Pannalal vs Muliabai and Others

S.K. Gangele, J—Plaintiff-appellant has filed this appeal against the judgment and decree passed in Civil Suit No. 37-A/1991. During the pendency of the appeal plaintiff-appellant was died and his legal heirs have been brought on record. Respondent No. 1 has also been died. The plaintiff-appellant filed suit for declaration and permanent injunction. He pleaded that Mulchand had three sons Deobaksh, Ghasiram and Pannalal. Deobaksh was died in the year of 1977. Ghasiram was died after completing 28 years of age. Deobaksh had left behind him his widow Muliabai and defendant No. 1. Defendant No. 2 Sheonarayan claimed himself as adopted son of Muliabai and Deobaksh. There was a Joint Hindu Family Property area 10.06 acres at village Ichhawar. In the aforesaid property all the three brothers Deobaksh, Ghasiram and Pannalal were the co-sharers. Ghasiram had given his 1/3rd share on the basis of a written document in favour of plaintiff-appellant Pannalal. He also handed over possession of the suit land. Since then the plaintiff-appellant was in possession of the suit land.

The plaintiff-appellant pleaded that there was another Joint Hindu Family Property of Khata No. area 9.45 acres. The plaintiff-appellant purchased 4.63 decimal of the land on 23.08.1961 from Ram Singh and Shyam Singh. The land was recorded of the ownership of Deobaksh in the revenue record and the plaintiff-appellant has 2/3rd share in the aforesaid land.

Ghasiram was died 28 years before. He had given his 1/3rd share to the plaintiff-appellant, therefore, he became owner of the 2/3rd share and after the death of Deobaksh, her widow Muliabai became owner of 1/3rd share.

On 15.02.1977, defendant No. 1 submitted an application for mutation to the effect that her name be recorded as owner on 1/3rd share, which was in the name of her husband Deobaksh. The defendant No. 2 Sheonarayan also submitted an application for mutation on the basis of Will dated 13.05.1972, which was executed by Deobaksh in his favour. The Tehsildar rejected the application of the plaintiff-appellant and ordered mutation in favour of defendant No. 2 Sheonarayan. On appeal, the Sub-Divisional Officer set aside the mutation and remanded the matter back. The defendant No. 2 Sheonarayan had no right in the suit property. It is further pleaded by the plaintiff-appellant that the cause of action arose on 03.04.1979 and 15.06.1979 when the defendants obstructed on the possession of 2/3rd share of the suit property.

The defendants No. 1 & 2 in their written statement denied the pleadings of the plaintiff-appellant. They pleaded that Deobaksh had no issue, hence, he had executed an adoption deed on 15.03.1972 at Ichhawar and he had taken in adoption the defendant No. 2. The defendants No. 1 & 2 are the legal heirs of Deobaksh. The defendants No. 1 & 2 executed a sale deed in favour of defendants No. 3 & 4 and handed over possession of the land, which was in the share of Deobaksh. Out of 10.06 acres of land Araji No. 1094/2, 5 acres land was given to Deobaksh on patta. He was the exclusive owner of the aforesaid land. Ghasiram had not given any share to the plaintiff-appellant. The plaintiff-appellant had forcefully taken possession of the lands of Araji No. 970, 971, 975 and 976. After death of Deobaksh, defendants No. 1 & 2 Muliabai and Sheonarayan became the owner and on possession of the suit land. The plaintiff-appellant is not entitled for any relief.

The defendants No. 3 to 5 filed their separate written statement. They pleaded that they are in possession of the land area 12.40 acres.

The trial Court after appreciation of evidence has held that the plaintiff failed to prove the fact that there was Joint Hindu Family Property and the land was of the ownership of Joint Family Property. The trial Court further held that the plaintiff-appellant failed to prove the fact that Sheonarayan and Muliabai had no right to sell the land. The plaintiff-appellant further failed to prove that he was in possession of 2/3rd share on the land area 10.06 acres and 9.45 acres. Hence, he is not entitled for any relief. In arriving on the aforesaid conclusion, the trial Court considered the evidence of plaintiff witnesses Pannalal, Mishrilal and Syam Singh and defendant witnesses Wahid Khan, Sheonarayan, Suleman and Mohd. Yusuf.

The plaintiff-appellant Pannalal in his evidence deposed that he had three brothers, elder Deobaksh, thereafter Ghasiram and Pannalal. Devbaksh was died before filing of the suit. Muliabai is the widow of Deobaksh. There are two parcel of lands of Joint Hindu Family Property at village Ichhawar. One parcel consists 10 acres of land and second parcel 9 acres 45 decimal. All the three brothers had equal share of near about 3.25 acres each. Ghasiram had sold his share in my favour in a consideration of Rs. 800/-. The sale deed is an unregistered one. It is Exhibit-P/1. Out of 9 acres 45 decimal, my father got recorded the name of my brother Jagannath. 4.5 acres of land was purchased by Shyam Singh and Ram Singh and it was returned to me. I purchased the land from Syam Singh and Ram Singh in Rs. 850/-. The document is of dated 23.08.1961. It is Exhibit-P/2. He further deposed that he is in possession on 8 to 10 acres of land.

Deobaksh had called me for the adoption ceremony of Sheonarayan. I refused to attend the ceremony. Hence, there was no adoption. In his cross-examination he admitted the fact that widow of Ghasiram is Sukhiya and name of her daughter is Kamla and name of his son is Mukesh. There is a grandson of Ghasiram also. He admitted the fact that 5 acres of land was recorded in the name of Deobaksh. He also admitted the fact that in pursuance to Exhibit-P/1 he did not institute any proceeding before the Tehsildar for mutation. He also admitted the fact that 4.76 decimal of land was sold by Sheonarayan and Muliabai by registered sale deed dated 03.04.1979 in favour of Waheed Khan and Rafiq and Hakeem and Sheonarayan and Muliabai sold 10 acres 6 decimal of land in favour of these persons and they are in possession on the land. He admitted the fact that he has no share in 10 acres 76 decimal. He further admitted the fact that Deobaksh sold the land illegally.

Another witness examined on behalf of the plaintiff-appellant is Mishrilal (PW-2). He deposed that Exhibit-P/1 is written in the handwriting of his father and he knows the handwriting and the signatures on Exhibit-P/1 are of his father. Shyam Singh (PW-3) in his evidence deposed that before 30-35 years his brother Ram Singh sold the land to Pannalal. The area of the land was near about 4.5 acres. It was sold in a consideration of Rs. 800/-. Exhibit-P/2 is the sale deed. He further deposed that all the three brothers had been cultivating the land of area 19 acres. No other witness has been examined on behalf of the plaintiff.

Waheed Khan (DW-1) in his evidence deposed that there are to parcels of land area 10.6 decimal and 9.45 acres situated at Ichhawar. Out of the aforesaid lands, 10.6 acres of land was in the name of Sheonarayan and also out of another parcel 4.73 acres of land was in the name of Sheonarayan. Deobaksh adopted Sheonarayan in adoption and he had given him 10.6 acres of land. The names of Muliabai and Seonarayan were mutated against the aforesaid land after the death of Shoonarayan. Muliabai had given her share to Sheonarayan by gift deed. I purchased 10.6 acres of land from Sheonarayan on 03.04.1979. I also purchased 4.73 acres of land out of 9.45 acres by registered sale deed dated 03.04.1979 in a consideration of Rs. 15,000/-. After registration I also got possession of the lands and I am in possession of the land of 12 acres. Pannalal had taken possession of 2.39 acres of land. Sheonarayan (DW-2) in his evidence deposed that the land was in the name of his father Deobaksh in the year 1979 and thereafter it came into his name. He sold the land area 10.6 acres by registered sale deed in favour of Waheed Khan. There were registered sale deeds. Another was of 4 acres 72 decimal. Exhibit-D/1 and Exhibit-D/2 are the sale deeds and I signed the same. Deobaksh had taken him in adoption. The ceremony was conducted and adoption deed was also written. After selling the land I had given possession of the land to the person. Another witness Suleman (DW-3) deposed that he is the neighbor for the last 20 years. He had seen that Pannalal and Deobaksh were in possession on the lands. Deobaksh was in possession of 13 to 14 acres of land and Pannalal was in possession of 6 to 7 acres of land. Sheonarayan had taken Devbaksh in adoption. After death of Deobaksh, the land came into the share of Sheonarayan and his wife. I was the witness of adoption ceremony. Mohd. Yusuf (DW-4) in his evidence deposed that Deobaksh had taken Sheonarayan in adoption and ceremony was also performed. Besides of these oral evidences, both the parties have filed documents also.

The trial Court appreciated the oral and documentary evidence. The trial Court further observed that as per the documentary evidence, there is no evidence that there was a joint possession of all the brothers as pleaded by the plaintiff on the lands. The Exhibit-P/1 is an agreement, which was executed by Khusilal. However, no evidence was produced to substantiate that he had got ownership of the land in pursuance to Exhibit-P/1 and P/2. The trial Court further observed that the plaintiff himself admitted the fact that the land was recorded in the name of Deobaksh. The Exhibit-P/1 cannot be taken into consideration because it is unregistered document. The plaintiff further failed to prove the fact that the land on which he has claimed ownership was recorded in the name of all the three brothers or it was of Joint Family Property. There was no oral partition as pleaded by the plaintiff. The trial Court further recorded findings that Deobaksh was in possession of the lands. The patta was granted in favour of Deobaksh of area 5 acres Rakba 1094/2. As per khasra entry, Jagannath and Deobaksh were in possession and owner of 9.45 acres of land. Deobaksh had taken Sheonarayan in adoption in the year 1971. The aforesaid fact has been proved from the evidence of Sheonarayan, Suleman and Mohd. Yusuf. After the death of Deobaksh the name of Shoenarayan was recorded as owner of the land and mutation was also ordered. Sheonarayan had sold the land by two registered sale deeds. The plaintiff-appellant did not seek any declaration in regard to declaring the registered sale deeds as null and void. In this view of the matter, in my opinion, the trial Court has rightly recorded the findings that plaintiff-appellant failed to prove the fact that the suit land was of Joint Hindu Family Property and he is not entitled to get any relief of declaration of title, partition and permanent injunction and delivery of possession. There is no illegality, irregularity in the findings of facts recorded by the trail Court.

During the pendency of the appeal, the plaintiff-appellant filed an application under Order 41 Rule 27 of the Civil Procedure Code. The plaintiff-appellant wants that original gift deed dated 11.07.1977 which is 30 years old document be taken on record. In my opinion, by the aforesaid gift deed, the plaintiff-appellant could not get any benefit. It is also not clear that why the aforesaid document was not produced at the time of trial. It appears that subsequently the document was manufactured. An application under Order 6 Rule 17 has also been filed in regard to amendment in the written statement. Looking to the facts of the case this application is also deserved to be dismissed. Hence, both the applications are dismissed. Written submissions have also been filed by the plaintiff-appellant. In his written submissions same facts have been stated which were pleaded before the trial Court. Looking to the evidence on record and the facts of the case documentary and oral, in my opinion, the judgment passed by the trial Court is in accordance with law.

I do not find any merit in this appeal, it is hereby dismissed.

No order as to the costs.