Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4282 OF 2019
(Arising out of S.L.P.(C) No.31350 of 2009)
Hirabai (D) Thr. L.Rs. & Ors. ….Appellant(s)
VERSUS
Ramniwas Bansilal Lakhotiya (D)
by L.Rs. & Ors. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1.
Leave granted.
2. This appeal is filed against the final judgment
Signature Not Verified
and order dated 19.12.2008 passed by the High
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.04.25
16:48:11 IST
Reason:
Court of Judicature at Bombay, Bench at
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Aurangabad in Second Appeal No.177 of 1988
whereby the High Court dismissed the second
appeal filed by the appellants herein and upheld the
judgment of the Trial Court and first Appellate
Court.
3. A few facts need mention hereinbelow for the
disposal of this appeal.
4. This appeal is filed by the legal representatives
of two original plaintiffs, who died after filing of the
civil suit.
5. The original two plaintiffs were the real sisters
of defendant No.3 (respondent No.3 herein
Shankarlal) and their father was late Motilal.
6. There is a building named “Moti Building” in
the city of Jalna, which consists of four houses,
each bearing separate number, viz.,3484/3534,
3485/3535, 3486/3536 and 3487/3537
(hereinafter referred to as “the suit property”).
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7. Defendant No.3/respondent No.3 sold the suit
property to one Bansilal Shivlal by a registered sale
deed dated 07.10.1965. On the death of Bansilal,
defendant Nos.1 and 2/respondent Nos.1 and 2
herein inherited the suit property as heirs of
Bansilal and thus became the owners of the suit
property.
8. Since some dispute arose between defendant
Nos.1 and 2 with defendant No.3 in relation to the
suit property, defendant Nos.1 and 2/respondent
Nos.1 and 2 herein filed a civil suit in the year
1971, being CS No.48/1971 against defendant
No.3/respondent No.3 Shankarlal and others
(tenants in the suit property). The suit was for a
declaration of title over the suit property and for
permanent injunction in relation to the suit
property. The suit was contested by defendant No.3.
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9. By judgment/decree dated 31.01.1975, the
civil suit (No.48/1971) was decreed in favour of
defendant Nos.1 and 2/respondent Nos.1 and 2.
The Trial Court inter alia held that defendant Nos.1
and 2 are the owners of the suit property. This
decree attained finality.
10. Thereafter, a civil suit, out of which this appeal
arises, was filed against the defendants
(respondents herein). The suit was for a declaration
that the decree dated 31.01.1975 passed in Civil
Suit No.48/1971 is not binding on the two plaintiffs
and that the sale deed dated 07.10.1965 executed
by defendant No.3/respondent No.3 in favour of
defendant Nos.1 and 2/respondent Nos. 1 and 2 in
relation to the suit property is also not binding on
the two plaintiffs.
11. The suit was founded inter alia on the
allegations that the suit property was an ancestral
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property of the family in which the two plaintiffs
who are the sisters of defendant No.3/respondent
No.3 have an equal share along with defendant
No.3. The plaintiffs alleged that since the suit
property was sold by defendant No.3/respondent
No.3 without their knowledge, authority and
consent, the sale deed dated 07.10.1965 is null and
void to the extent of plaintiffs’ share. The plaintiffs
also alleged that since both the plaintiffs were not
parties to Civil Suit No.48/1971, the decree dated
31.01.1975 passed in the said suit is neither
binding on them nor such decree affects their right,
title and interest in the suit property.
12. During pendency of the civil suit, wife, sons
and daughters of defendant No.3/respondent No.3
also joined the civil suit, either as plaintiffs or as
defendants, some since inception and others at a
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later stage. Defendant No.3, his wife, sons and
daughters supported the plaintiffs’ case.
13. The suit was contested only by defendant
Nos.1 and 2, who were the purchasers of the suit
property from defendant No.3.
14. According to defendant Nos.1 and 2, first, the
suit was barred by limitation because it was filed
after three years from the date of decree dated
31.01.1975; Second, it was bad in law because the
plaintiffs failed to seek partition in relation to the
entire properties owned by the family; Third, it was
a collusive suit filed at the instance of defendant
No.3/respondent No.3 to avoid execution of the
decree against him; Fourth, the decree dated
31.01.1975 passed in Civil Suit No.48/1971 was
also binding on the two plaintiffs in the light of
categorical finding recorded by the Civil Court in its
judgment dated 31.01.1975; Fifth, in any case, the
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two plaintiffs had no right, title and interest in the
suit property; Sixth, even otherwise, the sale of the
suit property having been made by a Karta of the
family, i.e., defendant No.3 for the benefit of the
family and for legal necessity, it is binding on the
two plaintiffs including all members of the family;
Seventh, a suit to challenge the decree passed by a
competent Civil Court is not maintainable.
15. The Trial Court, by judgment/decree dated
16.10.1981, dismissed the suit and answered all the
issues against the plaintiffs by upholding the
objections raised by defendant Nos.1 and 2. The
plaintiffs felt aggrieved and filed first appeal before
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the 2 Additional District Judge. By judgment
dated 09.05.1988, the first Appellate Court
dismissed the appeal which gave rise to filing of
second appeal by the plaintiffs in the High Court.
By impugned order, the High Court dismissed the
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second appeal, which has given rise to filing of the
present appeal by way of special leave by the
plaintiffs in this Court.
16. So, the short question, which arises for
consideration in this appeal, is whether the High
Court was justified in dismissing plaintiffs’ second
appeal and thereby was justified in upholding the
judgment of the Trial Court and first Appellate
Court which resulted in dismissing the suit.
17. Heard Mr. Vinay Navare, learned senior
counsel for the appellants and Mr. Nishant
Ramakantrao Katneshwarkar, learned counsel for
the respondents.
18. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in this appeal.
19. In our view, all the three Courts (Civil Judge,
first Appellate Court and the High Court) were right
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in their reasoning and the conclusion on all the
factual and legal issues raised by defendant Nos.1
and 2 and we find no good ground to differ with
their reasoning and the conclusion.
20. First, the findings impugned in the appeal
being concurrent in nature, were not only binding
on the High Court while deciding the second appeal
and were rightly held to be so binding but such
findings are binding on this Court too; Second, even
otherwise, all the findings have been recorded on
proper appreciation of facts and law and hence do
not call for any interference in this appeal as
detailed infra .
21. Third, the suit in question was apparently a
collusive suit filed at the behest of defendant No.3
through his two sisters and family members to
avoid execution of a valid decree dated 31.01.1975
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passed by the competent Civil Court against
defendant No.3 in relation to the suit property.
22. Fourth, in the light of findings recorded by the
Trial Court in the previous suit in Para 18, the
present suit was rightly dismissed by all the Courts
below. It is apposite to quote the finding of the Trial
Court recorded in Para 18 which reads as under:
“18. The sale deed has been executed by
Shankarlal, who is admittedly the Karta of
the family. According to the own statement
of defendant No.1, he was in need of money
for paying his dues to different persons. He,
therefore, sold the house in favour of
Bansilal. Defendant No.1 cannot raise the
objection that, other heirs of Motilal should
be impleaded as defendants. It is for the
other heirs, if any, of late Motilal to take
recourse to proper remedy in case they fell
that, the alienation of the suit house was not
in the interest of the family. Other heirs of
Motilal are not necessary parties to this suit.
Issue No.8 is decided against the
defendants.”
23. The aforesaid finding, in our view, not only
binds defendant No.3 but also binds the two
plaintiffs being the members of the same family.
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24. Fifth, once it was held that the sale of the suit
property was made by the Karta defendant No.3
and it was made for legal necessity and the benefit
of the family, the same was binding on all the
members of the family including the plaintiffs.
25. Sixth, the plaintiffs failed to plead and prove
that the sale in question was not for the benefit of
family or that there was no legal necessity for such
sale or as to on what basis, they claimed share in
the suit property. On the other hand, defendant
Nos.1 and 2 were able to prove that the sale was for
the legal necessity and benefit of the family.
26. Seventh, the plaintiffs themselves admitted in
their evidence that they filed a civil suit at the
instigation of defendant No.3 their real brother.
This clearly indicates that the suit was not filed for
a bona fide cause but it was a collusive suit filed by
the plaintiffs to overcome the valid decree obtained
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by the defendant Nos.1 and 2 against defendant
No.3 and to save defendant No.3 from its execution.
27. In the light of the foregoing
discussion/reasons, we find no good ground to
interfere in the impugned order, which is based on
proper appreciation of facts and law governing the
issues.
28. The appeal, is therefore, found to be devoid of
any merit. It is accordingly dismissed.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHESHWARI]
New Delhi;
April 25, 2019
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