चम्पालाल And Ors vs श्रीमती चन्द्रा देवी And Ors

This second appeal under Section100 CPC is directed against the judgment & decree dated 14/9/2018 passed by the Addl. District Judge, Jodhpur (District) (first appellate court), whereby, the appeal filed by the appellant against the judgment & decree dated 14/12/2011 passed by the Civil Judge (Sr. Div.) Jodhpur (District) (trial court), whereby, the suit filed by the appellant- plaintiff for cancellation of sale deed and permanent injunction was rejected, has been dismissed.

The suit for cancellation of sale deed dated 18/12/1998 was filed by the plaintiffs on 13/7/1999 inter alia with the submissions that land comprised in khasra no. 620 ad measuring 56 bigha 10 biswa and khasra no. 576 ad measuring 79 bigha 18 biswa at village Kanodiya Purohitan belonged to Simartha, grandfather of plaintiff nos. 1 to 5. Simartha expired in Samvat Year 2014 and his only heir was his son Gena Ram. After the death of Simartha, the land remained in possession and cultivation of Gena Ram alone and after the death of Gena Ram, five sons of Gena Ram & Asu Ram came in possession. After the death of Asu Ram, plaintiff no.6, his wife along with plaintiffs are in cultivator possession. It was averred that defendant no. 2 - Bhanwara Ram's mother, Rupi Devi, was wife of Ramu Ram and Ramu Ram along with his father Anada Ram shifted to Jodhpur and died at a young age. After the death of Ramu Ram, Rupi Devi started living with Dula Ram Jat and is presently residing in his house at Jodhpur. Rupi Devi and Dula Ram live like husband and wife and from their cohabitation, defendant no.2 Bhanwara Ram was born and as such he is son of Dula Ram, however, as Dula Ram was in Government service, he got name of Ramu Ram indicated as father of Bhanwara Ram.

It was further averred that Bhanwara Ram, his mother and Rupa Ram never stayed at village Kanodiya Purohitan, he was not heir of Simartha and never cultivated the land, however in collusion with the employees of Revenue department and Sarpanch, after the death of Simartha, through mutation no. 149 in the revenue record, along with Gena Ram as legal representative of Simartha, name of defendant no.2 - Bhanwara Ram was also got entered.

It was further averred that defendant no.2 had no share in khasra no. 620, however, taking advantage of incorrect revenue entry, on 18/12/1998 by wrongly indicating his half share in the land, the same was transferred and defendant no. 1, based on the incorrect sale, got her name entered in the revenue record. It is claimed that when husband of defendant no.1 claimed possession, the said aspect came to light. It was further indicated that the plaintiffs had filed the suit before the Addl. Collector for declaration of khatedari rights and for correction of entries, which is pending. It was alleged that as the sale deed was executed without there being any share, and a specific portion of joint land was transferred, the sale was illegal and deserves to be set aside.

It was also indicated that the mutation without possession could not have been accepted and, therefore, the sale deed deserves to be quashed and set aside and injunction be issued against the defendants not to interfere in their possession.

Written statement was filed by Bhanwara Ram contesting the averments made in the plaint. It was indicated that Simartha had three sons, Lalu Ram, who died issue less, Ramu Ram, father of Bhanwara Ram and Gena Ram, father of plaintiff nos. 1 to 5. The averments made in the plaint seeking to allege that defendant no.2 is son of Dula Ram were denied. It was claimed that being son of Ramu Ram, defendant no.2 had half share in the property and that no specific portion has been transferred and, therefore, the suit was liable to be dismissed.

Replication was filed reiterating the submissions made in the plaint.

The trial court framed 08 issues. On behalf of the plaintiffs, five witnesses were produced and four documents were exhibited. On behalf of defendants, six witnesses were examined and 24 documents were exhibited.

After hearing the parties, the trial court came to the conclusion that the plaintiffs have failed to prove that they were the only khatedars of the land in question, that Bhanwara Ram was not son of Ramu Ram s/o Simartha and, therefore, he had share and right in the agricultural land and on account of death of Simartha, the same was rightly recorded in the name of defendant no. 2 also. Issue no. 2 pertaining to transfer without right was also decided in favour of defendants. Issue no. 3 pertaining to mutation being incorrect was decided against the plaintiffs. On issue no. 4, it was indicated that co-tenant can transfer his undivided share, in the present case as the suit for partition filed by the defendant has already been decreed on 16/5/2008 and as no specific portion of land has been transferred, the issue had no substance. The objection raised by the defendants pertaining to court fees & jurisdiction of the court were decided against them and ultimately the suit was dismissed.

Feeling aggrieved, first appeal was filed. The first appellate court after hearing the parties, reiterated the findings recorded by the trial court and dismissed the first appeal.

Learned counsel for the appellants made submissions that the two courts below were not justified in coming to the conclusion that defendant no.2 - Bhanwara Ram was son of Ramu Ram and had share in the suit property and, therefore, the finding in this regard being perverse deserves to be set aside.

Further submissions were made that finding on issue no. 4 is also against law inasmuch as once the defendant no. 2 was not in possession of the land in question, his name could not be mutated in the revenue records and that without partition, he could not have transferred the land in question and, therefore, the finding on issue no. 4 also deserves to be set aside.

Reliance was placed on Ramoo vs. Hanuman : 1987 RRD 330. Learned counsel for respondents vehemently opposed the submissions. It was submitted that the two courts below have recorded concurrent findings of fact and the appeal does not give rise to any substantial question of law, therefore, the same deserves dismissal.

Further, with reference to the material on record, it was submitted that the appellants have failed to point out any perversity in the findings and on that count also, no case for interference is made out.

Reliance was placed on Dnyanoba Bhaurao Shemade vs. Maroti Bhaurao Marnor : 1999 DNJ (SC) 131 and Smt. Sugani vs. Rameshwar Das & Anr. : 2006 (2) WLC (SC) Civil 162.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record as well as the record of the two courts below.

On the foundational issue regarding the allegations made in the suit that respondent no. 2 - Bhanwara Ram was not son of Ramu Ram but was son of Dula Ram and as such had no share in the property of Simartha has been exhaustively dealt with by the trial court inasmuch as it was found that P.W.1 - Bhagirath Ram, plaintiff no. 5, himself stated in his cross examination that he did not know whether Bhanwara Ram was son of Ramu Ram or Dula Ram and he has not seen Ramu Ram and Dula Ram. He also indicated that he did not see Rupi Devi & Dula Ram living together. He further indicated that he only heard about it from his mother, brothers and elders and he also admitted that the averments made in the affidavit in examination-in-chief were hearsay. P.W.3, Champa Lal, also denied having seen Dula Ram and Rupi Devi living together and that he did not know as to whether Bhanwara Ram was son of Rupa Ram or Dula Ram. P.W.4, Chain Singh Rajpurohit, denied even the indication made in the affidavit filed in examination-in-chief and regarding all other aspects. P.W.5, Pep Singh, denied having known Bhanwara Ram. As such, from the evidence led by the plaintiffs nothing was proved, on the other hand, the documents produced including the mutation entry, voter list (Ex.A/10 & A/11), voter ID cards (Ex.A/2 and A/3), indication made in the title of the suit, wherein, Bhanwara Ram has been shown as son of Ramu Ram and the fact that in Ex. A/4, the appeal filed before Revenue Appellate Authority by the plaintiffs along with defendant Bhanwara Ram and Smt. Rupi Devi, they were indicated as wife & son of Ram Lal (Ramu Ram), clearly demolish the case of the appellants in relation to questioning the fact that defendant no. 2, Bhanwara Ram, was son of deceased Ramu Ram, who was son of Simartha and as such the findings recorded by the two courts below in this regard cannot be faulted and/or give rise to any substantial question of law.

So far as the finding on issue no. 4 is concerned, admittedly, the land in question belonged to Simartha and on his death, by way of succession under Section 40 of the Rajasthan Tenancy Act, 1955 which provides that when a tenant dies intestate, his interest in his holding shall devolve in accordance with the personal law to which he was subject at the time of his death, was rightly entered in the name of Gena Ram and Bhanwara Ram s/o Ramu Ram as Ramu Ram had pre-deceased Simartha, in the year 1977.

Attempts made to question the entry in the revenue record, in view of express provisions of Section 40 of the Rajasthan Tenancy Act, 1955, has no substance.

The submissions made about the mutation being incorrect in absence of possession is equally baseless. The Hon'ble Supreme Court in Neelavathi & Ors. vs. N. Natarajan & Ors. : AIR 1980 SC 691, observed as under:

"The general principle of law is that in the case of co- owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession."

So far as the submissions made that Bhanwara Ram could not have transferred the land in question without partition and that also when the suit in this regard was pending consideration is concerned, the provisions of Section 44 of the Transfer of Property Act, 1882 empowers the co-owner to transfer his share and as such it cannot be said that Bhanwara Ram could not have transferred his undivided share.

So far as the submission made that Bhanwara Ram could not have transferred specific share in the land in question is concerned, the trial court has specifically come to the conclusion, based on the averments made in the sale deed (Ex.3) that specific portion of the land has not been transferred and Bhanwara Ram has only transferred his half share in the suit property and has also indicated the land as joint land.

So far as the indication of boundaries is concerned, there is no material available on record to indicate that said boundaries in any manner bifurcate the land in question.

In view of the above, the finding on issue no. 4 recorded by the trial court cannot be said to be incorrect so as to give rise to any substantial question of law.

So far as the judgment in the case of Ramoo (supra) relied on by learned counsel for the appellants is concerned, besides the fact that said judgment is of a single member of Board of Revenue, which does not even have persuasive value, the judgment pertains to grant of injunction under Section 212 of the Rajasthan Tenancy Act, 1955 and does not deal with any of the aspects germane to the present controversy.

In view of the above discussion, the appeal has no substance and the same is, therefore, dismissed.