Daulat Ram vs Saraswati Bai and Others

T.P. Sharma, J.

This second appeal is directed against the judgment & decree dated 10.11.95 passed by the 6th Additional District Judge, Bilaspur, in Civil Appeal No. 10-A/95, affirming the judgment & decree of dismissal of the suit for declaration and permanent injunction dated 29.9.94 passed by the 4th Civil Judge Class-I, Bilaspur, in Civil Suit No. 127-A/90.

Brief facts giving rise to filing of this appeal as per pleading of the parties are that the present Appellant/Plaintiff is the son of Respondents No. 3 and 4. Respondent No. 1 is the daughter of Ghasiram. The suit land admeasuring 2.80 acres is situated at Village Baima, district Bilaspur. Respondent No. 3 (father of the Appellant) has sold ancestral property without any legal necessity of the family. The property in dispute has been purchased by Ramnarayan Dubey, maternal uncle of the Appellant in the name of the Appellant/Plaintiff and his elder brother Bansidhar who died in the year 1975 and at the time of the alleged purchase, the Appellant/Plaintiff was minor and he was in possession of the property and Respondent No. 3 (father of the Appellant) has sold the suit land to Respondent No. 1 in the year 1970 without any legal necessity for the Appellant/Plaintiff or for other members of Joint Hindu Family. In alternate, Respondent No. 3 has mortgaged the property by executing the deed dated 6.6.70 in form of sale deed without any permission from the competent Court, but name of Respondent No. 1 has not been mutated. Proceeding u/s 145 of the Code of Criminal Procedure, 1973 (in short ''the Code'') was also initiated, but the present Appellant is still in possession of the property. The Appellant/Plaintiff has claimed the relief that the sale deed executed by Respondent No. 3 in favour of Respondent No. 1 be declared as null and void and permanent injunction be granted simultaneously and it be declared that the Plaintiff is entitled for redemption of the mortgage. Mother of the Appellant/ Plaintiff has also filed suit bearing Civil Suit No. 86-A/88 before the 1st Civil Judge Class-I, Bilaspur and the Plaintiff is competent to file suit before the competent Court.

Respondents No. 1 and 2 have denied the allegations of the plaint and specifically pleaded that Respondent No. 3 was owner of the property. He was in possession and has sold the property to Respondent No. 1 after receiving the consideration. They have also pleaded that suit filed by the Plaintiff/Appellant through his mother has been dismissed and possession was not delivered to him, therefore, suit is barred by principles of res judicata and only suit for declaration and permanent injunction. Present Respondents No. 3 and 4 have not filed any written statement and have not contested the suit.

After affording an opportunity of hearing to the parties, learned 4th Civil Judge Class-I, Bilaspur has dismissed the suit. Against the said judgment and decree, the present Appellant has preferred an appeal and same has been also dismissed vide judgment and decree impugned.

For decision of this appeal, following substantial questions of law have been formulated vide order dated 28.11.96:

Whether the Courts below are justified in holding that the Plaintiffs suit was barred by limitation even though there is no pleading to that effect in the written-statement?

In view of the finding recorded by the 1st Appellate Court that the Plaintiff Daulat Ram and his brother Bansidhar were owners of the suit land, whether the finding that Plaintiffs father Rajaram has sold the suit land for legal necessity is perverse and based on no pleadings by the Defendants?

Whether the finding with regard to possession is perverse in view of the revenue records?

I have heard learned Counsel for the parties and perused the judgment and decree impugned and records of the Courts below.

Learned Counsel for the Appellant vehemently argued that the property in dispute has been purchased by Ramnarayan Dubey, maternal uncle of the Appellant in the name of the Appellant and his brother Bansidhar. After death of his brother, the Appellant became sole owner of the property. Without any rights and interest, Respondent No. 3 (father of the Appellant) has illegally executed the document in favour of Respondent No. 1. On the basis of alleged document, no title or interest has been passed upon Respondent No. 1. Respondent No. 3 has not sold the property for the benefit of Joint Hindu Family or for the Appellant and the aforesaid transaction was without any legal necessity for the family, therefore, it does not create any title or interest upon the purchaser/Respondent No. 1. Learned Counsel further argued that the Appellant and Respondents No. 1 and 2 had not pleaded any facts relating to the limitation, but the trial Court has framed the issue relating to the limitation and has decided the issue of limitation against the Appellant which has been affirmed by the lower appellate Court, therefore, framing of issue on the limitation and decision on such issue without pleading is not sustainable under the law.

On the other hand, learned Counsel for Respondents No. 1 and 2 supported the judgment and decree impugned and argued that the Appellant has not adduced any evidence to show that the property has been purchased by maternal uncle of the Appellant, for the Appellant or the Appellant was owner of the property. On the other hand, property has been purchased by Respondent No. 3 (father of the Appellant) in the name of his minor sons who were having no property or source of income to pay the consideration. Learned Counsel further argued that the property was sold by Respondent No. 3 as a sole owner of the property to Respondent No. 1. Mother of the Appellant had already filed one civil suit relating to the suit land for possession and damages and same has been decided therefore, the Plaintiff has precluded for filing the subsequent suit and has barred under the principles of res judicata. Even otherwise, the Plaintiff or his agent, are not in possession of the property, therefore, without any relief of possession, the suit for declaration and permanent injunction is not maintainable under the law.

The Appellant has pleaded in para-14 of his plaint that cause of action firstly arose on 6.6.70 and then on 14.9.75,20.10.75 and 10.9.89. The allegation of para-14 has been denied by Respondents No. 1 and 2.

On the basis of plaint allegation, issue relating to limitation has been framed by the trial Court and has decided as negative against the Appellant/Plaintiff that the suit is barred by limitation. Para-14 of the judgment and decree of the trial Court reveals that the present Appellant born in the year 1952 and alleged sale deed was executed on 6.6.70, at that time the Appellant was major and he has not filed any suit within 3 years from the date of alleged sale deed, therefore, the suit was not within limitation.

Normally, the issue must be framed on the basis of pleading of the parties, but question of limitation is sometime mixed the question of law and facts and sometime pure question of law and the Court is under obligation to examine the suit or petition filed before itself that whether the suit/petition is within its territorial and pecuniary jurisdiction, whether the suit/petition is within limitation based on cause of action and whether the suit is not barred by any provisions of law. These are the requirements for the Court and only on the basis that the parties have not pleaded the averment relating to the law, the Court is not precluded for framing of the issue relating to the question of law and for deciding the suit on the basis of such issue relating to question of law, therefore, even in absence of any pleading relating to limitation the Courts below were justified in framing the issue relating to limitation and also justified in holding that the suit was barred by limitation.

In the present form of suit, admittedly, the sale deed was within the knowledge of the Plaintiff/Appellant from the date of its execution. One proceeding relating to Section 145 of the Code has also been initiated in the year 1973 and against such proceeding, civil suit for possession has been filed by the mother of the Appellant in which the present Appellant was Defendant No. 3 (copy of plaint is Ex-P/11 and copy of judgment & decree dated 7.7.83 is Ex. P/13) and present suit has been filed on 3.5.90 after lapse of 3 years even from decision of the civil suit which was hopelessly barred by limitation.

Lower appellate Court has held that the property has been purchased by Respondent No. 3 for the benefit of the Appellant and his brother who were minors, therefore, the Appellant and his brother were owners of the property and has held that the finding of the trial Court that owner of the property was Respondent No. 3 was not sustainable. Lower appellate Court has also held that the property was not mortgaged to Respondent No. 1, but has been sold for legal necessity of the family.

In order to prove the ownership over the property in dispute, the Appellant was required to establish that the property was purchased by his maternal uncle Ramnarayan Dubey in the name of the Appellant and his brother, but the Appellant has not adduced any evidence to prove the aforesaid fact, inter alia, the alleged sale deed (Ex. P/2) reveals that the property has been purchased by Respondent No. 3 in the name of the Appellant and his brother. The Appellant has not adduced any evidence to show that minor Appellant was having money for purchase of the property. In the absence of any evidence, it is difficult to hold that the present Appellant and his brother were owners of the property. Respondent No. 3 is father of the Appellant and was competent to purchase or acquire the property in the name of minor sons and other family members. Father of the Appellant i.e. Respondent No. 3 was the best person to prove the fact that whether the property has been purchased only for the Appellant and his brother or property has been purchased by the Appellant/Plaintiff and his brother. Reason best known to the Appellant, the Appellant has not examined his father to support his claim. The Appellant has made contradictory pleading of sale deed and mortgage, but has not adduced any evidence to prove his contradictory pleading or alternate pleading. On the other hand, Respondent No. 1 has adduced the evidence that Respondent No. 3 was owner of the property and has sold the property to Respondent No. 1. Respondent No. 1 has purchased the property after payment of consideration. The finding of the lower appellate Court that the Appellant and his brother were owners of the property and property has been sold for legal necessity by Respondent No. 3 is without any evidence The evidence adduced on behalf of the parties are sufficient to infer that Respondent No. 3 was owner of the property and has sold the property to Respondent No. 1 as a sole owner.

As regards the substantial question of law No. 3, the judgment and decree passed in Civil Suit No. 98-A/80 dated 7.7.83 in which the mother of the Appellant was the Plaintiff and the present Appellant was Defendant No. 3 is sufficient to prove the fact that the present Appellant or his agent or relatives were not in possession of the property. The presumption relating to entries in revenue records are rebut table and the Appellant himself has rebutted the entries of revenue records.

For the foregoing reasons, substantial question of law No. 1 is decided as positive, substantial question of law No. 2 is decided as positive and held that Respondent No. 3 was owner and has sold the property as a sole owner and substantial question of law No. 3 is decided as negative.

On the basis of finding on substantial questions of law formulated for decision of this appeal, I do not find any right or interest of the Appellant over the property in dispute. Consequently, the appeal is liable to be dismissed and it is hereby dismissed with costs. The Appellant shall bear his own costs of suit as well as of appeal and also that of the Respondents. Advocate fee as per schedule.

Decree be drawn up accordingly.