Mounlal Kachhi and Others vs Mahila Badidau

J.K. Maheshwari, Judge

Heard on the question of admission

Plaintiffs filed a suit against the defendants with respect to Khasra No. 384/1 area 1.214 hectare situated at Village Alampura, Tahsil and District Tikamgarh seeking declaration of partition to the extent of 1/6th share and possession on the suit land, as well as sale deed dated 27/12/1995 and 4/9/2004 executed by Harprasad in favour of defendants 4 to 8 as null and void to the extent of their share. Plaintiffs filed suit for declaration of 1/6th share in the suit land. It is said that plaintiff No. 1 was married with Hallu who was died in the year 1980. From the said wedlock one son Kanai was born. The land in question belongs to Mauji father of Hallu and defendants 1 and 2 and three others. However, being wife and son of Hallu, plaintiffs are having right of 1/6 share belonging to Mauji. Execution of sale deed by Harprasad in favour of defendants 4 to 8 with respect to the suit land do not deprive the plaintiffs from 1/6th share from the said land, accordingly, declaration for partition and possession of their share unaffected by the said sale deed has been prayed for.

Defendants, by filing written statement, have denied that plaintiff No. 1 is the wife and plaintiff No. 2 is the son of Hallu. It is said that Hallu was not married with Badibau (plaintiff No. 1) in fact he was married with Aharwali and one son Phullu was born from their wedlock and both have died. The said fact has been concealed by the plaintiffs, however, the marriage of Hallu with plaintiff No. 1 was not solemnized. In that view of the matter, it is urged that plaintiffs are not having any share in the suit property, although in the written statement the fact regarding 1/6 share of Hallu is not disputed in suit property.

Learned trial Court has framed as many as six issues and issue No. 1 relates to 1/6th share of the plaintiffs. After considering the evidence of plaintiffs so brought on record i.e. evidence of Badibau (PW-1), Bhagola (PW-2), Damra (PW-3) and Kanai (PW-4) and also considering the admission of Gullu (DW-5) and Jagdish (DW-1) regarding marriage of the plaintiff No. 1 with Hallu and Kanai and Phullu were born from their wedlock, recorded a finding that plaintiff No. 1 is the wife of Hallu and plaintiff No. 2 is his son. Trial Court in para-9 further held that Hallu was having 1/6th share in the disputed land which was belonged to Mauji. In that view of the matter, the suit filed by the plaintiffs was decreed regarding declaration of partition and possession and the sale deed executed by defendant No. 2 does not affect the title of plaintiffs. On filing appeal, lower appellate Court affirmed the finding recorded by the trial Court in toto, however, this appeal has been filed.

Shri Arvind Shrivastava, learned counsel for the appellants, has strenuously urged that the plaintiffs have concealed the fact regarding marriage of Hallu with Aharwali and to give birth of one son Phullu from the said wedlock. The aforesaid concealment relates to the right in the property of the Hallu. Two Courts below have not duly considered the aforesaid fact and the finding recorded with respect to solemnization of marriage of plaintiff No. 1 with Hallu appears to be unjust. It is further contended that until and unless the plaintiffs have come with the clean hands, and prove that the marriage of Hallu was legally solemnized with plaintiff No. 1, they cannot claim any share from the suit property.

Shri Pranay Verma, learned counsel for the respondents, contends that finding of fact recorded by two Courts below with respect to solemnization of marriage of plaintiff No. 1 with Hallu who was admittedly having 1/6th share is a pure finding of fact, however, interference is not warranted on the concurrent finding of fact on the said issue. It is further urged that finding so recorded by two Courts below is based upon the admission of defendants'' witnesses namely Gullu (DW-5) and Jagdish (DW-1). Thus, the finding of fact so recorded by two Courts below is as per the admission of the defendants which do not warrant interference by this Court. So far as declaration of partition of 1/6 share is concerned, it is not disputed that Hallu was having 1/6th share in the property of Mauji, however, being wife and son, the plaintiffs are having right to claim 1/6th share from the property of Mauji. In that view of the matter, two Courts below have not committed any error in decreeing the suit.

After hearing learned counsel for the parties and on perusal of the record, it is apparent that the plea taken by the defendants that Aharwali was the only wife of Hallu has been disbelieved by the two Courts below. As per the plaintiffs'' evidence as well as the evidence of Gullu (DW-5), it is clear that Hallu prior to his death lived with plaintiff No. 1 for a long time after solemnization of marriage and from the said wedlock plaintiff No. 2 was born. In such circumstances, the finding of fact so recorded by two Courts below is based on due appreciation of evidence and such concurrent finding of fact do not warrant any interference in this appeal on the said issue. The argument so advanced by Shri Shrivastava, learned counsel for the appellants, regarding non-disclosure of marriage of Hallu with Aharwali is not material, such argument is having no force looking to the evidence so brought on record and particularly when the brother of Hallu namely Gullu (DW-5) has admitted the fact regarding marriage of plaintiff No. 1 with Hallu and from the said wedlock Kanai was born. It is not in dispute that Hallu was having 1/6th share in the property of Mauji, however, trial Court as well as lower appellate Court have not committed any error in decreeing the suit filed by the plaintiffs to the extent of 1/6th share in the suit property and the sale deed executed by defendant No. 2-Harprasad in favour of defendants 4 to 8 declared as null to such extent and void and also for delivery of possession. In the considered opinion of this Court, no substantial question of law arises for determination in this appeal in view of the concurrent findings of fact recorded by the two Courts below is just and proper. Accordingly, this appeal stands dismissed at the admission stage with no order as to cost.