Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.437 of 1990 Against the Judgment and Decree dated 28.08.1990 passed by the Ist Addl. District Judge, Muzaffarpur in Title Appeal No.149 of 1961 allowing the appeal and setting aside the Judgment and Decree dated 11.08.1961 passed by the Munsif IInd Court, Muzaffarpur in redemption suit No.80 of 1959. ===================================================== Shree Narayan Ojha & Anr. ….......Defendants-respondents-appellants Fulsawaro Devi & Anr. Versus .............Plaintiffs-appellants-respondents ===================================================== Appearance : For the Appellant/s : Mr. Dhruv Narayan, Sr. Advocate Mr. Pramod Kumar Thakur, Advocate with him. Mr. Ram Naresh Shukla, Advocate For the Respondent/s : None ===================================================== Dated : the 29thday of October, 2013 P R E S E N T CORAM : THE HON’BLE MR. JUSTICE MUNGESHWAR SAHOO C A V J U D G M E N T 1. The defendants have filed this appeal against the Judgment and Decree dated 28.08.1990 passed by the learned Ist Addl. District Judge, Muzaffarpur in title appeal No.149 of 1961 whereby the learned lower appellate Court allowed the appeal and set aside the Judgment and Decree of 2
Legal Reasoning
Patna High Court SA No.437 of 1990 dt.29-10-2013 2 / 7 the trial Court dated 11.08.1961 passed by the learned Munsif, IInd Court Muzaffarpur in redemption Suit No.80 of 1959. 2. Originally, the plaintiff had filed the aforesaid redemption suit against the defendant which was dismissed by the trial Court. Against the said Judgment of the trial Court, title appeal was filed before the lower appellate Court. During the pendency of the said title appeal, amendment application was filed and a relief was sought for declaration of title and recovery of possession with respect to Schedule I property and further for a decree for partition regarding Schedule II property if it is found that the properties has not been partitioned. The said amendment was allowed by the lower appellate Court. The defendant filed civil revision No.1181 of 1961 before the High Court which was dismissed. Thereafter, the title appeal was heard and the Judgment of the trial Court was set side and the mater was remanded to the trial Court. Revision was filed before the High Court by the defendant. The High Court set aside the remand order and the lower appellate Court was directed to hear the appeal afresh and pass a fresh Judgment according to law. Ultimately, the appellate Court by Judgment and Decree dated 21st July, 1972 dismissed the title appeal. Against the said Judgment, Second Appeal No.487 of 1972 was filed before the High Court. The High Court set aside the Judgment of the appellate Court and again remanded to the appellate Court for a fresh decision. Thereafter, the impugned Judgment has been passed by the lower appellate Court. 3. From perusal of the Judgment of the lower appellate Court, it appears that because of the long pendency of the appeal, the lower Court records were misplaced and most of the documents were not available before the Court below. Because of the long pendency, the lower appellate Court 3 Patna High Court SA No.437 of 1990 dt.29-10-2013 3 / 7 with the consent of the parties heard the appeal on the materials available on record and by the impugned Judgment allowed the appeal. 4. The plaintiffs filed the aforesaid suit paying for redemption alleging that original owner Lakshman Kumhar had two son, namely, Dasu Kumhar and Darshan Kumhar. Dasu died leaving behind a widow Sanichari and a daughter Makhani. Likewise Darshan Kumhar died leaving behind his widow Udiya. After death of Lakshman, there was partition between his two son and the suit land fell in the share of Dasu. Bhagwat Ojha the ancestor of the contesting defendant had a daughter Mostt. Gangiya @ Gango who was residing with her father after she became widow so Bhagwat Ojha took the Schedule I land on mortgage from Dasu on 5.9.1916 in the benami name of his daughter Gangiya. On the death of Bhagwat Ojha, the defendant No.1 and 2 being the heirs are coming in possession of the property as mortgagee. On the death of Dasu Kumhar, the property was inherited by his widow Sanichari and after her death Makhni became the owner of the property who sold the property to the plaintiff by registered sale deed dated 14.8.1958 for Rs.898/-. Out of the consideration amount Rs.45/- remained with the plaintiff for redeeming usufruct mortgage. The plaintiff deposited the amount according to Section 83 of the Transfer of Property Act but the defendants are not delivering the property to the plaintiff. Subsequently as stated above, during the pendnecy of the appeal, the plaintiff’s sought for declaration of title for Schedule I property and for partition of Schedule II property. 5. The defendants filed contesting written statement. According to them Gangiya was not the daughter of Bhagwat rather she was the daughter of Bhagwan Ojha. She had taken the land on mortgagee herself. The rent was due for the land and the lessee Motipur Indigo was pressing her for the payment of rent. Therefore, Dasu Kumhar surrendered the land to the 4 Patna High Court SA No.437 of 1990 dt.29-10-2013 4 / 7 landlord and requested that the name of Bhagwat Ojha be mutated and he be recognized as Kastkar because Dasu Kumhar also owed Rs.15/- to Bhagwat Ojha. Accordingly, the Jamabandi of Dasu Kumhar was reduced and Jamabandi of Bhagwat Ojha was increased in 1923. Bhagwat Ojha redeemed the usufruct mortgage by making payment to Gangiya and became the owner of the property. There was no custom of transfer, therefore, Dasu surrendered the land. The said Bhagwat Ojha dedicated the disputed land
Legal Reasoning
with other lands in favour of Sri Shokha Shambhu Nath, a deity. Bhagwat Ojha was shevait and after his death his wife Jhalo Devi became the shevait and on her death present defendant No.1 and 2 are looking after the property as shevait. All other allegation was denied. According to the defendants, Dasu Kumhar had other two daughters namely Anhia and Bhaktia. 6. The trial Court dismissed the plaintiff’s suit finding that Mostt. Gangiya was not the daughter of Bhagwat Ojha and Bhagwat Ojha was not the Kastkar and his possession was that of a trespasser. The plaintiffs are estopped from saying that the defendant appellants are mortgagee. The plaintiff has no right to redeem the property. Accordingly, dismissed the plaintiff’s suit. 7. On appeal, the lower appellate Court came to the conclusion that Gangiya was not the daughter of Bhagwat Ojha nor was benamidar. Only because of mutation, title did not pass to Bhagwat Ojha. Since, the plot No.1403, 1405, 1406 were jointly purchased by ancestor of the defendant and the plaintiff from Mostt. Udiya, there is no question of estoppels arises. Since the plaintiff is purchaser from co-sharer as such has a right to redeem the mortgage bound and since there was no partition, the plaintiff is entitled for decree for partition with respect to Schedule II property. 5 Patna High Court SA No.437 of 1990 dt.29-10-2013 5 / 7 8. On 18.03.1993, the following substantial question of law was formulated : “Whether the Court below erred in law in passing a decree for partition when the prayer was for redemption of the suit property on the basis of a mortgage deed executed in the year 1916 in favour of one Gangiya who as finding was not the daughter of Bhagwat Ojha”. 9. The learned senior counsel, Mr. Dhruv Narayan appearing on behalf of the appellant submitted that the plaintiff never prayed for partition in the original suit and likewise there is no prayer for declaration of title and moreover Bhagwat Ojha after redemption has already dedicated the property to the family deity by registered endowment deed. The plaintiff never made the deity as party. Since, there was no custom for transfer the property which was surrendered by the owner Dasu in favour of landlord and at the request of Dasu the property was mutated in the name of Bhagwat Ojha. Thereafter, he has redeemed the property. After redemption, he became absolute owner, therefore, he had dedicated to the family deity. Moreover, the suit for redemption could not have been converted to a suit for declaration of title and for the first time, the amendment could not have been allowed by the lower appellate Court. According to the learned counsel, the lower appellate Court has wrongly held that the plaintiff is entitled to redeem the property because admittedly Dasu had other two daughters and the plaintiff had purchased from only one daughter. The learned counsel further submitted that the suit is bad for mis-joinder of necessary party, i.e., the deity in favour of whom the property has been dedicated by Bhagwat Ojha. On these grounds, the learned counsel submitted that the substantial question of law be answered in favour of appellant. 6 Patna High Court SA No.437 of 1990 dt.29-10-2013 6 / 7 10. As stated above, nobody appeared on behalf of the respondent at the time of hearing of the appeal. 11. From perusal of the substantial question of law, it appears that the substantial question of law formulated pre supposes that there was no prayer for partition. However, it is admitted fact which would be evident from the Judgment of the lower appellate Court that during the pendnecy of the appeal, plaint was amended and the relief for partition was sought for. Therefore, now, it cannot be said that in a redemption suit, a decree for partition has been granted. Originally, the order of amendment was challenged by filing civil revision before the High Court which was dismissed. From perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court has categorically recorded a finding that there was no partition with respect to Schedule II property. So far this finding is concerned, it is pure finding of fact. The mortgage was made by Dasu with respect to his share only. The lower appellate Court also recorded a finding that by mere mutation in the name of Bhagwat Ojha, title will not pass. It is admitted fact that the lands were not transferable, therefore, according to the defendants Dasu surrendered the land and requested to get the name of Bhagwat Ojha mutated. In my opinion, this defence case itself indicates that to circumvent the bar the land was transferred to the landlord and then name of Bhagwat Ojha was mutated. Therefore, the finding of the lower appellate Court to the effect that by this mutation of the name of Bhagwat, title did not pass is in accordance with law as such cannot be interfered with. It is admitted fact that Makhni was the daughter of Dasu who has sold the property to the plaintiff and also right to redemption was given to the plaintiff. Now, therefore, the plaintiff has the right to redeem property. The only defence of the defendant is that Bhagwat Ojha was mutated with respect to the property and he 7 Patna High Court SA No.437 of 1990 dt.29-10-2013 7 / 7 dedicated the property to the deity. If title did not pass to Bhagwat Ojha then every subsequent transfer made by Bhagwat Ojha will never affect the title of the plaintiff with respect to the property. He was not the owner of the property, therefore, he could not have redeemed the property from Gangiya. Therefore, the learned lower appellate Court has right held so. 12. In view of the above settled proposition of law, the relief for redemption with respect to the Schedule I property and relief for partition with respect to Schedule II property has been decreed after amendment, I find that there is no illegality in the impugned Judgment and Decree. The substantial question of law formulated does not arise for consideration in this second appeal in view of the above facts. As such it is answered against the appellant. 13. In the result, this Second Appeal is dismissed. In the facts and circumstances of the case, no order as to cost. (Mungeshwar Sahoo, J.) Sanjeev/-