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2010 DIGILAW 111 (ALL)

Arun Kumar Gupta v. Ravi Shanker Malviya

2010-01-08

PRADEEP KANT

body2010
JUDGMENT Hon'ble Pradeep Kant, J. Heard Shri A.P. Srivastava, learned counsel for the appellants and Shri Ashish Gupta and Shri V.K. Agarwal, learned counsel for the respondents on the delay condonation application in the appeal. 2. Explanation for the delay in moving the substitution application is sufficient. The delay is condoned and the substitution application is allowed. 3. The abatement, if any, is set aside. Let the memo of appeal be corrected accordingly during the course of the day. 4. An argument has been raised by the learned counsel for the appellants that the suit can not be said to be barred by Order 21, Rule 63 of the Civil Procedure Code (hereinafter referred to as the C.P.C.), has no force and is rejected, as the findings recorded in this regard by the courts below do not suffer from any illegality. 5. Heard the learned counsel for the plaintiff-appellants and Shri Ashish Gupta and Shri Vinod Kumar Agarwal, the learned counsel for the defendant-respondents. 6. By this second appeal, under Section 100 C.P.C. the appellants challenge the judgment and decree dated 2nd February, 1982, passed by the III Additional District Judge, Varanasi in appeal, confirming the judgment and order dated 25th October, 1977, passed by the III Civil Judge, Varanasi, dismissing the suit of the plaintiff-appellants for declaration that they were owners and in possession of the house in suit to the extent of 4/15th share and for grant of a perpetual injunction restraining the defendant-respondent Ravi Shanker Malviya from taking actual possession of the property in suit. 7. Shorn of unnecessary details, the plaintiff-appellants filed the aforesaid suit inter alia with the pleadings that, admittedly, the House No. C.K. 15/76, situate in Mohalla Bullanala, Varanasi City was the ancestral property of the plaintiff-appellant Nos. 1 to 3 and defendant-respondent Nos. 2, 4 and 5. After the death of Ram Ji Das, which took place in 1933, his three sons, namely, Shri Prakash, Shri Vilas and Shri Nivas, who constituted a joint Hindu family, became owners of the house in suit alongwith other properties by survivorship. 8. It was further alleged that after the death of Ram Ji Das, there had been disruption amongst his three sons, all of whom started living separately. 8. It was further alleged that after the death of Ram Ji Das, there had been disruption amongst his three sons, all of whom started living separately. Though their ancestral properties were partitioned by metes and bonds, the plaintiff-appellants had been continuously living in the house in suit which had been the residential house of the family. 9. Further, the defendant-respondent No. 2 Shri Nivas, who had no authority or right to mortgage the property in suit, the mortgage executed by him was illegal and void and it was incapable of affecting the rights of the plaintiff-appellants. On the basis of the aforesaid mortgage, the defendant-respondent Ravi Shanker Malviya obtained a decree in Suit No. 12 of 1965, filed by him against Shri Nivas. On the basis of the decree passed in the mortgage suit, the defendant-respondent No. 1 took steps for sale of the entire house. It was further alleged that the plaintiff-appellants owned 4/15th share in the disputed house, and that, their shares were not liable to be sold in execution of the decree passed against Ravi Shanker Malviya. 10. In the lower court, the suit was contested by the defendant-respondent Ravi Shanker Malviya, who filed his written statement and pleaded that after the death of Ram Ji Das, as there was disruption in the family, the three sons of Ram Ji Das appointed two arbitrators, namely, Rajendra Kumar Jain (D.W.-1) and Baldeo Das for settlement of all their disputes and partition of the ancestral properties. An arbitration agreement was duly executed on 13th June, 1948. Through the intervention and mediation of the arbitrators, the family properties and debts due from the family were partitioned by the three brothers by mutual agreement, which as incorporated in the award made by the arbitrators which was got registered on 14th September, 1948. By virtue of the mutual partition and the award, the house in suit was exclusively allotted to the share of the defendant-respondent Shri Nivas. Premises bearing municipal No. C.K.15/77 was exclusively allotted to the defendant-respondent Shri Vilas and the premises bearing municipal No. J 12/140 situated in Chaukaghat, Varanasi was exclusively allotted to the share of defendant-respondent Shri Prakash. The debts were also apportioned amongst the three brothers. 11. Premises bearing municipal No. C.K.15/77 was exclusively allotted to the defendant-respondent Shri Vilas and the premises bearing municipal No. J 12/140 situated in Chaukaghat, Varanasi was exclusively allotted to the share of defendant-respondent Shri Prakash. The debts were also apportioned amongst the three brothers. 11. All the three brothers came in exclusive possession of the properties allotted to each of them, and after the partition, defendant-respondent Shri Nivas remained in exclusive possession over the house in dispute. It was further contended that the said partition and award were duly accepted and acted upon by all the three brothers and they dealt with the properties allotted to their shares as exclusive owners thereof. 12. On 14th September, 1949, defendant-respondent, Shri Niwas borrowed a sum of Rs.16,000.00 from the defendant-respondent Ravi Shanker Malviya and executed a mortgage deed in his favour in respect of the suit property. Defendant-respondent Shri Prakash sold the property allotted to him under the award to one Smt Brijmani Devi, who is now in possession thereof. It was further contended that House No. C.K. 15/77 which had been allotted to the defendant-respondent Shri Nivas, in which he was living with his family including the plaintiff-appellants, was sold in execution of the decree passed in Suit No. 108 of 1950 in favour of one Shyam Das and the same was purchased by Jamuna Das, who obtained possession over the same. 13. Written statement was also filed in the lower court on behalf of the defendant-respondent Shri Nivas. However, at the stage of the final hearing of the suit, he absented himself. The remaining defendant-respondents did not file any written statement, so the suit was heard and decided ex parte against the defendant-respondent Nos. 2 to 5. 14. The learned trial court, after considering the nature of dispute and discussing the evidence on record, recorded a finding that the award given by the arbitrators appointed by the defendant-respondents was a valid award. It also recorded a finding that there was a partition after the death of Ram Ji Das, and in the partition, the house in dispute was exclusively allotted to the share of defendant-respondent Shri Nivas. It was further found that the plaintiff-appellants had no share in the house in suit, and that, they were residing in the house in dispute purely as licensees of defendant-respondent No.3, Smt Raj Kumari Devi. It was further found that the plaintiff-appellants had no share in the house in suit, and that, they were residing in the house in dispute purely as licensees of defendant-respondent No.3, Smt Raj Kumari Devi. The learned trial court also held that the suit was barred under Order 21 Rule 63 C.P.C. 15. Before the learned appellate court, the plaintiff-appellants raised the following points:- 1. The original award, which was the basis of the defence, having not been filed or caused to be filed in the case, the case set up by the contesting defendant-respondent, based on the award, cannot be said to be established. 2. The very contents of the award indicated that it was not the final award, therefore, the question that the property in the suit had been allotted to Shri Nivas, did not raise. 3. The award was assailed on the ground that it was ineffective being a conditional one. 4. It was an admitted case that the plaintiff-appellants continued to be in occupation of the disputed property, which was the family residential house, and that, it proved the fact that the award was not accepted. 16. The learned appellate court dealt with all the aforesaid issues. After appreciation of the evidence and documents on record, the appellate court came to the conclusion that the award was a validly pronounced award which was duly acted upon between the parties and that the plaintiff-appellants had no share over the property in question where they were residing as licensees. 17. The learned appellate court held that on mutual agreement, the award was given by the arbitrator appointed by the defendant-respondent Nos. 2, 4 and 5, the ancestral properties were partitioned amongst them and, in the partition, the house in dispute was exclusively allotted to the share of the defendant-respondent Shri Nivas. 18. The learned counsel for the appellants made an effort to assail the aforesaid findings, but could not successfully do so as the findings aforesaid are bases on evidence on record. The conduct of the parties after the death of Ram Ji Das when dispute took place in the family, establishes that the arbitrator was duly appointed with the mutual consent who gave his award in respect of the properties in question which award had been duly acted upon. 19. There remains thus no ground for the Court to interfere with in second appeal. 20. 19. There remains thus no ground for the Court to interfere with in second appeal. 20. It being the finding that the house in question or any portion thereof did not belong to the plaintiff-appellants and that, by virtue of the partition amongst the defendant-respondents, the house in dispute was exclusively allotted/given in the share of defendant-respondent Shri Nivas, the findings recorded by the courts below cannot be disturbed. The findings that the plaintiff-appellants did not have any share over the property in question where they were residing as licensees which findings are based on the evidence on record, do not suffer from any perversity or illegality so as to interfere with in second appeal. 21. On appreciation of the evidence on record as well as the findings recorded by the two courts below, I do not find any substantial question of law that is involved in the second appeal. I find that the findings recorded by the two courts below do not suffer from any error nor they are perverse. 22. The second appeal has no force and is hereby dismissed.