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PETITIONER: RANGANATH PARMESHWAR PANDITRAO MALI AND ANOTHER

       Vs.

RESPONDENT: EKNATH GAJANAN KULKARNI AND ANOTHER

DATE OF JUDGMENT:       12/01/1996

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) HANSARIA B.L. (J) MAJMUDAR S.B. (J)

CITATION:  1996 AIR 1153            1996 SCC  (2) 226  JT 1996 (1)   173        1996 SCALE  (1)208

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.B. PATTANAIK, J.      Leave granted.      The appellants  are the  plaintiffs who  filed  a  suit seeking injunction  against the  respondents in the Court of Civil Judge,  Junior Division in the district of Ahmednagar. The said suit was registered as Suit No. 200 of 1985. It was alleged that  the common  ancestor  Bhanudas  had  two  sons Panditrao and  Gajanan. Plaintiffs are the sons of Panditrao from his  marriage with  Shevantabai and  the defendants are the sons  of Gajanan. The further case of the plaintiffs was that there had been a petition between Panditrao and Gajanan and the  suit property  admeasuring 3.18 hectares in village Kongoni  had   been  alloted  to  the  heirs  of  Panditrao. Panditrao died  in the year 1976 leaving behind his sons the plaintiffs and  the widow  Shevantabai. Shevantabai  died in 1977  and   thereafter  the  plaintiffs  are  in  continuous possession of  the suit  property.  The  defendants  however managed to  get their names entered in the revenue record by way of  mutation. Against  the said  order of  mutation  the plaintiffs preferred  an appeal  and the appellant authority had set  aside the  order  of  mutation  in  favour  of  the defendants. But  still the  defendants having obstructed the plaintiffs’  possession,   the  plaintiffs  filed  the  suit seeking relief  of injunction praying that the defendants be restrained from  obstructing the  peaceful possession of the plaintiffs. The  defendants filed  written statement denying the averments made in the plaint and took the stand that the plaintiffs are  not the  legal heirs of Panditrao, they also took the  stand that  the property is not ancestral property of the plaintiffs as alleged and the plaintiffs are never in possession of  the same.  According to defendants they being the sons  of brother  of Panditrao  are the only legal heirs and said  Panditrao had  died without  marrying anybody.  On

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these pleadings  the learned Trial Judge framed three issues and recorded the following findings:      1)   Plaintiffs  have   established  the      fact that  Shevantabai is  the  wife  of      Panditrao which is corroborated from the      admission  of   defendant  no.   1  that      Shevantabai was  living  with  Panditrao      and she  was looking  after him while he      was ill.      2)   Plaintiffs are  sons of Shevantabai      who are begotten from Panditrao.      3)   The plaintiffs  are legal  heirs of      Panditrao and  are entitled to claim the      property  which  came  to  Panditrao  on      partition between  Panditrao and  father      of the defendants.      4)   The  disputed  property  being  the      separate    property    of    Panditrao,      plaintiffs are  the only  heirs  to  the      same. Plaintiff No. 1 is residing in the      suit land  by erecting  vasti and  it is      admitted that  after death  of Panditrao      plaintiffs is  in continuous  possession      of the suit land. With these  conclusions,  the  suit  was  decreed  with  the declaration that  the suit  land belongs  to Panditrao,  the father of  the plaintiffs and plaintiffs are the legal heirs and defendants were restrained from obstructing the peaceful possession of the plaintiffs over the suit land.      The defendants  in the  aforesaid suit had also filed a suit for  injunction which had been registered as Civil Suit No. 22  of 1985 and the said suit was accordingly dismissed. Two appeals  were preferred against both the judgments which were registered  as Civil Appeal No. 199/88 and Civil Appeal No. 200/88.  The learned  Additional District Judge reversed the findings  and conclusion  of the Trial Judge and allowed these appeals.  The Appellate  Court came to hold that there has been  no evidence  of  marriage  between  Panditrao  and Shevantabai though Shevantabai was living with Panditrao and both of  them  were  having  illegitimate  relationship.  He further held that mere residing together as husband and wife does not  ipso facto  prove that their marriage is legal and valid and  therefore Ranganath  and  others,  plaintiffs  in Regular Civil  Suit No.  200 of  1985 are  not  entitled  to inherit the property of deceased Pandit. The lower Appellate Court  further   came  to  the  conclusion  that  since  the plaintiffs in Civil Suit No. 200 of 1995 are not entitled to succeed  to  the  property  of  Panditrao,  the  prayer  for injunction  could   not  have   been  granted.   With  these conclusions the judgment and decree of both the suits having been reversed  and the  appeals  having  been  allowed,  the matter was  carried in Second Appeal to the High Court which were registered as Second Appeal Nos. 209 of 1994 and 210 of 1994. The  second Appellate  Court agreed  with the  learned Additional District  Judge  and  came  to  hold  that  since Shevantabai was  ’Mali’ by  caste while Pandit was ’Brahmin’ and there  was no marriage between them and Shevantabai must be held  to be  his concubine  and the lower appellate court rightly held  that the  factum  of  marriage  had  not  been proved. Negating  the contention  with regard to presumption of a  valid marriage  between Shevantabai and Panditrao from the fact  that they have been living together as husband and wife for  a continuous and long period, the second appellate court held  that such  presumption would  arise if  there is evidence on  record to  prove the factum of marriage and the

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fact of  staying together  with the concubine as husband and wife but  since there  is no evidence of factum of marriage, question of  presumption being  attracted  does  not  arise. Consequently it  was held by the second appellate court that the learned  Additional District Judge rightly held that the respondents are  entitled to a decree of injunction in their suit No.  22 of  1985 and  ultimately confirmed the judgment and decree  of the  learned Additional District Judge. It is against this  judgment and  decree of  the second  appellate court, the present appeal by special leave is directed.      The learned  counsel for  the appellants contended that the  lower  appellate  court  as  well  as  the  High  Court committed serious  error by not relying upon the presumption of  a   valid  marriage   when  admittedly   Panditrao   and Shevantabai lived  together for  long years  as husband  and wife and  said fact  was  admitted  by  the  defendants.  He further contended  that non-consideration  of this admission by the  defendant vitiate  the ultimate  conclusion  on  the question of  relationship between Panditrao and Shevantabai. Accordingly he  contended that the said conclusion is liable to be  reversed and  consequently the  plaintiffs in Regular Civil Suit No. 200 of 1985 must be held to be legal heirs of Panditrao and Shevantabai. The learned counsel appearing for the respondents  on the  other hand contended that the lower appellate court  as well as the High Court having considered and recorded  that  there  was  no  valid  marriage  between Panditrao and  Shevantabai, it  would not be proper for this Court  to   exercise  power   under  Article   136  of   the Constitution to  interfere with the conclusion arrived at by the two  courts below  and therefore the judgment and decree of the two courts below are immune from interference.      In view  of the  rival stand  of the  parties the first question that  arises for  consideration is  whether  merely because the factum of marriage has not been established, was it open  for the  lower appellate  court as well as the High Court to  set aside  the finding  of the  Trial Judge, which finding was based on not only arising out of the legality of a presumption  from the  fact of  living together as husband and wife  but also  the admission  of defendant  no. 1  that Shevantabai was  residing with Pandit in the Wada in village for  long   years  and   the  plaintiff  no.  1  is  son  of Shevantabai? It  is no  doubt true that a finding arrived at on a  question of  fact by  the lower appellate court or the High Court  is not  ordinarily interfered with by this Court under Article  136 of  the Constitution. But if such finding is recorded  by non  consideration of  some vital  piece  of evidence or admission of the adversary, then this Court will be fully  justified  in  interfering  with  the  finding  in question. In the case in hand, the consistent evidence being that Panditrao and Shevantabai were living together for long years as  husband and  wife and plaintiff no. 1 is their son and the  defendant also  admitted  the  aforesaid  fact  but contended that  there had  been no  valid  marriage  between Panditrao and  Shevantabai, a  legal presumption does arise, though the  presumption is  rebuttable and  this presumption has not  been rebutted by the defendant. It has been held by this  Court  in  the  case  of  S.P.S.  Balasubramanyam  vs. Surutayan, (1994)  1 SCC  460 that  if a  man and woman live together  for   long  years  as  husband  and  wife  then  a presumption arises  in law  of legality of marriage existing between the two. But the presumption is rebuttable. The High Court, committed an error of law in recording a finding that the presumption  would arise  only if the factum of marriage is proved.  We are  afraid if  factum of marriage is proved, the question  of raising  presumption does  not  arise.  The

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lower appellate  court on  the other hand has merely entered into the  arena of  conjecture and  surmises by  interfering with the  finding of the Trial Judge without considering the relevant and material evidence on the point. In this view of the matter  findings arrived at by the lower appellate court as well as by the High Court on the question of relationship of Panditrao  and Shevantabai cannot be sustained in law. In our considered  opinion a  legal presumption  arises on  the admitted fact  that they were living together as husband and wife and  the said  presumption has  not been  rebutted.  We would accordingly  set aside  the findings of the High Court as well  as the findings of the Additional District Judge on this score  and restore  the finding  of the  Trial Judge on this  core  and  hold  that  Shevantabai  was  the  wife  of Panditrao and plaintiffs having been begotten by Shevantabai from Panditrao  are the  legal heirs  over the  property  of Panditrao and would succeed to the said property.      The next  question arises  for consideration is whether prayer for  injunction granted  by the Trial Court in favour of the  plaintiffs would  have been  reversed by  the  lower appellate court?  We find  from the  judgment of  the  lower appellate court that instead of considering the evidence and the consequential  finding of  possession in  favour of  the plaintiff by  the Trial  Court  the  lower  Appellate  Court merely reversed  the judgment  once coming to the conclusion that the plaintiffs are not the legal heirs of Panditrao. In fact there  is no consideration of evidence of possession by the lower Appellate Court or by the High Court. In that view of the  matter it  would not  be proper  for this  Court  to finally conclude the question and on the other hand it would be proper  to remit the matter to the lower Appellate Court. In the  aforesaid circumstances  the judgment  and decree of the High  Court as  well as those of the Additional District Judge, Ahmednagar  are set  aside. Question  of  Shevantabai being the  wife of  Panditrao and  the plaintiffs  are legal heirs of  Panditrao is  concluded and would not be reopened. But the lower appellate court would re-consider the evidence and the findings on the question of possession to decide the relief of injunction.      The appeals  are allowed with the aforesaid directions. The two  impugned Second  Appeal Nos.  209/94 and 210/94 are remitted back  to the  lower Appellate Court for decision of the appeals  in accordance  with law,  bearing in  mind  the observations  made   above,  after   giving  opportunity  of hearing. Parties to bear their own costs.