Garib Mahto and another vs Girija Devi and Others

B.N. Agrawal, J.—This second appeal by the plaintiff''s is directed against the judgment of affirmance passed in an appeal and of a suit for declaration that the sale deed executed by the plaintiff''s father in favour of defendant no. 1 was a fraudulent transaction and void. The further declaration sought for was that the eviction decree passed in Title Suit No. 121 of 1969 was invalid and not binding upon the plaintiff''s. The case of the plaintiff''s, in short, is that about 35 years back their father acquired the disputed land from the ex-landlord by virtue of oral settlement out of joint family funds and after acquisition a house was constructed thereon from the funds of the joint family. On 20.5.1968 plaintiff''s father sold the disputed land with house standing thereon under two registered sale deeds to defendant no. 1, which sale deeds were fraudulently obtained by defendant no. 1 from plaintiff''s father. Defendant no. 1 filed an Eviction suit bearing Title Suit 121 of 1969 against the father of the plaintiff''s for his eviction alleging therein that after purchase he had let out the suit premises to plaintiff''s father and he defaulted in making payment of rent. Further ground for eviction was that the plaintiff of that suit had personal necessity of the suit premises. In the said suit the plaintiff''s were not made parties, though they were necessary parties. The plaintiff''s father having not appeared therein, the eviction suit was decreed ex parte where after an application under Order 9 Rule 13of the CPC was filed by the plaintiff''s father, which was dismissed for default and this led to the filing of the present suit.

The case of the defendants, in short, is that the joint family of the father and two sons had no nucleus. The property in question was self acquisition of plaintiff''s father and out of his separate funds he made construction thereon, The sale deed was genuine and the plaintiff''s father had duly executed the same in favour of defendant no. 1. After acquisition defendant no. 1 let out the suit properties to plaintiff''s father who had defaulted in payment of rent and defendant no. 1 having required the suit premises for his own use and occupation, he filed a suit for eviction in which summons were duly served on plaintiff''s father and he having not appeared in spite of service of summons, the suit was decreed ex parte. His further case was that the plaintiff''s were not necessary parties in the eviction suit. According to them this suit was barred under Order 23 Rule 1 (4) of the CPC as Title Suit no. 82 of 1968 earlier filed by the plaintiff''s challenging the sale was simply withdrawn.

The trial court, after considering the documentary and oral evidences adduced on behalf of the parties, dismissed the suit after recording findings to the effect that the joint family had no nucleus out of which the suit properties could have been acquired, it was self acquisition of plaintiff''s father, who had duly executed the sale deeds in favour of defendant no. 1. It further recorded a finding that consequently the decree passed in the eviction suit was valid in law.

On appeal, being preferred by the plaintiff''s, the court of appeal below has affirmed the judgment and decree of the trial court after agreeing with all the findings recorded by it. Hence, this second appeal.

The Learned Counsel, appearing on behalf of the appellants, has pressed into service two points, for consideration by this Court, Firstly, he contended that the court of appeal below, which was a final Court of fact, has committed a serious error of law in placing the onus upon the plaintiff''s to prove that the property was joint family property when in law there is a presumption of jointness and, therefore, the finding recorded by the lower appellate court on this question is vitiated. The Learned Counsel has placed before me different paragraphs of the judgment of the lower appellate court. I find that there is no substance in the submission of the Learned Counsel, firstly, because when both the parties have led evidence on the point in controversy question of onus becomes immaterial. Secondly, no presumption of jointness is raised in favour of the plaintiff''s because the two courts below have categorically recorded a finding that the joint family had no nucleus at all much less sufficient one out of which the properties could have been acquired by plaintiff''s father. It is well settled that the presumption of jointness under the Hindu Law only arises if it is found that the joint family had sufficient nucleus out of which the property could have been acquired. In absence of the same no presumption of jointness arises in favour of the plaintiff''s. I find that the courts of fact after recording the finding that the joint family had no nucleus have further found that the suit property is self acquisition of the plaintiff''s father. Learned Counsel was not in a position to assail any of the aforesaid two findings which are concurrent findings of fact recorded by the two courts of facts.

The next submission of the Learned Counsel is that since the plaintiff''s have not been made party in the eviction suit, the decree passed therein against their father is a nullity and the present suit for declaration of the eviction decree as invalid be decreed. I think this submission of the Learned Counsel was dependent upon the first point raised by him, and in view of the fact that I have rejected his first contention, I have no option but to reject the second contention as well.

The Learned Counsel appearing on behalf of the respondents contended that the courts below after considering the evidence adduced on behalf of the parties have recorded finding which are findings of fact and this Court cannot interfere therewith while exercising the second appellate power. I find sufficient force in the contention of the Learned Counsel.

The Learned Counsel for the respondents further contended that the suit is barred under Order 23 Rule 1(4) of the CPC as the plaintiff''s had earlier filed a suit challenging the genuineness or otherwise of the impugned sale deeds, in that suit parties were same, that suit was simply withdrawn and there was no order of the court permitting the plaintiff''s to file a fresh suit. In support of his submission the Learned Counsel placed reliance upon a decision of the Supreme Court in M/s Hulas Rai Baijnath v. Firm K.B. Dass & Co., reported in AIR 1968 Supreme Court, page 111.

The Learned Counsel for the appellants submitted that the cause of action for this suit is different than the cause of action for the earlier suit. In the earlier suit the cause of action was the impugned sale deeds executed in favour of defendant no. 1 whereas in the present suit the cause of action is eviction decree. The Learned Counsel in support of his contention placed reliance upon a Bench decision of this Court Kaloot Sah and another v. Most. (name not known) W/o Munni Sao and others reported in AIR 1977 Patna, page 90, I find that the main causes of action in both the suits are common. In the earlier suit, the cause of action was the execution of the sale deeds by plaintiff''s father in favour of defendant no. 1. In this suit the main cause of action is execution of the sale deeds for which this suit is barred because of the provisions of Order 23 Rule 1(4) of the CPC as the earlier suit was simply withdrawn. The plaintiff''s can on no ground get a decree for declaration that the eviction decree is void, as genuineness of the sale deeds is the only ground for assailing the eviction decree. Therefore, in my view the causes of action in both the suits being in effect and substance common, the courts below were quite right in holding that this suit was barred under Order 23 Rule 1(4) of the Code of Civil Procedure. Therefore, the Division Bench judgment hag so application to the case in hand. Besides this, the two courts below have not disposed of the suit on this ground alone, but have decided the case against the plaintiff''s on merits, as well by recording concurrent findings of fact, which are not assailable in the second appeal as stated above. No other point having been raised, I have no option but to dismiss the appeal as the same is concluded by the concurrent findings of fact recorded by the two courts below and the same is, accordingly, dismissed with costs.