Back
Rajasthan High Court
Wanchoo C.J. & Dave, J.
Poonam Chand - Appellant
Versus
Motilal - Respondents
D.B. Civil R. 1st Appeal No.16/1949
Decided On : May 12, 1955
Where certain partition deeds which were more than thirty years old had been produced by the defendant who stated on oath that they had been entrusted to him by the vendee of property covered by those deeds for the purpose of certain cases in Court where in he was helping him, the custody of such documents cannot be said to be improper and the Court would be entitled to raise a presumption as to their genuineness under sec. 90. (Para 10).
The plaintiff, who files a suit under Order 21, Rule 63, has got to establish "the right which he claims to the property in dispute. When the claimant files a suit under Order 21, Rule 63, he has got to establish either his title to the property; or if he relies only on his possession, then he has to establish that his possession is in his own right, In such a suit, if the other party is able to establish the judgment-debtors title to the property, then mere possession of the plaintiff would not en-able him to achieve any success in his suit. Order 21, Rule 63, does not contemplate that the plaintiffs suit should be decreed merely on the basis of possession even though the title in the property is proved in the judgment-debtor. In other words, if it is proved that the title of the property vests in the judgment-debtor, then the plaintiff cannot be successful merely on the ground of possession unless he is further able to establish that his possession was adverse to the judgment-debtor and that he has perfected his title on the basis of adverse possession. (Para 13)
The second proviso to sec. 33 protects the right of the "adverse party in the first proceeding" and not the right of the person who produces and examines the witness. The object of this proviso seems to protect those parties against whom the previous proceedings might have gone ex parte, or those who could have no right or opportunity to cross-examine them for some reasons. It would also protect co-plaintiffs or co-defendants who may not have the right or opportunity to cross-examine the witness produced from their own side But the person who himself examines a certain witness should not be permitted in a subsequent proceeding to raise an objection that the statement should not be admitted because he had no right or opportunity to cross-examine him. (Para 20).
Sec. 33 does not enjoin upon the Court that the statement of a witness examined in the previous proceeding must be believed. This section only deals with relevancy. In other words, it only makes the statement of such a witness admissible in evidence. It would always be open to the person against whom the statement is produced to show that it would not be believed for reasons given by him. (Para 20).
2. The facts giving rise to it are that defendant No. 3 Sunderlal and No. 4 Daudas had a decree against defendant No. 5 Gulab Das, and in execution of that decree, they got an attachment of a house situated in Bhootron-ka-Vas at Pokaran. The description of that property is given in para No. 2 of the plaint and need not be repeated here. The plaintiff presented an objection petition under Order XXI, Rule 58 of the Civil Procedure Code. The decree-holder contested that application on the ground that the house originally belonged to defendant No.1 Motilal, that he and his mother Mst. Dhapi defendant No. 2 had sold it to Sangidas Beharial, who were father and grandfather respectively of the judgment-debtor, Gulabdas, defendant No. 5. The plaintiffs objection-petition was dismissed. Thereafter the attached property was put to auction and pruchased by defandant No. 6 Hemraj.
3. The plaintiff and edfendants Nos. 1 and 2 related to each other. They come from a common stock one in order to under-stand the case it would be proper to give their pedigree-table which is not in dispute. It is as follows:—
Hemraj
Akheram Bulidan Rampratap
Jeetmal Bholaram
Poonamchand (P.)
Premsukh Madangopal Mt. Dhapi
(widow) (D.2)
Srikishen Motilal
(D.1)
4. The plaintiffs case in the trial court was that although the disputed properly was once the joint-family property of Akheram, Bulidan and Rampratap, it came to his share on a partition in the family and therefore he was its sole owner and that it was also in his exclusive possession. It was averred that defendant No. 1 Motilal had no right over the property and that he or his mother, defendant No. 2, had no authority to dispose it of. It was further alleged that the sale of the property by defendants Nos. 1 and 2 in favour of the ancestors of defendant No. 5 was fictitious, or at any rate void against him. It was therefore prayed that a declaratory decree be passed to the effect that the plaintiff is the rightful owner of the property and that it is not liable to attachment and sale in execution of the decree of defendants Nos. 3 and 4. Four defendants, namely Nos. 1, 2, 4 and 5 did not enter appearance in the trial court and, therefore the suit proceeded against them ex-parte. Defendants Nos. 3 and 6 contested the suit. Their defence was that the partition between Jeetmal, Bulidan and Rampartap had taken place in Svt. 1924 and the house in dispute had came to Ramparataps share. Defendant No. 1 inherited it from Ramparatap and therefore, he was its rightful owner. If was averred that defendants Nos. 1 and 2 had sold this house to Beharilal Sangidas, ancestors of defendant No. 5 and, therefore, defendant No. 3 had a right to get the said house attached and sold in execution of his decree against defendant No. 5.
5. It may be remarked here that the said plaint and the written-statement were filed in the court of the Judicial Officer. Thikana Pokaran. The plaintiff had valued the house in dispute at 700/-. The defendant raised an objection that the suit was undervalued. The Judicial Officer, Thikana Pokaran, came to the conclusion that the house was valued at Rs. 25C0/- and since it was beyond his jurisdiction to hear the suit, it was transferred to the court of the District Judge, Jodhpur The learned District Judge then framed the following two issues : —
1 Whether the alleged house is in the ownership and possession of the plaintiff and is not liable to attachment and sale in execution of the decree in case No. 3 of 1937 38
2. What relief the plaintiff is entitled to
6. After recording the evidence of both parties, the learned Judge found that there was a partition in the plaintiffs family in Svt. 1924, that the house had gone to the share of Rampratap, that it was sold by defendants Nos. 1 and 2 to the ancestors of defendant No. 5 and, therefore, it was liable to attachment and sale in exe
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
