G.S. Solanki, J.@mdashThis appeal has been preferred by the appellants being aggrieved by judgment and decree dated 17.11.2006 passed by Fifteenth Additional District Judge (Fast Track Court). Jabalpur in C.S. No. 8-A/2006. The facts giving rise to this appeal, in short, are that respondent No. 1 Kishan Lal Vishwakarma filed a suit for declaration, partition and possession before the trial Court in respect of house Nos. 183, 184 and 185 situated at Cherital, Damoh Naka, Jabalpur. Plaintiff/respondent No. 1 pleaded that he and Ghanshyam Vishwakarma (since deceased) (father of respondent Nos. 3, 4 and 5) were real brother, they have joint Hindu family property/house situated at Cherital, Damoh Naka, Jabalpur bearing Nos. 183, 184 and 185. It was further pleaded that in the year 1983 Ghanshyam ousted the plaintiff from the aforesaid property and did not allow him to collect the rent. House No. 184 was given on rent to appellant No. 1/defendant No. 1 Suresh Keshwani, who at that time was running a hotel in the name and style of ''Anand Hotel''. It was further pleaded that Suresh Keshwani also refused to pay the rent to the plaintiff. Ghanshyam Vishwakarma used tricks and managed the property not to be recorded in the name of plaintiff Kishan Lal Vishwakarma.
In the aforesaid circumstances, plaintiff was forced to file Civil Suit No. 62-A/83 for declaration of his rights in the Court of Fifth Additional Judge to the Court of District Judge, Jabalpur, which was decreed on 29.2.1988 and right of plaintiff Kishanlal was declared. But defendant Ghanshyam filed an appeal F.A. No. 745/88 against the aforesaid judgment and decree, which was ultimately dismissed for want of prosecution on 4.1.1993. In this way the judgment and decree dated 29.2.1988 passed by the Fifth Additional Judge became final and effective. It was further pleaded that on the basis of aforesaid judgment, the plaintiff is entitled to ask for half of rent of Anand Hotel, which is situated at House No. 183. It was further pleaded that plaintiff sent a demand notice to Suresh Kumar and demanded the rent for the period of 3 years.
3. In the meantime, the then defendant Ghanshyam filed a suit against one Rajaram and another C.S. No. 23-A/92, in which a Commissioner was appointed for measurement of the spot. At the time of aforesaid measurement, Suresh Keshwani, appellant/defendant No. 1 appeared before Commissioner and announced that he is the owner of Anand Hotel. On the basis of aforesaid statement on record, plaintiff enquired into the matter and found that Ghanshyam Vishwakarma (father of respondents No. 3, 4 and 5) sold this Anand Hotel to one Smt. Mom Bai/defendant No. 4 by registered sale deed dated 5.9.1983 and Smt. Mom Bai sold this portion to appellant Nos. 1, 2 and 3/defendants by registered sale deed dated 31.3.1987.
4. It was further pleaded that both the aforesaid sale deeds were executed during the pendency of C.S. No. 62-A/83. Ghanshyam Vishwakarma designed that plaintiff Kishan Lal should not get anything even if he wins, therefore, he deliberately and quietly sold this property to Smt. Mom Bai/defendant No. 4. Since aforesaid sale deeds were executed during the pendency of C.S. No. 62-A/83, in view of the provision of Section 52 of the Transfer of Property Act, purchasers in such cases are bound by the decree. Since in the aforesaid suit, plaintiff was declared joint owner of disputed property, therefore he has right to get declaration against these two sale deeds that they are void and ineffective. Alternatively, it was also pleaded that if the Court arrives at the conclusion that the title of half share of suit land transferred by Ghanshyam Vishwakarma, by way of aforesaid two sale deeds, passed to subsequent purchasers, then plaintiff is entitled for partition of half share of the suit house.
5. Appellants No. 1 to 3/defendants filed their written statement before the trial Court. They admitted that plaintiff and defendant Ghanshyam Vishwakarma are real brother but denied that house Nos. 183, 184 and 185 situated at Cherital, Jabalpur is the property of joint Hindu family of plaintiff and Ghanshyam Vishwakarma. They further denied the tenancy between the plaintiffs and defendant No. 1 and pleaded that Ghanshyam Vishwakarma sold the aforesaid house to one Smt. Mom Bai. Respondent no. 4 and this defendant purchased the same property from Smt. Mom Bai. Though they denied that suit No. 62-A/83, pending before Fifth Additional District Judge, Jabalpur, was decreed in favour of the plaintiff, however, they pleaded that the Court declared house No. 183, 184 and 185 (ABC) joint family property of plaintiff, defendant Ghanshyam Vishwakarma and his brother Bhagwan Das.
6. Primarily it was contended that Ghanshyam Vishwakarma was the exclusive owner of the property, which was transferred to one Smt. Mom Bai/respondent No. 2 and Smt. Mom Bai transferred the same in favour of appellants/defendant Nos. 1, 2 and 3. Alternatively, it was prayed that the entire sale deed could not have been declared as null and void, as even if the decree of the earlier civil suit is taken into consideration that the property was joint between respondent No. 1 and late Ghanshyam Vishwakarma, still the transfer in favour of respondent No. 2 by late Ghanshyam Vishwakarma to the extent of his half undivided share was valid. It was further contended that these appellants were not party to the aforesaid civil suit filed by respondent No. 1 against late Ghanshyam Vishwakarma, therefore, appellants were bona fide purchasers of the aforesaid property. On the basis of aforesaid pleadings, prayer was made for dismissal of suit.
7. Learned trial Court framed as many as 6 issues and on appraisal of evidence and other material on record, partly decreed the suit in favour of respondent No. 1 by holding that sale deeds dated 5.9.1983 and 31.3.1987 were void transactions being hit by the provision of Section 52 of Transfer of Property Act. It was further declared that plaintiff is entitled to get partition of Anand Hotel/old house No. 184(ABC) New No. 2066 situated at Cherital, Jabalpur. Appellants were directed to hand over the vacant possession of half portion of aforesaid Anand Hotel to plaintiff/respondent No. 1, hence this appeal.
8. Learned counsel for the appellants has submitted that during pendency of this appeal he filed I.A. No. 1433/2007, an application under Order 41 Rule 27 read with section 151 of CPC for taking first order sheet of C.S. No. 62-A/1983 on record. He has further submitted that same is necessary for just decision of the appeal.
9. Learned counsel for respondents opposed the aforesaid application.
10. It is true that appellants could have produced the aforesaid order sheet during trial, however, in my opinion, the same is a public document and is necessary for just and proper adjudication of this appeal, hence application is allowed. Document is taken on record.
11. Learned counsel for the appellants further submitted that since execution of sale deed dated 5.9.1983 took place before institution of C.S. No. 62-A/1983 and Smt. Mom Bai was not made party in aforesaid suit and appellants bonafidely purchased property by sale deed on 31.3.1987, therefore, aforesaid transactions were not challenged in earlier suit, hence judgment and decree passed in 62-A/83 is not binding on any one of the purchasers. It is further submitted that late Ghanshyam Vishwakarma had purchased the property from Suresh Patel on 2.5.1983 and thereafter same was sold to Smt. Mom bai/respondent No. 2 on 5.9.1983, in this way late Ghanshyam Vishwakarma had right to alienate the property to respondent No. 2 as he was the exclusive owner of the property. In the alternative, he contended that even assuming, although not admitting, judgment passed in earlier suit No. 62-A/83 declared the right of respondent No. 1 and late Ghanshyam Vishwakarma was having half share in the property, in this way Ghanshyam Vishwakarma had right to sell disputed property to respondent Smt. Mom Bai to the extent of his half share and consequently, Smt. Mom Bai executed the sale deed in favour of the appellants, therefore, transaction of appellant was valid up to the extent of half share of late Ghanshyam Vishwakarma, thus, the trial Court committed illegality in holding that all the sale deeds were null and void in the eyes of law, therefore, counsel has prayed for setting aside the judgment and decree passed by the trial Court.
12. Learned counsel for the respondents has submitted that Ghanshyam Vishwakarma deliberately disposed of disputed house in favour of Smt. Mom Bai behind the back of the plaintiff. He further contended that late Ghanshyam Vishwakarma was not the exclusive owner of the aforesaid house because this fact was contested between respondent No. 1 Kishan Lal Vishwakarma and late Ghanshyam Vishwakarma in C.S. No. 62-A/1983, in which late Ghanshyam Vishwakarma cited Suresh Patel (seller of disputed house and executor of sale deed dated 8.5.1983) as witness in favour of Ghanshyam Vishwakarma. After appreciating whole evidence on record, trial Judge of that suit was of the view that merely on the basis of fact that property was purchased in the name of one brother during joint family, nature of property does not change, same still remains property of plaintiff (Kishan Lal) and defendant No. 1 late Ghanshyam Vishwakarma. Counsel has further submitted that this point was further challenged in appeal, which was dismissed, hence order has attained finality, therefore, late Ghanshyam Vishwakarma and thereafter, his heirs respondents No. 3, 4 and 5 had not challenged this matter before the trial Court and the appellants being successive purchasers of the aforesaid property, also have no right to challenge the same, therefore, he prays for dismissal of appeal.
13. I have perused the impugned judgment, evidence recorded by the trial Court, additional evidence adduced before this Court and other material on record. On perusal of order sheet dated 2.11.1983 of C.S. No. 62-A/1983, it reveals that civil suit titled as (Kishan Lal Vishwakarma Vs. Ghanshyam Vishwakarma and others) was filed on 2.11.1983 before Additional District Judge, Jabalpur. It is not disputed on record that alleged sale deed dated 5.9.1983 was executed by late Ghanshyam Vishwakarma in favour of Smt. Mom Bai/respondent No. 2 is prior to the date of filing of C.S. No. 62-A/83, therefore, finding of the trial Court in regard to fact that sale deed dated 5.9.1983 was executed during the pendency of C.S. No. 62-A/1983, is not sustainable in the eyes of law. It is also on record that Smt. Mom Bai was not party to C.S. No. 62-A/1983 and appellants were also not party to the aforesaid suit, but it is well established principle of law that a member of joint family can transfer the property only upto the extent of his share in the undivided joint family property. On perusal of judgment dated 29.2.1988 passed in C.S. No. 62-A/1983, it reveals that after recording the evidence and elaborate discussion of evidence on record, adduced by both brothers Kishan Lal and Ghanshyam Vishwakarma, it was held that disputed property was a joint family property of plaintiff/respondent No. 1 Kishan Lal and late Ghanshyam Vishwakarma/defendant No. 1.
14. It is also on record that since despite pleaded case of plaintiff/obliged to hand over the vacant possession to respondent No. 1/plaintiff/respondent of this suit, late Ghanshyam Vishwakarma and thereafter his heirs respondents No. 3, 4 and 5 had not filed written statement to the aforesaid pleadings of entitlement of half share of plaintiff. As mentioned hereinabove, appeal of C.S. No. 62-A/1983 was dismissed and in this way the entitlement of half share of plaintiff in the disputed property attained finality between Kishan Lal respondent No. 1 and late Ghanshyam Vishwakarma and thereafter his heirs respondents No. 3 to 5.
15. Learned counsel for appellants further submitted that late Ghanshyam Vishwakarma purchased the disputed property from Suresh Pate) by registered sale deed dated 2.5.1983 (Ex. D-1) but as mentioned hereinabove, this was elaborately discussed in previous suit No. 62-A/1983 in which Suresh Patel, seller/executant of the aforesaid sale deed (Ex. D-1) was examined as defence witness, but ultimately it was found that mere purchasing the property in the name of one of brothers of joint Hindu family, nature of property does not change and ultimately it was held that disputed property is joint family property. This finding has attained finality. I am also of the same view that mere purchasing the property in the name of late Ghanshyam Vishwakarma, during the joint family of Kishanlal Vishwakarma and Ghanshyam Vishwakarma, Ghanshyam Vishwakarma, cannot be said to be the exclusive owner of the aforesaid property.
16. Kishanlal/respondent No. 1 in C.S. No. 62-A/1983 filed by Ghanshyam Vishwakarma specifically denied in his cross-examination Paragraph - 6 that he admitted the fact that partition had taken place between him and Ghanshyam Vishwakarma on 22.2.1980. Since no such document filed on record in regard to C.S. No. 62-A/1983 and respondent No. 1 specifically denied this fact, therefore, it cannot be said that partition took place in the year 1980 and late Ghanshyam Vishwakarma was the exclusive owner of the disputed house.
17. On careful scrutiny of aforesaid oral and documentary evidence on record, I am of the view that trial Court committed illegality in declaring the sale deed dated 5.9.1983 executed by Ghanshyam Vishwakarma in favour of Smt. Mom Bai and sale deed dated 31.3.1987 executed by Mom Bai in favour of appellants null and void as a whole. This finding is unsustainable in the eyes of law, however, the trial Court rightly held that respondent No. 1/plaintiff is entitled to get partition of old House No. 184(ABC), New No. 2066, Cherital, Damoh Naka, Jabalpur. Appellants/defendants no. 1 to 3 are obliged to hand over the vacant possession to respondent No. 1/plaintiff.
18. In the result, the appeal is partly allowed. Impugned judgment and decree in regard to declaration of sale deed dated 5.9.1983 and 31.3.1987 as null and void as a whole, is hereby set aside. Same is held to be valid up to the extent of half share only. However, with respect to entitlement of half share of respondent No. 1 of old House No. 184(ABC), new No. 2066, Cherital, Jabalpur as well as direction to appellants/defendants No. 1 and 2 to hand over the vacant possession of aforesaid property/Anand Hotel, is hereby affirmed.
19. Appellants to bear their own cost and cost of respondents. Advocates'' fee as per schedule or certificate, whichever is less. Decree be drawn accordingly.
