Chhabi Lal and ors. Vs. Rajveer Singh and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/478276
SubjectCivil;Property
CourtAllahabad High Court
Decided OnApr-24-2009
JudgeSanjay Misra, J.
Reported in2009(3)AWC2521
AppellantChhabi Lal and ors.
RespondentRajveer Singh and ors.
DispositionAppeal dismissed
Cases ReferredRadhey Shyam and Ors. v. Uma Shanker and Ors.
Excerpt:
- - 687 clearly recorded that rajveer and ors. , allahabad 2005 (3) awc 2877 a learned single judge of this court has clearly recorded that even exclusive possession for about 40 years cannot confer any right upon the party to have that particular plot in his share and leave the other co-sharers to take the other plots. srivastava, the trial court and the first appellate court have recorded a concurrent finding of fact that the property was jointly owned by the parties and has been partitioned in view of the transfers made of specific portions defined by boundaries and area of various other plots by other co-sharers and therefore, the factum of partition was clearly visible in the instant case. he states that in view of the oral statement, if the property has been partitioned amongst the co-sharers at the time of their father bhogi lal in the year 1973 and subsequently the owners had transferred specific areas in the plots exclusively, the circumstances clearly indicate of a partition effected between the co-sharers. 687 area 1.88 acre and the second is that there is no admission of partition of the plot in question by the defendant-witnesses and, therefore, the courts below have misled themselves in decreeing a suit of injunction against a co-sharer which is clearly barred under law. , the defendant had clearly stated that plot no. was initiated and the defendant himself had filed his affidavit therein clearly stating before the court that there had been a family partition of the plot in question and he was entitled to 1/5 share in the joint property. for the aforesaid reason, the concurrent finding of the courts below that partition had been effected cannot be upset in this second appeal since the same is based on documentary and oral evidence and the law cited by sri arvind srivastava regarding the said issue is clearly not applicable in the facts and circumstances of the present case because partition has been effected between the parties and the attempt to prove partial partition by the defendants has not been proved.sanjay misra, j.1. heard sri arvind srivastava learned counsel for the defendant-appellant and sri h.m. srivastava alongwith sri neeraj srivastava learned counsel who has put in appearance by caveat on behalf of the plaintiff respondent no. 1. the respondent nos. 2, 3, 3/1 and 4 have been described as proforma defendant-respondents being certain purchasers of the land. since the contesting parties have been heard, this appeal is being decided today itself on the substantial questions of law framed in the memorandum of appeal.2. this second appeal has been filed against the judgment and order dated 5.12.2008, passed in civil appeal no. 20/2008 by the additional district judge iv, firozabad whereby the defendant's first appeal has been dismissed and the judgment and decree of the trial court issuing an injunction in favour of the plaintiff-respondent against the defendant-appellants has been confirmed.3. sri arvind srivastava learned counsel for the defendant-appellants has assailed the impugned judgment on the ground that there was no partition effected between the co-sharers and when the name of all the co-sharers was recorded in the revenue records over plot no. 687 area 1.08 decimal, the courts below could not decree a suit for injunction at the instance of one co-sharer against the other co-sharers. he has also submitted that the courts below have misread the statement of d.w. 1 and d.w. 2 where they have not admitted partition amongst the co-sharers and have relied upon a solitary sentence in the oral statement and hence have committed an illegality by misreading the statement because the partition alleged in that sentence related to possession and sale of the share. he also states that document no. 114 (ga) which was khataunl of plot no. 687 clearly recorded that rajveer and ors. were entered over the plot in question and the courts below have committed an illegality in holding that the name of rajveer was entered over the plot in question and hence the revenue entry was a clear indication of partition between the parties.4. sri arvind srivastava has placed reliance on a decision of the hon'ble apex court in the case of kamla prasad v. kishna kant pathak and ors. : 2007 (4) scc 213 : 2007 (2) awc 1764 (sc) and has relied upon paragraphs 12 and 15 of the judgment to state that when the plaintiffs case itself was that he is not the sole owner of the property and the defendants also had right, title and interest therein, the dispute of shares amongst the shareholders could only be decided by the revenue court and the civil court could not entertain a suit for injunction.5. he has also relied upon a decision of the hon'ble apex court in the case of chinthamani ammal v. nandagopal gounder 2007 (2) awc 1619, to state that there is a presumption with regard to continuance of a joint family and the party who raises a plea of partition is to prove the same. even separate possession of portions of the property by the co-sharers itself would not lead to a presumption of partition.6. he states that in jahar singh v. board of revenue, u.p., allahabad : 2005 (3) awc 2877 a learned single judge of this court has clearly recorded that even exclusive possession for about 40 years cannot confer any right upon the party to have that particular plot in his share and leave the other co-sharers to take the other plots. the possession of one co-sharer is always possession of all the co-sharers and actual occupation of the shareholders may be a relevant factor only when other things including market value are equal.7. he has relied upon a decision of this court in the case of radhey shyam and ors. v. uma shanker and ors. 1997 (88) rd 267 : 1997 (2) awc 1138, to state a similar proposition regarding jointness of the property amongst the co-sharers unless it is partitioned by a specific instrument and mere occupation cannot entitle a co-sharer to claim that partition has been done and such exclusive possession does not extinguish the right of a co-owner who has been out of possession of the joint property except in a case of abandonment.8. sri h.m. srivastava learned counsel for the plaintiff-respondent produced a copy of the khatauni paper no. 114 (ga) which indicates that the revenue entry relating to the plot in question is in the name of rajveer and ors. according to sri h.m. srivastava, the trial court and the first appellate court have recorded a concurrent finding of fact that the property was jointly owned by the parties and has been partitioned in view of the transfers made of specific portions defined by boundaries and area of various other plots by other co-sharers and therefore, the factum of partition was clearly visible in the instant case. according to him, the admission of d.w. 1 and d.w. 2 regarding partition of the joint family properties is to be read with their oral statement which states that the other properties have been partitioned but only the plot in question has not been partitioned. he states that in view of the oral statement, if the property has been partitioned amongst the co-sharers at the time of their father bhogi lal in the year 1973 and subsequently the owners had transferred specific areas in the plots exclusively, the circumstances clearly indicate of a partition effected between the co-sharers. moreover, in view of the statement of d.w. 1 and d.w. 2. a case of partial partition is attempted to be set up but it has not been proved by any cogent evidence.9. sri arvind srivastava in his reply has submitted that there are two aspects which were required to be considered by the courts below and have been omitted. the first is that the name of the co-sharers has been entered in plot no. 687 area 1.88 acre and the second is that there is no admission of partition of the plot in question by the defendant-witnesses and, therefore, the courts below have misled themselves in decreeing a suit of injunction against a co-sharer which is clearly barred under law.10. having considered the submission of learned counsel for the parties, perused the record and the decisions cited by them, it will be seen that both the courts below have gone through the documentary evidence filed by the defendants and the plaintiffs to indicate that tara singh had executed a sale deed of plot no. 655/1 (ka) area 27 decimal and plot no. 656. it is also recorded that in an execution case relating to the aforesaid two plots in proceedings under order xxxix, rule 2 (a), c.p.c., the defendant had clearly stated that plot no. 687/1.8 decimal had been partitioned between the parties and the defendants had 1/5 share in the joint family properties. the court considered the evidence of d.w. 1 and d.w. 2 and recorded that the factum of partition has been accepted while he was being questioned about the transfer of plot no. 655 and plot no. 656. the courts below have therefore, concluded that a partition had taken place between the family and since the name of rajveer singh is entered over the plot in question, the same was in his ownership in view of the partition.11. it is not disputed that bhogi lal had married twice. from his first wife, the defendants chhabi lal, tara singh and chhuware lal were born and from his second wife, the plaintiff rajveer singh and latoori singh were born. the case was that bhogi lal in the year 1973 had partitioned his holdings amongst all his five sons. this was denied by the defendant-appellants who stated that neither any partition had taken place nor there was any written document or memorandum and therefore, the plot in question having been entered in the revenue records in the name of all the co-sharers could not be held to exclusively belong to the plaintiff and hence no injunction could be granted. this submission is to be considered in light of the decisions cited by learned counsel for the defendant-appellants where the proposition of law sought to be applied in the facts of this case is that the jointness of property is to be presumed unless it is proved that partition has been effected between the parties. the law laid down in the decisions cited by learned counsel for the defendant-appellants is quite clear that the jointness of the joint family property is to be presumed and if a plea of partition is raised by a party, he has to prove the same. when there is no dispute with respect to the law settled by the courts as stated above, the question that has to be considered in each case is whether in the given facts and circumstances, the law laid down would be applicable.12. in the present case, the finding of both the courts below is with respect to a partition effected by bhogi lal in the year 1973. this finding has been supported by the courts below on the basis of transfers made by other brothers of plot no. 655 and plot no. 656. the transfer of the aforesaid plots is not denied by the defendant-witnesses and in fact the transfers have been proved by documents filed by the plaintiff. admittedly, these two plots were also belonging to bhogi lal. the other factor is that in one of such transfers, a proceeding under order xxxix, rule 2 (a), c.p.c. was initiated and the defendant himself had filed his affidavit therein clearly stating before the court that there had been a family partition of the plot in question and he was entitled to 1/5 share in the joint property. therefore, when there is an admission of partition in an affidavit filed in another case and the factum that the brothers have sold other plots which originally formed the property of the joint family, both the courts have believed that the partition of 1973 had been effected and therefore, the entry of the plaintiff-respondent in the revenue records over the plot in question was a sufficient indication that his name was recorded as owner.13. the question that has to be considered is whether when there was revenue entry of the co-sharers, the plaintiff-respondent was required to go before the revenue court for declaration of his share in the plot in question. insofar as the said question is concerned, admittedly the plaintiff-respondent was entered in the revenue records. once he is entered in the revenue records by an order of the revenue courts which entry is not disputed, he is the owner/co-owner of the plot in question. he is required to go before the revenue court for a declaration only if his title and interest in the plot in question was under a cloud, particularly when a revenue entry is not a proof of title. since it is not denied by the defendant-appellants that he is son of bhogi lal, he had share in the joint property and the plaintiff-respondent was entered in the revenue records over the plot in question, there is no question for holding that the plaintiff-respondent had to go before the revenue court for declaration of his title since the property is agricultural land. this is not a case where mutation entries are under challenge. in view of the aforesaid circumstances, it cannot be denied that the plaintiff-respondent was duly recorded over the plot in question and his title was not in dispute.14. the circumstances brought on record indicate that the other brothers have been selling certain plots and areas originally belonging to bhogi lal to strangers. selling of particular area of a plot in question is one circumstance which indicates that the sale deeds having been executed by defining the boundaries and area and the plot sold was not a transfer of an undivided share by the vendors. therefore, when other co-sharers did not transfer undivided share but they transferred the plot by giving the specific area and boundaries, the finding recorded by the courts below is that partition had been effected in the lifetime of bhogi lal between the co-sharers. therefore, when there is a presumption of jointness amongst the co-sharers, it can be rebutted by evidence led by the parties that partition had been effected. for the aforesaid reason, the concurrent finding of the courts below that partition had been effected cannot be upset in this second appeal since the same is based on documentary and oral evidence and the law cited by sri arvind srivastava regarding the said issue is clearly not applicable in the facts and circumstances of the present case because partition has been effected between the parties and the attempt to prove partial partition by the defendants has not been proved.15. under such circumstance, the plaintiff-respondent having filed a suit for injunction, he could not be relegated to the revenue court and the civil court had jurisdiction over the subject-matter of the suit which was for injunction based upon undisputed title of the plaintiff-respondent. in view of the concurrent finding of fact regarding possession of the plaintiff-respondent over the plot in (question, the injunction sought by him was rightly granted by the courts below.16. in view of the aforesaid circumstances, the substantial question of law framed as question nos. a, b and e are answered in the negative. the suit of the plaintiff-respondent for injunction was not barred by section 331 of the u.p.z.a. and l.r. act. the substantial question of law nos. c and d are also answered in the negative in view of the concurrent findings of fact recorded by the courts below on the basis of documentary and oral evidence and it is held that there was a family partition effected between the co-sharers with respect to the joint properties of the five brothers.17. the other substantial questions of law as have been framed in the memo of appeal are issues of fact and in this second appeal under section 100, c.p.c. a third innings on questions of fact is not permissible, particularly when there is no error in the findings of fact recorded by the courts below and it is based on the evidence on record.the second appeal is accordingly dismissed as above. no order is passed as to costs.
Judgment:

Sanjay Misra, J.

1. Heard Sri Arvind Srivastava learned Counsel for the defendant-appellant and Sri H.M. Srivastava alongwith Sri Neeraj Srivastava learned Counsel who has put in appearance by caveat on behalf of the plaintiff respondent No. 1. The respondent Nos. 2, 3, 3/1 and 4 have been described as proforma defendant-respondents being certain purchasers of the land. Since the contesting parties have been heard, this appeal is being decided today itself on the substantial questions of law framed in the memorandum of appeal.

2. This second appeal has been filed against the judgment and order dated 5.12.2008, passed in Civil Appeal No. 20/2008 by the Additional District Judge IV, Firozabad whereby the defendant's first appeal has been dismissed and the Judgment and decree of the trial court issuing an injunction in favour of the plaintiff-respondent against the defendant-appellants has been confirmed.

3. Sri Arvind Srivastava learned Counsel for the defendant-appellants has assailed the impugned judgment on the ground that there was no partition effected between the co-sharers and when the name of all the co-sharers was recorded in the revenue records over plot No. 687 Area 1.08 decimal, the courts below could not decree a suit for injunction at the instance of one co-sharer against the other co-sharers. He has also submitted that the courts below have misread the statement of D.W. 1 and D.W. 2 where they have not admitted partition amongst the co-sharers and have relied upon a solitary sentence in the oral statement and hence have committed an illegality by misreading the statement because the partition alleged in that sentence related to possession and sale of the share. He also states that document No. 114 (Ga) which was khataunl of plot No. 687 clearly recorded that Rajveer and Ors. were entered over the plot in question and the courts below have committed an illegality in holding that the name of Rajveer was entered over the plot in question and hence the revenue entry was a clear indication of partition between the parties.

4. Sri Arvind Srivastava has placed reliance on a decision of the Hon'ble Apex Court in the case of Kamla Prasad v. Kishna Kant Pathak and Ors. : 2007 (4) SCC 213 : 2007 (2) AWC 1764 (SC) and has relied upon paragraphs 12 and 15 of the Judgment to state that when the plaintiffs case itself was that he is not the sole owner of the property and the defendants also had right, title and interest therein, the dispute of shares amongst the shareholders could only be decided by the revenue court and the civil court could not entertain a suit for injunction.

5. He has also relied upon a decision of the Hon'ble Apex Court in the case of Chinthamani Ammal v. Nandagopal Gounder 2007 (2) AWC 1619, to state that there is a presumption with regard to continuance of a joint family and the party who raises a plea of partition is to prove the same. Even separate possession of portions of the property by the co-sharers itself would not lead to a presumption of partition.

6. He states that in Jahar Singh v. Board of Revenue, U.P., Allahabad : 2005 (3) AWC 2877 a learned single Judge of this Court has clearly recorded that even exclusive possession for about 40 years cannot confer any right upon the party to have that particular plot in his share and leave the other co-sharers to take the other plots. The possession of one co-sharer is always possession of all the co-sharers and actual occupation of the shareholders may be a relevant factor only when other things including market value are equal.

7. He has relied upon a decision of this Court in the case of Radhey Shyam and Ors. v. Uma Shanker and Ors. 1997 (88) RD 267 : 1997 (2) AWC 1138, to state a similar proposition regarding Jointness of the property amongst the co-sharers unless it is partitioned by a specific instrument and mere occupation cannot entitle a co-sharer to claim that partition has been done and such exclusive possession does not extinguish the right of a co-owner who has been out of possession of the Joint property except in a case of abandonment.

8. Sri H.M. Srivastava learned Counsel for the plaintiff-respondent produced a copy of the khatauni Paper No. 114 (Ga) which indicates that the revenue entry relating to the plot in question is in the name of Rajveer and Ors. According to Sri H.M. Srivastava, the trial court and the first appellate court have recorded a concurrent finding of fact that the property was jointly owned by the parties and has been partitioned in view of the transfers made of specific portions defined by boundaries and area of various other plots by other co-sharers and therefore, the factum of partition was clearly visible in the instant case. According to him, the admission of D.W. 1 and D.W. 2 regarding partition of the joint family properties is to be read with their oral statement which states that the other properties have been partitioned but only the plot in question has not been partitioned. He states that in view of the oral statement, if the property has been partitioned amongst the co-sharers at the time of their father Bhogi Lal in the year 1973 and subsequently the owners had transferred specific areas in the plots exclusively, the circumstances clearly indicate of a partition effected between the co-sharers. Moreover, in view of the statement of D.W. 1 and D.W. 2. a case of partial partition is attempted to be set up but it has not been proved by any cogent evidence.

9. Sri Arvind Srivastava in his reply has submitted that there are two aspects which were required to be considered by the courts below and have been omitted. The first is that the name of the co-sharers has been entered in plot No. 687 Area 1.88 acre and the second is that there is no admission of partition of the plot in question by the defendant-witnesses and, therefore, the courts below have misled themselves in decreeing a suit of injunction against a co-sharer which is clearly barred under law.

10. Having considered the submission of learned Counsel for the parties, perused the record and the decisions cited by them, it will be seen that both the courts below have gone through the documentary evidence filed by the defendants and the plaintiffs to indicate that Tara Singh had executed a sale deed of plot No. 655/1 (Ka) Area 27 decimal and plot No. 656. It is also recorded that in an execution case relating to the aforesaid two plots in proceedings under Order XXXIX, Rule 2 (A), C.P.C., the defendant had clearly stated that plot No. 687/1.8 decimal had been partitioned between the parties and the defendants had 1/5 share in the joint family properties. The Court considered the evidence of D.W. 1 and D.W. 2 and recorded that the factum of partition has been accepted while he was being questioned about the transfer of plot No. 655 and plot No. 656. The courts below have therefore, concluded that a partition had taken place between the family and since the name of Rajveer Singh is entered over the plot in question, the same was in his ownership in view of the partition.

11. It is not disputed that Bhogi Lal had married twice. From his first wife, the defendants Chhabi Lal, Tara Singh and Chhuware Lal were born and from his second wife, the plaintiff Rajveer Singh and Latoori Singh were born. The case was that Bhogi Lal in the year 1973 had partitioned his holdings amongst all his five sons. This was denied by the defendant-appellants who stated that neither any partition had taken place nor there was any written document or memorandum and therefore, the plot in question having been entered in the revenue records in the name of all the co-sharers could not be held to exclusively belong to the plaintiff and hence no injunction could be granted. This submission is to be considered in light of the decisions cited by learned Counsel for the defendant-appellants where the proposition of law sought to be applied in the facts of this case is that the jointness of property is to be presumed unless it is proved that partition has been effected between the parties. The law laid down in the decisions cited by learned Counsel for the defendant-appellants is quite clear that the jointness of the joint family property is to be presumed and if a plea of partition is raised by a party, he has to prove the same. When there is no dispute with respect to the law settled by the Courts as stated above, the question that has to be considered in each case is whether in the given facts and circumstances, the law laid down would be applicable.

12. In the present case, the finding of both the Courts below is with respect to a partition effected by Bhogi Lal in the year 1973. This finding has been supported by the courts below on the basis of transfers made by other brothers of plot No. 655 and plot No. 656. The transfer of the aforesaid plots is not denied by the defendant-witnesses and in fact the transfers have been proved by documents filed by the plaintiff. Admittedly, these two plots were also belonging to Bhogi Lal. The other factor is that in one of such transfers, a proceeding under Order XXXIX, Rule 2 (A), C.P.C. was initiated and the defendant himself had filed his affidavit therein clearly stating before the Court that there had been a family partition of the plot in question and he was entitled to 1/5 share in the joint property. Therefore, when there is an admission of partition in an affidavit filed in another case and the factum that the brothers have sold other plots which originally formed the property of the joint family, both the Courts have believed that the partition of 1973 had been effected and therefore, the entry of the plaintiff-respondent in the revenue records over the plot in question was a sufficient indication that his name was recorded as owner.

13. The question that has to be considered is whether when there was revenue entry of the co-sharers, the plaintiff-respondent was required to go before the revenue court for declaration of his share in the plot in question. Insofar as the said question is concerned, admittedly the plaintiff-respondent was entered in the revenue records. Once he is entered in the revenue records by an order of the revenue courts which entry is not disputed, he is the owner/co-owner of the plot in question. He is required to go before the revenue court for a declaration only if his title and interest in the plot in question was under a cloud, particularly when a revenue entry is not a proof of title. Since it is not denied by the defendant-appellants that he is son of Bhogi Lal, he had share in the Joint property and the plaintiff-respondent was entered in the revenue records over the plot in question, there is no question for holding that the plaintiff-respondent had to go before the revenue court for declaration of his title since the property is agricultural land. This is not a case where mutation entries are under challenge. In view of the aforesaid circumstances, it cannot be denied that the plaintiff-respondent was duly recorded over the plot in question and his title was not in dispute.

14. The circumstances brought on record indicate that the other brothers have been selling certain plots and areas originally belonging to Bhogi Lal to strangers. Selling of particular area of a plot in question is one circumstance which indicates that the sale deeds having been executed by defining the boundaries and area and the plot sold was not a transfer of an undivided share by the vendors. Therefore, when other co-sharers did not transfer undivided share but they transferred the plot by giving the specific area and boundaries, the finding recorded by the courts below is that partition had been effected in the lifetime of Bhogi Lal between the co-sharers. Therefore, when there is a presumption of Jointness amongst the co-sharers, it can be rebutted by evidence led by the parties that partition had been effected. For the aforesaid reason, the concurrent finding of the courts below that partition had been effected cannot be upset in this second appeal since the same is based on documentary and oral evidence and the law cited by Sri Arvind Srivastava regarding the said issue is clearly not applicable in the facts and circumstances of the present case because partition has been effected between the parties and the attempt to prove partial partition by the defendants has not been proved.

15. Under such circumstance, the plaintiff-respondent having filed a suit for injunction, he could not be relegated to the revenue court and the civil court had jurisdiction over the subject-matter of the suit which was for injunction based upon undisputed title of the plaintiff-respondent. In view of the concurrent finding of fact regarding possession of the plaintiff-respondent over the plot in (question, the injunction sought by him was rightly granted by the courts below.

16. In view of the aforesaid circumstances, the substantial question of law framed as question Nos. A, B and E are answered in the negative. The suit of the plaintiff-respondent for injunction was not barred by Section 331 of the U.P.Z.A. and L.R. Act. The substantial question of law Nos. C and D are also answered in the negative in view of the concurrent findings of fact recorded by the courts below on the basis of documentary and oral evidence and it is held that there was a family partition effected between the co-sharers with respect to the Joint properties of the five brothers.

17. The other substantial questions of law as have been framed in the memo of appeal are issues of fact and in this second appeal under Section 100, C.P.C. a third innings on questions of fact is not permissible, particularly when there is no error in the findings of fact recorded by the courts below and it is based on the evidence on record.

The second appeal is accordingly dismissed as above. No order is passed as to costs.