Smt. Bitana And Others vs Smt. Inaman And Others
2023 Latest Caselaw 27595 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:65138
 
Court No. - 19
 

 
Case :- SECOND APPEAL No. - 251 of 1990
 
Appellant :- Smt. Bitana And Others
 
Respondent :- Smt. Inaman And Others
 
Counsel for Appellant :- Shafiq Mirza,Mohd. Ali
 
Counsel for Respondent :- Sabir Ali,Sabir Ali
 
                                                          *****
 
Hon'ble Jaspreet Singh, J.

1. Heard Shri Mohd. Ali, learned Counsel for the appellants and Shri Sabir Ali, learned counsel appearing for the respondents.

2. This is the plaintiffs second appeal assailing a judgment of reversal passed in Civil Appeal No.58 of 1989 by the Additional Civil Judge, Rae Bareli wherein by means of judgment and decree dated 29.01.1990, the lower appellate court allowed the defendants first appeal as a result the suit of the plaintiffs seeking setting aside of an ex parte decree passed in Regular Suit No.181 of 1979 (Smt. Imaman Vs. Jamal) which was decree, has been set aside by the judgment of the lower appellate court as a result the suit of the plaintiffs was dismissed.

3. In order to appreciate the contention of the respective parties, it will be relevant to notice the brief facts giving rise to the instant appeal.

4. The controversy erupted in view of the fact that Smt. Imaman who is the defendant no.1 in the suit instituted by the plaintiff-appellants bearing No.254 of 1982 had earlier filed a suit bearing No.181 of 1979 against one Jamal which was decreed ex parte on 21.02.1980. The plaintiff-appellants filed the suit bearing No.254 of 1982 assailing and seeking to get this ex parte decree dated 21.02.1980 set aside on the premise that Smt. Imaman had surreptitiously obtained the ex parte decree by resorting to suppression of material facts and fraud and that too without impleading the present plaintiffs as a party in the suit as a result the rights of the plaintiffs were severely affected. It was also stated that it is only when Smt. Imaman filed an execution application seeking to get the ex parte decree dated 21.02.1980 implemented that the plaintiffs became aware of the aforesaid ex parte decree and thus the suit came to be filed.

5. The plaintiffs had claimed that the property which is the subject matter of dispute had specific boundaries which were indicated in paragraph-3 of the plaint and it was stated that the same was part of Khasra Plot No.1762, situate in Mohalla Dakshini Jahanabad, District Rae Bareli. It was also pleaded that the plaintiffs had purchased the property from Manna Lal Pathak by means of registered sale deed dated 19.07.1960 and since the defendants who were in the neighborhood were having evil intention over the property of the plaintiffs, hence the suit was filed seeking declaration that the ex parte decree obtained by Smt. Imaman dated 21.02.1980 be declared as null and void.

6. The suit came to be contested by the defendants Imaman and Jamal. While Smt. Imaman filed her written statement, it was clearly pleaded that the contents of the plaint were incorrect. It was further stated that the defendants had purchased the Kothari by means of registered sale deed in the year 1968, which had a separate boundary. It was also pleaded that the plaintiffs had also moved an application under Order 9 Rule 13 CPC which came to be dismissed and thereafter the suit has been filed only to harass the defendant. In paragraph-16 of the written statement, it was clearly pleaded that the defendant was in possession over the property in question since last 42 to 43 years and that the property of the defendants was separate and was at least at a distance of 25 to 30 yards from the property of the plaintiffs.

7. In light of the aforesaid pleadings, the trial court framed five issues. However, for the present controversy, issues no.1, 2, 3 and 4 were relevant; inasmuch as it related to whether the decree passed in Case No.181 of 1979 was procured by the defendant no.1 by resorting to fraud and suppression of material facts and if so its effect. The next issue was whether the plaintiffs are bound by the decree passed in Regular Suit No.181 of 1979 and whether the plaintiffs are the owner in possession of the property claimed by them.

8. Lastly, an issue was framed, whether the disputed property belonged to the erstwhile owner Manna Lal Pathak as in terms of paragraph-17 of the written statement, a plea was taken by the defendants that Manna Lal Pathak was not the owner of the property purchased by the plaintiffs.

9. It is in the aforesaid backdrop that the parties led evidence both and oral and documentary and the trial court while dealing with the issues no.1 and 2 recorded a finding that the plaintiffs is the owner of the property in question. The defendant could not establish its possession as stated that they were in possession since last 42 to 43 years.

10. The trial court also noticed that the property between the parties was different and that the defendant no.1 in her cross-examination also admitted the possession of the plaintiffs. With the aforesaid findings, the trial court by means of judgment and decree dated 20.09.1989 decreed the suit.

11. The defendants being aggrieved against the said judgment and decree preferred a Regular Civil Appeal before the appellate court which was registered as Appeal No.58 of 1989. The lower appellate court considering the facts and circumstances found that the plaintiffs could not establish its ownership nor it could be established that Manna Lal Pathak the predecessor in interest of the plaintiffs was the owner. It also found that the property in question was different and since the plaintiffs had filed a suit seeking declaration that the ex parte decree dated 21.02.1980 was to be declared null and void on the grounds taken by the plaintiffs which were not substantiated, consequently the decree could not sustain and by means of judgment and decree dated 29.01.1990 the lower appellate court allowed the defendants first appeal as a result the judgment and decree dated 20.09.1989 was set aside.

12. It is being aggrieved against the aforesaid judgment of reversal that the plaintiffs have come up in appeal before this Court in exercise of power under Section 100 CPC.

13. The aforesaid appeal was admitted by means of order dated 10.03.2023 on the following substantial question of law:-

"Whether the plaintiffs predecessor in interest were not parties in the earlier decree and as such the said decree is not binding on them and the learned first appellate court as erred in holding otherwise?

14. Shri Mohd. Ali, learned counsel for the appellants while attacking the decree of the lower appellate court has submitted that the lower appellate court committed an error in setting aside the judgment of the trial court without applying the mandate as required in terms of Order 41 Rule 31 CPC that is to say that neither the reason as recorded by the trial court were considered nor the evidence was noticed by the lower appellate court and findings have been reversed which is not in sound exercise of jurisdiction of the lower appellate court which is the final court of fact.

15. Learned counsel for the appellant further submits that it is not disputed by the respondents that the plaintiffs were in possession of the property in question and even the defendants-respondent could not establish that they were in possession since last 42 to 43 years as pleaded by them in their written statement and the suit which was filed by the defendants bearing Regular Suit No.181 of 1979 wherein they procured a decree which materially affected the rights of the plaintiffs could not be sustained and this aspect of the matter has not been appropriately considered by the lower appellate court, rather it has set aside the judgment of the trial court simplicitor on the ground that the plaintiffs could not establish the title of his predecessor which is erroneous exercise of jurisdiction since admittedly the plaintiffs was in possession and the defendants if at all had any right to file the suit, it ought to have impleaded the plaintiffs as a party and behind the back of the plaintiffs a decree could not be procured which materially affected the rights of the plaintiffs and thus the judgment passed by the lower appellate court is bad in the eyes of law.

16. Learned counsel for the respondents while combating the submissions of the counsel for the appellants has submitted that the specific case as set up by the plaintiffs in the plaint was that the ex parte decree passed in Regular Suit No.181 of 1979 was procured by the defendants on incorrect facts and an attempt was being made to usurp the property belonging to the plaintiffs. Moreover, the defendants had established that the property in question was different and without any appropriate evidence the trial court also committed an error in failing to notice that once the property between the plaintiffs and the defendants were different and there were specific pleadings that the distance between the two was also of 25 to 30 yards, it could not be clarified by the plaintiffs as to how the decree obtained by the defendants was bad or in any manner affected the plaintiffs. This aspect was appropriately dealt with by the lower appellate court and findings that the trial court had not proceeded in the correct prespective as set aside the judgment and decree of the trial court and this is based on pure findings of fact which are unassailable in terms of Section 100 CPC, consequently the appeal deserves to be dismissed.

17. The Court has heard learned counsel for the parties and also perused the material on record.

18. At the very outset, it may be noticed that the plaintiffs had filed a suit seeking declaration to the effect that the ex parte decree dated 21.02.1980 passed in Regular Suit No.181 of 1979 may be declared as null and void on the ground that the same was obtained by suppression of facts. From the bare perusal of the plaint, the plaintiffs has tried to establish that they are the owners in possession of the property which has been delineated in paragraph-3 of the plaint in suit. However, there are no clear pleadings as to what were the grounds, which gave rise to any conclusion that the judgment and decree passed in Regular Suit No.181 of 1979 was obtained by suppression of fact. It is now well settled that the plaintiffs has to stand and prove its case on its own and cannot take the benefit of the weakness of the defence.

19. Apparently what this Court finds is that the plaintiffs had set up a case in respect of the property which is part of Khasra Plot No.1762 situate in Mohalla Dakshini Jahanabad, District Rae Bareli with specific boundaries mentioned that in the East there was house of Yakoob Khan, West:rasta thereafter house of Hanuman Kori, North:Parti and South:Road. The said property has been purchased by the plaintiffs by means of the registered sale deed executed by Manna Lal Pathak. The said sale deed has been brought on record and is bearing paper No.Ka-7. From the perusal of the aforesaid sale deed which is the source of title of the plaintiffs, it would indicate that the property has been clearly defined by boundaries. However, there is no dimensions mentioned in the said sale deed.

20. In contrast to the aforesaid, the defendants have also claimed title to a property having purchased the same in the year 1968 and it has also mentioned certain boundaries as well as the dimensions and the said sale deed is bearing paper No.Ga-57. The said sale deed is said to have been executed by Ram Lal and Hanuman in favour of the defendants. The sale deed also gives the dimensions and house number as 611/A which is a Kothari measuring 18 feet in length and 9 feet in breath and bounded as under:-

	East          :           Rasta
 
	West         :         Aahata and then the property of Anandbali
 
			     (Advocate).
 
	North       :         Kothari of Kalka Singh; and
 
	South       :         Parti and Road 
 

 

21. From the perusal of the aforesaid pleadings and the documents which is the source of title of the respective parties, a fact which is undeniable is that the property between the plaintiffs and the defendants are separate having different boundaries. It is not the case of the plaintiffs that the defendants while filing the suit bearing No.181 of 1979 sought a decree in respect of a property which belonged to the plaintiffs by giving wrong and incorrect boundaries. The plaintiffs squarely approached the Court that the decree in Regular Suit No.181 of 1979 was not binding as they were not party to the said suit and that the suit was decreed by suppression of fact. What was the facts which was suppressed and how the plaintiffs was materially affected by the said decree has not been explained nor any evidence was led to the aforesaid effect.

22. It is also not the case of the plaintiffs that the defendants who have specifically purchased the property which has a specific house No.611-A with particulars dimensions and boundaries is in any manner interfering or over-lapping with the property claimed by the plaintiffs, the boundaries of which were given by the plaintiffs. In this view of the matter, the plaintiffs apparently did not have any right to seek a declaration of a decree which related to a different property of which the plaintiffs had no concern. It is the admitted case of both the parties that the plaintiffs and the defendants are the owners of two separate properties purchased from two separate erstwhile owners with separate boundaries and none of the boundaries of one over laps or interferes with the other.

23. In the aforesaid circumstances, once the trial court came to the conclusion that both the properties were different, it had no business to have proceeded any further in decreeing the suit and setting aside a decree which relates to a different property in between different parties for which the plaintiffs himself could not establish or state how he was aggrieved. This aspect was noticed by the lower appellate court taintly, and it found that since the plaintiffs could not establish the right of his predecessor, hence he could not maintain the suit. Even this approach of the lower appellate court was erroneous for the reason that the only question that had to be looked into in light of the pleadings of the parties was, whether, in any manner the plaintiffs was being materially affected and was prejudiced by the ex parte decree dated 21.02.1980 passed in Regular Suit No.181 of 1979 in respect of a separate property then the one claimed by the plaintiffs.

24. Since the issue regarding the title of the predecessor in interest of the plaintiffs could only assume significance, if it was the common case that the disputed property is one and the same. Only in such a situation, it could have been material to notice that who was the erstwhile owner and whether the plaintiffs purchased the property from the rightful owner and could get a title appropriate in law.

25. Here, the facts divulge a different story that is to say that the plaintiffs have purchased a different property from Manna Lal Pathak which is not in any manner common or over laps with the property purchased by the defendants from the Ram Lal and Hanuman by means of registered sale deed dated 14.02.1968 with different boundaries.

26. In these circumstances, this Court finds that both the trial court as well as the lower appellate court went on a tangent and did not identify the core dispute between the parties. Even though the Court does not approve the reasoning of both the trial court as well as the appellate court but this Court arrives at inescapable conclusion that the suit for the plaintiffs could not have been decreed, once the plaintiffs failed to establish that the subject matter of the suit bearing Regular Suit No.181 of 1979 which was decreed ex parte on 21.02.1980 had no commonality with the suit property of the plaintiffs Purchased by them from Manna Lal Pathak and was the subject matter of suit bearing Regular Suit No.254 of 1982.

27. The plaintiffs also could not establish with cogent evidence the grounds upon which the said ex parte decree was stated to be bad and thus for all the aforesaid reasons, this Court does not approve of the reasons recorded by the lower appellate court as well as the trial court while arriving at its findings but nevertheless for the reasons recorded above, hence this Court also comes to the conclusion that the suit of the plaintiffs was liable to be dismissed.

28. In so far as the cases cited by the appellants is concerned, it is stated that the learned counsel for the appellant has relied upon a decision of the Apex Court in Kamaklata Das and Others Vs. Naba Kumar Das an Others 2018 (2) SCC 352 to buttress the submissions that without impleading the proper parties, a decree passed ex-parte is not going to have a binding effect. There can be no quarrel to the aforesaid proposition but as already noticed above, the plaintiff could not establish either in his pleading or by the evidence that how the ex-parte decree affected the plaintiff, hence, the aforesaid case has no applicability.

29. The learned counsel for the appellant has also relied upon a decision of the Apex Court in Manjula and Others Vs. Shyamsundar and Others; (2022) 3 SCC 90 to buttress his submissions that the decision passed by the Lower Appellate Court was bad as it did not comply with the mandatory provisions of Order 41 Rule 31 C.P.C. This aspect has been dealt with in detail by this Court in Dalla Vs. Nanhu 2019 (1) ADJ 246. In light of the aforesaid, the learned counsel for the appellant could not establish or indicate as what prejudice has been caused nor could indicate that which of his submissions were not taken note of by the Lower Appellate Court and thus merely for non-framing the points for determination, it cannot be said that the judgment passed by the Lower Appellate Court is bad in the eyes of law as no prejudice has been demonstrated by the appellants.

30. In view of the aforesaid, the instant second appeal fails. In the facts and circumstances, there shall be no order as to costs. The record of the trial court be returned forthwith.

Order Date :- 09.10. 2023

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