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2006 DIGILAW 561 (PAT)

Rashmi Devi v. Madhuri Devi Alias Pramila Devi

2006-07-03

RADHA MOHAN PRASAD

body2006
Judgment Radha Mohan Prasad, J. 1. This second appeal is directed against the judgment and decree dated 16th December, 1989 passed in Title Appeal No. 2/89/7/86 by the Sub-Judge III, Jehanabad, whereby and whereunder the lower appellate court has set aside the judgment and decree of the trial court in Title Suit No. 68/65. 2. The defendants 1st set are the appellants. 3. The real dispute in this appeal is with respect to 6 decimals of Plot No. 112. The case of the plaintiff is that 15 decimals of land of Plot No. 112 in village Dayalpur under Ghosi P.S. in the district of Jehanabad was joint property of the recorded tenants. Sometimes before 1950 there was a partition between the sons and grandsons of Punai Gope by metes and bounds and they came in separate possession of specific portion of the said plot, which was also partitioned at that time and 3 decimals of land in the extreme west of the plot fell in the share of Ganga Dayal Gope and to the adjacent east of his share, 3 decimals of land was allotted to Hari Kishun Gope besides to other agnates. According to the plaintiff, Ganga Dayal sold his said 3 decimals of land to Hari Kishun Gope in the year 1953 and Hari Kishun was given possession of 6 decimals of land from the western side. Thereafter Hari Kishun as the Manager and Karta of joint family sold 6 decimals of land to the plaintiff by means of a registered sale deed dated 20th June, 1964 for a consideration of Rs. 15,00/- and the plaintiff came in possession of the said land. It is alleged that the defendant-respondents no. 1 and 2 in collusion with one Bhatu Raut got a proceeding under section 144 Cr.P.C. started in respect of said 6 decimals of land on the basis of an unregistered sale deed dated 13.4.1936 said to have been executed by Ganga Dayal Gope which, according to the plaintiff, is a forged and fabricated document. There was also another proceeding under section 144 Cr.P.C. and both the proceedings were decided against the plaintiff and thereafter defendants no. There was also another proceeding under section 144 Cr.P.C. and both the proceedings were decided against the plaintiff and thereafter defendants no. 1 and 2 took wrongful possession of the disputed land on 9.4.1965 and eastern huts standing thereon bricks and other materials which were also there were not vacated by the defendants in spite of asking by the plaintiff-appellant and hence the suit was filed in the court of Munsif. 4. Hari Kishun Gope appeared in the suit and filed written statement and later died during the pendency of the suit, whereupon the defendants 2nd set, who are his agnates, were brought on record. Said Hari Kishun Gope supported the claim of the plaintiff in the suit land. His case was that 20 years ago Plot No. 112 was partitioned and 3 decimals of land in extreme western portion of plot no. 112 was allotted to him and remaining 3 decimals of land adjacent to it fell to the exclusive share of Ganga Dayal from whom he purchased the said land vide registered sale deed of the year 1953. According to the written statement of Hari Kishun, he put the plaintiff in possession of the land. 5. The contesting defendants in the written statement admitted that Plot No. 112 belonged to five branches, who were descendants of Punai Gope and that there was a partition in the year 1950 between the sons and grandsons of Punai Gope by metes and bounds but, according to them, in the said partition, the extreme western portion was allotted to the share of contesting defendants and since then they have been coming in possession of the same. Their further case is that in the year 1936 Ganga Dayal Gope orally sold his share in this disputed plot and other plots in favour of Dasain Gope for Rs. 75/- and Dasain Gope came in possession of this plot and thereafter a Sada sale deed was also executed as a memorandum of transaction on further payment of consideration of Rs. 20/-. Their further case is that it was only after that Hari Kishun Gope got a share in lands by registered sale deed executed by Ganga Dayal Gope in respect of his share, which had already been disposed of by the oral sale it is further alleged that Sheonandan Gope constructed his house on the portion of the plot and these defendants claimed possession thereon. 6. The learned Munsif, Jehanabad vide his judgment and decree dated 20th August, 1973 passed in Title Suit No. 68/ 1965 decreed the suit in part in so far as it related to the decree for money in favour of the plaintiff with proportionate cost and decree was also passed in favour of defendants no. 15(1) to 15(5), 16, 17, 18 and 19 and the suit was dismissed against the rest. The plaintiff filed Title Appeal No. 7/76/147/73 against the said judgment and decree of the learned Munsif. The lower appellate court vide its judgment dated 3rd August, 1976 found that the approach of the learned Munsif to the subject-matter was not correct in view of the case of the parties and the court had to accept the rase of either party. In that view of the mailer, the lower appellate court found that there was no proper decision by the learned Munsif and the matter needed re-examination in the light of the discussions mentioned in the judgment. Accordingly, after setting aside the judgment and decree passed in the suit, he remitted the matter back to the lower court with a direction to give finding as to which of the stories regarding partition of plot no. 112 is acceptable and then dispose of the case in accordance with law. He further directed that the parties should be heard without, of course, allowing them to adduce any further evidence and then to give a finding regarding partition and write out a fresh judgment in accordance with law. 7. Thereafter, the (earned Munsif on consideration of the execution of Sada sale deed and other evidence on record held that the case of the plaintiff against the contesting defendant no. 1 to 13 is not proved except for refund of the consideration money with interest from the heirs of Hari Kishun Gope which was paid for purchase of the aforementioned land in question and accordingly decreed the suit in part, against which the plaintiff preferred Title Appeal No. 2/89/7/86, which has been allowed on contest by the lower appellate court by the impugned judgment and has set aside the judgment and decree of the trial court. 8. The lower appellate court while analysing the judgment of the learned Munsif recorded a finding that the unregistered sale deed has been proved by D.W. 15 Munshi Lal. 8. The lower appellate court while analysing the judgment of the learned Munsif recorded a finding that the unregistered sale deed has been proved by D.W. 15 Munshi Lal. He mentioned in the impugned judgment that the learned Munsif disbelieved Ext. G, the unregistered document produced by the defendants and the appellate court, which remanded back the suit, also disbelieved that document. Hence it was not desirable for the learned Munsif to give a finding on that matter for which the suit was not remanded. According to the lower appellate court, the documents produced by the defendants, which were already rejected before in earlier judgment, was not the subject matter to be discussed. The learned lower appellate court in the impugned judgment found that the main crux in the appeal is to find out whether 6 decimals of land from extreme west of Plot No. 112 belong to Hari Kishun Gope and thus the scope of the appeal is very limited. Accordingly, the lower appellate court after discussing the evidence found that Hari Kishun Gope was in possession of 6 decimals of land and he sold it to Bineshwar Singh by means of a registered sale deed dated 20.6.1964 for a sum of Rs. 1500/- and the plaintiff came in possession over it by virtue of the said purchase and, therefore, allowed the appeal on contest and set aside the judgment and decree of the trial court. 9. While admitting this appeal, the substantial question of law formulated was "Whether the order of remand in Title Appeal No. 147/7 of 1973/1976 was limited in nature and whether, therefore, the appellate court below was justified in not considering the case of the defendant-appellants on merits as a whole?" 10. After service of notice, though the plaintiff-respondent no. 1 entered appearance, but none has appeared on his behalf to contest. 11. Learned counsel appearing for the defendant-appellants submitted that the learned Munsif on consideration of the evidence in detail came to the conclusion that the transfer made by Hari Kishun Gope was against the provisions contained in Section 52 of the Transfer of Property Act, but the lower appellate court has erred in directing that it was not desirable for the learned Munsif to give a finding on that matter for which the suit was not remanded. Learned lower appellate court has erred in saying that the documents produced by the defendants had already been rejected earlier by the appellate court, which disbelieved the same and thus was not the subject matter of discussion in the subsequent proceeding before the learned Munsif. According to the learned counsel appearing for the defendant-appellants, the lower appellate court by its earlier judgment had remanded the matter back with the direction that the parties should be heard without, of course, allowing them to adduce any further evidence and then to give a finding regarding partition and write out a fresh judgment in accordance with law, by which obviously the lower appellate court meant that on remand the learned Munsif should write out a fresh judgment in accordance with law on consideration of all evidence, including the scope of the unregistered document (Ext. G) executed in their favour. 12. I find substance in the submission of the learned counsel for the appellants. On perusal of the earlier judgment of the lower appellate court in Title Appeal No. 7/76/147/73, l find that the lower appellate court has nowhere considered the validity of the unregistered document (Ext.G) on merit or has disbelieved the said document. In fact, from paragraph 11 of the earlier appellate court judgment it appears that the iower appellate court without enterrng into the merit of the appeal has mentioned that the tearned Munsif had made a wrong approach to the entire thing. According to the lower appellate court, the most important thing was to consider whether the partition had taken place in the manner as stated by the plaintiff or as by the defendants. 13. Thus, I find that the lower appellate court in the impugned judgment has completely erred in discarding the unregistered document (Ext. G) simply by saying that the appellate court, which remanded the suit back, disbelieved the document and hence it was not desirable for the learned Munsif to give a finding on that matter, for which the suit was not remanded. Perusal of the earlier judgment of the lower appellate court would show that the suit was remanded with the direction that the parties should be heard without, of course, allowing them to adduce any further evidence and then to give a finding regarding the partition and write out a fresh judgment in accordance with law. Perusal of the earlier judgment of the lower appellate court would show that the suit was remanded with the direction that the parties should be heard without, of course, allowing them to adduce any further evidence and then to give a finding regarding the partition and write out a fresh judgment in accordance with law. As such, the lower appellate court in the impugned judgment has erred in saying that the documents produced by the defendant-appellants were already rejected before in earlier judgment and was not the subject matter to be discussed. 14. Under such circumstances, the appeal is allowed and the matter is remitted back to the lower appellate court for fresh consideration. In the facts and circumstances, however, there shall be no order as to costs.