IN THE HON'BLE HIGH COURT OF CHHATTISGARH AE BILASPUR z“ FIRST APPEAL NO. ?»OF 2008 Appellant Defendant FIRST APPEAL UNDER SECTION 96, CODE OF CIVIL PROCEDURE, 1908 ¥> $ishwanath Kedia, S/o Late Babulal Kedia, aged 67 years, Occupation ~ Business, R/o Gandhiganj, Raigarh, Tehsil & Distt. Raigarh Versus Vidyasagar Kedia, S/o Babulal Kedia (since deceased) through LRs. Smt. Geeta Devi Kedia, Widow, D/o Late Vidyasagr Kedia, aged 58 years. Urendra B. Kedia, S/o Late Vidyasagar Kedia, aged 42 years Rakesh B. Kedia, S/o Late Vidyasagar Kedia, aged 32 years (All R/o Kachehari Road, Raurkela (Orissa) Smt. Kiran Agrawal, W/o Pramod Agrawal, R/o Ganesh Nagar, Gondia (Maharashtra) Smt. Kanchan Agrawal, W/o Kuldeep Agrawal, R/o Basteen Bazar, Asansol. Smt. Anita Agrawal, W/o Pramod Agrawal, aged 36 years, R/o Flat No. Sector 2O Raurkela. Smt. Sushma Agrawal, W/o Kedar Agrawal, aged 34 years, R/o Bus Stand — Saraikla. Respondents Plaintiffs 2 L“$iib§éyxzh ‘ .q€§ k QR ,4 . I ,a \4W 7 Vs Respondents Vidyasagar Kedia (dead) and others Plaintiffs (LRs) JUDGMENT FOR CONSIDERATION Sd/- . G.Minhajjudm Judge JUDGE 2.7 .4.2o12 HON’BLE JUSTICE DR. l.M.QJDDUSl l n7w Sd/— I.M.Quddusi Judge POST FOR JUDGMENT ON 27 APRIL, 2012 Sd/- G-. Minhajuddi“ Judge § HIGH COURT OF CHHATTISGARH AT BILASPUR ~ ®\ DIVISION BENCH: HON’BLE DR. I.M.QUDDUSI & \ HQN’BLE MR. G. MINHAJUDDIN, JJ. First Appeal No. 127/2008 Appellant Bishwanath Kedia Defendant Appellant Defendant Vs Respondents Plaintiffs Vidyasagar Kedia (dead) and others Present: Mr. Sanjay Shyam Agrawal, counsel for the appellant. Mr. Sunil Kumar Sahu, counsel for the respondent. JUDGMENT (Delivered on 2f]- L‘w 2012) Per G. MinhajuddinLJ; 1. This appeal has been med under Section 96 of the Civil Procedure Code, 1908 against the judgment and decree dated 30.1.2008 passed by 4‘“ Additional District Judge (FTC), Raigarh (CG) in Civit Suit No.11A/07, whereby suit of the respondent/plaintiff for declaration, partition, separate possession and mesne profits of the suit property has been decreed. 2. The undisputed facts are that appellant Bishwanath Kedia and respondent Vidyasagar Kedia are real brothers and sons of Late Shri Babulal Kedia and Late Smt. Ramabai. The original owner of the suit property was Radhakishan Singhania, who was maternal grand—father of the appellant and the respondent. Radhakishan Singhania had, by gift deed dated 2.10.1923, given the suit property to his daughter Smt. Ramabai Kedia, who is mother of the appellant and Vidyasagar Kedia, in lieu of her maintenance with a condition u that after the death of Ramabai, the suit property will devolve upon her heirs. It is also not in dispute that Smt. Ramabai died in the year 1941 and after that, When Vidyasagar Kedia was about 4-4 1/2 years old that he was given in adoption to his uncle Ramswaroop Kedia, sometime in the year 1943. However, rest of the facts are in dispute. . The case of respondent Vidyasagar Kedia (original plaintiff), in brief, is that he and the appellant herein are real brothers, who are sons of Late Babulal Kedia and Late Ramabai Kedia. Late Ramabai Kedia was daughter of Late Radhakishan Singhania, who was the original owner of the suit property. The suit property was given by Radhakishan to his daughter Ramabai by way of gift deed dated 2.10.1923 in lieu of her maintenance with a stipulation that on the death of Ramabai, ' _ t property will devolve upon her children. Ramabai died in the year 1941 , when Vidyasagar Kedia was about 2 1/2-3 years old and as such, on the death of Ramabai in the year 1941, the suit property devolved upon her children i.e. the appellant and respondent Vidyasagar Kedia jointly and each of them is entitled to 1/2 share in the suit property. When respondent Vidyasagar Kedia ' as aged about 4-4 1/2 years, he was given in adoption to his uncle (father’s elder brother) Ramswaroop Kedia. All the suit property was and is still recorded jointly in the name of the appellant and respondent Vidyasagar Kedia. The appellant is the elder brother of Vidyasagar Kedia. Among the property shown in Schedule C annexed to the plaint, a portion of the house and land, area 1210 sq.ft., forming part of Plot No.1 15, area 10333 sq.ft., was sold on 19.12.1967 by the appellant aknd respondent Vidyasagar <59 /y Kedia to Smt. Champadevi Agrawal and the remaining portion of the house and plot, area 9123 sq.ft. is recorded jointly in the name of the appeiiant and respondent Vidyasagar Kedia. The house situated at Nuzui Sheet No.44, Piot No.126‘ area 1711 sq.ft‘ which was inherited by the appellant and respondent Vidyasagar Kedia from their mother Late Smt. Ramabai has been partitioned between them and they are in possession of their respective shares allotted to them. All the suit property which was given by way of gift to Late Smt. Ramabai by her father Radhakishan and after her death, received in inheritance by the appellant and respondent Vidyasagar Kedia are recorded jointly in the name of the appellant and respondent Vidyasagar Kedia. The appellant herein is managing the said property on his and on behalf of his co-owner brother i.e. Vidyasagar Kedia. Some of the houses forming part of the suit property are in possession of the tenant: . the rent is being realized by the appellant herein. Previously, the appellant used to give half share of the rent amount to respondent Vidyasagar Kedia, but when respondent Vidyasagar Kedia came to know that his elder brother/appellant is receiving a huge amount in the form of rent, but he is being paid a paltry sum, that he demanded half share in the rent amount, which was actually being realized by the appellant from the tenants, but the same was refused. On account of this, respondent/plaintiff Vidyasagar Kedia filed the present suit for declaration of his share in the suit property shown in Schedules A, B & C annexed to the plaint for partition, separate possession and mesne profit. 4 K \Og/ 4. Case of the appellant/defendant, as projected in his written statement, is that respondent Vidyasagar Kedia is residing at Raurkela since 1960-61 and the entire suit property is in exclusive possession of the appeliant. Before the death of their mother Ramabai Kedia, respondent Vidyasagar Kedia was given in adoption to their uncle Ramswaroop Kedia. As such, Vidyasagar Kedia has no right, title or interest in the suit property which is the exclusive property of the appellant herein. The appellant had never paid any share in the rent to respondent Vidyasagar a The sale proceeds of the house sold to Smt. Champadevi on 19.12.1967 by the appellant and respondent Vidyasagar Kedia was taken away by respondent Vidyasagar Kedia, out of which the property situated at Raurkela was purchased but the same has not been included in the suit for partition, on‘ account of which the suit is not maintainable. The suit property has been undervalued for the purposes of Court fee. 5. The learned trial Court after affording opportunity of hearing and of adducing evidence to the respective parties, by the impugned judgment, decreed the suit of the respondent/plaintiff. 6. Heard learned counsel for the parties, perused the record of the Court below as also the impugned judgment. 7. In this appeal, the points for determination under Order 41 Rule 31 of the CPC are the following: (i) Whether respondent/plaintiff Vidyasagar Kedia was given in adoption to his uncle Ramswaroop Kedia before the death of his (respondent Vidyasagar Kedia) mother Smt. Ramabai Kedia? (ii) Whether respondeht/plaintiff Vidyasagar Kedia has haff share in the suit propeny described in Schedules A, B & C annexed to the piaint? (iii) Whether the suit was time barred? (iv) Whether the suit property has be endervaiued for the purposes of Court fee? 8. it is a settled iegai position that admission is the best piece of evidence against the person and in civil cases, on the basis of admission made in the written statement, a decree can be passed under Order 12 Rule 6 of the CPC. For this, the averments made by respondent/plaintiff Vidyasagar Kedia in paras 5 & 6 of the plaint and its reply given in the written statement by the appellant/defendant need to be meticulously perused. 9. in para 5 of his piaint, respondent/plaintiff Vidyasagar Kedia has averred that he was born at Fatehpur on 4.12.1938 and when his age was 2 1/2 - 3 years, that his mother Smt. Ramabai died in the year 1941 and after her death, as per stipulation in the gift deed dated 2.10.1923 executed by Late Radhakishan Singhania in favour of his daughter Ramabai, that the entire property involved in the gift deed, which is the suit property, devolved upon the appellant and respondent/plaintiff Vidyasagar Kedia. 10. ln para-5 of his written statement, the appellant/defendant has admitted the averments made in para—5 of the plaint‘ Respondent/plaintiff Vidyasagar Kedia has averred that he was e born on 4.12.1938 and this fact has not been denied in the written statement by the appellant/defendant. In reply to the avermenté made in para-6 of the plaint, the appeiiant/defendant has admitted that his brother—respondent/plaintiff Vidyasagar Kedia was given in adoption in 1943. in para-3 of the piaint, the famity tree of Radhakishan Singhania, who is maternal grand—father of the appetiant/defendant and respondent/plaintiff Vidyasagar Kedia has been shown, in which the year of death of Smt. Ramabai (mother of the appeiiant/defendant and the respondent/plaintiff) has been shown as 1941. The entire averments made in para-3 of the plaint, inciuding the family tree of Radhakishan Singhania and the year/date of death of Smt. Ramabai and 'er husband Babulai Kedia, which have been shown as 1941 and ; 1995 respectively, have been admitted by the appellant/defendant in para-3 of the written statement. 11. From the averments made in paras 3, 5 & 6 of the plaint, which have been admitted by the appellant/defendant in his written statement, it is clear that Smt. Ramabai, mother of the appellant/defendant and the respondent/plaintiff, died in the year 1941 and after that, when respondent/plaintiff Vidyasagar Kedia was about 4—4 1/2 years old, that he was given in adoption to his uncle Ramswaroop Kedia. 12. it is not in dispute that the original owner of the suit property was Radhakishan Singhania, who is maternal grand-father of the appellant Vishwanath Kedia and Vidyasagar Kedia, who is predecessor in title of the respondents/plaintiffs. it is also not in dispute that vide gift deed dated 2.10.1923, the suit property was @ given by Radhakishan Singhania in lieu of maintenance to his daughter Smt. Radhabai with a stipulation that after her death, her heirs will inherit the suit property‘ It has been proved that Radhabai died in the year 1941 and Vidyasagar Kedia was given in adoption to his uncle Ramswaroop Kedia in the year 1943. As such, Vidyasagar Kedia had inherited the suit property on the death of his mother Radhabai alongwith his brother—appellant Vishwanath Kedia in equal share. 13.As per the averments made by the appellant/defendant Vishwanath Kedia in his written statement as well as in his statement before the Court, his younger brother Vidyasagar Kedia since 1960—61 was living with his adoptive father Ramswaroop Kedia at Raurkeia and out of the saie proceeds of a part‘ suit property, which was sold on 19.12.1967 to Smt. Champabai jointly by appellant Vishwanath Kedia and Vidyasagar Kedia, the property was purchased for Vidyasagar Kedia at Raurkeia, on which a showroom of Bombay Dying was established for him and out of the said income as well as income of the suit property, that other properties were acquired in the name of Vidyasagar Kedia at Raurkeia, which are also liable to be partitioned alongwith the suit property. The appellant Vishwanath Kedia (DW 3) has admitted that the entire suit property is jointly recorded in the name of appellant Vishwanath Kedia and his younger brother Vidyasagar Kedia in the government records. He has further admitted that Nuzul lease of the plots involved in the suit property was granted jointly in favour of appellant Vishwanath Kedia and his brother Vidyasagar Kedia and was valid up to 31.3.1992, after which an application for renewal of the lease jointly in the name 0f appellant and Vidyasagar Kedia has been med and at no point of time, the appellant had raised an objection that he is the soie owner of the suit property. 14.From the above facts, it is evident that after the death of Smt. Ramabai in the year 1941, the respondent/plaintiff was given in adoption in the year 1943. As such, the property of Late Smt. Ramabai had devolved, by virtue of inheritance, before the respondent/plaintiffs adoption, on respondent/plaintiff Vidyasagar Kedia as well as on his elder brother i.e. appellant/defendant, in equal share. Hence, respondent/plaintiff Vidyasagar Kedia is entitled to half share in the suit property shown in Schedules A, B & C appended to the plaint. 15.So far as the question of suit being time barred is concerned, Rakesh Kedia (PW 1), who is son of Vidyasagar Kedia, has stated that as his father was residing at Raurkela, therefore, he had given general power of attorney in favour, ..s uncle—appellant Vishwanath Kedia for managing his share in the joint property situated at Raigarh, which in the present case is the suit property. This fact has not been denied by the appellant. Rakesh Kedia (PW 1) has further stated that previously his uncle—appellant Vishwanath Kedia was giving only Rs.2000/— per year to his father Vidyasagar Kedia as his share in the rental income from the suit property. But in the month of November, 1997 his father Vidyasagar Kedia learnt that in fact, his brother (appellant) is realizing Rs.50,000/- per year as rental income from the suit property and is giving him only Rs.2000l— per year, on account of which a demand for half share in the rental income was made by Vidyasagar Kedia, and on being refused, Vidyasagar Kedia filed the present suit for declaration of share, partition, separate possession and mesne profits on 24.6.2000. in view of the akr-‘Io'nentioned facts, the suit cannot be said to be time barred and the triai Court has rightly rejected the objection of the appeiiant/defendant in this regard. 16.So far as the suit having been undervalued is concerned, the original plaintiff Vidyasagar Kedia had filed the suit for declaration of his share, partition, separate possession and mesne profits, and on his death during pendency of the suit his heirs and legal representative i.e. respondents/plaintiffs have been substituted in his place. The respondents/plaintiffs have valued the suit for the purposes of partition at Rs. 2,20,000/— and for the purposes of mesne profits at Rs. 25,000/-, on which a total court fee of Rs.9,200/— has been affixed. The suit property is situated in Bajirao Mahrapara and Gandhiganj as well as at Ramniwas Talkies Road, Raigarh. 17.The appellant/defendant in addition to himself has examined Mahesh Thakur, Santosh, Deendayal Khikhar, Heeraprasad Gupta and Kailash Chand Agrawal as DW-1, DW-2, DW—4, DW-5 and DW- 6 respectively. On behalf of the respondents/plaintiffs, Rakesh Kedia and Mahavir Agrawal have been examined as PW-1 and PW- 2 respectively. 18.lt is no doubt true that Rakesh Kedia (PW 1) has stated in para-12 of his statement that he has valued the suit property as per his wish and he cannot tell as to what is the valuation of the suit propetty situated in the area of Gandhiganj, Raigarh. Mahavir Agrawal (PW 2) has stated in para—6 of hls‘statement that in the year 1999, 10 the rate of the land situated in Bajirao Mahrapara, Raigarh and at Ramniwas Talkies Road, Raigarh must have been Rs.50/— and Rs.100/— per sq.ft. respectively. This witness (Mahvir Agrawai, PW 2) has further stated that there are about 5—6 plots involved in the suit propertv which is situated at Bajirao Mahrapara, Ramniwas Talkies Fwad behind Gandhigan, Raigarh and the total value of the suit property must have been about five to six lacs rupees. 19.The witnesses, who have been examined on behalf of the appellant/defendant, have stated about the sale transactions, which had taken place in the area of Bajirao Mahrapara, Ramniwas Talkies Road as well as Gandhiganj, Raigarh in the year 1998 and 1999, but it has nowhere been mentioned that the said transactions relates to the properties, which are situated adjoining to and similarly situated as the suit property. As such, the evidence adduced by the parties is of no help for deciding the value of the suit property on the date of filing of the suit and cannot be termed as conclusive. 20.A specitic issue has been framed by the trial Court on the point of valuation of the suit property. After appreciating the evidence adduced, the trial Court has given a hnding that the valuation of the suit property was Rs.6 lacs on the date of institution of the suit in the year 1999 and while decreeing the suit, has ordered that the decree shall become executable only on payment of deficit court fee by the respondents/plaintiffs. The hnding regarding valuation of the suit property on the date of tiling of the suit by the trial Court, in view of the evidence adduced and the totality of the facts and circumstances, cannot be termed as arbitrary and unreasonable. In 11 addition to this, in View of the provisions of Section 21(2) of the CPC, the burden iies on the appeliant/defendant to show that on account of undervaiuation‘of the suit and its presentation in a Court Iacking pecuniary jurisdiction, he had suffered prejudice resulting in failure of justice. in this connection, the law has been iaid down by the Hon’ble Apex Court in the case of Mantu Sarkar Vs. Oriental Insurance Company Ltd., (2009) 2 SCC 244. As such, the finding given by the trial Court in this regard cannot be termed as faulty and deserves to be amrmed. 21.ln the result, the appeal is dismissed. The impugned judgment and decree dated 30.1.2008 passed by 4‘“ Additional District Judge (FTC), Raigarh in Civil Suit No.11A/07, is hereby affirmed. However, there shall be no order as to costs. 22.Additional Registrar (Judicial) is directed to draw up a decree accordingly. Sd/- Sd/— G. Minhajuddin I-M-Quddusi Judge Judge