Chandrashekhar vs Shakuntalabai Girdharilal Jain

A.I.S. Cheema, J.—Heard Mr. Deshpande, learned counsel for the appellant and Mr. Pawar, learned counsel for the respondent No.1. The Second Appeal is being finally disposed of, hearing both sides.

In this matter, the appellant/ plaintiff brought Regular Civil Suit No.39/2004 for declaration, partition and perpetual injunction relating to City Survey No.557, Plot No.65, admeasuring 1800 sq. ft. Plaintiff claimed that, he and defendant No.1 jointly purchased the suit property from original occupant Vijaya Vitthaldas Gujrathi on 1.1.1989 and since then they were in possession. The plaintiff and husband of defendant No.1 were running business jointly and there was partition between them in 1996. Thereafter, plaintiff started residing in two rooms in the western part of the property and defendant No.1 started residing in the eastern part. Plaintiff refers to payment of electricity charges and taxes to claim that he had joint ownership. On the basis of averments made in the suit, plaintiff claimed half share in the property and injunction against defendant No.1 claiming that she was obstructing his possession. Defendant claimed exclusive ownership in the suit property.

After the parties brought on record the necessary evidence, the trial Court decreed the suit partly. The trial Court did not accept the claim of the plaintiff that he was joint purchaser. However, the defendant No.1 was restrained from obstructing the plaintiff from using toilet and bathroom in the suit property. The suit for declaration and partition was dismissed.

Appeal was carried before the District Judge-2, Dhule being Civil Appeal No.116/2008. The first appellate Court considered points whether the plaintiff is having half share in the suit property and answered the same in negative. The first appellate Court noticed that although the plaintiff was claiming equal share in the suit property and claimed that it was purchased from income of the family, he had not examined his brother. It was observed that, plaintiff did not examine his other brother Anand in support. The Court considered that although plaintiff relies on the affidavit of the previous owner Vijayabai, the person was not examined. It was thus held that unless Vijayabai was examined, the contents of affidavit could not be admissible in evidence. The Court alternatively read the document and still observed that it does not prove the title of plaintiff as the affidavit did not say that it was jointly sold to plaintiff and defendant No.1. Considering that plaintiff was residing in part of the property, his having tax receipts has not weighed with the Courts.

Learned counsel for the appellant has made submissions and tried to refer to the evidence discussed by the trial Court as well as the appellate Court, and tried to plead that the observations of the Courts were not maintainable. He claimed that he has filed Civil Application No.6214/2011 for production of documents, which shows that, in earlier another Regular Civil Suit No.226/1997, it was held that the brothers were doing business jointly. According to him, defendant No.1 Shakuntalabai had no source of income for her to purchase the property. He contends that, even the stamp duty was purchased by the appellant. He states that, as per MHADA, joint purchase could not be done and so property was purchased in name of defendant No.1.

Having gone through the judgments of the trial Court as well as the first appellate Court and having heard learned counsel, I do not find that the reasonings adopted by both the courts to weigh the evidence could be found fault with. There is no material, rule, or directions of MHADA shown that joint purchase by two persons is not permissible. Both the courts have consistently held that the plaintiff failed to prove that he had jointly purchased the property. The trial Court, while discarding the affidavit (Exh. 64) of Vijayabai, observed that the contents were against her own averments as made in affidavit Exh. 75 sworn by her, which was submitted to MHADA and Indemnity Bond Exh.73 executed by her for that purpose which disclosed that the suit property was transferred in favour of defendant No.1 alone. Merely by pointing out that earlier brothers were doing business jointly is not sufficient. The property was clearly purchased in the name of defendant No.1 Shakuntalabai. Even if it is claimed that she was not earning, definitely her husband was earning. The trial Court found that plaintiff appears to be having some occupancy rights in the suit property and hence it passed the injunction order, but did not hold that plaintiff was joint owner or was entitled to partition.

The Hon''ble Supreme Court has held in the matter of Gurdev Kaur and Others Vs. Kaki and Others, that, legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts". Second Appeal cannot be entertained unless there is substantial question of law involved.

I do not find that there is any substantial question of law involved in the Second Appeal.

As far as regards Civil Application No.6214/2011, learned counsel for the appellant tried to submit that, he wanted to bring on record the judgment in Regular Civil Suit No.226/1997 and tax receipts to show that the charges were paid by the plaintiff.

Order XLI Rule 27(1) of the CPC reads as under:

The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if --

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

If the above provision is kept in view, it is clear that it is not a case that these documents were tried to be placed on record before the trial Court and the same were refused. Similarly, it cannot be claimed that the judgment concerned or the tax receipts were not in the knowledge of the plaintiff. At the time of arguments, learned counsel for the appellant/ plaintiff tried to say that the knowledge has to be "legal knowledge". I do not accept such reasoning to split the meaning of word "knowledge" in sub-clause (aa) of clause (1) of Rule 27 of Order XLI of the Civil Procedure Code. There is no substantial cause shown why earlier these documents were not brought on record. There is no substance in the Civil Application, and it is rejected.

Alternatively, even if the judgment of Regular Civil Suit No.226/1997 is considered, merely by showing that the brothers were earlier doing business together is not sufficient to say that the other brother could not have supported his wife to buy property on her own.

For the above reasons, hearing both sides, the second Appeal is dismissed as not raising any substantial question of law. Civil Application No.6214/2011 is also rejected.