Patna High Court
Smt.Savitiri Devi vs Ranganath Tiwary on 7 September, 2011
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
FIRST APPEAL No. 504 OF 1985
Against the judgment and decree dated 06.06.1985 passed by
Sri Nand Kishore Narain Sinha, Subordinate Judge, Gopalganj in
Title Suit No.23 of 1972.
ARUN KUMAR AND OTHERS ...... Defendants/Appellants
Versus
MRS. SAROJ DWIVEDI AND OTHERS. ...... Plaintiffs/Respondents
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For the appellants : Mr. R.K.P. Singh, Advocate
Mr. Bal Bhushan Chaudhari, Advocate
Mr. Amrendra Nath Vishwash, Advocate
Mr. D.N. Gupta, Advocate
For the respondents : Mr. Kamal Nayan Chaubey, Sr. Advocate
Mr. Shashi Shekhar Dwivedi, Sr. Advocate
Mr. Ranjan Kumar Dubey, Advocate
with them.
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Dated : 7th day of September, 2011
PRESENT
THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
JUDGMENT
Mungeshwar 1. The defendants have filed this first appeal against the
Sahoo, J.
judgment and decree dated 6.6.1985 passed by the Sri Nand Kishore Narain Sinha, learned Subordinate Judge, Gopalganj in Title Suit No. 23 of 1972 whereby the learned court below decreed the plaintiffs- respondents‟ suit for partition to the extent of 1/4th share.
2. The original plaintiff Sri Ranganath Tiwari filed the aforesaid suit for partition claiming 1/4th share in schedule 1 to 3 of the plaint. The original defendant No.1 was Chandrajyoti Devi. During the -2- pendency of the suit Chandrajyoti Devi died in the year 1977. In her place her daughter Smt. Savitri Devi was substituted. In this appeal Savitri Devi was the sole appellant and the plaintiff Ranganath Tiwari was the sole respondent. The appellant Savityri Devi as well as the respondent Ranganath Tiwari both of them died during the pendency of the appeal and their legal representatives have been substituted.
3. The plaintiff claimed partition to the extent of 1/4th share alleging that the suit properties belonged to Jagnnath Ram who had two wives namely Shyama Devi and Chandrajyoti Devi. Jagnnath Ram and Shyama Devi died, therefore, Chandrajyoti Devi became the absolute owner of the property as mentioned in detail in Schedule 1 and 2 of the plaint. It is also stated that Schedule 3 property has been acquired on the basis of a decree. Chandrajyoti Devi sold her 1/4 th share through two registered sale deeds dated 3.1.1958 Ext.2 and 2/A to the plaintiff Ranganath Tiwari. After purchase the plaintiff has got 1/4th share in the properties and is in joint possession with the defendant. Since the plaintiff is feeling inconvenience in the joint enjoyment of his 1/4th share he requested the defendant to partition but she did not agree, therefore, the suit was filed. The Schedule 1 lands situate in Saran District whereas schedule 2 lands situate in Deoria.
4. The original defendant Chandrajyoti Devi neither appeared nor filed written statement. After her death on being substituted her daughter Savitri Devi filed contesting written statement alleging that the suit is not maintainable and the plaintiff has got no cause of action. The allegations made in the plaint are false and not true. The plaintiff is clever person and no notice was served on her mother therefore, her mother had no knowledge about the pendency of the suit and she could not filed written statement and she died. It is -3- further alleged that the suit has already abated because her mother Chandrajyoti Devi had died in the year 1977 but plaintiff gave false date of death and played a fraud on the court and filed the application for substitution. Since the suit had already abated prior to substitution the suit is not maintainable. The defendant shall file a separate application for recall or modification of the order substituting her. The defendant further alleged that there is no unity of title and possession. The plaintiff was never in possession and is not in possession and has not acquired any right title interest in the suit property. The suit is barred under Section 34 of the Specific Relief Act. There was no relationship between plaintiff and Chandajyoti Devi.
5. The further case is that Chandrajyoti Devi had filed Title Suit No. 52 of 1952 against Hardev Prasad and Mr. Shiv Kumar Dwivedi Advocate of Chapra was conducting her case. The said Shiv Kumar Dwivedi created the sale deed without payment of any consideration. The mother of the defendant never executed the said sale deed nor she had any requirement of money. The contents of sale deed was never read over and explained to her. The sale deeds are forged fabricated, false and without consideration. Chandrajyoti Devi was a Paradanashin lady so she was relying on her Advocate Shiv Kumar Dwivedi. On the basis of the sale deed the plaintiff never came in possession. If the sale deeds are proved then also the same are dead letter and plaintiff never acquired any title and possession. After death of Chandajyoti her daughter is coming in possession. All other allegations were denied by the defendant.
6. On the basis of the aforesaid pleadings of the parties, the learned court below framed the following issues.
"1. Is the suit as framed maintainable ? -4-
2. Have the plaintiffs valid cause of action for the suit ?
3. Is the suit barred by limitation ?
4. Is the contract of sale dated 10.1.1977 valid, genuine and for consideration ?
5. Have the plaintiffs been ready and willing to pay the consideration due to sale the sale deed executed ?
6. Are the plaintiffs entitled to a decree for specific performance of contract as claimed ?
7. To what other relief or reliefs are the plaintiffs entitled ?"
7. It appears that during the pendency of the suit an application was filed by the defendant under Section 4(C) of the Consolidation Act and after hearing both the parties the suit was held to have abated with respect to Saran, Gopalganj properties and further held that so far Deoria properties are concerned the suit will proceed.
8. After trial the learned court below came to the conclusion that the two sale deeds Ext. 2 and 2/A are valid genuine and operative and for consideration. The learned court below also found that there is unity of title and possession between the parties over schedule 2 properties and that the plaintiff has got valid cause of action. So far Schedule 3 properties is concerned the learned court below held that the plaintiff is not entitled to any share and accordingly, the plaintiff‟s suit was decreed in part so far it relates to schedule 2 property.
9. The learned counsel Mr. R.K.P. Singh appearing on behalf of the appellant submitted that the simple suit for partition is not maintainable on the ground that the Title Suit No. 23 of 1972 has abated as Chandrajyoti Devi died on 5.4.1977 and till 5.7.1977 no substitution application was filed. Therefore, the suit automatically abated in view of provision contained under Order 22 Rule 4 sub Rule -5-
3. On 12.1.1978 substitution application was filed giving imaginary date of death as 15.10.1977 which was allowed on 1.4.1978 without notice to the heirs of Chandrajyoti Devi. After appearance Savitri Devi daughter of Chandrajyoti in her written statement at paragraph 5 categorically stated that the suit had abated prior to substitution but no issue was framed on that point by the court below therefore, the judgment and decree is vitiated. DW 1 Khublal had stated that Chandrajyoti Devi died on 5.4.1977 and there is no cross examination on this point by the plaintiff therefore, the learned court below could have held that suit has abated.
10. The learned counsel next submitted that the plaintiff Ranganath Tiwari had not filed substitution petition dated 12.1.1978 because some other person has signed on the said application as Ranganath Tiwari. The signature on the petitioner do not tally with the signature of Ranganath Tiwari on the plaint and vakalatnama the original application was not supported by affidavit and, therefore, court below directed to file an affidavit which was filed on 13.2.1978 which was affidavited by an Advocate clerk but the court below failed to apply his judicial mind and allowed the substitution application by terms of order dated 1.4.1978. In view of the provision as contained in order 43 Rule 1-A C.P.C. the appellant is challenging the said order dated 1.4.1978.
11. The next point raised by the learned counsel is that on the application of the defendant the suit was abated with respect to schedule 1 property situated in Gopalganj and learned court below by terms of order dated 14.8.1982 held so. The consequence of the said abatement the property remained in the suit was regarding schedule 2 property. All the properties situated in Deoria therefore, the Sub Judge, Gopalganj had no territorial jurisdiction but the learned court -6- below rejected the application by terms of order dated 14.8.1982. The learned court below should have taken into consideration the subsequent facts as the suit proceeded with respect to schedule 2 property only, the right to sue is dependent on the right to the property and cause of action is not a vested right in favour of the plaintiff therefore, when the cause of action regarding Gopalganj property ceased the learned court below had no territorial jurisdiction to decide the suit relating to Deoria property.
12. The learned counsel next submitted that the suit filed by original plaintiff is not a simple suit for partition rather it is a suit for declaration of title and recovery of possession therefore, the plaintiff was required to pay advolarum court fee and for non-payment thereof the learned court below should have dismissed the suit. On the date of execution of sale deed dated 3.1.1958 final decree proceeding in earlier title suit No. 52 of 1952 was pending. In fact during pendency of the final decree proceeding these two sale deeds were created. Since Chandrajyoti Devi was not in possession because of the fact that no delivery of possession was affected on her she could not have given possession to the plaintiff, therefore, Ranganath Tiwari never came in possession of the properties either exclusively or jointly with Chandrajyoti Devi. The plaintiff being the purchaser of undivided share has no right to directly go over on the purchased property and has no right of possession. He had only the right to sue for partition therefore, it cannot be regarded as simple suit for partition as such advoluram court fee was payable. Since no advoluram court fee has been paid the suit could not have been decided in favour of the plaintiff.
13. The learned counsel next submitted that since the suit cannot be treated as simple suit for partition therefore, provision of -7- Limitation Act would be attracted. Under law presumption is that possession of one co-sharer is possession of other co-sharer and unity of title and possession is there but in this case Chadrajyoti Devi and Ranganath Tiwari cannot be said and held to be a co-sharer. The right to file suit by Ranganath Tiwari on the basis of Ext. 2 and 2/A started from the date of creation of sale deeds i.e. 3.1.1958 but for first time the suit has been filed after 14 years in the year 1972 and the suit not being a simple suit for partition is barred by law of limitation and adverse possession because Ranganath Tiwari never came in possession. The learned counsel further submitted that Article 65 of the Limitation Act will apply and if it is held that the said Article is not applicable then the residuary Article 113 of the Limitation Act will apply and, therefore, in any view of the matter the suit was barred by law of limitation.
14. The learned counsel next submitted that since the right to sue accrued to enforce Ext.2 and 2/A on 3.1.1958 on which date cause of action arose but the plaintiff for more than 12 years remained silent and, therefore, after expiry of 12 years the cause of action was lost and, therefore, the plaint should have been rejected on that ground alone under Order 7 Rule 11 of the Code of Civil Procedure.
15. The learned counsel next submitted that there is no unity of title and possession. The plaintiff has also not pleaded the act of possession in the plaint. The oral evidences adduced regarding act of possession by the plaintiff is inadmissible as there is no basis. The sale deeds never saw the light of the day for 14 years therefore, it remained a dead letter and inoperative.
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16. The learned counsel next submitted that both the sale deeds are not genuine rather the same are forged and fabricated. The sale deeds did not contain the signature of Chandrajyoti Devi and her son- in-law Ram Narain Prasad. Her signature is vividly apparent and visible on examination by necked eyes. The admitted signature of Chandrajyoti Devi is available on the record of title suit No. 23 of 1972 which may be meticulously examined and compared. The consideration amount of Rs. 2000/- in each deed appears to be shocking to the conscience. According to the learned counsel why the genuine purchaser would purchase such properties which are under litigation particularly when they are strangers to each other and the plaintiff was resident of U.P. The sale deeds are forged, fabricated one and colorable which was created by Shiv Kumar Dwivedi, Advocate in Chapra in order to grab the property of his client Chandrajyoti Devi or for blackmailing her or extortion of money who developed lust for the costly properties. The sale deeds were never registered in nearest registration office.
17. The learned counsel next submitted that the plaint is silent about passing of consideration which is necessary for establishing the right, title of the plaintiff. There is complete denial of payment of consideration amount. The evidences produced by the plaintiff are absurd, contrary and unreliable. There is variance between evidence and proof. The plaintiff has failed to prove payment of consideration. The story of incurring debt on handnote by Chandrajyoti Devi is not accepted and the plaintiff failed to prove the same according to the law. The plaintiff has failed to prove that in fact the sale deeds were executed by Chandrajyoti Devi because she was Pardanashin lady and the onus was on the plaintiff to prove the same. She was not only Pardanashin lady but also old infirm and ailing lady. -9-
18. He next submitted that during the pendency of the first appeal the gift deed dated 20.7.1991 was created by Sri Shashi Shekhar Dwivedi, Senior Advocate Patna High Court in the name of his son Sri Ravi Shankar Dwivedi, Advocate of Patna High who died in an accident subsequently. The said deed is void ab initio because the consolidation authority is going on and no permission is obtained and, therefore, on the basis of gift deed the mother of Mr. Ravi Shankar Dwivedi could not have been substituted.
19. In this first appeal some interlocutory applications being interlocutory application No. 827 of 2007 has been field by the appellant on 13.4.2007 for substitution of legal representatives of Ranganath Tiwari. Another interlocutory application i.e. I.A. No. 2887 of 2007 has been field for condoning the delay in filing the substitution application. Another I.A. No. 2888 of 2007 was filed for making correction in I.A. No. 827 of 2007. On 25.8.2010 I.A. No. 7557 of 2010 was filed by Smt. Saroj Dwivedi for being substituted in place of sole deceased respondent Ranganath Tiwari on the plea that Ranganath Tiwari gifted the property to Mr. Ravishankar Dwivedi who died and she being his legal representatives is entitled to be substituted. IA. No. 7685 of 2010 has been field by the legal representatives of the Ranganath Tiwari alleging that they have no interest in the property as it has been gifted therefore, Saroj Dwivedi may be substituted. It appears that the substitution was allowed on 3.9.2010 and Smt. Saroj Dwivedi was substituted when nobody appeared on behalf of the appellant. Thereafter I.A. No. 9313 of 2010 was filed by the appellant for recall of the said order dated 3.9.2010 on the ground that in fact Saroj Dwivedi is neither legal representatives nor heirs of Ranganath Tiwari and, therefore, she could not have been substituted under Order 22 Rule 4 C.P.C. Earlier -10- order was passed that all these interlocutory applications shall be considered at the time of hearing of the appeal and, therefore, I have heard the parties on these interlocutory applications also.
20. It further appears that on behalf of the appellant I.A. No. 271 of 2011 and supplementary affidavit to the said I.A. has been field by the appellant under Order 41 Rule 27 of the C.P.C. for taking additional evidence. In the said interlocutory application many documents have been annexed and it is prayed that the said documents may be taken as additional evidence. On these grounds it is submitted that the impugned judgment and decree be set aside.
21. On the other hand the learned Senior counsel Mr. Kamal Nayan Chaubey appearing on behalf of the respondents submitted that none of the grounds alleged by the appellant arises for consideration in this appeal. So far abatement under Order 22 rule 9 C.P.C. is concerned it is submitted by the learned senior counsel for the respondents that in the written statement no date of death of Chandrajyoti Devi ahs been mentioned. At paragraph 5 it has specifically been stated that Chandrajyoti Devi died in the early year of 1977 and the plaintiff gave imaginary date of death and substitution was allowed therefore, the defendant will file separate application for recall of the order allowing substitution but no such application was ever filed. Although this defence was taken in the written statement it was never pressed nor any issue was suggested therefore, there was no occasion for framing an issue on these points. Moreover, when substitution has already been allowed and the legal representatives were brought on record there was no question of abatement. The argument made by the learned counsel for the appellant is fallacious and approach is hypertechnical. The evidence of DW I is concerned he has given a specific date of death dated -11- 5.4.1977 which is unreliable because the defendant who is the daughter herself has not mentioned in the written statement the date of death of her mother. Moreover, on the basis of this evidence of DW I it cannot be said that suit has abated. So far Section 4 (C) of Consolidation Act is concerned the issue was raised and decided on 14.8.1982 and the suit was ordered to be abated with regard to Gopalganj property. Against that order civil revision No. 1394 of 1982 was filed by the defendant which was dismissed and, therefore, the order dated 14.8.1982 became final. The said order can never be challenged in appeal. So far Bihar property is concerned the case has been decided by the consolidation authorities in favour of the defendant by the High Court as would be evidence from the decision reported in 2005 (2) PLJR 476. Against the said decision L.P.A. had been field by the appellant which is still pending. The learned counsel further submitted that as soon as the consolidation proceeding is de- notified the suit will revive and the decree will be passed by the civil court inconformity with the consolidation authority as has been held by Full Bench decision of this court reported in 2000 (2) PLJR 338. Therefore, on the abatement of suit partly the territorial jurisdiction of the court never ceased on the ground that the other part of the property is situated within the territorial jurisdiction of the other court. The learned counsel further submitted that under Section 17 of the Code of Civil Procedure the present civil court had jurisdiction to try the suit and on de-notification the same court will again adjudicate and pass decree inconformity with the order passed by the consolidation authority. In such circumstances the argument of the learned counsel that on the abatement the jurisdiction will be ceased is not acceptable. The learned counsel for the respondents submitted that the purchaser has the right to file partition suit for getting his -12- share separated and, therefore, he filed the partition suit claiming his title on the basis of Ext. 2 and 2/A. The defendant appellant stated that the said deeds are forged and fabricated sale deeds and no consideration was paid to Chandrajyoti Devi but in support of the said statements in the written statement, no evidence at all was adduced by the appellants. Therefore, the pleading itself cannot be accepted to be the proof of the fact alleged by the appellant. It was the onus on the appellant to prove the fact alleged by them by adducing evidence. The learned counsel next submitted that all the allegations have been made against the Advocate conducting the case of Chandajyoti Devi who is dead now and also allegations have been made against the present Senior counsel of Patna High Court who is son of Sri S.K. Dwivedi deceased that they got the sale deed created but except the statement of the appellant and the argument advanced before the civil court there is no evidence at all on record but all these submissions made by the learned counsel for the appellant is creation of his mind without therebeing any basis as on the basis of affidavit only the civil suit cannot be decided.
22. The learned counsel next submitted that the plaintiffs have examined the attesting witnesses of the sale deeds, the son-in-law of Chandrajyoti Devi i.e. husband of original appellant Savitri Devi who was the pairvikar in earlier suit No. 52 of 1952 and also pairvikar in the present suit on behalf of Chandrajyoti Devi and then on behalf of Saritri Devi who had identified the signature of Chandajyoti Devi on both the sale deeds and even during the examination of witnesses he was present in the court but he was never examined in the present case. The suit was filed in the year 1972 but till 1977 Chandrajyoti Devi herself never appeared and filed written statement. The plaintiff had examined even handwriting expert to prove the signature of -13- Chandrajyoti Devi on the two sale deeds and her admitted signature on deposition in earlier suit was compared and found to be her signature and handwriting. The learned counsel next submitted that the learned court below has rightly held that she was not Pardanashin on the date of execution of the sale deeds. So far finding in Title Suit No. 52 of 1952 regarding Pardanashin lady is concerned it is not applicable in the present case because it cannot be said that once a pardanashin is always a paradanashin. She might be pardanashin at the early age on her marriage but when the time passed and she became older and older she started appearing in the public places and even she deposed before the court in earlier suit. Moreover the plaintiff has adduced evidence in support of the fact that the contents of the sale deeds were explained to her and after understanding the contents thereof she signed the sale deeds and her signature has been identified by her son-in-law himself therefore, on the ground of Pardanashin only the sale deeds which were proved to have been validly executed cannot be set aside.
23. The learned counsel next submitted that since the suit was simple suit for partition on the basis of two sale deeds no limitation will apply and that plaintiff was not required to pay advoluram court fee. Neither Article 65 of the Limitation Act nor Article 113 of the Limitation Act is applicable. Moreover, even if it is held that the defendants are claiming adverse possession then also they had to prove adverse possession or ouster of the plaintiff by adducing cogent evidence but here the original defendant Savitri Devi herself never appeared before the court below for her examination. Therefore, there is no evidence about ouster or adverse possession. Chandrajyoti Devi sold the property to the present plaintiff during the pendency of final decree proceeding. Therefore, the plaintiff became the co-sharer -14- with Chandrajyoti Devi and for being a co-sharer it is not necessary that plaintiff should be of the same village or of the same district or that the purchaser should be related with the vendor. Since there is no pleading of ouster the possession of Chandrajyoti Devfi will be deemed to be the possession of plaintiff also unless ouster and adverse possession is prove. The plaintiff could have applied for being added in the said suit but he opted to file separate suit which is permissible under the law.
24. So far territorial jurisdiction is concerned the learned counsel submitted that it is technical objection and the same was never raised in the court below therefore, according to Section 21 of the Code of Civil Procedure the decree cannot be reversed. Moreover the trial court had the territorial jurisdiction.
25. The learned counsel next submitted that in the year 1958 small area of lands have been sold for Rs. 4000/- and therefore, after more than half century at this stage only on imagination cannot be said that the consideration amount to be shocking to the conscience. So far additional evidence is concerned the learned counsel submitted that even if the documents are taken into consideration it will not improve the case of the appellant and moreover the application has been filed at the hearing stage. At such a belated stage none of the exceptions as provided under Order 4 rule 27 C.P.C. is applicable and moreover those documents are not at all essential for decision of the present suit or issue involved in the suit.
26. So far the recall of substitution of Smt. Saroj Devi is concerned the learned counsel for the respondents submitted that it is devoid of any merit because the legal representatives of Ranganath Tiwari appeared and submitted that they are not interested in the -15- properties because it has been gifted to Sri Ravi Shankar Dwivedi and, therefore, she was substituted and subsequently after hearing the appellant also the legal representatives of Ranganath Tiwari have also been substituted and they are appearing through their counsel n the first appeal. In such circumstances the order substituting either Saroj Devi or the legal representatives of Ranganath Tiwari is not liable to be recalled.
27. So far gift deed is concerned the learned counsel submitted that the appellants have got nothing to say with regard to gift deed because even if it is held void then also it is between the legal representatives of Ranganath Tiwari and Smt. Saroj Devi and it will never go to the appellant. Moreover the only question is with regard to legal representative who is to be substituted in place of Ranganath Tiwari in this first appeal. Therefore, in the substitution matter the genuineness of the gift deed cannot be examined particularly, when the legal representatives of Ranganath Tiwari are also on record who are not objecting to the substitution of Smt. Saroj Devi. On these grounds the learned counsel submitted that the first appeal is liable to be dismissed with costs because the appellant has dragged the respondents to this court by making false frivolous and untenable defence and during the hearing of the appeal and during the hearing of substitution matter the appellants made scandalous allegations not against the advocate but also against the institution itself with a view to demoralize and therefore, they are liable to pay exemplary costs.
28. In view of the above rival contentions of the parties the point arises for consideration in this appeal is as to whether the plaintiffs-respondent have been able to prove their unity of title and possession over the suit property and are entitled to a share in the suit property or whether the suit was liable to be dismissed as not -16- maintainable on the ground of territorial jurisdiction or abatement or non-filing of advoluram court fee or barred by law of limitation.
29. The original plaintiff respondent Ranganath Tiwari filed Title Suit claiming for partition of his 1/4th share out of the schedule 1 and 3 property. He based his claim on the basis of two registered sale deeds dated 3.1.1958 Ext.2 and 2/A. The defendants appellants case is that the sale deeds are forged fabricated and without consideration. The sale deeds were concocted by advocate Sri S.K. Dwivedi who was conducting the case of Chadrajyoti Devi in Title Suit No. 52 of 1952. In support of their respective cases the parties have adduced evidences. Now let us considered the evidences of the parties available on record.
30. PW 1 Paras Nath Singh has identified the signature of Ram Narain Gupta on the sale deeds as Ext.1 and 1/A. From perusal of the cross examination it appears that he identified Ranganath Gupta in the court who was standing at that time. There is no suggestion given to this witness by the respondents that it is not the signature of Ram Narain Gupta who is son-in-law of Chandrajyoti Devi.
31. PW 2 Indradev Tiwari has stated that he knew Chandrajyoti Devi and also Ranganath Tiwari and also Ram Narain Gupta. In his presence the sale deeds were executed by Chandajyoti Devi in favour of Ranganath Tiwari. At the instance of Chandrajyoti Devi the sale deed was scribed. At that time Bhagwan Prasad and her son-in-law (Damad) Ram Narain G nupta were also present there. The scribe in presence of these witnesses read over and explained to both the parties and Chandrajyoti Devi also read it and then she signed in presence of the witnesses and these witnesses signed as witness when Chandrajyoti Devi asked them.
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32. PW 3 has stated that he was doing pairvy on behalf of Chandrajyoti Devi. Ram Narain Gupta was standing in the court room to whom he identified. He also stated that Chandajyoti Devi had executed two sale deeds. He has identified his signature as Ext.3 and 3/A on the sale deeds. He has stated that Chandjyoti Devi personally gave the sale deeds to Registrar. He has also stated that Ram Narain Gupta had identified her signature on both the sale deeds. At paragraph 3 he stated that Chandrajyoti Devi has purchased the stamp and in his presence Chandrajyoti Devi gave the scribe to write and she went to registry office with this witness. He has also stated that Chandrajyoti Devi herself read the sale deed. He has also stated that Chandrajyoti Devi was not Pardanashin. It appears that although this witness has specifically stated that Ram Narain Gupta who identified the signature of Chandrajyoti Devi was standing in the court room no cross-examination has been made on all these points. In other words it becomes admitted fact that Ram Narain Gupta was the son-in-law of Chandrajyoti Devi who identified her signatures on both the sale deeds. It may be mentioned here that the learned counsel for the appellant during the hearing submitted that in fact he was not the son-in-law rather Ram Narain Prasad was the son-in-law. So far this submission is concerned I find no basis at all. No such suggestion was given nor there is any evidence available on record.
33. PW 4 has stated that he knows Ranganath Tiwari and Ram Narain Gupta who is present in court. There is no denial or suggestion to this witness also to the effect that Ram Narain Gupta is not the son-in-law of Chandrajyoti Devi. PW 5 has also stated that he knows Ram Narain Gupta and Ranganath Tiwari. No suggestion has been given to this witness also that Ram Narain Gupta is not the son-in-law of Chandrajyoti Devi.
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34. PW 6 is Ranganath Tiwari, the original plaintiff. He has fully supported the case made out in the plaint. He has stated that Ram Narain Gupta, the son-in-law of Chandrajyoti Devi identified her in both the sale deeds which was scribed by the scribe. He has also stated that he knew Chandrajyoti Devi from before and, there was no relation. In the cross-examination at paragraph 6 he has stated that he had given money to Chandrajyoti Devi for fighting the case. He has also stated that the Sasural of Chandrajyoti Devi i.e. Bhetparani is only three kosh away from the village of this witness. It appears that there is no denial that Ram Narain Gupta did not identify the signature of Chandrajyoti Devi on the two sale deeds and/or that Ram Narain Gupta is not the son-in-law of Chandrajyoti Devi.
35. PW 9 is the handwriting and finger print expert who has examined the L.T.I. and writing of Chandrajyoti Devi appearing on the sale deeds with the admitted signature in her deposition deposed in Title Suit No. 52 of 1952. These are the evidences adduced on behalf of the plaintiffs. We have discussed the arguments and points raised by the learned counsel for the appellants. Now let us see what are evidences adduced on behalf of the appellants and whether the statements made by the learned counsel is supported by record.
36. DW 1 has only stated that after the death of Chandrajyoti Devi in the year 1977 no other person came in possession of the suit property. Ranganath Tiwari has not come in possession. This is the evidence of DW 2, DW 3 and DW 4. Except these evidences there is nothing on record produced by the defendants-appellants. Admittedly, the original defendant Chandrajyoti Devi had neither filed written statement nor appeared. After substitution Savitri Devi the original appellant before this Court although contested the suit by filing written statement but she was never examined in the case. We have -19- discussed the oral evidences adduced by the parties. So far the oral evidences adduced on behalf of the plaintiff is concerned there is no contrary evidence adduced by the other side.
37. The learned counsel for the appellants submitted that even if there is no contrary evidence then also the plaintiff is required to prove his title on the basis of two registered sale deeds. As has been stated above the witnesses have been examined on behalf of the plaintiffs. The registered sale deeds have been produced which have been marked as exhibits. The witnesses have stated that the signature of Chandrajyoti Devi was identified by her son-in-law Ram Narain Gupta. The plaintiff also examined the finger print expert to prove that the writing and the signature of Chandrajyoti Devi is on the two sale deeds.
38. Now let us consider the points raised by the learned counsel for the appellants. The first argument of the learned counsel is that because of non-substitution of legal representatives of Chandrajyoti Devi within 90 days the suit had abated automatically. So far this submission of the learned counsel for the appellants is concerned I find it is devoid of any merit because the substitution application was filed by the plaintiff in the court below within 90 days from the date of death of Chandrajyoti Devi and considering this fact the learned court below allowed the substitution/amendment application and Savitri Devi was added as defendant. She appeared and filed written statement but no date of death of her mother was mentioned in the written statement. She specifically stated in the written statement that a separate application shall be filed for recall of the order allowing substitution but no such separate application was ever filed. The appellant is relying upon the evidence of DW 1 who in paragraph 2 has stated that Chandrajyoti Devi died on 5.4.1977. So far this -20- evidence is concerned it is neither here nor there nor it is reliable as neither it is the case of the plaintiffs nor the case of the defendants that Chandrajyoti Devi died on 5.4.1977. Moreover, since the substitution has already been allowed and order allowing substitution attained finality. There is no question of abatement of suit under Order 22 Rule 4 Sub Rule 3 arises because of the fact that some third person while deposing in the evidence gave the date of death of Chandrajyoti Devi different than the plaintiffs and defendants‟ case. In my opinion therefore, this submission is not acceptable. The suit will not abate automatically after order of substitution.
39. The learned counsel on this question relied upon various decisions as mentioned in detail in the written argument in connection with issue No.1. In my opinion the facts of the said decisions are entirely different and needs no comment because those are not applicable in the present case and those decisions reiterates the settled principles of law regarding substitution.
40. The next point raised by the appellants is that the trial court had no jurisdiction to try the suit relating to property situated in Deoria. It may be mentioned here that this question of territorial jurisdiction was never raised in the court below. The learned counsel for the appellants submitted that because of the fact that the learned court below held that the suit abated so far schedule 1 property is concerned therefore, the suit proceeded only with regard to property situated at Deoria. The learned counsel submitted that because of this change in the cause of action and the subsequent event the learned court below should have held that the suit was not maintainable because the court had no territorial jurisdiction. -21-
41. In reply to this submission, the learned counsel for the respondents submitted that the jurisdiction of the court is dependent on the date of the institution of the suit. Once the jurisdiction vested in the court the same shall not cease for a limited period during the intervention of notification under the Consolidation Act only. Because after the consolidation is over the suit will revive with respect to the property situated at Gopalganj as detailed in Schedule 1 then again the court will have jurisdiction over the suit. According to the learned counsel the court had the jurisdiction to decide the suit on the date of institution of the suit and the court will have again the jurisdiction to decide the suit after de-notification under the Bihar Consolidation Act and, therefore, it cannot be said that during intervening period only the court had no jurisdiction. The learned counsel for the respondents relied upon AIR (30) 1943 Federal Court 24 Venugopala Reddiar and another Vs. Krishnaswami Reddiar alias Raja Chidambara Reddiar and another. The three judges Bench in that case held that a right to continue a duly instituted suit is in the nature of a vested right and it cannot be taken away except by a clear indication of intention to that effect. In the absence of such a clear indication in the Constitution Act a British India Court continues to have jurisdiction to proceed with trial of a suit already pending before it even with regard to property situated in Burma. It appears that in that case the suit was filed with respect to property situated in British India and also in Burma. Thereafter Burma was separated in 1937. The Federal Court held that suit properly instituted will continue irrespective of the fact that Burma has been separated.
42. In another decision reported in AIR 1930 Nagpur 189 Faizuddin Vs. Mir Yusuf Ali it has been held that when once jurisdiction is vested in a court, it will not be taken away afterwards, -22- even if it is found that the portion of the property being situated within the local limits of the Court which gave it jurisdiction does not belong to the plaintiff as alleged in the plaint unless the inclusion of that property is not a bona fide one.
43. In the present case at our hand, it is admitted fact that after abatement of the suit regarding Schedule 1 property the consolidation authorities have decreed the suit in favour of the plaintiff Ranganath Tiwari. Now, therefore, the judgment and decree will be passed by civil court according to the order/judgment passed by the consolidation authority. The writ application filed by the original appellant Savitri Devi before this Court has already been dismissed vide the case reported in 2005 (2) PLJR 476 Savitri Devi Vs. Ranganath Tiwari.
44. Admittedly, neither the objection of territorial jurisdiction was raised in the court below nor evidence has been adduced by the appellants to show that in any way they have been prejudiced. Therefore, I find no force in the submission of the learned counsel for the appellants.
45. The learned counsel for the appellants submitted that the learned court below should have taken into consideration the subsequent event whereby the suit abated with respect to Schedule 1 property. The learned counsel relied upon various decisions as detailed in page 2 of his written argument. The facts of the said cases do not apply in the present case. Therefore, it is not necessary to go into the details of the decisions cited. It is well settled that subsequent facts can be gone into by the court and the relief can be molded but here the question is abatement of suit was with respect to Schedule 1 property only. As soon as the order is passed by the -23- consolidation authority the suit will survive in view of the Special Bench decision of this court reported in 1979 BBCJ 259 Ram Krit Singh and others Vs. The State of Bihar and others. It has been held in the said decision that abatement will be till the close of consolidation and on close of the consolidation proceeding the suit would revive. Therefore, the right of the civil court was suspended for a period of consolidation proceeding only. Therefore, all the formalities of the consolidation proceeding has been ended. Only a de-notification of the suit is to be issued and then the suit will survive. It is also well settled that the appeal is continuation of the suit and, therefore, inconformity with the order of the consolidation authority the decree will be passed by the civil court after revival of the suit with regard to the Schedule 1 property. In view of the above position of law, I do not agree with the submission of the learned counsel for the appellants.
46. The learned counsel for the appellants next raised the point of court fee. The learned counsel submitted that the plaintiffs were liable to pay ad valorem court fee because the suit is not a simple suit for partition although it has been field as such. The learned counsel relied upon various decisions as mentioned in detail in his written argument at page 3 i.e. AIR 1947 Madrass 285, AIR 1977 Andhra Pradesh 16, AIR 1988 Patna 174, AIR 1991 Patna 53, AIR 1976 Patna 108 and 119 and AIR 1980 Patna 217. From perusal of the said decisions it appears that the facts are different in those cases and, therefore, the said decisions are not applicable in the facts and circumstances of the present case. In a decision reported in 2009 (4) PLJR 225 SC Gajraj Vishnu Gosari Vs. P. Rakesh Nanasaheb Kamble the Hon‟ble Apex Court has held that purchaser of a coparcener undivided interest in joint family property is not entitled to -24- possession of what he has purchased but he has a right only to sue for partition of property and ask for allotment of his share in suit property. The plaintiff is admittedly the purchaser of 1/4th share from Chandrajyoti Devi. On the death of Shyama Devi, Chandrajyoti Devi became the absolute owner of the property. Therefore, after purchase the present plaintiff became co-tenant of Chandrajyoti Devi. In view of the decision of the Hon‟ble Apex Court Gajraj Vishnu Gosari (Supra) the purchaser Ranganath Tiwari has the right to sue for partition and he has sued for partition. In my opinion therefore, no ad valorem court fee is payable. Moreover even if it is payable on that ground the contested judgment and decree cannot be set aside only because the plaintiff has not paid the ad valorem court fee. At best a direction can be given to the plaintiff to file the ad valorem court fee. According to the learned counsel for the appellants the suit should have been dismissed. I do not find any force in the submission of the learned counsel for the appellants for the reasons stated above.
47. The learned counsel relied upon a decision reported in 1966 SC 470 M.V.S. Manikayala Rao Vs. M. Narasimhaswami and others and submitted that the partition suit is barred by law of limitation because in fact the plaintiff has filed this suit for recovery of possession. From perusal of the decision cited by the appellants it appears that in that case the Apex Court was considering Article 144 of the Limitation Act. After amendment of the Limitation Act in the year 1963 the position has changed. Moreover the plaintiffs filed the suit for partition on the basis of two registered sale deeds. In such circumstances, there is no question of suit being barred by limitation arises. I therefore, find that this point is also devoid of any merit.
48. The learned counsel submitted that Ext.2 and 2/A were created documents and Chandrajyoti Devi never signed the sale -25- deeds. The learned counsel submitted that this is the specific pleading in the written statement of Savitri Devi but the learned court below did not compare the signature of Chandrajyoti Devi which are different in different pages and that can be seen by naked eyes. So far this point is concerned as stated above there is no evidence in support of the pleading of the defendants appellants. It is well settled principles of law that pleading is not a proof of the fact alleged. Therefore, merely because it is pleaded by the defendants appellants it cannot be said that the documents have been created. We have examined the witnesses of the plaintiffs. We have seen that the attesting witnesses have deposed in favour of the plaintiffs. The witnesses have stated that the son-in-law of Chandrajyoti Devi identified Chandrajyoti Devi and in token thereof he also signed on the sale deeds. So far signature of son-in-law i.e. Ram Narain Gupta is concerned there is no denial. The only argument advanced by the appellants is that Ram Narain Gupta is not the son-in-law of Chandrajyoti Devi. So far this submission is concerned also it is neither the case of the defendants nor the evidence of the defendants nor any such suggestion was given nor any cross-examination was made to any of the plaintiffs‟ witnesses. Therefore, in other words it can be said that the argument is without any basis. The court cannot make out a third case. The duty of the court is to find out the truth of the case pleaded by the parties.
49. The learned counsel for the appellant next submitted that the learned court below should have dismissed the suit for want of cause of action under Order 7 Rule 11 C.P.C., because the right to sue accrued on 3.1.1958 and after expiry of 12 years the causes of action ceased but the learned court below failed to exercise the jurisdiction under Order 7 Rule 11 C.P.C. So far this submission is concerned also -26- I find no force at all. We have seen above that the suit is simple suit for partition. The witnesses have stated that the plaintiff was in possession with Chandrajyoti Devi. Moreover since he is the purchaser and the right to sue for partition is recurring right, no limitation is applicable nor the cause of action will cease after 12 years. Admittedly, there is neither any pleading of ouster nor there is any evidence in support of the ouster. Likewise neither there is any pleading nor evidence with regard to adverse possession.
50. The learned counsel for the appellants submitted that the possession of Chandrajyoti Devi for a long period will constitute adverse possession and the pleading of adverse possession is not necessary. If the facts are in the pleading the court can find out as to whether the defendants have acquired title by adverse possession or not specific pleading is not required. I do not agree with the learned counsel for the appellants.
51. In (2007) 6 SCC 59 P.T. Munichikanna Reddy and others Vs. Revamma and others the Apex Court has held that adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. It should be positive intention to dispossess the owner distinguished from intention to possess. In view of the above facts the date of dispossession is important point and, therefore, the person who claims adverse possession is required to prove that from which date he started prescribing adverse possession. In the present case at out hand neither any pleading nor there is any evidence to show that the defendants ever started prescribing title by -27- adverse possession. The learned counsel submitted that the adverse possession will start from the date of the execution of the sale deeds. I do not find any force because that is the date whereby the property was sold by the mother of Savitri Devi. The plaintiff has proved the said sale deeds and now it is for the defendants to show that when he/she started to deny the title of plaintiffs. Here the intention to possess the property exclusively denying title of the plaintiffs is absent. On the other hand according to the defendants they are the real owner of the property and they are in exclusive possession and that the plaintiff never came in possession. It is well settled that how so ever long possession may be the same shall not constitute adverse possession unless it is shown that the defendants had the intention to possess the property denying the title of the plaintiffs. In other words there must be intention to dispossess rather than only intention to possess. I therefore, find no force in the submission of the learned counsel for the appellants.
52. The learned counsel for the appellant next submitted that the sale deed was executed during the pendency of the earlier title suit and, therefore, the transaction is hit by Section 52 of the Transfer of the Property Act. So for this question is concerned it may be mentioned here that the Suit No. 52 of 1952 was decreed in favour of Chandrajyoti Devi and thereafter on the death of Shyama Devi she became absolute owner of the entire property of her husband. In such circumstances there is no question of Section 52 of Transfer of Property Act arises. On this ground Chandrajyoti Devi could not have avoided the sales.
53. The learned counsel for the appellants next submitted that Chandrajyoti Devi was old infirm and Pardanashin therefore, the onus was upon the plaintiffs to prove that he derived title through the sale -28- deeds. The further onus was to prove that in fact Chandrajyoti Devi singed both the sale deeds after knowing the contents of the sale deeds and their implications. So far this submission is concerned we have seen above that the witnesses have been examined by the plaintiff in support of the fact that the scribe read over and explained the contents of the sale deed and Chandrajyoti Devi also read herself and then she signed the sale deeds and her signatures were identified by her son-in-law Ram Narain Gupta. The witnesses have further stated that she presented the sale deeds for registration before the Registrar. The finger print expert PW 9 has proved this fact. It appears that in the earlier Suit No. 52 of 1952 she deposed before the court and her signature appearing on the deposition form was compared with the present two sale deeds. Therefore, the onus has been discharged by the plaintiffs by adducing sufficient reliable evidence. The learned counsel for the appellants submitted that the finger print expert should not have been relied upon because he is a remunerated witness. So far this submission is concerned it may be mentioned here that the learned court below has not given a finding only on the basis of evidence of PW 9 finger print/handwriting expert. From the facts discussed above the other reliable witnesses have also stated that Chandrajyoti Devi after going through the sale deeds and knowing its full implication signed the sale deeds and her son-in-law identified her. Therefore, the near and dear son-in-law who was doing pairvi in the earlier case as well as in the present case was present at the time of execution and registration of the sale deeds. Therefore, these evidences are corroborated by evidence of PW 9. Had it been the case that only the handwriting expert has been examined then the matter would have been otherwise. I therefore, find no force in the submission of the learned counsel on this point.
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54. The learned counsel next submitted that in the sale deeds it has been mentioned that Chandrajyoti Devi had taken some money on hand note but the plaintiffs have not filed any such hand note in support of the said facts. In my opinion, so far this submissions is concerned also I find no force because the plaintiff was required to prove the genuineness of the sale deeds and once it is proved that the sale deeds are genuine and for consideration then to prove the contents of the sale deeds further evidences is not necessary. The statements made in the sale deeds are the statement made by a dead person i.e. Chandrajyoti Devi. So far passing of consideration is concerned there is no denial evidence adduced on behalf of the defendants. The plaintiffs have adduced positive evidence, which we have discussed above. Only defence of the defendants is that sale deeds are forged created and in fact the real owner was Mr. S.K. Dwivedi, Advocate. So far this defence is concerned except the pleading in the written statement there is no evidence on record in support of this fact.
55. The learned counsel next submitted that the original appellant was prevented by the respondents to adduce evidence. So far this submissions is concerned also I find no force because had it been the case the original appellant would have approached the court below for reopening her case or for her examination but nothing was done. She participated in the argument of the case and when the decision was given against her she has filed this appeal taking this ground which is not acceptable. Moreover, there is nothing on record to suggest that she was prevented by the respondents plaintiffs. This is the only submission of the appellants before this Court. This court has no such power to presume probe into the minds of the parties on -30- the basis of submission only that the original appellants was prevented by the plaintiff respondent to adduce evidence.
56. In view of the above consideration of the evidences and the facts and circumstances and also the submissions of the learned counsel for the appellants I find that the sale deeds Ext.2 and 2/A have been executed by Chandrajyoti Devi. Therefore, the sale deeds are not created documents nor forged document. The said sale deeds are genuine, valid and for consideration and the original plaintiff Ranganath Tiwari derived title through the said sale deeds being Ext. No. 2 and 2/A. Therefore, the finding of the learned court below on this point is hereby confirmed.
57. It appears that interlocutory application No. 9313 of 2010 has been filed by the appellants for recalling the order passed by this Court on 3.9.2010 on the ground that the order has been passed behind the back of the counsel of the appellants and without hearing him at the behest of third party Smt. Saroj Dwivedi whose counsel did not even serve a copy of the alleged substitution petition being I.A. No. 7557 of 2010. From perusal of the order dated 3.9.2010 it appears that the said order was passed on the basis of office note dated 1.9.2010. It appears that in the said office note the office has placed I.A. No. 827 of 2007, I.A. No. 2887 of 2007, I.A. No. 7557 of 2010 and I.A. No. 7685 of 2010. Out of the said applications I.A. No. 7557 of 2010 was filed by Smt. Saroj Devi for being added/substituted in place of deceased respondent Ranganath Tiwari. The other interlocutory applications No. 827 of 2007 was filed by the appellants for substitution of the legal representatives of Ranganath Tiwari. I.A. No. 2887 of 2007 was filed by the appellant under Section 5 for condoning the delay in filing I.A. No. 827 of 2007 and I.A. No. 7685 of 2010 was filed by the heirs of Ranganath Tiwari. When the -31- applications were called for under the heading for orders on petition nobody appeared on behalf of the appellants even to press their applications. It further appears that prior to that also on 25.8.2010 nobody appeared on behalf of the appellants. The learned counsel for Smt. Saroj Devi pressed the interlocutory application No. 7557 of 2010 and submitted that Ranganath Tiwari had gifted the property to Ravi Shankar Dwivedi and Ravi Shankar Dwivedi had filed application for substitution in place of Ranganath Tiwari. Before the order could be passed in the said application he died and, therefore, Smt. Saroj Dwivedi his mother has filed this application for being substituted in place of Ranganath Tiwari. The legal heirs of Ranganath Tiwari to whom the appellant was desiring to substitute appeared and submitted that they have no interest in the property because their ancestor Ranganath Tiwari had already gifted the property to Ravi Shankar Dwivedi. Considering these facts and submissions the order has been passed on 3.9.2010 whereby Smt. Saroj Dwivedi was substituted/added in place of Ranganath Tiwari who was the sole respondent. Thereafter an application for recall has been filed being I.A. No. 9313 of 2010. We have seen above the facts that on the previous dates as well as on 3.9.2010 nobody appeared on behalf of the appellants and the order was passed. At paragraph 1 of the recall application i.e. I.A. No. 9313 of 2010 the appellant stated that the respondents managed to get the ex parte order passed. Therefore, in my opinion this statement in paragraph 1 appears to be derogatory and abusive. In my opinion, this statement is not only against the respondent Smt. Saroj Devi but also against the institution i.e. the High Court also. In other words, according to the appellant the orders are being managed by the respondents in the court. This statement is without any basis and shows that when the order was passed not -32- according to appellants desire such language has been used. It may be mentioned here that the allegation is that copy was never served on the advocate of the appellant. In such circumstances when the case was in the daily cause list and it appears that the names of many advocates of the appellants is printed in the cause list some body could have appeared and asked for a copy of the application or the appellant could have pressed their application but they kept mum and when the order was passed the appellant filed the application making such allegation that ex parte order has been passed or managed without hearing him. It may be mentioned here that Ranganath Tiwari died on 23.3.2001 and the applications have been filed in 2007. From perusal of the record it appears that on 5.3.1993 Ravi Shankar Dwivedi had filed an application for being added as party on the ground that he is a donee. On the prayer of the appellants the said application was fixed for hearing along with appeal on 9.11.1993. On the said date nobody turned up on behalf of the appellants. However, the case was suo motu adjourned for 17.11.1993 but on that day also nobody appeared and, therefore, the appeal was dismissed for default. A belated MJC application was filed being M.J.C. No. 2521 of 1995 for restoration of the first appeal but for non-prosecution thereof it was dismissed for default. Again MJC No. 1077 of 1996 was filed for restoration and the appeal was restored without service of notice to the respondents. From the above facts it appears that the appellant himself is not conducting the case diligently and whenever any order is passed if it is not in favour of the appellant he is using such derogatory and abusive language not only against the respondents but also against the institution. Instead of looking faults in himself trying to find fault on others.
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58. The learned counsel for the appellants submitted that the application on behalf of Ravi Shankar Dwivedi for being substituted had already been rejected up to the High Court in Civil Revision No. 1289 of 1995 therefore, in place of Ranganath Tiwari the mother of Ravi Shankar Dwivedi could not have been added or substituted. From perusal of the order dated 17.7.1997 passed by this Court in Civil Revision No. 1289 of 1995, it appears that the application was filed by Ravi Shankar Dwivedi before the court below praying for addition of Gopalganj property in the final decree proceeding and while rejecting the said application the learned court below observed that if the petitioner has got right, title interest in the suit land on the basis of gift deed he must have filed a separate regular suit for declaration of title and confirmation of possession over the same. In the civil revision this court expunged the said observation of the court below. Therefore, it is wrong to say that the petitioner‟s application for substitution was rejected in the court below. Moreover, admittedly, the substitution application filed by Ravi Shankar Dwivedi before this Court no order was passed. From perusal of paragraph 13 of the interlocutory application No. 9313 of 2010 it appears that again the derogatory and abusive language has been used by the appellants not only against the Senior Advocate Mr. Shashi Shekhar Dwivedi but against the institution also. In my opinion these allegations made by the appellants could have been avoided wisely as those statements are unnecessary and not required for consideration while passing the order on interlocutory applications like substitution application. Therefore, in exercise of power under Order 6 Rule 16 I hereby ordered that such unnecessary scandalous, frivolous and vexatious pleading made in the aforesaid interlocutory applications to be struck out. It appears that after hearing the appellants on the interlocutory -34- application No. 9313 of 2010 without going to the merits of the controversy regarding who is to be substituted in place of Ranganath Tiwari, by terms of order dated 6.10.2010 the legal representatives of the deceased respondent Ranganath Tiwari/his heirs were also substituted in place of Ranganath Tiwari. Now therefore, the position is that the heirs of Ranganath Tiwari are also respondents and Smt. Saroj Devi is also respondent. The objection of the learned counsel for the appellants is that the name of Saroj Devi should not have been added or substituted. So far this submission is concerned I find no force as according to the heirs of Ranganath Tiwari who are already substituted, have stated that they have no interest as the property has been gifted. In such circumstances the appellants cannot dictate that who is to be substituted. Moreover I have found above that the ale deeds Ext.2 2/A are valid and genuine and for consideration and, therefore title passed to Ranganath Tiwari. In such view of the matter now the property of Ranganath Tiwari will go to his heirs or to Smt. Saroj Devi is a dispute between the respondent inter se and the appellant has got nothing to say on it, that too in substitution matter which is purely interlocutory.
59. The learned counsel next submitted that the gift deed has been obtained in the year 1991 when the consolidation proceeding was going on. This question again is between the heirs of Ranganath Tiwari and so called donee or his heirs. Since the plaintiff Ranganath Tiwari derived title through the sale deeds it will go to „X‟ or „Z‟ it is not related to the plaintiffs‟ even if it is held that the gift deed is void then also the property will remain with heirs of Ranganath Tiwari. Moreover, in substitution matter that question regarding as to whether the gift deed is void or not cannot be gone into. It is purely an interlocutory matter. Whether the gift deed is void or not that can -35- be examined in properly constituted suit between the inter se respondents, the appellants have got no concern.
60. Another interlocutory application being I.A. No. 271 of 2011 has been filed by the appellants and a supplementary affidavit was also filed to the said interlocutory application under Order 41 Rule 27 C.P.C. seeking for additional evidence. I have heard the learned counsel for the parties on this interlocutory application also.
61. By this interlocutory application some letters written by Mr. S.K. Dwivedi, Advocate, Mr. S.S. Dwivedi, Senior Advocate were sought to be adduced as additional evidence. The learned counsel for the appellants submitted that these documents are necessary for deciding the question regarding involvement of S.S. Dwivedi, Senior Advocate and his father in present suit and till today they are affecting the administration of justice by committing professional misconduct. The appellants in the written argument at paragraph 17 had elaborated this fact. So far this question is concerned we have seen above that the only defence is that Mr. Shiv Kumar Dwivedi Advocate got created the two sale deeds. Although there is such allegation in the written statement but no evidence has been adduced in support of the said facts. On the contrary the plaintiff Ranganath Tiwari has proved the sale deeds to be genuine legal and valid for consideration. The point which is being raised before this Court was never an issue before the court below. It might be possible that the pleading was there but not pressed so no issue was framed and none of the parties adduced any evidence with regard to that question. As such above pleading is not the proof of the fact pleaded. In such circumstances no such case was before the Trial court. There is no evidence on record also. Therefore, even if the documents which are sought to be adduced as additional evidence are taken into -36- consideration the same will not make any difference with regard to the merits of the case. In the case of Janak Dulari Devi and another Vs. Kapildeo Rai and another (2011) 6 SCC 555 the Apex Court has held that when what is pleaded is not proved or what is stated in the evidence is contrary to the pleading, the dictum that no ground of evidence contrary to the pleading how so ever cogent can be relied on would apply. Therefore, when there was no evidence in support of the pleading and no issue was framed the point was never raised in the court below in my opinion at this stage after such long lapse of time i.e. more than above 39 years the appellants cannot be allowed to adduce additional evidence particularly, when none of the circumstances mentioned under Order 41 Rule 27 is applicable. In my opinion the said documents are not at all necessary for determination of the controversy between the parties.
62. In AIR 2005 SC 3165 Ishwar Dutt. Vs. the Land Acquisition Collector and another the apex Court has held that the High Court in our opinion although has a wide power in terms of Section 107 of the Code of Civil Procedure but it could not have gone out side the pleadings and make out a new case. In the present case at our hand as stated above there is nothing on record to suggest that the sale deeds were created by Mr. S.K. Dwivedi Advocate. The other aspect of the matter is that except the pleading no evidence has been adduced. Moreover, we have already found that the sale deeds are genuine. Now therefore, whether Ranganath Tiwari is the real owner or Shiv Kumar Dwivedi was the real owner of the property is altogether inter se disputes between respondents. The learned counsel submitted that this is the case of the appellant. So far this submission is concerned no doubt there is pleading but without there being any evidence the court cannot presume such fact because the -37- original plaintiff was Ranganath Tiwari and the sale deeds were found to be genuine and valid. Merely, because some pleading is there that Shiv Kumar Dwivedi got it executed in the name of relation Ranganath Tiwari the court cannot presume without therebeing any evidence. I therefore, find no force in the interlocutory application under Order 41 Rule 27 C.P.C.
63. In view of the above discussions, all the interlocutory applications are disposed of. The application for recall of order dated 3.9.2010 is rejected in view of the fact that subsequently the legal heirs of Ranganath Tiwari have been substituted.
64. In a decision reported in (2005) 6 SCC 344 Salem Advocate Bar Association, T.N. Vs. Union of India the Apex Court has held that judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35 (2) C.P.C. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further whenever costs are awarded ordinarily the same are not realistic and are nominal. When Section 35(2) provides for costs to follow the event it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court is in its discretion may direct otherwise by recording reasons there for.
65. In view of the above discussions of the facts of the case and also settled principles of law in my opinion in the present case the appellant is liable to pay cost to the respondents.
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66. In view of the above discussions, I find that there is no reason to interfere with the finding of the court below. Therefore, the finding o the court below is hereby confirmed.
67. In the result, I find no merit in this appeal. Accordingly, it is dismissed with cost of Rs.15,000/- to be paid by the appellants to the respondents within two months, failing which the respondents shall be at liberty to realize the same through the process of the court.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 7th September, 2011 S.S./A.F.R.