Heard learned counsel for the appellants as well as learned counsel for respondents No.1 & 2, who has appeared through caveat at the admission stage.
This is plaintiffs' second appeal arising out of O.S. No.310 of 1992, which was mainly filed for cancellation of registered Will dated 20.01.1983 alleged to have been executed by Gopi Nath in favour of Ram Behari and Virendra Kumar defendants No.1 and 2 in the suit, both sons of Kunjilal and for declaration of plaintiffs' ownership over the property in dispute. In the house in dispute there are seven rooms along with other amenities and 14 shops. Defendants No.3 to 12 were tenants in the shops. The suit was dismissed on 07.07.2000 by Additional Civil Judge, Senior Division, Jhansi.
Late Sri Gopi Nath was real brother of Kunjilal father of defendants No.1 and 2. Defendants No.1 and 2 pleaded that the property in dispute did not belong to Gopi Nath but to Kunjilal, their father and after his death they inherited the same. In the alternative they pleaded that Gopi Nath had executed a Will in their favour on 20.01.1983. Plaintiffs had based their claim upon a Will dated 28.06.1990 executed by Smt. Lado Kunwar, widow of Gopi Nath.
The trial court held that alleged Will dated 20.01.1983 was not executed by Gopi Nath in favour of defendants No.1 & 2. The trial court further held that Lado Kunwar had executed the Will in favour of the plaintiffs on 28.06.1990 as alleged by them. Plaintiffs were near relations of Smt. Lado Kunwar. However trial court further held that the property in dispute did not belong to Gopi Nath but to Kunjilal. Accordingly, suit was dismissed. Against the said decree Civil Appeal No.64 of 2000 was filed by the plaintiffs. Initially the appeal was allowed by the lower appellate court only on the ground that defendants No.1 & 2 had stated that Gopi Nath had executed Will in their favour which they could not prove, however their assertion amounted to their admission that the property belonged to Gopi Nath. Appeal was accordingly allowed by lower appellate court on 04.10.2006. Against the said decree defendants filed Second Appeal No.1104 of 2006, which was allowed by this Court on 15.05.2007 holding that any party could set up alternative claim and setting up of an alternative claim did not amount to any admission. For the said purpose reliance was placed upon Supreme Court authority reported in Firm Sriniwas Vs. Mahaveer, AIR 1951 SC 177. Ultimately after allowing the second appeal matter was remanded to the lower appellate court for fresh decision. Thereafter lower appellate court (A.D.J., Special Judge, E.C. Act, Jhansi) dismissed the appeal on 08.08.2011, hence this second appeal.
Both the courts below have given very cogent reasons for holding that property did not belong to Gopi Nath but to Kunjilal. All the tenants had been inducted by Kunjilal or after his death by his sons defendants No.1 & 2. Plaintiffs had stated that Gopi Nath had purchased the property for less than Rs.100/-. Similarly defendants No.1 & 2 had stated that their father Kunjilal had purchased the property for less than Rs.100/-. However both failed to prove the said allegation. Until 1993 the name of defendants No.1 & 2 was entered in the municipal board house tax register over the property in dispute however in the year 1994 house tax was paid by plaintiffs and receipt was filed.
Against Gopi Nath eviction proceedings had been initiated in respect of a shop in which he was tenant by his landlord A.G. Kher. Documents regarding the said litigation were filed. In the said litigation, Gopi Nath categorically stated that except the shop in dispute in the said rent control litigation he had no other shop. The courts below held that assessment records in the name of Gopi Nath filed by the plaintiffs related to the said shop and not to any shop in the house in dispute. In the said shop which belonged to Sri A.G. Kher, Gopi Nath was tenant. Proceedings were decided against A.G. Kher and in favour of the tenant Gopi Nath.
Defendants No.1 & 2 filed electricity bills initially in the name of their father and thereafter in their names, receipts of payment of house tax starting from 1965 and different rent notes/ rent deeds of the shop in the house in dispute in between their tenants and Kunjilal and after his death defendants No.1 & 2 were filed by defendants No.1 & 2. In one of the shops in dispute Virendra Kumar, defendant No.2 was doing business of cloth selling. Regarding that business he filed several documents including licence which was of 30.09.1960. Some documents of electricity department starting from 1970-71 were also filed.
The courts below also held that after death of Gopi Nath litigation was going on in between defendants No.1 & 2 on the one hand and Smt. Lado Kunwar widow of Smt. Gopi Nath on the other hand in respect of other properties. However Smt. Lado Kunwar during her life time never made any claim over the property in dispute. This was a very important circumstance.
These findings are findings of fact based upon perusal of entire material on record requiring absolutely no interference in second appeal.
However the fact remains that defendants set up a false case in the alternative regarding execution of Will executed by Gopi Nath in their favour. Even though taking an alternative case is permitted under law as held in the earlier judgment of this Court in Second Appeal No.1104 of 2006, however in view of the fact that the alternative case taken up by the defendants was found to be utterly false hence exemplary and compensatory costs should have been imposed upon the defendants No.1 & 2. In certain circumstances a winning party in a civil suit may be directed to pay cost/ damages/ compensation to the loosing party.
Accordingly, I do not find any error in the impugned judgments. Second appeal is therefore dismissed but costs of Rs.50,000/- are awarded to the plaintiffs appellants against legal representatives of respondents No.1 & 2 i.e. respondents No.1 to 4 and 5/1 to 5/4, which may be recovered by the appellants in execution.
Order Date :- 23.2.2012 NLY