Smt. Shahjahan Khatoon And 6 ... vs Mohd. Imtiyaz And 6 Others
2022 Latest Caselaw 22182 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 6							Reserved
 

 
Case :- SECOND APPEAL No. - 655 of 2022
 

 
Appellant :- Smt. Shahjahan Khatoon And 6 Others
 
Respondent :- Mohd. Imtiyaz And 6 Others
 
Counsel for Appellant :- Janardhan Yadav
 
Counsel for Respondent :- Parvez Iqbal Ansari,Manish Kumar Nigam
 

 
Hon'ble J.J. Munir,J.

1. This is a defendants' second appeal, arising out of a suit for cancellation and permanent prohibitory injunction. It has come up for hearing under Order XLI Rule 11 CPC.

2. Heard Mr. Janardan Yadav, learned Counsel for the appellants and Mr. Manish Kumar Nigam, learned Counsel appearing on behalf of plaintiff-respondent No. 1.

3. The plaintiff's case is that the suit property, which shall hereinafter be described, along with other property, was owned by the plaintiff's grandfather Shahadat Khan. He had two sons, Ibadat Khan and Biku Khan. Ibadat Khan, who is no more, had two sons, Mohd. Nasim and Mohd. Jabbar. They are defendant Nos. 3 and 4 to the suit. Biku Khan is also no more and is survived by his widow, Akbari, defendant No. 7, three sons, Mohd. Naushad, Mohd. Dilshad and Mohd. Imtiyaz. Of the three sons of Biku Khan, Mohd. Naushad and Mohd. Dilshad are defendant Nos. 5 and 6 to the suit, whereas Mohd. Imtiyaz is the plaintiff. Ibadat Khan's wife is no more.

4. The parties in this appeal shall be described with reference to their position in the array of parties to the suit.

5. After Shahadat Khan passed away, there was a partition of the property through a family settlement, whereof a memorandum was drawn on 23.06.1989. It was acknowledged by Ibadat Khan and Biku Khan by putting their thumb marks and witnessed by witnesses, who signed and thumb marked it. The property that was partitioned between Ibadat Khan and Biku Khan is shown in Schedules Ka, Kha, Ga and Gha to the plaint. The property shown in Schedule Ka is situate in Mohalla Domanpura, Qasba Sikandarpur, District Ballia, whereas that in Schedule Kha is situate in Mohalla Gandhi, Qasba Sikandarpur, District Ballia. The property in Schedule Ga is situate in Mohalla Kila Kohna, Qasba Sikandarpur, District Ballia, whereas the property in Schedule Gha is situate in Renukoot, District Mirzapur (now Sonbhadra).

6. According to the family settlement, the property in Schedule Ka was partitioned in the manner that Ibadat Khan got a half share in the western portion, whereas Biku Khan got a half share on the eastern side. Again, the property in Schedule Kha was divided in the manner that the norther portion fell to the share of Ibadat Khan, whereas the southern portion went to Biku Khan. Schedule Ga property went exclusively to Biku Khan whereas property shown in Schedule Gha to the plaint went entirely to Ibadat Khan.

7. It is the plaintiff's case, who represents the branch of Biku Khan, that the two brothers entered khas possession of their respective shares in the property as settled in the family partition and remained in separate enjoyment thereof to the exclusion of others during their lifetime. After Ibadat Khan's demise, the property in his share went to defendant Nos. 3 and 4 to the suit, whereas the property of Biku Khan after the latter's demise went to the plaintiff and defendant Nos. 5, 6 and 7, who are proforma defendants to the suit. Going a little backwards in time and sequence of events, soon after the partition between Ibadat Khan and Biku Khan, Ibadat Khan refused to acknowledge the family partition and threatened to dispossess Biku Khan of the property that had fallen to his share. This led Biku Khan to institute O.S. No. 656 of 1989 in the Court of the Civil Judge (Jr. Div.)-West, Ballia on 01.09.1989, for a declaration in terms of the family settlement. The suit was tried and dismissed vide judgment and decree dated 24.01.1991. Upon appeal to the District Judge of Ballia, being Civil Appeal No. 57 of 1991, the appeal was allowed by the Additional District Judge-III, Ballia on 19.05.2003, who decreed the suit.

8. After Biku Khan died, the plaintiff and defendant Nos. 5 and 6, that is to say, his three sons, instituted Suit No. 4 of 2003, Naushad vs. Mohd. Nasim and others in the Court of the Sub-Divisional Officer, Sikandarpur under Section 59/61 of the U.P. Tenancy Act. In the said suit, a compromise was filed on 30.07.2005 and duly verified before the Court by parties. In terms of the said compromise filed in the suit, the plaintiff and defendant Nos. 5 and 6 were acknowledged to be exclusive owners of lands shown in Schedule Cha (च) to the plaint.

9. It is the plaintiff's further case that he and defendant Nos.5 and 6 instituted the suit under Section 59/61 of the U.P. Tenancy Act, because in O.S. No. 656 of 1989, the house described at Item No. 3 in Schedule A to the plaint giving rise to the said suit, which is in the possession of the plaintiff and defendant Nos. 5 and 6, the number thereof was not mentioned. This omission led to the names of the plaintiff, defendant No. 5, defendant Nos. 3 and 4 continuing to be recorded over one of the plots, on which the house, part of Schedule A to the plaint, stands, whereas the name of defendant No. 6 was omitted altogether. Likewise, the names of defendant Nos. 3 and 4 were erroneously recorded on the other plot, comprising the house, part of Schedule A to the plaint, whereas the names of the plaintiff and defendant Nos. 5 and 6 was not mentioned in the record altogether.

10. The aforesaid erroneous record of the names of defendant Nos. 3 and 4 and omission of the names of the plaintiff and defendant Nos. 5 and 6 on one of the two plots, comprising the suit property in Schedule A to the plaint, giving rise to O.S. No. 656 of 1989 and in the other, the omission of defendant No. 6's name is the result of a mistake that occurred in the description of the property while drawing up the plaint giving rise to O.S. No. 656 of 1989. It is emphasized that the settlement of the property through the family settlement dated 23.06.1989 is, however, clear and it is that settlement, which the decree passed in the appeal arising out of O.S. No. 656 of 1989, granted affirmation.

11. It is also the plaintiff's case that the suit property involved here is the house described in Item No. 3 to Lot A shown at the foot of the plaint giving rise to O.S. No. 656 of 1989 and situate at Mohalla Kila Kohna, Pargana Sikandarpur, District Ballia. It comprises, part of plot Nos. 61/16 and 23/21, admeasuring 4 decimals and 5 decimals respectively, both situate at Mauja Kila Kohna, Pargana Sikandarpur East, District Ballia. The said property is shown in the plaint map giving rise to the present suit by figures 1-2-3-4.

12. According to the plaintiff, defendant No. 1 is the second defendant's wife. Defendant Nos. 3 and 4, without any right, title or interest, executed a sale deed dated 22.06.2007 in favour of defendant No. 1, which was registered in the office of the Sub-Registrar, Sikandarpur on 22.06.2007 in Book No. 1, as Document No. 674. In the said sale deed, the boundaries of the suit property have been wrongly described. In substance, the plaintiff's case is that the suit property shown by figures 1-2-3-4 in the plaint map and comprising the property mentioned in Schedule Ga to the plaint has been transferred without authority through the impugned sale deed, which is void.

13. Since on the basis of the aforesaid sale deed, defendant Nos. 1 and 2 have attempted to interfere with the rights of the plaintiff and defendant Nos. 5 and 6, his brothers, all of whom are in possession of the house, that is to say, the suit property, the present suit has been brought. This suit was contested by defendant No. 1, who filed a written statement and denied that the family settlement dated 23.06.1989 was ever executed between Ibadat Khan and Biku Khan. The signatures of the parties to the said family settlement and those of the witnesses have been denied.

14. It is the case of the first defendant that the house situate at Mohalla Kila Kohna is part of the parties' ancestral property and defendant Nos. 3 and 4, who represent the branch of Biku Khan, have a half share therein, which they have transferred by means of the impugned sale deed. It has been denied that the land comprising plot Nos. 61/16 and 23/21, situate at Mauja Kila Kohna is the exclusive property of Biku Khan or his successors. It is asserted that the branches of both brothers, Ibadat Khan and Biku Khan, hold a half share in the suit property, comprised in Schedule Ga. A map has been annexed to the written statement, where the suit property situate in plot No. 61/16 has been alleged to be mutually partitioned between parties, where the plaintiff has got the northern part, denoted by figures 3-4-5-6 and defendant Nos. 3 and 4, the southern part, denoted by figures 1-2-3-6. It is claimed that defendant No. 1 has purchased the entire share of defendant Nos. 3 and 4, together with the constructions standing thereon, after paying due sale consideration through a registered instrument.

15. It is also averred in the written statement that on account of a clerical error by the scribe of the impugned sale deed dated 22.06.2007, the boundaries of the suit property, with regard to its direction, have been mentioned in error. The mistake is inadvertent. No consequence can attach to the said mistake about the boundaries.

16. On the pleadings of parties, the following issues have been framed (translated into English from Hindi):

"1. Whether according to the plaint allegations, the sale deed dated 22.06.2007 is bad and giving incorrect numbers, the sale deed has been executed, which deserves to be avoided?

2. Whether the plaintiff and defendant Nos. 5, 6 and 7 are in possession of the disputed land and the house standing thereon?

3. Whether the plaintiff's suit is maintainable?

4. Whether the plaintiff has a right to institute the present suit?

5. Whether the plaintiff's suit is undervalued and the court-fee insufficient?

6. Whether the suit is barred by the principles of estoppel and acquiescence?

7. Whether the plaintiff's suit is barred by Section 34 of the Specific Relief Act?

8. Whether the plaintiff's suit is based on false facts and void?

9. Whether the plaintiff is entitled to any other relief?"

17. The plaintiff filed in documentary evidence, a copy of the plaint giving rise to O.S. No. 656 of 1989, a copy of the decree passed in appeal, a copy of the sale deed dated 22.06.2007 executed by Mohd. Nasim and Mohd. Jabbar in favour of Smt. Shahjahan Khatoon, the family settlement dated 23.06.1989 in original executed between Ibadat Khan and Biku Khan and copy of the plaint giving rise to Suit No. 4 of 2003, under Section 59/61 of the U.P. Tenancy Act. In oral testimony, the plaintiff examined himself as PW-1 and one Karimuddin Khan as PW-2.

18. The defendant also filed documentary evidence, which is the copy of a Khatauni relating to Mauza Kila Kohna, Pargana Sikandarpur East, District Ballia for 1412 Fasli, indicating rights relating to Plot No. 61/16, an application made in Suit No. 861/17, Shajahan vs. Naushad pending before the S.D.O., the sale deed in original dated 22.06.2007 executed by Nasim and Jabbar in favour of Shahjahan. In her oral evidence, defendant No. 1 examined herself as DW-1, one Manzur Alam as DW-2 and Mohd. Shafiq as DW-3.

19. Upon hearing learned Counsel for the appellant in support of the motion and Mr. Manish Kumar Nigam, Advocate in reply. This Court finds that both the Courts below have accepted the family partition of the property between Ibadat Khan and Biku Khan and the drawing up of a memorandum to acknowledge the said partition dated 23.06.1989. The decree passed in appeal arising out of O.S. No. 656 of 1989 has also been held to be validly passed. The division of properties between parties in terms of the family settlement has been accepted by the two Courts of fact below after considering the entire documentary evidence on record, including proceedings in the suits filed between parties and their oral evidence. The property shown in Schedule Ga to the plaint has been found to be one that fell exclusively to the share of the plaintiff and defendant Nos. 5, 6 and 7, arrayed to the suit as proforma defendants.

20. The Courts below have been of opinion that defendant Nos. 3 and 4 to the suit, described in the plaint as the defendants third set had no right, title or interest to execute the impugned sale deed. Defendant No. 1 with the assistance of defendant No. 2, therefore, has no right to interfere with the plaintiff's right and that of defendant Nos. 5, 6 and 7 in the suit property on the basis of the impugned sale deed, which deserves to be cancelled.

21. Before this Court, learned Counsel for defendant No. 1, who has appealed through her LRs being defendant-appellant Nos. 1/1 to 1/6 attempted to argue that the family partition could not effectuate a division of the parties' property, which comprises agricultural land, nor the Civil Court has jurisdiction in the matter.

22. This Court finds that this plea was not raised before the Courts below and no issue was framed about it. A plea about jurisdiction of the Civil Court had to be taken at the earliest before the Court of first instance. Even otherwise, the nature of the suit property appears to be a residential house and it is perhaps for the said reason that the plea was not raised.

23. It is further argued that the sale deed cannot be cancelled because the first defendant's vendor, that is to say, defendant Nos. 3 and 4 are recorded tenure holders and their rights cannot be extinguished on the basis of a family settlement. This Court is afraid that the revenue records alone cannot be the source of title. There are elaborate findings by the Courts below detailing how the two sons of Shahadat Khan, the common ancestor, that is to say, Ibadat Khan and Biku Khan, divided the property, they inherited, located at four different places, shown in Schedules Ka, Kha, Ga and Gha to the plaint. Some of this property fell jointly to the share of the branches of Biku Khan and Ibadat Khan, whereas two of these went exclusively to each branch. The suit property comprising Schedule Ga fell to the share of the branch of Biku Khan and that settlement amicably done between the family members has been declared by the Civil Court on appeal from the decree in O.S. No. 656 of 1989. The said partition and the decree, therefore, for the source of title for the parties is valid and binding. An incorrect or a lingering revenue entry, which is the product of a mistake, cannot be the basis of title for any party, including defendant Nos. 3 and 4, who are the first defendant's vendors.

24. In the opinion of this Court, no substantial question of law arises for consideration. This appeal fails and is dismissed under Order XLI Rule 11 CPC.

Order Date :- 21.12.2022

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