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2023 DIGILAW 1067 (JHR)

Bijoy Kumar Keshri v. Nirmala Devi-deleted

2023-08-23

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Manjul Prasad, the learned Senior counsel appearing on behalf of the appellants, Mr. Aashish Kumar, learned counsel appearing on behalf of the contesting-respondents, Mr. Naresh Pd. Thakur, the learned counsel for the respondent no.15(a) and Mr. Anurag Kumar the learned counsel appearing for the proforma respondent nos.14(a) to (f). 2. This second appeal was filed being dissatisfied with the judgment dated 27.01.2009 and decree following thereupon signed on 12.02.2009 by learned Vth Additional Sessions Judge F.T.C., Dumka in Title Appeal No.4 of 2007 allowing the appeal and thereby reversing the judgment dated 14.12.2006 and decree dated 08.01.2007 passed by learned Subordinate Judge, Dumka in Title Suit No.9 of 1988. 3. Title Suit No.9 of 1998 was instituted on 12.12.1988 and by judgment dated 24.01.1998 the said suit was decreed in favour of the plaintiff/appellant. The defendants preferred Title Appeal No.13 of 2003 and by judgment dated 21.08.2004 after setting aside the judgment dated 24.01.1998, the case was remanded to the learned court for fresh decision into the matter for decision by way of adding one more separate issue. 4. For which both the parties were allowed to adduce evidence afresh if they so like. After the remand of judgment dated 14.12.2006 after framing of the said issue and after considering the oral and documentary evidence the suit was decreed in favour of the plaintiffs holding that the suit property was the personal property of Ram Dasi Sahuain acquired from her exclusive income. The Title Appeal No.4 of 2007 was filed against the judgment of the learned trial court by the defendants/respondents and by the judgment dated 27.01.2009 the learned court has been pleased to allow the appeal and dismiss the Title Suit No.9 of 1988. 5. The plaintiffs instituted the said Title Eviction Suit No.9 of 1988 stating therein that that case of the plaintiff Bijay Kr. Keshri as per Title (Eviction) Suit No.9 of 1988 is that both the side are Hindu and governed by Mitakchara school of Hindu Law. Jairam sah (his father) since deceased was Karta managing member of their joint family. He left behind his wife Ramdasi Sahuain and four sons namely Bhola Pd. Keshri, Kishore Kr. Keshri, Ashok Pd. Keshri and Bijay Kr. Keshri. Bhola Pd. Keshri has two sons Manohar Pd. Keshri and Rajaram Keshri. Jairam sah (his father) since deceased was Karta managing member of their joint family. He left behind his wife Ramdasi Sahuain and four sons namely Bhola Pd. Keshri, Kishore Kr. Keshri, Ashok Pd. Keshri and Bijay Kr. Keshri. Bhola Pd. Keshri has two sons Manohar Pd. Keshri and Rajaram Keshri. During his life time of Jairam Sah there was separation and partition between him, his sons and wife in the year 1974. Ever since the said separation Jairam sah and his sons were separate mess and business. Ram Dasi Sahuain in this case was made in proforma defendant and the case of the plaintiff is that she acquired by purchase for consideration the building and premises measuring 2 kathas 7 ½ dhoors being Municipal Holding no. 523 of Ward No. IV within Dunka Municipality from Debi Sah by registered deed of transfer being No. 310/1941 registered on 27.5.41. The detail of the suit is given in the separate schedule. The said property was Acquired by Ramdasi Sahuain from her own fund and the same was her absolute property. She began to reside in the suit house with her husband and Bhola Pd. Keshri who was born then and other defendants were subsequently born. Ramdasi Sahuain made some addition and alteration in the suit property from her own fund. The holding number of the said property is 32 ward No. VII of Dumka Municipality. Bhola Pd. Keshri, Kishore Pd. Keshri and Ashok Pd. Keshri being the Karta and managing member of their respective branches used to carry of their business while Bijay Kr. Keshri (plaintiff) being youngest son was living with his parent and used to look after them. Jairam Sah died in the Sawan in the year 1983. Ram Dasi Sahuain out of love and affection made a gift of the suit property to the plaintiff through a registered deed of gift bearing no. 3167/80 dated 26.9.1980. Jairam Sah is one of the attesting witness of the gift. It was made openly and within the knowledge of Principal defendants. The plaintiff accepted the gift and the Principal defendants continued in permissive occupation of the suit property Vide Mutation Case No.82/80-81 from the court of Circle Officer, Dumka vide his order dated 28.12.80 in the govt. record, the plaintiff has been mutated for the suit property. He is paying ground rent and Municipal Tax for the whole property. The plaintiff accepted the gift and the Principal defendants continued in permissive occupation of the suit property Vide Mutation Case No.82/80-81 from the court of Circle Officer, Dumka vide his order dated 28.12.80 in the govt. record, the plaintiff has been mutated for the suit property. He is paying ground rent and Municipal Tax for the whole property. The plaintiff felt in- convenience in using the suit property with Principal defendant and their family members so he made request to them on 25.4.88 for seeking another accommodation and for vacating the suit property to which they requested him to allow them to live in the house for 6 months by which period they would arrange for vacating the suit property but even then they have not vacated the suit property. So, the suit was filed. The cause of action arose on 25.10.88, when the principal defendants seat to vacate the suit property. The suit was valued at Rs.2,00,000/- and on payment of the court fee of Rs.5,610/- the plaintiff prayed for a decree for eviction of the principal defendants from the suit property, a decree directing the principal defendant to quit and vacate the suit property with the members of their respective family, a decree entitling the plaintiff to vacant possession of the suit property on eviction of the Principal defendants and the member of the their family through the process of Court as well as a decree for cost of the suit. 6. The defendants appeared and filed written statement stating therein that on notice, the defendants appeared. Defendant no.1 filed w.s. by stating that the suit is barred by principles of waiver, estoppel and acquiescence and it is hopelessly barred by law of limitation. The suit is also bad for non-joinder of necessary party as six daughters of Jairam Sah are not made party in this case. On perusal of the record, I find that subsequently the daughters of Jairam Sah were also made party. The further case of these defendants is that six daughters of Jairam Sah are not shown in his genealogy. So, the genealogical table is incomplete. It is accepted that the parties are joint and Jairam Sah since deceased and Karta and managing member of the family. Jairam Sah and his sons namely Kishore, Ashok and Bijay remained joint in one side and Bhola Pd. So, the genealogical table is incomplete. It is accepted that the parties are joint and Jairam Sah since deceased and Karta and managing member of the family. Jairam Sah and his sons namely Kishore, Ashok and Bijay remained joint in one side and Bhola Pd. Keshri remained in other side since 1974 they became separate in mess and business. The property remained joint among all the co-sharers. There was no question of being separate with defendant no.6 and she was illiterate and dependent lady and had no income or property of her own. The Hindu wife during life time of husband has no separate share in the property. Father however, at the time of separate on in mess and business executed a written document in presence of the witnesses incorporating there-in that the defendant no.1 has 1/4th share in the suit property and other co-sharers will be given 3/4th share. Later on at the time of it partition. It is incorrect to say that the proforma defendant purchase the suit property by registered sale deed some- time in 1941. In fact, Ram Dasi Sahuain is an illiterate lady and dependent on her husband and sons. Jairam Sah and defendant no.1 where the earning member of the family and since the age of 13 defendant no.1 was doing business with his father and the father being the Karta of the Joint Hindu Family was keeping the income and managing the household affairs. The father purchased the said property out of joint income in the name of his wife Ram Dasi Sahuain who is also Karta and the head and it is absolutely incorrect to say that proforma defendant purchased the suit property. She is merely the name lender. She had no income of her own. Father of the parties because of his old age became almost dependent in connection with the management of the business on the defendant no.1 and due to his sincere and honest labour acquired a good name in the market and earned substantial income which was invested in constructing big pucca building on the said plot. Defendant no.1 and his father have submitted the return in the income tax department as the members of Hindu Undivided Family and even in several income tax and sale tax cases it has been submitted that they form a joint Hindu Family. Defendant no.1 and his father have submitted the return in the income tax department as the members of Hindu Undivided Family and even in several income tax and sale tax cases it has been submitted that they form a joint Hindu Family. The Municipal holding was in the name of father of the defendant no.1 and tax receipts were also issued in the name of Jairam Sah. The family was joint hindu family and there is no question of defendants to act as karta of their respective branch and it is also in correct to say that the plaintiff used to live with his parents separately. Jairam Sah died in the year 1983 and the suit property was purchased by defendant no.1 and his father out of their joint income in the name of proforma defendant (Ram Dasi Sahuain) in the year 1941. The execution of gift and Jairam Sah being one of the witness of the said deed is not within their knowledge. The suit property was not absolute property of defendant or her husband. So, she was not competent to make any gift or execute any deed of the said property rather the same is paper transaction. The question of permissive possession to the defendants by the plaintiff is false. The defendants have not given any notice of any mutation proceeding. The defendants are in occupation of their share. The suit after three years of alleged date of execution of the deed of gift in barred by law of limitation. The house consist seven rooms, four verandah, three courtyards and having facilities of water and electricity. The electricity connection stands in the name of defendant no.1 and all the defendants including the plaintiff enjoyed the same jointly. 7. The case of proforma respondent no.6 is that on behalf of the proforma defendant no.6 (Ram Dasi Sahuain) the written statement was filed admitting the Case of the plaintiff Ashok Pd. Keshri defendant no.5 has filed separate written statement stating therein that the plaintiff is not entitled to any relief against this defendant property. 7. The case of proforma respondent no.6 is that on behalf of the proforma defendant no.6 (Ram Dasi Sahuain) the written statement was filed admitting the Case of the plaintiff Ashok Pd. Keshri defendant no.5 has filed separate written statement stating therein that the plaintiff is not entitled to any relief against this defendant property. He denied that the suit property was acquired by Ram Dasi Sahuain from her own fund and the same is her absolute property and since after the purchase she became owner and resides in the suit house with her husband and defendant no.1 and also that the proforma defendant made some addition or alteration in the suit property from her own funds. He also does not know about the holding number of the suit property. However, other part of the case of the plaintiff was accepted by this defendant and he has no objection against the claim of the plaintiff and it was written that these defendants would vacate the suit premises. However, other defendants have not filed their written statement. 8. On the above pleading the learned court formulated six issues and decided the suit by judgment dated 24.01.1998 and the said suit was challenged in Title Appeal No.13 of 2003 and after setting aside the said judgment the learned appellate court has been pleased to remand the suit to decide afresh the law point and in view of that, the title suit was again before the learned court and the learned court in view of the appellate court direction has framed the issue as under: “Whether the suit property was personal property of Ram Dasi Sahuain, acquired by her from her exclusive income earned from her business or otherwise or it was purchased by Sri Jai Ram Sah from his income?” 9. The said issue was further decided by the learned trial court after the remand after providing full opportunity to the plaintiffs as well as the defendants. The learned trial court has discussed the P.Ws. as well as D.Ws evidence in detail in paragraph nos.6,7,8 and 9. In view of the said evidence the learned court found that the suit house was purchased in the name of Ram Dasi Sahuain and at the time of purchase the said house was khapparposh house. The learned trial court has discussed the P.Ws. as well as D.Ws evidence in detail in paragraph nos.6,7,8 and 9. In view of the said evidence the learned court found that the suit house was purchased in the name of Ram Dasi Sahuain and at the time of purchase the said house was khapparposh house. In 1944 Ram Dasi Sahuain was doing business which is mentioned in the sale deed dated 27.05.1941 and her profession has been shown as business. Defendant no.1 has admitted that there is a house property in mohalla-Seopahar in the name of his wife and also land in his name in mouza-Bandajori and D.W.2 and D.W.3 had also admitted the same and after remand one more defendant that is defendant namely Jagdish Sah has also admitted in cross examination that Ram Dasi Sahuain used to sell sattu, bari and papad after manufacturing the same she has purchased the house property in her own. The registered sale deed no.310 of 1941 was found perfect and the property was acquired by Ram Dasi Sahuain as has held by the learned trial court. The profession was also found there of the said Ram Dasi Sahuain. Exhibit-3 is the registered Gift no.3157 dated 16.9.1980 executed by Ram Dasi Sahuain in favour of the plaintiff who is the youngest unmarried son and considering all this aspect including the Exhibit-6 which is the certified copy of order of Mutation Case No. 82 of 1980-81 of the court of Circle Officer, Dumka, the Court found that the said property was also mutated in the name of Ram Dasi Sahuain and thereafter the learned court has held the right, title and interest of the plaintiff. In appeal, the learned court had framed two points to decide the appeal. The point no.1 was Are the defendants/appellants liable to be evicted from the suit property” and the point no.2 was “Has the plaintiff/respondent no.1, title over the suit property on the basis Gift deed no.3167 of 1980 dated 26.09.1980 was executed by Ram Dasi Sahuain in his favour or not?” The present second appeal was admitted by order dated 25.07.2011 on the substantial question of law that:- “whether the appellate court erred in setting aside the judgment and decree passed by the trial court merely on the ground that the Title Suit No.41 of 1990 is pending in which the Gift deed has been challenged”. 10. 10. Mr. Manjul Prasad, the learned counsel for the plaintiff/appellant submits that the Gift deed is dated 26.09.1980 whereas the Title Suit No.41 of 1990 was filed in the year 1990 and in view of Article 59 of the Limitation Act, the said suit itself is barred. He submits that the said suit was required to be filed within three years whereas the case has been filed in the year 1990 for which the deed was registered in the year 1980. He submits that by way of referring paragraph no.11 the appellate court judgment that the learned appellate court has reversed the entire finding of the learned trial court only on the ground that Title Suit No.41 of 1990 is still pending and in absence of any decree in the said Title Suit in which the gift deed is under challenge the eviction order passed by the learned trial court is bad in law. He submits that apart from that no reason has been assigned to meet out the finding of the learned court and in view of that the provision made under Order XLI Rule 31 of the C.P.C is not complied. On this ground, he submits that the law point framed by this Court may kindly be answered in favour of the appellant/plaintiff. 11. On the other hand, Mr. Aashish Kumar, the learned counsel who is the contesting respondent, submits that the learned appellate court has rightly held in view of the pendency of Title Suit No.41 of 1990, he submits that the learned trial court after remand has only framed one issue and in view of that the finding of the learned appellate court is correct. The Gift deed is under challenge and in view of that, unless the judgment delivered in Title Suit No.41 of 1990, the appellate court rightly reversed the judgment of trial court in Title (Eviction) Suit No.9 of 1998. 12. Mr. Aashish Kumar, the learned counsel for the contesting respondent further submits that after discussing the evidences on record, the court found that the suit property although which was in the name of Ram Dasi Sahuain, however, the same was purchase by Jai Ram Sah, who is the father of the appellant and there is no partition. He submits that in view of that the learned appellate court has rightly passed the order. 13. He submits that in view of that the learned appellate court has rightly passed the order. 13. In view of above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the judgment of the learned trial court as well as the learned appellate court including the lower court records. It is an admitted fact that in the first round by the judgment by dated 24.01.1998, the suit was decreed in favour of the plaintiff. In appeal, in Title Appeal No.13 of 2003, the said judgment was set aside and the matter was remanded back to the learned court to decide the matter afresh and pursuant thereto the learned court has framed additional issue to decide the suit and while deciding the said suit, the learned court found that defendant/appellant Bhola Prasad Keshri has adduced only one witness i.e. D.W.7 Jagdish Sah who is the defendant in that case. In paragraph no.5 he stated that Sri Jai Ram Sah purchased the said house in the name of his wife namely Ram Dasi Sahuain in 1941 from one Devi Sah. He also stated that Ram Dasi Sahuain was dependent upon her husband”s business and on that ground he stated that there is no question of separate income of his wife and no question of purchase the said house by any income of Ram Dasi Sahuain. The learned court found from the cross examination that said house was purchase by Ram Dasi Sahuain as per sale deed and it came in the light that Ram Dasi Sahuain was manufacturing sattu, bari, papad and she kept ornaments in the shop of Dasi Sahuain and other women working for manufacturing sattu, bara and papad. In paragraph 12 of his deposition, he has stated that a separate dwelling house of Bhola Keshri was situated at the Vaterinary hospital but could not say how he has purchased and also not knowing about the separate house of Ashok Keshri and other brothers. In paragraph no.14 of cross examination nobody stated about the disputed house but Ram Dasi Sahuain has purchased the house and she was full owner. 14. In paragraph no.14 of cross examination nobody stated about the disputed house but Ram Dasi Sahuain has purchased the house and she was full owner. 14. The learned appellate court has framed two issues as has been discussed hereinabove, however, in paragraph no.11 without meeting out the reasons made by the learned trial court has set aside the judgment and decree dated 04.12.2006 and 08.01.2007 respectively only on the ground that Title Eviction Suit No.41 of 1990 is pending wherein the Gift deed dated 26.09.1980 is under challenge and apart from that the learned appellate court has not set aside the decree on the other ground on the basis of which the said suit was decided. It is well known that for setting aside the decree the reasons are required to be met out by the learned appellate court in view of Order XLI Rule 31 of the C.P.C. which is lacking in the case in hand. Further it appears that within three years the Title Suit No.41 of 1990 was expected to be filed in view of Article 59 of the Limitation Act, however, the said suit was filed in the year 1990 which prima facie suggest that it was barred by limitation and merely on the pendency of the Title Suit No.41 of 1990, the learned court has set aside the order of the learned trial court. A reference may be made to the judgment Manjula and Others v. Shyam Sunder and Others, (2022) 3 SCC 90 and the better title is required to be proved by the parties and in the case in hand, the defendants have not been able to show better title as has been held by the Hon”ble Supreme Court in the case of Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCCR 228 and Jagdish Pd. Patel and Anr. v. Shivnath and Others, (2019) 6 SCC 82 . In view of the above, the law point framed by this Court, the answer is in favour of the appellant/plaintiff. Further, if any decree is passed in favour of the defendant/respondent in Title Suit No.41 of 1990 in their favour, the consequence will follow. The law point framed by this Court is answered in favour of the appellant. 15. S.A. No.65 of 2009 is allowed. 16. The judgment and decree passed by the learned appellate court dated 27.01.2009 is set aside. The law point framed by this Court is answered in favour of the appellant. 15. S.A. No.65 of 2009 is allowed. 16. The judgment and decree passed by the learned appellate court dated 27.01.2009 is set aside. The judgment and decree passed by the learned trial court dated 14.12.2006 and 08.01.2007 in Title (Eviction) Suit No.09 of 1988 is restored. This appeal is allowed in above terms. 17. Let the lower court records be sent back to the learned court forthwith.