K.P.Singh, J. - (1.) IN the writ petition the contesting opposite party no. 5 Niadar had claimed tenancy right being brother of the original tenure-holder Kedhera on the ground that he was his real brother and that the present petitioner had remarried one Renuwa, hence she lost right in the disputed property and that the opposite party no. 5 Niadar continued in possession over the disputed property since the time of remarriage of the present petitioner, hence she acquired right in the disputed property on the basis of adverse possession for more than statutory period.
(2.) THE petitioner had contested the suit of the opposite party no. 5 in the present writ petition with the allegations that she had not remarried and that she continued in possession over the property of her husband and various other pleas were taken to negative the claim of the contesting opposite party Niadar in the present writ petition. The trial court through its judgment dated 23-11-1971 dismissed the plaintiff's suit and did not accept the theory of remarriage of the petitioner with Renuwa and also held that the plaintiff did not prescribe title to the disputed property on the basis of unlawful possession without the consent of the tenure-holder for more than statutory period. Against the judgment of the trial court Niadar went in appeal and his appeal was allowed by the appellate court through its judgment dated 25-4-1973. The appellate court accepted the contention of the plaintiff opposite party that the petitioner Smt. Somwati had remarried Renuwa and that the present petitioner was not in possession over the disputed land, hence the claim of the plaintiff opposite party was accepted by the appellate court. Aggrieved by the judgment of the appellate court the petitioner had filed a second appeal and the grounds of appeal is Annexure IV attached with the writ petition. The second appellate court dismissed the second appeal through its judgment dated 29-6-1973 holding that the finding of fact regarding the petitioner's marriage with Renuwa was pure finding of fact which could not be characterised as perverse or without jurisdiction and was based on appraisal of evidence by the lower appellate court. The second appellate court also observed that the entries of possession for any period of time by the petitioner after remarriage would not confer on her any valid title. Against the judgment of the second appellate court dated 29-6-1973 the petitioner had approached this court under Article 226 of the Constitution. The learned counsel for the petitioner has contended before me that the second appellate court has failed to examine the question of remarriage set up by the contesting opposite party no. 5 in the present writ petition. According to him the second appellate court dismissed the second appeal summarily without examining the record of the case. The bare perusal of the judgment of the appellate court indicates that its judgment is based on irrelevant considerations and irrelevant documents but the second appellate court thinks that the finding of fact is neither perverse nor beyond jurisdiction and it is based on appreciation of the evidence by the lower appellate court. In this connection the learned counsel for the petitioner has invited my attention to paragraph 11 of the memo of second appeal whereby the finding of fact has been challenged due to misappreciation of evidence. Secondly, it has been contended that the plaintiff's suit would be barred by the provision of Section 34 of the Specific Relief Act if the plaintiff was found out of possession. Thirdly, it has been contended that the second appellate court is under wrong notion of law that the petitioner would not acquire any valid title to the disputed land by being in possession for any period of time.
(3.) THE learned counsel for the contesting opposite parties has tried to support the impugned judgment. According to him the second appellate court was fully justified to accept the finding of fact that the petitioner had remarried and on that finding the plaintiff's suit was rightly decreed. In rejoinder it has been stressed that the second appellate court has failed to examine the question of remarriage decided by the first appellate court, merely on the ground that it was a finding of fact. According to the learned counsel for the petitioner the marriage of Karaon was not established in the circumstances of the present case and no ceremonies regarding the Karaon marriage have been established on the evidence on record, hence the findings recorded by the first appellate court and confirmed by the second appellate court deserve to be quashed.;