Mohd. Yunus and Another vs Mahboob Bi and Others

K. Ramanna, J.—The appellants/defendants 1 and 2 have come up with this appeal challenging the judgment and decree dated 13-3-1995 passed by the Principal Munsiff, Bidar which has been confirmed by the Principal Civil Judge (Senior Division) in R.A. No. 26 of 1995, dated 19-3-2002.

For the sake of convenience, the parties will be referred to by their ranking before the Trial Court.

The brief facts of the case are that the plaintiffs have filed the suit before Trial Court against defendants seeking for the relief of declaration and perpetual injunction in respect of suit house bearing Panchayat No. 1/63 situated at Kumbarvada Village, Bidar Taluk and District. According to plaintiffs, plaintiff 1 is the mother of plaintiffs 2 to 4, defendant 1 is the sister''s son of plaintiff 1 and defendant 2 is the husband of defendant l''s sister. According to plaintiffs, they are the absolute owners and possessors of the suit house; that the husband of plaintiff 1-late Abdul Khader and defendant 3-Rasool Khan have purchased the suit house bearing Nos. 1/63 and 1/64 jointly from one Manikappa Koli; that after the death of Abdul Khader oral partition took place between defendant 3 and plaintiff 1 with regard to the said purchased house; that as per the said partition the suit House No. 1/63 has been allotted to the plaintiffs share and House No. 1/64 was allotted to defendant 3-Rasool Khan; that after partition a memorandum of partition was prepared and signed by the plaintiff 1 and defendant 3 on 24-11-1984; that the original sale deed is in possession of the said defendant 3 and is now colluded with defendants 1 and 2; that plaintiff 1 applied for the mutation of the suit house before the Gram Panchayat Mailoor and accordingly it was mutated in the name of plaintiff 1 on 18-3-1985; that the name of the plaintiff 1 is entered in the panchayat records as owner and possessor of the suit house for the years 1985-86 and 1986-87; that the plaintiff has paid the Panchayat taxes in respect of the suit house; that the defendants are not concerned to the suit house, however they are interfering with the possession of the plaintiffs and are denying the title of plaintiffs over suit property at the instigation of defendant 3. Hence they filed the suit, seeking for the aforesaid reliefs.

In pursuance of the notice issued defendants 1 and 2 appeared before Court and filed written statement disputing the description and boundaries of the suit house; that the plaintiffs have included the House No. 1/62 also in the schedule of the suit; that plaintiffs are not the owners and possessors of suit house. The defendants denied the partition dated 24-11-1984 relied on by the plaintiffs, further they have also denied the purchase said to have been made by the husband of the plaintiff 1 and the 3rd defendant. It is the case of the defendants that one Gulam Rasool, is the owner of the said House No. 1/62 who is the father of the defendant 1 and defendant 2 is the son-in-law of the said Gulam Rasool; that the defendants are in actual and physical possession of the house bearing No. 1/62; that the area of the house bearing No. 1/63 is only exact half portion of the alleged suit house which lie towards western side and the remaining half portion is the house bearing No. 1/62; that the name of plaintiff is not entered in the Panchayat records as owner and possessor and on the contrary the name of Gulam. Rasool is entered in Panchayat records to the extent of half portion of the suit house; that plaintiff 1 had filed complaint before the police admitting that defendant 2 is in possession and occupation of one room in the House No. 1/63, that defendant 2 had given reply to notice of the police informing the correct matter, therefore the said proceedings are dropped; that plaintiffs are not in possession of the entire suit house on the date of suit, hence prayed to dismiss the suit.

However, inspite of service of notice the defendant 3 failed to appear before Court and he was placed ex parte.

On the basis of pleadings of the parties, the Trial Court framed in all 7 issues. To prove their case on behalf of the plaintiffs, plaintiff 3 was examined as P.W. 1 and four more witnesses were examined as P.Ws. 2 to 5 and got marked documents-Exs. P. 1 to P. 10. On the other hand defendant 1 examined as D.W. 1 and examined 3 more witnesses as D.Ws. 2 to 4 and got marked documents-Exs. D. 1 to D. 8. The Trial Court after considering the material evidence placed, before it decreed the suit of the plaintiffs declaring them to be the owners of suit house and consequently restrained the defendants from interfering with possession of plaintiffs over suit property. Being aggrieved by the said judgment and decree defendants 1 and 2 have preferred an appeal in R.A. No. 26 of 1995 before Civil Judge at Bidar, wherein learned Civil Judge after hearing the Counsel for both the parties dismissed the appeal confirming the judgment and decree passed by the Trial Court. Hence this appeal u/s 100 of the Civil Procedure Code, 1908.

According, to appellants the entire approach of Courts below in deciding the issues is wholly erroneous and not based on materials on record; that the Courts below, in the absence of disclosure of particulars regarding purchase of suit house and House No. 1/64 by the husband of plaintiff 1 and defendant 3 ought not to have relied on the memorandum of partition said to have been taken place between plaintiff 1 and defendant 3; that the Courts below ought not to have relied on the said memorandum of partition which is a unregistered document; that the mutation entries and other revenue entries in the name of the plaintiff will not confer any right or title to the plaintiff over the suit property; that the findings recorded by the Trial Court with regard to property of defendant i.e., House No. 1/62 is illegal and incorrect; that the Courts below ought not have decreed the suit of plaintiffs in the absence of proof of measurement of the same by plaintiffs; that the Courts below ought not to have relied on the oral evidence of P.W. 5 which is of no consequence in deciding the ownership of plaintiffs over the suit property. Hence it is prayed to allow the appeal by dismissing the suit of plaintiffs.

Heard the arguments of Counsel for both the parties and perused the documents, the substantial question of law that has been raised in this appeal is:

(1) Whether the Courts below were justified in decreeing the suit when admittedly no registered sale deed has been produced by the plaintiffs in proof of their purchasing the House Nos. 1/63 and 1/64?

(2) Whether the Courts below could have decreed the suit by relying upon Ex. P. 1 the alleged memorandum of partition when the original document on which the partition deed is executed namely the sale deed under which the property has been purchased has not be produced?

(3) Whether the Courts below could have rejected Exs. D. 1 to D. 8 produced by the defendants in proof of their possession of the House Nos. 1 to 62?

Admittedly, the relationship of the parties is not in dispute. According, to plaintiffs the suit house property bearing No. 1/63 is belonging to plaintiffs and defendant 3 is the owner of property bearing No. 1/64 which are adjacent to each other; that the said properties were purchased by the husband of the plaintiff 1 and defendant 3 jointly under a sale deed, however subsequent to death of husband of plaintiff 1 there was a oral partition between the plaintiffs and defendant 3 and subsequently the same was written on paper, as per Ex. P. 1/memorandum of partition, dated 24-11-1984 and accordingly the suit house bearing No. 1/63 fell into the share of plaintiffs and property bearing No. 1/64 fell into the share of defendant 3. Further, that one Gulam Rasool, father of defendant 1 and father-in-law of defendant 2 is the owners of House Property No. 1/62 which is situated towards eastern side of the plaintiffs Property No. 1/63. The defendants 1 and 2 did not dispute the ownership of plaintiffs over Property No. 1/63, but according to them the description of the suit house is incorrect and that major portion of their house bearing No. 1/64 is included in the schedule to the suit house.

In support of the case of the plaintiffs they have heavily relied on the documents-Ex. P. 1/memorandum of partition and Ex. P. 2/partition map. Admittedly, Ex. P. 1 is a unregistered document, however since the same is admitted in evidence, the same can be looked for collateral purposes, for looking into nature of possession of plaintiffs over the said property. Of course, the execution of the said document has been proved by the plaintiffs by examining P.W. 5 who is the scribe of that document. The defendants though initially disputed the document-Ex. P. 1, they have failed to disprove the same. The evidence of P.W. 5 in this regard has not been seriously challenged by the defendants. Further the evidence of P.W. 4 discloses that the plaintiffs are in possession of the suit house and defendants are in no way related to the same and they are residents of some other house away from the suit house. This evidence of P.W. 4 has also not been seriously challenged and though he was cross-examined at length nothing worthwhile has been elicited from his mouth. On the other hand the defendant 1 who examined himself as D.W. 1 before the Court admitted the possession of the plaintiff 4 over the portion of the suit property and is doing cycle repair business therein and he further admits that there was no partition wall between the plaintiffs house and defendant 3''s house. Considering the facts and circumstances involved in the suit the Courts below declined to rely on the oral evidence of other witnesses of the defendants, since D.W. 4 is said to be the close relative of the defendants and the evidence of D.Ws. 2 and 3 are not trust worthy and there were lot of discrepancies found in their cross-examination. The defendants have failed to produce any documents in this regard to prove that they are the owners of property bearing No. 1/62 and have further failed to prove its actual measurement of property claimed by them. Further the document-Ex. P. 9/endorsement of Secretary of Village Panchayat, Mailoor, produced by the plaintiffs discloses that there is no approved map of house of defendant i.e., No. 1/62 and there is no mutation of the said house, which falsifies the case of defendants and defendants have not seriously challenged the said document. As such, the oral evidence of P.W. 4 and Ex. P. 1 placed on record discloses that plaintiffs are in possession of suit property as described in plaint schedule and even the defendant 1 as D.W. 1 admits the same. On the other hand defendants have failed to prove their ownership and possession over property bearing No. 1/62 and its actual measurements is also not proved before the Court.

Of course, it is an settled principle of law that, the plaintiffs should succeed in their suit on the strength of their own case and cannot rely on the latches on the part of the defendants case, to succeed in their case. In the instant case though the oral evidence of P.Ws. 1 and 2 and the documents-Exs. P. 1 and P. 3 prove possession of plaintiffs over the suit property, but they are not sufficient to declare plaintiffs as owners of suit property, since Ex. P. 1 is only a unregistered document and the sale deed on the basis of which Ex. P. 1 said to have came into existence has not been produced before Court. Ex. P. 1 alone cannot be construed as conveying any title to the plaintiffs over the suit property. As already observed Ex. P. 1 can be looked into only for collateral purposes and the same cannot be construed as a title deed to confer title to plaintiff over the suit property. No rights can be created in favour of plaintiff on the basis of Ex. P. 1 alone. The mutation entries in the name of plaintiff 1 will also cannot confer any ownership right to the plaintiffs over the suit property.

However since Ex. P. 1 is proved in accordance with law and possession of plaintiffs over suit property has been established by plaintiffs by examining P.W. 4 and the boundaries found in the schedule to the plaint is established by oral and documentary evidence of plaintiffs, the Courts below ought to have decreed the suit of plaintiffs only in part, with regard to their possession and ought to have rejected the prayer of the plaintiffs for declaration as owners of suit property. Both the Courts below erred in relying on several reported decisions in decreeing the suit of plaintiffs which in fact are not applicable to the facts and circumstances of the case and thus have erred in holding that Ex. P. 1 does not require any registration and further erred in construing Ex. P. 1 as a title deed. Further the mutation entry in the name of plaintiffs will also not confer any ownership right to the plaintiffs over suit property. The Courts below without considering the same have wrongly decreed the suit of plaintiffs for declaration which is incorrect, illegal, perverse and capricious and cannot be allowed to stand.

For the foregoing reasons this appeal is allowed in part. The judgment and decree passed by the Courts below is hereby set aside. The suit of the plaintiffs is allowed in part. The defendants are restrained from interfering with possession of plaintiffs over the suit house. The prayer of the plaintiffs to declare them to be the owners of the suit house is hereby dismissed.

Draw decree accordingly. No costs.