Bombay High Court
Jugalkishor Sidtaram Mahajan vs Gangadhar Fakira Askar And ... on 22 September, 2017
Bench: A.S. Chandurkar
J-SA-344-06 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.344 OF 2006
Jugalkishor s/o Sidtaram Mahajan
aged about 74 years,
Occ. Cultivation, R/o New Sumthana,
Tah. Bhadrawati, Dist. Chandrapur ... Appellant.
-vs-
1. Gangadhar s/o Fakira Askar
aged about 63 years, Occ. Labourer,
R/o New Sumthana, Tahsil. Bhadrawati,
Dist. Chandrapur.
2. Gowardhan s/o Gangadhar Askar
Since deceased :
2(a) Sangita wd/o Gowardhan Askar,
Aged about 35 years,
2(b) Dinesh s/o Gowardhan Askar,
Aged about 12 years,
2(c) Vaishali d/o Gowardhan Askar,
Aged about 10 years,
2(d) Pranali d/o Gowardhan Askar,
Aged about 9 years,
No.2(b) to 2(d) are minor in age and
Therefore represented by their legal guardian
mother Sangita wd/o Gowardhan Askar
All are residents of New Sumthana,
Tq. Bhadravati, Dist. Chandrapur. ... Respondents.
Shri S. V. Sohoni, Advocate for appellant.
Respondents served.
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CORAM : A. S. CHANDURKAR, J.
DATE : September 22, 2017
Oral Judgment :
The appellant is the original plaintiff who had filed suit for
declaration that he was the owner of house property No.159 which he
claimed to have been purchased as per sale deed dated 21/04/1988.
According to plaintiff, the defendant No.1 executed this sale deed and
delivered possession to him. Thereafter the plaintiff renovated the suit house
by spending considerable amounts. On 10/08/1988 the defendant No.1
along with his son took forcible possession of the suit premises. Hence he
filed suit for possession of the suit property based on his title.
2. According to defendants it was pleaded that the defendant No.1
did not execute any sale deed in favour of the plaintiff. The said document
was executed by way of security for the loan that was obtained by defendant
No.1. It was then pleaded that it was defendant No.2 who was the owner of
the suit property and therefore the plaintiff had no title in his favour.
3. The trial Court decreed the suit by holding that the plaintiff had
become the owner of the suit property as per the sale deed dated
21/04/1988. By judgment dated 04/01/2002, the suit was decreed and both
the defendants were directed to hand over possession.
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4. The defendants being aggrieved filed an appeal. The appellate
Court by its judgment dated 18/10/2005 allowed the said appeal and held
that the sale deed that was relied upon by the plaintiff did not confer any
title on him. Hence the judgment of the trial Court was set aside and the suit
was dismissed.
5. The following substantial questions of law were framed while
admitting the appeal :
(1) Whether a decree in first appeal No.9/02 could be said to be
decree against the dead person namely Gowardhan, who was
defendant No.2 in the suit ?
(2) Had the appeal as a whole therefore abated ?
(3) Whether the appreciation of the evidence of first appellate
Court with regard to delivery of possession to the plaintiff was
perverse ?
(4) Whether it was necessary to seek relief of rectification of the
document ?
6. Shri S. V. Sohoni, learned counsel for the appellant-plaintiff
submitted that the original defendant No.2 had expired on 15/05/2005.
Without his legal heirs being brought on record, the appeal was prosecuted
and the same was ultimately decided on 18/10/2005. According to him, the
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decree for possession was passed against both the defendants and was
therefore inseparable in nature. As a result of the death of defendant No.2,
the appeal filed on his behalf abated as a whole inasmuch as his legal heirs
were not brought on record. The decree of the appellate Court therefore
having been passed in favour of a dead person, the same was liable to be set
aside. In support of his submissions, the learned counsel placed reliance on
the decisions in Sardar Amarjit Singh Kalra and Ors. vs. Pramod Gupta
and ors. AIR 2003 SC 2588, Shahzada Bi and ors. vs. Halimabi AIR 2004
SC 3942 and Kishun alias Ram Kishum (dead) Thr. L.R.s vs. Bihari (D) by
L.Rs. AIR 2005 SC 3799. Moreover, the judgment of the trial Court having
attained finality against said defendant No.2, permitting the judgment of the
first appellate Court to remain in the field would result in operation of
inconsistent decrees.
7. There was no appearance on behalf of the respondents on
21/09/2017. Today also there is no appearance on behalf of the
respondents. With the assistance of learned counsel for the appellant I have
perused the records of the case and I have also given due consideration to his
submissions.
As to substantial question of law Nos.1 and 2 :
The plaintiff had filed the suit for possession based on title by
relying upon sale deed dated 21/04/1988. According to him, he was put in
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possession and he was subsequently dispossessed by the defendants.
According to defendant No.1, the owner of the suit property was defendant
No.2 and therefore the plaintiff did not get title to the suit property. The
trial Court after considering the evidence on record decreed the suit by
upholding the plaintiff's title. Both the defendants were directed to deliver
vacant possession of the suit property by restoring the suit property to its
original condition as on the date of filing of the suit. Both defendants
challenged this decree and it is not in dispute that during pendency of that
appeal, the defendant No.2 expired. His legal heirs were not brought on
record. The appeal was ultimately allowed on 18/10/2005 and the suit
came to be dismissed.
8. If the nature of decree passed by the trial Court is examined, it
requires both defendants to hand over possession of the suit property to the
plaintiff. This decree is therefore joint and indivisible in nature. This decree
cannot be separated into different parts. In Sardar Amarjit Singh Kalra
(supra), it was held by the Honourable Supreme Court that when a decree of
such nature is passed and the legal heirs of one of the parties are not brought
on record, the same is fatal for the entire appeal which is required to be thus
dismissed. Permitting such decree to operate would result in an inconsistent
or contrary decrees being passed. Similar issue has been considered in the
subsequent decision in Shahazada Bi and ors. (supra).
J-SA-344-06 6/7
9. Thus in view of the aforesaid legal position it is clear that in view
of the nature of decree that was passed by the trial Court, the same is joint
and inseparable in nature. As a result of abatement of the appeal against
appellant No.2, the decree for possession has become final against said party
who was defendant No.2 before the trial Court. Permitting the judgment of
the appellate Court to exist would result in inconsistent decrees being passed
inasmuch as said decree of the appellate Court proceeds to dismiss the suit
while the earlier decree that has become final against defendant No.2
directed him to hand over possession to the plaintiff. Hence following the
ratio of the aforesaid decisions, it will have to be held that the decree in
R.C.A. No.9/2002 was in favour of a dead person. Considering nature of the
decree for possession, the appeal as a whole abated as the legal heirs of
appellant No.2 were not brought on record. The substantial question of law
Nos.1 and 2 are answered accordingly.
10. As a result of the answer given to substantial question of law
Nos.1 and 2, adjudication of question Nos.3 and 4 is not warranted as the
same have become academic in nature.
As a result, the judgment dated 18/10/2005 in R.C.A.No.9/2002
is set aside on the ground that it has been passed in an appeal that had
abated against appellant No.2. As the decree was joint and inseparable, the
decree of the appellate Court cannot be sustained. Needless to observe that
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it is open for the legal heirs of defendant No.2 to take appropriate steps for
having the abatement set aside.
The second appeal is allowed in aforesaid terms with no order as
to costs.
Pending civil applications do not survive and are disposed of
accordingly.
JUDGE
Asmita
