KAUSHALYA DEVI v. ASHARFI SAH & ORS

For respondent no.1 : Mr. Yogesh Chandra Verma, Senior Advocate Mr. Yogendra Prasad Sinha, Advocate ---- O R D E R

23.04.2009 Heard learned counsel for the appellant and learned counsel - 2 - for respondent no.1.

2. This second appeal arises out of Miscellaneous Case No.09 of 1993 which was filed by respondent no.1 Asharfi Sah under the provision of Section 144 of the Code of Civil Procedure for restitution of possession.

3. The said miscellaneous case was allowed on contest by the learned Munsif, Raxaul vide his judgment dated 06.09.2000. Against the aforesaid judgment of the trial court, respondent no.9 Deosharan Raut filed Title Appeal No.70 of 2000 which was dismissed on contest by learned 1st Additional District Judge, East Champaran, vide his judgment and decree dated 05.03.2001. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed by Kaushalya Devi, who was not a party to the aforementioned title suit and title appeal.

4. From the claims of the respective parties, it appears that original owner of the suit property was Ugar Raut who was recorded raiyat with respect to 3 bighas, 2 kathas and 9 dhurs of land and he left behind two sons Bhagwan Raut and Raghubir Raut, out of whom Bhagwan Raut left behind a widow Phul Kunwar, who executed a registered deed of sale dated 29.07.1957 with respect to the share of Bhagwan Raut in favour of her grand sons Jang Bahadur Raut (respondent no.7) and Bir Bahadur Raut (respondent no.8) who subsequently sold it to Asharfi Sah (respondent no.1) vide registered sale deed dated 18.06.1964. On the other hand, Raghubir Raut left behind two sons and a daughter, namely Pargan Raut (predecessor of - 3 - respondents no.2 to 4), Deosharan Raut (respondent no.9) and Kaushalya Devi (appellant).

5. It further transpires that Pargan Raut and Deosharan Raut filed Title Suit No.333 of 1969 for declaration of title and recovery of possession challenging the validity of the registered sale deed dated 18.6.1964 executed by Jang Bahadur Raut (respondent no.7) and Bir Bahadur Raut (respondent no.8) in favour of Asharfi Sah (respondent no.1) claiming that Bhagwan Raut had died in the year 1930 and hence his widow had no right to execute any sale deed in favour of Jang Bahadur Raut and Bir Bahadur Raut as all the properties of Bhagwan Raut, who died without leaving behind any male issue, devolved upon his brother Raghubir Raut according to principles of survivorship. The said title suit was decreed by the trial court vide judgment and decree dated 23.04.1977 (Ext.-1). For execution of the said decree, Execution Case No.14 of 1982 was filed by Pargan Raut and Deosharan Raut in which delivery of possession was effected in their favour on 31.10.1982 through the process of the court.

6. Against the judgment and decree passed in Title Suit No.333 of 1969 Asharfi Sah filed Title Appeal No.79 of 1977 which was allowed by the learned court of appeal below vide its judgment and decree dated 21.03.1983 (Ext.-1/A) and the judgment and decree of the title suit was set aside. Pargan Raut and Deosharan Raut filed S.A.No.190 of 1993 challenging the judgment and decree of the title appeal, but this court vide its judgment dated 15.02.1984 (Ext.-2) - 4 - dismissed the second appeal and affirmed the judgment and decree of the Title Appeal.

7. In the said circumstances, Asharfi Sah (respondent no.1) filed Miscellaneous Case No.09 of 1993 under the provision of Section 144 of the Code of Civil Procedure for restitution of possession as the decree passed in Title Suit No.333 of 1969 had been set aside on the basis of which he had been dispossessed in the execution case. The said miscellaneous case had been allowed by the learned trial court and the judgment of the trial court had also been affirmed by the lower appellate court, but the said judgments and decree of the learned courts below have not been challenged either by the appellants of the title appeal or by any of the parties to the said miscellaneous case or the title appeal and only Kaushalya Devi, who was not a party in any of the suits or appeals or the miscellaneous case mentioned above, has filed the instant second appeal claiming to be the sister of Pargan Raut and Deosharan Raut.

8. Learned counsel for the appellant has submitted that the judgments and decree passed in Title Suit No.333 of 1969, Title Appeal No.79 of 1977 or Second Appeal No.190 of 1983 are not binding upon her as she was not a party in those cases. He further submitted that the said Kaushalya Devi (appellant) had filed Title Suit No.127 of 1995 for partition of her 1/9th share and also for declaration that sale deed by Phul Kunwar in favour of Jang Bahadur Raut and Bir Bahadur Raut dated 29.07.1957 as well as sale deed by Jang Bahadur Raut and Bir Bahadur Raut in favour of Asharfi Sah - 5 - dated 18.06.1964 be declared void. It was also claimed that in the said suit everyone was a party and the said suit was decreed on contest by the trial court vide its judgment and decree dated

15.04.1999 (Ext.-B). Hence, is claimed the said circumstances, the appellant Kaushalya Devi had full right and authority to file the instant second appeal against the judgments and decree of the learned courts below.

9. On the other hand, learned counsel for respondent no.1 has submitted that the question of the validity and legality of sale deeds dated 29.07.1957 and 18.06.1964 had already been decided by the courts of law up till this court and hence there is no occasion for taking any other view. He further submitted that the said judgment and decree dated 15.04.1999 passed in Title Suit No.127 of 1995 (filed by Kaushalya Devi) has been challenged by Asharfi Sah, respondent no.1, by way of filing First Appeal No.356 of 1999 in this court, but on account of valuation of the suit, the said First Appeal had been sent down to the District Judge, East Champaran, where it is pending before the learned Additional District Judge- cum-Fast Track Court No.1, East Champaran at Motihari.

10. From the aforesaid facts and circumstances, it is quite apparent that the judgment and decree of the trial court passed in Title Suit No.197 of 1995 is not final and it is sub-judice before the lower appellate court. It further transpires from order dated

01.06.1998 passed by a Bench of this High Court in Miscellaneous Appeal No.21 of 1998, which had arisen out of Title Suit No.127 of - 6 - 1995 that the prayer of appellant for injunction against respondent no.1 was rejected and the appellant of this second appeal, namely Kaushalya Devi was fully aware of title Suit no.333 of 1969, Title Appeal No.79 of 1977 and Second Appeal No.190 of 1983 along with judgments and decree passed therein and was also aware of the pendency of Miscellaneous Case no.09 of 1993 which was filed by Asharfi Sah for restitution of possession. Thus it is quite strange that having full knowledge about the aforesaid litigations in the year 1998 itself, the appellant Kaushalya Devi neither appeared in Miscellaneous Case no.09 of 1993 which was allowed on

06.09.2000, nor took any step in Title Appeal No.70 of 2000 which was dismissed on 05.03.2001 and only thereafter chose to file the instant second appeal (S.A.No.97 of 2001).

11. Furthermore, from the judgment of this court dated

15.02.1984 passed in S.A.No.190 of 1983 it appears that it had upheld the finding of the lower appellate court that Bhagwan Raut and Raghubir Raut were full brothers, out of whom Bhagwan Raut died in the year 1940. In the said circumstances, if Bhagwan Raut died after the promulgation of Hindu Women’s Right to Property Act, 1937, his widow Phul Kunwar had full right and title to execute the sale deed dated 29.07.1957 with respect to his share in favour of her grand sons Jang Bahadur Raut and Bir Bahadur Raut who in turn sold the said land to Asharfi Sah (respondent no.1) by registered deed dated 18.06.1964. This court had specifically held that a sale deed by a co-tenant, which Phul Kunwar was in the year 1957, - 7 - cannot be held to be invalid merely because the property was joint with another co-tenant, namely Raghubir Raut and hence transferees from Phul Kunwar were entitled to the property subject to the right of Raghubir Raut and any person claiming through him, to claim partition. But even such a partition cannot be allowed unless a partition of the entire joint estate of Raghubir and Bhagwan is asked for.

12. Considering the entire facts and circumstances of this case as mentioned above, the claim of the appellant in the instant second appeal is absolutely, frivolous, misconceived and unsustainable. This court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. Sunil (S. N. Hussain, J.)