Chokhelal vs Ashwani Kumar - 2022 Supreme(MP) 190

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(MP) 190

IN THE HIGH COURT OF MADHYA PRADESH
Dwarkadhish Bansal, J.
Chokhelal & other v. Ashwani Kumar & others
Second Appeal No. 153 of 1995 (Jabalpur); against the judgment and decree dated 24.10.1994 passed by V Additional District Judge, Jabalpur in Civil Appeal No. 1-A/94 and 2-A/94; Decided on 23.6.2022

Advocates:
Ravish Agarwal with Devdatt Bhave for appellants; Ravi Ranjan and Sushant Ranjan for respondent No. 1

Headnote:
¼1½ fganw mRrjkfèkdkj vfèkfu;e] 1956 & èkkjk 4 & iqjkru fganw fofèk & ykxw g¨uk & oknh dk tUe 1956 d¢ vfèkfu;e d¢ ço`Ùk g¨us d¢ iwoZ] o"kZ 1954 esa gqvk & iqjkru fganw fofèk d¢ micaèk ykxw g¨axs & oknh d¢ vfèkdkj iqjkru fganw fofèk ls fofu;fer g¨axs] fganw mÙkjkfèkdkj vfèkfu;e] 1956 ls ughaA ¼iSjk 20½
¼2½ flfoy çfØ;k lafgrk] 1908 & èkkjk 100 & f}rh; vihy & okn pykus ;¨X; g¨us d¢ fo"k; esa u;k vfÒopu rF;¨a ij vkèkkfjr & fupys U;k;ky;¨a d¢ le{k ugha mBk;k x;k & f}rh; vihy ds çØe ij mBkus ugha fn;k tk ldrkA ¼iSjk 21½
¼3½ fganw mRrjkfèkdkj vfèkfu;e] 1956 & èkkjk 4 rFkk 6 & ferk{kj fofèk & foÒktu rFkk dCts d¢ fy, okn & lgnkf;d dk vfèkdkj & oknh dk tUe fganw mÙkjkfèkdkj vfèkfu;e] 1956 d¢ ço`Ùk g¨us d¢ iwoZ gqvk & vius firkeg dh laifRr esa vfèkdkj dk nkok & lgnkf;d g¨us d¢ dkj.k mls tUefl) vfèkdkj ds lkFk mÙkj&thfork d¢ vfèkdkj ls laifRr mÙkjkfèkdkj esa çkIr gksxh & mldk vfèkdkj fganw mÙkjkfèkdkj vfèkfu;e] 1956 ls çÒkfor ugha g¨xkA ¼2020½ 14 ,l lh lh 436] vkb ,y vkj 2014 ,e ih 1593] ¼2016½ 4 ,l lh lh 68] ¼2006½ 8 ,l lh lh 581] ¼2013½ 3 ,l lh lh 63 rFkk , vkb vkj 1987 ,l lh 558 fufnZ"VA ¼iSjk 22 ls 25½
¼4½ flfoy çfØ;k lafgrk] 1908 & èkkjk 100 ¼5½ & fofèk dk lkjoku ç'u & fofèk dk vfrfjDr lkjoku ç'u fojfpr fd, tkus d¢ fy, vkosnu & çLrkfor lkjoku ç'u fo'kq) rF;¨a d¢ ç'u ij vkèkkfjr & ,slk ç'u orZeku vihy esa mn~Hkwr ugha g¨rk & vkosnu [kkfjtA ¼iSjk 27½
(1) Hindu Succession Act, 1956 -- S. 4 -- old Hindu Law -- applicability -- plaintiff born in the year 1954 prior to commencement of Act of 1956 -- provisions of old Hindu Law will apply -- rights of plaintiff shall be governed by old Hindu Law and not by Hindu Succession Act, 1956. [Para 20]
(2) Civil P.C. 1908 -- S. 100 -- second appeal -- new plea about maintainability of suit based on facts -- not raised before Courts below -- cannot be permitted to be raised at second appellate stage. [Para 21]
(3) Hindu Succession Act, 1956 -- Ss. 4 and 6 -- Mitakshara Law -- suit for partition and possession -- right of coparcener -- plaintiff born prior to commencement of Hindu Succession Act, 1956 -- claiming right in property belonging to his great grandfather -- being coparcener, he would succeed to property having right by birth with right of survivorship -- his right will not be affected by Hindu Succession Act, 1956. (2020) 14 SCC 436, ILR 2014 MP 1593, (2016) 4 SCC 68, (2006) 8 SCC 581, (2013) 3 SCC 63 and AIR 1987 SC 558 referred to. [Paras 22 to 25]
(4) Civil P.C. 1908 -- S.100 (5) -- substantial question of law -- application for framing additional substantial question of law -- proposed substantial question based on pure question of facts -- such question not arising in present appeal -- application rejected. [Para 27]

JUDGMENT

Bansal, J :- This second appeal has been filed by appellants/defendants 7-13 challenging the judgment and decree dated 24.10.1994 passed by learned 5th Additional Judge to the District Judge, Jabalpur in Civil Appeal No.1-A/94 & 2-A/94 whereby reversing the judgment and decree dated 10.4.1992 passed by Civil Judge Class-II, Jabalpur in Civil Suit No.77-A/89 whereby learned trial Court dismissed the suit of the respondent No.1/plaintiff as well as the counter claim filed by the present appellants/defendants 7, 8 & 11.

2. By the impugned judgment and decree, learned lower appellate Court has by allowing the Civil Appeal No. 1-A/94 decreed the suit of the respondent No. 1/plaintiff but dismissing the appeal No.2-A/94 affirmed the judgment and decree of trial Court with regard to dismissal of counter claim of the appellants/defendants 7, 8 & 11.

3. In short, the facts of the case are that the plaintiff/respondent No. 1 had instituted a suit for declaration of his 1/12 share, partition and also for separate possession of the house No.310 (changed No.280) in question situate at Bhantalaiya Ward, Jabalpur alleging it to be his ancestral property belonging to common ancestor of the parties and great-grandfather of the plaintiff.

4. Undisputed genealogical tree is as under:-

Jagannath (Dead)

Jhunnilal

(dead)

Ramchandra

(dead) (Pre-deceased)

(Jhunnilal and Moolchandra)

Moolchandra

(died on 9-4-1957)

Mukut Bihari

(dead)

Brij Bihari

(dead)

Vishnu Kumar

(D1)

(died on 25-3-86)

= Shailbala

Bantu

Ku. Divya

Vishnuswaroop (D2)

= Shantibai (D3)

Ashwani Kumar

(Plaintiff)

Hariom

(D4)

Omprakash

(D5)

Mamta

(D6)

5. The plaintiff alleged that after death of great-grandfather Jagannath, his son Jhunnilal became karta and after death of Jhunnilal his brother Moolchandra became karta of the family and thereafter Vishnu Kumar-defendant No.1 became karta and his name was recorded over the suit property. He alleged that the suit property being joint family property and he being coparcener is having right by birth and is entitled to 1/12 share, partition and separate possession.

6. Defendant No.1 Vishnu Kumar appeared and filed written statement denying the plaint allegations and contended that there is no joint Hindu family and plaintiff or the defendants 2-6 are not coparceners. Neither Jagannath nor Jhunnilal was owner of the suit property. The house was constructed by his father Moolchandra in the year 1938-39 after obtaining permission from the Municipal Committee. After death of Moolchandra in the year 1957, his name was continued till 1961-62 and the application filed by defendant No.2 Vishnuswaroop was rejected on 20.9.1962, which was upheld vide order dated 10.3.1967. The plaintiff or defendant No.2 has no share in the suit house. The defendant No.1 contended that Moolchandra and he, allowed the defendant No.2 Vishnuswaroop alongwith his family to live in the suit property, as licensee. As the property was inherited by defendant No.1 from Moolchandra in the year 1957, hence the suit is barred by time. With these allegations, the suit was prayed to be dismissed.

7. After death of defendant No.1, his LRs by filing separate written statement reiterated the same contentions as were made by defendant No.1 in his written statement.

8. In the two sets of written statements filed by the defendants 7-13, they adopted most of the pleas taken by defendant No.1 in his written statement. The defendants 7, 8 & 11 also filed counter claim with the contentions that they are bonafide purchasers and they are entitled for possession over the house of the possession of plaintiff by way of decree of mandatory injunction.

9. The plaintiff filed written statement to the counter claim filed by defendants 7, 8 & 11 denying the allegations made therein and contended that the plaintiff was neve