Bonder & Anr vs Hem Singh(Dead)Byl.Rs.& Ors

2. In order to appreciate the controversy involved in the case, it is necessary to recapitulate the basic facts of the case.

3. The appellants' father Sukhram (since deceased) filed a suit bearing Civil Original Suit No. 230A of 1972 before the learned Fifth Civil Judge, Indore, Madhya Pradesh against Jagannath (since deceased). It was pleaded, inter alia, that Sukhram (plaintiff) and Jagannath (defendant) were brothers and sons of Narsingh, who died leaving behind 22.39 acres of agricultural land and an ancestral house in village Kadwali Khurd. The said land was jointly cultivated and the house was jointly occupied by both the brothers. Sukhram went to his maternal uncle's house to look after his property. Sukhram before leaving the village went to his brother Jagannath and requested him that he would be looking after his maternal uncle's property and till he returned to his village, the property may be looked after by him (Jagannath) and he be given the usufruct or income from his share of the property.

4. On return, Sukhram demanded the possession of the property of his share and also demanded the income derived from the said property from Jagannath, but he did not pay any attention to his request. Ultimately, Sukhram had to issue a notice on 13.6.1971 to Jagannath. The said notice 3 was served upon Jagannath on 19.6.1971 but even then he did not give possession of the land and the income from it to Sukhram during the period when he was away. Ultimately, Sukhram filed a civil suit and claimed possession and future mesne profits at the rate of Rs.1,000/- per year and Rs.8,000/- for the past mesne profits.

6. The learned Civil Judge decreed the suit in favour of plaintiff Sukhram. The plaintiff's case is crystal clear that he had entrusted his share of immovable properties to his brother Jagannath to look after it and return the same to him on his return along with the usufruct or income derived from his share of the immovable properties. The evidence 5 does not reveal that the plaintiff left the suit property with a view to permanently abandoning it.

11. The plaintiff respondent, aggrieved by the judgment of the first Appellate Court (Eighth Addl. District Judge, Indore) preferred second appeal before the High Court. The High Court by the impugned order set aside the concurrent findings of facts of the courts below and allowed the appeal. The High Court, while setting aside the concurrent findings of facts of courts below, gave very unusual, strange and 7 totally unsustainable reasonings. The High Court observed that the plaintiff, according to his own pleadings, left the village somewhere between 1935-40 and received his share in the property up to the year 1950 and thereafter all his rights were denied and defendant Jagannath asserted his absolute right in the property. According to the impugned judgment of the High Court, the two courts had not taken into consideration the pleadings of the parties and the admissions made by the plaintiff which have important bearing on the facts of the case and the appreciation of the evidence.

13. The plaintiff Sukhram, aggrieved by the said judgment of the High Court, has preferred this appeal under Article 136 of the Constitution.

15. In our considered opinion, the High Court erroneously set aside the concurrent findings of facts of the two well reasoned judgments of the courts below.

16. The impugned judgment of the High Court is wholly unsustainable, illegal, perverse and against the norms of any civilized society. The judgment of the High Court has demolished the entire fiber of joint family system of our country and has put premium on the dishonesty of the defendant and the same deserves to be set aside. It is unfortunate if one brother cannot trust his own brother even to this extent then how can peace and tranquility prevail in the society? The saddest part is that the High Court while setting aside the concurrent findings of the two courts has put judicial seal of approval on such a dishonest conduct of the defendant (Jagannath). The impugned judgment of the High Court cannot be sustained and is accordingly set aside. The defendant did not have any case either in law or equity.

17. This appeal is allowed with costs which is quantified at Rs.50,000/- to be paid by the respondent to the appellant herein within two months.

May 15, 2009