Tika Ram vs Rajendra Singh and Others

Rohit Arya, J.

This appeal by plaintiff is directed against the judgment and decree passed by the first appellate court dated 30/6/2005 in civil appeal No. 106A/2004 confirming the judgment and decree passed by the trial court dated 20/9/2004 in civil suit No. 61A/2003. Plaintiff''s suit for declaration and permanent injunction has been dismissed.

Plaintiff by filing a suit inter alia contended that the land, described in para 1 of the impugned judgment, situated in village Tilikheda, Tahsil and District Guna (hereinafter referred to as ''the suit land'') is of his ownership and possession. Defendant no.2 has no right, title and interest over the suit land, therefore, the sale deed executed by him in favour of defendant no.3 in respect of the suit land be also declared as null and void with further relief of injunction against defendant no.1 not to interfere in possession of the plaintiff. In support of his assertion as regards right, title and interest over the suit land, it is contended that the suit land was originally of the ownership and possession of one Tulsiram. His name was duly recorded in the revenue records. After death of Tulsiram, plaintiff being the natural heir became the exclusive owner of the suit land, however, in Samvat 2020 defendant no.2-Ramkishan manipulated his name in survey nos.47, 62, 68, 495 and 499 to the extent of half of the aforesaid land without notice and knowledge to the plaintiff, however, plaintiff continued to be in possession of the suit land. The claim of Ramkishan that he is the son of Mardan Singh was factually incorrect. In fact Mardan Singh had one legally wedded wife. Tulsiram; father of the plaintiff, had born out of the said wedlock. After death of first wife; mother of Tulsiram, Mardan Singh had kept one lady, namely, Jadiyabai and Jadiyabai had brought Ramkishan with her, who was dependent in the family of the plaintiff. As such, he not being the son of Mardan Singh had no right to claim share in the suit property, therefore, mutation recorded in the name of Ramkishan to the extent of half share is illegal.

As regards land falling in survey no.67 admeasuring 0.157 hectare, it is submitted that the said land is in joint possession of co-owners; plaintiff and defendant no.2, purchased by virtue of joint sale deed. There is no partition effected between the plaintiff and Ramkishan and, therefore, the same be declared to be of joint ownership of plaintiff and defendant no.2. Since on 22/10/1999 defendant no.1 with group of persons armed with deadly weapons since threatened to take forcible possession of the suit land asserting right and interest over the same by virtue of sale deed executed by defendant no.2 in his favour, the instant suit was filed.

Defendants no.1, 2, 4, 5 and 6 have filed separate written statements and denied plaint allegations. It is submitted that defendant no.2 was the son of Mardan Singh born out of cohabitation of Mardan Singh and Jadiyabai. It is denied that Jadiyabai had brought Ramkishan with her when she was kept by Mardan Singh. It is denied that the suit land is of exclusive ownership and possession of Tulsiram. It is denied that by illegal means defendant no.2 manipulated the entries in the revenue records and got his name mutated in the revenue records to the extent of half of the suit land. As regards the suit land falling in survey no.67 it is further submitted that though the said land is of the joint ownership of plaintiff and defendant no.2, but it is denied that there was no partition effected between the two. As regards family tree, it is submitted that Mardan Singh was blessed with father of plaintiff Tulsiram from his first wife-Balo Bai and after death of Balo Bai, Mardan Singh married to Jadiyabai and out of their wedlock Koshiyabai born and thereafter another girl child born, who died in early age, and thereafter defendant no.2 born and, therefore, defendant no.2 is the legitimate son of Mardan Singh. It is submitted that father of plaintiff and defendant no.2 are brothers. Except the land of survey no.67, remaining suit land is the property of joint Hindu family where both Tulsiram and Ramkishan had equal share. Accordingly, the suit land is recorded in revenue records. After death of Tulsiram, in the half share of suit land name of plaintiff and his sister-Rambai was recorded and in the remaining half share name of defendant no.2 continued. After partition having been effected amongst the plaintiff and his sister and defendant no.2 the suit land had fallen to the share of defendant no.2 and accordingly, mutation was done recording separate partitioned land. Likewise, land of survey no.67 had also been partitioned between the two and accordingly, revenue records were corrected. Defendant no.2 out of land falling in survey no.47/1 rakwa 0.439 hectare, has sold land admeasuring 0.314 hectare to Hari Singh by registered sale deed in the year 1991. No objection whatsoever was raised by the plaintiff. Now the defendant no.2 is left with only land admeasuring 0.125 hectare. Likewise, it is submitted that different parcels of the land of the title and possession of defendant no.2 have been sold to different buyers. With the aforesaid pleadings, it is prayed that the suit be dismissed.

On aforesaid pleadings, trial court framed issues and allowed parties to lead evidence. On critical evaluation of evidence on record, trial court dismissed the suit. On appeal, the first appellate court has reconsidered the entire oral and documentary evidence on record and concluded that the plaintiff failed to establish that defendant no.2 was not the son of Mardan Singh and plaintiff is the exclusive owner of the suit land. It has been found that plaintiff and defendant no.2 were the brothers sons of Mardan Singh and, therefore, had equal share in the suit land falling in survey nos.47, 62, 68, 495 and 499. The first appellate court has also found that partition was effected after death of Tulsiram between plaintiff, his sister and defendant no.2 and out of the land fallen in share of defendant no.2, sale deed was executed by him in favour of Hari Singh. Likewise, the findings as regards partition of the suit land falling in survey no.67 has also been found to be established considering the oral and documentary evidence brought on record. With the aforesaid findings, the first appellate court has confirmed the findings of facts recorded on merits of the dispute. However, the first appellate court has reversed the conclusion of the trial court that the suit was barred by time and found that as the sale deed dated 30/8/1999 was questioned, therefore, considering the provisions contained in Article 58 of the Limitation Act, the suit was well within time. However, the aforesaid finding does not improve upon the case of plaintiff as regards merits where both the courts below have dealt with the issue as regards ownership and possession as well as partition between the plaintiff and defendant no.2 and thereafter, subsequent sale deed by defendant no.2 in favour of defendant no.3-Hari Singh.

Having perused the impugned judgment and decree passed by the courts below, in the opinion of this Court, both the courts below have threadbare discussed the oral and documentary evidence brought on record and recorded correct findings of facts. The entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law arises in this appeal warranting interference under Section 100 CPC. Accordingly, the second appeal sans merits and is hereby dismissed.