JUDGMENT
S.K. Katriar, J.
1. The defendants second set are the appellants against a judgment of reversal. This appeal is directed against the judgment and decree dated 17-5-96, passed by the learned 2nd Additional District Judge, Khagaria, in Title Appeal No. 2 of 1993 (Krishnadeo Sharma v. Jitni Devi), whereby the plaintiffs’ appeal was allowed, the judgment and decree dated 5- 3-93, passed by the learned 1st Subordinate Judge, Khagaria, in Title Suit No. 80 of 1986 Krishnadeo Sharma v. Jitni Devi, has been set aside, and the suit has been decreed. The defendants second set (the appellants herein) are purchasers from defendants first set. The plaintiffs are the respondents herein. We shall go by the description of the parties before the trial Court.
2. The plaintiffs instituted the suit for declaration that the plaintiffs are the sole surviving heirs of Late Dahu Sharma @ Dahu Das, to set aside the registered sale deed dated 21-7-80 executed by defendant first party (Jitni Devi), in favour of defendants second party (the appellants herein), being void, and for the declaration that the Jamabandi created in favour of the defendant second party (the appellants herein) is illegal.
3. The case of the plaintiffs in short is that one Dahu Sharma died in the year 1980 leaving behind his wife (widow Sanjho Devi), his son (Krishnadeo Sharma), and his grandson (Arjun Sharma). The plaintiffs are the members of a Joint Hindu family governed by Mitakshra School of Hindu Law, and plaintiff No. 1 is the Karta of the family. The further case of the plaintiffs is that the lands of Khata No. 272, comprising of plot Nos. 528 and 829, measuring 2 bighas, situate in mauja Pakrail, within Gogri P.S., has been alienated by defendant 1st party on 21-7-86, falsely claiming herself to be the widow of Dahu Sharma, in favour of defendant IInd party, for a consideration of Rs. 30,000/-. The sale-deed is void ab initio. The plaintiffs succeeded to the property left by Dahu Sharma @ Dahu Das and continue to be in possession thereof. The further case of the plaintiffs is that defendant 1st party is a wanton lady and left her home, roamed about and developed immoral relationship with Dahu Sharma. The defendant 1st party had come with a child from before named Manohar Sharma, not born of her illegitimate relationship with Dahu Sharma. The defendant 1st party has no right to alienate the properties belonging to the plaintiffs. The plaintiffs are in continuous possession of the land left by Dahu Sharma, being the heirs and survivors of Dahu Sharma. The deed in question is void and the jamabandi created in the names of the defendants is illegal, collusive, not binding on plaintiffs. Execution of the sale-deed and the threats by the defendant IInd party regarding dispossession from Schedule-A land necessitated the filing of the suit.
4. The case of the defendant IInd party, who appeared in the suit and filed W.S., is that the suit is maintainable and suffers from non-joinder of Savitri Devi, a daughter of Jitni Devi (defendant 1st party). Dahu Sharma died on 15-6-84, leaving behind his 1st wife, Sanjho Devi, his son Krishnadeo Sharma, and his grandson, Arjun Sharma, Jitni Devi (defendant 1st party, and his second wife), Manohar (his son from second wife), and Savri Devi, (the daughter from the second wife). The further case of the defendant second party (the appellants herein) is that the property left by Dahu Sharma did not fall on plaintiffs alone, but on Jitni, her son (Manohar), and her daughter (Savri) too, and they also came in possession of the property left by Dahu. Dahu had only one son from his first wife, and at the request of his first wife married Jitni near about the year 1972 according to customs and rights of marriage in Sagai form. 4 bighas 16 katahas and 10 dhoors of land besides homestead land belonged to Dahu. The sale-deed executed 6h 21-7-86 by Jitni in favour of defendant IInd party is valid, for valuable consideration and title passed to defendant IInd party through the registered deed which was acted upon. Jitni was legally married wife of Dahu Sharma, and Manohar was born of Dahu Sharma from his second wife, Jitni. The further case is that Jitni Devi did not reside at Laxmipur within Purnea district. The suit is hit by Section 34 of the Specific Relief Act as defendant llnd party came in possession of the suit land on 21-7-86 itself. The further case is that Savri was born of Jitni from marriage with Dahu, and Manohar is elder than Savri. The further case is that Jitni contracted another marriage after the death of Dahu, but cannot be divested from the property which vested in her after death of Dahu.
5. Jitni Devi, wife of Tanuki Sharma of village Laxmipur P.S. Rupauli, Purnea, was originally impleaded as a defendant, but the plaintiff filed an application for service of summons on the defendant 1st party on the changed address, namely, Jitni Devi, wife of Koko Sharma of village Fulbaria, P.S Beldaur, Khagaria. Jitni Devi with the address aforesaid appeared in the suit and filed her written statement. Her case as per her written statement was that she is not a legally married wife of Dahu, remained throughout with Wakil Sharma, son of Baijnath Sharma, and in later part remained with Dahu Sharma. He assured her to give 2 bighas of land for her livelihood, but could not execute any deed in her favour, and defendant second set and Koko Sharma convinced her that she had right to dispose of 2 bighas of land of Dahu and got the sale-deed executed. She being an illiterate lady, went to the registry office along with Koko and defendant No. 2, and took her left thumb impression on the deed but no money was paid to her. Her further case is that the plaintiffs did not materialise the wish of a father.
6. On the basis of the pleadings of the parties the following issues have been framed:
a. Is the suit as framed maintainable ?
b. Have the plaintiffs got valid cause of action or right to sue ?
c. Is the suit barred by law of limitation, waiver, estoppel and acquiescence ?
d. Whether the suit is bad for non-joinder of necessary parties ?
e. Whether Jitni was legally married wife of Dahu Sharma and whether son of daughter were born to Jitni from Dahu ?
f. Whether there is custom in the family of the parties to marry with second wife during the life time of first wife with or without the consent of the first wife ?
g. Whether Jitni has got perfect right title to sale the property ?
h. Whether the deed dated 21-7-86 executed by Jitni in favour of defendant IInd party valid?
i. Whether the plaintiffs have got title and possession over the suit land ?
j. Whether the plaintiffs are entitled to a decree as praved for?
k. To what other relief or reliefs the plaintiffs are enutled ?
The learned trial Court held that Jitni was not a legally married wife of Dahu Sharma and has had no saleable interest in the suit and to part with had no saleable merest in the suit land to part with in favour of defendant IInd party. However, the suit vas dismissed on the ground that the same suffers from non-joinder of necessary parties as Savri, daughter of Jitni, has not been impleaded as party in the suit. He also held that the suit is hit by Section 34 of Specific Relief Act on the basis that defendant IInd party paid rent to the state and obtained rent receipts. The trial Court treated the rent receipts to be the evidence of possession of defendant IInd party over the suit land.
7. Aggrieved by the judgment of the trial Court, the plaintiffs preferred appeal before the District Judge which was allowed by the impugned judgment, and that of the trial Court has been set aside. The learned Court of appeal below formulated the following three questions for his consideration:
(a) Whether suit suffers from non-joinder of parties ?
(b) Whether Savri was born to Jitni from her marriage with Dahu ?
(c) Whether the suit is hit by Section 34 of Specific Relief Act ?
He has held that the suit is not hit by the provisions of Section 34 of the Specific Relief Act. He has further held that Dahu Sharma had died in 1980, leaving behind his widow Sanjho Devi. Jitni (the defendant first set), was in his keeping and was not his legally wedded wife. Therefore, Savri was not born out of a legitimate marriage. In that view of the matter, he has held that the suit did not suffer from non-joinder of necessary party, namely, Savri. The defendant second set, being the purchaser from Jitni has preferred the present appeal.
8. While assailing the validity of impugned judgment, learned Counsel for the appellant has formulated three substantial questions of law which, in his submission, arise for consideration in this appeal. It is submitted that the suit is hit by the provisions of Section 34 of the Specific Relief Act. The plaintiffs have only asked for setting aside the sale-deed in question without consequential relief of recovery of possession. It is further submitted that the notice had not gone to real Jitni Devi who was the widow of Dahu Sharma and the vendor of defendant second party. Notice had in fact gone to a different Jitni Devi describing her as the wife of Koko Sharma. He lastly submitted that even an illegitimate daughter has an interest in the property and, therefore, Savri Devi was a necessary party in the suit in whose absence the suit is fit to be dismissed as was rightly held by the trial Court. Reliance is placed on the provisions of Section 11 of the Hindu Marriage Act.
9. Learned Counsel for the plaintiffs (the respondents) has submitted in opposition that the learned Court of appeal below has held as an issue of fact that the plaintiffs have although been in possession of the suit property and, therefore, there was no need for them to seek the consequential relief of recovery of possession. He further submits that mutation as an evidence of possession is rebuttable piece of evidence which has been duly discharged by the plaintiffs. He relies on the judgment of the Supreme Court Sita Ram Bhau Patil v. R.N. Patil (Para 20). He next submits that the contention that notice had gone to Jitni Devi by a wrong address or to a wrong person, was not raised before the trial Court and, therefore, no issue was framed, nor was it raised before the learned Court of appeal below. He has lastly submits that the plaintiffs have not been able to prove that Savri was the daughter of Jitni and was bom out of legitimate marriage between her and Dahu Sharma. Therefore, Savri was not a necessary party nor a proper party.
10. Having considered the rival submissions, I am of the view that this appeal is fit to be dismissed. Learned Counsel for the respondents is right in his submission that the suit is not barred by the provisions of Section 34 of the Specific Relief Act. The learned Court of appeal below has clearly found in paragraph 14 of its judgment that Jitni never got possession of the suit property. Therefore, she could not have handed over possession of the same to her vendee, namely, defendants second set (the appellants herein). Law is well settled that provisions of Section 34 of the Specific Relief Act do not apply to a situation where the plaintiffs were never out of possession. Therefore, I entirely agree with the finding recorded by the learned Court of appeal below that the plaintiffs in the facts and circumstances of the present case were not required to pray for the consequential relief of recovery of possession. I, therefore, hold that the suit not hit by the provisions of Section 34 of the Act.
11. The next contention advanced on behalf of the appellant is that notice did not go to Jitni Devi, the vendor of the defendants (the appellants), but had gone to a different person of the same name who was the wife of Koko Sharma. I am unable to entertain this contention for the reason that this issue was not raised before the trial Court and, therefore, no issue was framed. The same was not raised before the learned Court of appeal below, nor could have been raised for the same reason. In that view of the matter, the contention is rejected. Furthermore, Jitni Devi did enter appearance in the suit and had filed her separate written statement. It was open to the defendants second set (the appellants herein) to produce Jitni Devi as a witness to establish the identity of his vendor. There is one more aspect of the matter. The learned Court of appeal below has found in his judgment that Jitni Devi was a woman of loose character and was flitting from person to person. He had obviously passed on to Koko Sharma after the death of Dahu Sharma in 1980. The contention is, therefore, over ruled, and I accordingly hold that Jitni Devi, the vendor of the defendants second set, was properly represented before the trial Court.
12. The third and the last contention advanced on behalf of the defendants (the appellants) is that the suit is bad in law for non-joinder of Savri. The learned Court of appeal below has found in paragraph 12 of the impugned judgment that Jitni Devi had entered appearance in the suit and filed a separate written statement and did not take any stand with respect to her relationship with Savri. She also did not appear as a witness in support of her written statement. The defendants second set (the appellants herein) had said in their written statement that Savri Devi was the daughter of Jitni Devi and Dahu Sharma, but did not lead any worthwhile evidence in support thereof. The learned Court of appeal below has clearly found that Dahu Sharma died leaving behind Sanjho Devi as his widow, Jitni was in his keeping and was not his legally wedded wife. In that view of the matter, the Court of appeal below has rightly held that there is no material on record to show that Savri was the daughter of Jitni Devi and Dahu Sharma. The contention advanced on behalf of the appellant is, therefore, rejected.
13. In the result, this appeal is dismissed with costs throughout.