Abu Bakar Since Deceased And ... vs Smt. Khatoon Since Deceased And ...
2022 Latest Caselaw 518 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 10
 

 
Case :- SECOND APPEAL No. - 354 of 2009
 
Appellant :- Abu Bakar Since Deceased And Another
 
Respondent :- Smt. Khatoon Since Deceased And Another
 
Counsel for Appellant :- Shamim Ahmad,Mohammad Hisham Qadeer,Mohammad Sakir,Mohammed Iftekhar
 
Counsel for Respondent :- R.S. Kushwaha,Kashif Gilani,Pradeep Singh Sengar,Rajesh Kumar Singh,S.A. Gilani
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Mohammad Iftekhar Farooqi, learned counsel for the appellants and Sri H.N. Singh, learned Senior Counsel assisted by Sri R.S. Kushwaha along with Sri Pradeep Singh Sengar, learned counsel for the respondents.

2. This is defendants' second appeal filed under Section 100 of Code of Civil Procedure against judgment and decree dated 31.01.2009 and 12.02.2009 passed by the Additional District Judge, Court No. 2, Ballia and Civil Appeal No. 6 of 1992 arising out of judgment and decree dated 20.01.1989 passed by Civil Judge, Ballia in Original Suit No. 65 of 1987.

3. This appeal was admitted on 24.04.2009 on the following substantial questions of law:-

"1. Whether, when the plaintiff or her ancestors were never recorded in the revenue record over the plot no. 2879, the courts below have illegally held that she has got half share over the property in question by misconstruing the sale-deed dated 30.10.1896.

2. Whether, when the oral Hibba was not proved by the plaintiff, the courts below could declare that the plaintiff has got half share over the plot in question"

4. Facts in brief, giving rise to the present litigation, are that one Yusuf who was the co-sharer with Jhau of Plot No. 2861 and 2879 and was having half the share in the said two plots transferred his share to one Abdul Rahim and Abdul Karim through sale deed dated 30.10.1896. The name of Abdul Rahim and Abdul Karim, the two real brothers were recorded in the revenue records over Plot No. 2861 but due to some clerical mistake their name could not be recorded on Plot No. 2879. Abdul Rahim died issue-less, as such, the property purchased jointly was inherited by Abdul Karim. The plaintiff-respondent, Smt. Khatoon being the daughter of Abdul Karim inherited the same and filed an application for mutating her name under Section 34 of U.P. Land Revenue Act. Initially, the application was allowed but on a recall application filed by defendant-appellant, Abu Bakar, the order was withdrawn. Thereafter, Smt. Khatoon filed a declaratory suit under Section 229-B of U.P.Z.A. and L.R. Act wherein the Sub-divisional Officer, Rasra on 22.01.1983 held the land to be Abadi under Section 143 of U.P.Z.A. and L.R. Act. The plaintiff-respondent thereafter filed an Original Suit No. 6 of 1984 on 03.01.1984 before the Munsif West, Ballia seeking relief of partition of Plot No. 2879 being the co-sharer. The suit was renumbered as 65 of 1987. The said suit was decreed by trial court on 20.01.1989 and the plaintiff was held entitled to her share of 9 ½ decimal in disputed Plot No. 2879/2 M. Against the said judgment and decree, a civil appeal was filed by the defendant-appellant which was dismissed on 26.04.1995. Against the said order, defendant-appellant preferred a second appeal before this Court being Second Appeal No. 787 of 1995 which was allowed by order dated 26.09.1995 and the matter was remitted back to appellate court and the appeal to be decided within three months. The lower appellate court vide judgment dated 31.01.2009 dismissed the appeal of the defendant-appellant and upheld the judgment and order of the trial court. Hence, the present second appeal.

5. Learned counsel for the appellant submitted that there is no dispute as to the Plot No. 2861 and the only dispute is as far as Plot No. 2879 wherein the defendant-appellant, Abu Bakar succeeded and got the land from his ancestors. He submitted that name of the ancestors of the appellant has been recorded in the revenue records as well as in the assessment register of Nagar Palika, Rasra. He further contended that plaintiff is not the family member of the defendant-appellant and thus not entitled to the share as claimed in the said plot. He further submitted that the lower appellate court having not framed point of determination, the judgment was against the provisions of Order 41 Rule 31 C.P.C. He then contended that neither oral Hibba was proved by plaintiff nor there was any documentary proof to establish that she is the co-sharer of Plot No. 2879, thus, the judgments passed by the courts below are liable to be set aside.

6. Sri H.N. Singh, learned Senior Counsel submitted that it is not disputed to both the parties that Yusuf who was the co-sharer with Jhau had sold his share in Plot Nos. 2861 and 2879 to Abdul Rahim and Abdul Karim. Abdul Rahim having died issue-less, the property came into the name of Abdul Karim and present plaintiff succeeded the property of Abdul Karim being the daughter. He further contended that through sale-deed dated 30.10.1896, both Plot Nos. 2861 and 2879 were sold to Abdul Rahim and Abdul Karim. Once Plot No. 2861 was recorded in the name of Abdul Rahim and Abdul Karim, the entry as far as Plot No. 2879 is concerned, the name could not be entered in the revenue records due to clerical mistake for which the defendant cannot claim benefit and there is no denial to the sale deed dated 30.10.1896.

7. I have heard learned counsel for the parties and perused the material on record.

8. The two substantial questions of law which were framed on 24.04.2009 are inter-related and are being decided together. The first substantial question of law was whether, when the plaintiff or her ancestors were not recorded in the revenue records over Plot No. 2879, the courts below could have held that plaintiff got half share of the property in questions misconstruing the sale-deed dated 30.10.1896 and secondly, whether, when the oral Hibba was not proved, the courts below could declare the plaintiff to have got the half share over the plot in question. The defendants-appellants in the present case are the descendants of Late Yusuf and Jhau. This fact has not been disputed by either of the parties in their pleadings. The sale-deed executed on 30.10.1896 by Yusuf for his shares in Plot Nos. 2861 and 2879 has also not been challenged or disputed by the defendant-appellant. In the written statement filed by defendant no. 1, in the additional pleas, in para no. 10, only averment made is that there is no legal document executed in favour of the plaintiffs as far as possession of the land is concerned. It has been further stated that Abdul Rahim and Abdul Karim pursuant to sale-deed dated 30.10.1896 never took possession over Plot No. 2879 nor their name was mutated and Abdul Karim has not made any Hibba to the plaintiff over the land in dispute. Apart from this pleading in the written statement, the defendant-appellant no. 1, Abu Bakar did not deny the factum of the sale-deed dated 30.10.1896 executed by Yusuf, one of his ancestors in favour of Abdul Karim and Abdul Rahim of Plot No. 2861 and 2879.

9. From the pleadings of the parties as well as oral and documentary evidence, it is clear that the sale-deed dated 30.10.1896 was executed by Yusuf for his half share in Plot Nos. 2861 and 2879 in favour of Abdul Rahim and Abdul Karim, and the names of the purchaser vendee were recorded in the revenue records over Plot No. 2861. Only entry in the revenue records so far as Plot No. 2879 is concerned, the same was not entered due to clerical mistake. Once it is an accepted case that one sale-deed dated 30.10.1896 executed by Yusuf and part of it was acted upon and the name of vendee, Abdul Rahim and Abdul Karim was entered into the revenue records, the trial court and lower appellate appellate court rightly held the plaintiff to have succeeded over the share of Yusuf purchased by her father and uncle, Abdul Karim and Abdul Rahim on 30.10.1896.

10. Moreover, the Tehsildar had recorded the name of the plaintiff in proceedings under Section 34 of the L.R. Act which was later on recalled on the application of the defendant. Thereafter, in proceedings under Section 229-B on 22.01.1983 held the Plot No. 2879 to be Abadi land under Section 143 of U.P.Z.A. and L.R. Act. Thus, the relief claimed by the plaintiff-respondent was not granted and the suit was filed before the Munsif in the year 1984 for partition of Plot No. 2879 for 9 ½ decimal land that is half share of the said plot. Both the courts below had recorded the concurrent finding of fact that sale-deed dated 30.10.1896 was never disputed by the defendants, and in fact, names of Abdul Rahim and Abdul Karim were entered into the revenue records over Plot No. 2861 for which no dispute exists and half of the land measuring 2.5 decimal each has been sold by the plaintiffs and defendants. Thus, dispute is in regard only to Plot No. 2879 over which the name of the vendee could not be entered into the revenue records.

11. I find that mere omission of the fact that name of the vendee having not been recorded in the revenue records pursuant to sale-deed dated 30.10.1896, would not entitle the defendant to claim right over the property on the basis of principles of estoppel and acquiescence. Once the sale-deed has not been denied to have been executed by Yusuf in favour of Abdul Rahim and Abdul Karim by defendants, the claim of plaintiff, Smt. Khatoon claiming her half share over the said plot, being a co-sharer, cannot be denied.

12. Both the courts below have recorded specific finding that the plaintiffs portion consists of eastern portion and defendants are in possession over the western portion of Plot No. 2879. Further, boundary wall has been constructed over the property in dispute. The defendants have failed to establish as to how they succeeded over the property being the descendants of Yusuf and Jhau over Plot No. 2879, once the sale-deed was executed by Yusuf over his share on the said plot on 30.10.1896. The argument raised by the appellant counsel to the extent that there exists no dispute as regards Plot No. 2861 is concerned and the dispute is only in regard to Plot No. 2879, when the sale-deed dated 30.10.1896 takes note and was executed for half share of Yusuf over both the plots. Once there is no denial to the execution of the sale-deed by Yusuf for his share in favour of the ancestors of plaintiff, the defendant cannot claim right over Plot No. 2879 only on the basis of the entries.

13. So far as the question of Hibba is concerned, both the courts below had recorded categorical finding that same having not been proved as the two witnesses had already died and the oral testimony of PW-1 and PW-2 cannot be relied upon, but the court on the basis of the fact that plaintiff-respondent, Smt. Khatoon succeeded the property of her father, Abdul Karim who got the share of his brother, Abdul Rahim, who died issue-less became the owner of the plot in dispute and thus was entitled to decree of the half of the share measuring 9 ½ decimal in Plot No. 2879, needs no interference as the suit has been decreed on the basis of the inheritance of the property by the plaintiff-respondent.

14. Thus, I find that both the courts below had not committed any error while decreeing the suit and dismissing the appeal on the basis of law of inheritance disbelieving the theory of Hibba set up by the plaintiff.

15. Thus, in view of above, I find that both substantial questions of law stand answered that is in favour of the plaintiff-respondent and against defendant-appellant.

16. Lastly, an attempt has been made by learned counsel for the appellant that provisions of Order 41 Rule 31 has not been complied with by lower appellate court and no point of determination was framed. I find that lower appellate court after hearing the parties framed the following point of determination:-

"दोनों पक्ष की बहस सुनने तथा अपील की पत्रावली एवं मूल वाद की पत्रावली के अवलोकन के उपरांत मैं अब इस निष्कर्ष पर आता हूँ कि अवर न्यायालय ने कहाँ तक प्रश्नगत निर्णय को पारित करते हुए अपना सही निष्कर्ष दिया है और कहाँ तक गलत निष्कर्ष दिया है।"

17. After considering all issues raised before it, the lower appellate court recorded its finding and upheld the judgment of the trial court. Thus, I find no infirmity in the order passed by lower appellate court as the provisions of Order 41 Rule 31 C.P.C. has been sufficiently complied with by lower appellate court.

18. Considering the facts and circumstances of the case, I find that no interference is required in the concurrent finding of fact recorded by both the courts below as to the plaintiff entitled to half share of property measuring 9 ½ decimal in Plot No. 2879 as the said plot having been purchased from Yusuf by Abdul Rahim and Abdul Karim and plaintiff being the daughter of the Abdul Karim succeeded to the said property is entitled for the relief claimed by her.

19. Consequently, the appeal fails and is hereby dismissed.

Order Date :- 6.4.2022

V.S. Singh