respondent in this case) can be deemed to be conclusive proof of the relationship arising on account of the alleged second marriage of Shrimati Badami. Another piece of evidence to which reference is made on this matter is the copy of the judgment of the Additional District Judge, Ambala (Exhibit P.1) from which it is sought to be deduced that a finding was recorded about Shrimati Badami having re-married. A scrutiny of this document, however, negatives the contention. The only point which was considered in the said judgment is as to whether Shrimati Naurati Devi appellant was the daughter of Kundan. Though there was an issue on the question of re-marriage of Shrimati Badami, this mater was not at all touched in the judgment and merely because the suit of plaintiff in that case was decreed it cannot be presumed that a finding in regard to re-marriage of Shrimati Badami Had been recorded. In view of these facts, there is no infirmity in the findings of the Courts below on the question of re-marriage of Shrimati Badami.

(3.) The only other point which is submitted by the learned counsel for the appellant is that in the earlier suit a decree for possession of the land was passed in favour of the appellant excepting of the land was passed in favour of the appellant excepting certain Khasra Nos. which were found to have been purchased by Nanak respondent. The contention is that at least Nanak who was a party to that litigation is bound by the decision in that case on the principles of res judicate. The argument, however, loses sight of the fact that it is not Nanak respondent who had approached the Court but it is the appellant who in consequence of the decision of the Executing Court had filed the present suit with a view to re-assert her title. In such a situation, there is no option for Nanak respondent but to contest the claim. Furthermore, it is also obvious that in the present suit the parties are not litigation under the same title as in the previous suit. In the present case, Nanak respondent is alleged to have derived title by pre-empting the sale in respect of part of the land which was purchased by Mehtab from Shrimati Badami Mehtab respondent was never a party to the earlier suit. It is also not disputed that he had purchased the property before filing of the earlier suit. If the appellant desired to bini him, he should have been impleaded as a party at that time. The pre-emptory rights of Nanak flow from a source, i.e., the vendee's right of Mehtab. If the present suit cannot be barred on principles of res judiccata in so far as Mehtab respondent is concerned, I fail to see how such a bar can be invoked for Nanak. Issue No. 7 has also been correctly decided and there is no occasion to interfere with the concurrent finding of the Courts below on this issue.