Allahabad High Court
Smt. Neelam Devi vs Manoj Kumar And Another on 2 January, 2023
Bench: J.J. Munir
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 6 Reserved
Case :- SECOND APPEAL No. - 596 of 2022
Appellant :- Smt. Neelam Devi
Respondent :- Manoj Kumar and another
Counsel for Appellant :- Mr. Ramesh Kumar Chaurasia, Advocate
Hon'ble J.J. Munir,J.
This is a plaintiff's second appeal arising out of a decree passed by the two Courts below, concurrently dismissing the suit for declaration and permanent prohibitory injunction.
2. Heard Mr. Ramesh Kumar Chaurasia, learned Counsel for the plaintiff-appellant in support of the motion under Order XLI Rule 11 C.P.C.
3. The plaintiff-appellant (for short, 'the plaintiff') instituted O.S. No. 279 of 2010 before the Civil Judge (Sr. Div.), Ballia, seeking a declaration to the effect that the entire premises as detailed at the foot of the plaint is the exclusive property of the plaintiff since 1999 and that the defendants have no right in the said property. A permanent injunction was sought to the effect that the defendants be restraining from dispossessing the plaintiff from the shop denoted by figures 1, 2, 3, 4 in the plaint map annexed, from transferring any part thereof, without a partition by metes and bounds, and further interfering with the plaintiff's business carried on in the shop, subject matter of the suit.
4. The case of the plaintiff, Smt. Neelam Devi is that she is a native of Bansdih, Pargana Kharid, District Ballia. The shop, subject matter of the disputed, detailed at the foot of the plaint and also shown in the plaint map, was purchased from its former owner jointly by the plaintiff and defendant No. 1 vide registered sale deed dated 13.03.1996 and that from the said date, both the plaintiff and defendant No. 1 are in joint possession of the said shop. The shop is dimensioned 7-1/2' x 18', wherein the plaintiff carries on business along with her husband. The defendants, who are also husband and wife, stay in Delhi, where defendant No. 1 has his business.
5. The short case of the plaintiff is that defendant No. 1 surrendered his share in the shop, subject matter of the suit (for short the suit property) on 05.03.1999 upon receipt of a sum of Rs.1,50,000/-. On and after 05.03.1999, it is the plaintiff, who is the exclusive owner in possession of the suit property. It is the plaintiff's further case that defendant No. 2, who is the first defendant's wife, without any right or title, threatened the plaintiff with delivering possession of the suit property to a third party and abused the plaintiff. It is emphasized by the plaintiff that after surrender of the defendants' share, all their rights of co-ownership that they had got through the registered sale deed along with the plaintiff, have ceased.
6. It is the plaintiff's further case that since the shop was never partitioned between the two co-sharers, no boundary wall was ever put up. It is pleaded rather inconsistently, or, may be, as an alternate case that without effecting a partition of the suit property, the defendants cannot transfer their share to a third party or interfere with the plaintiff's possession. The case dominantly pleaded nevertheless appears to be that after the surrender of their share on 05.03.1999, the defendants had no right, title or interest surviving in the suit property.
7. A written statement has been filed by defendant No. 2, accepting the fact that the defendants are natives of Ballia and the fact that both the plaintiff and the defendants are in joint possession of the suit property. The other allegations have been denied.
8. It is the second defendant's case that defendant No. 1 is her husband, who purchased the suit property together with the underlying land jointly with the plaintiff from Radhey Shyam and others through a registered sale deed. Ever since both the plaintiff and the defendants are in possession of the suit property. The defendants claimed that they are still in possession and that defendant No. 1 never surrendered his share in favour of the plaintiff through any instrument, registered or unregistered. It is also pleaded by the defendants that the first defendant never surrendered possession of their share to the plaintiff or attempted to induct anyone else. The second defendant's husband, that is to say, defendant No. 1, who is a co-owner of the suit property along with the plaintiff, has gone untraceable for a long period of time. The second defendant stays at Bansdih along with her mother-in-law at a different place away from the suit property.
9. On the pleadings of parties, following issues have been framed (translated into English from Hindi):
"1. Whether the plaintiff is the sole owner in possession of the disputed shop?
2. Whether the suit is legally maintainable?
3. Whether the plaintiff has the right to sue?
4. Whether the suit is undervalued?
5. Whether the court-fee paid is insufficient?
6. Whether the disputed shop is a residential house?
7. Whether the defendant is entitled to be paid special costs under Section 35 CPC?
8. Relief."
10. The plaintiff examined in support of her case, Gorakh Prasad as PW-1 and PW-2, Bhrigu Prasad. On the other hand, the defendant examined DW-1, Munni Devi and DW-2, Vidya Kumar Pandey. Documentary evidence was also filed, which finds mention in the judgment of the Trial Court. The relevant evidence shall be referred to wherever required.
11. The Trial Court dealt with Issue Nos. 1 and 6 together, answering both in favour of the defemdamts and against the plaintiff. It was held that the plaintiff and defendant No. 1 were co-sharers since they have acquired the suit property through registered sale deed dated 13.03.1996 and the plaintiff is not the exclusive owner in possession thereof. The case of surrender was not accepted, because there is no registered deed of surrender. The deed of surrender dated 05.03.1999 set up by the plaintiff, bearing paper No. 64-Ka has been discarded, because it is unregistered, which cannot effect transfer of interest in immovable property. Likewise, Issue No. 2 has also been decided against the plaintiff and in favour of the defendants.
12. The other issues are not material. On the aforesaid findings, the Trial Court dismissed the suit vide judgment and decree dated 09.12.2016.
13. The plaintiff appealed to the District Judge vide Civil Appeal No. 6 of 2017, which has been dismissed by the learned Additional District Judge/ F.T.C. Court No. 2, Ballia vide judgment and decree dated 10.03.2022.
14. Aggrieved, the present appeal from the appellate decree has been instituted.
15. The learned Counsel for the plaintiff has argued that the judgments passed by the Courts below are perverse and both Courts have committed a manifest error of law in not accepting evidence of surrender of his interest by defendant No. 1 for a valuable consideration of Rs. 1.50 lakhs.
16. Upon hearing learned Counsel for the plaintiff, this Court is not in agreement with the submissions advanced. It is not in dispute that the suit property in whatever shape it was, which is now a shop, was purchased from the former owners through a registered conveyance, jointly by the plaintiff and defendant No.1. It is the plaintiff's case that defendant No. 1 has surrendered his share in the suit property on 05.03.1999. The only evidence about surrender appears to be an unregistered deed, bearing paper No. 64-Ga. It is beyond cavil that any interest in immovable property, upwards of the value of Rs.100/-, including the surrender of a share, which is very much a transfer of property, can only be effected through a registered instrument. The plaintiff claims that defendant No. 1 surrendered his share in the suit property for a valuable consideration of Rs. 1.50 lakhs. That could only be done by a registered conveyance; not otherwise.
17. In the circumstances, this Court does not find that any substantial question of law arises for consideration in this appeal given the concurrent findings recorded by two Courts below.
18. This appeal fails and is dismissed under Order XLI Rule 11 CPC.
Order Date :- 02.01.2023
Anoop
(Justice J.J. Munir)
