Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 896 (MP)

Ramkuriya Bai v. Kachra Bai (dead)

2016-10-05

ANURAG SHRIVASTAVA

body2016
JUDGMENT : 1. Appellant/defendant no.1 has filed this second appeal under section 100 of CPC being aggrieved by the judgment and decree dated 9.10.2009 passed by the First Additional District Judge, Chhindwara in Civil Appeal No.10-A/2009 affirming and confirming the judgment and decree dated 3.1.2009 passed by the Civil Judge, Class-II, Junnardeo, District Chhindwara in Civil Suit No.184-A/2008; whereby the suit filed by respondent no.1 Late Kachra Bai and respondent no.2 Phoolbati (plaintiffs) for declaration of their 1/4th - 1/4th share in the suit property and for partition thereof has been decreed in their favour by recording the concurrent finding of facts against the appellant. 2. The aforesaid suit has been filed by plaintiffs Late Smt.Kachra Bai and Phoolbati against Ramkuriya Bai (defendant no.1) and Galjhar (defendant no.2) alleging that the disputed property, total area 24.85 acres situated in Village Itawa, District Chhindwara belongs to Late Somati Bai, who was the mother of Late Kachra Bai, Phoolbati, Galjhar and Late Buddhu. Somati Bai died in the year 1972 and after her death her son Buddhu and daughters, as stated above, had inherited the disputed property and had equal shares 1/4th – 1/4th in it. Buddhu has died in the year 2000 and his daughter Ramkuriya Bai (present appellant) has inherited his share in the property. The disputed property is joint family property and has never been partitioned. The appellant wrongly got mutated the entire property in her own name. As appellant was denying the right and share of plaintiffs in the property, therefore, they had filed a suit for declaration, partition and separate possession of their 1/4th - 1/4th share in the disputed property before the trial Court. During the pendency of this second appeal, respondent no.1 has died and her legal representatives have been brought on record. 3. The appellant in his written statement denied the entire allegations of plaint and stated that the disputed property is not ancestral property of Smt.Somati Bai. The property Khasra No.392 and 396 have been purchased by Buddhu on 13.4.1964 by a registered sale-deed and this is his self-acquired property. Rest of the disputed property belongs to Nanda, the father of Somati Bai and after his death Somati Bai being only daughter and heir became the owner of this property. Therefore, Somati Bai was the absolute owner of the disputed property. Rest of the disputed property belongs to Nanda, the father of Somati Bai and after his death Somati Bai being only daughter and heir became the owner of this property. Therefore, Somati Bai was the absolute owner of the disputed property. Somati Bai had executed a will dated 16.10.1971 in favour of Ramkuriya Bai. Therefore, after the death of Somati Bai the appellant Ramkuriya Bai has become the owner of entire disputed property by virtue of will and also sole heir of her father Buddhu. The plaintiffs have no right over the disputed property and suit filed by them is baseless and liable to be dismissed. 4. The trial court, after recording the evidence and hearing the parties, has arrived at the conclusion that the disputed property is a joint family property of appellant and respondents in which they have equal right of 1/4th - 1/4th share. The trial Court decreed the suit, declared 1/4th share of each plaintiffs and defendants and passed a decree of partition in favour of plaintiffs. 5. Being aggrieved by judgment and decree of learned trial court the appellant has preferred the appeal, which has been dismissed by recording a concurrent finding of the facts, as have been found proved by the trial Court. 6. In this second appeal, it has been submitted by the learned counsel for appellant that the Courts below have wrongly held that the disputed property is ancestral property of appellant and respondent nos. 1, 2 and 3. It is self-acquired property of Smt.Somati Bai, the mother of respondent nos.1, 2 and 3 and grand-mother of appellant. Smt. Somati Bai has right to alienate the property during her life time and she has executed a will in favour of the appellant on 16.10.1971. Therefore, after the death of Somati Bai the appellant has became the absolute owner of the property by virtue of said will. The appellant has filed an application under order 41 Rule 27 of CPC for permission to file alleged will dated 16.10.1971 and a sale-deed dated 13.4.1964. He has also filed an application under Order 18 Rule 17 of CPC for permission to re-examine the plaintiffs in evidence. These applications have been dismissed by the learned appellate Court without assigning any reason. These documents are important to establish the right of appellant on disputed property. Therefore, the learned appellate Court has committed illegality. 7. He has also filed an application under Order 18 Rule 17 of CPC for permission to re-examine the plaintiffs in evidence. These applications have been dismissed by the learned appellate Court without assigning any reason. These documents are important to establish the right of appellant on disputed property. Therefore, the learned appellate Court has committed illegality. 7. Considering the arguments of learned counsel for the appellant and on perusal of the records of both the Courts below, it appears that Somati Bai was the owner of the disputed property. It is concurrent finding of the Courts below that Somati Bai has acquired the property from her father Nanda as she was the only daughter. Therefore, Somati Bai was the absolute owner of the property and after her death, her son and daughters will get equal 1/4th - 1/4th share in the disputed property under sections 15 and 16 of the Hindu Succession Act. It is the appellant's case that Khasra Nos. 392 and 396 have been purchased by Buddhu on 13.4.1964 by a registered sale-deed and this is his self-acquired property. The burden to prove this fact lies upon appellant but she has not filed this sale-deed dated 13.4.1964 in the trial Court. The trial court and the appellate Court have considered the evidence of the appellant regarding purchase of above land and found that this fact has not been proved. This is the concurrent finding of the Courts below, which is based upon right appreciation of the evidence and does not call for any interference. 8. The Hon'ble Supreme Court in the case of Vidhyadhar Vs. Manikrao & Ors. (1999) 3 SCC 573 held that concurrent findings of fact recorded by Trial Court and First Appellate Court could not have been legally upset by High Court in second appeal unless such findings are shown to be perverse, being based on no evidence or on the evidence on record no reasonable person could have come to such conclusion. 9. Now the question arises whether the learned appellate Court has committed illegality in dismissing the application moved by appellant under Order 41 Rule 27 of CPC. By this application the appellant wanted to file the will dated 16.10.1971 and a sale-deed dated 13.4.1964 alleged to have been executed in favour of his father Buddhu. Hon'ble the Supreme Court in Karnataka Board of Wakf Vs. By this application the appellant wanted to file the will dated 16.10.1971 and a sale-deed dated 13.4.1964 alleged to have been executed in favour of his father Buddhu. Hon'ble the Supreme Court in Karnataka Board of Wakf Vs. Government of India (2004) 10 SCC 779 held that- the scope of Order 41 rule 27 is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment. 10. In present case, the appellant has not stated anything as to he had no knowledge of such additional evidence i.e. will and sale-deed despite due diligence. No reason is given for failure to produce document in trial Court which is sought to be produced in the Court of appeal. 11. Another important fact is that there is no pleading regarding alleged will has been made in the written statement of appellant/defendant no.1. It is settled law that in the absence of a plea no amount of evidence laid in relation thereto can be looked into. Hon'ble Supreme Court in the case of Nandkishore Lalbhai Mehta Vs.New Era Fabrics (2015) 9 SCC 755 reiterated in Para 16 as under:- “16. The principle was reiterated by this Court in Ram Sarup Gupta v. Bishun Narain Inter College: “6. … It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hairsplitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hairsplitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.” (emphasis supplied)” It is also pertinent to mention that appellant Smt.Ramkuriya Bai (D.W.1) in her statement before the trial Court has not stated anything regarding will. Appellant and other witnesses Galjhar did not state that Somati Bai had Smt.Kachra Bai (dead) and others executed the will in favour of appellant and bequeathed the property to her. Therefore in absence of pleadings regarding will, the appellant cannot be permitted to lead evidence in this regard. It is thus clear that the appellant was not able to demonstrate the existence of grounds as enumerated under Order 41 Rule 27 of CPC for permission to produce additional evidence. If Court cannot pronounce a judgment without additional evidence, additional evidence is to be taken. In this case, this situation does not arise. Therefore, the appellate Court has not committed any illegality in disallowing the application of appellant under Order 41 Rule 27 of CPC. 12. Therefore, after examination of the concurrent findings of the Courts below with the help of evidence on record, no error is found in it. The findings are based on correct appreciation of evidence and no illegality or perversity appears in it. 13. In the circumstances, I am of the considered opinion that no substantial question of law arises for adjudication in this present appeal. The findings are based on correct appreciation of evidence and no illegality or perversity appears in it. 13. In the circumstances, I am of the considered opinion that no substantial question of law arises for adjudication in this present appeal. The appeal filed by the appellant, being meritless, is accordingly dismissed.