Vivekanand Vaishnav vs Madanlal (Dead) Through Lrs

Rakesh Mohan Pandey, J

The appellant/plaintiff has challenged the judgment and decree passed by the Additional District Judge, FTC, Korba in Civil Suit No. 8-A/2006 dated 06.08.2007 whereby the suit filed by the plaintiff for vacant possession of Survey No. 210/1 ट  admeasuring 0.15 acres, situated at Village Kudurmaal and mesne profit for damages has been dismissed.

The plaintiff filed a suit inter alia on the ground that original defendants No. 1 to 4, namely, Madanlal, Surendradas, Ekanand and Bramhanand are children of Parmeshwardas. There was a partition on 22.04.1979 with regard to the entire property recorded in the name of Parmeshwardas between defendants No. 1 to 4 and the plaintiff. The house situated over Survey No. 210/1 ट admeasuring 0.15 acres fell in the share of the plaintiff. At that time, defendant No. 1 was staying in that house along with his family and a period of 05 years was granted to him to construct his own house and thereafter he promised to hand over the possession of that house. When after a lapse of 05 years the possession of the suit house was not handed over to the plaintiff, on 22.06.1992, a legal notice was issued and thereafter suit was filed on 02.11.1992 for vacant possession of the suit house and damages. Defendant No. 1 filed a written statement and denied the plaint averments. It was pleaded that the plot which fell in the share of defendant No. 1 in lieu of the suit house is recorded in the name of someone else and, therefore, the partition is not acceptable. It is also pleaded that the plaintiff and other members of the family have played fraud.

The learned trial Court framed issues and held that the suit house situated over Survey No. 210/1 ट admeasuring 0.15 acres fell in the share of the plaintiff in partition. The learned trial Court further held that the suit property fell in the share of the plaintiff and the possession of defendant No. 1 was permissive for the period of 05 years. It is also held that there was no condition in the partition to handover the possession of the suit house to the plaintiff after raising the construction of the house by defendant No. 1 and the plaintiff is not entitled to get possession of the suit property and damages as sought in the plaint and thus, the learned trial Court dismissed the suit.

Mr. Parag Kotecha, learned counsel appearing for the appellant/plaintiff, would submit that the learned trial committed an error of law in disbelieving the partition admitted and proved by the parties. He would further submit that the house situated over Survey No. 210/1ट admeasuring 0.15 acres fell in the share of the plaintiff and there was a mutual agreement between the plaintiff and defendant No.1 to hand over the possession after 05 years as at that time defendant No.1 had no other accommodation. He would also submit that it was assured by defendant No.1 that after raising the construction of his own house, he would hand over the possession to the plaintiff. He would argue that a legal notice was sent to defendant No. 1 and when no action was taken to hand over the possession, the civil suit was filed. It is further argued that earlier the suit was filed on 02.11.1992 seeking possession and that was dismissed on 30.07.2002 for want of jurisdiction. It is also argued that the first appeal i.e. Civil Appeal No. 8A/2002 was preferred and the same was also dismissed on 29.08.2003. He would contend that as the earlier suit was dismissed on account of jurisdiction and valuation of the suit, the principle of res judicata would not attract. He would further contend that the learned trial Court disbelieved the evidence led by the plaintiff on the ground that the plaintiff failed to adduce documentary evidence, whereas oral contention made by defendant No.1 even in the absence of documentary evidence was accepted. It is also contended by Mr. Parag Kotecha that Civil Suit No. 62A/97 was filed by defendant No.1 seeking relief of permanent injunction and the same was dismissed by the trial Court vide judgment dated 09.02.2000. He would state that the judgment passed by the learned trial Court deserves to be set aside.

On the other hand, Mr. Rahul Jha, learned counsel appearing for defendant No. 1 (1a to 1g), would submit that earlier the civil suit seeking the same relief was filed by the plaintiff which was dismissed. He would further submit that the parties and the issues are almost similar, therefore, the principle of res judicata would attract. He would also submit that there is an admission given by the plaintiff to the effect that the property which fell in the share of defendant No. 1 is recorded in the name of someone else. He would further contend that taking into consideration the admission made by the plaintiff, the learned trial Court dismissed the suit. He would also contend that the alleged partition would not be permissible as according to the partition, property has not been given to defendant No. 1. He would state that the learned trial Court rightly dismissed the suit filed by the plaintiff. He further stated that the partition between the parties would become voidable as the share of defendant No. 1 is not recorded in the name of the family account.

Mr. Nupoor Sonkar, learned Panel Lawyer appearing for respondent No. 4 would support the judgment and decree passed by the trial Court.

I have heard learned counsel appearing for the parties and gone through the records of the courts below.

From a perusal of the records and the pleadings made in the plaint and the written statement, it is quite vivid that there was a partition between the family members. The plaintiff got Survey No. 210/1ट admeasuring 0.15 acre in which the house is situated. At the time of partition, defendant No.1 was staying in that house, therefore, it was agreed between the parties that defendant No.1 would stay in that house for a period of 05 years and in between, he would construct his own house and hand over the possession to the plaintiff. The plaintiff has filed Ex. P/1 to demonstrate that Survey No. 210/1 ट is recorded in his name, therefore, it can safely be held that the suit property fell in the share of the plaintiff. The learned trial Court also decided issues No. 1 and 2 in favour of the plaintiff. Perhaps there was an oral agreement between the plaintiff and defendant No.1 and according to that agreement, defendant No.1 had to hand over the possession of the suit house to the plaintiff after 05 years. The plaintiff as well as defendant No. 1 both have admitted this fact in their evidence. Defendant No. 1 in Para-12 of cross-examination has admitted the fact that a different land was given to him on partition. It is also admitted that Survey No. 210/1ट was given to the plaintiff in share in which the house is situated. In Para-17, he also admitted the fact that after 4-5 years, he came to know that the land which was given to him in the partition is not recorded in the names of family members. Therefore, the finding recorded by the trial Court about issue No. 3 appears to be erroneous as there was an oral agreement between the parties and 05 years were granted to defendant No. 1 to construct his house and hand over the possession of the suit house to the plaintiff.

The plaintiff in his evidence in Para-15 has admitted the fact that the land which fell in share of defendant No.1 is recorded in the name of someone else and that was not in the knowledge of family members. The plaintiff has further admitted that the said land was recorded in the name of Jhadudas and thereafter it was recorded in the name of Ujagardas. Another property was recorded in the name of Jharuram and after his death, it was recorded in the name of his wife Manmati who is tribe, but defendant No.1 has taken forceful possession of that property. This witness in Para-16 has admitted the factum of forceful possession obtained by defendant No. 1 whereas no document was produced in this regard. The learned trial Court, while deciding issue No. 4 held that, as the plaintiff failed to prove the fact that forceful possession was obtained by defendant No.1 and no documentary evidence was led in this regard, declined to grant relief of possession in favour of the plaintiff.

With regard to the contention raised by Mr. Rahul Jha that the partition is voidable in the absence of existing land given to defendant No. 1 in the partition, admittedly, the land was partitioned between the parties on 22.04.1979 and the partition deed was also prepared. After 4-5 years, defendant No.1 came to know the fact that the land which fell in his share, was not in existence, but no steps were taken by him to challenge the partition deed. A civil suit for permanent injunction was filed by the plaintiff but the same was dismissed. In the present suit also, defendant No.1 has not filed any counter claim to challenge the partition deed even though defendant No. 1 has not mentioned the survey number and area of the property which fell in his share, therefore, the contention made by Mr. Rahul Jha cannot be accepted. It is also contended by Mr. Rahul Jha that in family property, the survey number of the foreign property was included; therefore, the partition became null and void. The contention raised by Mr. Rahul Jha cannot be accepted as the same has not been challenged though the partition deed was reduced into writing in the year 1979. In the present case, defendant No. 1 failed to adduce any documentary evidence to prove that he got those survey numbers in partition which were recorded in the name of some other person and in the absence of any documentary evidence, the contention made by the defendant No. 1 cannot be accepted and the findings recorded in this regard by the learned trial Court are also erroneous. There was an oral agreement between the parties and the same was accepted by defendant No.1 in his evidence and written statement also and this suit is not hit by principles of res judicata as the earlier suit was dismissed for want of jurisdiction and thus, the civil suit was decided on merits.

Taking into consideration the above-stated facts, in the opinion of this Court, the learned trial Court committed an error of law in dismissing the suit filed by the plaintiff, therefore, the judgment and decree dated 06.08.2007 passed by the trial Court in Civil Suit No. 8-A/2006 is hereby set aside.

The civil suit is decreed. The plaintiff shall get possession of the suit property bearing Survey No. 210/1ट admeasuring 0.15 acre, situated at Village Kudurmaal, District Korba (C.G.).

Defendant No. 1 is directed to hand over the possession of the suit property to the plaintiff within a period of 06 months.

Consequently, the first appeal is allowed. No order as to cost(s).

A decree be drawn accordingly.