# Smt. Dropadi Devi & Ors v. Shiv Chandra Dixit

- **Citation:** (2020) 1 ILRA 934
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-27
- **Case number:** Second Appeal No. 83 of 2014
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-dropadi-devi-ors-v-shiv-chandra-dixit-45706
- **Pages:** 23

## Headnote

A. Code of Civil Procedure, 1908 - Section
100
-
challenge
to
-concurrent
judgement-no error in the concurrent
finding returned by two courts as far as
possession
is
concerned-concurrent
finding of fact is usually binding on the
High court while hearing the second
appeal-when any concurrent finding of
facts is assailed in second appeal, the
appellant is entitled to point out any one
or more ground on the basis of pleadings
and evidence, such ground will constitute
substantial question of law. (Para 68 to 73)
1 All. Smt. Dropadi Devi & Ors. Vs. Shiv Chandra Dixit
935
B.
Defendant
claimed
damage
for
wrongful possession-he failed to lead any
evidence or establish quantum regarding
damage-defendant shall not be entitled
to the decree of the damage in his
counter claim-decree of possession is
affirmed. (Para 74 to 77)

Second Appeal allowed. (E-6)

List of cases cited: -

## Text

_Characters 0–39,879 of 78,040. This is a partial read: ask again with offset=39879 for what follows._

934 INDIAN LAW REPORTS ALLAHABAD SERIES
that
the
participation
of
panchayat
members in the meetings at Gram
Panchayat
is
duly
ascertained
and
monitored by the State.

36. In the present case, the Court is
not straightaway called upon to answer as to
whether the office of ANM is an office of
profit or not which in any view of the matter
lies within the domain of the State
Government to lay down but what is
surprising is that the District Magistrate has
placed reliance upon a circular issued by the
State Election Commission for such a
purpose. The very premise upon which the
District Magistrate has rested his decision i.e.
a
circular
issued
by
State
Election
Commission on 28.6.2010, does not have any
sanctity of law. The Court is of the considered
opinion that unless an office is validly
specified by the State to be an office of profit,
it shall not confer power on the District
Magistrate to remove an elected Gram
Pradhan from his/her office on that ground
alone. The District Magistrate has clearly
erred in the present case by placing reliance
upon the circular issued by the State Election
Commission on 28.6.2010 and the impugned
order passed by him, therefore, is liable to be
set aside.

37. The District Magistrate ought to
have taken up the matter with the State
Government instead of calling for a report
from his sub-ordinate officials for which
he lacked the authority under law. The
State Government is bound to consider the
matter and come up with a clear stand on
the circular issued by the Commission on
28.6.2010 so that the disputes of this
nature do not arise in future. Suffice it to
say that the State Government while
identifying an office to be an office of
profit must bear in mind the true import
and purpose of such a disqualification.

38. For the reasons aforesaid, the
Court is of the considered opinion that the
impugned order dated 19.9.2019 being
illegal and arbitrary is liable to be set
aside. It is accordingly quashed and
petitioner is directed to be restored as
Gram Pradhan.

39. Writ petition No. 26883 of 2019
is allowed. The cost of litigation is
quantified at a sum of Rs. 25000/- payable
by the State to the petitioner within a
period of three months from today.
----------
(2020)1ILR 934

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.01.2020

BEFORE
THE HON'BLE JASPREET SINGH, J.

Second Appeal No. 83 of 2014

Smt. Dropadi Devi & Ors. ...Appellants
Versus
Shiv Chandra Dixit ...Respondent

Counsel for the Appellants:
Mohd. Aslam Khan, Sri Ashish Srivastava

Counsel for the Respondent:
Sri Amit Jaiswal, Sri Brijesh Kr. Saxena, Sri
Brijesh Kumar

A. Code of Civil Procedure, 1908 - Section
100
-
challenge
to
-concurrent
judgement-no error in the concurrent
finding returned by two courts as far as
possession
is
concerned-concurrent
finding of fact is usually binding on the
High court while hearing the second
appeal-when any concurrent finding of
facts is assailed in second appeal, the
appellant is entitled to point out any one
or more ground on the basis of pleadings
and evidence, such ground will constitute
substantial question of law. (Para 68 to 73)
1 All. Smt. Dropadi Devi & Ors. Vs. Shiv Chandra Dixit
935
B.
Defendant
claimed
damage
for
wrongful possession-he failed to lead any
evidence or establish quantum regarding
damage-defendant shall not be entitled
to the decree of the damage in his
counter claim-decree of possession is
affirmed. (Para 74 to 77)

Second Appeal allowed. (E-6)

List of cases cited: -

1. Budhram & Ors. Vs. Banshi & Ors. 2010 (11)
SCC 476

2. Laxmi & Ors. Vs. Parmeshwari Hegde & Ors.
AIR 1969 Karnataka 175

3. Om Prakash Vs. Kintu & Anr. 2005 (13) SCC
289

4. Ashok Leyland Vs. St. of Tamilnadu 2004(3)
SCC 1

5.
D.S.
Lakshmaiah
&
Anr.
Vs.
L.
Balasubramanyam 2003 (10) SCC 310

6. Gurnam Singh Vs. Gurbachan Kaur 2017
(13) SCC 414

7. Mithai Lal Dalsinghar Singh Vs. Panna Bai
Dev Ram Kinni 2003 (10) SCC 691

8. Kundiba Dagdu Kadam Vs. Savitri Bai Sopan
Gurjar 1993 (3) SCC 722

9. Mithai Lal Dalsinghar Singh Vs. Panna Bai
Dev Ram Kinni 2003 (10) SCC 691

10. Kunj Bihari Vs. Ganga Sahai Pande 2013
SCC Online Alld. 13489: 2013 (99) ALR 826

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Sri Mohd. Arif Khan,
learned Senior Advocate along with Sri
Deepankar Kumar and Mohd. Aslam Khan
for the appellants and Sri B.K. Saxena,
learned Counsel along with Sri Amit
Jaiswal, Ms. Shreya Saxena and Sri
Utkarsh Srivastava, for the respondents.

2. The instant second appeal has
been preferred against the concurrent
judgment and decree passed by the two
courts below whereby the Additional Civil
Judge, Senior Division, Court No. 24,
Lucknow by means of its judgment and
decree dated 08.10.2010 dismissed the suit
of the plaintiffs-appellants and allowed the
counter claim of the defendant-respondent.
The aforesaid judgment and decree has
been affirmed by the First Appellate Court
in Regular Civil Appeal No. 155 of 2010
by A.D.J., Court No. 2, Lucknow by
means of its judgment and decree dated
05.02.2014, while dismissing the appeal.

3. The aforesaid second appeal was
admitted by means of the order dated
01.04.2014 on three substantial questions
of law which shall be discussed later,
while dealing with them. However, in
order
to
appreciate
the
controversy
involved in the above second appeal,
certain brief facts giving rise to the instant
appeal are being noticed hereinafter.

4. The plaintiffs-appellants instituted
a suit for cancellation of a will deed as
well as a sale deed in the Court of Munsif,
South, Lucknow which was registered as
R.S. No. 615 of 1992. Primarily, the
pleadings were that the house bearing No.
57/1984
Mohalla
Tilpurwa,
Ward-
Hussainganj, District Lucknow is a Joint
Hindu Family Property of the ancestors
namely Balbhadra Dubey which was not
partitioned as yet.

5. It was also pleaded that the
plaintiffs are in possession of the entire
property in question and they had executed
a registered power of attorney in favour of
one Sri Harish Kumar Trivedi to look after
the property as well as for the purpose of
instituting and conducting the litigation. It
936 INDIAN LAW REPORTS ALLAHABAD SERIES
was specifically stated that on 30.08.1992,
the defendant namely Sri Shiv Chandra
Dixit had attempted to forcibly occupy the
property in question which was resisted by
the plaintiff. It is then that the defendant
while claiming title to the property
indicated that he had purchased the
property by means of a registered sale
deed dated 17.07.1971 from Smt. Gaga
Dei who was the daughter of Late Sri Shiv
Shanker Dubey.

6. It was also pleaded that as the
property in question was a Joint Hindu
Family Property and as such Sri Shiv
Shanker Dubey, the father of Smt.
Gangadei, did not have a right to execute
any will allegedly dated 12.12.1947 and
consequently Smt. Gangadei did not have
any right to execute sale deed dated
17.07.1971, hence the defendant did not
get any right.

7. The plaint was later on amended
and by amendment it was specifically
incorporated that Sri Shiv Shanker had
instituted a Suit bearing No. 718 of 1950
before the Munsif City, Banaras seeking
partition of the Joint Hindu Family
Property. In the aforesaid suit of 1950 a
defence was raised by the plaintiffs herein,
that the suit instituted at Banaras was bad
for partial partition, inasmuch as, the
property bearing No. 57 of 1984, Mohalla
Tilpurwa, Hussainganj, Lucknow was also
a part of the Joint Hindu Family Property
which ought to have been included in the
Schedule of property for which the
partition was sought by Sri Shiv Shanker
Dubey.

8. The Court at Banaras by means of
its judgment and decree dated 07.10.1955
specifically provided that the property
situate at Lucknow should be included in
the Schedule of properties at the time of
preparation of final decree and in case if
Sri Shiv Shanker Dubey does not include
the said property then his suit shall stand
dismissed. It was also pleaded that despite
the aforesaid direction the plaintiff of the
partition suit filed at Banaras, Sri Shiv
Shanker Dubey did not include the
aforesaid property nor challenged the
aforesaid order before any superior court,
accordingly, his suit was dismissed by
means of the order dated 15.12.1962.

9. It was also pleaded that since it
was held that the property in question was
a Joint Hindu Family Property in the suit
filed before the Court of Munsif, Banaras,
accordingly,
the
said
findings
were
binding and Sri Shiv Shanker Dubey did
not have any right to execute any will in
respect of the un-partitioned Joint Hindu
Family Property, nor his daughter Smt.
Gangadei had any right to execute any sale
deed in favour of the defendant i.e. Shiv
Chandra Dixit, hence, the sale deed dated
17.07.1971 was also bad in law.

10. It was also pleaded that the
plaintiff/appellant herein had instituted a
SCC Suit against a tenant namely
Kalpnath Pandey who was in occupation
of part of the property and upon obtaining
a decree of eviction against the said tenant,
the possession of the part occupied by the
tenant was also handed over to the plaintiff
and in this fashion he came in possession
of the entire property and it is only on
30.08.1992 when the defendant on the
basis of the illegal sale deed dated
17.07.1971 attempted to forcibly occupy
the property in question that the cause of
action accrued thereafter the plaintiff
applied for the certified copy of the sale
deed in question and the suit came to be
filed on 25.11.1992 seeking a decree of
1 All. Smt. Dropadi Devi & Ors. Vs. Shiv Chandra Dixit
937
cancellation of the sale deed dated
17.07.1971 and the will deed dated
12.12.1947 and also for an injunction
restraining the defendant from interfering
in the peaceful possession of the plaintiff
in respect of the property in question
bearing No. 57/84, Tilpurwa, Hussainganj,
Lucknow (Old House No. 9/131).

11. The aforesaid suit came to be hotly
contested by the defendant by filing his
written
statement.
While
denying
the
averments contained in the plaint in suit, the
defendant in the additional pleas of his written
statement, specifically pleaded that the
disputed house in question was the selfacquired property of Late Sri Shiv Shanker
Dubey who had purchased the same in his
own name by means of a registered sale deed
dated 25.01.1934 from its erstwhile owner
namely Agnu son of Sahabdeen.

12. It was also pleaded that Sri
Balbhadra Dubey was the grand-father of
the Shiv Shanker Dubey who died much
earlier and the uncle of Sri Shiv Shanker
Dubey namely Sri Girdhari Dubey had
also died in the year 1925. The father of
Sri Shiv Shanker Dubey had died in 1931
and none of the aforesaid persons i.e. the
father and the uncle or the grand-father of
Sri Shiv Shanker Dubey had purchased the
property in question nor they had the
means to do so.

13. It was also pleaded that Sri Shiv
Shanker Dubey had been enlisted in the
Army during the First World War on the
post of a driver and he had his own
independent source of income. Sri Shiv
Shanker Dubey was de-enlisted from the
Army on 09.01.1920 and thereafter he was
employed at Loco Workshop in Lucknow
and in the year 1934 his salary was Rs. 71
and 4 Annas. Thus, it is from the salary
received by Sri Shiv Shanker Dubey
during his service in the Army as well as
from his salary in the Loco Work Shop
that he had saved, he had initially bought
another
house
situate
in
Mohalla
Hussainganj from its erstwhile owner
namely Lalta Prasad by means of a
registered sale deed dated 17.02.1931.
This particular house was thereafter sold
by Shiv Shanker Dubey Dubey in favour
of Mahadev Prasad on 23.03.1931 for a
sum of Rs. 400/- and thereafter in the year
1934 he had purchased the disputed house
in question from his own self-generated
income and the said property was not of
the Joint Hindu Family.

14. Sri Shiv Shanker Dubey
considering that he had only his wife and
one daughter, in order to protect his
properties, had executed a registered will
on 12.12.1947 which was duly registered
in the office of the Sub Registrar,
Lucknow. As per the will he had
bequeathed all his properties in favour of
his wife Smt. Rajrani with a stipulation
that after her death his only daughter
namely Smt. Gangadei would become the
absolute owner of all his property. Since
Sri Shiv Shanker Dubey had immense
faith in his daughter and while he had
turned old he had also executed his power
of attorney in favour of his daughter which
was also registered before the Sub
Registrar at Lucknow. Sri Shiv Shanker
Dubey expired in the year 1962 and his
wife namely Smt. Rajrani became the
exclusive owner who also expired in the
year 1970 and thereafter Smt. Gangadei
being the sole heir of Sri Shiv Shanker
Dubey succeeded to his properties and her
name was also recorded in the Municipal
Records and thereafter Smt. Gangadei
executed a registered sale deed in favour
of the defendant on 17.07.1971.
938 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The defendant also made a
specific pleading that the Suit of the
plaintiff was hugely time barred, inasmuch
as, the plaintiff had resorted to suppression
of facts. It was also pleaded that the
plaintiff has referred to the SCC suit filed
by him against the erstwhile tenant namely
Kalpnath Pandey. The defendant stated
that in the said SCC Suit filed by the
plaintiff against Sri Kalpnath Pandey,
where the tenant had taken a defence that
he was paying rent to the answering
defendant. In the said suit the copy of the
sale deed dated 17.07.1971 was also
placed on record and the same finds
mention in the judgment of the SCC Court
and thus the plaintiff was very well aware
of
the
aforesaid
sale
deed
dated
17.07.1971 and despite the same no effort
was made by the plaintiff to challenge the
said sale deed within the period of
limitation and now after a lapse of 11
years the instant suit was instituted that too
by creating and indicating an artificial
cause of action and as such the suit of the
plaintiff challenging the sale deed was not
maintainable and was liable to be
dismissed as time barred.

16. The defendant also specifically
pleaded that the partition suit of 1950, was
dismissed on 15.12.1962 without any
decision on merit, inasmuch as, the
plaintiff herein, had made an application
bearing Paper No. C-11 and C-12 stating
that Sri Shiv Shanker Dubey had expired
on 21.08.1962 and since the substitution
had not taken place, accordingly, the suit
was dismissed for technical reasons. It was
also pleaded that Smt. Gangadei continued
to reside in the premises in question after
execution of sale deed with the consent of
its owner, while Sri Kalpnath Pandey was
a tenant of only part of the disputed house.
After the death of Smt. Gangadei, the
answering
defendant
was
in
entire
possession of the property in question.

17. It is actually the plaintiff and his
power of attorney holder who along with
his musclemen attempted to forcibly
occupy the premises in question which
was resisted by the answering defendant.
Again on 02.03.1993 the plaintiffs forcibly
broke open the lock and took the
possession from the answering defendant.
The incident was reported to the police
who came on the site and by taking
recourse to proceedings under Section
145/146 Cr.P.C. sealed the premises in
question. It was only later that the
plaintiffs
challenged
the
proceedings
before
the
Hon'ble
High
Court
at
Lucknow, who without entering into the
merits and considering the fact that a civil
suit between the parties in respect of the
property in question was already pending,
accordingly, directed that the possession
be handed over to the plaintiff subject to
the outcome of the civil suit and it is in
furtherance thereof that the defendant by
amending its written statement introduced
a counter claim seeking possession of the
property in question as well as damages at
the rate of Rs. 50 per day from the
plaintiffs.

18. It is in the backdrop of the above
facts that the Trial Court had framed as
many as 15 issues. The voluminous
documentary evidence was led by both the
parties, however, as far as the oral
evidence is concerned, the plaintiff namely
Sri Girish Prasad was examined as P.W. 1,
Sri Omkar Nath was examined as P.W. 2
while Ram Khelawan and Om Prakash
Dwivedi were examined as P.W. 3 and
P.W.
4,
Sri
Dharmendra
Vajpayee,
Kanhaiya Lal Yadav and Sri Kailash Nath
were examined as P.W. 5, P.W. 6 and
1 All. Smt. Dropadi Devi & Ors. Vs. Shiv Chandra Dixit
939
P.W. 7 respectively. As far as the
defendant is concerned he examined
himself as the sole witness.

19. The Trial Court by means of the
judgment and decree dated 08.10.2010
dismissed the suit of the plaintiff and
decreed
the
counter
claim
of
the
defendant,
directing
the
plaintiff
to
handover the possession within 3 months
from the date of judgment and decree
along with a decree of damages @ Rs. 50
per day. While doing so, the Trial Court
found that the suit of the plaintiff was
clearly time barred. It also recorded a
finding that the property in question was
purchased by Sri Shiv Shanker Dubey out
of his own income and he had a right of
executing a will and his daughter namely
Smt. Gangadei was legally entitled to
execute the sale deed dated 17.07.1971.
This
judgment
and
decree
dated
08.10.2010 was made the subject matter of
the Regular Civil Appeal No. 155 of 2010.

20. The First Appellate Court after
hearing the parties and considering the
evidence and material available on record
by means of its judgment and decree dated
05.02.2014 dismissed the First Appeal and
affirmed the judgment and decree passed
by the Trial Court.

21. Being aggrieved thereafter the
plaintiff has preferred the instant second
appeal which, as already noticed above,
was admitted by this Court by means of
order dated 01.04.2014 on the substantial
questions of law which are re-produced
hereinafter for ready reference:-

(I) Whether the admission which
is the best piece of evidence unless
explained or withdrawn coud be ignored
and the learned courts below, despite the
specific admission of the respondent DW-1
that
Smt.
Gangadei,
who
died
on
22.02.1975, remained in possession of the
house till her death, held that the sale deed
dated 17.07.1971 is valid, while decreeing
the counter claim filed by the respondent?.

(II) Whether it having been held
in previous suits filed by late Shiv Shanker
Dubey, father of Smt. Gangadei that the
house in dispute is Joint Hindu Undivided
family property, the learned courts below
were justified in law in dismissing the suit
for cancellation of those deeds afte
holding that it was self-acquired property
of Shiv Shanker Dubey, ignoring the fact
that
the
aforesaid
judgments
would
operate as resjudicata?

(III) Whether the learned courts
below were justified in law in decreeing
the counter claim set up by the respondent,
ignoring the earlier judgments passed by
the competent courts of law, holding that
the house in dispute is Joint Hindu
Undivided Family property and Shiv
Shanker Dubey Dubey was not the
absolute owner, thereby he could not
execute Will dated 12.12.1947 in respect
to the entire house in favour of his wife
and daughter and the latter could not
execute a valid sale deed in favour of the
respondent on 17.07.1971 in respect to the
entire house and further the vendee having
failed to get the possession since the time
of the execution of the sale deed dated
04.04.1947 would not derive any right title
on that basis?

22. Mohd. Arif Khan, learned Senior
Advocate while assailing the judgment and
decree passed by the two courts has raised
the following submissions:-

23. It has been submitted that the two
courts have committed an error in not
considering the effect of the finding given
940 INDIAN LAW REPORTS ALLAHABAD SERIES
by the court in the suit instituted by Sri
Shiv Shanker Dubey for partition before
the Court of Munsif, City at Banaras. It
was submitted that in the said suit a
specific objection has been raised, by the
plaintiff herein, that the suit instituted by
Sri Shiv Shanker Dubey for partition was
bad since it did not include the property
situate at Lucknow. It was also urged that
the Court at Banaras while deciding the
civil suit by means of its judgment dated
07.10.1955 had clearly mentioned in its
order that the suit of the plaintiff for
partition is decreed with the condition that
the plaintiff shall include the house situate
at Lucknow also for partition at the stage
of preparation of final decree failing which
the suit of the plaintiff shall stand
dismissed being bad for partial partition.

24. In the said suit it was also held
that the plaintiff i.e. Sri Shiv Shanker
Dubey only had 1/4th share in the house at
Lucknow and he was allowed one month's
time to include the said house. Since the
aforesaid order was not complied with,
accordingly, it is clear that the property
situate at Lucknow was a Joint Hindu
Family Property which remained unpartitioned and since the finding which
had been returned in the proceedings
which were held at Banaras would be
binding
on
the
defendant
and
his
predecessors,
accordingly,
Sri
Shiv
Shanker Dubey could not have executed
any will deed in respect of a Joint Hindu
Family Property in favour of his wife and
daughter nor his daughter could have any
right to sell the entire un-partitioned Joint
Hindu Family Property by means of the
sale deed dated 17.07.1971 in favour of
the defendant and, accordingly, the two
courts have grossly erred in failing to
consider this aspect of the matter. Coupled
with the fact that the findings recorded in
the Banaras judgment dated 07.10.1955
was the best evidence which was neither
disproved nor explained, accordingly, the
suit could not have been dismissed, nor the
counter claim could be allowed.

25. Sri Arif Khan has also urged that
the possession of the premises in question
was with the plaintiffs-appellants. The
averments made by the defendant that he
is in possession is also false, inasmuch as,
there was no material on record to indicate
as such. It was also submitted that the sale
deed of the premises in question even
assuming to be valid would indicate that it
was of the year 1971 and the plaintiff
being in possession was never evicted and
by introducing a counter claim in the
written statement by way of an amendment
in the year 1999, was clearly time barred
and in view thereof the counter claim for
possession against the plaintiff could not
be decreed, in any circumstances.

26. Sri Khan has also submitted that
since the property was found to be Joint
Hindu Family Property wherein Sri Shiv
Shanker Dubey at best had 1/4th share,
accordingly, if at all, the counter claim
could been decreed it could have only
been done for 1/4th share and not for the
entire property and to that extent also the
decree passed by the two courts is bad,
inasmuch as, it does not take care nor
address the aforesaid issues.

27. It has further been urged by Sri
Khan that despite not a shred of evidence
was led by the defendant in support of its
counter claim regarding the damages
prayed at the rate of Rs. 50/- per day yet
the Courts have granted the aforesaid sum
without due application of mind which is a
perversity apparent on the face of the
record and thus, the courts below have
1 All. Smt. Dropadi Devi & Ors. Vs. Shiv Chandra Dixit
941
committed gross error in decreeing the
counter claim and as such the same cannot
be sustained.

28. Sri B.K. Saxena, learned counsel
for the respondents has forcefully refuted
the submissions of Sri Arif Khan. Sri
Saxena submitted that apparently the suit
of the plaintiff was barred by limitation,
inasmuch as, in the plaint suit, in
paragraph 11, it was mentioned that the
cause of action for filing the suit occurred
only on 30.08.1992 when the defendant
allegedly attempted to forcibly occupy the
premises in question on the basis of title
based on the sale deed dated 17.07.1971.

29. It was pointed out that the
plaintiffs had mentioned that they became
aware of the sale deed only on 30.08.1992
which was reitreated on oath during
evidence before the Trial Court. The said
fact was apparently false for the reason
that the plaintiff themselves relied upon
the judgment passed by the SCC Court in
SCC Suit No. 1806 of 1975 which was
decided on 22.01.1981. It was submitted
that in the aforesaid judgment there is a
clear reference to the sale deed executed
by Smt. Gangadei in favour of Sri Shiv
Shanker Dubey which was brought on
record of the SCC Suit as bearing Paper
No. C-25.

30. Thus, the plaintiff was fully
aware of the said sale deed, however,
chose not to assail the same. As per Article
59 of the Limitation Act the sale deed
could be assailed only within the period of
limitation which began to run from the
date of knowledge, which commenced
from the date the said document was filed
on record of the SCC suit and even
otherwise at best it would commennce
when the SCC suit was decreed in January,
1981. The instant suit was filed by the
plaintiffs only on 25.11.1992 which is
beyond a period of 11 years and was exfacie barred by limitation and as such the
suit of the plaintiffs was rightly dismissed
by the Trial Court.

31.

Sri
Saxena
has
further
vehemently urged that the submissions of
Sri Arif Khan regarding the proceedings of
the earlier partition suit of 1950 is also bad
for the reason that the suit of 1950 was not
dismissed for non-compliance of the
direction as mentioned in the judgment
dated 07.10.1955 rather the proceedings of
the earlier partition suit of 1950 was
dismissed as being abated on account of
the fact that Sri Shiv Shanker Dubey had
died in August, 1962 and since his legal
heirs had not been brought on record
within
the
period
of
limitation,
consequently, upon the application of the
plaintiff the suit abated and this fact was
also known and admitted to the plaintiff,
however, it is now being contended
otherwise.

32. Sri Saxena has also drawn the
attention of the Court to a written
statement to the counter claim which was
filed by the plaintiff before the Trial Court
bearing Paper No. A-82 wherein in
paragraph 7 it was specifically pleaded
that the suit of the plaintiff Sri Shiv
Shanker Dubey was dismissed as the legal
heirs were not brought on record and so
the suit was dismissed on 15.12.1962. It
has been urged by Sri Saxena that there
was no finding given by the Court on
merits regarding the property at Lucknow
being a Joint Hindu Family Property.

33. Sri Saxena has also submitted
that the judgment which has been referred
to by Sri Arif Khan dated 07.10.1955 was
942 INDIAN LAW REPORTS ALLAHABAD SERIES
assailed before the First Appellate Court
which was set aside. He has also submitted
that thereafter a F.A.F.O. bearing No. 284
of 1957 was preferred by the defendants of
the Suit No. 718 of 1950 which was
allowed by this Court by means of
judgment dated 21.08.1961 and the matter
was remanded to the First Appellate Court
to decide the appeal afresh. It is only
thereafter that the suit came to be
dismissed solely on the ground of
abatement as Sri Shiv Shanker Dubey had
expired in August, 1962 and the suit came
to be dismissed on 15.12.1962 and that too
on the application of the plaintiffs,
accordingly, in light of the explanation
appended to Order 22 Rule 9 C.P.C. it
cannot be said that the findings have been
returned on merits.

34. It has further been submitted, in
case if the plaintiffs in the instant appeal
had taken a plea regarding the property in
question
being
Joint
Hindu
Family
Property it was incumbent upon the
plaintiffs to have proved the same which
they
have
miserably
failed.
The
submission is merely by relying upon
certain judgments which were rendered in
the proceedings arising out of Suit No. 718
of 1950 and that too which was neither
conclusive nor on merits, the same could
not grant any benefit to the plaintiffs
whereas
the
defendant
had
brought
sufficient cogent material on record in the
shape of the sale deed executed in favour
of Sri Shiv Shanker Dubey in the year
1934 and which indicated that the property
was standing in the name of Sri Shiv
Shanker Dubey and was purchased by his
self-generated income.

35. Thus, the Courts have not
committed any error rather on the basis of
the material and the evidence available on
record
have
categorically
recorded
findings of fact in respect of the property
being self acquired property of Sri Shiv
Shanker Dubey, coupled with the fact that
he was survived by his wife and only
daughter, Consequently, upon his death in
the year 1962 his will executed in the year
1947 became redundant and the property
in any case devolved on his wife and
daughter and upon the death of his wife his
daughter became the sole owner who
executed the sale deed dated 17.07.1971 in
favour of the defendant who became its
actualy owner.

36. It is also submitted that the
possession remained with the defendant
and Smt. Gangadei till her life time
continued to reside therein with the
consent of the defendant. Since the
defendant had unequivocal title to the
property and the plaintiff attempted to
forcibly take the same which was duly
reported to the police and the premise in
question was sealed in proceedings under
Section 145/146 Cr.P.C. which was
assailed by the plaintiff before the High
Court. In light of the commission
conducted on the orders of the High Court,
considering the fact that the Civil Suit was
pending, the High Court by means of its
order dated 04.04.1997 directed the police
to unlock the house in question and deliver
its possession to the plaintiffs subject to
the rights which were to be adjudicated in
the Civil Court in the instant Suit.

37. Thus, it is thereafter that the
cause for possession arose to the defendant
who introduced a counter claim against the
plaintiff and since the plaintiff being the
owner and claiming possession on the
basis of his title was entitled to do so by
virtue of Article 64 and 65 of the
Limitation Act, hence, it cannot be said
1 All. Smt. Dropadi Devi & Ors. Vs. Shiv Chandra Dixit
943
that the counter claim of the defendant was
barred and, accordingly, the two courts
have rightly decreed the counter claim.

38. Lastly, it has been submitted by
Sri Saxena that though the defendants
claimed Rs. 50/- per day as damages for
the counter claim but he fairly conceded
that there was no evidence in respect of the
quantum of damages but he submitted that
since the plaintiff remained in possession
of the premise in question, the defendants
were entitled to the damages which is in
the discretion of the Court. He has further
submitted that the quantum of damages
will have no effect on the substantive part
of the decree of the counter claim
regarding possession which in any case is
based on material on record and being
findings of fact are not to be disturbed in
second appeal in exercise of the powers
under Section 100 C.P.C.

39. Sri Arif Khan has relied upon the
decision of the Apex Court in the case of
Budhram and Others Vs. Banshi and
Others reported in 2010 (11) SCC 476 and
Laxmi & Others Vs. Parmeshwari Hegde
&
Others
reported
in
AIR
1969
Karnataka 175.

40. Sri Saxena has relied upon the
decision of the Apex Court in the case of
Om Prakash Vs. Kintu and Another
reported in 2005 (13) SCC 289, Ashok
Leyland Vs. State of Tamilnadu reported
in 2004 (3) SCC 1, D.S. Lakshmaiah and
Another
Vs.
L.
Balasubramanyam
reported in 2003 (10) SCC 310 , Gurnam
Singh Vs. Gurbachan Kaur reported in
2017
(13)
SCC
414,
Mithai
Lal
Dalsinghar Singh Vs. Panna Bai Dev
Ram Kinni reported in 2003 (10) SCC
691, Kundiba Dagdu Kadam Vs. Savitri
Bai Sopan Gurjar 1993 (3) SCC 722 .

41. The Court has given its anxious
consideration to the submissions of the
learned counsel for the parties and have
also perused the record as well as the case
laws cited by the respective parties. In
light of the submissions made as well as
the factual matrix, the questions of law to
be answered in the above second appeal as
already
noticed
and
reproduced
hereinabove requires this Court to examine
whether in the facts and circumstances of
the case, the counter claim has been rightly
decreed or not. From the perusal of the
substantial questions upon which the
above second appeal was admitted, upon
which the parties have been heard, the core
questions that require consideration are the
effect of the proceedings arising out of the
Suit No. 718 of 1950. In light of the same
whether the successors of Sri Shiv Shanker
Dubey had any right to execute the sale
deed in favour of the defendant and
whether the defendant had the right to get
the counter claim of possession against the
plaintiff.

42. From the perusal of the record,
certain facts are not in dispute between the
parties. It is not disputed that Sri Shiv
Shanker Dubey was survived only by his
wife and his daughter. In case if the
property in question is held to be the selfacquired property then the same vested
with Sri Shiv Shanker Dubey till his death
in the year 1962 and upon his death
irrespective of the fact whether his Will of
1947 was valid or not, the fact remains
that in view of the promulgation of the
Hindu Succession Act his wife and
daughter alone would be the sole legal
heirs and the plaintiff to that extent would
have no right in the property. Having said
that upon the death of wife of Shiv
Shanker Dubey his only daughter Smt.
Gangadei was the sole and exclusive
944 INDIAN LAW REPORTS ALLAHABAD SERIES
owner and she would have a right to
execute a sale deed in favour of the
defendant.

43. Now to ascertain whether the
property in question was the exclusive
property of Sri Shiv Shanker Dubey or he
had 1/4th right as stated by the appellant to
have been held in the judgment rendered
by the Court of Munsif, City Banaras in its
judgment dated 07.10.1955, the records
have been carefully perused by the Court
and it indicate that the aforesaid judgment
dated 07.10.1955 does specifically state
that the plaintiff i.e. Shiv Shanker Dubey
would have 1/4th share in the said house
and he was allowed one month's time to
include the said house and make it
available for partition in the final decree to
be drawn failing which his suit shall stands
dismissed being bad for partial partition,
however it is only on incomplete version.

44. The record also reveals that the
aforesaid judgment was set aside in
appeal. The parties have filed the copy of
the judgment passed by this Court dated
28.01.1961 in F.A.F.O. No. 284 of 1957.
From the perusal of the said judgment
passed by this Court it indicates that the
High Court had taken note of certain facts.
From the perusal of the same it indicates
that the order dated 07.10.1955 was
assailed by Sri Shiv Shanker Dubey in an
appeal which was allowed by the learned
Civil Judge Sri H.M. Srivastava and the
matter was remanded. It is the aforesaid
remand order which was assailed before
this Court in the aforesaid F.A.F.O. and
this Court while allowing the appeal set
aside the remand order and remitted the
matter to the District Judge, Varanasi to
re-admit the appeal to its original number
and to decide the same afresh either by the
District Judge himself or transfer it to
other
Civil
Judge
of
competent
jurisdiction.

45. Thus, it would indicate that as far
as the judgment dated 07.10.1955 is
concerned, the same did not survive and
the same was set aside by means of the
order dated 23.08.1957 passed in Appeal
No. 508 of 1955. The said order is bearing
Paper No. C-171/2. In pursuance of the
order passed by this Court in F.A.F.O. No.
284 of 1957 which was decided on
21.08.1961, the matter was remanded and
it was yet to be considered before the
Court concerned to give its finding on the
issue whether the said property was a Joint
Hindu Family Property or not.

46. Both the parties have drawn the
attention of the Court to the document
bearing No. C-183/1 which is the certified
copy of the formal order which was issued
by the Court of City Munsif, Varanasi
dated 09.01.1963. From the perusal of the
aforesaid formal order it indicates that the
suit was dismissed as it was not
constituted properly and the file was
consigned to records.

47. At this stage, it will be relevant to
point out and refer to paragraph 6 of the
plaint in Suit bearing Paper No. A-3. In the
aforesaid paragraph the plaintiff did make
a mention of the dismissal of the Suit
bearing No. 718 of 1950 by referring to
the order dated 15.12.1962. The plaintiff
had quoted the order dated 15.12.1962
which reads as under:-

" In view of 11-C and the affidavit
12-C the suit is dismissed being improperly
constituted consigned to records."

48. Upon perusal of the record, this
Court finds that the plaintiffs had even
1 All. Smt. Dropadi Devi & Ors. Vs. Shiv Chandra Dixit
945
filed written submissions before the First
Appellate Court which is bearing Paper
No. C-35/3 in the record of the A.D.J.,
Court No. 2, Lucknow. In the aforesaid
written submissions in paragraph 5 the
plaintiffs himself had again referred to the
order dated 15.12.1962 and submitted
before the First Appellate Court which
reads as under:-

" The defendant moved an
application along with Affidavit (Paper
No. 11-C and 12-C) that the plaintiff died
during the pendency of the suit and no
legal heirs of the deceased was substituted
in his place, the suit ought to be abated
and on that application learned Munsif,
Banaras passed the order or application
along with affidavit (Paper No. 11-C and
12-C) that " in view of 11-C and the
affidavit 12-C, the suit is dismissed for
improperly
constituted
consigned
to
records"."

49. Thus, from the above it is clear
that as far as the parties are concerned,
they are not at variance to the fact that the
Suit bearing No. 718 of 1950which was
instituted before the City Munsif, Banaras
came to be dismissed on 15.12.1962. The
plaintiff has not brought any evidence on
record to indicate that once the matter was
remanded in terms of the order passed by
this Court the F.A.F.O. No. 284 of 1957
decided on 21.08.1961 what was the
outcome of the appeal and under what
circumstances the aforesaid suit came back
on the Board of the City Munsif, Banaras.
The plaintiffs have also failed to bring on
record the application C-11 and the
affidavit C-12 a reference of which has
been made by the plaintiffs themselves in
their plaint. But the fact remains that from
the
pleadings
as
already
referred
hereinabove as well as in the reply to the
counter claim as filed by the plaintiff it
was mentioned that the Suit at Banaras
stood abated for non-substituting the heirs
of Sri Shiv Shanker Dubey. Obviously, the
matter which was sent back to the Court of
Munsif, Banaras could only be available
once the matter in appeal would have been
remanded. It is not the case of the parties
that the proceedings which was pending
before the Court of Munsif, Banaras in the
year 1962 was arising out of final decree
proceedings. It is also not disputed
between the parties that Sri Shiv Shanker
Dubey died on 21.08.1962 and no legal
heirs of Sri Shiv Shanker Dubey were
brought on record till 15.12.1962.

50. Thus, the consequence is that
after expiry of 90 days from 21.08.1962
the proceedings before the Court of
Munsif at Banaras stood automatically
abated. Once the proceedings abated the
findings, if any, could not be treated as
being on merits, moreso, in light of the
explanation appended to Order 22 Rule 9
which reads as under:-

(9) Effect of abatement or
dismissal

(1) Where a suit abates or is
dismissed under this order, no fresh suit shall be
brought on the same cause of action.