Imarti Bai and Others vs Narayan and Others

Rohit Arya, J.

This appeal at the instance of defendants'' under section 100 CPC is directed against the judgment and decree dated 12/05/2008 passed in civil appeal No. 10A/2008 by I Additional District Judge, Shivpuri District Shivpuri, partially allowing the appeal and modified the decree thereby affirmed the judgment and decree passed in civil suit No. 24A/2006 by Additional Civil Judge, Class-II, Kolaras, District Shivpuri to the extent indicated in paragraph 27(1) of the impugned judgment and decree passed by the first appellate Court thereupon.

Following substantial question of law as proposed by counsel for the appellants is addressed:

"Whether the first appellate Court was justified having partially modified the judgment and decree passed by the trial Court?"

Plaintiff filed a suit for declaration and possession with the relief that agricultural land falling in survey No. 52 admeasuring 0.490 hectare and survey No. 99 admeasuring 0.458 hectare situated in village Kolaras respectively be declared to be of ownership of the plaintiff and plaintiff be held entitled for recovery of possession from the defendants''.

Trial Court decreed the suit.

First appellate Court has modified the decree passed by the trial Court to the effect that the plaintiff is held entitled to and declared to be owner of half of the area out of 0.490 hectare falling in survey No. 52 and the entire area being 0.458 hectare falling in survey No. 99 (hereinafter referred to as the "suit land"). Consequently, the plaintiff held entitled to recover possession thereof. However, it is observed that defendants'' were entitled for half of the area out of 0.490 hectare falling in survey No. 52 and the defendants'' were held entitled to take legal possession from the plaintiff to that extent only and hand over possession of the entire area, i.e., 0.458 hectare falling in survey No. 99 to the plaintiff.

Facts as pleaded in the plaint are to the effect that biological father of the plaintiff, Narayan is Bhagwanlal s/o Mukundi. Mukundi had two more brothers, namely; Balua and Dharma. Balua had no children. Therefore, Balua adopted the plaintiff when he was at the age of 2 years. Thereafter, plaintiff was looked after and brought up by his adopted father, Balua. Plaintiff, Naryan being son has looked after Balua. Consequent upon death of Balua, the plaintiff succeeded to the agricultural land of 0.490 hectare falling in survey No. 52 and 0.458 hectare falling in survey No. 99 situated in village Kolaras which was of the ownership and possession of late Balua. It is further pleaded that initially only to the extent of half of the land falling in survey No. 52 was recorded in the name of Balua but at a later stage, Balua had purchased the remaining half of the area in survey No. 52 from its co-owner, Kashiram. As such, the entire agricultural land falling in survey No. 52 was of the ownership of Balua. This fact came to the knowledge of the plaintiff in the year 2006, therefore, he filed a suit for declaration and recovery of possession against the defendants''.

Defendants'' No. 1 to 7 have filed joint written statement and defendants'' No. 8 to 10 have filed separate written statements. Defendants'' though admitted that natural father of the plaintiff was Baghwanlal but it is denied that the plaintiff was adopted by Balua. It is denied that suit lands were of the ownership and possession of Balua. It is also denied that Balua had purchased half share of the agricultural land falling in survey No. 52 from Kashiram as alleged. It is also denied that plaintiff succeeded to the suit land being adopted son of late Balua.

It is contended by defendants'' that in fact the suit land had fallen to the share of Dharma in mutual partition amongst brothers. Thereafter, Dharma and Kashiram by separate registered sale deeds dated 24/06/1971 had sold the suit land to Manoharlal and also delivered the possession. Since then, Manoharlal is in possession of the suit land and doing cultivation. Based upon the aforesaid sale deeds, the suit land is recorded in the name of Manoharlal in the revenue record. After death of Manoharlal, the same is succeeded by his legal heirs/defendants''. It is submitted that after such long lapse of time, in fact, the suit is barred by time. With the aforesaid pleadings, suit was prayed to be dismissed.

Trial Court based upon the aforesaid pleadings had framed issues and allowed parties to lead evidence. Trial Court upon critical evaluation of the evidence brought on record decreed the suit.

Against the judgment and decree passed by the trial Court, first appeal was filed. During pendency of the appeal, the appellants''/defendants'' have filed an application under Order XLI Rule 27 CPC. First appellate Court has addressed on 08 questions framed in paragraph 10 of the impugned judgment.

While considering the aforesaid application filed under Order XLI Rule 27 CPC, the first appellate Court has found that the documents sought to bring on record bears the name of father of plaintiff as Bhagwanlal and not Balua on the ground that these documents were not in the knowledge of the defendants'', therefore, seeks leave of the Court to bring those documents on record. First appellate Court has not accepted the assertion that the aforesaid documents were not in the knowledge of the defendants'' and negated the same. First appellate Court has further observed that reliable evidence is already on record as regards parentage of the plaintiff and found that documents sought to be brought on record are nothing but to fill-up the lacunae of the evidence lead before the trial Court by the defendants'' in that behalf. Even otherwise, it has been found that the fact as regards adoption of the plaintiff by Balua when he was 2/3 years old is not only proved by the plaintiff''s witnesses, Smt. Chandan Bai and Halku but is also well-supported by the judgments and decrees rendered by the civil Courts'' in civil suit No. 80A/1991 dated 28/11/1995 (exhibit P/9) and civil suit No. 7A/2000 dated 27/03/2001 (exhibit P/10). In both these suits, the fact that plaintiff is adopted by Balua has been found proved.

In exhibit P/9 [civil suit No. 80A/1991 (Bhaiyyalal and otrs v. Bhagwanlal and others)], the plaintiff, Narayan and Manoharlal s/o Mukundi were arrayed as defendants''. All the defendants'' in that suit had filed written statement wherein it has been stated that the present plaintiff, Narayan is adopted son of Balua and is the sole successor to the estate left behind by Balua. The defendants''/appellants'' in the present suit are wife and sons of late Manoharlal. Therefore, there was no dispute amongst the defendants'' that the plaintiff is the adopted son of Balua. Written statement was also filed to the same effect. As a matter of fact, issue No. 3 framed in that suit related to status of the plaintiff, Narayan as adopted son of Balua was determined. Accordingly, Narayan was held to be entitled to succeed to the property left behind by Balua as his adopted son. Likewise, in civil suit No. 7A/2000 (exhibit P/10), the defendants''/appellants'' joining hands with the plaintiff, Narayan have filed a suit against Dharma and others wherein there is a clear averment in the plaint that Narayan is son of Balua. In this suit also, issue No. 2 was framed as regards status of the plaintiff, Narayan and proved that the plaintiff is adopted son of Balua. On the basis of the aforesaid clinching evidence on record, the first appellate Court has answered the question in favour of the plaintiff holding him as adopted son of Balua.

In view of the aforesaid judicial declaration on record as exhibits P/9 and P/10 (supra), the defendants''/appellants'' were held estopped from questioning status of the plaintiff as regards his parentage.

Besides, the first appellate Court has also adverted to the oral evidence on record as regards ceremonies performed at the time of adoption of plaintiff, Narayan by Balua and concluded in favour of the plaintiff that he is adopted son of Balua.

In paragraph 16 of the impugned judgment, the first appellate Court has discussed the documentary evidence as regards suit land and has found that in khasrapanchshala; exhibits P/1, P/2 and D/6 to D/9 as regards agricultural land falling in survey No. 52, half of the land was recorded in the name of Balua and entire agricultural land falling in survey No. 99 was recorded of the ownership and possession of Balua.

First appellate Court has rejected the claim of the plaintiff that remaining half share of the land out of survey No. 52 was purchased by Balua from Kashiram for want of any documentary evidence in that behalf. As such, it is held that the half share out of survey No. 52 and the entire suit land in survey No. 99 was of the ownership of Balua.

First appellate Court has rejected the assertion of the defendants'' that the suit land was of the ownership of Balua, Dharma and Mukundi. There was partition amongst Bhagwanlal s/o Mukundi (after death of Mukundi), Dharma and Balua. Balua had given his share of agricultural land to the temple. Dharma had retained the agricultural land of his share and transferred the same in favour of Manoharlal. After death of Manoharlal, his wife and sons, the defendants''/appellants'' came into possession of the suit land. As such, the suit land became ownership and possession of the defendants''. The sale deeds dated 24/06/1971, exhibits D/3 and D/5 are brought on record in support of the aforesaid submission. It is submitted that suit land falling in survey No. 52 was transferred by Dharma and co-owner, Kashiram also and the suit land falling in survey No. 99 was transferred by Dharma by the aforesaid sale deeds.

First appellate Court in paragraphs 19 and 20 of the impugned judgment has critically examined the evidence on record and has found that the oral evidence of Ganeshram (D.W.1) is merely based on hearsay as regards partition amongst Balua, Dharma and Mukundi. Likewise, statement of Harcharan (D.W.2) is also based on hearsay. There is no direct evidence in support of the assertion of partition as claimed by defendants''. There is also no documentary evidence as well in support thereof. In the revenue record, like khasrapanchshala, etc., the name of Balua was only recorded and not Dharma alongwith him. The name of Dharma was recorded only after death of Balua. Under such circumstances, Dharma claimed to have succeeded to the suit property only after death of Balua. With the aforesaid evaluation of the evidence on record, the first appellate Court concurred with the findings of the trial Court that there was no partition of suit property between Balua and Dharma.

Consequently, it Is held that Dharma had no title to the suit land. Therefore, the alleged sale deeds dated 24/06/1971, exhibits D/3 and D/5 executed by Dharma in favour of Manoharlal, the predecessor of the defendants''/appellants'' in respect of the suit land had been found to be of no consequence for want of title in his favour. Dharma has been held to be not entitled to succeed to the estate of Balua for the reason that plaintiff, Narayan is the adopted son of Balua. After death of Balua under Hindu law, the plaintiff, Narayan is entitled to succeed to the estate of late Balua and not Dharma. Therefore, the suit land to the extent of half share in survey No. 52 by Kashiram in favour of Manoharlal, the predecessor of the defendants''/appellants'' held to be validly transferred. The remaining half share in survey No. 52 and the entire area falling in survey No. 99, the plaintiff held to be entitled to as adopted son of Balua. First appellate Court addressed upon the issue as regards limitation in paragraphs 22, 23 and 24 of the impugned judgment. Defendants'' have asserted that they are in possession of the suit land since 1971 and claimed to have purchased the suit property vide registered sale deeds dated 24/06/1971, exhibits D/3 and D/5. Hence, their possession over the suit property is more than 30 years and the same was admittedly in the knowledge of the plaintiff. Therefore, not only suit is barred by time but also the plaintiff is not entitled to recover the possession after lapse of 12 years. First appellate Court has found that the alleged sale deeds dated 24/06/1971, exhibits D/3 and D/5 are legally unsustainable as Dharma has been held to have no title to the suit land and, therefore, no title can be transferred in favour of defendants'' vide exhibits D/3 and D/5. As regards, assertion of defendants'' that they are in continuous possession for more than 30 years and plaintiff has filed the suit admittedly much beyond 12 years statutory period under Article 65 of the Limitation Act, first appellate Court has found that the entire defence and statement of the defendants'' is based on the strength of exhibits D/3 and D/5, i.e., acquisition of title by transfer and not on the strength of perfection of title by adverse possession. As such, plea of exclusion to recover possession of the suit land on the strength that the defendants'' have acquired title by adverse possession was found to be not sustainable for want of pleadings in that behalf. Under such circumstances, first appellate Court has found that the trial Court has not committed any error of law or fact while rejecting the plea that the suit was barred by time. In paragraph 24, the first appellate Court has referred to pleadings in the plaint to the effect that plaintiff was minor in the year 1971 and he had no knowledge of the aforesaid fact that the suit land was of the ownership of his adopted father, Balua. No sooner, he acquired the knowledge in the year, 2006, he has filed the suit. Under such circumstances, the trial Court did not commit any error that for want of knowledge as regards ownership of the suit land, the plaintiff has filed the suit in the year 2006. In fact, the defendants'' have maintained the stand that the suit land was never of the ownership of Balua to that of Dharma. Under such circumstances, concurred with the finding of the trial Court that the suit was well within time.

First appellate Court has also found that Article 65 of the Limitation Act has no application for the reason that 12 years period has to be reckoned from the date, the plaintiff acquires knowledge of the possession of the defendants'' hostile to him. In the instant case, the defendants'' have neither in the written statement nor in the evidence asserted that they have acquired title by adverse possession but based their claim upon sale deeds dated 24/06/1971, exhibits D/3 and D/5. Therefore, the suit cannot be said to be barred by time under Article 65 of the Limitation Act.

With the aforesaid findings, first appellate Court partially modified the decree passed by the trial Court to the extent indicated hereinabove.

Having heard counsel for the parties, this Court is of the view that the first appellate Court has considered the entire oral and documentary evidence on record in impeccable manner. Plaintiff has been concurrently held to be adopted son of late Balua based on oral evidence and the documentary evidence, viz., exhibits P/9 and P/10, the judgments of the civil Courts in civil suit Nos. 80A/1991 and 7A/2000 respectively. That apart, even in later suit being suit No. 7A/2000, the defendants'' themselves were party alongwith plaintiff whereunder there was a common plea that the plaintiff is adopted son of late Balua. Under such circumstances, the defendants'' have rightly been estopped from taking plea that the plaintiff is not adopted son of late Balua.

Both the Courts below have held that there was neither any reliable oral evidence nor documentary evidence to establish that the partition had taken place amongst Balu, Dharma and Bhagwanlal son of Mukundi (after death of Mukundi). The name of Dharma was never recorded in the revenue record alongwith Balua during his life time. Instead; only after death of Balua, the name of Dharma is shown to have been recorded in place of Balua. There was no other evidence either as regards partition or title in favour of Dharma in respect of the suit land. Under such circumstances, the alleged sale deeds dated 24/06/1971, exhibits D/3 and D/5 claimed to have been executed by Dharma in favour of Manoharlal, the predecessor of defendants'' have been rightly found to be of no consequence for want of title by Dharma. As such, title of the suit land to the extent indicated in the impugned judgment by the first appellate Court cannot be said to have been transferred in favour of the defendants'' vide exhibits D/3 and D/5.

First appellate Court was justified having held that to the extent of half share of the agricultural land falling in survey No. 52 owned by Kashiram and transferred in favour of Manoharlal, the predecessor of the defendants'' was a valid transfer and to that extent of agricultural land falling in survey No. 52 of the suit land, the defendants'' were held entitled for the suit land. As the remaining suit land falling in survey No. 52 and the entire land falling in survey No. 99 has been found to be of the ownership of Balua. The plaintiff having been held to be adopted son of Balu, therefore, both the Courts below have decreed the suit of the plaintiff as indicated in the judgment by the first appellate Court. There is no evidence to dislodge the aforesaid findings of Courts below.

Admittedly, defendants'' have averred in the written statement that on account of execution of sale deeds dated 24/06/1971, exhibits D/3 and D/5, they have acquired title to the suit land but they have failed to establish entitlement of Dharma and no title can be said to be transferred by Dharma in favour of defendants''.

Hence, defendants'' claim to the suit land on the strength of the aforesaid sale deeds dated 24/06/1971, exhibits D/3 and D/5 has been rightly found to be of no consequence. There is no plea in the written statement that by long possession over the suit land, they have perfected title by adverse possession to the suit land. As such, the plea of adverse possession has been rightly not permitted to set up against the plaintiff for want of pleadings.

Both the Courts below having carefully examined the pleadings and evidence on record found that even plaintiff had no knowledge that the suit land was of the ownership of Balua in the year 1971, the year in which the alleged sale deeds (exhibits D/3 and D/5) were executed by Dharma and Kashiram in favour of Manoharlal, the predecessor of the defendants''. Besides, the fact that the plaintiff was minor at that time. Defendants'' have never stated in the written statement that the suit land was of the ownership of Balua and plaintiff had knowledge of the same fact. In fact, the defendants'' have pleaded the suit land was of the ownership of Dharma. Therefore, there is no reason to disbelieve the plea of the plaintiff that he had no knowledge that the suit land is of the ownership of Balua and the same fact came to his knowledge only in the year, 2006 when he filed the suit.

Article 65 under Part V- suits relating to immovable property of the schedule reads as under:

Aforesaid Article 65 of the Limitation Act provides for limitation of 12 years for possession of immovable property. Reckoning of the aforesaid period from the date when the possession of defendant becomes adverse to the plaintiff. As such, in the opinion of this Court, Article 65 has no application to the facts in hand and both the Courts below were justified having held so. As indicated above, there is no plea of adverse possession in the written statement. Hence, no claim is set up in that behalf by the defendants''. The claim of the defendants'' to the suit land is sale deeds dated 24/06/1971, exhibits D/3 and D/5 which have been found to be no consequence for want of title by Dharma to transfer the same in favour of defendants''. As indicated above, the plaintiff himself had no knowledge that the suit land was of the ownership of his adopted father, late Balua, however, he acquired the knowledge only in the year 2006 whereupon he has filed the instant suit. The defendants'' have never stated that the suit land is of the ownership of Balua to that of Dharma. Therefore, the plea of adverse possession against the plaintiff in the opinion of this Court is totally misconceived and based on misplaced facts. Therefore, the plea has been rightly rejected by the first appellate Court.

In the facts and circumstances of the case, judgment and decree passed by the first appellate Court is fully justified and no interference is warranted under section 100 CPC.

Accordingly, the question of law is answered in the affirmative and in favour of plaintiff.

The appeal sans merit and is accordingly dismissed.