Vijay Kumar vs State Of Chhattisgarh
2021 Latest Caselaw 182 Chatt

                                  1

                                                                 NAFR
        HIGH COURT OF CHHATTISGARH AT BILASPUR
                Second Appeal No. 177 of 2003

  1. Vijay Kumar, Aged about 47 years, S/o Lakhanlal.

  2. Vinod Kumar, Aged about 26 years, S/o Lakhanlal.

  3. Chandrabai, Wd/o Lakhanlal (died) through LRs. :­

    (a).     Munni    @     Uma       W/o    Ghanshyam     R/o   New
    Changorabhata,        Near     Ashadeep     School,      Raipur,
    Chhattisgarh.

    (b).     Dharmpal     Kumari       W/o   Kishore      Kesharwani
    Gudiyari,        Ghandhi       Nagar,      Behind       Parsuram
    Dharmshala,      Near   House       of   Prakash     Maheshwari,
    House of Panda Ji Raipur.

                                       ­­­Appellants/Defendants

                                 Versus

  1. State     of     Chhattisgarh,           Through       District
    Magistrate, Bilaspur, Chhattisgarh.

  2. Ashok Kumar, Aged about 37 years, S/o Lakhanlal.

                                             ­­­ Plaintiff No. 1

  3. Dinesh Kumar, Aged about 32 years, S/o Lakhanlal.

                                             ­­­ Plaintiff No. 2

    Both R/o Village Khaprikala, Tahsil Lormi, Distt.
    Bilaspur, Chhattisgarh.

                                                ­­­ Respondents

For Appellants :­ Mr. Rajeev Shrivastava, Senior Advocate with Mr. Chandra Bhushan Kesharwani, Advocate For Respondent 1/State :­ Mr. Ravi Bhagat, Dy. G.A. For Respondents 2 & 3 :­ Mr. Pawan Kesharwani, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board 08/06/2021

1. This second appeal preferred by the

appellants/defendants was admitted for hearing

on 03/04/2019 by formulating the following

substantial question of law :­

"Whether the suit as framed by the Plaintiffs without impleading the other co­parceners by claiming the 1/5th share over the suit property bearing Khasra No. 72/05 admeasuring 3.25 acres could be held to be maintainable by virtue of proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 ?"

[For the sake of convenience, the parties will

hereinafter be referred to as per their status

and ranking given in the plaint before the trial

Court.]

2. Plaintiffs No. 1 and 2 as well as defendants No.

1 and 2 are the sons of Late Shri Lakhanlal

Kesharwani and defendant No. 3 (now deceased)

was the widow of Late Shri Lakhanlal Kesharwani.

The two plaintiffs filed a suit against their

two brothers and mother stating inter alia that

the suit property situated at Village

Khaprikala, Distt. Bilaspur bearing Khasra Nos.

9/5, 9/9, 72/3, 273 admeasuring 3.86 acres and

Khasra No. 72/5 admeasuring 3.25 acres is the

joint family property of plaintiffs as well as

defendants No. 1 to 3 and each one of them is

entitled to get 1/5th share in the said suit

is recorded as the tilte­holder of suit property

bearing Khasra No. 72/5 area 3.25 acres,

therefore, decree for declaration be granted

that all five of them are entitled to get 1/5th

share in the suit property.

3. Resisting the suit, defendants No. 1 to 3 filed

their written statement and admitted the claim

of the plaintiffs that suit property bearing

Khasra Nos. 9/5, 9/9, 72/3, 273 admeasuring 3.86

acres is the joint family property of plaintiffs

and defendants No. 1 to 3, however, they took a

definite stand that suit property bearing Khasra

No. 72/5 admeasuring 3.25 acres fell in the

share of his father's brother namely Jairam

Prasad during partition and since he was

issueless, he gave it to defendant No. 1,

therefore, suit property bearing Khasra No. 72/5

area 3.25 acres is the exclusive property of

defendant No. 1 on which plaintiffs have no

right, title or interest. Moreover, a plea was

also taken by defendants No. 1 to 3 with regard

to the suit being bad for non­joinder of

necessary party by pleading that Rambharos, who

was the brother of Lakhanlal Kesharwani, his

sons and daughters are necessary and proper

party in the suit but they have not been

impleaded, as such, the instant suit is liable

to be dismissed for non­joinder of necessary

party.

4. During the course of the trial, no issue qua

impleadment of legal heirs of Rambharos being

necessary party in the suit was framed and it

was also not pressed by the defendants.

5. Learned trial Court upon appreciation of oral

and documentary evidence on record, dismissed

the suit by its judgment and decree dated

25/07/2001 holding that the suit property

bearing Khasra No. 72/5 admeasuring 3.25 acres

is the exclusive property of defendant No. 1 and

therefore, plaintiffs are not entitled for

decree as claimed by them. Questioning the

judgment and decree passed by the trial Court,

plaintiffs then preferred an appeal under

Section 96 of CPC wherein learned first

appellate Court reversed the judgment and decree

passed by the trial Court by holding that

plaintiffs are also entitled to get 1/5th share

in the suit property bearing Khasra No. 72/5

admeasuring 3.25 acres along with the defendants

and accordingly allowed the appeal and decreed

the suit by its impugned judgment and decree

dated 22/02/2003 against which the instant

appeal under Section 100 of CPC has been

preferred by the appellants/defendants in which

substantial question of law has been formulated

and set out in the opening paragraph of this

judgment.

6. Mr.     Rajeev           Shrivastava,                learned        counsel

  appearing                 on              behalf              of           the

appellants/defendants, would submit that since

the suit property bearing Khasra No. 72/5

admeasuring 3.25 acres was also purchased by

Rambharos vide sale deed dated 23/04/1960 (Ex.

D/1), therefore, his sons and daughters were

also necessary and property party in the suit

and due to want of non­joinder of necessary

party, plaintiffs' suit is liable to be

dismissed. He would rely upon the decision

rendered by the Supreme Court in the matter of

Kanakarathanammal v. V. S. Loganatha Mudaliar 1

to buttress his submission.

7. Per contra, Mr. Pawan Kesharwani, learned

counsel appearing for respondents No. 2 and

3/plaintiffs, would support the impugned

judgment and decree passed by the first

appellate Court.

8. I have heard learned counsel for the parties,

considered their rival submissions made herein­

above and went through the records with utmost

circumspection.

9. Plaintiffs No. 1 and 2 as well as defendants No.

1 and 2, all are brothers being sons of Late

Lakhanlal Kesharwani and defendant No. 3 was his

widow who also died during the pendency of this

appeal. The suit property is in two parts, one

bearing Khasra Nos. 9/5, 9/9, 72/3, 273

admeasuring 3.86 acres in which there is no

dispute as the defendants in paragraphs 2 and 5

of their written statement have admitted the

claim of the plaintiffs that the said suit

property is the joint family property of

plaintiffs as well as defendants No. 1 to 3. The

dispute is with regard to the second part of the

1 AIR 1965 SC 271

suit property bearing Khasra No. 72/5

admeasuring 3.25 acres in which plaintiffs claim

that it is the joint family property of

plaintiffs as well as defendants and each of

them is entitled for 1/5th share whereas

defendants have set up a defence that since the

said suit property fell in the share of

plaintiffs and defendants No. 1 and 2's uncle

namely Jairam Prasad in partition and since he

was issueless, he has given it to defendant No.

1, therefore, it is the exclusive property of

defendant No. 1, which learned trial Court

accepted and dismissed the suit, but the first

appellate Court reversed the judgment and decree

of the trial Court and held that the said suit

property is not the exclusive property of

defendant No. 1 rather it is the joint family

property of the parties herein. The said finding

recorded by the first appellate Court that suit

property bearing Khasra No. 72/5 admeasuring

3.25 acres is the joint family property of the

parties has not been questioned by the

appellants/defendants in the instant appeal and

it has thus attained finality.

10. Now, the only substantial question of law that

remains for determination is whether the suit is

bad for want of non­impleadment of legal heirs

of Rambharos as a party/defendant ?

11. It is the stand of the plaintiffs that suit

property bearing Khasra No. 72/5 area 3.25 acres

is held by the plaintiffs as well as defendants

jointly whereas defendants took up a plea that

the said suit property is the exclusive property

of defendant No. 1 which he has received from

his uncle Jairam Prasad as he was issueless.

Admittedly, it is not the case of the defendants

that the sons and daughters of Rambharos have

any share in the suit property at present. In

fact, it is not the case of either of the

parties that the sons and daughters of Rambharos

had any semblance of right, title or interest in

the suit property bearing Khasra No. 72/5 area

3.25 acres, therefore, the sons and daughters of

Rambharos are neither necessary nor proper party

in the suit on the own showing of the defendants

also. This fact is further corroborated as

though the first appellate Court has recorded

the finding that the suit property bearing

Khasra No. 72/5 area 3.25 acres is the joint

family property of the parties, yet that finding

has not been called in question by the

defendants in the instant appeal. Therefore, it

is held that the sons and daughters of Rambharos

are neither necessary nor proper party in the

suit and consequently, proviso to Order 1 Rule 9

of the Code of Civil Procedure, 1908 would not

attract.

12. Likewise, though defendant No. 1 raised the plea

that sons and daughters of Rambharos are

necessary parties and due to their

non­impleadment as party/defendant, plaintiffs'

suit is bad and is liable to be dismissed, but

it was not pressed before the trial Court either

at the time of framing of issues or at the time

of final hearing. Even thereafter, when the suit

was dismissed and the first appeal was preferred

by the plaintiffs, while defending the first

appeal, defendants then too did not file any

cross­objection stating that the suit is also

liable to be dismissed for want of

non­impleadment of sons and daughters of

Rambharos who are necessary and proper parties

in the suit. As such, the defendants though

raised the plea of non­joinder of necessary

party in the suit, but they did not press it by

inviting the attention of the Court to frame an

issue in this regard and they further did not

press it at the time of final hearing. The

defendants took a well­calculated chance by not

pressing the plea so raised by them before the

two courts below and only when the first appeal

was decided against them, then without

questioning the main finding recorded by the

first appellate Court that the suit property is

the joint family property of the parties and

plaintiffs along with defendants are entitled to

get 1/5th share each, the defendants have only

raised the plea that the suit is bad for

non­impleadment of necessary party, specially

when in fact, the sons and daughters of

Rambharos are neither necessary nor proper party

in the suit.

13. As a fallout and consequence of the aforesaid

discussion, it is held that plaintiffs' suit, as

framed and filed, is not bad for non­joinder of

necessary party and the first appellate Court is

absolutely justified in granting the appeal

preferred by the plaintiffs. I do not find any

merit in the instant appeal.

14. The second appeal, being devoid of merits,

deserves to be and is accordingly dismissed. In

view of that, all the pending applications, if

any, are finally disposed of. No cost(s).

15. Decree be drawn­up accordingly.

Sd/­ (Sanjay K. Agrawal) Judge

Harneet