VISHNURAM BHAGAT DEAD THROUGH LRS vs A SHIVPOOJAN

This appeal under Section 96 of the Code of Civil Procedure 1908 is directed against the impugned judgment and decree dated 28th December 1995

passed in Civil Suit No.1-A of 1993 by the Additional District Judge, Jashpurnagar, Raigarh.

The appellants/plaintiffs filed a suit seeking declaratory decree that the plaintiffs be declared title holder and in possession of suit property shown in

Schedule “B†and “D†appended with the plaint along with the other ancillary reliefs on the pleadings inter alia that one Bechan Oraon,

predecessor and common ancestor of the parties, held land comprised in Schedule -â€A†of the Plaint. Bechan Oraon had three sons namely Mutu

Oraon, Sohrai Oraon and Bandhu Oraon. It was pleaded that the land shown in Schedule -â€A†of the plaint were settled in favour of Bechan and

his three sons Mutu, Sohrai and Bandhu and they all remained in cultivating possession. At the time when settlement took place in the year 1929, name

of Mutu was recorded in respect of the land as he was the eldest son and looking after the agricultural activity. The other son Bandhu was not in the

village and had already left the village in connection with his livelihood. Third son Sohrai had died and his sons were not mature and one of his son was

minor also. According to plaintiffs' pleading, taking advantage of this situation, Mutu got most of the land recorded in his own name, particularly land

comprised in khata no. 44 of Village- Putrichaura and land comprised in khata No.78 of village Lodam was recorded in the name of Mutu. Only 1.83

decimal of land comprised in khata No.37 of village Putrichaura was recorded in the name of Bandhu and name of Mani Oraon and Bechuaa was not

recorded in any of the land situated in village Putrichaura or Lodam. According to plaintiffs, even though, at the time of settlement, the land were

recorded separately in the name of Bechan, Mutu and Bandhu, they all remained in joint possession and later on, partition had taken place amongst

them in which land comprised in Schedule -â€B†was given to sons of Sohrai namely Mani and Bechuaa, land comprised in Schedule -â€C†was

given to Mutu and land comprised in Schedule-â€D†was given to Bandhu. However, as the defendants No. 1 to 4 objected to mutation of the names

of the plaintiffs who were successors of Sohrai and Bandhu, an occasion arose for filing of a suit and seeking declaration.

In their written statement, the defendant No. 1 to 4, successors of Mutu, disputed the Plaint's claim and stated that Bechan and his sons namely

Mutu, Sohrai and Bandhu were not holding any joint property. Mutu had acquired his own land which he was cultivating under his own right.

Therefore, his name was recorded separately and exclusively in respect of the land which he was cultivating, in the settlement records in the year

1925. The name of Bechan was recorded on the land which he was cultivating and name of Bandhu was recorded in respect of the land which he

was cultivating at the time when settlement had taken place in the year 1925. As Sohrai was not residing in the village and he had already left the

place and had settled at another place and was not cultivating any land, no land was settled in his favour. This position continued since long. A suit

was filed by Mani and Bechuaa in the year 1935 for possession based on their claim of share and partition which was dismissed by the Court vide

judgment and decree dated 16.4.1935 in Civil Suit No.8/1934-35.

On the basis of pleadings of the parties, learned trial Court framed following issues :

“1- D;k oknxzLr Hkwfe iqLrSuh gS \

2- D;k i{kdkjksa ds chp ekSf[kd cVokjk gqvk Fkk \

3- D;k cVokjk ds vuqlkj vuqlwph “c†dh Hkwfe ef.k ,oa cspu dks vuqlwph “l†dh Hkwfe eqVq dks] vuqlwPkh “n†dh Hkwfe ca/kq dks

feyh Fkh \

4- D;k vuqlwph “câ€​ ,oa “nâ€​ dh Hkwfe ij okfn;ku 'akkfr iwoZd dkfct gS \

5- D;k okfn;ku ,MolZ its'ku ds vk/kkj ij oknxzLr Hkwfe ds Lokeh gkspqds gSa \

6- lgk;rk ,oa okn O;; \ “

In order to establish their case, the plaintiffs relied upon as many as 8 documents and examined three witnesses namely Vishnu Ram Bhagat

(PW1), Suka (PW 2) and Firuram (PW3). The defendant did not rely upon any document but they examined Manchan Ram as DW-1, Silwanus as

DW-2 and Hetua as DW-3.

Learned trial Court held that the plaintiffs failed to prove that the land shown in Schedule -â€A†appended to the plaint constituted joint family

property in the absence of there being evidence of the other land held by Bechan Oraon or that they were held jointly by Bechan along with his three

sons Mutu, Soharai and Bandhu. As the finding on this issue went against the plaintiffs, all other issues were also decided against the plaintiffs and the

suit was dismissed. It is against this judgment and decree, present appeal has been filed.

Learned counsel for the appellants argues that the learned trial Court while recording finding on issue No.1 that the property is not the ancestral

property, has ignored to properly appreciate oral and documentary evidence led by the plaintiffs in this behalf. He would submit that the plaintiffs have

proved that the land situated in village Silam Ambatoli, District- Gumla, the then State of Bihar were held jointly by three brothers Mutu, Bandhu and

Sohrai and has proved it from the relevant revenue entries recorded in the revenue record and proved as Ex.P-5. The plaintiffs have also proved that

in the year 1992, a part of the land comprised in khasra No.158 and khasra No.474 of khata No.44 situated in village Putrichaura which is claimed to

be Mutu's exclusive property on the basis of settlement record of 1925, was jointly sold by successors of Mutu namely Darpan, Manchan and

successor of Bandhu Oraon namely Bolva. He has also relied upon rin-pustika (Ex.P-7) which also shows that land comprised in various khasra

numbers of khata No.44 of Village Putrichaura, which are claimed by Mutu as his exclusive property on the basis of settlement in the year 1925 were

shown to be jointly cultivated by not only the successors of Mutu but also the successors of Bandhu Oraon which shows that in respect of the land

comprised in khata No.44 also, the land were held jointly and, therefore, it is argued, merely because at the time of settlement, the land were recorded

exclusively in the name of Mutu under Ex.P-2 & P-3, in respect of the land under khata No.44 of village Putrichaura and khata No.78 of village

Lodan, plaintiffs could not be non- suited. In so far as judgment of trial Court in the year 1935 is concerned, it was merely a suit of possession and

even though Mani and Bechuaa lost the same for want of proof of partition, the suit filed by their successors along with the successor of Bandhu

cannot be said to be not maintainable. He would submit that the trial Court, in fact, not framed any such issue regarding maintainability of the suit on

the ground that the issue involved in the present suit was already adjudicated between the parties or between their predecessors.

On the other hand, learned counsel for the respondents submits that the suit was not maintainable because earlier, the sons of Sohrai namely Mani

and Bechuaa had filed a suit before the Civil Court way back in the year 1935 claiming possession, on the pleadings that properties were joint and

after death of Bechan, they were entitled to their equal share in respect of land situated in village Putrichaura and Lodam. The suit was dismissed

holding that Mani and Bechuaa are not entitled to any such decree of possession on the basis of their claimed share in respect of suit property.

Against the said judgment and decree, no appeal was preferred and therefore the successors in interest of Mani and Bechuaa as also successors of

Bandhu were bound by the said judgment and decree. He would further submit that once all the settlement records clearly reflected that in so far as

land comprised under khata No. 44 of village Putrichaura and land comprised in khata No.78 of village Lodan are recorded exclusively in the name of

Mutu since 1975, any subsequent documents of sale or recording of name in rin-pustika would not create a title in favour of the plaintiffs in respect of

lands which belong to Mutu Oraon. He would submit that in fact there is no evidence on record that these lands belong to Bechan so as to say that

after the death of Bechan, his three sons Mutu, Sohrai and Bandhu succeeded these properties by way of inheritance. In the absence of there being

any evidence of joint acquisition of the land by three brothers, plaintiffs are not entitled to any declaration. He would further add by submitting that the

suit was earlier filed by Mani and Bechuaa in which Mutu and Bandhu were defendants. The claim of possession was based on entitlement to share

on the basis that there was a partition of joint family property. That suit having been dismissed and no appeal having been filed against such judgment

and decree either by Mani and Bechuaa or by Bandhu, it became final as between the parties.

Therefore, decades thereafter, their successors could not re-agitate claim.

I have considered the rival submissions made by learned counsel for the parties and perused the records of the Court below.

10.A perusal of judgment and decree passed on 16.4.1935 in Civil Suit No.8/1934-35 show that in the suit filed by Mani and Bechuaa against Mutu

and Bandhu, claim for possession of holdings of village Putrichaura and Lodam was founded on the pleading that land of these villages belonged to

Bechan and after death of Bechan, all the three sons were entitled to equal share and a partition had taken place and therefore, on the basis of

partition, they are entitled to possession of their respective share. This claim of the plaintiffs was found not tenable and the suit was dismissed. As

neither Mani and Bechuaa nor Bandhu challenged the judgment, it attained finality.

11.The plaintiffs' case is based on the pleading that the suit property described in Schedule- “A†appended to the plaint were the ancestral

property and originally belonged to Bechan Oraon. However, in order to establish that all the land shown in Schedule -â€A†belong to Bechan, no

clinching documentary evidence could be brought by the plaintiffs. The plaintiffs have relied upon various settlement records entries of year 1925. The

only record (Ex.P-1) in respect of land shown in khasra No.1 of village Putrichaura shows that these land were recorded in the name of Bechan. The

settlement records of the year 1925 in respect of the land comprised in khata No.44 of village Putrichaura exclusively recorded the name of Mutu

which is clear from Ex.P-2. Similarly, land comprised in khata No.78 of Village- Lodam has been exclusively recorded in the name of Mutu which is

clear from Ex.P-3. Land comprised in Khata No.37 of Village Putrichaura has been recorded exclusively in the name of Bandhu which is clear from

Ex.P4. Therefore, it would be seen that the land, at the time of settlement, were recorded separately in the name of Bechan, Mutu and Bandhu. No

land were settled in favour of Soharai or his sons namely Mani and Bechuaa. The plaintiffs' case is that Soharai had already left the village and has

settled in Bihar. These revenue records go against the pleading of the plaintiffs that Bechan was the holder of the land shown in Schedule- “A†.

On the contrary, it is clear that at the time of settlement in 1925, land were recorded separately in the name of Bechan, Mutu and Bandhu with no land

settled in favour of Mani or Bechuaa. This is clearly against the claim of jointness of the holdings. Moreover, in the absence of there being any

clinching documentary evidence that all lands shown in Schedule -â€A†were earlier held by and recorded in the name of Bechan, it cannot be said

that these were ancestral property of the parties to the suit and, therefore, they are entitled to get a share in the property.

12.On the strength of sale deed in the year 1992, rin-pustika and joint holdings of Mutu, Sohrai and Bandhu in respect of the land situated in State of

Bihar, the plaintiffs have sought to establish a case that this would lead to a presumption that the entire land described in Schedule -â€A†of the plaint

should be treated as joint family property.

13.After giving my anxious consideration to the submissions made by learned counsel for the appellants, I am unable to accept the same in the

absence of there being any evidence to show that the land comprised in Schedule“A†were held by Bechan Oraon, and therefore, it cannot be

claimed that after death of Bechan, his three sons would be entitled to succeed to the property by way of inheritance.

14.There is no evidence on record to show as to how and in what manner the land described in Schedule -â€A†appended to the plaint were jointly

acquired by Mutu, Bandhu and Sohrai together with their father Bechan so as to say the land belonged to all of them jointly. In the absence of any

foundation of title, by subsequent entries made at one or the other place, the plaintiffs could not seek declaration of their title over the property.

Declaration of title can be granted by the Court only when the acquisition of title is proved either by inheritance or by other means like purchase, grant

etc.

15.True it is that the lands comprised in khata No.1 of Village- Putrichaura were shown to have been settled in the name of Bechan at the time of

settlement in the year 1925, which is reflected from Ex.P-1. However, the evidence on record shows that these lands were acquired by the

Government. In any case, once Mani and Bechuaa have lost in the suit in respect of these very properties, their successors are not entitled to any

such decree in respect of these properties which were subject matter of consideration in the earlier suit.

16.In the result, I do not find any merit in the appeal. The appeal is therefore dismissed.