Munnalal Dandotiya vs Surendra Nath alias Babulal and Others

Hon. Shri Justice Anil Sharma

This second appeal has been filed by the appellant u/s 100 of Code of Civil Procedure, 1908 against the judgment and decree dated 01-08-2001 passed by learned Fourth Additional District Judge, Morena in Civil Appeal No. 12-A/ 2000, confirming the judgment and decree dated 30-03-2000 passed by learned Civil Judge Class -II, Morena in Civil Suit No. 107-A/1999.

Brief facts in narrow compass are that the original defendant No. 2 -Jagannath Prasad sold the property of Municipal No. 410/3 of ward No. 9 situated at Dattpura, Morena as Karta of joint hindu family and its firm M/s Thakurdas Jagannath Prasad. Initially, the property was purchased in the year 1960 by Jagannath Prasad from one Ramchandra Shashtri by registered sale deed from fund of joint hindu family. Plaintiff is co-parcener of the joint hindu family firm. The firm was partitioned on 19-06-1972 and deed of dissolution was written and registered on 29-01-1973. According to which, the disputed property belongs to plaintiff. In the year 1970 original defendant No. 2 Jagannath Prasad father of plaintiff sold the disputed property to defendant No. 1/appellant in a very low price and possession was not handed over by defendant No. 2 to the purchaser. The transfer was without any legal necessity of the joint hindu family and therefore, the transfer was null and void. Since defendant No. 1/appellant was trying to raise construction over the disputed property, therefore, the plaintiff has filed the suit for declaration of title and permanent injunction, restraining the appellant from raising construction.

In the written statement, appellant/defendant No. 1 has pleaded that he has purchased the suit land from Jagannath Prasad and long back the document was executed on 27-05-1970 by registered sale deed and since then he is in possession of suit land. The suit has been filed by the plaintiff by joining the hands with his father who is original defendant No. 2. It has been further pleaded that the suit filed by the plaintiff is barred by limitation as plaintiff was having knowledge of the sale deed.

Learned trial Court decreed the suit of plaintiff and on an appeal filed by the appellant, learned lower appellate Court has confirmed the judgment and decree passed by learned trial Court, therefore, this appeal has been preferred by the appellant before this Court which has been heard and admitted by this Court on 14-01-2004 on the following substantial questions of law:

i-Whether the suit filed in May, 1981 of the plaintiff is barred by limitation under Article 59 of Indian Limitation Act on account of having acquired the knowledge and obtained the certified copy of the registered sale deed dated 27-05-1970 on 15-01-1976 as admitted by the plaintiff in para 3 of his statement ?

ii-Whether the trial of the suit onwards the death of Jagannath stood vitiated for want of notices/summons of the original civil suit to the legal representatives of Jagannath ?

iii-Whether the registered partition deed dated 29-01-1973 is legally insufficient to clothe any party with title of the property for want of its availability on account of having been already sold out vide registered sale deed dated 27-05-1970 ?

Substantial Question of Law No. 1:

Plaintiff has filed the suit, challenging the sale deed executed by his father -defendant No. 2 on 27-05-1970. The suit property was part of firm of joint hindu family, namely, M/s Thakurdas Jagannath Prasad of which plaintiff was a member. He has admitted that the firm was under the obligation to pay the amount to various persons including purchaser i.e. appellant, therefore, it cannot be presumed that the plaintiff came to know about execution of sale deed when he has obtained the certified copy of sale deed. Further, it cannot be presumed that the plaintiff was not aware of financial condition of its firm, transaction made by the firm or activity of his father who was managing the affairs of the joint hindu family property. Filing of suit by the plaintiff belatedly and silence of his father -defendant No. 2 regarding sale deed executed by him coupled with the fact that the partition which took place in the year 1972 in which the suit land has been given in the share of plaintiff, are the circumstances which suggest that there is some conspiracy between the plaintiff and his father to take the benefit of legal process in order to achieve the goal of getting the land back which has been sold to the appellant. It cannot be presumed that the plaintiff who was member of joint hindu family property was not having any knowledge about the sale of property by his father, therefore, both the Courts below have erred in holding that the suit is within limitation because it cannot be assumed that the firm which is expected to maintain the account for running its business and not maintaining the record of sale of land belonging to the firm, while it must have been presumed that the plaintiff was having the knowledge of sale since very beginning and subsequent inclusion of the suit land of appellant at the time of partition, filing of suit by the plaintiff and silence of his father defendant No. 2 clearly shows that under some conspiracy, the plaintiff and his father have included the disputed land in partition and plaintiff was having knowledge of registered sale deed since 27-05-1970. The statement of plaintiff in paragraph 3 in which he has admitted that the disputed plot No. 11 to 14 were sold by his father in the year 1970 by Numaishi Baynama shows that he was having knowledge about the sale of disputed land to the appellant and after partition in the year 1972 he has not filed the suit within 3 years to get back possession of the suit land and for cancellation of sale deed which was Numaishi Baynama according to him. The suit has been filed on 13-05-1981 and he has stated that he came to know about the sale deed in the year 1976 then too, the suit is barred by limitation as it has been filed after lapse of more than 3 years, therefore, the substantial question of law No. 1 is answered in favour of appellant.

Substantial Question of Law No. 2:

Jagannath Prasad has been impleaded as defendant No. 2 and during pendency of the suit, Jagannath Prasad has died, his legal representatives were brought on record and since the disputed property has been sold by Jagannath Prasad and as per the pleading of plaintiff that the disputed property sold to the appellant has fallen into the share of plaintiff, keeping aside the question of limitation or legality of partition or sale and the interest of Jagannath Prasad has been transferred to the appellant by virtue of sale deed executed by him and according to partition deed, the disputed land has fallen into the share of respondent No. 1, therefore, it is only the formality to implead other legal representatives of Jagannath Prasad as Jagannath Prasad himself has parted with his interest in the disputed property, therefore, it cannot be said that the trial of the suit stood vitiated due to death of Jagannath Prasad for want of notice/summon to the legal representatives of Jagannath Prasad. Thus, this question is answered accordingly.

Substantial Question of Law No. 3:

The disputed land belongs to firm -M/s Thakurdas Jagannath Prasad which is owned by joint hindu family and even if the plea of plaintiff is taken as correct with regard to lacking of knowledge about the sale deed in favour of appellant, the disputed land was under the ownership of firm running by joint hindu family, therefore, at the time of partition certainly the property of firm has been ascertained and since the firm is running the business, therefore, the controller of the firm must have the knowledge with regard to execution of sale deed in favour of appellant and they were further having the knowledge that the sale deed has not been cancelled and it has been executed in favour of appellant who is having no concern with the firm of seller, therefore, the property which was not in the control and ownership of firm at the time of partition, cannot be made subject matter of partition, hence, the registered partition deed dated 29-01-1973 is legally insufficient to clothe any member of joint hindu family to the title of property for want of its availability on account of having been already sold out vide registered sale deed dated 27-05-1970, therefore, by virtue of partition deed dated 29-01-1973, respondent No. 1/plaintiff does not get any title over the disputed land which was not under the ownership or possession of the firm running by joint family. Thus, the question is answered in favour of appellant.

Learned counsel for the appellant has cited the judgment of Division Bench of this Court in the matter of Rajmani Patel and another Vs. Mohanlal and others, 1997 RN 437, in which it has been held that if the alienation by Karta of joint hindu family has not been challenged on the ground of legal necessity, the alienee need not prove presence of legal necessity. It has been further held that if the legal necessity is proved by alienee and he has not been cross-examined on that point, the alienation cannot be set aside on the point of absence of proof of legal necessity. Thus, the aforesaid citation applies to the present facts of the case.

Resultantly, both the Courts below are not justified in decreeing the suit of plaintiff against appellant/defendant No. 1, therefore, the judgment and decree passed by learned both the Courts below are hereby set aside and the suit filed by the plaintiff/respondent No. 1 against the appellant/defendant No. 1 is dismissed. Respondent No. 1 shall bear his own cost and the cost of appellant also. Counsel fee if pre-certified. Decree be prepared accordingly.