Rajasthan High Court - Jaipur
Smt Uma Sharma vs Ram Pratap Sharma on 25 October, 2013
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B. CIVIL FIRST APPEAL NO.75/1992 Smt. Uma Sharma & Ors. Vs. Shri Ram Pratap (since deceased) through LRs & Ors. Date of Order : October 25, 2013 HON'BLE MR. JUSTICE ALOK SHARMA Mr. A.K. Bhandari, Sr. Advocate with Mr. Vaibhav Bhargav, for appellants-plaintiffs. Mr. M.M. Rajnan, Sr. Advocate with Mr. H.S. Khandelwal ] Mr. Anil Upman ] Mr. Manoj Bhardwaj ] Mr. Dilip Mudgal ], for the respondents-defendants. BY THE COURT
Dismissal by the trial court i.e. Additional District Judge No.6, Jaipur City, Jaipur, vide its judgment and decree dated 16-03-1992, of a suit for declaration and permanent injunction or in the alternative for partition as laid by the plaintiff, Vishambhar Dayal (since deceased now represented through his LRs), has entailed this civil first appeal under Section 96 CPC.
The facts of the case are that the plaintiff-appellant (hereinafter 'the plaintiff') laid the aforementioned suit stating that his father Prahlad Ram Sharma expired on or about 24-04-1958 at Kota where he was residing at the relevant time with his elder son i.e. the defendant No.1 in the suit one Ram Pratap Sharma now respondent No.1 in this appeal (hereinafter 'the defendant No.1, also now dead and represented by his LRs.). It was stated that aside of the plaintiff and the defendant No.1, the deceased Prahlad Ram Sharma also had two other sons i.e. Banarasi Das Sharma and Hari Ram Sharma, arrayed as defendant Nos.2 & 3 in the suit. The case of the plaintiff was that the deceased Prahlad Ram Sharma, resident of village Gadhbasai, Tehsil Thanagazi, District Alwar was a well-known astrologer who had a booming practice in astrology (Panditai) at Ferozpur in Punjab State prior to the partition of India in 1947 and had shifted thereafter to Alwar in Rajasthan. It was stated that at the time of his death, Prahlad Ram Sharma left behind immovable properties in the form of agricultural land at village Thanagazi and a house in Alwar city. Further the deceased was stated to have also left behind a sum of Rs.10,000/- in his savings bank account No.618 (hereinafter 'bank account') with the Punjab National Bank, Alwar Branch. It was stated that the plaintiff was at the relevant time working as a Sub Divisional Officer at Jhalawar, the defendant No.1 Ram Pratap Sharma working as Conservator of Forest, the defendant No.2 Banarasi Das Sharma as Mines Foremen at Bhilwara and defendant No.3 Hari Ram Sharma as Commercial Tax Inspector at Alwar. Further the case set up in the suit was that the defendant No.1 being the oldest son of late Prahlad Ram Sharma took over as karta (manager) of Hindu United family following Prahlad Ram Ji's death on 24-04-1958 and came into management of the HUF's movable and immovable properties. The Additional Collector issued a succession certificate in the name of the four sons in the format provided by the Punjab National Bank, Alwar Branch whereupon the entire amount allegedly in the Prahlad Ram Sharma's saving bank account was obtained by the defendant No.1 and kept in his control and custody. It was stated that during the life time, late Prahlad Ram Sharma was desirous that all his four sons live together in Jaipur for which purpose a large plot was to be obtained and houses constructed thereon by each of his sons thereon. And in the context of the aforesaid desire of late Prahlad Ram Sharma, plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur admeasuring 4,833 sq. yard was purchased in the name of defendant No.1 by virtue of his being the oldest of the sons of late Prahlad Ram Sharma. The said plot was stated to have been allotted in March, 1959 for a consideration of Rs.8,785.99/-. The amount allegedly provided from the monies particularly the cash left behind by late Prahlad Ram Sharma in his saving bank account with PNB, Alwar Branch. It was stated that even though the plot was thus standing in the name of defendant No.1 alone, it was only indicative of the absolute faith and trust of the other brothers in him by virtue of his being their oldest brother. It was then stated that sometime in December, 1959, the said plot was subjected to an oral partition allegedly as per the map annexed to the plaint and while the portion marked ABCD in the map aforesaid Front Western portion came to the share of defendant No.1 Ram Pratap Sharma, the portion marked ABEF Front Eastern portion came to the plaintiff's share. Similarly the portion marked AFGH was stated to be set a part under the oral partition in favour of defendant No.2 Banarasi Das Sharma, and the portion marked as ABIH for the defendant No.3 Hari Ram Sharma. The four brothers were stated to have thus come ownership and possession of their respective portions of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur albeit formally alloted in the name of defendant No.1 Ram Pratap Sharma. According to the plaintiff, thereafter between 1959 to 1968 from his own funds, he proceeded to construct a residential house in the portion marked ABEF in the map annexed to the plaint Front Eastern portion which was thus in his ownership and possession. The portion marked ABEF, sometime in the month of July, 1962, became livable, whereupon the plaintiff commenced residing therein with his family and had so continued without interruption as owner. According to the plaintiff, defendant No.1 on his part having constructed his own house over the Front Western portion of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur came to reside therein commencing 1965. Defendant Nos.2 & 3 however were stated to have not undertaken any construction over their alleged portions in plot No.C-15 under the purported oral partition. Stating that in spite of being the owner of the portion marked ABEF Front Eastern portion (as per the map annexed to the plaint) in plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur, the plaintiff misled by his sons and others was however denying the ownership of the plaintiff over the ABEF portion of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur and threatening to dispossess him therefrom. It was submitted that prior to the immediate threats of dispossession and denial of the ownership of the plaintiff, in the year 1963 also there had been a disagreement between the ladies of the house resulting in the plaintiff demanding the oral partition being formalized by a writing. Thereupon vide letter dated 06.01.1964, the defendant No.1 was alleged to have mollified the plaintiff assuring him that no injustice would be occasioned to him and he would act as a caring and just older brother. This letter under the hand of the defendant No.1 was propped as an admission of the alleged oral partition of December, 1959. Apprehensive of yet being dispossessed from the mapped ABEF portion of plot No.C-15 in spite of ownership claimed thereon, it was prayed in the suit that a declaration of the plaintiff's ownership of ABEF portion of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur as per map annexed to the plaint be made and the defendant No.1 be restrained by way of a permanent injunction from interfering with the plaintiff's peaceful enjoyment of the suit property. Alternatively it was prayed that plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur being the joint property of the plaintiff and defendant Nos.1, 2 & 3, be appropriately partitioned in equal measure and a decree accordingly drawn.
On service of notice of the suit and receipt of the plaint, a written statement of absolute denial of the plaintiff's case was filed by the defendant No.1. It was stated that the defendant No.1 was the absolute owner of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur and no part of the said plot was ever held by him under trust for or on behalf of his brothers. It was emphatically denied that the said plot was at anytime in the joint ownership of the plaintiff and the defendant Nos.1, 2 & 3. The oral partition alleged in the plaint was also emphatically denied stating that no occasion therefore could conceivably arise in the fact of the sole ownership of the defendant No.1. It was stated that neither the plaintiff, nor defendant Nos.2 & 3 contributed in any manner whatsoever towards the consideration for the purchase of plot No.C-15 aforesaid or constructions made thereon. The funds of Late Prahlad Ram Sharma were neither available, nor at all used in the purchase of plot No.C-15 aforesaid. It was stated that the plot was allotted on an application made in the year 1956 by the defendant himself in his individual capacity and the total consideration of Rs. 8,785.99/- therefor was provided by himself from his own funds / resources as he had at the relevant time been a Class-I officer in the State of Rajasthan for over two decades. It was stated that in fact the plaintiff, the younger brother of defendant No.1, had been a tenant commencing 28.06.1962 @ Rs.140/- p.m. in the Front Eastern portion of the plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur, constructed by the defendant No.1 from his own resources after building permission from the competent authority. And in fact, the factum of tenancy had been so admitted to by the plaintiff himself on 08-04-1964 before House Tax Revising Authority of the Jaipur Municipal Council. It was stated that the plaintiff took receipts of rent @ 140/- per month from the defendant No.1 and also certified himself to be a tenant in order to avail the reimbursement of rent paid @ 140/- p.m. for the period July, 1962 to December, 1964 when he was working as an Assistant Settlement Officer with the Revenue Department, Government of Rajasthan. It was stated that further vide letter dated 04-07-1967 addressed to the Urban Land Assessment Officer, Jaipur, the plaintiff had categorically stated that any portion of the house thereon i.e. No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur was not his own house, but that of his brother. Additionally on 11-10-1976, the plaintiff filed a declaration before the Sub-Registrar, Alwar stating that he was a part-owner of House No.44A, Hope Circus, Alwar which came to his share after the death of his father Prahlad Ram Sharma on 24-04-1958 and was selling out the said property owned by him. In the said declaration the plaintiff had detailed all immovable property held by him in the State of Rajasthan as required under extant law and it was not stated therein that he owned a house on a portion of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur. It was further stated that earlier on 06-09-1964 (Ex.A-2), the plaintiff had addressed an inland latter to the defendant No.1, then at the relevant time posted at Kota, stating that if the defendant No.1 proposed to sell plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur, it was best to sell it to the plaintiff himself as he could obtain Rs.20,000/- as a loan from the Government and would undertake to pay the remainder amount of the consideration for the potential sale / purchase of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur in the ownership of defendant No.1 in future albeit without profit. It was stated in the said letter dated 06-09-1964 (Ex.A-2) by the plaintiff that his proposal to purchase plot No.C-15 aforesaid was occasioned by the fact that the plaintiff would sooner or later require a house in Jaipur. The defendant No.1 further pointed out that aside of the plaintiff's admission of not owning any property at all in Jaipur, what of the Front Eastern portion of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur, the plaintiff as a Government servant had also at no point of time ever informed the Government as he was mandated to under the prevailing Government of Rajasthan instructions of his alleged ownership of a portion of plot No.C-15 purportedly coming to his share on an oral partition of December, 1959. It was further pointed out that similarly no details of the house / property as claimed in the suit as his own by the plaintiff were also ever disclosed in his income tax returns. It was submitted that the allegation of the plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur admittedly standing in the name of the defendant No.1 alone under a registered lease-deed issued by the UIT, Jaipur being orally divided between the four brothers was further falsified by the fact that defendant Nos.2 & 3 had vide applications dated 24-07-1963 and 22-07-1963 for allotment of residential plot to the UIT, Jaipur supported by their affidavits duly attested by a Magistrate I-Class, Jaipur had stated that they had no plot residential or otherwise in Jaipur. It was stated that consequent to the applications for allotment of residential plots in the city of Jaipur defendant Nos.2 & 3 had been allotted plots bearing Nos.G-84 and G-97 respectively in Banipark Extension Scheme situate in Shastri Nagar. It was stated that the aforesaid two defendants had even built their houses from their own funds over plot Nos.G-84 and G-97 and were at the time of filing the written statement living therein. It was further pointed out that the defendant No.1 had alone in his own name deposited house tax at all times in respect of the entire plot No.C-15 and also similarly deposited annual urban tax in respect thereof. It was submitted that defendant No.1 applied for building permission for construction over plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur to the extant Jaipur Municipal corporation and permission was received on 01-11-1959 whereupon construction over the eastern portion, wrongly claimed by the plaintiff as his own in the suit before the trial court, was completed at the cost of the defendant No.1 himself towards end of 1961. Thereafter effective 28-06-1962 or nearabout the house on the Front Eastern portion was rented out to the plaintiff by the defendant No.1 @ Rs.140/- p.m. It was pointed out that by virtue of being the older brother, the defendant No.1 did not require the plaintiff, a younger brother, to enter into a formal rent agreement and to sign a rent note. It was further pointed out that the falsity of the plaintiff's case of an oral partition in equal measure between the four brothers in respect of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur was established by the fact that the four purported plots within plot No.C-15 as indicated on the plaintiff's ipse dixit in a self serving map annexed to the plaint were not equal in size in any manner whatsoever. It was pointed out that the lynch pin of the plaintiff's case that the defendant No.1 had vide letter dated 06-01-1964 assured the plaintiff of justice by allegedly indicating his intent of putting the purported oral partition in writing was absolutely false and a mere desperate last ditch attempt to sustain an otherwise hopeless case. It was stated that the context to the letter dated 06-01-1964 stated to be the plaintiff's own purported letter of 31-12-1963 which was wholly forged and fabricated and never received by the defendant No.1 nor responded to.
Rejoinder to the written statement was filed wherein the plaintiff admitted that he had been the defendant's tenant but upto 1968 not in the house built on the Front Eastern portion of plot No.C-15 but in the Western Front portion. Thereafter he built his own house over the Front Eastern portion and came to occupy it as owner. This assertion by the plaintiff was despite a contra initial stand taken in the plaint that he was from the very beginning, commencing 1962 residing in the eastern portion of plot No.C-15. The defendant No.2 in his written statement supported the case of the plaintiff. The defendant No.3 however remained ex-parte.
On the basis of the pleadings of the parties, the learned trial court framed fifteen issues. Loosely translated the issues are as under :
(1) Whether the father of the parties before the court, late Prahlad Ram Sharma at time of his death on 24-04-1958 left behind immovable and other movable assets particularly Rs.10,000/- in his saving Bank account with the Punjab National Bank, Alwar Branch as detailed in para 2 of the plaintiff ?
(2) Whether following the death of Prahlad Ram Sharma, the defendant No.1 Ram Pratap Sharma became the karta of Hindu United Family and came into the control and management of the joint family estate as its karta (manager) as alleged in para 3 of the plaint ?
(3) Whether as alleged in para 4 of the plaint, a sum of Rs.10,000/- in the saving bank account of late Prahlad Ram Sharma in the Punjab National Bank, Alwar Branch was received by the defendant No.1 and continued in his custody and control ?
(4) Whether the parties before the court had got allotted plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur detailed in para 5 of the plaint in the name of defendant No.1 in February, 1959 and the consideration of Rs.8,785.99/- therefor was paid from the monies left behind late Prahlad Ram Sharma most particularly the cash in the saving bank account No.618 of late Prahlad Ram Sharma in the Punjab National Bank, Alwar Branch ?
(5) Whether as alleged in para 6 of the plaint, the four brothers had entered into an oral partition in respect of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur consequent to which the portion marked as ABEF in the map annexed to the plaint came into absolute ownership and possession of the plaintiff ?
(6) Whether the plaintiff was in control, occupation and possession of portion marked ABEF in the map annexed to the plaint in his capacity as owner thereof ?
(7) Whether the plaintiff had commenced construction over portion marked ABEF in the map annexed to the plaint in 1959 and completed it in 1968 ?
(8) Whether the plaintiff was entitled to a declaration as sought in para 16 of the plaint in respect of his ownership over the portion marked ABEF in the map annexed to the plaint ?
(8A) Whether in the event of issue Nos.5, 6, 8 & 9 being decided against the plaintiff, the plaintiff was still entitled to a partition of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur and receipt of 1/4 portion thereof ?
(9) Whether the plaintiff was entitled to be declared as the owner of the suit property (ABEF in the map annexed to the plaint) on the basis of adverse possession ?
(10) Whether in respect of the suit property the plaintiff was the tenant @ Rs.140-/ p.m. effective 28-06-1962 as detailed in para 7 of the written statement to the plaint and if so, to what effect ?
(11) Whether the case set up by the plaintiff was hit by estoppel as agitated by the defendant No.1 in para 7 of the written statement as also in para 24 of the additional pleas thereof ?
(12) Whether owing to family dispute and disagreement, the defendant No.1 had separated from family, left Alwar and settled in Udaipur establishing his independent status outside the joint family of late Prahlad Ram Sharma and if so, to what effect in the suit laid by the plaintiff ?
(13) Whether the plaintiff's suit for declaration / ownership under adverse possession was beyond limitation and therefore liable to be dismissed ?
(14) Whether the defendant No.1 was entitled to special damages for having to contest a farcical and baseless suit ?
(15) Relief ?
In supported of his case, the plaintiff relied upon 19 witnesses and 78 documents. Conversely in defence, the defendant No.1 relied upon 14 witnesses and 199 documents. The defendant No.2 in the plaintiff's support relied upon three witnesses. On consideration of the evidence as laid before it, the learned trial court decided issue Nos.1, 2, 3, 4, 5, 6, 7, 9, against the plaintiff. Issues Nos.10, 11, 12 were decided in favour of defendant No.1 and against the plaintiff. Issue Nos.13 & 14 relating to limitation and special damages claimed by the plaintiff respectively were decided against the defendant No.1. Issue Nos.8, 8A & 15 were considered together whereupon the trial court held that neither was the plaintiff entitled to any declaration as to ownership over the ABEF portion in the map annexed to the plaint i.e. Front Eastern part of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur on the basis of the alleged oral partition of December, 1959, nor he was entitled to any decree of partition at the hand of the court. It was held that plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur admeasuring 4,833 sq. yard was in the sole ownership of defendant No.1. It was also held by the trial court that having been inducted as a tenant, the plaintiff could not at all even claim title by prescription i.e. adverse possession. The suit was consequently dismissed.
Mr. A.K. Bhandari, Sr. Advocate with Mr. Vaibhav Bhargava, appearing for the plaintiff, has submitted that the learned trial court has arbitrarily overlooked the evidence of the plaintiff and that of his witnesses with regard to the financial status of late Prahlad Ram Sharma. It was submitted that the cumulative effect of the evidence of plaintiff Vishambhar Dayal Sharma (PW-1) and his witnesses, Amar Nath Bhardwaj (PW-6), Radhey Shyam Sharma (PW-13) was that the deceased Prahlad Ram Sharma was a very successful astrologer in Ferogpur of Undivided Punjab and had generated a good income leaving behind cash and jewelery which was sufficient to provide the nucleus from which the consideration of Rs.8,785.99/- was paid by the defendant No.1 for the allotment of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur. It was submitted that the strong financial status of late Prahlad Ram Sharma was also established from the fact that aside of educating his children at Lahore which was the best educational hub in pre-independent India, he also married of well all his four sons and one daughter. Late Prahlad Ram Sharma had at Thanagazi his self acquired agricultural land and a self acquired residential house at Alwar. He was also engaged in myriad businesses. It was submitted that because Late Prahlad Ram Sharma in the last stage of life stayed with defendant No.1 first at Udaipur and thereafter Kota, his accounts were in the control of defendant No.1 and the said accounts were not produced by the defendant before the trial court in spite of notice consequent to which adverse inference ought to have been drawn against the defendant No.1. The defendant No.1, counsel submitted, also received the outstanding amounts from late Prahlad Ram Ji's debtors namely Amar Nath (PW-6) (Rs.7,000/- in 1959) and Radhey Shyam Sharma (PW-13) (Rs.5,000/- in 1959). The amount of Rs.768/- odd in the savings bank account of late Prahlad Ram Sharma as found with Punjab National Bank, Alwar Branch was also availed by the defendant No.1. The amounts aforesaid, according to the counsel for the plaintiff, constituted the joint family nucleus and was utilized by defendant No.1 in making cash payment of Rs.8,785.99/- as consideration for allotment of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur. Consequently, it was submitted, the said plot had necessarily to partake the character of joint family property to which each of the four sons late shri Prahlad Ram Sharma was entitled. It was submitted that the learned trial court had committed a serious error in law and fact in relying on the defence set up by the defendant No.1 Ram Pratap Sharma (DW-1) even though his statement and of his other witnesses before the court were far fetched, unbelievable and ought not to have been relied upon by the trial court. The trial court erred, submitted Sr. counsel, in concluding that plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur was purchased by defendant No.1 in his individual capacity from his own funds. It was further submitted that the trial court similarly committed serious error of law and fact in deciding issue No.2 against the plaintiff. It was submitted that the evidence of the plaintiff himself as also Narain Prasad Gaur (PW-2), Shyam Lal Nareda (PW-3), Amar Nath Bhardwaj (PW-6), Radhey Shyam Sharma (PW-13), Lt. Col. Gautam Sharma (PW-14), Rajeshwar Dayal (PW-15), Ramakant Vashishtha (PW-17) as also Amolak Jain (PW-18) established that after the death of Prahlad Ram Sharma, the defendant No.1 as the oldest son became karta of the joint Hindu family and thereupon managed the properties left by his father. It was submitted that the learned trial court on the evidence before it ought to have found that a joint Hindu family and a co-parcenary of the sons of late Prahlad Ram Sharma continued to subsist after his death on 24-04-1958 with the defendant No.1 as his karta. It was then emphatically argued that the learned trial court committed serious error of law and fact in not appropriately considering exhibits 1 & 2 in the right prospective. It was submitted that the exhibit 2 was a letter written by the plaintiff on 31-12-1963 to the defendant No.1 seeking the resolution of family dispute and formally recording of oral partition of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur by way of a writing and resultant rectification of the records in that regard with UIT, Jaipur. It was submitted that the reply thereto under letter dated 06-01-1964 (Ex-1) by the defendant No.1 ought to have in fairness and justness construed as an assurance by him to the plaintiff that the oral partition and arrangement with regard to the utilization of plot No.C-15 equally and justly between four brothers would be formalised. According to the counsel for the plaintiff, Exhibit-1 ought to have led the trial court to the irresistible conclusion that the four brothers before it were joint as was plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur, the property of the joint family. It was submitted that the trial court committed a serious error in disbelieving the testimony of Rajeshwar Dayal (PW-15), Lt. Col. Gautam Sharma (PW-14), Ramakant Vashishtha (PW-17), Prakash Chand Jain, Advocate (PW-16) when their statements were duly corroborated and did not suffer from any infirmity and contradiction. It was submitted that conversely the learned trial court also committed a serious error in believing the statement of the defendant No.1 Ram Pratap and Krishna Rao (DW-4) when the statements of the aforesaid witnesses did not on a holistic reading inspire any confidence. Sr. Counsel appearing for the plaintiff then submitted that the learned trial court committed serious error of law and fact in holding that commencing January, 1952, defendant No.1 had separated and started living independently with his own family at Udaipur establishing his severance with the family of his brothers joint or otherwise and acquiring an independent separate status. It was submitted that the learned trial court drew a legally impermissible inference against the plaintiff from the mere fact of independent sale of his share in the immovable properties agricultural at Thanagazi and residential Alwar received in succession on the death of Prahlad Ram Ji to hold that the said transactions by way of independent sale of portions of the immovable property were indicative of a joint family of the four brothers as claimed having ceased to exist. Sr. Counsel submitted that the learned trial court also committed a serious error of law in holding that mere posting of the four brothers at different places in the course of their employment with the Government of Rajasthan entailed separate worship, living, messing etc. sufficient to find a severance of the joint family status and estate. It was submitted that the defendant No.1 was unable to rebut the presumption of jointness of a Hindu family as warranted in law. It was submitted that no partition having been proved to have taken place during the life time of late Prahlad Ram Sharma or even thereafter, the presumption ought to have been held to be operative by the trial court and in not doing so the trial court again committed a gross error in law. It was submitted that Exhibit-6, agreement, was also overlooked by the trial court when it showed the jointness of the family. It was emphatically submitted that Exhibit-A11 was misconstrued as being indicative of the severance of the joint family status merely for reason of the word 'karta' not having been mentioned therein.
Sr. Counsel has further submitted that while deciding issue No.3, the learned trial court has misread and wrongly appreciated the evidence of Amolak Chand Jain (PW-18) as also payment voucher (Ex-78) and wrongly held that the amount of Rs.768/- odd from the saving bank account of Shri Prahlad Ram Sharma with the PNB, Alwar Branch at the time of his death was not withdrawn by the defendant No.1 alone. It was submitted that the trial court also misread the indemnity bond (Ex-A-29) and certificate (Ex-A-30) and wrongly placed reliance on the evidence of defendant No.1 and Dariyab Singh (DW-5) in spite of inherent contradictions therein. With regard to the finding of the trial court on issue No.4, it was submitted that the trial court was unnecessarily swayed and influenced by the fact that as against the pleadings of Rs.10,000/- in the saving bank account of late Prahlad Ram Sharma at the time of his death only a sum of Rs.768/- odd was found to be in deposit which was inadequate for the payment of consideration of Rs.8,785.99/- for the purchase of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur. It was submitted that the plaintiff had been able to establish to the requisite preponderance of probability that the sum of Rs.8,785.99/- i.e. the consideration for the purchase of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur came from the amounts due and owing to late Prahlad Ram Sharma and paid to defendant No.1 by Amar Nath Bhardwaj (PW-6) and Radhey Shyam Sharma (PW-13) as evident from their testimony before the trial court. It was submitted that the mere factum of the patta being in the name of the defendant No.1 ought not to have obstructed the trial court in doing justice in the facts of the case. It was submitted that issue No.4 was decided against the plaintiff only in view of issue Nos.1 & 3 being found against the plaintiff and for the reasons that issue Nos.1 & 3 were wrongly decided against the plaintiff so was issue No.4. It was submitted that exhibit A-42 & A-42(1) were misconstrued by the trial court as being admission by the plaintiff and defendant Nos.2 & 3 with regard to not having any plot in Jaipur at any time even subsequent to the allotment of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur. Counsel has submitted that the statements made by defendant Nos.2 & 3 in their affidavits dated 24-07-1963 and 22-07-1963 were of no avail with regard to legal rights of the plaintiff as also defendant Nos.2 & 3 qua plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur. It has been submitted the consequently, the finding of the trial court overlooking the dictum of the Hon'ble Supreme Court in the case of K.C. Kapoor Vs. Smt. Radhika Devi (dead) by LRs. & Ors. [AIR 1981 SC 2128] is wholly perverse. Consequently, as a result of non-consideration of relevant material and evidences submitted by the plaintiff on the one hand and on taking into consideration of irrelevant, inadmissible and unproved documents filed by the defendant No.1 on the other hand, the findings of the trial court on issue No.4 are liable to be set aside, submitted Sr. counsel for the plaintiff.
It has been further submitted that issue Nos.5 & 6 have been similarly decided wrongly against the plaintiff and the learned trial court committed a gross error in its appreciation of evidence in holding that the oral partition between the plaintiff, the defendant Nos.1, 2 & 3 was not proved or that the plaintiff was not in possession and occupation of portion marked ABEF in the map annexed to the plaint in pursuance of the oral partition nor the owner thereof. It has been submitted that the trial court also committed a palpable error in concluding that the plaintiff had been unable to establish that he had made the whole of the construction over portion marked ABEF in the map annexed to the plaint in the eastern portion of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur between 1959 and 1968 from his own funds and was not entitled to any declaration of ownership as sought in para 16 of the plaint. Counsel has emphatically submitted that the finding of the trial court against the plaintiff on the issue of the plaintiff being a tenant of the defendant No.1 @ 140/- p.m. effective 28-06-1962 was wholly perverse inasmuch as the trial court failed to appreciate the fact that the plaintiff was the tenant of defendant No.1 in respect of the Western Front portion of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur marked ABCD in the map annexed to the plaint and not of the Eastern Front portion marked ABEF on the map aforesaid. It was submitted that the trial court also wrongly held that the plaintiff having entered into the disputed premises as a tenant was in permissive possession and thus not entitled to a declaration in the alternative of the ownership on account of adverse possession. For this, Sr. counsel submitted that tenancy / permissive possession related to portion ABCD in the map annexed to the plaint and not the portion marked as ABEF in respect of which declaration of title by prescription was sought to be agitated before the trial court. According to the Sr. counsel for the plaintiff, evidence on record neither proved that the plaintiff was a tenant of defendant No.1 in the Front Eastern portion ABEF in the map annexed to the plaint and nor the plaintiff consequently estopped from denying ownership of the defendant No.1 in respect thereof. Sr. Counsel finally submitted that the trial court in the facts of the case ought to have found that even if the plaintiff had not been able to establish his title to the disputed property on the basis of the allotment of plot No.C-15, Sawai Jai Singh Highway, Banipark, Jaipur in the name of defendant No.1, it should have in the facts of the case owing to the plaintiff's continuous long possession effective 1959 hostile to the defendant No.1, concluded that the plaintiff was entitled to a declaration of title by prescription i.e. adverse possession over the suit property. It was submitted that in this view of the matter, the findings and conclusions of the trial court on all issues being perverse, erroneous, vitiated by inconsistencies and contradictions, the judgment and decree dated 16-03-1992 be quashed and set aside and the appeal be allowed.
Per contra, Mr. Manoj Bhardwaj and Mr. Anil Upman stated that the judgment and decree passed by the learned trial court is well considered, based on valid appreciation of evidence before the trial court. It was submitted that on the basis of overwhelming documentary evidence and consistent oral evidence the learned trial court has held that the defendant No.1 was the absolute owner of plot No.C-15. The said property did not partake the character of joint family property and that consequently the plaintiff and the defendants No.2 and 3 were not entitled to a part thereto by way of partition. The trial court has also rightly came to a conclusion that the all construction over Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur was funded by defendant No.1 himself from his own resources after due approval of construction plans by the competent authorities. It has been submitted that on the admissions of the plaintiff on record and the documents proved, as also the unshaken evidence of defendant No.1's witnesses including independent witnesses the trial court has rightly concluded that the plaintiff was a tenant in the Front Eastern portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur at the rate of 140/- per month, which amount had been proved to have been paid by him to defendant No.1. Counsel has submitted that the trial court has, rightly held that there was no joint hindu family constituted of the plaintiff and defendant No.1, and his two other brothers at least as of 28-03-1959 when Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur was purchased and that the defendant No.1 had severed from his brothers even prior to his father's death. The brothers did not reside together, nor worshiped nor had a common kitchen nor even took common accounts or in any other way had commonality of estate to be construed as a joint family. Each of the four brothers before the trial court had their own independent status and were residing at their respective places of postings with their own nuclear families. It has been submitted that in fact from the evidence on record it was/ is apparent that the suit for declaration and permanent injunction and alternatively for partition was a palpable misuse of the judicial process to the plaintiff's benefit in retaining possession of Front Eastern portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur for decades taking advantage of the tardy legal processes resulting amongst other reasons, from the overcrowded dockets of the courts. It was submitted that the desperation and absurdity of the plaintiffs case was also apparent from the fact that the plaintiff in effect set up mutually exclusive and self destructive pleas of ownership of Front Eastern portion of plot No.C-15 aforesaid by way of a purported oral partition on the one hand and the plea of adverse possession with regard to the very same property, on the other. It was submitted that consequently the suit was without force and rightly dismissed under the impugned judgment and decree and so should this appeal be.
Heard. Perused the impugned judgment and decree dated 16-03-1992 passed by the trial court. Considered.
Fifteen issues were framed by the learned trial court on the basis of pleadings of parties and have been detailed herein above in the judgment. For the sake of convenience of this appeal, they will be considered in five broad categories. I would therefore consider issue No.2 along with 1, 3, 4, 8 and 12. Similarly I would consider issues No.5,6,7 and 8A under one head because of their intrinsic interrelationship. Issues No.10, 11 and 8A relating to the question of the plaintiffs status as a tenant of defendant No.1, of estoppel against the denial of title of defendant No.1 by the plaintiff u/s.116 Evidence Act, 1872 will be separately considered together. Issue No.9 will be independently dealt with. On issues No.13 &14, the trial court has held that neither the plaintiff's suit was hit by limitation nor was the defendant No.1 entitled for special damages as claimed. No challenge in this appeal has been laid thereto by the respondent No.1 defendant. The need to address the said issues stands obviated. Decision of the trial court on issue No.15 would relate to the central question as to whether the judgment and decree passed by the trial court is liable to be set aside or otherwise in the alternate deserves to be sustained.
Issues No.1,2,3,4 & 12:
The moot question in this appeal, as was before the trial court, is as to whether the plaintiff, defendant No.1, defendant No.2 as also defendant No.3 the four sons of late Prahlad Ram Sharma who died on 24-04-1958 constituted a Hindu Joint Family (HUF) of which defendant No.1 being the oldest of the four brothers was the Karta? The subsequent question for determination is as to whether Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur allotted to the defendant No.1 in his individual capacity on his application alone by Urban Improvement Trust Jaipur on 28-03-1959 (Ex.A-32) was an allotment for his individual benefit alone or for and on behalf of all the four brothers referred to hereinabove? The next question to be considered would be as to whether the said Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur was purchased by the defendant No.1 from the funds/ nucleus left by the late Prahlad Ram Sharma and further as to whether the said nucleus if found in the hands of defendant No.1 was utilized by him for the payment of the consideration Rs. 8,786/- odd for the purchase of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur?
From the evidence on record it is not in dispute that the late Prahlad Ram Sharma at the time of his death on 24-04-1958 left behind two self acquired immovable properties, one a residential house at Alwar and other a parcel of agricultural land at Thanagazi, District Alwar. This factum was admitted by the plaintiff in his evidence before the trial court. The Honble Supreme Court in the case of Makhan Singh Vs. Kundan [(2007)10 SCC 602] relying on its earlier judgment in the case of Commissioner of Wealth Tax, Kanpur & Ors. Vs. Chander Sen & Ors. [(1986) 3 SCC 567] has held that where a son inherits his fathers self acquired immovable property/ assets under Section 8 of the Hindu Succession Act, it would be in his individual capacity. This appears to even factually have been so in the facts of the present case in view of the admitted case of parties that both the agricultural land at Thanagazi and the residential house at Alwar were inherited to an extent of one fourth by each of the four sons of late Prahlad Ram Sharma by way of intestate succession u/s.8 of the Hindu Succession Act, 1956. The said shares were thereafter independently sold by each of the four sons by separate registered sale-deeds and consideration therefor was received by each of the four sons individually. The plaintiff in his cross examination before the trial court has admitted to the sale by him individually of portion of both agricultural land at Thanagazi and residential house at Alwar and receipt of consideration therefor. Similarly Ex.6 before the trial court also shows that the agreement to sell of the agricultural land was individually in the name of each of the four sons of late Prahlad Ram Sharma and the sale thereof was not by the defendant No.1 as Karta of any HUF. In fact, Banarasi Das had executed a power of attorney in favour of defendant No.1 authorising him to sell his 1/4th portion of the property which had devolved upon him by succession following the intestate death of his father. The execution of separate sale-deeds by the four brothers as also the power of attorney by Banarasi Das in favour of defendant No.1 authorising him to sell his share of the property to which he had succeeded, is plainly and irreversibly conclusive of no joint family subsisting on the death of Prahlad Ram Sharma on 24-04-1958. Ex.4 the sale-deed was based on a power of attorney executed by the three brothers (A-11) and was therefore a sale by four brothers in their individual capacity. This fact was also admitted to by the plaintiff in his cross examination. Further Ex.5 and 6 were deeds of sale of agricultural land at Thanagazi by defendant No.1 in his own capacity. Further the joint family if at all in any event appears to have been earlier severed from at least qua the defendant No.1 when he shifted to Udaipur with his own nuclear family. Clearly by his intent and conduct defendant No.1 thereupon came to obtain an independent status in Hindu Law free from his father and brothers.
The next question is as to whether Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur was acquired from the funds belonging to the late Prahlad Ram Sharma and would therefore partake the character of property in the hands of defendant No.1 for the benefit of all his four sons. In the case of Appropriate Authorities (IT Department) Vs. M. Arifulla [(2002) 10 SCC 342] it has been held by the Honble Apex Court that in view of explanation 1 to Section 6 of the Hindu Succession Act, 1956 a deemed partition of a mitakshara coparcenaryif one is so made outfollows if the deceased karta of a joint family leaves behind a female heir. In the case at hand, on his death late Shri Prahlad Ram Sharma left behind his wife, four sons and a daughter. Two class I female heirs as per the schedule to Hindu Succession Act, surviving Prahlad Ram, under explanation I to Section 6(1) of the Act of 1956 the self acquired properties left behind by late Shri Prahlad Ram Sharma needed one way or the other to be put through a deemed partition and would devolve by succession not survivorship. Similarly in case of M.N. Aryamurthi Vs. M.L. Subbaraya Setty [(1972) 4 SCC 1] the Honble Supreme Court has held that following the partition of a joint family, a subsequent acquisition by an earlier member even from the purported joint family funds allegedly in his possession would vest in him alone and other members of the erstwhile joint family could not claim a share therein. The member separated from the erstwhile joint family would in such a circumstance only be liable to accounts of the joint family funds in his hand and pro rata share in the money as per accounts drawn would follow to the benefit of the claimants. But no interest or trust in the property acquired would result in favour of the claimants. The aforesaid legal position is however in the present issue merely a theoretical enunciation as in the facts of the present case, the plaintiff was even otherwise unable to discharge the burden in law either to establish a joint family of four brothers or the sufficiency of nucleus with it from which plot No.C-15 had indeed been purchased as there is no presumption even in respect of a joint family (not found in the present case) that the property in issue standing to name of a member partakes the character of joint family property. On this aspect it is important to note that while in the plaint it was averred that a sum Rs.10,000/- was obtaining in the savings bank account in Punjab National bank Alwar branch in the name of late Prahlad Ram Sharma at the time of his death, in the course of proceedings before the trial court it transpired that the said account had only a credit Rs.768/- at the relevant time. To circumvent the falsity of the case as laid in the plaint, the plaintiff sought to deviate from pleadings and set up a new case in evidence stating, as per the deposition of Pw.6 and Pw.13, Amarnath Bhardwaj and Radhey Shyam sharma respectively that they supplied the funds allegedly due by them to late Prahlad Ram Sharma by repayment thereof to defendant No.1 in 1959. These funds were then used for the purchase of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur. Aside of impermissibly of evidence in a case in deviation from the averments in the plaint and case set up trial court found that both the witnesses Pw.6 Amarnath Bhardwaj and Pw.13 Radhey Shyam untrustworthy witnesses. Amarnath Pw.6 is the brother-in-law of Banarasi Das, defendant No.2 supporting the case of the plaintiff and a beneficiary if the suit for partition were to be decreed. Further he had incredibly stated that the late Prahlad Ram Sharma had loaned him Rs.10,000/- in the year 1947 for opening a utensil shop of which Rs.3,000/- had been returned in the year 1948 to Prahlad Ram Sharma but remainder Rs.7,000/- returned after a gap of 12 years subsequent to death of late Prahlad Ram Sharma to Ram Pratap Sharma, the defendant No.1, albeit without a duly executed receipt. Further Pw.13 Radhey Shyam, cousin brother of late Prahlad Ram Sharma also set up a cock and bull story stating that he was in a partnership for plying a bus with the late Prahlad Ram Sharma and that he paid to Ram Pratap Rs.5,000/- in the year 1959 towards discharge of his liability towards a business loan obtained by him from Prahlad Ram Sharma, about a decade ago. Radhey Shyam however admitted in his cross examination that Ex.A-27 was a partnership deed with Banarasi Das, defendant No.2, brother of defendant No.1 and not with late Shri Prahlad Ram Sharma. Additionally Ex.P-77 relied upon for evidencing the alleged payment of Rs.5,000/- to Ram Pratap in the year 1959, did not bear Ram Pratap's signature. Interestingly, Pw.13 Radhey Shyam also has admitted that in the year 1949 he had taken a loan of Rs.3,200/- from Ram Pratap, defendant No.1 himself which loan amount in fact was never returned. He also admitted that his son was appointed in the Social Welfare department, Government of Rajasthan when the plaintiff Vishambhar Dayal was Deputy Director in the said department clearly establishing a nexus of Pw.13 Radhey Shyam with Vishambhar Dayal rendering him an interested witness of little probative worth. As the trial court has found the evidence of the said witnesses not credible on a fair consideration, there is no good reason for this court to take a different view in appeal. It is trite that on the issue of credibility of witnesses the view of the trial court is not to be easily overturned. Aside of above, Ex.A-30/ 78 shows that even the sum of Rs.768/- lying in the account of late Prahlad Ram Sharma at the time of his death in the year 1958 had not been received by defendant No.1 alone but by all successors of late shri Prahlad Ram Sharma. It was thus established from the evidence on record that there were no sufficient funds constituting a nucleus of the alleged HUF or otherwise from which Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur, could have been purchased for the benefit of all the four sons of late Prahlad Ram Sharma entitling the three brothers of defendant No.1 to share therein. In my considered opinion, it therefore has to be held from the evidence on record that neither any coparcenary property devolved on the four brothers following the death of their father late Prahlad Ram Sharma on 24-04-1958, nor did their father leave behind sufficient funds/ nucleus in his alleged HUF or otherwise from which Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur had been purchased. Further in my considered opinion, from the evidence on record it was fully established that in fact much prior to the death of their father late Prahlad Ram Sharma on 24-04-1958 the defendant No.1 had severed from his brothers and set up for himself an independent status by living separately and independently first at Udaipur and then at Kota without sharing worship, kitchen or estate with them. Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur purchased by defendant No.1 was therefore his individualself acquired property. Issues No.1,2,3,4 and 12 were therefore on the evidence before the trial court correctly decided against the plaintiff. There is no occasion or reason to interfere with the finding of the trial court on the aforesaid issues. The finding is confirmed.
Issues No.5,6 and 7:
In my considered opinion the issue of oral partition is a non sequitur. When the plaintiff and defendants No.2 and 3 did not have any right or interest in Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur which was the absolute property of defendant No.1 Ram Pratap, no question of oral partition could arise. Joint family property is only an adjunct of a joint family. There being no joint family of the plaintiff, defendants No.1, 2 and 3 they could not have joint family property. A partition is legally sustainable only in the event of joint ownership of the property sought to be partitioned. In the case of Hiraji Tolaji Bhagwan Vs. Shakuntala [(1990)1 SCC 440] the Hon'ble Apex Court has held that partition or for that matter a family settlement can take place only amongst those who have a pre-existing legal entitlement to the property sought to be partitioned and partitions cannot be used as a tool for circumventing the law (i.e. the Transfer of Property Act, 1882 and Registration Act, 1908). The plea of oral partition propagated by the plaintiff thus has to be noticed in the facts of the case only to be rejected. The trial court's finding on this count therefore have to be sustained. Thus no oral partition of plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur towards end of 1959 or any other time can be said to have been made.
The question which now requires consideration is as to the nature of the possession of the plaintiff over the Front Eastern portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur marked as ABEF in the map annexed to the plaint before the trial court. The evidence on record more particularly the admissions of plaintiff himself establish the status of the plaintiff vis--vis property occupied by him i.e. the Front Eastern portion as a tenant of defendant No.1 the landlord at the rate of Rs.140/- per month. The trial court has rightly taken into account the admissions of the plaintiff before various government authorities for concluding that the plaintiff was a tenant @ Rs.140/- per month in the house constructed on the Front Eastern portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur.
The case set up by the plaintiff in paras No.6,7,8 and 9 of the plaint was that from the very beginning following the purported oral partition towards the end of 1959, the Front Eastern portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur was earmarked to him whereupon he immediately commenced construction of a house in 1959 and after making the house habitable moved in with his family in July 1962. Thereafter the construction was stated to have been gradually completed from his own resources in 1968. It was stated that the defendant No.1 had similarly made constructions gradually over his part of Plot No.C-15 in issue i.e. Western Front portion, which was marked as ABCD in the map annexed to the plaint and started living therein in 1965. The case of defendant No.1 conversely was that the whole Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur was in his absolute ownership in respect of which he had obtained permission for construction from the competent authority in 1959 and after completing construction first in the Front Eastern portion of the Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur in 1961, rented it out on 28-06-1962 at the rate of Rs.140/- per month to his younger brother i.e. the plaintiff.
The contra case set up by plaintiff of his ownership of Eastern Front Portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur is unsustainable in view of the fact that the plaintiff himself had as early as on 08-04-1964 before the House Tax Revising Authority of Municipal Council Jaipur in an appeal made a statement/ admission in writing that he was a tenant in the property occupied by him. Similarly receipts of payment of rent @ Rs.140/- per month obtained by the plaintiff from the defendant No.1 were utilized by him for the period from 02-04-1962 to July,1964 for reimbursement of the rent paid as at the relevant time the plaintiff was working as an Assistant Settlement Officer and entitled to reimbursement from the government of the rent paid for residential questions. Further on 04-07-1967 (Ex.A-1) the plaintiff had written to the Urban Land Assessment Officer, Jaipur stating therein that his name had been wrongly entered as owner of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur which in fact was owned by his brother defendant No.1 and necessary correction be made to notice sent. The plaintiff also made a declaration on 11-10-1976 before the sub Registrar Alwar under the provisions of Urban Land Ceiling Act, 1976 stating therein that aside of portion of residential house in Alwar 44-A Hope Circus he had no urban property in the state of Rajasthan. More conclusively, the plaintiff had written an inland letter dated 06-09-1964 (Ex.A-2) to defendant No.1 from Jaipur, which was received by defendant No.1 at Kota stating therein that in the event the defendant No.1 was contemplating sale of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur the plaintiff would instantly pay Rs.20,000/- obtainable as a loan from the State Government and the remainder of the consideration agreed would be paid later. In the letter it was tellingly stated as proof that the plaintiff having no stake in any part of Plot No.C-15 in issue, he would sooner or later require some kind of house in Jaipur. This admission, from which the plaintiff cannot run to my mind was clearly indicative of falsity of plaintiffs case set up before the trial court that he had come into ownership/ possession of the Eastern Front portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur under a purported oral partition in the year 1959. Further the plaintiff had no point of time appears to have informed the Income tax Department or the State Government (under its Conduct Rules) about the ownership of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur first jointly as claimed and then under a purported oral partition at the end of 1959 as alleged.
Conversely the defendant No.1 apart from allotment in his name alone, permission for construction in his name alone, in his Income tax returns commencing AY 1963 disclosed the receipt of Rs.140/- per month as rent from house property. The defendant No.1 had also deposited house tax as also the urban assessment vide Ex.A-44 and A-45 for whole of the plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur and all constructions thereon. From the documents inter alia referred to above, and other evidences, more particularly the admissions in writing by the plaintiff as detailed above, the defendant No.1 was the sole owner of Plot No.C-15 and all construction thereon and the case set up by the plaintiff before the trial court that he was part owner of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur stood falsified. Aside of admission of the plaintiff with regard to his tenancy in the house on the Front Eastern portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur and other evidences on record to this effect, the witness Dw.5 Dariyab Singh has also stated that the plaintiff was a tenant of defendant No.1. His testimony remained unshaken and has been rightly relied upon by the trial court.
Similarly defendants No.2 and 3 never made any claim to any part of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur at any time in any manner prior to filing of the suit. They never appear to have taken possession or demarcated their alleged shares. They however sought to support the plaintiffs case of an end of 1959 oral partition for their obvious advantage, but suppressed the fact that they had in their individual capacity moved applications on 22-07-1963 and 24-07-1963 respectively before the Urban Improvement Trust Jaipur, duly supported by affidavits verified by a First class Magistrate, stating that they had no urban property in Jaipur for residential purpose and hence be allotted a residential plot each under the extant rules. On the basis of aforesaid applications, duly supported by sworn affidavits of not owning any residential property in Jaipur, plot No.G-84 came to be allotted to defendant No.2 and plot No.G-97 to defendant No.3 in Bani Park Extension scheme, where they had made their houses and were residing.
The aforesaid evidence therefore conclusively establishes that the plaintiff had no ownership right over the Front Eastern portion of the Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur or at all and was mere tenant therein. The status of the plaintiff as tenant has also been found in Appeal No.196/1997 which was filed by him against the judgment and decree dated 30-04-1997 holding him to be so. The appeal has been dismissed by this court today.
On the issue of construction made over the Front Eastern Portion of plot No.C-15, in issue, the plaintiff was unable to show even with any modicum of probability that the whole or even substantial portion thereof had been constructed from his own resources. The plaintiff claimed to have spent Rs.35,000/- on the aforesaid construction. This amount he was however unable to account for in evidence. It was submitted therein that a sum of Rs.7,000/- was expanded from his own resources, Rs.5,000/- as obtained from his wife, Rs.8,000/- as a grant from Dr.Gautam Sharmahis brother-in-lawand Rs.1,160/- as loan from the State insurance department. It was however not proved that the plaintiff's wife had any income at all. Further no bank transaction appears to have been proved by the plaintiff even for bulk purchases like cement, wood etc. It is in place to reiterate from the facts established before the trial court that at the relevant time cement and steel were regulated commodities and could be purchased only on permit issued by the competent authorities. No permits for the purchase of cement and steel, the basic raw-materials for construction of a house, in the name of plaintiff were proved before the trial court by the plaintiff. Further Dr.Gautam Sharma stated to have granted Rs.8,000/- in cash to the plaintiff, is an interested witness being the brother-in-law of the plaintiff. Loan of Rs.1,160/- is stated to have been applied for from the State Insurance department for the dual purpose of construction and marriage of plaintiff's niece. However loan application Ex.13 for availing Rs.1,160/- from the State Insurance department appeared untrustworthy for reasons that the record from which it was stated to have been obtained was stated by the witness from the department Pw.10 Harish Chandra Sharma to have been weeded out in January 29, 1981. It is also important to note that no expenses allegedly incurred for construction of Front Eastern portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur were indicated in income tax return of the plaintiff. Similarly there was no proof of purchase of stones for the construction of foundation and walls of house, conduit pipes and for sanitary fittings. Only petty receipts and vouchers of amount Rs.25/- to Rs.100/- were sought to be proved before the trial court without anything more and no witnesses appeared to prove that they had indeed issued to the said receipts. No accounts of muster-roll maintained in the course of construction of house was similarly filed by the plaintiff. Conversely the defendant No.1 before the trial court proved the permission sought for construction over Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur including the portion marked ABEF through exhibits A-50 to A-53 of November 13, 1959. Ex.A-54 and Ex.A-55 were licences issued by the competent authority for setting up a lime kiln to prepare lime to be used in the construction of house. The defendant No.1 also produced Ex.A-107 which was counter file of cheque-book through which payment for bulk purchases of construction materials had been made by the defendant No.1. The defendant No.1 also adequately explained the resources for the sum of Rs.56,300/- spent by him for construction over Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur as duly sanctioned by the competent authority. Ex.A-108 to Ex.197 were proved by the defendant No.1 to establish the sources of funds. It is also proved the defendant No.1 that he received Rs.13,230/- to be utilised for construction of house over Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur. Thus the plaintiff's case of construction over the portion marked ABEF in the map annexed to the plaint was not proved on strong probabilities of the case. Consequently, reliance by Shri A.K. Bhandari, learned Senior Counsel on the case of Bishan Das Vs. State of Punjab [AIR 1961 SC 1570] aside of being inapplicable on principle also does not attract to the facts of the present case.
Issues No.10 & 11:
In my considered opinion the attempt of the plaintiff to alter his case in his rejoinder before the trial court stating that he was a tenant in the Western Front portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur till 1968 and not the Eastern Front portion is absolutely without merit. It was initially the plaintiff's case in the plaint that after the purported oral partition towards end of 1959, he soon after started construction thereon and moved in to the said portion in 1962 and at all times thereafter lived there. This case was then impermissibly sought to be debunked and jettisoned in rejoinder. From the plaintiffs own case including his admission as established by documentary evidence on record, it was established that the plaintiff resided on the Front Eastern portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur from the very beginning. The Honble Supreme Court in case of Gautam Sarup Vs. Leela Jetly [(2008) 7 SCC 85] has held that admission made in pleadings cannot be taken away even though party making an admission, may have the right to explain its admission. It has been consistently held by the Apex Court that a decision of a case before the trial court cannot be based on the grounds outside the pleadings of parties and it is the case initially pleaded which has to be found or not at all. In my considered opinion, the plaintiff could not be allowed to escape from his categorical admission in the plaint that he was since 1962 in occupation of the Front Eastern portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur. The subsequent alteration as detailed above by plaintiff in rejoinder was obviously an attempt to escape the consequences of his various admission as to tenancy of the Eastern Front Portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur in the face of facts as detailed by the defendant No.1 in his written statement. Importantly and conclusively reference can also be made to Ex.A-9 which is a certificate obtained by the plaintiff from defendant No.1 and submitted to his extant employer the revenue department which categorically records that the plaintiff was a tenant at the rate of Rs.140/- per month in Front Eastern portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur. Further the lie of the plaintiff even as per his rejoinder that he lived in the Western Front portion upto 1968 albeit as a tenant is nailed from the other evidence on record, which indicates that the defendant No.1 in fact started residing in the western portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur after his retirement in the year 1965 . This was proved before the trial court from various documents. Ex.A-21 recording the address of defendant No.1 as Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur as on 13-10-1966. Enrollment of defendant No.1 as an Advocate on 12-10-1965 Ex.A-116 again recording his address as Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur, A-117 and A-118 are letters addressed by the defendant No.1 to LIC for change of the defendant No.1's address in its records from Kota to Jaipur, A-121 is the letter dated 12-10-1966 addressed by plaintiff to the telephone department for installation of personal telephone in his residential premises Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur. Further a bunch of 70 letters A-122 to A-187 also establish that defendant No.1 was residing in Jaipur since 1965-66. In fact electricity connection in the Front Western portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur was installed in 1965 and the first bill thereof in the name of defendant No.1 was issued in the year 1966 as evident from A-102, 103, 104 and 105. It is thus evident that there was no electricity connection in the western portion between 1962 and 1965. The plaintiff thus could not have lived there commencing 1962 as claimed in the plaint. Conversely in the eastern portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur electricity connection had been installed in 1960. The over all evidence on record therefore established that the western portion of the house was not habitable at all till 1965-66, while the plaintiff was admittedly residing in the Eastern Front portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur since 1962 as tenant at the rate of Rs.140/- per month.
Section 116 of the Evidence Act, 1872 provides that no tenant can deny the title of the landlord. And on denial of title of landlord the tenant is not entitled to hold on to the immovable property in that capacity and is liable to be evicted as per the provisions of Section 13 (1) (f) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. In my considered opinion in the context of tenancy of plaintiff vis--vis defendant No.1 in respect of the Eastern Front portion of Plot No.C-15 as found established from discussions hereinabove, the denial of title of the plaintiff landlord by the plaintiff in his capacity as tenant of the Eastern Front Portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur made out an indefeasible ground for his eviction under Section 13 (1)(f) of the Act of 1950. This legal position has been reiterated in case of Bhogadi Kannbabu Vs. Vuggina Pydamma [(2006)5 SCC 532].
Issue No.9:
Ownership of the plaintiff in the Front Eastern Portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur not having been established and defendant No.1 having been found to be the absolute owner of the plot No.C-15 aforesaid and all construction thereon, and the plaintiff having been found to be a tenant in the disputed premises commencing 28-06-1962 at the rate of Rs.140/- per month, his desperate plea of title by prescriptionadverse possession is a mere shot in the air. It is trite that where possession is permissive at its commencement, it cannot be converted even after a long period of time into one of title by prescription i.e. adverse possession. Reference in this regard may be made to the judgment of the Apex Court in the case of Navaneethammal Vs. Arjuna Chetty [(1996) 6 SCC 166] wherein it has been been held that possession of property wholly being permissive (in that case of lease) at the commencement for cause of action for claiming title by adverse possession cannot even arise. On the principle that once a tenant always tenant, the Honble Supreme Court has held that during the continuity of tenancy (payment or non payment of rent aside) the tenant cannot acquire title by prescription or the permanent right in law to perpetually occupy the tenanted premises. Thus the plea of adverse possession, as agitated in the alternative by the plaintiff, of the suit property is unsustainable. Further the plaint laid before the trial court was completely devoid of material particulars as to this plea. For a plea based on adverse possession of immovable property the plaintiff is required to plead inter alia the commencement date and length of possession, the nature of possession being open, continuous and hostile to the rights of the true owner to his specific knowledge. It is also necessary to plead when the possession became hostile adverse as mere continuous possession does not necessarily make it adverse. This is central to the plea of adverse possession as only thereon can the important issue of limitation in such a plea be computed. In the present case in para No.16 of the plaint only, a vague and casual assertion was made that the plaintiff become owner by adverse possession on the basis of continuous long possession effective 1959. The ingredients necessary for a plea of adverse possession were woefully lacking. In my considered opinion in the absence of specific pleading of requisite material particulars as detailed hereinabove and proof in regard thereto establishing the time when a hostile right contrary to the title of actual owner was claimed in a continuous and open manner, a plea of adverse possession cannot even be countenanced. In fact on a specific question being put to the plaintiff by the trial court in the course of proceedings before it, the plaintiff categorically stated in relation to the plea that:
"?? ???? ??? ?? ?????? ?? ?????? ?? ?? ????? ?? ???? ???? ?? ???? ????.
In my considered opinion, the categorical assertion as quoted above by plaintiff before the trial court was also clearly indicative of the plaintiff not seeking title of the disputed property i.e. front portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur on the basis of title by prescription (adverse possession) but in fact had abandoned it. I am also of the view that under the rule of pleadings while inconsistent pleas in the alternative on the same facts pleaded can be taken, this rule does not permit the taking of mutually inconsistent pleas based on contrary facts/ pleas destructive of each other. In the instant case, the plaintiff pleaded ownership of the Front Eastern portion of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur on the basis of a purported oral partition of joint family property of a purported joint family consisting of the four sons of late Prahlad Ram Sharmathus as his pre-existing legal right. In the aforesaid fact, the plaintiff could not then turn around altogether and claim title to the very same property on the basis of adverse possession because a plea of adverse possession as a pre condition requires the admission of the absolute right of the legal owner (i.e. the defendant No.1 Ram Pratap Sharma) to the disputed propertysought to be defeated by the open, continuous hostile act of the plaintiff. The facts necessarily to be pleaded for setting up a plea of adverse possession of the party before the court would thus of necessity be destructive of the said party's claim to title on the basis of devolution or succession to the property in issue. The Hon'ble Supreme Court in the case of Karnataka Board of Wakf Vs. Govt. of India [(2004) 10 SCC 779] has held that the plea of adverse possession on the one hand and ownership on the other are mutually inconsistent set of pleadings based on facts destructive of each other and cannot be allowed to be simultaneously pursued.
For all the reasons detailed hereinabove no case of title by prescription i.e. adverse possession can be made out by the plaintiff. The finding of the trial court need to be affirmed.
Finally before concluding, it would be in place to note that from the evidence on record it was established, as has been before this court, that Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur was purchased on 28-03-1959 on application made in 1956 by defendant No.1 alone. The defendant No.1 was then in service for about 20 years having been appointed as Nayab Najim in Alwar State in 1935. This fact was admitted in his cross examination by the plaintiff. The consideration of Rs.8,786/- odd was deposited by defendant No.1 alone vide Ex.A-32 on 28-03-1959. The father of the plaintiff and defendant No.1 Shri Prahlad Ram Sharma had died on 24-04-1958 much prior to allotment of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur. The defendant No.1 made declaration Ex.A-37 before the Income Tax department regarding his source of funds in purchasing the Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur, and the same was accepted. He had served as class-I officer with the government for 24 years as of the year of allotment of the plot. There was no material on record whatsoever that the defendant No.1 used any amount of his deceased father Prahlad Ram Sharma, for the purchase of plot No.C-15, Sawai Jai Singh Highway Banipark, Jaipur. There was no evidence on record laid by the plaintiff that late Prahlad Ram Sharma was having any regular income at Alwar or elsewhere thereafter through his own work as pandit/ astrologer/ priest. In fact in his cross examination the plaintiff has admitted that he was not aware as to whether his father was an income tax payer or whether his father engaged in any other economic activity to generate income. Even as far as the amount of Rs.768/- odd in the savings bank account of late Prahlad Ram Sharma at to the time of his death on 24-04-1958 is concerned, as per Ex.78 dated 23-03-1959 it appears to have received by all claimants i.e. four brothers, and the widow of Prahlad Ram Sahrma. Ex.78 bears signatures of all sons of Prahlad Ram Sharma and their mother. Even though the Ex.77 bears signature only of the defendant No.1, from the evidence on record the money does not appear to have been received by the plaintiff. In cross examination the defendant No.1 stated that the Manager refused to make the payment of the amount only to one of the Legal Representatives of late Shri Prahlad Ram Sharma whereupon Ex.78 was got executed/ signed by all legal representatives of the deceased. Subsequently one of the other brothers i.e. defendant No.2 was paid the money in issue and gave Rs.750/- out of that to one Suraj Mal for the sweets prepared and distributed apparently at the time of the death rituals/ ceremonies of the late Prahlad Ram Sharma. Further Dw.12 O.P. Mathur stated that he was present in the bank with Ram Pratapdefendant No.1 and subsequent to signing of receipt Ex.78 along with other legal representatives, the defendant No.1 Ram Pratap left the bank asking his brother Banarasi Das to collect the money. Subsequently Banarasi Das received the money from bank and gave Rs.750/- to Surajmal against preparation of sweets. From the evidence on record it thus appears probable that the sum of Rs.768/- in the Savings Bank Account of late Prahlad Ram Sharma was not received by defendant No.1 in his individual capacity or at all.
Aside of aforesaid, in my considered opinion receipt of Rs.768/- on 23-03-1959 (when no joint family of the four brothers subsisted) was even otherwise wholly insufficient for the purchase of Plot No.C-15, Sawai Jai Singh Highway Banipark Jaipur. The property being purchased by a person in independent capacity, the said amount would have no bearing on the rights of the purchase made as held in the case of M.N. Aryamurthy (supra). For the aforesaid reason also the said property would not at all partake the character of joint property.
Consequently in my considered opinion the impugned findings of the learned trial court on issues before it are based on a holistic consideration and appreciation of the evidence before it. No error of law or fact or whatsoever of perversity or contradiction and inconsistency in the grounds on which the judgment and decree dated 16-03-1992 was passed by the trial court can be found. In my considered opinion the suit before the trial court was based on a tenuous cause of action and was a clear misuse of judicial process of the court. The suit has been dismissed by a well considered reasoned and able judgment. The appeal is wholly meritless, based on vacuous grounds and liable to be dismissed with costs. Accordingly dismissed with costs. The defendant No.1 would also be entitled to special costs of Rs.3,000/- from the plaintiff. Decree be drawn accordingly.
(ALOK SHARMA), J Arun Sharma PS MS/- All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, Jr. P.A.