1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 16th OF MARCH, 2023
SECOND APPEAL NO.519 OF 1999
Between:-
1. GANGU GIR S/O HIRA GIR AGED
ABOUT 28 YEARS
OCCUPATION - CULTIVATOR
R/O VILLAGE SANASYA,
TAHSIL TIMARNI, DISTT. HARDA
(M.P.)
2. KANHAIYA GIR S/O HIRA GIR
AGED ABOUT 26 YEARS,
OCCUPATION - CULTIVATOR
R/O VILLAGE SANASYA,
TAHSIL TIMARNI, DISTT. HARDA
(M.P.)
3. CHANDU GIR S/O HIRA GIR
AGED ABOUT 23 YEARS,
OCCUPATION - CULTIVATOR
R/O VILLAGE SANASYA,
TAHSIL TIMARNI, DISTT. HARDA
(M.P.)
{{{
.........APPELLANTS
(BY SHRI RAVISH AGRAWAL SENIOR ADVOCATE WITH SHRI
SAKET MALIK - ADVOCATE)
AND
1. RAJENDRA GIR S/O RAM GIR
AGED ABOUT 21 YEARS R/O
KHEDIPURA, HARDA DISTT.
HARDA M.P.
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 3/20/2023
11:11:30 AM
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2. ASHOR GIR S/O RAM GIR AGED
ABOUT 16 YEARS, R/O
KHEDIPURA, HARDA DISTT.
HARDA M.P.
3. NARMADA GIR (DEAD)
THROUGH LRS.
3a. SMT. KRISHNAGIR ALIAS KIRAN
GIR, AGED ABOUT 35 YEARS,
WIDOW OF SHRI NARMADA GIR
3b. ANKIT S/O SHRI NARMADA GIR,
AGED ABOUT 14 YEARS, R/O
KHEDIPURA, HARDA DISTT.
HARDA M.P.
3c. KU. BHURI D/O SHRI NARMADA
GIR, AGED ABOUT 12 YEARS, R/O
KHEDIPURA, HARDA DISTT.
HARDA M.P.
3d. KU. CHHOTI D/O SHRI
NARMADA GIR, AGED ABOUT
9 YEARS, R/O KHEDIPURA,
HARDA DISTT. HARDA M.P.
3e. HARSHIT S/O SHRI NARMADA
GIR, AGED ABOUT 5 YEARS, R/O
KHEDIPURA, HARDA DISTT.
HARDA M.P.
NOS. b TO e MINORS THROUGH
GUARDIAN MOTHER SMT.
KRISHNA ALIAS KIRAN GIR.
4. THE STATE OF MADHYA
PRADESH, THROUGH,
COLLECTOR HARDA, M.P.
............RESPONDENTS
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 3/20/2023
11:11:30 AM
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(BY MS. SUDIPTA CHOUBEY - ADVOCATE FOR RESPONDENT
NO.1)
---------------------------------------------------------------------------------------
This appeal coming on for final hearing this day, the Court passed
the following:
JUDGMENT
This second appeal has been preferred by the appellants/defendants challenging the judgment and decree dated 12.04.1999 passed by Additional District Judge, Harda in Civil Appeal No.1-A/1999 affirming the judgment and decree dated 17.11.1998 passed by Civil Judge Class I, Harda in Civil Suit No.139-A/95, whereby suit filed by the respondents/plaintiffs for declaration of title, partition, separate possession over 1/2 share in the suit property and mesne profits has been decreed.
2. The plaintiffs (Rajendra Giri, Ashok Giri, Narmada Giri and Llilabai) instituted a civil suit with the allegations that the land area 3.81 acre and a house situated in Village Sanyasa and the land area 0.80 acre situated in village Pipalya total area 4.61 acre belonged to common ancestor of the parties namely Motigiri and from the income of existing land area 4.61 acre, the land 20 acre in Village Ikdaliya and the land 4.99 acre in village Khodyakhodi was purchased in the names of defendant no.1 and 2 (Hira Giri and Gangu Giri), who are son and grandson of Umrao Giri, whose another son is Ram Giri, through whom the plaintiffs Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 3/20/2023 11:11:30 AM 4 are claiming right in the suit property. Common ancestor Moti Giri had two sons namely Umrao Giri and Puran Giri, whose wife was Phuliyabai and both the husband and wife died issueless. Genealogical tree of the family is as under :-
Moti Giri Umrao Giri (dead) Puran Giri (dead) Hira Giri Ram Giri Phuliyabai (dead) Gangu Kahnaiya Chandu Rajendra Ashok Narmada Lilabai Accordingly, claiming the suit property belonging to Hindu undivided family property, the plaintiffs claimed ½ share through Ram Giri.
3. The defendants appeared and filed written statement denying the plaint allegations. However, in para 17 and 18 of the written statement the defendants have taken following pleas :-
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fujLr fd;s tkus ;ksX; gSA**
4. After filing written statement, the defendants disappeared from the court and were proceeded ex parte. The defendants neither cross- examined the plaintiffs' witnesses nor adduced any oral evidence. Resultantly in absence of any rebuttal evidence, learned trial Court decreed the suit for ½ share holding the suit property belonging to common ancestor Moti Giri, which has been affirmed by first appellate Court.
5. This second appeal was admitted for final hearing on 24.09.2014 on the following substantial question of law:-
"Whether the suit property was a property of Hindu undivided family, if so whether the respondents/plaintiffs had half share therein as held by the trial court but which finding was reserved by the first appellate Court?"
6. Learned senior counsel for the appellants/defendants submits that in absence of the defendants, the suit was proceeded ex parte and only on the basis of unrebutted oral testimony of the plaintiffs and despite there being no documentary evidence to prove ownership of Moti Giri, learned Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 3/20/2023 11:11:30 AM 6 Courts below have decreed the suit. He submits that even on the basis of documentary evidence (Ex.P/3 to P/7) available on record, the land in question belongs to Hira Giri and in any case, in absence of any documentary evidence, the land cannot be said to be belonging to common ancestor Moti Giri.
7. He further submits that only on the basis of oral evidence, it cannot be said that the suit property is ancestral property of the parties to the suit. He also submits that after proceeding ex parte against the defendants, their written statement cannot be considered in evidence for any purpose. As per the law of procedure given in the Book of Salmond on Jurisprudence (12th edition), learned senior counsel submits that the evidence is either primary or secondary and subject to certain exceptions, the courts will receive no evidence of a written document save the document itself, and will listen to no hearsay testimony. In support of his submissions, he placed reliance on the decision of Supreme Court in the case of Adiveppa and others vs. Bhimappa and another (2017) 9 SCC 586.
8. Learned counsel for the appellants also prays for withdrawal of the application under Order 41 Rule 27 CPC (I.A. No.2322/2022) dtd. 27.02.2022 whereby two regd. documents (Tamliknama settlement dtd. 17.01.1968 by Umrao Giri to Hira Giri and regd. Will dtd. 21.12.1968 by Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 3/20/2023 11:11:30 AM 7 Phuliyabai to Hira Giri) were sought to be produced in additional evidence. According to the prayer made by learned senior counsel, the application u/o 41 rule 27 CPC (IA 2322/2022) is permitted to be withdrawn.
9. Learned counsel appearing for the respondents supports the impugned judgment and decree passed by learned Courts below and submits that the defendants after filing of the written statement did not appear and were proceeded ex-parte and even they did not cross-examine the plaintiffs' witnesses and did not appear in the witness box, therefore, the Courts below have rightly treated the allegations of the plaint to be admitted & proved and in support of her contentions she relied upon the decision of coordinate Bench of this Court in the case of J. K. Batteries vs. Parasmal Jain and another 2014(4) MPLJ 576.
10. Learned counsel for the respondents further relied upon the aforesaid quoted para 17 and 18 of the written statement as well as the additional documents filed in the second appeal by the appellants along with application under Order 41 Rule 27 CPC with the contentions that these documents show that the property in question in fact belonged to ancestors of the parties. She submits that in the light of averments made in para 17 and 18 of the written statement so also in the light of the additional documents (IA 2322/2022), it is apparent that the suit property Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 3/20/2023 11:11:30 AM 8 did not belong to Hira Giri or Gangu Giri & ors., but it belonged to Umrao Giri or Phuliyabai w/o Puran Giri, as such even prima facie, burden was on the defendants to prove that it was their self acquired property and was not Hindu undivided family property or was not belonging to ancestors of the plaintiffs.
11. Heard learned counsel for the parties and perused the record.
12. Although after filing of the written statement, the defendants were proceeded ex parte and in the instant second appeal, the defendants have withdrawn the application under order 41 rule 27 CPC but even then, in my considered opinion, the written statement as well as the documents filed by the defendants in the second appeal, can be seen to decide the real controversy involved in the matter.
13. The plaintiffs have come with the case that the suit property is ancestral property over which the name of defendants is recorded illegally, which in the written statement filed by the defendants has been denied but in para 17 and 18 of the written statement, the defendants have taken plea of execution of Will by Smt. Phuliya Bai on 21.12.1968 as well as of adverse possession. In support of the pleadings regarding Will by Phuliya Bai, the defendants in the instant second appeal have produced a copy of regd. Will executed by Phuliya Bai, which application (IA Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 3/20/2023 11:11:30 AM 9 2322/2022) for the reasons best known to the appellants, has been withdrawn.
14. Although, the property covered by the Will is a part of the suit property, but the plea of execution of Will by Phuliya Bai taken in the written statement and the document of Will depict that the property did not belong to Hira Giri or Gangu Giri & ors. whose names find place in the khasra entries (Ex. P/3 to P/7). Certainly the will by Phuliya Bai has not been proved nor any prayer has been made to do the same, which was required to be proved by the defendants themselves. At the same time it is pertinent to mention here that mutation of name in the revenue record or the khasra entries are not document of title.
15. Another regd. document namely 'Tamliknama settlement' executed by Umrao Giri in favour of Hira Giri placed on record along with the application under Order 41 Rule 27 CPC (IA 2322/2022) also suggests something which is sufficient to infer that the property did not belong to Hira Giri but it belonged to Umrao Giri. Therefore, argument advanced on behalf of the appellants to the effect that the suit property in fact belongs to Hira Giri and Gangu Giri & ors., is of no significance.
16. However, the plaintiffs by adducing oral evidence of Rajendra Giri (PW1), Narmada Giri (PW2), Gulab Puri (PW3), Narayan (PW4) and Mahant Shivshankar Bharti (PW5) have proved that the property in Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 3/20/2023 11:11:30 AM 10 question is Hindu undivided family property of the parties and no partition has taken place, which in the existing facts and circumstances, has rightly been believed by learned Courts below.
17. In the case of J.K. Batteries (supra) coordinate Bench of this Court has held as under :-
"6. It is well settled in law that where the other side leads no evidence, the burden of proof is discharged by even leading a slight evidence. (Syed and Company and others vs. State of Jammu and Kashmir and others (1995) Suppl. 4 SCC 422). It is equally settled in law that if the testimony of a witness on a particular point is not challenged, it is to be admitted. (See : Baru Ram vs. Smt. Prasanni and others, AIR 1959 SC 93, Punjabrao vs. D.P. Meshram and oth- ers, 1965 MPLJ (SC) 257 = AIR 1965 SC 1179)."
18. Further, in the case of Vidhyadhar Vs. Manikrao and another (1999) 3 SCC 573, the Supreme Court has held as under:-
"16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v.
Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 3/20/2023 11:11:30 AM 11 Section 114 of the Evidence Act against a party who did not enter into the witness box."
19. The view taken in the case of Vidhyadhar Vs. Manikrao and another, has also been followed by Supreme Court in the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. (2005) 2 SCC 217 and held as under :
"15. Apart from what has been stated, this Court in the case of Vidhyadhar vs. Manikrao and Another, (1999) 3 SCC 573 observed at page 583 SCC that "where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct".
16. In civil dispute the conduct of the parties is material. The ap- pellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree."
20. In the case of Adiveppa and others vs. Bhimappa and another (2017) 9 SCC 586 the Supreme Court has held as under :-
"22. It is a settled principle of Hindu law that there lies a legal pre- sumption that every Hindu family is joint in food, worship and es- tate and in the absence of any proof of division, such legal pre- sumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. (See-Mulla -Hindu Law, 22nd Edition Article 23 "Presumption as to co-parcenary and self acquired property"-pages 346 and 347).
23. In our considered opinion, the legal presumption of the suit properties comprising in Schedule 'B' and 'C' to be also the part and parcel of the ancestral one (Schedule 'D') could easily be drawn for want of any evidence of such properties being self-ac-
quired properties of the plaintiffs. It was also for the reason that the Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 3/20/2023 11:11:30 AM 12 plaintiffs themselves had based their case by admitting the exist- ence of joint family nucleolus in respect of schedule 'D' properties and had sought partition by demanding 4/9th share."
21. From the pleas taken in para 17 and 18 of the written statement as well as from the additional documents (Will and Tamliknama settlement) jointness in the family property can very well be inferred. However, the reality could have been brought on record by the defendants by cross- examining the plaintiffs' witnesses and by their appearance in the witness box, but for the reasons best known to them, they did not appear before the Court. Neither they cross examined the plaintiffs' witnesses nor they offered themselves to be cross-examined by the plaintiffs, which is sufficient to draw adverse inference against the defendants/appellants.
22. In view of the aforesaid discussion, the substantial question of law framed by this Court does not appear to be involved in the present second appeal and the same deserves to be and is hereby dismissed.
23. However, no order as to costs.
24. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL) JUDGE VPA Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 3/20/2023 11:11:30 AM