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2014 DIGILAW 363 (UTT)

Suresh Chandra v. Khashti Devi

2014-09-09

ALOK SINGH

body2014
Judgment Alok Singh, J. Present petition is filed assailing the judgment and order dated 29.08.2012 passed by 1st Appellate Court/Commissioner, Kumaon Division, Nainital, whereby first appeal filed by respondent nos. 1 to 10 herein was allowed and judgment and order dated 20.04.2013 passed by Board of Revenue, whereby second appeal filed by the petitioners was dismissed. 2. Brief facts of the present case, inter alia, are that Sri Jagdish Chandra (husband of respondent no.1 and father of respondent nos. 2 and 3), Jugal Kishore (father of Respondent nos. 4, 5 and 6), Respondent nos. 7 and 8 herein filed suit for partition under Section 176 of the U.P.Z.A. & L.R. Act against the petitioner and Respondent nos. 9 and 10 saying that plaintiffs were having 1/3rd share, defendant nos. 1 and 2 were having 1/3rd share, while defendant nos. 3 and 4 were also having 1/3rd share in the suit property; petitioners, herein, filed another suit no. 22/105 of 1982-83 under Section 229-B of the U.P.Z.A. & L.R. Act against the respondents stating therein that plaintiffs/petitioners, herein, have matured exclusive bhumidhari rights over property, in question, by way of adverse possession as well as on the principle of ouster; vide order dated 25.10.1982, both the suits were consolidated and suit for declaration filed by the present petitioners was made leading case. 3. Learned Trial Court/Assistant Collector, 1st Class/Additional SDO, Bhawar, Haldwani, vide judgment and decree dated 07.01.2010 was pleased to decree the suit filed by the present petitioners declaring them exclusive bhumidhars of the property, in question, on account of adverse possession and ouster of the defendant and was further pleased to dismiss the connected suit seeking partition under Section 176 of the U.P.Z.A. & L.R. Act. 4. Feeling aggrieved, respondent nos. 1 to 10, herein, filed one appeal being ZA appeal no. 13/2009-10 before the Commissioner, Kumaon Division, assailing the judgment dated 07.01.2010, whereby suit for declaration was decreed and suit for partition was dismissed. First appeal, so filed by the respondent nos. 1 to 10, herein, was allowed by the first Appellate Court i.e. Commissioner, Kumaon Division vide impugned judgment and order dated 29.08.2012 (Annexure no. 9 to the writ petition), setting aside the judgment and decree passed by the learned Trial Court. First Appellate Court was further pleased to decree the suit for partition and to dismiss the suit for declaration. 5. 9 to the writ petition), setting aside the judgment and decree passed by the learned Trial Court. First Appellate Court was further pleased to decree the suit for partition and to dismiss the suit for declaration. 5. Feeling aggrieved, present petitioners preferred ZA second appeal no. 56/2012-13 before the Board of Revenue which was dismissed vide impugned judgment and decree dated 29.08.2013. 6. Feeling aggrieved, petitioners have preferred present petition under Article 227 of the Constitution of India. 7. I have heard Mr. B.C. Pande, learned senior counsel assisted by Mr. Sudhir Kumar, learned counsel for the petitioner, M.S. Tyagi, learned counsel for the respondent no. 1, Mr. Narendra Bali, learned counsel for the respondent nos. 2 to 10 and Mr. R.C. Arya, Standing Counsel for the State/respondent nos. 11 and 12, and have carefully perused the record. 8. Mr. B.C. Pande, learned senior counsel appearing for the petitioners vehemently contended that since vide judgment and decree dated 07.01.2010, suit for declaration was decreed and suit for partition filed by the respondents was dismissed, therefore, respondents ought to have filed two appeals; one against the dismissal of the partition suit and second against the decreeing the suit for declaration. 9. According to learned counsel for the petitioners since respondents filed only one First Appeal, that too against the decreeing the suit for declaration and did not file appeal against the judgment dismissing the suit for partition, therefore, one single appeal was not maintainable before the First Appellate Court. 10. On the other hand, learned counsel for the respondents argued that both the suits for declaration and partition were consolidated and decided by one common judgment. Therefore, in the event of decreeing the suit for declaration, suit for partition was dismissed in consequence thereof. He further contended that First Appellate Court was well in its jurisdiction while dismissing the suit for declaration and decreeing the suit for partition. 11. Therefore, in the event of decreeing the suit for declaration, suit for partition was dismissed in consequence thereof. He further contended that First Appellate Court was well in its jurisdiction while dismissing the suit for declaration and decreeing the suit for partition. 11. Learned senior counsel for the petitioners has placed reliance on the judgment of the Hon’ble Apex Court in the case of Badri Narayan Singh vs. Kamdeo Prasad Singh reported in AIR 1962 SC 338 (1) and in the case of Ram Prakash vs. Smt. Charan Kaur and another reported in AIR 1997 SC 3760 and in the case of Premier Tyres Limited vs. Kerala State Road Transport Corporation reported in AIR 1993 SC 1202 (1) and has argued that since only one appeal was filed by the respondent, therefore, after the judgment passed by both the Appellate Courts, the net result would be that suit for declaration and partition both were dismissed. 12. In the case of Badri Narayan Singh (Supra), Hon’ble Apex Court has held as under:- “A, B and C contested an election to Legislative Assembly from same constituency. A having polled the largest number of votes was declared elected. C got the least number of votes. C filed an election petition on the ground that A was guilty of corrupt practice and that both A and B held office of profit under State Government and that their nomination papers were not validly accepted. The relief claimed by him was that election of A be declared void and that it be declared that C was duly elected. The Tribunal held that A and B did not hold offices of profit but that A was guilty of corrupt practice. He therefore set aside the election of A but did not declare C to be duly elected. Both A and C went in appeal before the High Curt. Appeal by C was appeal No.8 and the appeal by A was Appeal No.7. The High Court held that both A and B held offices of profit but that A was not guilty of corrupt practice. Accordingly it set aside that election of A on grounds different from those on which the Tribunal had set it aside and allowing the appeal by C (No.8) declared C as duly elected. Appeal No. 7 was dismissed and appeal No.8 was allowed. Separate decrees were prepared. Accordingly it set aside that election of A on grounds different from those on which the Tribunal had set it aside and allowing the appeal by C (No.8) declared C as duly elected. Appeal No. 7 was dismissed and appeal No.8 was allowed. Separate decrees were prepared. ‘By special leave A appealed against the decree in appeal no. 8 to the Supreme Court. The grounds of appeal related to finding that A and B held offices of profit. The special leave had not mentioned the relief which A sought from the Supreme Court. Presumably he prayed for setting aside the order in Appeal No. 7 confirming the order of the Tribunal and also order in Appeal No.8. Held that the order setting aside the election of A in appeal No. 7 had become final, no appeal having been preferred against it and therefore the finding that A held an Office of profit operated as res-judicata in appeal before Supreme Court against order in appeal No.8 and therefore no appeal against order in appeal No.8 declaring C to be duly elected could be pressed on the ground that the finding that A held office of profit was wrong.” 13. In the case of Ram Prakash (Supra) both the parties filed cross suits against each other claiming damages against each other. Both the suits filed by both the parties were dismissed, however, one of the plaintiff filed an appeal against the dismissal of his own suit which was decreed by the Appellate Court. Since other party did not file any appeal against the dismissal of his suit, therefore, Hon’ble Apex Court has held that merely because cross suit filed by the other party has been decreed by the Appellate Court for recovery of damages, it does not mean that the suit filed by the another plaintiff would also have been decreed. 14. In the case of Premier Tyres (Supra), Hon’ble Apex Court has held as under:- “Where an appeal arising out of connected suit is dismissed on merits the other cannot be heard, and has to be dismissed. Where no appeal is filed as in this case from the decree in connected suit it has the same effect of non filing of appeal against a judgment of decree. Where no appeal is filed as in this case from the decree in connected suit it has the same effect of non filing of appeal against a judgment of decree. Thus the finality of finding recorded in the connected suit, due to non filing appeal precludes the Court from proceeding with appeal in other suit.” 15. In the present case, respondents, herein, filed suit for partition saying that present petitioners have only 1/3rd share in the property in question while present petitioners filed suit for declaration claiming exclusive bhumidhari rights on the basis of adverse possession and principle of ouster. Since, petitioner is not held to be exclusive owner on the basis of adverse possession or ouster then net result would be that all the three parties are held to be co-owners of the property in question to the extent of 1/3rd share each. In my further opinion, in a preliminary decree passed in a suit for partition shares of the parties are declared while during the final decree, lots are prepared as per the shares declared in the preliminary decree. In my considered opinion, since, suit for declaration, which was in fact main defence of the petitioners was dismissed, therefore, net result would be that preliminary decree had to be passed in a suit for partition, which was rightly passed by the First Appellate Court. 16. In view of the discussion, made hereinbefore, judgment cited by Mr. B.C. Pande, learned senior counsel for the petitioners are liable to be distinguished and are hereby distinguished in the peculiar facts and circumstances of the case. 17. Let me now examined as to whether suit for declaration was rightly dismissed by both the Appellate Courts. 18. Hon’ble Apex Court in the recent judgment in the case of Gurudwara Shahib vs. Gram Panchayat reported in 2014 (1) SCC 669 has held that plea of adverse possession cannot be taken as sword, however, can be taken as shield only. Not only this, ouster of co-owners can not be lightly inferred. Moreover, every co-owner shall be deemed to be owner in joint possession of every inch of land. This presumption can only be rebutted by cogent evidence. There seems to be no cogent evidence of this effect. I do not find any reason to take contrary view to the concurrent findings of facts taken by both the Appellate Courts. Consequently, no interference is called for. This presumption can only be rebutted by cogent evidence. There seems to be no cogent evidence of this effect. I do not find any reason to take contrary view to the concurrent findings of facts taken by both the Appellate Courts. Consequently, no interference is called for. Consequently, present petition fails and is hereby dismissed. 19. No order as to costs. 20. CLMA Nos. 9964 of 2013 and 5172 of 2013 stand disposed of accordingly.