2011 Supreme(Pat) 1881

PATNA HIGH COURT
Mungeshwar Sahoo, J.
Arun Kumar
Versus
Saroj Dwivedi
Decided On : SEPTEMBER 07, 2011

Headnote:Code of Civil Procedure, 1908-Order 22 Rule 4(3)-Abatement for non-substitution of legal representatives of defendants-substitution application filed by the plaintiff within 90 days from the death and accordingly it was allowed-the substituted heir filed her written statement wherein no date of death of her mother was mentioned-no petition filed for recalling the order allowing the substitution petition-however, D.W. 1 gave evidence that the defendant died on earlier date bringing the petition for substitution beyond the 90 days-this evidence of D.W. 1 is not reliable as neither the plaintiffs nor the defendants pleaded that the defendant died on the date stated by D.W. 1 (5.4.1977)-substitution petition already been allowed and the order allowing substitution attained finality-no question of abatement of suit under Order 22 Rule 4(3) arises because of the fact that some third person while deposing in evidence gave date of death of defendant different than the plaintiffs and defendants case-Suit will not abate automatically after order of substitution. (Para 38)

       Code of Civil Procedure, 1908-Sections 15 & 21-Territorial jurisdiction of court for institution of suit-jurisdiction of the court is dependant on the date of the institution of the suit-Once the jurisdiction vested in the court the same shall not cease for a limited period during the intervention of notification under the Consolidation Act only, because after the consolidation is over the suit will review with respect to the property situated in the area where the consolidation proceeding was going on. (Para 41)

       Court-Fees Act, 1870-Section 7 (iv) (b)-Plaintiff is purchaser of 1/4th Share from the original defendant and came in joint possession with the defendant-feeling inconvenience in the joint enjoyment of his 1/4th share he filed the petition suit-after purchase the plaintiff became co-tenant of original defendant and has the right to sue for partition and therefore, no ad valorem court-fee is payable-moreover even if its is payable, on that ground the contested judgment and decree cannot be set aside only because the plaintiff has not paid the advalorem court fees-at best a direction can be given to the plaintiff to file the advalorem court fee. (Para 46)

       Code of Civil Procedure, 1908-Order VI Rule 1-Pleadings-It is well settled principles of law that pleading is not a proof of the fact alleged-merely because it is pleaded by the defendants-appellants that sale deeds are created document, it cannot be said that the documents have been created. (Para 48)

       Hindu Law-Partition Suit-right to sue for partition is recurring right, no limitation is applicable nor the cause of action will cease after 12 years. (Para 49)

       Limitation Act, 1963-Adverse Possession-it is well settled that howso ever long possession may be, the same shall not constitute adverse possession unless it is shown that defendants had the intention to possess the property denying the title of the plaintiffs-in other words there must be intention to dispossess rather than only intention to possess. (Para 51)

       Code of Civil Procedure, 1908-Section 107 & Order 41 Rule 27-Powers of appellate court to admit additional evidence-Mr. S. K. Dwivedi, Advocate and Mr. S. S. Dwivedi, Sr. Advocate sought-Certain letters sought to be adduced as additional evidence by the defendant-appellants to show that the sale deeds were created-although the W.S. contained such allegations but no evidence adduced in support of the said facts-on the contrary the plaintiff-respondents proved the sale deeds to be genuine-pleading is not the proof of the fact pleaded-in such circumstances no such case was before the Trial Court nor there is any evidence on record-therefore, even if the documents which are sought to be adduced as additional evidence are taken into consideration the same will not make any difference with regard to the merits of the case-in such circumstances, after such long lapse of time i.e. more than 39 years the appellants cannot be allowed to adduce additional evidence-Said documents are not at all necessary for determination of the controversy between the parties-application under order 41 Rule 27 C.P.C. has no force. (Paras 61 to 63)

       Code of Civil Procedure, 1908-Section 35-Costs-directing the parties to bear their own costs encourages the filing of frivolous suits-it also leads to the taking up of frivolous defences-further, whenever costs are awarded ordinarily the same are not realistic and are nominal-When Section 35(2) provides for costs to follow the event it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons therefor-in the present case, appeal dismissed with cost of Rs. 15,000/-. (Para 64)