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2015 DIGILAW 1406 (HP)

Shashi Mahajan v. Vinay Kumar

2015-10-06

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 4.9.2003 rendered by the Additional District Judge, Kangra at Dharamshala in Civil Appeal No. 68-D/99. 2. “Key facts” necessary for the adjudication of this appeal are that predecessor-in-interest of plaintiffs Sh. Niku Ram Mahajan has filed a suit for partition as well as mesne profit. According to the averments made in the plaint, his father Dev Raj owned 48 shares in the suit property. He died in the year 1959. Besides the plaintiff, he had two sons, namely, defendant No.2 Prem Chand and Nanak Chand. The latter died and was succeeded by his widow Sumati Devi defendant No.1 and Kamlesh Kumari defendant No.7 and son Vinay Kumar defendant No. 8, as per the cause title of the original suit. The remaining defendant Nos. 3 to 5 were legal heirs of late Shri Faquir Chand. The plaintiff claimed himself and defendant No. 1 and 2 to be the members of a joint Hindu family. The suit property according to the plaintiff was jointly owned and possessed by the parties. Defendant No. 7 Kamlesh Kumari mortgaged the house with the State o H.P. without the approval and consent of the plaintiff. She secured a loan of Rs. 50,000/-. He apprehended that she would sell the house. The case of the plaintiff was that defendant No. 1 rented out certain portion of the suit property and has been receiving rent since 1954. She was repeatedly asked to go for partition by metes and bounds. However, this issue was evaded. Notices were issued in the month of March, 1991 for partition. 3. Suit was contested by defendant Nos. 1, 7 and 8 on the ground that they did not constitute a Hindu joint family with the plaintiff and defendant No. 2. The structures standing in the suit land was their exclusive property alongwith defendant No. 6. They have been living separately even when their predecessor-in-interest Nanak Chand brother of plaintiff and even defendant No. 2 was alive. No part of the suit property was possessed by the plaintiff. He was entitled to 1/6th share in the suit property but not in the structure standing on the suit land. There was an old structure on the suit land. It was damaged in the earthquake of 1978. She raised loan of Rs. No part of the suit property was possessed by the plaintiff. He was entitled to 1/6th share in the suit property but not in the structure standing on the suit land. There was an old structure on the suit land. It was damaged in the earthquake of 1978. She raised loan of Rs. 50,000/- for the reconstruction of the old structure. A house was constructed in the year 1980-81 and shop was constructed in the year 1982. Another shop was built by her in the year 1986-87. The matter qua rent has already been adjudicated upon by the Court in Civil Suit No. 60/1989. 4. The replication was filed by the plaintiff. He contended that defendants have failed to substantiate the claim in Civil Suit No. 381/1986, wherein they were defendant Nos. 6 to 9. The structures in question were part of the subject matter of the partition. Senior Sub Judge framed the issues on 14.9.1994. Suit was partly decreed. A preliminary decree for possession of the plaintiffs 1/6th share in the suit land as per the correct khatauni No. 837 by partition by metes and bounds was granted. They were not held entitled to any share in the structures standing on the suit land. The possession of their 1/6th share was ordered to be delivered out of the unconstructed portion of the suit land. Suit regarding the remaining relief was dismissed. Plaintiff preferred an appeal before the Additional District Judge-II. Kangra at Dharamshala. He dismissed the same on 4.9.2003. Hence, the present regular second appeal. It was admitted on 8.8.2012 on the following substantial questions of law: (1) Whether both the Courts below have wrogly dismissed the suit of the plaintiffs/appellants pertaining to the claim of mesne profits by erroneously holding the judgment and decree Ex.D-1 operating as resjudicata, by misreading the same and without appreciating that matters substantially in issue in both the suits were not the same? (2) When the revenue entries having presumption of truth supported the claim of the plaintiff of jointness of the suit property, have not both the courts acted beyond their jurisdiction not to raise the presumption of jointness qua the structures also, when the parties admitted the existence of the old houses etc. of their predecessor on such land, especially when no pleadings of ouster or adverse claim were made by the defendant? 5. of their predecessor on such land, especially when no pleadings of ouster or adverse claim were made by the defendant? 5. Though the appeal was admitted on the substantial questions of law framed on 8.8.2012, but during the course of hearing, it transpired that additional substantial question of law was also required to be framed to the following effect: “Whether both the courts below have acted in illegal, erroneous and perverse manner in not holding the claim of the defendants being exclusive owners qua the structures barred by the principles of res judicata in view of the judgment and decree Ex.P-1, which was rendered much after the structures were claimed to have been raised wherein the plaintiffs were held to be co-owners of the suit property?” Respondents were also put to notice and were heard on this substantial question of law also at length. 6. Mr. Bhupender Gupta, learned Senior Advocate on the basis of substantial questions of law framed has vehemently argued that the judgment and decree Ext. D-1 has not been properly construed by the Courts below. In addition to the substantial questions of law framed, Mr. Bhupender Gupta has also argued that the Courts below have not taken into consideration Ext. P-1 judgment rendered in Civil Suit No. 381/1986, decided on 5.10.1988. 7. Mr. G.D. Verma, learned Senior counsel has supported the judgments and decrees passed by both the Courts below and has vehemently argued that the substantial question of law which has not been formulated at the time of admission of the present appeal cannot be taken into consideration. 8. I have heard learned counsel for both the parties and have gone through the records carefully. 9. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence. 10. Sumati Devi has appeared as DW-1. She has deposed that Nanak Chand was her husband. Dev Raj had two houses at Dharamshala. Defendant No. 2 Prem Chand and plaintiff Niku Ram went away with their families and did not return to Dharamshala. The houses were damaged in the earthquake in 1978 and half portion of one of them was reconstructed by her daughter Kamlesh Kumari after securing a loan from the government. The remaining half portion of the house was reconstructed in the year 1980-81. The houses were damaged in the earthquake in 1978 and half portion of one of them was reconstructed by her daughter Kamlesh Kumari after securing a loan from the government. The remaining half portion of the house was reconstructed in the year 1980-81. Two shops were also constructed in the year 1982 and another shop was constructed in the year 1986-87. The plaintiff instituted a suit against them for share in the rent of shops. This plea was dismissed. The trial Court held that the structures standing on the suit land only belongs to defendant Nos. 1, 7 and 8. Plaintiffs were not held entitled to these structures. Learned trial Court has brushed aside the documents i.e. Ex.PW-2/A to Ex.PW-2/F. Issue No.9 was decided in favour of the defendant and accordingly issue Nos. 1 and 2 were also decided partly in favour of the plaintiff and partly in favour of defendant Nos. 1, 7 and 8. Plaintiffs were not held entitled to any share in the structures. Issue Nos. 3 and 6 were decided against the plaintiffs on the basis of Ex.D-1 judgment dated 24.3.1994. The courts below have not taken into consideration the judgment between the same parties qua the structures rendered by the Sub Judge III Class in Civil Suit No. 381/1986 dated 5.10.1988. Plaintiff N.R. Mahajan had filed a suit for declaration that mortgage deed dated 5.11.1980 executed by Smt. Kamlesh in favour of Governor of Himachal Pradesh for a sum of Rs. 50,000/- was a sham document. Smt. Kamlesh is now defendant No. 7 in Civil Suit No.128/91. Issues were framed by the Sub Judge III Class on 5.8.1987. Relevant issue, inter alia, reads as under: Whether the plaintiff is a co-sharer of the property mortgaged by defendant No.6? OPP Suit for declaration was decreed in favour of the plaintiff and against the defendants and mortgage dated 5.11.1980 registered on 10.11.1980 executed by Kamlesh Kumari in favour of Governor of Himachal Pradesh was declared to be sham document. Learned Sub Judge has returned a finding that plaintiff was definitely a co-sharer of the property mortgaged by defendant No.6 and the mortgage could not be effected without the consent of the plaintiff. 11. Learned Sub Judge has returned a finding that plaintiff was definitely a co-sharer of the property mortgaged by defendant No.6 and the mortgage could not be effected without the consent of the plaintiff. 11. It is specifically averred in the grounds of appeal before the first appellate court that issue pertaining to structures has been conclusively decided in favour of the plaintiff in Civil Suit No. 381/66 decided on 5.10.1988. Thereafter, the Regular Second Appeal was also dismissed. Thus, judgment dated 5.10.1988 has attained finality. The issue whether the property was joint or not once has been decided and upheld by this Court was not required to be readjudicated upon by the trial court. The judgment rendered in Civil Suit No. 381/1986 could not be brushed aside. It is declared that plaintiffs are also owners to the extent of 1/6th share in the suit land as well as in the structures. The plaintiffs cannot be granted any relief of mesne profit. 12. Their Lordships of the Hon’ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by Lrs. (2001) 3 SCC 179 have held that the High Court is not bound to confine itself to dealing only with the question initially framed by it and the High Court may hear the appeal on any other such question so long as it is satisfied that the case involves the question and records its reasons for such satisfaction. Their Lordships have held as under: [10] At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal by only on 'substantial question of law involved in the case'. An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied : (i) the High Court feels satisfied that the case involves such question and (ii) the High Court records reasons for its such satisfaction. 13. Learned Single Judge of Rajasthan High Court in Om Prakash vs. Manoharlal, AIR 2002 Rajasthan 386 has held that even at the time of hearing, another substantial question of law comes into picture, the Court can frame it, but for that there are some limitations. The first limitation is that the question to be framed must be as substantial question of law. The proviso presupposes that the court shall indicate in its order the substantial question of law which it proposed to decide even if such substantial question of law was not earlier formulated by it. Substantial question of law is sine qua non for the exercise of the jurisdiction under the amended provisions. Learned Single Judge has held as under: [35] Thus, from the above ruling, if at the time of hearing, another substantial question of law comes into picture, the Court can frame it, but for that there are some limitations which are mentioned just below. [36] The first limitation is that the question to be framed must be a substantial question of law. [36] The first limitation is that the question to be framed must be a substantial question of law. The proviso presupposes that the Court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. Thus, the existence of a "substantial question of law" is sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 of the Code of Civil Procedure. [37] The second limitation is that such a substantial question of law can be formulated at the initial stage and in some exceptional cases, at a later point of time and in the present case, in my considered opinion, even at the time of argument stage, such substantial question of law can be formulated provided the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet out the point. 14. The substantial questions of law are answered accordingly. 15. In view of the analysis and discussion made hereinabove, the appeal is allowed. Preliminary decree for possession of the plaintiffs’ 1/6 share in the suit land as per correct Khatauni number which is 837 as well as in the structures by partition by metes and bonds is granted in their favour. The judgments and decrees passed by the courts below are modified to this extent. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.