Second Appeal No. 935 of 1995. Case: Kunj Bihari and Others Vs Ganga Sahai Pandey and Others. High Court of Allahabad (India)
| Case Number | Second Appeal No. 935 of 1995 |
| Counsel | For Appellant: R.B. Tripathi, R.P. Goyal, S.K. Misra and Vivek Kumar Singh, Advs. and For Respondents: S.M. Misra, A.K. Agarwal, C.K. Parikh, Haroon Ahmad, S.C. Jaiswal, Satyendra Kumar Singh and Sharfuddin Ahmad, Advs. |
| Judges | Sudhir Agarwal, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order X Rule 2; Order XLI Rules 11, 31; Section 100; Indian Partnership Act, 1932 - Sections 4, 5 |
| Citation | 2013 (8) ADJ 97 |
| Judgement Date | July 03, 2013 |
| Court | High Court of Allahabad (India) |
Judgment:
Sudhir Agarwal, J.
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This is plaintiffs' appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as "CPC"). Original Suit No. 7 of 1965 was instituted by plaintiffs i.e. Kunj Bihari Agarwal and 14 others, impleading defendants No. 1 and 2(first set), defendants No. 3 to 9 (second set), defendants No. 10 to 21 (third set); and defendant No. 22 (fourth set). This Court while hearing appeal under Order 41, Rule 11 C.P.C. by its order dated 15.9.1995, formulated following substantial question of law:
Whether in the facts and circumstances of the case there was a presumption of jointness and the burden was on the defendants that H.U.F. had disrupted and whether the lower appellate Court has mis-placed the burden?
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Sri B.P. Singh, learned Senior Advocate assisted by Sri Vivek Kumar Singh, Advocate has advanced submissions on behalf of plaintiff-appellants (hereinafter referred to as "appellants") while Sri Satyendra Kumar Singh, Advocate has advanced submissions on behalf of defendant-respondents (hereinafter referred to as "respondents").
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After hearing the parties I find three more substantial questions of law arising in this appeal which also need be considered:
ii. Whether the suit in question was barred by limitation?
iii. Whether Lower Appellate Court (hereinafter referred to as "LAC") has failed to comply requirement of Order 41, Rule 31 C.P.C. and reversed findings of Trial Court (hereinafter referred to as "TC") without meeting or considering the reasons given by TC?
iv. Whether a "Firm" and "Hindu Undivided Family" (hereinafter referred to as "HUF") are one and the same thing or different units?
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In the original suit there had been impleaded, 15 plaintiffs and 22 defendants. Pedigree of the family is given in para. 1 of the plaint which commenced from Jagan Ram, who had two sons, Bhagwan Dass and Laxmi Narain. Both the sons of Jagan Ram had four sons each. The sons of Bhagwan Dass were Sita Ram, Mathura Prasad, Madan Lal and Banshi Dhar, while that of Laxmi Narain were Jamuna Prasad, Govind Ram, Hari Prasad and Baijnath.
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The plaintiff No. 4 comes from the branch of Sita Ram, being the only son but himself had six sons namely, Vishwanath Prasad (plaintiff 5), Mahavir Prasad (plaintiff 6), Krishna Murari (plaintiff 7), Anand Kumar (plaintiff 8), Kunj Bihari (plaintiff 1) and Shyam Bihari. Sita Ram's brother Mathura Prasad had four sons namely Parmeshwar Prasad, Ratan Prasad (plaintiff 3), Satya Narain and Kailash Prasad. Parmeshwar Prasad had two sons namely Jai Prakash (plaintiff 11) and Vinod Kumar (plaintiff 12). Similarly Ratan Prasad also had two sons namely Jagdish (plaintiff 13) and Satish. The third son Satya Narain of Mathura Prasad had three sons namely Bal Mukund, Kashi Prasad and Rajeev Lochan.
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The other plaintiffs are the descendent of Banshi Dhar, inasmuch as Banshi Dhar had two sons namely Ram Avtar and Sarvan Prasad (plaintiff 10). Ram Avtar had four sons namely Santosh Kumar (plaintiff 14), Arun Kumar (plaintiff 15), Bal Mukund and Geema. In the same manner, some of the defendants also belong to the same family tree descending from its route namely Jagan Ram.
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Defendants No. 3 to 9 (second set) and defendants 10 to 21 (third set) are descendants of Bhagwan Dass and Laxmi Narain.
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The plaint case set up is that plaintiffs alongwith defendants (third set) were members of Joint Hindu family and there was joint family business in the name of M/s. Bhagwan Das Laxmi Narain. The property was acquired from joint family funds and therefore, sale-deeds, dated 26.12.1954, executed by Sri Laxmi Narain, his sons and the sons of Bhagwan Das; and that dated 30.12.1954, are fictitious and forged. Decree in suit under Section 59 /61 of U.P. Tenancy Act, was obtained without jurisdiction as the property included house property also. It was also pleaded that property in dispute was an agricultural land, originally, acquired by Laxmi Narain and Bhagwan Dass, under a Patta Istmarari, from erstwhile Zamindars, having right of transfer. With the passage of time, the land acquired nature of a grove.
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Laxmi Narain and Bhagwan Das were real brothers. The defendants, (second and third set), were to be benefited by suit and therefore they did not contest. The defendants (first and fourth set), filed their separate written statements, contesting suit and denying plaint assertions. It was denied that defendants, (second and third set), constituted Joint family. They were separate. Plaintiffs were also not coparcener, having no joint interest and therefore have no right to challenge the sale-deeds. The disputed property did not belong to firm M/s. Bhagwan Das Laxmi Narain, and, plaintiffs had no share therein. There are other averments also which I shall discuss at appropriate stage.
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The TC formulated 24 issues. For the purposes of present appeal, relevant issues are 1, 2(a) and 2(b) which read as under:
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Whether the branches of Bhagwan Dass and Lachmi Narain separated in the year 1953?
2-(a) Whether plot No. 455 situate in Babhni and plot No. 405 in village Pindra were acquired by Bhagwan Dass and Lachmi Narain with their joint family assets as their joint Hindu family property and the same became their joint Hindu family property?
(b) Whether the aforesaid plots were acquired by Bhagwan Dass and Lachmi Narain as cotenants and it became their personal property?
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Issues No. 1, 2, 2(a) and 2(b) were decided by TC in negative, i.e., in favour of plaintiffs. The suit was consequently decreed in part, vide judgment and order dated 31.5.1983. The TC read the instrument dated 26.12.1954 as a mortgage deed and not a sale-deed and, therefore directed defendants 1 and 2, for its redemption, in favour of plaintiffs and defendants (second and third set), and thereafter said that instrument dated 26.12.1954 would stand cancelled. No relief was granted against defendant No. 22.
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Aggrieved thereto, two appeals were filed, one by plaintiffs, being Civil appeal No. 65 of 1992 and another by aggrieved defendants, being civil appeal No. 66 of 1992.
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The LAC, i.e., IIIrd Additional District Judge, Deoria vide judgment and decree dated 31st July, 1995 dismissed plaintiffs appeal No. 65 of 1992 and allowed defendants' appeal No. 66 of 1992. As a result thereof, TC's judgment dated 31.5.1983 was set aside and plaintiffs' suit stood dismissed.
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Learned Senior Advocate drew my attention to averments made in paras. 2 and 3 of the plaint, stating that it was specifically pleaded that plaintiffs and defendants, (second and third set), were members of Joint Hindu Family and during that period, besides other property, the one mentioned in para. 2 was also acquired by joint family. The disputed property, therefore, is the property of joint family and was acquired/possessed from the funds available from joint family. It had also pleaded in para. 4 of the plaint that plaintiffs and defendants, (second and third set), were having ancestral joint family firm in the name and title of M/s. Bhagwan Das Laxmi Narain, running business at Deoria and in the aforesaid firm and property, defendant, (second and third set), had common legal rights. These facts were disputed by contesting defendants.
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The TC framed issues No. 1, 2(a) and 2(b), as noted above. It held that burden to prove issue No. 1 lie upon plaintiffs. In this regard statements of counsels of both the parties under Order 10 Rule 2 C.P.C. were recorded. On paper No. 92Ka/2 and 93/2 the plaintiffs' counsel said that there was no separation between Bhagwan Das and Laxmi Narain in 1953. The counsel for defendants No. 1 and 2 and that of defendants (4th set) stated on 19.11.1965 that property in dispute was acquired by Bhagwan Dass and Laxmi Narain as their individual private property, though both were members of Joint Hindu Family at that time. He also relied on a decision of Civil Judge, Deoria in O.S. No. 17 of 1957, Allahabad Bank v. Banshi Dhar and others (Exhibit 13) and said that it is evident from the aforesaid judgment that both branches constituted a joint family and they were members thereof, which status continued till 1959. This fact he found corroborated from another judgment (Ex 14) in Case No. 3687 of 1958 (Gulab Singh and others v. Mathura Prasad and others). In view thereof and also observing that defendants No. 1 and 2 did not adduce any evidence to show that both the branches separated in 1953, decided issue No. 1 in negative, i.e. in favour of plaintiffs.
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Though from certified copy of judgment it is not discernible that issue No. 2 was formulated separately but TC has considered issue No. 2 separately holding that burden to prove thereof lie...
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