# Smt. Laxminiya v. Deena Nath

- **Citation:** (2024) 7 ILRA 1279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-30
- **Case number:** Second Appeal No. 80 of 1985
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-laxminiya-v-deena-nath-52238
- **Pages:** 10

## Headnote

Hindu Widow's Remarriage Act, 1856 -
Section 2 - Rights of widow in deceased
husband's property to cease on her
remarriage. Upon remarriage, a widow
ceases to have any right in the property
left by her deceased husband, and she is
treated
as
though
she
had
died
immediately after her second marriage.
Estate left by her deceased husband
devolves upon the next heirs of the
deceased
husband.
In
the
event
of
remarriage, a widow loses even the
limited interest in the property, and the
next heirs of the deceased husband
succeed to the same. (Para 19)

Hindu Widow's Remarriage Act, 1856 -
Section 2 -Plaintiff's case that Bhagirathia,
w/o Algu, after Algu's death, started living
with plaintiff's father Hira, and thus
plaintiff's father, and after his death, the
plaintiff became the owner of the disputed
land
to
the
divestment
of
all
the
defendants.
Defendants'
case
that
Bhagirathia, after the death of Algu,
performed
a
second
marriage
with
Mahadeo, and out of the said wedlock, one
son, Doodh Nath (defendant No. 2), was
born. Trial court observed that since
Doodh Nath (defendant No. 2), the son of
Bhagirathia, is in possession of the
disputed property, he would be deemed
the owner thereof. Lower appellate court
held that since the defendants had taken
the
plea
of
adverse
possession
of
Bhagirathia over the estate left by her
first deceased husband Algu, she would
not retain it as an absolute owner, and
hence the plaintiff's possession would be
deemed to be proved. Issue in Second
Appeal:

What rights did Bhagirathia succeed from
her deceased first husband Algu, and what
is the effect of her remarriage to Mahadeo
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
in 1919? What rights does the plaintiff
have to obtain a decree for injunction in
respect of the estate left by Algu? Held:
Bhagirathia lost her title in the estate left
by her deceased husband Algu after she
remarried Mahadeo in 1919. Algu's estate
then devolved upon his other natural
successors as per the law prevailing at
that time. No successor of the deceased
Algu was impleaded as a party to the suit.
It was incumbent upon the plaintiff to
claim an injunction against the natural
successors of Algu. Even if it is presumed
or accepted that Algu and Bhagirathia had
no issue, the succession would still
continue and revert to the successors in
law as per the family tree, from bottom to
top through reversion of rights. Mere
divestment of interest in the deceased
Algu's property would not be sufficient to
prove the plaintiff's case for title and
possession
to
grant
an
injunction,
particularly when the plaintiff failed to
prove his case of coming into possession
through his father Hira, based on an
unproven
relationship
between
Bhagirathia and his father. Plaintiff's plea
that
he
acquired
ownership
and
possession
due
to
the
relationship
between Bhagirathia and plaintiff's father
Hira was not substantiated by any cogent
oral or documentary evidence. (Para 22,
24, 25)

Allowed. (E-5)

List of Cases cited:

## Text

7 All. Smt. Laxminiya Vs. Deena Nath
1279
judicial review by Constitutional Courts in
such matters.

(15) In view of the consistent view
of the Hon'ble Supreme Court on this
issue, there can be no doubt that seeking
changes in an existing policy or law of
beneficiary
oriented
scheme
meant
exclusively for SCs/ STs/ OBCs and
Minorities, so as to be extended to below
the poverty line (BPL) persons of all other
communities/castes including BPLs who
belong to SCs/STs/ OBCs/Minorities lies
within the exclusive domain of the
Executive or the Legislature and is a matter
of policy.

(16) It shall be open for the
petitioners to give representations to the
Central/State Government espousing their
cause with relevant data and materials,
which
may
assist
the
concerned
Government in taking an objective view on
the issues raised in the present petition or to
canvass the same before the elected
representatives of the Parliament or State
Legislature, as the case may be.

(17) With these observations, we
dispose of this petition.
----------
(2024) 7 ILRA 1279
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 80 of 1985

Smt. Laxminiya ...Appellant
Versus
Deena Nath ...Respondent

Counsel for the Appellant:
A.N. Bhargava, R.P. Srivastava, R.S. Srivastava,
Raghvendra Shankar Srivastava

Counsel for the Respondent:
Chandra Prakash, Jai Prakash Rai, Kalindra
Kumar Rai, Pramod Kumar Srivastava, Tripathi
B.G. Bhai

Hindu Widow's Remarriage Act, 1856 -
Section 2 - Rights of widow in deceased
husband's property to cease on her
remarriage. Upon remarriage, a widow
ceases to have any right in the property
left by her deceased husband, and she is
treated
as
though
she
had
died
immediately after her second marriage.
Estate left by her deceased husband
devolves upon the next heirs of the
deceased
husband.
In
the
event
of
remarriage, a widow loses even the
limited interest in the property, and the
next heirs of the deceased husband
succeed to the same. (Para 19)

Hindu Widow's Remarriage Act, 1856 -
Section 2 -Plaintiff's case that Bhagirathia,
w/o Algu, after Algu's death, started living
with plaintiff's father Hira, and thus
plaintiff's father, and after his death, the
plaintiff became the owner of the disputed
land
to
the
divestment
of
all
the
defendants.
Defendants'
case
that
Bhagirathia, after the death of Algu,
performed
a
second
marriage
with
Mahadeo, and out of the said wedlock, one
son, Doodh Nath (defendant No. 2), was
born. Trial court observed that since
Doodh Nath (defendant No. 2), the son of
Bhagirathia, is in possession of the
disputed property, he would be deemed
the owner thereof. Lower appellate court
held that since the defendants had taken
the
plea
of
adverse
possession
of
Bhagirathia over the estate left by her
first deceased husband Algu, she would
not retain it as an absolute owner, and
hence the plaintiff's possession would be
deemed to be proved. Issue in Second
Appeal:

What rights did Bhagirathia succeed from
her deceased first husband Algu, and what
is the effect of her remarriage to Mahadeo
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
in 1919? What rights does the plaintiff
have to obtain a decree for injunction in
respect of the estate left by Algu? Held:
Bhagirathia lost her title in the estate left
by her deceased husband Algu after she
remarried Mahadeo in 1919. Algu's estate
then devolved upon his other natural
successors as per the law prevailing at
that time. No successor of the deceased
Algu was impleaded as a party to the suit.
It was incumbent upon the plaintiff to
claim an injunction against the natural
successors of Algu. Even if it is presumed
or accepted that Algu and Bhagirathia had
no issue, the succession would still
continue and revert to the successors in
law as per the family tree, from bottom to
top through reversion of rights. Mere
divestment of interest in the deceased
Algu's property would not be sufficient to
prove the plaintiff's case for title and
possession
to
grant
an
injunction,
particularly when the plaintiff failed to
prove his case of coming into possession
through his father Hira, based on an
unproven
relationship
between
Bhagirathia and his father. Plaintiff's plea
that
he
acquired
ownership
and
possession
due
to
the
relationship
between Bhagirathia and plaintiff's father
Hira was not substantiated by any cogent
oral or documentary evidence. (Para 22,
24, 25)

Allowed. (E-5)

List of Cases cited:

1. Anathula Sudhakar Vs P. Buchi Reddy (dead)
by Lrs. & ors., 2008 (4) SCC 594

2. Lurkhur Vs Jhuri & ors., 1972 RD 271

3. Kizhakke Vattakandiyil Madhavan (Dead)
through LRs. Vs Thiyyurkunnath Meethal Janaki
& ors., 2024 (1) ARC 688 (SC).

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri H.N. Singh, learned
Senior
Counsel
assisted
by
Shri
Raghvendra Shankar Srivastava for the
appellant and Shri Tripathi B.G. Bhai,
learned
counsel
for
the
contesting
respondents.

2. The instant second appeal has
been filed by the defendants-appellants of
Original Suit No. 132 of 1979 challenging
the judgment and decree dated 11.10.1984,
whereby
the
learned
Special
Judge,
Ghazipur has set aside the trial court's
judgment dismissing the suit and has,
consequently, granted a decree in favour of
the
plaintiff-respondent
permanently
restraining the defendants-appellants from
causing interference in the possession of
the plaintiff over the disputed portion of the
land.

3. During the course of hearing,
the Court found that narration of facts
contained in the judgments of the trial court
and the first Appellate Court, when
compared to the original pleadings, was
found lacking and, therefore, the Court is
narrating the relevant facts after perusing
the original record.

4. Since shares of the respective
parties, their entitlement and divestment is
the issue directly involved in the present
case, it is necessary to draw a family tree of
one Thanu, as pleaded in first paragraph of
the plaint. It depicts as follows:
7 All. Smt. Laxminiya Vs. Deena Nath
1281
PLAINT CASE

5. As per the plaintiff Deena Nath,
a partition took place amongst the aforesaid
family members in or about year 1881,
according to which, parties started residing
as per the shares separately allotted to
them. Plot No. 213, area 6 biswa, 16 dhurs,
was the joint property of Baiju, Sarnaam
and Tallu, recorded as such in the
settlement year 1981-82. The property, on
account of its location and proximity, was
jointly used by all the three branches.
Bhagirathia wife of Algu, after the death of
Algu, resided in the house in the capacity
of his widow and the plaintiff's father took
possession over the share succeeded by
Bhagirathia in the disputed property, which
was surrounded by a boundary wall after
the death of Bhagirathia. Consolidation
operations began in the village and the land
covered by gatas No. 213/2 and 213/3,
having been declared as Abadi, was chaked
out from the consolidation operations under
the order dated 12.02.1962 and it was
allotted a new number 114. In paragraph
No. 6 of the plaint, it was stated that
Bhagirathia
had
started
living
with
plaintiff's father and, hence, the plaintiff's
father came in possession over her estate,
which was succeeded by the plaintiff as
owner thereof. The cause of action for
filing suit was alleged on account of
interference caused by defendants, i.e. Hari,
Doodh Nath, Smt. Dhanauti and Ram
Daras shown in the family tree, over the
disputed portion described by alphabets
mentioned in the prayer clause co-relating
the
same
to
the
plaint
map
and,
consequently, a decree for injunction was
claimed. The plaintiff's claim, as such, was
based upon the plea that Bhagirathia started
living with plaintiff's father Hira and,
hence, the plaintiff's father and, after his
death, the plaintiff became owner of the
disputed land to the divestment of all the
defendants.

CONTEST BY DEFENDANTS

6. A joint written statement was
filed by all the defendants stating that
Bhagirathia, after the death of Algu,
performed second marriage with Mahadeo
and out of the said wedlock, one son
namely, Doodh Nath (defendant No. 2) and
a daughter namely, Phulmaniya were born.
Phulmaniya was married to one Aditya and
had two sons, namely, Indradeo and Ram
Chander. The year of marriage between
Bhagirathia and Mahadeo was pleaded
through amendment as 1919. The plea of
partition set up by the plaintiff was
admitted with further statement that certain
Neem tree was purchased by Bhagirathia
for a sum of Rs.32/- on 20.02.1946 in an
auction
held
pursuant
to
execution
proceedings. It was further pleaded that
Bhagirathia was never dispossessed by the
plaintiff's side and continued to enjoy
adverse possession over the estate left by
her first deceased husband Algu, and settled
the same during his life time in favour of
her son Doodh Nath and children of her
daughter
Phulmaniya,
who
are
in
possession over the same. A plea of defeat
of plaintiff's father as against Bhagirathia
during consolidation operations was also
taken and it was also alleged that the
plaintiff's house was not over the disputed
area, but was adjacent to the same and
about which, a compromise had been
facilitated by the Assistant Consolidation
Officer during consolidation operations.
The allegation of some manipulations made
in the revenue records was also levelled
and as far as the plea of the plaintiff that
Bhagirathia joined the company of the
plaintiff's father, the same was specifically
denied and, in so many words at various
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
places in the written statement, second
marriage with Mahadeo in the year 1919
and birth of offspring from the said
wedlock was pleaded.

REPLICA

7. The plaintiff filed replica
reiterating the plaint version and as regards
consolidation operations, it was alleged that
Bhagirathia did not get anything out of the
said operations, but her share stood vested
in Gram Sabha, the Pradhan whereof was
inimical not only to the plaintiff's father,
but also defendants.

TRIAL COURT'S JUDGMENT

8. After the parties led oral and
documentary evidence, the trial court
dismissed the suit by judgment and order
dated 12.10.1982. It accepted the plea of
defendants as regards performance of
marriage
between
Bhagirathia
and
Mahadeo in the year 1919 and also birth
of offsprings from the said wedlock. It
observed
that
since
Doodh
Nathdefendant No. 2, son of Bhagirathia is in
possession over the disputed property, he
would be deemed to be the owner thereof.
Other observations made in the trial
court's judgment are not of much
significance as far as the questions to be
decided
in
the
present
appeal
are
concerned.

FIRST APPELLATE COURT'S
JUDGMENT

9. The plaintiff filed Civil Appeal
No. 481 of 1982 against the trial court's
judgement. The appeal has been allowed by
the judgment and order impugned and a
decree for injunction has been granted
against the present appellants.
10. The lower Appellate Court has
also accepted the defence plea as regards
marriage
between
Bhagirathia
and
Mahadeo,
but,
by
a
very
lengthy
deliberation made in the judgment, it dealt
with succession of the estate left by late
Bhagirathia, who died in the year 1956, as
per the provisions of Uttar Pradesh
Zamindari Abolition & Land Reforms Act,
1950. The lower Appellate Court held that
since defendants had taken plea of adverse
possession of Bhagirathia over the estate
left by her first deceased husband Algu, she
would not retain it in the capacity of
absolute owner and, hence, plaintiff's
possession would be deemed to be proved.
As
regards
consolidation
operations,
issuance of Bhumindhari sanad in favour of
defendant No. 2-Doodh Nath along with
Bhagirathia, declaration of Abadi and
chaking out of the same was also discussed
by the lower Appellate Court.

ADMISSION ORDER PASSED IN
INSTANT SECOND APPEAL

11. The instant second appeal was
admitted by order dated 18.01.1985 on
ground Nos. 2, 10 and 11 contained in the
memo of appeal that are quoted as under
and numbered as substantial questions of
law No. 1, 2 and 3 for the sake of
convenience:-

(1) Because even according
to the plaintiff's allegation, he
would be a co-sharer (though the
appellants do not admit the same)
and the injunction as prayed for has
illegally being (been) granted.
(2) Because even if Smt.
Bhagirathia had remarried, she
would not lose her rights in the
property nor was the (there) any
evidence to hold the same.
7 All. Smt. Laxminiya Vs. Deena Nath
1283
(3) Because Algu had died
and remarriage of Bhagirathia with
Mahadeo took place in 1919, since
then
Bhagirathia
remained
in
possession and prescribed new
rights.

12. Though, the language used in
grounds No. 2, 10 and 11, described as
substantial questions law No. 1, 2 and 3, is
not happily worded, the issues involved in
the instant appeal revolve around the pivot
as to what would be the position of the
estate succeeded by Bhagirathia after death
of her first husband Algu and what would
be the effect of her second marriage with
Mahadeo, which was solemnized in the
year 1919.

SUBMISSION OF APPELLANTS

13. Shri H.N. Singh, learned
Senior Counsel appearing for the appellants
vehemently argued that there was no
pleading in the plaint as regards second
marriage performed in between Bhagirathia
and Mahadeo and, therefore, the divestment
of estate succeeded by Bhagirathia from
her first deceased husband Algu, not being
the plaint case, the lower Appellate Court
has wrongly held that Bhagirathia lost her
title and possession after performing
marriage with Mahadeo; that there was no
evidence to prove plaintiff's possession
and, hence, the suit could not be decreed;
that the suit was not filed for declaration
that defendant Doodh Nath is not the owner
and, hence, it was not maintainable; that
title of plaintiff was under cloud, so decree
of injunction is invalid; that if title is
proved, but possession is not proved or
vice-versa, in both the cases plaintiff would
fail; that plaintiff's plea as regards
relationship between his father Hira and
Bhagirathia after the death of Algu was not
established by any cogent evidence; that
devolution of interest left by Bhagirathia
after her death, which took place in the year
1956, as per the provisions of Uttar Pradesh
Zamindari Abolition & Land Reforms Act,
1950, was not an issue involved in the
present case and, therefore, the lower
Appellate Court has committed a patent
error in understanding the case; that once
the plaintiff's father lost battle against the
defendants in consolidation operations, the
civil suit filed re-agitating the same issue
was not maintainable, that bhumidhari
sanad having been executed in the name of
Bhagirathia and her son Doodh Nath
(defendant No. 2), any discussion regarding
divestment of interest in the estate left
behind by Algu co-relating the same to
remarriage of Bhagirathia was uncalled for;
that even if there was some weakness in the
defence case, the same was not sufficient to
decree the suit as the plaintiff has to stand
on his own legs, but he failed to establish
the very factum of coming into possession
based upon his plea of alleged relationship
between Bhagirathia and his father Hira.

14. In support of his case, Shri
Singh has placed reliance upon the
judgement of Apex Court in Anathula
Sudhakar vs P. Buchi Reddy (dead) by
Lrs. And others, 2008 (4) SCC 594 with
special emphasis on paragraph No. 21
thereof laying down the following ratio:-

"21. To summarize, the
position in regard to suits for
prohibitory injunction relating to
immovable property, is as under :
(a) Where a cloud is raised
over plaintiff's title and he does not
have
possession,
a
suit
for
declaration and possession, with or
without a consequential injunction,
is the remedy. Where the plaintiff's
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
title is not in dispute or under a
cloud, but he is out of possession,
he has to sue for possession with a
consequential injunction. Where
there is merely an interference with
plaintiff's lawful possession or
threat
of
dispossession,
it
is
sufficient to sue for an injunction
simpliciter.
(b) As a suit for injunction
simpliciter is concerned only with
possession, normally the issue of
title will not be directly and
substantially in issue. The prayer
for injunction will be decided with
reference
to
the
finding
on
possession. But in cases where de
jure
possession
has
to
be
established on the basis of title to
the property, as in the case of
vacant sites, the issue of title may
directly and substantially arise for
consideration, as without a finding
thereon, it will not be possible to
decide the issue of possession.
(c) But a finding on title
cannot be recorded in a suit for
injunction,
unless
there
are
necessary
pleadings
and
appropriate issue regarding title
[either specific, or implied as
noticed in Annaimuthu Thevar
(supra)]. Where the averments
regarding title are absent in a plaint
and where there is no issue relating
to
title,
the
court
will
not
investigate or examine or render a
finding on a question of title, in a
suit for injunction. Even where
there are necessary pleadings and
issue,
if
the
matter
involves
complicated questions of fact and
law relating to title, the court will
relegate the parties to the remedy
by way of comprehensive suit for
declaration of title, instead of
deciding the issue in a suit for mere
injunction.
(d)
Where
there
are
necessary pleadings regarding title,
and appropriate issue relating to
title on which parties lead evidence,
if the matter involved is simple and
straight-forward, the court may
decide upon the issue regarding
title, even in a suit for injunction.
But such cases, are the exception to
the normal rule that question of title
will not be decided in suits for
injunction. But persons having
clear title and possession suing for
injunction, should not be driven to
the costlier and more cumbersome
remedy of a suit for declaration,
merely because some meddler
vexatiously or wrongfully makes a
claim or tries to encroach upon his
property. The court should use its
discretion carefully to identify
cases where it will enquire into title
and cases where it will refer to
plaintiff to a more comprehensive
declaratory suit, depending upon
the facts of the case."

SUBMISSION OF
RESPONDENT

15. On the other hand, Shri
Tripathi B.G. Bhai, learned counsel for the
respondents, by referring to Section 2 of
the Hindu Widow's Remarriage Act, 1856,
vehemently argued that once the defendants
themselves pleaded about remarriage by
Bhagirathia with Mahadeo in the year
1919, which plea was accepted by both the
courts
below,
whatever
estate
she
succeeded from her deceased first husband
Algu, she was left with no rights therein.
He further argued that the disputed plot had
7 All. Smt. Laxminiya Vs. Deena Nath
1285
been declared as Abadi and, consequently,
chaked
out
from
the
consolidation
operations and, hence, the Appellate Court
has rightly held that Bhagirathia was left
with no rights. He submits that the Act of
1856 is not dependent upon the nature of
land whether it is abadi or agricultural and
once Bhagirathia was left with no rights
and as per her own case that she joined
Mahadeo's
company
after
performing
second marriage with him, the plaintiff's
possession has been rightly found over the
disputed property and, consequently, the
defendants have been rightly injuncted.
Shri Tripathi, however, concedes to the
aspect that after the death of Bhagirathia in
1956, succession of her share would be of
no consequence as her heirs would not get
better rights then what she had succeeded
from late Algu and, consequently, the
discussion on succession based upon the
provisions of U.P. Zamindari Abolition &
Land Reforms Act, 1950, was uncalled for,
but it would not affect the merits of the
plaintiff's case.

16. Shri Tripathi has vehemently
pressed Section 2 of the Act of 1956 in
service and has also relied upon the
following judgments:-

(1) Lurkhur vs. Jhuri and
others, 1972 RD 271.
(2) Kizhakke Vattakandiyil
Madhavan (Dead) through LRs.
vs.
Thiyyurkunnath
Meethal
Janaki and others, 2024 (1) ARC
688 (SC).

ANALYSIS OF RIVAL
CONTENTIONS

17. Having heard the learned
counsel for the parties, the main question
that arises for consideration is as to what
rights Bhagirathia succeeded from her
deceased first husband Algu and what is the
effect of performance of marriage by her
with Mahadeo in the year 1919. The other
question is as to what rights the plaintiff
would get to obtain a decree for injunction
in respect of estate left behind by Algu.

18. Once both the courts below
have found performance of marriage
between Bhagirathia and Mahadeo in 1919
as a fact proved, about which both the
learned counsel have also no dispute, it is
necessary to refer to Section 2 of the Hindu
Widow's Remarriage Act, 1856 as argued
by Shri Tripathi from the respondent side.
The provision reads as under:

"2. Rights of widow in
deceased husband's property to
cease on her remarriage- All rights
and interests which any widow may
have in her deceased husband's
property by way of maintenance, or
by inheritance to her husband or to
his lineal successors, or by virtue of
any
Will
or
testamentary
disposition conferring upon her,
without
express
permission
to
remarry, only a limited interest in
such property, with no power of
alienating the same, shall upon her
remarriage cease and determine as
if she had then died; and the next
heirs of her deceased husband, or
other
persons
entitled
to
the
property
on
her
death,
shall
thereupon succeed to the same."

19. A bare perusal of Section 2
would show that the widow shall, upon her
remarriage, cease to have any right in
respect of her deceased husband's property
and she would be treated as dead soon after
her second marriage. The estate left behind
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
by her deceased husband, then, shall
devolve upon the next heirs of her deceased
husband.

20. The Division Bench of this
Court in Lurkhur (supra), by referring to a
very old decision in the case of Mst.
Parbati vs. Ram Prasad, AIR 1933 Oudh
92 and judgment of Privy Council in Mt.
Lajwanti vs. Safa Chand, AIR 1924 Privy
Council 121, held that when a hindu widow
remains in possession of her first husband's
property even after her remarriage for more
than 12 years, the mere fact of a remarriage, in the absence of any assertion of
absolute ownership or change in the
manner of her possession, cannot enlarge
her estate into an absolute one. She thereby
acquires title only to a widow's estate
which inures to the estate of her deceased
husband, and would, on her death, descend
to his reversioner.

21.

In
Velamuri
Venkata
Sivaprasad (Dead) by LRs. vs. Kothuri
Venkateswarlu (dead) by LRs. and Others,
2000 (2) SCC 139, the Supreme Court has
held that Section 2 of the Act of 1856 has
taken away the right of a widow in the
event of remarriage and the statute is very
specific to the effect that the widow on
remarriage would be deemed to be
otherwise dead. The words "as if she had
then died" are rather significant and the
legislature intended that in the event of a
remarriage, one loses the rights of even the
limited interest in such property and the
next heirs of her deceased husband shall
succeed to the same. It is, thus, a statutory
recognition of a well-reasoned pre-existing
Shastric law. The judgment in Velamuri
Venkata Sivaprasad (supra) has very
recently been considered by the Supreme
Court in the judgment of Kizhakke
Vattakandiyil Madhavan (supra).
22. In view of above discussion,
this Court is of the considered view that
Bhagirathia lost her title in the estate left by
her deceased husband Algu after she
performed marriage with Mahadeo in the
year 1919 and, to that extent, the finding of
lower Appellate Court is in consonance
with law and arguments of Shri Tripathi do
have substance. On arriving at the said
conclusion, the Court has now to see the
impact of such finding on the claim for
injunction
and
as
to
whether
mere
divestment of interest or title in the estate
of deceased Algu would suffice passing of
a decree in favour of plaintiff-respondent.

23. The specific plea of the
plaintiff in paragraph 10 of the replica was
that Bhagirathia's share succeeded by her
from late Algu had vested in Gram Sabha,
as also observed by the lower Appellate
Court. Once it is so, a question would arise
as to how, in absence of Gram Sabha being
a party to the proceedings, the plaintiff
could have succeeded to obtain a decree
against the defendants. The plea of the
plaintiff that he acquired ownership and
possession on account of relationship
between Bhagirathia and plaintiff's father
Hira, does not stand substantiated by any
cogent oral or documentary evidence. The
lower Appellate Court has, while arriving at
a conclusion that Bhagirathia did not retain
her possession as absolute owner of the
property on account of performance of
remarriage with Mahadeo, immediately
reached to a conclusion that the plaintiff's
possession over the property had been
proved by documentary evidence and
circumstances of the case. The relevant
portion of the Appellate Court's judgment
in this regard reads as under:-

"In my opinion, therefore,
remarriage of Smt. Bhagirathia
7 All. Smt. Laxminiya Vs. Deena Nath
1287
with Mahadeo stands proved. After
remarriage, Smt. Bhagirathia did
not retain her possession over the
disputed property and in a case she
did not become absolute owner of
the same, the plaintiff's possession
over the property in dispute has
been
proved
by
documentary
evidence and circumstances of the
case."

24. In the opinion of this Court,
mere divestment of interest in the deceased
Algu's property would not be sufficient to
prove the plaintiff's case for title and
possession so as to grant a decree for
injunction, particularly when he failed to
prove his plaint case of coming in
possession through his father Hira out of
unproved relationship between Bhagiratia
and his father. A plaintiff cannot get
strength from the defence case, but has to
succeed on his own legs and merits of his
claim.

25.

There
is
another
very
significant aspect as to why the decree of
injunction could not be passed. Once it was
held that Bhagirathia ceased to have an
interest or rights in Algu's property after
she performed remarriage, Algu's estate
would, then, devolve upon his other natural
successors as per the law prevailing at that
time. No successor of the deceased Algu
was impleaded as a party to the suit, either
initially or after the defendants put their
defence. What the Court notices from the
family tree is that Hari, Doodh Nath, Smt.
Dhanauti and Ram Daras alias Ram Das,
i.e. all the defendants, belonged to a
different branch coming from Baiju,
whereas Algu belonged to a different
branch coming from Sarnaam. Therefore,
in order to succeed, it was incumbent for
the plaintiff to claim injunction against the
natural successors of Algu. Even if it is
presumed or accepted that Algu and
Bhagirathia had no issue, in that event too,
succession could not stop flowing and it
would revert to the successors in law as per
the family tree, may be from bottom to top
through reversion of rights. It is well settled
that claim for injunction intrinsically
involves declaration of title and in absence
of real successors of deceased Algu,
plaintiff
could
not
succeed
against
Bhagirathia or other persons belonging to
different branch coming from Baiju, Gopi,
Sundar, etc. The case of the plaintiff,
therefore, was liable to fall as he himself
alleged vesting of property in Gram Sabha
on the one hand but even then proceeded
against the persons, who did not succeed
rights in the property. In fact, the plaintiff's
case was based upon a plea of possession
alone and though title was asserted in
favour of the plaintiff's father Hira, no
source thereof having been established on
record, the suit was liable to be dismissed
on this ground, if not on the grounds
mentioned by the trial court in its
judgment.
Had
the
co-sharers,
i.e.
successors from late Algu been on record, a
situation for claim for partition would also
have arisen and, in that situation, the suit
simplicitor for injunction could not have
been maintainable; however the plaintiff
very cleverly avoided real contest in the
given facts of the case and proceeded on
his
plea
of
possession
and
alleged
ownership by putting an unsuccessful story
of
alleged
relationship
in
between
Bhagirathia and his father Hira. Dislodging
the plaintiff's claim for injunction is,
therefore, found in consonance with the
ratio laid down by the Supreme Court in
paragraph 21 of Anathula Sudhakar
(supra).

CONCLUSION
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
26. Consequently, the substantial
questions of law framed by this Court are
answered in the manner that though, after
performance of remarriage by Bhagirathia
with Mahadeo in the year 1919, she ceased
to have any right or interest in the estate of
her deceased husband Algu, the same was
not sufficient to decree the suit for
injunction and, consequently, the judgment
of the lower Appellate Court granting a
decree deserves to be set aside.

27. Accordingly, the second appeal
succeeds and is allowed with above
findings and observations.

28. The judgement of First
Appellate Court dated 11.10.1984 passed in
Civil Appeal No. 481 of 1982 (Deena Nath
vs Lachhminia and others) is hereby set
aside. The Original Suit No. 132 of 1979
(Shri Deena Nath vs Shri Hari and others)
stands dismissed.

29. Office is directed to remit the
record of first appellate court as well as
trial court to the District Judge, Gazipur
forthwith so as to facilitate return of
original documents to the concerned parties
by the District Court office in accordance
with the provisions of General Rules
(Civil).
----------
(2024) 7 ILRA 1288
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.07.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 224 of 1986

Chandra Bhan ...Appellant
Versus
Aditya Prasad ...Respondent

Counsel for the Appellant:
H.S. Sahai, Avadhesh Kumar, Om Prakash
Pandey

Counsel for the Respondent:
R.S. Pandey, Aditya Kumar Tiwari, Chandra
Bhooshan, Suyash Dwivedi, Vaishali Mishra

Civil Law - Civil Procedure Code, 1908 -
Section 100 - O.41 R. 24, O.41 R. 27 -
Evidence Act, 1872 - Sections 45 & 101 -
Uttar Pradesh Consolidation of Holdings
Act, 1953 - Sections 5(c), 5(1)(c) (ii), 9A -
Plaintiff-respondents filed suit for specific
performance
with
allegation
that
defendant no.1 was sirdar of disputed
land - An agreement for sale had taken
place in between plaintiff and defendant
No.1 for Rs.8000/-. and Rs.6000/- was
paid to defendant no.1 - Defendant No.1
executed
Ikrarnama
and
agreed
to
execute a sale deed after becoming
Bhumidhar - When the plaintiff asked
defendant no.1 to pay remaining amount
and get sale deed executed, she told that
sale deed was executed in favour of
defendants no. 2 to 5 - Defendants
contended that she deposited twenty
times
land
revenue,
thereafter
she
became the Bhumidhar - Trial court
decreed the suit of plaintiff, directed that
defendant no.1 shall execute sale deed
after receiving Rs.2000/- , failing which
the plaintiff would executed on expenses
of defendant - Defendant filed appeal,
dismissed - Held, the Trial Court, after
considering evidence found that P.W.1 to
P.W.3
proved
agreement
to
sale
in
accordance with law - In view of Section
101, the burden to prove that agreement
was not made by her was on her - The
trial court found that sale deed was
executed
during
consolidation
proceedings, therefore it is illegal and non
effective - The plaintiff have proved their
readiness and willingness of performance
and get the sale deed executed. (Para 4, 6,
7, 16, 17, 22, 24)

Second Appeal Dismissed. (E-13)