SANGRAMSINGH PREMSINGH THAKUR Vs. SARLABAI

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 14-11-1994 passed by 5th Jt. Civil Judge Jr. Dn. Amravati in Reg. Civil Suit No. 641/1992 and confirmed by judgment and decree dated 20-7-1999, passed by Addl. District Judge, Amravati in Reg. C.A. No. 315/1994, the unsuccessful plaintiff-appellant had filed the present second appeal.

(2.) The defendant appeared and filed his written statement and denied the claim made in the suit. The defendant also denied the description of the suit property and further stated that it was a joint family property left by Khushalsingh and there are several legal heirs of the deceased Khushalsingh who were entitled to succeed to the estate left by him. In the absence of any suit for partition, under the above circumstances, the suit for possession was not maintainable. The suit was not filed within 12 years and, therefore, the title of the plaintiff, if any, extinguished under the provisions of section 27 of the Limitation Act. The mutation carried out in the record of the Amravati Municipal Corporation was not in accordance with law and was not legal, correct and proper. The taxes were paid by defendant from the year 1979 onwards when there was attachment of the property, which shows that the plaintiff never wanted to assert his so called title. It was their defence in the written statement. The trial Judge framed in all 11 issues and one additional issue. Parties to the suit led their respective evidence, oral as well as documentary. The trial Judge dismissed the suit only on the ground that the title of the plaintiff stood extinguished as per section 27 of the Limitation Act, though answered all the material issues on merits in favour of the appellant-plaintiff. The lower appellate reversed the finding of trial Court on the question of limitation with reference to section 27 of the Limitation Act and held in favour of the appellant-plaintiff. However, he reversed the finding on partition and the Will and ultimately confirmed the decree of dismissal of the suit. Hence this second appeal.

(3.) In support of the appeal, Dr. Anjan De, learned counsel for the appellant, vehemently argued that the lower Appellate Court committed serious error in reversing the finding of the trial Judge on the question of partition and the Will in the absence of any appeal or cross-objection by respondent-defendant before him. Not only that, the finding of the trial Judge were not even challenged or stated/argued to show that they were wrong. The lower Appellate Court has, in a totally illegal manner resorted to the provisions of Order 41 Rule 33 of the Code of Civil Procedure, which could not have been utilised all the more so because respondent had failed to file cross-objection or raise any challenge to any of the findings as required by order 41 Rule 22 of the Civil Procedure Code. According to Dr. De, there is misapplication of the provision by lower Appellate Court in the absence of any appeal or cross-objection by respondent-defendant. He further argued that at any rate, even on merits, the oral partition that was made between brothers and mother, after death of Khushalsingh was fully corroborated by entry to that effect made in the year 1958 itself and the evidence on record about separate residence of the parties after partition. Reliance placed by lower Appellate Court on the alleged admission in the cross-examination about written document of partition is wholly misconceived and misplaced. He, then, argued that oral partition, that was recorded in the mutation entries, obviously did not require any registration and, therefore, was required to be accepted. As to the Will, learned counsel for the appellant, argued that finding by lower Appellate Court is wholly perverse. According to him, the Will is a registered Will and has been duly proved by the witness who knew the handwriting and signature of the attesting witness who had died. None of the attesting witnesses was available for being examined and, therefore, close acquaintance, who identified the signature was examined but for no reason, the lower Appellate Court has discarded the Will and the reasons given by the lower Appellate Court are absurd. Dr. De, therefore, submitted that the appeal deserves to be allowed by passing the decree.