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2022 Supreme(MP) 403
IN THE HIGH COURT OF MADHYA PRADESH
Dwarkadhish Bansal, J.
Hazara Bi Smt. (Dead) & others v. Abdul Karim
Second Appeal No. 127 of 2001 (J); against the judgment and decree dated 2.11.2000 passed by the Additional District Judge, Sohagpur to the Court of District Judge, Hoshangabad in Civil Appeal No. 3A/1999; Decided on 28.11.2022
R.S. Tiwari with Abhijit Bhoomika for appellnts;
Ashish Shroti for respondent.
Headnote:
(1) Accommodation Control Act, 1961 (M.P.) -- S. 12 (i) (a) -- Transfer of property Act, 1882 -- S. 122 -- previous suit filed by plaintiff based on oral gift -- present suit filed on basis of registered gift deed -- validity of registered gift deed, although acts nowbdging previous oral figt, was required to be decided. Mulla’s Principles of Mohammedan Law, Para 149 relied on. [Paras 11
(2) Appeal -- maintainability -- first appeal or second appeal lies only against decree -- not maintainable merely against finding. (2003) 9 SCC 606 followed. 1981 MPLJ-SN S2 distinguished. [Paras 14 & 15
(3) Civil P.C., 1908 -- S. 100 -- second appeal -- maintainability -- two first appeals filed by two parties in litigation arising from one suit -- one second appeal alone need be filed against both decisions. AIR 1968 Ker. 154 relied on. AIR 1966 SC 1332 referred to. [Para 16
(4) Appeal -- Whenever two or more appeals against judgment and decree passed in one single suit are filed, appellate Court is bound to decide both/all appeals togather by common judgment nd decee. [Para 18
(5) Appeal -- Civil appeal filed by defendant being merely against findings, was not maintainable -- impugned judgment and decree passed in such appeal, which decide issue of res judicata without considering s. 122 & transfer of Property Act and Mohammedan Law regarding gift not sustainable -- no independent finding in judgmenet deciding other appeal filed by plaintiff -- no challenge in second appeal to that judgment and decree -- matter remanded to first appellate Court to re-decide both appeals in accordance with low. [Para 19
¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && èkkjk 12 ¼i½ ¼d½ && laifÙk varj.k vf/kfu;e 1882 && /kkjk 122 && oknh }kjk izLrqr iwoZrj okn ekSf[kd fgck ds vk/kkj ij izLrqr && orZeku okn jftLVªhÑr fgck foys[k ds vkèkkj ij izLrqr && jftLVªhÑr fgck foys[k dh] Hkys gh mlesa iwoZrj ekSf[kd fgck dh vfHkLohÑfr gS] fof/kekU;rk fofuf'pr dh tkuk visf{kr FkkA eqYyk Ñr fizfUliYl vkWQ eksgEeMu ykW] iSjk 149 voyafcrA ¼iSjk 11
¼2½ vihy && pyus ;ksX; gksuk && izFke vihy vFkok f}rh; vihy fMØh ds fo#) gh dh tk ldrh gS && ek= fu"d"kZ ds fo#) pyus ;ksX; ughaA ¼2003½9 ,l lh lh 606 vuqlfjrA 1981 ,e ih ,y ts&,l ,u 52 izHksfnrA ¼iSjk 14 ,oa 15
¼3½ flfoy izfØ;k lafgrk] 1908 ¼e-iz-½ && èkkjk 100 && f}rh; vihy && pyus ;ksX; gksuk && ,d okn ls mn~Hkwr eqdnesckth esa nks i{kksa }kjk nks izFke vihysa izLrqr && nksuksa ds fofu'p;ksa ds fo#) dsoy ,d f}rh; vihy izLrqr fd, tkus dh vko';drk gSA , vkb vkj 1968 dsjy 154 voyafcrA , vkb vkj 1966 ,l lh 1332 fufnZ"VA ¼iSjk 16
¼4½ vihy && tc Hkh ,d gh okn esa ikfjr fu.kZ; rFkk fMØh ds fo#) nks ;k vf/kd vihysa izLrqr gksa] rc vihy U;k;ky; mHk;fu"B fu.kZ; rFkk fMØh }kjk nksuksa@lHkh vihyksa dk ,d&lkFk fofu'p; djus ds fy, vkc) gSA ¼iSjk 18
¼5½ vihy && izfroknh }kjk izLrqr flfoy vihy dsoy fu"d"kks± ds fo#) gksus ds dkj.k pyus ;ksX; ugha Fkh && ,slh vihy esa ikfjr vkf{kIr fu.kZ; rFkk fMØh ftlesa laifÙk varj.k vf/kfu;e dh /kkjk 122 rFkk fgck ds laca/k esa eqfLye fof/k ij fopkj fd, fcuk iwoZ U;k; dk fook|d fofuf'p; fd;k x;k] fLFkj j[ks tkus ;ksX; ugha && oknh }kjk izLrqr vU; vihy fofuf'pr djus okys fu.kZ; esa dksbZ Lora= fu"d"kZ ugha && f}rh; vihy esa ml fu.kZ; rFkk vihy ij vk{ksi ugha && nksuksa vihysa fof/k ds vuqlkj iqu% fofuf'pr djus ds fy, ekeyk izFke vihy U;k;ky; dks izfriszf"krA ¼iSjk 19
JUDGMENT
1. This second appeal has been preferred by the appellants/plaintiffs challenging the judgment and decree dated 02.11.2000 passed by Additional District Judge, Sohagpur to the Court of District Judge, Hoshangabad in Civil Appeal No.3-A/1999 whereby reversing the findings on issue No.1,2,4&6 recorded in judgment and decree dated 23.12.1998 passed by Civil Judge ClassI, Pipariya, Camp Pachmadhi in Civil Suit No.3-A/97.
2. In short the facts are that the original plaintiff-Noor Mohd. (whose descendants are the appellants) instituted a suit for eviction and recovery of arrears of rent on the grounds available under section 12(1)(a)(e)&(g) of the M.P. Accommodation Control Act, 1961 (in short ‘the Act’) on the allegations that the original owner of the suit property was Abdul Aziz who in the year 1947 gifted the suit property orally to the plaintiff-Noor Mohammad. On the basis of oral gift, the plaintiff instituted Civil Suit which vide judgment and decree dated 25.9.1982 (Ex.D/2) was dismissed holding the gift to be not proved, which attained finality due to dismissal of plaintiff’s appeal vide judgment and decree dated 21.2.1984 (Ex.D/3). It is alleged that thereafter Abdul Aziz executed registered Gift deed in favour of the plaintiff Noor Mohd. on 22.2.1986 (Ex.P/2). Hence on the basis of regd. gift deed second suit for eviction on same set of facts, was filed.
3. The defendant/respondent appeared and filed written statement denying the plaint allegations as well as title of the plaintiff over the suit house, however, the defendant had admitted to have taken the house on rent from Abdul Aziz. Denying the oral gift made in the year 1947, so also the subsequent registered gift deed dtd. 22.2.1986, it is contended that Abdul Aziz had no right to execute the regd. gift deed, which is illegal and does not confer any right to the plaintiff(s). Denying the availability of grounds of eviction taken by the plaintiffs, the suit was prayed to be dismissed with exemplary cost.
4. On the basis of pleadings of the parties, learned trial Court framed as many as 12 issues and recorded evidence of the parties and vide its judgment and decree dated 23.12.1998 held that the suit is not barred by res-judicata and holding the regd. gift deed (Ex.P/2) to be a valid document, held that the plaintiffs/appellants are owner of the house, but dismissed the suit for eviction in its entirety.
5. The judgment and decree of the trial Court was challenged by plaintiffs/appellants and defendant/respondent both by filing separate two appeals. Civil Appeal No.3-A/1999 was filed by defendant-Abdul Karim challenging the findings recorded by learned trial Court on issue No.1,2,4,6 & 11. Civil Appeal No.2-A/1999 was filed by plaintiffs challenging refusal of decree of eviction by learned trial Court. Both the Civil Appeals were decided by the same presiding officer but by writing separate two judgements. Learned first appellate Court dismissed the Civil Appeal no.2-A/1999 filed by the plaintiffs but allowed the Civil Appeal No.3-A/1999 filed by the defendant and reversed the findings on issue No.1,2,4 and 6 recorded by learned trial Court. The present second appeal has been filed by plaintiffs/appellants challenging the judgment and decree passed by first appellate Court in Civil Appeal No.3-A/99. Although, just after cause title of the memo of appeal, the challenge appears to have been made only about the judgment passed in Civil Appeal No.3-A/99, but in the memo of appeal the plaintiffs/appellants have taken all the relevant grounds seeking decree of eviction.
6. Resultantly, upon coming of second appeal in hearing on 8.11.2001, it was admitted by this Court on the following substantial questions of law :--
“1. Is the gift deed dated 22.2.1986 by Abdul Aziz Khan in favour of Late Noor Mohd as it was executed to confirm the oral gift in 1947 which was not relied upon in the previous litigation between late Noor Mohd. and Abdul Kalim (respondent) or because
