1 S.A No.440/1996 HIGH COURT OF MADHYA PRADESH AT JABALPUR SECOND APPEAL NO.440/1996 APPELLANT : JAGDISH PRASAD Vs. RESPONDENTS : KANHAIYALAL @ KANDHAI AND OTHERS. Present : Hon'ble Shri Justice R.S. Jha. For the appellant : Shri Ravish Agrawal, Senior Counsel with Shri Abhishek Singh, Advocate. For the respondents : Shri N. S. Ruprah, Advocate. --------------------------------------------------------------------------------------
JUDGMENT(02/04/2013) The appellant has filed this appeal being aggrieved by the judgment and decree dated 2.4.1996 passed by the District Judge, Panna in Civil Appeal No.19-A/86 affirming and confirming the judgment and decree dated 24.10.1986 passed by the Civil Judge Class-I, Panna in Civil Suit No.1- A/79-85 thereby dismissing the suit of the appellant claiming a decree for declaration as owner in possession of house No.53/6 situated in Mohalla Raniganj, Panna as well as for a permanent injunction prohibiting the respondents from demolishing the wall of his house.
2. The brief facts, leading to the filing of the present appeal, are that the house in question initially belonged to Gokul Prasad who had two sons, Narmada Prasad and the original respondent Kanhaiyalal @ Kandhai. The original 2 S.A No.440/1996 plaintiff Gulab Dulaiya was the wife of Narmada Prasad who died on 15.3.1949. The suit was filed by the original plaintiff Gulab Dulaiya on 26.6.1979 alleging that she was in possession of and is residing in House No.53/6, Mohalla Raniganj, Panna since the death of her husband but when she approached the local Municipal Authorities for sanction of the map as well as for a water connection in the year 1979, she came to knot that the house was recorded in the name of the original defendant Kanhaiyalal pursuant to which she raised an objection on which a notice was issued to Kanhaiyalal and thereafter the Municipal Authorities dropped the proceedings by permitting the plaintiff to get her rights decided by the competent civil court. It was alleged that subsequent to the aforesaid decision of the Municipal Council, Gulab Dulaiya issued a notice to the original defendant Kanhaiyalal on 3.4.1979 which was replied to on 16.5.1979 denying the claim of Gulab Dulaiya which led to filing of the suit on 26.6.1979. The claim of the original plaintiff Gulab Dulaiya was based on the contention that the property of late Gokul Prasad, who had two sons, her late husband Narmada Prasad and Kanhaiyalal, was divided between them through a regular partition and House No.53/6 fell in the share of Narmada Prasad. It was contended that since the very beginning Gulab Dulaiya was residing in House No.53/6 3 S.A No.440/1996 Mohalla Raniganj, Panna and continued to do so even after the death of her husband Narmada Prasad on 5.3.1949. It was alleged that the original defendant Kanhaiyalal tried to break an opening in the partition wall between the two properties and install a door/window in the same which led to a dispute between the parties and filing of the suit on 26.6.1979. The suit was vehemently opposed by Kanhaiyalal who alleged that Gulab Dulaiya had become unchaste during the life time of Narmada Prasad and continued to remain so even after his death as a result of which one son Jagdish, the present appellant, was born in 1957 and on that count Gulab Dulaiya had been thrown out of the house after the death of Narmada Prasad and had lost all rights in the property and that Kanhaiyalal had become the sole owner. The present appellant is the son born to Gulab Dulaiya in the year 1957 who was brought on record as the legal representatives on the strength of a Will executed by Gulab Dulaiya. The present respondent nos.1(a) to (g) are the legal representatives of the original defendant Kanhaiyalal who died during the pendency of the appeal. The suit, as filed by Gulab Dulaiya, was initially dismissed on 11.7.1983 against which an appeal was filed by her and by judgment dated 23.12.1985 the matter was remanded back to the trial court. Pursuant to the remand, the suit was again decided and dismissed by judgment and 4 S.A No.440/1996 decree dated 24.10.1986 and the First Appeal, filed against the said judgment and decree, has also been dismissed by the impugned judgment dated 2.4.1996, being aggrieved by which the appellant has filed the present appeal before this Court.
3. This Second Appeal was admitted by this Court on the following substantial questions of law:-
“1. Whether on the facts and in the circumstances of the case, the Courts below were justified in holding that after the death of one coparcener, the sole surviving coparcener would become absolute owner of the joint hindu family property and the widow of deceased coparcener shall not have any right in the property even after the enforcement of the Hindu Women Rights Property Act, 1937 ?.
2. Whether the finding that deceased Gulab Dulaiya had become unchaste during the life time of her husband is perverse and contrary to record as according to Ex.P/2, she had become unchaste after the death of the husband ?.
3. Whether the findings that no partition was effected between Kanhaiyalal and Narbada Prasad is contrary to record and is vitiated because of non-consideration of Ex.C/1-A ?.
4. Whether, the finding recorded by the Courts below that the suit filed by the appellant was barred by limitation is perverse ?.”.
4. The learned Senior Counsel for the appellant submits that Gulab Dulaiya acquired rights in the property of 5 S.A No.440/1996 Narmada Prasad on his death on 15.3.1949 which got crystallized in view of the provisions of the Hindu Women's Rights to Property Act, 1937 (hereinafter referred to as 'the Property Act') and the Hindu Succession Act of 1956 (hereinafter referred to as 'the Succession Act') and in such circumstances the claim made by her in the suit could not have been dismissed by the courts below by ignoring the aforesaid aspect.
5. It is further submitted that the respondents/defendants, in the initial written statement filed by them, did not make any statement regarding the unchastity of Gulab Dulaiya during the life time and at the time of the death of her husband Narmada Prasad. It is submitted that the written statement was amended for the first time on 12.3.1981 and a plea that the original plaintiff Gulab Dulaiya was unchaste during the life time of her husband, was added by way of amendment. It is submitted that this fact assumes importance in view of document Exhibit P-2, filed by the appellant, which is the reply to the notice issued by the appellant to the respondent Kanhaiyalal dated 16.5.1979 in which he has stated that Gulab Dulaiya had become unchaste after the death of her husband and that he came to knot about this fact, for the first time, when he came to knot that she was carrying a child 6 to 7 years after the death of her husband Narmada Prasad. It is submitted that 6 S.A No.440/1996 in Exhibit P-2 the respondent defendant Kanhaiyalal had also stated that Gulab Dulaiya had limited rights in the property which ceased to exist on her becoming unchaste.
6. It is submitted by the learned Senior Counsel for the appellant that the subsequent amendment in the written statement, the reply to the notice given by Kanhaiyalal vide Exhibit P-2 and para-9 of the written statement make it abundantly clear that the plea of unchastity of Gulab Dulaiya, the original plaintiff, during the life time of her husband Narmada Prasad is an after thought and was only taken up to defeat the claim of Gulab Dulaiya. It is submitted that in view of the specific and clear statement of Kanhaiyalal in Exhibit P-2, which has totally been ignored and not considered by any of the courts below, the findings regarding unchastity recorded by the courts below is perverse and contrary to the evidence on record.
7. The learned Senior Counsel for the appellant has submitted that the document Exhibit P-2 is a piece of substantive evidence against the defendant and even if he was not confronted with the same during his oral evidence, it is a conclusive evidence and admission of the fact that the deceased plaintiff Gulab Dulaiya was not unchaste during the life time of her husband and for that purpose the learned Senior Counsel for the appellant has relied upon the decision 7 S.A No.440/1996 of the Supreme Court rendered in the cases of Bharat Singh and Others vs. Mst. Bhagirathi, AIR 196.SC 405.Biswanth Prasad and Others vs. Dwarka Prasad and Others, AIR 197.SC 117.Union of India vs. Moksh Builders and Financiers Ltd. and others, AIR 197.SC 409.and Thiru John and Others vs. The Returning Officer and Others, AIR 197.SC 172.8. The learned Senior Counsel has further submitted that the court below has also not considered the document Exhibit C-1(A), produced by the appellant before the Commissioner, by which the defendant Kanhaiyalal had himself mortgaged the property on 29.9.1955, Exhibit C-1(A) with one Singhai Lalchand Jain, PW-6, in which the defendant Kanhaiyalal had himself stated and mentioned that the property of his brother Narmada Prasad was situated towards the South, which clearly establishes that a partition had taken place between the two brothers and, therefore, Kanhaiyalal the original defendant had no right or title to claim the property of Gulab Dulaiya which devolved upon her on the death of Narmada Prasad.
9. It is submitted by the learned Senior Counsel for the appellant that the courts below have committed perversity in not taking into consideration Exhibit P-2 and Exhibit C-1(A) 8 S.A No.440/1996 while deciding the suit and in such circumstances the impugned judgment and decree deserves to be set aside. It is also urged that the finding regarding limitation, recorded by the courts below against the appellant, is also perverse inasmuch as the courts below have failed to take into consideration the fact that the cause of action for filing the suit accrued to the original plaintiff Gulab Dulaiya in the year 1978, when she came to knot that the house in question was recorded in the name of of Kanhaiyalal in the record of the Municipal Council, as well as in the month of May 1979 when the respondents tried to demolish the intervening wall and, therefore, the suit filed by her on 26.6.1979 was within the limitation prescribed by law.
10. The learned counsel for the respondents, per contra, submits that the claim of the appellant has been decided against him by as many as three courts as the suit filed by the appellant, was initially dismissed on 11.7.1983 and was again dismissed after remand by judgment and decree dated 24.10.1986 which has been affirmed in the first appeal by judgment and decree dated 2.4.1996 and in such circumstances there is a concurrent finding of fact against the appellant which does not deserve to be disturbed in view of the law laid down by the Supreme Court in the cases of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and Others, (1999) 3 SCC 722.Saraswati Devi Gupta 9 S.A No.440/1996 (Smt.) vs. Har Narain Johari and Others, (2006) 1 SCC 729.and Narayanan Rajendran and Another vs. Lekshmy Sarojini and Others, (2009) 5 SCC 264.
11. The learned counsel for the respondents contends that the this appeal cannot be permitted to be prosecuted by the present appellant after the death of the original plaintiff Gulab Dulaiya as the right to sue on her behalf does not survive on her death and the present appellant cannot step into her shoes as he is admittedly not the legitimate or illegitimate son of Narmada Prasad and has no right in the property having been born 7 to 8 years after his death and whose share is being claimed by Gulab Dulaiya.
12. The learned counsel for the respondents further submits that the plea of unchastity was taken up by the respondents by amending the written statement on 12.3.1981 shortly after filing the written statement and thereafter on account of conclusive evidence led by the defendants, specifically the statement of D.W-1 Kanhaiyalal, the suit was dismissed by the court below. It is submitted that the first appellate court again remanded the matter to the trial court for framing an issue and permitting the parties to lead additional evidence on the issue of unchastity of Gulab Dulaiya pursuant to which the court below permitted the parties to adduce additional evidence and thereafter, on 10 S.A No.440/1996 the basis of the statements of D.W-1 Kanhaiyalal, D.W-4 Mahesh Narayan, D.W-5 Faiz Mohammed and D.W-6 Mangal Prasad, the court below again recorded a finding against the appellant regarding unchastity of Gulab Dulaiya and dismissed the suit.
13. It is submitted by the learned counsel for the respondents that the finding recorded by the courts below is based on proper appreciation of evidence and merely on account of an assertion that another view was possible, the said finding of fact cannot be interfered by this Court in this Second Appeal. It is further submitted that the appellant was given two chances to prove and establish his case regarding the unchastity of Gulab Dulaiya, initially in the first round as well as after remand but the appellant failed to establish his claim and in fact did not confront D.W-1 Kanhiayalal at any point of time with the reply to the notice dated 16.5.1979 document Exhibit P-2 and in such circumstances, and in the absence of confronting D.W-1 Kanhaiyalal with the document Exhibit P-2, the reliance being placed by the learned Senior Counsel for the appellant, for the first time before the Second Appellate Court on the document Exhibit P-2, is misplaced and misconceived and in fact in the absence of D.W-1 Kanhaiyalal being confronted with the said document, no substantial question of law in that regard arises for adjudication before this Court in view of the decision of the 11 S.A No.440/1996 Supreme Court rendered in the cases of Sait Tarajee Khimchand and others vs. Yelamarti Satyam and others, AIR 197.SC 1865.Sita Ram Bhau Patil vs. Ramchandra Nago Patil (dead) by Lrs. and another, AIR 197.SC 1712.Rajendra Singh and others vs. State of Bihar, AIR 200.SC 1779.Udham Singh vs. Ram Singh and Another, (2007) 15 SCC 529.L.I.C of India and Another vs. Ram Pal Singh Bisen, 2010 AIR SCW 1900.and Union of India vs. Ibrahim Uddin and Another, (2012) 8 SCC 148.
14. The learned counsel for the respondents has vehemently urged and alleged that on the dismissal of the suit by the trial court on the ground that it was barred by limitation, the appellant did not at any point of time assail or challenge the aforesaid finding either before the first appellate court or raise any issue in that regard before this Court and in fact the fourth substantial questions of law has been framed by this Court only prior to the final hearing of this appeal on 19.3.2013 and in such circumstances, in the absence of the appellant raising any issue in this regard or assailing the finding regarding limitation as recorded by the courts below, the substantial question of law regarding limitation framed by this Court need not be answered. 12 S.A No.440/1996 15. It is further urged that as per the averment of the original plaintiff Gulab Dulaiya herself, her husband died in the year 1949 and in case she was claiming any right on the basis of an alleged partition between the brothers, she should have filed a suit or approached the competent court within three years from that date itself or at best within three years from 1950 when she was thrown out of the house on account of her unchastity but she did not do so and in such circumstances both the courts below have rightly held that the suit, as filed by the original plaintiff Gulab Dulaiya, was barred by limitation.
16. I have heard the learned counsel for the parties at length and have also extensively perused and examined the oral and documentary evidence on record. Before I advert to the issue regarding unchastity of Gulab Dulaiya, it would be appropriate to address the contention of the learned Senior Counsel for the appellant regarding substantial question of law no.2 which is based on Exhibit P-2 dated 16.5.1979, which is the reply to the notice issued by Gulab Dulaiya to Kanhaiyalal, as it is urged by the learned Senior Counsel for the appellant that a bare reading of this document, which cannot be ignored, the claim of the appellant stands established as Kanhaiyalal in the said document has himself stated that he came to knot about the unchastity of Gulab Dulaiya for the first time when she was carrying a child 6 t”
13. S.A No.440/1996 years after the death of her husband which clearly indicates and establishes that Kanhaiyalal had no knowledge about the unchastity of Gulab Dulaiya prior to that date. In the said document Exhibit P-2, Kanhaiyalal has also stated that Gulab Dulaiya had limited rights in the property which got extinguished on her becoming unchaste and this statement in itself clearly establishes that Gulab Dulaiya had limited rights in the property on the date the reply to the notice Exhibit P-2 dated 16.5.1979 was given by Kanhaiyalal. It is submitted that even if all other evidence is ignored, Exhibit P-2 in itself is sufficient to decree the claim of the appellant as the said document is substantive evidence and is admissible in view of the provisions of Section 21 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act) as has been held by the Supreme Court in the cases of Bharat Singh (supra), Dwarka Prasad (supra), Moksh Builders (supra) and Thiru John (supra).
17. It is also urged that the decision of the Supreme Court rendered in the case of Sita Ram Bhau Patil (supra) which is relied upon by the learned counsel for the respondents deserves to be ignored as it is per-incuriam and is not a binding precedent on the issue involved in the present case on account of the fact that it has been rendered without considering the judgment in the case of Biswanth Prasad (supra) and Moksh Builders and Financiers Ltd. (supra). 14 S.A No.440/1996 It is submitted that in the aforesaid judgment of the Supreme Court it has clearly been held that an admission made in writing by a party is substantive evidence under section 21 of the Evidence Act and, therefore, there is no requirement or necessity to confront or contradict the party which had made it under section 145 of the Evidence Act as it is evidence pro- prio vigore.
18. It is submitted that in view of the law as laid down by the Supreme Court in the aforesaid judgments, even if D.W-1 Kanhaiyalal was not confronted with the reply to the notice that was sent by him during his evidence, the court below could not have ignored Exhibit P-2 and in case the court below had done so and considered Exhibit P-2, the claim of the appellant would have and is required to be decreed on account of the admission contained therein.
19. From a perusal of the judgment of the Supreme Court relied upon by the learned Senior Counsel for the appellant as well as by the learned counsel for the respondents, it is clear that the Supreme Court, in the aforesaid judgments, has clearly held while considering and interpreting the provisions of Sections 21 and 145 of the Evidence Act, that such admissions are substantive evidence by themselves in view of the provisions of Section 17 and 21 of the Evidence Act, though they are not conclusive proof of the matter 15 S.A No.440/1996 admitted. It is also clear from a perusal of the other provisions of the Evidence Act, namely; Sections 138 and 146, that even otherwise the witness must be asked questions which would test his veracity moreso where there is a direct contradiction and conflict between his statements before the court and the alleged previous admission.
20. In the instant case, Kanhaiyalal in his statement recorded before the court below has clearly stated that Gulab Dulaiya was unchaste during the life time of her husband and continued to be so even after his death as a result of which Jagdish was born sometime in the year 1957 several years after the death of Narmada Prasad and that on account of her unchastity she was turned out from the house by her mother-in-law Sundaria Bai. In such circumstances, as Exhibit P-2 even if admitted in evidence is not conclusive proof of the matter stated therein, as has been held by the Supreme Court in the aforesaid cited cases and as D.W-1 Kanhaiyalal has made clear and specific statements before the court below which are directly in conflict with the statement in Exhibit P-2, therefore, the appellant were required to and should have confronted Kanhaiyalal, D.W-1, with the same during his cross-examination to test his veracity. Apparently, the appellant did not do so either at the first instance or when they were given a second chance after remand. Quite apart from the above, it is also observed 16 S.A No.440/1996 that the issue regarding Exhibit P-2 was never raised by the appellant either before the trial court or before the first appellate court and in fact the issue is being raised by him for the first time before this Court.
21. The Supreme Court, in the case of Laxmibai (Dead) Through Lrs. And another vs. Bhagwantbuva (Dead) through Lrs. and others, 2013 AIR SCW 949.while considering the provisions of Sections 138 and 146 of the Evidence Act, in this regard have held in para-31 as under:-
“31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or 17 S.A No.440/1996 elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 199.SC 226.State of U.P. v. Nahar Singh (dead) & Ors., AIR 199.SC 1328.Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 200.SC 3207.and Sunil Kumar & Anr. v. State of Rajasthan, AIR 200.SC 1096).
22. In such circumstances, in view of the law laid down by the Supreme Court in the aforementioned judgments and the provisions of Section 136 and 146 of the Evidence Act, I am of the considered opinion that the contention of the appellant, to the effect that the findings recorded by the courts below are perverse and that the entire claim as made in the suit should have been decreed only on the basis of Exhibit P-2 by ignoring the entire oral and documentary evidence to the contrary even if Kanhaiyalal, D.W-1, was not confronted with Exhibit P-2 or asked any question in that 18 S.A No.440/1996 regard to contradict him or to test his veracity, cannot be accepted.
23. From a perusal of the statement of the plaintiffs' witnesses, i.e. P.W-1 Gulab Dulaiya, P.W-7 Kashi Prasad, P.W-8 Badri Prasad Gupta and P.W-9 Hiralal Gupta, it is clear that the aforesaid witnesses have stated that Gulab Dulaiya was not unchaste during or after the life time of her husband Narmada Prasad who died in the year 1949, whereas a perusal of the statement of the defendant's witnesses D.W-1 Kanhaiyalal, D.W-4 Mahesh Narayan, D.W-5 Faiz Mohammed and D.W-6 Mangal Prasad, it is clear that the aforesaid witnesses have clearly and emphatically stated that Gulab Dulaiya was unchaste during the life time of Narmada Prasad himself as well as after his death as she was having an illicit relation with one Ram Khilawan and Ram Kumar and that she continued to remain unchaste even after his death as a result of which Jagdish, the present appellant was born sometime in the year 1957, eight years after the death of her husband Narmada Prasad.
24. It is also apparent that the fact of birth of Jagdish 7 to 9 years after the death of Narmada Prasad, the husband of Gulab Dulaiya is not disputed and is in fact admitted. However, as far as the issue regarding unchastity of Gulab Dulaiya, during the life time of her husband Narmada Prasad, 19 S.A No.440/1996 is concerned there is conflict between the oral evidence adduced by the parties but the courts below, on the basis of the attending circumstances, have accepted the evidence of D.W-1 Kanhaiyalal, D.W-4 Mahesh Narayan, D.W-5 Faiz Mohammed and D.W-6 Mangal Prasad and recorded a concurrent finding against the appellant.
25. As the learned Senior Counsel for the appellant has urged that the aforesaid finding, recorded by the courts below, is perverse on account of the attending circumstances, I have also examined the aforesaid aspect. The respondents/defendants witnesses have clearly stated that Gulab Dulaiya, the original plaintiff was turned out of the house on account of her unchastity in the year 1950. These witnesses have also stated that she was enjoying illicit relations with one Ram Khilawan and Ram Kumar even during the life time of Narmada Prasad and on that count there was serious conflict between them though she was not turned out of the house by Narmada Prasad himself. From a perusal of the evidence it is also clear that the defendant's witnesses stated above have clearly stated that she was turned out of the house and during this period she was running a sweet shop as well as living in the shop situated in Jain Mandir. The plaintiff's witnesses P.W-8 Badri Prasad Gupta and P.W-9 Hiralal Gupta have also stated that after the death of Narmada Prasad, Gulab Dulaiya was operating a 20 S.A No.440/1996 sweet shop from Jain Mandir and not from the house which is in dispute. It is also clear that the defendants have alleged and brought evidence on record through their witnesses to state that the original plaintiff Gulab Dulaiya was staying in the shop situated in Jain Mandir from where she was operating the sweet shop till the year 1979 when she was evicted by the landlord pursuant to which the defendant Kanhaiyalal, on humanitarian ground, had permitted her to stay in the house in question from 27.1.1979 onwards for a short period of time till alternative arrangement was made. The appellant, on the other hand, has failed to prove and establish that Gulab Dulaiya was staying in the disputed house from 1949 till 27.1.1979. The fact that she was admittedly and undisputedly running her sweet shop in a tenanted premises in the Jain Mandir also establishes the fact that she was not residing in the disputed house, as had she been doing so, she would most certainly have started running the shop in the disputed house instead of a rented premises as was being done by Kanhaiyalal, D.W-1. The courts below, on the basis of the analysis of the evidence of the witnesses, have recorded a concurrent finding of fact to the effect that Gulab Dulaiya had been ousted on account of unchastity and was living separately till 1979 when she was permitted to occupy the house of Kanhaiyalal and for that reason was found in occupation of the same at the time when the 21 S.A No.440/1996 Commissioner appointed by the court below examined the premises.
26. In view of the aforesaid facts and circumstances, as the appellant has failed to prove and establish possession and in fact the evidence on record establishes the contrary, as analysed above, therefore, the attending circumstances are also established against the appellant which support and affirm the findings recorded by the courts below and, therefore, mere conflict in some oral evidence would not give rise to a substantial question of law or justify interference in the concurrent findings recorded by the courts below against the appellant in the present Second Appeal.
27. The learned Senior Counsel for the appellant has alleged that there is no pleading or proof regarding unchastity of Gulab Dulaiya at the time of the death of Narmada Prasad which is material for deciding her rights. It is submitted that a bare reading of the written statement itself, even if accepted as it is, indicates that the plea only relates to chastity prior to the death of Narmada Prasad and after his death but there is no plea and in fact a total absence of any plea to the effect that Gulab Dulaiya was unchaste at the time of the death of Narmada Prasad.
28. I am of the considered opinion that in view of the evidence on record and the findings recorded by the courts 22 S.A No.440/1996 below regarding unchastity of Gulab Dulaiya prior to the death of Narmada Prasad and the undisputed fact of her subsequent unchastity and the birth of Jagdish 7 to 9 years after the death of her husband Narmada Prasad, clearly leads to only one conclusion that Gulab Dulaiya was unchaste at the time of the death of Narmada Prasad as there is no pleading or proof to establish that she suddenly became chaste only at the time of the death of her husband Narmada Prasad for a very short intervening period and in such circumstances I do not find any perversity in the findings recorded by the courts below that Gulab Dulaiya was unchaste for the entire period which extended from a point of time prior to the death of Narmada Prasad to the birth of Jagdish in the year 1957.
29. The learned Senior Counsel for the appellant has next contended that the finding regarding partition recorded by the First Appellate Court is vitiated on account of non- consideration of Exhibit C-1(A). It is submitted that the said document clearly establishes that there was a partition between Kanhaiyalal, D.W-1, and Narmada Prasad. It is submitted that as the property had already been partitioned, the house in dispute fell in the share of Narmada Prasad and on his death upon Gulab Dulaiya. 23 S.A No.440/1996 30. To appreciate the aforesaid contention of the learned Senior Counsel for the appellant, Exhibit C-1(A) is perused. The said document is not a document envisaging partition but is in fact a mortgage executed by Kanhaiyalal, D.W-1 with one Singhai Lalchand Jain, PW-6, by which he had mortgaged part of his house and had indicated the existence of Narmada Prasad's house towards the south. This document is dated 29.9.1955, i.e., it was executed after the death of Narmada Prasad. The contention of the learned Senior Counsel for the appellant cannot be accepted in view of the fact that the mention of Narmada Prasad's house has been clarified, clearly denied and explained by Kanhaiyalal, D.W-1 in his statement. Quite apart from the above, on the date of execution of the document, Narmada Prasad had already died and as held above, Gulab Dulaiya was not occupying the same for, had she been occupying it, this fact would have been mentioned in Exhibit C-1(A). In view of the aforesaid, it is clear that the mention of the name of Narmada Prasad was only for the purposes of identification and does not prove or establish any partition between Kanhaiyalal, D.W-1 and Narmada Prasad, moreso as the said fact has not been established by the appellant on the basis of any cogent evidence being adduced in this regard.
31. From a perusal of the undisputed facts on record, it is further clear that the claim in respect of declaration was 24 S.A No.440/1996 made by Gulab Dulaiya 30 years after the death of her husband. It is also an admitted fact that the house in question was never recorded in the name of the original plaintiff Gulab Dulaiya and even at the time of filing of the suit, the house was recorded in the name of Kanhaiyalal in the Municipal records and Gulab Dulaiya objected to the same for the first time in the year 1979. From a perusal of the findings regarding possession recorded by the courts below, which have been affirmed in the preceding paragraphs, it is also clear that the courts below have recorded a finding that she was ousted on account of unchastity in 1950 and was permitted to occupy the house only for a short period of time from 27.1.1979 onwards on account of her eviction, on humanitarian grounds and in such circumstances the suit, filed by her for declaration as owner of the property, was barred by limitation. In the light of the above, it is clear that the right to claim and seek declaration in respect of the house accrued to Gulab Dulaiya after the death of Narmada Prasad in 1949 or at best from the day of her ouster whereas the present suit has been filed in 1979 and is therefore barred by limitation. From a perusal of the records, it is also clear that this issue or question of law regarding limitation has in fact not been raised in the memo of appeal but has only been raised during arguments. 25 S.A No.440/1996 32. Having heard the learned counsel for the parties and in view of the aforementioned finding of facts recorded by the courts below which do not suffer from any perversity or illegality, I am of the considered opinion that the concurrent findings of the courts below that the suit is barred by limitation, does not call for any interference in this Second Appeal as has been held by this Court in the case of Smt. Saraswatidevi and another vs. Krishnaram Baldeo Bank Limited and another, AIR 199.MP 73.
33. The learned Senior Counsel for the appellant, on the strength of the decision reported in Gangadhar Parappa Alur (Original Plaintiff) vs. Yellu Kom Viraswami Shirawale (Original Defendant), ILR XXXVI Bombay 138 and Radhe Lal vs. Bhawani Ram and Musammat Bidya, ILR XL Allahabad 178, has submitted that even if Gulab Dulaiya was unchaste during the life time of her husband Narmada Prasad, the unchastity was condoned by him by not taking any action against her and in such circumstances her unchastity would not disqualify her from acquiring rights in the property of Narmada Prasad.
34. The aforesaid contention of the appellant needs to be heard only to be rejected on account of the fact that the appellant has not set up such a defence in the plaint not is it her case that her unchastity was condoned by Narmada 26 S.A No.440/1996 Prasad and, therefore, she was not disqualified to inherit his property. It is also apparent that apart from the absence of any pleading or assertion in that regard, the appellant/plaintiff has also not lead any evidence to plead or establish the condonation of unchastity. The records also indicate that no issue to this effect was framed by the trial court as this issue was neither raised by the appellant/plaintiff in the suit or in the first appeal at the time of its remand not was this issue raised when the suit was again tried after remand. There is no pleading or assertion in this regard even in the first appeal. In fact there is no pleading, assertion or claim in this regard in the entire proceedings even before this Court not has any substantial question of law been framed and it is, for the first time, at the time of final arguments that the contention is being raised before this Court. I am of the considered opinion that in view of the aforesaid undisputed facts and circumstances of the present case and in the absence of any pleading or assertion in this regard, this contention of the appellant deserves to be and is hereby rejected.
35. The above discussion clearly indicates that the courts below have examined and re-examined the evidence on record and have duly considered and applied their mind while arriving at a finding against the appellant to the effect that Gulab Dulaiya lost all rights in the property on account of 27 S.A No.440/1996 unchastity in view of the provisions of Hindu Law and no rights accrued to her under the Property Act and the Succession Act. It is also clear from the discussion made in the preceding paragraphs that the findings recorded by the courts below do not suffer from any perversity as they are based on proper appreciation of oral and documentary evidence by the courts below. In view of the aforesaid facts and circumstances, to re-appreciate the entire evidence and arrive at a contrary conclusion, only on the basis of an emotional appeal being made before this Court, is not permissible in a Second Appeal. As the findings recorded by the courts below do not suffer from any manifest irregularity or apparent illegality, not do they suffer from any perversity, I find no reason to interfere or set aside the concurrent findings recorded by the courts below on all the issues.
36. In view of the aforesaid discussion, the substantial questions of law framed by this Court are answered against the appellant. The appeal, filed by the appellant, being meritless is accordingly dismissed. There shall be no order as to the costs. ( R. S. JHA ) JUDGE 02 04/2013 mms/-