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2019 DIGILAW 2304 (ALL)

Chandra Shekhar Dead v. Shiv Prasad

2019-10-01

SIDDHARTHA VARMA

body2019
JUDGMENT : Siddhartha Varma, J. This Second Appeal has been filed against the judgment and decree of the First Appellate Court by which the First Appeal filed by the respondent nos.1, 2, 3, 4, 5, 6, 7, 8/1 and 8/2 was allowed and the judgment and decree of the Trial Court passed in Suit No.282 of 2000 was set-aside and the suit was dismissed in toto after holding that the Civil Court had no right to entertain the suit. 2. The brief facts of the case are that when the father of the plaintiffs-appellant nos.1, 2 and 3 late Lalsa began to sell off certain properties beyond his share then the plaintiffs-appellants filed a suit being Original Suit No.282 of 2000. The plaint allegations were that the plaintiffs who were the sons of Lalsa were born prior to abolition of zamindari and, therefore, they had 3/4th share in the total property owned by their father and since it was alleged that the father had only 1/4th share in the property, the other brothers namely respondent nos.3, 4, 5, 6 and 7 were, though the sons of their father Lalsa, (from a different mother) could claim only the share of their father. The name of the mother of the plaintiffs was Reshma whereas the name of the mother of respondent nos.3 to 7 was Alaina. The further case taken by the plaintiffs in the plaint was that when their father had tried to sell off certain properties, then they had filed a suit in the Court of Munsif, Muhammadabad, Azamgarh being Suit No.630 of 1993 which was decreed on 21.1.1995 and it was held therein that the plaintiffs were the share-holders of the 3/4 of the entire property. The father of the plaintiffs had tried to get this decree recalled but the recall application under Order IX Rule 13 C.P.C. was dismissed on 11.7.2001 on the ground that it was barred by limitation. The appeal filed against the order dated 11.7.2001 was also dismissed on 10.8.2001. The contesting respondents filed a writ petition being Writ Petition No.35724 of 2001 against the judgment dated 10.8.2001 but this writ petition was also dismissed on 9.9.2003 by the High Court and since the contesting respondents had not challenged the judgment and order of the writ Court dated 9.9.2003, the decree passed in the Suit on 21.1.1995 continued. The contesting respondents filed a writ petition being Writ Petition No.35724 of 2001 against the judgment dated 10.8.2001 but this writ petition was also dismissed on 9.9.2003 by the High Court and since the contesting respondents had not challenged the judgment and order of the writ Court dated 9.9.2003, the decree passed in the Suit on 21.1.1995 continued. The further case taken in the plaint was that the plaintiffs were living, along with their father, in a joint hindu family and when zamindari was abolished in the State of Uttar Pradesh, since the plaintiffs had already taken birth before the abolition of zamindari, they became owners of 3/4th share of the property in dispute. The suit essentially was, therefore, filed with a prayer that the sale deeds dated 18.4.2000, 22.4.2000 and 24.4.2000 executed by the father of the plaintiffs in excess of his share be set-aside and the plaintiffs be allowed to continue to enjoy the 3/4th share of the property in question and that their possession be not disturbed. The defendants i.e. the purchasers of the properties and the father of the plaintiffs contested the suit and stated that the written statement which had been filed in the earlier suit which was alleged to have been filed by the father was in fact never filed by the father and, therefore, there was no admission in the Suit No.630 of 1993 of the respondent-father. The further case taken in the written statement by the father was that since the decree was an ex-parte one, it was not binding either on him or on his purchasers. 3. The defendants' case was that when the plaintiffs were not entered in the revenue records at the time when zamindari was abolished, it was essential that they took a declaration of their rights under section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1951. It was also the case of the defendants that the plaintiffs had not objected to the entry of the name of the father namely Lalsa in the consolidation operation also and, therefore, the suit was also barred by the provisions of section 49 of the U.P. Consolidation of Holdings Act. The suit was, after striking of issues, decreed on 31.8.2012 and thereafter the respondents who were the buyers of the property along with the Lalsa filed a First Appeal being First Appeal No.203 of 2012. The suit was, after striking of issues, decreed on 31.8.2012 and thereafter the respondents who were the buyers of the property along with the Lalsa filed a First Appeal being First Appeal No.203 of 2012. The First Appellate Court upon finding that the father alone was entered at the time when zamindari was abolished, the plaintiffs ought to have filed a suit for declaration before getting the sale deeds cancelled. The appellants also took a ground in the appeal that since the plaintiffs were not entered and since they had not filed any suit for declaration, the suit itself was not maintainable before the Civil Court. The First Appellate Court agreed with the grounds taken by the defendants and allowed the First Appeal and held that the Trial Court had exceeded its jurisdiction in entertaining the suit and after allowing the First Appeal dismissed the suit. 4. The instant Second Appeal was admitted on 9.1.2017 and the following questions of law were framed : "i) Whether the judgement of the Appellate Court is based on the misreading and mis-appreciation of the evidence and perverse? (ii) Whether father of the plaintiff has a right to execute the sale deed in respect of the ancestral property ignoring the injunction granted by the Trial Court in suit no. 630 of 1993? (iii) Whether injunction issued in the suit no. 630 of 1993 could have been ignored by the defendant, Lalsa in respect respondent nos. 1 to 7 being a nullity." 5. A further question of law which was framed and argued at the time of hearing was "whether the trial Court was right in coming to a conclusion that the suit as was filed before the Civil Court was barred". 6. Learned counsel for the appellants and the respondents had filed their written arguments. 7. A further question of law which was framed and argued at the time of hearing was "whether the trial Court was right in coming to a conclusion that the suit as was filed before the Civil Court was barred". 6. Learned counsel for the appellants and the respondents had filed their written arguments. 7. Learned counsel appearing for the plaintiff-appellants chiefly relied upon the Full Bench decision of this Court in Ram Awalamb vs. Jata Shankar, (1968) RevDec 470 and relying upon paragraph 44 submitted that, though the property in question was a joint property between the plaintiffs and their father before the U.P. Zamindari Abolition and Land Reforms Act, 1951 was notified, after the abolition of zamindari every member of the joint hindu family had to be considered a separate unit for the exercise of the right of transfer and also for the purposes of devolution of the bhumidhari interest of any deceased member. Since, learned counsel for the appellants referred to paragraph 44 of the judgment in Ram Awalamb (supra), the same is being reproduced here as under :- "44. Our conclusions can, therefore, be briefly summarised as follows:-- (1) Where members of a joint Hindu family hold bhumidhari rights in any holding, they hold the same as tenants in common and not as joint tenants. The notions of Hindu law cannot be invoked to determine that status. (2) Where in certain class of tenancies, such as permanent tenure holders, the interest of a tenant was both heritable and transferable in a limited sense and such a tenancy could, prior to the enforcement of the Act, be described as joint family property or coparcenary property, the position changed after Act I of 1951 came into force. Thereafter the interest of each bhumidhar, being heritable only according to the order of succession provided in the Act and transferable without any restriction other than mentioned in the Act itself, must be deemed to be a separate unit. (3) Each member of a joint Hindu family must be considered to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of bhumidhari interest of the deceased member. (4) The right of transfer of each member of the joint Hindu family of his interest in bhumidhari land is controlled only by Section 152 of the Act and by no other restriction. (4) The right of transfer of each member of the joint Hindu family of his interest in bhumidhari land is controlled only by Section 152 of the Act and by no other restriction. The provisions of Hindu law relating to restriction on transfer of coparcenary land, e. g., existence of legal necessity, do not apply." (emphasis supplied) 8. Learned counsel for the appellants also relied upon a judgment of this Court in Mahavir Singh & Ors. vs. Shri Pal & Ors.,1986 RevDec 161 and submitted that the respondents' father namely Lalsa could not have had more than 1/4th share in the property and, therefore, he could not sell the 3/4th share of the complete property. Learned counsel for the appellants also relied upon a Full Bench decision of this Court in Ram Padarath & Ors. vs. 2nd Additional District Judge, Sultanpur & Ors., (1989) RevDec 21 and submitted that for the cancellation of a sale deed whereby regarding the share no declaration was required, a suit would lie in a Civil Court alone. 9. Learned counsel for the appellants further relying upon a decision of this Court in Nasiruddin & Ors. Vs. Ch. Ram Swarup & Ors., (1978) AWC 636 submitted that even if the question of jurisdiction was raised at the first instance, though the defendant could raise the same before the appellate Court if the plea was rejected by the Trial Court but the appellant had to show before the Court that the Trial Court had no jurisdiction to try the suit and the wrong decision on the question of jurisdiction had also occasioned in the failure of justice. Learned counsel further submitted that when before the First Appellate Court no ground was taken as to what failure of justice had occurred if the Trial Court had entertained the suit even if it had no jurisdiction to try the suit, then it cannot be said that the decree was bad in law. Since learned counsel for the appellants has referred to paragraph nos.20, 21 and 22 of the judgment in the case of Nasiruddin (supra), the same are reproduced here as under :- "20. Since learned counsel for the appellants has referred to paragraph nos.20, 21 and 22 of the judgment in the case of Nasiruddin (supra), the same are reproduced here as under :- "20. We are accordingly of opinion that notwithstanding the fact that the suit giving rise to the appeal was filed and decided before coming into force of U.P. Act No. 19 of 1969 it is open to a Respondent in a second appeal coming up for hearing after the coming into force of the aforesaid amendment Act, to raise a plea on the basis of Sub-section (1-A) as introduced in Section 331 of U.P. Zamindari Abolition and Land Reforms Act. 21. As stated earlier, Sub-section (1-A) of Section 331 merely inhibits the Appellant from contending before the appellate or the revisional court that the trial court had no jurisdiction to try the suit unless he can show that such a plea was raised before the court of first instance at the earliest stage and in any case prior to the framing of the issues and that the wrong decision on the question of jurisdiction had occasioned a failure of justice. Before the inhibition contained in the notion with regard to entertainment of an objection on the question of trial court's jurisdiction to try the suit is removed, the objector has to show that both the conditions mentioned above i.e. the objection was raised at the earliest and that the trial by the court of first instance has resulted in failure of justice, co-exist. In the instant case, in view of the fact that an issue had been framed by the trial court on the question of its jurisdiction to try the suit, it may be taken that the Appellant has succeeded in establishing that he had raised the objection with regard to trial court's jurisdiction to try the suit before framing of issues and that the first condition, enabling him to raise such an objection before the appellate and revisional court has been made out. However, before the Appellant can be heard on the point he has still to show that the other condition viz. that a wrong decision by the trial court on the question of jurisdiction has occasioned a failure of justice. 22. However, before the Appellant can be heard on the point he has still to show that the other condition viz. that a wrong decision by the trial court on the question of jurisdiction has occasioned a failure of justice. 22. Apart from contending that a failure of justice has been occasioned because the suit was in fact not triable by the civil court, learned counsel for the Appellant was not able to bring anything to our notice to show that trial of the suit by the civil court has resulted in injustice. It is significant that the Appellant who was also an Appellant in the lower appellate court did not press his objection with regard to trial court's jurisdiction to try the suit. When the Appellant himself did not press this plea before the lower appellate court, it meant that he was not aggrieved by the decision of the trial court on that point and that the trial of the suit by the civil court has not occasioned any injustice to him. As the Appellant has failed to show that one of the necessary conditions for removing the inhibition contained in Sub-section (1-A) of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act exists, he cannot be permitted to press the second appeal on the ground that the suit giving rise to this appeal was wrongly instituted before the trial court." 10. Learned counsel for the appellants further submitted that the judgment and decree passed in Suit No.630 of 1993, definitely was in favour of the plaintiffs and, therefore, nothing further was required to be decided by any court, be it the Civil Court or the Revenue Court. 11. Learned counsel for the respondents, however, in reply submitted that when the plaintiffs were not entered in the revenue records at the time when zamindari was abolished, then before filing the suit for the cancellation of sale deeds the plaintiffs had to file a suit for declaration in the Revenue Court. In the absence of a declaratory decree, the suit for the cancellation of the sale deeds was not maintainable. In the absence of a declaratory decree, the suit for the cancellation of the sale deeds was not maintainable. Learned counsel for the respondents submitted that when there was a definite submission of the respondents that their father Lalsa had never filed a written statement then an issue ought to have been struck between the parties as to whether Lalsa had in fact filed the written statement or not. Learned counsel to bolster his submissions with regard to the fact that the jurisdiction of the Civil Court was not there, relied upon : i. Ram Charan vs. Balchand & Ors., (2017) 136 RevDec 498 ii. Deokinandan & Ors. vs. Surajpal & Ors., (1995) Supp4 SCC 671 iii. Sarwan Kumar vs. Madan Lal Aggarwal, (2003) 4 SCC 147 iv. Sushil Kumar Mehta vs. Gobind Ram Bohra, (1990) 1 SCC 193 v. Chandrika Misir vs. Bhaiya Lal, (1973) 2 SCC 474 vi. Srimathi Kaushalya Devi vs. K.L. Bansal, (1969) 1 SCC 59 vii. Kiran Singh vs. Chaman Paswan, (1954) AIR SC 340 viii. Ram Padarath & Ors. vs. 2nd Additional District Judge, Sultanpur & Ors., (1989) RevDec 21 ix. Tara Chand & Anr. Vs. 12th ADJ, Ghaziabad & Ors., 2010 (7) ADJ 383 12. Having heard learned counsel for the parties, this Court is of the view that the Trial Court had rightly entertained the suit and when it was of the view that as per law the defendant Lalsa, the father, had sold more property than was there in his share, then a further declaration was not required and it had a right to cancel the sale deeds. The jurisdiction with the Civil Court was definitely available. A suit for cancellation for the sale deeds, therefore, was definitely maintainable before the Civil Court. The substantial question of law as had been framed at the time of hearing the instant Second Appeal, therefore, gets answered. With regard to the substantial questions of law no.1, 2 and 3, however, it is stated that since it was evident that the father of the plaintiffs namely Lalsa, alongwith his three sons i.e. the plaintiffs, was alive on the date when the U.P. Zamindari Abolition and Land Reforms Act was notified then as per law, the joint Hindu family disintegrated after the abolition of zamindari and every individual became a tenure-holder in his own right. Therefore, an individual bhumidhar could have transferred only his share of the property. The question of there being any joint Hindu family did not arise. 13. The question of law which had been framed at the time of hearing of this case which was "whether the trial Court was right in coming to a conclusion that the suit as was filed before the Civil Court was barred" is also answered by holding that the Civil Court definitely had the jurisdiction to entertain the suit and, therefore, the Trial Court rightly entertained the suit and thereafter decreed the same. 14. Under such circumstances, the judgment and decree dated 12.8.2016 passed by the First Appellate Court is set-aside and the suit is decreed in toto. 15. The Second Appeal stands allowed.