Krishna Tamrakar And Others vs Sunder Bai And Others

Gurpal Singh Ahluwalia, J

This First Appeal under Section 96 of CPC has been filed against the Judgment and Decree dated 30-7-1998 passed by 1st Additional District Judge, Sagar in C.S. No. 16-A/1998, by which the suit filed by the Appellant for declaration of title as well as for permanent injunction thereby restraining the defendants from instituting suit for eviction as well as for recovery of mesne profits was dismissed.

The facts necessary for disposal of present appeal in short are that the appellant filed a suit for declaration that the suit land is an ancestral property of the parties and for permanent injunction. The family tree as pleaded by the appellant is as under :

Thus, it is clear from the family tree that the plaintiff represents the family branch of Nannu Tamrakar whereas the defendants represent the family branch of Khemchand Tamrakar. It is the case of the plaintiff that Khemhand and Nannu were members of Joint Hindu Family and the ancestral property was never partitioned. The details of movable and immovable properties were given in para 3 of the plaint. It was claimed that the house known as Mithyayi, Sagar is in actual possession of the plaintiff, whereas the remaining property was in the management of Durga Prasad. After the death of Durga Prasad, his widow Smt. Gulab bai was residing in the house situated in Mohan Nagar Ward, Sagar whereas the house known as Mithiyayi, Sagar, remained in actual possession of the plaintiff. All other properties which are mentioned in para 3 of the plaint remained in the management of Gulab bai. Gulab bai expired on 9-5-1986 and her last rites were performed by the plaintiff. Since, Durga Prasad had no son, therefore, his last rites were also performed by the plaintiff. It was pleaded that even after the death of Gulab Bai, the plaintiff continued to remain in possession of the house known as Mithyayi, but the remaining properties mentioned in para 3 of plaint remained in management of defendants no. 1 and 2. It was pleaded that the properties mentioned in para 3 of the plaint are the Joint Hindu Family properties and accordingly, the plaintiff has 1/12 share in the same. The plaintiff received a notice dated 17-4-1987, in which the plaintiff was alleged to be the tenant and a threat was given that a suit for eviction and arrears of rent would be filed. Accordingly, the suit was filed for declaration that the properties mentioned in para 3 are Joint properties and from restraining the defendants from filing suit for eviction and recovery of arrears of rent.

The plaintiff during the pendency of the suit, amended the suit and also pleaded that the defendants no.1 and 2 have let out their house which is situated in Mohan Nagar to one Namdeo on monthly rent of Rs. 100/-. Similarly one Thakur is tenant on the monthly rent of Rs. 200/- for the last 2 years. Further the defendants have utilized sliver worth Rs. 7500/- and gold worth Rs. 35,000/- for their personal use.

Similarly they have withdrawn amount which was deposited in FDR. Thus, it was claimed that the plaintiff is also entitled for his share in the aforementioned movable property. It was further pleaded that the defendants have obtained a decree for eviction against which an appeal has been filed and the decree of eviction has been stayed. Thus it was claimed that the decree for eviction is not final and is sub-judice. It was further claimed that the eviction decree is not relevant because the said suit was for eviction, whereas the present suit is declaration of title.

The defendants no. 1 and 2 filed their joint written statement. They denied that Khemchand and Nannu Tamrakar were real brothers. It was denied that Battulal (Babulal) was son of Khemchand and it was also denied that Nathuram was son of Battulal. It was also denied that Ramsahay, Shaligram and Ramnarayan are alive. In short the family tree as suggested by plaintiff was denied. It was denied that the father of the defendants no. 1 and 2 was karta of family. It was denied that Durga Prasad, father of defendants no.1 and 2 was having ancestral properties at the time of his death. It was denied that the properties mentioned in para 3 of the plaint were ancestral properties. It was pleaded that the plaintiff has not given the details of the ancestral properties. He has not clarified that out of Khemchand and Nannu Tamrakar, who was the karta of the family and how much property was there with them. The plaintiff has also not clarified that who was the karta of the third generation i.e., Nathuram, Moolchand and Kundanlal and how much property was there with them? The plaintiff has not clarified that who handed over the properties in dispute to Durga Prasad. It was denied that the plaintiff is the owner of house known as Mithiyayi Sagar. It was denied that the said house is an ancestral house. It was also denied that the house situated in Mohan Nagar was an ancestral property. It was denied that the last rites of Gulab Bai and Durga Prasad were performed by the plaintiff. The amended pleadings were also denied. In the additional pleadings, it was pleaded by the defendants that Durga Prasad, father of defendants no.1 and 2 was the resident of Khurai. Moolchand was married to Sahodrabai. Moolchand was residing all alone in Khurai. Neither he was member of any Joint Hindu Family nor was having any ancestral property. Moolchand Tamrakar died in Khurai. At the time of his death, Durga Prasad was aged about 2 years only. After the death of Moolchand, his wife Sahodrabai shifted to Sagar along with her 2 years old son Durga Prasad and started living with her brother. Sahodrabai was not having any ancestral property with her. Durga Prasad after attaining majority started business of manufacturing utensils. On 21-7-1937, he purchased a house in Mohan Nagar from Bhaiylal and Pandit Seetaram for a consideration of Rs. 400/-. Durga Prasad had spent his childhood in poverty. Thereafter, Durga Prasad purchased a shop situated in Mohan Nagar, from his own income by a registered sale dated 11-6-1960 from Maniram and others for a consideration of Rs. 3000/- and started his business from the shop in the said property and continued his business from the said shop till his death. The plaintiff himself has claimed that defendant no. 6 Ramsahay was residing in Khurai and defendants no. 7 and defendants no. 9 were residing in Bina. All the three real brothers were residing separately and had separate movable and immovable properties. Similarly, the plaintiff and his father Damodar Prasad and uncle of plaintiff Prem Narayan were residing separately. They donot have any right or title in the properties of Durga Prasad. Similarly, Narayan who is the real brother of plaintiff is residing separately in Bina who has no right and title in the properties of plaintiff. Thus, it was claimed that all the parties are separate and are having their own separate properties. Durga Prasad had deposited his own earned money in the bank accounts which were transferred jointly in the name of the defendants no. 1 and 2 and their mother after the death of Durga Prasad. Since, Durga Prasad had no sons, therefore, the intentions of the plaintiff became dishonest as the defendants had shifted to their matrimonial house and accordingly he took the house known as Mithiyayi Sagar on rent, so that he can show his possession after the death of Gulab Bai. Even if the plaintiff had performed the last rites of Durga Prasad and Gulab Bai, but that would not give rise to any right or title in the properties. Accordingly, it was prayed that the suit be dismissed.

The trial court after framing issues and recording the evidence has dismissed the suit.

Being aggrieved by the judgment and decree passed by the court below, it is submitted by counsel for the appellant that the trial court has failed to see that the property in dispute is the joint property and the appellant is in possession of the same having a share in the same and the court below has wrongly held that property in dispute is not the joint Hindu Family property of Durga Prasad and Damodar.

Heard learned counsel for the parties.

According to the appellant himself, Durga Prasad represents family branch of Khemchand Tamrakar whereas Damodar represents family branch of Nannu Tamrakar. Therefore, one thing is clear that Damodar had no share in the property of Durga Prasad. Durga Prasad is the great grandson of Khemchand whereas Damodar is great grandson of Nannu Tamrakar. The house known as ‘Mithiyayi’ and the house situated in Mohan Nagar were purchased by Durga Prasad by registered sale-deed, Ex.D/1 and D/2 dated 21.7.1937 and 11.6.1960 respectively. It is nowhere mentioned in the sale-deeds that the houses are being purchased from the income of the joint Hindu Family property or in the capacity of Karta of joint hindu family property. The date of birth of the plaintiff is 7.1.1942 whereas the property in dispute was already purchased by Durga Prasad on 21.7.1937 by Ex.D/1. The plaintiff has given an evidence which is not pleaded in his plaint.

Saligram, DW1 in his statement has stated that Moolchand, father of Durga Prasad was running the shop of utensils. Moolchand after manufacturing the utensils used to sell it to Ramsahai, i.e. brother-in-law but its money was not credited in the account of his shop and by utilizing the said money the house at Sagar was purchased. However, defendant no.7 has not taken such a stand in his written statement. Defendant no.7 was not in a position to disclose as to when and where Moolchand expired but claimed that Moolchand had already expired prior to his death. Thus, it is clear that Shaligram, DW1 has not seen any business transaction between Moolchand and his brother-in-law Ramdayal. Even no accounts were produced by the defendant no.7. Plaintiff, PW1 in para 7 of his evidence has stated that after performing last rites of Gulabbai, he asked for partition but defendants no.1 and 2 did not partition the property and took possession of the property in dispute whereas in the plaint there is no averment that defendant no.1 and 2 had forcibly taken possession of the property. The trial court has given a finding that although the last rites of Durga Prasad and his wife Gulabbai was performed by the plaintiff; but has rightly held that merely because of that, plaintiff would not get any right or title in the property in dispute. In fact, the plaintiff had performed last rites of Durga Prasad for the reason that Durga Prasad had no son. Merely because certain joint photographs were clicked would not mean that the property in dispute was a joint hindu family property. The plaintiff had claimed that Khemchand and Nannu were the real brothers and were residing jointly and no partition had taken place but has not clarified that which ancestral property was received by them. No document has been filed that any property was ever recorded in the name of father of the plaintiff or grandfather or great grandfather etc. Although the plaintiff had claimed that his father had come to Khurai about 70 years back but has not clarified the address where his father was residing before purchasing the house in the year 1937. The plaintiff has also admitted that ancestral properties are situated in Khurai out of which one house is in possession of Nathuram but that was not included in the suit. Therefore, it is clear that if the ancestral property was not already partitioned that is why the house in possession of Nathuram was not included.

Shri Krishna, PW1 has claimed that he was informed by his grandmother that Kundanlal and Moolchand and his grandfather were residing jointly. He further claimed that after his marriage he has separated from his father and started living in his matrimonial house. His in-laws had constructed a house.

Balmukund, PW3 has stated that the appellant was married in the year 1967-68 and after the marriage he started residing separately but prior to that he was residing along with his father. Thus, the claim of the plaintiff that he had separated from his father at the age of 10 is not acceptable and is not reliable. There is nothing on record to show that he was ever adopted by Durga Prasad. Even for the sake of arguments if it is accepted that plaintiff was kept by Durga Prasad out of love and affection because he was not having any male child but that too would not make him a co-sharer in the property in dispute. The evidence of the plaintiff witnesses are also self-contradictory.

Ratanchand, PW2 and Balmukund, PW3 have stated that Durga Prasad and Damodar were residing jointly in house situated in Mohan Nagar Ward. If that is so then there is no question of separation of plaintiff from his father. Balmukund, PW3 has admitted in his cross examination that Damodar was residing along with his sons in a house situated in Keshavgunj ward. If the partition had not taken place then from where Damodar got the house which is situated in Keshavgunj Ward and if Damodar had purchased the said house from the income of joint Hindu family property then why the plaintiff has not included the said house in the suit? The shop in question was purchased on 11.6.1960 vide Ex.D/2. It is the case of the plaintiff that Damodar and Durga Prasad were jointly running the business for the last 23 years then plaintiff has not clarified that how Damodar purchased the house situated in Keshavgunj ward in the year 1952. Thus, it is clear that the family of Durga Prasad and Damodar were residing separately and had purchased the property out of their own self earned money.

Bhagwandas, PW4 has stated that he has seen the appellant sitting on the shop for the last 20-25 years whereas Appellant/ Shri Kishna PW1 has stated that he came in Govt. job in the year 1965, therefore, he was not sitting in the shop. Plaintiff, PW1 has also admitted that about 30 years, i.e. sometime in the year 1965 his father and uncle Premnarayan separated. Premnarayan shifted to Basoda. He further stated that Ramsahai was residing in Khurai and his entire property was in Khurai. Ramnarayan is residing in Bina and his property is in Bina.

Thus, it is clear that when Durga Prasad came to Sagar, he was not having any ancestral property with him. Whatever property was purchased by him was out of his own hard earned money and therefore, the property as mentioned in para 3 of the plaint was not the joint family property but it was self-acquired property of Durga Prasad. Since the appellant is not the son of Durga Prasad and his father Damodar represents the family branch of Nannu and, therefore, it is clear that even otherwise the plaintiffs/appellants cannot inherit the property of Durga Prasad through succession.

Under these circumstances, this Court is of the considered opinion that the trial court did not commit any mistake by dismissing the suit filed by the appellant.

So far the permanent injunction is concerned, the same cannot be issued for the reason that appellant has no right or share in the properties of Durga Prasad therefore no such injunction can be issued as per Section 41 of Specific Relief Act.

Ex-consequenti, the judgment and decree dated 30-7-1998 passed by 1st Additional District Judge, Sagar in C.S. No. 16-A/1998is hereby affirmed.

The appeal fails and is hereby dismissed.