Avinash Kumar Ray vs Kumari Chhaya Ray

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(MP) 480

IN THE HIGH COURT OF MADHYA PRADESH
Arun Kumar Sharma, J.
Avinash Kumar Ray v. Dr. Kumari Chhaya Ray and others
First Appeal No. 548 of 2021 (Jabalpur): against the judgment and decree dated 2.8.2021 passed by the 19th District Judge, Jabalpur in Civil Suits No. 40-A/2014 and 39-A/2014; Decided on 22.10.2022.

Advocates:
Sushil Kumar Tiwari for appellant; Manish Tiwari for respondent No. 1; Imtiaz Husain for respondents No. 2 and 3

Headnote:
¼1½ lk{; vfèkfu;e] 1872 & èkkjk 17 rFkk 18 & foj¨èkh i{kdkj }kjk LohÑfr & LohÑfr ,slk loZJs"B lk{; gS ftldk voyac vU; i{kdkj ys ldrk gS & vU;Fkk lkfcr lkfcr djus dh vko';drk ughaA , vkb vkj 2012 ,l lh 3320 vuqlfjrA 2004 ¼1½ ,e ih ,y ts 225 voyafcrA ¼iSjk 20 ,oa 38½
¼2½ flfoy çfØ;k lafgrk] 1908 & èkkjk 6¼2½ & lk{; & vfÒopu¨a ls ijs ugha ns[kk tk ldrkA ¼iSjk 21½
¼3½ lk{; vfèkfu;e] 1872 & èkkjk 101] 102] 60¼[k½ rFkk 114 & lcwr dk Òkj & oknh ij gS & edku d¢ gd d¢ fo"k; esa ÒkÃ v©j cgu }kjk ,d&nwljs d¢ fo#) n¨ okn çLrqr fd, x, & ÒkÃ@vihykFkÊ }kjk çLrqr flfoy okn [kkfjt fd;k x;k & cgu@çR;fFkuÊ Øekad 1 }kjk çLrqr flfoy okn Hkkxr% fMØh fd;k x;k & çR;fFkuÊ Øekad 1@okfnuh d¨ Lo;a }kjk vfÒokd~ fd, x, fookn d¢ fo"k; esa tkudkjh Fkh & og lk{kh dBÄjs esa ugha vkÃ & mld¢ fo#) çfrdwy fu"d"kZ fudkyk tk ldrk gS & çR;FkÊ Øekad 2 ,oa 3 dh v©ipkfjd lk{; fofèk esa fLFkj j[kus ;¨X; ugha & eq[; oknh@çR;fFkuÊ Øekad 1 dh lk{; d¢ vÒko esa mldk flfoy okn [kkfjt fd;k tkuk pkfg, & og [kkfjt fd;k x;k & vihykFkÊ }kjk çLrqr flfoy okn eatwj fd;k x;kA 1970 ts ,y ts 207] , vkb vkj 1931 cacbZ 97 rFkk 2006 ¼2½ ,e ih ,y ts 600 voyafcrA 2012 jk fu 1] 2020 ¼2½ jk fu 306] , vkb vkj 1967 ,l lh 1386] ¼2015½ 3 ,l lh lh 624] 2015 ,l lh lh vkWuykbu d¢jy 37113] 2007 ¼4½ ,e ih ,y ts 102] 2013 ¼2½ ,e ih ,y ts 371] 2000 ¼2½ ,e ih ,y ts 170] 2020 ¼1½ ,e ih ,y ts 217] 2010 ¼3½ ,e ih ,y ts 477] ¼2014½ 11 ,l lh lh 664] , vkb vkj 1960 eækl 57] , vkb vkj 1990 x©gkVh 32] , vkb vkj 2001 dukZVd 205 rFkk 2004 ¼3½ ,e ih ,y ts 571 fufnZ"VA ¼iSjk 23 ls 27] 30] 31 ,oa 38½
¼4½ laifRr varj.k vfèkfu;e] 1882 & èkkjk 52 & okn d¢ yacu d¢ nkSjku çR;fFkuÊ Øekad 1 }kjk çR;FkÊ Øekad 2 ,oa 3 d¨ laifRr foØ; dh xÃ & og vihykFkÊ d¢ fgr d¢ fo#) 'kwU; gSA ¼iSjk 37½
¼5½ lk{; vfèkfu;e] 1872 & èkkjk 60¼[k½ rFkk 114 & i{kdkj lk{kh dBÄjs esa ugha vk;k & ,sls i{kdkj d¢ fo#) çfrdwy fu"d"kZ fudkyk tk ldrk gS & foj¨èkh i{kdkj dh LohÑfr loZJs"B lk{; g¨xk & vU;Fkk lkfcr djus dh vko';drk ughaA ¼iSjk 23] 24 rFkk 38½
(1) Evidence Act, 1872 -- Ss. 17 and 18 -- admission by opposite party -- admission is best evidence which other party can rely on -- no need to prove otherwise. AIR 2012 SC 3320 followed. 2004 (1) MPLJ 225 relied on. [Paras 20 & 38]
(2) Civil P.C. 1908 -- S. 6 (2) -- evidence -- cannot be looked into beyond pleadings. [Para 21]
(3) Evidence Act, 1872 -- Ss. 101, 102, 60 (b) and 114 -- burden of proof -- is upon plaintiff -- two suits about title of house filed by brother and sister against each other -- civil suit filed by brother/appellant dismissed -- civil suit filed by sister/respondent No. 1 partly decreed -- respondent No. 1/plaintiff had knowledge about dispute as pleaded by her -- she did not enter witness box -- adverse inference can be drawn against her -- formal evidence of respondents No. 2 and 3 not sustainable in law -- in absence of evidence of principal plaintiff/respondent No. 1, her civil suit should be dismissed -- same dismissed -- civil suit filed by appellant allowed. 1970 JLJ 207, AIR 1931 Bom. 97 and 2006 (2) MPLJ 600 relied on. 2012 RN 1, (2020) 2 RN 306, AIR 1967 SC 1386, (2015) 3 SCC 624, 2015 SCC Online Ker. 37113, 2007 (4) MPLJ 102, 2013 (2) MPLJ 371, 2000 (2) MPLJ 170, 2020 (1) MPLJ 217, 2010 (3) MPLJ 477, (2014) 11 SCC 664, AIR 1960 Mad. 57, AIR 1990 Gau. 32, AIR 2001 Kar. 205 and 2004 (3) MPLJ 571 referred to. [Paras 23 to 27, 30, 31 & 38]
(4) Transfer of Property Act, 1882 -- S. 52 -- during pending of suit, property sold by respondent No. 1 to respondents No. 2 and 3 -- same is void against interest of appellant. [Para 37]
(5) Evidence Act, 1872 -- Ss. 60 (b) and 114 -- party did not enter witness box -- adverse inference can be drawn against such party -- admission of opposite party would be best evidence -- no need to prove otherwise. [Paras 23, 24 & 38]

ORDER

1. With the consent of the parties, this appeal is finally heard.

This first appeal under section 96 of the Code of Civil Procedure has been filed by the appellant / plaintiff against the common judgment and decree dated 2.8.2021 passed by learned 19th District Judge, Jabalpur, in Regular Civil Suit No. 40-A/14 parties being Avinash Kumar Rai v. Dr. Kumari Chhaya Rai and two others and also in regular Civil Suit No. 39-A/14 parties being Dr. Kumari Chhaya Rai and two others v. Avinash Kumar Rai, whereby the civil suit No.40A/14 filed by the appellant / plaintiff has been dismissed whereas the civil suit No.39A/14 filed by the respondents herein (Dr. Kumari Chhaya Rai and two others) has been allowed in part and the decreed the suit according to para 63 of its impugned judgment.

2. The factual assertions as would unveil, are that the parties had filed two different suits against each other with regard to the same property. Since the property in dispute and subject matter of the case were common, therefore, learned trial court tried aforesaid two suits together. However, the civil suit No. 40-A/14 filed by the appellant herein was dismissed and the civil suit No.39A/14 filed by the respondents herein was allowed in part and passed the decree according to para 63 of its judgment. Dr. Ku. Chhaya Rai and two others were defendants in the civil suit No. 40A/14 instituted on 1.6.2009 by the plaintiff Avinash Kumar Rai / appellant herein and Avinash Kumar Rai was defendant in the civil suit No.39A/14 filed on 25.6.2009 by the plaintiffs Dr. Ku. Chhaya Rai and two others / respondents herein. Avinash Kumar Rai and Dr. Kumari Chhaya Rai are real brother and sister. Both the suits were ordered to be consolidated for analogous hearing by the trial Court by order dated 6.7.2011.

3. It is pertinent to mention here that the question of maintainability of this present appeal arising out of the common judgment and decree has already been dealt with earlier vide order dated 24.11.2021 on the preliminary objection of respondents No. 2 & 3 vide I.A. No. 7253/2021.

4. The facts of the case succinctly stated are that the appellant / plaintiff Avinash filed a civil suit No.40A/14 for declaration to the effect that the appellant is in continuous possession over the disputed portion of the disputed house since 1966 and the portion in which he made a pakka construction for his family, the respondents are not entitled to dispossess the appellant, and also for permanent injunction that the respondents be restrained from transferring and alienating and selling the disputed property to anyone else and also from damaging the disputed portion of the house. Further declaration was sought that sale deed dated 30.9.2010 registered on 4.10.2010 executed by respondent no.1 Dr. Ku. Chhaya Rai in favour of the respondents No. 2 and 3 namely Pradeep Chouksey and Smt. Pushpa Devi Chouksey being illegal be declared null and void and the same is not binding upon the appellant Avinash Kumar Rai.

5. The defendants / respondents herein Dr. Kumari Chhaya Rai and two others also filed a civil suit No.39A/14 for mandatory injunction seeking eviction of Avinash Rai from the suit premises and also for recovery of mesne profits and further Avinash be restrained from interfering in the peaceful possession of the respondents and also for issuing permanent injunction against Avinash to the effect that he be restrained from dispossessing Dr. Kumar Chhaya Rai.

6. Appellant Avinash averred in the plaint instituted on 1.6.2009 that House No. 1411 (old No. 796) situated at Dr. Barad Road, Napier Town, Jabalpur and marked as ka, kha, ga, gha, da, cha in red color in the map which hereinafter shall be referred as â€œdisputed houseâ€, that he is the brother of the respondent No. 1 Dr. Kumari Chhaya Rai and was residing peacefully along with his family on a part of the disputed property since 1966 and made a pakka house (permanent construction) with the consent and due permission as a li