Idol Radha Krishna Virajman ... vs Sejumal & Ors.
2022 Latest Caselaw 8611 MP

               IN THE HIGH COURT OF MADHYA PRADESH
                            AT JABALPUR

                                  BEFORE
                    SHRI JUSTICE DWARKA DHISH BANSAL

                          ON THE 29th OF JUNE, 2022

                        FIRST APPEAL NO. 444 of 1996




BETWEEN:-

      IDOL RADHAKRISHANA VIRAJMAN
      TEMPLE,      AZAD       CHOWK,
      GORAKHPUR, JABALPUR THROUGH
      NEXT FRIEND PREETAM CHAND
      JAIN, AGED ABOUT 55 YEARS, S/O
      LATE SHRI NIHAL CHAND JAIN, R/O
      599, GORAKHPUR, JABALPUR


                                                       ........ APPELLANT
(BY SHRI DIVESH JAIN-ADVOCATE)


AND


1.    SEJUMAL (DEAD) BY LRS:
(A)   SMT. RAJNEE @ RANI WD/O          LATE
      SEJUMAL, AGED ABOUT 60 YEARS
(B)   NARESH S/O LATE     SEJUMAL,    AGED
      ABOUT 26 YEARS,
(C)   GIRISH S/O LATE SEJUMAL, AGED ABOUT
      24 YEARS,
(D)   SMT. SWEETI ALIAS REKHA, W/O VINOD,
      D/O LATE SEJUMAL, AGED 22 YEARS,
      ALL R/O 1359/1360, AZAD       CHOWK,
      GORAKHPUR, JABALPUR, M.P.


1
 2.    SMT. CHINNABAI WIFE OF GYANILAL
      PATEL, AGED 37 YEARS, RESIDENT OF
      ANIA HINOTA, DISTRICT JABALPUR.
3.    CHANDOBAI, WIFE OF RAM PRASAD,
      AGED 39 YEARS, RESIDENT OF BILPURA,
      TEHSIL AND DISTRICT JABALPUR
4.    HUKUM CHAND SON OF NANHI, AGED 40
      YEARS, RESIDENT OF LODHI MOHALLA,
      JABALPUR.
5.    DELETED
6.    SMT. SUNDARBAI, WIFE OF RAMLAL
      AGED 40 YEARS, RESIDENT OF AZAD
      CHOWK, JABALPUR.
7.    DELETED
8.    PRABHU, SON OF LOKMAN, AGED 35
      YEARS, RESIDENT OF AZAD CHOWK,
      JABALPUR.
9.    SUMMER SON OF GAYA PRASAD, AGED 40
      YEARS, RESIDENT OF AZAD CHOWK,
      JABALPUR.
10.   DELETED.
11.   DELETED.
12.   CHAMANLAL SON OF TULARAM KORI,
      AGED 37 YEARS, RESIDENT OF AZAD
      CHOWK, JABALPUR.
13.   SHEO PRASAD, SON OF ROSHANLAL
      JHARIYA, AGED 25 YEARS, RESIDENT OF
      AZAD        CHOWK,      GORAKHPUR,
      JABALPUR.
14.   DELETED.
15.   PARSANRAJ, SON   OF SURAN KARAN,
      AGED 28 YEARS.
16.   MADAN SINGH (DEAD) BY LR:
      SMT. BEENA BAI THAKUR, D/O SHRI
      MADAN SINGH, W/O RAJENDRA SINGH,
      AGED 35 YEARS, R/O 1208, LODHI
      MOHALLA, GORAKHPUR, JABALPUR


2
                                                         ........RESPONDENTS
(SHRI SANJAY SARWATE-ADVOCATE FOR LRs OF
RESPONDENT-1)


      This appeal coming on for hearing this day, the court passed the following:

                                   JUDGMENT

This First Appeal has been filed by the plaintiff/appellant challenging the

judgment and decree dated 31.07.1996 passed by IX th Additional Judge to the

Court of District Judge, Jabalpur in Civil Suit No.64-A/95 whereby learned court

below has dismissed the suit filed for declaration of title and permanent injunction

with regard to the property bearing No.1359 and 1360 situate at Azad Chowk,

Gorakhpur, Jabalpur.

2. In short the facts are that, plaintiff is deity Radha-Krishana Virajman

Temple, originally represented by Sarbarahkar Jethu. It is alleged that the property

in question belonged to Lt. Hulasi, who died in the year 1947 and his wife

Nanhibai died in the year 1951, who got constructed the temple Shri Radha-

Krishana which was succeeded by Jiyalal, who was taking care of the temple in

question. Jiyalal executed a will on 15.02.1970 (registered on 16.02.1970)

whereby the property was given to his daughters Chinnabai, Chandobai, nephew

Hukum Chand and adopted son Chottelal with some rider made in the will and it

was clearly mentioned that the aforesaid persons shall not alienate the property in

any manner. It is alleged that after death of Jiyalal on 27.03.1970, Sarbarahkar

Jethu is taking care of the temple but the defendants 2 - 3 Smt. Chinnabai and

Chandobai have illegally sold the property bearing No.1359 and 1360 on

08.06.1983 to the defendant 1 along with temple in question and similarly,

defendant 4 has sold the property in the year 1985. It is alleged that the

plaintiff/temple is owner and in possession of property No.1359 and 1360 but the

defendant 1 is trying to take forcible possession. With the aforesaid allegations the

suit was filed for declaration of title and permanent injunction.

3. The defendant/respondent 1 appeared and filed written statement denying

the plaint allegations. He admitted existence of temple in the property No.1360,

but contended that Jiyalal had no right to execute the will. He contended that after

death of Hulasi the property came in the hands of Jiyalal and Nanhibai and

thereafter came in the ownership of Chinnabai, Chandobai and Hukumchand, who

sold it to defendant 1-Sejumal, who is in possession of the disputed property. The

defendant 1 further contended that the plaintiff has no locus standi to file the suit

and without claiming relief of possession the suit is not maintainable and is also

barred by limitation. Accordingly prayed for dismissal of the suit.

4. Remaining defendants did not file written statement and were proceeded ex-

parte.

5. On the basis of pleadings made by the rival parties, learned trial court

framed as many as four issues and certainly without taking into consideration

entire oral and documentary evidence, passed the impugned judgment and decree,

dismissing the suit.

6. Learned counsel for the plaintiff/appellant submits that undisputedly Jiyalal

was owner of the property in question, who executed will (Ex.P-1) in favour of her

daughters, nephew and adopted son. Learned counsel submits that learned trial

court has found the suit within limitation but without considering the evidence

available on record with regard to possession of the plaintiff/temple over the

property in question held that the plaintiff is out of possession and dismissed the

suit for want of relief of possession. Learned counsel submits that in view of the

fact that the plaintiff is in possession of the property, he was not required to seek

relief of possession. Learned counsel further submits that undisputedly Jiyalal was

owner of the property in question and the defendants 2 - 4 succeeded the property

from Jiyalal or on the basis of his will (Ex.P-1), therefore, the plaintiff was not

required to prove the title of Jiyalal and the will (Ex.P-1) being an admitted

document the rights of the parties ought to have been considered strictly on the

basis of will (Ex.P-1). Accordingly, the learned counsel prays for allowing the

appeal with the prayer to decree the suit.

7. Learned counsel for the respondent/defendant 1 supported the impugned

judgment and decree and submits that there is no illegality in passing of the

judgment and decree and in dismissing the suit by learned trial court. Learned

counsel further submits that the plaintiff has no locus standi to file the suit and the

will in question is not a proved document, therefore, defendants 2 - 4 being heirs

have succeeded the property and in absence of proof of will, nothing can be said in

favour of the plaintiff. He further submits that in absence of relief of possession

the suit has rightly been dismissed by learned court below. Accordingly he prayed

for dismissal of the appeal. However he concedes that the impugned judgment is

not reasoned and speaking.

8. Heard learned counsel for the parties and perused the record.

9. From bare perusal of the judgment and decree passed by learned court

below, it is clear that it has not considered the oral and documentary evidence

adduced by the parties to the suit which is available on record as Jethu (PW-1),

Heeralal (PW-2), Sumel Prasad (PW-3), Madan Singh (PW-4), Sejumal Khatwani

(DW-1), Chinnabai (DW-2), Ramkishore (DW-3), Ex.P-1 to P-7 and Ex. D-1 to D-

5. It is also clear that learned court below has decided all the issues even without

discussing any evidence, relevant for deciding the issues framed by learned court

below. While deciding the issue No.4 with regard to maintainability of the suit for

want of relief of possession, learned court below has not even considered the

evidence of defendant 1-Sejumal Khatwani (DW-1), who in para 4 has admitted

existence of temple on the property in question, which was required to be

considered at the time of deciding the question of possession of the plaintiff over

the land in question because deity Radha-Krishna Virajman Temple itself is the

plaintiff and its continuous existence is not in dispute.

10. In view of the aforesaid it is clear that learned trial court has failed to

exercise jurisdiction conferred upon it under Order 20 Rule 4(1) (2) and 5 of CPC,

which is reproduced as under :

4. Judgments of Small Cause Courts.-(1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.

(2) Judgments of other Courts.- Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.

5. Court to state its decision on each issue- In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.

11. The Hon'ble Apex Court in the case of Sudarsan Puhan Vs. Jayanta Ku.

Mohanty and others reported in (2018) 10 SCC 552 and in Chintaman Namdev

Patil (dead) vs. Sukhdev Namdev Patil and Others (2016) 1 SCC 681 after

having considered the provisions of Order 20 Rule 4(2), 5 and Order 41 Rule 31

CPC, held that first appellate court is duty bound to deal with all the issues and the

evidence led by the parties before recording its findings.

12. Upon following the aforesaid legal position it is crystal clear that when

appellate court is required to consider the entire evidence led by the parties, then

the trial court can not escape from the liability of considering entire oral and

documentary evidence before recording findings on the issues. In the case of

Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors.

reported in (2010) 9 SCC 496 Hon'ble Apex Court has held that the reasons are

heart beats of the order.

13. In view of the aforesaid, the judgment and decree passed by learned trial

court being without discussion of evidence, is not an order in the eye of law and

deserves to be and is hereby set aside and this Court thinks appropriate to remand

the case to the trial court/concerned District Judge to pass the judgment afresh

after taking into consideration the entire material available on record.

14. It is also apparent from the record that the will (Ex.P-1), which is an

admitted document, is not on record in original but a certified copy of it, is

available on record, which according to the counsel for the plaintiff/appellant does

not mention correct property numbers, therefore, it will be appropriate for the

parties to produce the original will on record, and in case it is not produced by any

of the parties to the suit, learned court below may call for record from the office of

Sub-Registrar.

15. If the plaintiff or defendant 1 wants to adduce any oral or documentary

evidence, they are free to adduce the same and for that purpose the learned trial

court shall afford maximum three opportunities to them and if any of the parties to

the suit fails to adduce such evidence within stipulated period, the trial court shall

proceed further on the basis of oral and documentary evidence already available

on record.

16. It is made clear that during the suit before the court below, only the plaintiff

and defendant 1 appeared and no other defendants appeared or contested the suit

and before this Court also only the plaintiff and defendant 1 are present, therefore,

it is not necessary for the court below to issue notice to any of the other

defendants.

17. With a view to preserve the property, this Court vide order dated 14.10.1996

passed following interim order :

"Pending hearing of appeal, the respondent No.1 is restrained from taking

possession of the property by expelling the tenants either himself or through any

one and demolish the house."

18. As such it is directed that till the pendency of matter before trial court,

respondent 1, now his LRs shall abide by the order passed by this Court on

14.10.1996 and both the parties shall maintain status-quo till final decision of suit

in question.

19. As the suit is of the year 1987, therefore learned trial court is expected to

decide the suit and pass the judgment afresh within a period of one year from the

date of receipt of the record. However it is made clear that having formed an

opinion to remand the case, this Court has not applied its mind to the merits of the

issues involved in the case, and the court below would decide the suit

uninfluenced by any of the observations made hereinabove.

20. The plaintiff and defendant 1 shall remain present before the trial court on

18.07.2022.

21. With the aforesaid observations the First Appeal is allowed in part and

disposed of.

(DWARKA DHISH BANSAL) JUDGE

SS

Digitally signed by SWETA SAHU Date: 2022.07.02 11:24:14 +05'30'