Research › Search › Judgment

Allahabad High Court · body

2007 DIGILAW 1468 (ALL)

RAM BIHARI v. SATISH CHANDRA

2007-05-15

POONAM SRIVASTAVA

body2007
POONAM SRIVASTAVA, J. Heard Sri B. K. Narayana, learned Counsel for the appellants and Dr. Dwivedi learned Senior Advocate assisted by Sri Satish Chandra, Advocate, appearing for the plaintiff/respondents. 2. This is the defendants second appeal arising out of the judgment and decree dated 4-10-2006 passed by the Special Judge (E. C. Act)/additional District Judge, Jhansi allowing the plaintiffs appeal No. 64 of 2000, Satish Chandra & Anr. v. Lathwarwali & Ors. , reversing the judgment and decree dated 7-7-2000 passed by the Additional Civil Judge (Senior Division) Jhansi. 3. The plaintiffs instituted an original suit No. 310 of 1992 for declaration as owners in possession of one house situated in Mohalla Bazar, Ward No. 3, Qasba Gursarai, Tehsil Garautha, District Jhansi, hereinafter referred to as the disputed property and also that the alleged Will dated 20-1-1983 executed by late Gopi Nath in favour of the defendant/appellants be declared null and void and also that the plaintiffs were entitled to receive rent of eleven shops from the defendant Nos. 3 to 12. The appellants No. 1/1 to 1/4 and 5 are heirs of Ram Bihari son of Kunji Lal. Gopi Nath was real brother of Kunji Lal but he died issueless leaving behind his widow Laad Kunwar. Claim of the plaintiff Nos. 1 and 2 was on the basis of the Will executed by widow of Gopi Nath on 28-9-1990 in favour of Satish Chandra and Smt. Uma Devi brother and niece respectively of widow of late Gopi Nath, who died on 7-7-1991. The defendants/appellants contested the suit of the plaintiffs and disputed that the property belonged to late Gopi Nath. They claimed that the property was of Kunji Lal and alternative claim was on the basis of the Will executed by late Gopi Nath dated 20-1-1983. 4. The trial Court framed a number of issues. Thus the issue No. 1 was regarding ownership and share of the plaintiffs in the suit property and issue Nos. 2 and 3 were in respect of the two Wills, one dated 20- 1-1983 in favour of the defendant/appellants and the third regarding validity of Will dated 28-6-1990 executed by Smt. Laad Kunwar in favour of the plaintiffs. The suit was dismissed and appeal of the plaintiff/respondents was allowed. 2 and 3 were in respect of the two Wills, one dated 20- 1-1983 in favour of the defendant/appellants and the third regarding validity of Will dated 28-6-1990 executed by Smt. Laad Kunwar in favour of the plaintiffs. The suit was dismissed and appeal of the plaintiff/respondents was allowed. Main issues for consideration in the instant second appeal are whether the plaintiffs had equal shares over the disputed land and the shops, validity of the Will dated 20-1-1983 in favour of the defendant Nos. 1 and 2 Laad Kunwar? Whether Smt. Laad Kunwar executed the Will dated 28-9-1990 in favour of the plaintiffs, if yes, its effect? Whether the property was owned by father of the defendants late Kunji Lal? Issue Nos. 1, 2, 3 and 6 were decided together. No documentary proof was adduced in support of the respective claim of Gopi Nath and Kunji Lal. None of the two brothers claimed to have got the property by succession. Claim of the plaintiffs was that the property belonged exclusively to Gopi Nath. Oral evidence was recorded, besides certain documents such as rent receipts, extract of the assessment register as well as questionnaires. Annual assessment of the house tax pertaining to the year 1986-87 up till 1990-91 shows that the defendants were recorded on the plot No. 1024. The plaintiffs tried to claim on the basis of certain questionnaires. The trial Court recorded conclusive findings that late Gopi Nath was not the owner of the property, besides copy of the judgment dated 29-9-1977 in S. C. C. Civil Revision No. 42 of 1976, A. G. Khare v. Gopi Nath Rastogi (Paper No. 152-C) was also relied upon. Gopi Nath admitted in the said proceedings that he had only single residential accommodation and no other house or shops and, therefore, admission of Gopi Nath in S. C. C. Civil Revision was read against him. 5. However, the trial Court did not believe the Will dated 20-1- 1983 executed in favour of the defendants. A conclusive finding was recorded that the said Will was suspicious and since the defendants could not discharge burden to prove the Will, no reliance was placed. However, the trial Court arrived at a conclusion that Smt. Laad Kunwar had no claim to the property and the property belonged to late Kunji Lal and not Gopi Nath. Accordingly, the suit was dismissed. 6. However, the trial Court arrived at a conclusion that Smt. Laad Kunwar had no claim to the property and the property belonged to late Kunji Lal and not Gopi Nath. Accordingly, the suit was dismissed. 6. The lower appellate Court reversed findings of the trial Court only on account of the reason that the defendants have set up an alternative plea. Claim of the defendants that the property belonged to Kunji Lal and alternatively, they claimed the property through the Will dated 20-1-1983 said to be executed in favour of Ram Bihari and Virendra Kumar. 7. When the instant second appeal was preferred, Counsel for the caveator/respondents put in appearance and gave an undertaking that he will not evict the appellants from the disputed property and it was agreed between both the Counsels that the second appeal will be decided after receipt of record. Record of the lower Court is made available. 8. Sri B. K. Narayana, Advocate, has advanced his arguments on the substantial questions of law (j) (k) and (l ). After going through the three substantial questions of law, the instant second appeal is being heard on a single substantial question of law, which is enumerated herein below : "whether the lower appellate Court could reverse judgment of the trial Court treating the alternative plea taken by the defendant/appellants in the written statement as an admission by the defendants that the property belonged to the plaintiffs?" 9. Learned Counsel for the appellants placed the judgment of the trial Court and emphasized that the trial Court while rejecting the plea of the plaintiffs that the property belonged to Gopi Nath, has discussed elaborately the various documents adduced in evidence as well as oral testimony of both the parties. The trial Court was of the view that since neither any sale-deed nor the Will has been brought on record to establish their claim. Besides, admittedly none of them claimed right to the property as successor of the common ancestor Bans Gopal. The trial Court was of the view that it was the duty of the plaintiffs to have established their claim and exclusive right of Laad Kunwar on the property and inheriting the property on the basis of the consequent Will in favour of the plaintiffs. 10. The trial Court was of the view that it was the duty of the plaintiffs to have established their claim and exclusive right of Laad Kunwar on the property and inheriting the property on the basis of the consequent Will in favour of the plaintiffs. 10. The trial Court was of the view that the property did not belong to Gopi Nath consequently his widow had no right whatsoever to execute the Will in favour of the plaintiffs. The lower appellate Court has not taken into consideration or discarded any of the findings arrived at by the trial Court, on the contrary has only disagreed with the trial Court on account of alternative plea set up by the defendants/appellants. 11. Reliance has been placed on a decision of the Apex Court Firm Sriniwas v. Mahavir Prasad, AIR (38) 1951 SC page 177. The Apex Court had taken into consideration right of the party to set up alternative and inconsistent plea and also dealt with the difference between pleadings and its proof. It was held that the plaintiffs may rely upon different pleas alternatively and there is nothing in the Civil Procedure Code to prevent the party from making two or more inconsistent set of allegation and claiming relief thereunder in the alternative; when alternative case set up by the plaintiffs was not only admitted by the contesting parties but was expressly put forward as an answer to the claim in the suit. There would be nothing improper in giving the plaintiff, a decree upon the case, which the defendant himself makes. 12. In the instant case the plaintiffs claimed their right to the property on the ground that Gopi Nath had exclusive right to it, whereas the defendants claimed that their father late Kunji Lal had exclusive right. Alternative claim was on the basis of the Will executed by late Gopi Nath. The trial Court recorded findings on the basis of oral testimony as well as certain other documents rent receipts, judgment of S. C. C. Civil Revision etc. The plaintiffs claimed that the Will set up by the defendants was not executed by late Gopi Nath and therefore, the Will executed by widow of late Gopi Nath was liable to be upheld. It is apparent that the plaintiffs expressly put forward and challenged validity of the Will as it was pleaded in the written statement. The plaintiffs claimed that the Will set up by the defendants was not executed by late Gopi Nath and therefore, the Will executed by widow of late Gopi Nath was liable to be upheld. It is apparent that the plaintiffs expressly put forward and challenged validity of the Will as it was pleaded in the written statement. The defendants had laid the foundation of their claim and, therefore, even it was an alternative and inconsistent plea it could not be used against the defendants, specially in view of the decision by the Apex Court in case of Firm Sriniwas (supra ). The lower appellate Court could not make it a basis and treat the alternative plea as an admission on the part of the defendants. 13. Learned Counsel for the respondents has emphatically disputed contention of the Counsel for the appellants. Submission is that the findings of the first appellate Court cannot be reversed in the second appeal. Reliance has been placed on a decision of the Apex Court Arumugham (dead) by L. Rs. & Ors. v. Sundarambal & Anr. , 1999 (2) JCLR 293 (SC); AIR 1999 SC page 2216. It is submitted that the High Court while deciding the second appeal cannot give its own reasoning and reverse the findings. It is only in a case when first appellate Court had not come to the grips with the reasoning given by the trial Court, interference in a second appeal is permitted. Next decision relied upon by the Counsel for the respondents is Sir Chunnilal V Mehta and sons Ltd. v. Century Spinning and Manufacturing Company Ltd. , AIR 1962 SC page 1314, para 6. Submission is that the High Court cannot interfere in a second appeal after amendment of 1977 C. P. C. only on the substantial questions of law. Since no such substantial question of law arises in the instant second appeal, it is liable to be dismissed. 14. I am in complete agreement with the submission of the Dr. Dwivedi, learned Senior Advocate appearing for the respondents that it is only a substantial question of the law, if arises in second appeal can be interfered. I cannot lose sight of the fact that the trial Court dismissed the plaintiffs suit and the appellate Court has neither confirmed nor specifically disagreed or set aside findings arrived at by the trial Court. I cannot lose sight of the fact that the trial Court dismissed the plaintiffs suit and the appellate Court has neither confirmed nor specifically disagreed or set aside findings arrived at by the trial Court. The lower appellate Court has allowed the appeal only because the defendants had set up an alternative plea and treated it to be an admission on the part of the defendants. Law does permit to raise such an alternative plea and, therefore, I am of the considered view that the appellate Court was liable to specifically record its conclusion after evaluating points for determination instead of adopting a short cut and treating the alternative plea raised by the appellant as an admission. Even if the order before the lower appellate Court was one of confirmation, it was its duty to examine each and every ground raised in appeal. In the instant case, the learned Additional District Judge has completely overlooked the requirements of Order XLI Rule 31 C. P. C. which is mandatory in nature. The first appeal is, therefore, liable to be decided afresh fulfilling the basic requirement of a judgment. 15. For the reasons discussed above, the judgment and decree dated 4-10-2006 passed by the Special Judge (E. C. Act)/additional District Judge, Jhansi in civil appeal No. 64 of 2000 is set aside. The instant second appeal is allowed. The matter is remanded to the lower appellate Court for a fresh decision after giving an opportunity of arguments/hearing to the respective parties. Appeal allowed. .