Khemchand and Others vs Baliram and Another

A.K. Shrivastava, J.

This second appeal has been filed by the plaintiffs having lost from the two Courts below. The original plaintiffs are Khemchand, Hemraj, Likhiram and Mst.Matubai, wd/o Kashiram Pawar. During the pendency of this appeal Mst. Matulbai-appellant No.4 died and her L.Rs. have. been brought on record.

The plaintiffs filed suit that the agricultural land situated in Village Gajandoh, description whereof has been mentioned in para-2 of the plaint, is in the Bhumiswami right of plaintiffs and the defendants had no right, title and interest in the said land. In the alternative, it has also been prayed that if the Courts comes to the conclusion that there was no partition, in that case the property situated in village Gajandoh and village Umreth be partitioned between the plaintiffs and defendants.

The pedigree of the parties is as under:

Grand-father of plaintiff & Defendant

Plaintiffs No. 1, 2 and 3 are the sons of Kashiram and plaintiff No.4-Matulbai is the widow of Kashiram. Defendant-Baliram is the son of Hariram who was the real brother of Kashiram. According to plaint averments, the property situated in village Gajandoh and Umreth was of Ronya. In case defendant proves that the property situated in village Gajandoh is joint Hindu family property of plaintiffs and defendants, in that case plaintiffs are also entitled to declare 1/2 share in the property situated in village Umreth.

The defendant No. 1 denied the plaint averments and pleaded that Ronya was having land only in village Gajandoh. It has been specifically denied that Ronya was having any land in village Umreth. Indeed, the property situated in village Umreth is the self-acquired property of his father Hariram. The property situated in village Gajandoh is ancestral property and it has not been partitioned. The defendant No. 1 being son of Hariram is entitled for half share of the property situated in village Gajandoh. It has been further pleaded by the defendant that in the revenue papers, the property situated in village Gajandoh has been shown in the joint names of Hariram and Kashiram.

By replying the averments of the plaintiff in regard to acquisition of Bhumiswami right by way of adverse possession, the same has been denied and it has been pleaded that indeed defendant No. 1 is having adverse possession and he has acquired right, title and interest of Bhumiswami by adverse possession.

The trial Court framed necessary issues and after recording the evidence of parties, dismissed the suit holding as under:

(i) Partition did not take effect between Kashiram and Hariram;

(ii) Ronya (father of Kashiram and Hariram) did not purchase any property of village Umreth and gave it to Hariram;

(iii)The plaintiffs are not having any adverse possession over the suit property.

The plaintiffs being dissatisfied by the judgment and decree of the trial Court, assailed the judgment by filing an appeal before the first appellate Court which has been dismissed by the impugned judgment and decree. Hence this second appeal has been preferred by the appellants.

This Court on 20/7/1990 admitted the appeal on the following substantial questions of law :

(i) Whether the learned Courts below are correct in holding that the suit land, which is situated at village Gajandoh is a Joint Hindu Family property, because it is recorded in the name of the appellants and respondent No. 1 ?

(ii) Whether the learned Courts below are correct in holding the land which is situated at village Umreth is not a Joint Hindu Family property because it was mentioned in the name of Hariram ? Perusal of the record of the respondent No. 1 did not prove that this land was self-acquired property of his father ?

(iii) Whether the learned Courts below are correct in holding that the principles of law of adverse possession are not applied in case of Joint Family Property ?

It has been argued by Shri Paliwal, learned counsel for the appellants, that the entire suit property is of Ronya and it was never partitioned and, therefore, the plaintiffs are entitled to get half share. Even if it is held that the property was partitioned, since the plaintiffs are possessing the suit property, they have acquired right by adverse possession and, therefore, the two Courts below erred in substantial error of law in dismissing the suit.

Refuting the submissions of learned counsel for the appellants, it has been argued by Shri Baghel, learned counsel for respondent No. 1, that there is no law as such that if the family is joint, the property is also held to be of joint Hindu family. By placing reliance on Article 222 of Mulla''s Hindu Law, it has been contended that a Hindu, even if he be joint, may possess separate property and such property belongs exclusively to him and, therefore, since the property of village Umreth is the self-acquired property of Hariram and is not joint Hindu family property, hence plaintiffs are not having any right, title and interest therein. It has been further contended that the property situated at Village Gajandoh is joint Hindu family property and it has been rightly so held by the learned two Courts below. According to learned counsel, the two Courts below after marshaling oral and documentary evidence had arrived at such findings which are pure findings of fact and these findings cannot be assailed in second appeal, therefore, this. appeal be dismissed.

Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed.

REGARDING SUBSTANTIAL QUESTION OF LAW NO. 1:

The two Courts below on the basis of the revenue record and the oral evidence came to hold that the agricultural land situated in village Gajandoh is joint Hindu Family property. It is no more in dispute that this property is recorded in the name of Hariram and Kashiram who are real brothers and are the sons of Ronya. Thus, the said property is joint property of Kashiram and Hariram. The plaintiffs are the heirs of Kashiram while defendant No. 1-Baiiram is the heir of Hariram and if that is the position, the view of this court is that the plaintiffs and defendant No. 1 are having half share each in the property situated at village-Gajandoh. Meaning thereby all the plaintiffs are having half share and defendant No. 1-Baliram is having half share in the said property. The khasra entry is having presumptive value of its correctness as envisaged u/s 117 of M.P. Land Revenue Code. The plaintiffs never challenged the correctness of these khasra entries wherein the names of Kashiram and Hariram are jointly recorded. These entires are in existence since long and, therefore, the two Courts below have rightly arrived at a conclusion on the basis of the documentary and oral evidence that the property of Gajandoh remain joint property of Kashiram and Hariram. On behalf of plaintiffs RW.4 Mst.Matulbai who is plaintiff No.4 and widow of Kashiram was examined and she has categorically stated in her testimony in para-4 that the land situated in village Gajandoh is recorded in the name of Kishiram and Hariram.

Substantial question of law No. 1 is, thus, answered that the land situated in village Gajandoh is joint Hindu family property and it has been rightly so held by two Courts below. The plaintiffs are having V2 share and defendant No.l is having 1/2 share in the said property.

REGARDING SUBSTANTIAL QUESTION OF LAW NO.2 :

Admittedly, the property situated in village Umreth is in the name of Hariram. If this property would have been of Ronya (father of Kashiram and Hariram) ordinarily it would have been in the name of Ronya. I do not find any merit in the contention of Shri Paliwal, learned counsel for the appellants that Ronya after separating his son Hariram purchased the property in the name of Hariram in village Umreth and gave it to him. This contention has been negatived by two Courts below. The finding arrived at by two Courts below in that regard is a pure finding of fact and cannot be assailed in the second appeal. There is substance in the contention of Shri Baghel, learned counsel for respondent No. 1, that merely because the family is joint, there is no presumption of joint property also. According to Article 222 of Mulla''s Hindu Law, a Hindu, even if he be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquire any interest in it by birth. On his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparcener. Merely because the family is joint would not mean that the property is also joint. The two Courts below after appreciating the evidence came to hold that the property situated in village Umreth is not joint Hindu family property but it is property of Hariram. I do not find any illegality in the findings of the two Courts below. The substantial question of Law No.2 is thus answered accordingly.

REGARDING SUBSTANTIAL QUESTION OF LAW NO. 3:

It is well settled in law that if the property is of joint Hindu family property, each and every coparcener is having right, title and interest as well as his possession on every inch of the said property. Unless and until there is a specific allegation in regard to the ouster of a coparcener disentitling him by a declaration by another coparcener that he is not having any right, title and interest in the property and he is dispossessed and ousted, there cannot be any adverse possession against a coparcener. Since the two courts below after appreciating the evidence have nagatived the contention which is a pure finding of fact, I am of the view that the two Courts below did not err in arriving at a finding that there was no ouster. Substantial question of law No.3 is answered accordingly.

For the reasons, stated hereinabove, I do not find any merit in this appeal and the same is hereby dismissed without any order as to costs.