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IN THE HIGH COURT OF ALLAHABAD
JASPREET SINGH, J.
Smt. Dropadi Devi and Others – Appellants
Versus
Shiv Chandra Dixit – Respondent
Second Appeal No. 83 of 2014
Decided On : 23-01-2020
Criminal Law – Code of Criminal Procedure, 1973 – Section 145, 146 – Plaintiffs-appellants instituted suit for cancellation of will deed as well as sale deed in Court of Munsif, which was registered – Pleadings were that house is Joint Hindu Family Property of ancestors which was not partitioned as yet –Judgment and decree passed by two courts whereby Additional Civil Judge, by means of its judgment and decree dismissed suit of plaintiffs-appellants and allowed counter claim of defendant-respondent – Judgment and decree has been affirmed by First Appellate Court in Regular Civil Appeal by means of its judgment and decree, while dismissing appeal –Held, Court does not find any error in concurrent findings returned by two courts as far as possession is concerned – Court upon perusal of evidence finds that defendants has claimed damages however, he failed to lead any evidence and failed to establish quantum regarding damages – In absence of any evidence, Court finds that two courts ought not to have granted decree for damages for wrongful possession as defendant had failed to establish his own case – Court is of considered view that as far as finding regarding dismissal of suit as well as decree of counter claim to extent grant of decree of possession is concerned, there is no error and said findings culminating in decree of possession is affirmed – Since defendant could not establish quantum of damages by leading evidence accordingly grant of decree of damages while decreeing counter claim cannot be sustained and is accordingly set aside – Judgment and decree passed by two courts are confirmed except that defendant shall not be entitled to decree of damages in his counter claim, accordingly, judgment and decree of Trial Court passed by Additional Civil Judge (Senior Divisionshall stand modified – Appeal Partly Allowed. (Paras 74 to 77)
Facts of Case:
Plaintiffs-appellants instituted suit for cancellation of will deed as well as sale deed in Court of Munsif, which was registered – Pleadings were that house is Joint Hindu Family Property of ancestors which was not partitioned as yet –Judgment and decree passed by two courts whereby Additional Civil Judge, by means of its judgment and decree dismissed suit of plaintiffs-appellants and allowed counter claim of defendant-respondent –Judgment and decree has been affirmed by First Appellate Court in Regular Civil Appeal by means of its judgment and decree, while dismissing appeal.
Findings of Court:
Court does not find any error in concurrent findings returned by two courts as far as possession is concerned –Court upon perusal of evidence finds that defendants has claimed damages however, he failed to lead any evidence and failed to establish quantum regarding damages – In absence of any evidence, Court finds that two courts ought not to have granted decree for damages for wrongful possession as defendant had failed to establish his own case – Court is of considered view that as far as finding regarding dismissal of suit as well as decree of counter claim to extent grant of decree of possession is concerned, there is no error and said findings culminating in decree of possession is affirmed – Since defendant could not establish quantum of damages by leading evidence accordingly grant of decree of damages while decreeing counter claim cannot be sustained and is accordingly set aside – Judgment and decree passed by two courts are confirmed except that defendant shall not be entitled to decree of damages in his counter claim, accordingly, judgment and decree of Trial Court passed by Additional Civil Judge (Senior Divisionshall stand modified.
Result: Appeal Partly Allowed
JUDGMENT :
JASPREET SINGH, J.
1. Heard Sri Mohd. Arif Khan, learned Senior Advocate along with Sri Deepankar Kumar and Mohd. Aslam Khan for the appellants and Sri B.K. Saxena, learned Counsel along with Sri Amit Jaiswal, Ms. Shreya Saxena and Sri Utkarsh Srivastava, for the respondents.
2. The instant second appeal has been preferred against the concurrent judgment and decree passed by the two courts below whereby the Additional Civil Judge, Senior Division, Court No. 24, Lucknow by means of its judgment and decree dated 08.10.2010 dismissed the suit of the plaintiffs-appellants and allowed the counter claim of the defendant-respondent. The aforesaid judgment and decree has been affirmed by the First Appellate Court in Regular Civil Appeal No. 155 of 2010 by A.D.J. Court No. 2, Lucknow by means of its judgment and decree dated 05.02.2014, while dismissing the appeal.
3. The aforesaid second appeal was admitted by means of the order dated 01.04.2014 on three substantial questions of law which shall be discussed later, while dealing with them. However, in order to appreciate the controversy involved in the above second appeal, certain brief facts giving rise to the instant appeal are being noticed hereinafter.
4. The plaintiffs-appellants instituted a suit for cancellation of a will deed as well as a sale deed in the Court of Munsif, South, Lucknow which was registered as R.S. No. 615 of 1992. Primarily, the pleadings were that the house bearing No. 57/1984 Mohalla Tilpurwa, Ward-Hussainganj, District Lucknow is a Joint Hindu Family Property of the ancestors namely Balbhadra Dubey which was not partitioned as yet.
5. It was also pleaded that the plaintiffs are in possession of the entire property in question and they had executed a registered power of attorney in favour of one Sri Harish Kumar Trivedi to look after the property as well as for the purpose of instituting and conducting the litigation. It was specifically stated that on 30.08.1992, the defendant namely Sri Shiv Chandra Dixit had attempted to forcibly occupy the property in question which was resisted by the plaintiff. It is then that the defendant while claiming title to the property indicated that he had purchased the property by means of a registered sale deed dated 17.07.1971 from Smt. Gaga Dei who was the daughter of Late Sri Shiv Shanker Dubey.
6. It was also pleaded that as the property in question was a Joint Hindu Family Property and as such Sri Shiv Shanker Dubey, the father of Smt. Gangadei, did not have a right to execute any will allegedly dated 12.12.1947 and consequently Smt. Gangadei did not have any right to execute sale deed dated 17.07.1971, hence the defendant did not get any right.
7. The plaint was later on amended and by amendment it was specifically incorporated that Sri Shiv Shanker had instituted a Suit bearing No. 718 of 1950 before the Munsif City, Banaras seeking partition of the Joint Hindu Family Property. In the aforesaid suit of 1950 a defence was raised by the plaintiffs herein, that the suit instituted at Banaras was bad for partial partition, inasmuch as, the property bearing No. 57 of 1984, Mohalla Tilpurwa, Hussainganj, Lucknow was also a part of the Joint Hindu Family Property which ought to have been included in the Schedule of property for which the partition was sought by Sri Shiv Shanker Dubey.
8. The Court at Banaras by means of its judgment and decree dated 07.10.1955 specifically provided that the property situate at Lucknow should be included in the Schedule of properties at the time of preparation of final decree and in case if Sri Shiv Shanker Dubey does not include the said property then his suit shall stand dismissed. It was also pleaded that despite the aforesaid direction the plaintiff of the partition suit filed at Banaras, Sri Shiv Shanker Dubey did not include the aforesaid property nor challenged the aforesaid order before any superior court, accordingly, his suit was dismissed by means of the order dated 15.12.1962.
9.
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