Rakesh Dubey vs Deepak Dubey And Another
2022 Latest Caselaw 2003 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 08.04.2022
 
Delivered on 05.05.2022
 
Court No. - 10
 

 
Case :- SECOND APPEAL No. - 200 of 2022
 
Appellant :- Rakesh Dubey
 
Respondent :- Deepak Dubey And Another
 
Counsel for Appellant :- Bijendra Kumar Mishra
 
Counsel for Respondent :- Rahul Sahai
 
Along with
 
Case :- SECOND APPEAL No. - 203 of 2022
 
Appellant :- Rakesh Dubey
 
Respondent :- Deepak Dubey And Another
 
Counsel for Appellant :- Bijendra Kumar Mishra
 
Counsel for Respondent :- Rahul Sahai
 

 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Brijendra Kumar Mishra, learned counsel for the appellant and Sri Rahul Sahai, learned counsel for the respondents.

2. These two defendant's appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as "CPC") were connected vide order dated 09.03.2022. Second Appeal No.200 of 2022 has been filed against the judgment and decree dated 26.11.2021 passed by Additional District & Sessions Judge, Court No.8, Mathura in Appeal No.115 of 2018 arising out of judgment and decree dated 16.07.2018 passed by Additional Civil Judge (Senior Division), Court No.3, Mathura in Original Suit No.167 of 2001. While Second Appeal No.203 of 2022 has been filed against the judgment and decree dated 26.11.2021 passed by Additional District & Sessions Judge, Court No.8, Mathura in Appeal No.131 of 2018 arising out of judgment and decree dated 16.07.2018 passed by Additional Civil Judge, Court No.3, Mathura in Original Suit No.167 of 2001.

3. As the issue in both the appeals is one and the same, thus, both the appeals are being heard and decided together with the consent of counsel for the parties.

4. Facts, in brief, are that one Original Suit No.13 of 1985 was filed by the plaintiff-respondent no.1 against one Damodar Das (deceased) grandfather of the plaintiff and defendant-appellant Rakesh Dubey (uncle) of the plaintiff-respondent claiming 1/3rd ancestral property, as father of the plaintiff (Deepak Dubey), late Brijesh Dubey had died, thus, a decree of partition was claimed for 1/3rd share by the plaintiff.

5. A preliminary decree was drawn in the said suit on 21.09.1985, thereafter the process for final decree was initiated and on 10.04.1986, order was passed for preparation of final decree. On 08.03.1988, the Amin put the plaintiff in his share after the final share was determined. The defendant-appellant, after death of Damodar Das, wherein the plaintiff had half of the share, refused to give it to the plaintiff and threatened him to evict from his possession, thus, Suit No.167 of 2001 was filed claiming relief for permanent injunction by the plaintiff against the defendant and further relief was sought that the defendant should not interfere in his peaceful possession.

6. During pendency of the suit, the defendant constructed a wall over the southern portion of the property and forcibly took possession over the share of the plaintiff, thus an amendment application was moved by the plaintiff claiming relief of mandatory injunction along with restoration of possession. The trial Court vide order dated 14.12.2015 allowed the application for amendment.

7. The said suit was contested by the defendant-appellant who filed his written statement. In the written statement, it was stated that plaintiff-respond Deepak Dubey was not the son of Brijesh Dubey and plaintiff no.2, Rama Devi was not the widow of late Brijesh Dubey. Further, the partition decree was also denied.

8. On the pleading of the parties, following issues were framed:-

"1. क्या वादी विवादित सम्पत्ति का मालिक एवं काबिज है ?

2. क्या प्रतिवादी द्वारा दौरान वाद वादी की सम्पत्ति के मुख्यद्वार व जानिव दक्षिण के सामने दीवाल खड़ी कर लिया है जिसे वादी हटवा पाने का अधिकारी है ?

3. क्या दौरान वाद प्रतिवादी ने अपनी दीवाल में उत्तर वादी की संपत्ति की तरफ दरवाजा कायम कर लिया है जिसे वादी हटवा पाने का अधिकारी है ?

4. क्या वादी संख्या 1 स्व ० बृजेश दुवे के पुत्र है ?

5. क्या वादी को वादकारण प्राप्त है ?

6. क्या वाद धारा 34 विशिष्ट अनुतोष अधिनियम से बाधित है ?

7. क्या वाद धारा 38 विशिष्ट अनुतोष अधिनियम से बाधित है ?

8. क्या वाद का मूल्यांकन कम किया गया है ?

9. क्या प्रदत्त न्याय शुल्क अपर्याप्त है ?

10. क्या वाद में उपमति एवं विवंधन के सिद्धांत का दोष है ?

11. क्या वाद कालबाधित है ?

12. क्या वाद पोषणीय है ?

13. क्या वादी किसी अनुतोष पाने का अधिकारी है ?

14. क्या दौरान वाद प्रतिवादी द्वारा वादीगण को वादग्रस्त संपत्ति से बेदखल किया गया है ? यदि हां तो प्रभाव ?

15. क्या संशोधन के उपरांत वादीगण द्वारा वाद का मूल्यांकन कम अदा किया गया है तथा प्रदत्त न्याय शुल्क अपर्याप्त है ?

16.क्या वादिनी सं ० 2 बृजेश दुबे की पत्नी है ? यदि हां तो प्रभाव ?"

9. Issues No.4 and 16 were in regard to the fact that whether Deepak Dubey, plaintiff no.1 was the son of late Brijesh Dubey and plaintiff no.2, Rama Devi was the wife of late Brijesh Dubey or not. The trial Court found that plaintiff no.1 being the son of late Brijesh Dubey and Rama Devi to be the wife of late Brijesh Dubey.

10. While deciding issues no.1, 2, 3, 5 and 14, which was in regard to the fact that whether the plaintiff was the owner in possession over the property in dispute, and whether defendant had, during pendency of the case, constructed a wall over the southern portion where existed door, and whether the plaintiff was evicted from the property in dispute during pendency of the case. The trial Court after considering the oral testimony of the plaintiff and defendant witnesses, the Amin commission report and the decree passed in Suit No.13 of 1985, found Deepak Dubey, the plaintiff no.1 to be the owner in possession over the property, while the trial Court found that no wall was constructed during pendency of the suit by the defendant and the plaintiff failed to prove his case to that extent. Further, it was found that the plaintiff was dispossessed from the property in dispute during pendency of the suit. The suit was partly decreed by the trial Court vide judgment dated 16.07.2018.

11. Against the said judgment, two civil appeals, one being Civil Appeal No.131 of 2018 was filed by the plaintiff-respondents, while another being Civil Appeal No.115 of 2018 was preferred by the defendant-appellant. In the appeal filed by the plaintiff-respondents, the lower appellate Court framed following points of determination:-

"i. क्या वाद दायर किये जाने के पश्चात अमीन के निरीक्षण के समय दक्षिणी गैलरी में बना हुआ दरवाजा, दरवाजे के रूप में कायम था ?

ii. क्या दौरान वाद उक्त दरवाजे को दीवार बनाकर बंद किया गया है

?"

12. The lower appellate Court held that the Amin report Paper No.16-C/1 and Amin map Paper No.16-C/2 clearly prove that the wall was constructed in front of the door, which opened in the southern portion. The lower appellate Court also found from the said report and also from the oral testimony of DW-1 that it was during pendency of the suit that the wall was built up by the defendants-appellant and thus, the appeal of the plaintiff-respondents was allowed on 26.11.2021.

13. In the appeal filed by the defendant-appellant i.e. Civil Appeal No.115 of 2018, the lower appellate Court framed the following points of determination:-

"(i).क्या प्रत्यर्थी संख्या 2 रमादेवी अपीलार्थी के भाई स्व ० बृजेश दुबे की विधवा है ?

(ii). क्या प्रत्यर्थी संख्या 1 दीपक दुबे स्व ० बृजेश दुबे का जैविक पुत्र है ?

(iii). क्या पूर्ववाद द्वारा वर्ष 1988 में संपत्ति विवादित पर प्रत्यर्थी द्वारा दखल पाया गया ?"

14. The lower appellate Court, while deciding points no.1 & 2, upheld the judgment of the trial Court to the extent that plaintiff-respondent no.1 Deepak Dubey was the son of late Brijesh Dubey and Rama Devi was the widow of late Brijesh Dubey. While deciding third point of determination, it was found that the Suit No.13 of 1985 filed by the plaintiff-respondent no.1 for partition was decreed and parties were put in possession on 08.03.1988. The lower appellate Court further held that during pendency of the Suit No.167 of 2001, the plaintiffs were dispossessed from the property in dispute and the possession which was given pursuant to the final decree in the year 1988 has been disturbed. The lower appellate Court dismissed the appeal of the defendant-appellant on 26.11.2021, hence both the appeals.

15. Sri B.K. Mishra, learned counsel for the appellant submitted that both the Courts below fell into error by holding that plaintiff-respondent no.1 Deepak Dubey to be the son of late Brijesh Dubey, though, the name of Deepak Dubey in the school testimonials has been recorded as son of Amarnath Dubey. He further contended that plaintiff-respondent no.2 Rama Devi @ Ramakanti had left for Vrindavan after death of Brijesh Dubey and she was never in possession over the property, but both the Courts below had wrongly held. He then contended that the Suit No.13 of 1985 filed by the plaintiff-respondent no.1 was decreed ex-parte on 03.09.1985 and only a preliminary decree was passed and no final decree was prepared according to Order 20 Rule 18 CPC and Order 26 Rule 13 & 14 and the partition was never acted upon, thus the present suit cannot be decreed for possession on the basis of the suit which was decreed ex-parte in the year 1985.

16. According to Sri Mishra, once a preliminary decree for partition has been passed then under the provisions of Order 26 Rule 13 and 14 of CPC, a commission has to be issued to make the partition or separation according to rights as declared in such decree, and Rule 14 of Order 26 mandates that the commission shall divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties. It is after process as envisaged under Order 26 Rule 13 and 14, that a final decree is prepared and then only the partition suit is effected. Reliance has been placed upon the decision of the Supreme Court in the case of Rachakonda Venkat Rao and Others Vs. R. Satya Bai (dead) by LR. and Another, 2003 (7) SCC 452.

17. Sri Rahul Sahai, learned counsel for the plaintiff-respondents submitted that after the death of Brijesh Dubey on 25.04.1982, a suit for partition was filed by the plaintiff-respondent no.1 claiming 1/3rd share in the property. A preliminary decree was drawn in the said suit on 23.09.1985, thereafter, the possession over the share of the plaintiff was given on 08.03.1988 in the execution proceedings 23 of 1987. He then contended that Original Suit No.167 of 2001 was filed when the defendant-appellant threatened the plaintiffs' possession who had asked for half share in 1/3rd share allotted to Damodar Das.

18. According to Sri Sahai, the partition had been acted upon between the parties and both the Courts below had rightly relying upon the partition decree had found that the plaintiffs have been evicted from their share by the defendant and a wall has been constructed in front of the main door which lies on the southern portion. He then contended that the issue in regard to the partition already stands settled and the claim of the defendant-appellant that the partition was not acted upon, cannot be raised as the said issue stands res judicata in the present suit. He has relied upon the decision of the Apex Court in the case of Saroja Vs. Chinnusamy (Dead) by L.Rs. And another 2007 (4) AWC 3846 (SC) and Sobaran Singh and others Vs. The Dy. Director of Consolidation and others 1992 RD 359. Relevant para 8 is extracted hereasunder:-

"8. The learned counsel for the appellant argued that the ex parte decree passed in the former suit could not operate as res judicata because in order to constitute res judicata within the meaning of Section 11 of the CPC, the conditions as noted herein earlier have to be satisfied, which on the admitted facts of this case, were not satisfied. The learned counsel for the appellant, however, submitted that on the admitted facts of this case as noted herein earlier, at least Conditions (iv), (v) and (vi) as quoted herein earlier could not be said to have been satisfied. This submission of the learned counsel for the appellant was hotly contested by the learned counsel for the respondents. He argued that all the conditions to constitute res judicata, as quoted herein earlier, have been satisfied and therefore the ex parte decree passed in the former suit would operate as res judicata in the subsequent suit filed by the appellant. Having examined the contentions raised by the learned counsel for the parties and having considered the admitted facts of the present case and other materials on record, we are unable to agree with the submission of the learned counsel for the appellant. In our view, the ex parte decree passed in Suit No.233 of 1989 would operate as res judicata in the subsequently filed suit of the appellant as all the conditions indicated herein earlier were duly satisfied in the present case. So far as the conditions namely (i),(ii) and (iii) are concerned, no dispute can be raised or was raised by the parties before us as the said conditions have been fully satisfied in the facts of this case."

19. I have heard counsel for the parties and perused the material on record.

20. The appellant through both these appeals have tried to make out a case that in the earlier suit filed by the plaintiff-respondents in the year 1985 claiming 1/3rd share over the property in dispute through partition had not attained finality and only a preliminary decree for partition was drawn and no final decree was prepared and thus, it cannot be said that plaintiff-respondents were in possession over the property pursuant to the passing of the final decree. He has also relied the provisions of Order 20 Rule 18 and Order 26 Rule 13 & 14 of the CPC.

21. Before adverting to decide the issue in hand, a glance of Section 2 (2) CPC, Order 20 Rule 18 and Order 26 Rule 13 & 14 are necessary for the better appreciation which are extracted hereasunder:-

Section 2 of CPC

"(2). "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within*** section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

Order 20 of CPC

Rule 18.- Decree in suit for partition of property or separate possession of a share therein.- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;

(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the right of the several parties interested in the property and giving such further directions as may be required.

Order 26 of CPC

Rule 13. Commission to make partition of immovable property- Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

Rule 14- Procedure of Commissioner.- (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directly by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.

(2) The commissioner shall then prepare and sign a report or the Commission (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit."

22. Thus, from reading of Section 2(2), it is clear that the word "Decree" means conclusive determination of right of the parties with regard to all or any of the matters in controversy in the suit and it may be either preliminary or final.

23. Rule 18 of Order 20 provides for the decree in suit for partition of property or separate possession of a share therein. While, Rule 13 & 14 of Order 26 provides for the commission to make partition to immovable property where preliminary decree for partition has been passed and a procedure has been laid for how the Commissioner after inquiry will divide the property into as many shares as may be may be directed by the order under which the commission was issued, and shall allot such shares to the parties.

24. In the present case, there is no dispute as to the fact that the preliminary decree was made on 23.09.1985, both the Courts below have recorded a categorical finding that the Amin commission pursuant to the preliminary decree had put the plaintiff no.1 in possession over the property on 08.03.1988. Thus, the claim of the defendant-appellant that the preliminary decree was never acted upon, cannot be accepted as after the passing of the preliminary decree, the procedure envisaged under Rule 13 & 14 of Order 26 was carried out and the Amin commission had put the plaintiff-respondents in possession on 08.03.1988. There is no denial to the fact that against the partition decree no appeal was preferred by the defendant-appellant, meaning thereby he had accepted the partition. Reliance placed on the decision of the Apex Court in case of Rachakonda (Supra) by the appellant's counsel, in fact, does not help his case, but only strengthen the case of the plaintiffs as in that case, the parties were put into their share pursuant to the compromise decree passed in the year 1978 and on the application of the plaintiff, the Court found that there was no case for interference.

25. In the present case also pursuant to the preliminary decree, the Commission after dividing the share as per the order had put the plaintiffs in possession over their share on 08.03.1988 and further continued over their possession and when they were threatened in 2001, they filed Suit No.167 of 2001. It was during pendency of the suit that they were dispossessed and the lower appellate Court rightly relying upon the Amin commission report and the map Paper No.16-C/1 and 16-C/2 found the wall to have been constructed in front of the door which opened on the southern portion.

26. Both the Courts below had rightly found the plaintiff-respondents to be the owner in possession over the property in dispute relying upon the earlier partition decree. Earlier partition decree drawn in the suit filed by the plaintiff-respondents cannot be questioned by appellant in the present proceedings, as it was already acted upon.

27. The partition decree of 1985 binds the parties and the same cannot be ignored subsequently, and both the Courts below had rightly held the plaintiff to be the owner in possession over the property. Once, it was found that the plaintiff being the owner in possession over the property in dispute, they were entitled for the decree of possession as they were dispossessed from the property during the pendency of the suit.

28. Considering the facts and circumstances of the case, I find that both the Courts below have recorded categorical finding of fact against the defendants-appellant which needs no interference of this Court. In the present appeals as no substantial question of law arises, the same fails and are, hereby, dismissed.

29. The Apex Court in Civil Appeal No.8971 of 2010 (Kripa Ram (deceased) through Legal Representatives and others vs. Surendra Deo Gaur and others, decided on 16.11.2020 has held that the second appeal can be dismissed without even formulating the substantial question of law. Relevant paras 25 and 26 reads as under :

"25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:

"18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion:

(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the Respondent;

(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure."

26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of."

30. In view of the above, both the second appeals stand dismissed.

Order Date:- 05.05.2022

SK Goswami

[Rohit Ranjan Agarwal, J.]