Harish Chandra Lal vs D.D.C.
2023 Latest Caselaw 28738 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. 2023:AHC:199095
 
Reserved -: 11.10.2023
 
Delivered -: 16.10.2023
 
Court No. - 48 
 

 
Case :- WRIT - B No. - 977 of 1975
 

 
Petitioner :- Harish Chandra Lal
 
Respondent :- D.D.C.
 
Counsel for Petitioner :- Shyam Dutt Pandey
 
Counsel for Respondent :- S.C., S.C. Verma, N.C. Mishra and Udayan Nandan
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. This writ petition is pending since 1975. It is not in dispute that petitioner has lost from all three Authorities.

2. This writ petition was dismissed and restored after many years, therefore, parties are not disputing that nature of land might have changed.

3. Learned counsel for parties have not disputed the pedigree that both belong to common ancestor viz. Ambika Pal who has two sons viz. Raghunath Prasad and Raghunandan Prasad. It is not disputed that Raghunath Prasad died and his son (original petitioner) being minor was looked after by other family members including his uncle.

4. Learned counsel for both parties have presented their case at length, however, the dispute could be narrowed down to extent that 'whether property in question remained joint family property or not?' i.e. whether it remained continuous in form of an Undivided Property and both parties have taken common benefit from it or not?

5. All the three Authorities have returned a concurrent finding that property in dispute was divided soon after death of Ambika Prasad and both parties were living separately and were enjoying the benefit of their respective land.

6. Sri Shyam Dutt Pandey, learned counsel for petitioner has placed heavy reliance on lengthy statement of Ramchandra as well as communication in form of letters between both parties in order to support his case that no actual partition took place. It is also not disputed that property in dispute was mortgaged, however, since mortgage amount was not paid, the property was auctioned. Some of property was purchased by ancestors of respondents.

7. In this regard, S/Sri Suresh Chandra Verma, Nitin Chandra Mishra and Udayan Nandan, learned counsel for respondents have placed reliance on impugned judgment that property in dispute was acquired much after death of Ambika Prasad for that he has read out relevant part of order which is reproduced below -:

"निगरानी कर्ता का मुख्य तर्क इस बात का है कि दोनों पक्ष संयुक्त परिवार के सदस्य है और विवादित भूमि संयुक्त परिवार की संपत्ति के रूप मे उपार्जित की गयी तथा राम चन्द्र निगरानी कर्ता हरिश्चन्द्र के संरक्षक थे। यद्यपि हिन्दू परिवार मे संयुक्त होने का है परन्तु यह अनुमान समय के बीतने तथा समाजित स्वभाव के बदलने से दुर्बल होता जाता है। केवल परिवार के संयुक्त होने से यह नही सिद्ध हो जाता कि इसके सदस्यों की व्यक्तिगत संपत्ति भी संयुक्त परिवार की संपत्ति सिद्ध करने का भार उस पक्ष पर है जो इसे संयुक्त होने का दावा करता है। उसे यह सिद्ध करना है कि संपत्ति पैत्रिक है अथवा संयुक्त परिवार की संपत्ति द्वारा उपार्जित की गयी। अपने दावो की पुष्टि में पक्षों ने मौखिक और लिखित साक्ष्य दिया है। विपक्षीगण ने अपने दावो की पुष्टि में पक्षो ने मौखिक और लिखित साक्ष्य दिया है। विपक्षीगण ने मुआवजे के फार्म की नकल दाखिल किया है। जिससे स्पष्ट है कि निगरानीकर्ता तथा विपक्षी गण के नाम मुआवजा अलग अलग तैयार किया गया था और विपक्षी गण का मुआवजा का रूपया ३५- मिला था जबकि निगरानीकर्ता गण को ६९- मिला। निगरानीकर्ता के ब्यान से यह साबित हो जाता है कि यह विवादित भूमि पर काबिज नही रहा और परिवार पर कर्ज का काफी बोझ था। संयुक्त परिवार का ऐसा कोई अलग फण्ड नही था जिससे कि वह संयुक्त रूप से भूमि उपार्जित कर सकता। खुदकास्त का अधिकार तभी प्राप्त होता है जबकि विवादित भूमि को जोतकर उस पर कब्जा हो। निगरानीकर्ता विवादित भूमि मे अपना कब्जा तथा खुदकास्त सिद्ध करने मे असफल रहा। पत्रावली पर भी इस प्रकार का साक्ष्य उपलब्ध नही है जिससे विवादित भूमि पक्षों की पैत्रिक संपत्ति सिद्ध होती हो तथा उनके समान पूर्वज ने उसे उपार्जित किया हो। इसके विपरीत खेवट संख्या ११, १२९२ फ० से ७ वर्ष तक रेहन रहा और १३२४ फ० के वाद तक इस पर मुतहीन का कब्जा रहा। निगरानीकर्ता के पिता के जीवन काल मे इस खेवट के नंबरो पर उनका कब्जा नही रहा अतः यह निगरानीकर्ता अथवा उसके पिता की खुदकास्त व सीर नही हो सकती। वाद मे इसका रेहन विपक्षीगण ने छुडाया और वे ही इस पर काबिज रहे। खेवट १२ की आराजी को इसके स्वामी श्रीमती फूलबदन कुवर से निगरानीकर्ता हरिश्चन्द्र के पिता की मृत्यु के ३० वर्ष के बाद विपक्षीगण ने ३-११-१९२६ को खरीदा। अतः विवादित भूमि किसी भी प्रकार सेदोनो पक्षों के समान पूर्वज की उपार्जित सिद्ध नही होती। बल्कि यह विपक्षीगण द्वारा उपार्जित सिद्ध होती है। पत्रावली पर उपलब्ध अन्य साक्ष्य से परिवार का विभक्ता होना सिद्ध होता है। रघुनंदन प्र० को रघुनथ प्र० ने जो पत्र १०-१२-१९०६ को भेजा उसमे यह लिखा है कि जो कुछ अपने घऱ का इन्तजाम ही करो, अपने लड़के को खाने को दो या ना दो, आइन्दा तुम्हारा किसी किस्म का वार अपनी गरदन पर नही ले सकता हूँ। तुम जानो तुम्हारा काम जाने इससे साबित होता है कि रघुनंदन प्र० अपने भाई के जीवनकाल मे ही अलग हो गए थे। रघुनंदन प्र० ने ग्राम जमूनिया डीह के अपने ४ आना हिस्से का जो रजिस्टर्ड रेहननामा लिखा तथा शेखारियाजत हुसैन के हित मे अपने खुदकास्त नंबर का जो रजिस्टर्ड दस्तावेज रेहननामा दिनांक १४.०७.१९१३ को लिखा, इससे सिद्ध होता है कि पक्ष स्वतंत्र रूप से अलग अलग अपनी जायदाद के विषय मे हस्तांतरण आदि कर रहे थे। १४.०७.१९१३ के उपरोक्त दस्तावेज से रघुनंदन प्रसाद द्वारा अपने लडके की शादी के लिए कर्ज के सिलसिले मे अपने स्वयं के खुदकास्त के नंबर का रेहन कर देना भी पक्षों की अलहदगी सिद्ध करता है। १०.१२.१९०६ का उपरोक्त पत्र बडे भाई द्वारा छोटे भाई को फटकार नही थी वरन यह अपनी जायदाद के विषय मे अलग से रेहन आदि करते रहे। निगरानीकर्ता का यह कथन कि रघुनाथ प्र० टी०बी० के मरीज थे। इसलिए रघुनंदन प्र० ने उपरोक्त रेहननामे उसकी ओर किए परन्तु यह मृत्यु रजिस्टर के उद्धरण से गलत सिद्ध होती है जिसमे रघुनाथ प्र० की मृत्यु का कारण टी०बी० नही लिखा वरन उनकी मृत्यु ताप और बुखार के कारण हुयी।"

8. Learned counsel for respondents have also pointed out that one of auction purchasers has executed a gift deed in favour of ancestors of respondents and undisputedly, no sale has been challenged at the behest of petitioner. It is also not disputed that there are long consisting revenue entries in favour of respondents which were not challenged either by petitioner or their ancestors.

9. In this regard, it is to note a submission of learned counsel for petitioner that a suit was filed to set aside the gift deed, however, due to commencement of consolidation, suit was abated. It is also not disputed that in regard to certain part of land, respective compensation was received by the parties.

10. Heard learned counsel for parties and perused the record.

11. As referred above, the issue which requires consideration is that whether land in dispute was a joint family property or not?

12. Before adverting to rival submissions, it would be apposite to refer few paragraphs from a judgment passed by Supreme Court in D.S. Lakshmaiah and another vs. Balasubramanyam and another, (2003) 10 SCC 310 -:

"7. The question to be determined in the present case is as to who is required to prove the nature of property whether it is joint Hindu family property or self-acquired property of the first appellant.

9. In Appalaswami v. Suryanarayanamurti [AIR 1947 PC 189 : 1947 All LJ 587] in a partition suit filed against their father by minor sons from the first marriage, the father claimed that the properties in question were his self-acquired properties and denied that the plaintiffs had any right to seek partition. The High Court, reversing the judgment of the trial court, held that the view expressed by the trial court that joint family property was only that which the father took under partition Exhibit A was not correct and further held that whole of the property set out in the schedule to the written statement of the appellant father, which had been acquired after partition Exhibit A was joint family property. The contention accepted by the High Court was that the share which the father took under Exhibit A formed the nucleus from which all his further acquisitions sprang. The plea of the father that was accepted by the Privy Council was that the whole of the property that came to him under Exhibit A was intact and unencumbered except a small portion sold which amount had been debited against household expenditure. The Privy Council held that the Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. In the case before the Privy Council, on facts, it was held that the burden had shifted to the father to prove self-acquisition of properties as it was established that the family possessed joint property which from its nature and relative value, may have formed the nucleus to acquire the property in question. Those properties were large in number and have been noticed in the Privy Council decision. However, on further facts found, it was held that the father had discharged that burden. The properties were held to be self-acquired properties of the appellant.

10. In Srinivas Krishnarao Kango v. Narayan Devji Kango [AIR 1954 SC 379] the contention that was urged on behalf of the appellant was that the burden was wrongly cast on the plaintiff of proving that the acquisition of the properties were made with the aid of joint family funds, the argument being that as the family admittedly possessed the ancestral watan lands of the extent of 56 acres, it must be presumed that the acquisitions were made with the aid of joint family funds and, therefore, the burden lay on the defendants who claimed that they were self-acquired acquisitions to establish that they were made without the aid of joint family funds and that the evidence adduced by them fell far short of it and that the presumption in favour of the plaintiff stood unrebutted. It was noticed by this Court that on the question of the nucleus, the only properties which were proved to belong to the joint family were the watan lands of the extent of about 56 acres bearing an annual assessment of Rs 49. There was no satisfactory evidence about the income which these lands were yielding at the material time. Under these circumstances, noticing with approval the aforesaid Privy Council decision, it was held that whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him to establish that there was adequate nucleus out of which the acquisition could have been made is one of fact depending on the nature and extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income which may well form the foundation of the subsequent acquisitions.

11. In Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh [(1969) 1 SCC 386] noticing the observations of Sir John Beaumont in Appalaswami case [AIR 1947 PC 189 : 1947 All LJ 587] it was reiterated that the burden of proving that any particular property is joint family property in the first instance is upon the person who claims it to be so. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is, however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. We are unable to accept the contention of the learned counsel for the respondents that the aforesaid later observations have been made without reasons or that the Privy Council's decision does not hold so. The observation that only after possession of adequate nucleus is shown that the onus shifts also gets support from Srinivas Krishnarao Kango case [AIR 1954 SC 379] where, while considering the question of shifting of burden, it has been held that the important thing to consider is the income which the nucleus yields.

12. In Baikuntha Nath Paramanik v. Sashi Bhusan Pramanik [(1973) 2 SCC 334] this Court again held that when a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the persons who were in the management of the family properties are family acquisitions.

13. In Surendra Kumar v. Phoolchand [(1996) 2 SCC 491] this Court held that where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family funds.

18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."

[emphasis supplied]

13. In view of above factual and legal background, now Court proceeds to consider rival submissions since petitioner has asserted that property was joint family property, therefore, he has to prove that there was nucleus from which the joint property could be acquired, only then there would be presumption that the property being joint and the onus would shift to respondents to prove that it was a self-acquired property and partition had already taken place.

14. It is also relevant to mention that Supreme Court has held in Krishnanand (Dead) through Legal Representatives and Ohers v. Deputy Director of Consolidation and others, (2015) 1 SCC 553 that concurrent findings could be disturbed only when they are perverse or beyond jurisdiction. Relevant paragraph of above judgment are reproduced hereinafter :-

"12. The High Court has committed an error in reversing the findings of fact arrived at by the authorities below in coming to the conclusion that there was a partition. No doubt, the High Court did so in exercise of its jurisdiction under Article 226 of the Constitution. It is a settled law that such a jurisdiction cannot be exercised for re-appreciating the evidence and arrival of findings of facts unless the authority which passed the impugned order does not have jurisdiction to render the finding or has acted in excess of its jurisdiction or the finding is patently perverse. In the present case, though the High Court reversed the concurrent findings of the authorities below and came to the opposite conclusion on matter of facts, the High Court did not do so on the ground that the authorities below acted in excess of their jurisdiction or without jurisdiction or that the finding is vitiated by perversity.

13. We are of the view that the High Court ought not to have entered into re-appreciation of evidence and reversed the findings of fact arrived at by the three authorities below, especially since, the authorities had neither exceeded their jurisdiction nor acted perversely. The High Court has no where stated that it was of the view that there is any perversity, much less the High Court failed to demonstrate any such circumstances."

15. The findings which are part of impugned order that land in dispute was not a joint property are as follows -:

i. Petitioner and respondents have received their respective compensation and receipts with details of amount are on record.

ii. There was no material or sufficient proof that there was a nucleus from which joint property could be purchased.

iii. There was no evidence to prove that petitioner was ever khudkast or in possession of land in dispute.

iv. Property was mortgaged and was never redeemed, however, it was purchased in auction and there was no proof that it was purchased by nucleus of joint property.

v. Petitioner was never recorded in khewat. Some land was purchased after 30 years of death of petitioner's father.

vi. The communication (letters) between petitioner and his uncle would not be sufficient to discharge his burden as required.

16. Learned counsel for respondents has submitted that above referred arguments have already been rejected by three Authorities and they are not sufficient to render above referred findings as perverse i.e. contrary to record.

17. The long statement of Ramchandra s/o Raghunandan, a witness, has to be read as a whole and reliance could not be placed on its bits and pieces. The statement commenced with -:

'हरिश्चंद्र के पिता रघुनाथ था हमारे रघुनन्दन आपस में घर में अलग अलग रहते थे। इन लोगों का कुल कारोबार अलग अलग था। रघुनाथ रघुनन्दन पर अलग अलग कब्जे की डिक्रिया थी।' ........... 'रघुनन्दन हरिश्चंद्र के कर्ता खानदान नहीं थे।' ...... 'हरिश्चंद्र ने रेहन का रुपया अदा नहीं किया।'

Therefore, the entire basis of argument of learned counsel for petitioner is demolished.

18. Learned counsel for petitioner has referred from above referred statement that rent collected was distributed among all brothers and that though they used to collect rent separately but tenants were not specified, but the witness has categorically stated that 'हम अपने अपने हिस्से का लगन वसूल करने के लिए साथ में जाते थे और अलग अलग भी जाते थे।'. The witness has used the words 'अपने अपने हिस्से का' i.e. rent was collected for respective part of land. This is absolutely contrary to concept of joint property.

19. The reference to the statement that 'यू पी में अंशों के बाबत कोई तहरीरी बटवारा नहीं हुआ था क्योंकि बहुत कम जायदाद थी' would indicate that there might be no written partition but parties were acting on basis of agreed agreement of partition and used to collect rent separately, therefore, the part of statement would also of no help to the petitioner's case. The following part of statement of witness would further demolish the case of petitioner that 'यह बाग़ अम्बिका प्रसाद के ज़माने की थी या नहीं मैं नहीं बता सकता था यह बाग़ किसका लगाया था मैं नहीं बता सकता' and further 'जब मैं गोरखपुर पढता था तो रघुनाथ प्रसाद मेरे गार्डियन नहीं थे'.

20. In aforesaid circumstances, few part of long statement if considered to be in favour of petitioner would not change the entire corpus of statement, which goes on basis that both families were residing separately and doing their respective work separately. There is no consistent and reliable evidence regarding joint property.

21. Learned counsel for petitioner has also placed much reliance on letters written by Raghunath Prasad to Raghunandan Prasad, to submit that contents thereof would describe that family was undivided and therefore, property was joint, however, as held by Revisional Authority, its contents would be more towards that relations between both of them were not cordial and author of letter has taken objections that other party is not doing anything towards family. It would be like a communication between two brothers interchanging their view of family matters but definitely it would not be sufficient to shift the burden on respondents.

22. There are other documents annexed along with this writ petition which include mortgage deed, however, they will not be helpful since as discussed above that petitioner has failed to prove that there was a nucleus and it was a joint property, therefore, as held in D.S. Lakshmaiah (supra), petitioner was absolutely failed to discharge initial burden that property in dispute was remained undivided or joint.

23. In aforesaid circumstances, as held in Krishnanand (supra), this Court cannot re-appreciate evidence to the extent that findings of fact may be reversed in absence of any material to show that there was perversity in concurrent findings.

24. In view of above, this Court does not find any reason to interfere with the impugned order, therefore, petition has no force, hence, dismissed.

Order Date :- October 16, 2023

Nirmal Sinha

[Saurabh Shyam Shamshery, J.]