Smt Lalita Khurana vs Smt. Sunita And 3 Others
2022 Latest Caselaw 2443 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 06.05.2022
 
Delivered on 10.05.2022
 
Court No. - 10
 

 
Case :- FIRST APPEAL No. - 229 of 2021
 
Appellant :- Smt Lalita Khurana
 
Respondent :- Smt. Sunita And 3 Others
 
Counsel for Appellant :- Chetan Chatterjee
 
Counsel for Respondent :- Anurag Prakash Mishra
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Chetan Chatterjee, learned counsel appearing for the appellant and Sri Pankaj Kumar, Advocate holding brief of Sri Anurag Prakash Mishra, learned counsel for the respondents.

2. This is plaintiff's appeal under Section 96 of Code of Civil Procedure against judgment dated 22.02.2021 and decree dated 02.03.2021 passed by Civil Judge (Senior Division), Saharanpur in Original Suit No. 355 of 2020.

3. Facts leading to the present appeal, are that plaintiff filed Original Suit No. 355 of 2020 for permanent prohibitory injunction against defendants not to interfere in the peaceful possession of the plaintiff. According to the plaint version, husband of plaintiff, Late Nandlal Khurana was the owner in possession of the house situated at Mohalla Keshav Nagar, Numiash Camp, Saharanpur, which he had purchased through registered sale-deed on 11.05.1988. Certain constructions were made after purchasing the property by husband of the plaintiff. Nandlal Khurana on 02.08.2010 executed a Will in favour of the plaintiff and thereafter died on 18.11.2011. Plaintiff became the owner in possession over the property pursuant to Will dated 02.08.2010. As the plaintiff and Nandlal Khurana had four daughters and no son, and plaintiff not keeping well, son of defendant no. 1 (Paras) was living with her. She executed a registered Will in favour of Paras on 24.06.2014. As the defendants started interfering in the property in dispute, the plaintiff filed the suit in question against them for injunction. The said suit was contested by the defendants and a written statement was filed. It was contended on part of defendants that they had 1/5 share along with the plaintiff in the property in dispute as it was left by their father, Nandlal Khurana. The trial court on the basis of pleading of the parties framed following issues:-

"1- क्या वादनी वादपत्र में वर्णित कथनों के आधार पर वादग्रस्त संपत्ति पर मालिक काबिज है?

2- क्या वादनी द्वारा वाद का मूल्यांकन कम किया गया है और अदा किया गया न्यायशुल्क अपर्याप्त है?

3- क्या प्रतिवादीगण वादनी से धारा 35अ व्यवहार प्रक्रिया संहिता के तहज हर्जा विशेष पाने की अधिकारी है?

4- क्या वादनी अन्य अनुतोष प्राप्त करने की अधिकारी है?

वाद बिंदु संख्या 2 पूर्व में निस्तारित किया जा चूका है। जो इस निर्णय का भाग होगा।"

4. Before the trial court, plaintiff along with one of the attesting witness of the Will dated 02.08.2010, Naresh Sharma, P.W. 2, appeared as Plaintiff Witness No. 1. While from the defendants side, defendant no. 3, Sonia Arora appeared and recorded her oral testimony. The trial court on the basis of the oral and documentary evidence recorded a finding that in the sale-deed dated 11.05.1988, which was Paper No. 21A1, the description of the house purchased was shown as Nagarpalika No. 5/1539-H-31 while the Will executed by Late Nandlal Khurana on 02.08.2010 which is Paper No. 22A1 describes the property as Nagarpalika No. 5/1783-H-31. As the description of the property in both documents relied by the plaintiff was different issue no. 1 was decided against the plaintiff and suit of the plaintiff was dismissed on 22.02.2021. Hence, the present appeal.

5. Sri Chetan Chatterjee, learned counsel appearing for the appellant submitted that the judgment of the trial court rests upon the identity of the property, which was never raised nor an issue framed, on account of which, no evidence was led on that point by the plaintiff. He further contends that the DW-1 in her oral testimony had admitted to both the execution of the sale-deed dated 11.05.1988 in favour of Nandlal Khurana and also the Will dated 02.08.2010. Once both the documents were accepted by the defendants, no occasion arose to disbelieve the documents and dismissing the suit. He then contended that an application under Order 41 Rule 27 C.P.C. was filed by the applicant bringing on record through additional evidence the certified copies of house tax assessments relating to House No. 5/1783 H-31 (new) which is claimed to bear House No. 5/1539 H-31 (old) situate at Mohalla Keshav Nagar, Numiash Camp, District- Saharanpur. The application under Order 41 Rule 27 C.P.C. was allowed on 18.02.2022 and Exhibit-1, 2 and 3 were given to the copy of tax assessment register for the year 1991-97, 1997-2003 and 2003-2009.

6. According to appellant counsel at the time of purchase of property by Nandlal Khurana, husband of appellant, municipal number of the property was 15/1539 H-31 and the said number continued till 2003 and thereafter from 2003 onwards new number was given which was 5/1783 H-31, thus, in the Will dated 02.08.2010, the new number was given. So far as there was no denial to the execution of both the documents, the court below was not justified to disbelieve them and refuse to decree the suit of the plaintiff.

7. Sri Pankaj Kumar, Advocate holding brief of Sri Anurag Srivastava, learned counsel for the respondents submitted that there is no denial to the fact that the house in question is the same which in mentioned in the sale-deed dated 11.05.1988 as well as Will dated 02.08.2010. He further contended that in the oral testimony defendant no. 3, Sonia Arora had accepted to the execution of the said documents. Apart from this, no other argument was made from the side opposite.

8. I have heard the arguments of respective counsel and perused the judgment and order passed by the court below as well as the material available on record.

9. The present appeal has been preferred before this Court solely on the ground that the trial court had dismissed the suit of the plaintiff-appellant solely on the basis that description/house number of the property in dispute mentioned in Paper No. 21A1, which is the sale-deed and Paper No. 22A1 which is the Will, differs and thus plaintiff was not entitled to any relief.

10. The issue no. 1 which was framed by the trial court was whether the plaintiff was the owner in possession over the property in dispute. In support of her pleading, plaintiff had filed documents, such as, sale-deed dated 11.05.1988 which was executed in favour of her husband, Late Nandlal Khurana, and Will dated 02.08.2010 executed by her husband in her favour. The execution of the Will was proved under Section 68 of the Evidence Act by one of the attesting witness to the Will, Naresh Sharma who was examined by the court below as PW-2. Had the court below found that there was any discrepancy or alteration of the municipal number and the identity of the suit property could not be ascertained, the trial court should have exercised the power vested in it under Order 14 Rule 5 before passing the decree, by amending the issue or by framing additional issue on such terms as it thinks fit.

11. Order 14 Rule 5 grants power to the trial court that before passing a decree, it is necessary for determining the matter and issue between the parties. It may amend the issue or frame additional issue. Sub-section (2) of Rule 5 of Order 14 further clothes the court with the power before passing a decree, to strike out any issue that appear to it to be wrongly framed or introduced.

12. In the present case, once the trial court was of the view that there was alteration of the municipal number in the documents filed by the plaintiff upon which reliance was placed for claiming the relief, the trial court could have framed additional issue and decided the same. From the additional evidence brought on record, which are Exhibit No. 1, and Exhibit No. 2, the copy of tax assessment register for year 1991-1997 and 1997-2003, it is clear that the suit property was registered as House No. 5/1539 H-31. While Exhibit 3, which is the copy of the tax assessment register for the year 2003-2009, reflects that old house number has been changed to House No. 5/1783 H-31. Thus, the sale-deed which is of the year 1988 reflects the old house number 5/1539 H-31, while Will dated 02.08.2010 reflected the new house number which was changed in the year 2003. Thus, finding recorded by the court below to the extent that there was discrepancy in the house number in Paper No. 21A1 and 22A1 is against the material on record. The injunction sought by the plaintiff was in respect to the house purchased by her husband on 11.05.1988 which originally reflected House No. 5/1539 H-31 and subsequently it was changed/ altered to House No. 5/1783 H-31 and the Will executed in the year 2010 rightly reflected the new house number.

13. Both the documents i.e. sale-deed and Will reflect one and the same house and there is no discrepancy in regard to house number as held by the court below.

14. So far as the defendants-respondents are concerned, they have not denied the factum of execution of both the sale-deed and Will by their father Nandlal Khurana and in her oral testimony, defendant no. 3 had admitted to the execution of the said documents, which bears the signature of their father. Moreover, there is no denial to the fact that the suit property which has been described by different house number in the two documents is one and the same. Once, there is an admission on the part of the defendants-respondents as to the identity of the suit property and there having been no real contest from the side opposite, suit of the plaintiff requires to be decreed.

15. Considering the facts and circumstances of the case, I find that the judgment and order passed by the court below dated 22.02.2021 and 02.03.2021 are unsustainable in the eyes of law and are thus set aside.

16. Appeal stands allowed.

17. The suit filed by the plaintiff-appellant for permanent injunction stands decreed.

Order Date :- 10.5.2022

V.S.Singh