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2020 Supreme(All) 119
IN THE HIGH COURT OF ALLAHABAD
RAJNISH KUMAR, J.
Badri And Ors. - Appellant
Versus
Jata Shankar And Another - Respondent
Second Appeal No. 162 of 2011
Decided On : 03-02-2020
Advocate Appeared:
For the Appellant : R. R. Upadhyay, Amit Srivastava, Indra P. Singh
For the Respondent: S. K. Mehrotra, Aditya Mishra, Aditya Nath, I.D. Shukla, Shobh Nath Pandey, Vipin Kumar Mishra
Point of Law
Judgment may not vitiate because it can be ignored if there has been substantial compliance with the provisions i.e. Order 41 Rule 31 CPC and the higher appellate court is able to ascertain the findings of the lower appellate court.
Headnote:
Civil Procedure Code, 1908 – Section 100 – Second Appeal by the appellants/plaintiffs against the judgment and order passed by the Additional District Judge, in Civil Appeal No.87 of 2008; Jata Shankar and another Versus Badri and others, which was preferred by the defendants/respondents for setting aside the judgment and order passed by the 3rd Civil Judge (JD), Faizabad in Regular Suit;Bhagwan Das and others Versus Smt.Raji and another – Held, Appellant had also failed to disclose as to which issue has not been framed and evidence has not been considered and only submitted that the points of determination have not been framed while the judgment has been passed after considering the submissions of the parties and the evidence and also the case laws specifically considering the pleadings and evidence in regard to issues on which the arguments were advanced. Therefore, this court is of the view that there is substantial compliance of Order 41 Rule 31 CPC and the judgment does not vitiate on this ground –Plaintiff-appellants have failed to prove the re-marriage of Smt. Raji and possesson over the property, therefore, the decree passed by the learned trial court has rightly been set aside and suit has been dismissed in accordance with law – Appeal dismissed. (Paras 41, 42 and 43)
Facts of the Case
Both the appellants/plaintiffs and the respondents/defendants are the residents of the same village and they were the members of Hindu joint family. Jorai was the owner of the whole property in dispute. After death of Jorai it came in the name of Mahangi, the eldest son of Jorai. After the death of Mahangi it was mutated in the name of Jagesar. Mahangi, Dubar, Lahuri and Rohni took over their possession according to their shares. Lahuri died issueless, therefore, his share was divided among all the brothers. Smt. Raji had equal share in whole property- After death of Smt.Raji her servant Bhagauti claimed himself to be heir through her Will. While she had never executed any Will and Bhagauti had no possession and right over the land in dispute.
Finding of the Court
Appellant had also failed to disclose as to which issue has not been framed and evidence has not been considered and only submitted that the points of determination have not been framed while the judgment has been passed after considering the submissions of the parties and the evidence and also the case laws specifically considering the pleadings and evidence in regard to issues on which the arguments were advanced. Therefore, this court is of the view that there is substantial compliance of Order 41 Rule 31 CPC and the judgment does not vitiate on this ground –Plaintiff-appellants have failed to prove the re-marriage of Smt. Raji and possesson over the property, therefore, the decree passed by the learned trial court has rightly been set aside and suit has been dismissed in accordance with law.
Result: Appeal dismissed.
JUDGMENT :
1. Heard, Shri Amit Srivastava, learned counsel for the appellants and Shri Shobh Nath Pandey, learned counsel for the respondents.
2. The instant Second Appeal under Section 100 of the Civil Procedure Code is by the appellants/plaintiffs against the judgment and order dated 05.03.2011 passed by the Additional District Judge, Court No.8, Faizabad in Civil Appeal No.87 of 2008; Jata Shankar and another Versus Badri and others, which was preferred by the defendants/respondents for setting aside the judgment and order dated 29.07.2008, passed by the 3rd Civil Judge (JD), Faizabad in Regular Suit No.248 of 1989;Bhagwan Das and others Versus Smt.Raji and another.
3. The brief facts of the case for adjudication of the present Second Appeal are that both the appellants/plaintiffs and the respondents/defendants are the residents of the same village and they were the members of Hindu joint family. Jorai was the owner of the whole property in dispute. After death of Jorai it came in the name of Mahangi, the eldest son of Jorai. After the death of Mahangi it was mutated in the name of Jagesar. Mahangi, Dubar, Lahuri and Rohni took over their possession according to their shares. Lahuri died issueless, therefore, his share was divided among all the brothers. Smt. Raji had equal share in whole property. Jagesar had entrusted his whole property in his life time to Ram Sumer, Chhedo, Bhagwan Dass and Ram Lal, but they had no right to sell the property. It was ordered by Jagesar that they will serve Smt. Raji. She was also issueless. As such they were the heirs of her property, but they had not got their names recorded in the revenue records. Smt.Raji was remarried and after her marriage they had become the owner of her property. Any how she wanted to grab the property of deceased Jagesar and transfer the house and agricultural land to others. After death of Smt.Raji her servant Bhagauti claimed himself to be heir through her Will. While she had never executed any Will and Bhagauti had no possession and right over the land in dispute.
4. The defendants had filed their written statement alleging that Smt. Raji was the owner of the disputed property. She had written Will dated 21/23.01.1980 of her whole property in the name of the defendants. After her death they became owner and bhumidhar of the disputed land. Plaintiffs had never served Smt. Raji while the defendants had served her. There was no relation of wife and husband between the defendants. Plaintiffs are not the heirs of Smt.Raji and the suit had been filed only to grab her property. The suit is not within time and it has been filed only to harass the defendants. Bhgauti had filed additional written statement alleging therein that Smt. Raji was not remarried. Smt. Raji is the nearest relative of the defendants. The defendants are in possession over the land in dispute from the life time of Smt. Raji and they became owner on the basis of Will dated 21/23.01.1980.
5. On the basis of the pleadings of the parties the following issues were framed:-
1. Whether the plaintiff is owner and in possession over the disputed land?
2. Whether the suit is not maintainable in absence of possession?
3. Whether the suit is time barred?
4.Whether the suit is undervalued and the court fee paid is insufficient?
5. Whether the defendants are entitled to get special cost from plaintiffs under section 35 C.P.C.?
6. Whether the plaintiff is entitled to get any relief?
7. Whether Smt. Raji was remarried with Bhagauti?
6. The plaintiff in addition to documentary evidence had examined P.W.1 Bahaoo and P.W.2 Chingo. The defendants had examined D.W.1 Jata Shankar, D.W.2 Ram Lala and D.W. 3 Prabhu Dei and also filed affidavit of Ram Achal.
7. Learned Trial Court had partly allowed the suit of the plaintiffs after considering the arguments of both the parties and the entire evidence on record by means of the judgment and order dated 29.07.2008. Aggrieved with the same the defendants had filed civil appeal no.87 of 200
