Ramasray Kashyap vs Kishan Kashyap

Heard on admission.

This Second Appeal has been preferred by the defendant No. 3 under Section 100 of the Code of Civil Procedure, 1908 questioning the legality and propriety of the judgment and decree dated 17.03.2016 passed by Sixth Additional District Judge, Bilaspur (C.G.) in Civil Appeal No. 52A/2013, by which the lower appellate Court has partly allowed the appeal and set aside the judgment and decree dated 30.04.2011 passed by learned Fifth Civil Judge Class-II, Bilaspur in Civil Suit No. 12A/2010 and also dismissed the cross appeal filed by the defendant No. 3.

The parties to this appeal shall be to referred hereinafter as per their description before the trial Court.

Briefly stated the facts of the case are that the plaintiff has filed a civil suit on 06.07.2009 for declaration, partition, injunction and possession mainly contending that the plaintiffs and defendants are members of joint Hindu family and governed by Mitakshara branch of Hindu Law. The plaintiffs have also mentioned genealogy of their family. It has been contended that the land bearing Khasra No. 406/2, 423 area 0.320 hectare, Khasra No. 427 area 0.097 hectare, Khasra No. 428 area 0.097 hectare, Khasra No. 487 area 0.113 hectare, Khasra No. 488 area 0.304 hectare, Khasra No. 536 area 0.810 hectare total area 1.012 hectare situated at Chantidih, P.H.N. No. 20, Tehsil and District Bilaspur (which shall be referred to as ‘suit property’ in subsequent paragraphs) is ancestral property which was recorded in the name of late Shri Avshan Kashyap. It has also been contended that there was no partition in the suit property and the defendants No. 1 to 7 fraudulently recorded their names in the revenue record and are attempting to sell the suit property. It has also been contended that the said sale is not being done for the welfare of the joint Hindu family. The defendants are attempting to sell the property without consent of the plaintiffs which has adversely affected over the interest of the plaintiffs. The plaintiffs have sent legal notice on 07.06.2009 demanding their share in the suit property, but the defendants have not given the share to the plaintiffs which has necessitated them to file suit for declaration, partition, injunction and possession.

The plaintiffs filed an application under Order 39 Rule 1 CPC which was allowed by the learned trial court vide its order dated 13.10.2009 and restrained the defendants not to alienate or sell the property without any legal necessity of joint Hindu family till one year or the suit is finally decided by the Trial Court whichever is early.

The defendant No. 1 filed written statement mainly contending that the plaintiffs and defendants belong to one family and with regard to suit property no partition has been taken. It has also been contended that the defendants No. 1 to 7 have 1/5 share of suit property and the plaintiffs are entitled to get 1/5 share of defendant No. 3. The plaintiffs are entitled to get their share only after each defendant’s share is partitioned and possession is given to them, then only the plaintiffs are entitled to get partition of 1/5 part of defendant No. 3’s share as defendant No.3 is father of plaintiffs. It has also been specifically contended the plaintiffs have never demanded share from defendant No. 1, as such no question of denial is exists and would pray for dismissal of the suit.

The defendant No. 3 has filed written statement mainly contending that the defendant No. 2 Rampal has submitted an application under Section 178 of Land Revenue Code for partition which is pending and the plaintiffs have claimed partition of the suit property which is also pending before the Commissioner Revenue Bilaspur Division. The defendant No. 3 has also filed revision before the revenue board against the order passed by the Commissioner and the matter is being remitted to the Commissioner for deciding the same, as such the present suit is not maintainable. It has also been contended that defendant No. 1 after taking share from his father is separated from the joint family, therefore, he is not the member of joint Hindu family property, as such pleadings made regarding title of the defendant No. 1 is incorrect submission. It has also been contended that the averments which have not been admitted are deemed to have been denied. It has also been contended that since there is no pleading made with regard to application of Ceiling Act as such the suit is not maintainable and due to the legal impediment, the suit is not maintainable and would pray for dismissal of the suit.

The record of the case would show that only Defendant No. 1 and 3 have filed their written statement and rest of the defendants have neither filed their written statement nor contested the case, therefore, they were proceeded ex-parte. On the pleadings of the parties, the learned trial Court has framed as many as 7 issues. The plaintiffs to substantiate their case, have examined the witnesses namely Kanhaiya Kashyap (plaintiff), Kishan Kashyap (PW/1), Borelal Kashyap (PW/2), Ashok Kumar Gupta (PW/3), Babita Kashyap (PW/4). The plaintiffs to substantiate their case, have exhibited documents namely B-I Kishtbandi Khatauni 1995-96 (Ex. P/1), P-II Khasra Panchshala 1993-94 (Ex. P/2), B-I Kishtbandi Khatauni (Ex. P/3), Khasra Panchshala (Ex. P/4), Registered Notice, Acknowledgment, Postal receipt (Ex. P/5 to P/7), Receipt of Registered Post (Ex. P/8), Publication of Notice in the newspaper (Ex. P/9), Photographs of suit property (Ex. P/10). The defendant No. 3 to substantiate his case has examined himself as DW-1 and exhibited documents namely Photographs (Ex D-1 to D-16), Patwari janch Prativedan dated 23.10.2010 (Ex. D-17), Panchnama (Ex. D-18). The plaintiff Kanhaiya Kashyap in his examination in chief by way of affidavit as provided under Order 18 Rule 4 CPC has reiterated the facts which he has taken in the plaint. The witness was cross-examined by the defendant No. 3 wherein he has admitted that he has filed the suit for joint family property and with regard to individual property he has not filed any suit. He has also admitted that property described in Ex. P/10 photographs is in joint position of plaintiffs and defendants. He has also stated that with regard to suit property there is no partition between father, elder brother of father, the revenue record is in the joint. He has also stated that he is having 1/5 share in the suit property. The other witnesses namely Borelal Sahu, Ashok Kumar Gupta and Babita Kashyap have also reiterated that it is a joint property of plaintiffs and defendants and no partition has been taken place between plaintiffs and defendants.

The defendant No. 3 to substantiate his case has examined himself as DW-1 and exhibited documents namely Photographs (Ex D-1 to D-16), Patwari janch Prativedan dated 23.10.2010 (Ex. D-17), Panchnama (Ex. D-18). The witness has reiterated the same stand which he has taken in the written statement. The witness was cross-examined by plaintiffs wherein he has admitted that the suit property was earlier recorded in the name of his father Avshan Kashyap and thereafter, names of Ramavtar, Ramashray, Rampal, Ramnivas, Ramprakash, Omprakash S/o Gangaram and Triveni Bai have been recorded. He has also admitted that if the partition is taken place then all the account holders will get 1/5 share. He has also stated that he cannot say that plaintiff is a member of the joint family, still he can be given 1/11th share of the joint family property or not. The learned Trial Court vide its judgment and decree dated 30.04.2011 has dismissed the suit by recording its finding that the plaintiff is unable to prove his case that they are entitled to get 1/11th share after partition of the suit property.

Being aggrieved with this judgment and decree, the plaintiff preferred first appeal before the learned Second Additional District Judge, Bilaspur (C.G.) mainly contending that the learned trial court has passed the judgment and decree without any pleading made by the defendant that during the life time of father the sons are entitled to claim partition of the suit property. It has also been contended that by declaring the suit only share is being declared and partition is execution of decree. Thus plaintiffs are entitled to get share of the suit property. It has also been stated that the judgment referred to by the learned trial court is distinguishable on the facts as in that case the sons were claiming their share from the property owned by the father, whereas in the present case the plaintiffs are claiming their share being coparceners of the joint Hindu family property which was not disputed by the defendants also. The defendant No. 1 has also filed cross-appeal on 14.07.2011 mainly contending that the findings recorded by the learned court below with regard to issue No. 1, 5, 6 and 7 are against the evidence, material on record as well as oral evidence adduced by the parties, as such he may be allowed to make submission while arguing the appeal filed by the plaintiff. The record of the case would demonstrate that the learned First Appellate Court has also heard the argument on 03.03.2016 in the appeal filed by the plaintiffs as well as in cross-appeal filed by the defendant No. 3.

The learned First Appellate Court vide its judgment and decree dated 17.03.2013 has allowed the appeal and recorded its finding in paragraph 18 of the judgment that the plaintiffs are coparceners and the defendants have also admitted that suit property is ancestral property. It has also been admitted that the plaintiffs are sons of defendant No. 3 as such they are entitled to claim their share being coparceners right from their birth. The learned First Appellate Court has also recorded its finding that the judgment which has been referred to by the learned trial Court in case of Hombal @ Chowdaiah (D) by LRs. & Ors. vs. Sri Siddaiah & Ors. reported in Supreme Today 2001 (4) SC 480 is not applicable to the facts of the case and accordingly allowed the appeal. The learned Appellate Court while deciding the appeal has appreciated the evidence, material on record adduced before the court below and thereafter the findings have been given and set aside the judgment and decree passed by the learned Trial Court and dismissed the cross-appeal filed by the defendant No. 3.

Being aggrieved with the judgment and decree passed by the lower appellate court the defendant No. 3 has filed the second appeal, reiterating the same stand taken before the courts below and has contended that the findings of the courts below are perverse as there was no material on record to reverse the well reasoned finding recorded by the learned trial Court. He would further submit that the lower court has failed to decide cross-appeal filed under Order 41 Rule 22 CPC filed by the appellant on 14.07.2011, as such he would submit that there is substantial question of law involved in the appeal, therefore, appeal may be admitted for hearing.

I have heard learned counsel for the appellant on admission as well as the legal representatives of deceased respondent No. 3.

The record of the case clearly demonstrates that the learned appellate court after appreciating the evidence, pleading made by the parties has passed the impugned judgment and decree. The learned First Appellate Court while deciding the appeal has recorded its finding that the plaintiffs and defendants are members of the joint Hindu family and no partition has been taken place. It has also recorded its finding that the plaintiffs and defendants are coparceners. The learned First Appellate Court while deciding the appeal has affirmed the finding recorded by the trial court that initially the property was recorded in the name of ancestral late Shri Avshan Kashyap and after his death name of the defendants No. 1 to 7 are also recorded. The First Appellate Court has also recorded its finding that the plaintiffs have right to claim partition to the extent of their share as they are coparceners. This finding is in accordance with the provisions of Section 6 of the Hindu Succession Act, 1956. The learned First Appellate Court while appreciating the finding with regard to the issue No. 1, 3, 5 and 7 has recorded its finding with regard to issue No. 1 that plaintiffs are entitled to get 1/11th share of the suit property which has been proved is legal and justified. Similarly for issue No. 2 the finding recorded by the learned trial court has been set aside on the count that since the plaintiffs are coparcerners therefore, they are entitled to get their share and the judgment of Hon’ble Supreme Court to referred by the learned Court below Hombal (supra) is distinguishable on the facts, as such, the finding regarding issue No. 2 by the learned Trial Court is incorrect finding which has been rightly set aside by the learned First Appellate Court. Similarly the learned First Appellate Court has affirmed the finding on issue No. 3 recorded by the learned trial court that plaintiffs are unable to prove that any sale deed has been executed by the defendants thus, this finding is also legal and justified which has rightly not been disturbed by the learned First Appellate Court. Similarly, the issue No. 4 has been decided by the First Appellate Court as the plaintiffs are entitled to get their share being coparceners . The learned First Appellate Court while deciding the issues No. 5 to 6 has recorded its finding that the defendant has not produced any documentary evidence to claim that suit is not properly valued or no proper court fees has been affixed, as such it has affirmed the finding of the trial court, this finding is also legal and justified as it is well settled position of law that burden lies upon the person who is taking objection regarding court fees etc., the defendant No. 3 has miserably failed to prove the same. Similarly while affirming the finding regarding issue No. 7 maintainability of the suit, the First Appellate Court has recorded its finding that the suit is barred under the Ceiling Act which was not established by the defendant No. 3 as no material has been placed on record to demonstrate that the provisions of Ceiling Act is applicable to the facts and circumstances of the case, as such the finding of learned Trial Court has rightly been affirmed by the First Appellate Court while partly allowing the appeal filed by the plaintiffs.

Upon perusal of entire evidence, there is no substantial question of law requires to be formulated for hearing of this second appeal as there is concurrent finding of fact with regard to the fact that the suit property belongs to joint Hindu family, no partition has ever been taken place, plaintiffs are coparceners and since their birth they have right to claim their share from the joint Hindu family property. Hon’ble the Supreme Court in C. Doddanarayana Reddy (Dead) by Lrs. &others Vs. C. Jayarama Reddy (dead) by Lrs.& others reported in (2020) 4 SCC 659 has held at paragraph 28 as under:-

“28. Recently in another judgment reported as State of Rajasthan v. Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:-

“When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43).”

This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended Section 100 of the C.P.C. Learned counsel appearing for the appellant failed to point out any substantial question of law which may arise for determination in the case.

In view of above, since no substantial question of law arises for determination in the instant case, this is not a fit case for admission. Consequently, the appeal is dismissed at motion stage itself under the provisions of Order 41 Rule 11 read with Order 42 Rule 1 of CPC. No order as to costs.

A decree be drawn up accordingly.