RAVINDRA LALBACHAN TIWARIL Vs. NIRMALADEVI VIJAYNARAYAN DWIVEDI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 8th January, 1996 passed by the City Civil Court, Bombay, in Short Cause Suit No. 7262 of 1985.

(2.) SHORT facts emerge from the record are that the suit was filed against the appellants-defendants by respondent No. 1 - plaintiff No. 2 and the other plaintiff No. 1 for declaration and possession of the suit flour mill viz. , Ambika Flour Mill situated at Daulatnagar, Borivli. The plaintiffs are the heirs of deceased Ambika Krishnanand Pandey. It is the case of the plaintiffs that Ambika Krishnanand Pandey, who was originally a native of U. P. , came to Bombay in 1948-50 and started serving in Kamla Mills, Lower Parel. His nephews i. e. sons of his brother Chandrika also came later to Bombay and they got employment through their uncle Ambika Krishnanand Pandey. They were staying with said uncle Krishnanand and all the income of their earnings were being given to Ambika Krishnanand Pandey and he was looking after them. They were staying with him like his family members due to the mutual understanding and Trust. It reveals from the record that defendant Nos. 3, 4 and 5 also subsequently came to Bombay and started staying with Ambika Krishnanand Pandey. Ambika Krishnanand Pandey was looking after and managing the said joint family at Bombay, while his elder brother Ramnihut, father of defendant Nos. 3, 4, and 5, was managing the joint family and the agricultural properties at the native place. It is the case of the plaintiffs that the said Ambika Krishnanand Pandey acquired a small portion of land on tenancy basis bearing Survey No. 19, Hissa No. 2 and Survey No. 20 Hissa No. 5 bearing C. T. S. Nos. 59 and 60 admeasuring about 32 feet x 20 feet on a monthly rent of Rs. 40/- and constructed a structure bearing Municipal Assessment No. L-4312 (4c) 19 C. C. situated at Village Asalpha, Taluka Kurla, and started business in the name and style of Ambika Flour Mill in or about 1967 and obtained Municipal licence and permit for running the said flour mill, which is the suit property and which has been more particularly described in the Schedule marked Exhibit A to the plaint. It further reveals that with a view to maintain dignity and peace and to avoid any litigation in the family in future, said Ambika Krishnanand Pandey acquired another premises at Daulatnagar, Jain Mandir Road No. 8, Borivli East, Bombay, in or about 1970 and started the business of flour mill in the name of defendant No. 4, being one of the three sons of Ramnihut Pandey (now deceased ). Said Ambika Pandey further acquired another premises in the year 1972 in the name of his youngest brother Rampher at Daulatnagar Road No. 6, Borivli East, wherein another flour mill in the name of Pandey Flour Mill was started. Likewise, in 1980, said Ambika Krishnanand Pandey further acquired another premises at Daulatnagar Road No. 3, Borivli East and started a flour mill in the name of Gomati Chandrika Pandey, one of the two sons of Chandrika Pandey, his brother. It further reveals that since Ramnihut was at the native place, said Ambika Krishnanand Pandey and his two younger brothers Chandrika and Rampher, were bringing the earnings together and out of the said joint earning of the said three brothers and their sons, all the four premises were acquired and the flour mill businesses therein were managed in separate names as stated above. It also reveals that though said Ambika Krishnanand Pandey was having a flour mill in his name viz. , Ambika Flour Mill, he employed defendant No. 2 on monthly salary basis and he continued to serve in Kamla Mill till December 1983. Likewise, defendant Nos. 3, 4 and 5 were carrying on their business of flour mill at Daulatnagar, Jain Mandir Road No. 8, and Rampher was carrying on his business of flour mill at Daulatnagar Road No. 6 and Chandrika Pandey by himself and through his sons Gomati and Sarju was carrying on his business of flour mill in the name of Krishna Flour Mill at Daulatnagar Road No. 3. It also reveals that defendant No. 3 Kalika Ramnihut Pandey was serving in B. E. S. T. as a conductor and he was helping the aforesaid persons in their respective businesses and the premises and he was keeping in his possession all the documents pertaining to the aforesaid four flour mills till the death of Ambika Krishnanand Pandey. It further reveals that said Ambika Pandey had full Trust in defendant No. 3 and, therefore, a joint account was also opened in the names of Ambika Pandey and defendant No. 3 Kalika Ramnihut Pandey and the said joint account was in operation till the demise of Ambika Pandey. The business of the four flour mills was going on very smoothly. It is the case of the plaintiffs that said Ambika Pandey retired from his services in December 1983 and was looking after the business of his flour mill. In full and final settlement of his accounts with Kamla Mills, Ambika Pandey received two cheques, in all for Rs. 38,380. 40 towards his provident fund and gratuity, which he gave to defendant No. 3 for being deposited in their joint account. However, defendant No. 3, instead of depositing the same in the joint account, fraudulently opened another Bank account in the joint names of himself and said Ambika Pandey in State Bank of India, Kurla B. E. S. T. Depot Branch, Bombay, and thereafter fraudulently withdrew the said amount under his signature and thereby committed criminal breach of Trust. Therefore, a suit was filed against defendant No. 3. It is the further case of the plaintiffs that after the retirement, Ambika Pandey went to his native place in January 1985 and there he fell sick. The nature of his sickness was a very severe paralytic attack to Ambika Pandey resulting in paralysing of his entire left side of the body from head temple to the toe of the left leg covering left eye, left nose, left ear and left portion of mouth as well as left portion of upper and lower body. Therefore, he was brought to Bombay on 2nd April 1985 by plaintiff No. 1 - wife of Ambika Pandey. It is stated that he stayed for 3-4 days at his said flour mill at Ghatkopar in the rear room of the suit property. Thereafter deceased Ambika Pandey was admitted in Hindu Mahasabha Hospital at Ghatkopar. Plaintiff No. 1- wife was all the time remained beside Ambika Pandey. It further reveals that he took discharge from the said Hospital on 23-4-1985 and was taken to the suit property where the flour mill in question situates and was staying there and the same treatment was continued till 2-8-1985. It is stated that as the health of Ambika Pandey was deteriorating and he was becoming unconscious, he was admitted in Sharda Memorial Hospital at Dahisar East, and after treatment for few hours, as the doctors found no hope of his survival, he was immediately shifted to K. E. M. Hospital on the same day 3-8-1985. On the next day i. e. on 4-8-1985, Ambika Pandey expired in the hospital. It further reveals that after the cremation of her deceased husband on 5-8-1985 at Bombay, plaintiff No. 1 proceeded to her native place on the next day for performing the last rite of her deceased husband. It is stated that the last rite of her deceased husband was performed at the native place on 16-8-1985. Thereafter on or about 20-10-1985 plaintiff No. 1 came to Bombay to her said flour mill viz. , Ambika Flour Mill at Ghatkopar and she started residing in the rear room behind the said flour mill. It is the further case of the plaintiffs that when asked about the income and expenses of the Ambika Flour Mill, defendant No. 2, who was employed by deceased Ambika Pandey, told plaintiff No. 1 that she may ask about the accounts to defendant No. 3. Thereupon, plaintiff No. 1 went to defendant No. 3 and demanded some money from him, whereupon she was told that during the illness of deceased Ambika Pandey, defendant No. 1 was looking after Ambika Flour Mill and he was managing the said business and had also paid some money for medical expenses of deceased Ambika Pandey. Therefore, She was told to contact defendant No. 1 for accounts. Accordingly, she contacted defendant No. 1. On contacting defendant No. 1, he told the plaintiff No. 1 that he would have no objection if she stays in the rear room only as she is an old lady. Otherwise, he would throw out her physically and she was further told that she will be removed forcibly in case she fails to go out of the suit premises. It is further stated that on 27-10-1985 at about 3 a. m. , while plaintiff No. 1 was in the suit premises i. e. Ambika Flour Mill, defendant Nos. 2 and 3 came to the suit premises and asked plaintiff No. 1 to go out of the suit premises with her belongings. She was given threats that her bones will be broken. It is stated that plaintiff No. 1 immediately contacted plaintiff No. 2 a daughter and her husband and narrated the incident to them. Thereafter plaintiff No. 1 went to the police station in the company of plaintiff No. 2 and her husband and lodged a complaint with the Ghatkopar Police Station which was recorded as N. C. bearing No. 4359 of 1985. It is further stated that after some time, plaintiff No. 1 was called at the said police station and it was disclosed to her in the police station that they (police) cannot do anything as the suit premises had been sold away by her deceased husband Ambika Pandey to defendant Nos. 1 and 2 by executing a registered sale deed. On coming to know about the sale transaction between deceased Ambika Pandey and defendant Nos. 1 and 2, plaintiff No. 1 issued a notice to defendant Nos. 1, 2 and 3 and a complaint was lodged against the said defendants by plaintiff No. 1 for fraudulently getting the alleged sale deed executed by deceased Ambika Pandey and fraudulently getting the said document registered. On that complaint, defendant Nos. 1, 2 and 3 were called at the police station. It further reveals that as the plaintiffs apprehended commission of fraud and forgery, they went to the office of the Sub-Registrar and made enquiries regarding registration of such a document and on inspection it was found that the alleged document was a forged document as the signature of deceased Ambika Pandey was not tallying. Thereafter it is stated in the plaint that a notice was issued to respondent Nos. 1, 2, and 3. As there was no reply to the said notice, a suit was filed.

(3.) WRITTEN statement was filed by the defendants in the said suit, wherein they have contended that the suit flour mill has been purchased by defendants Nos. 1 and 2 by executing registered sale deed on 17-4-1985 and they relied on the said document. The defendants have given a separate purshish stating that they are relying on documentary evidence.