Anant Ram and Others vs Prabha Devi @ Prabhat Devi and Others

Poonam Srivastav, J.—Heard Sri Atanu Banerjee Advocate on behalf of the appellants and Sri V.K. Prasad, Advocate on behalf of the contesting respondents. The instant Second Appeal arises out of the judgment dated, 25th March, 2003 and decree signed on 5th April, 2003 in Title Appeal No. 16 of 1997 by the Additional Judicial Commissioner, F.T.C., Ranchi, setting aside the judgment dated 30th January, 1997 and decree dated 7th February, 1997 passed in Title Suit No. 17 of 1989 (Anant Ram & others v. Prabha Devi & others).

The plaintiffs-appellants instituted a suit against the defendant-respondents for a decree of declaration of right and title over land described in Schedule-''C'' and partition of 1 /2 share in the land described in Schedule-''B''. The claim for partition of 1/2 share in Schedule-''B'' property by appointing a pleader commissioner was also a relief claimed in the plaint. Alternatively a relief for decree against the defendants with a direction to execute and register a deed of Safinama in favour of the plaintiffs in respect of the property described in Schedule- ''C appended with the plaint.

Sub-Judge-IV, Ranchi decreed the suit in part and directed for preparation of a preliminary decree of partition by metes and bounds in favour of the plaintiffs for 1/2 share in the entire suit lands of R.S. Khata No. 34 and 3/4 share in the entire suit lands of R.S. Khata Nos. 33, 203 and 81. The appeal preferred by the defendants-respondents was allowed. The lower appellate Court recorded a finding that the Sub-Judge-IV granted a relief, which was not even sought by the plaintiffs in the plaint and reversed the judgment and decree of the trial Court.

The instant Second Appeal was admitted on the following substantial question of law :

Whether the lower appellate Court has committed serious errors of law in setting aside the judgment and decree of the trial Court only on the basis of its decision on the findings of issue Nos. 11 and 12?

The facts of the present case are that the suit property originally belonged to Dhundhua Dhobi. He was the common ancestor of the plaintiffs Anant Ram and others and Raghu Baitha. Defendant Prabha Devi is the widow of Raghu Baitha. The plaintiffs and the defendants are descendant of the aforesaid Dhundhua Dhobi. Pedigree is as detailed below :

Anant Ram Binod Ram Sobhan Ram (Plaintiff No. 1), (Plaintiff No. 2) (Plaintiff No. 3), Prabha Devi (wife) (Defendant No. 1).

Dhundhua Dhobi was the recorded owner of the suit land described in Schedule-''A'' of the plaint and he remained in possession till his death. Two sons of Dhundhua Dhabi came in possession over Schedule-''A'' property. The plaintiffs'' case is that there was a partition between Balak Dhobi and Arjun Baitha. The share of Arjun Baitha was sold to the plaintiffs by means of a registered deed of sale vide No. 6107 dated 11.4.1972 (Ext. 6). The plaintiffs claimed that since the execution of the aforesaid sale deed he came in exclusive physical possession of the same, he applied for mutation, which was refused on objection by the defendants. This led to institution of the suit for declaration of plaintiffs'' title over Schedule-''C'' properly as well as other reliefs.

The defendants case is that since all the properties are joint and they were in joint possession, Arjun Baitha could not sell any property without the consent of other coparcener and without partition. The genealogy as detailed hereinabove is not disputed by either parties. The execution of the sale deed though not specifically denied, but the claim of the defendants is that it is in fact, a null and void.

The trial Court decreed the suit in part holding that the properties mentioned in Schedule-''C'' and ''B'' was in cultivatory possession of both the brothers Balak Dhobi and Arjun Baitha and there was no partition by metes and bounds. The sale deed was held to be genuine and valid and therefore, the plaintiffs'' entitlement was decreed for the land detailed in Schedule-''C'' of the plaint. The trial Court recorded a finding that share of Arjun Baitha shall be construed to be purchased by the plaintiffs, which was his exclusive share and, thus, the plaintiffs were entitled for a decree for the half share purchased by means of the aforesaid sale deed and half share in remaining half suit property. Thus, plaintiffs were entitled to 3/4 share out of the entire property and the defendants were entitled to 1/4 share of the property.

Lower appellate Court has set aside the judgment and decree declaring 3/4 share of the plaintiffs by allowing the appeal vide judgment dated 25th March, 2003 in Title Appeal No. 16 of 1997.

The question of law on which this Second Appeal was admitted relates to the findings on issue Nos. XT and XII.

Issue No. XI as framed by the trial Court Is "whether the plaintiffs are entitled for a decree as prayed in this suit?" and

Issue No. XII "to what other relief or reliefs, if any the plaintiffs are entitled to?"

In my opinion, the decision on these two issues depends on the findings of the earlier issues regarding the validity of the sale deed executed by late Arjun Baitha in favour of the plaintiffs and thereafter his exclusive possession over the property detailed in Schedule-''C'' and also regarding unity of title and possession between the parties in respect of the land shown in the share of late Balak Dhabi in Schedule-''B'' property of the plaint. No documentary evidence was produced by the plaintiffs to substantiate that the land detailed in Schedule-''A'' of the plaint was ever partitioned. There is nothing to substantiate the theory of partition in the year 1945 between Balak Dhobi and Arjun Saitha by metes and bounds. Admittedly properly in Schedule-''B'' of the plaint was not demarcated and thus no specific shares were allocated to two brothers Balak Dhobi and Arjun Baitha. The trial Court has recorded a categorical finding that two brothers were joint, but the Court has also accepted that Arjun Baitha sold his entire land of his share to the plaintiffs. Simultaneously the conclusion was arrived at that the plaintiffs never came in exclusive possession over the properties detailed in Schedule-''C'' of the plaint on the basis of the aforesaid sale deed, hence, no decree of declaration of title in favour of the plaintiffs in respect of the land described in Schedule-''C'' of the plaint could be passed and, thus, the trial Court was of the view that defendant could not be asked to execute a deed of relinquishment in respect of the said property. It is, thus, clear that all the material issues were decided by the trial Court against the plaintiffs. In fact, the suit was partly decreed, on the ground to ensure substantial Justice. The trial Court considered it appropriate to end all the dispute between the parties once and for all, and thus, the suit was decreed for partition by metes and bounds. The trial Court further held that the plaintiffs were entitled to get their half share in the suit land of R.S. Khata No. 34 and 3/4 share in the entire suit lands of R.S.. Khata Nos. 33, 203 and 81 for partition by metes and bounds. It was further held that the defendants are entitled to half share in the entire joint suit land of R.S. Khata No. 34 and 1/4 share of R.S. Khata Nos. 33.203 and 81. However, the declaration in favour of the plaintiffs was refused and also relief for execution of the deed of relinquishment.

I have gone through the two judgments and heard the respective counsels at length. In fact the instant Second Appeal though has been admitted on the question as to what extent of relief and entitlement of the respective parties, but in my view, the basic question that should be examined is whether the trial Court could grant a relief to the plaintiffs, which was not even claimed in the plaint. More so, the plaintiffs never claimed 3/4 share in the property of R.S. Khata Nos. 33, 203 and 81, therefore, the trial Court could not grant a relief beyond the pleadings to ensure substantial justice. The admitted facts are that the plaintiffs and the defendants are Hindus. Admittedly the property is ancestral Joint family property. It is also not disputed that there was never a partition by metes and bound at any stage and also that Arjun Baitha died issueless. Since the property was not partitioned by metes and bounds and Balak Dhobi and Arjun Baitha were never put in possession of their exclusive share at any point of time and the only surviving heir was Karmu Dhobi. Therefore, there was no occasion for Arjun Baitha to presume that he could transfer 1/2 share of the property by executing a sale deed during his life time. Even if a sale-deed was executed, it could not be given effect to. The surviving heir of the joint Hindu family was Balak Dhabi who had two sons Karmu Dhabi and Marku Dhobi. Defendant is wife of Raghu Baitha son of Marku Dhobi (grand-son of Balak Dhobi) and the plaintiffs are sons of Karmu Dhobi (grand-sons of Balak Dhobi). The plaintiffs have admitted that they applied for mutation in respect of the purchased land from Arjun Baitha, which was refused and the defendants exhibited the certified copy of the order passed in Mutation case as well as orders passed in appeal and revision up to the stage of Divisional Commissioner, "which are Exhibits B to E. On the basis of these documents, trial Court recorded a finding that the plaintiffs and the defendants were never in exclusive possession of their respective shares. The registered sale deed does not find any corroboration. Besides, the statement to the effect that an oral partition took place in the year 1945 was also neither proved nor substantiated. In fact, the trial Court recorded a finding that these evidences are sufficient to belle the claim of the plaintiffs that property was partitioned and, thus, the decree of declaration could not be passed. The Court could not blow hot and cold simultaneously. Once the Court recorded a finding that there was no partition before execution of the sale deed by Arjun Baitha a Hindu coparcener, the sale deed is evidently a nullity. Besides, the plaintiffs could not be granted a relief, which was never claimed in the garb of substantial Justice. The relief was not claimed In the plaint, the Court could not grant a decree for partition especially when the declaration in favour of the plaintiffs was refused.

Sri Atanu Banerjee, learned counsel appearing on behalf of the appellants has placed reliance on a number of decisions Srinivas Ram Kumar Vs. Mahabir Prasad and Others, , Kidar Lall Seal and Another Vs. Hari Lall Seal, K. Peramanayakam Pillai Vs. S.T. Sivaraman and Another, Sitaram Singh Vs. Smt. Bhikhni Devi and Others, ; AIR 1961 Raj 6, (Municipal Committee, Kishangarh v. Maharaja Kishangarh Mills Ltd.); Managobinda and Others Vs. Brajabandhu Misra, and Narendra Kumar Jain and another Vs. Sukumar Chand Jain and others, . In Kidar Lall Seal and Another Vs. Hari Lall Seal, Apex Court held in para 51 as follows :

Para 51. I would be slow to throw out a claim on a mere technicality of pleadings when the substance of the thing is there and no prejudice is caused to the other side, however, clumsily or inartistically the plaint may be worded. In any event, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs.

In my view the decisions cited by the learned counsel as well as the principles laid down in the aforesaid paragraph is not applicable to the facts of the present case. The Apex Court proceeded to rule that in the event the plaint is worded clumsily or inartistically, the claim could not be thrown out on a mere technicality.

In the instant case, the relief of declaration was sought and also a prayer for directing the defendants to execute a deed of relinquishment in respect of the property purchased from late Arjun Baitha. The trial Court specifically held that there was no partition by metes and bounds and the plaintiffs were never put in exclusive possession as well as no relief for partition was made in the plaint. Therefore, the trial Court could not carve out a relief which was never prayed. If the Court was of the view that the relief claimed could not be granted then a third relief could not be carved out in the garb of substantial justice. In fact. In the Instant case substantial prejudice would be caused to the defendants by granting a relief which was never made in the plaint. It is not a case where the prayer is not happily worded, It is not a partition suit and, therefore, in my view, the approach of the lower appellate Court was absolutely correct. The trial Court committed a grave error, which could not stand legally. In my view the plaintiffs could not be granted a general relief on the basis of the citation relied upon by Sri Atanu Banerjee, since it is neither just nor can it be compensated as held by the Apex Court.

The other decisions cited are K. Peramanayakam Pillai Vs. S.T. Sivaraman and Another, All 1 are of different High Courts. Three other decisions of the Apex Court Bhagwati Prasad Vs. Shri Chandramaul, , AIR 1966 SC 470 and (1994) 2 SCC 594 are also of no help. The settled principles of law is that undivided interest of a coparcener, if sold without a partition, it does not extinguish the right of other such coparcener to the property by survivorship. The findings of the trial Court were rightly set aside by the lower appellate Court on the ground that the alienation of the joint property without consent of the coparcener or without legal necessity is null and void.

The lower appellate Court has recorded a finding that on a bare perusal of Ext. 6, sale deed apparently there is no mention of a partition in the year 1945. Half share of each property has been sold without specifying the allocated shares.

In view of what has been stated above, there is no merit in the instant Second Appeal, no substantial question of law is worth'' consideration. The judgment of the lower appellate Court is on the basis of settled legal principle and it does not call for any interference. The findings of the trial Court was rightly set aside by the lower appellate Court and the plaintiffs suit was dismissed.

No substantial question of law arises in the instant Second Appeal and, accordingly does not call for interference u/s 100, C.P.C. The appeal is dismissed. No order as to costs.