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2016 DIGILAW 150 (ALL)

SAGUNA SHARMA v. CHATERSEN GUPTA

2016-01-12

SUNITA AGARWAL

body2016
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri B.B. Paul, learned Senior Advocate assisted by Sri A.P. Paul, learned counsel for the appellant and Sri Shashi Nandan, learned Senior Advocate assisted by Sri Ashish Kumar Singh, learned counsel for the respondents. 2. This appeal is directed against the judgment and decree dated 18.4.2015 passed by the Additional District Judge (Court No. 7), Ghaziabad in Civil Appeal No. 171 of 2012 filed against the judgment and decree dated 18.8.2012 in Original Suit No. 608 of 1982. 3. The brief facts of the case are that an Original Suit No. 608 of 1982 was filed by the plaintiff-respondents against one Smt. Prem Lata wife of Prem Manohar. In the said suit, the appellant was impleaded as one of the defendants. The suit was decreed by the trial Court and Civil Appeal No. 171 of 2012 was filed by the defendant-appellant challenging the decree of specific performance of agreement of the suit property on the ground that a Will dated 13.5.1978 was executed by the original owner, Late Sri Prem Manohar in her favour. On the basis of the said will, she is the sole owner in possession of the suit property. This appeal has been dismissed alongwith the connected appeals by the judgment and decree dated 18.4.2015. The trial Court and the lower Appellate Court, have recorded a concurrent finding that the appellant had failed to prove the Will in her favour and hence cannot be said to be owner of the suit property. 4. In the present appeal, the appellant is not challenging the findings of Courts below on the Will dated 13.5.1978 set up by her rather the challenge to the decree of specific performance is on the ground that the appellant was living with the original owner Prem Manohar since the age of two years. She was brought up by him and his wife Smt. Prem Lata as their own daughter. The proof of date of birth and parentage of the appellant in the form of High School Certificate was available on record. There is admission of the defendant Prem Lata that the appellant was brought up by her and her husband since her childhood. These facts were sufficient to prove the relationship of father and daughter between the original owner namely Prem Manohar and the appellant for over a period of more than 30-40 years. There is admission of the defendant Prem Lata that the appellant was brought up by her and her husband since her childhood. These facts were sufficient to prove the relationship of father and daughter between the original owner namely Prem Manohar and the appellant for over a period of more than 30-40 years. As such upon the death of Prem Manohar on 15.5.1978, the appellant became co-owner of the suit property alongwith other co-sharers namely Smt. Prem Lata (widow) and her adopted son Shivang Manohar. In the absence of any partition between the co-sharers, the agreement of sale dated 18.12.1981 could not have been executed by Smt. Prem Lata as the sole owner. 5. While elaborating his submissions, reference is made to Section 50 of the Evidence Act to submit that there was sufficient proof of father and daughter relationship between Prem Manohar and the appellant. These facts were apparent from the records of both the Courts below however, the Courts below have erred in ignoring this aspect of the matter while decreeing the suit for specific performance of the agreement for the sale of suit property. 6. Reliance has been placed upon the judgment of Orissa High Court in Balinki Padhano and another v. Gopakrishna Padhano and others, AIR 1964 Orissa 117, to submit that the relationship of father and daughter can be inferred from the evidence on record. Reference has also been made to Illustration (b) of Section 50 of the Evidence Act in support of this submission. 7. On a pointed question, that there was no such pleading nor any issue has been framed and hence this question could not be looked into by the Second Appellate Court the answer is that there is ample evidence on record to establish father and daughter relationship between the two above named persons and even the Second Appellate Court can draw an inference of such relationship. A plea which does not require leading of evidence and appreciation on fact can be examined in Second Appeal. The issue of appellant being co-sharer was very much there and the Courts below ought to have framed an issue on this point even in absence of pleadings in this regard. There is error in the judgmnents of the Courts below for this reason. 8. The issue of appellant being co-sharer was very much there and the Courts below ought to have framed an issue on this point even in absence of pleadings in this regard. There is error in the judgmnents of the Courts below for this reason. 8. Dealing with this submission of learned counsel for the appellant, suffice it to say that the question raised in the present appeal are the questions for which there is no pleading at all. No foundation was laid by the appellant before the Courts below in this regard. The appellant was not substituted in place of (deceased) defendant Prem Lata wife of Prem Manohar as her heir, rather a counter claim has been put by her as the defendant in the Written Statement that Smt. Prem Lata had no right to execute the agreement of sale as she was not the owner of the suit property. Reliance has been placed upon a Will dated 13.5.1978 to submit that the appellant Smt. Saguna Sharma is the exclusive owner in possession of the suit property. A new contradictory plea has been taken by the appellant of being co-sharer of the suit property in the Second Appeal. 9. In Second Appeal it is not open to look into the question which was neither pleaded nor raised or dealt with by the trial Court and the lower Appellate Court. [Reference may be made to K. Chelliah Servai v. P. Muthusami Servai, 1995 Supp (1) SCC 202, Ramachandra Kulkarni (Dead) By Lrs. v. Dinkar, 1993 Supp (3) SCC 549, State of Gujarat v. Vora Salebhai Gulamali and others, 1977 (3) SCC 225 .] 10. This apart, the question of appellant being co-sharer cannot be examined without an enquiry as to the nature of relationship of the appellant with original owner Late Prem Manohar and the defendant Smt. Prem Lata. There cannot be any presumption of the appellant being natural daughter just because she was brought up or looked after by a person since the age of two years. Law does not recognise any such relationship as suggested by the learned counsel for the appellant. 11. On the material available on record, it is not possible to reach to conclusion on the points raised by learned counsel for the appellant. It cannot be said that the Courts below had erred in not exploring this issue. 12. Law does not recognise any such relationship as suggested by the learned counsel for the appellant. 11. On the material available on record, it is not possible to reach to conclusion on the points raised by learned counsel for the appellant. It cannot be said that the Courts below had erred in not exploring this issue. 12. The question of appellant being co-sharer does not arise for consideration in the matter and this Court express no opinion on this point. The arguments raised by learned counsel for the appellant for admission of the appeal are not the questions to be looked into by the Second Appellate Court. 13. Other grounds for challenging the decree of specific performance such as inadequacy of sale consideration etc. cannot be looked into at the instance of the appellant who has not contested the suit on this issue and has no right or interest in the suit property. 14. No substantial question of law arises for consideration in the appeal. 15. The appeal is, accordingly, dismissed.