- (1.) R. K. Mahajan, J. Shri Harsukh and Shri Dull Chand are brothers. Dull Chand died during the pendency of the suit and he is now represented by wife Smt. Parwati and his sons and a daughter. They hail from Mohalla Katra Fateh Mamoor Khan, District Etawah. Harsukh was married to Smt. Kiranta Devi, on 10-5-1977 Smt. Kiranta Devi sold one acre of land in favour of Defendant-appellant Anwar Singh. The sale was challenged by way of suit by Duli Chand that he is entitled to inherit the agricultural land on the ground that Smt. Kiranta Devi was enticed by one Ram Bux of village Bharthana and case No. 244 of 1991 was registered under Section 498 IPC and the certified copy of the FIR is on record as paper No. 18-C. It appears that the accused were acquitted in appeal.
(2.) THE plea of the plaintiffs in the suit is that the property in question was acquired on 26-7-1945 after Kiranta Devi left her husband Harsukh. Harsukh died in the year 1967. So in view of leaving her husband Har Sukh and performing marriage with Shri Ram Bux she is not entitled to inherit the property and sale in dispute dated 18-5-1977 is inoperative, ineffective and nonest. THE lower court dismissed the suit of the plaintiff but the appellate court accepted the appeal holding that Smt. Kiranat Devi re-married and sale is invalid and the appellate court decreed the suit. This is how the present Second Appeal has been filed against the judgment and decree dated 30-4- 1991 passed by Shri Sattidin, Family Judge, Etawah in Civil Appeal No. 61 of 1985 Smt. Parwati and others v. Smt. Kiranta Devi and another by virtue of which the judgment of the lower court dated 11-4- 1985 passed by Shri Rameshwar Singh, Munsif First, Etawah in Original Suit No. 500 of 1978 Duli Chand v. Kiranta Devi and another. At the time of admission of the present Second Appeal the following substantial questions of law numbered as 1, 3, 5 and 6 were allowed to be framed- "1. Whether the appellate court was justified to carve out a new case for the plaintiff-respondent which was neither pleaded nor proved by the plaintiff-respondents ? 2. Whether the appellate court was justified to ignore the mutation order passed in the year 1968 and also to ignore the plea of the plaintiff-respondent in the declaratory suit and in the proceeding under Section 145 Cr. EC. that Smt. Kiranta Devi had re-married after the death of Harsukh ? 3. Whether the appellate court was justified to hold that no ceremonies are required for remarriage and no ceremonies were performed relating to the alleged re-marriage and the trial judge has rejected the theory of remarriage on the basis of oral and documentary evidence ? Whether the appellate court was justified in setting aside the findings recorded by the trial judge without dealing with those reasons which the trial judge has discussed in detail in view of law laid down in AIR 1972 SC1716?" 9. Shri N. S. Chaudhary, learned counsel for the appellant submitted that the lower appellate court has fell into an error by holding that Smt. Kiranata Devi re-married in 1941 ignoring the admission of written statement of Duli Chand in 145 Cr. PC. proceedings and also ignoring the acquittal of Ram Bus in 498 IPC proceedings. He further submitted that Duli Chand had filed a revenue suit under Section 229-B of U. P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act of 1950) for declaring of his rights regarding this land and the matter is still pending before the Board of Revenue and civil suit does not lie in view of Section 331 of Act of 1950 and has relied upon Supreme Court decision which would be referred during the discussion. He has further submitted that Harsukh died in the year 1967 and Smt. Kiranta Devi re-married Ram Bux and there is no question of divesting the property once the property has been vested and no ceremonies are required for re-marriage. He has also submitted that in para No. 6 of the written statement of Duli Chand there is a mention that Smt. Kiranta Devi has remarried after the death of Harsukh according to the custom prevalent in the society. So according to the learned counsel for the appellant the reversal of the judgment of the trial court by the appellate court is on wrong approach of appreciation of law as well as no reasonable man can take the view which the appellate court has taken.
(3.) LEARNED counsel for the respondents Shri Prakash Krishna submitted that the judgment of the appellate court is well reasoned and based upon the evidence right from 1955. He further submitted that since Smt. Kiranta Devi had left Harsukh in 1941 and bhumidhar rights were required on lease and she has no right to succeed on this ground as well as re-marriage. He further submitted that the counsel for the plaintiff has raised a question of jurisdiction and the parties have gone into trial and no prejudice has caused and the suit is saved under Section 331-Aof the Act of 1950. I would first of all deal with the question of jurisdiction. There is specific plea taken in the written statement of Anwar Singh that the suit is not cognizable by Civil Court and the suit should be stayed as on the same matter another suit is pending under Section 229-B of the Act of 1950.;