Allahabad High Court
Munesh Kumar Agnihotri And Ors. vs Lalli Prasad Gupta Since Deceased By ... on 5 May, 1988
Equivalent citations: AIR1989ALL202, AIR 1989 ALLAHABAD 202, 1988 ALL. L. J. 823 (1988) 2 CIV LJ 435, (1988) 2 CIV LJ 435
JUDGMENT Om Prakash, J.
1. This is a second appeal against the judgment and decree dated 30th March, 1984 passed by learned III Additional District and Sessions Judge, Varanasi.
2. Brief facts are that one Sri Govind Prasad died in the year 1937. Radhika Prasad, Debi Ratan, Parmeshwari Deen, Shitla Prasad Agnihotri (respondent 3) and Prem Shanker Agnihotri (respondent 4) are the sons of Sri Govind Prasad. The appellants are the sons of Sri Prem Shanker Agnihotri (respondent 4). The case of the appellants is that Radhika Prasad, Debi Ratan, Parmeshwari Deen and Shitla Prasad (respondent 3) separated from their father Govind Prasad in his lifetime and after this separation, the joint family of Govind Prasad consisted of himself, his widow and his son Sri Prem Shanker Agnihotri (respondent 4), Sri Prem Shanker Agnihotri was minor, when Sri Govind Prasad died. The father of the appellants carried on the job of Munim with a meagre earning for some yearsand in the year 1952 he started business styled as Krishna Lime Company with the funds of the joint Hindu family and Lallu Prasad (respondent 1) was employed in the business of the joint family in the year 1955. To establish joint family nucleus, the appellants alleged that Sri Govind Prasad served in the Army at the time of Second World War and he was a warded Janggi award of Rs. 10A for which the father of the appellants was nominated and by virtue of nomination done by Sri Govind Prasad the respondent 4 continued to receive the award.
Besides this, Sri Govind Prasad started cloth business and carried on agricultural operation which yiekled substantial income. It isaverred that the savings of the cloth business and the agricultural operation carried on by Sri Govind Prasad and Janggi award regularly received by the father of the appellants, constituted the joint family nucleus and with this the joint family business styled as Krishna Lime Company, was started by the father of the appellants. The said business returned good profits and on 7-5-1959, Sri Kundan Lal, respondent 2 entered into an agreement to sell a plot of land with the respondent 4. The said plot was purchased with the funds of joint family business and construction of a house on the said plot was completed in the year 1961. In 1962, a licence was granted to the respondent 1 who was an employee in the joint family concern, by the respondent 4 to use the said house. In the agreement to sell (paper No. 167 A1) execution of which was admitted but not marked as exhibit, the respondent 4 and the respondent 1 are shown as partners of the firm Krishna Lime Company. The appellants contended that the respondent 1 dominated over the respondent 4 and, therefore, in the agreement to sell, the respondent 1 managed to show Krishna Lime Company as a partnership business having two partners, which, in fact, was a joint family business belonging to the joint family of the respondent 4. It is contended that a criminal case was started in the year 1956 under Sections 120B, 467 and 420, I.P.C. against Debi Prasad and others and the respondent 1 admitted in those proceedings himself to be an employee of Krishna Lime Company.
3. It is pleaded that the respondent 3 being in collusion with the respondent 1 filed a Civil Suit No. 87 of 1965 Shitla Prasad Agnihotri v. Kundan Lal and others for specific performance of the contract in which the respondent 4 and the respondent 1 were the defendants 2 and 3 respectively. Sri Kundan Lal who entered into an agreement to sell, was defendant 1 in that suit. The dispute in that suit was ultimately carried to the High Court in Second Appeal and then this Court by the order dated 3-12-1974 held that the respondents 3 ant! 1 of the instant appeal were entitled to specific performance of the agreement to sell (paper No. 167 A1). The appellants contended that they were not the parties to the said civil suit and, therefore, the decision dated 3-12-1974 given by the High Court in second appeal is not binding on them and that does not operate as res judicata against them. The appellants contended that the business, Krishna lime Company was wrongly held to be a partnership business in the previous suit. Therefore, the appellants filed a suit for declaration against the respondents that the business, Krishna Lime Company, Senpura, Varanasi was the joint family business of the appellants and the respondent 4 and the respondents 1 and 3 had no concern either with the business or the house No. C 26/10-B-1 from which ejectment of the respondent 1 has been sought.
4. The respondent 1 filed a written statement and denied that the Krishna Ume Company was the joint family business of the appellants and the respondent 4 and that the house situated on the plot which wasacquired from the respondent 2, was constructed with the funds of joint family business. It is averred that the respondent 4 started business in partnership of Munna Prasad Bajpai in the year 1952 with his separate funds earned by him from the job of Munimi which he carried on for 7-8 years prior to 1952; that the said partnership ended in December, 1954 and then the respondent 4 started partnership business with the respondent 1 from 1-5-1956; that from the profits of such partnership, the plot on which the suit house is situated, was acquired from the respondent 2; that he was never an employee in Krishna Lime Company; that the house was constructed on the aforesaid plot with the f undsof the partnership business; that the partnership continued till 31-3-1963 when the respondent 3 took over the business in his hand and promised to pay the amount to the respondent 1 which was due to him from the dissolved firm; that the respondent 1 became employee of the respondent 3after he took over the business; that the respondent 4 with the intention to deprive the respondent 1 of the co-ownership of the house got a civil suit instituted through the respondent 3 with incorrect allegations that Krishna Lime Company was the business of the respondent 3; that the respondent 4 with an evil design accepted the entire plaint case of the respondent 3 in the previous suit, that he was held to be a partner of the business, Krishna Lime Company, even by the High Court in that ease and, therefore, the question of Krishna Lime Company being the partnership business was finally closed and that the previous judgment of the High Court operates as res judicata against the appellants. The remaining respondents, however, have not contested the suit of the appellants.
5. The trial Court and the lower appellate Court by their concurrent judgments dismissed the suit of the appellants. The lower appellate Court has held that the judgment of the High Court in Suit No. 87 of 1965 which was filed by the respondent 3 against the respondents 1, 2 and 4, operates as res judicata and, therefore, the appellants cannot reagitate the questions that Krishna Lime Company was not a partnership business and that house in suit was not constructed with partnership funds.
6. It is also held by the lower appellate Court that in view of the judgment given in the previous suit which is operative as res judicata it must be held that the respondent 1 was not the employee but a partner in the firm styled as Krishna Lime Company; that the plot on which the suit house is situate was acquired by the funds of the partnership and the house in suit jointly belonged to the partners.
7. f heard Sri Sidheshwari Prasad, learned counsel for the appellant and Sri S. N. Verma, learned counsel for the only contesting respondent 1. The thrust of the argument of Sri Sidheshwari Prasad is that the finding of the lower appellate Court that the judgment of the High Court in Civil Suit No. 87 of 1965, Shitla Prasad v. Kundan Lal and others operates as res judicata, is wholly unsustainable in law and that being so, it is open to the appellants to reagitate the questions whether Krishna Lime Company was the partnership or the joint family business and whether the respondent 1 was a partner or an employee in the joint family business. Sri Verma urged that the father of the appellants was defendant 2 in the earlier suit and the chief contest between the defendant 2 and the defendant 3 in the earlier suit was whether the latter was the employee of or a partner with the defendant 2. The respondent 1 in the instant appeal was held to be the partner in the earlier suit and this finding, Sri Verma urged, would operate as res judicata against the appellants under Section 11, C.P.C. It is undisputed that the appellants were not the parties to the previous Suit No. 87 of 1965. It is also true that the appellants do not claim through their father who was defendant 2 in the previous suit and, therefore, Section 11, C.P.C., strictly speaking, may not be attracted to the case of the appellants. Under Section 11, C.P.C. by virtue of doctrine of res judicata, no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. So the doctrine of res judicata will apply only when an issue was directly and substantially in issue in the former suit between the same parties or between the parties under whom they or any of them claim litigating under the same title. No doubt, in the instant appeal, the question is whether the respondent 1 was the employee of or a partner with the respondent 4 and the same issue was involved in the previous suit, but the appellants were neither the parties to the said suit nor do they claim in the instant suit through their father, respondent 4 who was defendant 2 in the former suit. It is not disputed that an issue decided between the co-defendants or the co-plaintiffs in the former suit may also operate as res judicata, but before holding so, it must be shown by Sri Verma that the appellants claim in the instant suit the proprietary rights over the business through their father who was defendant 2 in the former suit. What the appellants contended is that Krishna Lime Company was the joint family business and not a proprietary business of their father, respondent 4, so the appellants did not claim the business through their father but on the ground that the business was started with the aid of the joint family funds and, therefore., they are entitled to the said business and to the property acquired from such joint family business funds.
8. But then the question is whether the appellants can succeed merely on the ground that the finding of the appellate authority that the judgment in the former suit operates as res judicata, is not tenable. Upon perusal of the judgment of the appellate Court, it appears that the finding of the appellate Court was not based merely on the findings of res judicata. But the lower appellate Court has clearly held that the on us was on the appellants to prove that the business was started with the aid of joint family funds in the year 1952 by the respondent 4. The question was whether joint family was possessed of n ucleus to start a business in 1952. The case of the appellants is that their grandfather Sri Govind Prasacl was the recipient of Janggi award of Rs. 10/- for which he nominated the respondent 4and that the latter continued to receive the same after the death of Sri Govind Prasad. It is also contended that Sri Govind Prasad, who died in 1936 carried on cloth business and agricultural operation which yielded substantial income. The appellate Court took into consideration the facts that Sri Govind Prasad died as early as in 1936 and the business was started by the respondent as late as in 1952 i.e. after about 16 years. The precise finding of the lower appellate Court on this point is :
"There is no documentary evidence filed on the record on behalf of the plaintiffs to show the alleged business done by Govind Prasad during his lifetime or to show the profit and loss so that the income of Govind Prasad could be known. There is also nothing to show in a clear manner about the sum which was actually so received by Prem Shanker from the said income of Govind Prasad, so that it could be said that with that amount so en trusted to him by Govind Prasad, the business of Krishna Lime Co. was actually staffed in the year 1952. The income from the cloth business and the agricultural income of Govind Prasad cannot be said to be so much that it could form nucleus after his death in the year 1952 i.e. after more than 16 years to start business by Prem Shanker at another place i.e. in the District Varanasi, whereas the alleged business and agricultural plots were situated at a far away place and in another district of Unnao."
9. The aforesaid finding was given by the appellate Court having taken into consideration the entire evidence --documentary or oral; direct or substantial. Having weighed the preponderance of probabilities, the lower appellate Court look the view that there was little possibility of joint family nucleus after about a gap of 16 years in the year 1952 being used in the business, which was started by the respondent 4. This Court in second appeal has no jurisdiction to reappraise the evidence. Appraisal of evidence is in the domain of the first appellate Court. Unless it is shown by the appellants that the approach of the first appellate Court in appraisal of evidence has been grossly or patently erroneous, no interference can be made in second appeal with the factual findings, arrived at by the first appellate Court. I do not see any error either in the appraisal of evidence or in the approach of the lower appellate Court. Clinching issue before the appellate Court was whether the business was started with joint family funds by the respondent 4 in the year 1952 and taking into consideration the entirety of evidence and circumstances the conclusion was reached at that there was no joint family nucleus in the year 1952 for being used in the business. Unless the appellant succeeded in proving that the business was started by the respondent 4 in the year 1952 with the aid of joint family funds, no relief prayed for, could be granted to them.
10. The conclusion drawn by the appellate Court is also fortified by the undisputed facts.
The former Suit No. 87 of 1985 was filed by the respondent 3 against the respondents 1, 2 and 4 claiming that Krishna Lime Company business belonged to him and that was carried on on his behalf by the respondents 1 and 4. He claimed that the respondent 1 was the employee. The contention of the respondent 3 in that suit was that the respondent 2 entered into an agreement to sell the plot on which the suit house is situate in the year 1959 with him and on his behalf, part consideration has been paid by the respondent 4 and as he could not be present on the date of execution of the agreement to sell the same was got executed on his behalf by the respondents 1 and 4. But as the respondent 2 was not aware of the correct position, the respondents 1 and 4 were wrongly described as partners of Krishna Lime Company in the agreement to sell. It is noteworthy that the respondent 4 who was defendant 2 in the former suit filed written statement and he accepted the entire plaint case. It shows that neither the respondent 3 who is the uncle of the appellants nor the respondent 4 who is the father of the appellants ever claimed in that suit that the business Krishna Lime Company was joint family business. In ordinary course, the father of the appellants would not have acted against the interest of the appellants. Had the aforesaid business been the joint family business, then the respondent 4 would have contested in his written statement filed in the previous suit the claim of the respondent 3 that the business; Krishna Lime Company belonged to him and that day to day work was supervised and carried on by the respondents 1 and 4. The respondent 4, had the business belonged to the joint family, would have pleaded so in his written statement. No reason much less, a convincing reason has been shown by the appellants as to why their father acted against their interest in the earlier suit and why he failed to plead that the business was not individual business of the respondent 3 but that was his joint family business. This clearly supports the view of the lower appellate Court that not being satisfied with the judgment of the High Court in Suit 87 of 1965, the respondents 3 and 4 caused the instant suit to be filed through the appellants.
11. The lower appellate Court rightly held that in law there is no presumption that a Hindu joint family is possessed of joint funds and the onus lay on the one who claims that the business was started with the joint family! funds, to prove so.
12. For the reasons, I hold that the clinching point in the instant appeal is not the one whether the finding of the lower appellate Court on the point of res judicata is sustainable or not but the decisive question is whether the finding of the lower appellate Court that the appellants failed to prove that the business was started with joint family nucleus in the year 1952, is in violation of the established norms of the appraisal of evidence. As already held that there is no manifest error in the approach and in the appraisal of evidence by the lower appellate Court, it must be held that the appellants cannot succeed in appeal.
13. When as per facts found by the lower appellate Court, the appellants failed to prove that the business was started in the year 1952 with the joint family funds, the question of having constructed the suit house with the joint family funds does not arise and, therefore, no decree of ejectment can be awarded in favour of the appellants against the respondent 1.
14. For the reasons, the appeal fails and is dismissed with costs.