First Appeal No. 444/2003. Case: Hafizulla Vs Inder Kumar Jain. High Court of Madhya Pradesh (India)

Case NumberFirst Appeal No. 444/2003
CounselFor Appellant: Party-in-Person and For Respondents: Pranay Verma, Advocate
JudgesRajendra Menon, Actg. C.J. and Anurag Shrivastava, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order II Rule 2; Section 96; Limitation Act, 1963 - Section 27; Madhya Pradesh Accommodation Control Act, 1961 - Sections 12(1), 12(i)(f); Partition Act, 1893 - Section 4; Transfer of Property Act, 1882 - Sections 111(d), 4, 44, 44(2)
Judgement DateFebruary 01, 2017
CourtHigh Court of Madhya Pradesh (India)


Anurag Shrivastava, J.

  1. This appeal under Section 96 of Civil Procedure Code, has been filed by the appellant/plaintiff against the judgment and decree dated 14.07.2003 passed by XVth Additional District Judge, (Fast Track Court) in Civil Suit No. 95-A/2002, whereby the trial Court has dismissed the suit on the ground of maintainability and res judicata.

  2. The appellant/plaintiff's case is that the plaintiff is a co-owner and landlord of house bearing Nos. 667, 667/1 to 667/3 situated at Kotwali ward, Jabalpur known as "Kudarat Manzil" which is a double storied building. This suit house was let out to Sheikhar Chand Jain by registered lease deed dated 01.05.1968 for a period of 10 years @ Rs. 150/- per month rent for non-residential purpose. The plaintiffs had instituted the Civil Suit No. 147-A/1998 against the original tenant Sheikhar Chand Jain for his eviction from suit house on various grounds under Section 12(1) of M.P. Accommodation Control Act. During pendency of the said ejectment suit, during the life time of original tenant Sheikhar Chand Jain, his son Inder Kumar Jain (Defendant) had purchased undivided 1/16 share of the suit house from the co-owner Smt. Sona Bi by registered sale deed dated 20.09.1982. In Civil Suit No. 147-A/1988 the Court vide judgment dated 30.07.1981 found the bonafide need of the plaintiff Hafizulla established, but suit was dismissed on the ground that plaintiff is not absolute owner of the suit house, therefore, the suit is not maintainable. The plaintiff preferred First Appeal and after its dismissal Second Appeal No. 813/1995 was filed before High Court. This Second Appeal was also dismissed vide judgment dated 12.05.1997.

  3. It is further averred by the appellant/plaintiff that the defendant Inder Kumar Jain, after purchasing the share of Smt. Sona Bi vide sale deed dated 20.09.1982 has not acted upon it and did not make a claim for partition and possession of the share of Smt. Sona Bi, in suit house within statutory period of limitation under Article 65 of the Limitation Act. 1963, therefore, the sale deed becomes null and void and ineffective.

  4. It is further averred that the plaintiff being exclusive owner in possession of the suit house filed a Civil Suit No. 196-A/86 against the defendant for declaring the sale deed dated 20.09.1982, which was executed by co-owner Smt. Sona Bi in favour of defendant Inder Kumar Jain, which was dismissed on 23.03.1987 by IV Civil Judge, Class-II, Jabalpur, under Article 59 of the Limitation Act. The plaintiff thereafter filed Civil Appeal No. 42-A/87 before V Additional Judge to the Court of District Judge, Jabalpur which was dismissed on 25.11.1987. The plaintiff prefer Second Appeal No. 48/1988, which was dismissed on 11.04.1988, under facts and circumstances the plaintiff filed SLP (Civil) No. 16178/1990 before the Supreme Court of India against the order of Hon'ble High Court passed in S.A. No. 48/1988, which is still pending before Supreme Court of India. The matter is sub-judice being not finally decided in which cause of action arose on 20.09.1982 and action was taken under Article 59 of the Limitation Act.

  5. The plaintiff filed the present suit for declaration that defendant Inder Kumar Jain being a stranger purchaser whose right have been extinguished by passage of time being not acted upon sale deed in which a right of general partition was given to defendant Inder Kumar Jain within statutory period under Section 27 under Article 65 of the Limitation Act and also for decree of mandatory injunction for eviction of defendant from suit house.

  6. In the written statement the respondent/defendant has denied the averments of the plaint and say that the suit house is not the exclusive property of appellant/plaintiff. In the year 1951 there was partition of the suit house by registered partition deed dated 25.04.1951 in which southern half portion of the house was allocated to Late Shamshuddin and after his death his son Late Jalaluddin became the absolute owner of his share. Jalaluddin later on executed Tamliknama dated 17.04.1974, in favour of his wife Smt. Begum Bi. Similarly the remaining northern half portion of the house came into share of Barkatulla and after his death it devolve upon his wife Smt. Rafikan Bi, sons Hafizulla (plaintiff), Inayatulla and Habibulla and daughter Smt. Sona Bi.

  7. The defendants have not denied the factum of tenancy of Sheikhar Chand Jain, the institution of ejectment suit Civil Suit No. 147-A/1985 and Second Appeal No. 813/1995 and its results. It is further pleaded by the defendant that the they had purchased the southern half portion of suit house, which came in the share of Late Smt. Begum Bi, vide sale deed dated 02.02.1982 executed by Smt. Begum Bi with consent of her husband Jalaluddin and came into possession of this part of house. Later on Hambida Bi, has filed a Civil Suit No. 151-A/1988 challenging the aforesaid sale deed dated 02.02.1982. In this suit 12th ADJ, Jabalpur has dismissed the suit by holding that the sale deed dated 02.02.1982 is valid and defendant absolute owner of southern half portion of suit house. It is further pleaded that, the defendant has purchased the share of Smt. Sona Bi in the northern half portion of the house vide sale deed dated 20.09.1982 and became co-owner of that part of the house also.

  8. As per defendant, he is in possession of the suit house. He has absolute right on half southern part of the house and he is co-owner of the remaining half northern part of the house. Therefore, he cannot be termed as stranger purchaser. Since, he is in possession, therefore, provision of Section 27 and Article 65 of Limitation Act is not applicable. His right will not get extinguished only on the ground of not claiming partition. The judgment and decree in Civil Suit No. 147-A/1985 and Second Appeal No. 813/1995 are binding upon the plaintiff and has effect of res judicata. Therefore, the suit of plaintiff is liable to be dismissed.

  9. The trial Court framed the issue and decided the issues No. 8 and 9 as preliminary issues, which reads as under:-

    "1. Whether plaintiff's suit is not maintainable as barred by principle of res judicata?

  10. Whether the present suit is not maintainable under Order II Rule 2 of CPC in view of previously decided Civil Suit No. 126-A/1986 (Hafizulla v. Inder Kumar Jain)?"

  11. The trial Court has arrived at a finding that the findings recorded in the previously instituted suit No. 147-A/1988 and its Second Appeal No. 813/1995 has effect of res judicata on the present suit. Therefore, the suit is not maintainable. The trial Court by passing impugned judgment dated 14.07.2003 on aforesaid issues dismissed the suit.

  12. It is argued by Shri Hafizulla (appellant) that in Second Appeal No. 813/1995 arising out of eviction Civil Suit No. 147-A/1988, the Hon'ble High Court in a whimsical way dismissed the appeal by holding that the respondent is a co-owner and suit is not maintainable against the co-owner when the finding is not subject matter of the appeal and the sale deed dated 20.09.1982 is itself an illegal deed on the date of its execution and thereafter the appellant filed the instant suit under Section 27 read-with Article 65 of the Limitation Act, 1961.

  13. It is further argued by Shri Hafizulla that after the death of original tenant Shikhar Chand Jain the tenancy right devolved upon his LRs i.e. wife Champa Bai and sons Puran Chand and Inder Kumar Jain (defendants), therefore, there is no merger of tenancy because Inder Kumar Jain had purchased only part of the property. There is no determination of tenancy on the ground of merger. Therefore, status of Inder Kumar Jain remains as tenant and he is liable to be evicted under Section 12(1) of M.P. Accommodation Control Act. The decision in Second Appeal No. 813/1995 is per-in-curium in the light of judgment of Apex Court in Pramod Kumar Jaiswal and others v. Bibi Husnbano AIR 2005 SC 2857. Appellant is in constructive possession being co-owner and landlord of the suit house and the respondent who is stranger purchaser of undivided share of the suit house whose right has been extinguished by passage of time under Section 27 read with Article 65 of Limitation Act.

  14. It is further submitted by Shri Hafizulla that the tenancy was only for ten years. After this period, the possession of tenants becomes unauthorized. Inder Kumar Jain is a stranger purchaser of undivided share of Sona Bi in the suit house. Suit house is dwelling house of undivided family where stranger purchaser cannot be given joint possession with other co-owners. He has also relied upon decision of Apex Court in M.V.S. Manikayala Rao v. M. Narasimhaswani and Others AIR 1966 SC 471. wherein it is observed by the Apex Court that "it is clear that in the absence of a clear acknowledgement of the right of the alienee or participation in the enjoyment of the family property by the alienee, the possession of non-alienating coparceners would be adverse to the alienee, from the date of on which he became entitled to sue for general partition and possession of his alienor's share.

  15. It is further argued by Shri Hafizulla that the suit house is a dwelling house which belongs to undivided family of the plaintiff. Inder Kumar Jain is not the member of family of plaintiff, but a stranger, therefore, he cannot enter into joint possession with members of undivided family. Inviting the attention of this Court towards provisions of Section 44 of Transfer of Property Act, and...

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