Anita Srivastava, aged about 56 years, W/o Late Akhouri Shashi Prasad Srivastava @ S.S.P v. 1. Sanjay Kumar Thakur 2. Anup Kumar Thakur, both sons of Binod Kumar Thakur
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.191 of 2022 ------ Anita Srivastava, aged about 56 years, W/o Late Akhouri Shashi Prasad Srivastava @ S.S.P. Srivastava, R/o Station Road, Garikhana, under P.O. and P.S. –Chaibasa, District –Singhbhum West. .... …. Defendant/Appellant/Appellant .... Versus 1. Sanjay Kumar Thakur 2. Anup Kumar Thakur, both sons of Binod Kumar Thakur, By faith Hindu, By occupation Business, R/o Mohalla Garikhana, P.O. Chaibasa, P.S. –Sadar, District –Singhbhum West -833201 .... .... …. Plaintiff/Respondents/Respondents 3. Reena Kumari, D/o Late Binod Kumar Thakur, W/o Sri Ravi Kumar Thakur, R/o Bandhpara, P.O. and P.S. –Chaibasa, District – Singhbhum West. 4. Ruma Kumari, D/o Late Binod Kumar Thakur, W/o Sri Dilip Kumar, R/o P.O. –K.G. Ashram, Govindpur, Bhumipore Bank Colony, under P.S. Dhanbad, District –Dhanbad. 5. Rinki Kumari , D/o Late Binod Kumar Thakur, W/o Sri Rajesh Kumar Thakur, R/o Barkandaj Toli under P.O. and P.S. Chaibasa, District Singhbhum West. 6. Baby Kumari, D/o Late Binod Kumar Thakur, W/o Sri Santosh Kumar, R/o Garikhana, P.O. and P.S. –Chaibasa, District –Singhbhum West .... .... …. Proforma Respondents/Defendants 7. Naresh Kumar Thakur, S/o Late Lachmi Naruyan Thakur, R/o Garikhana, P.O. Chaibasa, P.S. Sadar, Dist. Singhbhum West. 8. Chhoten Kumar Thakur, S/o Late Lachmi Naruyan Thakur, R/o Road no.1 Bagbera Jamshedpur, P.O.+P.S. Bagbera, District –East Singhbhum. …. .... …. Defendants/Proforma Respondents/Proforma Defendants ------ For the Appellants : Mr. Ashok Kr. Pandey, Advocate : Ms. Savita Kumari, Advocate ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned counsel for the appellant. 2. This second appeal under Section 100 of Code of Civil Procedure has been preferred against the judgment and decree of concurrence dated 01.09.2022 passed by the learned Principal District Judge, West Singhbhum at Chaibasa in Civil Appeal No.02
Legal Reasoning
of 2017 whereby and where under, the learned first appellate court 1 Second Appeal No. 191 of 2022 has dismissed the appeal. 3. The brief fact of the case is that the plaintiffs-respondents filed Title Suit No. 2 of 2013 in the court of Civil Judge (Senior Division)-I, West Singhbhum at Chaibasa with a prayer for a decree declaring the agreement dated 02.02.1999 entered into by and between the defendant no.1 and 2 is illegal, inoperative, null and void, void-ab-initio and not binding upon the plaintiffs and liable to be declared so and be cancelled. The plaintiffs made further prayer for recovery of khas possession of the suit property described in the schedule of the plaint from defendant no.2, costs of the suit and other reliefs. 4. The case of the plaintiffs in brief is that the plaintiffs are the sons of defendant no.1. The grandfather of the plaintiffs Late Laxmi Narayan Thakur died in the year 1968 leaving behind the defendant no.1, 3 & 4 as his legal heirs and successors who inherited the property. The suit land originally stood recorded in the name of the said grandfather of the plaintiffs namely Laxmi Narayan Thakur, consequent upon lease being granted in his favour by the State of Bihar through its Khasmahal Department for thirty years. The plaintiffs and the defendant nos. 1, 3 & 4 are governed by Mitakshara School of Hindu Law and they are the co- parceners of Laxmi Narayan Thakur, with respect to the suit property. Thus the plaintiffs are entitled to the specific individual share in the suit property. In the year 1999, the defendant no.2 along with her husband and family members came and resided in a portion of the suit house. The plaintiffs were of tender age at that 2 Second Appeal No. 191 of 2022 time and the affairs of the joint family property was looked after by the defendant no.1. The defendant no.1 inducted the defendant no.2 as a tenant in a portion of the suit property on monthly rent. When the plaintiffs grew up and became matured, they came to know that the defendant no.2 or her husband are not paying any rent to the defendant no.1. On being inquired, in the month of May, 2010, the defendant no.1 disclosed that he has entered into an agreement for sale with the defendant no.2 in respect of 1 Katha and 2 dhurs of the land out of the suit property. The plaintiffs requested the defendant no.1 to cancel the agreement for sale but the defendant no.1 did not agree for the same. The plaintiff then pleaded that the suit land being a joint ancestral property of the plaintiffs and their co-parceners and the lease of the whole property expired in the year 1995 and the matter is presently pending before the Khasmahal Authority which is to be renewed jointly in the name of defendant no.1 and pro-forma defendant nos. 3 & 4. The plaintiffs next pleaded that the defendant no.1 entered into the agreement with the defendant no.2 without the consent of even the pro-forma defendant nos. 3 & 4 and other co- sharers of the property. It was contended by the plaintiff that the defendant no.1 was not entitled to execute the said agreement in respect of the joint family property. Hence, the plaintiffs filed the suit. 5. The defendant no.1 did not file any written statement within the stipulated time. Consequently, the defendant no.1 was debarred from filing written statement. The defendant no.2 3 Second Appeal No. 191 of 2022 contested the suit by filing written statement on various technical grounds. The defendant no.2 further pleaded that the defendant no.1 and his brothers have jointly filed an application for renewal of the lease granted in favour of their father; which is still pending. The defendant no.2 pleaded that the descendants of Laxmi Narayan Hajam have partitioned their property and after such partition, the descendants of Laxmi Narayan Hajam are in exclusive possession upon their respective shares. The defendant no.1 filed Eviction Suit No. 7 of 1989 against Sudha Madhab Dogra, in which, the defendant no.1 deposed that there was a partition between him and his brothers and the defendant no.1 also filed a Sketch Map showing the partition between them. The defendant no.2 next pleaded that Binod Kumar Thakur, being in need of money proposed to sale the property but as sale could not be effected without the permission of Town Khasmahal Authority, hence he entered into an agreement for sale after receiving amount and delivered possession to the defendant no.2, who came in possession of the suit land, in part performance of the contract. The defendant no.2 renovated the suit house by spending Rs.3,00,000/. Chotan Thakur, another son of Laxmi Narayan Hajam has executed a similar deed of agreement to sell in favour of defendant no.2 for a consideration of Rs.1,10,000/-. The defendant no.3 did not appear in the suit after receiving the summons issued by the court, so the suit proceeded ex-parte against him. The defendant no.4 did not file any written statement and he was debarred from filing written statement. 4 Second Appeal No. 191 of 2022 6. On the basis of rival pleadings of the parties, the learned trial court settled the following ten issues: - (I) Is the suit maintainable in its present form or for the reliefs claimed? (II) Have plaintiffs any cause of action or right to sue these (III) defendants? Is the suit barred by law of Limitation, Estoppels, Waiver and Acquiescence? (IV) Whether plaintiffs are co-sharers in respect of the suit property? (V) Whether the suit property is absolute property of Binod Kumar Thakur and he is entitled to transfer the same of his own accord? (VI) Whether agreement dated 2.2.1999 is enforceable in law and fact? (VII) Whether agreement dated 2.2.1999 is illegal, inoperative not binding, void and liable to be declared so? (VIII) Whether plaintiffs are entitled to get recovery of the suit property? (IX) Whether plaintiffs are entitled to get the reliefs prayed in (X) the plaint? To what relief/reliefs, plaintiffs are entitled? 7. In support of their case, the plaintiff examined only one witness and proved the documents which have been marked Ext. 1 to Ext.2/1. On the other hand, from the side of the defendants, the defendants examined altogether two witnesses and the defendants also proved the documents which has been marked Ext. A to Ext.D. 8. The learned trial court first took up issue no. IV for consideration and after considering the evidence in the record came to the conclusion that the suit land is the joint family property and the plaintiffs are the co-sharers in respect of the suit property and decided issue no.IV in favour of the plaintiffs. The learned trial court next took up issue no.V and considering the principle of law that a Karta of joint Hindu family property can alienate the joint family property in case of – (i) legal necessity, (ii) benefit of estate and (iii) Indispensable duties; but as the Ext. D Second Appeal No. 191 of 2022 5 which is the agreement entered into by the defendant no.1 with the defendant no.2 was, for none of the said grounds, hence it was held by the learned trial court that the defendant no.1 is not entitled to transfer the suit property of his own accord and decided the issue in favour of the plaintiff. The learned trial court next took up issue nos. VI & VII together and after considering the materials in the record, came to the conclusion that Ext. D is ab-initio null & void and inoperative and decided the issue nos. VI and VII in favour of the plaintiffs. The learned trial court then took up issue no. II and came to the conclusion that the plaintiffs have got valid cause of action to sue the defendants and decided the issue in favour of the plaintiffs. In respect of issue no. VIII then taken up by the learned trial court, the learned trial court held that the plaintiffs are only entitled to one-third share of the allotted share of their father i.e. 1 Katha 2 Dhurs but since they have not made the prayer for partition and as the plaintiffs have not prayed for any consequential reliefs and in the absence of any pleading of legal necessity for possession was not an issue, hence answered the issue no. VIII accordingly. The learned trial court next took up issue no. III and came to the conclusion that the suit is filed within time. The learned trial court then took up issue no. IX and X together and came to the conclusion that the plaintiffs being co- parceners, though are entitled to one-third share each from the allotted share of their father of 1 Katha 2 Dhurs, but without partition and without demarcation are not entitled for recovery of entire suit premises and went on to hold that they will be entitled 6 Second Appeal No. 191 of 2022 for partition and demarcation only in respect of one-third share of the suit premises. Lastly, the learned trial court took up issue no. I and held that the suit is maintainable and ultimately decreed the suit on contest against the defendant no.2 and ex-parte against the defendant no.3 but held that the plaintiffs are not entitled to get recovery of possession of the entire suit premises and they are entitled to get one-third part of each of the suit premises; after getting demarcation of the shares in the suit premises done and only after that they will be entitled to recovery of possession over the suit premises. 9. Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Civil Appeal No.02 of 2017 in the court of Principal District Judge, West Singhbhum at Chaibasa; which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 10. The learned first appellate court on the basis of the materials in the record and submissions made before it, formulated the following point for determination: -
Legal Reasoning
“Whether defendant no.1 namely Binod Kumar Thakur was having absolute title over the suit property and entitled to execute the deed of agreement to sale (Ext. –D) in favour of Defendant no.2 Smt. Anita Srivastava?” 11. The learned first appellate court made independent appreciation of the evidence in the record and considered that it is the admitted case of the parties that the plaintiffs are sons of defendant no.1. The learned first appellate court then considered that as the undivided suit property could have been alienated by 7 Second Appeal No. 191 of 2022 the defendant no.1 in the capacity of Karta only for the legal necessity, therefore, the defendant no.1 was not entitled to transfer or execute agreement for sale on behalf of his minor children, except for legal necessity and in the absence of any legal necessity being established, the agreement executed by defendant no.1 has no legal value. An oral argument was advanced before the first appellate court that as no sale deed has been executed and only an agreement for sale has been executed, so there was no cause of action for the plaintiff to institute the suit. The learned first appellate court referred to Section 31 (1) of the Specific Relief Act, 1963 which reads as under: - “31. When cancellation may be ordered.—(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.” And considered that since the defendant no.1 has executed an agreement to sell which has been marked Ext. D in favour of the defendant, in respect of the suit property, the same caused reasonable apprehension about transfer of the suit property in favour of the defendant no.2 and if it is left outstanding, the same may cause the plaintiff serious injury. Therefore, the plaintiffs have right to sue to cancel the said instrument and overruled the submission of the appellant before it and by thus considering, dismissed the appeal. 12. It is submitted by the learned counsel for the appellant relying upon the Judgment of Hon’ble Supreme Court of India in 8 Second Appeal No. 191 of 2022 the case of M/s Mongia Realty and Buildwell Private Limited Vs. Manik Sethi, reported in (2022) 0 Supreme (SC) 534 wherein the Hon’ble Supreme Court of India has reiterated the settled principle of law envisaged in Order XIV Rule 2 of the Code of Civil Procedure, which stipulates that when issue of both law and fact arises in the same suit, the court may dispose of the suit by trying the issue of law first. The learned counsel for the appellant further submits drawing attention of this Court to Order XIV Rule 2 of the Code of Civil Procedure which reads as under: - ORDER XIV Settlement of Issues and Determination of Suit on Issues of Law or on Issues Agreed upon “[2. Court to pronounce judgment on all issues.—(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to— (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.]” That the court may dispose of a suit on preliminary issue but the court has to pronounce judgment on all issues. 13. It is next submitted by the learned counsel for the appellant that as the learned first appellate court has not dealt with each of the issues framed by the learned trial court, hence the judgment 9 Second Appeal No. 191 of 2022 and decree passed by the learned first appellate court is bad in law. It is then submitted that both the courts below have committed perversity by not giving due weightage to the Ext. B- in which the defendant no.1 deposed that there was a partition between him and his brothers. Hence, it is submitted that the judgment and decree passed by both the courts below being not sustainable in law be set aside, after formulating appropriate substantial question of law and the suit of the plaintiffs be dismissed. 14. Having heard the submissions made at the Bar and after carefully going through the materials in the record, this Court is of the considered view that the contention of the learned counsel for the appellant that the learned first appellate court has to give finding in respect of each of the issues framed by the learned trial court is concerned, the said submission is a misconceived one. Rule Rule 31 of Order XLI of the Code of Civil Procedure which reads as under:- ORDER XLI Appeals from Original Decrees “31. Contents, date and signature of judgment.—The judgment of the Appellate Court shall be in writing and shall state— (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” Lays down the contents of the judgment to be passed by the learned first appellate court and a plain reading of the same reveals that the learned first appellate court has to formulate points 10 Second Appeal No. 191 of 2022 for determination obviously on the basis of the submissions made by the rival parties before it and to render decision on such points of determination and must support such decisions with reasons. 15. Under such circumstances, this Court is of the considered view that Order XIV Rule 2 of the Code of Civil Procedure is a provision which is applicable primarily to the trial court. Now in this case, the suit has not been disposed of on the basis of any preliminary issue rather the suit has been decreed by the learned trial court after a full dress trial and the learned trial court has given its finding in respect of each of the ten issues framed by it. Therefore, this Court is of the considered view that the ratio of the Judgment of Hon’ble Supreme Court of India in the case of M/s Mongia Realty and Buildwell Private Limited Vs. Manik Sethi (supra) is not applicable to the facts of this case. 16. So far as the contention of the learned counsel for the appellant regarding due weightage being not given to Ext. B which is the judgment and decree of Eviction Suit No. 7 of 1989 is concerned, it is needless to mention that the plaintiffs were not parties to the Ext. B. The deposition given by an adversary of the plaintiffs of this suit, being the defendant no.1 in that suit, certainly is not binding upon the plaintiffs of this suit. More so, such deposition or taking note of the fact that in a judgment in which the plaintiffs were not the parties; by a different court cannot be used as a substantive evidence against the plaintiffs. Hence, this Court is of the considered view that no illegality has been committed by the courts below by not considering Ext. B to be a 11 Second Appeal No. 191 of 2022 conclusive proof of there being partition between the defendant no.1 and his brothers. 17. Under such circumstances, this Court is of the considered view that there is no substantial question of law involved in this appeal. 18. Accordingly, this second appeal being without any merit is dismissed but under the circumstances without any costs. 19. Let the copy of the Judgment be sent to the learned court below forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 5th December, 2024 AFR/ Sonu-Gunjan/- 12 Second Appeal No. 191 of 2022