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Smt. Usha Devi & Others v. Smt. Savitri Devi & Others

Smt. Usha Devi & Others v. Smt. Savitri Devi & Others

(High Court Of Himachal Pradesh)

REGULAR SECOND APPEAL NO. 599 OF 2008 | 14-09-2022

1. By way of instant appeal, appellants have assailed judgment and decree dated 1.9.2008, passed by learned District Judge, Hamirpur in Civil Appeal No. 128 of 1991, whereby the judgment and decree dated 1.10.1991, passed by learned Sub Judge, 1st Class (II), Hamirpur in Civil Suit No. 27 of 1986 has been reversed.

2. Parties hereafter are being referred by the names of original plaintiff and defendants for lucidity.

3. Baldev Raj, the predecessor-in-interest of appellants filed Civil Suit No. 27 of 1986 on 5.2.1986 before learned Sub Judge, 1st Class (II), Hamirpur against his brother Chaturbhuj, the predecessor-in-interest of respondents No. 1 to 6 herein, seeking declaration to the effect that the suit land detailed in the plaint was jointly owned by Baldev Raj and Chaturbhuj and even the share of their deceased brother Ram Rath was jointly inherited by them. Relief of permanent prohibitory injunction was also sought on the ground that Chaturbhujhad started claiming the estate of late Ram Rath exclusively on the basis of Will propounded by him. Initially, the suit was filed only against Chaturbhuj as defendant No.1, however, later on respondent No.7 herein Kaushalya Devi got herself impleaded as defendant No.2, claiming to be the widow of deceased Ram Rath.

4. Respondent No.7 herein Kaushalya Devi also instituted another suit bearingCivil Suit No. 119 of 1986 impleading Baldev Raj and Chaturbhuj as defendants. She had claimed the estate of deceased Ram Rath as his widow and also had laid challenge to the Will dated 24.12.1985 of deceased Ram Rath as propounded by Chaturbhuj.

5. Civil Suit No. 27 of 1986 filed by Baldev Raj was decreed by learned trial Court vide judgment and decree dated 1.10.1991. The suit land was held to be the joint property of Baldev Raj and Chaturbhuj. Will of Ram Rath as propounded by Chaturbhuj was held to be not proved.

6. The Civil Suit No. 119 of 1986, filed by Kaushalya Devi was dismissed vide separate judgment and decree of the same date i.e., 1.10.1991.

7. Chaturbhuj assailed the judgment and decree dated 1.10.1991 in Civil Suit No. 27 of 1986 before learned District Judge, Hamirpur and his appeal was registered as Civil Appeal No. 128 of 1991. Kaushalya Devi also assailed the judgment and decree dated 1.10.1991 in Civil Suit No. 119 of 1986 before learned District Judge, Hamirpur and her appeal was registered as Civil Appeal No. 149 of 1991.

8. Learned District Hamirpur, decided both the civil appeals i.e. Civil Appeal No. 128 of 1991 and Civil Appeal No. 149 of 1991 by a common judgment and decree dated 1.9.2008, which is impugned in the instant appeal. Whereas, appeal No.128 of 1991 of Chaturbhuj was allowed, Civil Appeal No. 149 of 1991 of Kaushalya Devi was dismissed. Resultantly, Civil Suit No. 27 of 1986 also stood dismissed.

9. Kaushalya Devi did not assail the judgment and decree dated 1.9.2008, passed by the learned District Judge, Hamirpur in Civil Appeal no. 149 of 1991 before this Court.

10. Learned District Judge held the Will dated 24.12.1985 of deceased Ram Rath to be legal and valid and consequently legal heirs of Chaturbhujwere held entitled to the estate of deceased Ram Rath.

11. I have heard learned counsel for the parties and have also gone through the records carefully.

12. Sh. Ramesh Verma, learned counsel for the appellants at the very outset contended that the impugned judgment and decree cannot be sustained as the same has been passed by taking into consideration evidence in Civil Suit No. 119 of 1986. According to him, the course adopted by learned District Judge was unknown in procedural law. He further contended that Civil Suit No. 27 of 1986 and Civil Suit No. 119 of 1986 were neither consolidated nor decided by a common judgment. Both these suits were decided separately on the basis of the evidence recorded in each of the suits. None of the parties had agreed that the evidence in one suit be also read in the other.

13. The contention of learned counsel for the appellants so far as factual part of it is concerned, has not been contested by the learned counsel for the respondents.

14. Perusal of impugned judgment and decree reveals that learned lower appellate Court considered the evidence of both the civil suits i.e. Civil Suit No. 27 of 1986 and Civil Suit No. 119 of 1986 while passing the impugned judgment and decree. To hold that Will dated 24.12.1985 was a legal and valid Will of deceased Ram Rath, learned District Judge had placed reliance on the evidence in Civil Suit No. 119 of 1986. On the basis of such evidence in Civil Suit No. 119 of 1986, issue No.4 in Civil Suit No. 27 of 1986 had been decided against the legal heirs of Baldev Raj, which otherwise stood decided in his favour by learned trial Court on the ground that the defendant Chaturbhuj had not led any evidence on said issue.

15. The contention raised by the learned counsel for the appellants herein is liable to be upheld.The procedure adopted by learned District Judge, Hamirpur was not in accordance with law. He could not legally transpose evidence of one suit in another, merely because he had chosen to decide the appeals arising out of two separate suits, by a common judgment. The mode adopted by learned District Judge has definitely caused prejudice to the appellants herein. In this view of the matter, the impugned judgment and decree, passed by learned District Judge, Hamirpur in Civil Appeal No. 128 of 1991 cannot be sustained and is liable to be set aside. The learned District Judge was required to decide the said appeal on the basis of records of Civil Suit from which the appeal had arisen. In case of conflicting decision on identical issues in two separate suits between same parties, the law provided for separate procedure and remedies.

16. In view of above discussions, the appeal is allowed. The judgment and decree dated 1.9.2008, passed by learned District Judge, Hamirpur in Civil Appeal No. 128 of 1991 is set aside. The matter is remanded to the learned District Judge, Hamirpur to decide Civil appeal No. 128 of 1991 afresh in light of observations made hereinabove. Parties are directed to appear before learned District Judge, Hamirpur on 10.10.2022. Since original suit was filed in the year 1986, it is expected from learned District Judge that the appeal shall be decided expeditiously. Pending applications, if any, also stand disposed. Records be sent back forthwith.

Advocate List

  • SH. ROMESH VERMA, ADVOCATE

  • SH. K. D. SOOD, SR. ADVOCATE WITH SH. RAHUL GATHANIA, FOR R 1TO 6

Bench
  • HON'BLE MR. JUSTICE SATYEN VAIDYA
Eq Citations
  • 2022 (239) AIC 791
  • 2022 (4) SHIMLC 1923
  • LQ/HimHC/2022/2117
Head Note

Civil Procedure — Suits — Consolidation of suits and Transposition of evidence from one suit to another — Two separate suits filed by brothers against each other, for declaration of title to estate of deceased brother — Will propounded by one brother challenged by widow of deceased brother in other suit — Trial court decided both suits by separate judgments — District Judge in appeal transposed evidence from one suit to another and allowed appeal by the brother in one suit and dismissed appeal by the widow in other suit — Held, procedure of transposition of evidence was not in accordance with law and has caused prejudice to the widow — Impugned judgment and decree set aside and matter remanded for fresh decision in appeal by the District Judge — Civil Procedure Code, 1908, Order XIV Rule 5\nC.M. No. 919 of 2022 decided on 14th April, 2022