Judgement
- One Munshi died issueless and Mt. Basanti took possession of his landed property. Thereupon Munshis nephew Pohlu filed this suit against her for possession of that property on the ground that she was not the widow of the deceased, his contention being that she was his concubine. Mt. Basanti contested the suit pleading that after the death of her former husband she was legally wedded by Munshi in the Karewa form.
2. The trial Court decreed the suit on 13-12-2003B., and the defendants appeal was dismissed by the District Judge, on 22-5-2004B. Thereafter the present second appeal was filed on 21-7-2004B. As the Bilaspur (Courts) Order, 1949 came into force on 8-7-1949, about two years after the institution of the present second appeal, its provisions are not applicable to this appeal. The present appeal is governed by the provisions of the Bilaspur State Courts Act, 2001B, and under S. 21 of that Act a second appeal lies on grounds which are the same as contained in S. 100, Civil P. C.
3. The sole question for determination in this appeal is whether the appellant Mt. Basanti was, or was not, the legally wedded wife of Munshi deceased. That is a question of fact on which concurrent findings against the appellant have been recorded by the two Courts below, and therefore, prima facie, a second appeal is barred. It was, however, contended by the learned counsel for the appellant that in arriving at that finding of fact the Courts below had committed errors of law and substantial errors of procedure. If that be so, the present second appeal would certainly be maintainable. It has therefore, to be seen what errors of law or of procedure, if any, had been committed by the Courts below in arriving at the said finding of fact.
4. The first contention put forward on behalf of the appellant was that the lower appellate Court had wrongly disregarded two documents filed on her behalf. These were copies of two deeds alleged to have been executed by Munshi in favour of the appellant, one on 19-4-1984 and the other on 1-5-1984B. The trial Court held them to have been proved but was of the opinion that they were documents which were not worthy of credence as they appeared to have been manufactured merely for the purpose of proving a marriage which had actually not taken place. That Court arrived at this conclusion on an appraisal of the oral evidence produced in the case. Almost all the witnesses produced on behalf of the plaintiff-respondent belonged to the village where Munshi lived, while all the witnesses produced on behalf of the appellant except one were outsiders, and therefore that Court gave preference to the former. The lower appellate Court not only held that the documents were of a purposive nature, but it also rejected them on the ground that they had not been proved. In this latter conclusion he was right since the originals of the documents had not been filed and no case for proving the originals by the secondary evidence of their copies had been made out under S. 65, Evidence Act. That being so, it cannot be said that the two Courts below wrongly doubted the authenticity of the documents, or that the lower appellate Court committed a mistake of law in holding that the documents had not been proved.
5. Next it was urged that the plaintiff-respondent himself reported as Lambardar the birth of a daughter to the appellant by Munshi deceased in 1989 B., but, as rightly held by the Court below, the mere fact of the birth of a child as a result of the union did not prove that the union was a lawful one.
6. It was next contended that the Courts below had wrongly disregarded an admission of the plaintiff-respondent himself that the appellant was the legally wedded wife of Munshi. This admission is said to have been made by the respondent before a Tehsildar in connection with an application which the appellant had made on the death of Munshi for continuation in her favour of a military pension of which the deceased had been in receipt. The Tehsildar was produced as a defence witness to prove the admission, but the plaintiff-respondent categorically denied having made it. The Courts below have rejected the testimony of the Tehsildar on the grounds that the statement of the respondent had not been filed and that the Tehsildar could not be expected to have remembered exactly what statement the respondent had made. It cannot be said that any error of law or procedure was committed by the Courts below in arriving at that conclusion.
7. Finally, it was urged on behalf of the appellant that although admittedly the appellant and Munshi deceased had lived as husband and wife for 10 or 11 years and a child was born of the union, the Courts below had failed to draw the presumption, which they were bound under the law to draw, that the appellant was the legally married wife of Munshi. There is no doubt that failure to draw a presumption under S. 114, Evidence Act, if such a presumption could validly be drawn, would amount to an error of law. That presumption has not been drawn in the present case because on the aforesaid evidence produced in the case the Court below was of the opinion that the connection of the appellant with Munshi commenced as his concubine and was never legalised by marriage. It is manifest therefore that it cannot be said that the Court below was in error in refusing to draw the presumption since although the law presumes in favour of marriage and against concubinage it does not presume that concubinage ripens into marriage by mere efflux of time or birth of children : Indar Singh v. Thakur Singh, AIR 1921 Lah 20 and Mt. Indi v. Jaimal Singh, AIR 1927 Lah 48.
8. In the result, therefore, I hold that neither an error of law nor a substantial error of procedure, as contemplated by S. 100, Civil P. C., was committed by the Court below in arriving at the finding of fact that the appellant was not the legally wedded wife of Munshi deceased. That finding of fact cannot, therefore, be disturbed in this second appeal, and it is accordingly dismissed with costs to the respondent and the judgment and decree of the lower appellate Court are affirmed.
Appeal dismissed.