Hirabai vs Ramniwas Bansilal Lakhotiya

CIVIL APPEAL No.4282 OF 2019 (Arising out of S.L.P.(C) No.31350 of 2009)

Hirabai (D) Thr. L.Rs. & Ors. ….Appellant(s)

VERSUS

Ramniwas Bansilal Lakhotiya (D) by L.Rs. & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed against the final judgment Signature Not Verified Digitally signed by ASHOK RAJ SINGH and order dated 19.12.2008 passed by the High Date: 2019.04.25 16:48:11 IST Reason:

Court of Judicature at Bombay, Bench at

1 Aurangabad in Second Appeal No.177 of 1988

whereby the High Court dismissed the second

appeal filed by the appellants herein and upheld the

judgment of the Trial Court and first Appellate

Court.

3. A few facts need mention hereinbelow for the

disposal of this appeal.

4. This appeal is filed by the legal representatives

of two original plaintiffs, who died after filing of the

civil suit.

5. The original two plaintiffs were the real sisters

of defendant No.3 (respondent No.3 herein ­

Shankarlal) and their father was late Motilal.

6. There is a building named “Moti Building” in

the city of Jalna, which consists of four houses,

each bearing separate number, viz.,3484/3534,

3485/3535, 3486/3536 and 3487/3537

(hereinafter referred to as “the suit property”).

2

7. Defendant No.3/respondent No.3 sold the suit

property to one Bansilal Shivlal by a registered sale

deed dated 07.10.1965. On the death of Bansilal,

defendant Nos.1 and 2/respondent Nos.1 and 2

herein inherited the suit property as heirs of

Bansilal and thus became the owners of the suit

property.

8. Since some dispute arose between defendant

Nos.1 and 2 with defendant No.3 in relation to the

suit property, defendant Nos.1 and 2/respondent

Nos.1 and 2 herein filed a civil suit in the year

1971, being CS No.48/1971 against defendant

No.3/respondent No.3 Shankarlal and others

(tenants in the suit property). The suit was for a

declaration of title over the suit property and for

permanent injunction in relation to the suit

property. The suit was contested by defendant No.3.

3

9. By judgment/decree dated 31.01.1975, the

civil suit (No.48/1971) was decreed in favour of

defendant Nos.1 and 2/respondent Nos.1 and 2.

The Trial Court inter alia held that defendant Nos.1

and 2 are the owners of the suit property. This

decree attained finality.

10. Thereafter, a civil suit, out of which this appeal

arises, was filed against the defendants

(respondents herein). The suit was for a declaration

that the decree dated 31.01.1975 passed in Civil

Suit No.48/1971 is not binding on the two plaintiffs

and that the sale deed dated 07.10.1965 executed

by defendant No.3/respondent No.3 in favour of

defendant Nos.1 and 2/respondent Nos. 1 and 2 in

relation to the suit property is also not binding on

the two plaintiffs.

11. The suit was founded inter alia on the

allegations that the suit property was an ancestral

4 property of the family in which the two plaintiffs ­

who are the sisters of defendant No.3/respondent

No.3 have an equal share along with defendant

No.3. The plaintiffs alleged that since the suit

property was sold by defendant No.3/respondent

No.3 without their knowledge, authority and

consent, the sale deed dated 07.10.1965 is null and

void to the extent of plaintiffs’ share. The plaintiffs

also alleged that since both the plaintiffs were not

parties to Civil Suit No.48/1971, the decree dated

31.01.1975 passed in the said suit is neither

binding on them nor such decree affects their right,

title and interest in the suit property.

12. During pendency of the civil suit, wife, sons

and daughters of defendant No.3/respondent No.3

also joined the civil suit, either as plaintiffs or as

defendants, some since inception and others at a

5 later stage. Defendant No.3, his wife, sons and

daughters supported the plaintiffs’ case.

13. The suit was contested only by defendant

Nos.1 and 2, who were the purchasers of the suit

property from defendant No.3.

14. According to defendant Nos.1 and 2, first, the

suit was barred by limitation because it was filed

after three years from the date of decree dated

31.01.1975; Second, it was bad in law because the

plaintiffs failed to seek partition in relation to the

entire properties owned by the family; Third, it was

a collusive suit filed at the instance of defendant

No.3/respondent No.3 to avoid execution of the

decree against him; Fourth, the decree dated

31.01.1975 passed in Civil Suit No.48/1971 was

also binding on the two plaintiffs in the light of

categorical finding recorded by the Civil Court in its

judgment dated 31.01.1975; Fifth, in any case, the

6 two plaintiffs had no right, title and interest in the

suit property; Sixth, even otherwise, the sale of the

suit property having been made by a Karta of the

family, i.e., defendant No.3 for the benefit of the

family and for legal necessity, it is binding on the

two plaintiffs including all members of the family;

Seventh, a suit to challenge the decree passed by a

competent Civil Court is not maintainable.

15. The Trial Court, by judgment/decree dated

16.10.1981, dismissed the suit and answered all the

issues against the plaintiffs by upholding the

objections raised by defendant Nos.1 and 2. The

plaintiffs felt aggrieved and filed first appeal before

the 2nd Additional District Judge. By judgment

dated 09.05.1988, the first Appellate Court

dismissed the appeal which gave rise to filing of

second appeal by the plaintiffs in the High Court.

By impugned order, the High Court dismissed the

7 second appeal, which has given rise to filing of the

present appeal by way of special leave by the

plaintiffs in this Court.

16. So, the short question, which arises for

consideration in this appeal, is whether the High

Court was justified in dismissing plaintiffs’ second

appeal and thereby was justified in upholding the

judgment of the Trial Court and first Appellate

Court which resulted in dismissing the suit.

17. Heard Mr. Vinay Navare, learned senior

counsel for the appellants and Mr. Nishant

Ramakantrao Katneshwarkar, learned counsel for

the respondents.

18. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

find no merit in this appeal.

19. In our view, all the three Courts (Civil Judge,

first Appellate Court and the High Court) were right

8 in their reasoning and the conclusion on all the

factual and legal issues raised by defendant Nos.1

and 2 and we find no good ground to differ with

their reasoning and the conclusion.

20. First, the findings impugned in the appeal

being concurrent in nature, were not only binding

on the High Court while deciding the second appeal

and were rightly held to be so binding but such

findings are binding on this Court too; Second, even

otherwise, all the findings have been recorded on

proper appreciation of facts and law and hence do

not call for any interference in this appeal as

detailed infra.

21. Third, the suit in question was apparently a

collusive suit filed at the behest of defendant No.3

through his two sisters and family members to

avoid execution of a valid decree dated 31.01.1975

9 passed by the competent Civil Court against

defendant No.3 in relation to the suit property.

22. Fourth, in the light of findings recorded by the

Trial Court in the previous suit in Para 18, the

present suit was rightly dismissed by all the Courts

below. It is apposite to quote the finding of the Trial

Court recorded in Para 18 which reads as under:

“18. The sale deed has been executed by Shankarlal, who is admittedly the Karta of the family. According to the own statement of defendant No.1, he was in need of money for paying his dues to different persons. He, therefore, sold the house in favour of Bansilal. Defendant No.1 cannot raise the objection that, other heirs of Motilal should be impleaded as defendants. It is for the other heirs, if any, of late Motilal to take recourse to proper remedy in case they fell that, the alienation of the suit house was not in the interest of the family. Other heirs of Motilal are not necessary parties to this suit.

Issue No.8 is decided against the defendants.”

23. The aforesaid finding, in our view, not only

binds defendant No.3 but also binds the two

plaintiffs being the members of the same family.

10

24. Fifth, once it was held that the sale of the suit

property was made by the Karta ­ defendant No.3

and it was made for legal necessity and the benefit

of the family, the same was binding on all the

members of the family including the plaintiffs.

25. Sixth, the plaintiffs failed to plead and prove

that the sale in question was not for the benefit of

family or that there was no legal necessity for such

sale or as to on what basis, they claimed share in

the suit property. On the other hand, defendant

Nos.1 and 2 were able to prove that the sale was for

the legal necessity and benefit of the family.

26. Seventh, the plaintiffs themselves admitted in

their evidence that they filed a civil suit at the

instigation of defendant No.3 ­ their real brother.

This clearly indicates that the suit was not filed for

a bona fide cause but it was a collusive suit filed by

the plaintiffs to overcome the valid decree obtained

11 by the defendant Nos.1 and 2 against defendant

No.3 and to save defendant No.3 from its execution.

27. In the light of the foregoing

discussion/reasons, we find no good ground to

interfere in the impugned order, which is based on

proper appreciation of facts and law governing the

issues.

28. The appeal, is therefore, found to be devoid of

any merit. It is accordingly dismissed.

.………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [DINESH MAHESHWARI]

New Delhi;

April 25, 2019

12