Rajasthan High Court - Jodhpur

Chhota Devi vs Lrs Of Shri Manmohan And Ors. ... on 11 September, 2023

Bench: Rekha Borana

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 104/2017

Chhota Devi

----Appellant Versus LRs of Shri Manmohan And Ors.

                                                                    ----Respondents


For Appellant(s)              :    Mr.Bharat Boob.
For Respondent(s)             :    Mr.Harshit Bhurani.



              HON'BLE MS. JUSTICE REKHA BORANA

                                        Order

11/09/2023

1. The present regular first appeal has been preferred against

the judgment and decree dated 12.08.2016 passed by the

Additional District Judge No.5, Jodhpur Metro in Civil Original Suit

No.434/2012 (NCV No.10597/14) whereby in a suit for partition as

preferred by the plaintiffs, learned trial Court proceeded on to

pass preliminary decree for partition.

2. The brief facts of the case are as under:

i. A suit for partition was preferred by one Manmohan S/o

Late Shri Moolkaran against his brother Prem Prakash and

three sisters.

ii. In the said suit, an application under Order 1 Rule 10,

CPC was preferred by Chhota Devi, wife of defendant

No.1-Prem Prakash for impleadment with the submission

that a will was executed by her mother-in-law Radha Devi

in her favour by virtue of which she became the sole

owner of the property in question and therefore, the

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property cannot be partitioned. The said application was

allowed and Chhota Devi was permitted to be impleaded

as defendant No.5 in the suit.

iii. A joint written statement was filed by defendant No.1-

Prem Prakash and his wife Chhota Devi, defendant No.5.

The case of defendant Nos.1 & 5 was that the property

had already been orally partitioned and the residential

house in question had come into the share of defendant

No.1. The partition having already been made, no

partition can now be prayed for.

iv. Written statement on behalf of the other defendants, the

sisters, was filed with the specific submission that they do

not want any share in the property and the property be

partitioned equally between the plaintiff and defendant

No.1. No factum of any oral partition having made was

pleaded by the said defendants.

v. During the suit proceedings, an application was preferred

by the plaintiff with a prayer that the will as placed on

record by defendant No.5-Chhota Devi cannot be read in

evidence and be not taken on record. The said application

as filed by the plaintiff was allowed vide order dated

04.09.2012 by the Court below. Aggrieved of the said

order, a writ petition was preferred before this Court being

S.B. Civil Writ Petition No.13644/2012 which was allowed

vide order dated 11.02.2014 and vide the said order, the

Court below was directed to permit the will to be

exhibited. In pursuance to the said order, the will was

exhibited as Exhibit-A1.

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vi. Although the will was exhibited, the counsel appearing for

defendant-Chhota Devi closed his evidence on the same

date but subsequently, moved an application for

permission to examine certain other witnesses. The said

application under Order 18 Rule 17, CPC was rejected vide

order dated 23.05.2014. Aggrieved against the said

order, a writ petition was again filed by defendant Nos.1 &

5 before this Court being S.B.C.W.P. No.5356/2014 which

was allowed on 18.03.2015. Vide order dated 18.03.2015,

the petitioner was permitted to produce one witness

namely Shanti Devi on the next date itself and it was

made clear that if the witness is not produced on the said

date, the writ petition would be deemed to have been

dismissed.

vii. Admittedly, no witness was examined on behalf of

defendant Nos.1 & 5 on that date.

viii. Ultimately, vide judgment and decree dated 12.08.2016,

the suit was decreed by the Court below holding the

plaintiff to be entitled for partition and further, to get 1/5 th

share in the rent qua the shops in the disputed property.

ix. Aggrieved against the said judgment and decree, a regular

first appeal was preferred jointly by defendant Nos.1 & 5

which was registered as S.B. Civil First Appeal

No.370/2016.

x. Interestingly, on 14.02.2017, Chhota Devi, the present

appellant, being appellant No.2 in the said first appeal,

sought permission to withdraw the appeal with liberty to

assail the impugned judgment and decree appropriately.

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The said permission as sought was granted and appeal

No.370/2016 was dismissed as withdrawn on part of

appellant No.2 with the liberty as prayed for.

xi. After withdrawing the said appeal, Chhota Devi preferred

the present appeal in her independent capacity.

xii. It is relevant to note that after withdrawal of appeal

No.370/2016 by Chhota Devi, she was impleaded as

respondent No.5 in the said appeal.

xiii. The most relevant fact is that while the present appeal

remained pending adjudication, first appeal No.370/2016

has been decided vide judgment/order dated 17.04.2017.

The appeal as preferred by Prem Prakash was dismissed

by the said order.

xiv. The Court, while deciding S.B. Civil First Appeal

No.370/2016, observed as under:

"7. I have considered the contentions.

8. It is specific case of the plaintiff that the property in question is ancestral property which came in hands of their father Moolkaran. Plaintiff has claimed one fifth share in property.

9. The appellant set up a case that after demise of his father, the property was orally partitioned and plaintiff took 35 tola of gold. In his cross-examination he has admitted that he has moved an application Exp-1 which bears his signatures. The appellant stated that the property was orally partitioned in presence of sisters but the sisters have stated nothing with regard to oral partition in their written statements. Appellant/defendant in his cross-

examination has further admitted that 35 tola of gold remained with her mother till her demise

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and that the ornaments and property were partitioned by her mother.

10. The Court below has dealt with the entire evidence and has rightly passed preliminary decree determining the share of each of the parties.

11. The Court has not committed any illegality in passing the impugned preliminary decree since the appellant himself has moved an application that one fifth share be given to the plaintiff and his contention that the property was orally partitioned on 14.01.1975 is contradictory to his own statements, wherein, he has stated that his mother expired in 1989 and the property was partitioned by her.

12. The appeal being devoid of any merits, is dismissed. Stay application also stands disposed of. Record of the Court below be returned forthwith."

3. Learned counsel for the respondents submitted that the

present appeal would now be governed by the order dated

17.04.2017 as, vide the said order, the impugned judgment and

decree has been affirmed. Once the impugned judgment and

decree have been affirmed, no contrary finding qua the said

judgment can now be given by this Court in the present appeal.

Learned counsel submitted that it is the settled proposition of law

that there cannot be two contrary judgments and the present

appeal should therefore be also dismissed in light of the judgment

passed in appeal No.370/2016 which arose out of the same

impugned judgment and decree.

4. In support of his submissions, learned counsel for the

respondents placed reliance on the following judgments:

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i. Narayana Prabhu Venkateswara Prabhu vs. Narayan Prabhu Krishna Prabhu & Ors., 1977 SCC (2) 181

ii. Sheodan Singh vs. Smt. Daryao Kunwar, AIR 1966 SC

5. Per contra, learned counsel for the appellant submitted that

the present appeal cannot be governed by and decided in light of

the judgment dated 17.04.2017 as firstly, appellant Chhota Devi

had withdrawn the earlier appeal with liberty from this Court to

assail the impugned judgment and decree. Once the liberty being

granted, she was entitled to pursue the appeal in her independent

capacity and the same deserves to be heard on merits.

Secondly, the Court below declined to consider the will executed

in her favour on total wrong premise that an order had already

been passed by the Court not to take the said will on record. The

Court totally ignored the fact that the said order was set aside by

this Court in a writ petition preferred by appellant-Chhota Devi

and in pursuance to the order passed by the Writ Court, the will

was very much exhibited and was to be read in evidence. The

total non-consideration of the Court below of the said will gives

indefeasible right to the appellant to be heard on merits as the

said finding of the Court is totally contrary not only to the material

available on record but also to the orders passed by this Court.

Learned counsel submitted that the impugned judgment to that

extent is per se illegal and hence the present appeal deserves to

be decided on its own merits.

6. Heard learned counsel for the parties and perused the

material available on record.

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7. The question which arises before this Court in the facts and

circumstances of the case is: Whether the present appeal can be

decided on merits despite appeal No.370/2016 against the same

impugned judgment and decree having been dismissed?

8. This Court is of the opinion that the present appeal cannot

have a fate different than judgment dated 17.04.2017 whereby

the impugned judgment and decree dated 12.08.2016 has been

affirmed. This Court is of the said opinion for the following

reasons:

i. Present appellant Chhota Devi, after being impleaded in the

suit, filed a join written statement along with defendant

No.1. Meaning thereby, the stand/defence of both defendant

Nos.1 & 5 was same and both of them stood on the same

footing.

ii. In the suit, defendant No.1 Prem Prakash, in his cross-

examination, admitted that he had moved an application

(Exhibit-1) which bears his signatures. Vide the said

application, Prem Prakash admitted that 1/5 th share of the

property be given to the plaintiff. Appellant Chhota Devi,

during the suit proceedings, never raised any objection qua

the said application. Neither in her statements she deposed

anything contrary to the said admission of Prem Prakash nor

did she put any challenge to the said admission of Prem

Prakash in the present appeal. The Court, while deciding

Civil First Appeal No.370/2016, relied upon the said

admission of Prem Prakash and proceeded on to dismiss the

appeal.

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iii. Although Chhota Devi withdrew the said appeal, after

withdrawal as appellant, she was impleaded as party

respondent and after being impleaded as party respondent,

she never raised any objection/cross-objection in the said

appeal. A perusal of the judgment dated 17.04.2017 also

does not show that any objection was raised on behalf of

Chhota Devi during the course of hearing. Meaning thereby,

she would definitely be bound by the judgment dated

17.04.2017.

iv. Chhota Devi would even otherwise be bound by the

judgment dated 17.04.2017 as she was fully aware of the

said appeal and even the counsel representing Prem Prakash

and Chhota Devi was the same. In the present appeal too,

Chhota Devi is represented by the same counsel who

represented Prem Prakash in appeal No.370/2016.

v. Chhota Devi, being well aware of the fact that the present

appeal as filed by her was pending on the date when appeal

No.370/2016 was decided, it was very well open for the

counsel to get the present appeal also tagged with appeal

No.370/2016 and to have got both the appeals decided

together. A perusal of the judgment dated 17.04.2017 does

not reflect that any such fact/information of the present

appeal No.104/2017 having been filed by Chhota Devi or

being pending was even made before the Court on the said

date. Counsel for the appellant, in his presence, let the

judgment dated 17.04.2017 be passed without informing

about the pendency of the present appeal in spite of he

being very well aware of the pendency of the present appeal.

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vi. Admittedly, the present suit was a suit for partition and as is

the settled proposition of law, all the parties to the suit are

plaintiffs and defendants and once a decree for partition has

been passed and has been affirmed by the First Appellate

Court, all the parties to the said decree would definitely be

bound by the same.

vii. It is the settled proposition of law that two inconsistent

decrees cannot exist at the same point of time.

9. In the case of Narayana Prabhu (supra), the Hon'ble Apex

Court held that in a partition suit each party claiming that the

property is joint, asserts a right and litigates under a title which is

common to others who make identical claims. If that very issue is

litigated in another suit and decided we do not see why the others

making the same claim cannot be held to be claiming a right in

common for themselves and others. On basis of the said finding,

the Hon'ble Apex Court proceeded on to dismiss the appeal in the

said matter with the finding that an appeal relating to the same

dispute already having been decided, no inconsistent decrees can

be passed.

10. In the case of Sheodan Singh (supra), the Hon'ble Supreme

Court held as under:

"Our conclusion on the question of res judicata raised in the present appeals is this. (Where the trial court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the

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decision of the appeal court is to confirm the decision of the trial court given on merits, and if that is so, the decision of the appeal court will be resjudicata whatever may be the reason for the dismissal. It would be a different matter, however, where the decision of the appeal court does not result in the confirmation of the decision of the trial court given on the merits, as for example, where the appeal court holds that the trial court had no jurisdiction and dismisses the appeal even though the trial court might have dismissed the suit on the merits.) In this view of the matter, the appeals must fail, for the trial court had in the present case decided all the four suits on the merits including, the decision on the common issues as to title. The result of the dismissal on a preliminary ground of the two appeals arising out of suits Nos. 77 and 91 was that the decision of the trial court was confirmed with respect to the common issues as to title by the High Court. In consequence the decision on those issues became resjudicata so far as appeals Nos. 365 and 366 are concerned and s. 11 of the Code of Civil Procedure would bar the hearing of those common issues over again. It is not in dispute that if the decision on the common issues in suits Nos. 77 and 91 has become res judicata, appeals Nos. 365 and 366 must fail.