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2010 DIGILAW 1766 (ALL)

BRAHMA WATI v. JAI PRAKASH

2010-05-26

SANJAY MISRA

body2010
JUDGMENT Hon’ble Sanjay Misra, J.—This is a defendants second appeal under Section 100 CPC. It has been filed against the judgment and decree dated 30.10.1984 in Civil Appeal N0. 212 of 1983 passed by the First Additional District Judge, Bijnor whereby the judgment and decree passed by the Trial Court in Suit No. 131 of 1979 between Jai Prakash v. Birmawati and others, has been affirmed. 2. At the time when this appeal was admitted the substantial question of law contained in paragraphs 2 and 3 had been formulated. They are quoted hereunder : 1.Whether the finding that there was an oral family partition in 1960 in which the property in dispute came to the Qurah of the plaintiff respondent is erroneous in law inasmuch as the plaintiff respondent was not able to give the material particulars relating to the alleged partition in his testimony? 2.Whether this admission of Jai Prakash plaintiff respondent that he was a party in objection of Ghasita against the decree passed in original Suit No. 478 of 1967, has been erroneously ignored by the Courts below? 3. Sri B. Dayal learned counsel for the defendant appellant has submitted that Suit No. 131 of 1979 was filed by Jai Prakash son of Ganga Ram against the defendant appellant who is widow of Sri Ganga Ram and the other sons of Ganga Ram as also one Ghasita was made a defendant on the ground that he was tenant of the plaintiff and in an earlier Suit No. 478 of 1967 (Birmawati v. Om Prakash and Ghasita) was dispossessed in execution of such decree. He states that the plaintiff respondent claimed a declaration that he is owner of the disputed properties which contained shops and Balkhana and he be given possession after eviction of the defendant No. 1 to 6. According to Sri Dayal a further declaration was sought by the plaintiff respondent that defendant No. 1 namely Smt. Birmawati widow of Sri Ganga Ram be held not to be owner of the property in question and be injuncted from interfering or changing the nature of the shops alongwith Balkhana on the basis of the decree passed in Suit No. 478 of 1967. According to Sri Dayal Ghasita (defendant No. 7) colluded with Om Prakash and filed Civil Revision No. 70 of 1976 which was rejected by the High Court on 27.10.1978 and in Suit No. 478 of 1967 Jai Prakash was not made a party since he had no concern with the property of Smt. Birmawati. 4. According to Sri A.N. Bhargava learned counsel for the plaintiff respondent No. 1 facts of the case as borne out from the record are that one Ganga Ram was owner of the properties situated in Mohalla Bazar Chowk and Mohalla Sanwaldas. After the death of Sri Ganga Ram his widow Smt. Birmawati (defendant appellant) started looking after the affairs of the family at which time her sons were minors. According to the plaintiff when the shops were purchased they were in a dilapidated condition and plaintiff respondent reconstructed the shops after a family settlement had been entered. It is alleged by the plaintiff respondent that he was 20 years of age and after completing his studies he got service in the Roadways and he let out the shops and Balkhana. The plaintiff alleges that the other brothers were living in other portions of the house and doing their separate business. In a family settlement he was alloted the shop and a portion of the house. According to him his mother Smt. Birmawati and elder brother Om Prakash colluded and obtained the decree for arrears of rent and eviction in Suit No. 478 of 1967 whereby Ghasita was evicted. When the decree of that suit was being executed against Ghasita he filed his objections under Order 21 Rule 100 CPC and the plaintiff respondent appeared as a witness in those proceedings. His objection was rejected and his appeal was also dismissed. He also filed a Suit No. 474 of 1969 for eviction of his tenant namely Abdul Hafiz which was decreed in Appeal No. 101 of 1971 and he obtained possession of the shop in execution case No. 34 of 1972. 5. The case set up by the defendant appellant was that there was no family settlement and that the respondent No. 7 Ghasita was never a tenant in the shops and Balkhana. According to them Smt. Birmawati had purchased these shops from one Sri Raghuveer Prasad on 25.3.1955 and had applied for reconstruction of the shops and Balkhana on 14.2.1959. 5. The case set up by the defendant appellant was that there was no family settlement and that the respondent No. 7 Ghasita was never a tenant in the shops and Balkhana. According to them Smt. Birmawati had purchased these shops from one Sri Raghuveer Prasad on 25.3.1955 and had applied for reconstruction of the shops and Balkhana on 14.2.1959. According to them permission was recommended by the Municipal Board and Om Prakash son of Sri Ganga Ram (defendant No. 2) took the shop on payment of rent to his mother for meeting the expenses of his minor brothers. The defendants state that when Om Prakash stopped paying rent the Suit No. 478 of 1967 was filed by Smt. Birmawati against Om Prakash for ejectment and arrears of rent. They state that Suit No. 478 of 1967 was decreed on 29.9.1969 and the appeal filed by Om Prakash being Civil Appeal No. 79 of 1973 was dismissed on 22.10.1970. In execution of that decree Smt. Birmawati obtained possesion on 21.12.1972. The defendant appellants state that Ghasita claimed tenancy from 23.3.1972 and applied to the executing Court under Order 21 Rule 100 CPC for possession which was allowed by the executing Court. Against the said order Smt. Birmawati filed a Civil Appeal No. 79 of 1973 which was allowed on 8.11.1975 where against Ghasita filed a Revision No. 70 of 1976 wherein the High Court dismissed the revision of Ghasita and approved the order dated 8.11.1975 passed by the Additional District Judge in Civil Appeal No. 79 of 1973. 6. Learned counsel for the appellant Sri B. Dayal has relied upon a decision of the Supreme Court in the case of Rajappa Hanamantha Ranoji v. Mahadev Channabasappa, AIR 2000 SC 2108 and refers to paragraph 11. He has submitted that while exercising jurisdiction under Section 100 CPC if the Court finds that the decision of the first appellate Court is based on no evidence and is perverse such finding cannot be held to be a re-appreciation of evidence and adverse inference can be drawn by the High Court if the evidence of a vital party to the suit was not recorded nor any explanation for non examination of such party was given. He submits that in proceedings under Section 47 CPC and Order 21 Rule 92 and Rule 100 CPC if a person claims independent right and obstructs the attempt of the decree holder to dispossess him from the property the executing Court would be competent to consider all the questions raised by the person against execution of such decree. He states that when in execution of the decree of Suit No. 478 of 1967 Om Prakash resisted the same the executing Court had already decided the resistance and obstruction and put Smt. Birmawati (defendant appellant) in possession and hence Om Prakash could not support the case of the plaintiff respondent and as such even if he had filed a written statement in support of the plaintiff respondent in these proceedings the findings of the executing Court cannot be retracted on such written statement of the judgment debtor of Suit No. 478 of 1967 who also happen to be the son of Smt. Birmawati the defendant appellant herein. 7. Learned counsel for the plaintiff respondent Sri A.N. Bhargava has contested the submissions and has submitted that when there are concurrent findings of fact of both the Courts below then it is not permissible for the second appellate Court to interfere with the findings of fact. He has relied upon a decision of the Supreme Court in Maniar Ismail Sab and others v. Maniar Fakruddin and others, AIR 1989 SC 1509 . 8. He has also submitted that in a second appeal a new case and a new plea not supported by pleadings or evidence cannot be set up or raised and has placed reliance on a decision of the Supreme Court in Panchugopal Barua and others v. Umesh Chandra Goswami and others, AIR 1997 SC 1041 . 9. Sri Bhargava has further placed reliance on a decision of the Supreme Court in the case of Dharmarajan v. Valliammal, 2008 JT Volume 1 SC page 113 and refers to paragraph 6 of the judgment. In substance his submission is that in a second appeal the High Court cannot enter into the prohibited arena of re- appreciation of evidence. 10. From the submission of learned counsels for the parties and the decisions cited by them the proposition of law cannot be disputed. In substance his submission is that in a second appeal the High Court cannot enter into the prohibited arena of re- appreciation of evidence. 10. From the submission of learned counsels for the parties and the decisions cited by them the proposition of law cannot be disputed. While considering a second appeal in case it is found that the findings of the Courts below are not based on any evidence or are based on inadmissible evidence, such exercise cannot be brought within the ambit of re-appreciation of evidence. It would be a substantial question of law arising to be decided in the positive. Therefore a perusal of the records would be necessary to answer such a question. An adverse inference can be drawn in a second appeal if the circumstances exist. Whether the evidence of a vital party was required at all is to be judged from the pleadings of the parties particularly when the issue under adjudication rests upon such an evidence which can be a vital evidence. It is for this reason that it is held that an adverse inference can be drawn if a vital evidence is withheld from the Court which otherwise was available and capable of being produced. 11. In the present case prior to filing of the instant suit by the respondent Jai Prakash the appellant had filed a Suit for arrears of rent and eviction being No. 478 of 1967 against her son Om Prakash. The suit was decreed on 29.9.1969 and the appellant got possession on 21.12.1972. The proceedings were carried up to the revisional stage and ultimately concluded in the High Court with the decree being affirmed in favour of the appellant. Ghasita appears to have been inducted as a tenant by Om Prakash to resist the decree as an obstructionist tenant and even Ghasita’s objection was decided in the execution proceedings. Therefore when Jai Prakash and Ghasita were objectors in the execution proceedings arising out of the decree for arrears of rent and eviction in Suit No. 478 of 1967 and their objection for resisting the decree were decided by the executing Court and rejected upto the stage of the High Court in Revision No. 70 of 1976 it can be conclusively held that it was an adjudication of all questions arising between the parties under Section 47 C.P.C. Admittedly those were proceedings of landlord and tenant dispute. Moreover Ghasita and Jai Prakash who were obstructionists to the eviction decree took up proceedings under Order 21 Rule 97 C.P.C. and the executing Court rejected their objections and decided all questions, including questions relating to tenancy rights arising between the parties therein against them. In such proceedings the question of title is gone into only incidentally and it cannot be held to be an adjudication of title between the co-owners. 12. It is under these circumstances that both the Courts below have decreed the suit of Jai Prakash by setting aside the decree of Suit No. 478 of 1967 and held that the property was purchased with the money of the joint family and in a family arrangement it was given to Jai Prakash and hence Smt. Birmawati is not owner. 13. The execution proceedings arising out of arrears of rent and eviction Suit No. 478 of 1967 have become final. The oral testimony given by Om Prakash and Jai Prakash in those proceedings were taken into consideration and disbelieved. It is the decision of the Court that is final. Their oral testimony in those proceedings now cannot be re-assessed in the present proceedings. If in the present title proceedings they have made a statement then the statement given in the earlier proceedings whereafter the eviction decree in Suit No. 478 of 1967 was executed can have no binding value and the decree of arrears of rent and eviction cannot be set aside. An issue of tenancy between the parties once finally decided cannot be re-opened and re-assessed in a later proceeding involving title. Therefore to hold that Jai Prakash was owner of the suit property by virtue of the decree of Suit No. 478 of 1967 would be in contravention to the finality attached to the arrears of rent and eviction proceedings under Section 47 CPC and Order 21 Rule 100 C.P.C. 14. The Courts below have held that an oral family settlement was entered into between the mother and her sons. This finding is based on the fact that Jai Prakash had let out the shop in question to tenants and was realizing rent and had also filed suit against tenants namely Abdul Hafiz and another and got them evicted from the shop. These facts may be correct but that itself cannot be a reason to hold that the family had effected an arrangement for partition. These facts may be correct but that itself cannot be a reason to hold that the family had effected an arrangement for partition. There is a difference in the role of a landlord who is not an owner and a landlord who is co-owner. A landlord who is a co-owner cannot plead that since he is collecting rent and letting out the property from time to time he has become exclusive owner or a partition has been effected. 15. An oral family arrangement has to be proved. The surrounding circumstances can only be an additional fact to prove it. But in the absence of proof of a family arrangement the surrounding circumstances cannot be made the sole basis to hold that a family arrangement has been made. In an unpartitioned property it is more likely that the co-owners accommodate each others possession but that cannot be held to be a partition effected. Partition is by metes and bounds of the legitimate shares and in the absence of any evidence or proof of partition mere possession or management of a portion of the property cannot alone lead to a conclusion that the property has been partitioned by a family arrangement. There is no evidence on record to prove any oral family arrangement of partition of the property or that the property in suit fell to the share of the plaintiff Jai Prakash. The finding contrary thereto is not based on any evidence at all about an oral family arrangement but it is based on such evidence which even if be relied upon cannot lead to a conclusion that such evidence alone has established the plea of a family partition. Moreover a family arrangement made for proper management of undivided property does not necessarily mean that is a partition. In a partition right, title and interest in one portion is extinguished and right, title and interest in another portion is acquired exclusively. Clearly the finding recorded on this issue is not based on any evidence at all but is based on such evidence which is irrelevant. The plaintiff has not proved the family partition by any evidence whatsoever even in his oral testimony. 16. For the aforementioned reasons both the substantial questions of law are answered in the affirmative and it is held that both the Courts below have illegally and erroneously decreed the suit of the plaintiff respondent. The plaintiff has not proved the family partition by any evidence whatsoever even in his oral testimony. 16. For the aforementioned reasons both the substantial questions of law are answered in the affirmative and it is held that both the Courts below have illegally and erroneously decreed the suit of the plaintiff respondent. It is held that no oral family partition had taken place amongst the plaintiffs and the defendants. The decree of Suit No. 478 of 1967 was not collusive and it being a landlord-tenant dispute the rights of the objectors was adjudicated under Section 47 C.P.C. which leaves no doubt that the property in suit was purchased by Smt. Birmawati (defendant-appellant) by the sale deed dated 25.3.1955. However the finding of fact recorded by both the Courts below that the property in suit came to be included in the joint family property having been purchased on 25.3.1955 when the sons were minor being based on a correct appreciation of the evidence requires no interference. The plaintiff has not sued for partition hence no such relief can be granted to him. No interference is required in the concurrent findings that the plaintiff and Om Prakash are sons of Smt. Birmawati (defendant-appellant). 17. Consequently this appeal is to be allowed. The suit of the plaintiff respondent Jai Prakash is dismissed for the reliefs of declaration against the defendant No. 1 (defendant-appellant) as also for injunction. The impugned judgment and decree of the Court below is set aside subject to approval of the findings of fact on the two issues referred to in the preceding paragraph. This appeal is allowed. Parties to bear their own costs. ————