Lalsingh vs Jalamsingh and Others

This appeal by plaintiff under section 100 CPC is directed against the confirming judgment and decree dated 04.01.2001 in Civil Appeal

No.1A/98 passed by III Additional District Judge, Ujjain, District Ujjain. The suit for declaration and injunction has been dismissed by a judgment

and decree dated 26.10.1998 passed in Civil Suit No.46-A/93 by Civil Judge, Class-I, Tarana, District Ujjain.

This Court while admitting the appeal on 02.08.2002 has framed the following substantial questions of law:

Whether learned lower appellate Court was justified in dismissing the suit notwithstanding that defendants were ex-parte and had not contested

the suit by filing any written statement ?

When admittedly, in the earlier litigation the finding in favour of the plaintiff was recorded that the property in suit is a Joint Hindu Family

Property, whether lower appellate Court was justified in holding just contrary to it in this suit ?

Whether the suit filed by the plaintiff was hit by provisions of Order 2 Rule 2 of CPC in view of the earlier litigation (Ex.P-7) ?

Whether in the absence of any contest from the defendants, suit filed by the plaintiff could still be dismissed on any ground ?

Facts relevant and necessary for disposal of this appeal are in narrow compass: The plaintiff had filed suit No.22A/1984 for declaration and

partition on 17.04.1984 against the present defendants No.2 Harisingh, 3 Chandersingh, 4 Prahladsingh and 5 Modsingh. The suit was decreed by

the trial Court on 30.09.1994 with the following decree.

VERNACULAR MATTER OMITTED

The present plaintiff had filed another suit (instant suit No.46A/1993) on 06.07.1993, before decision on the earlier suit seeking a declaration

and injunction inter alia with the relief that the suit property described in paragraphs 6, 7 and 8 of the plaint are part of the joint Hindu family

property in terms of the judgment rendered on 30.09.1994 in Civil Suit No.22-A/1984, therefore, the sale deed dated 04.06.1993 executed in

favour of the defendants No.1 and 2 and the sale deed dated 30.09.1985 executed in favour of defendants No.6 and 7 by respondent No.3 are

bad in law and not binding upon the plaintiff with further relief of permanent injunction.

After delivery of judgment in the earlier suit on 30.09.1994 (supra), the plaintiff had amended the plaint and brought the aforesaid fact of a

decree having been passed in his favour by incorporating paragraph 10-A in the plaint and also the fact that the sale deeds executed by defendant

No.3 (supra) are hit by the principles of lis pendens as provided for under Section 52 of the Transfer of Property Act, 1882 (for short ''the Act'').

Para 9-A of the plaint.

Defendants did not file written statement and remained ex parte. Plaintiff proved the judgment and decree dated 30.09.1994 (exhibit-P/7)

whereunder the suit property has been held to be joint Hindu family property and entitlement of the plaintiff of half share thereunder through

partition.

The trial Court has dismissed the suit vide its judgment and decree dated 26.10.1998 with the finding that the plaintiff failed to place on record

any document to prove that the suit property is a joint Hindu family property. Accordingly, the suit was dismissed. On appeal, the first appellate

Court though in paragraph 9 of the judgment has taken note of the fact of earlier judgment and decree quoted above but, chose not to interfere

with the impugned judgment and decree passed by the trial Court with altogether different reasoning that the plaintiff ought to have added the

defendants No.1 & 2 and 6 & 7 in the earlier suit, as the sale deeds dated 04.06.1993 and 30.09.1985 were executed during pendency of the

previous suit in the light of the provisions contained under Order 2 Rule 2 CPC. That having not been done, the plaintiff was estopped from

challenging the sale deeds in the instant suit with the relief of injunction. Accordingly, the appeal has been dismissed.

Learned counsel for the plaintiff/appellant contends that the fact of decree of declaration and partition having been brought on record by way of

amendment in the plaint and the said judgment being placed on record as exhibit P/7 together with copies of plaint & written statement (exhibit P/5

& exhibit P/6), the trial Court in fact and in effect has committed grave illegality having ignored the said judgment and decree altogether and

recorded perverse finding that the plaintiff failed to prove either by documentary or occular evidence that the suit property was joint Hindu family

property. Learned counsel is not hesitant and rightly so while he submits that it is a glaring example of judicial indiscipline by the trial Court having

ignored the relevant pleadings and documents proved/marked as exhibits while writing the judgment.

Learned counsel further submits that the principles of lis pendens are directly attracted as provided for under Section 52 of the Act. In the

instant case, as both the sale deeds (supra) were executed though prior to filing of the instant suit but, during pendency of the earlier suit, wherein

the suit property has been decreed to be a joint Hindu family property and the plaintiff is held entitled for half share of the said property. The fact in

that behalf has since already been brought on record by way of amendment in paragraph 9A of the plaint, in all fairness, the Court below ought to

have addressed on the question of applicability of the principles of lis pendens, while addressing on the relief that the aforesaid sale deeds were not

binding upon the plaintiff. That having been not done, the trial Court based on surmises and conjectures has decided the suit in hot haste and

slipshod manner against the plaintiff.

While criticizing the judgment and decree of the first appellate Court, learned counsel for the appellant has put-forth that the first appellate

Court has not correctly applied the provisions of Order 2 Rule 2 CPC, in the obtaining facts and circumstances of the case while non-suiting the

appellant. According to him, merely for the reason that the defendants No.1 and 2 & 6 and 7 were not added as party in the earlier suit, the suit

could not have been dismissed as the decree passed thereunder for declaration of property as joint Hindu family property and entitlement of 1/2

share of the plaintiff in no way could have been avoided for that reason. That apart, once the defendants No.1 & 2 and defendants No.6 & 7 were

before the trial Court, the trial Court ought to have addressed on sustainability of the sale deeds and likewise the first appellate Court as well,

instead justifying dismissal of the suit for the reason of nonimpleadment of the aforesaid defendants No.1 and 2 and defendants No.6 and 7 in the

earlier suit. Learned counsel to bolster his submission has relied upon the judgments of this Court reported in 2007(I) MPLJ 167 Ram Narayan

and others Vs. Ramsakha and another and 2011(3) MPLJ 44 Jaipraksh Associates Ltd., Naubasta Vs. State of M.P., and others. With the

aforesaid submissions, learned counsel seeks setting aside the impugned judgments and decrees.

Heard.

In the opinion of this Court, the Courts below have committed a grave illegality and irregularity while ignoring the plaint, written statement and

judgment and decree passed in the earlier suit (exhibit-P/5, exhibit-P/6 and exhibit-P/7) (supra) and the amendment incorporated in paragraphs 9A

and 10A of the plaint. Once the suit property has been declared as joint Hindu family property with further decree of half share of the plaintiff in the

suit property, the Courts below have committed shockingly grave illegality while it is concluded that the plaintiff has failed to prove that the suit

property is a joint Hindu family property. Moreover, when the defendant remained ex parte. Further, the principles of lis pendens contained under

section 52 of the Act squarely applies to the factual matrix of the case in hand as both the sale deeds (supra) were executed during pendency of

earlier suit between the plaintiff and the defendant No.3 and the aforesaid facts having been brought on record by way of amendment in paragraph

9A of the plaint. Therefore, even if defendants No.1, 2, 6 and 7 were not party to the earlier suit, the sale deeds executed by defendant No.3

(party in the earlier suit) hit by the principles of lis pendens as provided for under section 52 of the Act. To arrive at such a finding, this Court finds

support from the ratio of law laid down by this Court in the aforesaid cases relied upon by learned counsel for the appellant.

Consequently, the appeal is allowed. The impugned judgment and decree dated 04.01.2001 passed in Civil Appeal No.1A/98 by III

Additional District Judge, Ujjain and the judgment and decree dated 26.10.1998 passed in Civil Suit No.46-A/93 by Civil Judge, Class-I, Tarana,

District Ujjain are hereby set aside. The plaintiff is entitled to the extent of half share in the suit property as per decree passed in earlier suit

No.22A/1984(supra) as the sale deeds executed by defendant No.3 in favour of defendants No.1, 2, 6 and 7 (supra) are not binding upon him to

that extent and also for a decree of permanent injunction. Let a decree be drawn, accordingly.

The substantial questions of law framed by this Court are accordingly answered in favour of the appellant.