G. Minhajuddin, J.@mdashThis appeal has been filed u/s 96 of the Civil Procedure Code. 1908 against the judgment and decree dated 30.1.2008 passed by 4th Additional District Judge (FTC), Raigarh (CG) in Civil Suit No. 11A/07, whereby suit of the respondent/plaintiff for declaration, partition, separate possession and mesne profits of the suit property has been decreed. The undisputed facts are that appellant Bishwanath Kedia and respondent Vidyasagar Kedia are real brothers and sons of Late Shri Babulal Kedia and Late Smt. Ramabai The original owner of the suit property was Radhakishan Singhania, who was maternal grandfather of the appellant and the respondent. Radhakishan Singhania had, by gift deed dated 2.10.1923, given the suit property to his daughter Smt. Ramabai Kedia, who is mother of the appellant and Vidyasagar kedia. Inlieu of her maintenance with a condition that after the death of Ramabai, the suit property will devolve upon her heirs. It is also not in dispute that Smt. Rama bai died in the year 1941 and after that, when Vidyasagar kedia was about 4-4 1/2 years old that he was given in adoption to his uncle Ramswaroop Kedia sometime in the year 1943. However, rest of the facts are in dispute.
2. The case of respondent Vidyasagar Kedia (original plaintiff), in brief, is that he and the appellant herein are real brothers who are sons of Late Babulal Kedia and Late Ramabai Kedia. Late Ramabai Kedia was daughter of Late Radhakishan Singharia, who was the original owner of the suit property. The suit property was given by Radhakishan to his daughter Ramabai by way of gift dead dated 2.10.1923 in lieu of her maintenance with a stipulation that on the death of Ramabai, the suit property will devolve upon her children, Ramabai died in the year 1941, when Vidyasagar kedia was about 2 1/2 -3 years old and as such, on the death of Ramabai in the year 1941, the suit property devolved upon her children i.e. the appellant and respondent Vidyasagar upon her children i.e. the appellant and respondent Vidyasagar Kedia jointly and each of them is entitled to 1/2 share in the suit property. When respondent Vidyasagar was aged about 4-4 1/2 years, he was given in adoption to his uncle (father''s elders brother) Ramswaroop kedia. All the suit property was and is still recorded jointly in the name of the appellant and respondent Vidyasagar Kedia. The appellant is the elder brother of Vidyasagar Kedia. Among the property shown in Schedule C annexed to the plaint, a portion of the house and land, area 1210 sq.ft. forming part of plot No. 115, area 10333 sq.ft. was sold on 19.12.1967 by the appellant and respondent Vidyasagar kedia to smt. Champadevi agrawal and the remaining portion of the house and plot area 9123 sq.ft. is recorded jointly in the name of the appellant and respondent Vidyasagar kedia. The house situated at Nuzul Sheet No. 44 Plot No. 126, area 1711 sq.ft. which was inherited by the appellant and respondent Vidyasagar Kedia from their mother Late Smt. Ramabai has been pastitioned between them and they are in possession of their respective shares allotted to them.
All the suit property which was given by way of gift to late Smt. Ramabai by he father Radhakishan and after her death, received in inheritance by the appellant and respondent Vidyasagar kedia are recorded jointly in the name of the appellant and respondent Vidyasagar Kedia. The appellant here in is managing the said property on his and on behalf of his co-owner brother i.e. Vidyasagar Kedia. Some of the houses forming part of the suit property are in possession of the tenants and the rent is being realized by the appellant here in. Previously, the appellant used to give half share of the rent amount to respondent Vidyasagar kedia, but when respondent Vidyasagar Kedia came to know that his elder brother/appellant is receiving a huge amount in the form of rent, but he is being paid a paltry sum, that he demanded half share in the rent amount, which was actually being realized by the appellant from the tenants, but the same was refused. On account of this respondent /plaintiff Vidyasagar kedia filed the present suit for declaration of his share in the suit property shown in schedules A, B & C annexed to the plaint for partition, separate possession and mesne profit.
3. Case of the appellant/defendant, as projected in this written statement, is that respondent Vidyasagar Kedia is residing at Raurkela since 1960-61 and the entire suit property is in exclusive possession of the appellant. Before the death of their mother Ramabai Kedia, respondent Vidasagar Kedia was given in adoption to their uncle Ramswaroop kedia. As such, Vidyasagar kedia has no right, title or interest in the suit property which is the exclusive property of the appellant herein. The appellant had never paid any share in the rent to respondent Vidasagar Kedia. The sale proceeds of the house sold to Smt. Champadevi on 19.12.1967 by the appellant and respondent Vidyasagar kedia was taken away by respondent Vidyasagar Kedia, out of which the property situated at Raurkela was purchased but the same has not been included in the suit for partition, on account of which the suit is not maintainable. The suit property has been undervalued for the purposes of Court fee.
4. The learned trial Court after affording opportunity of hearing and of adducing evidence to the respective parties, by the impugned judgment, decreed the suit of the respondent/plaintiff.
5. Heard learned counsel for the parties, perused the record of the Court below as also the impugned judgment.
6. In this appeal, the points for determination under order 41 Rule 31 of the CPC are the following:
(i) Whether respondent/plaintiff Vidyasagar kedia was given in adoption to his uncle Ramswaroop kedia before the death of his (respondent vidyasagar) mother Smt. Ramabai kedia?
(ii) Whether respondent/plaintiff Vidyasagar kedia has half share in the suit property described in Schedules A B & C Annexed to the plaint?
(iii) Whether the suit was time barred?
(iv) Whether the suit property has been undervalued for the purpose of Court fee?
7. It is settled legal position that admission is the best piece of evidence against the person and in civil cases. On the basis of admission made in the written statement, a decree can be passed under Order 12 Rule 6 of the CPC. For this, the avements made by respondent/plaintiff Vidyasagar kedia in paras 5& 6 of the plaint and its reply given in the written statement by the appellant /defendant need to be meticulously perused.
8. In para 5 of his plaint, respondent/plaintiff Vidyasagar kedia has averred that he was born at Fatehpur on 4.12.1938 and when his age was 2 1/2 - 3 years, that his mother smt. Ramabai died in the year 1941 and after her death, as per stipulation in the gift deed. 2.10.1923 executed by late Radhakishan Singhania in favour of his daughter Ramabai, that the entire property involved in the gift deed, which is the suit propert, devolved upon the appellant and respondent /plaintiff Vidyasagar kedia.
9. In para-5 of his written statement, the appellant/defendant has admitted the averments made in para-5 of the plaint. Respondent/Plaintiff vidyasagar Kedia has averred that he was born on 4.12.1938 and this fact has lot been denied in the written statement by the appellant/defendant. In reply to the averments made in para-6 of the plaint, the appellant/defendant has admitted that his brother-respondent/plaintiff Vidyasagar Kedia was given in adoption in 1943. In para-3 of the plaint, the family tree of Radhakishan Singhania, who is maternal grand-father of the appellant/defendant and respondent/plaintiff Vidyasagar Kedia has been shown, in which the year of death of Smt. Ramabai (mother of the appellant/defendant and the respondent/plaintiff) has been shown as 1941. The entire averments made in para No. 3 of the plaint, including the family tree to Radhakishan Singhania and the year/date of death of Smt. Rababai and her husband Ba Dulal Kedia, which have been shown as 1941 and 30.01.1995 respectively, have been admitted by the appellant/defendant in para-3 of the written statement.
10. From the averments made in para 3, 5 & 6 of the plaint, which have been admitted by the appellant/defendant in his written statement, it is clear that Smt. Ramabai, mother of the appellant/defendant and the respondent/plaintiff, died in the year 1941 and after that, when respondent/plaintiff Vidhasagar Kedia was about 4-4 1/2 years old, that he was given in adoption to his uncle Ramswaroop Kedia.
11. It is not in dispute that the original owner of the suit property was Radhakishan Singhania, who is maternal grand-father of the appellant Vishwanath kedia and Vidyasagar Kedia, who is predecessor in title of the respondents/plaintiffs. It as also not in dispute that vide gift deed dated 2.10.1923, the suit property was given by Radhakishan Singhania in lieu of maintenance to his daughter Smt. Radhabai with a stipulation that after her death, her heirs will inherit the suit property. It has been proved that Radhabai died in the year 1941 and Vidyasagar Kedia was given in adoption to his uncle Ramswaroop Kedia in the year 1943. As such, Vidyasagar Kedia had inherited the suit property on the death of his mother Radhabai alongwith his brother-appellant Vishwanth Kedia in equal share.
12. As per the averments made by the appellant/defendant Vishwanath Kedia in his written statement as well as in his statement before the Court, his younger brother Vidyasagar Kedia since 1960-61 was living with his adoptive father Ramswaroop Kedia at Raurkela and out of the sale proceeds of a part of the suit property, which was sold on 19.12.1967 to Smt. Champabai jointly by appellant Vishwanath Kedia and Vidyasagar Kedia, the property was purchased for Vidyasagar Kedia at Raurkela, on which a showroom of Bombay Dying was established for him and out of the said income as well as income of the, suit property, that other properties were acquired in the name of Vidhasagar Kedia at Raurkela, which are also liable to be partitioned alongwith the suit property. The appellant Vishwanath Kedia (DW 3) has admitted that the entire suit property is jointly recorded in the name of appellant Vishwanath Kedia and his younger brother Vidyasagar Kedia in the government records. He has further admitted that Nuzul lease of the plots involved in the suit property was granted jointly in favour of appellant Vishwanath Kedia and his brother Vidyasagar Kedia and was valid up to 31.3.1992, after which an application for renewal of the lease jointly in the name of appellant and Vidyasagar Kedia has been filed and at no point of time, the appellant had raised an objection that he is the sole owner of the suit property.
13. From the above facts, it is evident that after the death of Smt. Ramabai in the year 1941, the respondent/plaintiff was given in adoption in the year 1943. As such, the property of Late Smt. Ramabai had devolved, by virtue of inheritance, before the respondent/plaintiff''s adoption, on respondent/plaintiff Vidyasagar Kedia as well as on his elder brother i.e. appellant/defendant, in equal share. Hence, respondent/plaintiff Vidyasagar Kedia is entitled to half share in the suit property shown in Schedules A, B & C appended to the plaint.
14. So far as the question of suit being time barred is concerned, Rakesh Kedia (PW1), who is son of Vidyasagar Kedia, has stated that as his father was residing at Raurkela, therefore, he had given general power of attorney in favour of his uncle-appellant Vishwanath Kedia for managing his share in the joint property situated at Raigarh, which in the present case is the suit property. This fact has not been denied by the appellant. Rakesh Kedia (PW 1) has further stated that previously his uncle-appellant Vishwanath Kedia was giving only Rs. 2000/- per year to his father Vidyasagar Kedia as his share in the rental income from the suit property. But in the month of November, 1997 his father Vidyasagar Kedia learnt that in fact, his brother (appellant) is realizing Rs. 50,000/- per year as rental income from the suit property and is giving him only Rs. 2000/- per year, on account of which a demand for half share in the rental income was made by Vidyasagar Kedia, and on being refused, Vidyasagar Kedia filed the present suit for declaration of share, partition, separate possession and mesne profits on 24.6.2000. In view of the abovementioned facts, the suit cannot be said to be time barred and the trial Court has rightly rejected the objection of the appellant/defendant in this regard.
15. So far as the suit having been undervalued is concerned, the original plaintiff Vidyasagar Kedia had filed the suit for declaration of his share, partition separate possession and mesne, profits, and on his death during pendency of the suit his heirs and legal representative i.e. respondent/plaintiffs have been substituted in his place. The respondents/plaintiffs have valued the suit for the purposes of partition of Rs. 2,20,000/- and for the purposes of mesne profits at Rs. 25,000/- on which a total court fee of Rs. 9,200/- has been affixed. The suit property is situated in Bajirao Mahrapara and Gandhiganj as well as at Ramniwas Talkies Road, Raigarh.
16. The appellant/defendant in addition to himself has examined Mahesh Thakur, Santosh, Deendayal Khikhar, Heeraprasad Gupta and Kailash Chand Agrawal as DE-1, DW-2, DW-4, DW-5 and DW-6 respectively. On behalf of the respondents/plaintiffs, Rakesh Kedia and Mahavir Agarwal have been examined as PW-1 and PW-2 respectively.
17. It is no doubt true that Rakesh Kedia (PW-1) has stated in para-12 of his statement that he has valued the suit property as per his wish and he cannot tell as to what is the valuation of the suit property situated in the area of Gandhiganj, Raigarh. Mahavir Agarwal (PW-2) has stated in para-6 of his statement that in the year 1999, the rate of the land situated in Bajiurao Mahrapara, Raigarh and at Ramniwas Talkies Road, Raigarh must have been Rs. 50/- and Rs. 100/- per sq.ft. respectively. This witness (Mahvir Agarwal, PW-2) has further stated that there are about 5-6 plots involved in the suit property, which is situated at Bajirao Mahrapara, Ramniwas Talkies Road behind Gandhigan, Raigarh and the total value of the suit property must have been about five to six lacs rupees.
18. The witnesses, who have been examined on behalf of the appellant/defendant, have stated about the sale transaction, which had taken place in the area of Bajirao Mahrapara, Ramniwas Talkies Road as well as Gandhiganj, Raigarh in the year 1998 and 1999, but it has nowhere been mentioned that the said transactions relates to the properties, which are situated adjoining to and similarly situated as the suit property. As such, the evidence adduced by the parties is of no help for deciding the value of the suit property on the date of filing of the suit and cannot be termed as conclusive.
19. A specific issue has been framed by the trial Court on the point of valuation of the property, After appreciating the evidence adduced, the trial Court has given a finding that he valuation of the suit property was Rs. 6 lacs on the date of institution of the suit in the year 1999 and while decreeing the suit, has ordered that the decree shall become executable only on payment of deficit court fee by the respondents/plaintiffs. The finding regarding valuation of the suit property on the date of filing of the suit by the trial Court, in view of the evidence adduced and the totality of the facts and circumstances, cannot be termed as arbitrary and unreasonable. In addition to this, in view of the provisions of Section 21(2) of the CPC, the burden lies on the appellant/defendant to shown that on account of undervaluation of the suit and its presentation in a Court lacking pecuniary jurisdiction, he had suffered prejudice resulting in failure of justice. In this connection, the law has been laid down by the Hon''ble Apex Court in the case of
20. In the result, the appeal is dismissed. The impugned judgment and decree dated 30.1.2008 passed by 4th Additional District Judge (FTC), Raigarh in Civil Suit No. 11 A/07, is hereby affirmed. However, there shall be no order as to costs. Additional Register (Judicial) is directed to draw up a decree accordingly.
