FIRST APPEAL No. 504 OF 1985 Against the judgment and decree dated 06.06.1985 passed by Sri Nand Kishore Narain Sinha, Subordinate Judge, Gopalganj in Title Suit No.23 of 1972. ARUN KUMAR AND OTHERS …… Defendants/Appellants Versus MRS. SAROJ DWIVEDI AND OTHERS. …… Plaintiffs/Respondents ******** For the appellants : Mr. R.K.P. Singh, Advocate Mr. Bal Bhushan Chaudhari, Advocate Mr. Amrendra Nath Vishwash, Advocate Mr. D.N. Gupta, Advocate For the respondents : Mr. Kamal Nayan Chaubey, Sr. Advocate Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mr. Ranjan Kumar Dubey, Advocate with them. =============================================== Dated : 7th day of September, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendants have filed this first appeal against the judgment and decree dated 6.6.1985 passed by the Sri Nand Kishore Narain Sinha, learned Subordinate Judge, Gopalganj in Title Suit No. 23 of 1972 whereby the learned court below decreed the plaintiffs- respondents‟ suit for partition to the extent of 1/4th share. 2. The original plaintiff Sri Ranganath Tiwari filed the aforesaid suit for partition claiming 1/4th share in schedule 1 to 3 of the plaint. The original defendant No.1 was Chandrajyoti Devi. During the Mungeshwar Sahoo, J. -2- pendency of the suit Chandrajyoti Devi died in the year 1977. In her place her daughter Smt. Savitri Devi was substituted. In this appeal Savitri Devi was the sole appellant and the plaintiff Ranganath Tiwari was the sole respondent. The appellant Savityri Devi as well as the respondent Ranganath Tiwari both of them died during the pendency of the appeal and their legal representatives have been substituted. 3. The plaintiff claimed partition to the extent of 1/4th share alleging that the suit properties belonged to Jagnnath Ram who had two wives namely Shyama Devi and Chandrajyoti Devi. Jagnnath Ram and Shyama Devi died, therefore, Chandrajyoti Devi became the absolute owner of the property as mentioned in detail in Schedule 1 and 2 of the plaint. It is also stated that Schedule 3 property has been acquired on the basis of a decree. Chandrajyoti Devi sold her 1/4th share through two registered sale deeds dated 3.1.1958 Ext.2 and 2/A to the plaintiff Ranganath Tiwari. After purchase the plaintiff has got 1/4th share in the properties and is in joint possession with the defendant. Since the plaintiff is feeling inconvenience in the joint enjoyment of his 1/4th share he requested the defendant to partition but she did not agree, therefore, the suit was filed. The Schedule 1 lands situate in Saran District whereas schedule 2 lands situate in Deoria. 4. The original defendant Chandrajyoti Devi neither appeared nor filed written statement. After her death on being substituted her daughter Savitri Devi filed contesting written statement alleging that the suit is not maintainable and the plaintiff has got no cause of action. The allegations made in the plaint are false and not true. The plaintiff is clever person and no notice was served on her mother therefore, her mother had no knowledge about the pendency of the suit and she could not filed written statement and she died. It is -3- further alleged that the suit has already abated because her mother Chandrajyoti Devi had died in the year 1977 but plaintiff gave false date of death and played a fraud on the court and filed the application for substitution. Since the suit had already abated prior to substitution the suit is not maintainable. The defendant shall file a separate application for recall or modification of the order substituting her. The defendant further alleged that there is no unity of title and possession. The plaintiff was never in possession and is not in possession and has not acquired any right title interest in the suit property. The suit is barred under Section 34 of the Specific Relief Act. There was no relationship between plaintiff and Chandajyoti Devi. 5. The further case is that Chandrajyoti Devi had filed Title Suit No. 52 of 1952 against Hardev Prasad and Mr. Shiv Kumar Dwivedi Advocate of Chapra was conducting her case. The said Shiv Kumar Dwivedi created the sale deed without payment of any consideration. The mother of the defendant never executed the said sale deed nor she had any requirement of money. The contents of sale deed was never read over and explained to her. The sale deeds are forged fabricated, false and without consideration. Chandrajyoti Devi was a Paradanashin lady so she was relying on her Advocate Shiv Kumar Dwivedi. On the basis of the sale deed the plaintiff never came in possession. If the sale deeds are proved then also the same are dead letter and plaintiff never acquired any title and possession. After death of Chandajyoti her daughter is coming in possession. All other allegations were denied by the defendant. 6. On the basis of the aforesaid pleadings of the parties, the learned court below framed the following issues. “1. Is the suit as framed maintainable ? -4- 2. Have the plaintiffs valid cause of action for the suit ? 3. Is the suit barred by limitation ? 4. Is the contract of sale dated 10.1.1977 valid, genuine and for consideration ? 5. Have the plaintiffs been ready and willing to pay the consideration due to sale the sale deed executed ? 6. Are the plaintiffs entitled to a decree for specific performance of contract as claimed ? 7. To what other relief or reliefs are the plaintiffs entitled ?” 7. It appears that during the pendency of the suit an application was filed by the defendant under Section 4(C) of the Consolidation Act and after hearing both the parties the suit was held to have abated with respect to Saran, Gopalganj properties and further held that so far Deoria properties are concerned the suit will proceed. 8. After trial the learned court below came to the conclusion that the two sale deeds Ext. 2 and 2/A are valid genuine and operative and for consideration. The learned court below also found that there is unity of title and possession between the parties over schedule 2 properties and that the plaintiff has got valid cause of action. So far Schedule 3 properties is concerned the learned court below held that the plaintiff is not entitled to any share and accordingly, the plaintiff‟s suit was decreed in part so far it relates to schedule 2 property. 9. The learned counsel Mr. R.K.P. Singh appearing on behalf of the appellant submitted that the simple suit for partition is not maintainable on the ground that the Title Suit No. 23 of 1972 has abated as Chandrajyoti Devi died on 5.4.1977 and till 5.7.1977 no substitution application was filed. Therefore, the suit automatically abated in view of provision contained under Order 22 Rule 4 sub Rule -5- 3. On 12.1.1978 substitution application was filed giving imaginary date of death as 15.10.1977 which was allowed on 1.4.1978 without notice to the heirs of Chandrajyoti Devi. After appearance Savitri Devi daughter of Chandrajyoti in her written statement at paragraph 5 categorically stated that the suit had abated prior to substitution but no issue was framed on that point by the court below therefore, the judgment and decree is vitiated. DW 1 Khublal had stated that Chandrajyoti Devi died on 5.4.1977 and there is no cross examination on this point by the plaintiff therefore, the learned court below could have held that suit has abated. 10. The learned counsel next submitted that the plaintiff Ranganath Tiwari had not filed substitution petition dated 12.1.1978 because some other person has signed on the said application as Ranganath Tiwari. The signature on the petitioner do not tally with the signature of Ranganath Tiwari on the plaint and vakalatnama the original application was not supported by affidavit and, therefore, court below directed to file an affidavit which was filed on 13.2.1978 which was affidavited by an Advocate clerk but the court below failed to apply his judicial mind and allowed the substitution application by terms of order dated 1.4.1978. In view of the provision as contained in order 43 Rule 1-A C.P.C. the appellant is challenging the said order dated 1.4.1978. 11. The next point raised by the learned counsel is that on the application of the defendant the suit was abated with respect to schedule 1 property situated in Gopalganj and learned court below by terms of order dated 14.8.1982 held so. The consequence of the said abatement the property remained in the suit was regarding schedule 2 property. All the properties situated in Deoria therefore, the Sub Judge, Gopalganj had no territorial jurisdiction but the learned court -6- below rejected the application by terms of order dated 14.8.1982. The learned court below should have taken into consideration the subsequent facts as the suit proceeded with respect to schedule 2 property only, the right to sue is dependent on the right to the property and cause of action is not a vested right in favour of the plaintiff therefore, when the cause of action regarding Gopalganj property ceased the learned court below had no territorial jurisdiction to decide the suit relating to Deoria property. 12. The learned counsel next submitted that the suit filed by original plaintiff is not a simple suit for partition rather it is a suit for declaration of title and recovery of possession therefore, the plaintiff was required to pay advolarum court fee and for non-payment thereof the learned court below should have dismissed the suit. On the date of execution of sale deed dated 3.1.1958 final decree proceeding in earlier title suit No. 52 of 1952 was pending. In fact during pendency of the final decree proceeding these two sale deeds were created. Since Chandrajyoti Devi was not in possession because of the fact that no delivery of possession was affected on her she could not have given possession to the plaintiff, therefore, Ranganath Tiwari never came in possession of the properties either exclusively or jointly with Chandrajyoti Devi. The plaintiff being the purchaser of undivided share has no right to directly go over on the purchased property and has no right of possession. He had only the right to sue for partition therefore, it cannot be regarded as simple suit for partition as such advoluram court fee was payable. Since no advoluram court fee has been paid the suit could not have been decided in favour of the plaintiff. 13. The learned counsel next submitted that since the suit cannot be treated as simple suit for partition therefore, provision of -7- Limitation Act would be attracted. Under law presumption is that possession of one co-sharer is possession of other co-sharer and unity of title and possession is there but in this case Chadrajyoti Devi and Ranganath Tiwari cannot be said and held to be a co-sharer. The right to file suit by Ranganath Tiwari on the basis of Ext. 2 and 2/A started from the date of creation of sale deeds i.e. 3.1.1958 but for first time the suit has been filed after 14 years in the year 1972 and the suit not being a simple suit for partition is barred by law of limitation and adverse possession because Ranganath Tiwari never came in possession. The learned counsel further submitted that Article 65 of the Limitation Act will apply and if it is held that the said Article is not applicable then the residuary Article 113 of the Limitation Act will apply and, therefore, in any view of the matter the suit was barred by law of limitation. 14. The learned counsel next submitted that since the right to sue accrued to enforce Ext.2 and 2/A on 3.1.1958 on which date cause of action arose but the plaintiff for more than 12 years remained silent and, therefore, after expiry of 12 years the cause of action was lost and, therefore, the plaint should have been rejected on that ground alone under Order 7 Rule 11 of the Code of Civil Procedure. 15. The learned counsel next submitted that there is no unity of title and possession. The plaintiff has also not pleaded the act of possession in the plaint. The oral evidences adduced regarding act of possession by the plaintiff is inadmissible as there is no basis. The sale deeds never saw the light of the day for 14 years therefore, it remained a dead letter and inoperative. -8- 16. The learned counsel next submitted that both the sale deeds are not genuine rather the same are forged and fabricated. The sale deeds did not contain the signature of Chandrajyoti Devi and her son- in-law Ram Narain Prasad. Her signature is vividly apparent and visible on examination by necked eyes. The admitted signature of Chandrajyoti Devi is available on the record of title suit No. 23 of 1972 which may be meticulously examined and compared. The consideration amount of Rs. 2000/- in each deed appears to be shocking to the conscience. According to the learned counsel why the genuine purchaser would purchase such properties which are under litigation particularly when they are strangers to each other and the plaintiff was resident of U.P. The sale deeds are forged, fabricated one and colorable which was created by Shiv Kumar Dwivedi, Advocate in Chapra in order to grab the property of his client Chandrajyoti Devi or for blackmailing her or extortion of money who developed lust for the costly properties. The sale deeds were never registered in nearest registration office. 17. The learned counsel next submitted that the plaint is silent about passing of consideration which is necessary for establishing the right, title of the plaintiff. There is complete denial of payment of consideration amount. The evidences produced by the plaintiff are absurd, contrary and unreliable. There is variance between evidence and proof. The plaintiff has failed to prove payment of consideration. The story of incurring debt on handnote by Chandrajyoti Devi is not accepted and the plaintiff failed to prove the same according to the law. The plaintiff has failed to prove that in fact the sale deeds were executed by Chandrajyoti Devi because she was Pardanashin lady and the onus was on the plaintiff to prove the same. She was not only Pardanashin lady but also old infirm and ailing lady. -9- 18. He next submitted that during the pendency of the first appeal the gift deed dated 20.7.1991 was created by Sri Shashi Shekhar Dwivedi, Senior Advocate Patna High Court in the name of his son Sri Ravi Shankar Dwivedi, Advocate of Patna High who died in an accident subsequently. The said deed is void ab initio because the consolidation authority is going on and no permission is obtained and, therefore, on the basis of gift deed the mother of Mr. Ravi Shankar Dwivedi could not have been substituted. 19. In this first appeal some interlocutory applications being interlocutory application No. 827 of 2007 has been field by the appellant on 13.4.2007 for substitution of legal representatives of Ranganath Tiwari. Another interlocutory application i.e. I.A. No. 2887 of 2007 has been field for condoning the delay in filing the substitution application. Another I.A. No. 2888 of 2007 was filed for making correction in I.A. No. 827 of 2007. On 25.8.2010 I.A. No. 7557 of 2010 was filed by Smt. Saroj Dwivedi for being substituted in place of sole deceased respondent Ranganath Tiwari on the plea that Ranganath Tiwari gifted the property to Mr. Ravishankar Dwivedi who died and she being his legal representatives is entitled to be substituted. IA. No. 7685 of 2010 has been field by the legal representatives of the Ranganath Tiwari alleging that they have no interest in the property as it has been gifted therefore, Saroj Dwivedi may be substituted. It appears that the substitution was allowed on 3.9.2010 and Smt. Saroj Dwivedi was substituted when nobody appeared on behalf of the appellant. Thereafter I.A. No. 9313 of 2010 was filed by the appellant for recall of the said order dated 3.9.2010 on the ground that in fact Saroj Dwivedi is neither legal representatives nor heirs of Ranganath Tiwari and, therefore, she could not have been substituted under Order 22 Rule 4 C.P.C. Earlier -10- order was passed that all these interlocutory applications shall be considered at the time of hearing of the appeal and, therefore, I have heard the parties on these interlocutory applications also. 20. It further appears that on behalf of the appellant I.A. No. 271 of 2011 and supplementary affidavit to the said I.A. has been field by the appellant under Order 41 Rule 27 of the C.P.C. for taking additional evidence. In the said interlocutory application many documents have been annexed and it is prayed that the said documents may be taken as additional evidence. On these grounds it is submitted that the impugned judgment and decree be set aside. 21. On the other hand the learned Senior counsel Mr. Kamal Nayan Chaubey appearing on behalf of the respondents submitted that none of the grounds alleged by the appellant arises for consideration in this appeal. So far abatement under Order 22 rule 9 C.P.C. is concerned it is submitted by the learned senior counsel for the respondents that in the written statement no date of death of Chandrajyoti Devi ahs been mentioned. At paragraph 5 it has specifically been stated that Chandrajyoti Devi died in the early year of 1977 and the plaintiff gave imaginary date of death and substitution was allowed therefore, the defendant will file separate application for recall of the order allowing substitution but no such application was ever filed. Although this defence was taken in the written statement it was never pressed nor any issue was suggested therefore, there was no occasion for framing an issue on these points. Moreover, when substitution has already been allowed and the legal representatives were brought on record there was no question of abatement. The argument made by the learned counsel for the appellant is fallacious and approach is hypertechnical. The evidence of DW I is concerned he has given a specific date of death dated -11- 5.4.1977 which is unreliable because the defendant who is the daughter herself has not mentioned in the written statement the date of death of her mother. Moreover, on the basis of this evidence of DW I it cannot be said that suit has abated. So far Section 4 (C) of Consolidation Act is concerned the issue was raised and decided on 14.8.1982 and the suit was ordered to be abated with regard to Gopalganj property. Against that order civil revision No. 1394 of 1982 was filed by the defendant which was dismissed and, therefore, the order dated 14.8.1982 became final. The said order can never be challenged in appeal. So far Bihar property is concerned the case has been decided by the consolidation authorities in favour of the defendant by the High Court as would be evidence from the decision reported in 2005 (2) PLJR 476. Against the said decision L.P.A. had been field by the appellant which is still pending. The learned counsel further submitted that as soon as the consolidation proceeding is de- notified the suit will revive and the decree will be passed by the civil court inconformity with the consolidation authority as has been held by Full Bench decision of this court reported in 2000 (2) PLJR 338. Therefore, on the abatement of suit partly the territorial jurisdiction of the court never ceased on the ground that the other part of the property is situated within the territorial jurisdiction of the other court. The learned counsel further submitted that under Section 17 of the Code of Civil Procedure the present civil court had jurisdiction to try the suit and on de-notification the same court will again adjudicate and pass decree inconformity with the order passed by the consolidation authority. In such circumstances the argument of the learned counsel that on the abatement the jurisdiction will be ceased is not acceptable. The learned counsel for the respondents submitted that the purchaser has the right to file partition suit for getting his -12- share separated and, therefore, he filed the partition suit claiming his title on the basis of Ext. 2 and 2/A. The defendant appellant stated that the said deeds are forged and fabricated sale deeds and no consideration was paid to Chandrajyoti Devi but in support of the said statements in the written statement, no evidence at all was adduced by the appellants. Therefore, the pleading itself cannot be accepted to be the proof of the fact alleged by the appellant. It was the onus on the appellant to prove the fact alleged by them by adducing evidence. The learned counsel next submitted that all the allegations have been made against the Advocate conducting the case of Chandajyoti Devi who is dead now and also allegations have been made against the present Senior counsel of Patna High Court who is son of Sri S.K. Dwivedi deceased that they got the sale deed created but except the statement of the appellant and the argument advanced before the civil court there is no evidence at all on record but all these submissions made by the learned counsel for the appellant is creation of his mind without therebeing any basis as on the basis of affidavit only the civil suit cannot be decided. 22. The learned counsel next submitted that the plaintiffs have examined the attesting witnesses of the sale deeds, the son-in-law of Chandrajyoti Devi i.e. husband of original appellant Savitri Devi who was the pairvikar in earlier suit No. 52 of 1952 and also pairvikar in the present suit on behalf of Chandrajyoti Devi and then on behalf of Saritri Devi who had identified the signature of Chandajyoti Devi on both the sale deeds and even during the examination of witnesses he was present in the court but he was never examined in the present case. The suit was filed in the year 1972 but till 1977 Chandrajyoti Devi herself never appeared and filed written statement. The plaintiff had examined even handwriting expert to prove the signature of -13- Chandrajyoti Devi on the two sale deeds and her admitted signature on deposition in earlier suit was compared and found to be her signature and handwriting. The learned counsel next submitted that the learned court below has rightly held that she was not Pardanashin on the date of execution of the sale deeds. So far finding in Title Suit No. 52 of 1952 regarding Pardanashin lady is concerned it is not applicable in the present case because it cannot be said that once a pardanashin is always a paradanashin. She might be pardanashin at the early age on her marriage but when the time passed and she became older and older she started appearing in the public places and even she deposed before the court in earlier suit. Moreover the plaintiff has adduced evidence in support of the fact that the contents of the sale deeds were explained to her and after understanding the contents thereof she signed the sale deeds and her signature has been identified by her son-in-law himself therefore, on the ground of Pardanashin only the sale deeds which were proved to have been validly executed cannot be set aside. 23. The learned counsel next submitted that since the suit was simple suit for partition on the basis of two sale deeds no limitation will apply and that plaintiff was not required to pay advoluram court fee. Neither Article 65 of the Limitation Act nor Article 113 of the Limitation Act is applicable. Moreover, even if it is held that the defendants are claiming adverse possession then also they had to prove adverse possession or ouster of the plaintiff by adducing cogent evidence but here the original defendant Savitri Devi herself never appeared before the court below for her examination. Therefore, there is no evidence about ouster or adverse possession. Chandrajyoti Devi sold the property to the present