Ramotar v. Munni Devi & Ors.

CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ajay Jain, Advocate for the appellant. Rakesh Kumar Garg, J. By way of this appeal, defendant No.1 has challenged the judgment and decree of the Lower Appellate Court whereby suit of the plaintiff-respondent for declaration to the effect that she is owner in possession of 1/9th share in the suit property and the judgment and decree dated 15.6.1993 passed in Civil Suit No.528 dated 14.6.1993 titled as Ram Avtar v. Ganpat was illegal and not binding to the extent of her rights, was decreed. The brief facts of the case necessary for disposal of this appeal are that plaintiff-Munni Devi in her suit averred that Ganpat Singh, son of Mangtu Ram, was owner of the suit property to the extent of 1/3rd share. Ganpat Singh was having three sons, namely, Hoshiyar Singh (plaintiff's father), Mukhtyar Singh (father of respondents No.2 and 3) and Ram Avtar (appellant). The property was joint and ancestral of the parties. The plaintiff, who is the only daughter of Hoshiyar Singh (son of Ganpat) was residing with her in-laws in their house and the defendants with a view to deprive her of the property got a decree dated 15.6.1993 passed in Civil RSA No.3814 of 2009(O&M) 2 Suit No.528 of 14.6.1993 titled as Ram Avtar v. Ganpat and also got entered mutation No.934 in their favour on the basis of the aforesaid decree. The said judgment and decree which was based on fraud, misrepresentation and undue influence, was not binding on the plaintiff because the property was ancestral coparcenary property and Ganpat had no right to suffer said decree depriving the plaintiff of her share. No family settlement as alleged in the aforesaid suit had taken place nor the plaintiff was a party to the same. Ganpat never received any notice of the aforesaid civil suit nor he appointed any counsel. The plaintiff was owner in possession of the suit property to the extent of 1/3rd share. The plaintiff came to know about the decree when the defendants refused her to enter in the fields i.e. two months back. The defendants did not admit the claim of the plaintiff. Hence the suit. Upon notice, the defendants initially appeared in the suit through Sh. D.V. Yadav, Advocate but did not file any written statement and their defence was struck off. Later on, they did not appear in the case and were proceeded against ex parte. However, suit of the plaintiff- respondent was dismissed. While dismissing the suit, the trial Court held that there is no evidence on the file to prove that property in the hands of Ganpat was ancestral and the plaintiff being a female could not be a coparcener to have an interest in the suit property. Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff-respondent filed an appeal before the Lower Appellate Court which was accepted and the suit was decreed. Feeling aggrieved from the aforesaid judgment and decree, only the appellant has come to this Court submitting that the following substantial questions of law arise in this appeal: “(i) Whether on the facts and circumstances of case RSA No.3814 of 2009(O&M) 3 without there being any evidence on the record the property in dispute could be held to be ancestral property of the parties? (ii) Whether the judgment and decree dated

15.6.1993 could be held to be a result of fraud and misrepresentation? (iii) Whether the judgment and decree passed by the ld. Lower Appellate Court without reversing the findings recorded by the ld. Trial Court on all issues is sustainable in the eyes of law? (iv) Whether it was incumbent for the ld. Lower Appellate Court to adjudicate upon the application under Section 5 of the Limitation Act before proceeding to decide the appeal on merits?” I have heard learned counsel for the appellant and perused the judgment and decree of the Lower Appellate Court. At the outset, it may be noticed that on 22.2.2010, learned counsel for the appellant had submitted before this Court that appeal filed by the plaintiff-respondent before the Lower Appellate Court was time barred but the Lower Appellate Court did not touch the limitation point and decided the appeal without passing any order on the application for condonation of delay. Noticing the aforesaid argument raised by the learned counsel for the appellant, record of the Lower Appellate Court was called. A perusal of the record of the Lower Appellate Court would show that an application for condonation of delay was filed by the plaintiff- respondent and reply of the appellant was also filed. However, from the perusal of various zimni orders and the judgment of the Lower Appellate Court, I find that at no stage counsel for the appellant has raised any RSA No.3814 of 2009(O&M) 4 argument on the point of limitation before the Lower Appellate Court which amounts to waiver of the aforesaid argument with regard to ground of limitation. Learned counsel for the appellant was unable to cite any precedent to argue that even if the point of limitation was impliedly waived, still the Lower Appellate Court was bound to decide the said issue. Faced with this situation, learned counsel for the appellant further argued that the judgment and decree of the Lower Appellate Court was perverse as there was no evidence on record that the property in dispute was ancestral and that decree dated 15.6.1993 was result of fraud and misrepresentation. The aforesaid argument raised by the learned counsel for the appellant is without any merit as admittedly defence of the appellant was struck off by the trial Court meaning thereby the appellant cannot raise any objection to the suit of the plaintiff-respondent and the same had remained unrebutted. It is not in dispute that the aforesaid order of striking off the defence of the appellant was never challenged. Even before the Lower Appellate Court and before this Court, no argument has been raised by the appellant to state that his defence was struck off illegally. In this view of the matter, there is no merit in this appeal. No substantial question of law arises. Dismissed. October 27, 2010 (RAKESH KUMAR GARG) JUDGE