SHRI RAM SAHU (DEAD) THROUGH LRS. Vs. VINOD KUMAR RAWAT
LAWS(SC)-2020-11-7
SUPREME COURT OF INDIA (FROM: MADHYA PRADESH)
Decided on November 03,2020

Shri Ram Sahu (Dead) Through Lrs. Appellant
VERSUS
Vinod Kumar Rawat Respondents





Cited Judgements :-

KULDIPSINH RAMHARISINH JAT VS. PURNIMABEN JITENDRABHAI SHAH [LAWS(GJH)-2022-4-275] [REFERRED TO]


JUDGEMENT

M.R.SHAH, J. - (1.)Leave granted.
Feeling aggrieved and dissatisfied with the impugned order dated 14.07.2017 passed by the High Court of Madhya Pradesh at Gwalior in Review Petition No.465 of 2015 in First Appeal No.241 of 2005, by which the High Court has allowed the said review petition filed by the respondent nos. 1 and 2 herein- original defendants nos. 1 and 2, and has reviewed the judgment and order dated 10.12.2013 passed in First Appeal No.241 of 2005 and has deleted the observations made in para 20 of the said judgment and order more particularly with respect to the observations made in para 20 as regards the possession of the disputed house, which were in favour of the appellants - the original plaintiffs, the appellants have preferred the present appeal.

(2.)The relevant facts leading to the present appeal in nutshell are as under:
That one Shri Ram Sahu, the predecessor of the appellants herein instituted Civil Suit No.04A of 2005 before the Learned Trial Court against the respondents herein - original defendants for declaration of registered Sale Deed dated 25.03.1995 executed by original defendant no.3 in favour of original defendant nos. 1 and 2 regarding House No.28/955 (previous House No.3/1582), situated in Sube Ki Payga, Jiwajiganj, Lashkar, as null and void and for permanent injunction against defendant nos. 1 and 2 restraining defendant nos. 1 and 2 from transferring the disputed property to any other person.

2.1. That the original plaintiff Shri Ram Sahu claimed the ownership of the disputed property on the basis of the will executed by one Chhimmabai executed in his favour on 19.10.1993. The original plaintiff also claimed that he became the sole owner on the death of the Chhimmabai and possession holder of the entire house and in the same capacity; he is in continuous possession over the same. It was the case on behalf of the defendants that the said Chhimmabai adopted defendant No.3 and later on, she got registered the Adoption Deed on 13.05.1992 and that the original defendant no.3 sold the disputed property in favour of the respondent nos. 1 and 2. The original plaintiff denied the adoption of defendant no.3 by the said Chhimmabai. The written statement was filed on behalf of the respondents. They denied that the disputed property was the Joint Hindu Family property. Defendant nos. 1 and 2 also claimed to be the bonafide purchasers and in possession of the suit property.

2.2. The Learned Trial Court framed the following issues:

"1. Whether, the Disputed House No.28/95 situated in Sube Ki Payga, Jiwajiganj, Lashkar, Gwalior was purchased from the income of Joint Hindu Family of Ghasilal and Mangaliya?

2. Whether, the wife of Ghasilal namely Chhimmabai had executed Will of aforesaid House in favour of the Plaintiff on 19.10.1993?

3. Whether, Defendant No.3 was adopted by Ghasilal on 28.01.1985, which was got registered by Chhimmabai on 13.05.1992.

4. Whether, Sale Deed dated 25.03.1995 regarding the disputed house was executed by Defendant No.3 in favour of Defendant Nos. 1 and 2 without having any right?

5. Whether, the Plaintiff is entitled to get the Registered Sale Deed Dated 25.03.1995 as null and void?

6. Whether, Plaintiff is entitled to receive Permanent Injunction against the Defendant Nos. 1 and 2 for not to sell the disputed house?

7. Whether, the Defendant Nos. 1 and 2 are entitled to receive special compensation from the Plaintiff? If Yes, then how much?

8. Relief and Costs."

2.3. Both the parties led the evidence, oral as well as documentary, in support of their respective claims.

2.4. Original Plaintiff Shri Ram Sahu - appellant herein was examined as PW1. He was also cross-examined (his deposition shall be discussed herein below). He also led the evidence in support of his claim that he is in possession of the said property. On behalf of the defendants, defendant no.1 stepped into the witness box and through him; the defendants also produced on record the documentary evidences.

2.5. On appreciation of the evidence, the Learned Trial Court dismissed the suit. The Learned Trial Court disbelieved the case on behalf of plaintiff - appellant herein that Chhimmabai executed the will in favour of the plaintiff - appellant. The Learned Trial Court held that the defence had proved that defendant No.3 was adopted by Ghasilal on 26.01.1985 which was got registered later on by Chhimmabai vide Adoption Deed dated 13.05.1992.

2.6. Feeling aggrieved and dissatisfied with the Judgment and decree passed by the Learned Trial Court dismissing the suit, the original plaintiff- appellant herein preferred First Appeal No. 241 of 2005 before the High Court. That during the pendency of the said appeal, respondent no.1 herein filed an application under section 151 C.P.C. on 19.03.2012 for dismissing the appeal and for directing the appellant herein to vacate the suit property. That during the pendency of the appeal the original plaintiff - appellant herein filed an application under Order 6 Rule 17 of the CPC bywhich the plaintiff sought amendment in the relief clause as regards the issuance of permanent injunction and restraining defendant nos. 1 and 2 from dispossessing the plaintiffs forcibly from the disputed house. However, the said application came to be dismissed by the High Court on the ground of delay and latches (I.A. No. 2244 of 2012). However, while dismissing the said application the High Court granted permission to the appellants to file a separate suit for the said relief against the defendants. Thereafter on appreciation of the evidence on record, the High Court dismissed the said appeal preferred by the original plaintiff. However, while dismissing the appeal the High Court also made observations as regards the possession of the disputed house and on analysis of the deposition of PW1 and PW2 and considering the material on record and considering the fact that during the pendency of the appeal the original defendant no. 1 himself filed an application under Section 151 CPC on 02.12.2013 for getting the possession from the plaintiff of the disputed house, which was withdrawn, the High Court made observations in regards the possession of the plaintiffs of the disputed house.

2.7 Thereafter almost 2 years after the judgment of the High Court in the First Appeal, the Respondent Nos. 1 and 2 herein - Original Defendant Nos. 1 and 2 filed an application before the High Court seeking review of observations in para 20 of the judgment as regards the possession of the disputed house. The said application was opposed by the appellants herein. However, by the impugned order, the High Court has allowed the review application and has ordered to delete para 20 of the Judgment and order dated 10.12.2013 passed in First Appeal No.241 of 2005, by observing that as regards the possession of the disputed property the issue of possession was neither raised before the Learned Trial Court nor before the First Appellate Court and even no issue with respect to possession was framed by the Learned Trial Court.

2.8. Feeling aggrieved and dissatisfied with the impugned order passed by the High Court in allowing the review application and deleting para 20 of the judgment and order dated 10.12.2013 passed in First Appeal No.241 of 2005, the original plaintiffs have preferred the present appeal.3. Shri A.K. Srivastava, learned Senior Advocate appearing on behalf of the appellants has made the following submissions, while assailing the impugned order passed by the High Court passed in the review application.

(i) while passing the impugned order, the High Court has exceeded in its jurisdiction, while exercising the review jurisdiction and has acted beyond the scope and ambit of the review jurisdiction under Order 47 Rule 1 CPC;

(ii) while exercising the review jurisdiction, the High Court ought not to have set aside the specific finding given with respect to possession, which finding was based on appreciation of evidence before the learned trial Court;

(iii) the High Court has committed a grave error in deleting para 20 of the final judgment and order dated 10.12.2013 passed in First Appeal No. 241/2005, in exercise of its review jurisdiction inasmuch as, as such, there was no error apparent on the face of the record, which was required to be corrected;

(iv) merely because the specific issue with respect to possession was not framed by the learned trial Court, cannot be a ground to set aside the finding by the High Court, when such finding with respect to possession was on merits and on appreciation of the evidence before the learned trial Court;

(v) as such, the High Court has committed a grave error in considering the issues framed in another case being Civil Suit No. 3-A/2005, which was related to House No. 28/956 and in which the parties were also different. It is submitted that the High Court has mis-directed itself, while considering the issues framed in Civil Suit No. 3-A/2005, related to House No. 28/956 and not considering the issues framed in Civil Suit No. 4-A/2005;

(vi) the High Court ought to have appreciated that the issue of possession was at large before the learned trial Court and, in fact, the parties also led evidence with respect to possession. It is submitted that the High Court ought to have appreciated that there was a specific averment in the plaint as well as in the testimony of the plaintiff that he is in possession of the suit property, i.e., House No. 28/955;

(vii) the defendants did not led any evidence with respect to possession. It is submitted therefore that when there were specific averments and pleadings in the plaint in regard to possession, and even the plaintiff led the evidence specifically on the possession, non-framing of the specific issue with respect to possession would not vitiate the finding recorded by the High Court, which was on appreciation of the material on record. In support of his submission, learned Senior Advocate appearing on behalf of the appellants has relied upon the following decisions of this Court, Sri Gangai Vinayagar Temple vs. Meenakshi Ammal (2015) 3 SCC 624; Bhuwan Singh vs. Oriental Insurance Company Ltd. (2009) 5 SCC 136; and Sayeda Akhtar vs. Abdul Ahad (2003) 7 SCC 52. It is submitted that all the parties were aware of the rival cases and the issue with respect to possession was present and even the plaintiffs also led evidence on possession, non-framing of the specific issue with respect to possession would be non-significant. It is submitted that therefore the High Court has committed a grave error in deleting para 20 of the final judgment and order dated 10.12.2013 passed in First Appeal No. 241/2005 with respect to possession mainly on the ground that no issue was framed by the learned trial Court with respect to possession;

(3.)Learned Senior Advocate appearing on behalf of the appellants has also taken us to the relevant averments in the plaint as well as the written statement in regard to possession. Learned Counsel appearing on behalf of the appellants has also taken us to the testimony of the plaintiff - Shri Ram Sahu, as well as, the deposition of one J.K. Sharma examined on behalf of the plaintiff. Learned Senior Advocate has further submitted that there was no cross-examination by the defendants on the point of the plaintiffs possession. Learned Senior Advocate has also heavily relied upon the application and affidavit dated 19.03.2012 in which the respondents in an application filed under Section 151 of the CPC specifically prayed to direct the appellants to vacate the suit property. It is submitted that therefore, in fact, the respondents admitted the possession of the appellants. It is submitted that not only that, but subsequently in the month of September, 2017, the respondents filed a suit against the appellants for decree of possession, compensation and mesne profits. It is submitted that therefore, as such, the respondents herein specifically admitted the possession of the appellants in the suit property;
3.2 It is further submitted that the High Court ought to have appreciated that the review application was filed with a malafide intention faced with the proceedings under Section 340 read with Section 195 Cr.P.C and faced with the order passed by the learned Magistrate directing to register the case against respondent nos. 1 and 2 herein and others under Sections 193, 465, 471 and 120-B of the IPC, dated 06.02.2016;

3.3 It is further submitted that, in fact, the appellants filed an application before the High Court under Order 6 Rule 17 CPC (IA No. 2244/2012) to amend the plaint by adding relief for the grant of decree of permanent injunction restraining the respondents-defendants not to dispossess them forcibly. It is submitted that the said application was opposed by the respondents herein by submitting that they are not threatening to dispossess the appellants during the pendency of the suit. Therefore, the High Court dismissed the said application under Order 6 Rule 17 CPC reserving liberty in favour of the appellants to file a separate suit for the aforesaid relief. It is submitted that therefore, as such, the issue with respect to possession was at large even before the High Court;

3.4 Learned Senior Advocate appearing on behalf of the appellants has also heavily relied upon the order passed by the learned Magistrate on an application filed under Section 340 read with Section 195 Cr.P.C., in which the learned Magistrate took note of the affidavit dated 19.03.2012 filed by the respondents and also took note of the specific observation and finding with respect to possession made in para 20 of the judgment and order dated 10.12.2013. It is submitted that there is a specific finding given by the learned Magistrate on the respondents' forging/creating/concocting the documents to show their possession. It is submitted that only thereafter the learned Magistrate directed to register the case against the respondents under Sections 193, 465, 471 and 120-B of the IPC, under the provisions of Section 340 Cr.P.C;

3.5 It is submitted that even subsequently the suit filed by the defendants-respondents herein, filed in the year 2017, has been dismissed by the High Court on the ground of limitation and the plaint has been rejected in exercise of powers under Order 7 Rule 11 CPC;

3.6 Making the above submissions and relying upon the aforesaid decisions, it is prayed to allow the present appeal.

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