Smt. Kubjan and Others vs Smt. Phulo and Others

D.B. Lal, J.—This second appeal has been brought from the decision of the learned District Judge, Simla, reversing on appeal the decision of the learned Senior Sub-Judge, Simla whereby a suit for declaration by Plaintiff Medh Ram in respect of four villages described in the plaint has been decreed. It was alleged in the plaint that the Plaintiff Medh Ram and the Defendants 1 to 12 derived title from a common ancestor. The family possessed cultivatory area in village Khenat, Rehal, Baichira, Javag and Bhadaun as well as in villages Shili-Bhagi and Chanan. A partition took place between the ancestors of the Plaintiff and the ancestors of Defendants No. 1 to 12 and the land comprising in first four villages was given to the branch of the Plaintiff while the land falling in the subsequently mentioned two villages was given to the branch of the Defendants No. 1 to 12. As a result to that partition which took place in 1960 B.K. the respective parties came in possession and enjoyed the usufruct of the land. In the Shajra Nasab which were prepared during the settlement, this partition was noted and acted upon by the parties. On 27-11-1964 the Defendants 1 to 4 and 8 to 11 sold some part of the land from the four villages Khenat etc. to the Defendants No. 13 to 15 and the husbands of Defendants No. 16 and 17 for which they had no right or title because they were not the owners of the land. As such according to the Plaintiff the sale deed was not binding upon him and was ineffective to the extent of his share in the four villages.

The Defendants pleaded inter alia that no partition had taken place in the family and that the vendor-Defendants were co-sharers and hence could very well sell their shares to the vendee-Defendants. Besides that, several other pleas were raised as bona fide purchaser for value, estoppel, want of jurisdiction in the Court, etc. Before the Court below, the parties essentially contested on the plea regarding title, devolving in favour of the Plaintiff and about the vendees being bona fide purchasers for value without notice. The trial Court gave the findings against the Plaintiff and dismissed the suit. However, in the first appeal before the learned District Judge, the Plaintiff succeeded and it was held that partition was proved and that the vendor-Defendants could not sell any land from these four villages to the vendee-Defendants. As such it was held that the said sale deed executed on 27-11-1964 did not transfer any right or title of the Plaintiff. As such the suit was decreed. The Defendants have felt aggrieved with that decision and have come up in second appeal.

At the very outset, this being a second appeal, any finding of fact arrived at in the Court below, cannot be reconsidered, however erroneous that finding might be according to the Appellant. In Deity Pattabhiramaswamy Appellant v. S. Hanymayya and Ors. Respondents AIR 1959 S C 57 , their Lordships were rather emphatic when they stated that the provisions of Section 100 are clear and un-ambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross the error may seem to be. Nor does the fact that the finding of the first Appellate Court is based upon some documentary evidence make it nonetheless a finding of fact. In Narain Das Vs. Banarsi Lal and Others, it was decided that a question as to whether there was a partition in the family is entirely one of fact. In the instant case we are considering a question of partition between the family members and the learned District Judge has arrived at a finding of fact that this partition did take place in 1960 B.K. and took into consideration the evidence both documentary and oral to arrive at that finding. That was really a finding of fact and cannot be questioned in the second appeal.

However, the learned Counsel attempted to point out that the interpretation made of documents was not correct and that wrong inferences were drawn and so some questions of law would arise which need be decided by the High Court. Considering this aspect of argument of whatever value it is, I propose dealing with the evidence in order to know as to whether wrong inferences were drawn from documents and as to whether no evidence as to partition existed for which the learned Counsel pleaded.

Shajra Nasab (pedigree table) is prepared at the time of settlement and according to Section 31 of the Punjab Land Revenue Act (admittedly applicable in this case) is included in the record of rights for which a presumption of truth attaches u/s 44. Shajra Nasab is admittedly one of these documents which are included in the record of rights under the order of the Financial Commissioner and the State Government. In Douies Punjab Settlement Manual, Appendix VIII, paragraphs 5, 6 and 8 it is specified that in the footnote of Shajra Nasab the previous history of the village and the origin of rights as well as division of the land are mentioned. Besides that under the names of agnates still living but not in possession a brief note is to be written as to where they now live. These paragraphs of Douies Manual, were noticed by their Lordships in Gurdit Singh and Ors.--Plaintiffs-Appellants v. Kartar Singh and Ors.--Defendants-Respondents AIR 1928 Lah 214, Jhanda Singh and Ors.--Plaintiffs-Appellants v. Mt. Banto and Anr.--Defendants-Respondents AIR 1927 Lah 477, and Wali Muhammad and Ors.--Defendants-Appellants v. Muhammad Bakhsh and Ors.--Plaintiff-Respondents AIR 1924 Lah444 . In the last noted case it was observed that these entries in the pedigree table are made in accordance with the requirements of the law so a presumption of truth arises u/s 44 of the Punjab Land Revenue Act. It is a different matter that these entries may be inconclusive and need be corroborated by some other evidence. The presumption of correctness was, of course, liable to be attacked by other evidence. If such entries appear on the face of them to be erroneous, a Court would be justified in not accepting them. In Jhanda Singh and Ors. (supra) their Lordships referred to kaifiat dehi in the pedigree table and held that this footnote or kaifiat dehi are given in accordance with law and a presumption of truth arise in respect thereof. It is a different matter that these entries may not prove the nature of the property owned by the ancestors. In Gurdit Singh and Ors. (supra) it was held that the entries dealing with the ownership of land included in the pedigree have a presumption of truth attached to them. This is a different matter that some evidence aliunde may also be available to strengthen them, as it is in the present case. In AIR 1931 45 (Privy Council) a question arose regarding statement made in the pedigree table and it was held that if any members of the family, a person who presumably knew all about the family, had stated such and such a pedigree, that evidence would be receivable, its weight depending upon other circumstances. I am, therefore, on a firm ground to hold that the footnote of the pedigree table was good evidence in the case and could be availed of to prove the partition. The Appellant relied upon Pirthi and Ors.--Plaintiff-Appellants v. Mt. Kanta Devi Defendant and Ors. Plaintiffs-Respondent AIR 1939 Lah 309. In that case it was decided that a pedigree table may be presumed to be correct about the relationship shown in it and even the devolution of property may be rightly shown in the pedigree table, the reason for the devolution will not be a matter which is strictly an essential part of the pedigree table and the accuracy thereof will not carry any presumption of truth. In that case their Lordships were considering as to whether certain persons were collaterals and the devolution was made in their favour as they were collaterals, that fact was not presumed to be correct from the pedigree table. At the same time the entries regarding devolution were considered carrying with them a presumption of truth. Similarly in the present case the entries regarding devolution by partition of land in the disputed villages would be presumed to be correct as mentioned in these pedigree tables.

In the pedigree table Ex. P.W. 4/1 and Ex. D. 16 which related to village Bachari the footnote indicated that the line of Garboo (of the Defendants) resided in Pargana Bhagi. In Exs. P.B. and P.W. 4/2 which are pedigree tables for village Chanan, for the line of Mahantu and Ram Dayal (of the Plaintiff) it is written that as a result of partition in the family they have become owners in village Bhachri. In Ex. P. 1 and Ex. P.W. 4/E which are pedigree tables for the village Shilli Baggi it is mentioned that the line of Mahantu and Ram Dayal lives in village Khanet as a result of the partition in the family. The other revenue records Part Khewat and Khatauni indicate that in the owner''s column both the branches were entered although in the cultivation column exclusive possession was mentioned of one of the branch. That again signifies partition as alluded to by the learned District Judge. It would be immaterial that in the owners'' column correct entries have not been made.

In the plaint a definite allegation was made in paragraphs 1 and 2 that both the parties belonged to the same family and that the disputed land situate in pargana Kaljun, namely these four villages, formerly belonged to their common ancestor. In the written statement these two paragraphs were denied in a vague manner and it was written that the Defendants had no knowledge about it. The vague or evasive reply by the Defendants cannot be considered to be a denial of fact alleged by the Plaintiff. In Badat and Co., Bombay, Appellant v. East India Trading Co--Respondent AIR 1964 Supreme Court 538, the evasive or vague denial of facts in the written statement was even to be considered as admission of those facts. Therefore, if these four villages were formerly belonging to a common ancestor and the parties belong to the same family, it was for the Defendants to satisfy as to how they came into exclusive possession of land of the other two villages Shilli-Bhaggi and Chanan which also belong to the same family. The Defendants have not disclosed in their written statement as to how their family acquired land in these two villages, and an inference was rightly drawn that they acquired land in these two villages as a result of partition in the family.

The learned District Judge also considered the oral evidence and he truly referred to the statement of DW-3 Surat Ram who proved circumstances to indicate partition. No exception can be taken to the inference drawn by him from that evidence.

It was pointed out on behalf of the Appellant that certain mortgages were redeemed and the entries with regard thereof indicated that members of both the branches participated in the redemption. But that was so because the Khewat and Khatauni entries still existed in the name of both the branches and those recital were made while redemption was entered in the documents. No one cared to correct those entries and the recital were repeated as if both the branches had redeemed the mortgages. To my mind, that would be very proper explanation.

I am, therefore, of the opinion that the conclusion is irresistible from this evidence on the record that a partition took place in the family as far back as in the year 1960 B.K. and whatever evidence could be produced decidedly proved such partition. As such the suit was rightly decreed by the learned District Judge and no compelling reasons are found to take a different view in the matter. The appeal is accordingly dismissed with costs.