Rajesh Manchandani vs Santram Manchandani
2022 Latest Caselaw 6473 Chatt

                                      1

                                                                    NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR

                      First Appeal No. 554 of 2018

    Rajesh Manchandani S/o Santram Manchandani, R/o Mahamaya
     News Agency, Block Road Takhatpur, Police Station And Tahsil
     Takhatpur, Civil And Revenue District Bilaspur, Chhattisgarh

                                                             ---- Appellant

                                 Versus

  1. Santram Manchandani S/o Natthulal, Caste Sindhi, R/o Block Road
     Takhatpur, Police Station And Tahsil Takhatpur, Civil And Revenue
     District Bilaspur, Chhattisgarh

  2. Smt. Maya Bai W/o Santram Manchanani, Caste Sindhi, R/o Block
     Road Takhatpur, Police Station And Tahsil Takhatpur, Civil And
     Revenue District Bilaspur, Chhattisgarh
                                                  ---- Respondents

For Appellant : Mr. Ratnesh Kumar Agrawal, Advocate For Respondents : Mr. Animesh Verma along with Mr. Ashutosh Shukla, Advocate

Hon'ble Shri Justice P. Sam Koshy Judgement On Board 31.10.2022

1. Since the appeal itself is being taken up for hearing finally, the two

applications; one under Order 41 Rule 27 of CPC and other

application under Order 13 Rule 10 calling for the records from

Income Tax department, are not being pressed and considered at this

stage.

2. The present is a defendant's first appeal under Section 96 of CPC.

The challenge is to the impugned judgment and decree dated

29.09.2018 passed in Civil Suit No. 307-A/2014 by the 8th Additional

District Judge, Bilaspur (CG). Vide the impugned judgment and

decree the trial Court while allowing the suit has ordered for the

defendant to vacate the suit premises occupied by him and give

vacant possession to the plaintiffs.

3. The facts of the case in brief are that both the plaintiffs are the

respondents in the present appeal. The plaintiffs are the registered

owner of two properties; one situates at Khasra No.152/3 measuring

0.09 acre (9 decimals) which stands in the name of plaintiff no.1

Santram Manchandani having purchased by way of a registered sale

deed executed on 23.06.1982 (Ex.P-8). The said property was

purchased by plaintiff No.1 from one Ashaddin S/o Sudin. The

second property situates at Khasra No. 152/6 measuring 0.07 acre (7

decimals) purchased in the name of plaintiff no.2 Smt. Maya Bai vide

registered sale deed executed on 05.10.2011 (Ex.P-9). The said

property was purchased from Hiralal Manchandani, the uncle of

plaintiff no.1.

4. The appellant herein i.e. the defendant before the Court below is the

son of the plaintiffs and he was in occupation of a portion of the

aforementioned two properties. Part of the said properties he was

occupying for residential purposes and other part of the properties he

was using as a shop from where he was operating his business. It is

said that there was some dispute that arose between the plaintiffs and

the defendant which finally led to the plaintiffs filing a suit for

possession.

5. After the plaintiffs filed the suit and notices having been issued, the

defendant entered appearance and denied the claim of the plaintiffs.

In the WS the defendant had taken a categorical stand that the suit

property is not one which is exclusively owned by the plaintiffs alone

and that the defendant has also a share in the said property. The

said property was purchased with the money made available by the

defendant to the plaintiffs at the time of construction on the said suit

properties.

6. Based upon the pleadings particularly taking note of the suit for

possession that the plaintiffs had filed, the Court below framed two

substantial issues both of which was whether the plaintiffs are entitled

for possession of the two portion of the suit properties in occupation

and possession by the defendants. Based upon the evidences which

have come on record the trial Court vide impugned judgment and

decree dated 29.09.2018 allowed the suit and a decree was passed

in favour of the plaintiffs directing the defendant to handover the

peaceful possession of the suit property to the plaintiffs. It is this

judgment which is under challenge in the present first appeal.

7. The contention of the learned counsel for appellant-defendant

assailing the impugned judgment and decree is that the two suit

properties are not self acquired properties of the plaintiffs alone and

that the defendant had also contributed for purchase and construction

of the properties. It is the further contention that the defendant in the

instant case had taken a loan in his wife's name from the Central

Bank of India, Takhatpur Branch and had given the said loan amount

to the plaintiffs for construction of the house in the property which

stands registered in the name of plaintiff no.1 and for purchase of the

property which stands registered in the name of plaintiff no.2. It is the

contention of the appellant that the trial Court while proceeding with

the suit has not framed any issue in this regard enabling the

defendant to lead substantive cogent evidence to establish his

contribution on the purchase and also the construction raised on the

suit property. It is also the contention of the appellant-defendant that

there is no specific denial of these facts by the plaintiffs nor is there

any cross-examination rebutting these facts on the part of the

plaintiffs. Therefore, the impugned judgment and decree passed by

the trial Court cannot be said to be proper, legal and justified.

8. Per contra, learned counsel appearing for the respondents, on the

other hand, submits that it is a case where from the records itself it

would be evident that admittedly a loan was taken by Simran i.e. the

wife of appellant-defendant from the Central Bank of India but it was

the plaintiff no.1 who was made guarantor of the said loan. However,

the loan was taken by the defendant for his purpose and it was never

made available to the plaintiffs nor is there any evidence in this

regard. On the other hand, there was a default by Simran i.e. the wife

of appellant in the repayment of loan and which finally had to be

discharged by the plaintiffs when notice was issued in this regard by

the Bank calling for attachment of the mortgaged property. According

to the plaintiffs, that cannot be a ground which could lead to a

presumption that the loan amount obtained by Simran was for the

purchase of property in the name of plaintiff no.2 or for that matter for

raising of any construction in the suit property. According to the

plaintiffs, since admittedly the defendant was the son of the plaintiffs,

he had a permissive possession, that by itself would not create any

indefeasible right in his favour regarding possession as the property

unless otherwise proved has to be assumed to have been self

acquired property of the plaintiffs themselves.

9. As regards the non-framing of issues etc., the contention of the

plaintiffs is that since the suit was for possession of the said

properties, it was only possession which was the core issue that was

framed and the Court below was not required to test the title or the

other rights of the defendant over the suit property except for the

possession part. It was also the contention of the plaintiffs that the

defendant on the other hand has also not made any claim of title over

the said property nor was there any cross suit filed by the defendant

in respect of any claim and in the absence of which the finding given

by the trial Court cannot be said to be erroneous or contrary to the

evidence.

10. Having heard the contentions put forth on either side and on

perusal of records what is reflected is that the plaintiffs in support of

their contention have examined plaintiff no.1 as the solitary witness

who has proved the two registered sale deeds; one executed in his

name and other executed in his wife's name dated 23.06.82 and

05.10.11 respectively. The defendant, on the other hand, apart from

recording of his evidence, has also got examined one Lalit Kumar

Yadav as DW-1.

11. From perusal of the evidence that has come on record what is

evident is that there is no substantive materials brought on record to

show any monetary contribution made available by the defendant to

the plaintiffs, either for the purchase of two properties or for raising of

construction on both these properties. Further what is also evident is

the fact that the two suit properties were not ancestral properties

which the plaintiffs had inherited from their ancestors but the said

properties were purchased directly by the plaintiffs in their name.

Thus, a strong prima facie case has been made out so far as the

property being a self acquired property of the plaintiffs themselves is

concerned. If the defendant disputes this fact, it is the bounden duty

of the defendant to establish that it was not a self acquired property or

the said property being an ancestral property.

12. The defendant had taken a specific stand that it was not the

plaintiffs alone who had independently purchased or raised

construction in the suit property but there was a contribution made by

him also. In that event also it was the burden upon the defendant to

produce cogent evidence in this regard which too is not available on

record both documentary or oral. Only taking of a loan by the wife of

defendant in August, 2011 by itself cannot be a ground for assuming

or presuming that the amount was taken for making it available to the

plaintiffs as there is no proof available on record to establish this fact

neither has the appellant-defendant been able to produce documents

from the Bank of having obtained loan for the purpose of purchase of

the said property. In the absence of any such material evidence the

contention raised by the appellant would not be acceptable or

sustainable.

13. One of the contentions which the appellant has raised is that

the plaintiff no.2 was not examined so far as the property which

stands in the name of plaintiff no.2 is concerned.

14. The suit had been filed jointly by plaintiff no.1 and plaintiff no.2

who are husband and wife. It was the plaintiff no.1 who was pursuing

the suit all along and it was he who had entered appearance to prove

the two sale deeds executed. There is no factual dispute as regards

the execution of the sale deeds and the seller of the two properties in

the name of plaintiff Nos. 1 & 2 being made. Merely because the

plaintiff no.2 has not been examined by itself would not be a case

fatal enough, when all that the plaintiffs are seeking is the possession

of the said properties.

15. As regards the ground of non-framing of issues, from the

pleadings and the proceedings it also appears that the defendant at

no point of time had made any efforts for framing of any additional

issue. If the defendant wanted, he could have done it during the

proceedings of trial before the trial Court. In a suit for possession,

those issues which the defendant wants to be framed as additional

issues also may not have been of much relevance.

16. For all these reasons, this Court does not find any strong case

made out by the appellant-defendant calling for an interference with

the impugned judgment and decree. The appeal thus fails and is

accordingly rejected.

Sd/-

(P. Sam Koshy) Judge Khatai