Smt. Jeewa Devi and Others vs Kumhaiya Devi and Others

Mungeshwar Sahoo, J.—The plaintiffs-respondents-appellants have filed this Second Appeal against the judgment and decree dated 05.10.1982 passed by the learned 3rd Additional Subordinate Judge, Darbhanga in Title Appeal No. 39 of 1969/02 of 1981 whereby the learned lower appellate court allowed the appeal and reversed the judgment and decree of the trial court dated 15.05.1969 passed by the learned Munsif 1st, Darbhanga in Title Suit No. 237 of 1963. The plaintiffs filed the aforesaid suit for declaration of title and confirmation of possession over the suit property and also prayed for declaration that the order passed by the Additional Collector is without jurisdiction, therefore, the name of Luchai Mishir be removed from Demand Register.

The plaintiffs claimed the aforesaid relief on the facts inter alia that Ramdhan Mishir had four sons, namely, Ayodhya Mishir, Jaideo Mishir, Chuman Mishir and Mauje Mishir. The plaintiffs are the descendants of Mauje Mishir and the defendants 1st party and 2nd party are the descendants of Ayodhya Mishir and Chuman Mishir respectively. The suit land was recorded in the joint name of Manoranjan Mishir to the extent of half share and in the joint name of the above four sons of Ramdhan Mishir to the other half share. In the year 1904 the holding was sold to the landlord. Thereafter Mauje Mishir separated from his brothers in the year 1905. Then in the year 1914 he obtained the settlement of the land from the landlord. He died in 1941 and in his place name of Luchai Mishir son of Ayodhya Mishir along with the plaintiff No. 1 was mutated in Serista of landlord. After vesting, the return was submitted by ex-landlord in the name of plaintiffs and Luchai Mishir. The plaintiffs filed application for removal of the name of Luchai Mishir from the record which was allowed by the Subordinate Officer but set aside by the Additional Collector.

The suit was contested by the heirs of Ayodhya Mishir. According to the defendants after the land was purchased by the landlord i.e. Raj Darbhanga in auction sale, a proposal was made for taking settlement of the land in the joint name but when co-sharer Manoranjan Mishir did not co-operate this family, the settlement was obtained by the defendants'' family. The allegation of settlement by Mauje Mishir alleged by the plaintiffs was denied. It was alleged that Mauje Mishir did not separate in the year 1905. Subsequently a partition took place between the four branches and each branch got one-fourth share in the property. Thereafter Jaideo Mishir gifted his interest to one Hargovind Mishir, defendant No. 1. There was an arrangement between Chuman''s branch and the plaintiffs whereby the defendants 2nd set exchanged their one-fourth share with some other lands of the plaintiffs, as a result of which the plaintiffs and the defendants 1st set divided the suit land half and half. The gift deed dated 12.04.1930 is not a conscious act by the executant as such it is void document.

It appears that originally the suit was decreed and the appeal was dismissed by the lower appellate court. Thereafter the defendants preferred Second Appeal being Second Appeal No. 416 of 1973. The High Court set aside the judgment of the lower appellate court and appeal was remanded to the lower appellate court with a specific direction regarding the acquisition of the land by the joint family or it was self acquired property of Mauje Mishir. After remand, the impugned judgment was passed by the lower appellate court holding that Mauje Mishir was joint with other branch in the year 1914 and there was sufficient nucleus in the joint family and the plaintiffs failed to prove self acquisition by Mauje Mishir.

At the time of admission on 30.08.1985, the following substantial question of law was formulated:--

As to whether on the admitted case of the defendants themselves, the suit should have been decreed in part?

The learned senior counsel Mr. Keshav Srivastava appearing on behalf of the appellants submitted that the suit was contested only by the heirs of Ayodhya Mishir. The other branches did not contest the plaintiffs'' case, therefore, they in fact admitted the claim of the plaintiffs that the property was self acquired property of Mauje Mishir. While reversing the judgment of the trial court, the lower appellate court did not consider this aspect of the matter. The learned counsel submitted that even if Mauje Mishir was a member of joint family but there is no bar in Hindu Law that a joint member cannot acquire property in his own name. According to the learned counsel, both the courts below have recorded the finding that Mauje Mishir was in joint family, therefore, the property is the joint family property. The learned counsel further submitted that this approach of the lower appellate court is wrong and the finding, therefore, is liable to be set aside.

The learned counsel in support of his contentions relied upon Lohia Properties (P) Ltd., Tinsukia, Dibrugarh, Assam Vs. Atmaram Kumar, M. Venkataramana Hebbar (D) by L.Rs. Vs. M. Rajagopal Hebbar and Others, and AIR 1930 57 (Privy Council) On the strength of these decisions and submissions, the learned counsel submitted that the substantial question of law formulated be answered in favour of the appellants and the plaintiffs'' suit be decreed. According to the learned counsel even if it is held that it is the joint family property then also since it is recorded in the name of the plaintiffs and the name of Ayodhya Mishir, the plaintiffs have got half share in the property, therefore, the suit may be decreed even in part.

In spite of service of appeal notice, nobody appeared on behalf of the respondents.

The plaintiffs prayed for a relief for declaration of title and confirmation of possession over the suit property on the ground that it is the self acquired property of Mauje Mishir, whereas the case of defendants is that it is the joint family property. It appears that in Second Appeal No. 416 of 1973 the High Court remanded the matter to the lower appellate court with a specific direction to the lower appellate court to decide the question as to whether the suit property is the joint family property or it was self acquired property of Mauje Mishir. The lower appellate court after remand considering the evidences available on record on this point categorically recorded the finding that the property was the joint family property and the family had sufficient nucleus to purchase the property. The case of the plaintiffs that it is self acquired property of Mauje Mishir has been disbelieved.

So far the submission of learned counsel with regard to the admission or no specific denial is concerned, we are hearing the matter in second appellate jurisdiction. The plaintiffs filed the suit on the ground that it is self acquired property of Mauje Mishir. The defendants filed written statement and stated that it is not the property of Mauje Mishir rather it is joint family property. The matter was remanded to the lower appellate court by the High Court for deciding this question. From perusal of the decisions relied upon by the learned counsel for the appellants, it appears that the settled principles of Hindu Law have been enunciated in those decisions.

So far the case of Siddik Mahomed Shah (supra), is concerned, it has been held that where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. In the case of M. Venkataramana Hebbar (supra), the Hon''ble Supreme Court has held that severance can be caused by any co-owner expressing his unequivocal intention to separate. The Hon''ble Supreme Court has also held that parties may continue to possess the property jointly despite the separation unless partition of joint family property takes place by metes and bounds. So far these propositions of law are concerned, there is no dispute. In the present case the specific direction of the High Court was to determine this question as to whether it is self acquired property of Mauje Mishir or is joint family property.

This question which was sent back by the High Court for decision is a pure question of fact. The lower appellate court on the basis of materials available on record has recorded the finding that it is the joint family property and the joint family has sufficient nucleus to acquire the same. Now, therefore, this finding recorded by the lower appellate court is also a pure question of fact.

In the case of Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi, the Hon''ble Supreme Court has held that finding of fact arrived at by the first appellate court based on evidence and is not perverse then interference in Second Appeal is not called for. When findings are based on no evidence and/or relevant admissible evidence is not taken into consideration or inadmissible evidence is taken into consideration, may give rise to a substantial question of law. Here, this is not the case that the judgment of the lower appellate court is not based on evidence or that any inadmissible evidence is considered by the lower appellate court. In the said decision, the Hon''ble Supreme Court has held that the issue as to whether property is joint Hindu family property or not is a question of fact and not a substantial question of law.

In view of the above settled principles of law laid down by the Hon''ble Supreme Court, the finding of the lower appellate court to the effect that the family had sufficient nucleus and the property acquired is the joint family property, the same cannot be interfered with in exercise of jurisdiction u/s 100 of the Code of Civil Procedure.

So far the substantial question of law formulated is concerned, it only mentions that on the basis of admitted case of the defendants, the suit should have been decreed in part. There is no such admission made by the defendants either in pleading or in evidence. Once it is held that it is the joint family property, the plaintiffs cannot be entitled for declaration of title over the entire property on the ground of admission. Moreover as stated above, there is no such admission made by the defendants and no such admission was pointed out to this court. Only the submission as stated above is that the defendants categorically did not deny the case of the plaintiffs. In my opinion, when both the parties went to trial and adduced evidences and the lower appellate court on the basis of evidences recorded a finding, the said finding cannot be upset in second appellate jurisdiction on the ground that in the written statement there is no categorical denial. Therefore, in my opinion, the substantial question of law formulated does not arise for decision in this Second Appeal. In the result, this Second Appeal is dismissed. No order as to costs.