OMPRAKASH AGRAWAL vs STATE OF MADHYA PRADESH

The appellants/original plaintiffs have filed this second appeal under Section 100 of the C.P.C. against the judgment and decree dated 21.1.2009 passed by the Second Additional District Judge, Sidhi in Regular Civil Appeal No.19-A/2008 reversing the judgment and decree passed by the Second Civil Judge Class-II, Sidhi in Civil Suit No.42-A/2007 on 31.3.2008. The Appellate Court had dismissed the suit filed by the plaintiffs, whereas the trial Court had decreed the appellants/plaintiffs'' suit for perpetual injunction regarding east-west 40 feet and north-south 60 feet disputed portion of land bearing survey no.2604 area 0.140 hectare of village Amiliya, Tehsil Sihawal of district Sidhi and for removal of construction of five rooms made by the defendants over disputed portion and delivery of its possession.

Undisputedly, the plaintiffs'' father Narayandas Gupta was real elder brother of defendant No.1 Bhagwandas Gupta and defendant No.2 is son of Bhagwandas Gupta whereas both the plaintiffs are real brothers.

Present appellants filed a suit before the trial Court on pleadings that the disputed land is self acquired property of their father late Narayandas Gupta and after death of their father, the total area of above mentioned survey number remained in ownership and possession of the plaintiffs, but on 8.7.2005 in the evening, the defendants exhibited their intention for construction over the disputed portion situated in north direction of the disputed land by measuring the above mentioned portion. Thereafter, the defendants started construction. On 8.7.2005, plaintiffs complained to respectable persons of the village and reported the matter in relating police station. The police did not intervene disclosing it a land dispute. Thus, a suit was filed for relief of perpetual injunction against both of the defendants restraining them from making construction over the disputed portion. During pendency of the suit, pleadings were incorporated in the plaint that during pendency of the suit before the trial Court in pursuance of an undertaking given by the defendants before the trial Court that if the plaintiffs'' suit is decreed in future then the defendants would remove their construction without claiming any amount and thus five rooms have been constructed by the defendants over disputed portion. Thus, the reliefs of removal of construction of five rooms and their remains and for getting possession of the suit land were also claimed along with mesne-profit.

Before the trial Court, the defendants pleaded that though the land bearing survey no.2604 was previously recorded only in the name of father Narayandas Gupta of plaintiffs, but this land is not of ownership and possession of Narayandas. It was ancestral land of the parties because it was purchased from the income of joint hindu family of Narayandas and Bhagwandas in the name of the Karta of joint family Narayandas only. Defendant No.1 Bhagwandas was much younger than his elder brother. It was also pleaded by the defendants that in the year 1970, partition occurred between Narayandas and defendant No.1 Bhagwandas, in which northern portion of adjoining land bearing survey no.2603 was given to the defendant no.1 and its southern portion was given to Narayandas and each brother separately constructed his house in relating portion. Similarly, in partition parallel northern portion of disputed land bearing survey No.2604 was given to the defendant No.1 Narayandas and its southern portion was received by Narayandas, but as the defendant No.1 made pakka construction over his portion, but plaintiffs'' house was kachcha. Father of the plaintiffs had left his family without intimating anyone, thereafter the defendant No.1 had given two rooms on rent to the plaintiffs for conducting a shop, but when after retirement of defendant No.1, he asked the plaintiffs to vacate the two rooms of shop, being aggrieved, the plaintiffs have filed this suit and plaintiffs are not entitled for any relief.

The trial Court framed issues on pleadings of the parties and after recording evidence and hearing decreed the plaintiffs'' suit. It appears that the relief of declaration was not sought by the plaintiffs, but the learned trial Court also granted the relief of declaration of ownership of the plaintiffs with other claimed reliefs. Original defendants filed an appeal under Section 96 of the C.P.C. before the District Court and their appeal has been allowed by the impugned judgment and decree passed by the Appellate Court i.e. the Appellate Court has dismissed the appellants'' suit totally.

Learned counsel for the appellants contended that the First Appellate Court erred in reversing the well reasoned judgment and decree passed by the trial Court and the Appellate Court has not properly appreciated the oral and documentary evidence filed by the parties, as the defendants remained unsuccessful in proving that the disputed land was purchased from the income of the joint family property, whereas the land relating to disputed portion was recorded only in the name of plaintiffs'' father.

It appears from the judgment of the learned trial Court that it did not consider the oral evidence regarding partition and held that oral evidence is excluded under provision of Section 92 of the Indian Evidence Act and as the disputed land bearing survey no.2604 was recorded only in the name of father Narayandas of plaintiffs and after him in the name of the plaintiffs, the defendants have remained unsuccessful in proving that the disputed land was joint family property and it decreed the suit. It appears from the judgment of First Appellate Court that it has discussed in detail the oral evidence regarding previous partition and on other relevant and substantial points.

It was clearly pleaded by the defendants that when Narayandas and Bhagwandas, two real brothers, were members of the joint Hindu famly then in the year 1952-53, the land bearing survey no.2604, whose portion is present disputed land, was purchased by the elder brother Narayandas as Karta of the joint family from previous owner Khelau Singh by the income of the joint Hindu family. It has been clearly pleaded and deposed by defendant Bhagwandas (D.W.1) that at that time, he was a child of about 11 years of age. Plaintiff No.1 Manikchandra (P.W.1) has clearly admitted in para no.11 of his cross-examination that when he was born, then his uncle defendant Bhagwandas was only 7-8 years old. He admitted in same para that his father Narayandas was a businessman but his grand-father Ishwardeen was an agriculturist and before his birth, Ishwardeen had died. In the same para, he clearly admitted that from the income of the agricultural lands left by his grand-father, the disputed land was acquired. He further admitted in the same para that besides the disputed land, other agricultural lands were also purchased by his father from the income of the ancestral agricultural lands. He admitted in para 10 of cross-examination that his father had purchased the disputed land in the year 1952-53 from previous owner Khelau Singh.

Any sale-deed or its certified copy relating to disputed land has not been filed and proved by the plaintiffs. Thus, from the facts came in cross-examination of plaintiff No.1 Manikchandra (P.W.1), the pleadings and evidence of defendant No.1 Bhagwandas is supported on the point that the disputed land bearing survey no.2604 was purchased from the income of ancestral agricultural lands by his father.

In cross-examination (para no.9) of plaintiff No.1 Manikchandra, he clearly deposed that when his younger brother Harsihchandra (plaintiff No.2) was only 4 to 5 years old, then his father Narayandas had left the home and family without intimating anyone due to family dispute, but at that time, both brothers Bhagwandas and Narayandas were separately living and his father has not returned after leaving the home, thus 12 to 13 years prior to his deposition after death of his mother, his father''s last rites had been performed by him. Thus, the First Appellate Court was right in recording a finding that it is not proved that father of the plaintiffs, Narayandas had died in absence of any declaration of his civil death by any competent Court.

Bhagwandas (D.W.1) and his witness Pushpraj Singh (D.W.2) had deposed that in the year 1970, partition had happened between Bhagwandas and his elder brother Narayandas and at that time, Ex.D.1 was written and signed. Pushpraj Singh (D.W.2) had proved the signature of his deceased father Lal Singh on Ex.P.1, but plaintiffs'' witness Bhimma Ram (P.W.2) in cross-examination has denied that Ex.D.1 is bearing his signature, though he deposed in cross-examination that he is having cateract in his both eyes and is having very poor vision. In cross-examination, he remained unable to rightly identify the finger of the learned counsel of the oppenant shown to him. He clearly deposed that he did not know that in partition, which lands have fallen in shares of brothers Narayandas and Bhagwandas. Plaintiffs'' other witness Jamuna Prasad (P.W.3) clearly deposed in cross-examination that his affidavit filed in the suit under Order 18 rule 4 of the C.P.C. has not been got prepared by him. He clearly admitted in para no.5 of his cross-examination that in northern portion of adjoining land bearing survey no.2603, defendant Bhagwandas''s house is situated and in the southern portion of the same land, there is a house of plaintiffs. It is proved that the adjoining land has also been divided between Narayandas and Bhagwandas, which establishes the case of the defendants.

Plaintiff No.1 Manikchandra (P.W.1) has clearly deposed in his cross-examination (para 15) that in southern portion of land bearing survey no.2603, his house has been constructed about 25 years before and on the northern portion of same land, defendants'' house has been built about 20 years back. He also admitted that since the construction of the house of the defendants is on the land bearing survey No.2603, then northern portion of the disputed land bearing survey no.2604 is in use of defendants. It clearly proves the case of the defendants.

The trial Court based its judgment only on the reason that in revenue record, the name of only Narayandas is recorded and after him, the name of the plaintiffs has been recorded, thus, it held that the plaintiffs are owners and possession holders of the land bearing survey no.2604. Learned trial Court wrongly resorting to the provision of Section 92 of the Indian Evidence Act did not discuss the oral evidence of the witnesses of both the parties and totally overlooked the material and relevant admissions of plaintiff No.1 Manikchandra (P.W.1) in his cross-examination. It is well established that partition of joint Hindu family at the relevant time could be made orally. It is clear that the findings recorded by the trial Court were clearly perverse and the learned First Appellate Court had not committed any error in reversing the decree of the trial Court. The First Appellate Court has properly and legally appreciated the oral and documentary evidence of both the parties and referred relating citations also.

In view of aforesaid discussion, I have not found any substance or circumstance in the matter giving rise to any question of law rather than substantial question of law and consequently, the appeal being devoid of any merit deserves to be and is hereby dismissed in limine.