Smt. Gangabai and Another vs Jageshwar Yadav and Others

T.P. Sharma, J.

By this second appeal filed u/s 100 of the Code of Civil Procedure, 1908 (for short ''CPC''), the Appellants have challenged the legality and propriety of the judgment and decree dated 6.10.1994 passed by the 2nd Additional District Judge, Bilaspur, in Civil Appeal No. 4-A/94, affirming the judgment and decree of decreeing the suit for declaration and permanent injunction dated 19.1.1994 passed by the 2nd Civil Judge Class-I, Bilaspur, in Civil Suit No. 1 -A/90.

The present second appeal is admitted for consideration on the following substantial questions of faw:

Have the two Courts below erred in not considering that Ku. Neeta was a necessary party?

Whether the two Courts below erred in holding that the property in question was a joint Hindu family property?

What was the effect of non-compliance of Court''s order dated 18/4/1991?

Brief facts necessary for disposal of the appeal are that as per pleadings of the parties, Respondent No. 1/Plaintiff has filed suit for declaration that name of Kalesar as father of Ku. Neeta in school register be struck off and name of Defendant No. 5 Ramkumar be mentioned and permanent injunction against, Respondent No. 4 for alienation of joint Hindu family property on the ground that properties situated at village Semra and Sarkanda were ancestral properties of Respondent No. 1 along with the Appellants herein. Ku. Neeta is not daughter of Kalesar. By filing separate written statements, Respondents No. 1 to 3 and Respondents No. 4 and 5 therein had denied the allegation made in the plaint and Respondents No. 4 and 5 therein have alleged that property is not joint Hindu family property. Kalesar has adopted Ku. Neeta as a daughter, therefore, in the school record name of Kalesar has been shown as father. After providing opportunity of hearing to the parties, learned 2nd Civil Judge Class-I, Bilaspur has decreed the suit. Same was challenged before the lower appellate Court and learned lower appellate Court has affirmed the judgment and decree passed by the trial Court.

I have heard learned Counsel for the parties, perused the judgment and decree impugned, judgment and decree of the trial Court and records of the Courts below.

In the present case, Respondent No. 1 has made his appearance and has contested the case through his counsel but is not present on the date of hearing of the case.

Learned Counsel for the Appellants argued that as per allegation of the plaint, Respondent No. 1/Plaintiff has sought deletion of name of Kalesar as father of Ku. Neeta and has prayed for permanent injunction against the present Appellants for alienation of joint Hindu family property, but has not made Ku. Neeta as a party. He has also not specified the property for which he has prayed for permanent injunction against Appellant No. 1. Even he has not complied with the Court''s order dated 18.4.1991 passed by the 2nd Civil Judge Class-I, Bilaspur, therefore, suit was not maintainable and the Courts below have not competent to pass any decree against the Appellants.

As per allegation of the plaint, Respondent No. 1/Plaintiff has prayed for relief relating to Ku. Neeta that name of Kalesar as father of Ku. Neeta be struck off in the school register and name of Appellant No. 2 Ramkumar be added as father of Ku. Neeta. Relief clause A reads as under:

Relief clause A is directly related to Ku. Neeta whether Kalesar is her father or Ramkumar is her father. In these circumstances, Ku. Neeta was a necessary party relating to relief clause A and in the absence of Ku. Neeta as a party or without providing opportunity of hearing to her, any decree relating to striking off the name of her father and adding name of other person was not legally possible.

As per para 10 of the plaint, undivided joint Hindu family properties are situated at village Semra and Sarkanda including self acquired property out of the income of joint Hindu family property by husband of Appellant No. 1, but Respondent No. 1/Plaintiff has not specified the property in the plaint. Respondent No. 1/Plaintiff has not filed any annexure showing the property. At the instance of Respondent No. 1, learned trial Court has passed the order dated 18.4.1991 and has directed him to specify the suit property, but even after order of the trial Court, he has not specified the property. The trial Court has decreed the suit and has granted permanent injunction in the following terms:

Judgment and decree do not contain the fact that properties situated in which place, what are the properties, how much area and khasra number of the properties and which are movable and immovable property. Virtually both the Courts below have passed blanket orders. Even the trial Court has not considered its order dated 18.4.1991 which was just, proper and necessary for complete adjudication of the case. Without any specification of the properties, it is difficult to hold that which is joint Hindu family property and which is self-acquired property out of the income of the joint Hindu family property. In these circumstances, it is held that Ku. Neeta was a necessary party and without impleading her as necessary party, no decree relating to substitution or deletion of her father''s name was possible.

In case of non-compliance of the order dated 18.4.1991 passed by the trial Court, further progress of the suit was not possible. Even otherwise, any decree in the absence of specification of property was not possible and in the absence of any specification, declaration of nature of property whether it was joint Hindu family property or self-acquired property was not possible.

Consequently, substantial question of law No. 1 formulated for the decision of the case is decided as positive, substantial question of law No. 2 is also decided as positive and substantial question of law No. 3 is decided that without compliance of the Court''s order dated 18.4.1991, any decree of permanent injunction restraining alienation of any property was not possible. On the basis of decision on the substantial questions of law formulated for the decision of the appeal, judgment and decree passed by the Courts below are not sustainable under the law.

For the foregoing reasons, the appeal is allowed. Judgment and decree passed by the Courts below are hereby set aside. Suit filed on behalf of Respondent No. 1/Plaintiff is liable to be dismissed and it is hereby dismissed. Parties shall bear their own cost.

Advocate fee as per schedule.

A decree be drawn accordingly.