Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 9304 of 2018 Petitioner :- Smt. Manti Devi Respondent :- Smt. Dhanawati Devi Counsel for Petitioner :- A.K. Maurya I Counsel for Respondent :- Ajay Kumar
Hon'ble Mrs. Sunita Agarwal,J.
Counter affidavit filed today is taken on record.
Heard learned counsel for the petitioner and Sri Ajay Kumar, learned counsel for the respondent.
By means of the present petition, the petitioner is seeking a relief for setting aside the order dated 28.2.2015 passed by the Civil Judge (Junior Division), Chandauli in Original Suit No. 71 of 2010 (Manti Devi vs. Dhanawati Devi) as also the order dated 11.10.2018 passed in Revision No. 13 of 2015 (Manti Devi vs. Dhanawati Devi).
By means of the orders impugned, the application 17Ga filed by the plaintiff in Original Suit No. 71 of 2010 to consolidate the same with Original Suit No. 438 of 2007 (Dhanawati Devi vs. Manti Devi) has been rejected and the revision filed against the said order has also been dismissed. Both the Courts below have recorded that though the suits relate to the same subject matter and parties in the both the suits are same but in view of the fact that one of the suit is for cancellation of the gift deed dated 7.4.2007 and another is for cancellation of the sale deed dated 9.7.1992, evidence of one suit cannot be read into another suit. The facts, evidence and reliefs in both the suits are different and, therefore, they cannot be consolidated.
The submission of learned counsel for the petitioner is that the plaintiff in Original Suit No. 71 of 2010 is claiming her right in the suit property on the basis of a gift deed dated 7.4.2007, whereas the defendant in the said suit i.e. the petitioner herein, who has filed Original Suit No. 438 of 2007 is claiming her right in the suit property on the basis of the sale deed dated 9.7.1992. The respective suits have been filed by Smt. Manti Devi and Smt. Dhanawati Devi with regard to the same suit property claiming their exclusive right on the basis of the said deeds executed in their favour, at different point of time by one Ramdhari, who has been impleaded as profarma defendant no. 2 in Original Suit No. of 438 of 2007.
It is not disputed that both the rival claimants in the aforesaid two suits are claiming their respective rights in the same suit property through one person owner namely Ramdhari, who was the original owner thereof.
Thus, this Court finds that in case, the sale deed of the year 1992 would stand to the test of scrutiny of the court below and is found to be a valid sale deed, the subsequent document namely gift deed dated 7.4.2007 would automatically fall, inasmuch as, Sri Ramdhari, the original owner would not be within his right to execute the gift deed after execution of the sale deed.
In the said scenario, it cannot be said that the facts and evidence in both the suits are different and they cannot be tried together. The object of bringing Order IV-A by the state amendment vide U.P. Act No. 57 of 1976 brought w.e.f. 1.1.1977 is to decide the suits between the same parties pertaining to the same subject matter, together, so that there may not be any conflicting decisions of different courts with respect to the same subject matter. In order to avoid any contradiction, confusion and misuse of the process of the Court, the said provision has been inserted by the U.P. Amendment.
The Courts below have clearly lost sight of the facts noted therein in rejecting the application to consolidate both the aforesaid suits.
The reliance placed by the revisional court on the judgments of this Court in Krishna Kanhaiya Gupta vs. Civil Judge (S.D.) Gonda & others reported in 2000 (1) JCLR 779 (All) (LB) and Shiv Mohan vs. Commissioner, Azamgarh Division, Azamgarh and others reported in 2002 (93) R.D. 523 is misconceived and they are of no help to the learned counsel for the respondent.
Last submission of learned counsel for the respondent herein that there are more than one defendant in Original Suit No. 438 of 2017 and hence both the suits cannot be consolidated, is also found to be wholly misconceived, inasmuch as, a perusal of the plaint of Original Suit No. 438 of 2007 indicates that the plaintiff of the Original Suit No. 71 of 2010 i.e. the petitioner herein has been impleaded as defendant no. 1 and the original owner of the suit property namely Ramdhari has been impleaded as profarma defendant no. 2. It appears that on account of death of defendant no. 2 during the pendency of the said suit, his heirs and legal representatives have been brought on record of the defendant nos. 2/1 to 2/4 In the opinion of the Court, the substituted defendants cannot be said to have any right or share in the suit property independent to that of their father. Moreover, Ramdhari was impleaded as defendant (second set) i.e. as proforma defendant in the said suit.
It is admitted to the parties that both the suits are being tried in the same Court and they have not reached the stage of evidence, though issues have been framed.
For the reasoning given above, while setting aside the order dated 28.5.2015 passed by the Civil Judge (Junior Division), Chandauli in Original Suit No. 71 of 2010 as also the order dated 11.10.2018 passed in Revision No. 13 of 2015, the Civil Judge (Junior Division), Chandauli is hereby directed to consolidate both the suits namely 71 of 2010 and Original Suit No. 438 of 2017 and try the same together, giving due opportunity to the parties to lead their evidence.
In case of any requirement, the issues may be re-framed by the Court below for the proper adjudication of both the suits together.
Subject the above observations and directions, the present petition is allowed.
Order Date :- 21.1.2019 Brijesh