Hargovind vs Sagun Bai and Others

U.C. Maheshwari, J.—The appellant - defendant has challenged the sustainability of the judgment dated 23.1.2012 passed by the 1st Additional District Judge, Khurai, district Sagar in Civil Regular Appeal no. 18-A/2011 affirming the judgment and decree dated 29.10.2007 passed by IInd Civil Judge, Class-II, Khurai in Civil Original Suit No. 243-A/2005 decreeing the suit filed by one Sagun Bai, since deceased, the predecessor in title of respondent nos. 1 to 6 declaring her 1/3rd share in the disputed agricultural land against her brother and sister, the appellant and the respondent no. 7. The facts giving rise to this appeal in short are that abovenamed Sagun Bai the predecessor in title of respondent nos. 1 to 6 in her life time filed the suit against her real brother and appellant, defendant no. 1 and respondent no. 7 for declaring her 1/3rd share and separate possession of the agricultural land bearing survey no. 109/2, area 1.59 hectares situated at village Chamrua and survey no. 830 area 0.38 hectare situated at village Malasunedi, contending that land was recorded in the revenue record as Bhumiswami in the name of their father Sattu, son of Mohanlal, who passed away before ten years from the date of filing the suit, i.e. 20.12.2002. After the death of father, the name of appellant, Sagun Bai-plaintiff and respondent no. 7 was mutated in such revenue record as natural heir and legal representatives of said Sattu. In the month of December 2001 on obtaining copy of the revenue record, Sagun Bai - the principle plaintiff came to know that her name has been excluded from the revenue record. It is further stated that on some occasion, the appellant asking her to get loan for construction of a well on the field and brought her to court and had taken her thumb impression on some papers. It is also stated that she has never left her share in the above mentioned land of her father in favour of the appellant. She being uneducated woman does not understand the technicalities of law. With these pleadings the aforesaid suit was filed.

In the written statement of the appellant by denying the averments of the plaint, it is further sated that the disputed land was bought by one Ramchander but by practicing fraud said Sattu had got mutated on his name in the revenue record. It is also stated that since 21.10.1999, it was known to the principle plaintiff that her name has not been mutated and recorded in the revenue record as Bhoomiswami because she herself appeared in the Revenue Case No. 07-A-06/99/2000 and by submitting the affidavit left her share in favour of the appellant. Accordingly the plaintiff voluntarily released her share of the disputed property in favour of the appellant. In such premises, the plaintiff is not having any share in the disputed land. It is further stated that the principle plaintiff - Sagun Bai was never remained in possession of the disputed land pursuant to it, she could not be deemed to be the co-owner of the land with the appellant and, therefore, she did not have any right to get partition of the same. It is also stated that on account of his long possession of 25 years over the land, the alleged right of the plaintiff, if any in such property has also come to an end. With these pleadings, the prayer for dismissal of the suit is made.

On behalf of the respondent no. 7, neither the appearance was given nor written statement was filed, on which she was proceeded ex-parte in the trial court.

After framing the issues on aforesaid pleadings the evidence was recorded. On appreciation, the suit of the appellant was decreed by trial court holding her 1/3rd share in the disputed property with direction to give separate share. On challenging such decree by the appellant before the subordinate Appellate Court on consideration by dismissing his appeal, the decree of the trial court was affirmed, on which the appellant has come to this Court u/s 100 of the Code of Civil Procedure.

Shri Sandeep Koshta, learned appearing counsel for the appellant after taking me through the record of the trial court alongwith the judgment of the Courts below prayed to admit this appeal on the substantial questions of law proposed in the appeal memo.

Having heard the counsel at length, keeping in view their arguments, after perusing the record alongwith the impugned judgment, I am of the considered view that this appeal is not involving any question of law rather than substantial question of law for admission of this appeal.

Undisputedly, the disputed land was initially recorded in the name of said Sattu as Bhumiswami the father of the deceased - plaintiff as well as appellant and respondent no. 7, who passed away before ten years from the date of filing the suit. Subsequent to his death the deceased plaintiff-appellant and respondent no. 7 being his natural hears and legal representatives inherited such property jointly and became co-owners of the same. It is settled proposition of law that entry of the revenue record like khasra and khatoni could not treated to be document of title. Such record is prepared by the Revenue Department only for the purposes of saddling the liability to pay the revenue of such land and not for any other purpose. So in such premises, mutation proceeding or record could not be considered as document of title for any of the parties unless such right and title is proved by procedure prescribed under the law in this regard. After death of father in the lack of his any testamentary document like Will, his property shall be treated to be governed by the Hindu Succession Act and its Schedule, according to which deceased plaintiff - Sagun Bai, appellant and respondent no. 7 being daughter of the recorded Bhumiswami are entitled for equal share with the appellant, i.e. 1/3rd share and such right could not be excluded on the basis of the affidavit, as alleged sworn by the deceased plaintiff in favour of appellant. Such alleged affidavit could not be treated to be a document of Release or Relinquishment Deed of the property in favour of the appellant. As the same was neither drawn up as Relinquishment Deed by the deceased nor got registered by her with the Sub Registrar in accordance with the provision of Registration Act as well as Stamp Act.

It is undisputed fact and findings of the court below on record that the deceased - plaintiff had never relinquished her share in favour of the appellant by executing the registered Release Deed or other admissible document. The co-ownership property could not be released or transferred by one of the co-owners in favour of the other co-owners or others without documentation of the Release Deed or the document of transfer. Besides this, on the basis of revenue record or mutation proceeding drawn up by the Tahsildar, Ex. D-1 to D-5 also it could not have been assumed or deemed by the Courts below that the deceased - plaintiff had left her share in favour of the appellant - defendant no. 1. In such circumstances, at this stage of Second Appeal the approach of the trial court holding 1/3rd share of the plaintiff in the disputed land does not require any interference. My aforesaid approach is based on the principle laid down by the Apex Court in the matter of Jattu Ram Vs. Hakam Singh and others,

So far question raised by the appellant''s counsel that the appellant perfected the title on the share of the plaintiff by long or adverse possession is concerned, it is undisputed fact on record that before ten years from the date of filing the suit the aforesaid Sattu, father of the parties had passed away and thereafter at any point of time the appellant by declaring himself to be sole owner of the property in the knowledge of the deceased plaintiff against her right, title and share was not remained in uninterrupted possession of the property for twelve years, thus, in the lack of such material ingredients, it could not be assumed or deemed that appellant had perfected his right and title over the disputed property against the deceased - plaintiff by adverse possession. Even otherwise, it is settled proposition of law that co-owner of the property if was remained in possession of the co-ownership property, then such possession of the co-owner is also deemed on behalf of other co-owners as trustee of them. So in such premises, also it could not be said that the appellant had perfected his right on the share of the property of deceased - plaintiff. Besides this, as per settled prepositions the concurrent findings on the question of adverse possession being finding of fact could not be interfered u/s 100 of the CPC at the stage of second appeal, as laid down by this Court in the matter of Ram Singh Vs. Kashiram reported in 1997, R.N. 195.

In the lack of any registered document of the Release Deed as per requirement of the Registration Act merely on the basis of affidavit, (Ex. D-6) filed in the Court of Tahsildar, it could not be deemed or assumed that the deceased - plaintiff had relinquished her share in the disputed property in favour of the appellant. In view of provision of Section 35 of the Stamp Act, if the document is not drawn up on the proper stamp duty and the same is not registered under the prescribed procedure, then such document is inadmissible under the law and in such premises, also on the basis of affidavit, Ex. D-6 the appellant was not entitled to get any benefit against the share of deceased - plaintiff in the property in dispute.

So far the arguments of the appellant''s counsel that the aforesaid affidavit, Ex. D/6 could have been relied on by the trial court after imposition of the penalty in accordance with the provisions of the Stamp Act and the Registration Act is concerned, firstly the appellant could not be permitted to raise this question first time at the stage of second appeal when the same was not raised before any of the Courts below. Secondly the alleged affidavit filed in some revenue proceeding could not be treated to be the document of relinquishment of the disputed property and, therefore, the Courts below could not consider the same as admissible document even by imposition of penalty treating such document to be a Relinquish Deed. So this question is also not giving rise any substantial question of law requiring consideration u/s 100 of the Code of Civil Procedure. In view of aforesaid discussion, I have not found any question of law rather than substantial question of law requiring any consideration or interference in the judgment impugned u/s 100 of the CPC at the stage of second appeal. Consequently this appeal being devoid of any merits is hereby dismissed at the stage of motion hearing.