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2018 DIGILAW 194 (MP)

Kamla Bai v. State of M. P.

2018-02-15

ASHOK KUMAR JOSHI

body2018
JUDGMENT : Ashok Kumar Joshi, J. The appellant/original plaintiff has filed this first appeal against the judgment and decree dated 12th February, 2001, passed by II Additional District Judge, Guna in Civil Suit No. 33A/1994, whereby the suit filed by the plaintiff for declaration that she is owner and possession holder of the suit house and it has No. nexus with the recovery of arrears of tax against M/s Manmohan Badriprasad and for perpetual injunction against the respondents from restraining them to auction the suit house in the above mentioned recovery proceedings. 2. Appellant-Kamlabai filed a suit before the trial Court on 11.7.1994 with the pleadings that the suit house situated in village Fatehgarh is of sole ownership and possession of the plaintiff, wherein she is residing with her husband and her husband is a teacher in government service. The plaintiff and her husband Radhamohan are No. having any connection with the business of concern M/s Manmohan Badriprasad Fatehgarh. Being a government teacher, her husband did No. do any business but defendant No. 2 has illegally attached the suit house in recovery proceedings regarding the arrears of sales tax against the above mentioned concern, against which the plaintiff filed her objection with the documents of her title in the relating Sales Tax Office but her objection was dismissed on 29th June, 2014. It is further pleaded that the plaintiff has constructed the suit house over the land bearing Survey No. 212, area 0.031 hectare of village Fatehgarh and in Kamlabai v. State of MP and another this relation against her a case of encroachment was registered by the government and she was fined, but the legal proceeding ultimately terminated in her favour. In encroachment proceedings, her husband Radha Mohan was also a party along with her. The defendants are proceeding for auction of her attached house, hence reliefs of above mentioned declaration and perpetual injunction were claimed. 3. In written statement filed by the defendants, it was pleaded that the disputed house is owned by the plaintiff and her husband Radha Mohan jointly and in the business of the above mentioned concern, the plaintiff's husband was conducting the business and was also representing the concern before the departmental proceedings of sales tax. 3. In written statement filed by the defendants, it was pleaded that the disputed house is owned by the plaintiff and her husband Radha Mohan jointly and in the business of the above mentioned concern, the plaintiff's husband was conducting the business and was also representing the concern before the departmental proceedings of sales tax. The plaintiff's husband was regularly depositing the taxes under different heads till 1978 and in Sales Tax Office in relating proceedings, Radha Mohan had signed on the Vakalatnama filed on behalf of the above mentioned concern. Relating statements were regularly submitted in the Sales Tax Department signed by Radha Mohan himself and he was personally appearing in the relating recovery proceedings, hence the plaintiff and her husband are well acquainted with the arrears of sales tax and the suit is filed in the name of wife by the husband to evade his tax liability, whereas both are jointly living and plaintiff was No. having any separate earnings. The suit house is constructed from the income of the above mentioned concern and, hence, the suit house is totally liable for auctioning it under recovery proceedings and the plaintiff is No. entitled for any relief. 4. The Trial Court on pleadings framed issues and Kamlabai v. State of MP and another before the trial Court, Jagir Singh (PW-1), Jamunalal (PW-2) and plaintiff Kamla Bai (PW-3) were examined on behalf of the plaintiff and for the defendants, Rambabu Bhargava (DW-1) and Anil Kumar Sharma (DW-2) were examined which were employees of the Sales Tax Department. After hearing, the trial Court recorded its finding in the impugned judgment that it was No. proved that the plaintiff is the sole owner and title holder of the suit house, and similarly it was also No. proved that the suit house is No. liable for auction in recovery proceedings of arrears of sales tax against M/s Manmohan Badriprasad Fatehgarh and ultimately the plaintiff's suit is dismissed. 5. The point for consideration is that whether the trial Court erred in recording the above mentioned findings ? 6. Admittedly, the appellant's husband Radha Mohan expired during the pendency of the suit before the trial Court. 7. 5. The point for consideration is that whether the trial Court erred in recording the above mentioned findings ? 6. Admittedly, the appellant's husband Radha Mohan expired during the pendency of the suit before the trial Court. 7. Learned counsel for the appellant contended that even the defence witnesses clearly admitted that the plaintiff's husband was a teacher in government service and he remained posted at different places in District Guna for different periods, hence he was unable to do business in the concern titled M/s Manmohan Badriprasad and it was proved by the oral and documentary evidence of the plaintiff's witnesses that the house is of sole ownership and possession of the plaintiff but the trial Court erred in recording adverse findings. Hence, it is prayed that appeal be allowed and appellant's suit be decreed. 8. Per Contra, learned Government Advocate on behalf of the respondents submits that the findings of Kamlabai v. State of MP and another the trial Court are based on legal and proper appreciation and analysis of oral and documentary evidence produced by both of the parties before the trial Court and from the original documents proved by the defendants' witnesses, it was proved that the plaintiff's husband Radha Mohan was doing business and representing the above mentioned concern before the Sales Tax Department, hence dismissal of the appeal is prayed. 9. It is well established that the evidence filed by any party beyond the limits of its pleadings is No. considerable in civil cases. It was clearly pleaded by the plaintiff in her plaint that in relation to construction of suit house, encroachment proceedings were initiated by the government against her and her husband and she was fined, but surprisingly No. any documentary evidence of encroachment proceedings was filed and proved by the plaintiff before the trial Court. Contrary to her pleading, plaintiff Kamla Bai (PW-3) deposed in her examination-in-chief (para 5) that the land on which she constructed the house, was allotted to her by the relating Panchayat under the direction of the Collector, as she had given Rs. 1000/- as her contribution in construction of a school, but No. any documentary evidence regarding allotment of relating land to the plaintiff by Panchayat was filed. Hence, there is material deviation or variance in plaintiff's evidence and her pleadings. 10. 1000/- as her contribution in construction of a school, but No. any documentary evidence regarding allotment of relating land to the plaintiff by Panchayat was filed. Hence, there is material deviation or variance in plaintiff's evidence and her pleadings. 10. The law is well settled that No. extraneous evidence can be looked into in the absence of specific pleadings in that regard. Evidence has to be tailored, strictly according to pleadings, and cannot be a probing Kamlabai v. State of MP and another adventure in the dark, filing surprise to the opposite party. It has been observed by a Division Bench of this Court in the case of Sukhram v. Baldeodas Manilal ( AIR 1957 MP 138 ) in para 9 of its judgment as follows:- "(9) .................. It is settled law that decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found by the Court: Messrs. Trojan & Co. v. R.M. N.N. Nagappa Chettiar, AIR 1953 SC 235 ." In the present case, the evidence of plaintiff that the land relating to suit house was allotted to her by Panchayat is obviously contrary to her own pleadings. Dulichand v. Prahladsingh, 1983 MPWN 259 . 11. The plaintiff's evidence is No. supported even by her witnesses Jagir Singh (PW-1) and Jamunalal (PW-2), who had previously held the post of Sarpanch and Deputy Sarpanch of the relating Gram Panchayat respectively. Jagir Singh (PW-1) deposed that when he was Sarpanch, then relating land was allotted by the Collector to the plaintiff for construction of her house. Jamunalal (PW-2) deposed that after getting government land, plaintiff constructed suit house and prior to construction plaintiff made her possession over the land and thereafter land was allotted to her, but it is clear that on the point of source of title, the evidence of appellant's witness is No. mutually consistent, rather contradictory and in absence of any documentary evidence, it could No. be believed that government or Panchayat's land was allotted to the plaintiff for constructing the house. 12. Much emphasis has been given by the learned Kamlabai v. State of MP and another counsel for the appellant on the receipt of water tax (Ex. P/1) and electricity bills (Ex.P/2 to Ex.P/7) of suit house which are bearing plaintiff's name only. 12. Much emphasis has been given by the learned Kamlabai v. State of MP and another counsel for the appellant on the receipt of water tax (Ex. P/1) and electricity bills (Ex.P/2 to Ex.P/7) of suit house which are bearing plaintiff's name only. It is well established that the receipts regarding payment of taxes like water tax or property tax in relation to housing property or receipts of payment of land revenue regarding agricultural lands are No. evidence of title as relating records are kept only for fiscal purposes of recovery of taxes or service. Two certificates issued by different Sarpanch, Ex.P/8, appearing to be signed by Sarpanch Jagir Singh (PW-1) and another certificate Ex.P/9 signed by another Sarpanch Ramadevi, are certifying that the suit house is of sole ownership and possession of Kamlabai but Ex.P/8 was No. formally proved by Jagir Singh (PW-1) and it is No. bearing any date of its issuance. In Ex.P/8, it is also mentioned that the monthly income of the plaintiff Kamla Bai is No. more than Rs. 300/- and source of her income is tailoring work and rent of the shop. On one side the plaintiff pleaded that she encroached over the government land and constructed the house from her own income which is even contradicted by Ex.P/8. Ex.P/8 impliedly indicates that there is a shop in the plaintiff's house. These certificates issued by any Sarpanch could hardly be said to be documentary evidence of the title of anyone. It is clear from the total evidence of the plaintiff's witnesses and her pleadings that at the time of presentation of the plaint, the plaintiff's husband Radha Mohan was residing with her wife-plaintiff and there was No. any conflict of interest between them. Hence, it is clear that the finding of the trial Court that the plaintiff remained unsuccessful in proving her sole ownership on suit house appears to Kamlabai v. State of MP and another be totally and legally justified. 13. Much emphasis has been laid by the learned counsel for the appellant that her late husband Radha Mohan was a government teacher, hence he could No. do any business and it is contended that it was No. proved by the defendants' evidence that Radha Mohan was connected with the business of M/s Manmohan Badriprasad. 13. Much emphasis has been laid by the learned counsel for the appellant that her late husband Radha Mohan was a government teacher, hence he could No. do any business and it is contended that it was No. proved by the defendants' evidence that Radha Mohan was connected with the business of M/s Manmohan Badriprasad. It is also deposed by the defendants' witness Rambabu Bhargava (DW-1), Assistant Grade-2, Sales Tax, who had brought original record from the Sales Tax Department regarding above mentioned concern that the plaintiff's husband Radha Mohan was a government teacher. Anil Kumar Sharma (DW-2) relating Sales Tax Inspector, deposed that in recovery proceedings, he had gone to village Fatehgarh and had submitted his written report, Ex.D/11, and on the same day, i.e., 8.2.1988 prepared Panchanama (Ex.D/2). He had given enquiry report (Ex.D-11) and submitted an 'Outline Diagram' of the suit house (Ex.D/13) to the department, wherein the four-boundaries of the suit house are mentioned. 14. Much emphasis by the appellant's learned counsel has been laid on the fact which finds mention in para 14 of the statement of Rambabu Bhargava (DW-1) that Sales Tax Department had No. received and even tried to get documentary evidence relating to ownership of the suit house. It is well established that the plaintiff has to prove his pleadings by his evidence and it is clear that No. documentary evidence regarding alleged title of the plaintiff over the land, on which the suit house stood, was produced by the plaintiff. Undisputedly, relating house is standing on that land, wherein the plaintiff is Kamlabai v. State of MP and another presently residing and prior to death of her husband, he was also jointly residing with her. 15. Some original documents from the record of the Sales Tax Department are proved and available with the record of the trial Court, among which many documents are bearing the signature of Radha Mohan Gupta. In her cross-examination, the plaintiff deposed that she is No. much educated lady, hence she could No. identify her husband's signature but the original documents which are more than 30 years old could No. be disbelieved and could be presumed under the provisions of the Evidence Act to be correct. The plaintiff deposed in her cross-examination (para 6) that her husband was No. having any brother named Manmohan and there is No. any person in her family named Manmohan. 16. The plaintiff deposed in her cross-examination (para 6) that her husband was No. having any brother named Manmohan and there is No. any person in her family named Manmohan. 16. The defendants' witnesses have proved the original written statements given by and signed by Radha Mohan before the Sales Tax Inspector (Ex.D/2 and Ex.D/3). In the written statement dated 10.9.1965, signed by Radha Mohan, the pedigree of Radha Mohan's family is mentioned, according to which Radha Mohan's real brothers were Nandkishore, Omprakash, Manmohan and Jugalkishore and it is also clear that in the year 1965, younger brother of the plaintiff's husband, named Manmohan, was only 14 years old and was a student. Hence, it is clear that plaintiff Kamla Bai's falsehood is unlimited. 17. From Exts. D/2 and D/3, both signed statements of Radha Mohan, it is clear that previously business was conducted under the title of concern M/s Manmohan Jugalkishore, Binaganj. The plaintiff has deposed in her cross-examination that before coming to Fatehgarh in Kamlabai v. State of MP and another the year 1970, her husband was residing at Binaganj, where her father-in-law Mangiram was residing. An original inland letter bearing postal stamps indicating dates and names of the post offices (Ex.D/4) dated 21.9.1965 indicates that this letter was signed and sent by Radha Mohan Gupta, teacher posted in Middle School Binaganj at that time on behalf of ' M/s Manmohan Jugalkishore' intimating his inability to appear before the Sales Tax Officer, Circle Guna on fixed date of hearing 20.10.1965, as during relevant period he was busy in treatment of his mother at Mental Hospital, Gwalior. On behalf of M/s Manmohan Jugalkishore Binaganj, this inland letter was written by the plaintiff's husband. 18. The order sheet of concerning Sales Tax Officer containing different proceedings happened on dates 21.7.1982 and 18.9.1982 are having signatures of Radha Mohan Gupta and on Ex.D/7 (original order sheet) recorded proceedings dated 21.7.1982 and 18.9.1982, presence of trader Radha Mohan is specifically recorded and in the proceeding dated 18.9.1982, presence of trader Radha Mohan with his authorised counsel Shri K.C.Jain is marked. Relating original power of attorney (Ex. D-25) filed on behalf of M/s Manmohan Badriprasad Fatehgarh before the Additional Sales Tax Officer, Guna, is bearing signature of Late Radha Mohan Gupta (husband of plaintiff). Relating original power of attorney (Ex. D-25) filed on behalf of M/s Manmohan Badriprasad Fatehgarh before the Additional Sales Tax Officer, Guna, is bearing signature of Late Radha Mohan Gupta (husband of plaintiff). The original statement Ex.D/10, sent on behalf of relating concern, is also bearing signature of Radha Mohan Gupta and in written enquiry report (Ex.D/11) submitted by Sales Tax Inspector Anil Kumar Sharma (DW-2) on 10.2.1988, it is mentioned that on 8.2.1988 he reached at the work place of the relating concern and tried to meet the trader Badriprasad, who Kamlabai v. State of MP and another was shown as proprietor of the concern in the registration, but at relating place Badriprasad was No. present and his father teacher met him, who intimated him that Badriprasad had gone outside and Ex.D/11 was submitted with original Panchnama Ex.D/12, prepared on 8.2.1988 in presence of indicated Panch witnesses, wherein it is also mentioned that on relating date the father of the businessman, who was available at the house, denied from paying arrears of sales tax and it is also mentioned in Ex.D/12 that Badriprasad is generally residing outside from Fatehgarh and his father teacher is doing the work of purchasing and selling. 19. Plaintiff Kamlabai (PW-3) clearly deposed that No. business was being conducted from the suit house by any concern, but in the original order sheet dated 21.1.1971 (Ex.D/1) of Sales Tax Officer, Guna, working place of M/s Manmohan Badriprasad Fatehgarh is shown at Fatehgarh and the starting date by relating concern is shown as 1.6.1970 and in the hand-written proceeding signed by the concerning officer, it is clearly mentioned that the relating concern is having a godown with a shop in the house of Smt. Kamla Bai at Fatehgarh. Similarly, in registration certificate (Ex. D-27) issued by the Sales Tax Officer, Guna on 1.11.1971 to the concern M/s Manmohan Badriprasad, its proprietor is shown as Manmohan and in other printed column relating to godown, in hand-written portion it is recorded that 'godown with a shop in house of Kamla Bai at Fatehgarh'. From such old original documents it is clear that the relating concern was doing its business from the suit house itself. In registration certificate (Ex. D-27) or in other papers of the department, the relevant entries Kamlabai v. State of MP and another are made on the basis of information given by the relating businessman. From such old original documents it is clear that the relating concern was doing its business from the suit house itself. In registration certificate (Ex. D-27) or in other papers of the department, the relevant entries Kamlabai v. State of MP and another are made on the basis of information given by the relating businessman. From copy of the No. ice (Ex. D- 5C) sent by Additional Tahsildar and Sales Tax Officer, Circle Guna dated 29.6.1994 to Radha Mohan teacher, it is clear that it was recorded in this No. ice that Radha Mohan obtained registration certificate from the department in the name of M/s Manmohan Badriprasad Fatehgarh and he received the registration certificate from the office after giving written receipt and his mother stated in the department that the business of concern was done only by Radha Mohan and No. by Manmohan. It is also mentioned in the No. ice that on behalf of relating concern, only Radha Mohan was replying different No. ices sent by the department and was submitting relating statements in the tax assessment cases for different years. In the same No. ice, it is also mentioned that he is a government servant, hence he obtained registration in the name of his brother Manmohan and was doing the business of grains and cotton. 20. It is clear pleading and evidence of the plaintiff Kamla Bai (PW-3) that her husband Radha Mohan was living with her in his life time. From Ex.D/6 it is clear that Radha Mohan gave written reply that he has No. obtained registration certificate and was No. doing any business and he is No. liable for any recovery of arrears of relating tax against the concern, but in this original reply Radha Mohan mentioned that the proprietor of the concern is liable for the payment of tax, however in Ex.D/6 it is No. mentioned that who are Manmohan and Badriprasad and what is their relation with Radha Mohan. 21. It was clearly proved from the old document that actually Radha Mohan was doing the business under the title of M/s Manmohan Badriprasad Fatehgarh. 21. It was clearly proved from the old document that actually Radha Mohan was doing the business under the title of M/s Manmohan Badriprasad Fatehgarh. Cleverly the plaintiff has No. pleaded that whether M/s Manmohan Badriprasad is a partnership concern or a proprietory concern, but from the original documentary evidence and evidence of the defendants' witnesses it is clearly proved that the plaintiff's husband Radha Mohan was doing and conducting the business under the title of M/s Manmohan Badriprasad, though he was a government teacher. There was No. reason to disbelieve the old documentary departmental evidence proved by Rambabu Bhargava (DW-1) and Anil Kumar Sharma (DW-2). 22. From the above discussion, I am of the considered view that the trial Court has properly and legally analyzed the oral and documentary evidence produced before it by both of the parties and it has No. committed any error in law or in appreciating the evidence on facts. 23. In view of the aforesaid, the appellant's appeal is devoid of merits. Consequently, the appeal of the appellant is liable to be and is hereby dismissed. Record of the case be sent to the concerned trial Court. The appellant shall also bear the cost of the present respondents in respect of this appeal. A decree be drawn accordingly.