Allahabad High Court
Smt. Dropadi Devi And Ors. vs Shiv Chandra Dixit on 23 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 93, (2020) 2 ADJ 560 (ALL)
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Court No. 6 Case :- SECOND APPEAL No. - 83 of 2014 Appellant :- Smt. Dropadi Devi And Ors. Respondent :- Shiv Chandra Dixit Counsel for Appellant :- Mohd.Aslam Khan,Ashish Srivastava Counsel for Respondent :- Amit Jaiswal,Brijesh Kr. Saxena,Brijesh Kumar Hon'ble Jaspreet Singh,J.
Heard Sri Mohd. Arif Khan, learned Senior Advocate along with Sri Deepankar Kumar and Mohd. Aslam Khan for the appellants and Sri B.K. Saxena, learned Counsel along with Sri Amit Jaiswal, Ms. Shreya Saxena and Sri Utkarsh Srivastava, for the respondents.
The instant second appeal has been preferred against the concurrent judgment and decree passed by the two courts below whereby the Additional Civil Judge, Senior Division, Court No. 24, Lucknow by means of its judgment and decree dated 08.10.2010 dismissed the suit of the plaintiffs-appellants and allowed the counter claim of the defendant-respondent. The aforesaid judgment and decree has been affirmed by the First Appellate Court in Regular Civil Appeal No. 155 of 2010 by A.D.J., Court No. 2, Lucknow by means of its judgment and decree dated 05.02.2014, while dismissing the appeal.
The aforesaid second appeal was admitted by means of the order dated 01.04.2014 on three substantial questions of law which shall be discussed later, while dealing with them. However, in order to appreciate the controversy involved in the above second appeal, certain brief facts giving rise to the instant appeal are being noticed hereinafter.
The plaintiffs-appellants instituted a suit for cancellation of a will deed as well as a sale deed in the Court of Munsif, South, Lucknow which was registered as R.S. No. 615 of 1992. Primarily, the pleadings were that the house bearing No. 57/1984 Mohalla Tilpurwa, Ward- Hussainganj, District Lucknow is a Joint Hindu Family Property of the ancestors namely Balbhadra Dubey which was not partitioned as yet.
It was also pleaded that the plaintiffs are in possession of the entire property in question and they had executed a registered power of attorney in favour of one Sri Harish Kumar Trivedi to look after the property as well as for the purpose of instituting and conducting the litigation. It was specifically stated that on 30.08.1992, the defendant namely Sri Shiv Chandra Dixit had attempted to forcibly occupy the property in question which was resisted by the plaintiff. It is then that the defendant while claiming title to the property indicated that he had purchased the property by means of a registered sale deed dated 17.07.1971 from Smt. Gaga Dei who was the daughter of Late Sri Shiv Shanker Dubey.
It was also pleaded that as the property in question was a Joint Hindu Family Property and as such Sri Shiv Shanker Dubey, the father of Smt. Gangadei, did not have a right to execute any will allegedly dated 12.12.1947 and consequently Smt. Gangadei did not have any right to execute sale deed dated 17.07.1971, hence the defendant did not get any right.
The plaint was later on amended and by amendment it was specifically incorporated that Sri Shiv Shanker had instituted a Suit bearing No. 718 of 1950 before the Munsif City, Banaras seeking partition of the Joint Hindu Family Property. In the aforesaid suit of 1950 a defence was raised by the plaintiffs herein, that the suit instituted at Banaras was bad for partial partition, inasmuch as, the property bearing No. 57 of 1984, Mohalla Tilpurwa, Hussainganj, Lucknow was also a part of the Joint Hindu Family Property which ought to have been included in the Schedule of property for which the partition was sought by Sri Shiv Shanker Dubey.
The Court at Banaras by means of its judgment and decree dated 07.10.1955 specifically provided that the property situate at Lucknow should be included in the Schedule of properties at the time of preparation of final decree and in case if Sri Shiv Shanker Dubey does not include the said property then his suit shall stand dismissed. It was also pleaded that despite the aforesaid direction the plaintiff of the partition suit filed at Banaras, Sri Shiv Shanker Dubey did not include the aforesaid property nor challenged the aforesaid order before any superior court, accordingly, his suit was dismissed by means of the order dated 15.12.1962.
It was also pleaded that since it was held that the property in question was a Joint Hindu Family Property in the suit filed before the Court of Munsif, Banaras, accordingly, the said findings were binding and Sri Shiv Shanker Dubey did not have any right to execute any will in respect of the un-partitioned Joint Hindu Family Property, nor his daughter Smt. Gangadei had any right to execute any sale deed in favour of the defendant i.e. Shiv Chandra Dixit, hence, the sale deed dated 17.07.1971 was also bad in law.
It was also pleaded that the plaintiff/appellant herein had instituted a SCC Suit against a tenant namely Kalpnath Pandey who was in occupation of part of the property and upon obtaining a decree of eviction against the said tenant, the possession of the part occupied by the tenant was also handed over to the plaintiff and in this fashion he came in possession of the entire property and it is only on 30.08.1992 when the defendant on the basis of the illegal sale deed dated 17.07.1971 attempted to forcibly occupy the property in question that the cause of action accrued thereafter the plaintiff applied for the certified copy of the sale deed in question and the suit came to be filed on 25.11.1992 seeking a decree of cancellation of the sale deed dated 17.07.1971 and the will deed dated 12.12.1947 and also for an injunction restraining the defendant from interfering in the peaceful possession of the plaintiff in respect of the property in question bearing No. 57/84, Tilpurwa, Hussainganj, Lucknow (Old House No. 9/131).
The aforesaid suit came to be hotly contested by the defendant by filing his written statement. While denying the averments contained in the plaint in suit, the defendant in the additional pleas of his written statement, specifically pleaded that the disputed house in question was the self-acquired property of Late Sri Shiv Shanker Dubey who had purchased the same in his own name by means of a registered sale deed dated 25.01.1934 from its erstwhile owner namely Agnu son of Sahabdeen.
It was also pleaded that Sri Balbhadra Dubey was the grand-father of the Shiv Shanker Dubey who died much earlier and the uncle of Sri Shiv Shanker Dubey namely Sri Girdhari Dubey had also died in the year 1925. The father of Sri Shiv Shanker Dubey had died in 1931 and none of the aforesaid persons i.e. the father and the uncle or the grand-father of Sri Shiv Shanker Dubey had purchased the property in question nor they had the means to do so.
It was also pleaded that Sri Shiv Shanker Dubey had been enlisted in the Army during the First World War on the post of a driver and he had his own independent source of income. Sri Shiv Shanker Dubey was de-enlisted from the Army on 09.01.1920 and thereafter he was employed at Loco Workshop in Lucknow and in the year 1934 his salary was Rs. 71 and 4 Annas. Thus, it is from the salary received by Sri Shiv Shanker Dubey during his service in the Army as well as from his salary in the Loco Work Shop that he had saved, he had initially bought another house situate in Mohalla Hussainganj from its erstwhile owner namely Lalta Prasad by means of a registered sale deed dated 17.02.1931. This particular house was thereafter sold by Shiv Shanker Dubey Dubey in favour of Mahadev Prasad on 23.03.1931 for a sum of Rs. 400/- and thereafter in the year 1934 he had purchased the disputed house in question from his own self-generated income and the said property was not of the Joint Hindu Family.
Sri Shiv Shanker Dubey considering that he had only his wife and one daughter, in order to protect his properties, had executed a registered will on 12.12.1947 which was duly registered in the office of the Sub Registrar, Lucknow. As per the will he had bequeathed all his properties in favour of his wife Smt. Rajrani with a stipulation that after her death his only daughter namely Smt. Gangadei would become the absolute owner of all his property. Since Sri Shiv Shanker Dubey had immense faith in his daughter and while he had turned old he had also executed his power of attorney in favour of his daughter which was also registered before the Sub Registrar at Lucknow. Sri Shiv Shanker Dubey expired in the year 1962 and his wife namely Smt. Rajrani became the exclusive owner who also expired in the year 1970 and thereafter Smt. Gangadei being the sole heir of Sri Shiv Shanker Dubey succeeded to his properties and her name was also recorded in the Municipal Records and thereafter Smt. Gangadei executed a registered sale deed in favour of the defendant on 17.07.1971.
The defendant also made a specific pleading that the Suit of the plaintiff was hugely time barred, inasmuch as, the plaintiff had resorted to suppression of facts. It was also pleaded that the plaintiff has referred to the SCC suit filed by him against the erstwhile tenant namely Kalpnath Pandey. The defendant stated that in the said SCC Suit filed by the plaintiff against Sri Kalpnath Pandey, where the tenant had taken a defence that he was paying rent to the answering defendant. In the said suit the copy of the sale deed dated 17.07.1971 was also placed on record and the same finds mention in the judgment of the SCC Court and thus the plaintiff was very well aware of the aforesaid sale deed dated 17.07.1971 and despite the same no effort was made by the plaintiff to challenge the said sale deed within the period of limitation and now after a lapse of 11 years the instant suit was instituted that too by creating and indicating an artificial cause of action and as such the suit of the plaintiff challenging the sale deed was not maintainable and was liable to be dismissed as time barred.
The defendant also specifically pleaded that the partition suit of 1950, was dismissed on 15.12.1962 without any decision on merit, inasmuch as, the plaintiff herein, had made an application bearing Paper No. C-11 and C-12 stating that Sri Shiv Shanker Dubey had expired on 21.08.1962 and since the substitution had not taken place, accordingly, the suit was dismissed for technical reasons. It was also pleaded that Smt. Gangadei continued to reside in the premises in question after execution of sale deed with the consent of its owner, while Sri Kalpnath Pandey was a tenant of only part of the disputed house. After the death of Smt. Gangadei, the answering defendant was in entire possession of the property in question.
It is actually the plaintiff and his power of attorney holder who along with his musclemen attempted to forcibly occupy the premises in question which was resisted by the answering defendant. Again on 02.03.1993 the plaintiffs forcibly broke open the lock and took the possession from the answering defendant. The incident was reported to the police who came on the site and by taking recourse to proceedings under Section 145/146 Cr.P.C. sealed the premises in question. It was only later that the plaintiffs challenged the proceedings before the Hon'ble High Court at Lucknow, who without entering into the merits and considering the fact that a civil suit between the parties in respect of the property in question was already pending, accordingly, directed that the possession be handed over to the plaintiff subject to the outcome of the civil suit and it is in furtherance thereof that the defendant by amending its written statement introduced a counter claim seeking possession of the property in question as well as damages at the rate of Rs. 50 per day from the plaintiffs.
It is in the backdrop of the above facts that the Trial Court had framed as many as 15 issues. The voluminous documentary evidence was led by both the parties, however, as far as the oral evidence is concerned, the plaintiff namely Sri Girish Prasad was examined as P.W. 1, Sri Omkar Nath was examined as P.W. 2 while Ram Khelawan and Om Prakash Dwivedi were examined as P.W. 3 and P.W. 4, Sri Dharmendra Vajpayee, Kanhaiya Lal Yadav and Sri Kailash Nath were examined as P.W. 5, P.W. 6 and P.W. 7 respectively. As far as the defendant is concerned he examined himself as the sole witness.
The Trial Court by means of the judgment and decree dated 08.10.2010 dismissed the suit of the plaintiff and decreed the counter claim of the defendant, directing the plaintiff to handover the possession within 3 months from the date of judgment and decree along with a decree of damages @ Rs. 50 per day. While doing so, the Trial Court found that the suit of the plaintiff was clearly time barred. It also recorded a finding that the property in question was purchased by Sri Shiv Shanker Dubey out of his own income and he had a right of executing a will and his daughter namely Smt. Gangadei was legally entitled to execute the sale deed dated 17.07.1971. This judgment and decree dated 08.10.2010 was made the subject matter of the Regular Civil Appeal No. 155 of 2010.
The First Appellate Court after hearing the parties and considering the evidence and material available on record by means of its judgment and decree dated 05.02.2014 dismissed the First Appeal and affirmed the judgment and decree passed by the Trial Court.
Being aggrieved thereafter the plaintiff has preferred the instant second appeal which, as already noticed above, was admitted by this Court by means of order dated 01.04.2014 on the substantial questions of law which are re-produced hereinafter for ready reference:-
(I) Whether the admission which is the best piece of evidence unless explained or withdrawn coud be ignored and the learned courts below, despite the specific admission of the respondent DW-1 that Smt. Gangadei, who died on 22.02.1975, remained in possession of the house till her death, held that the sale deed dated 17.07.1971 is valid, while decreeing the counter claim filed by the respondent?.
(II) Whether it having been held in previous suits filed by late Shiv Shanker Dubey, father of Smt. Gangadei that the house in dispute is Joint Hindu Undivided family property, the learned courts below were justified in law in dismissing the suit for cancellation of those deeds afte holding that it was self-acquired property of Shiv Shanker Dubey, ignoring the fact that the aforesaid judgments would operate as resjudicata?
(III) Whether the learned courts below were justified in law in decreeing the counter claim set up by the respondent, ignoring the earlier judgments passed by the competent courts of law, holding that the house in dispute is Joint Hindu Undivided Family property and Shiv Shanker Dubey Dubey was not the absolute owner, thereby he could not execute Will dated 12.12.1947 in respect to the entire house in favour of his wife and daughter and the latter could not execute a valid sale deed in favour of the respondent on 17.07.1971 in respect to the entire house and further the vendee having failed to get the possession since the time of the execution of the sale deed dated 04.04.1947 would not derive any right title on that basis?
Mohd. Arif Khan, learned Senior Advocate while assailing the judgment and decree passed by the two courts has raised the following submissions:-
It has been submitted that the two courts have committed an error in not considering the effect of the finding given by the court in the suit instituted by Sri Shiv Shanker Dubey for partition before the Court of Munsif, City at Banaras. It was submitted that in the said suit a specific objection has been raised, by the plaintiff herein, that the suit instituted by Sri Shiv Shanker Dubey for partition was bad since it did not include the property situate at Lucknow. It was also urged that the Court at Banaras while deciding the civil suit by means of its judgment dated 07.10.1955 had clearly mentioned in its order that the suit of the plaintiff for partition is decreed with the condition that the plaintiff shall include the house situate at Lucknow also for partition at the stage of preparation of final decree failing which the suit of the plaintiff shall stand dismissed being bad for partial partition.
In the said suit it was also held that the plaintiff i.e. Sri Shiv Shanker Dubey only had 1/4th share in the house at Lucknow and he was allowed one month's time to include the said house. Since the aforesaid order was not complied with, accordingly, it is clear that the property situate at Lucknow was a Joint Hindu Family Property which remained un-partitioned and since the finding which had been returned in the proceedings which were held at Banaras would be binding on the defendant and his predecessors, accordingly, Sri Shiv Shanker Dubey could not have executed any will deed in respect of a Joint Hindu Family Property in favour of his wife and daughter nor his daughter could have any right to sell the entire un-partitioned Joint Hindu Family Property by means of the sale deed dated 17.07.1971 in favour of the defendant and, accordingly, the two courts have grossly erred in failing to consider this aspect of the matter. Coupled with the fact that the findings recorded in the Banaras judgment dated 07.10.1955 was the best evidence which was neither disproved nor explained, accordingly, the suit could not have been dismissed, nor the counter claim could be allowed.
Sri Arif Khan has also urged that the possession of the premises in question was with the plaintiffs-appellants. The averments made by the defendant that he is in possession is also false, inasmuch as, there was no material on record to indicate as such. It was also submitted that the sale deed of the premises in question even assuming to be valid would indicate that it was of the year 1971 and the plaintiff being in possession was never evicted and by introducing a counter claim in the written statement by way of an amendment in the year 1999, was clearly time barred and in view thereof the counter claim for possession against the plaintiff could not be decreed, in any circumstances.
Sri Khan has also submitted that since the property was found to be Joint Hindu Family Property wherein Sri Shiv Shanker Dubey at best had 1/4th share, accordingly, if at all, the counter claim could been decreed it could have only been done for 1/4th share and not for the entire property and to that extent also the decree passed by the two courts is bad, inasmuch as, it does not take care nor address the aforesaid issues.
It has further been urged by Sri Khan that despite not a shred of evidence was led by the defendant in support of its counter claim regarding the damages prayed at the rate of Rs. 50/- per day yet the Courts have granted the aforesaid sum without due application of mind which is a perversity apparent on the face of the record and thus, the courts below have committed gross error in decreeing the counter claim and as such the same cannot be sustained.
Sri B.K. Saxena, learned counsel for the respondents has forcefully refuted the submissions of Sri Arif Khan. Sri Saxena submitted that apparently the suit of the plaintiff was barred by limitation, inasmuch as, in the plaint suit, in paragraph 11, it was mentioned that the cause of action for filing the suit occurred only on 30.08.1992 when the defendant allegedly attempted to forcibly occupy the premises in question on the basis of title based on the sale deed dated 17.07.1971.
It was pointed out that the plaintiffs had mentioned that they became aware of the sale deed only on 30.08.1992 which was reitreated on oath during evidence before the Trial Court. The said fact was apparently false for the reason that the plaintiff themselves relied upon the judgment passed by the SCC Court in SCC Suit No. 1806 of 1975 which was decided on 22.01.1981. It was submitted that in the aforesaid judgment there is a clear reference to the sale deed executed by Smt. Gangadei in favour of Sri Shiv Shanker Dubey which was brought on record of the SCC Suit as bearing Paper No. C-25.
Thus, the plaintiff was fully aware of the said sale deed, however, chose not to assail the same. As per Article 59 of the Limitation Act the sale deed could be assailed only within the period of limitation which began to run from the date of knowledge, which commenced from the date the said document was filed on record of the SCC suit and even otherwise at best it would commennce when the SCC suit was decreed in January, 1981. The instant suit was filed by the plaintiffs only on 25.11.1992 which is beyond a period of 11 years and was ex-facie barred by limitation and as such the suit of the plaintiffs was rightly dismissed by the Trial Court.
Sri Saxena has further vehemently urged that the submissions of Sri Arif Khan regarding the proceedings of the earlier partition suit of 1950 is also bad for the reason that the suit of 1950 was not dismissed for non-compliance of the direction as mentioned in the judgment dated 07.10.1955 rather the proceedings of the earlier partition suit of 1950 was dismissed as being abated on account of the fact that Sri Shiv Shanker Dubey had died in August, 1962 and since his legal heirs had not been brought on record within the period of limitation, consequently, upon the application of the plaintiff the suit abated and this fact was also known and admitted to the plaintiff, however, it is now being contended otherwise.
Sri Saxena has also drawn the attention of the Court to a written statement to the counter claim which was filed by the plaintiff before the Trial Court bearing Paper No. A-82 wherein in paragraph 7 it was specifically pleaded that the suit of the plaintiff Sri Shiv Shanker Dubey was dismissed as the legal heirs were not brought on record and so the suit was dismissed on 15.12.1962. It has been urged by Sri Saxena that there was no finding given by the Court on merits regarding the property at Lucknow being a Joint Hindu Family Property.
Sri Saxena has also submitted that the judgment which has been referred to by Sri Arif Khan dated 07.10.1955 was assailed before the First Appellate Court which was set aside. He has also submitted that thereafter a F.A.F.O. bearing No. 284 of 1957 was preferred by the defendants of the Suit No. 718 of 1950 which was allowed by this Court by means of judgment dated 21.08.1961 and the matter was remanded to the First Appellate Court to decide the appeal afresh. It is only thereafter that the suit came to be dismissed solely on the ground of abatement as Sri Shiv Shanker Dubey had expired in August, 1962 and the suit came to be dismissed on 15.12.1962 and that too on the application of the plaintiffs, accordingly, in light of the explanation appended to Order 22 Rule 9 C.P.C. it cannot be said that the findings have been returned on merits.
It has further been submitted, in case if the plaintiffs in the instant appeal had taken a plea regarding the property in question being Joint Hindu Family Property it was incumbent upon the plaintiffs to have proved the same which they have miserably failed. The submission is merely by relying upon certain judgments which were rendered in the proceedings arising out of Suit No. 718 of 1950 and that too which was neither conclusive nor on merits, the same could not grant any benefit to the plaintiffs whereas the defendant had brought sufficient cogent material on record in the shape of the sale deed executed in favour of Sri Shiv Shanker Dubey in the year 1934 and which indicated that the property was standing in the name of Sri Shiv Shanker Dubey and was purchased by his self-generated income.
Thus, the Courts have not committed any error rather on the basis of the material and the evidence available on record have categorically recorded findings of fact in respect of the property being self acquired property of Sri Shiv Shanker Dubey, coupled with the fact that he was survived by his wife and only daughter, Consequently, upon his death in the year 1962 his will executed in the year 1947 became redundant and the property in any case devolved on his wife and daughter and upon the death of his wife his daughter became the sole owner who executed the sale deed dated 17.07.1971 in favour of the defendant who became its actualy owner.
It is also submitted that the possession remained with the defendant and Smt. Gangadei till her life time continued to reside therein with the consent of the defendant. Since the defendant had unequivocal title to the property and the plaintiff attempted to forcibly take the same which was duly reported to the police and the premise in question was sealed in proceedings under Section 145/146 Cr.P.C. which was assailed by the plaintiff before the High Court. In light of the commission conducted on the orders of the High Court, considering the fact that the Civil Suit was pending, the High Court by means of its order dated 04.04.1997 directed the police to unlock the house in question and deliver its possession to the plaintiffs subject to the rights which were to be adjudicated in the Civil Court in the instant Suit.
Thus, it is thereafter that the cause for possession arose to the defendant who introduced a counter claim against the plaintiff and since the plaintiff being the owner and claiming possession on the basis of his title was entitled to do so by virtue of Article 64 and 65 of the Limitation Act, hence, it cannot be said that the counter claim of the defendant was barred and, accordingly, the two courts have rightly decreed the counter claim.
Lastly, it has been submitted by Sri Saxena that though the defendants claimed Rs. 50/- per day as damages for the counter claim but he fairly conceded that there was no evidence in respect of the quantum of damages but he submitted that since the plaintiff remained in possession of the premise in question, the defendants were entitled to the damages which is in the discretion of the Court. He has further submitted that the quantum of damages will have no effect on the substantive part of the decree of the counter claim regarding possession which in any case is based on material on record and being findings of fact are not to be disturbed in second appeal in exercise of the powers under Section 100 C.P.C.
Sri Arif Khan has relied upon the decision of the Apex Court in the case of Budhram and Others Vs. Banshi and Others reported in 2010 (11) SCC 476 and Laxmi & Others Vs. Parmeshwari Hegde & Others reported in AIR 1969 Karnataka 175.
Sri Saxena has relied upon the decision of the Apex Court in the case of Om Prakash Vs. Kintu and Another reported in 2005 (13) SCC 289, Ashok Leyland Vs. State of Tamilnadu reported in 2004 (3) SCC 1, D.S. Lakshmaiah and Another Vs. L. Balasubramanyam reported in 2003 (10) SCC 310 , Gurnam Singh Vs. Gurbachan Kaur reported in 2017 (13) SCC 414, Mithai Lal Dalsinghar Singh Vs. Panna Bai Dev Ram Kinni reported in 2003 (10) SCC 691, Kundiba Dagdu Kadam Vs. Savitri Bai Sopan Gurjar 1993 (3) SCC 722 .
The Court has given its anxious consideration to the submissions of the learned counsel for the parties and have also perused the record as well as the case laws cited by the respective parties. In light of the submissions made as well as the factual matrix, the questions of law to be answered in the above second appeal as already noticed and reproduced hereinabove requires this Court to examine whether in the facts and circumstances of the case, the counter claim has been rightly decreed or not. From the perusal of the substantial questions upon which the above second appeal was admitted, upon which the parties have been heard, the core questions that require consideration are the effect of the proceedings arising out of the Suit No. 718 of 1950. In light of the same whether the successors of Sri Shiv Shanker Dubey had any right to execute the sale deed in favour of the defendant and whether the defendant had the right to get the counter claim of possession against the plaintiff.
From the perusal of the record, certain facts are not in dispute between the parties. It is not disputed that Sri Shiv Shanker Dubey was survived only by his wife and his daughter. In case if the property in question is held to be the self-acquired property then the same vested with Sri Shiv Shanker Dubey till his death in the year 1962 and upon his death irrespective of the fact whether his Will of 1947 was valid or not, the fact remains that in view of the promulgation of the Hindu Succession Act his wife and daughter alone would be the sole legal heirs and the plaintiff to that extent would have no right in the property. Having said that upon the death of wife of Shiv Shanker Dubey his only daughter Smt. Gangadei was the sole and exclusive owner and she would have a right to execute a sale deed in favour of the defendant.
Now to ascertain whether the property in question was the exclusive property of Sri Shiv Shanker Dubey or he had 1/4th right as stated by the appellant to have been held in the judgment rendered by the Court of Munsif, City Banaras in its judgment dated 07.10.1955, the records have been carefully perused by the Court and it indicate that the aforesaid judgment dated 07.10.1955 does specifically state that the plaintiff i.e. Shiv Shanker Dubey would have 1/4th share in the said house and he was allowed one month's time to include the said house and make it available for partition in the final decree to be drawn failing which his suit shall stands dismissed being bad for partial partition, however it is only on incomplete version.
The record also reveals that the aforesaid judgment was set aside in appeal. The parties have filed the copy of the judgment passed by this Court dated 28.01.1961 in F.A.F.O. No. 284 of 1957. From the perusal of the said judgment passed by this Court it indicates that the High Court had taken note of certain facts. From the perusal of the same it indicates that the order dated 07.10.1955 was assailed by Sri Shiv Shanker Dubey in an appeal which was allowed by the learned Civil Judge Sri H.M. Srivastava and the matter was remanded. It is the aforesaid remand order which was assailed before this Court in the aforesaid F.A.F.O. and this Court while allowing the appeal set aside the remand order and remitted the matter to the District Judge, Varanasi to re-admit the appeal to its original number and to decide the same afresh either by the District Judge himself or transfer it to other Civil Judge of competent jurisdiction.
Thus, it would indicate that as far as the judgment dated 07.10.1955 is concerned, the same did not survive and the same was set aside by means of the order dated 23.08.1957 passed in Appeal No. 508 of 1955. The said order is bearing Paper No. C-171/2. In pursuance of the order passed by this Court in F.A.F.O. No. 284 of 1957 which was decided on 21.08.1961, the matter was remanded and it was yet to be considered before the Court concerned to give its finding on the issue whether the said property was a Joint Hindu Family Property or not.
Both the parties have drawn the attention of the Court to the document bearing No. C-183/1 which is the certified copy of the formal order which was issued by the Court of City Munsif, Varanasi dated 09.01.1963. From the perusal of the aforesaid formal order it indicates that the suit was dismissed as it was not constituted properly and the file was consigned to records.
At this stage, it will be relevant to point out and refer to paragraph 6 of the plaint in Suit bearing Paper No. A-3. In the aforesaid paragraph the plaintiff did make a mention of the dismissal of the Suit bearing No. 718 of 1950 by referring to the order dated 15.12.1962. The plaintiff had quoted the order dated 15.12.1962 which reads as under:-
" In view of 11-C and the affidavit 12-C the suit is dismissed being improperly constituted consigned to records."
Upon perusal of the record, this Court finds that the plaintiffs had even filed written submissions before the First Appellate Court which is bearing Paper No. C-35/3 in the record of the A.D.J., Court No. 2, Lucknow. In the aforesaid written submissions in paragraph 5 the plaintiffs himself had again referred to the order dated 15.12.1962 and submitted before the First Appellate Court which reads as under:-
" The defendant moved an application along with Affidavit (Paper No. 11-C and 12-C) that the plaintiff died during the pendency of the suit and no legal heirs of the deceased was substituted in his place, the suit ought to be abated and on that application learned Munsif, Banaras passed the order or application along with affidavit (Paper No. 11-C and 12-C) that " in view of 11-C and the affidavit 12-C, the suit is dismissed for improperly constituted consigned to records"."
Thus, from the above it is clear that as far as the parties are concerned, they are not at variance to the fact that the Suit bearing No. 718 of 1950which was instituted before the City Munsif, Banaras came to be dismissed on 15.12.1962. The plaintiff has not brought any evidence on record to indicate that once the matter was remanded in terms of the order passed by this Court the F.A.F.O. No. 284 of 1957 decided on 21.08.1961 what was the outcome of the appeal and under what circumstances the aforesaid suit came back on the Board of the City Munsif, Banaras. The plaintiffs have also failed to bring on record the application C-11 and the affidavit C-12 a reference of which has been made by the plaintiffs themselves in their plaint. But the fact remains that from the pleadings as already referred hereinabove as well as in the reply to the counter claim as filed by the plaintiff it was mentioned that the Suit at Banaras stood abated for non-substituting the heirs of Sri Shiv Shanker Dubey. Obviously, the matter which was sent back to the Court of Munsif, Banaras could only be available once the matter in appeal would have been remanded. It is not the case of the parties that the proceedings which was pending before the Court of Munsif, Banaras in the year 1962 was arising out of final decree proceedings. It is also not disputed between the parties that Sri Shiv Shanker Dubey died on 21.08.1962 and no legal heirs of Sri Shiv Shanker Dubey were brought on record till 15.12.1962.
Thus, the consequence is that after expiry of 90 days from 21.08.1962 the proceedings before the Court of Munsif at Banaras stood automatically abated. Once the proceedings abated the findings, if any, could not be treated as being on merits, moreso, in light of the explanation appended to Order 22 Rule 9 which reads as under:-
(9) Effect of abatement or dismissal (1) Where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under sub-rule (2).
[Explanation : Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this order.] The submission of the learned counsel for the appellant that in the judgment passed by the City Munsif at Banaras would be ample evidence to indicate that the property was a Joint Hindu Family Property does not impress this Court. As already noticed above, whatever be the stage of the proceedings which was pending before the City Munsif at Banaras in 1962 upon the death of Sri Shiv Shanker Dubey on 21.08.1962 the proceedings abated after 90 days. The abatement as per law is automatic. The record as noticed above would indicate that the plaintiff himself made an application C-11 along with an affidavit C-12 upon which the City Munsif at Banaras passed an order dismissing the suit as being improperly constituted. The fact remains that after 90 days from 21.08.1962 the proceedings abated and the explanation of Order 22 Rule 9 provides that nothing in the rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in which the suit, which had abated or had been dismissed under this order.
Thus, the effect is that any of the findings could not prevent the defendants to raise a valid defence in the instant suit which was brought by the plaintiff. Thus, the defendant having raised a valid defence regarding the property being the self-acquired by Sri Shiv Shanker Dubey, this defence could not have been non-suited merely on the ground that in the earlier proceedings in the City Munsif, at Banaras at some point of time the finding was recorded regarding the Lucknow property being Joint Hindu Family Property whih was set aside in appeal and thereafter the suit had been dismissed as abated.
The learned counsel for the plaintiffs-appellants have relied upon the case of Budh Ram (Supra). This Court finds that the ratio of the aforesaid case is quite settled which reads as under:-
10. Abatement takes place automatically by application of law without any order of the court. Setting aside of abatement can be sought once the suit stands abated. Abatement in fact results in denial to hearing of the case on merits. Order 22 Rule 1 CPC deals with the question of abatement on the death of the plaintiff or of the defendant in a civil suit. Order 22 Rule 2 relates to procedure where one of the several plaintiffs or the defendants die and the right to sue survives. Order 22 Rule 3 CPC deals with procedure in case of death of one of the several plaintiffs or of the sole plaintiff. Order 22 Rule 4 CPC, however, deals with procedure in case of death of one of the several defendants or of the sole defendant. Sub-rule (3) of Rule 4 makes it crystal clear that:
"4. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant."
(Emphasis supplied)
17. Therefore, the law on the issue stands crystallised to the effect that as to whether non-substitution of LRs of the respondent-defendants would abate the appeal in toto or only qua the deceased respondent-defendants, depends upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not interdependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-à-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test.
However, the learned Senior Counsel for the appellants failed to express clearly how the appellant gains from the aforesaid ratio. Thus, this Court is of the view that the aforesaid decision does not in any manner help the plaintiffs/appellants.
Moreover, the decision cited by the respondent in the case of Ashok Leyland (Supra) in para 118 has considered the issue of res-judicata and has held as under :-
118. The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppel, waiver or res judicata. This question has since been considered in Sri Ramnik Vallabhdas Madhvani and Ors. v. Taraben Pravinlal Madhvani: (2004)1SCC497 wherein this Court observed in the following terms :
"So far as the question of rate of interest is concerned, it may be noticed that the High Court itself found that the rate of interest should have been determined at 6%. The principles of res judicata which according to the High Court would operate in the case, in our opinion, is not applicable. Principles of res-judicata is a procedural provision. The same has no application where there is inherent lack of jurisdiction.
In Chief Justice of A.P. and Anr. v. L.V.A. Dikshitulu and Ors. etc. : [1979]1SCR26 , the law is stated in the following terms:
"23. As against the above, Shri Vepa Sarathy appearing for the respective first respondent in C.A. 2826 of 1977, and in C.A. 278 of 1978 submitted that when his client filed a writ petition (No. 58908 of 1976) under Article 226 of the Constitution in the High Court for impugning the order of his compulsory retirement passed by the Chief Justice, he had served, in accordance with Rule 5 of the Andhra Pradesh High Court (Original Side) Rule, notice on the Chief Justice and the Government Pleader, and, in consequence, at the preliminary hearing of the writ petition before the Division Bench, the Government, Pleader appeared on behalf of all the respondents including the Chief Justice, and raised a preliminary objection that the writ petition was not maintainable in view of Clause 6 of the Andhra Pradesh Administrative Tribunal Order made by the President underArticle 371D which had taken away that jurisdiction of the High Court and vested the same in Administrative Tribunal. This objection was accepted by the High Court, and as a result, the writ petition was dismissed in limine. In these circumstances - proceeds the argument - the appellant is now precluded on principles of res judicata and estoppel from taking up the position, that the Tribunal's order is without jurisdiction. But, when Shri Sarathi's attention was invited to the fact that no notice was actually served on the Chief Justice and that the Government Pleader who had raised this objection, had not been instructed by the Chief Justice or the High Court to put in appearance on their behalf, the counsel did not pursue this contention further. Moreover, this is a pure question of law depending upon the interpretation ofArticle 371D. If the argument. holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in the case."
In Dwarka Prasad Agarwal (D) By LRs. And Anr. v. B.D. Agarwal and Ors. : AIR2003SC2686 , it is stated:
"It is now well-settled that an order passed by a court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in particular as no writ was required to be issued having regard to the fact that public law remedy could not have been resorted to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside. All orders and actions taken pursuant to or in furtherance thereof must also be declared wholly illegal and without jurisdiction and consequently are liable to be set aside. They are declared as such. "
Thus, in light of the above discussion the earlier decision of the Banaras suit would neither operate as Res judicata and moreover the order passed in December, 1962 was passed after the death of Shiv Shanker Dubey who died in August, 1962 while after 90 days of death, the proceeedings automatically abated.
This Court is fortified in its view and rely on the decisions of the Apex Court in the case of Mithai Lal Dalsinghar Singh Vs. Panna Bai Dev Ram Kinni reported in 2003 (10) SCC 691, the relevant portion reads as under:-
8. In as much as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abateed, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.
10. In the present case, the learned trial judge found sufficient cause for consideration of delay in moving the application and such finding having been reasonably arrived at and based on the material available, was not open for interference by the Division Bench. In fact the Division Bench has not even reversed that finding; rather the Division Bench has proceeded on the reasoning that the suit filed by three plaintiffs having abated in its entirety by reason of the death of one of the plaintiffs, and then the fact that no prayer was made by the two surviving plaintiffs as also by the legal representatives of the deceased plaintiff for setting aside of the abatement in its entirety, the suit could not have been revived, In our opinion, such an approach adopted by the Division Bench verges on too fine a technicality and results in injustice being done. There was no order in writing passed by the court dismissing the entire suit as having abated. The suit has been treated by the Division Bench to have abated in its entirety by operation of law. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates. The converse would also logically follow. Once, the prayer made by the legal representatives of the deceased plaintiff for setting aside the abatement as regards the deceased plaintiff was allowed, and the legal representatives of the deceased plaintiff came on record, the constitution of the suit was rendered good; it revived and the abatement of the suit would be deemed to have been set aside in its entirety even though there was no specific prayer made and no specific order of the Court passed in that behalf.
Similarly, the Apex Court in the case of Gurnam Singh Vs. Gurbachan Kaur reported in 2017 (13) SCC 414 has held as under:-
17. The law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "dismissed as abated".
21. It is a fundamental principle of law laid down by this Court in Kiran Singh case [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340] that a decree passed by the court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree-holder. The reason is that the defect of this nature affects the very authority of the court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a court for or against a dead person is a "nullity" (see N. Jayaram Reddy v. LAO [N. Jayaram Reddy v. LAO, (1979) 3 SCC 578] , Ashok Transport Agency v. Awadhesh Kumar [Ashok Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567] and Amba Bai v. Gopal [Amba Bai v. Gopal, (2001) 5 SCC 570] ).
Now coming to the question regarding the evidence to indicate that the property was a Joint Hindu Family Property, it was for the plaintiffs to have led the evidence in that regard which they have failed. In absence of any evidence to the aforesaid effect the plaintiff could not have been granted the benefit of getting the property treated as Joint Hindu Family Property whereas on the other hand prima-facie the evidence which was available on record clearly indicated that the property in question was purchased by Sri Shiv Shanker Dubey in the year 1934.
It was not disputed by the plaintiff-witness that Sri Shiv Shanker Dubey was not employee/enlisted in the Army during the First World War. It was also not disputed by the plaintiff and his witnesses that Sri Shiv Shanker Dubey was employed in the Loco Work Shop at Lucknow. It was also not disputed that Sri Shiv Shanker Dubey had earlier purchased a property in the year 1931 which he later sold and thereafter he purchased the disputed house in the year 1934.
At this stage it will be worthwhile to notice the law regarding the Joint Hindu Family Property is now fairly well settled that in order to successfully stake a claim regarding a Joint Hindu Family Property, the burden is on the party to indicate that there existed a joint family which had the requisite funds and nucleus out of which the property in question has been purchased.
There is a difference between a joint family and a joint family property merely because a joint family exists does not give rise to a presumption that the property also belongs to the joint family. In this regard, this Court draws strength from the decision of the Apex Court in the case of D.S. Lakshmaiah and Another Vs. L. Balasubramanyam reported in 2003 (10) SCC 310, the relevant portion reads as under:-
18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
Similary, the Coordinate Bench of this Court in the case of Kunj Bihari Vs. Ganga Sahai Pande reported in 2013 SCC Online Alld. 13489: 2013 (99) ALR 826 wherein tracing the history and considering the earlier decision on the point of Joint Hindu Family and property, the burden of proof etc. This Court has held as under:-
24. The "patriarchal family" may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grand-father, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect, if not always of affection, which is probably seated deeper than any positive institution. Manu says, "three persons, a wife, a son and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong." Narada says, "he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he be grown old."
25. The "joint family" is normally a transition form from "patriarchal family". At the death of common ancestors or head of house, if the family chooses to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the later other can only be so by a delegated authority. He is primus but inter pares. An undivided Hindu family thus is ordinarily joint, not only in estate but in food and worship. The presumption, therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin and farther one go, from the founder of family, the presumption becomes weaker and weaker. However, there is no presumption that a family, because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not necessary requisite for constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive of their possessing no property whatever, such as, at least, ordinary household articles which they would enjoy in common.
32. The joint undivided family is the normal condition of Hindu society as observed in Raghunadha Vs. Brozo Kishroe (1876) 3 IA 154 and Neelkisto Deb Vs. Beerchunder (1989) 12 MIA 523. An HUF is ordinarily joint not only in estate but in food and worship. Unless contrary is established, the presumption is that the members of a Hindu family are living in a state of union (see: Govind Dass Vs. Kuldip Singh AIR 1971 Delhi 151 and Bhagwan Dayal Vs. Mst. Reoti Devi AIR 1962 SC 287). If, however, one of the coparceners is admittedly living separately from other members of the family, neither it can be said that other members do not constitute a Hindu joint family nor the member living separately, who has stripped his relation with the joint family, can be said to be still a coparcener or member of joint family. Simultaneously, merely if some members are working and living at different places, though own a joint family in common, it cannot be said that they do not form a joint Hindu family. Since it is only a presumption, the strength thereof necessarily varies in every case. The presumption of union is stronger in the case of brothers than in the case of cousins and farther one goes from the founder of the family, the presumption becomes weaker and weaker.
33. Brothers may be presumed to be joint but conclusion of jointness with collaterals must be affirmatively proved. The presumption lies strongly in favour of father and son that they are living jointly unless proved otherwise.
34. This presumption, however, does not apply in respect of property. There is no presumption that a family, because it is joint, possess joint property. As per Mitakshara law, the possession of property is not a necessary requisite for the constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive that they are possessing no property whatever, such as ordinary household articles which they would enjoy in common.
35. In Sher Singh Vs. Gamdoor Singh 1997 (2) HLR 81 (SC), the Court said that once existence of a joint family is not in dispute, necessarily the property held by family assumed the character of a coparcenary property and every member of family would be entitled, by birth, to a share in coparcenary property, unless any one of the coparcener pleads, by separate pleadings and proves, that some of the properties or all the properties are his self-acquired properties and cannot be blended in coparcenary property. Merely because the family is joint, there is no presumption of joint property. A Hindu, even if he be joint may possess separate property. Such property belongs exclusively to him. Neither member of the coparcenary, nor his male issue, acquires any interest in it by birth. On his death (intestate), it passes by succession to his heirs and not by survivorship to the surviving coparcener. The existence of joint family does not raise presumption that it owns properties jointly. But once joint family nucleus is either proved or admitted so as to draw inference that such property could have been acquired out of joint family funds, the burden shifts to the party alleging self acquisition, to establish affirmatively, that such property was acquired without aid of joint family. Initial burden always lies upon the party asserting that any item of property is joint family property.
38. In Appalaswami Vs. Suryanarayanamurti and Ors., AIR 1947 PC 189, it was held that Hindu law is very clear. Proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon one who asserts that an item of property is joint, to establish that 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 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 joint family property/fund.
39. Again in Srinivas Krishnarao Kango Vs. Narayan Devji Kango AIR 1954 SC 379, it was held that proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which form its nature and relative value, may have formed the nucleus, from which 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 joint family property.
40. The legal proposition which emerges therefrom is that initial burden is on the person who claims that it is joint family property but after initial burden is discharged, the burden shifts to the party claiming that the property was self acquired and without the aid of joint family property/fund.
41. In Rukhmabai Vs. Lala Laxminarayan AIR 1960 SC 335, the Court said:
"There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need. not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis- a-vis the family property, A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property..." (emphasis added) In light of the paras quoted above, the decision of the Karnataka High Court relied upon by the appellant in the case of Laxmi (supra) has no applicability as it related to the suit for partition of properties governed by Aliyasantana Law. The learned Senior Counsel could not explain how the aforesaid case had any relevance and even what was the Aliyasantana Law and how he derived any benefit from the said decision.
This Court upon going through the aforesaid citation relied by the appellant finds that it does not apply to the facts of the present case and the appellant cannot get any benefit of the aforesaid ruling.
Moreover, the Apex Court and this Court in the cases of D.S. Lakshmaiah (supra) and Kunj Bihari Vs. Ganga Sahai Pandey (supra) respectively has lucidly explained the law regarding Joint Family Property which squarely applies Thus, applying the aforesaid principles, it would indicate that as far as the joint family property is concerned, the plaintiff could not bring any document or evidence on record to indicate and establish that the property in question was the Joint Family Property, hence the submission of Sri Arif Khan does not find favour with this Court.
Moreover, the two courts have concurrently held the suit of the plaintiffs to be barred by limitation and this has not been assailed by the appellant nor any substantial question of law emanates from the aforesaid issue. Accordingly, the substantial question (II) stands answered accordingly.
Coming to the substantial question of law at Serial Nos. (I) and (II) as noticed above, this Court finds that the title of the defendant stood established for the reason that once the property was held to be the self-acquired property of Sri Shiv Shanker Dubey then upon his death, his wife and daughter would inherit and subsequently upon the death of his wife, his daughter Smt. Gangadei became its exclusive owner and she had the right to sell the property which she did by means of sell deed dated 17.07.1971.
Once the defendant acquired exclusive title of the aforesaid property and in terms of the Article 65 the defendant had the right to seek possession against the plaintiff by instituting the counter claim. Significantly, the plaintiff did not setup any plea of adverse possession rather he only claimed that he had some share in the property in question and moreover that share also could not be established by him and that it has been held that the defendant is the exclusive owner of the entire property. Having said that it has come on record that the possession was handed over to the plaintiff in tems of the order passed by this Court dated 04.04.1997 in Criminal Misc. Case No. 235 of 1993 in proceedings under Section 482 Cr.P.C. assailing the proceedings initiated under Section 145 Cr.P.C. Thus, the possession which was handed over was subject to the adjudication of rights of the respective parties in the civil suit. Once in the aforesaid civil suit, the two courts have concurrently come to a conclusion that the title remained with the defendant and thus there is no error committed by the two courts regarding the decree of the counter claim in respect of relief of possession which could not be said to be time barred.
The alleged admission of the D.W. 1 that Gangadei remained in possession of her house till her death i.e. 22.05.1975 would not have any effect, inasmuch as, it has been clearly explained in the pleadings as well as in the evidence that Smt. Gangadei was residing in the premises in question with the consent of the defendant and upon her death it was the defendant who have performed her last rites and he had been in possession. There is no evidence that Smt. Gangadei even after executing of the sale deed remained in possession as its owner. Rather the evidence is to the contrary that she was residing with the consent of the defendant till her lifetime only.
In light of the discussions above, as far as the title is concerned, the same is found to be valid and subsisting with the defendant and the two courts have not committed any error in arriving at the aforesaid conclusions.
The findings of possession as far as the plaintiff is concerned is only limited to the extent that it was given to the plaintiff in terms of order passed by this Court subject to final adjudication of rights in the civil suit.
In order for the appellant to challenge the aforesaid it was essential for the appellant to have pointed out any perversity in the judgment of the two courts. The Apex Court while considering the circumstances where the High Court can interfere in concurrent findings of the two couts has held in the case of State of Rajasthan and Others Vs. Shiv Dayal and Another reported in 2019 (8) SCC 637 in following words:-
14. True it is as has been laid down by this Court in several decisions that "concurrent finding of fact" is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908(hereinafter referred to as "the Code"). However, this rule of law is subject to certain well known exceptions mentioned infra.
15. It is a trite law that in order to record any finding on the facts, the Trial Court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. Similarly, it is also a trite law that the Appellate Court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the Trial Court or reverse it. If the Appellate Court affirms the finding, it is called "concurrent finding of fact" whereas if the finding is reversed, it is called "reversing finding". These expressions are well known in the legal parlance.
16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43).
17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.
Thus, applying the aforesaid proceedings, this Court does not find any error in the concurrent findings returned by the two courts as far as the possession is concerned. However, this Court upon perusal of the evidence finds that the defendants has claimed damages @ 50/- per day, however, he failed to lead any evidence and failed to establish the quantum regarding damages. In absence of any evidence, this Court finds that the two courts ought not to have granted the decree for damages @ Rs. 50 per day for wrongful possession as the defendant had failed to establish his own case.
Thus, in light of the discussions made above, this Court is of the considered view that as far as the finding regarding the dismissal of the suit as well as the decree of counter claim to the extent grant of decree of possession is concerned, there is no error and the said findings culminating in the decree of possession is affirmed.
However, since the defendant could not establish the quantum of damages by leading evidence accordingly the grant of decree of damages @ Rs. 50/- per day while decreeing the counter claim cannot be sustained and is accordingly set aside.
Thus, for the reasons aforesaid, the appeal is partly allowed and the judgment and decree passed by the two courts are confirmed except that the defendant shall not be entitled to the decree of the damages in his counter claim, accordingly, the judgment and decree of the Trial Court dated 08.10.2010 passed by Additional Civil Judge,(Senior Division), Court No. 24, Lucknow in R.S. No. 615 of 1992 shall stand modified to the above extent.
In the facts and circumstances, there shall be no order as to costs.
The record of the court below shall be returned to the court concerned within a period of two weeks from today.
[Jaspreet Singh, J.] Order Date:
Asheesh