Nirmal Kumar Shahabadi Vs Kuleshwari Nath

Sangita Shahabadi, aged about 54 years All sons and daughter of Late Bishwanath Shahabadi, resident of Village- Makatpur, P.O.- Giridih, P.S.- Giridih (T), DistrictGiridih … … Defendants/Appellants/Appellants -Versus-

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Kuleshwari Nath, wife of Late Surendra Nath

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Priya Nath, wife of Late Surendra Nath

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Parsunath, son of Late Surendra Nath All resident of at-New Nagratoli, Ranchi, P.O.- G.P.O. Ranchi, P.S.- Kotwali, Dist.- Ranchi

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Pravin Chandra Nath, son of Late Surendra Nath at present residing at New Nagratoli, P.S.- Lalpur, P.O.- Ranchi, Dist.Ranchi

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Abhay Shankar Prasad, son of Late Bhavani Shankar Prasad

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Ajay Kumar Sinha, son of Late Bhavani Shankar Prasad

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Bina Devi, wife of Late Bhavani Shankar Prasad

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Lalita Devi, D/o Late Bhavani Shankar Prasad

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Sunita Devi, D/o Late Bhavani Shankar Prasad

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10.Sarita Devi, D/o Late Bhavani Shankar Prasad

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11.Most. Uma Devi, D/o Late Jata Shankar Prasad

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12.Rajendra Prasad S. No. 5 to 12 are resident of Village- Jobhi, P.O. and P.S.- Dumri, District- Giridih

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13.Sharda Devi, wife of Late Kailashpati Prasad, resident of Village & P.O.- Pachamba, P.S.- Giridih (T), District- Giridih

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14.Shiya Shankar Prasad, son of Dineshwar Prasad

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15.Mithu Kumar Tah, son of Dineshwar Prasad

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Both are resident of At & P.O. and P.S.- Daltangunj, DistrictPalamu

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16.Shakuntala Devi, wife of Late Mahabir Prasad, resident of Gide, P.O. and P.S.- Madhupur, District- Deoghar

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17.Urmila Devi, D/o Late Mahabir Prasad, resident of VillageDhuretta, P.O. and P.S.- Jamua, District- Giridih

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18.Parmanand Prasad, Grandson of Late Mahabir Prasad

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19.Tripurari Prasad S/o Murari Prasad, Grandson of Late Mahabir Prasad

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20.Smt. Name not known, D/o Late Mahabir Prasad,

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S. No. 18 to 20 resident of Village- Futha, P.O. and P.S.Rajdhanwar, District- Giridih

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… … Plaintiffs / Respondents/Respondents --- CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --For the Appellants : Mr. Vijay Kumar Roy, Advocate ---

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09 /09.01.2025 Heard the learned counsel appearing for the appellants.

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2. This second appeal has been filed against the Judgment dated 27.09.2019 (Decree sealed & signed on 06.11.2019) passed by the learned District Judge-II, Giridih in Civil Appeal No.04 of 2012 whereby the appeal has been dismissed. The first Appellate Court has confirmed the Judgment dated 14.11.2011 (Decree sealed & signed on 22.11.2011) passed by the learned Sub-Judge-VI, Giridih in Title Suit No.14 of 1982 whereby the suit was allowed and decreed on contest, declaring the decree passed in Mortgage Suit No. 68 of 1971/38 of 1973 and the auction of the suit property held in Execution Case No. 9 of 1977 as void and allotting 1/8^th share in the suit property to the original plaintiffs.

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3. Learned counsel for the appellants has submitted that although there are concurrent findings recorded by the learned Courts, but the learned Courts have wrongly come to a conclusion that Surendra Nath (the original plaintiff) was son of Kaushlya Devi. He has submitted that the issue as to whether Surendra Nath was son of Kaushlya Devi was the main issue involved in this case in as much as the entire case revolved around the fact that Surendra Nath was not made a party in the earlier suit which was a mortgage suit being Mortgage Suit No. 68 of 1971/ 38 of 1973. The learned counsel has submitted that the impugned judgments call for interference by forming substantial question of law and by holding that the original plaintiff namely, Surendra Nath was not a necessary party in the mortgage suit as he was not the son of Kaushlya Devi.

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Case of the original plaintiff (Surendra Nath)

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4. After hearing the learned counsel appearing on behalf of the appellants, this Court finds that Title Suit No. 14 of 1982 was filed whereby the original plaintiff namely, Surendra Nath claimed 1/8^th share of the suit property and also sought a declaration that the decree

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passed in Mortgage Suit No. 68 of 1971/38 of 1973 and also the auction done in Execution Case No. 9 of 1977 are void.

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5. The specific case of the original plaintiff was that the suit property in Schedule-B was acquired by Mahavir Prasad who died in jointness with his descendants on 04.01.67 leaving behind his two sons and six daughters including Kaushlya Devi who came in joint possession over the suit property after his death. It was his case that one of the sons of Mahavir Prasad died in 1973 in the state of jointness with his brothers and sisters and one daughter died in the year 1967 leaving behind her two sons who were defendant nos. 5 and 6 in the suit. The other daughters of the Mahabir Prasad and Defendant Nos. 4, 7 and 8 had full right, title and interest over the property. In the suit, the plaintiffs gave the entire family history and stated that daughter of Mahavir Prasad i.e. Kaushlya Devi died leaving behind her only son Surendra Nath [the original plaintiff] and her husband was Bishwanath Prasad. Accordingly, the original plaintiff claimed that he had every right, title, interest and possession over the property which was joint property of the heirs of Mahavir Prasad.

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6. Further case of the original plaintiff was that on 23.01.1982, he came to know that the suit property described in schedule-B has been auctioned by the Court in favour of defendant no.1 whose name was also Bishwanath Prasad and the property was sold in Mortgage Suit No. 68 of 1971 which was later transferred in the court of Sub-Judge, Giridih and was renumbered as Mortgage Suit No. 38 of 1973. In the mortgage suit, the Sub-Judge, Giridih passed an order for preliminary decree on 13.02.1975 ex-parte and final decree was prepared on 06.06.1977.

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7. The specific case of the original plaintiff in this case was that the defendant no. 1 i.e. Bishwanath Prasad obtained ex-parte decree in the mortgage suit by playing fraud upon the Court as all the legal heirs of Late Mahavir Prasad were not impleaded as parties in the mortgage suit. It was also asserted that the interest of the minor defendant namely, Rajendra Prasad was not properly safeguarded and the suit

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was barred on account of non-joinder and mis-joinder of necessary parties.

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8. It was also asserted in the present case by the plaintiffs that the Defendant No.1 (Bishwanath Prasad) had filed Execution Case No. 9 of 1977 in which he himself got the property in Court auction on 17.01.1980. The valuation of the property was also not fixed in accordance with law. There were altogether three bidders in the auction and amongst them, one Narayan Prasad was the partner of Bishwanath Prasad (Defendant No.1), second bidder was the decree holder -Bishwanath Prasad himself and the third bidder was Bibhuti Prasad who was the Karpardaj of the decree holder. It was asserted that the suit property was auction sold for an amount of Rs.35,000/-, although the valuation of the property was more than one lakh. The cause of action of the present case arose on 23.01.1982 when the plaintiffs came to know about the decree obtained by Defendant No.1 Bishwanath Prasad in Mortgage Suit.

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9. It was his further case of the plaintiffs of the present suit that Mahavir Prasad had acquired the properties in 4 kathas 8 chhatak and constructed a house and defendant no.1 wanted to take delivery of possession over the entire property although as per the mortgage suit no.68 of 1971/38 of 1973 Mahavir Prasad had mortgaged property of holding no.415 of ward no. II within Giridih Municipality up to the extent measuring 3 kathas 8 chattak only. The delivery of possession was made for the entire property, but only the boundary was mentioned, rather than specifying the area. It was also asserted that defendant no.4 of the mortgage suit died prior to preparation of final decree even then his legal heirs who were defendant no.5 and 6 in the present suit were not substituted. It was the case of the plaintiffs that their interest was completely ignored by not impleading them as defendant in the mortgage suit and therefore the suit was filed when they came to know about the decree obtained by the defendant no.1 Bishwanath Prasad.

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Case of the defendant no.1 (decree holder and auction purchaser of the property arising out of the earlier mortgage suit no.68 of 1971/38 of 1973

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10. The Defendant No.1 had appeared and filed a written statement by stating that Professor Mahendra Prasad was the son of Kaushlya Devi who was not made party in the suit and the descendants of all daughters of Mahavir Prasad were necessary parties, but they were not impleaded as parties in the suit and Kaushlya Devi, who was one of the daughters of Mahavir Prasad died leaving behind her only son Professor Mahendra Prasad and not the plaintiff Surendra Nath. It was also asserted that all the heirs entitled to succession were parties then the plaintiff was also presumed to be represented in the mortgage suit. It was asserted that plaintiff Surendra Nath was not the son of Kaushlya Devi rather he was the son of Bishwanath Prasad from another wife and the plaintiffs were not entitled to any share in the property. It was also asserted that the plaintiffs had full knowledge about the mortgage suit and even after due diligence if some heirs were left, then they will be presumed to be represented through other legal heirs as the plaintiff Surendra Nath claimed to be joint till then. It was also stated that the guardian-ad-litum was appointed by the Court and he was not the son of his business partner. It was also asserted that the valuation of the suit was properly fixed. It was also asserted that the plaintiffs had full knowledge about the mortgage suit and its execution and the valuation of the suit property was properly fixed at the time of auction and therefore there was no cause of action for the suit and the suit was liable to be dismissed.

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11. The defendant nos.2 and 4 to 11 had filed written statement separately supporting the case of the plaintiff Surendra Nath.

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Issues before the learned Trial Court.

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12. The learned Trial Court framed altogether ten issues for consideration vide Para-5 which is quoted as under:-

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5. In view of documents filed by the plaintiff and defendants and the order passed in Title Appeal No. 16 of 1997 / 01 of 2002 on 17^th July 2003, the Court has framed following issues on 07.07.2011:-

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I. Whether the plaintiff has sufficient cause of action for filing the suit?

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II. Whether this suit is time barred? III. Whether this suit is barred by the principle of res judicata?

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IV. Whether this suit is barred by the provisions of Section 34 of the Specific Relief Act?

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V. Whether this suit is barred by non-joinder of the necessary parties?

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VI. Whether proper valuation of the disputed suit property has been done and sufficient court fee has been paid in the Court?

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VII. Whether the decree issued by the Sub-Judge, Giridih in Mortgage Suit No. 68 of 71 / 38 of 73 is against law, illegal and void?

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VIII. Whether Execution Case No. 9/77 which was obtained in the light of decree passed in Mortgage Suit No. 68 of 71 / 38 of 73 and the auction of its property was made by fraud, against the law and is illegal and not binding upon the plaintiff?

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IX. Whether Surendra Nath was the son of Kaushalya Devi?

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X. Whether the plaintiff is entitled for any other relief?”

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13. This Court finds that the learned Trial Court while considering the evidences on record dealt with all the evidences placed on behalf of the plaintiffs and defendants and recorded a finding that the plaintiff (Surendra Nath ) was son of Kaushlya Devi and also held that the defendants did not give any material evidence to show that Surendra Nath was not the son of Kaushlya Devi and decided the issue no. (IX) in favour of the plaintiffs.

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14. With respect to issue no. VII, relating to decree of mortgage suit, the same was also considered at Paragraph-11 of the Trial court judgment and the learned Trial court after considering the materials on record held that the Surendra Nath, being the nati (son of daughter of Mahavir Prasad), was a legal heir in Mortgage Suit No. 68 of 71 / 38 of 73 and after death of Mahavir Prasad, Surendra Nath was entitled to 1/8^th share in the joint property of Mahavir Prasad along with other legal heirs, but Surendra Nath [the original plaintiff] son of Kaushlya Devi was not made a party in the mortgage suit and the decree in the Mortgage Suit No. 68 of 71 / 38 of 73 was passed in absence of Surendra Nath. Consequently, the decree passed in the mortgage suit

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was not binding on Surendra Nath and is illegal and null and void and the issue was decided in favour of the plaintiffs.

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15. The learned Trial Court also considered the Issue No. VIII related to legality and validity of the auction at Paragraph No.12 and after scrutinizing the materials on record held that the plaintiff of the mortgage suit had himself got the property in auction sale and further held that the plaintiffs of the present case being entitled for 1/8^th of the suit property, the auction sale was also void and decided the Issue No. VIII in favour of the plaintiffs.

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16. This Court finds that the learned Appellate Court framed the following three points for determination. Paragraph-8 of the Appellate Court’s judgment is quoted as under: -

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“ 8. In view of the submissions made by both the parties, following points have been arisen for determination in the appeal:-

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Point No. I: Whether the original plaintiff Surendra Nath is the son of Kaushlya Devi and the decree passed in Mortgage Suit No. 68 of 1971 / 38 of 1973 in absence of the plaintiff is illegal and void?

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Point no. II: Whether the order passed in Execution Case No. 09/2017 is also illegal and against the law which has been obtained by playing fraud?

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Point No. III: Whether the judgment and decree passed by the learned court below is sustainable in the eyes of law or warrants any interference by this court?

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17. While considering Point of determination Nos. I and II together, the learned Appellate Court, after scrutinizing the materials on record, has given concurrent findings in connection with the fact that the Surendra Nath was son of Kaushlya Devi who was in turn one of the daughters of Mahavir Prasad and has also given a finding that Surendra Nath having not been made party in the earlier mortgage, the ex-parte decree obtained in absence of Surendra Nath was not binding upon the plaintiff of this case Surendra Nath. After further scrutinizing the materials on record, the learned first Appellate Court vide paragraph 11 and 12 of the judgment recorded that the decree in

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the mortgage suit was obtained by the defendant no.1 of the present suit by playing fraud upon present plaintiffs and it was held that the same was not binding upon the plaintiffs. After further scrutinizing the materials on record, vide paragraph 13 of the impugned judgement it was held that the order of execution passed in Execution Case No. 9/77 arising out of Mortgage Suit No. 68 of 1971 was also illegal and void and had been obtained on playing fraud which was also not binding upon the plaintiff. The learned Appellate court has recorded that the learned Trial Court has rightly passed the judgment and decree in favour of the plaintiffs based on evidences on record.

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18. This Court finds that both the learned Courts after scrutinizing the materials on record came to a conclusive finding that the plaintiff Surendra Nath was the son of Kaushlya Devi who in turn was the daughter of Mahavir Prasad and the plaintiffs were never made party in mortgage suit which led to the auction of the property standing in the name of Mahavir Prasad and upon his death was succeeded by his two sons and six daughters including Kaushlya Devi and the learned Trial court granted relief to the plaintiffs only to the extent of 1/8^th share of the property involved in the mortgage suit and such finding was upheld by the learned Appellate Court after scrutinizing the materials on record.

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19. The arguments of the learned counsel for the appellants is primarily challenging the finding that the plaintiff Surendra Nath was not the son of Kaushlya Devi and consequently the plaintiff Surendra Nath was not a necessary party as he was not the son of Kaushlya Devi.

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20. This Court finds that there are concurrent findings recorded by both the Courts that the plaintiff was son of Kaushlya Devi [ the daughter of Mahavir Prasad in whose name the property was standing] and also on other issues /points for determination. Both the Courts have given concurrent findings of facts on all the relevant aspects of the matter after appreciating the materials on record. The law is well settled that there is no scope for re-appreciation of evidences at the

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stage of second appeal in absence of any perversity. The learned counsel for the appellants has not been able to point out any perversity in the impugned judgments calling for formulation of any substantial question of law in this case. There being no substantial question of law involved in this case, this appeal is hereby dismissed.

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21. Pending I.A., if any, stands closed.

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22. Let this order be communicated to the concerned court through FAX/e-mail.

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(Anubha Rawat Choudhary, J.)

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Binit/

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Nirmal Kumar Shahabadi v. Kuleshwari Nath

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Nirmal Kumar Shahabadi v. Kuleshwari Nath

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