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Allahabad High Court · body

2010 DIGILAW 1600 (ALL)

P. L. K. Sharma v. S. Bala

2010-05-14

PRAKASH CHANDRA VERMA, RAM AUTAR SINGH

body2010
JUDGMENT 1. This first appeal has been directed against the order dated 14.10.1988 passed by VIII Additional District Judge, Bulandshahr in Original Suit No.763 of 1988 whereunder the application 7/C moved under Order 39 Rules 1 & 2 of Code of Civil Procedure for issuing interim injunction has been rejected and exparte injunction granted earlier has been vacated as well as the possession over the property has been directed to be restored to defendant no.1. 2. We have heard the learned counsel for the parties on this first appeal and perused the record. 3. A perusal of the record would go to show that in Original Suit No.763 of 1988 plaintiff Pandit Lal Kishan Sharma moved an application 7/C under Order 39 Rules 1 & 2 of Civil Procedure Code with the relief of permanent injunction restraining the defendants from interfering in the possession of the plaintiff over the property shown in the plaint map and from withdrawing the amount of the F.D.Rs. and N.S.Cs. and from operating the Bank locker. 4. The plaintiff instituted the above suit for declaration with this allegation that the plaintiff was the owner in possession of the property in dispute and defendant no.1 had got no concern with the same. The plaintiff stated in his affidavit that he purchased the property shown by letters Aa and Ba in the plaint map in the year 1948 from his own money and he started to live separately from his father in the year 1946. The plaintiff constructed a Kothi in the property shown by letters 'Ba' in the year 1958 and started to live in that house alongwith his family. The plaintiff also obtained a declaration under section 143 of U.P.Z.A. & L.R. Act regarding the property Aa and Ba. The plaintiff got four sons and four daughters and all his four sons started to live out since 1975 in connection with their business. His eldest daughter was got married in the year 1961 and younger Pushpa in the year 1976. The defendant no.1 was married with defendant no.2 on 9.2.1988 and all expenses of the marriage of defendant no.1 was borne by the plaintiff. A dacoity took place in his house in the year 1975, in which the plaintiff sustained serious injuries, as a result of which his condition started to deteriorate. The defendant no.1 was married with defendant no.2 on 9.2.1988 and all expenses of the marriage of defendant no.1 was borne by the plaintiff. A dacoity took place in his house in the year 1975, in which the plaintiff sustained serious injuries, as a result of which his condition started to deteriorate. The wife of the plaintiff was heart patient and all his four sons were already residing out of station. The defendant no.1 daughter of plaintiff passed her medical course in the year 1978 and started to live with plaintiff. The plaintiff was having complete reliance on defendant no.1 and he became seriously ill in the year 1980 and defendant no.1 served him during his illness. The plaintiff thought that defendant no.1 was doing all works for betterment of the family and she gave the impression that she would not marry and she would serve her parents as well as villagers. The plaintiff was also the patient of cancer and his operation of cancer took place in the year 1983, in which defendant no.1 served him and the plaintiff started to have much reliance on her. The wife of the plaintiff died on 13.1.1985 and thereafter the plaintiff and his daughter defendant no.1 started to live in his house. The defendant no.1 expressed her desire to start a charitable hospital in the name of her mother Smt. Bhagwati Devi wife of plaintiff and the plaintiff executed a benami sale deed in the name of defendant no.1 on 25.2.1985 without any consideration and the hospital was inaugurated by Dr. Farah Usmani wife of Javed Usmani, the then District Magistrate, Bulandshahr on 20.4.1986. The plaintiff also purchased one air-conditioned Car No. UHP-3368 for a consideration of Rs.1,12,000/- in the name of defendant no.1 and the entire consideration was paid by the plaintiff and the name of defendant no.1 was benami. All the original documents were always in possession of plaintiff. In the year 1987 defendant no.1 started to harass the plaintiff and expressed her desire to marry, as a result of which her marriage was solemnized with defendant no.2 on 9.2.1988. After their marriage the defendants started to express their desire to sell movable and immovable properties of the plaintiff purchased by him in the name of defendant no.1. In the year 1987 defendant no.1 started to harass the plaintiff and expressed her desire to marry, as a result of which her marriage was solemnized with defendant no.2 on 9.2.1988. After their marriage the defendants started to express their desire to sell movable and immovable properties of the plaintiff purchased by him in the name of defendant no.1. The plaintiff also obtained a Bank locker in Oriental Bank of Commerce in the name of defendant no.1 as benami as well as two F.D.Rs. for a sum of Rs.14,500/- and Rs.10,200/- were in the joint names of defendant no. 1 and plaintiff and N.S.C. for a sum of Rs.5,000/- in the name of defendant no.1 was also benami. The defendants started to threaten to interfere in the possession of the plaintiff over the property in dispute. 5. The defendant no.1 filed objections supported by an affidavit against the application, wherein it was alleged that defendant no.1 purchased the property in dispute for a consideration of Rs.9,000/- from the plaintiff, because the financial condition of the plaintiff deteriorated for last 30 years and after purchase of property in dispute, the defendant no.1 started her clinic in the name of her mother in the year 1979. The defendant no.1 earned a lot of money out of medical practice and she also purchased the land, constructed her hospital and purchased other articles for hospital out of her own money. The defendant no.1 also arranged marriage of her younger sister Shobha Sharma, because the plaintiff and his sons had no money to arrange expenses for the marriage of their daughters and sisters. She also purchased one Fiat Car (air conditioned) bearing registration no. UHP-3368 in the year 1985 for a sum of Rs.1,12,000/- and F.D.Rs. were also got issued in the name of defendant no.1 but the name of plaintiff was added alongwith her being father. The N.S.C. for a sum of Rs.5,000/- was also purchased by defendant no.1 and she took the bank locker, in which she kept her ornaments and she also got constructed six shops in the disputed property out of which five shops were sold to different persons during the period from 1985 to 1987 through sale deeds and one shop was retained by her. The plaintiff had no concern with the household property and stay order was obtained by him by playing fraud in the court and in the garb of the stay order, the plaintiff occupied the property in dispute illegally. The real brother of defendant no.1 also took away her car on 24.6.1988 by playing fraud on her, in respect of which she lodged an F.I.R. on 20.8.1988 at P.S. Mayapuri, New Delhi, because all the papers were taken away from her. The plaintiff tampered with the household goods of defendant no.1 and damage was caused to her X-ray machine. The plaintiff was dependent on the income of defendant no.1 and he wanted to get entire income earned by her from medical practice. The plaintiff and his sons also threatened to kill her. 6. The learned Additional District Judge, Bulandshahr after having heard the learned counsel for the parties dismissed the application 7/C and vacated exparte injunction order as well as directed the plaintiff to restore the possession of the property in dispute to defendant no.1, against which this appeal was filed. 7. The learned trial court observed in his order that this suit was pending between the father and his daughter and the property shown by letters Aa in the plaint map was in the name of defendant no.1 and one Fiat Car (air conditioned) bearing registration no. UHP-3368 was also in the name of defendant no.1 as well as X-ray machine and other properties were found in the name of defendant no.1, while F.D.Rs. were in joint names of plaintiff and defendant no.1 and thus all properties were exclusive ownership of defendant no.1 as she started to live separately in the year 1975 and she also started her medical practice in her own premise and subsequently she married with defendant no.2. The learned trial judge also observed that the plaintiff and his wife Smt. Bhagwati Devi were constantly ill and during their illness defendant no.1 served them. The defendant no.1 expressed that she would not marry as she wanted to serve her parents and villagers. The learned trial judge also observed that the plaintiff and his wife Smt. Bhagwati Devi were constantly ill and during their illness defendant no.1 served them. The defendant no.1 expressed that she would not marry as she wanted to serve her parents and villagers. The learned trial judge without recording any evidence of the parties in support of their respective allegations recorded findings on the question of fact which was not proper, legal and just, because the learned trial judge should have afforded an opportunity to the parties to lead evidence in support of their respective contentions, but he without affording an opportunity to the parties to adduce evidence presumed certain facts and recorded findings as if he was deciding the suit on merits. The learned court below concluded without any evidence that defendant no.1 had put in about 10 years in the medical practice and he inferred that she earned a lot during the period of her medical practice and she married only in the year 1988 and she saved sufficient part of her income and purchased all the properties involved in the case and thus the plaintiff was not entitled to get any injunction in his favour as on the basis of material on record no injunction could be granted in favour of a trespasser against the true owner. The capacity of the plaintiff was that of a trespasser whereas the defendant no.1 was the real owner and the plaintiff obtained possession over the property in dispute in the garb of exparte injunction order and thus such a right of the plaintiff could not be protected by law. The learned trial judge further expressed his opinion that she was a medical practitioner since 1979 and she purchased the property out of her own income from the practice and thus no reliance could be placed on this contention of the plaintiff that the property in dispute was a benami transaction in the name of the defendant no.1. 8. The learned counsel for the appellant contended that the documentary evidence on record clearly established that the property in suit belonged to plaintiff and the sale deed dated 25.2.1985 was a sham transaction in the name of defendant-respondent and it was only a benami and no title was passed in favour of the defendant-respondent. 8. The learned counsel for the appellant contended that the documentary evidence on record clearly established that the property in suit belonged to plaintiff and the sale deed dated 25.2.1985 was a sham transaction in the name of defendant-respondent and it was only a benami and no title was passed in favour of the defendant-respondent. The plaintiff-appellant obtained declaration under section 143 of U.P.Z.A. & L.R. Act regarding the property in dispute on 27.12.1985 which was even after the date of sale deed dated 25.1.1985. 9. The learned counsel for the appellant further contended that the appellant-plaintiff was a patient of heart and cancer and his sons remained outside Dankaur and the defendant no.1 used to help her father, who for the purpose of securing her future made benami transaction in her favour which was a sham transaction. The learned counsel for the appellant further contended that the consideration relating to F.D.Rs., N.S.C. and the locker was paid by the plaintiff-appellant and not by the defendant-respondent and the entire material kept in locker was of plaintiff and his deceased wife and it did not contain any property of the defendant, but the court below illegally directed the possession of the same to be handed over to the defendants. It was further contended that the defendants had not established any source of income on record except a bald statement that she earned a lot out of her medical practice and the court below illegally refused injunction against the defendants rather he directed the plaintiff to deliver possession of the property in dispute to defendant no.1 and thus the court below illegally allowed application 16-C. The court below failed to consider the documentary evidence and the affidavit of the plaintiff, in which it was stated that six shops which were sold by the defendants were constructed by the plaintiff in the year 1961-1962 and the same was also assessed and income tax was also imposed on the income. The judgment of the Income Tax Officer dated 23.3.1971 was filed before the court below but the same was completely ignored. The copy of the judgment dated 27.11.1965 passed by S.D.M., Sikandrabad in Case No.7 of 1965 under section 163 Cr.P.C. (State Vs. Lal Kishan Sharma) was also ignored which clearly established that the shops were constructed in the year 1961-1962. The copy of the judgment dated 27.11.1965 passed by S.D.M., Sikandrabad in Case No.7 of 1965 under section 163 Cr.P.C. (State Vs. Lal Kishan Sharma) was also ignored which clearly established that the shops were constructed in the year 1961-1962. The consideration for purchase of Fiat Car was paid by plaintiff through cheque and the copy of cheque and draft were also filed before the court below. The Income Tax Assessment filed before the court below were completely ignored holding that the plaintiff had no income of his own. The defendants did not file any material on record to establish that she was assessed to income tax in order to establish that she had income, out of which the property in dispute was acquired by her. There was no evidence on record in the nature of F.I.R. or any complaint anywhere establishing that the plaintiff forcibly dispossessed defendant no.1 but the court below relied on this fact and presumed the same to be true without any evidence on record. 10. The learned counsel for appellant further vehemently argued that the learned court below further ignored the case of the plaintiff that in the hospital no fee was charged except the cost of the medicines and the defendants did not file any evidence which could show that good income was earned by her. She also did not file any personal pass book showing that she had any substantial bank balance through which the property in dispute could be acquired. The learned trial court further ignored the fact that these shops which were sold for Rs.25,000/- each alongwith big piece of land could be sold for Rs.9,000/- only and this fact clearly established that it was sham transaction and had never conveyed any title to her. The defendant no.1 after her marriage started to live separately with her husband at Delhi and no question could arise of her being in possession of the property at Dankaur and thus the court below illegally found the defendants to be in possession of the property in dispute. There was no documentary evidence or any affidavit on record in order to show that possession was forcibly taken from her in the garb of injunction order. There was no documentary evidence or any affidavit on record in order to show that possession was forcibly taken from her in the garb of injunction order. The possession could only be taken, if there was any mandatory injunction in favour of the plaintiff and no possession could be taken in view of the prohibitory injunction issuing exparte in favour of the plaintiff and thus the court below passed illegal order without considering the facts and circumstances of the case. 11. During pendency of the appeal the appellant-plaintiff Pandit Lal Kishan Sharma expired and his son V.V. Sharma alias Vinod Sharma was substituted with this allegation that he inherited the property of his father after his death. The affidavit of Vinod Sharma further disclosed the fact that defendant no.1 died on 23.4.1989 and her name was deleted from array of the parties. It was further alleged that defendant no.2, who was husband of defendant no.1, committed murder of his wife Shashi Bala defendant no.1 or abetted her to commit suicide, because her dead body was found lying on railway track in Delhi, in respect of which the criminal case of dowry death was registered against the defendant no.2 and his family members. The plaintiff Pandit Lal Kishan Sharma died on 28.6.2000 and he during his life time executed a Will in favour of his son Vinod Sharma on 29.7.1999. It was also alleged in affidavit of Vinod Sharma that in the meanwhile a notice was received by him from Mandal Abhiyanta Uttar Mandal Railway, Aligarh on 6.6.2007 that the appellant Vinod Sharma was found in unauthorised possession over the land between new Dhankaur Railway Station and the Railway Phatak No.139 Km, 1397/29-31 and it was creating hindrance in the construction of railway line and therefore the appellant was liable to remove his possession from the said land and hand over the same to the railway department. The appellant submitted his reply dated 9.7.2007 to the Zonal Engineer, North Central Railway, denying the allegations that the appellant was in unauthorised possession of land or raised illegal construction thereon and another notice was sent by the railway authorities to the appellant which was received by him on 18.8.2008 and addressed to the appellant as well as Shashi Bala, in which it was alleged that the said land was recorded in the revenue record in the joint names of Shashi Bala and V.V.Sharma alias Vinod Sharma, daughter and son of Kishan Lal Sharma. Since the Railway Ministry wanted some part of land in dispute for laying railway line and therefore wanted to obtain possession thereon without resorting to the provisions of Land Acquisition Act. In case the appellant did not enter into an agreement, the procedure prescribed under the Act would be followed and it would take years in getting compensation. The appellant through application and counter affidavit prayed for permission to settle the matter with Railway administration by agreement so that the necessary amount of compensation might be made available to him. The appellant shall get the amount of compensation on the understanding that the same would be subject to decision of suit. 12. A perusal of the record would go to show that the copy of the judgment dated 18.3.2000 passed by Additional Sessions Judge, New Delhi in Sessions Case No.66 of 1992 under sections 498-A, 304-B/34 I.P.C., P.S. Maya Puri, New Delhi (State Vs. Bal Krishan Sharma and four others) was filed alongwith affidavit, in which all the accused persons facing trial in the said case were acquitted by the trial court. 13. The learned counsel for the appellant contended that the said judgment passed by Additional Sessions Judge, New Delhi in above criminal case would not affect the merits of this case and the respondent no.2 would stand debarred from inheriting property of Shashi Bala, who was killed by him and others on account of non fulfillment of demand of dowry and this fact would require evidence in civil suit in order to establish the same. The learned counsel for the appellant has relied on section 25 of Hindu Succession Act which is reproduced as below: "Murderer disqualified- A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of a person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder." 14. The learned counsel for appellant contended that in view of above legal position the plaintiff being father of deceased was entitled to inherit property of the deceased as he was the only heir and legal representative of respondent no.1 and after his death, present appellant being his legal representative would be entitled to get the property of his deceased sister. 15. The learned counsel for the appellant also contended that all these questions of facts would be decided by the trial court after affording an opportunity to the parties to adduce their evidence in original suit and at this stage the trial court was not justified in recording the findings of fact against the appellant without any evidence being produced by the parties in original suit and thus the trial court committed illegality in recording the findings and dismissing the application 7/C without any evidence. It would be just and proper to direct the parties to maintain status quo in respect of the properties in dispute, but the trial court committed illegality and irregularity in dismissing the application 7/C and issuing direction to the appellant in respect of properties in dispute. 16. It would be pertinent and significant to mention at this stage that after the marriage, Shashi Bala shifted to Delhi in order to consummate her marriage with her husband thereon. The copy of judgment passed in dowry death case indicated that the dead body of Smt. Shashi Bala respondent no.1 was found lying on railway track within police circle of Mayapuri, Delhi while she was residing with her husband in Delhi and it was the duty of her husband to explain the circumstances under which she died and her body was found on railway track. This was an admitted fact that her death was not natural and in case of unnatural death her husband being custodian of his wife was bound by law to explain the circumstances. 17. This was an admitted fact that her death was not natural and in case of unnatural death her husband being custodian of his wife was bound by law to explain the circumstances. 17. Nothing was found on record to show that Smt. Shashi Bala after shifting to Delhi continued her possession over the property in dispute and after her death her husband ever entered into possession of the property of his wife at Dankaur, while there was specific case of plaintiff that with a view to secure life of his daughter, plaintiff executed sale deed, which was sham transaction as she did not intend to marry by that time and she expressed her intention to perform charitable work and serve her father (plaintiff) and inhabitants of the village through her medical practice. 18. We are of view that this appeal deserves to be allowed and the parties are required to maintain status quo in respect of the properties in dispute till all the questions of facts relating to the dispute are decided by the trial court after recording evidence of both the parties. It would also be just and proper to permit the appellant to settle the dispute relating to the joint land of the deceased and appellant, which is required by Railway administration for laying railway line which is a public purpose, subject to decision of the suit. 19. Under these circumstances, the appeal is allowed and the order dated 14.10.1988 passed by VIII Additional District Judge, Bulandshahr on application 7/C in Original Suit No.763 pf 1988 is set aside. The parties are directed to maintain status quo in respect of the properties in dispute till decision of the suit. The learned court below is directed to decide this old suit within a period of six months from the date of production of the certified copy of this judgment. The appellant is also permitted to settle the dispute with railway authorities in respect of joint land owned by him and his sister late Shashi Bala, because the said land is required by the railway authorities for laying railway line, which is a public purpose.