{"id":74229,"date":"2004-08-11T00:00:00","date_gmt":"2004-08-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chandra-bhal-misra-and-ors-vs-shankar-saran-misra-and-ors-on-11-august-2004"},"modified":"2017-02-17T13:39:17","modified_gmt":"2017-02-17T08:09:17","slug":"chandra-bhal-misra-and-ors-vs-shankar-saran-misra-and-ors-on-11-august-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chandra-bhal-misra-and-ors-vs-shankar-saran-misra-and-ors-on-11-august-2004","title":{"rendered":"Chandra Bhal Misra And Ors. vs Shankar Saran Misra And Ors. on 11 August, 2004"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Chandra Bhal Misra And Ors. vs Shankar Saran Misra And Ors. on 11 August, 2004<\/div>\n
Equivalent citations: 2005 (2) AWC 1893<\/div>\n
Author: S Singh<\/div>\n
Bench: S Singh<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S.K. Singh, J.<\/p>\n
1. This second appeal is by the plaintiffs against the judgment and decree passed by the Munsif, Bansi dated 12.11.1969, which was confirmed in appeal by the first appellate court by its judgment dated 6.5.1972.\n<\/p>\n
2. Plaintiffs-appellants filed Original Suit No. 66 of 1967 against the defendants claiming 2\/3rd share in the suit property. A pedigree was given in the plaint about which there happens to be no dispute, which for the convenience is being reproduced :\n<\/p>\n
                             Sarjoo Prasad
\n                                 |
\n          ________________________________________________
\n         |                       |                        |
\n     Gur Prasad              Har Prasad           Shyam Prasad
\n                                 |                        |
\n                                 |                        |
\n _______________             Shri Ram                Ram Sewak
\n|               |                |                  = Smt. Jagwanta
\nRam Kumar   Sheo Sahai            ________________________
\n|         = Mst. Prema           |                        |
\n|            Defdt. 3        Shankar Saran           Shambhoo Saran
\n                             Defendant No. 1         Defendant No. 2<\/span>
\n    _____________________________
\n   |             |               |
\n Chandra      Chandra         Chandra
\n   Bhal       Shekhar         Bhushan
\n Plaintiff    Plaintiff       Plaintiff
\n   No. 1        No. 2           No. 3<\/span><\/p>\n<\/blockquote>\n
3. The claim of plaintiffs was that Sarju Prasad had three sons Gur Prasad, Har Prasad and Shyam Prasad. It was claimed that there had been a partition between Gur Prasad, Har Prasad and Ram Sewak, the son of Shyam Prasad Ram Sewak died in the state of separation. On the death of Ram Sewak name of Mst. Jagwanta, his widow was mutated as there is khewat entry in this respect. It was claimed that Smt. Jagwanta gifted the entire property inherited by her in favour of the plaintiffs by means of the gift deeds dated 2.2.1963\/30.4.1963 and thus plaintiffs became entitled to 2\/3rd share in the suit property. On account of some dispute in respect to the rights, the plaintiffs filed present suit for partition.\n<\/p>\n
4. Defendant Nos. 1 and 2 contested the suit and they filed written statement while the suit proceeded ex-parte against the defendant-respondent No. 3. In the written statement filed by the defendant Nos. 1 and 2 they admitted the pedigree but they denied about any partition between Gur Prasad, Har Prasad and Ram Sewak. It was stated that Ram Sewak died when the family was joint and it was undivided Hindu family. It was admitted that Shyama Prasad pre-deceased Sarju Prasad. Thus, it was claimed by the defendant-respondent Nos. 1 and 2 that after the death of Ram Sewak which according to them took place on 3.9.1964, remaining coparceners jointly took the property and thus plaintiffs and the defendants have half and half share each. It was further stated that Mst. Jagwanta had no right to gift out the property and, therefore, they challenged the claim of the plaintiffs, as claimed on the basis of the gift deed.\n<\/p>\n
5. On the aforesaid pleadings suit proceeded and following issues were framed :\n<\/p>\n
“(1) Whether Ram Sewak died in a state of separation in 1932-33 as alleged and did her widow inherit by share in the property?\n<\/p>\n
(2) What is the share of the plaintiffs in the suit property?\n<\/p>\n
(3) Whether the gift deeds executed by Smt. Jagwanta in favour of the plaintiffs is invalid for the reasons given in the W.S. of the defendants” 1 and 2? If so can the defendants assail the gift deeds now?\n<\/p>\n
(4) Whether shikmi plot No. 7 and plot No. 183 are bhumidhari land and are not liable to be partitioned in the suit?\n<\/p>\n
(5) Whether the suit is within time?\n<\/p>\n
(6) Relief?”\n<\/p>\n
6. After framing of the issues matter proceeded. Some amendment in the plaint was allowed. Plaintiffs filed several documents consisting of original gift deed, khewat, etc. On 10.9.1969 on behalf of the plaintiffs one document was filed which was admitted and defendants were allowed time to file documents in rebuttal as prayed by them and 12.11.1969 was fixed. It appears that on 15.10.1969, itself although it was not the date fixed certain documents in rebuttal were filed by the defendants. Out of three documents, one document filed by defendants was not admitted and they were required to prove the same by summoning the original record at the time of hearing. On 25.10.1969 application was filed by the defendants for summoning of the record. It is thereafter on 12.11.1969, which was originally the date fixed plaintiffs moved an application for adjournment of the matter. It was stated in the application dated 12.11.1969 that defendants have filed some documents on 15.10.1969 of which plaintiffs had no information from before. Defendants have never moved any application or they have never stated about filing of those documents, and therefore, for filing the documents in rebuttal the inspection of records is required which the plaintiffs could not do as plaintiff No. 1 being in Government service in Moradabad could not get leave. It was further stated that the witness Dudhai who was to be examined on that date fell ill by chance and, therefore, prayer was made that one opportunity for filing the documents in rebuttal and for oral evidence may be given. Aforesaid application was rejected by the trial court and on the same day arguments of defendant counsel was heard and the suit was finally decided granting half share to the parties. Against the judgment and decree passed by the trial court appeal was filed by the plaintiffs. Besides other grounds taken in the appeal specific ground was taken that plaintiffs have been denied a reasonable opportunity of evidence and hearing which has resulted in failure of justice and therefore, prayer was made that matter may be remanded and after affording an opportunity of evidence to the plaintiffs the trial court may be directed to decide the same. Lower appellate court after hearing the arguments from both the sides did not agree with the plaintiffs and thus dismissed the appeal.\n<\/p>\n
7. Sri V.K.S. Chaudhary, learned senior advocate assisted by Sri R.S. Maurya, learned advocate has been heard in support of the appeal and Sri S.N. Singh, learned advocate has been heard in opposition thereof.\n<\/p>\n
8. Sri Chaudhary, learned senior advocate at the very outset submits that there happens to be no trial of the suit as admittedly the suit has been, decided in absence of any evidence from the side of the plaintiffs. It is submitted that on the facts as appears from the record plaintiffs were entitled to get an opportunity to lead the evidence as prayed by them. Submission is that it cannot be demonstrated from the side of the defendants that plaintiffs have been lingering the trial and there was any unreasonable delay in proceeding of the suit. It is then submitted that in any view of the matter the original gift deeds were filed by plaintiffs of which execution has never been denied by the defendants rather execution was admitted and only on the legal ground that Mst. Jagwanta had no right to execute the deed, same was challenged but the Courts below by taking wrong note of the fact that defendants has challenged the genuineness of the deed have rejected the plaintiffs claim. It is then submitted that in fact Mst. Jagwanta was having a limited state which was converted into the full rights and, therefore, under law she was entitled to execute gift deed in plaintiffs favour. Besides aforesaid arguments. Sri Chaudhary also pressed application for accepting the additional evidence upon which after hearing the arguments from both sides by separate order that was allowed as the counsel for the respondent could not successfully meet out the submissions of Sri Chaudhary. The documents which have been filed before this Court relates to the judgment of the consolidation courts which was fought out between the parties in which on the basis of the same issue of rights of Mst. Jagwanta to execute the gift deed and its validity claim of present appellants has been allowed in the agricultural property against the claim of the defendants. Other documents are the judgments of the Court of Nepal in the suit filed by Sri Ram Mishra, father of respondents 1 and 2 for partition of his 1\/3rd share in the landed property in Nepal against Guru Prasad, the grandfather of the appellants and Mst. Jagwanta. Mst. Jagwanta had filed written statement in the suit referred to above in the Court of Nepal in which she stated about inheritance of 1\/3rd share of her husband in the immovable property in India and the property in dispute in Nepal. Civil Amini Court dismissed the suit holding that the property of Nepal was self acquired and Guru Prasad and husband of Mst. Jagwanata had separated about 50 years back by taking his 1\/3rd share in the property in India. Judgment stood confirmed up to the Nepal High Court. It is on this background, the submission is that appellants case\/claim needs a fresh trial after giving an opportunity of evidence in the matter.\n<\/p>\n
9. In support of the submissions. Sri Chaudhary relied upon the following judgments : Brahma Vart Sanatan Dharm Mahamandal v. Kanhayalal Bagla and Ors.,<\/a> 2001 (4) AWC 3161 (SC) : AIR 2001 SC 3799 ; Malik Harkishan Singh v. Malik Pratap Singh and Ors., AIR 1938 PC 189 ; Anurago Kuer v. Darshan Raut and Ors., AIR 1938 PC 65 ; State Bank of India v. Chandra Govindji (Km.),<\/a> (2000) 8 SCC 532 ; Gangabai and Ors. v. Fakirgowda Somayapagowda Desai and Ors., AIR 1930 PC 93 ; Pirthi Pal Pandey v. Mst. Kalpoo and Anr., 1951 AWR 53 and Tulasamma and Ors. v. Sesha Reddy,<\/a> (1977) 3 SCC 99.\n<\/p>\n
10. Sri Singh in opposition to the arguments of the counsel for the appellants, submits that in fact appellants were allowed opportunity of leading evidence and otherwise also they had opportunity and, therefore, if they have chosen not to lead the evidence then the Courts are not to be blamed and thus if the trial court on the basis of whatever material which was available on record has decided the suit then neither the appellants can claim any prejudice nor decision can be said to be illegal in any manner. It is further submitted that gift relied upon by the appellants has not been proved and a finding of fact has been recorded in this respect which unless is perverse are based on no evidence cannot be assailed in second appeal. It is then submitted that Mst. Jagwanta was not a limited owner and, therefore, she cannot acquire full rights. Submission is that only on account of khewat entity, independent right of Mst. Jagwanta cannot be accepted and as plaintiffs have not examined anybody, courts below rightly by drawing adverse inference have decided the matter against them. Lastly it is submitted that if the additional evidence is admitted then on that basis the second appeal cannot be finally decided and the matter will have to be remanded back.\n<\/p>\n
11. In support of his submissions Sri Singh relied on the following judgments : Ramachandra Ayyar and Anr. v. Ramalingam Chettiar and Anr., AIR<\/a> 1963 SC 302 ; Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors.,<\/a> 1999 (2) AWC 1608 (SC) : (1999) 3 SCC 722 and Jogendra Singh and Ors. v. State of U. P. and Ors., 1983 All LJ 1297.\n<\/p>\n
12. In view of the aforesaid submission now the Court is to deal with the matter.\n<\/p>\n
13. Acceptance of the lengthy submission of Sri Chaudhary in respect of the plaintiffs’ 2\/3rd share in the light of the pleading and the limited evidence which is on the record of the Courts below and on the basis of documents which have been filed before this Court in second appeal straightway, on the facts appears to be not very much justified. On own submission of learned counsel, plaintiffs have not been permitted to lead evidence, i.e., oral and documentary and, therefore, no fair trial has taken place. The Court is to test the merits in this submission and if it finds favour, it will be a case of trial without opportunity to the plaintiffs leading to failure of justice. On acceptance of the aforesaid submission as this Court is exercising second appellate jurisdiction it will not be justified to go into various questions of fact In the light of evidence which exist on record from before and which has been brought on record before this Court. Certain facts which is clearly borne out from the record can be summarised. Suit was filed in the year 1967. It was the suit of the plaintiffs-appellants. Several dates intervened during preliminary stages, i.e., filing of written statement, amendment etc. Relevant dates for our purposes starts from 10.9.1969 on which date plaintiffs filed certain documents for which they have already intimated the Court. On filing the documents the defendants were allowed time to file document in rebuttal. On their request 12.11.1969 was the date fixed for the purpose. It appears that thereafter on 28.10.1969 and on 15.10.1969 which were not the date fixed in the suit vide two applications, i.e., 68C and 72C defendants filed several documents in rebuttal. It appears that on 8.10.1969 documents filed by the defendants were not accepted and on 15.10.1969 out of three documents two were admitted and for one document defendants were required to get the original record summoned. On 25.10.1969 application was moved by the defendants for summoning the record. Thereafter 12.11.1969 was the date which happens to be the crucial date as the proceedings of that date became decisive factor for either of the parties. On 12.11.1969 application was filed on behalf of plaintiffs through their counsel for giving one opportunity to adduce the document in rebuttal to the documents filed by the defendants on previous dates and also to examine the witness Dudhai who fell ill. It was mentioned in the application that the plaintiff Chandra Bhal is the Government servant and he does the pairvi but on account of Government work he could not get leave. It was stated that so for filing the documents in rebuttal he was to inspect and examine the record of the encumbered file which he could not do. So far witness Dudhai is concerned it was stated that he fell it and, therefore, for both purpose i.e., for filing document in rebuttal and for oral evidence one opportunity was prayed. The aforesaid application was rejected by the trial court on the ground that wrong facts have been mentioned and case is old one. It is thereafter on that very date the witness of the defendant was examined and argument from the defendant side was heard and case was decided on the merits. While taking the matter to the appellate court plaintiffs took specific ground of lack of opportunity of evidence. In fact same was vehemently pressed also during the course of the arguments but the appeal was dismissed.\n<\/p>\n
14. In view of the admitted facts as stated above there appears to be a situation that on rejection of the plaintiffs’ application for giving one opportunity to adduce oral evidence and the documents in rebuttal, immediately the statement of defendant witness was taken, arguments were heard and on the same day, i.e., 12.11.1969, there is a long written judgment. This appears to be prima facie strange that the trial court after recording the statement of the defendants-witnesses and after hearing the arguments, immediately examined evidence which are in the shape of revenue extract etc. which was available on record and dictated the judgment, which was typed and signed on 12.11.1969 itself. It was the plaintiffs suit which was of the year 1967 and, therefore, neither it could be said that there was any inordinate delay in the matter nor there could be any motive on the part of the plaintiffs in getting unwarranted adjournments. Documents which were filed by the defendants on 15.10.1969 were not earlier mentioned in the application and they were the new documents, having not been filed on the date fixed, in the presence of the plaintiff side. Therefore, if on 12.11.1969 which was the first date fixed an opportunity was sought by plaintiffs, there could not be any serious objection. It was the plaintiffs claim which was to be adjudicated in the light of the evidence. On the facts it would have been just and proper on the part of the trial court to have allowed at last one opportunity to the plaintiffs to do the needful as prayed by him by giving him caution for the next date for which reasonable amount of cost could have also been fixed. Rejection of the application, taking of the evidence of the defendants in absence of the plaintiffs side, hearing of the arguments and dictating of judgment on that very day, same being typed also same day and the signature in that very date appears to be too harsh rather some thing strange in the fact and situation of the present case. In view of the documents as filed by the plaintiffs showing adjudication about agricultural land in the consolidation courts and about the immovable properties in Nepal Court up to the higher forum at that place, it is clear that plaintiffs have a triable case. Besides aforesaid, plaintiffs claim of 2\/3rd share based on rights of Mst. Jagwanta as argued before this Court also needs serious consideration. Observation in the judgment of the appellate court that defendants have specifically challenged the genuineness and due execution of the gift deed also appears to be incorrect as the copy of the original gift deed which was filed by the plaintiffs clearly refers to an endorsement from the side of the defendants that the execution is admitted, subject to pleas. Further observation in the judgment of the appellate court that the mere entry in Jagwanta’s name as a co-sharer after the death of Ram Sewak does not and cannot confer any title in Jagwanta also appears to be without noticing and analysing legal aspect in this respect about which lengthy arguments has been advanced by Sri Chaudhary based on decisions of the Apex Court and this Court. The claim of the plaintiffs that Mst. Jagwanta was recorded in her own rights and she got full rights in view of provisions of Hindu Succession Act as interpreted in several cases was liable to be taken note of. Accordingly submission of the learned counsel that plaintiffs have not availed opportunity of evidence and they are to be ousted on account of their own conduct and appeal is concluded by finding of fact do not convince this Court.\n<\/p>\n
15. Although from appellate side, arguments have been advanced to accept, the claim of plaintiffs straightaway but on examination of various aspects, this Court is of the view that as acceptance\/rejection of plaintiffs claim is dependent on recording of various finding on question of facts, acceptance of first submission of counsel for appellant for retrial will be safe. Assessment of entire evidence and recording of finding by this Court may not be justified but as the matter is quite old if for retrial speedy steps is directed that will meet the ends of justice.\n<\/p>\n
16. For the reasons recorded above, this appeal succeeds and is allowed. Judgment and decree passed by the Courts below are hereby set aside. Matter is remanded to the trial court for a fresh decision keeping in mind the observations as are contained in this judgment. Needless to say that as the matter is quite old it will be for the trial court not to allow any adjournment to the plaintiffs and even to defendants unless it is required for very compelling reasons. It will also be the concern of the trial court to decide the suit with all expedition at his command preferably within a period of four months from the date of receipt of the judgment of this Court and the records. Parties are to bear their own cost.<\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Chandra Bhal Misra And Ors. vs Shankar Saran Misra And Ors. on 11 August, 2004 Equivalent citations: 2005 (2) AWC 1893 Author: S Singh Bench: S Singh JUDGMENT S.K. Singh, J. 1. This second appeal is by the plaintiffs against the judgment and decree passed by the Munsif, Bansi dated 12.11.1969, which […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-74229","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nChandra Bhal Misra And Ors. vs Shankar Saran Misra And Ors. on 11 August, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chandra-bhal-misra-and-ors-vs-shankar-saran-misra-and-ors-on-11-august-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chandra Bhal Misra And Ors. vs Shankar Saran Misra And Ors. on 11 August, 2004 - 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