Golman vs Muniya Bai and Others

U.C. Maheshwari, J.—The Appellant/Defendant has filed this appeal u/s 100 of CPC being aggrieved by the judgment and decree dated 30.6.2008 passed by 1st additional District Judge, Betul in Civil Regular Appeal No. 37-A/05, affirming the judgment and decree dated 30.8.2005 passed by 1st Civil Judge Class-II Betul in Civil Original Suit No. 25-A/00 decreeing the suit of Respondent No. 1 against the Appellant and Respondent No. 2 to 8 for declaration, perpetual injunction and partition of the disputed agricultural land.

The facts giving rise to this appeal in short are that Respondent No. 1 herein filed the aforesaid suit contending that land bearing survey No. 319, 400 and 406 area 0.891, 0.235 and 1.348 hector situated at village Malajpur being ancestral property of her grand father Roniya was earlier recorded in his name under the Bhoomiswami right. Roniya had five daughters the Respondent No. 4 to 8 and two sons namely Bhuta and Mallu, the father of Respondent No. 2 Omkar and Respondent No. 1/Plaintiff Muliya bai respectively and on demise of Bhuta and Mallu they inherited their respective Bhoomiswami rights in such land. As per further pleading after the death of Roniya except the name of Respondent No. 1/Plaintiff and Satish the Respondent No. 3 (the son of Respondent No. 2) the name of all aforesaid natural heirs of Roniya were mutated in the record of rights. Subsequent to that in the year 1994 in presence of village Community Panchayat in order to resolve their dispute the partition took place between all heirs of Roniya in which land bearing survey No. 319 area 0.891 hector and survey No. 400 area 0.235 hector was given in the share of Respondent No. 1 while the land bearing survey No. 406 area 1.338 hector was given to Omkar Respondent No. 2 in his share. Since then according to such partition the Respondent No. 1 and 2 being in possession of the land, are cultivating the same. It is also stated that the aforesaid all five daughters of Roniya Respondent No. 4 to 8 had left their share in favour of Respondent No. 1 and 2 in such partition. Therefore, they never remained in possession of any part of it. Subsequent to it Respondent No. 5 Kallo without any legal right only by taking advantage of the revenue records in which her name was recorded as legal heirs of Roniya had executed a registered sale deed on 3.7.97 in favour of Respondent No. 3 Satish the son of Respondent No. 2 wherein the land bearing survey No. 400 and 406 was shown to be sold to such Respondent No. 3 whereas the Respondent No. 5 after relinquishing her share in the property in the above mentioned partition in favour of Respondent No. 1 and 2 was not having any authority to sale the same. Therefore, the aforesaid sale deed 3.7.1997 is not binding against Respondent No. 1. In such premises the purchaser had not acquired any rights or title in the property by such sale deed. Subsequent to it Respondent No. 4 and 6 to 8 also by executing registered sale deed dated 29.12.1996 in favour of the Appellant Golman sold him some disputed land but due to above mentioned reason such sale deed was also not binding against Respondent No. 1. In addition it is also pleaded that if aforesaid partition dated 19.6.1994 is not found to be proved or legal then the aforesaid ancestral land of Roniya be partitioned between the parties taking into consideration the aforesaid Bhuta and Mallu being co-parcenor of the family with Roniya had 1/3 - 1/3 undivided share while 1/3 was belonging to Roniya and subsequent to death of Roniya only his 1/3 share is inherited by his natural heirs the five daughters Respondent No. 4 to 8 two sons the Respondent No. 1 and 2 or their natural heirs. In such premises the declaration is also prayed that above mentioned sale deeds executed by Respondent No. 5 and 4 with 6 to 8 in favour of Respondent No. 2 and the Appellant respectively are not binding till the extent of right and title of Plaintiff/ Respondent No. 1 in the aforesaid land. With these pleading the suit for declaring the share of Respondent No. 1 in such land and partition accordingly with a further prayer declaring the aforesaid sale deeds dated 3.7.97 and 29.12.1996 had not adversely affected her right along with further prayer restraining the Respondents from interfering in her possession of the disputed land is filed.

In the joint written statement of the Respondent No. 2, 4 and 5 it is stated that after death of Roniya, his all successor have become joint owner of the above mentioned land. The Respondent No. 5 under her right has sold her share by the alleged registered sale deed dated 3.7.1997 to Respondent No. 3. The Respondent No. 1 did not have any authority to demand the partition of the same. It is also stated that Respondent No. 5 has not sold any excess land contrary to her share. It is accepted by them that Respondent No. 4 and 6 to 8 have also sold three acres of aforesaid land to Appellant/Defendant No. 9 Golman by registered sale deed dated 29.12.1996 and prayer for dismissal of the suit is made.

In the separate written statement of Appellant/Defendant No. 9 it is stated that on 19.6.1994 in presence of the Panchayat the partition of aforesaid land had taken place between Respondent No. 1, 2 and 4 to 8 the same is admitted by Respondent No. 1. Since the date of such partition they were in the separate possession of their respective land. After such partition he purchased the land described in sale deed in consideration of Rs. 60,000/- from Respondent No. 4 and 6 to 8 whom such land was given in the partition. Now the Respondent No. 1/Plaintiff did not have any authority to make the prayer for re-partition of the land. It is also stated that Respondent No. 4 and 6 to 8 have not sold any excess land and prayed for dismissal of the suit.

The remaining Respondents/Defendants were remained ex-parte in the trial court.

In view of the pleadings of the parties after framing the issues and recording the evidence on appreciation of the same the trial court by holding that in above mentioned alleged partition Respondent No. 4 to 8 never left their right in the disputed property has held the factum of alleged partition dated 19.6.1994 has not been proved by either of the parties. It was also held that Respondent No. 1 Plaintiff could not prove that after death of Roniya she and Respondent No. 2 Omkar were remained in possession of the entire land. The sale deeds dated 3.7.97 and 29.12.1996 are not binding against the Respondent No. 1 Plaintiff. The Respondent No. 1/Plaintiff had the share of his father Mallu in the property in accordance with the provision of Hindu Succession Act as held in the finding of issue No. 4 whereby holding the entire land of ancestral, Mallu the father of Plaintiff being co-parcenor of the family with Roniya and Respondent No. 2 Omkar had 1/3 share in the entire land. The sale deed dated 3.7.97 and 29.12.1996 had not given any right and title to the Respondent No. 3 and the Appellant in the disputed property. In such premises the suit of the Respondent No. l was decreed with preliminary decree by the trial court on following terms.

(a) It is declared that Respondent No. 5 Kallo did not have any right to execute the sale deed dated 3.7.97, therefore, the title and right of the Respondent No. 1 over survey No. 400 area 0.235 hector is not adversely affected by this deed. Respondent No. 3 and Appellant had not got the land described in the above mentioned sale deed. The Respondent/Plaintiff is entitled to get fresh partition of the disputed entire land with the co-Bhoomiswamies.

(b) In such partition Respondent No. 4 to 8 each one are held to be entitled to get 1/7 share in 1/3 share of deceased Roniya in such property. Such Respondents had sold more land in comparison of their share to the Respondent No. 3 and Appellant, so such purchaser could be the owner in such property only till the share of Respondent No. 5 and 4 with 6 to 8 respectively.

(c) The perpetual injunction is issued in favour of Respondent No. 1 restraining the Respondent No. 2 to 8 and Appellant themselves or through other person not to interfere in the right and possession of the Respondent No. 1 with respect of disputed land bearing survey No. 319/1 area 0.891 hector and survey No. 400 area 0.235 hector.

(d) The Respondent No. 1/Plaintiff and the Defendants Respondent No. 2 and 4 to 8 were directed to initiate the proceedings for partition and their separate possession under Order 20 Rule 18 r/w Section 54 of CPC in the revenue court.

Being dissatisfied from the aforesaid judgment and decree of the trial Court, the Appellant/Defendant No. 9 herein filed the appeal before the subordinate appellate court. On consideration, by affirming the same such appeal has been dismissed, on which the Appellant has come forward to this Court.

Shri Sudeep Chaterjee, learned appearing counsel of the Appellant after taking me through pleadings, evidence and exhibited documents on record argued that in view of admission of Respondent No. 1 in her plaint that on earlier occasion with respect of disputed land the partition took place between the parties on 19.6.1994, in which the Respondent No. 4 to 8 had left their share in the aforesaid property in favour of the Respondent No. 1 and 2. Hence, there was no occasion before the courts below for holding that no partition had taken place between the parties. In continuation, he said that in view of settled proposition of law once partition had taken place between the co-owners of the disputed property then the decree for subsequent partition being not permissible under the law could not be passed by the courts below. In such premises, the impugned decree of the courts below being contrary to the pleadings of the parties and the settled legal position is not sustainable under the law. He also said that in view of aforesaid admission of Respondent No. 1 in her plaint, there was no necessity to prove the earlier partition by producing the dead of partition written between them. In continuation he said that in any case the Appellant had purchased the land from Respondent No. 5, which was given to her in the aforesaid partition and therefore, with respect of such land, purchased by the Appellant, the courts below could not pass the impugned decree against him and prayed for admission of this appeal keeping in view of the aforesaid admission of the Respondent No. 1 on the proposed substantial question of law mentioned in the appeal memo.

Having heard the counsel, I have carefully examined the records of the courts below and perused the impugned judgments. It is apparent on record that long before the disputed entire land was inherited by one Roniya, the father of Respondent No. 4 to 8 and the grand father of Respondent No. 1 and 2 in family partition and the same was recorded in his name. Subsequent to his death on carrying out the mutation in the record of rights except the name of Respondent No. 1, the daughter and heirs of Mallu the predeceased son of Roniya, the name of all the above mentioned heirs Respondent No. 4 to 8 and Respondent No. 2 Omkar the son of Bhuta the another son of Roniya was recorded jointly as Bhoomiswami. As per concurrent findings of the courts below even after taking into consideration the aforesaid undisputed fact that the aforesaid property being ancestral was belonging to Hindu Joint Family was inherited by Roniya for his branch (As capita) in which Bhuta and Mallu his sons (the father of Respondent No. 2 and 1 respectively) being co-parcner of the family each one had 1/3 - 1/3 share with Roniya and after death of Roniya only his 1/3 share was inherited by his natural heir the sons Bhuta, Mallu and the daughters Respondent No. 4 to 8,and in the absence Bhuta and Mallu on account of their death to their successor the Respondent No. 2 and 1 respectively. In such premises the courts below have decided the share of the parties in aforesaid disputed land holding the Respondent No. 4 to 8 along with Respondent No. 1 and 2, each of them are entitled to get 1/7 share in 1/3 share of Roniya in entire property while besides the aforesaid share the Respondent No. 1-Plaintiff under the title of there predecessor namely Bhuta and Mallu are the co-parceners of the family entitled 1/3 - 1/3 share in the entire land.

Keeping in view the proposition of the Hindu Law that on acquisition of ancestral property in family partition by Karta of the branch as capita his sons being co-parcner with him in the family had their vested right in such property. After going through the evidence led by the parties I have found that the findings of the courts below holding the respective share of the parties in the disputed land is in consonance of the evidence and also in accordance with the above mentioned principle of the Hindu Law. Contrary to it. I am not apprised with any legal position by the Appellant''s counsel showing the courts below have committed any error in deciding the shares of the parties by the judgments and decree impugned.

It is settled proposition of Hindu Law that whereas the ancestral property is inherited by the Karta or member of any branch of such family in his name even then the other male member of his branch the sons being co-parcner and if they are/he is predeceased then their/his natural heirs had their vested right in such property and on arising the occasion the same be partitioned between them according to their share as co-parceners of such family.

In view of the aforesaid the concurrent approach of the courts below, holding that in the life time of Roniya his sons Bhuta and Mallu the father of Respondent No. 2 and 1 respectively each of them had 1/3 share in the aforesaid entire land with the Roniya and after death of Roniya only his 1/3 share was inherited by the branch of his sons said Bhuta and Mallu and the Respondent No. 4 to 8. In such premises the concurrent findings of the courts below holding the Respondent No. 5 to 8 had not any authority to sale more then their aforesaid share i.e. 1/21 each (1/7 out of the 1/3 of total land) to the Respondent No. 3 and Appellant/Defendant No. 9 by way of above sale deed, appears to be based on proper appreciation of evidence and also in conformity with law. Pursuant to it, the approach of the courts below holding the above mentioned sale deeds executed by Respondent No. 5 in favour of Respondent No. 3 and by Respondent No. 4 with 6 to 8 in favour of Appellant are not binding against the Respondent No. 1 till the extent of her right as stated above could not be said contrary to law in any manner. In such premises this appeal does not have any material or substance giving rise to any substantial question of law requiring any consideration at this stage u/s 100 of Code of Civil Procedure.

So far the arguments advanced by the Appellant''s counsel that in view of earlier partition of the parties which had taken place on 19.6.1994 at subsequent stage by decreeing the suit of the Respondent No. 1 the courts below did not have any authority to pass the decree for repartition by holding the separate share of the parties with respect of the disputed land, specially when such partition was admitted by Respondent No. 1 in her plaint is concerned, firstly the concurrent findings of the courts below holding the alleged partition of 19.6.1994 has not been proved by either of the parties by any document or other admissible evidence, based on appreciation of evidence being finding of fact could not be interfered at the stage of appeal u/s 100 of CPC and secondly in view of the settled proposition of law that whenever anything is in writing between the parties and such document in original is neither produced nor proved by admissible evidence then mere on the basis of pleadings or oral evidence no inference could be drawn that some earlier partition had taken place between the parties. In such premises the arguments of the Appellant''s counsel in this regard has not appealed me and in such premises the concurrent findings of the courts below do not require any interference at this stage by framing any substantial question of law u/s 100 of Code of Civil Procedure.

Apart the above the concurrent approach of the courts below based on appreciation of evidence holding that no partition had taken place between the parties being findings of facts could not be interfered at this stage u/s 100 of Code of Civil Procedure. My such view is fully fortified with the principle laid down by the Apex Court in the matter of E. Mahboob Saheb Vs. N. Sabbarayan Chowdhary and Others, in which it was held that the concurrent findings on the question of partition being finding of fact is not interfereable u/s 100 of Code of Civil Procedure. So on this question also I have not found any substance in the matter giving rise to any substantial question of law.

Even otherwise for the sake of argument if the submission of the Appellant''s counsel regarding earlier partition of 1994 had taken into consideration by the courts below, even then according to such partition as stated by Respondent No. 1/Plaintiff in the plaint that the Respondent No. 4 to 8 had left their share of the property in favour of Respondent No. 1 and 2 then the Appellant/Defendant No. 9 who acquired the disputed land from Respondent No. 4 and 6 to 8 through registered sale deed dated 29.12.1996 had not acquired any right or title in the property as such Respondent No. 4 and 6 to 8 had left their share in favour of Respondent No. 1 and 2 in such alleged admitted partition. In such premises also this appeal could not be admitted at the instance of the Appellant by framing any substantial question of law.

In view of the aforesaid it is apparent that courts below keeping in view the entire scenario and circumstance of the case, have decided the share of the parties in accordance with the principle of the Hindu Law and the settled proposition of it and directed the parties to get partitioned accordingly from the revenue authority under Order 20 Rule 18 r/w Section 54 of Code of Civil Procedure. Therefore, in such premises also I have not found any material or substance in the appeal giving rise to any substantial question of law at this stage.

Apart the above the concurrent findings of the courts below based on proper appreciation of evidence being finding of fact, howsoever the same are erroneous, in view of law laid down by the Apex Court in the matter of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, could not be interfered by re-appreciation of the evidence at this stage u/s 100 of Code of Civil Procedure.

Therefore, this appeal being devoid of any substance giving rise to any substantial question of law requiring any consideration at this stage u/s 100 of CPC deserves to be and is hereby dismissed at the stage of motion hearing.

The appeal is dismissed as indicated above.