PRITHI Vs. YATINDER KUMAR

JUDGEMENT

(1.) THIS judgment will dispose of R. S. A. Nos. 1543, 1637 to 1642 and 1660 of 1982 which arise out of eight suits which were consolidated by the trial Court and were disposed of by one judgment.

(2.) GANESHI Lal was the common ancestor of the plaintiffs. During his lifetime, vide mutation Exhibit P. 1 dt. 12th Dec. 1901, he transferred his property in favour of his only son Kanshi Nath, who died in the year 1902. On the death of Kanshi Nath, his property was mutated in favour of his two sons, namely Hari Kishan Dass and Ram Chand vide mutation Exhibit P-2 Dt. 4th April, 1902. Ram Chand died unmarried. On his death, his estate was mutated in favour of his brother Hari Kishan Dass vide matation Exhibit P-3 dt. 26th Dec. 1902. Hari Kishan Dass died on 1st Feb. 1970 On his death, his estate was mutated in favour of his three sons (plaintiffs) and one daughter Shashi Prabha vide mutation Exhibit P-4 dt. 28th Sept. 1970, in equal shares i. e. 1/4th each. Hari Kishan Dass had property in more than one district and being a big landowner his case for determining the surplus land was tried by the Special Collector. The Special Collector in his order dt. 21st June, 1976 (Exhibit D-2) relied upon mutation Exhibit P-4, where under all the four heirs of Hari Kishan Dass got 1/4th share each and passed the orders accordingly. In the Jamabandi also for the year 1976-77 (Exhibits P-21 to P26) the shares of all the heirs of Hari Kishan Dass were shown to be 1/4th each. Shashi Prabha daughter of Hari Kishan Dass thus being the owner of 1/4th share of the estate of her father, sold some land out of the same by executing eight different sale deeds dt. 14th May, 1973. The vendee-defendants are the appellants in all these appeals. The plaintiffs who are the three sons of Hari Kishan Dass deceased filed the suits on 12th May, 1976, for declaration and possession to the effect that the sale deeds were valid to the extent of 1/16th share out of the land sold and qua the remaining land these were nullity and ineffectual against the rights of the plaintiffs. The plaintiffs also prayed for joint possession of the property on that basis. The allegations were made in the plaints that the suit land was an ancestral property in the hands of late Hari Krishan Dass and the plaintiffs were coparceners in this property by virtue of thier birth in the family and the property in the hands of Hari Kishan Dass was a coparcenary property. So Hari Kishan Dass was owner of only 1/4th share in the property and the plaintiffs were also owners of 1/4th share each in the property, as the parties are governed by the Mitakashra school of thought. In para 4 it was further pleaded that late Hari Kishan Dass died intestate on 1st Feb, 1970, leaving the plaintiffs and defendant No. 4 Shashi Prabha (whose name was later on deleted by the plaintiffs) as his class-I heirs under the Hindus Succession Act. So the share of the plaintiffs in the coparcenary property came to 5/16th share each a 1/16th share in respect of Smt. Shashi Prabha defendant No. 4. On these allegations, it was alleged that the sale deeds executed by Shashi Prabha in favour of the vendee-defendants in excess of her rights in the property were invalid to the extent of 15/16th share in the whole property and were valid only to the extent of 1/16th share, to which Smt. Shashi Prabha was entitled to succeed on the death of their father Hari Kishan Dass. As observed earlier, the name of Shashi Prabha from the array of the defendants was deleted vide Court order dt. 1st Oct. 1976 on the statement of the learned counsel for the plaintiffs, before framing of the issues. Shashi P Shashi Prabha, though had not filed any written statement. Thus, the suit was contested by the vendee defendants on the ground that Shashi Prabha vendor was shown in the revenue record as owner of 1/4th share correctly and she rightly sold her share in the estate, of her father Hari Kishan Dass and the sale deeds executed by her were legal and valid. The objection was also taken that the suit was bad on account of non-joinder of necessary parties as the name of Shashi Prabha, who was a necessary party, was deleted by the plaintiffs themselves. The plea that the suit land was not ancestral or coparcenary property was also taken. It was also pleaded that the plaintiffs by their own act and conduct were estopped from filing the present suits. The trial Court found that the suit land in the hands of the plaintiffs and Shashi Prabha was ancestral of Hari Kishan Dass qua the plaintiffs. It was further found that Shashi Prabha was entitled to inherit 1/4th share and the mutation sanctioned in her favour in this behalf was legal and valid. It was further found that the suit was bad for non-joinder of necessary parties as the name of Shashi Prabha was deleted on the statement of the counsel for the plaintiffs on 1st Oct. 1976. Surprisingly enough, the trial Court vide its order dt. 2nd Jan 1980, brought the trial Court vide its order dt. 2nd Jan 1980 brought the legal representatives of Shashi Prabha on record, whereas it is admitted by the plaintiff in the statement as P. W. 1 and even now in this Court at the Bar that Shashi Prabha is still alive. The trial Court further found that the plaintiffs were estopped by their own act and conduct from filing the present suit. In view of these findings, the eight suits filed by the plaintiffs were dismissed. In appeal, the learned Additional District Judge reversed the finding of the trial Court as to the non-joinder of necessary parties. He came to the conclusion that Shashi Prabha was only a vendor and thus she could not be said to be a necessary party and the non-impleading of the vendor was of no consequence. The finding of the trial Court as to the suit property being ancestral property was not allowed to be challenged on behalf of the vendee-defendants on the ground that they had not filed any cross-objections or cross-appeals to that effect. For that proposition, reliance was placed on Choudhary Sahu (dead) by LRs. v. State of Bihar AIR 1982 SC 98. In view of these findings the plaintiffs' suit were decreed. Dissatisfied with the same, all the vendee-defendants have filed these appeals in this Court.

(3.) AFTER hearing the learned counsel for the parties on the point, I am of the considered view that the defendants were entitled to challenge the findings of the trial Court on that issue even if they had not filed cross-objections as such. As a matter of fact, they were not at all required to file any such cross-objections. The Supreme Court authority relied upon has absolutely no applicability because in that case a part of the decree had become final as the defendants therein had not filed any appeal before the Commissioner. In the second appeal there, the defendants wanted to challenge that part of the decree as well, on which it was held that in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation, they could not be allowed to challenge the same in the second appeal. In the present case, the plaintiffs' suits were dismissed in toto and, therefore, the defendants were entitled to support the decree by showing that the finding against them in the Court below in respect of any issue ought to have been in their favour. Accordingly, the learned counsel for the appellants were allowed to challenge the said finding of the trial Court on this issue by referring to the evidence on record.