Chattisgarh High Court
Narayan vs Guranjan (Dead) Through Lr'S And ... on 9 February, 2023
Page 1 of 26
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 584 of 2003
Reserved on : 22.11.2022
Delivered on : 09.02.2023
Narayan, Aged About 32 Years, son of Late Shri Ransai Gonda
by Caste Agriculturist, resident of Village- Champuka Nagar,
Tahsil- Surajpur, District- Surguja (C.G.)
---- Appellant
Versus
1. Guranjan (Dead) through LR's
1(a) Shiva Charan, Aged About 60 Years, son of Late Guranjan.
1(b) Ram Chandra, Aged About 55 Years, son of Late Guranjan.
1(c) Bachhan, Aged About 53 Years, son of Late Guranjan.
1(d) Piwarsai, Aged About 50 Years, son of Late Guranjan.
1(e) Rawasai, Aged About 48 Years, son of Late Guranjan.
1(f) Smt. Ful Kanwar, Aged About 80 Years, W/o Guranjan.
All are R/o Champak Nagar, Tahsil & District- Surajpur (C.G.)
2. Shri Ram (Dead) through LR's
2(a) Basant, Aged About 40 Years, S/o Late Shri Ram.
2(b) Sant Lal S/o Late Shri Ram, Aged About 38 Years
2(c) Smt. Mankunwar, Aged About 70 Years, W/o Late Shriram.
All are R/o Village- Champak Nagar, Tahsil- Surajpur, District-
Surguja (C.G.)
3. State of Chhattisgarh, through the Collector, Surguja (C.G.)
---- Respondents
For Appellant : Mr. M.D. Sharma & Mr. Aman Sharma,
Advocates.
For Respondents No. 1(a) : Mr. J.K. Shastri, Advocate.
to 1(f) & 2(a) to 2(c)
For State/ Res. No. 3 : Mr. R.M. Solapurkar, Govt. Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. JUDGMENT
1. This second appeal has been filed by the appellant/plaintiff under
Section 100 of the C.P.C. against judgment and decree dated
22.08.2003 passed by First Additional District Judge, Surajpur
(C.G.) in Civil Appeal No. 8A/2003 (Narayan Vs. Guranjan &
others) affirming the judgment and decree dated 30.07.2002
passed by Civil Judge Class-II, Surajpur (C.G.) in Civil Suit No.
42A/1997 by which the learned trial Court has dismissed the suit
filed by the plaintiff.
2. For the sake of convenience, the parties shall be referred to in
terms of their status in Civil Suit No. 42A/1997 which was filed
for declaration of title and partition.
3. The instant Second Appeal is admitted for hearing by this Court
vide its order dated 07.11.2016 on framing substantial question
of law and on additional substantial question of law framed on
19.08.2021, which are as under:-
"1. Whether the Courts below were justified in recording a
finding against the plaintiff based on Panchnama Rasid (Ex.
D/8) without valid proof of its contents in accordance with law?
2. Whether both the Courts below are justified in holding that
the plaintiff's father Ransai and his grand-father Thoi were not
related with Ashadhi and his family and thereby refused to
grant decree in favour of the plaintiff, also relying upon Ex. D/8
by recording a perverse finding?"
4. The brief facts, as reflected from the plaint averments, are that
the plaintiff has filed civil suit for declaration of title & partition
against the defendants mainly contending that the property
situated at Village- Champak Nagar, Patwari Halka No. 51B
Revenue Circle- Surajpur, Tahsil & District- Surajpur described in
Schedule-A of the plaint is the self-acquired property of father of
plaintiff namely Late Ransai, father of the defendants namely
Amarsai and Navalsai. The property described in this paragraph
will be referred to as suit property in subsequent paragraph.
5. It has been further contended that grand-father of the plaintiff
and defendants namely Late Thoi and Late Asadhi had expired
prior to Surguja State Survey Settlement. The lease of Surguja
State Survey Settlement was prepared in the name of Amarsai,
Navalsai S/o Asadhi & Ransai S/o Thoi. Late Asadhi and Thoi
were real brothers and were doing agriculture work in the suit
property and after death of Late Asadhi and Thoi, the lease of
Surguja State Survey Settlement was recorded in the name of
Late Amarsai, Navalsai S/o Asadhi and Late Ransai S/o Thoi. It
has been further contended that father of plaintiff and defendant
have received the lease of Surguja State Survey Settlement in
common title and genealogy of the family has also been
described in the plaint to demonstrate that they belonged to one
family. It has been further contended that the suit property was
not partitioned as plaintiff's father and defendant's father have
good relationship and there was no dispute between them. After
death of plaintiff's father and defendant's father, the dispute
arose. The plaintiff requested the defendants repeatedly for
partition, but they refused to do so on the pretext that on
11.02.1949, a Panchayat was conducted in which, it has been
decided that 5 acres land will be given to Late Ransai, which has
been accepted by Late Ransai. It has also been decided that
now Late Amarsai, Navalsai & Late Ransai have no family
relationship.
6. On the basis of so called Panchayat, the defendants have
moved an application before revenue officer for correction of
record, but since it was illegal and forged, the Assistant
Settlement Officer, Surajpur has not corrected the document and
returned the Panchnama Rasid to them. When it was brought to
the notice of the plaintiff, he moved an application for mutation
before Tahsildar, Surguja and then the defendants have filed civil
suit and obtained stay on 09.08.1992 wherein it has been stated
that neither the plaintiff has right over the suit property nor
possession over the suit property. During pendency of the suit,
the defendants fraudulently on the basis of Panchayatnama,
partitioned the suit property and accordingly, recorded their
names in revenue records, thereafter the said civil suit was
withdrawn on 05.12.1996 by them. The plaintiff moved an
application for partition wherein the Tahsildar has passed the
order on 1.01.1997 by observing that during settlement
proceedings, the accounts of revenue record have already been
partitioned in the name of Guranjan S/o Navalsai, Narayan S/o
Ransai and Shriram S/o Navalsai, therefore, no further
proceedings are required to be done and accordingly closed the
proceedings. The plaintiff after obtaining the certified copy has
filed the present civil suit for partition and claimed half of the
share of the suit property. It has been further contended that 5
acres land has been given to the plaintiff whereas defendants
have recorded their names in 28 acres of land and infact, it
should be equal share of the suit property.
7. Defendants No. 1 & 2 have filed their written statement denying
the allegation made in the plaint mainly contending that the suit
property is self-acquired property of grand-father of defendants
No. 1 & 2 Late Asadhi who took possession of the land prior to
Surguja State Survey Settlement, but at the time of Surguja
State Survey Settlement, Asadhi Gond expired, therefore, the
lease was not recorded in the name of Late Asadhi. At the time
of Surguja State Survey Settlement, sons of Late Asadhi namely
Late Amarsai and Late Navalsai were alive and were in
possession of the suit property. Amarsai expired issue-less and
defendants No. 1 & 2 are son of Navalsai. Plaintiff's grand-father
namely Late Thoi was R/o Village- Parri, P.S. & Tahsil- Surajpur,
District- Surajpur. Late Thoi came to Village- Champak Nagar,
Surguja prior to Surguja State Survey Settlement after quarrel
with his elder brother and doing labour work with grand-father of
defendants namely Asadhi Gond. It has been further contended
that son of Thoi Gond namely Ransai, who was father of plaintiff
No. 1 was also living at Village- Champak Nagar with his father
Late Thoi, who after attaining age of majority and working in
colliery, became educated, has been appointed to present their
case before the Survey Settlement on behalf of defendant's
father Late Navalsai and Late Amarsai. He has received lease
on behalf of Amarsai and Navalsai wherein Ransai has recorded
his name also.
8. It has been further contended that since they were illiterate
persons and under impression that the suit property has
recorded in their names, but as soon as they got knowledge
about recording of name of Ransai, a Pachayat was convened
on 14.02.1949 between Late Amarsai, Late Navalsai and Ransai
in presence of senior and reputed persons of the village, wherein
it has been decided by the Panch to give 5 acres of land to Late
Ransai, which has also been accepted by Ransai. It has also
been accepted by Ransai that Late Amarsai, Late Navalsai and
his father Late Asadhi have now no family relationship between
them. The said Panchayatnama was written by the Panch in the
Panchayat and according to which, 5 acres of land was given to
Ransai and he is in possession of the said property lifetime,
which is annexed with Schedule-C of the plaint. It has been
further contended that grand-father of defendant No. 1 & father-
in-law of plaintiff No. 2 Late Thoi are not brothers of grand-father
of defendants Late Asadhi Gond, but Late Thoi was working as
labour in the house of Late Asadhi Gond and there was no family
relationship of Late Asadhi with Late Thoi. Grand-father of
defendants was Late Hirri Manjhi whereas Jitu Gond was father
of Late Thoi and the genealogy produced by the plaintiff is false
and forged one. The defendants are in peaceful possession of
the suit property till 1949 and prayed for dismissal of the suit.
9. On pleading of the parties, the learned trial Court has framed as
many as 9 issues. Issue No. 1, 2 & 4 are relevant for
adjudication of the case, therefore, they are being extracted
below:-
1- D;k oknhx.k ,oa izfroknhx.k i`Fkd&i`Fkd oa'k ds O;fDr gS\
2- D;k Lo- julk; us ifjf'k"V ^^v** dk Hkwfe oknxzLr Hkwfe;ksa dk ljxqtk
losZ lsVyesaV dk jS;;rh iV~Vk pksjh fNis vius uke Hkh ntZ djok;k
gS\
4- D;k tokcnkok ds ifjf'k"V ^^l** dh 5 ,dM+ Hkwfe fnukad [email protected]@49
dks Lo- julk; dks nh xbZ Fkh\
10. The plaintiffs to substantiate their case, examined Narayan
Singh (PW-1), Bharat Ram (PW-2), Nanau Ram (PW-3) & Tirpal
(PW-4) and exhibited documents of Surguja Estate Survey
Settlement (Ex. P/1) & order-sheet of the Court of Tahsildar
(Ex.P/2). The defendants to substantiate their case, examined
Guranjan (DW-1), Kullu Ram (DW-2), Tilak Ram (DW-3) &
Dhirsai (DW-4) and exhibited documents namely record of rights
(Ex.D/1 to D/3), Kishtabandi Khatouni for the year 1995-96
(Ex.D/4), Kishtabandi Khatouni for the year 1994-95,
Kishtabandi Khatouni (Ex. D/6), records of Surguja State Survey
Settlement & Panchnama Rasid (Ex. D/8).
11. During trial, witness examined on behalf of the plaintiff Bharat
Ram (PW-2) has stated that no Panchayat was convened 50
years ago with regard to the suit property and neither Panchayat
has written nor 5 acres land was given to Ransai and they are
doing cultivation in the suit property. This witness was cross-
examined by the defendants, wherein it has been reiterated that
no Panchayat was convened. The witness Nanau (PW-3) has
also reiterated the stand taken by the plaintiff and also denied
the fact that 5 acres of land was given to Ransai. He has stated
that there is no relation between Hirri Manjhi and Jeetu Gond.
He has denied that Thoi was working in the house of Asadhi. He
has also denied that Ransai S/o Thoi was working in Chirmiri
Colliery. He had denied that Narayan used to agricultural work in
5 acres of land wherein defendants have not raised any
objection. He has admitted that defendants are doing agricultural
work in 28 acres of land and no dispute was arisen.
12. Guranjan (DW-1) has reiterated the stand which defendants
have taken in their written statement. The said witness was
cross-examined by the plaintiff wherein he has denied that
Asadhi and Thoi belong to one family. He has denied that Asadhi
and Thoi are son of Jitu Gond. He has admitted that when the
plaintiff filed application before Tahsildar for partition then he has
filed civil suit for declaration of title and injunction and got stay
on the partition proceeding. Kullu Ram (DW-2) has stated that
Thoi had no brother and he has no agricultural land at Village-
Parri. He has stated that at the time of Surguja State Survey
Settlement, he was younger and he has no information about
Thoi. He has stated that he had no information about Asadhi and
Ransai, but he knows about Shriram and Guranjan. When he
was asked about Shriram and Guranjan, he kept silent and has
not given any reply to the said question.
13. Tilakram (DW-3) examined before the trial Court wherein he has
reiterated the stands which has been taken by the defendants in
their written statement and has also admitted that his father has
put his signature in Panchnama Rasid (Ex. D/8) and he is aware
about signature of his father. In examination-in-chief, he has
stated that 5 acres land was given to Narayan whereas
Guranjan and Shriram were doing agricultural work in the 28
acres of land and there was dispute before 8-10 years. He has
also admitted that Amarsai and Navalsai were sons of Asadhi
and Ransai was son of Thoi and he has also admitted that
Ransai s/o Narayan expired issue-less. He has denied that the
suit property is self-acquired property of Asadhi and Thoi,
therefore, Patta was recorded in the name of Amarsai, Navalsai
and Ransai. He has admitted that Nanau has sought half of the
share from Shriram and Guranjan, but they have refused,
therefore, Nanau has filed application for partition before the
Tahsildar, thereafter filed civil suit for injunction.
14. The learned trial Court on the basis of evidence and material on
record has dismissed the suit filed by the plaintiff by recording its
finding that the plaintiff is not able to produce any evidence to
prove that the Panchnama Rasid (Ex. D/8) is forged one
whereas the defendant has examined Tilak Ram (DW-3) who
has stated that in Ex. D/8 his father has put his signature,
therefore, issue No. 1 & 2 have been decided against the
plaintiff. Similarly, all the issues except issue No. 4 have been
decided against the plaintiff and consequently, suit was
dismissed. Against that, the plaintiffs have preferred first appeal
before First Additional Judge, Surajpur bearing Civil Appeal No.
8A/2003 who vide impugned judgment and decree dated
22.08.2003 dismissed the appeal by recording its finding that the
finding recorded by the learned trial Court Ex. D/8 was 30 years
old document, therefore, presumption can be drawn and the
learned trial Court appreciating the entire evidence and material
on record has given finding which is neither perverse nor
contrary to the law and accordingly, dismissed the appeal. Being
aggrieved with this judgment and decree, the plaintiff has
preferred the instant second appeal, which has been admitted by
this Court framing substantial questions of law as afore-stated.
15. Learned counsel for the appellant would submit that the learned
Courts below have wrongly relied upon Ex. D/8 in favour of
defendants as the contents of the recital made in Panchnama
Rasid has not been proved in accordance with law and to
substantiate his submission, he has referred to the judgment
rendered by this Court in case of Gujar Singh Vs. Lakhan &
others reported in CGLJ 201 (3) 246. He would further submit
that both the Courts below have not given any weightage to the
evidence of Narayan Singh (PW-1), Bharat Ram (PW-2) &
Nanau Ram (PW-3) who in their examination-in-chief have
clearly stated that Late Asadhi & Late Thoi were sons of Jeetu
Gond and they were real brothers. Amarsai and Navalsai are
son of Asadhi. Thoi had two sons namely Ransai and Dhansai.
He would further submit that it has been stated in paragraph 3 of
evidence of PW-1 that name of Amarsai, Navalsai and Ransai
were recorded in Surguja State Survey Settlement and such
statement has not been rebutted in the cross-examination,
therefore, as per law laid down by Hon'ble the Supreme Court in
case of Muddasani Venkata Narsaiah through Lrs. Vs.
Muddasani Sarojana reported in AIR 2016 SC 2250, it amounts
to admission. He would further submit that despite admission of
the fact, dismissal of suit by the trial Court and the dismissal of
appeal is on perverse finding, contrary to law, as such, the
appeal deserves to be allowed.
16. Learned counsel for the appellant would further submit that
during trial the statement of Guranjan (DW-1), Kullu Ram (DW-
2), Tilak Ram (DW-3) & Dhirsai (DW-4) was recorded wherein in
the cross-examination, they have denied the facts which have
been stated by them in their examination-in-chief, but the
learned Courts below have not taken into consideration the
evidence of these witnesses and have ignored the material facts
which can be interfered by this Court while deciding the second
appeal. He would further submit that it has been laid down that
in the second appeal finding of fact can be interfered on the
ground of perversity and the reversal of judgment and decree is
permissible and in support of his contention, he relied upon the
judgment rendered by Hon'ble the Supreme Court in Vidya Dhar
Vs. Manik Rao reported in AIR 1999 SC 144, Yadav Rao Vs.
Nani Lal reported in AIR 2002 SC 2849, Ratdan Dev Vs. Pasam
Devi reported in 2000 (7) SCC 441, Hafajat Hussain Vs. Abdul
Majeed reported in AIR 2001 SC 3201 & Hero Vinoth Vs.
Shesha Mal reported in AIR 2006 SC 2234.
17. On the other hand, learned counsel for respondents No. 1(a) to
1(f) & 2(a) to 2(c) would submit that there is dispute regarding
land of ancestral property. The genealogy has wrongly been
projected by the plaintiff and the plaintiff could not prove the
genealogy as per law, therefore, the finding recorded by the
learned trial Court that they are not family members, is legal and
justified and the same is not liable to be interfered by this Court.
He would further submit that Late Ransai father of appellant has
not challenged Ex. D/8 in his lifetime, which was executed on
14.02.1949. After death of Late Ransai, the appellant has filed
the civil suit after 48 years on 20.02.1997, therefore, the suit is
barred by limitation. He would further submit that from evidence
on record, it is clear that the appellant is unable to prove that
Thoi and Asadhi were brothers, which cannot be interfered by
this Court and the substantial questions of law framed by this
Court may be decided against the plaintiff as the judgment
passed by the Courts below are upon concurrent finding of fact,
which cannot be interfered by this Court while deciding the
second appeal under Section 100 of the C.P.C. In support of his
submission, he relies upon the judgment passed by Hon'ble the
Supreme Court in S. Subramanian Vs. S. Ramasamy &
others1, wherein it has been held at paragraph 10 as under:-
"10. At this stage, it is required to be noted that
there was a serious dispute regarding who repaid
the loan. It was the plaintiff who claimed that he
only discharged that loan, however, the defendant
Subramanian contended that the loan was
discharged by Sengoda Gounder from out of the
income derived by him from the suit properties
itself. In any case, when on appreciation of
evidence on record including the documentary
evidence which came to be re appreciated by the
High Court, both the Courts below came to the
conclusion that there was no blending of the suit
properties into joint family properties, the High
Court in exercise of its powers under Section 100
1 (2019) 6 SCC 46
of the CPC, is not justified in reversing those
findings which were on appreciation of evidence
on record."
18. In view of the above factual and legal submission, he would pray
for dismissal of the appeal.
19. I have heard learned counsel for the parties and perused the
documents placed on record with utmost satisfaction.
20. For determining the substantial questions of law framed by this
Court, it is expedient for this Court to extract the relevant clause
of Panchanama Rasid (Ex. D/8), which reads as under:-
"iapukek jlhn
eSa julk; firk BksbZ ekStk dfVUnk esjs firk BksbZ ds ejus ckn esa eSa julk; esa
vejlk;] uoylk; firk vlknh dks dgk fd esjs ekrk firk dksbZ tkudkjh
ugha gS fd dgak ls vk;s gSa fQj eSa caVokjk ds ckjs esa dgk& rc vejukFk us
dgk fd fgLlk dSls nsa ;s tk;tkn lEirh rks vlk<h dk gS BksbZ dk rks ugha
gS D;ksa vlk<h dk dksbZ futh HkkbZ ugh gS vkSj rqEgkjs firk us nksxkjh ds Mj
ls esjs ?kj Hkkx dj jgus yxk vkSj rqe yksxksa xks= HkkbZ ds ukx ls jgus ds
dkj.k cpiu ls ckyiks"k fd;k rFkk 'kknh Hkh fd;kA vejlk; us vius
n;kyqrk ls vius [kkrs dh 5 ,dM+ tehu ns jgs gS rFkk bl [kkrs dh tehu
esa BksbZ dk dksbZ gd ugha Fkk mlh tehu dks dekvks [kkvks vkSj vius uke ls
djk yks ;g lEifr vlk<h dk gS BksbZ dk ugh gS rFkk mldk oa'k Hkh ugh
gSA lu~ 1945 ds losZ lsVyesaV esa julk; us pksjh ls ikVhnkj vkneh dks
ysdj vejlk; oYn vlk<h ds [kkrs esa viuk uke julk; oYn BksbZ dk gd
fgLlk p<+ok;k Fkk rFkk 3 lky ckn gYdk iVokjh us crk;k fd vejlk;
oxSjg dh [kkrs dh tehu esa julk; oYn BksbZ uke p<+ x;k gS rc vejlk;
us iapk;r cqyk;k vkSj dgk fd vejlk;] uoylk; ds [kkrs dh tehu esa
julk; vk0 BksbZ dk uke dSls p<+ x;k gS rc iapksa us dgk fd bldh
nj[kkl gYdk iVokjh dks ns nks vkSj iapk;r ds ek/;e ls ge yksx QSlyk
dj ns jgs gS fd vejlk;] uoylk; ds firk dk BksbZ futh HkkbZ ugh jgus
ds dkj.k tks 5 ,dM+ tehu fn;k x;k gS mlh dk gd vkSj vf/kdkj gS ;gh
Qslyk iapksa ls fn;k tk jgk gS fd vkt fnukad 14-2-49 ls vejlk; oxSjg
dh [kkrs dh tehu esa 5 ,dM+ ds vykok dksbZ fglkc o gd ugh gS vkSj
lkns dkxt ij fy[k fn;k tkrk gS fd le; ij dke vkosA "
21. From perusal of Panchnama Rasid (Ex. D/8), it is quite vivid that
the transfer of property and relationship are being determined by
this document whereas the transfer of property is governed by
the Transfer of Property Act, which provides the manner and
procedure for transfer of the property. The Panchs have decided
that Thoi is not real brother of Amarsai and Navalsai which
cannot be decided by the Panchs for that procedure of filing
declaration suit is available, thus, by Panchnama Rasid (Ex.
D/8), the right of transfer of property and relationship cannot be
decided. Even otherwise, the property described in Schedule-A
of the plaint is having 28.19 acres and the property described in
Schedule-C of the written statement is 5 acres. Thus, transfer of
33.19 acres land is being decided by the Panchnama Rasid. The
value of the said property is more than Rs. 100/-, therefore, as
per Section 49 of the Registration Act, 1908 the Panchnama
Rasid by which the transfer of land is being decided should be
registered document. Section 49 of the Registration Act, 1908
reads as under:-
"49. Effect of non-registration of documents
required to be registered.--No document
required by section 17 1[or by any provision of the
Transfer of Property Act, 1882 (4 of 1882)], to be
registered shall--
(a) affect any immovable property comprised
therein, or
(b) confer any power to adopt, or
be received as evidence of any transaction
affecting such property or conferring such power,
unless it has been registered: [Provided that an
unregistered document affecting immovable
property and required by this Act or the Transfer of
Property Act, 1882 (4 of 1882), to be registered
may be received as evidence of a contract in a
suit for specific performance under Chapter II of
55 56
the Specific Relief Act, 1877 (3 of 1877) ,
[***] or as evidence of any collateral transaction
not required to be effected by registered
instrument.] State Amendment Uttar Pradesh: In
section 49,--
(i) in the first paragraph, after the words "or by any
provision of the Transfer of Property Act, 1882"
insert the words "or of any other law for the time
being in force",
(ii) substitute clause (b) as under: "(b) confer any
power or create any right or relationship, or",
(iii) in clause (c), after the words "such power",
insert the words "or creating such right or
relationship",
(iv) in the proviso, omit the words "as evidence of
a contract in a suit for specific performance under
Chapter II of the Specific Relief Act, 1877, or".
[Vide Uttar Pradesh Act 57 of 1976, sec. 34 (w.e.f.
1-1-1977)]."
22. Section 49 of the Registration Act, 1908 has come up for
consideration before Hon'ble Supreme Court in case of Shyam
Narayan Prasad Vs. Krishna Prasad & others 2, wherein it has
been held at paragraph 20 to 22 as under:-
"20. Section 17(i)(b) of the Registration Act
mandates that any document which has the effect
of creating and taking away the rights in respect of
an immovable property must be registered and
Section 49 of the Registration Act imposes bar on
the admissibility of an unregistered document and
deals with the documents that are required to be
registered under Section 17 of the Registration
Act. Since, the deed of exchange has the effect of
creating and taking away the rights in respect of
an immovable property, namely, RCC building, it
requires registration under Section 17. Since the
deed of exchange has not been registered, it
cannot be taken into account to the extent of the
transfer of an immovable property.
21. In Roshan Singh & Ors. v. Zile Singh & Ors.
2 (2018) 7 SCC 646
1988 (2) SCR 1106, this Court was considering
the admissibility of an unregistered partition deed.
It was held thus:
"9......Section 17(i)(b) lays down that a document
for which registration is compulsory should, by its
own force, operate or purport to operate to create
or declare some right in immovable property......
Two propositions must therefore flow:
(1) A partition may be affected orally; but if it is
subsequently reduced into a form of a document
and that document purports by itself to effect a
division and embodies all the terms of bargain, it
will be necessary to register it. If it be not
registered, S.49 of the Act will prevent its being
admitted in evidence. Secondary evidence of the
factum of partition will not be admissible by reason
of S.91 of the Evidence Act, 1872." (emphasis
supplied)
22. It is clear from the above judgment that the
best evidence of the contents of the document is
the document itself and as required under Section
91 of the Evidence Act the document itself has to
be produced to prove its contents. But having
regard to Section 49 of the Registration Act, any
document which is not registered as required
under law, would be inadmissible in evidence and
cannot, therefore, be produced and proved under
Section 91 of the Evidence Act. Since Exhibit P2 is
an unregistered document, it is inadmissible in
evidence and as such it can neither be proved
under Section 91 of the Evidence Act nor any oral
evidence can be given to prove its contents.
Therefore, the High Court has rightly discarded
the exchange deed at Exhibit P2."
23. The learned trial Court while relying upon Ex. D/8 has also drawn
presumption under Section 90 of the Indian Evidence Act as it is
more than 30 years without considering the provisions of Section
90 of the Indian Evidence Act, 1872. Section 90 of the Indian
Evidence Act, 1872 is extracted below:-
"90. Presumption as to documents thirty years
old.--Where any document, purporting or proved
to be thirty years old, is produced from any
custody which the Court in the particular case
considers proper, the Court may presume that the
signature and every other part of such document,
which purports to be in the handwriting of any
particular person, is in that person's handwriting,
and, in the case of a document executed or
attested, that it was duly executed and attested by
the persons by whom it purports to be executed
and attested. Explanation.--Documents are said
to be in proper custody if they are in the place in
which, and under the care of the person with
whom, they would naturally be; but no custody is
improper if it is proved to have had a legitimate
origin, or if the circumstances of the particular
case are such as to render such an origin
probable."
24. From bare perusal of Section 90, it is quite vivid that Section 90
provides presumption to the extent of authenticity of any
handwriting content in or execution or attestation of a document
and this Section nowhere provides that in terms thereof the
authenticity of the recital contained in any document is proved
and even if formal execution of a document is proved, the same
by itself cannot lead to a presumption that the recital contained
therein are also correct. Section 90 of the Indian Evidence Act,
1872 has come up for consideration before Hon'ble the Supreme
Court in case of Gangamma & others Vs. Shivalingiah3,
wherein it has been held at paragraph 8 as under:-
"8. Section 90 of the Indian Evidence Act nowhere
provides that in terms thereof the authenticity of
the recitals contained in any document is
presumed to be correct. The High Court,
therefore, committed a manifest error of law in
interpreting the provision of Section 90 of the
Indian Evidence Act and, thus, fell into an error in
formulating the substantial question of law. As the
purported substantial question of law was
formulated on a wrong reading of Section 90 of
the Indian Evidence Act, the impugned judgment
cannot be sustained. We may furthermore notice
that even if a formal execution of a document is
proved, the same by itself cannot lead to a
presumption that the recitals contained therein are
3 (2005) 9 SCC 359
also correct. The mere execution of a document,
in other words, does not lead to the conclusion
that the recitals made therein are correct, and
subject to the statutory provisions contained in
Sections 91 and 92 of the Evidence Act, it is open
to the parties to raise a plea contra thereto."
25. From the above-mentioned legal position, it is quite vivid that the
learned Courts below have committed illegality in relying upon
Ex. D/8. Thus, substantial question of law No. 1 answered in
favour of the plaintiff and against the defendants.
26. Now substantial question of law No. 2- Learned trial Court
while deciding issue No. 1 has again relied upon Ex. D/8 and
recorded a finding that the plaintiff and defendants belonged to
different family. Learned trial Court has not considered the
evidence of the plaintiff wherein they have categorically
contended that they belong to same family and also relied upon
the Surguja State Settlement records wherein the name of the
plaintiff's father Ransai was also recorded. The defendants to
rebut the said allegation have pleaded that the plaintiff's grand-
father Thoi was labour working with Asadhi, but they have not
discharged their burden by recording cogent evidence and even
the learned trial Court has not given any reason to disbelieve the
evidence of the plaintiff and thus on the basis of perverse finding
relying upon Ex. D/8, which does not confer any right over the
property as per the Transfer of Property Act, therefore, the
substantial question of law No. 2 is also decided in favour of the
plaintiff.
27. From the records, it is also vivid that the plaintiff has examined
Tirpal (PW-4) who was aged about 70 years when the evidence
was recorded before the trial Court who has stated that Asadhi
and Thoi are the real brothers and in the cross-examination, he
has stated that Surguja State Survey Settlement was prepared
prior to 70 years and there is no effective cross-examination by
the defendants on this point. From the record, it is quite vivid that
the plaintiff has also submitted genealogy in the plaint and the
defendants have denied the same and have contended that Thoi
was not brother of Asadhi, but he was servant and no further
evidence was brought on record by them. It is well settled
position of law that the person claiming share over the property
on the basis of genealogy has to plea and prove genealogy by
recording cogent evidence. How the genealogy has to be
proved, has come up for consideration before Hon'ble the
Supreme Court in case of State of Bihar Vs. Radha Krishna
Singh & other4, wherein it has been held at paragraph 24 as
under:-
"24. It is well settled that when a case of a party is
based on a genealogy consisting of links, it is
incumbent on the party to prove every link thereof
and even if one link is found to be missing then in
the eye of law the genealogy cannot be said to
have been fully proved. In the instant case,
although the plaintiffs have produced oral and
documentary evidence to show that Ramruch
Singh and Debi Singh were brothers being the
sons of Bansidhar Singh this position was not
accepted by the trial court as also by M.M.
Prasad, J. who dissented from the other two
Judges constituting the Special Bench who had
taken a contrary view and had held that the
plaintiffs had fully proved the entire genealogy set-
up in the plaint........"
28. In the present case, the burden of proving the genealogy to get
4 (1983) 3 SCC 118
share in the property was over the plaintiff. The evidence
adduced by the plaintiff as well as Ex. P/1 & P/2 wherein the
column of name of Raiyat (tenant), name of Amarsai S/o
Navalsai Gond, Asadhi Gond, Ransai Gond S/o Thoi Gond, have
been recorded. They are records of the Surguja State Survey
Settlement and having binding effect even after enactment of
M.P. Land Revenue Code, 1954 and M.P./C.G. Land Revenue
Code, 1959 recognized rights conferred under Surguja State
Survey Settlement. This clearly proves the stand taken by the
plaintiff. It is necessary for this Court to extract the relevant
provisions of the Surguja State Survey Settlement known as
Wajibul Arj & Kanoonintakal Raiyat Jameen Surguja State 1939.
Clause 5 of the said settlement defines Hak Riyayat and sub-
clause 14 defines Maorusi Kitai Hak, which read as under:-
"5- gdwd jS;r
14- ekS#lh fdrbZ gd&ftu jS;rks ds dCts esa yxku 'kqnk
tehu gks ;k ftldks tehu vkbUnk nh tkos] ;k tks
iM+rh ;k xSjvkokn tehu dks dk'r dxjs ;k nhxj [ksrh
lEcU/kh dke esa ykos rks ml tehu ij ge ekS#lh fdrbZ
gkfly gksxkA
15- fdlh ekS#lh fdrbZ jS;r ds ej tkus ij mldk
okfjl mlds tkrh dkuwu ds eqrkfcd gksxkA dkuwu vne
ekStwnxh dkuwuh okfjl ds og vkjkth fj;k;r dh
feyfd;r le>h tk;sxhA
16- gdwd bUdky & gLo dk;nk VªkUalQj #y ckn gqlwy
eatwjh fj;klr dksbZ jS;r viuh dqy vkjkth ;k mlds
tqt fgLls dks otfj;s] c['kh'k] olh;r] jsgu ;k rckfnyk
ds bUrdky dj ldrk gS c'krsZ fd ,slh djus ls [ksrks ds
VqdMs u gksaA
17- csn[kyh & otqy gLo tSy ogwgkr ds] dksbZ jS;r
viuh vkjkth ls csn[ky ugha fd;k tkosxk] rc rd fd
ekdwy vnkyr eky csn[kyh dk gqDe u nsA
d & yxku os lsl oDr eqdjZjk ij vnk u djus lsA
[k & oxSj eatwjh fj;klr viuh teuhu dks [ksrh ls lEc/k
u j[krs gq; dke es ykus lsA
x & Jheku~ egkjktk ogknwj ;k fj;klr ds f[kykQ
jkfonzksg djus lsA
uksV &dksbZ jS;r vius vkjkth ls csn[ky gks tkus ij Hkh
vius cs yxku edku oks ckM+h ls csn[ky ugh fd;k
tkosxkA blh rjg eqykfteku ekStk] xkSafV;k o nhxj
ekQhnkju okxSjg viuh vkjkth ;k xkao ls csn[ky gksus ij
Hkh vius edku o ckM+h tks eqrvfYyds edku gks mlls
csn[ky ugh afd;s tkosxsaA
18 & btdkyxku & nkSjku lsVyesUV tks yxku lsVyesUV
ls r'k[khl fd;k x;k gks] ;k ubZ vkckn 'kqnk tehu ij
r'k[khl fd;k x;k gks og c<+k;k ugh tkosxk c'krsZ fd
jdck tehu es csotg 'kSykc unh ;k nhxj otg ds
deh ;k cs'kh u gksA ;k fcyk [rk jS;r] tehu es unh dk
ckyw oxSjg Hkj tkus ls ;k vkSj fdlh otg ls [kjkc u
gksA"
29. This right has been recognized by Madhya Pradesh Land
Revenue Code, 1954 and Section 2(19) of the Code, 1954
defines tenant means a person holding land from a tenure holder
as an ordinary or on occupancy tenant under Chapter XIV.
Section 2(20) defines tenure holder means a person holding
land from the State Government as a Bhumiswami or as a
Bhumidhari. Section 147 of the Code, 1954 provides that every
person who at the coming into force of this Code belongs to any
of the following classes shall be called a Bhumidhari and shall
have all the rights and be subject to all the liabilities conferred or
imposed upon a Bhumidhari by or under this Code namely:-
"(a) every person in respect of land held by him as an occupancy
tenant in the Central Provinces;
(b) every person in respect of land held by him as a raiyat or
raiyat sarkar in the Central Provinces;
(c) every person in respect of land held by him as a raiyat or
tenant in the merged territories;
(d) every person in respect of land held by him as a lessee of the
State Government under sub-section (2) of section 68 of the
Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950, not falling under clause (f)
of section 146."
30. The said right as occupancy tenant has also been recognized in
M.P. Land Revenue Code, 1959 in Chapter 14 of the said Code.
Section 2(y) defines tenant and Section 185 defines occupancy
tenant. Relevant provisions of Section 185 reads as under:-
"185. Occupancy Tenants- (I) Every person who
at the coming into force of this Code holds-
(i) in the Mahakoshal region-
(a) any land, which before the coming into force of
the Madhya Pradesh Land Revenue Code, 1954
(II of 1955), was malik-makbuza and of which
such person had been recorded as an absolute
occupancy tenant; or
(b) any land as an occupancy tenant as defined in
the Madhya Pradesh Land Revenue Code, 1954
(II of 1955); or
(c) any land as an ordinary tenant as defined in
the Madhya Pradesh Land Revenue Code, 1954
(II of 1955); or
(ii) in the Madhya Bharat region-
(a) any Inam land as a tenant, or as a rub-tenant
or as &n ordinary tenant; or "
31. Learned counsel for the defendants would submit that the
abovestated submission made by learned counsel for the plaintiff
has not been raised before the trial Court or before the First
Appellate Court, therefore, these submissions should have not
been raised by the appellant and the appeal deserves to be
dismissed. On the other hand, learned counsel for the appellant
would submit that the plaintiff has filed the entire records before
the trial Court and in the pleadings, he has already referred it,
therefore, the submission made by learned counsel for the
defendants deserves to be rejected.
32. Considering the above submissions of the plaintiff and the
defendants and also considering the provisions of Land
Revenue Code, though this point was not specifically raised
before the trial Courts below, but the records were placed on
record and pleadings regarding recording of the names of the
plaintiff in Surguja State Survey Settlement at paragraph 2 of the
plaint has already been taken, which have been ignored by the
Courts below, as such, it is illegality which can be examined by
this Court in the second appeal and in support of his submission,
the recognization of right under various Land Revenue Codes
have been raised, which can very well examined by this Court.
Thus, the objection raised by the defendants, deserves to be
rejected. Accordingly, it is rejected.
33. The learned trial Court without considering the documents has
dismissed the suit, which is a perverse finding. Even the Courts
below have committed illegality in not relying upon the entry
made in the revenue record and thus, on perverse finding, it has
recorded that the plaintiff's father Ransai and his grand-father
Thoi were not related with Asadhi and his family and thereby
refused to grant decree in favour of the plaintiff. Thus,
substantial question of law No. 2 deserves to be answered in
favour the plaintiff.
34. The submission of learned counsel for the defendants that the
concurrent finding of the facts is available in the case, therefore,
this Court should have dismissed the appeal as no substantial
question of law is involved. The reliance placed by the
defendants in case of S. Subramanian (Supra) is not applicable
to the present facts and circumstances of the case as the
findings recorded by the Courts below are perverse, contrary to
the evidence and law, which can very well be interfered by this
Court while hearing the Second Appeal under Section 100 of
then C.P.C. as held by Hon'ble the Supreme Court in case of
Balasubramanian & another Vs. M. Arockiasamy (Dead)
through Lrs.5, wherein it has been held at paragraph 13 & 14 as
under:-
"13. In the light of the rival contentions, before
adverting to the fact situation herein it is to be
stated at the outset that on the general principles
of law laid down in the decisions referred to by the
learned senior counsel for the appellant, there can
be no quarrel whatsoever.
13.1.In Gajaraba Bhikhubha Vadher & Ors.
versus Sumara Umar Amad (dead) thr. Lrs. & Ors.
(2020) 11 SCC 114 the fact situation arising
therein was referred to and having taken note that
five substantial questions of law had been framed,
this Court had arrived at the conclusion that such
substantial questions of law which arose therein
had not been dealt with appropriately since it had
not been considered in the light of the contentions.
It is in that circumstance, this Court was of the
view that the judgment of the High Court is to be
set aside and the matter is to be remitted to the
High Court.
13.2. In Ramathal versus Maruthathal & Ors.
(2018) 18 SCC 303, the issue considered was as
to whether the High Court was wrong in interfering
with the question of fact in the Second Appeal. It
was a case where both the courts below had
arrived at a concurrent finding of fact and both the
Courts had disbelieved the evidence of witnesses.
In such a case where such concurrent factual
finding was rendered by two courts and in such
situation, it had been interfered by the High Court
in a Second Appeal, this Court was of the view
that the interference was not justified. However, it
is appropriate to notice that in the said decision
5 (2021) 12 SCC 529
this Court had also indicated that such restraint
against interference is not an absolute rule but
when there is perversity in findings of the court
which are not based on any material or when
appreciation of evidence suffers from material
irregularity the High Court would be entitled to
interfere on a question of fact as well.
13.2 The decision in Ram Daan (dead) through
Lrs. versus Urban Improvement Trust. (2014) 8
SCC 902, is a case, where in a suit for permanent
injunction the plaintiff had pleaded possession
from the year 1942 and the defendant had
admitted the possession of the plaintiff from 1965
though it was contended that they had reentered
the property after being evicted in 1965. It is in
that circumstance the case of the plaintiff seeking
to protect the possession was accepted and the
necessity for seeking declaration did not arise as
the defendant did not assert its right of ownership
which is not so in the instant case.
13.4. In P. Velayudhan & Ors. versus Kurungot
Imbichia Moidu's son Ayammad & Ors. (1990)
Supp. SCC 9 and in Tapas Kumar Samanta
versus Sarbani Sen & Anr. (2015) 12 SCC 523,
the decisions are to the effect that in a Second
Appeal the High Court would not be justified in
interfering with the finding of fact made by the first
appellate court since such finding rendered would
be based on evidence. On this aspect there can
be no doubt that the same is the settled position of
law but it would depend on the fact situation and
the manner in which the evidence is appreciated
in the particular facts.
13.5. In Ramji Rai & Anr. versus Jagdish Mallah
(dead) thr. Lrs. & Anr. (2007) 14 SCC 200 though
it is held that there was no need to seek for
declaration and suit for possession alone was
sustainable, it was held so in the circumstance
where injunction was sought in respect of the
disputed land which was an area appurtenant to
their building in which case possession alone was
relevant and restraint sought was against
preventing construction of compound wall.
14. In the background of the legal position and on
reasserting the position that there is very limited
scope for reappreciating the evidence or
interfering with the finding of fact rendered by the
trial court and the first appellate court in a second
appeal under Section 100 of the Civil Procedure
Code, it is necessary for us to take note as to
whether in the instant facts the High Court has
breached the said settled position. To that extent
the factual aspects and the evidence tendered by
the parties has already been noted above in brief.
Further, what is distinct in the present facts of the
case is that the finding rendered by the learned
Munsif (Trial Court) and by the learned District
Judge (First Appellate Court) are divergent. The
trial court on taking note of the pleadings and the
evidence available before it was of the opinion that
the plaintiff has failed to prove exclusive
possession and, in such light, held that the
entitlement for permanent injunction has not been
established. While arriving at such conclusion the
trial court had taken note of the right as claimed by
the plaintiff and in that background had arrived at
the conclusion that except for the say of plaintiff as
PW1 there was no other evidence. On the
documentary evidence it was indicated that the
kist receipts at Exhibit A5 series would not
establish possession merely because the name
has been subsequently substituted in the patta
records and the kist had been paid."
35. In the light of abovestated legal position, the appeal is allowed.
The judgment and decree passed by the learned trial Court
affirmed by the learned Appellate Court is set aside. The decree
of partition as claimed by the plaintiff in the suit is allowed and it
is held that the plaintiff and defendants are entitled to get half
share of the suit property as described in Schedule-A of the
plaint after adjusting the 5 acres of land, which the appellant has
already received. Thus, now the plaintiff is entitled to get more
11.59 acres land in partition of half of the share of the suit
property.
36. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
Arun
