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2016 DIGILAW 615 (ORI)

Muralidhar Bhoi v. Shyam Sundar Bhoi

2016-08-09

D.DASH

body2016
JUDGMENT : The plaintiff no. 1 of the Title Suit No. 74 of 1984 in the Court of Sub-ordinate Court, Bolangir (as it was then) has filed this appeal under section 100 of the Code of Civil Procedure questioning the legality of the judgment passed by the learned District Judge, Bolangir in Title Appeal No. 10 of 1991 remanding the suit for partition for disposal afresh. It is pertinent to state at this place that the suit was filed by the appellant no. 1 and four others who are the wife and sons of the other brother of appellant no. 1 namely, Raghu for partition of the suit schedule property. The suit having been preliminarily decreed declaring 2/3rd share of the plaintiffs over the land described in Schedule –A of the plaint excluding the land sold by the father of the appellant no. 1, Iswar, the other brother of appellant no. 1 namely, Shyam Sundar, the respondent-defendant no. 1 and his three sons who are the other respondent-defendants had filed the first appeal under section 96 of the Code. 2. For the sake of convenience as also to avoid confusion and bring in clarity, the parties hereinafter have been described as per their position and as arraigned in the trial court. 3. Case of the plaintiff is that the parties are the members of Scheduled Tribe being ‘Gond’ by caste and are governed by the old Hindu Law as such since the provision of Hindu Succession Act etc are not applicable to them. One Sira Bhoi was the common ancestor of the parties. He had two sons namely, Mukunda and Kapur. They possessed the property left by Sira and in course of time effected a partition and accordingly, remained in separate possession and enjoyment of the land falling to their respective shares. It is stated that in the said partition which took place after the death of Sira, the suit land in Schedule A stood allotted to Mukunda who remained in exclusive possession of the same as of his share being the rightful owner. Mukunda died leaving behind his son Iswar, the plaintiff no. 1 and Balun who accordingly possessed the land which was being possessed by their father. Iswar and Balun had partitioned the properties and had become separate in mess and estate. Mukunda died leaving behind his son Iswar, the plaintiff no. 1 and Balun who accordingly possessed the land which was being possessed by their father. Iswar and Balun had partitioned the properties and had become separate in mess and estate. The land in Schedule –A is said to be consisting of the share of land falling to Iswar and a small patch of land purchased by Iswar in the name of his grandson, Madhusudan (son of Balun). Iswar is said to have been in cultivating possession of the suit schedule –A land till his death in the year 1978. Iswar’s son Raghu had pre-deceased him leaving behind his widow, the plaintiff no. 2 and sons, the plaintiff no. 3 to 5. Thus, the plaintiffs claim to be the successors of Iswar along with defendant no. 1 and his children, the defendant no. 2 to 5. It is their case that they remained in possession of Schedule –A land for convenience. Since dissention arose, the plaintiffs demanded complete partition of the properties and then the defendant no. 1 went on deferring the matter on some pretext or other. As ultimately no partition was amicably made; they filed the suit claiming the said relief. 4. The defendant no. 1 to 5 i.e. Shyam Sundar son of Iswar and his children only came forward to contest the suit. Defendant no. 1 to 3 filed the written statement whereas the defendant no. 4 to 5 although were represented by their father guardian, defendant no. 1, but he took no step on their behalf. So guardian was appointed for them in the suit. It is their case that sons of Sira and his grandsons had never effected the partition as alleged in the plaint; they simply possessed the land as per convenience. It is further stated that during the lifetime of Iswar, his two sons namely, the defendant no. 1 and Raghu were living separately. After the death of Raghu, his wife Subhidha, the plaintiff no. 2 is stated to have married to one Kusha. It is further stated that the plaintiff no. 1 having married a girl from other caste, went away and lived at another village. So, as per their custom, he stood disentitled to get any property and so also Subidha, the plaintiff no. 2. 2 is stated to have married to one Kusha. It is further stated that the plaintiff no. 1 having married a girl from other caste, went away and lived at another village. So, as per their custom, he stood disentitled to get any property and so also Subidha, the plaintiff no. 2. It is further stated that Iswar had not purchased any property and he had taken a loan which he having failed to repay, had been paid by defendant no. 1. Finally, it is stated that the plaintiffs have no right, title and interest over the suit land and as such are not entitled to get any share. The suit having been decreed preliminarily allotting 2/3rd share to the plaintiffs from out of Schedule-A land, excluding the land sold by Iswar, the defendant no. 1 to 4 being aggrieved by the same had carried the appeal. 5. It was contended before the first appellate court that the trial court had committed an error by not framing an issue as to whether the parties are governed by the old Hindu law or by their own caste, custom and usage. The lower appellate court addressing the said point as urged upon the discussion has accepted the same. It is profitable to quote what has been said at para-8 of the judgment of the lower appellate court which deals with it so as to ascertain the reasons:- “8. Now coming to his 1st contention, admittedly the parties being ‘Gond’ by caste are members belonging to the Sch. Tribe. It is stated by the plaintiffs in their pleadings that they being members belonging to the Sch. Tribe are governed by the old uncodified Hindu Law but governed by statutory Hindu Law. As against such pleading it is stated by the contesting defendants in their written statement and they are not governed by uncodified Hindu Law but are governed by their own caste custom and usages which are being followed by them from generation to generation. Sub-section (2) of section 2 of the Hindu Succession Act 1956 provides that nothing contained in this Act shall apply to the members of Sch. Tribe within the meaning of Clause-25 of Article-366 of the Constitution unless the Central Govt. by notification in official Gazette otherwise directs admittedly there is no such notification as yet. Sub-section (2) of section 2 of the Hindu Succession Act 1956 provides that nothing contained in this Act shall apply to the members of Sch. Tribe within the meaning of Clause-25 of Article-366 of the Constitution unless the Central Govt. by notification in official Gazette otherwise directs admittedly there is no such notification as yet. When it is result for partition, the main considerations are the inheritance of succession to the properties left by the inheritance of succession to the properties left by the last male owner. Therefore, it is necessary to determine as to whether parties are governed by uncodified Hindu Law or by their own caste, custom, usage and precedents. This being the considerations such contention of the learned advocate for the appellants stands to the reason”. 6. Learned counsel for the appellant submits that, when the plaintiff had projected the case and claimed partition clearly pleading that they are governed by the old Hindu law and the defendants in their written statement had pleaded that they are governed by their own caste, custom, usages and precedents followed by them from generations, true, it is that no such specific issue has been framed in that regard. However, according to him, the defendant no. 1 to 3 being well aware of the basis of claim being in accordance with the law governing the parties in relation to the succession to the property as stated in the plaint and denied in the written statement. The defendants having not so specifically pleaded as per the legal requirement but in an evasive manner and having not led any such evidence to the satisfaction of the Court, the non-framing of issue on this score is not at all fatal. The parties were well aware of the fact and had all the liberty to lead evidence. Thus, he contends that the finding of the lower appellate court in that regard is wholly unsustainable. Learned counsel for the respondents however submits to the contrary. According to him, in view of the rival case as regards the law governing the succession to the properties of the parties, it was incumbent upon the trial court to frame an issue and in the absence of the same; the defendants have been taken to surprise. 7. The position of law is well settled that mere non-framing of issue always does not vitiate the final decision. 7. The position of law is well settled that mere non-framing of issue always does not vitiate the final decision. If both the parties entered into trial with full knowledge of their respective case and accordingly have led evidence, then even in the absence of that issue, if on that controversial aspect ultimately answer has been rendered; the non-framing of the issue looses all its significance. In the instant case, when the plaintiffs in the plaint have pleaded that they are governed by the old Hindu law, the defendants denying the same asserted to be having their own caste, customs, usages and precedents being followed from generations for the said purpose of succession to the properties. The next line in the pleading is very important and is required to be taken note of. It is stated that the Members and President of their caste sit together and decide their caste matter and their rights over the properties as they follow their ancient customs, usages and precedents in deciding these matters (last sentence of para – 2 of the written statement). Plain and simple reading being given to this, the very plea of the defendants that they follow their own caste, customs, usages and precedents from generations which govern the rights of the parties over the property stands falsified when it is said that those are always decided by their caste men. This last line as stated above cannot be taken to be a pleading in support of the customs, usages or precedents to have been prevailing over the subject. It may merely be taken to be a practice followed by their ancestors for resolution in case of any dispute relating to the property rights but not that its their caste, custom and usages. Thus, in the absence of any specific pleading as to what are the ancient customs, usages and precedents which were being followed from down the generations in relation to the succession of the properties by the parties, the bare denial as above can be well said to be vague as so taken by the defendants. The settled law being that the parties taking such a plea of custom, usages and precedents to be followed in the matter are not only under the legal obligation to plead all those details but also to prove those by leading evidence to the satisfaction of the Court citing the instances. The settled law being that the parties taking such a plea of custom, usages and precedents to be followed in the matter are not only under the legal obligation to plead all those details but also to prove those by leading evidence to the satisfaction of the Court citing the instances. This being so in the present case, the lower appellate court has clearly committed an error both in fact and law by going to accept the point raised and in taking non-framing of an issue on the above as one of the grounds of remand of the suit to trial court directing for framing of that issue for its determination side by side answering all other issues. 8. The next point raised in the first appeal was the non-representation of defendant no. 5 who was minor. The lower appellate court having accepted the contention raised by the defendants as the appellants therein and for that reason held the judgment and decree passed by the trial court to be nullity and that has thus been taken as the other ground of remand of the suit for retrial ensuring proper representation of defendant no. 5. 9. Learned counsel for the appellant submits that the lower appellate court has fallen in grave error in answering the second point raised there by taking non-representation of minor defendant no. 5 as a ground for remand of the suit. Learned counsel for the respondents submits all in support of view taken by the lower appellate court on the ground of non-representation of defendant no.5. 10. The suit was being contested by the father of the two defendants who are defendant no. 4 and 5 on his own behalf as also his two married sons jointly; they had filed the written statement. These defendants no. 4 and 5 were also being represented in the suit by the guardian ad litem appointed by the court who had filed the written statement on their behalf. During suit, the defendant no. 4 became major and opted to contest it by filing the written statement. That he filed almost run in the same vein as that of defendant no. 1 to 3 and he also finally absented. In the appeal, which is a continuation of the suit, the notice has been sent to that defendant no. 5, the respondent no. 4 became major and opted to contest it by filing the written statement. That he filed almost run in the same vein as that of defendant no. 1 to 3 and he also finally absented. In the appeal, which is a continuation of the suit, the notice has been sent to that defendant no. 5, the respondent no. 9 therein who at the time of filing of the appeal was about 17 years, but by the time of issuance of notice was around 18 years. The lower appellate court has held the service of notice of appeal on him to be sufficient specifically by order dated 03.08.1992. The defendant no. 5 had not appeared in the appeal, which came to be disposed of after about five years. The only reason of saying that he was not properly represented in the suit is that the lower appellate court did not find on record, the haziras to have been filed by the guardian appointed by the court during hearing of the suit or at the time of argument. The view is clearly unsustainable. First of all, in the present suit which was contested by his father and all the major brothers, this defendant no. 5 can be well said to have been substantially represented as he could not have under any circumstance led any evidence contrary to the pleadings tendered in the suit which run in the same vein with that of the pleadings of his father and brothers. Moreover in the case, the guardian had been appointed by the court for that defendant no. 5 and he had filed the written statement. Even if for a moment accepting that he did not appear to contest during hearing and argue the case, the same is no ground to declare the decision and consequently the decree as nullity unless it is specifically found by the court that the said appointed guardian has acted in a way detrimental to the interest of the minor instead of acting in a manner which would have best served the interest of the minor. Merely because the appointed guardian remained absent during hearing, he cannot be attributed with negligence. Here it is not a case of total non-representation of the minor-defendant no. Merely because the appointed guardian remained absent during hearing, he cannot be attributed with negligence. Here it is not a case of total non-representation of the minor-defendant no. 5, it is seen that the guardian was appointed who represented the minor and if it is assumed from merely the non-filing of hazira, it may be said to be a case where after representing the minor for some length of time, he ultimately allowed the suit for decision which was rendered against. However, non-filing the hazira, that apart, non-filing of hazira cannot conclusively lead to say that the guardian was absent during those days. It can also be well said to have been so done at the discretion of the guardian. Reliance for the purpose may be placed upon the decision of this Court in Premananda Nayak & Others Vrs. Biswambar Nayak (dead) & Others (represented through LRs.); 2011 (II) CLR 1058. Thus, the above ground of remand is clearly unsustainable. The lower appellate court has not examined the sustainability of the findings of the trial court on merit as none of those were called in question before it and the challenge was only on the above grounds which were found favour with the lower appellate court. For the aforesaid discussion and reasons, it is held that the lower appellate court is not right in accepting the said contentions raised by the plaintiff-defendant no. 1 who was the appellant before it by declaring the judgment and decree passed by the trial court as nullity and passing the order of remand basing upon the same for the above reasons when also the defendant no. 5 is not at all making any such complaint. The lower appellate court thus ought to have negated the above contentions raised by the appellant and since no other challenges were put as regards other findings of the trial court it ought to have confirmed the judgment and decree passed by the trial court. 8. In the result, the appeal stands allowed. The judgment and decree passed by the lower appellate court are hereby set aside and those of the trial court stand restored. However, in the peculiar facts and circumstances no order as to cost is passed.