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2025 DIGILAW 588 (JHR)

Rahat Sayeed Khan v. Prakash I. Thakkar

2025-02-25

ANUBHA RAWAT CHOUDHARY

body2025
JUDGMENT : ANUBHA RAWAT CHOUDHARY, J. Heard the learned counsels appearing on behalf of the parties. 2. This appeal has been filed by defendant nos. 6 and 7 of the suit against the judgment and decree dated 28.02.2023 (decree signed on 13.03.2023) passed by learned Civil Judge, Senior Division, Chandil in Title Suit No. 13 of 2014 whereby the suit has been decreed and the sale-deed executed by defendant no. 5 (the power of attorney holder of defendant nos. 1 to 4) in favour of the defendant nos. 6 and 7 has been set-aside. Arguments on behalf of the Appellants 3. Learned counsel for the appellants has submitted that the core issue involved in this case is related to issue no. 4 as framed by the learned trial Court which is as under: whether the plaintiffs are entitled for a decree declaring that the registered sale deed no. 687 dated 06.03.2012 executed by defendant no. 5 in favour of defendant nos. 6 and 7 is null and void and did not confer any right in favour of the defendants? 4. The learned counsel submits that the aforesaid issue has been decided by the learned trial Court vide paragraph 20 of the impugned judgment. He further submits that the learned trial Court has considered primarily the point as to whether the vendor of the property had the right to sell the property. The court found that Exhibit 20 and 20/1 which was the deposition in Title Suit No. 42 of 1982 was relevant. A reference was made to the deposition of Joyesh M. Thakkar in the said case where he had submitted that the property was purchased from joint family fund by his father who expired in the year 1972 and in the said suit, he also asserted that in the year 1973, there was a partition in the family wherein his uncle Indu Lal G Thakkar had participated and the property in question fell in the share of Indu Lal G Thakkar. A reference was also made to Exhibit- C in Title Suit No. 42 of 1982 which has been marked as exhibit-16 in the present suit. A reference was also made to Exhibit- C in Title Suit No. 42 of 1982 which has been marked as exhibit-16 in the present suit. The deposition of the mother of Joyesh M. Thakkar namely Sabita M. Thakkar in the earlier suit was also exhibited in the present suit which was marked as exhibit- 20/1 wherein in she referred to exhibit-C (exhibit-16 in the present suit) as the document of partition. 5. The learned counsel for the appellants has also submitted that primarily on the basis of the deposition in the Title Suit No. 42 of 1982 and the exhibits thereunder, the learned trial Court held that the property involved in the aforesaid sale-deed did not fall in the share of the vendor of the property and consequently held that the vendor had no right to sell the property and it was held to be null and void. 6. The learned counsel has referred to the plaint wherein in paragraph 8 it has been mentioned that after the death of Mani Kant G. Thakkar, there was family partition of joint family properties amongst the 3 brothers of Mani Kant G. Thakkar and the widow, son and daughters of Mani Kant G. Thakkar. He submits that this statement was denied by defendant nos. 1, 2, 5, 6 and 7 in their written statement vide paragraph 22 which is quoted as under: “22. That the statements made in para 8 and para 9 of the plaint are totally false, incorrect and wrong and hereby denied by the answering defendants as because there was no any such Family Partition with respect to the land of the said Mauza- Kanderbera nor the half portion of the Schedule-A land ever been allotted and given in the share of Indulal G. Thakkar nor he possessed the said land till his death nor the plaintiff came in possession of the land at any point of time after the death of Indulal G. Thakkar.” 7. The learned counsel has thereafter referred to Exhibit-16 which was exhibit-C in the previous suit [Title Suit No. 42 of 1982] and has submitted that by no stretch of imagination the said document can be a document of partition. The learned counsel has thereafter referred to Exhibit-16 which was exhibit-C in the previous suit [Title Suit No. 42 of 1982] and has submitted that by no stretch of imagination the said document can be a document of partition. Admittedly, the same is an un-registered document and on bare perusal of Exhibit 16, it is apparent that it was not signed by sons and daughters of Sabita M. Thakkar and further, the document was not referring to any previous partition rather it was referring to certain future adjustments amongst the family members. He has submitted that Exhibit- 16 being an unregistered document, was inadmissible in evidence. He has also submitted that Exhibit- 16 has not been proved by any of the witnesses, rather a certified copy of the same was procured from the records of the earlier title suit and was simply marked exhibit. 8. The learned counsel for the appellants has also submitted that exhibit-C in the previous suit and exhibit- 16 in the present suit was asserted to be the document of partition and the said document is inadmissible in evidence. He has also submitted that the plea of partition was raised only to make out a case that defendant nos. 1 to 4 did not have any right to transfer the property. The learned counsel submits that even if the partition is not accepted as valid, then under such circumstances, defendant nos. 1 to 4 would have a share in the joint family and were entitled to transfer the property to defendant nos. 6 and 7 through their power of attorney holder i.e. defendant no.5. 9. The learned counsel has also submitted that otherwise also in the evidence of Sabita M. Thakkar in the previous suit during her cross-examination revealed that she had no idea regarding the partition, she is absolutely illiterate and in the said case she deposed under the instructions of sons of Indu Lal G. Thakkar who are the plaintiffs in the present case. 10. Learned counsel for the appellants has relied upon the following judgments: (i) AIR 1967 SC 341 (Basant Singh Vs. Janki Singh and others) (paragraph 5), (ii) (2010) 4 SCC 491 (Life Insurance Corporation of India and Another Vs. Ram Pal Singh Bisen) (paragraphs 21, 22, 25, 26 and 31). Arguments on behalf of the Respondent Nos. 1 to 4 11. Learned counsel for the appellants has relied upon the following judgments: (i) AIR 1967 SC 341 (Basant Singh Vs. Janki Singh and others) (paragraph 5), (ii) (2010) 4 SCC 491 (Life Insurance Corporation of India and Another Vs. Ram Pal Singh Bisen) (paragraphs 21, 22, 25, 26 and 31). Arguments on behalf of the Respondent Nos. 1 to 4 11. The learned counsel appearing on behalf of the respondent nos. 1 to 4 representing the plaintiffs of the case has referred to the judgment passed in Title Appeal No. 10 of 1992 decided on 30 th September 1999 which was arising out of the judgment and decree passed in Title Suit No. 42 of 1982 whereby the judgment passed by the learned trial Court was reversed. The judgment dated 30 th September 1999 passed in Title Appeal No. 10 of 1992 was marked as Exhibit- 22/1. The learned counsel has submitted that all the defendant nos. 1 to 4 were party in the said proceedings and though the suit was initially fought between Hari Narayan Parekh on the one hand and the family members of Mani Kant G. Thakkar on the other, but in the said suit, all the family members had taken a specific stand that the property was purchased by Mani Kant G. Thakkar from joint family fund and after his death in the year 1972, there was a partition and the property involved in the case to the extent it related to be in the name of Mani Kant G. Thakkar was allocated to Indu Lal G Thakkar. He has referred to the written statement which was filed in the said case as recorded in the aforesaid appellate court’s judgment at paragraph 4 and has submitted that the finding in that connection has been recorded in paragraphs 13 to 16 of the judgment. 12. The learned counsel submits that once all the family members of Mani Kant G. Thakkar had taken a specific stand that there was a partition and the property was allocated in the name of Indu Lal G Thakkar, there was no occasion for them to deny the factum of partition. He submits that the allocation of share of the suit property in the name of Indu Lal G Thakkar stood concluded and therefore, the defendant nos. He submits that the allocation of share of the suit property in the name of Indu Lal G Thakkar stood concluded and therefore, the defendant nos. 1 to 4 of the present case had no right, title and interest to transfer the property in favour of defendant nos. 6 and 7 through defendant no. 5. He submits that the learned trial Court has rightly held the sale-deed as void ab initio. 13. The learned counsel for the respondent nos. 1 to 4 has also relied upon the judgment passed in Second Appeal No. 101 of 1999(R) decided on 14.02.2001 (Exhibit-13) arising out of the aforesaid Title Suit of the year 1982 and has submitted that at the second appellate stage also, it has been again recorded that admittedly in the year 1972, after the death of Mani Kant G. Thakkar, there was partition in the family wherein half share of the suit property was allocated to Indu Lal G. Thakkar. It was also recorded at the 2 nd appellate stage that Mani Kant G. Thakkar had paid the consideration amount to the tune of Rs. 5,000/- out of his joint family fund. The learned counsel has submitted that since the defendant nos. 1 to 4 and the plaintiffs were party in the earlier title suit, they are bound by the findings recorded by the earlier title suit and if any contrary finding is recorded by this Court with regard to factum of partition, the same would amount to passing a contrary decree. 14. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (1997) 2 SCC 552 [Gorie Gouri Naidu (Minor) and Another Vs. Thandrothu Bodemma and Others] to submit that even if erroneous, an inter party judgment binds the parties. He submits that accordingly the earlier suit where a specific stand was taken by the defendant nos. 1 to 4 that there was a previous partition and finding to that effect recorded therein, the same is binding on the plaintiffs and defendant nos. 1 to 4 of the present case. 15. Learned counsel for the respondents has also submitted that accordingly registration or non-registration of the Exhibit-16 which was Exhibit- C in the previous suit, has no relevance. Arguments on behalf of the Respondent no. 9 16. The learned counsel appearing on behalf of the respondent no. 1 to 4 of the present case. 15. Learned counsel for the respondents has also submitted that accordingly registration or non-registration of the Exhibit-16 which was Exhibit- C in the previous suit, has no relevance. Arguments on behalf of the Respondent no. 9 16. The learned counsel appearing on behalf of the respondent no. 9 has submitted that he is just a formal party in the present case. Essentially the fight is between defendant nos. 1 to 7 and the plaintiffs. Rejoinder Arguments on behalf of the Appellants 17. In response, learned counsel for the appellants has referred to the judgment passed in Title Appeal No. 10 of 1992 and has submitted that no issue was framed with regard to partition amongst the family of Thakkars and there was no occasion to frame such an issue as the suit was essentially filed by the plaintiff Hari Narayan Parekh who claimed that the entire property was purchased by paying consideration exclusively by him and ultimately, the appeal was decided against Hari Narayan Parekh and the suit stood dismissed. 18. Learned counsel for the appellants also submits that no issue regarding previous partition was framed either in the earlier suit or in the present suit. 19. Arguments concluded. 20. Post this case for judgment on 15.04.2025.