Madhya Pradesh High Court
Smt.Munni Devi vs Shanti Kumar And Ors. on 26 September, 2014
1 Second Appeal No.1341/2005
(Smt. Munni Devi Vs. Shanti Kumar and others)
26/09/2014
Shri D.D. Bansal, Advocate for appellant.
Shri R.S. Sagoriya, Advocate for respondent no.1.
This appeal by plaintiff is directed against the
judgment and decree dated 24/6/2005 in civil appeal
No.2-A/2005 confirming the judgment and decree dated
30/6/2004 in civil suit No.16A/2003. Plaintiff's suit for
declaration and permanent injunction has been
dismissed.
Facts necessary for disposal of this appeal are to
the effect that plaintiff/appellant is the sole daughter of defendant no.3; father of the appellant/plaintiff-Ratiram was the real brother of defendant no.1-Shanti Kumar. It is not disputed between the parties that Ratiram and Shanti Kumar jointly held ancestral property, out of which relevant for the purpose of instant suit is falling in survey Nos.980, 981 and 1001 admeasuring 2.20 hectare, however, the same is recorded in the name of Shanti Kumar in revenue records. Partition had taken place between the brothers and the land falling in survey Nos.980, 981 and 1001 plus survey no.966 admeasuring 2.648 hectare of land had fallen to the share of Ratiram and rest of the ancestral land was held to be of the 2 Second Appeal No.1341/2005 (Smt. Munni Devi Vs. Shanti Kumar and others) ownership of Shantikumar, which has been mutated in the name of Shantikumar and after partition both brothers have been in possession of the respective lands. After death of Ratiram, plaintiff/appellant and defendant no.3 became owners of the suit land with equal share. However, Shanti Kumar taking undue advantage of ignorance and illiteracy of plaintiff and her mother- defendant no.3 got his name mutated in respect of the suit land in the revenue records and threatened the plaintiff and defendant no.3 of forcible dispossession. Under such circumstances, suit was filed for declaration and permanent injunction.
Defendant no.1 filed written statement and denied that there was partition between defendant no.1 and Late Ratiram. It is averred that there was a family settlement between brothers during the lifetime of their father and Ratiram had separated himself with the movable and immovable properties given to him. However, the suit land in the name of defendant no.1 in fact is of his ownership and possession having been apportioned in his favour in family partition. As such, it is denied that the suit land is of the ownership and possession of plaintiff and defendant no.3. Plaintiff has not filed suit for 3 Second Appeal No.1341/2005 (Smt. Munni Devi Vs. Shanti Kumar and others) recovery of possession of the suit land and, therefore, the suit is not maintainable in view of Section 34 of the Specific Relief Act. With the aforesaid pleadings, defendant no.1 prayed for dismissal of the suit.
Surprisingly, defendant no.3 had filed written statement seeking dismissal of the suit on the premise that Ratiram has never ploughed the suit land and the land which has fallen to the share of Ratiram was bequeathed in favour of plaintiff/appellant. With the aforesaid pleadings, suit was prayed to be dismissed.
The trial court, on the aforesaid pleadings, framed issues and allowed the parties to lead evidence. The trial court held that the plaintiff is not found to be in possession of the suit land and, therefore, the suit for declaration and permanent injunction was not maintainable. On appeal, the first appellate court has though held that the suit land was of the ownership of Ratiram and, therefore, the plaintiff is held to be the owner thereof, as well discussed in para 8 of the impugned judgment, however, as plaintiff was not found to be in possession of the suit land and, therefore, for want of relief of possession, suit was held to be rightly dismissed by the trial court.
4 Second Appeal No.1341/2005(Smt. Munni Devi Vs. Shanti Kumar and others) Learned counsel for the appellant contended that there is concurrent finding of facts as regards ownership rights of the plaintiff over the suit land. Neither before the first appellate court nor before this Court any cross objection has been filed against the aforesaid findings by the respondents/defendants, hence, this finding has attained finality, however, as regards dismissal of suit on the premise of absence of relief of recovery of possession of the suit land justified by the courts below on the basis of Section 34 of the Specific Relief Act, it is contended that the appellant/plaintiff was an illiterate rustic village lady and did not have much knowledge of the legal complexities in the matter of prosecuting the suit, therefore, absence of relief of possession ought not to have been dealt with too technically by the courts below to the extent of non-suiting her in a suit for declaration, instead she ought to have been afforded an opportunity to amend the plaint and seek necessary addition in the plaint and prayer clause. That was not done, which ought to have been done. Hence, the Courts below have committed grave error of law. In support of his submissions, learned counsel relief upon the judgment in the cases of Kalyan Singh v. Vakil Singh 5 Second Appeal No.1341/2005 (Smt. Munni Devi Vs. Shanti Kumar and others) and others, 1990 MPJR 177 and Mst. Rukhmabai v. Lala Laxminarayan and others, AIR 1960 SC 335.
Counsel for respondent no.1 has supported the impugned judgment and decree passed by the courts below and prayed for dismissal of the appeal.
Having heard the counsel for the parties, this Court is of the view that the courts below instead of dismissing the suit on the premise of absence of relief of recovery of possession and, therefore, barred by Section 34 of the Specific Relief Act, in all fairness ought to have afforded an opportunity to the plaintiff/appellant to amend the plaint for seeking relief of recovery of possession and thereafter also allowed the defendants to make consequential amendment and after that both the parties should have been allowed to lead evidence and the suit should have been decided on merits.
Plaintiff/appellant is the daughter of the brother of defendant no.1 and defendant no.3 is the only child of her parents. The suit property was part of the ancestral property jointly owned by father of plaintiff, namely, Ratiram and defendant no.1-Shantikumar and was in joint possession. Earlier the suit land was mutated in the name of defendant no.1. After partition of the ancestral 6 Second Appeal No.1341/2005 (Smt. Munni Devi Vs. Shanti Kumar and others) property the land in question has been mutated in the name of Ratiram during his lifetime. After death of Ratiram instead of protecting and helping the plaintiff and defendant no.3, it appears that defendant no.1 in collusion with local revenue authorities got his name mutated in respect of suit land in place of Ratiram and, therefore, asserted his right and title over the suit land and threatened forcible dispossession. Under such circumstances, suit was filed by plaintiff seeking declaration and permanent injunction. Both the courts below have concurrently held that the suit land is of the ownership of plaintiff as the same was found to be that of the ownership of Ratiram and after his death has devolved upon the plaintiff. Under such circumstances, absence of prayer of recovery of possession ought to have been dealt with keeping in mind the concept of justice, equity and good conscience by the courts below. That has not been done. In all fairness courts below ought to have afforded opportunity to the plaintiff to make suitable amendment seeking consequential relief of possession to avoid dismissal of the suit on this technical ground under Section 34 of the Specific Relief Act. The reliance placed by the counsel for the appellant as 7 Second Appeal No.1341/2005 (Smt. Munni Devi Vs. Shanti Kumar and others) mentioned above supports the view of this Court.
In view of the aforesaid, judgment and decree passed by the courts below is set aside. The case is remanded back to the trial court to allow the parties to amend their pleadings and after allowing them to lead evidence in respect of pleadings so amended record the findings as regards possession of the suit land and pass consequential decree.
With the aforesaid directions, second appeal is allowed in part and disposed of.
(Rohit Arya) Judge Arun*