Amar Singh and Others vs Kishan Lal and Others

Dharam Chand Chaudhary, J.—This judgment shall dispose of both the appeals preferred against the judgment and decree passed by learned District Judge, Bilaspur in Civil Appeal Nos. 87 of 1993 and 88 of 1993 as common questions of facts and law are involved therein.

The appellants in these appeals were defendants in Civil Suit No. 85-1 of 1988 filed by late Shri Sukh Ram and Paras Ram, predecessors-in-interest of respondents No. 1(a) to 1(d) and 2 to 6 herein and respondent No. 7 Smt. Durgi, who is also pre-deceased by respondents No. 1(a) to 1(d) and 2 to 6, hereinafter referred to as plaintiffs, for declaration to the effect that the suit land comprised in khasra No. 406/1, Khata Khatauni No. 162/214, measuring 4 biswas situated in village Panol, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur being joint property of the plaintiffs and defendants No. 1 and 2, a specific portion thereof could have not been sold to the appellants herein by S/Shri Jagdish and Bali Ram, defendants No. 1 and 2 in the suit. The predecessors-in-interest of respondents No. 1(a) to 1(d) and 2 to 6, late Shri Sukh Ram and Paras Ram were defendants in Civil Suit No. 63-1 of 1988 which was filed by the present appellants and one Rattan Lal, the predecessor-in-interest of respondent No. 11(a), Lekh Ram for the decree of permanent prohibitory injunction restraining aforesaid Sukh Ram and Paras from causing any interference in the suit land on the ground that the same is in their exclusive ownership and possession. The subject matter of dispute in both the suits is the land bearing khasra No. 406/1, Khata/Khatauni No. 162/214 measuring 4 biswas situated in village Panol, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur.

Defendants No. 1 and 2 in Civil Suit No. 85-1 of 1988, respondents No. 9 and 10 herein, had sold a specific portion of the suit land comprised in khasra No. 406/1 measuring 4 biswas situated in village Panol, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur vide Tatima Registry to defendants No. 3 to 5. The land in the revenue record was recorded in joint ownership and possession of deceased plaintiffs Sukh Ram and Paras Ram (predecessors-in-interest of respondents No. 1(a) to 1(d) and 2 to 6 in Civil Suit No. 85-1 of 1988 and defendants No. 1 and 2 in the said suit (respondents No. 9 and 10 herein) alongwith other co-sharers as is apparent from the perusal of jamabandi for the year 1980-81. Defendants No. 1 and 2 aforesaid, however, sold the suit land in their share to the appellants herein and their brother, Rattan Lal (since dead and survived by one of the appellants-defendants, namely, Prem Singh in Civil Suit No. 85-1 of 1988 and plaintiff in Civil Suit No. 63 of 1988), hereinafter referred to as defendants No. 3 to 5. Mutation No. 957 to this effect was sanctioned and attested in the names of the vendees, i.e. the appellants and their deceased brother, Rattan Lal. The suit land being joint of plaintiffs, Sukh Ram and Paras Ram and defendants Jagdish and Bali Ram, aforesaid, a specific portion thereof could have not been sold to defendants No. 3 to 5 in Civil Suit No. 85-1 of 1988. S/Shri Sukh Ram and Paras Ram filed the aforesaid suit for declaration that sale deed vide which defendants No. 1 and 2 have sold a specific portion of suit land to defendants No. 4 and 5 and their deceased brother, Rattan Lal be declared as null and void and that the defendants be restrained from causing any interference in the suit land, whereas, Prem Singh, Amar Singh and their deceased brother, Rattan Lal filed Civil Suit No. 63-1 of 1988 for a decree of permanent prohibitory injunction restraining the aforesaid Sukh Ram and Paras Ram from interfering in the suit land in any manner whatsoever on the ground that the same is in their exclusive ownership and possession and not joint.

In the written statement filed on behalf of defendants No. 3 to 5 in civil suit No. 85-1 of 1988, it has been claimed that out of the suit land, land measuring 0.03 biswas, comprised in Khasra No. 406/1 was in the exclusive ownership and possession of defendants No. 1 and 2 and has therefore been legally and validly sold vide registered sale deed in their favour. The suit, therefore, was sought to be dismissed. The suit, however, was not contested by the vendors, i.e. defendants No. 1 and 2, whereas, in the written statement filed in civil suit No. 63-1 of 1988, defendants Sukh Ram and Paras Ram aforesaid averred that a specific portion of the suit land could have not been sold by defendants No. 8 and 9, co-sharers being joint of them and other co-sharers. Also that the mutation as was sanctioned consequent upon sale of a portion of the suit land was set aside by Sub-Divisional Collector.

On the pleadings of the parties, learned trial Court has framed the following issues in Civil Suit No. 85-1 of 1988:--

Whether the sale deed dated 24-11-1987 by defendants No. 1 and 2 in favour of defendants No. 3, 4 & 5 is wrong and illegal as alleged? OPP.

Whether the parties to the suit are joint owners in possession over the suit land as alleged? OPP.

Whether the plaintiffs are exclusive owners in possession over the suit land as alleged? OPP.

Whether the suit is not maintainable as alleged? OPD.

Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD.

Relief.

Similarly, following issues were framed in Civil Suit No. 63-1 of 1988:--

"1. Whether the plaintiffs are owners in possession over the suit land as alleged? OPP.

Whether the defendants are interfering with the possession of plaintiffs as alleged? OPP.

Whether the plaintiffs are estopped to file the suit as alleged? OPD.

Whether the suit is not maintainable as alleged? OPD.

Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD.

Relief"

The parties were put to trial and on completion of the record, both suits were disposed of vide common judgment and decree. The civil suit No. 85-1 of 1988 was dismissed by learned Sub Judge, Ghumarwin while arriving at a conclusion that the land sold by defendants No. 1 and 2 to defendants No. 3 to 5 was in their exclusive ownership and possession, as such, rightly sold vide judgment and decree dated 28.6.1993 whereas civil suit No. 63-1 of 1988 was decreed while arriving at a conclusion that the suit land is not joint of aforesaid Sukh Ram and Paras Ram with Jagdish and Bali Ram and being in the exclusive ownership and possession of said Shri Jagdish and Bali Ram, was rightly disposed of by way of sale to Prem Singh, Amar Singh and their deceased brother Rattan Lal vide judgment and decree dated 28.6.1993.

In appeal, learned District Judge, however, has reversed the findings recorded by learned trial Court in civil Suit No. 85-1 of 1988 vide judgment dated 28.6.1993 and decree the suit for the relief of declaration to the effect that the sale of a portion of the suit land vide tatima Registry is against the provision of law. However, while holding the sale deed legal and valid has concluded that the vendees, i.e. defendants No. 3 to 5 on acquiring a portion of the suit land by way of sale have become co-owners in the suit land with the plaintiffs. Therefore, civil suit No. 85-1 of 1988 was decreed partly, whereas, civil suit No. 63-1 of 1988 on reversal of the judgment and decree was dismissed.

Defendants No. 3 to 5 in civil suit No. 85-1 of 1988 (plaintiffs in civil suit No. 63-1 of 1988) have assailed the judgment and decree so passed by learned lower appellate court in both the suits in these appeals on the common grounds that own admission of deceased plaintiff, Paras Ram while in the witness box that the suit land was in separate possession of the respective share holders, has erroneously been ignored and the findings recorded by learned trial Court that sale deed of specific portion of the suit land was legal and valid, has erroneously been quashed and set aside. The law regarding ownership and joint possession of co-sharers in a case where co-sharer was in separate possession to the extent of his respective share in the joint land, has been misconstrued and to the contrary, learned lower appellate Court has based its findings on conjunctures and surmises.

Both the appeals have been admitted on common substantial questions of law, which read as follows:--

Whether an admission of a fact in evidence by a party to the suit can be used against him to un-suit him?

Whether the Lower Appellate Court could have ignored the admission made in favour of the other party regarding the material fact going to the root of the controversy?

Mr. Dilip Sharma, learned Senior Advocate appearing on behalf of the appellants-defendants has urged that in view of the own admission of deceased plaintiff, Paras Ram while in the witness box that the suit land was in separate possession of all the co-sharers to the extent of their respective shares, should have been used against the plaintiffs and the suit as such was liable to be dismissed.

On the other hand, Mr. K.D. Sood, learned Senior Advocate while taking this Court to the so called admission, has forcefully contended that the evidence as has come on record by way of the testimony of plaintiff, Paras Ram, is mis-read and misconstrued as he in his examination-in-chief has not made any admission as alleged, however, his statement in cross-examination reveals that he has stated that the suit land is still joint of the parties irrespective of they are in separate possession thereof.

Having gone through the record and taking into consideration the rival submissions, it is worthwhile to mention here that in legal parlance an admission is a statement of fact, however, should be clear-cut, accurate, ex-facie, unequivocal and categorical. A vague statement cannot be construed as an admission.

If coming to the given facts and circumstances and the evidence available on record, the appellants-defendants in support of the legal question raised in the present appeals, have placed reliance on the statement of deceased plaintiff, Paras Ram, PW-1 in his cross-examination. The very opening lines of his statement in cross-examination reveal that the suit land was earlier joint of the parties and is still joint. No doubt, in the next lines he has admitted that all co-sharers are in separate possession of the suit land to the extent of their respective shares in the suit land. In his examination-in-chief, he had claimed the entire suit land to be in the possession of the plaintiffs having fallen to their share in family partition, however, learned lower appellate court in the common judgment has concluded that the plaintiffs and defendants No. 1 and 2 were joint owners in possession of the suit land because it is Jageshwaru, the predecessor-in-interest of defendants No. 1 and 2 who was found to have raised construction of a temple over the suit land and as per the findings recorded by learned trial Court, the remaining vacant land was being jointly used as compound by the parties. Also that defendants No. 1 and 2 though could have disposed of the suit land to the extent of their share, however, not through tatima registry, i.e. a specific portion thereof and rather the suit land to the extent of their share and on acquiring the same, the vendees, i.e. defendants 3 to 5 would have only become co-owners in the suit land together with other share holders including the plaintiffs. The plaintiffs have not assailed the findings so recorded by learned District Judge, Bilaspur by way of appeal etc. in this Court.

The statement referred to hereinabove made by deceased plaintiff, Paras Ram in his cross-examination does not constitute an admission in legal parlance being not clear-cut, accurate, ex-facie, unequivocal and categorical statement constituting an admission. His version rather reveals that the suit land was joint of the parties irrespective of they were in separate possession thereof to the extent of respective shares. The characteristics of jointness of the suit land is proved on record from the perusal of jamabandi Ex. P-A for the year 1980-81.

The remaining evidence, as has come on record by way of the testimony of P.Ws. Rajgil Singh, Narainu Ram and also the witnesses, namely, Amar Singh, Defendant, Jagdish Ram, Piar Singh, Dandu Ram, Bhangu Ram, Nathu Ram and Ram Singh examined on behalf of the defendants reveals that the same is equally balanced because the plaintiffs'' witnesses have come forward with the version that the suit land was in exclusive ownership and possession of the plaintiffs. At the same time, the witnesses of the defendants have stated that it is the defendants who were in exclusive possession of the suit land and that their predecessor-in-interest, Shri Jageshwaru, had constructed a temple of Mata Chintpurni thereon. Therefore, the version of PW-1 Paras Ram in his cross-examination pressed into service on behalf of the defendants cannot be termed an admission in legal parlance and, as such, not a conclusive piece of evidence to non-suit the plaintiffs. When the statement made by deceased plaintiff, Paras Ram is not an admission in legal parlance, there is no question of ignorance thereof by learned lower appellate Court. Therefore, in the considered opinion of this Court no legal question, what to speak of substantial question of law, as formulated in these appeals, arises for determination nor the judgments and decrees impugned in these appeals can be said to be suffering from any legal infirmity or irregularity. The same rather deserve to be up-held.

For all the reasons hereinabove, both the appeals fail and the same are accordingly dismissed. Parties are left to bear their own costs. Pending application(s), if any, shall also stands disposed of. Let a copy of this judgment be placed on record of regular second appeal No. 129 of 2003.