Patna High Court
Smt. Meena Devi & Ors vs Sunita Devi & Ors on 13 October, 2014
Equivalent citations: 2015 AIR CC 224 (PAT), (2014) 144 ALLINDCAS 673 (PAT) (2015) 1 CURCC 476, (2015) 1 CURCC 476
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court FA No.488 of 1982 dt.13-10-2014
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IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.488 of 1982
(Against the judgment and decree dated 29.07.1982 passed by
Subordinate Judge, Biharsharif in Title Suit No.2 of 1974).
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Smt. Meena Devi & Ors.
.... .... Defendants-Appellants
Versus
Sunita Devi & Ors
.... .... Plaintiffs-Respondents
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Appearance :
For the Appellant/s : Mr. Mahendra Prasad Bhartee, Advocate
Mr. Shailendra Kumar Bhartee, Advocate
For the Respondent/s : Mr. Raj Kishore Prasad Singh, Advocate
Mr. Bal Bhushan Choudhary, Advocate
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
C.A.V. JUDGMENT
Date: 13-10-2014
1. The defendants have filed this First Appeal against
the judgment and decree dated 29.07.1982 passed by the learned
Subordinate Judge, Biharsharif in Title Suit No.2 of 1974 whereby the
court below decreed the plaintiffs-respondent's suit.
2. The plaintiffs-respondents filed the aforesaid suit
for declaration that the sale deed dated 29.11.1973 executed by Rupan
Mahton, the defendant no.1 in favour of defendant nos.2 and 3 is void,
illegal and not binding on the plaintiffs and for permanent injunction
restraining the defendant nos.2 and 3 from interfering with the
possession of the plaintiffs.
3. The plaintiffs claimed the aforesaid reliefs on the
facts inter alia that Bhola Mahton had three sons, Janki Mahton,
Patna High Court FA No.488 of 1982 dt.13-10-2014
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Rupan Mahton and Girdhari Mahton. Janki Mahton is the plaintiff
no.1 whereas defendant no.1 is Rupan Mahton. There had been
partition between the three brothers and in the partition, the defendant
no.1, Rupan Mahton got 4 kathas in one plot and 3 ½ kathas in
another plot. After partition, three brothers sold their respective lands
allotted to them in partition but the plaintiffs retained 3 kathas of land
after selling the rest land. After partition, the plaintiff took settlement
of 20 decimals of land in plot no.1044 and also has purchased 2
kathas of land but the defendant no.1 executed a lease deed with
respect to the said property in favour of Ram Bharosh Singh on
30.01.1970. Therefore, the plaintiffs filed title suit No.32 of 1970 against Rupan Mahton and Ram Bharosh Singh for declaration of title which was decreed. However, the defendant nos.2 and 3 got executed a sale deed from the defendant no.1 with respect to the suit property which belonged to the plaintiffs and which was the subject matter of title suit No.32 of 1970.
4. The defendant nos.2 and 3 filed the written statement contending that there was partition between the three brothers but in that partition, only Chhatardhari @ Girdhari separated himself and Rupan Mahton remained joint with Janki Mahton and there was separation between these two brothers in the year 1964. Rupan Mahton acquired right over the land because of partition so, he Patna High Court FA No.488 of 1982 dt.13-10-2014 3 sold the property to defendant nos.2 and 3. The defendant nos.2 and 3 are bonafide purchasers. The decree in title suit No.32 of 1970 was obtained collusively, therefore, the decree in title suit No.32 of 1970 is not final and it will not operate as resjudicata.
5. On the basis of the aforesaid pleadings of the parties, the learned trial court framed the following issues:
I. Is the suit, as framed maintainable?
II. Have the pltffs. any cause of action for the suit?
III. Is the suit barred by the law of limitation?
IV. Is the sale deed dated 29.11.1973 executed by Rupan
Mahtonn in favour of defendant nos.2 and 3 is void and is not binding to the plaintiff?
V. To what relief or reliefs, if any, are the plaintiffs entitled?
6. The trial court recorded the finding that title suit No.32 of 1970 has been decreed in favour of plaintiffs against Rupan Mahton with respect to the suit land, therefore, the decree is binding against him. Ultimately, the court below held that the land in suit was purchased by the plaintiffs by Exhibit 1 & 2 and 3 decimals of land was acquired by him by partition between three brothers. The defendants have failed to prove that Rupan Mahton has title to the suit land on the date of sale. The court below also held that the defendant nos.2 and 3 have not acquired title. Accordingly, the court below decreed the plaintiff's suit.
7. The learned counsel, Mr. M.P.Bhartee appearing Patna High Court FA No.488 of 1982 dt.13-10-2014 4 for the appellants submitted that in the plaint, it is specifically pleaded that 31-32 years ago partition took place by metes and bounds in previous title suit No.32 of 1970 whereas the plaintiff's witnesses, P.W.2 and 3, who were examined in the year 1982, stated that there had been partition 40 years ago. The specific case of the defendants is that there had been partition in the year 1942. The defendant's witnesses D.W.1, 2 and 6, all have stated that partition took place in the year 1942 between three brothers and only Girdhari separated from the other two brothers. Therefore, in view of the evidences of the plaintiff's witnesses as well as the defendant's witnesses prior to 1942, the family was joint. The land of khata no.416 plot no.1044, area 20 decimals was acquired on 13.12.1938. At that time, there was no partition. The presumption is, therefore, that the property was acquired out of the joint family fund. The third brother, Girdhari only separated from the plaintiff no.1 and defendant no.1 and both the brothers continued and there was partition between these two brothers in the year 1964 and the property comprised within khata no.429, plot no.1043 measuring 6¼ decimals was acquired on 10.05.1958. Likewise, lands of plot no.1066, khata no.426, area 2½ decimals was acquired on 30.05.1949. Both these properties were acquired while plaintiff no.1 and defendant no.1 were joint, as such, those are the joint family properties of plaintiff no.1 and defendant no.1. There had Patna High Court FA No.488 of 1982 dt.13-10-2014 5 been no partition between the two brothers when the properties were acquired, as such, the properties acquired are the joint family properties which were acquired from the joint family fund. The plaintiff nowhere pleaded that he had got any separate source of income to acquire the land from his own income.
8. The learned counsel further submitted that the ex parte judgment and decree passed in title suit No.32 of 1970 will not operate as resjudicata because the defendant nos.2 and 3 were not parties in that suit. Janki, the present plaintiff collusively filed the suit, as such, the judgment and decree passed in that suit is void. The learned court below without considering these aspects of the matter, has decreed the plaintiff's suit.
9. On the other hand, the learned counsel, Mr. R.K.P.Singh for the respondents submitted that the plaintiffs have produced overwhelming evidences to show that the properties are the self-acquired properties of Janki Mahton. Moreover, the properties allotted in favour of defendant no.1 in partition had been sold by him by executing various sale deeds. The plaintiffs pleaded this fact in the plaint and also in support of this pleading produced the sale deeds. So far partition or no partition is concerned, the learned counsel submitted that this question is not primary question to be decided in the present suit. According to the plaintiffs, the properties in suit are Patna High Court FA No.488 of 1982 dt.13-10-2014 6 his self-acquired properties and admittedly, the title documents with respect to these properties are in the name of the plaintiffs, therefore, whether there had been partition or no partition it will make no difference, if it is proved that the plaintiff no.1 has acquired the suit property.
10. The learned counsel further submitted that in earlier suit i.e. title suit No.32 of 1970, the defendant no.1 was party. The suit was decreed holding that the suit properties are the properties of the plaintiffs. The defendants-purchasers i.e. the appellants herein are claiming title through defendant no.1, therefore, unless the judgment and decree passed in title suit No.32 of 1970 is set aside, no title will pass to the purchasers because on the date of execution of the sale deed in favour of the defendant nos.2 and 3, Rupan Mahton had no right, title, interest and possession over the property. Merely because it is ex parte judgment and decree, the same cannot be held to be void or voidable in this suit particularly when the validity or otherwise or legality or otherwise of the said decree is not under challenge in this suit. Therefore, the judgment and decree passed in the earlier suit will operate as resjudicata in the present suit. Further, when the title deeds are in the name of the plaintiffs, the burden rests upon the defendants to establish that in fact, the property is the joint family property purchased out of the nucleus from the joint family Patna High Court FA No.488 of 1982 dt.13-10-2014 7 fund but in the present case, there is no such pleading by the defendants. In such circumstances, there can be no presumption that because the brothers were joint, the properties acquired in the name of plaintiff no.1 are the joint family property. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed.
11. Both the parties have filed their respective written arguments elaborating the case pleaded and argued.
12. In view of the aforesaid submissions of the parties, the point arises for consideration is as to "whether the suit property is the self-acquired property of Janki Mahton or is joint family property"
and "whether Rupan Mahton, the defendant no.1 had any title over the suit property and could have transferred valid title by sale deed in favour of the defendant nos.2 and 3" or "whether the sale deed is void, illegal and did not transfer title in favour of the purchasers?"
13. The specific case of the plaintiffs is that the suit properties are the self-acquired properties. On the contrary, the defendants have only pleaded in the written statement that the properties were acquired when the family was joint. The sale deed under challenge dated 29.11.1973 is Exhibit A/2. According to the plaintiffs, 20 decimals land of plot no.1044, 6 ½ decimals land of plot no.1043 and 2 ½ decimals of plot no.1066 have been acquired by him Patna High Court FA No.488 of 1982 dt.13-10-2014 8 by registered Bandobasti deed dated 13.12.1938, Exhibit 1 and sale deed dated 30.05.1949, Exhibit 2. The plaintiff has produced Exhibit 2/A and 2/B to show that he has disposed of portion of the lands acquired by him. In the partition of the year 1938, according to the plaintiffs, the lands allotted to Rupan Mahton were sold by Rupan Mahton. It may be mentioned here that the defendant no.1 has not appeared and contested the suit. The plaintiffs have produced Exhibit 3, the plaint of title suit No.32 of 1970 and the ordersheet and decree of the said suit has been marked Exhibit 4. The show cause filed by Rupan Mahton in that title suit No.32 of 1970 has been marked as Exhibit 7. This show cause was filed by Rupan Mahton in injunction matter. From perusal of Exhibit 4, it appears that the earlier suit was decreed in favour of the plaintiffs. From perusal of the plaint, Exhibit 3, it is clear that the question of title of plaintiffs was directly and substantially in issue in respect of suit land in the earlier suit. In the present case also, the question of title of plaintiffs is directly in issue. Admittedly, the defendant nos.2 and 3 are claiming title through Rupan Mahton who was defendant in title suit No.32 of 1970.
14. Section 11 of the Code of Civil Procedure provides that:
"no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or Patna High Court FA No.488 of 1982 dt.13-10-2014 9 between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
Therefore, the purchasers are claiming under Rupan Mahton and are litigating under the same title. In the said suit, Rupan Mahton appeared but thereafter did not contest, therefore, the judgment was passed against him and the plaintiff's title was declared.
15. The Hon'ble Supreme Court in the case of Md.
Noorul Hoda v. Bibi Raifunnisa and others, (1996) 7 Supreme Court Cases 767 has held as follows:
"When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree set aside."
16. In the present case, admittedly, the purchasers are claiming title through Rupan Mahton. Unless they get the decree passed in earlier suit which stands in their way set aside, title will not pass on them. In view of the decision of the Hon'ble Supreme Court referred to above, unless they get it set aside the decree will be binding on their vendor and because they are claiming title through their vendor, they will be bound by the decree. In other words, the decree will be binding on them.
Patna High Court FA No.488 of 1982 dt.13-10-2014 10
17. The Hon'ble Supreme Court in the case of Inderjit Singh Grewal v. State of Punjab & Anr., 2012(1) B.L.J. Supreme Court 42 has held that even if a decree is void ab initio, declaration to that effect has to be obtained from competent Court. Such declaration cannot be obtained in collateral proceedings. Same view has been taken by the Hon'ble Supreme Court in various other decisions such as A.I.R. 1996 Supreme Court 906(State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others), A.I.R. 1997 Supreme Court 1240(Tayabbhai M. Bagasarwalla and another v. Hind Rubber Industries Pvt. Ltd., etc.), A.I.R. 2004 Supreme Court 1377(Sultan Sadik v. Sanjay Raj Subba and others) and (2006) 7 Supreme Court Cases 470(M.Meenakshi and others v. Metadin Agarwal(Dead) by LRs. and others) and also (2009) 6 Supreme Court Cases 194(Sneh Gupta v. Devi Sarup and others).
18. In view of the aforesaid settled law, in this suit, for declaration filed by the plaintiffs, the defendants cannot get any such declaration that the decree obtained earlier is a fraudulent decree or collusive decree, as such, is not binding on them. Therefore, in my opinion, the finding recorded in the earlier suit that the plaintiffs have title over the suit property which are also the subject matter of the present suit is final between plaintiff and Rupan Mahton, the Patna High Court FA No.488 of 1982 dt.13-10-2014 11 defendant no.1, as such, title has already been declared in favour of the plaintiffs which will operate as resjudicata.
19. The other aspect of the matter is that admittedly, the properties stand in the name of plaintiff no.1. It is the defendants, claimed that the property is joint family property acquired out of the joint family fund. So far this question is concerned, the settled principles of law is that there is no presumption that a family because it is joint, possesses joint property or any property. Therefore, the question as to whether there was partition or no partition and when partition took place is not of much importance to be decided in the present case. Because even if it is held that when the property was acquired the brothers were joint, then also there cannot be any presumption that the said joint family of three brothers had any property. Likewise, it is also settled principles of law that when a party claims that any particular property is joint family property, the burden of proving that it is so rests on the party asserting it. Here, it is the purchaser's case that the property was joint family property. Therefore, it is for them to prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the properties possessed by the family is joint family properties or that it was purchased with joint family funds such as the proceeds of sale of Patna High Court FA No.488 of 1982 dt.13-10-2014 12 ancestral property or by joint labour. None of these alternatives are matter of legal presumption. In the present case, the defendants never pleaded anything regarding the joint family property and its income to show that there was any such income out of the joint family property and the income from the said joint family property formed any nucleus which was sufficient to acquire the suit property.
20. The Hon'ble Supreme Court in the case of Srinivas Krishnarao Kango v. Narayan Devji Kango and others, A.I.R. 1954 Suprme Court 379 has held that "proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property." Same view has been taken by the Supreme Court in A.I.R. 1965 Supreme Court 289(K. V. Narayanaswami Iyer v. K. V. Ramakrishna Iyer and others) and (2003) 10 Supreme Court Cases 310(D.S.Lakshmaiah and another v. L. Balasubramanyam and another) and A.I.R. 2007 Supreme Patna High Court FA No.488 of 1982 dt.13-10-2014 13 Court 1808(Makhan Singh (D) by LRs. v. Kulwant Singh).
21. Here, in the present case, it may be reiterated that there is no pleading regarding sufficient nucleus nor any oral or documentary evidences have been adduced on behalf of the defendants to prove the same.
22. It is admitted fact that in the present case that three brothers had only 73 decimals of ancestral land and the said lands were divided between them in three parts. The parties begun to sell the properties since 1959. Therefore, this 73 decimals land cannot be said to be sufficient land out of its income, the suit property could have acquired.
23. In the sale deed, Exhibit 2/A and 2/B while selling the part of suit plots, the plaintiffs categorically asserted that he is selling the property which are his personal acquired properties and he is selling because of necessity.
24. In view of the above documentary evidences and discussion, I find that the plaintiffs have been able to prove that the suit properties are their self-acquired properties. The defendants failed to prove that the suit properties are joint family properties of plaintiffs and defendant no.1 and their brother, Girdhari Mahton acquired out of the joint family fund. Therefore also, vendor of the defendant nos.2 and 3 namely Rupan Mahton on the date of execution Patna High Court FA No.488 of 1982 dt.13-10-2014 14 of the sale deed had no title so as to transfer in favour of the purchasers-defendant nos.2 and 3.
25. From perusal of the judgment of the court below, it appears that the court below has considered all these aspects of the matter and has recorded the finding, therefore, the findings of the court below are hereby confirmed.
26. In the result, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
(Mungeshwar Sahoo, J) Saurabh/-
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