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2005 DIGILAW 383 (ORI)

SUBHADRA BAI v. ROOP BAI

2005-06-24

M.M.DAS

body2005
( 1 ) THE Plaintiffs as appellants have preferred this appeal against the judgment and decree passed in Title Appeal no. 8 of 1998 by the learned Addl. District judge, Jeypore directing remand of the suit for trial on framing such additional issue as would be necessary on the pleadings of the parties. ( 2 ) FOR better appreciation of the case, it is felt essential to state the facts in brief which are as under : the present appellants as plaintiffs filed title Suit No. 54 of 1994 in the Court of the civil Judge (Sr. Divn.), Jeypore for declaration of their right, title and interest over the plaint 'a' schedule property and also for recovery of possession of 'b' schedule property after evicting Defendant No. 2 or any other person claiming under her and also to declare that the defendants have no right over the suit properties. According to the plaintiff-appellants, Ram Singh was the common ancestor of the parties. He had one son, namely, Gobardhan Singh and a daughter Roop Bai. The original Defendant No. 1 -Moti Bai was the widow of late Ram Singh. The appellant No. 1-Subhadra Bai is the widow of late Gobardhan Singh and appellant Nos. 2 and 5 are the sons and daughters of late Gobardhan Singh who died in the year 1971. Roop Bai was the Defendant no. 2 who is the respondent in this appeal. It is the further case of the plaintiff-appellants that out of the total suit property of ac. O. 74 decimals which was the absolute property of late Gobardhan Singh his father late Ram Singh constructed a house over ac. O. 46 decimals in which the said Ram singh was residing along with his wife and the daughter Defendant No. 2. Ram Singh died in the year 1951 by which time Defendant No. 2 i. e. respondent herein was already given in marriage. The said 46 decimals of land over which a house was constructed by Ram Singh being the exclusive property of late Gobardhan Singh, he sold the same to one Shyama Lam under a registered sale deed dated 20-3-1968 for meeting the marriage expenses of the present respondent who was the sister of Gobardhan singh. The said late Gobardhan Singh constructed a house over the balance property of 28 decimals wherein his family members i. e. present appellants were staying. The said late Gobardhan Singh constructed a house over the balance property of 28 decimals wherein his family members i. e. present appellants were staying. According to the plaintiffs, as the original defendant No. 1 i. e. widow of late Ram Singh and the mother of late Gobardhan Singh, was a dependant of late Gobardhan Singh, she was staying in the said house constructed by gobardhan Singh over the balance 28 decimals. The plaintiffs also pleaded that defendant No. 2 i. e. respondent in this appeal was also residing in the said house with the permission of the plaintiffs and neither Defendant No. 1 nor Defendant No. 2 had any right, title or interest over the said house or property. The defendants pleaded in their written statement that Ram Singh did not die in the year 1951 and the suit property is not the absolute property of late Gobardhan singh. They denied the other allegations made in the plaint with regard to sale of a portion of the disputed property. It was their case that certain portion of the self acquired property of late Ram Singh was sold. The suit property was originally purchased by late Ram Singh by a registered sale deed dated 18-3-1931. While residing with his family, Ram Singh expired in the year 1957 leaving behind his widow, Defendant No. 1, his son late Gobardhan Singh and his daughter Defendant No. 2 (present respondent ). On this basis, the defendants pleaded that late Gobardhan Singh succeeded to 1/3rd of the undivided interest and Defendants 1 and 2 succeeded to 1/3rd interest each. The defendants further pleaded that in 1963, the widow of Gobardhan Singh i. e. plaintiff No. 1 created trouble with regard to possession of the defendants for which eases were instituted. A cross claim was also filed by the defendants claiming 2/3rd share over the suit property and praying for eviction of the plaintiffs from the share of the defendants. It appears that the trial Court framed ten issues on the pleadings of the parties and after trial came to the finding that late Ram Singh died on 29-5-1951 and hence, the original Defendant No. 1 who was the widow of Ram Singh along with his son i. e. Gobardhan Singh succeeded to the said property. It appears that the trial Court framed ten issues on the pleadings of the parties and after trial came to the finding that late Ram Singh died on 29-5-1951 and hence, the original Defendant No. 1 who was the widow of Ram Singh along with his son i. e. Gobardhan Singh succeeded to the said property. He further held that the present respondent who is the daughter of late Ram singh had no right over the said property and is liable to be evicted therefrom. On the question of the counter claim made by the defendants though no written statement was filed by the plaintiffs, the trial Court held that the plaintiffs are not liable to be evicted from the suit schedule property. On the above finding, the trial Court decreed the suit. ( 3 ) AGAINST the judgment and decree of the trial Court, the present respondent who was Defendant No. 2, filed Title Appeal No. 8 of 1998 which was heard and disposed of by the learned Addl. District Judge by the impugned judgment and decree. Along with the memorandum of appeal, the present respondent, as appellant, filed an application under Order XLI, Rule 27 C. P. C. for admitting two registered Wills alleged to have been executed by her mother, i. e. , the original defendant No. 1 - late Moti Bai, in her favour. The said registered Wills were also filed along with the memo of appeal. Subsequently, an application seeking amendment of the written statement was filed by the defendant-respondent, before the lower appellate Court. After hearing the appeal, the lower appellate Court while upholding the findings of the trial Court that late Ram singh, in fact, died on 29-5-1951 and that the sale made by late Gobardhan Singh cannot be adjusted towards his moiety in the family property since the said sale deed was signed by late Moti Bai and the sale was made for legal necessity of the joint family, confirmed the said finding. After hearing on the application for amendment of the written statement and the application for admitting additional evidence, the lower appellate Court on analyzing the law on the point, allowed the said application and ultimately allowed the appeal in part and remanded the matter to the trial Court by ordering as follows : "the learned lower Court shall give adequate opportunity to the appellant to carry out the amendment and then allow both the parties to adduce evidence on this score by framing such additional issues necessary on such pleadings. The learned lower Court shall also have the counter claim checked by its office upon remand and then proceed to have an opportunity to the plaintiffs to file a written statement. Keeping in view the peculiar nature no order as to cost. Parties are directed to appear before the lower Court on 23-4-2001. " ( 4 ) THE present appellants who were plaintiffs have preferred this appeal challenging the order of remand and the order allowing amendment of the written statement and accepting two registered Wills as additional evidence under Order XLI, Rule 27 C. P. C. Though the present appeal is a Miscellaneous appeal filed under Order 43, Rule 1 (u)C. P. C. , but this being a Second Appeal against the judgment and decree of the lower appellate Court, the same can only be entertained on substantial questions of law. The substantial question of law which arise in this appeal is as to whether the lower appellate Court is right in allowing admission of additional evidence and the amendment of the written statement which, in fact, changes the entire defence raised by Defendant No. 2, who is the respondent in this appeal, in her written statement. ( 5 ) MR. B. K. Patnaik, learned counsel for the appellants submitted that there was no whisper either in the pleadings or in the depositions of the defendants before the trial court regarding the two registered Wills which have been allowed to be admitted as additional evidence. ( 5 ) MR. B. K. Patnaik, learned counsel for the appellants submitted that there was no whisper either in the pleadings or in the depositions of the defendants before the trial court regarding the two registered Wills which have been allowed to be admitted as additional evidence. He further contended that the original Defendant No. 1 who was the widow of late Ram Singh, in her deposition fairly admitted that if Schedule 'a' property would be recorded in the name of Plaintiff No. 1 alone, the said plaintiff may oust her from possession and therefore, the property should be recorded in joint names of the plaintiffs and herself and after her death, her grand children through her son only would enjoy the properties. Mr. Patnaik, on the above statement of the original defendant No. 1, submitted that it would be clear from the said statement that the original defendant No. 1 did not intend to partition the said property nor intended that the property should pass to her daughter who is the present respondent. This statement of original defendant no. 1, according to Mr. Patnaik is admissible under Section 32 of the Indian Evidence Act. He also submitted that the lower appellate Court by allowing the amendment sought for by the present respondent, has allowed her to give a go-bye to the original defence taken by her in her written statement filed before the trial Court. He relies upon the decision in the case of narashimaha Murthy v. Smt. Susheelabai, air 1996 SC 1826 in support of his contention that the present respondent does not suffer from any disability as she is serving as a teacher in a Government School and her son is also serving in a company and as such, she cannot get the right to reside in the suit dwelling house by virtue of the alleged Wills and she also cannot claim partition of the suit property as per section 23 of the Hindu Succession Act, 1956. He further submitted that original Defendant No. 1 had no right to execute Wills and no right is also transferred to Defendant No. 2 i. e. the present respondent by virtue of the said wills. He further submitted that original Defendant No. 1 had no right to execute Wills and no right is also transferred to Defendant No. 2 i. e. the present respondent by virtue of the said wills. In support of his contention that the amendment sought for could not have been allowed since the same completely change the nature of the original defence and brings out a entire new plea which was never taken in the original pleadings, he relied upon a decision in the case of Haji Mohammed Ishaq v. Mohamed Iqbal, AIR 1978 SC 798 . ( 6 ) LEARNED counsel for the respondent, on the other hand, contended that the amendment sought for cannot be disallowed on the ground that the same was not taken in the original pleadings and it would entirely change the defence of the respondent as taken in the trial Court. He submitted that original Defendant No. 1, who was the testator of the registered Wills, expired after passing of the judgment and decree by the trial Court and hence, there was no scope for the present respondent to bring the Wills on record and seek amendment of the written statement for that purpose. Therefore, he contended that the decisions relied upon by Mr. Patnaik cannot be applied to the facts of the present case. ( 7 ) AFTER going through the impugned judgment of the lower appellate Court and on perusing the case laws cited by Mr. Patnaik, learned counsel for the appellants, i am unable to accept the contentions raised by Mr. Patnaik on behalf of the appellants for the reason that the registered Wills which have been accepted as additional evidence under Order XLI, Rule 27 C. P. C. being not in existence during the trial of the suit, there was no scope for the defendant-respondent to bring the said documents on record and, as such, there was also no scope for the respondent to amend the written statement accordingly. It is the settled position of law that subsequent development during the pendency of the suit, in appeal, can be brought into record by way of amendment and the documents which were not in existence during the trial of the suit, can be accepted as additional evidence by the appellate Court, if the same is necessary for just adjudication of the case and to prevent multiplicity of proceedings. While remanding the case to the trial Court, it is found from the impugned judgment that the finding of facts arrived at by the trial Court have been confirmed by the lower appellate Court. The suit has been remanded only for the purpose of deciding the question after framing fresh issues on the portion of written statement which has been allowed to be amended. The lower appellate Court has also directed that since no opportunity was given to the plaintiffs to file a written statement to the cross claim raised by the defendants, they should be given opportunity to file their written statement to the cross claim and the issues should be framed and decided on those pleadings also. The trial Court has been directed to decide such issues which are framed afresh. ( 8 ) THE decision cited by Mr. Patnaik on behalf of the appellants also according to me cannot be applied to the facts of the present case as the factual matrix on which those cases were decided are completely different from that of the present case. ( 9 ) IN the result, therefore, I find no merit in this appeal which is, accordingly, dismissed, but in the circumstances without costs. Appeal dismissed.