The learned judge
of the trial Court discussed this point elaborately
and placed reliance on the judgment of our High Court
in the case of Indira Bhalchandra Gokhale v. Union of
India [1990 Mh.L.J. 1056]. The learned judge also
placed reliance on the judgment of Andhra Pradesh High
Court in the case of Rapolo Yadgiri v. Rapolu Laxmana
[AIR 2003 AP 300], in which it was held that in a
suit for partition, defendant can be permitted to get
himself transposed as plaintiff in case the plaintiff
tries to withdraw the litigation etc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR
FIRST APPEAL NO. 295 OF 2012
M/s Multicon Builders,
Vs
Chandrakant s/o Shankarrao Deshmukh,
CORAM : A. V. NIRGUDE, J.
DATE : 10th September, 2014
This appeal challenges the judgment and
decree dated 27th February, 2012, passed by the
learned 4th Joint Civil Judge, Senior Division,
Nagpur, in Special Civil Suit No.1017 of 1994.
2.
Plaintiff is one Sheela, who filed this suit
for partition etc. against her family members and the
appellant, a third party, who is interested in the
suit property.
[hereinafter, I will call the parties by
3.
their designation in the lower Court].
The family members of the plaintiff are
shown in family tree, as under :
Shankarrao s/o Ganpatrao Deshmukh [father]
|
|
ig
_________________________________
|
|
Pushpalata
Sumandevi [Deft.no.1]
[first wife]
[second wife]
|
Sheela [plff.no.1]
Sandhya [Deft.no.6]
[daughter]
[daughter]
|
|
Chanda [Deft.no.5]
Mrunalini [Deft.no.7]
[daughter]
[daughter]
|
|
Chandrashekhar [Deft.no.2] Suchita [Deft.no.8]
[son]
[daughter]
|
|
Chandrakant[Deft.no.3] Sanjay[Deft.no.4]
[son] [son]
4.
The plaintiff stated that her father
Shankarrao inherited number of properties. In 1951,
her mother Pushpalata died, and so, in 1956, her
father married Sumandevi [defendant no.1]. She stated
that during the life time of her father, partition
took place between Shankarrao, his wife Sumandevi and
his two sons namely Chandrashekhar [defendant no.2]
and Chandrakant [defendant no.3]. She enumerated
number of properties being the suit properties and
claimed that she was entited to 1/45th share in them.
She added that no partition took place after her
father Shankarrao died.
She alleged that
Chandrashekhar [defendant no.2], her brother is the
eldest and influential member of the family. He acted
whimsically in the matter of joint family properties.
He collected compensation from the State for land
acquisition, collected rent from the tenants and sold
certain landed property and movable articles without
taking consent and without distributing the sale
proceeds between the members of his joint family.
5.
In addition to the list of the properties
mentioned in the plaint, the plaintiff also mentioned
that plot no.220 [suit plot] and house on it, situated
at Ravinagar, Nagpur, is also ancestral property and
she has share in it. She alleged, in December 1991,
defendant no.2 entered into an agreement to construct
commercial complex on this plot with one M/s. R.B.
Patel & Co. He then claimed that he was the absolute
owner of the plot. The agreement did not succeed and
was canceled.
On 19th May, 1994, an advertisement in a
newspaper mentioned that defendant no.9 [M/s. Multicon
Builders] were interested in purchasing the suit plot
from defendant no.2. They invited objections for the
transaction. The plaintiff as well as other
defendants raised objections immediately on 25th May,
1994. They asserted that defendant no.2 was not the
only owner and, therefore, he cannot enter into any
transaction to deal with the suit plot without their
consent etc. In the meantime, she alleged that
defendant no.9 started construction work on the suit
plot in June, 1994. She filed this suit thereafter on
7th October, 1994 and sought an order of temporary
injunction from preventing development on the suit
plot and creating of third party interest in the suit
plot.
6.
Defendant nos.1, 4 to 8 in their written
statement stated that all the ancestral agricultural
lands were sold prior to filing of the suit. They
admitted that the suit plot is ancestral property and
plaintiff and defendant nos.1 to 8 have certain share
in it. Defendant nos. 1, 4 to 8 claimed 1/9th share
each in the plot.
They added that defendant no.2 in the year
1991 entered into an agreement with the State Bank of
India for taking loan for construction of a building
on the suit plot. The building would be constructed
in such a fashion that the bank's branch would be
opened in it and the bank would recover loan through
rent. They stated that certain amount was even taken
by defendant no.2 as a loan from the bank and
construction of building commenced. When it reached
up to 1st floor, it stopped because the defendants
withdrew their consent for the agreement.
Construction work of the building thus remained
incomplete and the bank's branch did not start
7.
functioning on the suit plot.
They admitted that on 19th May, 1994, they
too saw an advertisement given by defendant no.9.
They asserted that they too raised objection by making
telephone calls to the advocate of respondent no.9 and
also raised objection in writing. They stated that
inspite of the objections by them, defendant nos.2 and
9 started construction activity on the suit plot.
They further alleged that later on during the pendency
of the suit the plaintiff joined hands with defendant
nos.2 and 9. She received certain amount from
defendant no.9. They further stated that after this
settlement between plaintiff and defendant nos.2 and
9, the plaintiff withdrew her application seeking
temporary injunction for preventing construction on
the plot on 23rd September, 1996. The defendants then
asserted that in view of this development between the
parties, they apprehended that the plaintiff would
withdraw the suit and so they filed a counterclaim
with written statement.
In the counterclaim, they prayed for a
decree for partition claiming 1/9th share each in the
suit plot. This counterclaim was filed on 22nd
January, 1996. Later on, in 2004, they got the
counterclaim amended. New prayers were made. They
were;
[i] declaration that defendant no.9 has no right,
title, interest in the suit plot;
[ii] declaration that the transactions between
defendant no.1 on one hand and the other defendants on
the other hand were illegal and not binding on
defendant nos.1 and 4 to 8; and
[iii] a decree for demolition of entire construction
made on the plot by defendant no.9 and to restore
status quo ante.
8.
Defendant no.2 filed written statement and
took a stand that the suit plot was purchased by his
father Shankarrao for residential use, he was Karta of
Hindu undivided family and the entire family reside in
this house. After marriage, the daughter of
Shankarrao left this house. He and his brother
[defendant no.3] continued to reside in it. In view
of Section 23 of the Hindu Succession Act, 1956, the
plot which is residential house.
9.
plaintiff had no right to claim partition in the suit
He further alleged that during his life time
Shankarrao entered into a transaction of conditional
saledeed of the suit plot/house in favour of one Buty
in the year 1953 in lieu of Rs.20,000/. Thus, the
suit plot/house was mortgaged.
Subsequently,
Shankarrao also agreed to sell the suit plot for a
consideration of Rs.40,000/ to one Karkare who filed
a suit for possession. In order to save the property,
defendant no.2 along with his mother namely defendant
no.1, filed another suit in the year 1964 and
succeeded ultimately in arriving at a compromise with
Karkare and Buty. As per the compromise, he paid
Rs.40,000/ and agreed to pay Rs.40,000/ more to
Karkare. This all happened prior to Shankarrao's
death. According to defendant no.2, on the date of
Shankarrao's death, which occurred on 30th November,
1970, he had no property of his own. He said that
since he repaid all the loans of Buty and Karkare, he
became exclusive owner of the suit plot.
10.
Defendant no.3 in his written statement
reiterated what is stated by respondent nos.1, 4 to 8.
Defendant no.9 M/s Multicon Builders, in their written
statement, admitted the facts mentioned in the plaint
regarding issuing of public notice dated 15th
September, 1994. They further admitted that they
commenced booking of shops and plots in the building
which they proposed to build on the part of suit plot.
They also admitted that defendant no.3 also raised
objection by issuing public notice. They further
admitted that they soon after the transaction of
transferred area of 12500 square feet of the suit plot
along with certain F.S.I. Regarding Firm namely
Multicon Builders and it became owner of the same.
They further asserted that area of 4000 square feet of
the suit plot was kept for defendant no.3 and area of
2008 square feet of the plot was kept for defendant
no.2. They denied having carried out construction
illegally. They asserted that defendant no.2
represented the family as karta and entered into the
agreementcumpartnership deed with them. They
asserted that they paid substantial amount to
defendant nos.2 and 3 and invested substantial amount
in the construction. They admitted that the
construction work is now stopped as per the Court's
order of 1994. They also alleged that defendant no.2
played fraud and relied on forged documents. They
asserted that they have filed a separate criminal case
against defendant no.2. The trial Court framed issued
and allowed the parties to lead evidence.
The first and foremost finding recorded by
11.
the trial Court was that the plaintiff and defendants
could not prove their claim in respect of the
properties other than the suit plot. The lower Court
nonetheless held that the plaintiff and defendants
were entitled to certain shares in the suit plot. The
Court further held that defendant no.2 could not have
dealt with the suit plot and could not have had said
transaction with defendant no.9. It held that this
transaction was not binding on plaintiff and other
defendants. The Court below further held that
defendant no.9 continued construction activity
unathourisedly. The trial Court negated the claim of
defendant no.9 that they were lawfully inducted in the
suit plot.
The learned judge of the trial Court then
partly decreed the suit and the counterclaim of
defendant nos.1, 4 to 8 as per the final order, which
reads as under :
Common Order
“Suit and counterclaim is decreed partly in following
terms with proportionate costs as referred in above
para
It is hereby declared that plaintiff, defendants no.1 to 8 are having
1]
joint share in suit property no.220, situated at Ravi Nagar, Nagpur. The shares
of respective parties are, plaintiff and defendants no.5 to 8; are having 1/45th
share each and defendants no.1, 2, 3 and 4 each are having 10/45th [1/5th plus
As far as claim and counterclaim as to other landed properties
2]
1/45th] share.
3]
and movable properties is dismissed for the reasons stated above.
Plaintiff, counter claimant – defendant nos.1, 4 to 8 are entitled
for partition and separate possession of their above determined share from the
suit property plot no.220. Defendants no.2 and 3 if pay required court fees they
shall also entitle for executing the decree for partition and separate possession.
4]
Defendants no.1 to 9 are hereby restrained for alienating the suit
property detrimental to the interest of plaintiff till partition takes place by
metes and bounds by due procedure of law.
5]
It is hereby declared that the defendant no.9 has no right, title or
claim in suit proper;ty part of plot no.220, as its induction is illegal and
accordingly the further activities carried out by it are illegal.
Defendants no.2 and 9 are hereby directed to demolish the
6]
construction which is in contravention of the Municipal Law. Further, I direct
that Nagpur Municipal Council/Nagpur Improvement Trust be informed about
finding of illegal construction and rights of parties i.e. plaintiff and defendants
no.1 to 8 and if defendants no.2 and 9 fail to demolish the construction as
directed, the above local authorities shall carry out demolition work at the costs
of defendants no.2 and 9 and it shall be recoverable from them as a part of
costs.
Preliminary
decree
be
drawn
accordingly.
8] Suit disposed off accordingly.”
12. After hearing the submissions of the learned
7]
counsel for the parties, following points arise for my
consideration:
1.
Whether defendant nos.2 and 9 could prove
that defendant no.2 acted as karta and his acts were
in the interest and benefit to the estate of the joint
family? Whether they are binding on other members of
his family?
2.
Whether the counterclaim of defendant
nos.1, 4 to 8 was barred by limitation ?
3.
Whether the counterclaim, which is directed
against one of the defendants is maintainable ?
4.
Whether the construction activity of
defendant no.9 was authorized, if not whether the
building constructed by them deserves to be demolished
and whether status quo ante which prevailed on the
13.
date of suit should be restored ?
Learned senior counsel Shri Gorde appearing
for the appellant asserted that the facts that have
come on record and the events that took place earlier
in time would indicate clearly that all the family
members of defendant no.2 admitted him to be karta of
joint family. He pointed out that earlier, defendant
no.2 had entered in contract with M/s R.B. Patel & Co.
for construction of complex on the suit plot. He also
pointed out that he in the capacity of karta entered
into series of transactions. According to him, the
suit transaction, which is agreement of partnership
between defendant no.2 and 9 is binding on all other
coparceners.
In order to seek support to this contention,
he placed reliance on following part of written
statement of defendant nos.1, 4 to 8 :
“Para 24: That, these defendants learnt from the defendant no.2 that some
where in 1991, that the defendant no.2, entered into an agreement with the State
bank of India, Branch Ravinagar, Nagpur for advancing finances for the
construction of the building, for the use of the said, Bank as a tenant therein,
and it was agreed in between the defendant no.2 and the Bank, that the money
advanced by the Bank would be adjusted in the rent but the property would be
a joint property of the defendant nos.`1 to 8 and the plaintiff. Therefore, these
defendants did allow him to do so in the capacity of Karta of the family in the
interest of the family and all the shares.”
There is no doubt that defendant no.2 assumed position
of KARTA of this family for quite some time. The
learned judge of the trial Court rightly held that the
transaction which took place between defendant no.2
and M/s R.B. Patel & Co. is now irrelevant history.
Admittedly, the said agreement between defendant no.2
and M.S. R.B. Patel & Co. fizzled out. No further
complication arose from it. Neither M/s. R.B. Patel &
Co. is party to this suit and have any concern with
the suit plot. So, whatever happened at that time has
no relevance to the outcome of this case. Nontheless
as per Hindu law, a karta of a Hindu family is
expected to act responsibly and for benefit of entire
family. The manner in which defendant no.2 in this
case acted at the time of suit agreement was not less
than committing breach of trust imposed on him by the
either members of the family. When the other members
of the family immediately denounced the suit agreement
by publishing advertisement in newspaper, atleast at
that time, he ought to have relented. He ought to
have accepted their objection and ought to have
stopped the transaction until all members of the
family would agree for disposal of the suit property.
The question that is relevant for this case is even if
defendant no.2 was acting as karta of the family
during the relevant time, whether he really acted as
bonafide? On careful perusal of the evidence, one
finds that defendant no.2 did not mention initially
that he was entering into the suit transaction as
karta of the family, he publicly announced in the
advertisement that he is owner of the suit property.
In any case he relented and admitted that whatever he
did was as the karta of the family, but the evidence
that came on record in respect of the circumstances in
which the suit transaction was entered into clearly
indicates that defendant no.2's action were not only
selfish but were also whimsical. It cannot be held
that even though defendant no.2 acted as karta while
entering into the suit transaction, the same can be
made binding on remaining coparceners. The act of
defendant no.2 as karta was not lawful and cannot be
said to be for the benefit of the family estate or for
legal necessity. I, therefore, giving finding on
14.
point no.1 in negative.
So far as point no.2 is concerned, the
answer is in negative. On the date of filing of the
suit, defendant no.9 had not started construction on
the suit plot. Despite orders of the Court preventing
any development on the suit plot, defendant no.9 took
risk and continued construction till 1994. This gave
rise to cause of action for the counterclaim.
Amendment to the written statement was moved in or
about 2005 and was allowed in 2005. On the face of
it, since the construction activity was continuous,
the cause of action arising from it was continuous,
and so, even though the counterclaim is moved
belatedly, it can safely said to be within time.
15.
So far as point no.3 is concerned, learned
senior counsel for the appellant contended that the
counterclaim filed by respondent nos.1, 4 to 8 is not
directed against the plaintiff, it is directed against
defendant no.9, and so, it is not maintainable and the
Court should ignore it. This submission was also made
before the trial Court and the trial Court rejected
it. This submission is made on the basis of Order
VIII Rule 6A of the Code of Civil Procedure. Learned
senior counsel for the appellant asserted that a
counterclaim cannot be directed against a defendant.
He also placed reliance on judgment of Supreme Court
in the case of Rohit Singh and others Vs. State of
Bihar [2006 vol.12 Supreme Court Cases 734]. He
further pointed out that though the counterclaim was
filed by defendant nos.1 and 4 to 8, none of these
defendants entered the witnessbox. No evidence was
given by them in support of what they had stated in
the counterclaim. He further submitted that in such
situation, the defendants who filed counterclaim,
could have filed the separate suit. I am afraid, all
these submissions are devoid of merit, atleast in
reference to the facts of this case. In suits of
partition filed amongst coparceners, a counterclaim
would be permissible, because coparceners who are
made defendants are plaintiffs also. In this case,
the plaintiff claimed that she has cause of action
because her brother defendant no.2 and an outsider
defendant no.9 acted in collusion and in derogation of
her right to the suit plot. In the counterclaim,
similarly placed parties i.e. defendant nos.1, 4 to 8
took similar stand supporting her case and blamed
defendant nos.2 and 9. Since the construction of
building, despite of orders, continued from 1994
onwards, a new cause of action arose for similarly
placed defendant nos.1, 4 to 8 and they had ample
scope of filing such counterclaim directing it
against the common adversary, namely defendant nos.2
and 9. The above submissions of the defendant no.2
thus were rightly rejected by the learned judge of the
lower court and I agree with him. The learned judge
of the trial Court discussed this point elaborately
and placed reliance on the judgment of our High Court
in the case of Indira Bhalchandra Gokhale v. Union of
India [1990 Mh.L.J. 1056]. The learned judge also
placed reliance on the judgment of Andhra Pradesh High
Court in the case of Rapolo Yadgiri v. Rapolu Laxmana
[AIR 2003 AP 300], in which it was held that in a
suit for partition, defendant can be permitted to get
himself transposed as plaintiff in case the plaintiff
tries to withdraw the litigation etc.
16.
So far as point no.4 is concerned, learned
senior counsel for the appellant pointed out that
there was no issue before the trial Court as to
whether the construction work done by defendant no.9
on the suit plot was authorized/lawful or otherwise,
whether it was constructed as per Municipal permission
or otherwise. He also pointed out that Municipal
Corporation was not party to the suit, and therefore,
the finding recorded by the learned judge of the lower
court that the construction work was illegal and
directions issued to the Corporation to demolish it
were unwarranted. Indeed, this submission has some
substance. All that was required to be decided in
respect of construction work that was carried out
after filing of the suit was whether it deserved to be
demolished and whether status quo ante which prevailed
on the date of suit should be restored. The counter
claim sought such relief. The counterclaim did not
mention that the construction work was done without
permission of Corporation etc. Original counterclaim
filed in 1996 did not seek demolition of the building
constructed by defendant no.9. This was obvious
because at that time construction work was not done.
In 1994, defendant no.9 was prevented from developing
property, but in 1996, the order of temporary
injunction was withdrawn at the request of the
plaintiff. It is thereafter the counterclaim was
filed. The withdrawal of the application by plaintiff
was referred as a cause of action for the counter
claim. In 2004, amendment was sought in the counter
claim and the same was allowed. In the additional
paragraphs in the counterclaim, defendant nos.1, 4 to
8 categorically stated that despite of undertaking
given by defendant no.9 before the High Court on 7th
February, 1997, they in violation of the same
continued construction. In the background of this
allegation, defendant nos.1, 4 to 8 branded the
construction work as illegal, but they also added that
the work would be affected by principle of lis
pendence. It is in this background, they sought a new
prayer in the amended written statement, which reads
as under :
“pass a decree for mandatory injunction
thereby ordering demolition of the entire construction
Admittedly, defendant no.9 did not file
17.
done by defendant no.9 on the suit property.”
written statement to the amended counterclaim.
Defendant no.9 had filed written statement on 11th
October, 1996 and made no attempt to amend it. So,
whatever is stated in the amended counterclaim has
gone unchallenged on record. So, the question is,
whether defendant nos.1, 4 to 8 could prove that
construction work on the suit plot of defendant no.9
is affected by lis pendence and deserved to be
demolished ? The answer is in the affirmative.
Despite of orders passed by the Courts, work of
construction continued at the sight. This was done by
defendant no.9. This activity is thus affected by the
outcome of this suit and the learned judge of the
trial Court ought have directed demolition of entire
building construction work of defendant no.9. Instead
as pointed out above, he diluted this drastic order by
saying that only such part of the building which was
not permitted by Corporation should be demolished.
This part of the decree thus is erroneous. What needs
to be done is to pass a decree directing demolition of
the construction work which was done during the
pendency of the suit by defendant no.9. The question
is, whether such a decree can be passed now? Order 41
Rule 33 of the Code of Civil Procedure gives this
court ample power to do what ought to have been done
earlier. As said above, the learned judge of the
lower court ought to have passed a decree directing
demolition of the construction work done by defendant
no.9 on the suit plot. Though a counterclaim is
filed by defendant nos.1, 4 to 8, since this was a
relief sought by them in the counterclaim and since
they are entitled to it, (though they did not file
crossobjection or appeal), such a relief is a natural
consequence of the decree of partition.
O R D E R
Appeal is dismissed.
In place of the impugned operative order of the trial
Court, following order stands substituted. Suit and
counterclaim are decreed in following terms with
proportionate costs.
1]
It is hereby declared that plaintiff,
defendants no.1 to 8 are having joint share in suit
property no.220, situated at Ravi Nagar, Nagpur. The
shares of respective parties are, plaintiff and
defendants no.5 to 8; are having 1/45th share each and
defendants no.1, 2, 3 and 4 each are having 10/45th
[1/5th plus 1/45th] share.
2]
As far as claim and counterclaim as to
other landed properties and movable properties is
Plaintiff, counter claimant – defendant
3]
dismissed for the reasons stated above.
nos.1, 4 to 8 are entitled for partition and separate
possession of their above determined share from the
suit property plot no.220. Defendants no.2 and 3 if
pay required court fees, shall also be entitled for
executing the decree for partition and separate
possession.
4]
Defendants no.1 and 9 are hereby restrained
for alienating the suit property detrimental to the
interest of plaintiff till partition takes place by
metes and bounds by due procedure of law.
5]
It is hereby declared that the defendant
no.9 has no right, title or claim in suit property
part of plot no.220, as their induction is illegal and
accordingly the further activities carried out by it
are illegal.
Defendant nos.2 and 9 are hereby directed to
6]
demolish building construction on the suit plot by
them forthwith.
7) The appellants shall pay cost to the defendant
nos.1, 4 to 8.
( A. V. NIRGUDE, J. )
At the request of learned counsel for the
appellant/original defendant no.9, the effect of this
order to the extent of demolition of the building is
stayed for a period of eight weeks.
( A. V. NIRGUDE, J. )
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