Allahabad High Court
Smt. Babita Saxena vs Satish Chandra (Since Deceased) And ... on 22 December, 2023
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:242458
Court No. - 90
Case :- SECOND APPEAL No. - 99 of 2023
Appellant :- Smt. Babita Saxena
Respondent :- Satish Chandra (Since Deceased) And Another
Counsel for Appellant :- Tripathi B.G. Bhai,Madan Mohan
Counsel for Respondent :- Arpit Agarwal
Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the parties on admission of second appeal and perused the record on board.
2. Appellant, objector in Execution Case No. 9 of 1996, has preferred instant second appeal assailing the judgment and order dated 28.11.2022 passed by District Judge, Pilibhit in Civil Appeal No. 59 of 2022 affirming the judgment and order dated 24.9.2022 passed by Civil Judge (Senior Division)/FTC, Pilibit in Misc. Case No. 129 of 2006 (Smt. Babita Saxena Vs. Satish Chandra and another), by which objection filed by the present appellant under Order XXI Rule 97 read with Section 151 CPC in Execution Case No. 9 of 1996 (Satish Chandra Vs. Vishna Devi) has been rejected.
3. Facts culled out from the record are that one Mr. Satish Chandra (predecessor-in-interest of Shailesh Chandra -respondent No. 1) had filed a suit for specific performance of contract, being OS No. 124 of 1987, against Vishna Devi (respondent No. 2 herein) on the basis of an agreement to sell dated 22.11.1982 which was allegedly executed by Babu Ram with promise to sell the subject matter of the said agreement (house) for consideration money to the tune of Rs. 14,000/-. Out of which Rs. 5,000/- has been received by Babu Ram as an earnest money. Period to get the sale deed executed was two years, however, in the month of June, 1983, Babu Ram had died leaving behind Vishna Devi (respondent No. 2), widow of his son, in whose favour will was executed. Therefore, Vishna Devi being a successor of Babu Ram had been arrayed as a defendant in the cause title of the suit against whom relief of specific performance has been sought for. Aforesaid OS No. 124 of 1987 has been decreed ex-parte, vide judgment and decree dated 28.8.1990, directing the sole defendant/respondent No. 2 to execute a sale deed in pursuance of agreement to sell dated 22.11.1982 after receiving the remaining consideration amount to the tune of Rs. 9,000/-. At later stage, while Vishna Devi has not executed sale deed in pursuance of the judgment and decree dated 28.8.1990, Satish Chandra (decree holder/plaintiff) has filed execution case being Execution Case No. 35 of 1991 against Vishna Devi. Learned Civil Judge, vide judgment dated 28.10.1993, has allowed the execution case and executed a registered sale deed in favour of Satish Chandra (decree holder). However, to obtain possession of the house in question in pursuance of the said sale deed, which has been got executed through the court, Satish Chandra (decree holder) has filed another Execution Case No. 9 of 1996. During pendency of the aforesaid Execution Case No. 9 of 1996, Satish Chandra had died on 21.2.2005 substituted by his brother, namely, Shailesh Chandra. In the aforesaid Execution Case No. 9 of 1996, when Court Amin reached on spot for delivery of possession, Smt. Babita Saxena (appellant herein) has raised objection claiming her right, title, interest and possession over the house in question and accordingly, initially moved an objection under Order XXI Rule 100 CPC which was subsequently amended to be entertained under Order XXI Rule 97 CPC. Aforesaid objection moved by appellant in Execution Case No. 9 of 1996 has been registered as Misc. Case No. 129 of 2006. Learned trial court has dismissed said objection, vide judgment dated 24.9.2022; on appeal being filed, first appellate court has dismissed appeal, vide judgment dated 28.11.2022, which is under challenge before this Court.
4. Smt. Babita Saxena (appellant) is claiming her right and title over the house in question on the basis of registered will deed dated 28.10.1996 said to have been executed by one Lalta Prasad in her favour. Present appellant came with the case that originally Babu Ram was the owner of the house in question, who died unmarried. After his death his property devolved upon Lalta Prasad, who was sole surviving heir being a son of his sister, namely, Gomti Devi. At later stage, Lalta Prasad had died on 5.11.1996, however, before his death, he had executed a registered will deed dated 18.10.1996 in favour of the present appellant. Thus, she became owner of the house in question. Entitlement of Vishna Devi being a successor of Babu Ram has been questioned by the present appellant. In this backdrop, it is evident that property (house in question) belongs to Babu Ram and qua property in question plaintiff/decree holder (respondent No. 1 herein) is claiming his right and title on the basis of the decree dated 28.8.1990 passed by the court competent. Conversely, Smt. Babita Saxena (appellant herein) is claiming her right and title on the basis of the registered will deed dated 18.10.1996 said to have been executed by Lalta Prasad, who was allegedly sole surviving heir of Babu Ram.
5. Learned trial court, while considering the case of Smt. Babita Saxena under order XXI Rule 97 read with Section 151 CPC, has framed as many as three issues. Issue No. 1 was formulated to examine the entitlement of Lalta Prasad being sole successor of Babu Ram. Issue No. 2 was framed as to whether after death of Babu Ram, his property in question devolve upon Lalta Prasad being his successor and issue No. 3 has been formulated, who is owner and in possession over the house in question after the death of Lalta Prasad. In deciding the issue No. 1 and 2, learned trial court has given a categorical finding that no unimpeachable evidence has been adduced on behalf of Smt. Babita Saxena to prove that Babu Ram had died unmarried. It has also not been proved that who was the successor after the death of Babu Ram under the Class I or Class II as defined in Hindu Succession Act. In her affidavit (paper No. 29 Ka), present appellant has averred that Lalta Prasad being son of Gomti Devi (a real sister of Babu Ram) was the sole successor of his maternal uncle (Ram Babu) and, therefore, under Hindu Succession Act, after death of Babu Ram his property devolved on Lalta Prasad. Learned trial court has concluded that Babita Saxena (appellant herein) has failed to prove that Babu Ram had died unmarried and Vishna Devi is not his daughter-in-law (wife of his son). No independent witness has been examined on behalf of Babita Saxena to prove her case. The learned trial court has acknowledged the right and title of the plaintiff (decree holder) on the basis of the judgment dated 28.8.1990 and, subsequent thereto, the execution of registered sale deed dated 28.10.1993 in pursuance of the order passed by the civil court.
6. First appellate court, being a court of fact and law, has discussed the claim of Babita Saxena in detail and concluded in concurrence to the judgment passed by the trial court. Learned appellate court has considered the evidence list (paper No. 141C) and observed that in miscellaneous Case No. 13 of 1991 (Vishna Devi Vs. Lalta Prasad), an objection under Section 47 CPC was filed by Lalta Prasad wherein he has shown Gomti Devi as sister of Moolchand, who was father of Babu Ram. On the contrary, present appellant is claiming Gomti Devi as sister of Babu Ram. In this backdrop of the fact, learned appellate court has concluded that Lalta Prasad and the appellant are taking contrary plea qua relationship of Gomti Devi with Babu Ram. Learned appellate Court has emphasized that Civil Suit No. 124 of 1987 has already been decided considering Smt. Vishna Devi as a successor of Babu Ram. The appellate Court has also relied upon the order dated 24.5.2016 passed by Additional District Judge, Pilibhit in Civil Appeal No. 5 of 2003 acknowledging Vishna Devi (Opposite Party No. 2 in the said appeal) as daughter-in-law of Babu Ram. Besides this, present appellant has already filed a civil suit being OS No. 202 of 2013 for declaring herself as owner of the house in question on the basis of will deed dated 18.10.1996. The aforesaid Suit No. 202 of 2013 is still pending consideration and no final order has been passed in the her favour. Learned first appellate court has also pointed out that the appellant has failed to prove as to how Gomti Devi being a sister of Babu Ram succeeds his property whereas she falls in the Class-II, however, Smt. Vishna Devi falls in Class-I in Hindu Succession Act being a daughter-in-law (wife of son of Babu Ram).
7. I disagree with the submission advanced by learned counsel for the appellant that court below have not properly considered the case of parties in compliance of remand order dated 24.5.2006 passed by Additional District Judge (Court No.-1), Pilibhit. It is apposite to mention that the objection filed by the present appellant under Order XXI Rule 100 CPC was previously rejected by the trial court vide an order dated 25.1.2023. On appeal being filed on behalf of the appellant, the first appellate court has allowed the appeal, vide judgment and order dated 24.5.2006, and relegated the parties before the trial court to decide the objection filed on behalf of the appellant afresh. A perusal of order dated 24.5.2006 reveals that, although the first appellate court acknowledged the entitlement of Smt. Vishna Devi under Class-I in Hindu Succession Act, 1956, however, remitted the matter to trial court on the ground that the trial court had not given an opportunity to adduce evidence in support of the appellant?s case, and will deed executed by Lalta Prasad cannot be negated based on agreement to sell executed by Babu Ram in favour of the Satish Chandra. After remand, appellant has moved an application dated 13.10.2006 to amend and treat the objection under Order XXI Rule 97 CPC in place of under Order XXI Rule 100 CPC. The learned trial court, before passing the order dated 24.9.2022, has accorded full opportunity to adduce documentary evidence in compliance of the order dated 24.5.2006 passed by the first appellate court. The Trial court has formulated three issues relating to the title of Lalta Prasad (Predecessor-in-interest of appellant herein) and, after a full discussion on merits, declined the case of the appellant on the grounds that Babu Ram was not succeeded by Lalta Prasad. In the memo of appeal, as many as eight substantial questions have been formulated. However, in my considered opinion, all are more embellishment and ornamental than a substantial questions of law.
8. In this conspectus, as above, claim of the present appellant is concluded by finding of fact that she failed to prove her right, title, interest and possession over the property in question which was subject matter of Original Suit No. 124 of 1987 decided in favour of plaintiff/respondent No. 1. Right and title of Lalta Prasad, from whom present appellant is claiming her right and title through registered will deed dated 18.10.1996, is itself doubtful being a sole surviving heir of original owner Babu Ram. Conversely, plaintiff/decree holder succeeded in proving his entitlement on the basis of the judgment and decree dated 28.10.1993 passed against Smt. Vishna Devi, who has been acknowledged as daughter-in-law of original owner of the house in question namely Babu Ram and comes under Class-I in Hindu Succession Act. After careful consideration of the judgment passed by the court below, this Court do not find any substantial question of law to entertain the instant second appeal in exercise of its power under Section 100 CPC. Being a second appellate Court, this Court is not expected to delve into deep and re-appraise the evidence on record to find out truth of the case, if any, whereas right, title and interest of the parties has already been concluded by finding of fact returned by both the courts below.
9. Resultantly, instant second appeal, being devoid of merits and lacks substantial question of law, is dismissed with no order as to the costs.
Order Date :- 22.12.2023
vinay
