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2022 DIGILAW 1627 (ALL)

Jagdev Singh v. Hajarilal

2022-10-11

SIDDHARTHA VARMA

body2022
JUDGMENT : (Siddhartha Varma, J.) 1. A Suit being Original Suit No. 126 of 1969 was filed by the plaintiffs Chandrapal, Sabhajeet and Tarbabu for the relief that the defendants no. 1 to 5 be dispossessed and the plaintiffs be given the possession of the property in question. A further prayer has been made that for the period the defendants no. 1 to 5 had remained in possession, they be directed to pay Rs. 25 per month as damages to the plaintiffs. Still further a prayer was made that since the house in which the defendants Jagdev, Chandradeep Singh, Saheb Lal Singh, Ram Swaroop Singh and Ramraj Singh were staying was sold to the plaintiffs by the defendants no. 7 to 10, the plaintiffs were to be declared the owners of the property in question from which they were wrongly out of possession due to proceedings under Section 145 of C.P.C. 2. The defendants no. 1 to 5 came up with a case in their written statement that in fact the defendant no. 6 Lalta Prasad on 15.1.1968 had sold the house in question to them and, therefore, they were the rightful owners and were in possession over the house in question. 3. The Suit was dismissed with regard to possession over the house in question and with regard to the relief that possession be handed over to the plaintiffs but was decreed to the extent that the defendants no. 7 and 8 were ordered to pay back Rs. 700/-to the plaintiffs and the defendants no. 9 and 10 were ordered to pay to the plaintiffs Rs. 2,000/-. The defendants no. 7 and 8, who were aggrieved by the fact that their sale deeds had been declared bad in law and that they were required to return Rs. 700/-, filed a First Appeal being First Appeal No. 47 of 1977. This appeal was filed against the plaintiffs. The First Appellate Court, despite the fact that the plaintiffs had not filed any appeal, decreed the Suit. 700/-, filed a First Appeal being First Appeal No. 47 of 1977. This appeal was filed against the plaintiffs. The First Appellate Court, despite the fact that the plaintiffs had not filed any appeal, decreed the Suit. It held that since the sale deed by which Hazari Lal and Shantu Lal had sold their 1/3rd portion of the property to the plaintiffs and also the sale deed dated 16.1.1968 by which Ram Deen and Ram Ashrey had sold their 2/3rd portion of the house in question to the plaintiffs were found to be valid sale deeds, the suit was to be decreed in toto. Further the plaintiffs were also directed to take possession of the house in question over which the defendants no. 1 to 5 were alleged to be in possession. The defendants no. 1 to 4 Jagdev, Chandrapal Singh, Saheb Lal Singh and Ram Swaroop have filed the instant Second Appeal. 4. The Second Appeal was admitted on the substantial question of law as to whether when the sale deeds dated 11.6.1873 and of 25.6.1868 related to another house as per their boundaries then could the First Appellate Court decree the appeal? 5. Before proceeding with the Appeal further, it shall be pertinent to see whether the grounds on which the First Appellate Court had allowed the appeal and had decreed the Suit were available to it. The First Appeal was filed only by the defendants no. 7 and 8 who had, in fact, alleged that they had sold their 1/3rd portion of the property on 9.1.1968 for a sum of Rs. 700/-and, therefore, they were not liable to return Rs. 700/-. The Appellate Court while hearing the Appeal found that the grand father of the defendants no. 7 and 8 had purchased the property from one Syyed Azhan Hussain on 11.6.1873 and, therefore, this property belonged to them and they alone could have sold the property. The First Appellate Court had also taken note of the fact that the defendant no.6 Lalta Prasad in paragraph no. 12 of his cross-examination had mentioned that his ancestors had only one house and that too was situate in village – Khurhand and to the best of his knowledge his ancestors had only owned one house in the village. The First Appellate Court had also taken note of the fact that the defendant no.6 Lalta Prasad in paragraph no. 12 of his cross-examination had mentioned that his ancestors had only one house and that too was situate in village – Khurhand and to the best of his knowledge his ancestors had only owned one house in the village. On the basis of this fact it was held that when ancestors of Lalta Prasad had only one property and that too was in village Khurhand, then the property which was sold on 15.1.1968 by the defendant no. 6 was a meaningless sale, specially when the ancestors had already sold off the property. 6. The Appellate Court while allowing the Appeal had used its powers under Order 41 Rule 33 of the C.P.C. and had decreed the Suit of the plaintiffs to the extent that not only was the sale deed by Hazari Lal and Shantu Lal considered to be a proper sale deed but it had also declared the sale deed executed by the defendants no. 9 and 10, namely, Ramdeen and Ramashrey dated 16.1.1968 a valid one. 7. Aggrieved by the judgement and decree of the First Appellate Court, the defendants Jagdev Singh, Chandrapal Singh, Saheb Lal Singh and Ram Swaroop Singh have filed the instant Second Appeal. 8. Learned counsel for the appellants while arguing the Appeal vehemently submitted that when the boundaries of the sale deed dated 11.6.1873 and that of 25.6.1886 and of the house which was sold did not match then the First Appellate Court definitely erred in law. Learned counsel for the appellant also argued that when the First Appeal was filed by the defendants no. 7 and 8 then the relief which was claimed by them alone ought to have been looked into and granted to them, if at all the first appeal was being allowed. The relief of possession which had been granted to the plaintiff over the entire property, including the property sold by the defendants no. 9 to 10, could not have been granted by the First Appellate Court. 9. Learned counsel for the appellant stated that the First Appellate Court set up a new case for the plaintiff which was never pleaded and proved by them. 10. 9 to 10, could not have been granted by the First Appellate Court. 9. Learned counsel for the appellant stated that the First Appellate Court set up a new case for the plaintiff which was never pleaded and proved by them. 10. The Appellate Court by invoking the provisions of Order 41 Rule 33 of the C.P.C. carved out a new case for the plaintiffs and wrongly held that the disputed house did not exist on the north of the house of Lalta Prasad, the defendant no.6. Learned counsel for the appellant, therefore, submitted that the pleadings and proof were at variance with each other. He submitted that under Order 6 Rule 2 C.P.C. there cannot be any variance between pleadings and proof. Learned counsel relied upon 2003 (8) SCC 740 (Kashi Nath (dead) through Lrs vs. Jaganath) and 2017 (3) SCC 702 (Executive Officer, Arulmigu Chokkanatha Swamy Koil, Trust, Virudhunagar vs. Chandran and others). 11. Still further learned counsel for the appellant submitted that the First Appellate Court committed a blunder be invoking the provision of Order 41 Rule 33 of the C.P.C. and relied upon 2019 (2) SCC 684 : Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh and others vs. Brijlal Tibrewal and others; 2016 (13) SCC 165 : Lakshmanan and others vs. G. Ayyasamy; 2003 (9) SCC 606 : Banarsi and others vs. Ram Phal; AIR 1978 SC 725 : Tummalla Atchaiah vs. Venka Narasingarao; AIR 1965 SC 1874 : (1. Nirmala Bala Ghose and another in Civil Appeals Nos. 966 and 968 of 1964, 2. Nirmala Bala Ghose in Civil Appeal No. 967 of 1964 vs. Balai Chand Ghose in Civil Appeals Nos. 996 and 968 of 1964, 2. Bala Chand Ghose and others in Civil Appeals Nos. 967 of 1964); AIR 1987 Kerala 94 : Kuttan Sudhakaran vs. Padmavathi Amma Laila Bai and others; AIR 1974 Madras 301 : S. Mohamed Ismail and others vs. M.S. Mohamed Essa and others and AIR 1973 Allahabad 63 : Budhan v. Lala Harbans Lal. 12. He, therefore, submitted that the First Appellate Court erred in passing the impugned judgements. 13. 967 of 1964); AIR 1987 Kerala 94 : Kuttan Sudhakaran vs. Padmavathi Amma Laila Bai and others; AIR 1974 Madras 301 : S. Mohamed Ismail and others vs. M.S. Mohamed Essa and others and AIR 1973 Allahabad 63 : Budhan v. Lala Harbans Lal. 12. He, therefore, submitted that the First Appellate Court erred in passing the impugned judgements. 13. Having heard the learned counsel for the appellant, this Court is of the view that so far as the matching of the boundaries of the sale deed dated 11.6.1873 and the sale deed of the year 1886 (exhibit-5) with that of the sale deed dated 15.1.1968, 9.1.1968 and 16.1.1968 is concerned, the First Appellate Court has definitely in paragraphs no. 9 of its judgement taken all precuation to match the boundaries and it has found that the boundaries of the house which was purchased by the grand father of the defendants no. 7 and 8 was matching with the boundaries of the house which was in dispute. The Court, therefore, finds that the finding with regard to the matching of boundaries is concerned is concluded by findings of fact. However, this Court definitely is of the view that the finding with regard to the sale deed dated 16.1.1968 executed by the defendants no. 9 to 10 could not have been given. Also the relief with regard to return of Rs. 2000/-had attained finality and could not have been lightly disturbed. So far as the decree which has been passed by the First Appellate with regard to dispossession of the defendants no. 1 to 5 is concerned it cannot be interfered with as the First Appellate Court has very sensibly found that the simple allowing the first appeal vis-a-vis the defendants no. 7 and 8 would be of no avail and the decree would be a futile decree and therefore by using its powers under Order 41 Rule 33 of the C.P.C. it had also decreed the Suit to the extent that the defendants no. 1 to 5 would be dispossessed from the property which was sold to the plaintiffs. However, the decree of possession is being modified to the extent that possession would be given to the plaintiffs only vis-a-vis the property which was sold to them by the sale deed dated 9.1.1968. The property which was sold by the defendants no. 1 to 5 would be dispossessed from the property which was sold to the plaintiffs. However, the decree of possession is being modified to the extent that possession would be given to the plaintiffs only vis-a-vis the property which was sold to them by the sale deed dated 9.1.1968. The property which was sold by the defendants no. 9 to 10 by their sale deed, however, would not be given to the plaintiffs. The Second Appeal is, therefore, accordingly, partly allowed. 14. Under the Order 41 Rule 33 of the C.P.C. the Appellate Court has the power to pass any decree and to make any order which ought to have been passed and thus power can be exercised by the Appellate Court notwithstanding that the Appeal is with regard to only a part of the decree. In the instant case, when the First Appellate Court was finding that the sale deed dated 9.1.1968 was a valid one and when the amount of Rs. 700/-was not being returned to the plaintiff then it was in the fitness of things that the plaintiffs should also get possession over the 1/3rd portion of the house which was sold by the defendants no. 7 and 8 to the plaintiffs. However, since the First Appellate Court had exceeded its jurisdiction by interfering with the decree which had attained finality vis-a-vis defendants no. 9 to 10, the decree has been modified. 15. With the above observations, the Second Appeal is partly allowed.