IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 236 of 2001 (Old No. 400 of 1996) Sri Jagdish Raj Bhatia, S/o Sri Bhagtu Ram, R/o 3/3 (New No. 15), Patel Nagar, Dehradun. ……………Defendant / Appellant. Versus (1) Smt. Kamlesh (since deceased) (1/1) Km. Bina Kumar, D/o Late Sri Gopal Dass (1/2) Sri Raj Kumar, S/o Late Sri Gopal Dass (1/3) Sri Rakesh Kumar, S/o Late Sri Gopal Dass (1/4) Master Yogesh Kumar S/o Late Sri Gopal Dass (1/5) Sri Jitender Kumar S/o Late Sri Gopal Dass (1/6) Kumari Deep Mala, D/o Late Sri Gopal Dass All residents of 3/3 (New No.15) Patel Nagar, Dehradun. …………Plaintiff / Respondents. Sri V.K. Kohli, Senior Advocate, assisted by Sri T. Pandey, Advocate, present for the defendant / appellant. Sri Ramji Srivastava, Advocate, present for the Plaintiffs / respondents. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 09.02.1996, passed by first appellate court (Civil Judge II (Senior Division), Dehradun), in Civil Appeal No. 152 of 1978, whereby said court has allowed the appeal and set aside the judgment and decree passed by the trial court (Munsif, II, Dehradun), in Suit No. 10 of 1978. The trial court 2 had dismissed the suit of the plaintiff but the first appellate court has reversed the same and decreed the suit. (2) Heard learned counsel for the parties and perused the record. (3) The facts giving rise to this appeal are that the plaintiff Kamlesh (since deceased) and defendant Jagdish Raj Bhatia are real sister and brother. Plaintiff (sister) instituted Suit No. 10 of 1978, against his brother (Jagdish Raj Bhatia), with the pleading that Sheelawanti (mother of the parties to the suit), R/o House No. 3/3 (New No.15), Patel Nagar, Dehradun, was sole and absolute owner of the property mentioned in Schedule A of the plaint. It is further pleaded by the plaintiff that on 09.11.1976, Sheelawanti executed a will (registered) in respect of the property mentioned in Schedule A, in favour of plaintiff. Thereafter, Sheelawanti died on 24.11.1976. It is further pleaded that the defendant (Jagdish Raj Bhatia) used to live as a licensee of Sheelawanti in property mentioned in Schedule B. (The property in Schedule B is one room, which is part of property mentioned in Schedule A). Lastly, it is pleaded by the plaintiff that the licence of the defendant has been revoked vide notice dated 02.12.1977, but he did not vacate the premises and continuing the occupation of the room. Hence, the suit for declaration that the plaintiff is sole and absolute owner of the property mentioned in Schedule A, and for a decree for possession of the property mentioned in Schedule B, and also for mesne profits at the rate of 3 Rs.20/- per month w.e.f. 23.12.1977 till the date of vacation. (4) The defendant (present appellant) contested the suit and filed his written statement before the trial court in which he has pleaded that the property No. 3/3 (New No.15), Patel Nagar, Dehradun, was purchased in the name of Sheelawanti by the defendant with his own earning and saving. He has further pleaded that Sheelawanti had no earnings to purchase the house. It is admitted that plaintiff Kamlesh is sister of the defendant Jagdish Raj Bhatia. As to the alleged will, it is stated that the defendant had no knowledge of any such will executed by his mother in favour of the plaintiff. It is further pleaded by the defendant that his mother was seriously ill three weeks before execution of the will and she was bed ridden. However, it is admitted that Sheelawanti died on 24th November 1976. It is further pleaded that if any will is obtained by the plaintiff, she has done it fraudulently. As to the status of licensee the defendant has denied that he was a licensee of his mother. He has denied that any licence is terminated against him in respect of property mentioned in Schedule B in the plaint. Denying the title of the plaintiff, it is pleaded that the suit filed by the plaintiff is liable to be dismissed. (5) The trial court, on the basis of the pleadings of the parties framed following three issues:- 4 (i) Whether the plaintiff is owner of the disputed property? (ii) Whether the defendant is a licensee in the disputed property? (iii) To what relief, if any, the plaintiff is entitled? (6) The trial court, after recording the evidence and hearing the parties, found that the will submitted by the plaintiff is forged. It was further held by the trial court that the plaintiff failed to prove her exclusive title over the disputed property. On Issue No. (ii), the trial court further found that the defendant was not living in the disputed portion of the property as a licensee of the plaintiff. With these findings, the trial court dismissed the suit vide judgment and decree dated 09.11.1978. Aggrieved by said judgment and decree, plaintiff preferred Civil Appeal No. 152 of 1978, before the first appellate court, which was transferred to and heard by Civil Judge II (Senior Division), Dehradun. The said court, vide judgment and decree dated 09.02.1996, reversed the judgment and decree passed by the trial court, and decreed the suit for the relief claimed by the plaintiff. Hence, this second appeal by the defendant was filed before Allahabad High Court on 19.04.1996, where it was admitted on 22.04.1996 on the substantial questions of law raised in the memorandum of second appeal. The appeal is received by this Court under Section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000), for its disposal. 5 (7) Following are the substantial questions of law, which are mentioned in the memorandum of appeal, on which the Allahabad High Court has admitted the appeal:- (i) Whether the appellate court was right in interfering with the finding of the trial court on the question of appreciation of evidence which it could not have done as the trial court being the last court of fact having privilege of examining the witnesses and observing the demeanour of the witnesses and, as such, the findings of the appellate court are liable to be set aside? (ii) Whether the will in question was a forged one and could not have been taken into account by the appellate court? (iii) Whether in view of the evidence on the record, the ownership of the plaintiff Smt. Kamlesh having not been established, the appellate court has illegally decreed the suit? 6 (iv) Whether the amendment has been illegally refused by the appellate court when on point of fact, the evidence on the record clearly establishes that the payment of bills issued by Nagar Palika are not made by the plaintiff and bills are being paid by the defendant- appellant and the name of Bhagtu Ram is recorded in Nagar Palika? (v) Whether the amendment with regard to the alternative case of adverse possession has illegally been refused? (8) Answer To Substantial Questions Of Law:- Admittedly, originally property in dispute belonged to one Smt. Man Kaur of Punjab. Bhagtu Ram (father of the parties to the suit) and his wife Sheelawanti were allottee / tenants in the property. It is also not disputed between the parties that the property was purchased by Smt. Sheelawanti through registered sale deed dated 09.08.1965. It is also admitted to the parties that plaintiff and defendant are real sister and brother. (There are other siblings also of the parties to the suit). It is also admitted between the parties that Sheelawanti died on 24.11.1976. The dispute relates to the fact whether Sheelawanti 7 executed any will on 09.11.1976 in favour of the plaintiff Kamlesh and is she the owner of the property in dispute after death of Sheelawanti. Another dispute between the parties is whether the defendant (present appellant-Jagdish Raj Bhatia) was a licensee in the property in question. The trial court after recording evidence and hearing the parties, gave a finding that the ‘will’ on the basis of which plaintiff instituted suit is a forged will. It was further found that the defendant is not licensee of the plaintiff Kamlesh. However, the first appellate court reversed the findings and the decree passed by the trial court. Most significant fact in the present case is that while first appellate court reversing the finding and setting aside the decree of the trial court has mentioned in the impugned judgment and decree that the appellant was absent on the date of hearing and it was only the respondent who argued the case and submitted written arguments. Learned counsel for the defendant / appellant drew attention of this Court to Rule 17 of Order 41 of Code of Civil Procedure, 1908, which reads as under:- “17. Dismissal of appeal for appellant’s default.- (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. 8 Explanation.- Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on merits. (2) Hearing appeal ex parte.- Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.” (9) Normally, when the appellant remains absent, the first appellate courts pass orders dismissing the appeal in default under sub-rule (1) of Rule 17, quoted above. The explanation to the rule bars the court from dismissing the appeal on merits, in absence of the appellant. However, it is a peculiar case where neither the appeal was dismissed for default nor the appeal was dismissed on merits, but allowed on merits. Rule 17 does not bar the court from allowing the appeal filed by the appellant, even in his absence. As such, technically it cannot be said that the first appellate court committed any error of law in allowing the appeal. But, the course adopted by the said court is unusual one. (10) Having said so, on examination of the record of the case this Court finds that the first appellate court has committed grave error of law in reversing the findings of the trial court and setting aside the decree of the trial court totally against the evidence on record. The findings recorded by the first appellate court are perverse and against the record. Perusal of the ‘will’ 9 read with statement of P.W.1 Kamlesh and P.W.2 B.N. Kapoor, itself shows that the registered ‘will’, relied by the plaintiff is a suspicious document. P.W.1 Kamlesh herself admitted in her cross examination that “eSus ;g olh;r fy[kkbZ FkhA” (I got scribed the will). She has further stated that she called the witness-Satya Pal (to the will). The exact words stated by her read as under “lR;iky dks eSa cqykdj ykbZ FkhA” As to the second witness of the will she told that he was called by the typist. In the circumstances, the trial court, in fact, rightly accepted the evidence of D.W.1 Jagdish Raj Bhatia that Kamlesh (plaintiff) had influence over Sheelawanti. Exact words stated by D.W.1 Jagdish Raj Bhatia read as under “deysÊk eka ds Åij gkoh FkhA”. This witness has further stated that Sheelawanti was lying in the bed for two months prior to her death as she was suffering from cancer. He has further stated that the house was initially allotted to Bhagtu Ram (father of the parties to the suit). D.W.1 Jagdish Raj Bhatia has further stated that electricity connection was installed in his name in 1961 in the house. He has further stated that the bill of the house tax used to be received in the name of father of the parties to the suit. Having gone through the documentary evidence, including the sale deed executed by Smt. Man Kaur and other evidence on record, this Court finds that though in 1965, the property was purchased by the mother of the parties to the suit, but it is not proved on the record that defendant (Jagdish Raj Bhatia) was licensee of his mother. And, it is also not proved that only the plaintiff exclusively inherited the property from Sheelawanti. P.W.1 Kamlesh herself admitted in her cross- 10 examination that the room from which she is seeking eviction of the defendant (Jagdish Raj Bhatia) was constructed by him on the first floor. The exact words stated by P.W.1 Kamlesh in this connection are “izfroknh us viuk dejk Lo;a cuk;k FkkA ;g tk;nkn eka us eku dkSj ls [kjhnh FkhA” (11) Accordingly, the questions of law mentioned at Serial No. 1, 2 and 3 stand answered. Learned counsel for the defendant / appellant did not press the questions of law No. 4 and 5, raised in the memorandum of appeal, and need not be answered. (12) For the reasons as discussed above, this appeal deserves to be allowed. Accordingly, the appeal is allowed. The judgment and decree dated 09.02.1996, passed by the first appellate court (Civil Judge II (Senior Division) Dehradun), in Civil Appeal No. 152 of 1978, is set aside. The judgment and decree dated 09.11.1978, passed by the trial court (Munsif II, Dehradun), in Suit No. 10 of 1978, is restored. The suit stands dismissed. However, no order as to costs. (All pending applications including Application No. 1844 of 2007 stand dismissed). (Prafulla C. Pant, J.) 17.04.2009 NS 11