Patna High Court - Orders
Khakhanu Bind @ Khakhanu Pd.Bi vs Dharam Raj Bind & Ors on 23 April, 2014
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.307 of 2005
======================================================
1. Khakhanu Bind @ Khakhanu Pd.Bind son of Sagelu Bind.
2. Gopal Bind @ Gopal Prasad.
3. Bal Kishun Bind @ Bal Kishun Prasad.
4. Ram Kewal Bind.
5. Ram Sundar Bind @ Shyam Sunder Prasad.
6. Dharam Ruchi Bind @ Dharam Ruchi Prasad sons of Khakhanu
Bind, all residents of village-Kharkholi, P.S. Durgawati, District-
Kaimur(Bhabua).
.... .... Appellant/s
Versus
1. Dharam Raj Bind son of late Makhanu Bind.
2. Mostt. Sonmati Kuer wife of late Makhanu Bind.
3. Sandip Kumar.
4. Tinku minor sons of Dharam Raj Bind, U/G of their father
Dharam Raj Bind, father and guardian, all resident of village-
Kharkholi, P.S. Durgawati, Distirct-Kaimur(Bhabhua).
5. Chhbinath Bind son of late Sagelu Bind.
6. Kaulasi Kuer wife of late Baijnath Bind.
7. Smt. Bigani Devi @ Prayagi Devi daughter of late Baijnath Bind
wife of Sri Moti Bind all resident of village-Baherana, P.O. Katji,
P.S. Chand, District-Kaimur(Bhabhua).
8. Smt. Shiv Kumari Devi daughter of late Baijnath Bind wife of Sri
Sheo Kumar resident of village Mahugi P.O. Birbarai, P.S,. Dhina
Distirct-Chandauli(U.P).
9. Dharamdeo Bind.
10. Raghubar Bind sons of Chhabinath Bind.
11. Santosh Kumar.
12. Gyanendra Kumar minor sons of Ram Kewal Bind, U/G of Sri
Ramji Singh, Advocate, G.A. L. residents of village-Kharkholi,
P.S. Durgawati, District-Kaimur(Bhabhua).
.... .... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rewti Kant Raman, Adv.
For the Respondent/s : Mr. Ravi Shankar Sahay, Adv.
Patna High Court SA No.307 of 2005 (18) dt.23-04-2014
2
======================================================
CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL ORDER
18 23-04-2014Heard Mr. Mahesh Prasad no. 2, the learned counsel appearing on behalf of the appellants. Mr. Ravi Shankar Sahay, the learned counsel appearing on behalf of the respondent nos. 1 to 4 is present.
The defendants are the appellants in this appeal assailing the judgment and decree of the appellate court below affirming the decree of the suit by the trial court.
The plaintiffs filed the suit for partition of their 1/5th share in the suit house. The case of the plaintiffs, in short, is that the suit property has been recorded in the recent survey khatiyan in the name of Sagelu Bind and Bhagedu Bind. It is the case of the plaintiffs that Bhagedu Bind died issueless and the property of his branch also devolved upon Sagelu Bind and his descendants. The plaintiffs have claimed themselves to be the descendents of Makhanu Bind one of the sons of Sagelu Bind and the other three sons of Sagelu Bind namely Khakhanu Bind, Baijnath Bind and Chabila Bind have been impleaded as defendant nos. 1, 2 and 3. The remaining defendants are the descendants of defendant nos. 1, 2 and 3. It is also the case of the plaintiffs that the gift deed dated 24.10.1989 is not a valid document conferring title over the gifted Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 3 property upon the donee-defendants as the donors Masodiya Devi, Jasodiya Devi and Shukhminiya Devi were not the daughters of Tulsi Bind and therefore had no right to execute the gift deed.
The defendant no. 1 and his descendants alone contested the suit whereas the defendant nos. 2 and 3 have supported the case of the plaintiffs. The defendant no. 1 Khakhanu Bind and his sons are the appellants in this appeal. The contesting defendants have specifically asserted, in the written statement, that the genealogy given by the plaintiffs is wrong and therefore the plaintiffs are not entitled to 1/4th share as claimed. It has been further asserted that there had been partition among the sons of Sagelu Bind long ago and there is no existence of unity of title and jointness of possession between the parties over the suit land. Giving a genealogical table in the written statement, it has been further claimed by the contesting defendants that Shiv Barat had five sons namely Shivam, Sanjivan, Deu, Peru and Damari. It is the case of these defendants that Sagelu Bind and Bhagedu Bind were the two sons of Sanjivan and they had already sold away the of land of their shares along with some other co-sharers long back and the descendants of the remaining two bothers namely Most. Rukminiya wife of Bhagelu Bind from the branch of Damari and Masodiya Devi, Jasodiya Devi and Sukhminiya Devi from the Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 4 branch of Peru Bind have together executed the gift deed on 24.10.1989 in favour of the defendants namely Gopal Bind, Ramkewal Bind, Ramsunder Bind, Dharamruchi Bind and Kaushaliya Devi and on this basis, it has been asserted that the plaintiffs have got no right, title and interest on the suit property.
Both the courts below, after scrutiny of the evidence led by the parties, have returned the finding that the gift deed dated 24.10.1989 in favour of the contesting defendants, in fact, was not acted upon and the sale deeds relied upon by the defendants have also not been acted upon. It has been further found by both the courts below that the defendants have failed to rebut the presumption of correctness attached to the recent survey entries in khatiyan in the names of Sagelu Bind and Bhagedu Bind. The suit has, therefore, been dismissed and thereafter the appeal by the contesting defendants has also been dismissed.
At the out set, the learned counsel for the appellants has placed the main thrust on the abatement of the suit and appeal under Section 4 (1) (C) of the Consolidation Act and has pointed out that an affidavit on behalf of the appellants has been filed in this appeal wherein it has been stated that in paragraph-8 and 18 of the written statement the plea has been raised that the suit is hit by the provisions of Section 4 (1) (b) and 4 (1) (c) of the Bihar Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 5 Consolidation of Holdings and Prevention of Fragmentation Act. The learned counsel has further pointed out that in the said affidavit, it has been also stated that by notification dated 02.11.1993, issued under Section 4 (A), the notification under Section 3 was cancelled but subsequently by notification dated 15.03.2004, the said cancellation dated 02.11.1993 had been withdrawn and thereafter the consolidation proceeding is in progress in the suit village. The learned counsel for the appellants has further pointed out that an interlocutory application (I.A. No. 1232 of 2014) has also been filed in this appeal under Section 4 (1) (b) and 4 (1) (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act praying for passing an order that the suit and the appeal have abated under the provisions of the said Act. Placing the reliance on the statement made in paragraph- 11 of the interlocutory application, it has been further argued by the learned counsel for the appellant that an order of abatement of the suit as well as the appeal be passed so that the parties to this appeal may not unnecessarily be harassed in prosecuting this appeal.
Making his submissions on the merits of this appeal, the learned counsel for the appellants has urged that both the courts below have wrongly discarded the sale deeds executed by Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 6 the co-sharers including the predecessors of the plaintiffs which convincingly establish the case of previous partition. Relying on the ground no. 7 of the memo of appeal, the learned counsel has submitted that the suit properties have been validly gifted to the defendant-appellants by Masodiya Devi, Yasodiya Devi and Sukhminiya Devi who had the title over the gifted properties but both the courts below have not considered this aspect of the matter and therefore the impugned judgment and decree are vulnerable.
The learned counsel for the plaintiff-respondents, in reply, has submitted that a reply to the interlocutory application (I.A. No. 1232 of 2014) has been filed wherein it has been categorically stated that the appellants never raised the question of maintainability of the suit or appeal during their pendency. It has further been pointed out that no consolidation proceeding is going on as the entire village has been confirmed. It has been further submitted that after having lost in both the suit as well as the appeal, the defendant-appellants now cannot be allowed to raise the issue of maintainability or abatement of the suit at the stage of second appellate jurisdiction. It has been further submitted by the learned counsel that even otherwise also in view of the pleas taken in the written statement by the defendant-appellants disputing the genealogy given by the plaintiffs and asserting the validity of the Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 7 gift deed dated 24.10.1981 the suit filed by the plaintiffs could not have been hit by the provisions of Section 4 (1) (b) and 4 (1) (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. Replying the contention on the merits of the appeal, it has been urged that both the courts below have recorded the findings of facts on the basis of consideration of evidence and those findings would be binding on the second appellate court as there is no perversity in the same.
After perusal of the judgments of both the courts below and consideration of the submissions on behalf of the parties, it is pellucid that the plaintiffs have filed the suit for partition of their share in the suit properties with further assertion that the gift deed dated 24.10.1981 in favour of the contesting defendants is null and void as the same has been executed by the persons having no title over the same. The plaintiffs have specifically challenged the status of Masodiya Devi, Jasodiya Devi and Sukhminiya Devi and claimed that they are daughters of Sanu Bind and not the daughters of Tulsi Bind who died issueless 70 years ago. The defendants, however, contested the assertions of the plaintiffs and have come out with the case that they have exclusive title and possession over the suit properties on the basis of the gift deed dated 24.10.1981 executed in their favour by the Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 8 rightful owners namely Masodiya Devi, Yasodiya Devi and Sukhminiya Devi as well as Most. Rukminiya wife of Bhagelu Bind. The defendants have also given a different genealogy in the written statement and on the basis of the same they have claimed that the suit properties belonged to the branches of Peru Bind and Damri Bind whose descendants have executed the gift deed in their favour. The defendants have also asserted that there had been previous partition in the family.
From the judgments of the courts below, it transpires that besides other issues, an issue with regard to the validity of the gift deed dated 24.10.1981 has also been framed as follows:-
Issue no. 4:- Whether the Hibanama dated 24.10.1981 executed by Jasodiya, Masodiya and Sukhminiya are genuine document and whether they have got any right to execute?
It is evident from the records that the defendants have specifically come out with the case that the suit properties are their exclusive properties on the basis of the gift deed in question. Further, by giving a genealogy the defendants‟ further cases is that the suit properties along with other properties originally belonged to Shivbarat who had five sons namely Shivam, Sanjivan, Deu, Peru and Damari. Their further case is that the descendants of the three brother Shivam, Sanjivan and Deu (which include the Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 9 predecessor of the plaintiffs being the descendants of Sanjivan) had already transferred their shares in the properties by registered sale deeds long back and the descendants of the two brothers Peru and Damri had executed the gift deed in favour of the contesting defendants with regard to the suit properties. Even in memo of this appeal also in ground no. V the defendant-appellants have stated that "...the suit properties are of the share of the two sons of the common ancestor as heirs of the three branches have sold their almost entire land through sale deeds Ext. A/2 to A/6." In ground no. VII also the defendant-appellants have stated that "... the plaintiffs have instituted the suit for partition still those properties are of the share of Manu Bind, Ghurfekan Bind , Tulsi Bind and Bhagelu Bind whose heirs and legal representatives have gifted the land to these defendants and have rightly executed the deed of gift...." It is thus evincible that the validity of the gift deeds in question was the central or core issue between the parties to the suit.
It is not in dispute that the defendants participated in the proceeding of the suit on merits and contested the reliefs prayed by the plaintiff by leading their evidence. From the judgment of the trial court it does not appear that the contesting defendants had at any stage raised any specific objection, besides Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 10 the averments made in the written statement, to proceeding further with the suit questioning the maintainability of the suit in view of the provisions of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (hereinafter referred to as „the Act‟) or had even made prayer for amending the issues or bring additional specific issue in that regard in accordance with the provision of Order 14 Rule 5 C.P.C.. However, it has been admitted by the contesting defendant-appellants that during the pendency of the suit itself the notification under Section 4 (A) of the Act was issued on 02.11.1993 cancelling the notification under Section 3 of the Act and therefore there was no scope for raising the issue. After the decree of the suit, the contesting defendants filed the appeal and it is their case that during the pendency of the appeal the notification under Section 4 (A) of the Act was withdrawn on 15.03.2004 whereafter the notification under Section 3 of the Act revived. However, it has also been admitted by the defendant-appellants that in appeal they did not raise the issue of abatement under Section 4 (1) (C) of the Act after the revival of the notification under Section 3. The appeal has been disposed of on 01.08.2005. It would be relevant to notice here that neither in the memo of appeal nor in the affidavit dated 21.01.2014 nor in the interlocutory application (I.A. No. 1232 of Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 11 2014) dated12.02.2014 nor in the rejoinder filed by them to the reply on behalf of the respondents the appellants have stated even a word that they had no knowledge of the cancellation of the notification under Section 4 (A) of the Act on 15.03.2004 during the pendency of the appeal in the court below. By filing a supplementary rejoinder on 18.04.2014 during the course of hearing of the appeal under Order 41 Rule 11 C.P.C., the appellants have come out with the case that they had no knowledge of the notification under Section 4 (A) of the Act during the pendency of the appeal in the court below. Without going into this controversy, it is transparent that the main controversy in the suit has hinged on the validity of the gift deed as aforementioned. The submission on behalf of the appellants is that for the purpose of deciding the objection relating to Section 4 (1) (c) of the Act only the case of the plaintiff is to be looked into according to which the gift deeds have been alleged to be void.
However, this submission has been made overlooking the other aspect of the case of the plaintiffs wherein the daughtership of donors of gift deeds in question has been questioned and the gift deed has been assailed to be void on that basis. The consolidation authorities have definitely no jurisdiction to decide the status of a person while considering the validity of the gift deeds. The gift Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 12 deeds in question, even in view of the case of the plaintiffs, cannot be said to be void ab initio or non-est in law and nor in the facts of the case, a presumptive invalidity can be attached to the same. The lis in entirety has to be looked into while determining the issue of abatement of the suit under the Act in view of the law laid down by the Apex Court in the case of Ram Sakal Singh Vs. Most. Monako Devi, 1997 (2) PLJR (SC) 63 where their lordships while considering the scope and ambit of Section 3(1) and Section 4 (1) (C) of the Act have laid down as follows:-
"......The substratum of the lis has to be considered and decided on the basis of the pleadings and evidence on record. In this case, the relief of declaration of title, as asked for, was the first relief in the plaint and declaration of title was only consequential to the declaration of the voidability of the gift deed executed in favour of the appellant.................Therefore, the declaration of the voidability would be the main relief and the declaration of the title on the basis of the sale deed is consequential to the primary relief. Therefore, the declarations of the title and the consequential decree for possession are sequential to the first declaration. The reliefs in the suit, as a whole, are to be granted by the civil court only..."
At this juncture, it would be fruitful to take into notice Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 13 a bench decision of this Court in the case of Jai Prakash Prasad Vs. Rameshwar Prasad, 1986 PLJR 240 wherein also at the second appellate stage a question of abatement under Section 4 (1)
(c) of the Act was raised and the question which arose for consideration was whether a defaulting litigant could be allowed to raise the plea of abatement under Section 4 (1) (c) of the Act for the first time in second appeal despite a designed or at least negligent failure to do so in the trial court as well as in the first appellate court. Their lordship have held as follows:-
"........It was pinpointed that the deceased father of appellant no. 1 was the plaintiff in the suit and was well aware of the notification during the trial itself. He sought and invited a judgment despite the notification. Not only that, he was able to secure a judgment in his favour.
When the matter was carried by the defendants to the first appellate court, he sat on the fence and invited the court below to decide the appeal on merits. Now that the case has gone against him, it is on principle impermissible to permit the appellants to raise a question which their predecessor plaintiff could well have raised ten years ago at the stage of the trial of the suit itself. We are of the view that on principle the issue of abatement cannot be permitted to be raised in this context.Patna High Court SA No.307 of 2005 (18) dt.23-04-2014
14 Their lordships further also observed:-
".......What further deserves to be highlighted is the fact that the question whether a particular suit would abate or not necessarily involves the determination of the questions of fact as well.
Not one but ten considerations of fact may well be relevant and would intervene on the point whether a suit of the nature preferred by the appellants would abate at all or not and, if so, whether it would abate partially or wholly......................................................... ..................................................................
Equally then considerations whether the document relied upon is void or voidable one in the light of the observations in the Final Court in Gorakh Nath Debe Vs. Hari Narain Singh A.I.R. 1973 (SC) 2451 may also come in. It is thus manifest that these are innumerable issues of fact which must be raised at the very first instance when they become available to the litigant and be adjudicated by the courts below. This not having been done either deliberately or negligently, such issues of fact cannot now be raised in second appeal. It is well settled beyond cavil that a second appeal would lie only on a substantial question of law and more so after the amendment of Section 100 of the Code of Civil Procedure in the year 1976. For this added consideration also, the question of abatement in Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 15 this context cannot be permitted to be raised for the first time in second appeal...."
The reliance has been placed on behalf of the appellants on the decision in the case of Jai Prakash Prasad Vs. Rameshwar Prasad, 1989 PLJR (SC) 22 for the proposition that the plea of Section 4 (1) (c) of the Act can be raised even belatedly. But as observed earlier the predominant issue in the suit is the validity of the gift deed which can not be decided by the consolidation authorities in view of the rival pleadings of the parties and therefore there is no question of applicability of Section 4 (1) (b) and Section 4 (1) (c) of the Act. The prayer made on behalf of the appellants on the basis of Section 4 (1) (B) and 4 (1) (C) of the Act as made in the interlocutory application (I.A. No. 1232 of 2014), is accordingly rejected.
In the backdrop of the facts as aforesaid discussed, it is plain and patent that the contesting defendants have resisted the relief prayed by the plaintiff mainly on the ground of previous partition and acquisition of exclusive title by them over the suit property on the basis of the gift deeds dated 24.10.1981. According to the contesting defendants Masodiya Devi, Yasodiya Devi and Sukhminiya Devi daughters of Tulsi Bind along with Rukminiya Devi wife of Bhagelu Bind executed the gift deed in Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 16 favour of the defendant Gopal Bind, Ramkewal Bind, Ramsunder Bind, Dharamraj Bind, Balkishun Bind and Kaushaliya Devi. However, one of the donees namely Kaushaliya Devi has been examined in the suit as D.W. 2 on behalf of the defendant no. 3 and she has stated in her examination-in-chief that no gift deed was executed in her favour and she never came in possession on that basis. Besides, the suit properties have been admittedly recorded in the recent survey khatiyan in the names of Sagelu Bind and Bhagedu Bind. There is no evidence on behalf of the contesting defendants that the entry made in the recent khatiyan has ever been challenged. The courts below therefore have rightly come to the conclusion that the gift deed in question in fact has not been acted upon particularly when one of the donees has expressed ignorance of the said gift at all and denied any possession on that basis over the suit land. The appellate court below has also found that the contesting defendants, who have come out with the case of previous partition, have failed to mention in the written statement, the details of the said partition including the manner in which the said partition was effected and the date or year of the said partition. The other co-sharer- defendants have also not supported the case of previous partition as propounded by the contesting defendants. The learned counsel Patna High Court SA No.307 of 2005 (18) dt.23-04-2014 17 for the appellants has laid much emphasis on the sale deeds executed by the different co-sharers from time to time but it is well settled that the alienation of the family property by the co- sharers is not per se sufficient to establish partition.
Both the courts below have concurrently come to the finding that the defendants have failed to prove their case of previous partition and establish the validity of the gift deed of the suit property in their favour conferring exclusive title upon them. It has also been held that the defendants have failed to rebut the statutory presumption of correctness of the entries in the recent survey khatiyan. The issues arising between the parties have now been concluded by the concurrent findings of fact which have been recorded on the basis of appreciation of evidence on record. The submissions on behalf of the appellants have largely centered around reappreciation of evidence which is not permissible at the second appellate stage.
Ex consequenti, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed.
(V. Nath, J) Devendra/-