Shambhoo Lal vs Laddu Lal

Rohit Arya, J.—This appeal u/s 100 CPC by the defendants'' is directed against judgment and decree in civil appeal No. 131A/2005 by District Judge, Sheopur District Sheopur affirming the judgment and decree dated 22/09/2005 passed in civil suit No. 66A/2004 by I Civil Judge, Class-II, Sheopurkalan, plaintiff''s suit for declaration, possession and mesne profits has been partly dismissed though plaintiff has been declared owner of 1/3rd part of suit land admeasuring 3 bigha 12 biswa falling in survey No. 374 situated in village Banbada, Patwari Halka No. 22. However, his claim of 1/3rd in the land admeasuring 6 bigha 19 biswa falling survey No. 385 situated in village Banbada, Patwari Halka No. 22 and mesne profits claimed by the plaintiff has been denied by the trial Court (hereinafter referred to as the suit land). Defendants No. 1 to 3 have also filed cross-objection and the first appellate Court by the impugned judgment dismissed the same.

Facts necessary for disposal of this appeal in nutshell are to the effect that original plaintiff, Laddu Lal and defendants'' common ancestor was Ganeshram and the entire suit property was of his ownership and possession. Ganeshram had three sons, Bhairulal, Onkarlal and Govinda. Defendant No. 1, Gobari Lal was son of Onkarlal and defendant No. 2, Chaturbhuj was son of Govinda. Bhairulal has three sons, namely; Badri, Gopi and Laddu. However, all the three brothers, Badri, Gopi and Laddu have died and the sole legal heir alive is Laddu Lal. Admittedly, suit land is of joint ownership of plaintiff and defendants, there was no partition amongst them and their names are recorded jointly in the revenue record. Defendant No. 1, Gobariya had 1/3rd share. Defendant No. 2, Chaturbhuj had 1/3rd share and deceased three brothers, Badri, Gopi and Laddu have 1/3rd share each but sole surviving heir is Laddu Lal as is apparent from the revenue record from Samvat 2026 (year 1969) to Samvat 2030 (year 1973). As Laddu has been away from the village and was living in village Badoda for a long time, defendant No. 1 manipulated the revenue record and behind back of Laddu Lal got his name eliminated from the revenue record and got his name added to the extent of 2/3rd share of the suit land. On the aforesaid facts, plaintiff filed the suit for declaration that he is entitled for 1/3rd share of the suit land, recovery of possession and also mesne profits at the rate of Rs. 11,000/- per annum for doing cultivation and harvesting crops by defendant No. 1 as regards share of plaintiff also. It is also asserted that the defendant No. 1 used to give the share out of the crops, however, stopped to give the same. Hence, filed the suit for declaration, recovery of possession and mesne profits as stated above.

Defendant No. 2, Chaturbuj has admitted the claim made by plaintiff by filing written statement and prayed for that the decree to be passed in favour of plaintiff.

Defendant No. 1, Gobariya had filed written statement and denied plaint allegations. Inter alia, it is contended that plaintiff is residing in his in-laws house at Badoda for the last 30 years. Defendant No. 1 claimed to be in possession over the suit land since then. In fact, the plaintiff has sold his part of the suit land for a consideration of Rs. 7,000/- 20 years ago to the defendant No. 1. He asserted that the same was reduced in writing but the same was never produced before the Court. It is further asserted that the defendant No. 1 has perfected title by adverse possession. Defendant No. 1 claimed to have acquired status of occupancy tenant (Aadipatya krishak) u/s 169 of the Code and acquired bhumiswami rights u/s 190 of the Code. With the aforesaid pleadings, defendant prayed for dismissal of the suit.

On the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon exhaustive analysis of the entire evidence on record, trial Court found that the plaintiff is entitled for the relief as regards 1/3rd share out of land admeasuring 3 bigha 12 biswa falling in survey No. 374 situated in village Banbada, Patwari Halka No. 22. However, his claim of 1/3rd out of the land admeasuring 6 bigha 19 biswa falling survey No. 385 situated in village Banbada, Patwarik Halka No. 22 and mesne profits claimed by the plaintiff has been denied by the trial Court, i.e., disputed property in the instant case on the premise that defendant No. 1 had acquired title over the suit land by adverse possession by virtue of long continuous possession as occupancy tenant (Aadipatya krishak) u/s 169 of the Code and acquired bhumiswami rights u/s 190 of the Code. On appeal by the plaintiff, first appellate Court has again formulated questions in paragraph 9 of its impugned judgment and addressed upon the first four questions relating to one of declaration of 1/3rd share in the suit land claimed by defendant No. 1 as regards transfer of suit land in his favour by plaintiff and consequent acquisition of bhumiswami rights thereof. Defendant No. 1''s claim as regards adverse possession over the suit land having acquired status of bhumiswami rights by virtue of sections 169 and 190 of the Code. First appellate Court also addressed the claim of mesne profits of the plaintiff at the rate of Rs. 11,000/- per annum and objection as regards valuation of the suit. First appellate Court thread-bear reappreciated and discussed the entire oral and documentary evidence on record and recorded a finding to the effect that admittedly the suit land has all along been mutated in the joint names of plaintiff and defendants. Further, each one of them as discussed in paragraph 10 of the impugned judgment, the plaintiff and defendant No. 2 had 1/3rd share over the estate left behind of their common ancestor, Ganeshram as no partition amongst brothers/predecessors-in-interest had taken place. Elimination of name of plaintiff from the revenue record and adding his share of 1/3rd in the name of defendant No. 1, Gobariya alias Gobari Lal behind his back was found to be illegal as patwari was found to have no jurisdiction to make such unauthorised amendment/entry in the revenue record without notice to the plaintiff and in absence of any order of the higher authorities and even on facts. Hence, the plaintiff was also entitled for 1/3rd share of the suit land. Assertion of defendant No. 1 that the suit land has been sold by plaintiff to the defendant No. 1 on a consideration of Rs. 7,000/- was not found to be established inasmuch as, the alleged sale deed was not produced before the Court below and without registered sale deed property in question having value of more than Rs. 100/- cannot be transferred to defendant No. 1 because in terms of section 54 of the Transfer of Property Act any transaction of an immovable property for the value of Rs. 100/- or above, it is mandatory to register such document, otherwise the instrument loses its significance is well discussed in paragraph 13 of the impugned judgment. In view of the aforesaid factual matrix and legal position, first appellate Court has held that the alleged sale by the plaintiff in favour of defendant No. 1 is illegal and unsustainable. Defendant No. ''1 assertion as regards adverse possession has also been negated by the first appellate Court bearing in mind the pleadings of the parties and evidence brought on record. Defendant No. 2, Chaturbhuj was also one of the joint owner has stated that the suit land is part of the joint ownership of plaintiff and defendants and no partition has taken place. Under such circumstances, assertion of defendant No. 1 that acquisition of title by adverse possession is more of frustration than that of substance. Law is well settled, a property jointly owned by co-owners, one cannot have a right against the other asserting title by adverse possession. First appellate Court has also dealt with defendant No. 1''s assertion that in fact the suit land has been given to him on oral patta and, therefore, he acquired the status of occupancy tenant (Aadipatya krishak) u/s 169 of the Code and, hence, by efflux of time, he acquired the status of bhumiswami u/s 190 of the Code and negated the claim of defendant No. 1. At the appellate stage, defendant No. 1 has filed an application under Order VI Rule 17 CPC, thread-bear discussed in that behalf in paragraph 19 of the impugned judgment which is self-contained and explanatory. Hence, the application was rejected primarily on the premise that the same was barred and no reason was shown as to why the aforesaid amendment was not brought at the time of trial and otherwise the proposed amendment was found to be bald averments and suffer from the inherent contradictions and inconsistency in the written statement. As regards claim of mesne profits, first appellate Court has further found that there was no partition amongst members of the joint family and suit land jointly owned by plaintiff and defendants. The suit land falling to the share of plaintiff has also been cultivated by defendant No. 1 and the earning therefrom was ordered to be apportioned and directed defendant No. 1 to pay to the plaintiff at the rate of Rs. 5,000/- per annum upon meticulous evaluation of the evidence on record in paragraph 22 of the impugned judgment. With the aforesaid findings, the first appellate Court has decreed the suit to the effect that plaintiff is entitled for 1/3rd share out of the suit land admeasuring 3 bigha 19 biswa falling in survey No. 374 and admeasuring 6 bigha 19 biswa falling in survey No. 385 situated in village Banbada and also possession of the suit land and mesne profits at the rate of Rs. 5,000/- per annum from the defendant No. 1/his legal heirs.

Having gone through the concurrent impugned judgments rendered by the Courts below and the record of the case, this Court is of the opinion that both the Courts below have recorded pure findings of fact based on proper appreciation of the entire evidence on record. As such, the findings of both the Courts below are fully justified in decreeing the suit of plaintiff and are impregnable in nature. The entire gamut of matter is in realm of facts. No question of law, much less, substantial question of law arises warranting interference u/s 100 of the Code.

Appeal sans merit and is dismissed accordingly.