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THE HIGH COURT OF SIKKIM AT GANGTOK
PIUS C. KURIAKOSE, J.
Shri Umesh Agarwal, S/o Late Bhaskaranand Agarwal,
Shri Mudit Agarwal, S/o Umesh Agarwal,
Shri Sohil Agarwal, S/o Umesh Agarwal,
All residents of M.G. Marg, Gangtok, East Sikkim. - Appellants/Plaintiffs.
Versus
Shri Mahesh Agarwal, S/o Bhaskaranand Agarwal,
Shri Mihir Agarwal, S/o Shri Mahesh Agarwal,
Smt. Mridula Agarwal, W/o Shri Mahesh Agarwal,
All residents of M.G. Marg, Gangtok, East Sikkim. - Respondents/Defendants.
R.S.A. No. 1 of 2012
Decided on : 06.08.2013
Whether the purported deposition dated 18.08.1987 made as a witness in an earlier trial, Civil Suit No. 76 of 1987 filed by the defendant No. 1 for recovery of rent against a tenant and retracted in the present suit can be held to be conclusive admission against the appellants in the subsequent litigation, i.e. present suit, claiming right in the joint family properties in absence of any finding recorded by the Court on such statement in earlier suit? Whether document dated 19.08.1987 and the declaration dated 23.07.1988 referred to in question No. 1 allegedly executed amongst the appellant No. 1 and respondent No. 1 subsequent to the alleged admission in Civil Suit No. 76 of 1987 declaring the statement/admission as nonest with regard to the rights of the appellant No. 1 in the properties, subject matter of present suit, could have been ignored as forged and fabricated by the Courts below without providing opportunity to the appellants (plaintiffs) to prove the same in trial? Whether the appellants No. 2 and 3 (plaintiffs), who are sons of appellant No. 1 and claimed right/share in the joint family properties are bound by the purported admission made by the appellant No. 1 in a trial concluded in the year 1987 when the appellants No. 2 and 3 had not even been born and their rights as co-personas could be defeated? Whether the evidentiary admission purportedly made by the Appellant No. 1 regarding Schedule B properties only has the effect of binding the Appellants as admission with regard to the 13 other properties mentioned in Schedule A? Whether the purported admission made by the Appellant No. 1 can confer title of the joint family properties mentioned in Schedule A and B on the respondents when admittedly the Respondents do not have any legal title evidenced by any deed or document? Whether the 8 issues framed by the trial court vide order dated 21.06.2005 could be said to be disposed off and decided on the bare finding with regard to the purported admission made with regard to the Schedule B property only?
Fact of the Case:
The appellants filed a second appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugning that the decision concurrently taken by the lower Appellate Court and the Trial Court on an application filed under Order XII Rule 6 of CPC by the defendants to non-suit them on the basis that the title suit filed by them was liable to be dismissed straightway on the basis of admission already made by them in a previous litigation.
Finding of the Court:
The Court held that the impugned judgment has to be interfered with answering the four substantial questions of law indicated herein immediately above in favor of the appellant. The Court also issued directions regarding the expeditious disposal of Civil Suit No. 10/1994, which is already about two decades old.
Issues: 1. Whether the purported deposition dated 18.08.1987 made as a witness in an earlier trial, Civil Suit No. 76 of 1987 filed by the defendant No. 1 for recovery of rent against a tenant and retracted in the present suit can be held to be conclusive admission against the appellants in the subsequent litigation, i.e. present suit, claiming right in the joint family properties in absence of any finding recorded by the Court on such statement in earlier suit? 2. Whether document dated 19.08.1987 and the declaration dated 23.07.1988 referred to in question No. 1 allegedly executed amongst the appellant No. 1 and respondent No. 1 subsequent to the alleged admission in Civil Suit No. 76 of 1987 declaring the statement/admission as nonest with regard to the rights of the appellant No. 1 in the properties, subject matter of present suit, could have been ignored as forged and fabricated by the Courts below without providing opportunity to the appellants (plaintiffs) to prove the same in trial? 3. Whether the appellants No. 2 and 3 (plaintiffs), who are sons of appellant No. 1 and claimed right/share in the joint family properties are bound by the purported admission made by the appellant No. 1 in a trial concluded in the year 1987 when the appellants No. 2 and 3 had not even been born and their rights as co-personas could be defeated? 4. Whether the evidentiary admission purportedly made by the Appellant No. 1 regarding Schedule B properties only has the effect of binding the Appellants as admission with regard to the 13 other properties mentioned in Schedule A? 5. Whether the purported admission made by the Appellant No. 1 can confer title of the joint family properties mentioned in Schedule A and B on the respondents when admittedly the Respondents do not have any legal title evidenced by any deed or document? 6. Whether the 8 issues framed by the trial court vide order dated 21.06.2005 could be said to be disposed off and decided on the bare finding with regard to the purported admission made with regard to the Schedule B property only?
Ratio Decidendi: The Court held that the Courts below should have been more cautious and should not have been unmindful of the scope of acting on evidentiary admissions while deciding a highly contentious suit even without trial. The Court also held that the genuineness and the probative value of the two documents pressed into service by the appellants No. 2 and 3 in the context of the application under Order XII Rule 6 is to be tried and decided by the Court below.
Final Decision: The Court set aside the impugned judgment, the judgment of the trial Court as well as the order of the trial Court on the application under Order XII Rule 6 CPC and remitted the suit back to the trial Court. The Court also directed the trial Court to try and dispose of the suit as early and at any rate within a time frame of four months from receipt of the records.
Pius, CJ
Surviving plaintiffs in Title Suit No. 01/2009 on the files of learned Civil Judge, East Sikkim, who were appellants in Title Appeal Case No. 08/2011, have filed this Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) impugning that the decision concurrently taken by the lower Appellate Court and the Trial Court on an application filed under Order XII Rule 6 of CPC by the defendants to non-suit them on the basis that the title suit filed by them was liable to be dismissed straightway on the basis of admission already made by them in a previous litigation. The facts will have to be adverted to briefly.
2. The appellants will hereinafter be referred to as the surviving plaintiffs and the respondents will hereinafter be referred to as the defendants or by their names. The suit was instituted originally as Civil Suit No. 10/1994 by the surviving plaintiffs and also by one Bhaskaranand Agarwal, father of appellant No. 1 and respondent No. 1 in respect of 9 items of immovable properties described in Schedule -A to the plaint and another immovable property described in Schedule – B, which is in fact the first item described in Schedule – A itself. The suit was amended and the following are the reliefs sought for in the amended plaint:
(a) For declaration that the suit properties mentioned in the Schedule ‘A’ hereunder are joint family properties and/or the coparcenary properties of the Plaintiffs and the Defendants.
(b) For declaration that the deed of gift executed and registered on 31.1.1989 by the Defendant No. 1 in favour of Defendant No. 3 in respect of the properties mentioned in Schedule ‘B’ hereunder is void and inoperative in law and is not binding upon the Plaintiffs and/or in coparceners of the Hindu undivided family or upon any members of the joint family of the Plaintiffs and the Defendants.
(c) For permanent injunction restraining the Defendants and each one of them from transferring alienating, encumbering, dealing with and/or from disposing of any of the joint properties of the parties mentioned in Schedule ‘A’ hereunder and also from interfering with the peaceful possession of the Plaintiffs and their family members in all the joint properties as aforesaid including in Schedule ‘B’ hereunder and also from interfering with running of the joint family business in any manner whatsoever.
(d) For Receiver.
(e) For Costs.
(f) For such other relief or reliefs to which the Plaintiffs are entitled in law and equity.
As per the amendment, three more items of properties are incorporated in Schedule – A, and these three items are not immovable properties as such, but they are three different business concerns.
3. The first defendant Mahesh Agarwal as already indicated is the direct brother, being the elder brother of appellant-surviving plaintiff No. 1 Umesh Agarwal. The second defendant is the son of first defendant and the 3rd defendant Smt. Mridula Agarwal is the wife of first defendant and in her favour Annexure – B Gift Deed dated 31.03.1989 is executed by her husband, Mahesh Agarwal, jointly with ‘M/s Shree Mulchand and Sons’ a proprietary concern belonging to him.
4. The case of the plaintiff is that all the properties including the Schedule – B property, which appears to be the most valuable amongst the immovable properties described in Schedule – A belong to a Hindu Undivided Joint Family in which the members presently are the three appellants and defendant Nos. 1 and 2. According to them, in the above Hindu Undivided Joint Family, no partition has so far taken place in respect of the immovable properties scheduled to the plaint. In this context they claim that all these properties were allotted to a registered partnership firm by name ‘M/s Shree Mulchand and Sons’ by the Government of Sikkim by an order of allotment dated 14.09.1944 which is produced in the case as Exhibit P-1. It is, therefore, further case that pursuant to a family arrangement entered into at Cal
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