Mohan Giri vs Subhash Giri

Heard, learned counsel for the appellant, Mr. Manohar Ram Tiwari.

Learned counsel for the appellant has submitted that against the impugned judgment of concurrent findings passed by both the courts below, the plaintiff/appellant has preferred the instant Second Appeal.

The trial court vide judgment dated 09.09.2005 and decree dated 26.09.2005 passed by Addl. Munsiff-III, Ranchi in Title Suit No.195 of 1995 dismissed the said suit as ex-parte.

The plaintiff preferred an appeal, the appellate court also dismissed the appeal vide judgment dated 01.07.2009 and decree dated 08.07.2009 passed by Addl. Judicial Commissioner, Fast Track Court No.VI, Ranchi in Title Appeal No.01 of 2006. Though respondent has appeared but did not participated in hearing.

Learned counsel for the appellant has submitted that there are substantial questions of law involved in the present Second Appeal as:-

(i) No issue has been framed by the learned courts below?

(ii) Non-consideration of oral evidence in correct perspective?

Learned counsel for the appellant has submitted that judgment passed by the Hon'ble Apex Court in the case of Gurnam Singh (Dead) by Legal Representatives and Ors. vs. Lehna Singh (Dead) by Legal Representatives, reported in 2019(7) SCC 641, reliance has been placed upon the judgment passed in Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar; Iswar Dass Jain vs. Sohan Lal, reported in 1999(3) SCC 722 it has held that Second Appeal can only be admitted if conclusion drawn by the learned lower courts were erroneous on the following grounds :-

(i) Contrary to the mandatory provisions of law;

(ii) Contrary to the law as pronounced by the Apex Court;

(iii) Based on inadmissible evidence,

Learned counsel for the appellant has submitted that courts below have committed an error by not framing issues as question of right to inheritance granted to the daughter, whose father died in year, 1953 prior to commencement of law in the year, 1956, as such, the judgment passed by both the courts below are violative of mandatory provisions of law and also the courts below have also misread the evidence on record, which are not in correct perspective and to demonstrate the same.

Learned counsel for the appellant in support of his submissions has relied upon the evidence of P.W.2 (Mohan Giri)/plaintiff, who has stated that his fua- Mantoran Devi has no share in the property of his father. The grand-father i.e. recorded tenant, Dewanu Giri died sometime in the year 1953 before commencement of the Hindu Succession Act, 1956.

Learned counsel for the appellant has further submitted that both the courts below have misread the evidence, as stated above. Mohan Giri (P.W.2) has categorically stated that mother of the the defendant, Mantoran Devi has no share in the property of her father, which was not considered by learned trial court and lower appellate court. Moreover, the learned lower appellate court has recorded that the plaintiff witness has never stated that Mantoran Devi did not had any share in the property of her father, Dewanu Giri. Considering this aspect of the matter, the appeal may be admitted by this Court.

This Court has considered the relief claim by the plaintiff which is of right title and interest, Order II Rule 2 C.P.C. which reads as follows :-

"2. Suit to include the whole claim- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs:- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."

This Court has also considered the relief(s) sought by the plaintiff and the plaintiff has never prayed for cancellation of the sale-deed executed by Mantoran Devi, daughter of recorded tenant, Dewanu Giri in favour of her three sons and now in view of this provisions of law, plaintiff cannot incorporate the same. Apart from this Section 34 of the Specific Relief Act, 1963 also operates in favour of the plaintiff, which is quoted herein:-

"Discretion of Court as to declaration of status or right any person entitled to any legal character or to any right or as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit asked for any further relief;

Provided that no court shall make such any such declaration where the plaintiff, being able to seek further relief then a mere declaration of title, omitted to do so."

The factual aspect also will operate against the plaintiff in seeking any further relief so far the cancellation of sale-deed is concerned, but on the other hand the validity of sale deed remains untouched.

Considering such aspect of the matters, this Court is inclined to admit this appeal as admittedly there is a substantial question of law involved in the Second Appeal as the suit has been decided ex-parte contrary to the mandatory provisions of law as well as contrary to the evidence brought on record i.e. misreading of the evidence in itself the substantial question of law.

Considering the arguments made by learned counsel for the appellant, this Court is inclined to admit this Appeal on the following substantial question of law :-

"A. Whether the courts below have followed the mandatory provisions of law of Hindu Succession Act which came into force with effect from 1956 ? B. Whether the courts below have misread the evidence with regard to pleading that Mantoran Devi has no share in the property of her father which has been wrongly read by both the courts below?"

So far the other substantial question of law is concerned, the appellant or the parties are at liberty to frame the same at the time of 'Final Hearing' of this appeal.

Call for the Lower Court Records.

Let notice be issued in memo of appeal to the sole respondent under ordinary process for which requisites etc. must be filed within two weeks.