Patna High Court - Orders
Sant Pandey vs Kedar Nath Tiwary & Ors on 25 April, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.444 of 2008
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Sant Pandey
.... .... Appellant/s
Versus
Kedar Nath Tiwary & Ors
.... .... Respondent/s
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Appearance :
For the Appellant/s :
Mr. Rajesh Kumar Mishra
Mr. Sourendra Pandey
Mr. Nalin Vilochan Tiwary
For the Respondent/s : Mr. Ashok Kumar
Mr. Md. Waliur Rahman
Mr. Sandip Singh
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR
SAHOO
CAV ORDER
10 25-04-20121. I have already heard the learned counsel, Mr. Surendra Pandey on behalf of the appellant and Mr. Jitendra Kishore Verma, the learned counsel appearing on behalf of the respondent under the heading "for hearing under Order 41 Rule 11 C.P.C".
2. This second appeal has been filed by the defendant-Ist set against the Judgment and Decree dated 30.09.2008 passed by Md. Khurshid Alam, District Judge, Kaimur at Bhabhua in title appeal No.101 of 1992 confirming the Judgment and Decree dated 18.07.1992 passed by Sri Suresh Chandra Pandey Sub Judge Ist Bhabhua in title suit No.31 of 1985.
3. The plaintiff-respondent filed the aforesaid title suit No.31 of 1985 praying for declaration that the deed of gift dated 02.04.1983 2 Patna High Court SA No.444 of 2008 (10) dt.25-04-2012 2/8 in respect of the suit land executed by Raj Naraian Pandey in favour of the appellant is forged, fabricated document and the same is not binding on the plaintiff and further prayed for setting aside the said gift deed and for partition of the suit property by metes and bonds to the extent of his half share.
4. The plaintiffs claimed the said relief alleging that the property belonged to one Raj Naraian Pandey who was living with the plaintiff and the appellant in jointness. He died leaving no issue and, therefore, on his death, the property devolved on the plaintiff and the appellant half and half. However, the appellant who is a shrewed and cunning person brought into existence a registered deed of gift dated 02.04.1983 alleged to have been executed by Raj Naraian Pandey in his favour. In fact said Raj Naraian Pandey never executed the said deed of gift.
5. The appellant filed written statement alleging that the suit property was purchased by Basudeo Pandey and Jhokhu Pandey. They partitioned the property on 02.11.1939 and, therefore, after partition one branch had no concern with the other branch. After death of Chekhuri Pandey his son Raj Naraian Pandey came in possession of the property and by the gift deed he gifted his entire property to the appellant. The sister of Raj Naraian Pandey, namely, Ashrafi Devi has one son Brahmdeo Chaubey who is the legal heir of Raj Narayan Pandey according to Hindu Succession Act but he did not acquire any right title, interest or possession as Raj Naraian Pandey during his life time had transferred his entire property by way of gift to the appellant who came in possession of the property. The suit is 3 Patna High Court SA No.444 of 2008 (10) dt.25-04-2012 3/8 bad and cannot proceed unless Brahmdeo Chaubey is impleaded in the suit as party. The plaintiff's son filed a case under Section 10 (2) of the Consolidation Act claiming Bataidari right thereby admitted the title of the appellant before the Consolidation Officer which is still pending. The deed in question is genuine gift deed.
6. It appears that one Kedarnath Tiwari filed intervention application on 14th February, 1989 and he was impleaded as intervener-defendant by order dated 09.03.1989. He claimed to be the son of Ratwari Devi sister of Raj Narayan Pandey. He filed contesting written statement alleging that Ashrafi Devi was never the sister of Raj Naraian Pandey rather sister of Raj Narain Pandey was Ratwari Devi and this intervener-defendant is her son. According to this intervener-defendant, Chekhuri Pandey never resided with the plaintiff or appellant nor he died in jointness with them. He was separate and possessing the suit property separately and was recorded as such in survey khatiyan. After his death, the intervener- defendant came and continued in possession thereof as his sole legal heir. So far the case of gift claimed by the plaintiff is concerned, he supported the case of the plaintiff to the effect that the gift deed is forged and fabricated. On these facts, he filed the counter claim that the deed of gift deed be declared as void and further for declaration that neither the plaintiff nor the defendant-appellant have any concern with the suit property as the intervener is the owner of the same.
7. After trial, the learned trial Court recorded a finding that the intervener-defendant is the Bhagina, i.e. sister's son of Raj 4 Patna High Court SA No.444 of 2008 (10) dt.25-04-2012 4/8 Naraian Pandey who inherited the property. The learned trial Court also recorded a finding that gift deed is forged and fabricated document. Therefore, the plaintiff's suit was dismissed. The defendant-appellant filed the appeal. By the impugned Judgment and Decree, the finding recorded by the trial Court has been confirmed.
8. The learned counsel, Mr. Surendra Pandey appearing on behalf of the appellant raised 3 substantial question of law :-
(i) Firstly, according to the learned counsel both the Courts below erred in allowing the counter claim of the intervener-defendant because the counter claim was filed by defendant against defendant which was not maintainable.
(ii) Secondly, that the Judgment and Decree of the Courts below are vitiated on account of the fact that the matter was pending before the Consolidation authority, therefore, in view of Section 37 of the Consolidation Act, the Civil Court had no jurisdiction to try the suit and
(iii) Thirdly, the impugned Judgment an decree of the appellate Court has been passed against a dead person, i.e., defendant No.6, therefore, it is a nullity.
9. So far the counter claim question is concerned, the learned counsel for the appellant relied upon a decision of this Court reported in 2005 (3) P.L.J.R. 717 (Pramod Kuamr Vs. Vijay Kumar Sah).
10. On the contrary, the learned counsel, Mr. Jitendra Kishore Verma appearing on behalf of the respondent submitted that none of 5 Patna High Court SA No.444 of 2008 (10) dt.25-04-2012 5/8 the substantial question of law raised by the appellant is involved in the case. According to him the counter claim was not against the defendant only. In the suit, no order passed by the consolidation authority was challenged and the consolidation authorities have no jurisdiction to declare right, title and interest of the parties, therefore, the suit is never barred under Consolidation Act. So far the death of defendant No.6 is concerned also on that ground the Judgment cannot be set aside as this present appellant was the appellant before the lower appellate Court. The appeal has been dismissed, therefore, the Judgment and Decree of the lower appellate Court is in favour of defendant No.6 / his heirs.
11. Now, let us consider the first substantial question of law raised by the appellant. It is admitted fact that RaJ Naraian was the owner of the property. Both the Courts below recorded finding that Kedarnath Tiwari the intervener is the Bhagina of said Raj Naraian Pandey. The plaintiffs filed the suit praying for two reliefs. Firstly, that the gift deed be declared as forged and fabricated and secondly for partition of the property. The defendant-appellant claimed that gift deed is genuine and valid. The intervener-defendant so far gift is concerned supported the claim of the plaintiff but so far partition is concerned claimed that he is the real owner of the property. This was his counter claim. From perusal of the decision relied upon by the appellant, i.e., Pramod Kumar (Supra), it appears that in the said case, this Court has held that the right of counter claim has been given to the defendant to set up counter claim against the claim of the plaintiff and not against the claim of a co-defendant. Here, in the 6 Patna High Court SA No.444 of 2008 (10) dt.25-04-2012 6/8 present case at our hand, the counter claim filed by the intervener is not solely against the defendant-appellant. So far gift deed is concerned, his claim is in support of the plaintiff. So far partition is concerned, it is his counter claim against the plaintiff. Therefore, it cannot be said that the counter claim filed by the intervener is not maintainable against the co-defendant. In such circumstances, the decision relied upon by the learned counsel for the appellant is not applicable in the present case. Moreover, the main claim of the defendant in the counter claim is to the effect that he is the real owner of the property. The defendant-appellant in the written statement has stated that Bhagina of Raj Naraian Pandey is necessary party. Both the Courts below have recorded that this intervener is the Bhagaina of Raj Naraian Pandey. So far this finding is concerned, it is pure finding of fact and cannot be interfered with in exercise of jurisdiction under Section 100 C.P.C.
12. In view of my above discussion, I find that the counter claim filed by the intervener-defendant which was mainly directed against the plaintiff's claim and secondly against the validity of the gift deed which was in support of the plaintiff's claim but against the defendant is maintainable. Therefore, the Judgment and Decree on this question cannot be held to be vitiated and are liable to be set aside on that score.
13. So far the second substantial question of law raised by the appellant is concerned, it may be mentioned here that the consolidation authority have no jurisdiction to declare right, title and interest of the parties. In the suit, no order of the consolidation 7 Patna High Court SA No.444 of 2008 (10) dt.25-04-2012 7/8 authority has been challenged.
14. In the case of Horil Vs. Keshav & Anr. 2012 (2) BLJ Supreme Court 1, the Hon'ble Apex Court has held that under Section 9 of the Code of Civil Procedure, the Civil Court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication by any statutory provision and conferred on any other tribunal or authority. Section 37 of the Bihar Consolidation of Holdings Act provides that no civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act. As stated above, the plaintiff never claimed to set aside any decision or order given or passed under the Consolidation Act with respect to any matter. The suit has been filed simply for declaration about the gift deed and partition and likewise the counter claim was also filed simply for the declaration of title. In my opinion, therefore, the jurisdiction of Civil Court under Section 37 of the Consolidation Act in the present case is not barred.
15. So far the 3rd question raised by the appellant is concerned, it may be mentioned here that the appellant herein was the appellate in the Court below. He did not file the substitution application before the appellate Court on the death of defendant No.6 respondent, now, therefore, he cannot be allowed to say that the Judgment and Decree is vitiated on the ground that it is passed against a dead person. It can be said that here the Judgment and Decree is not against a dead person rather it is in favour of the dead 8 Patna High Court SA No.444 of 2008 (10) dt.25-04-2012 8/8 person. Therefore, in view of the above fact, it appears that it was the laches on the part of the appellant who did not file the substitution application. In such circumstances, now he cannot be allowed to take undue advantage of his own laches and negligent. Further in the lower appellate Court, this present appellant was the only appellant. The defendant No.6 never challenged the Judgment and Decree of the trial Court. In view of the provision as contained in Order 41 Rule 33 of the Code of Civil Procedure, the Court has the jurisdiction to grant relief in favour of person who has not even file the appeal. Here, in the present case the appellant's appeal has been dismissed. How can it be said that the Judgment is vitiated on account of non-substitution of the deceased respondent by the appellant. In my opinion, therefore, the substantial question of law raised has got no merit.
16. In view of my above discussion, none of the substantial question of law has got any merit and on these account the impugned Judgment and Decree cannot be said to be vitiated. Thus, I find no merit in this Second Appeal and, therefore, it is dismissed at the stage of admission itself.
P Patna High Court, Patna (Mungeshwar Sahoo,J.)
The 25thday of April, 2012
Sanjeev/A.F.R.