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2023 DIGILAW 1708 (RAJ)

Chhota Devi v. LRs of Shri Manmohan

2023-09-11

REKHA BORANA

body2023
ORDER : REKHA BORANA, J. 1. The present regular first appeal has been preferred against the judgment and decree dated 12.08.2016 passed by the Additional District Judge No.5, Jodhpur Metro in Civil Original Suit No.434/2012 (NCV No.10597/14) whereby in a suit for partition as preferred by the plaintiffs, learned trial Court proceeded on to pass preliminary decree for partition. 2. The brief facts of the case are as under: i. A suit for partition was preferred by one Manmohan S/o Late Shri Moolkaran against his brother Prem Prakash and three sisters. ii. In the said suit, an application under Order 1 Rule 10, CPC was preferred by Chhota Devi, wife of defendant No.1-Prem Prakash for impleadment with the submission that a will was executed by her mother-in-law Radha Devi in her favour by virtue of which she became the sole owner of the property in question and therefore, the property cannot be partitioned. The said application was allowed and Chhota Devi was permitted to be impleaded as defendant No.5 in the suit. iii. A joint written statement was filed by defendant No.1-Prem Prakash and his wife Chhota Devi, defendant No.5. The case of defendant Nos.1 & 5 was that the property had already been orally partitioned and the residential house in question had come into the share of defendant No.1. The partition having already been made, no partition can now be prayed for. iv. Written statement on behalf of the other defendants, the sisters, was filed with the specific submission that they do not want any share in the property and the property be partitioned equally between the plaintiff and defendant No.1. No factum of any oral partition having made was pleaded by the said defendants. v. During the suit proceedings, an application was preferred by the plaintiff with a prayer that the will as placed on record by defendant No.5-Chhota Devi cannot be read in evidence and be not taken on record. The said application as filed by the plaintiff was allowed vide order dated 04.09.2012 by the Court below. Aggrieved of the said order, a writ petition was preferred before this Court being S.B. Civil Writ Petition No.13644/2012 which was allowed vide order dated 11.02.2014 and vide the said order, the Court below was directed to permit the will to be exhibited. In pursuance to the said order, the will was exhibited as Exhibit-A1. vi. Aggrieved of the said order, a writ petition was preferred before this Court being S.B. Civil Writ Petition No.13644/2012 which was allowed vide order dated 11.02.2014 and vide the said order, the Court below was directed to permit the will to be exhibited. In pursuance to the said order, the will was exhibited as Exhibit-A1. vi. Although the will was exhibited, the counsel appearing for defendant-Chhota Devi closed his evidence on the same date but subsequently, moved an application for permission to examine certain other witnesses. The said application under Order 18 Rule 17, CPC was rejected vide order dated 23.05.2014. Aggrieved against the said order, a writ petition was again filed by defendant Nos.1 & 5 before this Court being S.B.C.W.P. No.5356/2014 which was allowed on 18.03.2015. Vide order dated 18.03.2015, the petitioner was permitted to produce one witness namely Shanti Devi on the next date itself and it was made clear that if the witness is not produced on the said date, the writ petition would be deemed to have been dismissed. vii. Admittedly, no witness was examined on behalf of defendant Nos.1 & 5 on that date. viii. Ultimately, vide judgment and decree dated 12.08.2016, the suit was decreed by the Court below holding the plaintiff to be entitled for partition and further, to get 1/5th share in the rent qua the shops in the disputed property. ix. Aggrieved against the said judgment and decree, a regular first appeal was preferred jointly by defendant Nos.1 & 5 which was registered as S.B. Civil First Appeal No.370/2016. x. Interestingly, on 14.02.2017, Chhota Devi, the present appellant, being appellant No.2 in the said first appeal, sought permission to withdraw the appeal with liberty to assail the impugned judgment and decree appropriately. The said permission as sought was granted and appeal No.370/2016 was dismissed as withdrawn on part of appellant No.2 with the liberty as prayed for. xi. After withdrawing the said appeal, Chhota Devi preferred the present appeal in her independent capacity. xii. It is relevant to note that after withdrawal of appeal No.370/2016 by Chhota Devi, she was impleaded as respondent No.5 in the said appeal. xiii. The most relevant fact is that while the present appeal remained pending adjudication, first appeal No.370/2016 has been decided vide judgment/order dated 17.04.2017. The appeal as preferred by Prem Prakash was dismissed by the said order. xiv. xiii. The most relevant fact is that while the present appeal remained pending adjudication, first appeal No.370/2016 has been decided vide judgment/order dated 17.04.2017. The appeal as preferred by Prem Prakash was dismissed by the said order. xiv. The Court, while deciding S.B. Civil First Appeal No.370/2016, observed as under: “7. I have considered the contentions. 8. It is specific case of the plaintiff that the property in question is ancestral property which came in hands of their father Moolkaran. Plaintiff has claimed one fifth share in property. 9. The appellant set up a case that after demise of his father, the property was orally partitioned and plaintiff took 35 tola of gold. In his cross-examination he has admitted that he has moved an application Exp-1 which bears his signatures. The appellant stated that the property was orally partitioned in presence of sisters but the sisters have stated nothing with regard to oral partition in their written statements. Appellant/defendant in his cross-examination has further admitted that 35 tola of gold remained with her mother till her demise and that the ornaments and property were partitioned by her mother. 10. The Court below has dealt with the entire evidence and has rightly passed preliminary decree determining the share of each of the parties. 11. The Court has not committed any illegality in passing the impugned preliminary decree since the appellant himself has moved an application that one fifth share be given to the plaintiff and his contention that the property was orally partitioned on 14.01.1975 is contradictory to his own statements, wherein, he has stated that his mother expired in 1989 and the property was partitioned by her. 12. The appeal being devoid of any merits, is dismissed. Stay application also stands disposed of. Record of the Court below be returned forthwith.” 3. Learned counsel for the respondents submitted that the present appeal would now be governed by the order dated 17.04.2017 as, vide the said order, the impugned judgment and decree has been affirmed. Once the impugned judgment and decree have been affirmed, no contrary finding qua the said judgment can now be given by this Court in the present appeal. Learned counsel for the respondents submitted that the present appeal would now be governed by the order dated 17.04.2017 as, vide the said order, the impugned judgment and decree has been affirmed. Once the impugned judgment and decree have been affirmed, no contrary finding qua the said judgment can now be given by this Court in the present appeal. Learned counsel submitted that it is the settled proposition of law that there cannot be two contrary judgments and the present appeal should therefore be also dismissed in light of the judgment passed in appeal No.370/2016 which arose out of the same impugned judgment and decree. 4. In support of his submissions, learned counsel for the respondents placed reliance on the following judgments: i. Narayana Prabhu Venkateswara Prabhu vs. Narayan Prabhu Krishna Prabhu & Ors., 1977 SCC (2) 181 ii. Sheodan Singh vs. Smt. Daryao Kunwar, AIR 1966 SC 1332 5. Per contra, learned counsel for the appellant submitted that the present appeal cannot be governed by and decided in light of the judgment dated 17.04.2017 as firstly, appellant Chhota Devi had withdrawn the earlier appeal with liberty from this Court to assail the impugned judgment and decree. Once the liberty being granted, she was entitled to pursue the appeal in her independent capacity and the same deserves to be heard on merits. Secondly, the Court below declined to consider the will executed in her favour on total wrong premise that an order had already been passed by the Court not to take the said will on record. The Court totally ignored the fact that the said order was set aside by this Court in a writ petition preferred by appellant-Chhota Devi and in pursuance to the order passed by the Writ Court, the will was very much exhibited and was to be read in evidence. The total non-consideration of the Court below of the said will gives indefeasible right to the appellant to be heard on merits as the said finding of the Court is totally contrary not only to the material available on record but also to the orders passed by this Court. Learned counsel submitted that the impugned judgment to that extent is per se illegal and hence the present appeal deserves to be decided on its own merits. 6. Heard learned counsel for the parties and perused the material available on record. 7. Learned counsel submitted that the impugned judgment to that extent is per se illegal and hence the present appeal deserves to be decided on its own merits. 6. Heard learned counsel for the parties and perused the material available on record. 7. The question which arises before this Court in the facts and circumstances of the case is: Whether the present appeal can be decided on merits despite appeal No.370/2016 against the same impugned judgment and decree having been dismissed? 8. This Court is of the opinion that the present appeal cannot have a fate different than judgment dated 17.04.2017 whereby the impugned judgment and decree dated 12.08.2016 has been affirmed. This Court is of the said opinion for the following reasons: i. Present appellant Chhota Devi, after being impleaded in the suit, filed a join written statement along with defendant No.1. Meaning thereby, the stand/defence of both defendant Nos.1 & 5 was same and both of them stood on the same footing. ii. In the suit, defendant No.1 Prem Prakash, in his cross-examination, admitted that he had moved an application (Exhibit-1) which bears his signatures. Vide the said application, Prem Prakash admitted that 1/5th share of the property be given to the plaintiff. Appellant Chhota Devi, during the suit proceedings, never raised any objection qua the said application. Neither in her statements she deposed anything contrary to the said admission of Prem Prakash nor did she put any challenge to the said admission of Prem Prakash in the present appeal. The Court, while deciding Civil First Appeal No.370/2016, relied upon the said admission of Prem Prakash and proceeded on to dismiss the appeal. iii. Although Chhota Devi withdrew the said appeal, after withdrawal as appellant, she was impleaded as party respondent and after being impleaded as party respondent, she never raised any objection/cross-objection in the said appeal. A perusal of the judgment dated 17.04.2017 also does not show that any objection was raised on behalf of Chhota Devi during the course of hearing. Meaning thereby, she would definitely be bound by the judgment dated 17.04.2017. iv. Chhota Devi would even otherwise be bound by the judgment dated 17.04.2017 as she was fully aware of the said appeal and even the counsel representing Prem Prakash and Chhota Devi was the same. Meaning thereby, she would definitely be bound by the judgment dated 17.04.2017. iv. Chhota Devi would even otherwise be bound by the judgment dated 17.04.2017 as she was fully aware of the said appeal and even the counsel representing Prem Prakash and Chhota Devi was the same. In the present appeal too, Chhota Devi is represented by the same counsel who represented Prem Prakash in appeal No.370/2016. v. Chhota Devi, being well aware of the fact that the present appeal as filed by her was pending on the date when appeal No.370/2016 was decided, it was very well open for the counsel to get the present appeal also tagged with appeal No.370/2016 and to have got both the appeals decided together. A perusal of the judgment dated 17.04.2017 does not reflect that any such fact/information of the present appeal No.104/2017 having been filed by Chhota Devi or being pending was even made before the Court on the said date. Counsel for the appellant, in his presence, let the judgment dated 17.04.2017 be passed without informing about the pendency of the present appeal in spite of he being very well aware of the pendency of the present appeal. vi. Admittedly, the present suit was a suit for partition and as is the settled proposition of law, all the parties to the suit are plaintiffs and defendants and once a decree for partition has been passed and has been affirmed by the First Appellate Court, all the parties to the said decree would definitely be bound by the same. vii. It is the settled proposition of law that two inconsistent decrees cannot exist at the same point of time. 9. In the case of Narayana Prabhu (supra), the Hon’ble Apex Court held that in a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right in common for themselves and others. On basis of the said finding, the Hon’ble Apex Court proceeded on to dismiss the appeal in the said matter with the finding that an appeal relating to the same dispute already having been decided, no inconsistent decrees can be passed. 10. On basis of the said finding, the Hon’ble Apex Court proceeded on to dismiss the appeal in the said matter with the finding that an appeal relating to the same dispute already having been decided, no inconsistent decrees can be passed. 10. In the case of Sheodan Singh (supra), the Hon’ble Supreme Court held as under: “Our conclusion on the question of res judicata raised in the present appeals is this. (Where the trial court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial court’s decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial court given on merits, and if that is so, the decision of the appeal court will be resjudicata whatever may be the reason for the dismissal. It would be a different matter, however, where the decision of the appeal court does not result in the confirmation of the decision of the trial court given on the merits, as for example, where the appeal court holds that the trial court had no jurisdiction and dismisses the appeal even though the trial court might have dismissed the suit on the merits.) In this view of the matter, the appeals must fail, for the trial court had in the present case decided all the four suits on the merits including, the decision on the common issues as to title. The result of the dismissal on a preliminary ground of the two appeals arising out of suits Nos. 77 and 91 was that the decision of the trial court was confirmed with respect to the common issues as to title by the High Court. In consequence the decision on those issues became resjudicata so far as appeals Nos. 365 and 366 are concerned and s. 11 of the Code of Civil Procedure would bar the hearing of those common issues over again. It is not in dispute that if the decision on the common issues in suits Nos. 77 and 91 has become res judicata, appeals Nos. 365 and 366 are concerned and s. 11 of the Code of Civil Procedure would bar the hearing of those common issues over again. It is not in dispute that if the decision on the common issues in suits Nos. 77 and 91 has become res judicata, appeals Nos. 365 and 366 must fail. We therefore dismiss the appeals with costs, one set of hearing fee. Appeals dismissed.” 11. Keeping into consideration the above ratio as laid down by the Hon’ble Apex Court, the present appeal would definitely be governed by the judgment dated 17.04.2017 as vide the said judgment, all the issues as decided by the learned trial Court vide the judgment and decree dated 12.08.2016, have been affirmed. Issues which are under challenge in the present appeal having already been affirmed by this Court, no finding contrary to the said findings can be given by this Court as no law permits two inconsistent decrees. Therefore also, the present appeal does not deserve any consideration on merits. 12. In view of the above analysis and observations, this Court is of the clear opinion that in light of judgment dated 17.04.2017 whereby the impugned judgment and decree was affirmed, the present appeal also deserves to be dismissed. 13. The present appeal is hence, dismissed in light of the judgment dated 17.04.2017 passed in Civil First Appeal No.370/2016. 14. Stay petition and all the pending applications, if any, stand disposed of.