SUBHADRA BAI Vs. ROOP BAI

JUDGEMENT

(1.) The Plaintiffs as appellants have preferred this appeal against the judgment and decree passed in Title Appeal No. 8 of 1998 by the learned Addl. District Judge, Jeypore directing remand of the suit for trial on framing such additional issue as would be necessary on the pleadings of the parties.

(2.) For better appreciation of the case, it is felt essential to state the facts in brief which are as under : The present appellants as plaintiffs filed Title Suit No. 54 of 1994 in the Court of the Civil Judge (Sr. Divn.), Jeypore for declaration of their right, title and interest over the plaint 'A' schedule property and also for recovery of possession of 'B' schedule property after evicting Defendant No. 2 or any other person claiming under her and also to declare that the defendants have no right over the suit properties. According to the plaintiff-appellants, Ram Singh was the common ancestor of the parties. He had one son, namely, Gobardhan Singh and a daughter Roop Bai. The original Defendant No. 1 - Moti Bai was the widow of late Ram Singh. The appellant No. 1-Subhadra Bai is the widow of late Gobardhan Singh and appellant Nos. 2 and 5 are the sons and daughters of late Gobardhan Singh who died in the year 1971. Roop Bai was the Defendant No. 2 who is the respondent in this appeal. It is the further case of the plaintiff-appellants that out of the total suit property of Ac.O. 74 decimals which was the absolute property of late Gobardhan Singh his father late Ram Singh constructed a house over Ac.O.46 decimals in which the said Ram Singh was residing along with his wife and the daughter Defendant No. 2. Ram Singh died in the year 1951 by which time Defendant No. 2 i.e. respondent herein was already given in marriage. The said 46 decimals of land over which a house was constructed by Ram Singh being the exclusive property of late Gobardhan Singh, he sold the same to one Shyama Lam under a registered sale deed dated 20-3-1968 for meeting the marriage expenses of the present respondent who was the sister of Gobardhan Singh. The said late Gobardhan Singh constructed a house over the balance property of 28 decimals wherein his family members i.e. present appellants were staying. According to the plaintiffs, as the original Defendant No. 1 i.e. widow of late Ram Singh and the mother of late Gobardhan Singh, was a dependant of late Gobardhan Singh, she was staying in the said house constructed by Gobardhan Singh over the balance 28 decimals. The plaintiffs also pleaded that Defendant No. 2 i.e. respondent in this appeal was also residing in the said house with the permission of the plaintiffs and neither Defendant No. 1 nor Defendant No. 2 had any right, title or interest over the said house or property. The defendants pleaded in their written statement that Ram Singh did not die in the year 1951 and the suit property is not the absolute property of late Gobardhan Singh. They denied the other allegations made in the plaint with regard to sale of a portion of the disputed property. It was their case that certain portion of the self acquired property of late Ram Singh was sold. The suit property was originally purchased by late Ram Singh by a registered sale deed dated 18-3-1931. While residing with his family, Ram Singh expired in the year 1957 leaving behind his widow, Defendant No. 1, his son late Gobardhan Singh and his daughter Defendant No. 2 (present respondent). On this basis, the defendants pleaded that late Gobardhan Singh succeeded to 1/3rd of the undivided interest and Defendants 1 and 2 succeeded to 1/3rd interest each. The defendants further pleaded that in 1963, the widow of Gobardhan Singh i.e. plaintiff No. 1 created trouble with regard to possession of the defendants for which eases were instituted. A cross claim was also filed by the defendants claiming 2/3rd share over the suit property and praying for eviction of the plaintiffs from the share of the defendants. It appears that the trial Court framed ten issues on the pleadings of the parties and after trial came to the finding that late Ram Singh died on 29-5-1951 and hence, the original Defendant No. 1 who was the widow of Ram Singh along with his son i.e. Gobardhan Singh succeeded to the said property. He further held that the present respondent who is the daughter of late Ram Singh had no right over the said property and is liable to be evicted therefrom. On the question of the counter claim made by the defendants though no written statement was filed by the plaintiffs, the trial Court held that the plaintiffs are not liable to be evicted from the suit schedule property. On the above finding, the trial Court decreed the suit.

(3.) Against the judgment and decree of the trial Court, the present respondent who was Defendant No. 2, filed Title Appeal No. 8 of 1998 which was heard and disposed of by the learned Addl. District Judge by the impugned judgment and decree. Along with the memorandum of appeal, the present respondent, as appellant, filed an application under Order XLI, Rule 27 C.P.C. for admitting two registered Wills alleged to have been executed by her mother, i.e., the original Defendant No. 1 - late Moti Bai, in her favour. The said registered Wills were also filed along with the memo of appeal. Subsequently, an application seeking amendment of the written statement was filed by the defendant-respondent, before the lower appellate Court. After hearing the appeal, the lower appellate Court while upholding the findings of the trial Court that late Ram Singh, in fact, died on 29-5-1951 and that the sale made by late Gobardhan Singh cannot be adjusted towards his moiety in the family property since the said sale deed was signed by late Moti Bai and the sale was made for legal necessity of the joint family, confirmed the said finding. After hearing on the application for amendment of the written statement and the application for admitting additional evidence, the lower appellate Court on analyzing the law on the point, allowed the said application and ultimately allowed the appeal in part and remanded the matter to the trial Court by ordering as follows : "The learned lower Court shall give adequate opportunity to the appellant to carry out the amendment and then allow both the parties to adduce evidence on this score by framing such additional issues necessary on such pleadings. The learned lower Court shall also have the counter claim checked by its office upon remand and then proceed to have an opportunity to the plaintiffs to file a written statement. Keeping in view the peculiar nature no order as to cost. Parties are directed to appear before the lower Court on 23-4-2001."