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2017 DIGILAW 509 (GUJ)

Alka Arun Kanitkar v. Vasudev Sadasiv Mhaskar

2017-03-06

RAJESH H.SHUKLA

body2017
JUDGMENT : Rajesh H. Shukla, J. 1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure by the Appellant/Original Defendant No. 1/5 being aggrieved with the impugned judgment and order in Regular Civil Appeal No. 35 of 2005 by the learned Additional Sessions Judge, Vadodara, confirming the judgment and order in Special Civil Suit No. 229 of 1980 (New Regular Civil Suit No. 1019/1994) dated 10.2.2005 posing the substantial questions of law as follows: "(a) Whether the provisions of Section 14(1) of the Hindu Succession Act, 1956 are applicable in the facts and circumstances of the present case? (b) Whether the compromise decree passed in Special Civil Suit No. 244 of 1949 is null and void in view of the enactment of the Hindu Succession Act in the year 1956 and as per provisions of Section 14(1) of the said Act, the right has been created in favour of Smt. Manoramabai, whether the decree passed in the aforesaid sit is null and void? (c) When admittedly late Shri Sadasiv Mhaskar had have two wives, viz. Girjabai and Manoramabai and the suit property was originally belonged to late Shri Sadasiv Mhaskar, whether the suit property is required to be divided into equal share as admittedly there is no legal heirs of both the wives? (d) Whether the respondent No. 1 - original plaintiff who is adopted son and subsequently, Special Civil Suit No. 214 of 1949 is decreed is a valid compromise decree, as admittedly at the relevant time the respondent No. 1 was minor? (e) Whether the trial court has taken sufficient care while passing the compromise decree under Order 23 Rule 1 and 2, as admittedly the present respondent No. 1 - original plaintiff was just 4 years of age? (f) Whether both the Courts below were justified in placing reliance upon consent decree passed in Special Civil Suit No. 244 of 1949? (g) In view of withdrawal of the Special Civil Suit No. 280 of 1966 by Smt. Manoramabai on 24.13.1970, whether it can be said that said Smt. Manoramabai has waived her right in the suit property? (h) Whether the respondent No. 1 - original plaintiff has waived his right as without any disturbance the appellate/original defendant is in possession of the suit premises since number of years?" 2. (h) Whether the respondent No. 1 - original plaintiff has waived his right as without any disturbance the appellate/original defendant is in possession of the suit premises since number of years?" 2. The background of the facts narrated by learned Counsel Shri Ashok Agarwal appearing with learned Advocate Shri Tushar N. Vyas for the Appellant with reference to the chequerred history that one Sadashiv Mhaskar had two wives; one Girjabai and another Manoramabai. The present Appellant/Original Defendant No. 1/5 is the adopted son of Manoramabai and the present Respondent is the adopted son of Girjabai. The issue involved is with reference to the provisions of the Hindu Succession Act (hereinafter referred to as "the Act") after the amendment in 1956 and also the claim with regard to the conversion of the limited interest into full ownership as per the provisions of Section 14 of the Act. 3. Learned Counsel Shri Ashok Agarwal appearing with learned Advocate Shri Tushar N. Vyas for the Appellant has referred to the papers at length and submitted that both the courts below have totally misdirected in not appreciating the statutory provisions of the Act which have also been interpreted by the Hon'ble Apex Court. He submitted that the court below has committed mistake in framing the issues, for which he pointedly referred to paragraph 4 of the judgment of the trial court and emphasized that the issue No. 1 itself is defective. He submitted that the issues indicate that the court below has committed an error regarding the burden of proof, which is required to be discharged by the parties. He pointedly referred to Section 14 of the Act and tried to submit that as per this provision, Section 14(1) of the Act would be applicable, which has not been properly appreciated by both the courts below. Learned Counsel Shri Agarwal has submitted that in 1980, Manoramabai has expired and the Appellant filed the suit. He submitted that the suit for possession of the property was also filed by Manoramabai and the property is in possession of the Appellant. 4. Learned Counsel Shri Agarwal referred to Section 14 of the Act with explanation and submitted that Section 14(2) of the Act at the most could be considered as proviso but cannot control the provisions of Section 14 of the Act. 4. Learned Counsel Shri Agarwal referred to Section 14 of the Act with explanation and submitted that Section 14(2) of the Act at the most could be considered as proviso but cannot control the provisions of Section 14 of the Act. In support of this contention, learned Counsel Shri Agarwal has referred to and relied upon the judgment of the Hon'ble Apex Court in case of V. Tulasamma & Others vs. Sesha Reddy (Dead) By L.Rs. (1977) 3 SCC 99 and emphasized the observations made in paragraphs 4, 20 and 32. Learned Counsel Shri Agarwal emphasized that the Hon'ble Apex Court in paragraph 20 has discussed with regard to the interpretation of Shastric Hindu Law and what would be the effect in light of the amendment in the Hindu Succession Act. Learned Counsel Shri Agarwal therefore submitted that the right of maintenance is a pre-existing right, which existed in Hindu Law (uncodified law), would enlarge into a full ownership right which has also been considered. Learned Counsel Shri Agarwal referred to the observations regarding Section 14 of the Act and also emphasized that the Hon'ble Apex Court has considered Section 14 in paragraph 32, and therefore, once the position is accepted, the courts below have totally misdirected. He also referred to the judgment of the Hon'ble Apex Court in case of Nazar Singh and Others vs. Jagjit Kaur & Others, (1996) 1 SCC 35 as well as the judgment of the Hon'ble Apex Court in case of R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752 and emphasized the observations made in paragraphs 28 and 29 to support his contention as to what would be the meaning attributed to the word "proved" and "not proved" as per the Evidence Act. Therefore, again referring to the issues, he strenuously submitted that the court below has made an error in casting an obligation upon the Appellant/Original Defendant No. 5 to establish about his right. However, he submitted that as sought to be claimed, even if it is assumed that the Appellant is a trespasser, the fact remains that he is in possession for many years, and therefore, the possession of the trespasser deserve to be protected against all except the person having a better right or title. However, he submitted that as sought to be claimed, even if it is assumed that the Appellant is a trespasser, the fact remains that he is in possession for many years, and therefore, the possession of the trespasser deserve to be protected against all except the person having a better right or title. Therefore, he submitted that the Respondent/Original Plaintiff has to first prove about his title but he has failed to establish his right, title, interest except the consent decree which has been relied upon. He therefore strenuously submitted that it was obligatory for the Respondents to establish the right by independent evidence. He also referred to the observations made in the judgment and submitted that both the courts have misdirected in appreciating the fact that the Appellant is the adopted son of Manoramabai and therefore, the present Appeal may be admitted. 5. Per contra; learned Counsel Shri S.P. Majmudar for the Respondents has referred to the background of the facts and submitted that the chequerred history of litigation would suggest that the litigation is pursued as and by way of an abuse of the proceedings of the court. He submitted that in spite of having the consent decree, the Respondents are not able to get the possession for many years. He submitted that this is one more attempt only to prolong the litigation though the earlier Special Civil Suit No. 280 of 1966, which was filed seeking the same relief was withdrawn. He emphasized that the courts below have discussed threadbare on this aspect, and after appreciating the material and evidence including the provisions of Section 14 of the Act vis-à-vis the consent decree, the concurrent findings of facts are given. 6. Learned Counsel Shri Majmudar therefore submitted that in fact the appeal or the proceedings would be barred by Order 2 Rule 2. Learned Counsel Shri Majmudar submitted that apart from that, as could be seen from the observations made in the judgment by the court below, the Appellant herein had admittedly not produced any material or evidence to establish that he is the adopted son of Manoramabai. It has been clearly observed: ".......And that is why, there is no reason to not believe the oral evidence as well as documentary evidence of the plaintiff. It has been clearly observed: ".......And that is why, there is no reason to not believe the oral evidence as well as documentary evidence of the plaintiff. Here in this case, it is established that the present plaintiff Vasudev is only successor to deceased Girjabai and Manoramabai, and the defendants have failed to produced any documentary evidence showing their rights, title or interest over the disputed premises." 7. Learned Counsel Shri Majmudar therefore submitted that thereafter an application under Order 9 Rule 13 was also made which also came to be dismissed. Learned Counsel Shri Majmudar submitted that there is no quarrel with regard to the judgment interpreting the statutory provisions of Section 14 of the Act. However, the Appellant has to first establish that he is the adopted son by cogent evidence, and as recorded by both the courts below, he has failed to produce any evidence. Learned Counsel Shri Majmudar submitted that mere averments would not be sufficient, and therefore, unless the very basis of adoption or the fact that he is an adopted son of Manoromabai is established, no claim could be made by him. He also referred to the consent decree produced on record with the entry and submitted that the consent decree is the right, title, interest of the Respondent-Original Plaintiff is not even in dispute and it has been evident from the consent decree. He therefore submitted that the submission with regard to the burden of proof etc. are misconceived. He therefore submitted that in view of the concurrent findings of facts on appreciation of material and evidence, the present Second Appeal may not be entertained which would otherwise give handle to the Appellant to prolong the litigation by way of abuse of process of the court. 8. In rejoinder, learned Counsel Shri Ashok Agarwal again referred to the background of the facts and submitted that Section 14 of the Act which has been interpreted, leaves no doubt that the limited right would get converted into the full ownership right. He therefore submitted that the decree which has been relied upon is only making a note of an entry which by itself would not be a document of title qua the Respondents. He therefore submitted that the decree which has been relied upon is only making a note of an entry which by itself would not be a document of title qua the Respondents. Learned Counsel Shri Agarwal therefore submitted that, as the Respondent/Original Plaintiff has also failed to establish about his adoption and the title to the property, the Appellant cannot be asked to vacate, as his possession deserves to be protected against all except the person having the better title. 9. Learned Counsel Shri Agarwal referred to and relied upon the judgment of the Hon'ble Apex Court in a judgment in case of Imrit Konwur and Another vs. Roop Narain Singh, 1880 SCC Online PC 21 : 6 Cal LR 76 to support his contention about the burden of proof and the evidence regarding adoption. Learned Counsel Shri Agarwal emphasized that even though there is a compromise decree and admission of the adoption, it has to be established by evidence. He also referred to and relied upon the judgment of the Privy Council in case of Mahanth Singh vs. U BA YI and the Another judgment of the Hon'ble Apex Court in case of Lachman Singh vs. Kirpa Singh and Others, (1987) 2 SCC 547 to support his contention. 10. In view of these rival submissions, it is required to be considered whether the present Appeal deserve consideration. 11. As could be seen from the background of the facts and the discussions made at length by both the courts below, the Appellant herein is making a claim as an adopted son of Manoramabai, who is said to have expired. However, it is not in dispute that there is no evidence placed on record in spite of the opportunity about his adoption, which has been discussed in the judgment by the court below as stated above. Further, it is not in dispute that there is a consent decree which has been produced on record and the fact of adoption of the Respondent by Girjabai has been accepted, and on that basis, the consent decree has been produced. Again, as referred to in the judgment earlier, the suit was filed being Civil Suit No. 280 of 1966 for the similar prayer or the relief and it came to be withdrawn unconditionally in 1975. Again, as referred to in the judgment earlier, the suit was filed being Civil Suit No. 280 of 1966 for the similar prayer or the relief and it came to be withdrawn unconditionally in 1975. Assuming that it may not come in the way, the fact remains that the Appellant herein has not been able to establish before the court about the basis on which he is making the claim as the son of Manoramabai. Therefore, the burden would lie on the person who makes a claim based on certain facts or the events. Therefore, when the burden is cast as per the issues framed, which have not been discharged, the findings given by the courts below cannot be said to be erroneous. 12. Again, if there was any error in framing the issues, it would be for the party to raise an objection and insist that the court may recast the issues before the trial has commenced. Admittedly, no such steps have been taken. Therefore, though learned Counsel Shri Ashok Agarwal has been arguing on the aspect of burden of proof and the issues, the fact remains that no steps or contentions have been taken at the appropriate stage in the trial. Such contentions are sought to be raised in the Second Appeal. The submissions which have been made with much emphasis on Section 14 of the Act has a reference to the right of a Hindu woman and conversion of such a right into full ownership right because of the statutory provisions or the amendment in the Hindu Succession Act. However, before any such claim could be made, the person has to lay a foundation for making a claim that he is the adopted son and the mere averments would not be sufficient. Admittedly, the Appellant has not laid any foundation nor produced any material or evidence which has been noted by the courts below. Therefore, it is now too late in the light of the day to raise any issue regarding the burden of proof or questioning the title or the right of the Respondent/ Original Plaintiff. It may be stated that the issues regarding the burden of proof, evidence or the proof have not been pursued or raised during the trial or at the first appellate stage. It may be stated that the issues regarding the burden of proof, evidence or the proof have not been pursued or raised during the trial or at the first appellate stage. Therefore, the submissions made by learned Counsel that the Respondent/Original Plaintiff has no right, title, interest in spite of the fact that there is a compromise decree, is misconceived. The Appellant has not been candid for the consent decree and is trying to protract the litigation one way or the other to deny the rights of the Respondent/Original Plaintiff in spite of the compromise decree. In the compromise decree, both the sides have completely accepted that the Respondent is the adopted son of Girjabai and on that basis the compromise decree is passed, for which the entries are also made. There is no justification on this aspect by the Appellant and therefore the Appellant cannot be permitted to have one more attempt to set at naught the compromise decree on such a ground sought to be raised regarding the burden of proof and the title of the Respondent/Original Plaintiff. Though the Appellant had ample opportunity and in fact having availed the every opportunity, has failed to even establish about the fact of his own adoption that he is an adopted son of Manoramabai. Therefore, he cannot now be permitted to challenge the concurrent findings of facts posing the questions of law which have to be considered in background of the facts and not in abstract. Therefore, as the Appellant has failed to establish by evidence the very basis or the foundation about his adoption, he cannot be said to have any right, title, interest as adopted son of Manoramabai. Therefore the submissions which have been made at length referring to Section of the Act are without any merit. 13. It is well accepted that the High Court would not disturb the concurrent findings of facts unless a substantial question of law is said to have been involved. The Hon'ble Apex Court has laid down the broad guidelines with regard to the scope of Section 100 of the Code after the amendment in the Code in 1976 expressing a word of caution that the concurrent findings of facts may not be disturbed. The Hon'ble Apex Court has laid down the broad guidelines with regard to the scope of Section 100 of the Code after the amendment in the Code in 1976 expressing a word of caution that the concurrent findings of facts may not be disturbed. Moreover, the Hon'ble Apex Court in a judgment in case of Gurdev Kaur & Others vs. Kaki & Others, 2007 (1) SCC 546 has clearly observed: "Now, High Courts can interfere thereunder only where substantial questions of law are involved and have been formulated in the memorandum of appeal - The amendment clearly indicates that the legislature never intended the second appeal to become a third trial on facts or one more dice in the gamble." 14. In the circumstances, the present Second Appeal cannot be entertained and deserve to be dismissed and accordingly stands dismissed. Civil Application also accordingly stands dismissed. Appeal Dismissed.