Ghasiya vs Rajendra

Heard on admission.

This second appeal has been filed by the appellants/defendants under Section 100 of the C.P.C. against judgment and decree dated 10.05.2011 passed by Second Additional District Judge, Jagdalpur at Kondagaon (C.G.) in Civil Appeal No. 2A/2011 [Ghasiya & another Vs. Bhola (dead) through Lrs.], affirming the judgment and decree dated 28.11.2006 passed by Civil Judge Class-II, Narayanpur, District- Bastar (C.G.) in Civil Suit No. 3A/2000.

For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 3A/2000 which was filed before the trial Court for declaration of title & possession.

The brief facts, as reflected from the plaint averments are that the plaintiffs have filed the civil suit on 14.07.2000 mainly contending that Khasra Nos. 225, 226, 260, 582, 611 & 686 area admeasuring 0.16, 0.23, 0.75, 0.97, 1.29 & 0.85 respectively (total 4.25 Hectare) are situated at Village- Palki, Tahsil-Narayanpur, District- Bastar (which will be referred to as suit property in the foregoing paragraphs). It has been contended that the defendants have no right over the suit property. Defendants No. 1 & 2 have forcibly taken possession of the suit property i.e. Khasra No. 260 area 0.35 out of 0.75 Hectare and Khasra No. 225 area 0.16 Hectare.

It has been further contended that in the year 1998, plaintiff No. 1 has filed an application before Tahsildar, Narayanpur for receiving back the illegal possession taken by defendants No. 1 & 2, which has been rejected. Against that, plaintiff No. 1 has preferred an appeal before Sub Divisional Officer, Narayanpur, which has also been rejected directing for registering name of defendants No. 1 & 2 in revenue record. The order has been passed by the authorities without jurisdiction, which has necessitated the plaintiffs to file civil suit for declaration of title and possession over the suit property and also prayed that the order passed by the revenue authorities is not binding upon the plaintiffs.

The defendants have filed written statement as well counter claim raising objection denying the averments made in the plaint mainly contending that the plaintiffs are title holder and in possession of the suit property, in fact it is joint family property. The plaintiffs and defendants belong to same family, therefore, they are jointly in possession of the suit property. It has been further contended that land area 0.48 Hectare out of 0.75 Hectare from Khasra No. 260 and 0.16 Hectare out of 0.16 Hectare from Khasra No. 225 are joint family property and the plaintiffs and defendants are in possession of the property at the time of life period of his father. His father constructed house, residing there and also doing agricultural work in the property.

It has been further contended that the defendants' father expired when the defendants were in tender age, therefore, the plaintiffs are doing agricultural work and in possession of the suit property to maintain defendants No. 1 & 2 and when defendants No. 1 & 2 became capable of doing agricultural work, they have submitted an application before Panchayat, in which, it has been directed that the defendants are doing agricultural work and since then, the defendants are in possession of the suit property. Counter claim was also filed by the defendants claiming that defendants are also entitled to be declared title holder of the suit property. The plaintiff has denied the counter claimed filed by the defendant.

Learned trial Court on the pleadings of the parties and material placed on record, has framed as many as six issues. The plaintiffs to substantiate their case have examined witnesses namely Bholaram (PW-1), Amar Singh (PW-2) & Sop Singh (PW-3) and exhibited document namely order dated 14.10.1999 (Ex. P/1), Map (Ex. P/2), Kishtabandi Khatouni for the year 1997-98 (Ex. P/3), Kishtabandi Khatouni for the year 1988-89 (Ex. P/4), record of right for the year 1990 (Ex. P/5), record of right (Ex. P/6), record of right for the year 1989-90 (Ex. P/7, P/8 & P/9), Kishtabandi Khatouni for the year 1990 (Ex. P/10 & P/11).

Bhola (PW-1) in his examination-in-chief by way of affidavit has reiterated the facts which have been mentioned in the plaint. He has stated in his cross-examination that the partition has been done and it has not been equally distributed. He has further stated that in partition, Chamru S/o Singlu received 1.02 Hectare and Manukar S/o Lingu received 2.05 Hectare and he himself has received 4.25 Hectare. He has denied that he has put his signature in the partition done before Panchayat.

Amar Singh (PW-2) has reiterated the same stand which has been taken in the plaint. In his cross-examination, he has stated that equal partition was done between the brothers. He has admitted that if any person has been given double share then this was share of two persons.

Sop Singh (PW-3) has stated in his examination-in-chief that Ghasiya and father of Ghassu namely Ginjaru were working as labour in house of Khodi. After death of Khodi, the land was occupied by Bhola and he was doing agricultural work. He has further stated that prior to 12-13 years, there was settlement in the village wherein as per oral partition between Koye, Lingu & Singlu, the revenue accounts were separated. He has further stated that prior to 4-5 years, 1 acre land from share of Bhola, has been forcibly taken possession by Ghasiya & Ghassu and they are doing agricultural work. He has also stated that there is no relation between Bhola, Ghasiya & Ghassu and they are from different family, therefore, Ghasiya & Ghassu have no right over the property of Bhola. Sop Singh (PW-3) in his cross-examination has shown statement of Bhola recorded before Tahsildar (Ex. D/1). He has stated that Bhola has refused to give land to Ghasiya & Ghassu.

Defendants to substantiate their case have examined Ghasiya (DW-1), Manuram (DW-2) & Ranu (DW-3) and exhibited documents namely application filed by Bhola before Tahsildar (Ex. D/1), copy of panchnama given by Bholaram before Panchayat (Ex. D/2), statement of Bholaram before Tahsildar (Ex. D/3) & mutation registration for the year 1999-2000 (Ex. D/4).

Ghasiya (DW-1) in his examination-in-chief by way of affidavit has taken the same stand which he has taken in the written statement as well as counter claim. In the cross-examination, he has admitted that his father name is Ginjaru and his father name is Derhi. He is not aware that name of father of Derhi is Chihar. He is also unaware that Derhiram was residing at Mahka. He is also not aware that his father was residing at Borand. He is also not aware that his father has come from Borand to work as labour at Village- Mahka. He has stated that Khodi is mother of Bhola. He has admitted that he has not filed any document where name of his father has been recorded.

Manuram (DW-2) in his examination-in-chief by way of affidavit has admitted that father name of Ghasiya is Ginjaru.

Ranu (DW-3) in his examination-in-chief by way of affidavit has admitted that father name of Ghasiya is Ginjaru.

Learned trial Court after appreciating the evidence, material placed on record, has decreed the suit and has held that the plaintiffs are able to prove that the plaintiffs are title holder and are in possession of the suit property. Learned trial Court has recorded its finding that the defendants are not able to prove that the defendants' father belongs to family of Bhola and accordingly, decreed the suit filed by the plaintiff and dismissed the counter claim filed by the defendants. Against that, the defendants have preferred first appeal before the First Appellate Court and the First Appellate Court vide its judgment and decree dated 10.05.2011 has dismissed the appeal filed by the defendants. Learned First Appellate Court has recorded its finding that the defendants in their written statement and counter claim that it is joint family property, therefore, it is well settled legal position of law that the person who claims about the joint family property, should prove his stand by examining cogent evidence.

Learned First Appellate Court has also recorded its finding that from perusal of the records, it is quite vivid that no such documentary evidence or material has been placed on record and Ghasiya (DW-1), who in his cross-examination has admitted that the plaintiffs father name is Bhola, but he is not aware about name of other ancestors. Learned trial Court has also observed that if the defendants belong to same family then he should be aware the name of father of Bhola and even no evidence was brought on record to substantiate that they belonged to joint family, therefore, the learned trial Court after appreciating the evidence, material placed on record has held that the finding recorded by the learned trial Court does not suffer from illegality and accordingly, dismissed the appeal. Being aggrieved with the judgment and decree passed by the learned First Appellate Court, the defendants have preferred the instant second appeal before this Court.

Learned counsel for the appellants/defendants would submit that the plaintiffs have failed to plead, whether the property mentioned in paragraph 2 of the plaint is self-acquired property or ancestral property. He would further submit that the plaintiffs have also failed to plead and prove the source from which, they have got the property. The basic rule of pleading says that, whenever anyone claims declaration of any property in his favour, he must disclose the source from which he has succeeded the suit property and then only he can claim title over it. But, in the present case, the pleading in this regard is absolutely silent and missing, therefore, the legal presumption would come in place of should have held against the plaintiffs and the suit filed by the plaintiff should have been dismissed, counter claim filed by them, should have been allowed. He would further submit that the learned trial Court has committed illegality in relying upon the entries of the revenue records. He would further submit that as per the law, it is well settled that the revenue record does not confer any right over the suit property, it does not decide the title of the property. He would place reliance upon the judgment rendered by Hon'ble the Supreme Court in Adiveppa & others Vs. Bhimappa & others AIR 2017 SC 4465, Union of India & others Vs. Vasavi Co-operative Society Ltd. 2014 AIR SCW 580, Anathula Sudhakar Vs. P. Buchi Reddi (2004) 10 SCC 779, Karnataka Board of Wakf Vs. Government of India (2020) 10 SCC 729 & Jitendra Singh Vs. State of M.P. Special Leave Petition (C) No. 13146/2021 (Decided on 06.09.2021).

He would further submit that Bhola (PW-1) has admitted in his deposition at paragraph 6 that he has made an application before Tahsildar and this is an application for recording the name of appellants/ defendants as they could not be given their share at the time of partition. He has also admitted in paragraph 5 that it is true that there was no equal partition between him and his uncles. He would further submit that there is no reason to disbelieve the testimony of the defendants witness DW-3, therefore, the finding recorded by the learned trial Court is perverse and contrary to the law, as such, the instant second appeal is liable to be admitted and substantial question of law is required to be framed by this Court.

On the other hand, learned counsel for respondents No. 1(A) & 1(C) vehemently opposed the submission made by learned counsel for the appellants and would submit that the finding recorded by learned trial Court affirmed by the learned First Appellate Court is not contrary to the records, therefore, the same are just and proper and do not warrant any interference by this Court.

I have heard learned counsel for the parties and perused the records of the courts below with utmost satisfaction.

From the evidence on record, it is quite vivid that the plaintiffs to substantiate their case have described the details of their family, which was not rebutted by the respondents and no evidence was brought on record to prove that defendant belong to same family.

The plaintiffs have clearly denied that they belong to same family. The witnesses have denied that the suit property belonged to defendants and his grand-father. He has also denied that the property of Ghasiya and Ghassu has been given in partition and their share has been given to him. Sop Singh has categorically stated in his examination-in-chief that Ghasiya and father of Ghassu-Ginjaru were working as labour in the house of Khodi. Ghasiya has stated that his grand-father name is Singlu and also admitted that he has not filed any document to show that the suit property has been recorded in the name of his father.

It is quite vivid that Sub Divisional Officer in his order dated 14.10.1999 has also described the genealogy of the family, wherein name of Derhi father is unknown and there is no mention about relationship between the plaintiffs and defendants of the present suit. This fact has also been recorded in the order still learned Tahsildar has passed the order by directing for recording the name of defendants. It is pertinent to mention here that even in Kishtabandi Khatouni for the year 1997-98 name of plaintiffs' father is mentioned as Khodi and in the revenue record for the year 1990, Ginjaru father’s name has also not been mentioned. The defendants have nowhere proved that they belonged to family of the plaintiffs.

Learned trial Court after appreciating the evidence, material placed on record has recorded finding that no documentary evidence was produced to prove that the defendants belonged to plaintiffs' family. In absence of any such foundation led by the defendants to establish relationship, learned trial Court has decreed the suit. Therefore, it is a finding of fact recorded by the learned trial Court affirmed by the learned First Appellate Court, which does not warrant any interference by this Court and the second appeal is liable to be dismissed and accordingly dismissed.

Upon perusal of entire evidence, there is no substantial question of law requiring to be formulated for hearing of this second appeal. There is concurrent finding of fact with regard to finding recorded by the Court below that defendants have failed to prove that they belonged to family of the plaintiffs and they are title holder of the suit property. As such, no question of law requires to be determined by this Court. Hon’ble the Supreme Court in C. Doddanarayana Reddy (Dead) by Lrs. & others Vs. C. Jayarama Reddy (dead) by Lrs.& others (2020) 4 SCC 659, has held at paragraph 28 as under:-

“28. Recently in another judgment reported as State of Rajasthan v.Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

“When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43).”

This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended Section 100 of the C.P.C. Learned counsel appearing for the appellant failed to point out any substantial question of law which may arise for determination in the case.

In view of above, since no substantial question of law arises for determination in the instant case, this is not a fit case for admission. Consequently, the appeal is dismissed at motion stage itself under the provisions of Order 41 Rule 11 read with Order 42 Rule 1 of CPC. No order as to costs.

A decree be drawn up accordingly.