Ravi Kumar Agarwal vs Shashi Kumar Agarwal and Others

This appeal assails the judgment and order dated 19.8.2015 rendered by the Civil Judge (Senior Division), Pauri Garhwal, whereby the suit instituted by the plaintiff/appellant herein was dismissed.

Plaintiff in his plaint has pleaded that the property, in dispute, was purchased from the joint family income and after such purchase, the buildings/factories were constructed thereon. Plaintiff and his brothers, who are the parties in this litigation, entered into mutual family settlement way back in 1983, whereby the property which is the subject-matter of the suit fell in the share of the plaintiff. So, the declaration regarding the ownership of the plaintiff over such property was sought by initiation of the Suit No. 13/2014.

Defendants in their written statement accepted the averments of the plaint, but never appeared in the witness box to face even a single question and to render an opportunity to ask him several questions which were haunting in the mind of the Court.

The said suit has been dismissed by the Trial Judge opining that such suit is collusive in nature because the Vakalatnama 8Ga filed on behalf of the plaintiff bears the name of two Advocates Mr. K.P. Nainwal and Mr. K.P.

Maithani, although such Vakalatnama has been signed by Mr. K.P. Nainwal only. On the other hand, the Vakalatnama 11Gha on behalf of the defendants was filed with the signature of Mr. K.P. Maithani, Advocate. It gave an apprehension in the mind of the Court regarding the collusion between the parties, besides none-appearance of the defendants in the witness box.

It has been argued on behalf of the plaintiff that the facts need not be prove. So, it was not desirable for the Court to dismiss such suit.

I am unable to agree with the said contention for the simple reason that although the general provision of the Evidence Act ratifies the argument of the learned Counsel, as indicated above, but in case the suit is collusive then certainly the burden lies on the plaintiff to prove the facts and the Court has every liberty to examine and assess so as it may infer about the collusiveness between the parties.

The declaration of the ownership over the vast property has been sought by paying meagre revenue stamp of rupees two hundred on the ground of mutual family settlement way back in the year 1983. The property is said to be purchased from the income of Joint Hindu Family, but nothing has been brought on the record to prove such purchase as well as the mutual family settlement.

Apart from the above, the description of the property is quite ambiguous in the pleadings of the plaint. Paragraph 3 of the plaint enumerates the Khet No. 153, 154 and 155 stating the area to be 8.5, but nothing has been indicated whether 8.5 is bigha or acre or hectare, viz., no unit has been indicated against the numeral 8.5. I think this also strengthens the apprehension in the mind of the Court.

The Court is of the considered opinion that the suit has rightly been dismissed. This appeal has no force. It is hereby dismissed.

Let the LCR be sent back.