HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 6 Civil Misc. Writ Petition No. 9848 of 2004 Ram Manohar & Anr. Vs. Jaggoo & Ors. ***** Hon'ble A.P. Sahi,J.
The respondents 1 and 2 filed a suit claiming co-tenancy rights over the plots as detailed at the foot of the plaint. A copy of the plaint is Annexure 3 to the writ petition. The same mentions two Khatas, namely Khata No. 137 and Khata No. 83. The number of the plots are also detailed therein. The co-tenancy rights were being claimed on the basis of the following pedigree:-
Naguwa Phudda = Smt. Phuddain Sukhdeo Dahani @ Mahadeo Dukhi Ram Swaroop Manohar Jhuri (Respondent 3) (Petitioner 1) (Petitioner 2) Jaggo Ragghoo (Respondent 1) (Respondent 2) The plaint alleges succession through a common ancestor Naguwa. The respondents 1 and 2 are the sons of Dukhi and they claim 1/3rd share in the entire holdings. The basis of the claim was that their names appear to have been left out in the Khatauni and therefore in view of the pedigree aforesaid they deserve to be declared co-tenants to the extent of 1/3rd share of the property which is ancestral. The plaint nowhere indicates any of the property to have been acquired from joint family funds either by Phudda or by the sons of Phudda.
A written statement was filed by Ram Swaroop the respondent no. 3 son of Sukhdeo, the other branch of the family. His statement was also recorded. A copy of the written statement is Annexure-4 to the writ petition. Paragraphs 11 and 12 of the written statement recite that Dukhi was not a member of the family and his name as indicated in the family pedigree is absolutely incorrect. The reason given in Paragraph 12 of the written statement is that after Phudda died, his wife Smt. Phuddain entered into a customary relationship with one Dassu where she stayed with him. In their statement made before the trial court it was pointed out that they stayed together for one or two months whereafter Phuddain returned back.
The trial court after considering the aforesaid stand taken in the written statement arrived at the conclusion that the entire holding was ancestral and that Dukhi was born out of the wedlock of Phudda and Phuddain. The pedigree therefore set up by the plaintiffs was believed and accordingly Dukhi and his sons were declared co-tenants to the extent of 1/3rd of the holdings.
Aggrieved the defendants namely the petitioners filed an appeal and at the appellate stage they set up another plea relating to some of the plots including Plot No. 641. It was alleged that the plots are self acquired through Dahani (Dhani) @ Mahadeo father of the defendants through a sale deed. In such a situation the said plots were neither ancestral nor had they been succeeded to from Phudda, and as such inclusion of the said property as ancestral was erroneous.
The appellate court upheld the finding recorded by the trial court in relation to the fact that the Dukhi was the son of Phudda and further held that even though on the basis of the evidence that has been brought on record some of the plots are not ancestral, yet they appear to have been jointly acquired and as such without altering the judgment and decree of the trial court dismissed the appeals.
A second appeal preferred by the petitioners was also dismissed as the Board of Revenue did not find any substantial question of law arising in the matter. Aggrieved the present petition was filed assailing the aforesaid judgment and orders of the courts below.
The petitioner defendants contend that the entire approach of the courts below is erroneous in law, inasmuch as, once it is established that the entire property is not ancestral then co-tenancy rights could not have been conferred on the plaintiffs on the strength of the pedigree. It is further submitted that evidence in relation to Dukhi being the son of Phudda was also very shaky and as such the reliance placed by the trial court or the appellate court and the decree based thereon deserves to be set aside. It is further contended that once the appellate court had arrived at the conclusion that the entire holding was not ancestral and if there was evidence to the contrary on record, then the decree ought to have been modified accordingly or the case ought to have been remanded to the trial court for a fresh appreciation of the entire case.
Accordingly, it is submitted that these were substantial questions of law which have completely escaped the notice of the Board of Revenue and the Board having failed to frame the same the second appellate order is also not in conformity with law.
Replying to the said submissions learned counsel for the plaintiffs respondents herein submits that Dukhi was the son of Phudda, which finding could not be successfully assailed by the defendants as the evidence led, including the statement of Ram Swaroop, was sufficient to indicate that the findings recorded by the courts below are correct. He further submits that the plea relating to the property having been jointly acquired was set up for the first time before the appellate court but the appellate court even though has made a stray observation with regard to the same, has not recorded any firm finding in favour of the petitioners, as such the same does not come to the aid of the petitioners and even otherwise the petitioners did not question the correctness of the said findings before the Board of Revenue. He therefore contends that the petitioners now cannot take benefit of the said findings once the entire appellate order was against them.
It is further urged that the pedigree having been believed and the family being joint, then all the members of the joint family were co-tenants and in view of the said fact having been accepted by the courts below, there is no material so as to warrant exercise of extraordinary jurisdiction for interfering with the orders impugned herein. He therefore prays that the judgment and decree of the trial court be affirmed.
The learned Standing Counsel as also the learned counsel for the Gaon Sabha have been heard.
Having heard learned counsel for the parties and having perused the material on record, the first issue is relating to Dukhi being the son of late Phudda. In this regard the trial court and the appellate court have both proceeded to believe the statement of Ram Swaroop in order to accept the pedigree, but in addition to that, the trial court has also relied on a Khatauni of 1359 fasli where the name of Dukhi also has been entered as the son of Phudda. To my mind also, this documentary evidence coupled with the oral evidence was correctly appreciated before the courts below which seals the aforesaid issue in favour of the respondents plaintiffs. Dukhi has been found to be the son of late Phudda and therefore his successors would be entitled to 1/3rd share in the ancestral property. To this extent the findings of the trial court and the appellate court as affirmed by the Board of revenue therefore do not deserve any interference.
Coming to the question as to whether the entire holdings were ancestral or only partially, the appellate court has proceeded on the presumption that the sale deed as set up by the petitioners in relation to Plot No. 641 was acceptable, but while recording a finding treated it to be a joint acquisition. This finding of the appellate court cannot be appreciated, inasmuch as, if the property was acquired through a sale deed and a claim was set up of a self acquired property, then the defendants were under an onus to dislodge the same by leading cogent evidence to that effect. It is true that there is nothing on record to indicate that the said sale deed was admitted as additional evidence in terms of Order 41 Rule 27 C.P.C., yet there being no challenge to the acceptance of the said evidence by the plaintiffs at the appellate stage or even before this Court, it can be presumed that the parties were allowed to lead this additional evidence in relation to the status of the property.
The question therefore is as to whether part of the property was self acquired or acquired through joint family funds. This issue therefore ought to have been framed either by the appellate court itself or should have remanded the matter back in order to ascertain the source of acquisition of the said property before having decreed the suit. The appellate court therefore failed in its duty to have either appreciated the aforesaid aspect of the acquisition of the property itself or to have remanded the matter to the trial court for deciding the same after allowing the parties to lead evidence on the said issue. This therefore was a clear substantial question of law which the Board of Revenue has also failed to advert to, and answer the same keeping in view the evidence which had already come on record. In the opinion of the Court, the first appellate court as well as the Board of Revenue therefore erred in not proceeding to decide the issue relating to the entire holding being ancestral or not in accordance with law. The judgements of the appellate court therefore are erroneous to that extent.
In the circumstances discussed hereinabove the impugned orders deserve to be set aside and the matter deserves to be remitted back to the trial court partially to the extent, and on the issue, as to whether the plots as detailed at the foot of the plaint were the ancestral property of Phudda or not and as to whether part of the property as observed by the first appellate court had been self acquired by Dhani @ Mahadeo. The parties therefore would be required to lead evidence only on the said issue.
Accordingly the impugned judgment and decree of the trial as affirmed in appeal and in second appeal is set aside to the aforesaid extent. The writ petition is partly allowed. It is held that Dukhi was the son of Phudda. The only issue which now remains to be decided by the trial court is in relation to the status of the plots as referred to herein above.
The trial court is directed to proceed with the same and decide the suit as expeditiously as possible after allowing the parties to lead evidence preferably within a period of one year from the date of presentation of a certified copy of this order before the trial court.
Dt. 11.11.2011 Sahu