P. Ishwari Bai vs Anjani Bai

1 | Page of the Trial Court and dismissed the suit. The Division Bench

of the High Court dismissed the LPA filed by the Plaintiffs on

05.08.2008 giving rise to this Appeal.

3. It is relevant to mention that Plaintiff No.2 Narsoji died

on 25.07.2008 during the pendency of the LPA before the

High Court. Leave was granted to file Appeal by this Court

on 14.02.2009. During the pendency of the Appeal in this

Court, Defendant No.2 died in the year 2013. On

04.07.2014, Plaintiff No.1 filed an application for bringing the

legal representatives of deceased Defendant No.2 on record.

It is to be noted that Defendant No.1 is the wife of Defendant

No.2. The Registry of this Court pointed out certain defects

in the application for bringing the remaining legal

representatives of the deceased Defendant No.2 on record.

Due to the default of not curing the defects pointed out by

the Registry, Defendant No.2 was deleted from the array of

parties by an order dated 28.10.2015. When the matter was

listed for hearing on 23.10.2019, learned counsel for

Defendant No.1 sought dismissal of the appeal as not being

maintainable in view of the deletion of Defendant No. 2 from

the array of parties. Thereafter, an application was filed by

the Plaintiff for setting aside the abatement and for

2 | Page restoration by condoning the delay in filing the application, in

which notice was issued.

4. During the course of hearing of the appeal, Ms. Prerna

Singh learned counsel for Defendant No.1 took a preliminary

objection to the maintainability of the appeal in view of the

abatement of the appeal insofar as Defendant No.2 is

concerned. She relied upon the judgement of this Court in

Goli Vijayalakshmi & Ors. v Yendru Sathiraju & Ors. 1 to

argue that there cannot be contradictory decrees in the

event of Plaintiff succeeding in the appeal.

5. Mr. A.T.M. Rangaramanujam, learned Senior Counsel

appearing for the Plaintiff countered the said submission and

argued that in terms of Order XLI Rule 4 of the Code of Civil

Procedure, 1908 the Appeal is still maintainable in spite of

death of one of the Defendants. He relied upon the

judgement of this Court in Mahabir Prasad v. Jage Ram &

Ors.2 in which it was held as follows: -

“Where in a proceeding a party dies and one of the legal

representatives is already on the record in another capacity,

it is only necessary that he should be described by an

appropriate application made in that behalf that he is also on

the record, as an heir and legal representative. Even if there

1 (2019) 11 SCC 352 2 (1971) 1 SCC 265

3 | Page are other heirs and legal representatives and no application

for impleading them is made within the period of limitation

prescribed by the Limitation Act, the proceeding will not

abate.”

6. As stated earlier, Defendant No.1 is the wife of

Defendant No.2, who died during the pendency of this

appeal. As the legal representative of the 2 nd Defendant is on

record, we propose to hear this Appeal on merits.

7. The Plaintiffs’ case before the Civil Court is that the suit

property which is the house in survey No. 134, Malakpet,

Hyderabad was purchased from Defendant No.4. It was

averred in the plaint that Defendants No.1 and 2 trespassed

on the property in September, 1975. Defendants No. 1 & 2

denied the averments made in the plaint. According to

Defendants No.1 & 2, Mrs. Akbarunnissa Begum was the

owner of Survey No.108. She sold 490 sq. yards to Mr. B. N.

Chowlkar through a registered sale deed dated 26.07.1960.

Mr. B. N. Chowlkar sold the plot to Mrs. Pullasetty Maniamma

by a registered sale deed dated 21.08.1961. Defendant No.1

purchased the said plot on 18.09.1974 and a registered sale

deed was executed in her favour on 03.09.1975.

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8. The Trial Court held that Defendant No.4 had title to the

said house. The Plaintiff purchased the property from

Defendants No.3 and 4. Defendant Nos.1 and 2 were

declared to be trespassers. In the appeal filed by Defendants

No. 1 and 2, a learned Single Judge of the High Court allowed

the application filed under Order XLI Rule 27 and accepted

the judgement dated 18.06.1987 in CCCA No.146 of 1979 as

additional evidence and marked it as Exhibit B-14. CCCA

No.146 of 1979 arose out of a judgment dated 30.12.1978 in

O.S. No.22 of 1970 on the file of the Additional Chief Judge,

City Civil Court, Hyderabad. The learned Single Judge held

that the suit house is not in Plot No.14 forming part of Survey

No.134 at Malakpet, Hyderabad but it is part of plot No. 213-

A forming part of Survey No. 108 at Malakpet as pleaded by

Defendant Nos. 1 & 2. The reasons given by the High Court

for such conclusion is that Defendants No.3 and 4, the

vendors of the Plaintiff were not examined. The evidence of

the son of Defendant No.4 was scrutinised by the learned

Single Judge and found him to be unreliable for the following

reasons: -

a) He did not know the contents of the power of attorney

though he executed the sale deed in favour of the

Plaintiff as attorney to his father, Defendant No.4.

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b) He did not have any clue as to when his father made an

oral gift of the suit house to Defendant No.3, and

c) He did not have any knowledge about the house

number of the suit house.

9. On the basis of the findings in an earlier judgement of

the civil Court (Exhibit B-8), the learned Single Judge held

that the son of Defendant No.4 used to indulge in speculative

litigation claiming property worth lakhs of Rupees by filing

suit as an indigent person. The evidence of PW-2 and PW-4

were also examined by the learned Single Judge to hold that

it was not of much help to the Plaintiff. One strong

circumstance, which was noted by the learned Single Judge is

Exhibit A-1 in which it was mentioned that Defendant No.4

conveyed the suit premises in favour of Defendant No.3 by

way of oral gift but the said recital was found struck off and

initialled by Defendant No.3. The relationship, if any

between Defendants No.3 and 4 was not proved. The

learned Single Judge of the High Court disbelieved the

averments of the Plaintiff that Defendant No.4 gifted valuable

land measuring 490 sq. yards in Malakpet to Defendant No.3.

Finally, the learned Single Judge held that the Plaintiff failed

to establish her title over the suit house and possession of

the same from 07.11.1974.

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10. A Division Bench of the High Court upheld the

judgement of the learned Single Judge and held that the suit

plot is not forming part of plot in new Survey No.134

corresponding to old Survey No. 107 as pleaded by the

Plaintiffs.

11. The main contention of the learned Senior Counsel for

the Plaintiff is that the application filed under Order XLI Rule

27 by Defendant Nos. 1 and 2 was wrongly allowed by the

learned Single Judge. The application filed under Order XLI

Rule 27 by Defendant Nos. 1 and 2 was for placing a

judgement of the High Court in CCCA No.146 of 1979 dated

18.06.1987 on record. CCCA No. 146 of 1979 arose out of the

judgment dated 30.12.1978 in O.S. No.22 of 1970, which was

not a part of the record in the Civil Court. No prejudice is

caused to the Plaintiff by the judgment of the Appellate Court

in CCCA No. 146 of 1979 being permitted to be adduced as

additional evidence in the appeal.

12. We do not find any substance in the submission made

by Mr. A.T.M. Rangaramanujam, learned Senior Counsel for

the Plaintiff that the High Court committed an error in setting

aside the judgement of the Trial Court. We are in agreement

with the well-considered judgement of the High Court in

7 | Page which there is a detailed discussion of all the issues. The

High Court thoroughly discussed the entire evidence to come

to a conclusion that the Plaintiff has not made out any case

for declaration of title over the disputed property in her

favour. The judgement of the learned Single Judge was

upheld by the Division Bench of the High Court on

appreciation of the evidence, with which we agree.

Accordingly, the Appeal is dismissed.

..............................J. [L. NAGESWARA RAO]

............................J. [B. R. GAVAI]

New Delhi, September 01, 2021.

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