Mundrika Prasad vs Shushila Devi and Others

Dhrub Narayan Upadhyay, J.—The defendant-appellant has filed this appeal against the judgment dated 25th September, 2002, decree dated 4.10.2002 passed and signed by the learned IIIrd Additional District Judge, Dhanbad in connection with Title Appeal No. 11/1994 whereby the judgment and decree passed in Title Suit No. 65/1990 has been set aside and the appeal stood allowed.

The appeal has been admitted vide order dated 24.4.2003 on the following substantial question of law:-

(i) Whether the finding recorded by the appellate court reversing the judgment of the trial court is perverse in law?

(ii) Whether the court of appeal below has committed error of law in not considering the deed of family partition arrived at between the parties?

The appellant was the defendant in the original suit whereas respondent was the plaintiff and, therefore, the appellant hereinbelow will be referred as defendant and the respondents shall be as plaintiffs.

The plaintiff has brought a suit for evicting the defendant from the suit premises vide Title (Eviction) Suit No. 65/1990.

The case of the plaintiff in brief is that his father Nanku Sao purchased 6 Kathas of land pertaining to Plot No. 1063, Khata No. 20, Mauza Hirapur by registered deed of sale No. 1363 dated 8.2.65 from Sita Ram Sao and came in peaceful possession over the same. The father of the plaintiff constructed a house thereon consists of six rooms, Varandah, Angan, Bath Room, Latrine, Kitchen etc. Nanku Sao died on 10.03.1985 and after that the plaintiff being the son inherited the property and started enjoying peaceful possession over the same. Rent receipts were also issued in the name of plaintiff. It is disclosed that some time in the month of October, 1985 the defendant Mundrika Prasad, who happens to be uncle of the plaintiff came to Dhanbad and approached the plaintiff with a request to allow him to stay in the house till he gets an alternative accommodation. The request made by the defendant was acceded by the plaintiff and he allowed him to occupy a portion of the house described in schedule B of the plaint with a condition that he shall vacate the suit premises as and when the plaintiff would request him to do so. The plaintiff requested the defendant on several occasions to give and hand over vacant possession of the schedule B property but the defendant deferred the request on one pretext or the other and continued his possession. When the defendant refused to vacate the suit premises, the plaintiff had left no option but to file suit and for that cause of action arose on 9th September, 1986 and on subsequent dates.

On the other hand, defendant appeared before the Trial Court and filed written statement stating therein that the suit is not maintainable in its present form and the plaintiff has got no cause of action for the suit. He has made out a specific case that Babu Ram Sao was the common ancestor and he had four sons namely, Bipin Sao, Nanku Sao (father of the plaintiff) Jag Mohan Sao and Mundrika Prasad (defendant). Babu Ram Sao was the resident of Harna Chatti within the district of Rohtas (Bihar) and he had ancestral property over there. After death of Babu Ram Sao his two sons, namely, Bipin Sao and Jag Mohan Sao separated themselves from their other brothers in mess and kitchen and began to live separately. The other two brothers Nanku Sao and Mundrika Prasad (defendant) remained in jointness. Nanku Sao was working as line coolie in Jamadova and Digwadih since about 1942-47 on meagre salary of Rs. 6 to 8 per week. The defendant came from his village and started living with his brother Nanku Sao and after completing education, he got employment in the District Mining Office in the year 1957 and started residing at Dhanbad in the house of Sita Ram Sao as his tenant from January, 1958 till June, 1965.

It is further contended that the defendant was looking after the plaintiff while he was aged 7-8 years and brought him up. Under the guidance of defendant, the plaintiff completed his study in Hirapur Hatia School and also in Dhanbad High School. Thereafter in the year 1975 the plaintiff went to his father, who was then residing at Digwadih. The plaintiff was employed in Digwadih colliery firstly as a trolly man and thereafter appointed as Chaprasi.

It is specifically pleaded by the defendant that while living as a tenant under Sita Ram Sao, he had purchased 6 Kathas of land in Plot No. 1063 in the name of his elder brother Nanku Sao in order to avoid technical difficulty as he was a Government servant. After purchasing the land, he had constructed a house thereon and began to reside in the said house since July, 1965. The land was purchased Benami in the name of his elder brother, who was then living in jointness with him. It is disclosed that occupation of the defendant in the suit premises was not of a permissive occupier rather he has been enjoying his possession over the suit property as owner. Relationship between the plaintiff and the defendant was cordial till the life time of Nanku Sao but after that they had started picking up quarrel. It is said that the plaintiff and the defendant in order to avoid future dispute agreed to appoint Panches, namely, Sita Ram Sao, Ishwari Prasad, Basudeo Prasad and Ram Raj Sharma by executing an agreement on 2.2.1986 (Ext. B) and authorized the Panches to partition the property and settle the dispute. Thereafter by virtue of Ext. D the property which were in the joint possession of the plaintiff and the defendant were partitioned.

The plaintiff as well as defendant have examined number of witnesses in support of their respective claim. The learned Munsif-I at the adjudication dismissed the suit on contest with cost. Thereafter the plaintiff preferred appeal before the learned District Judge which was transferred to the Court of IIIrd Addl. District Judge, Dhanbad. After granting hearing to the parties, the leaned Additional District Judge has set aside the judgment and decree passed by the Trial Court and decreed the suit in favour of the plaintiff and directed the defendant -appellant to vacate the suit premises within 90 days and hence this appeal.

To answer the first substantial question of law, it appears desirable to discuss the evidence and document available on record. The defendant has tried to sustain his claim on two points firstly the land in question was purchased by him from Sitaram Sao in the year 1965 benami in the name of his elder brother Nanku Sao (father of the plaintiff) and in due course he had constructed house thereon which was finally completed in the year 1971. To prove this fact he has adduced evidence. At this juncture, it is necessary to mention that the defendant has failed to bring on record any chit of paper to show that consideration amount was paid by him from his own independent income to vendor Sitaram Sao. No money receipt has been proved.

He has further failed to bring on record any chit of paper to show that construction of the building which continued for more than five years was done by him. No paper showing payment by defendant either to contractor or to labourer or to mason or to architect or to any engineer has been brought by him on record. No map for construction of the building prepared by any architect at the instance of defendant has been proved. At the time of registration of the sale deed, no document was signed by him.

On the other hand, the plaintiff has produced all the documents relating to property in dispute. The registered sale deed executed by Sitaram Sao in favour of Nanku Sao has been brought on record. The property was transferred and recorded in the name of Nanku Sao in the revenue record as well as municipal record. Therefore, admitted case which is available on record is that all the documents pertaining to property in dispute are standing in favour of plaintiff.

Now coming to the oral evidence on which the Trial Court has decided the suit are the deposition of defendant''s witness. The vendor Sita Ram Sao has stated that consideration amount was paid by defendant and the sale deed was executed and registered in favour of Nanku Sao at the instance of defendant but he has failed to depose the mode of payment. This Sitaram Sao, who has been examined as defence witness, according to Ext. B and Ext. D was also as one of the ''Panch'' to partition the property between the plaintiff and the defendant. He has supported the claim of the defendant but that evidence is to be considered in totality of the document and evidence available on record and also in the preponderance of probability. It is admitted case of the defendant that in course of his employment, for a long time he was away from Dhanbad. He has failed to prove, during that period how he had been occupying possession over the suit property. According to admitted pleadings of the parties, the dispute between the plaintiff and the defendant arose after the death of Nanku Sao. Nanku Sao died in the month of March, 1985 but the municipal receipt brought on record indicates that even after death of Nanku Sao, the defendant did not take any step to get the property recorded in his name rather municipal receipts indicates that the property was transferred in the name of plaintiff in the municipal record Dhanbad. The rent receipt is also standing in the name of Nanku Sao. Not only that some portion of the house was given on rent and the rent receipts were also issued on behalf of Nanku Sao. The documents which have been brought on record by the plaintiff clearly show title of Nanku Sao over the property in dispute and after death of Nanku Sao in the municipal record name of plaintiff has been entered. Again I would like to observe that all the documents pertaining to property in dispute are standing in favour of plaintiff. It is settled principle of law documentary evidence shall prevail as against oral evidence and that too when subject matter of suit is immovable property. The defendant has taken a plea that plaintiff had stolen away title deed and other documents and got it transferred in his name. I do not find any substance in this assertion of the defendant and that cannot be given any weightage in absence of cogent evidence. In this context, the evidence of defendant Mundrika Prasad appears relevant. He has deposed that at the time of registration of sale deed he was present in the registry office. When he was asked whether he had received any ''chircut'' after registration of sale deed and whether he had collected sale deed after producing the ''chircut'', he has expressed his ignorance. He has admitted that no ''chircut'' was collected by him from the registry office. It is an important admission which indicates that the defendant has deposed a lie before the Trial Court that the property was purchased by him benami in the name of his brother Nanku Sao. Had it been so, after registration of the document, chircut must have been received by him. Had he been received chircut, original sale deed could have been obtained by him. If these things did not happen that means he had not collected any original sale deed from the office of the registry and if it is so question of theft of that document does not arise at all. Thus it is clear the plaintiff was not occupying the suit property as co-sharer or co-parcener rather he had been occupying the property with valid right, title and interest and possession. These documentary evidences have not been properly considered by the Trial Court and, therefore, the lower appellate court has rightly reversed the judgment.

The next substantial question of law has been framed to consider deed of family partition. Learned Counsel appearing for the appellant-defendant has given much stress on Ext. B and Ext. D. Ext. B is a document by which the defendant had appointed ''Panches'' for partition of the property. It is contended that the decision of ''Panches'' shall be acceptable and binding to the plaintiff as well as the defendant. In the heading, name of plaintiff is not appearing rather it is the declaration made by the defendant Mundrika Prasad who had appointed the ''Panches'' for partition of the property. Admittedly, Ext. B does not indicate details and description of the property to be partitioned. Signatures of the plaintiff and the defendant are appearing at the bottom with date 2.2.1986. The plaintiff has not admitted his signature appearing on Ext. B rather he has challenged it. The signature of plaintiff has been proved by defendant witness. The next surprising aspect is that non-judicial stamp paper was purchased on 3.2.1986 in the name of Sitaram Sao but the declaration was made by the defendant Mundrika Prasad on 02.02.1986 and the date of signature is also 2.2.1986. If the stamp paper was purchased on 3rd February, 1986 how the document was prepared on 2nd February, 1986. These aspects relating to Ext. B were not taken note of by the Trial Court. It is further disclosed in Ext. B that after partition of the property it would accordingly be registered. Needless to mention that no registration of any partition agreement had ever taken place. The so called award passed by the ''Panches'' was neither communicated to the parties nor it was acknowledged by them.

According to defendant, Ext. D is the document by which the ''Panches'' had partitioned the properties between the plaintiff and the defendant and the decision of the ''Panches'' is in the form of an award and it is signed by all the ''Panches''. It is contended that according to the partition as per Ext. D the defendant has been occupying the suit property.

On the other hand, Counsel appearing for the plaintiff-defendant has challenged the identify of Ext. D as that of an award. It is contended that Ext. D does not bear the signature of plaintiff and he did not participate in the alleged proceeding. The decision was also not communicated to him. Further argument is that the document was neither registered as required under Section 17 of the Registration Act nor alleged award was made rule of Court as required under the Arbitration Act. Therefore, aforesaid Ext. D is not a family partition with the consent of plaintiff. Since Ext. D did not fulfill the statutory requirement, it is not binding on the plaintiff and the Trial Court should not have placed reliance on such document for coming to conclusion.

Learned Counsel for the plaintiff-respondent has relied on head note B (para 6) of the judgment, reported in V. Sanjeevamma Vs. Yerram Purnamma and Others, AIR 1984 AP 28 . It was argued that Hon''ble Andhra Pradesh High Court in the said judgment has also discussed the judgment reported in Kashinathsa Yamosa Kabadi, etc. Vs. Narsingsa Bhaskarsa Kabadi, etc., AIR 1961 SC 1077 : (1961) 3 SCR 792 .

By referring said judgment, it was argued that in that very case the parties have jointly appointed the ''Panches'' and the decision of the ''Panches'' was acknowledged and acted upon by them but in the case at hand the plaintiff did not accept his signature appearing on the Ext. B because it was a declaration made by defendant alone. The authenticity of Ext. B is also doubtful because non-judicial stamp paper was obtained on 3rd February, 1986 whereas signature of defendant is dated 2.2.1986. The so-called award was neither acknowledged by the plaintiff nor copy was served.

I have fairly examined Ext. B and Ext. D and I find force in the argument advanced by the plaintiff-respondent in this appeal. No details of property to be partitioned find mentioned in Ext. B. The plaintiff has not been admitting his signature appearing on Ext. B. The authenticity of Ext. B becomes doubtful because the stamp paper was purchased on 3rd February, 1986 but the document was prepared and signed on 2nd February, 1986 i.e. prior to the date of purchase of said stamp paper.

Needless to mention that Ext. D is neither acknowledged nor signed by the plaintiff. The plaintiff is not admitting that Ext. D was ever acted upon. Ext. D has neither been made rule of Court nor registered according to the Registration Act.

In that view of the matter, the Trial Court has wrongly considered all those documents and the appellate court has rightly reversed the judgment. The judgment and decree dated 25.09.2002 and 4.10.2002 respectively passed by the lower appellate court in Title Appeal No. 11/1994 is hereby upheld.

I do not find any merit in this appeal and the same stands dismissed with cost.