JUDGMENT
Sunil Ambwani, J.
1. This defendant’s second appeal arises out of O.S. No. 63 of 1973 for possession of the house in question. The suit was dismissed on 20.3.1975. The District Judge, Rampur allowed the Civil Appeal No. 240 of 1975 on 23.3.1976.
2. According to plaint allegations the house in dispute was owned by one Bassi Lal, who died three years prior to the filing of the suit, leaving his widow Mst. Chameli Devi. She was in possession of the house. On 20.7.1973 she transferred it by a registered sale deed and delivered the possession to the plaintiff. On 22.7.1973 the defendant Nos. 1 to 3, broke open the lock and took possession of the house in plaintiffs absence. The plaintiff lodged a F.I.R. and then filed the suit two days thereafter for possession and for compensation.
3. The defendant Nos. 1 to 3 denied that Bassi Lal was the owner of the house. They claimed that the house actually belonged to one Shri Ashrafi Lal, father of defendant No. 1, who died 15 years ago leaving two sons Bhagwan Saran and Munna and his widow Smt. Gomti as his heirs, who are in possession of the house since then. Smt. Chameli respondent No. 4 is not the widow of Bassi Lal. The wife of Bassi Lal died 15 or 20 years back. He did not remarry. He died without leaving any heir. His brother Sipahi Lal and three nephews including defendant No. 1, who is son of Asharfi Lal are his heirs. The respondent No. 4 is in fact Jamuna Devi. She is widow of Tinku from whom she had one son Chandrasen and daughter Khillo who are alive. She is mother-in-law of the brother of defendant No. 1 and that a fictitious sale deed was executed in collusion of their enemies.
4. The trial court held that Bassi Lal was the owner of the house in suit. Smt. Chameli the defendant No. 4 was not the widow of Bassi Lal. She had no right to transfer the house. The plaintiff-appellant never got possession of the house after the execution of the sale deed, and dismissed the suit.
5. The appellate court proceeded to decide two points for determination:
1. Whether Bassi Lal was the owner of the house in question?
2. Whether the plaintiff acquired any title to the same by transfer?
6. The appellate court considered the oral evidence of plaintiff as P.W. 1; Chameli Devi P.W. 2 and Shiv Shanker P.W. 3. Shiv Shanker was also witness to the sale deed, The documentary evidence (Paper No. 39 Al), and the voter’s list of 1966 established that house No. 257 was occupied by Bassi Lal and Chameli Devi. The voter’s list of 1962 (Paper No. 28C) also recorded that house No. 257 was occupied by Bassi Lal, his wife Kanti Devi and three other persons including defendant No. 1. The appellate court found that Ram Autar-defendant No. 1 and his two witnesses Sultan Khan D.W. 2 and Faqir Chandra D.W. 3 gave inconsistent statements. Ram Autar stated that Bassi Lal lived in another house with his uncle Sipahi Lal. He initially stated that the house of his uncle Sipahi Lal in which Bassi Lal lived was to the south of the disputed land but later he stated that Bassi Lal and his uncle lived in a house which was in the west to the disputed house. When asked again, he stated that the house of his uncle Sipahi Lal was in the direction in which the sun rises (east). Sultan Khan D.W. 2 and Faqir Chandra D.W. 3 corroborated the initial statement of Ram Autar that he lived in the house to the south of the disputed house. Sultan Khan is a neighbour. His house was towards north of the disputed house. The appellate court thus found on the assessment of evidence that Bassi Lal lived in a house alongwith Sipahi Lal and was in fact the owner of the house in question till his death and that thereafter his widow inherited the house.
7. On the second point, the appellate court held that execution of the registered sale deed was proved by the witnesses. The plaintiff paid Rs. 6000 in advance about three or four days before execution of the sale deed and remaining Rs. 2000 at the time of execution before the Sub-Registrar. Chameli Devi admitted to have received the amount.
8. The appellate court considered the oral evidence; the voter’s list and recorded the findings that Chameli Devi was widow of Bassi Lal. In her statement she said that her maternal grandfather used to call her as Jamuna Devi.
9. In her examination-in-chief Chameli Devi stated that she was widow of Bassi Lal and that Tinku Lal was also her husband. In cross-examination, she stated that she had two husbands, one Shyam Lal of village Rohania, and on his death, she married Tinku Lal. The appellate court explained the statement and found that she married Shyam Lal when she was about 11 years old and lived with him for about 10-llyears. Her second husband Tinku Lal died about 17-18 years back. She had stated that she lived with her husband Tinku Lal for about 7-8 years. The appellate court found from her statement that she had married Bassi Lal about 50 years ago and that her marriage to Tinku Lal, who died about 17-18 years ago to place about 24 years ago and thus Bassi Lal was her second husband and Tinku Lal was her last husband. She gave her age to be 60 or 70 years. Shiv Shanker P.W. 3 supported the case that she is widow of Bassi Lal and that he had seen them living together for last 30 years.
10. The appellate court allowed additional evidence in appeal. He let in the death register of Town Area of Bilaspur dated 2.7.1959 (paper No. 14C) in evidence to prove that one Kanti Devi, who was widow of Bassi Lal died about 15 or 16 year’s ago and thus the case set up by the respondents that Chameli Devi had died about 15-16 years back, was not worthy of belief. The entry in the death register was challenged, on which the original death register was summoned. It was brought by Shri Chandra Prakash, Clerk of town area. This register from 19.7.1951 to 27.4.1956 was signed by the Chairman and thereafter the entries began in reverse order. The last entry on the page is of July 1956, then August 1956 and so on. The entries continued till up to February 1957 and then there was a gap of 16 pages. The record of death of Kanti Devi dated 2.7.1959 was found in the third series of entries. The appellate court found that the register was not maintained regularly and that the later entries do not bear the signatures of Chairman. Shri Prem Kumar, the then Bakhshi of town area was dismissed from service. The register was in the possession of the present staff since 1963 and thus it could not be said that the entry was manipulated. The appellate court believed the death register but then held that in the voter’s list of 1962 the name of Kanti Devi was entered even after her death in 1959 and thereafter upto 1992. The name of Chameli Devi was entered as wife of Bassi Lal in House No. 257. The appellate court found that there was no cutting in the name of Kanti Devi and that she was wife of Bassi Lal prior to Chameli Devi and thus concluded that P.W. 2 claiming herself to be Chameli Devi is the widow of Bassi Lal and she could transfer the house in favour of the plaintiff who got good title in his favour.
11. I have heard Shri A. B. Saran, senior advocate assisted by Shri Parmatma Ram for appellant and Shri Anurag Khanna for respondent.
12. Shri A.B. Saran submits that appellate court wrongly admitted additional evidence in appeal. The voter’s list and entries of the death register existed at the time when case was fixed and there was no ground to admit the additional evidence at appellate stage. There was no evidence that Bassi Lal was the owner of the house. The tax receipts were ignored by the appellate court. The voter’s list could not be a conclusive document and that there was inconsistency in the plaintiff’s evidence. The fact that Bassi Lal lived in the house did not make him the owner. Smt. Chameli Devi had not filed any written statement and that her allegation that she was widow of Tinku Lal was wrongly interpreted by appellate court in holding that Tinku Lal was her last husband.
13. Shri Anurag Khanna appearing for the. plaintiff-respondents submits that the appellate court considered the entire evidence and allowed additional evidence to clarify the doubts. The assessment of evidence does not suffer from any error of law and that the fact that another view could be taken on the same evidence which was admissible on record to prove the facts, is not a ground to interfere in the second appeal.
14. The second appeal was admitted on 23.4.1976. Section 100(4) of the Code of Civil Procedure was amended w.e.f. 1.2.1977, after which the second appeal can be heard only on substantial question of law. The Court finds that following substantial question of law arises to be considered in the appeal:
Whether the findings that Chameli Devi defendant No. 4, the transferor, was owner and in possession of the house before its transfer on 20.7.1973, after the death of her husband Bassi Lal, was beyond the pleadings and arrived at on misreading of her statement?
15. A dispossessed owner has a remedy under the Specific Relief Act, 1963 to claim possession of the property. The trial court while deciding on issue No. 5, as to whether the plaintiff was dispossessed from the house by breaking open the locks on 22.7.1973, found that the plaintiff had purchased the house from Chameli Devi on 20.7.1973 and that he was in occupation only for a day. The defendant, on the other hand, led evidence to prove his possession for 15-16 years after the death of Chameli Devi widow of Bassi Lal. It was admitted that defendant Nos. 1 to 3 belong to the family of Bassi Lal and were closely related to him. They had occupied the house after death of Chameli Devi. The trial court found : “admittedly the defendant No. 4 was not living in that house at that time. Therefore, there was no question of direct transfer of possession by Chameli Devi to the plaintiff. The plaintiff examined only one witness on this point. He is Shri Shanker, who is the witness of every fact, i.e., the witness of the execution of the sale deed, the witness of plaintiffs dispossession and witness of possession of Chameli Devi which shows that he is interested with the plaintiff.”
16. On issue No. 2, as to whether Chameli Devi was widow of Bassi Lal, the trial court held that defendant Nos. 1 to 3 had clearly stated in their statement that Chameli Devi defendant No. 4 was actually widow of one Tinku Lal and that widow of Bassi Lal had died about 15 years back. Chameli Devi did not file her written statement denying the allegations. The plaintiff in his replication denied the allegation and stated that she was widow of Bassi Lal and had no connection with Tinku Lal. In her statement, however, Chameli Devi admitted that she was widow of Tinku Lal. She alleges to have re-married Bassi Lal after the death of Tinku Lal, but stated that she had re-married Bassi Lal about 50 years ago. In her cross-examination, she admitted that her marriage with Bassi Lal was her second marriage, The first wife of Bassi Lal had died. She stated that she had a son Chandra Sen from Tinku Lal who is about 35 years and that Tinku Lal died about 18 years ago. She remarried Bassi Lal after the death of Tinku Lal. There were inconsistencies in her statement. She could not explain that if she had married Bassi Lal after the death of Tinku Lal, who died only about 18 years ago, how could she have married Bassi Lal 50 years ago. In her cross-examination, she could not explain as to when she married Bassi Lal. When she had 35 year’s old son from Tinku Lal who had died 17-18 years ago, she could not have married Bassi Lal 50 year’s ago. She also described herself as Jumuna Devi and then explained that she was so called In law by her maternal grandfather.
17. Chamell Devi defendant No. 4, clearly stated in her statement that she only married twice, and then stated that first she married Shlv Lal and then Tlnku Lal. Her statement shows that she married thrice. The trial court found that whatever be the fact It was clear that defendant No. 4 Chameli Devi was the widow of Tlnku Lal and that her name was also Jamuna Devi, she could not establish that she had married Bassi Lal.
18. The plaintiff purchased the house from Chameli Devi on 20.7.1973 by registered sale deed and stated to have taken possession on the same day and that on the next day he was dispossessed by defendant Nos. 1 to 3. He paid Rs. 8000 to Chameli Devi as sale consideration, out of which only Rs. 2000 was paid at the time of registration.
19. The appellate court appears to have made up its mind to allow the appeal and then started discussing the evidence. It allowed additional evidence, which did not support the plaintiff. The copy of the death register of which the original was summoned to show that Kanti Devi was widow of Bassi Lal and had died about 15-16 years back was not believed by the appellate court. It found that the pages on which the entries were made were not signed by the Chairman of the Town Area and that entries on some pages were entered after the gap of about 16 years. The appellate court supplied his own reasons in holding that the entry in the death register of one Kanti Devi, the widow of Bassi Lal shows that she was the first wife of Bassi Lal as her name also finds place in the voter’s list after his death in 1959 upto 1962 and was deleted later. The appellate court then observed : “but such mistakes do occur. The respondents did not file any papers to show that this was a fictitious entry or created any suspicion.”
20. The appellate court recorded findings beyond the pleadings of the parties. Chameli Devi did not file her written statement. In the replication the plaintiff stated that she had no connection with Tinku Lal. In her statement on oath, she could not explain the sequence of her marriages. She could not have had a son aged 35 years old from her husband Tinku Lal who according to her had died about 18 years before and had married Bassi Lal 50 years ago. This statement cannot be reconciled with the other part of her statement in cross-examination that she had married with Bassi Lal about 15 years ago.
21. Further, the appellate court did not consider that defendant Nos. 1 to 3 claimed to be in possession of the house for only a day after the execution of sale deed. The trial court found that Chameli Devi defendant No. 4 was not living in the house. Therefore, there was no question of her transferring the possession of the house to the plaintiff. The evidence on record apparently demonstrates that the plaintiff in order to grab the house, set up an imposter by the name of Chameli Devi widow of Bassi Lal and without establishing the title of Bassi Lal and her marriage with Bassi Lal claimed to have purchased the house from her on 20.7.1973, and then claimed to be dispossessed by 20.7.1973 by defendant Nos. 1 to 3 on the next day.
22. The findings recorded by the appellate court are beyond the pleading of the parties and totally perverse. The finding as such cannot be sustained. The plaintiff failed to prove the title of his transferor and his possession over the house even for a day.
23. The second appeal is consequently allowed. The judgment of the District Judge, Rampur dated 23.3.1976 in Civil Appeal No. 240 of 1975 Radhay Shyam v. Ram Autar, is set aside. The suit is dismissed with costs quantified at Rs. 10,000 for pursuing the litigation in the Court for last 30 years.