Jharkhand High Court
Rahat Sayeed Khan vs Prakash I. Thakkar on 8 May, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:14099
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 75 of 2023
1. Rahat Sayeed Khan, aged about 56 years, son of Sahid Syed Khan,
resident of Road No. 4, Azadnagar, P.O. and P.S.-Mango,
Jamshedpur, District-Singhbhum East
2. Sabita Mahato, aged about 49 years, wife of Late Sudhir Mahato,
resident of Holding No. 14, Sahid Nirmal Mahato Road, Uliyan,
P.O. and P.S-Kadma, Jamshedpur, District Singhbhum (East)
... ... Defendants/Appellants
Versus
1. Prakash I. Thakkar
2. Hemant I. Thakkar
3. Paresh I. Thakkar
4. Piyush I. Thakkar
Nos. 1 to 4 sons of Late Indulal G. Thakkar, all are residents of
Thakkar Building, Near Agrico Dispensary, P.O. and P.S.- Sidgora,
Town Jamshedpur, District-Singhbhum (East)
... ... ... Plaintiffs/Respondents
5. Joyesh M. Thakkar
No. 5 is son of Late Manikant G. Thakkar, No. 5 resident of Jogindra
Nivas, Kharkai Link Road, Bistupur, P.O.- Bistupur, P.S.- Bistupur,
Jamshedpur, District-Singhbhum (East)
6. Vinayak M. Thakkar son of late Hemant M. Thakkar, respondent
no. 6 is resident of 27, Rajendra Nagar, Sakchi, P.O. and P.S.-
Sakchi, Jamshedpur, District-Singhbhum (East)
7. Preeti Yagnik, daughter of Late Manikant G. Thakur, wife of C.K.
Yagnik, resident of B-1, Akashganga Apartment, Near Nirmala
School, Nirmala Main Road, P.O. and P.S.- Rajkot, District- Rajkot,
Gujrat
8. Jawed Akhtar, son of Anwar Khan, resident of Holding No. 16, Ittar
line, Azadnagar, P.O. and P.S. Mango, Jamshedpur, District
Singhbhum (East)
9. M/S Mithila Motors Limited,
A company Registered under the Indian Companies Act 1956
having its registered office at B. H. Block II, Diamond Chambers,
4, Chowranghee Lane, P.O. and P.S. Chowranghee Lane, Kolkata,
16, District Kolkata, having its Branch Office at A-3, Phase II,
Adityapur Industrial Area, P.O. and P.S. Adityapur, District-
Seraikella Kharsawan, represented by Dilu B. Parikh, Director
Mithila Motors
... ... Principal Defendants/Respondents
10.Mamta P. Trivedi, daughter of Late Indulal G. Thakkar and wife of
Dr. Pankaj S. Trivedi, resident of Gandhinagar, P.O. and P.S.-
Gandhinagar, District-Ahmedabad, Gujrat
11.Bhairavi S. Trivedi, daughter of Indulal G. Thakkar wife of Suresh
Trivedi, resident of Kalol, P.O. Kalol, P.S. Kalol, Gandhinagar,
District- Ahmedabad, Gujrat
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12.Hemang D. Raval, son of Late Mrs. Rajni Raval and Devas Raval,
resident of Labh Apartment 25/35, Block 102, New Jagrata Road,
Rajkot, P.O. and P.S. Rajkot, District Rajkot, State Gujrat
13.Rima Chirag Pandit, daughter of Late Mrs. Rajni Raval and Devas
Raval, resident of Lakh @ Labh Apartment, 25/35 Block No. 102,
New Jagrata Road, Rajkot, P.O. and P.S. Rajkot, District Rajkot,
State Gujrat
14.Guddi Parikh D/o Harinarayan Parikh, resident of Jugsalai, P.O. and
P.S.- Jugsalai, Jamshedpur, Dist.- Singhbhum (East)
15.Smita H. Thakkar, W/o late Haris I. Thakkar
16.Pinakin H. Thakkar, S/o Late Haris I. Thakkar
17.Rachita H. Thakkar daughter of Late Harris I. Thakkar
No. 15 to 17 R/o Holding No. 113, Janki Apartment, Contractor
Arce I.C. Road, Bistupur, P.O. and P.S. Bistupur, Town
Jamshedpur, Dist. Singhbhum (East)
... ... Proforma Defendants/ Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. Amar Kumar Sinha, Advocate
: Mr. Sandeep Verma, Advocate
: Mr. Vishal Kumar Tiwary, Advocate
: Md. Imran Beg, Advocate
For the Resp. No. 1 to 4 : Mr. Indrajit Sinha, Advocate
: Ms. Puja Agarwal, Advocate
For the Resp. No. 9 : Mr. Amitabh Prasad, Advocate
---
Lastly heard on 25/02/2025
14/08.05.2025
1. This appeal has been filed by defendant nos. 6 and 7 of the suit
against the judgment and decree dated 28.02.2023 (decree signed on
13.03.2023) passed by learned Civil Judge, Senior Division, Chandil in
Title Suit No. 13 of 2014 whereby the suit has been partly decreed and the
registered sale-deed no. 687 dated 06.03.2012 executed by defendant no. 5
(the power of attorney holder of defendant nos. 1 to 4- the legal heirs of late
Manikant G. Thakkar ) in favour of the defendant nos. 6 and 7 has been set-
aside. The other sale deed no. 4324 dated 20.10.2012 executed by the
defendant no.8 in favour of the Defendant no.9 was held to be valid.
2. The appellants were the defendant nos. 6 and 7 in the Title Suit No.
13 of 2014. The present respondent nos. 1 to 4 were the plaintiff nos. 2 to 5
before the learned trial Court. The plaintiff no.1 was the mother of the
plaintiff no. 2 to 5 and her name was deleted on account of her death. The
appellants are only concerned with registered sale-deed no. 687 dated
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06.03.2012 executed by defendant no.5 being the power of attorney holder
of defendant no. 1 to 4 in favour of the defendant nos. 6 and 7 (the
appellants).
3. Case of the plaintiffs
I. The plaintiffs filed the suit for declaration of their right, title and
interest over half portion of the schedule-A land and they also prayed
for confirmation of their possession over the suit land. The plaintiffs
had also prayed for declaration of sale-deed no. 687 dated 06.03.2012
and sale deed no. 4324 dated 20.10.2012 as null and void.
II. The suit land was measuring 17.94 acres situated at mouza
Kandarbera, P.S. Chandil and described in schedule-A to the plaint.
The plaintiffs and the defendant nos. 1 to 4 and 8 and also the
proforma defendant nos. 10, 11 and 12 are Hindus and in matters of
inheritance and succession, they are guided by Hindu Succession
Act, 1956 having common ancestor namely, Govindji B. Thakkar
who died leaving behind his four sons Manikant G. Thakkar,
Mukundlal G. Thakkar, Indulal G. Thakkar and Chandrakant G.
Thakkar. Said Govindji B. Thakkar acquired several immovable
properties in the town of Jamshedpur and after his death his four sons
jointly inherited the same.
III. On 26.05.1959, Manikant G. Thakkar, being karta of the joint Hindu
family, purchased the Schedule-A land along with the defendant no.
8 namely, Hari Narayan Parikh in equal share by a registered sale-
deed from its previous owner which was also recorded in the name
of Manikant G. Thakkar and Hari Narayan Parikh in the last
Revisional Survey.
IV. Manikant G. Thakkar and his other three brothers jointly possessed
the half portion of the schedule-A land by mutual arrangement with
Hari Narayan Parikh although there was no partition by metes and
bounds.
V. After death of Manikant G. Thakkar in the year 1972, there was
family partition of joint family properties among the 3 brothers of
Manikant G. Thakkar and the widow, sons and daughters of
Manikant G. Thakkar. In the said family partition, half portion of the
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schedule-A land was allotted in the share of the father of plaintiff
nos. 2 to 5 namely, Indulal G. Thakkar and after his death, the
plaintiffs came in possession of the same.
VI. Earlier, a title suit being Title Suit No. 42 of 1982 was filed by the
defendant no. 8 - Hari Narayan Parikh before the Court of Sub-
ordinate Judge claiming the entire schedule-A land. It was his case
in the said title suit that the co-purchaser Manikant G. Thakkar did
not pay the consideration amount of the land and therefore, he had
relinquished his share in favour of the defendant no. 8. The said suit
was instituted against the heirs of Manikant G. Thakkar and the same
was decreed vide judgment dated 30.05.1992 in favour of the
plaintiff of the said title suit i.e. Hari Narayan Parikh. The decree
passed in the said title suit was challenged by the defendant nos. 1 to
4 of the said suit in Title Appeal No. 10 of 1992 before the District
Judge, West Singhbhum, Chaibasa which was later on transferred to
the Court of the 1st Additional District Judge, Seraikella.
VII. During the pendency of Title Appeal No. 10 of 1992, the present
plaintiffs were added as co-appellants.
VIII. During trial of Title Suit No. 42 of 1982, the widow of Manikant G.
Thakkar had stated in her evidence that half portion of the schedule-
A land was allotted in the share of Indulal G. Thakkar in the family
partition which took place in the year 1973. Further, in the said title
suit, it was stated by defendant no. 1 of the present case that in the
family partition of the year 1973, half portion of the schedule-A land
was allotted in the share of Indulal G. Thakkar.
IX. The said title appeal being Title Appeal No. 10 of 1992, wherein the
present plaintiffs were also the co-appellants, was decided vide
judgment dated 30th September 1999 and the judgment passed by the
learned trial court in Title Suit No. 42 of 1982 was set-aside. The
learned appellate Court declared that the present plaintiffs have got
right, title and interest over half of the scheduled land.
X. The defendant no. 8 namely Hari Narayan Parikh filed appeal against
the said judgement passed in Title Appeal No. 10 of 1992 which was
registered as Second Appeal No. 101 of 1999(R). However, the said
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second appeal was dismissed and the judgment and decree passed by
the learned 1st appellate Court was confirmed.
XI. It is the case of the plaintiffs in this case that the plaintiffs had been
coming in possession of the half portion of schedule-A land, but in
the year 2011, the defendant nos. 1 and 2 filed a petition before the
Circle Officer, Chandil for demarcation of half portion of the
schedule-A land. The plaintiffs objected to the same but the Circle
Officer, Chandil passed the order of demarcation in favour of the
defendant nos. 1 and 2. The plaintiffs challenged the order passed by
the Circle Officer before this Court in C.W.J.C. No. 1354 of 2012
which was dismissed and the LPA against the order passed in the writ
petition was also dismissed with observations vide order dated
28.08.2012.
XII. Further, in the month of March 2012, it came to the knowledge of the
plaintiffs that defendant nos. 6 and 7 had filed application for
mutation in respect of the land mentioned in schedule-B to the plaint
before the Circle Officer, Chandil on the strength of sale-deed no.
687 dated 06.03.2012 which was said to have been executed by
defendant no. 5 as attorney of the defendant nos. 1 to 4 in favour of
the defendant no. 6 and 7 (the present appellants) . The plaintiffs
objected to the said application for mutation and also claimed
mutation in their name, but the Circle Officer, Chandil did not
consider their prayer and allowed mutation in favour of defendant
nos. 6 and 7 (the present appellants).
XIII. Against the aforesaid order passed in favour of defendant nos. 6 and
7 by the Circle Officer, Chandil, the plaintiffs filed appeal being
Mutation Appeal No. 09 of 2012-13 before the Land Reforms Deputy
Collector, Chandil. Vide order dated 16.05.2013, the Land Reforms
Deputy Collector remanded the matter back to the Circle Officer,
Chandil for passing fresh order in the light of the documents of the
plaintiffs. Thereafter, a fresh order was passed by the Circle Officer,
Chandil and the mutation was again allowed in favour of defendant
nos. 6 and 7. The plaintiffs have again preferred appeal against the
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order of the Circle Officer, Chandil which, as per the plaint, is still
pending.
XIV. With respect to remaining half portion of schedule A property, it is
the case of the plaintiffs that in the year 2013, it came to the
knowledge of the plaintiffs that the defendant no. 8 also sold 8.97
acres of land out of the schedule-A land in favour of the defendant
no. 9 by executing registered sale deed no. 4324 on 20.10.2012. It is
the case of the plaintiffs that the defendant no. 8, without partition of
the schedule-A land by metes and bounds, could not have transferred
any portion of the suit land to a stranger and as such, the sale deed
no. 4324 dated 20.12.2012 registered at Sub-Registry Office was null
and void and did not confer any right in favour of the defendant no.
9.
XV. There was a title suit being Title Suit No. 8 of 1998 before the Civil
Court, Jamshedpur with regard to the properties of Govindjee B.
Thakkar and Manikant G. Thakkar among the heirs and in that suit
also, the other co-sharers admitted that after the death of Manikant
G. Thakkar there was family partition in the year 1973.
XVI. It is the case of the plaintiffs of this case that defendant nos. 1 to 4
were well-aware of the fact that the half portion of the schedule-A
land belonged to the plaintiffs which they admitted before the court
of law and in spite of that, their attempts to deprive the plaintiffs by
transferring half of the schedule land from their legitimate property
cast a cloud over the right, title and interest of the plaintiffs over half
portion of the schedule -A land, which led to filing of the present suit
by the plaintiffs.
XVII. As per the plaintiffs, the cause of action arose since November, 2011
when the defendant nos. 1 and 2 filed petition for demarcation of the
suit land before the Circle Officer, Chandil and again on 23.11.2011
when the defendant nos. 1 to 4 executed a power of attorney in favour
of defendant no. 5. The cause of action also arose on 06.03.2012
when the defendant no. 5, being power of attorney holder, executed
registered sale-deed no. 687 dated 06.03.2012 in favour of the
defendant nos. 6 and 7. Further, the cause of action also arose on
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20.10.2012 when the defendant no. 8 executed sale-deed no. 4324 in
favour of defendant no. 9.
Case of the defendant nos. 1, 2, 5, 6 and 7 and defendant nos. 3 and 4
4. The defendant nos. 1, 2, 5, 6 and 7 filed common written statement
on 29.09.2014. The defendant nos. 3 and 4 filed their separate common
written statement and in both sets of written statements, common pleas were
taken. Case of the defendant nos. 1 to 7 before the learned trial Court was
as under:
A. The plaintiffs had no right or cause of action to sue the defendants.
The suit was not maintainable for the reliefs as claimed by the
plaintiffs. It was also asserted that the suit was barred by limitation,
and also barred under principle of estoppel, waiver and acquiescence.
It was asserted that the suit was not properly affidavited and verified
as required under Order XIX Rule 3 of Code of Civil Procedure. The
suit was bad for non-joinder and misjoinder of necessary parties. The
suit was not properly valued as required under law and the
description of the suit land was vague and incorrect. The suit was hit
under the provisions of civil Procedure Code, Specific Relief Act and
other Acts.
B. It was stated, inter alia, that the entire land of 17.94 acres could not
be subject matter of the suit. It was further case of the defendants that
it was wrong to say that all brothers, i.e. all four sons of Late
Govindjee B. Thakkar were living jointly where the eldest brother
Manikant G. Thakkar, being the member of the joint Hindu Family,
was the "Karta" of joint Hindu family.
C. The land jointly purchased by Manikant G. Thakkar and Hari
Narayan Parikh was not purchased from the joint family fund of
Manikant G. Thakkar. It was also denied that Manikant G. Thakkar
and his 3 brothers jointly possessed the half portion of the schedule-
A land of the plaint by mutual arrangement with Hari Narayan Parikh
- defendant no. 8.
D. Manikant G. Thakkar along with Hari Narayan Parikh [defendant no.
8] during his lifetime purchased the schedule-A land of the plaint in
their joint name by means of a registered sale deed no. 1777 dated
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26.09.1959 on valuable consideration of Rs. 10,000/-from its lawful
owner and since after purchase of the schedule-A land of the plaint,
the deceased Manikant G. Thakkar during his lifetime along with the
defendant no. 8 was in peaceful joint possession of the schedule - A
land of the plaint whose name has also been recorded jointly in
record-of-rights. It was further asserted that after death of Manikant
G. Thakkar, his widow Savita M. Thakkar (since deceased), two sons
Jayesh M. Thakkar (defendant no. 1) and Hemant M. Thakkar
(defendant no.2), and three daughters namely Priti M. Thakkar
(defendant no.4), Rajni M. Thakkar (defendant no. 3) and Usa M.
Thakkar being the heirs and successors of deceased Manikant G.
Thakkar came jointly in possession of half share of the schedule-A
land and since then, they had been in joint peaceful possession over
their half undivided portion and share over the schedule-A land along
with said Hari Narayan Parikh.
E. It was further case of the defendants that the aforesaid legal heirs and
successors of Manikant G. Thakkar, being in need of money, jointly
sold their half portion and share of the schedule-A land to defendant
nos. 6 and 7 vide sale deed no. 687 dated 06.03.2012 through their
power of attorney holder defendant no.5. Since then, the defendant
nos. 6 and 7 were in peaceful possession over their half portion of the
schedule-A land and they also got the land mutated in their name and
were paying rent to the Government of Jharkhand as well as doing
their business over the said land.
F. The further case of these defendants was that there was no any Family
Partition with respect to the land of the said Mauza- Kanderbera nor
the half portion of the schedule-A land was ever allotted and given
in the share of father of the plaintiff nos. 2 to 5 (respondent nos. 1 to
4 herein) nor did he possess the said land till his death nor the
plaintiffs came in possession of the land at any point of time after the
death of Indulal G. Thakkar.
G. It was further case of the defendants that after death of Manikant G.
Thakkar, the widow of Manikant G. Thakkar namely Smt. Sabita M.
Thakkar on having trust and faith on plaintiff no. 2 namely, Prakash
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I. Thakkar contested the Title Suit No. 42 of 1982 against the
defendant no. 8 and on his advice, adduced evidence along with her
son in the said title suit to save the half portion of their schedule-A
land from the hand of the defendant no. 8 who brought the said Title
Suit No. 42 of 1982. It was stated by the defendants that there was
no such alleged partition with respect to the said half portion of the
scheduled land nor the half portion of the scheduled land was ever
allotted and given by the heirs and successors of the deceased
Manikant G. Thakkar to Indulal G. Thakkar nor the possession of the
half portion of the schedule-A land was ever given to the said Indulal
G. Thakkar nor the plaintiffs ever came in possession over the half
portion of the schedule-A land at any point of time.
H. The vendors of the defendant nos. 6 and 7 were in peaceful,
continuous and regular possession over their half portion of the
schedule-A land for the last more than 30 years, who thereafter
transferred their half portion of the schedule-A land on valuable
consideration in favour of the defendant nos. 6 and 7 and since then,
the defendant nos. 6 and 7 had been in continuous physical
possession over the land in question for more than 30 years.
I. It was further asserted by these defendants that the plaintiffs neither
were in possession of the half portion of the Schedule-A land nor
they came in possession of the said half portion of the Schedule-A
land at any point of time, and when the plaintiffs failed to established
their possession and rights over the said half portion of the Schedule-
A land in Demarcation Case no.43/2011-12 before the Circle Officer,
Chandil on petition filed by the defendant nos.1 and 2, the Circle
Officer, Chandil passed order for demarcation of the land and
deputed Anchal Amin for the Demarcation of the Schedule-A land
and its partition in two equal shares. When the Anchal Amin visited
the spot of the Schedule-A land for its demarcation, neither the
Plaintiffs nor their any person or party came forward for objecting
the demarcation process at the spot of the Schedule-A land and
therefore, the Anchal Amin after completing the demarcation of the
Schedule-A land submitted his report.
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J. After demarcation of the Schedule-A land, the eastern half portion
was kept by defendant No.8 Hari Narayan Parikh and the Western
half portion was allotted and given in the share and portion of the
heirs of the deceased Manikant G. Thakkar, the defendant No.1 to 4
who thereafter negotiated for the sale of their western half portion of
the Schedule-A land with defendant Nos.6 & 7 and on receipt of its
full and final consideration, they transferred their share
and portion of western half of the schedule-
A land in favour of the defendant nos. 6 and 7 through their lawful
Attorney - the defendant no.5 and put them in possession who have
been in peaceful joint possession and by mutating their said land in
their joint name paying the rent to Govt. of Jharkhand through C. O.,
Chandil and also doing their business over their portion of land by
taking Electricity Line from the Jharkhand State Electricity Board,
Chandil.
K. It was further case of these defendants that it was wrong to say that
the plaintiffs were not aware about the transfer of the half portion of
the schedule-A land by defendant No.1 to 4 to defendant no. 6 & 7,
but only to harass the defendants for their wrongful gain, the
plaintiffs without having any right, title, interest and possession over
the said half portion of the schedule-A land had objected the
Mutation Application of the defendant no.6 & 7 and without any
right, title and interest over the said half portion of the schedule-A
land claimed the Mutation of the said land in their name after passing
of more than 12 years.
L. The plaintiffs preferred Appeal No.9/2012-13 against the order of the
C.O., Chandil in Mutation Case no. 2446/2011-12 and the learned
Land Reforms Deputy Collector remanded back the Mutation case to
C.O., Chandil to pass a fresh order. On receipt of the record and order
of L.R. D. C., Chandil, the circle officer re-heard the matter afresh,
but the plaintiffs again failed to establish their right, title, interest and
even possession over the said half portion of the Schedule-A land and
the Circle Officer, Chandil rightly allowed the Mutation in favour of
the defendant nos. 6 and 7 afresh.
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M. It was further asserted that the plaintiffs had no rights, title, interest
or even possession over the half portion of the schedule-A land at
any point of time and the defendant no. l to 4 who being the heirs of
the deceased Manikant G. Thakkar acquired and possessed the half
portion of the Schedule-A land of their deceased father Manikant G.
Thakkar and who being lawful owner having all rights, title, interest
and possession over the half portion of Schedule-A land rightly
transferred their half portion and share of schedule-A land in favour
of the defendant nos. 6 & 7 through their lawful Attorney defendant
No.5 and the claim of the plaintiffs were totally false, incorrect and
wrong.
N. It was also the case of these defendants that no cause of action arose
against the defendants either on November 2011 or 23.11.2011 or on
06.03.2012, or on any date or dates as has been alleged by the
plaintiffs in para 28 of the plaint and the plaintiffs for their wrongful
gain brough the suit after passing more than 12 years on the basis of
some false and concocted stories.
O. It was accordingly submitted that the plaintiffs' claim was false,
fabricated and wrong and the plaintiffs had got no merit and hence
the suit was liable for dismissal with exemplary cost.
Case of the defendant nos. 8 and 9
5. The written statement on behalf of the defendant no. 9 was filed by
one of its employees namely, Shivdut Sharma. Further, a separate written
statement was filed by defendant no. 8 namely, Hari Narayan Parikh.
However, in both the written statements identical pleas were taken and
following stand was taken by both the defendants in their written statement:
I. The suit filed by the plaintiffs was not maintainable and there was no
cause of action or right to bring the suit against the defendants. The
suit was barred by limitation, estoppel, waiver and acquiescence.
The suit was barred under the provisions of Specific Relief Act,
Hindu Law and Hindu Succession Act. The suit was stated to be
barred under the provisions of Transfer of Property Act and Civil
Procedure Code. The suit was bad for non-joinder of necessary
parties and mis-joinder of parties. The defendant nos. 10, 11 and 12
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were wrongly made proforma respondents and as per the defendant
nos.8 and 9, they should have joined as plaintiffs and in absence of
them as party plaintiffs to the suit, the suit could not have proceeded.
It was also asserted that other descendants of late Govindjee B.
Thakkar were also necessary parties to the suit and in their absence
also, the suit could not have proceeded. The plaintiffs, in order to
avoid to make them parties, did not disclose the genealogy of late
Govindjee B. Thakkar.
II. The plaintiffs' claim of confirmation of possession of half portion of
schedule-A land was vague and unless plaintiffs claimed
confirmation of possession and/or recovery of possession of the
specified half portion of schedule -A land, the suit was liable to be
dismissed on that score.
III. The defendant nos.8 and 9 denied all the allegations made in the
plaint save and except those which were specifically admitted in
their written statement.
IV. The description of the suit land as given in the schedule 'A', 'B' and
'C' of the plaint was incorrect.
In schedule 'B' land, the defendant no.6 and 7 had constructed a big
hall/Shed which was very much in existence. Similarly in the
schedule 'C' there were 10 asbestos roofed rooms in existence. The
plaintiffs purposely avoided to mention existence of structures.
V. The parties mentioned in para 2 of the plaint are guided by
Mitakshara School of Hindu Law as such all the descendants of Late
Govind G. Thakkar as well as Indulal G. Thakkar were necessary
parties to the suit.
VI. As per their information, there was no joint family nor there was any
joint family fund. It was denied that Manikant G. Thakkar was the
Karta of the joint family and that out of joint family fund he
purchased schedule "A' land alongwith defendant no.8. However, it
was asserted that Manikant G. Thakkar purchased schedule 'A' land
alongwith defendant no.8 in equal share from the previous owner.
VII. It was denied that Manikant G. Thakkar and his other three brothers
jointly possessed half portion of schedule 'A' land. It was the case of
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the defendant nos.8 and 9 that only Manikant G. Thakkar was in
possession of the schedule 'A' land and defendant no.8 was in
possession of half portion of schedule 'A' land as per arrangement
arrived at by them, during the life time of Manikant G. Thakkar.
VIII. The schedule 'A' land was the joint property of Manikant G. Thakkar
and defendant no.8. After purchase of the suit property, an
arrangement was arrived at mutually between Manikant G. Thakkar
and the defendant no.8 and in the said arrangement Manikant G.
Thakkar was allotted a definite half portion of the property of which
he came in exclusive possession after the said arrangement and
continued to possess the same till his death. Similarly, the defendant
no.8 was allotted a definite half portion of the schedule 'A' land of
which he came in possession and continued to remain in exclusive
possession, till he transferred the same in favour of the defendant no.
9. It was the case of the defendant nos.8 and 9 that the above
arrangement amounted to complete partition of schedule 'A' land
between the said two parties.
IX. The defendant no.8 constructed several rooms with asbestos roof in
the portion allotted to his share which was given to Gramin Bikash
Kendra to run their activities. A few years back only Gramin Bikash
Kendra vacated the rooms, which in course of time became very
much damaged.
X. The aforesaid half portion of the schedule" A' land allotted to the
share of Manikant G. Thakkar in the aforesaid arrangement arrived
at between Manikant G. Thakkar and defendant no.8 was in
possession of Manikant G. Thakkar till his death and after the death
of Manikant G. Thakkar, the same came in possession of his legal
heirs and successors.
XI. Indulal G. Thakkar never came in possession of the said half share of
schedule 'A' land or any portion of schedule 'A' land nor after his
death his legal heirs including the plaintiffs came in possession of
the said portion of schedule 'A' land nor they were in possession of
the same.
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XII. Manikant G. Thakkar had dues of huge amount payable to the income
tax recovery tribunal in which the entire schedule 'A' property was
attached and in order to avoid attachment and auction sale of the said
property for recovery of the dues by taxation department, the heirs
of Manikant G. Thakkar in collusion and connivance with Indulal G.
Thakkar came forward with the false story of partition and allotment
of half share of schedule 'A' property to Indulal G. Thakkar making
out a false case of partition in the year 1973, in fact there was no
partition in the year 1973 nor the half portion of schedule 'A' land
was allotted to Indulal G. Thakkar.
XIII. At the time of alleged partition said to have been made in the year
1973, the heirs of Manikant G. Thakkar were in exclusive possession
of a definite half portion of schedule 'A' property which was in
possession of Manikant G. Thakkar having been allotted to his share
in the arrangement arrived at between Manikant G. Thakkar and
defendant no.8.
XIV. The defendant nos. 1 to 4 and their mother were in possession of the
schedule 'B' land which was in possession of Manikant G. Thakkar.
XV. In order to avoid confusion regarding identity of the portion in
possession of the respective parties i.e, heirs of Manikant G. Thakkar
and the defendant no.8, the defendant nos. 1 and 2 filed a petition
before the Circle Officer, Chandil for demarcation of the respective
portion and there was no merit in the objection raised by the
plaintiffs against demarcation before the Circle Officer, Chandil,
therefore, the Circle Officer rightly rejected the objection of the
plaintiffs objecting application for demarcation filed by the
defendant nos. 1 & 2. The demarcation was made according to the
separate possession of the respective parties i.e., heirs of Manikant
G. Thakkar and defendant no.8.
XVI. The plaintiffs had full knowledge that the defendant no.6 and 7 had
purchased the portion of the land, which was in share and in
possession of the defendant nos. 1 to 4 through Manikant G.
Thakkar. The plaintiffs also had full knowledge that immediately
after purchase on 06.03.2012 the defendant no.6 and 7 came in
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peaceful physical possession of the same without any obstruction
and objection by the plaintiffs or any person. The defendant no.6 and
7 after coming in possession of the schedule 'B' land on the basis of
said purchase made by them filed an application for mutation of their
names in the office of Circle Officer, Chandil with respect to their
said purchased land. After obtaining report from the Anchal Amin,
the Circle Officer, Chandil passed an order on 26.03.2012 for
mutation of schedule 'B' land in the names of defendant no. 6 and 7.
By passing a reasoned order the Circle Officer, Chandil rejected the
objection raised by the plaintiffs for mutation.
XVII. Mutation Appeal No. 9 of 2012-13 was wrongly filed by the plaintiffs
knowing fully well that they were not in possession of the land in
question and their objection to mutation was rightly rejected by the
Circle Officer.
XVIII. The order passed by learned L.R.D.C, Chandil in Mutation Appeal
No. 09 of 2012-13 remanding the case for fresh decision was not in
accordance with law, principle and guideline for mutation.
XIX. After remand the Circle Officer after considering the relevant
materials and also considering the observation of the appellate
authority, allowed the mutation in favour of the defendant nos. 6 and
7. It was denied by defendant nos.8 and 9 that the Circle Officer had
completely overlooked the direction of the appellate authority i.e.
Land Reforms Deputy Collector.
XX. The defendant no.8 was in exclusive separate possession of 8.97
acres of land since the lifetime of Manikant G. Thakkar which was
clearly demarcated in aforesaid Demarcation Case and was sold to
the defendant no.9 by registered sale deed no.4324 dated 20.10.2012
and possession of the same was delivered to the defendant no.9.
XXI. The defendant no.9, on coming in possession of the said land by
virtue of aforesaid purchase, filed an application for mutation of the
said land in its name vide mutation case no.407 of 2012-13. The
Circle Officer, Chandil allowed the application of mutation of
defendant no.9 with respect to the schedule 'C' land. The defendant
no.9 has been paying rent in its name since order of mutation. The
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plaintiffs did not raise any objection at any stage of mutation. The
defendant no. 9 fenced the land partly by brick wall partly by
concrete pillars and partly by wire and also reconstructed about 10
rooms with asbestos roof.
XXII. It has been incorrectly alleged that defendant no.8 without partition
of schedule A' land by metes and bounds with the plaintiffs could
not transfer any portion of the suit land to any stranger and the sale
deed no.4324 dated 20.10.2012 was null and void and that did not
confer any right in favour of the defendant no.9. The plaintiffs had
no right or possession over the schedule 'A' land nor it was required
by defendant nos. 8 to partition the schedule 'B' land with the
plaintiffs. It was crystal clear that the land was divided / partitioned
to two portions during the lifetime of Manikant G. Thakkar.
XXIII. The plaintiffs did not have any legal right to challenge the validity of
said sale deed, since the defendant no. 8 had been in possession of
said 8.97 acres of land having legal right of the same from the life
time of Manikant G. Thakkar.
XXIV. It was denied that the defendant no.8 could not have sold the said
land to the defendant no.9. The defendant no. 8 had right, title,
interest and possession over the schedule 'C' land and he had every
right to transfer the same to the defendant no. 9.
XXV. The defendant nos.8 and 9 were not aware of the Title Suit No. 8 of
1998 and admission, if any, as alleged in the said title suit was not
binding on the defendant no.8 or the defendant no. 9.
XXVI. It was denied that defendant no. 1 to 4 attempted to deprive the
plaintiffs by transferring half of the schedule 'A' land and the same
had cast a cloud over the title of plaintiffs over the schedule 'A' land.
The defendant nos. 1 to 4 were in possession of schedule 'B' land,
which was duly demarcated by circle officer and had been mutated
in their names.
XXVII. Defendant no.10 had no manner of right, title or interest over any
portion of schedule 'A' land therefore the allegation that the
defendant no.10 has separated himself from the plaintiffs in the year
1992 by taking his share in the paternal property as such have got no
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right over the suit land was incorrect. The defendant no.10 had no
right over the suit land at any point of time.
XXVIII. The T.(P).S. No. 69 of 2012 was collusive and was filed with some
oblique motive for some wrongful gain. The same was not binding
on defendant no.8 or the defendant no.9.
XXIX. The proforma defendant nos.11 and 12 did not have any manner of
right, title, interest or possession over any portion of schedule 'A'
land. They were wrongly made parties to the suit.
XXX. It was further asserted on behalf of defendant nos.8 and 9 that the
plaintiffs were not entitled for a decree declaring their right, title,
interest over half portion of schedule 'A' land and confirmation of
their possession over the same. The said reliefs sought by the
plaintiffs were vague and indefinite. The plaintiffs were also not
entitled for a declaration that the sale deed no.687 dated 06.03.2012
executed by defendant no.5 in favour of defendant nos. 6 and 7 is
null and void and did not confer any title in favour of defendant no.6
and 7 and for declaration that the sale deed no. 4324 dated
20.10.2012 executed by defendant no.8 in favour of defendant no.9
is null and void and did not confer any right in favour of the
defendant no.9.
XXXI. The plaintiffs were also not entitled to a decree declaring that order
passed by concerned Circle Officer in mutation case no. 2446 of
2011-12 in favour of defendant no. 6 and 7 was illegal. The plaintiffs
were also not entitled for a decree for injunction restraining the
defendant no.9 and defendant nos.6 and 7 from coming over any
portion of schedule 'A' land.
XXXII. The defendant no.8 was in possession of the schedule 'C' land as
absolute owner thereof. The defendant no.9 purchased schedule `C`
land from defendant no.8 on payment of Rs. 3,05,00,000/- and came
in possession of the same and got its name mutated in the office of
Circle Officer, Chandil. The defendant no.9 has been in exclusive
possession of schedule 'C' land on payment of rent to the State
Government.
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XXXIII. The plaintiffs were not entitled to the reliefs claimed in the suit and
the suit was liable to be dismissed with cost.
6. Case of Proforma Defendant no. 10 ( full brother of plaintiff nos.
2 to 5)
A. Manikant G. Thakkar and his three brothers jointly possessed half
portion of the lands purchased by both Manikant G. Thakkar and
defendant no. 8 on the basis of mutual arrangement, although there
was no partition by metes and bounds amongst the heirs of Manikant
G. Thakkar and his three brothers.
B. After death of Manikant G. Thakkar, there was a family partition of
the joint family properties amongst the three brothers of Manikant G.
Thakkar, and wife, sons and daughters of the deceased Manikant G.
Thakkar on 16.02.1973 which was reduced into writing and signed
by them. In the aforesaid family partition, half portion of the schedule
-A land was allotted in the share of Indulal G. Thakkar, the father of
defendant no. 10. However, the plaintiffs suppressed the fact that
after the death of Manikant G. Thakkar, the lands had been rented
out to Telco Gram Vikas Kendra by the defendant no. 8.
Subsequently, Title Suit No. 42 of 1982 filed by defendant no. 8
against the heirs of Manikant G. Thakkar for declaration of right,
title, interest and possession over the entire schedule -A land was
decided in favour of the defendant no. 8. However, the said order
passed in favour of defendant no.8 was set-aside in appeal.
C. The defendant nos. 1 and 2 being the sons of late Manikant G.
Thakkar, had got no right to submit application for demarcation in
view of the fact that the lands in question were allotted to Indulal G.
Thakkar in the family partition. The Circle Officer passed an
erroneous order for demarcation of the land on the prayer of
defendant nos. 1 and 2.
D. The defendant no. 10 had filed Title (Partition) Suit No. 69 of 2012
against the plaintiff - Jasamati I. Thaker and others and in the said
suit the plaintiff claimed 1/8th share in the suit properties including
the present suit property at village - Kanderbera. The plaintiffs of the
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present suit also appeared in that suit and written statement was also
filed by them.
E. It was also stated by the defendant no. 10 that he was also entitled to
his due share in the schedule-A property along with the plaintiffs.
F. It was denied that the defendant no. 10 had completely separated
himself from the family of the plaintiffs in the year 1992 by taking
his entire share in the paternal property. It was asserted that aforesaid
statement made in the plaint by the plaintiffs was baseless and such
statement was made only to deprive the defendant no. 10 of his due
share in the suit property and also to take defence in the Title (P) Suit
filed by defendant no. 10 at Jamshedpur Court. The defendant no.10
never got his due share in the paternal property earlier.
G. Proforma Defendant Nos. 11 and 12 who are daughters of late Indulal
G. Thakkar were also entitled to their due shares in the paternal
property in view of the provisions of Hindu Succession Act, 1956
which was amended in the year 2005.
H. It was also the case of the defendant no. 10 that he was also entitled
to the relief as that of plaintiffs of the present suit keeping in view
the substantial interest in the suit property.
7. Case of Proforma Defendant nos. 11 and 12
Proforma defendant nos. 11 and 12 filed their written statement
before the learned trial Court and almost all the pleas which were taken by
the proforma defendant no. 10 in his written statement were also taken by
these defendants and it was their case that they were also entitled to their
due share in the schedule- A property along with the plaintiffs of the present
case.
8. The learned trial Court framed following issues for consideration:
1. Whether the suit of the plaintiff is maintainable in its
present form or not?
2. Whether the plaintiffs have a proper cause of action to file
the suit or not?
3. Whether the plaintiff's suit is appropriate for non-joinder
or mis-joinder of the parties or not?
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4. Whether the plaintiffs are entitled to the relief that the sale
deed No. 687 dated 06/03/12 executed by defendant No. 5 in
favour of defendant No. 6 and 7 be declared null and void
or not?
5. Whether the plaintiffs are entitled to get the sale deed No.
4324 executed by defendant No. 8 in favour of defendant
No. 9 declared null and void or not and also whether the
plaintiffs are entitled to get a permanent injunction against
the defendants or not? Whether the order passed by the
Circle Officer, Chandil in the Mutation Case No.
2446/11/12 should be declared null and void?
6. Whether the plaintiffs are entitled to get litigation expenses
in this suit?
7. Whether the plaintiffs are entitled to get any other relief
from the court or not?
8. Whether the plaintiffs have right, possession and title over
half of the disputed property and whether they are entitled
to get possession on half of the disputed property or not?
9. Whether this suit is barred by the rules of res judicata or
not?
10. Whether this suit is barred by the law of limitation or not?
11. Whether this suit is barred by the rules of estoppel, waiver
acquiescence or not?
9. Before the learned trial Court, the plaintiffs adduced altogether 4
witnesses; P.W. 1: Raja Manjhi, P.W.2: Gayaram Singh, P.W.3: Piyush I.
Thakkar and P.W.4: Hemant I. Thakkar. A number of documentary
evidences were also exhibited before the learned trial Court which are as
under:
"Exhibit-1, Legal Notice dated 23.09.2019
Exhibit-1/A. Rejoinder legal notice
Exhibit-3 & 3/1- Certified photocopies of order passed in Mutation
Case No. 2394 of 2011-12 and order passed in Mutation Case No.
2446 of 2011-12
Exhibit-4, Certified photocopy of report in Mutation Case No.
2446/2011-12
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Exhibit-5, Certified photocopy of Correction Slip of Mutation Case
No. 2446/2011-12
Exhibit-6, Certified photocopy of Order Sheet of Mutation Appeal No.
09/2012-13
Exhibit-7, Certified photocopy of Order Sheet of Demarcation Case
No. 43/2011-12
Exhibit-8, Certified photocopy of Demarcation Case No. 43/2011-12
dated 02/02/2012
Exhibit-9, Certified photocopy of Attendance of M. Thakkar on
02.02.2012 in Demarcation Case No. 43/2011-12.
Exhibit-10, Certified photocopy of report and map dated 15.02.2012
in Demarcation Case No. 43/11-12
Exhibit-11, Application submitted by Hemant M. Thakkar on
20/12/2011 in Demarcation Case No. 43/2011-12.
Exhibit-12, Application submitted on 06.02.2012 in Demarcation
Case No. 43/2011-12.
Exhibit-13, Certified photocopy of order passed in S.A. No.310/99 (R)
Exhibit-14, Certified photocopy of order passed in L.P.A. No.
Exhibit-15, Certified photocopy of deposition of D. W. 9 in T. S. No.
42/82,
Exhibit-15/1, Certified photocopy of deposition of D. W. 12 in T.S.
No. 42/82,
Exhibit-16, Certified photocopy of document related to Family
partition (T. S. No. 42/82)
Exhibit-17, Certified photocopy of Report and map prepared by
Anchal Amin
Exhibit-18, Certified photocopy of Khata No. 102, Mauza
Kandarbeda
Exhibit-19. Compromise application dated 09/03/1999 of T. S. No.
8/1998
Exhibit-20, Certified photocopy of testimony of plaintiff witness no. 1
Exhibit-20/1, Certified photocopy of defendant's testimony in T.S. No.
8/1998
Exhibit-21, Certified photocopy of exhibited sale deed of T.S. No.
Exhibit-22 Certified photocopy of the Judgment and decree of Title
Appeal No. 10/92.
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10. The defendants adduced 4 witnesses in support of their case. D.W. 1:
Deepak Sarkar, D.W. 2: Gulab Chandra Manjhi, D.W. 3 : Rahat Sayed
Khan and D.W. 4: Md. Naushad. Following documentary evidences were
produced from the side of the defendants:
"Exhibit-A. Certified copy of Sale Deed No. 687 dated 15/03/12
Exhibit-B, Certified copy of registered General Power of Attorney
Book-4 dated 23/11/2022
Exhibit-C, Certified copy of Correction Slip of Mutation Case No.
dated 26/07/2012
Exhibit-D, Certified copy of Khata No. 102 of Mauza- Mauza-
Kanderbera
Exhibit-E to E/3, Original copy of Receipt No. 660236 dated
06/04/13"
11. While deciding issue no. 1 with regard to maintainability of the suit,
the learned trial Court recorded that since the main issue was decided in
favour of the plaintiffs and it was also clear from the evidence that the
plaintiffs had fulfilled all the conditions for the maintainability of the suit
the suit was held to be maintainable. Accordingly, issue no. 1 was decided
in favour of the plaintiffs. With regard to issue no. 2 with regard to cause
of action for filing the suit, the learned trial Court observed that since the
main issue was decided in favour of the plaintiffs and the plaintiffs had been
able to prove their case in the court and since their land was mutated
illegally, therefore, the plaintiffs had a proper cause of action to bring the
suit. Therefore, this issue was also decided in favour of the plaintiffs. While
deciding the issue no. 3, the learned trial court recorded that the plaintiffs
had impleaded all the necessary parties in the suit, therefore, this issue was
also decided in favour of the plaintiffs. Since the main issue was decided
against the plaintiffs, therefore the issue no.6 and 7 were also decided in
favour of the plaintiffs. While giving its finding on issue no.10 i.e., whether
the suit was barred by law of limitation, the learned court observed that the
suit was not barred by the law of limitation because as soon as the plaintiffs
came to know about the cause of action, they sought the protection of the
court for their right, title and possession. Accordingly, this issue was also
decided in favour of the plaintiffs. With regard to issue no. 11, the learned
court gave its finding that since no evidence had been brought by the
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plaintiffs or the defendants on this issue and the main issue was decided in
favour of the plaintiffs, therefore, this issue was also decided in favour of
the plaintiffs.
12. While dealing with issue no. 4 i.e. as to whether the plaintiffs were
entitled to the relief that the sale deed No. 687 dated 06.03.2012 executed
by defendant No. 5 in favour of defendant No. 6 and 7 be declared null and
void, the learned trial court made an elaborate discussion and after
considering the materials on record, the learned court held that it was clear
from the evidences on record that the plaintiffs had received the property in
question in the family partition. Therefore, the transfer of the said property
by the defendant no. 1 to 4 to defendant no. 6 and 7 through the power of
attorney holder (defendant no.5) was not valid as the said property had
already been received by the plaintiffs as a part of family partition and
hence, the defendant no. 1 to 4 had no right to transfer the property.
Accordingly, the sale deed No. 687 dated 06.03.2012 was declared as null
and void and this issue was decided in favour of the plaintiffs and against
defendant nos. 5, 6 and 7. With regard to issue no. 8, the learned trial Court
noted that the plaintiffs had received half part of the disputed property in
family partition and so they had right, title, interest and possession over half
of the disputed property and were held entitled to get possession of the
same. Therefore, this point was decided in favour of the plaintiffs.
13. With regard to the issue of res-judicata i.e. issue no. 9, the learned
trial Court held that the suit was not barred by the rules of res judicata
because in the earlier suit, Hari Narayan Parikh had claimed the entire
disputed property, in which this Court did not consider his claim to be
correct and determined only half of his share. The learned trial Court further
noted that the issues which had been directly and clearly decided in the
present suit were completely different from that suit. Therefore, the learned
Court found that this suit was not barred by the rules of res judicata.
Accordingly, this issue was decided in favour of the plaintiffs.
14. With regard to issue no. 5, the learned trial Court recorded that the
defendant no. 8 namely, Hari Narayan Parikh had the right to transfer the
property of his share. Therefore, the learned court found that whatever
transfer was made by defendant no. 8 to the defendant no.9 by way of sale
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deed no. 4324 dated 20.12.2012 was valid. It was held that the plaintiffs
had no right, title, interest and possession with respect to the portion of the
land belonging to Hari Narayan Parikh. Issue no.5 was accordingly decided
in favour of defendant nos. 8 and 9 and against the plaintiffs. There was
another sub-issue in issue no. 5 i.e., whether the order passed by the Circle
Officer, Chandil in the Mutation Case No. 2446/11-12 could be declared
null and void or not? This issue was decided against the plaintiffs and it was
recorded by the learned trial Court that the order related to mutation comes
under the jurisdiction of the Revenue Courts and it is necessary to follow
the prescribed procedure for it. Therefore, the learned Court could not
declare the above mutation order null and void, rather the plaintiffs had the
remedy that they could take appropriate action in the light of the order
passed in the said case by submitting an application in the concerned
Revenue Court under the procedure prescribed under the law.
15. The learned trial Court ultimately noted that in the light of the facts
and circumstances and on the basis of the conclusions arrived after
determining all the issues in the suit, it found that the plaintiffs were entitled
to get a partial decree. Accordingly, the learned trial Court passed the
following order:
(i) The plaintiffs were declared to have the right, title and possession
on half of the suit property which was described in Schedule "A".
(ii) The plaintiffs were declared to be in possession of the aforesaid
portion of the suit property and if not found in possession, they be
given possession as per the legal process.
(iii) Sale deed no. 687 dated 06.03.2012, by which the aforesaid
property was transferred by defendant no.1 to 4 [through the defendant
no. 5] to defendant no. 6 and 7 was declared null and void and it was
also declared that defendant nos. 6 and 7 have no right over the
property claimed by them and whatever rights had been created on the
basis of the Sale deed no. 687 dated 06.03.2012 was declared void.
(iv) The order passed by the Circle Officer in the mutation case no.
2446/2011-12 in favour of defendants nos. 6 and 7 could not be
declared illegal by the court because this matter falls under the
jurisdiction of the Revenue Court and the plaintiffs could take this
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matter before the competent authority in the light of the decision of the
learned trial Court.
(v) An injunction was passed against defendants nos. 6 and 7 that they
should not enter the land described in Schedule-"A".
(vi) Sale deed no. 4324 dated 20.10.2012 vide which the half share of
the suit land was transferred by defendant no. 8 to defendant no. 9 was
declared valid and it was also declared that defendant no. 9 has right,
title and possession over that land.
16. Since the suit was partly decreed in favour of the plaintiffs only
with respect to Sale deed no. 687 dated 06.03.2012 by which the aforesaid
property was transferred by defendant no.1 to 4 [through the defendant
no. 5] to defendant no. 6 and 7, the defendant nos. 6 and 7 are the
appellants before this court.
Arguments on behalf of the Appellants
17. Learned counsel for the appellants has submitted that the core issue
involved in this case is related to issue no. 4 as framed by the learned trial
Court which is as under:
whether the plaintiffs are entitled for a decree declaring
that the registered sale deed no. 687 dated 06.03.2012
executed by defendant no. 5 in favour of defendant nos. 6
and 7 is null and void and did not confer any right in
favour of the defendants?
18. The learned counsel submits that the aforesaid issue has been decided
by the learned trial Court vide paragraph 20 of the impugned judgment. He
further submits that the learned trial Court has considered primarily the
point as to whether the vendor of the property had the right to sell the
property. The court found that Exhibit 20 and 20/1 which were the
deposition in Title Suit No. 42 of 1982 were relevant. A reference was made
to the deposition of Joyesh M. Thakkar in the said case where he had
submitted that the property was purchased from joint family fund by his
father who expired in the year 1972 and in the said suit, he also asserted
that in the year 1973, there was a partition in the family wherein his uncle
Indulal G Thakkar had participated and the property in question fell in the
share of Indulal G Thakkar. A reference was also made to Exhibit- C in
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Title Suit No. 42 of 1982 which has been marked as exhibit-16 in the
present suit. The deposition of the mother of Joyesh M. Thakkar namely
Sabita M. Thakkar in the earlier suit was also exhibited in the present suit
which was marked as exhibit- 20/1 wherein she referred to exhibit-C
(exhibit-16 in the present suit) as the document of partition.
19. The learned counsel for the appellants has also submitted that
primarily on the basis of the deposition in the Title Suit No. 42 of 1982 and
the exhibits thereunder, the learned trial Court held that the property
involved in the aforesaid sale-deed did not fall in the share of the vendors
of the property and consequently held that the vendors had no right to sell
the property and it was held to be null and void.
20. The learned counsel has referred to the plaint where in paragraph 8 it
has been mentioned that after the death of Manikant G. Thakkar, there was
family partition of joint family properties amongst the 3 remaining brothers
of late Manikant G. Thakkar and widow, sons and daughters of late
Manikant G. Thakkar. He submits that this statement was denied by
defendant nos. 1, 2, 5, 6 and 7 in their written statement vide paragraph 22
which is quoted as under:
"22. That the statements made in para 8 and para 9 of the plaint are
totally false, incorrect and wrong and hereby denied by the
answering defendants as because there was no any such Family
Partition with respect to the land of the said Mauza- Kanderbera nor
the half portion of the Schedule-A land ever been allotted and given
in the share of Indulal G. Thakkar nor he possessed the said land till
his death nor the plaintiff came in possession of the land at any point
of time after the death of Indulal G. Thakkar."
21. The learned counsel has thereafter referred to Exhibit-16 which was
exhibit-C in the previous suit [Title Suit No. 42 of 1982] and has submitted
that by no stretch of imagination the said document can be a document of
partition. Admittedly, the same is an un-registered document and on bare
perusal of Exhibit 16, it is apparent that it was not signed by sons and
daughters of Sabita M. Thakkar [wife of Manikant G. Thakkar] and further,
the document was not referring to any previous partition rather it was
referring to certain future adjustments amongst the family members. He has
submitted that Exhibit- 16 being an unregistered document, was
inadmissible in evidence. He has also submitted that Exhibit- 16 has not
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been proved by any of the witnesses, rather a certified copy of the same was
procured from the records of the earlier title suit and was simply marked
exhibit.
22. The learned counsel for the appellants has also submitted that
exhibit-C [ exhibit- 16 in the present suit] was asserted to be the document
of partition and the said document is inadmissible in evidence. He has also
submitted that the plea of partition was raised only to make out a case that
defendant nos. 1 to 4 did not have any right to transfer the property. The
learned counsel submitted that if the partition is not accepted as valid, then
the defendant nos. 1 to 4 would have a share in the joint family and were
entitled to transfer the property to defendant nos. 6 and 7 through their
power of attorney holder i.e. defendant no. 5.
23. The learned counsel has also submitted that otherwise also in the
evidence of Sabita M. Thakkar [ wife of Manikant G. Thakkar] in the
previous suit during her cross-examination she revealed that she had no idea
regarding the partition, she is absolutely illiterate and in the said case she
deposed under the instructions of sons of Indulal G. Thakkar [ brother of
Manikant G. Thakkar] who are the plaintiffs in the present case.
24. Learned counsel for the appellants has relied upon the following
judgments:
(i) AIR 1967 SC 341 (Basant Singh Vs. Janki Singh and
others) (paragraph 5),
(ii) (2010) 4 SCC 491 (Life Insurance Corporation of India
and Another Vs. Ram Pal Singh Bisen) (paragraphs 21, 22, 25,
26 and 31).
Arguments on behalf of the Respondent Nos. 1 to 4
25. The learned counsel appearing on behalf of the respondent nos. 1 to
4 representing the plaintiffs of the case has referred to the judgment passed
in Title Appeal No. 10 of 1992 decided on 30th September 1999 which was
arising out of the judgment and decree passed in Title Suit No. 42 of 1982
whereby the judgment passed by the learned trial Court was reversed. The
judgment dated 30th September 1999 passed in Title Appeal No. 10 of 1992
was marked as Exhibit- 22. The learned counsel has submitted that all the
defendant nos. 1 to 4 were party in the said proceedings. Though the suit
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was initially fought between Hari Narayan Parikh on the one hand and the
family members of Manikant G. Thakkar on the other, but in the said suit,
all the family members had taken a specific stand that the property was
purchased by Manikant G. Thakkar from joint family fund and after his
death in the year 1972, there was a partition and the property involved in
the case to the extent it related to be in the name of Manikant G. Thakkar
was allocated to Indulal G Thakkar. He has referred to the written statement
which was filed in the said case as recorded in the aforesaid appellate
court's judgment at paragraph 4 and has submitted that the finding in that
connection has been recorded in paragraphs 13 to 16 of the judgment.
26. The learned counsel submits that once all the family members of
Manikant G. Thakkar had taken a specific stand that there was a partition
and the property was allocated in the name of Indulal G Thakkar, there was
no occasion for them to deny the factum of partition. He submits that the
allocation of share of the suit property in the name of Indulal G Thakkar
stood concluded and therefore, the defendant nos. 1 to 4 of the present case
had no right, title and interest to transfer the property in favour of defendant
nos. 6 and 7 through defendant no. 5. He submits that the learned trial Court
has rightly held the sale-deed as void ab initio.
27. The learned counsel for the respondent nos. 1 to 4 has also relied
upon the judgment passed in Second Appeal No. 101 of 1999(R) decided
on 14.02.2001 (Exhibit-13) arising out of the aforesaid Title Suit No. 42 of
1982 and has submitted that at the second appellate stage also, it has been
again recorded that admittedly in the year 1972, after the death of Manikant
G. Thakkar, there was partition in the family wherein half share of the suit
property was allocated to Indulal G. Thakkar. It was also recorded at the 2nd
appellate stage that Manikant G. Thakkar had paid the consideration
amount to the tune of Rs. 5,000/- out of his joint family fund. The learned
counsel has submitted that since the defendant nos. 1 to 4 and the plaintiffs
were party in the appeal arising out of earlier title suit, they are bound by
the findings recorded in the said proceedings and if any contrary finding is
recorded by this Court with regard to factum of partition, the same would
amount to passing a contrary decree.
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28. The learned counsel has relied upon the judgment passed by the
Hon'ble Supreme Court reported in (1997) 2 SCC 552 [Gorie Gouri Naidu
(Minor) and Another Vs. Thandrothu Bodemma and Others] to submit
that even if erroneous, an inter party judgment binds the parties. He submits
that accordingly the earlier suit where a specific stand was taken by the
defendant nos. 1 to 4 that there was a previous partition and finding to that
effect recorded therein, the same is binding on the plaintiffs and defendant
nos. 1 to 4 of the present case.
29. Learned counsel for the respondents has also submitted that
accordingly registration or non-registration of the Exhibit-16 which was
Exhibit- C in the previous suit, has no relevance.
Arguments on behalf of the Respondent no. 9
30. The learned counsel appearing on behalf of the respondent no. 9 has
submitted that he is just a formal party in the present case. Essentially the
fight is between defendant nos. 1 to 7 and the plaintiffs.
Rejoinder Arguments on behalf of the Appellants
31. In response, learned counsel for the appellants has referred to the
judgment passed in Title Appeal No. 10 of 1992 and has submitted that no
issue was framed with regard to partition amongst the family of Thakkars
and there was no occasion to frame such an issue as the earlier suit was
essentially filed by Hari Narayan Parikh [defendant no. 8 in this case] who
claimed that the entire property was purchased by paying consideration
exclusively by him and ultimately, the appeal was allowed and decided
against Hari Narayan Parikh and the suit filed by Hari Narayan Parikh was
dismissed.
32. Learned counsel for the appellants also submits that no issue
regarding previous partition was framed either in the earlier suit or in the
present suit.
33. Point for determination
Whether the defendant nos. 1 to 4 [legal heirs and
successors of Manikant G. Thakkar] had any right
to sell the property at schedule B (half share of
schedule A property) to the defendant nos. 6 and 7
vide registered sale deed no. 687 dated 06.03.2012?
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Findings of this Court.
34. The plaintiffs had prayed for the following reliefs: -
(i) for a declaration of right, title, interest of the plaintiffs over
half portion of the schedule 'A' land'.
(ii) for confirmation of possession of the plaintiff over half
portion of schedule 'A' land.
(iii) for a declaration that the sale deed No. 687 dated
06/03/2012 executed by the defendant No. 5 in favour of the
defendants No. 6 and 7 registered at Sub Registry office
Seraikella is null and void, and did not confer any right in
favour of the defendants No. 6 and 7.
(iv) for a declaration that the sale deed. No. 4324 dated
20.10.2012 executed by the defendant No. 8 in favour of the
defendant No. 9 registered at Sub Registry office Seraikella is
null and void and did not confer any right in favour of the
defendant No. 9.
(v) for a declaration that the mutation order passed by the C.O.
Chandil in mutation case No. 2446/2011-12 in favour of the
defendant No. 6 and 7 is illegal and arbitrary.
(vi) for an injunction restraining the defendants No. 6, 7 and 9
not to come over any portion of schedule 'A' land.
(vii) for cost of the suit.
(viii) for any other relief or reliefs to which the plaintiffs are
deemed entitled under the law and equity."
35. The description of the property involved in this case is as under: -
Schedule-'A'
Mouza: Kandarbera, Thana No. 327, Anchal - Chandil
Khata No. 102, Plot No. 559, Area A0.46
Plot No. 560, Area A01.16
Plot No. 565, Area A03.31
Plot No. 563, Area A01.64
Plot No. 558, Area A02.75
Plot No. 581, Area A02.89
Plot No. 586, Area A03.31
Plot No. 587, AreaA01.41
Plot No. 562, Area A01.30
Plot No. 557, Area A00.71
Total 17.94
Schedule-'B' (half share of schedule A- sold by defendant no. 1 to 4 to
defendant no. 6 and 7 through power of attorney holder-defendant no.5-
covered by sale deed No. 687 dated 06/03/2012 )
Mouza: Kandarbera, Thana No. 327, Anchal - Chandil
Khata No. 102, Plot No. 563, Area 1.64
Plot No. 565, Area 3.31
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Plot No. 581, Area 2.89
Plot No. 559, Area 0.20
Plot No. 560, Area 0.73
Plot No. 562, Area 0.20
Total Area 8.97
Schedule-'C'(half share of schedule A- sold by defendant no. 8 to
defendant no.9 covered by sale deed. No. 4324 dated 20.10.2012)
Mouza: Kandarbera, Thana No. 327, Anchal - Chandil
Khata No. 102, Plot No. 557, Area A0.71
Plot No. 556, Area A2.75
Plot No. 586, Area A3.31
Plot No. 587, Area A1.41
Plot No. 559, Area A0.26
Plot No. 560, Area A0.43
Plot No. 562, Area A0.10
Total Area 8.97
36. In this case the dispute is concerning schedule- B property only. So
far as schedule- C property is concerned, the suit has been dismissed and
no appeal has been filed with respect to schedule- C property.
37. The contents of plaint and written statements filed by the respective
parties have already been mentioned above. The details of the exhibits, the
persons who deposed in favour of one or the other party has also been
mentioned above.
38. As per the plaint, the plaintiffs sought declaration of right, title,
interest and possession over half portion of schedule-A property and sought
declaration that sale-deed no. 687 dated 06.03.2012 executed with regard
to schedule-B property by defendant nos. 1 to 4 in favour of defendant nos.
6 and 7 through defendant no. 5 and also the sale-deed no. 4324 dated
20.10.2012 executed with regard to schedule-C property by defendant no.
8 in favour of defendant no. 9 are null and void.
39. It was further case of the plaintiffs that all four sons were living
jointly and held properties jointly being a member of joint Hindu family
and Manikant G. Thakkar being the eldest was the Karta who on 26.05.1959
being Karta of joint Hindu family and out of joint family fund purchased
schedule- A land along with defendant no. 8 in equal share by registered
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sale-deed. Admittedly, Defendant no. 8 is not the family member of
Thakkars.
40. It was the specific case of the plaintiffs that Manikant G. Thakkar
and his 3 brothers jointly possessed half portion of schedule-A land by
mutual arrangement with defendant no. 8 and there has been no partition by
metes and bounds between Manikant G. Thakkar and his brothers on the
one hand and defendant no. 8 on the other. Manikant G. Thakkar died in
the year 1972 living behind original plaintiff no. 1 namely, Sabita M.
Thakkar, two sons and two daughters and after death of Sabita M. Thakkar,
her name was deleted and her children remained as defendant nos. 1 to 4 in
the suit.
41. It was the specific case of the plaintiffs who were legal heirs and
successors of Indulal G. Thakkar that after death of Manikant G. Thakkar,
there was a family partition of joint family properties amongst the
remaining three brothers of Manikant G. Thakkar and the widow, sons and
daughters of Manikant G. Thakkar and in the said family partition the half
portion of schedule-A property was exclusively allotted to the share of
Indulal G. Thakkar who possessed the same till his death and thereafter, the
plaintiffs came in possession of the same. The document in relation to
partition has been exhibited as exhibit-16 which is dated 16.02.1973. On
this score it has been the case of the plaintiffs that defendant no. 1 to 4 had
no right, title and interest to transfer property to the defendant no. 6 and 7
through their power of attorney holder - defendant no.5.
42. The plaint also discloses that defendant no. 8 had filed a Title Suit
No. 42 of 1982 claiming to be the owner of the entire schedule- A property
on the ground that the co-purchaser Manikant G. Thakkar did not pay any
consideration amount and therefore, Manikant G. Thakkar had relinquished
his share in favour of defendant no. 8. The said suit was decreed in favour
of defendant no. 8 vide judgment dated 30.05.1992 against which the
defendant nos. 1 to 4 of the present suit had filed Title Appeal No. 10 of
1992. The plaintiffs of the present case were added as co-appellants in the
said title appeal. It has been further asserted that in the Title Suit No. 42 of
1982, widow of Manikant G. Thakkar deposed that half portion of
schedule-A land was allotted to the share of Indulal G. Thakkar in the
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family partition held in the year 1973. She also gave evidence in the title
suit to this effect and before tax recovery tribunal also similar statement
was given that the property was allotted to the share of Indulal G. Thakkar.
The plaint further reveals that the Title Appeal No. 10 of 1992 was decided
and it was declared that Manikant G. Thakkar had paid his share of
consideration from the joint family fund and accordingly had right, title and
interest over half share of the land and this happened vide judgment dated
30.09.1999.
43. Hari Narayan Parikh, the plaintiff of the earlier suit [ Title Suit No.
42 of 1982] preferred a 2nd appeal before High Court which was numbered
as S.A. No. 101 of 1999(R) but the said second appeal was dismissed.
44. It was the case of the plaintiffs that they came in possession of half
share of the schedule -A land but defendant nos. 1 and 2 took steps for
demarcation of half share of schedule-A land and there were connected
proceedings which became the cause of action. The plaint also discloses
that the defendant nos. 1 to 4 through power of attorney sold the schedule-
B property in the name of defendant nos. 6 and 7 and mutation was also
carried out in favour of defendant nos. 6 and 7 in spite of objection raised
by the plaintiffs.
45. It was stated in the plaint that further, the defendant no. 8 sold 8.97
acres of schedule-A land in favour of defendant no. 9 by executing
registered sale-deed no. 4324 dated 20.10.2012 which is the land described
as schedule- C property.
46. Thus, half share of schedule - A property was sold by defendant nos.
1 to 4 to defendant nos. 6 and 7 and the remaining half share of schedule -
A property was sold by defendant no. 8 in favour of defendant no. 9. The
properties sold are described in schedule-B and C respectively. Mutation
was also done accordingly.
47. The plaintiffs challenged both the sale-deeds on the ground that there
has been no partition by metes and bounds with defendant no. 8 so he did
not have the right to sell half share of the property [schedule- C property -
half share of schedule- A property]. Further ground was taken by the
plaintiffs that in the family partition amongst Thakkars, the half share of
schedule-A property was allotted exclusively to Indulal G. Thakkar [father
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of the plaintiffs], therefore, the defendant nos. 1 to 4 [ legal heirs and
successors of Manikant G. Thakkar] had no right to sell schedule- B
property [half share of schedule A property] to defendant nos. 6 and 7 and
consequently, both the sale-deeds were null and void.
48. On the other hand, the specific case of the contesting defendant nos.
1 to 7, who were contesting the case so far as schedule B property [half
share of schedule A property] is concerned, was that it was wrong to say
that all brothers, i.e. all four sons of the deceased Govindjee B. Thakkar
were living jointly where the eldest brother Manikant G. Thakkar, being the
member of the joint Hindu Family, was the "Karta" of joint Hindu family.
It was their specific case that the land was jointly purchased by Manikant
G. Thakkar and Hari Narayan Parikh and was not purchased from the joint
family fund by Manikant G. Thakkar and since after purchase both were in
peaceful joint possession and their names were recorded jointly in the
record-of-rights. After death of Manikant G. Thakkar, his widow Savita M.
Thakkar (since deceased), two sons Jayesh M. Thakkar (defendant no. 1)
and Hemant M. Thakkar (defendant no.2), and three daughters namely Priti
M. Thakkar (defendant no.4), Rajni M. Thakkar (defendant no. 3) and Usa
M. Thakkar being the heirs and successors of deceased Manikant G.
Thakkar came jointly in possession of half share of the schedule-A land and
since then, they had been in joint peaceful possession over their half
undivided portion and share of the schedule-A land along with said Hari
Narayan Parikh. Legal heirs and successors of Manikant G. Thakkar, being
in need of money, jointly sold their half portion and share of the schedule-
A land to defendant nos. 6 and 7 vide sale deed no. 687 dated 06.03.2012
through their power of attorney holder defendant no.5. Since then, the
defendant nos. 6 and 7 were in peaceful possession over their half portion
of the schedule-A land and they also got the land mutated in their name and
were paying rent to the Government of Jharkhand as well as doing their
business over the said land.
49. It was the specific case of the defendant no. 1 to 7 that there was no
any Family Partition with respect to the suit land nor the half portion of the
schedule-A land was ever allotted and given in the share of father of the
plaintiffs nor they or their father Indulal G. Thakkar ever possessed the suit
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land. The stand taken in the earlier Title Suit No. 42 of 1982 was explained
by stating that after death of Manikant G. Thakkar, the widow of Manikant
G. Thakkar namely Smt. Sabita M. Thakkar on having trust and faith on
plaintiff no. 2 namely, Prakash I. Thakkar contested the Title Suit No. 42
of 1982 against the defendant no. 8 and on his advice, adduced evidence
along with her son in the said title suit to save the half portion of their
schedule-A land from the hands of the defendant no. 8 who brought the
said Title Suit No. 42 of 1982. It was stated by the defendants that there
was no such alleged partition with respect to the said half portion of the
schedule -A land nor the half portion of the schedule-A land was ever
allotted and given by the heirs and successors of the deceased Manikant G.
Thakkar to Indulal G. Thakkar nor the possession of the half portion of the
schedule-A land was ever given to the said Indulal G. Thakkar nor the
plaintiffs ever came in possession over the half portion of the schedule-A
land at any point of time. It was asserted that the plaintiffs had no rights,
title, interest or even possession over the half portion of the schedule-A land
at any point of time and the defendant no. l to 4 who being the heirs of the
deceased Manikant G. Thakkar acquired and possessed the half portion of
the Schedule-A land of their deceased father Manikant G. Thakkar and who
being lawful owner having all rights, title, interest and possession over the
half portion of Schedule-A land rightly transferred their half portion and
share of schedule-A land in favour of the defendant nos. 6 & 7 through their
lawful Attorney defendant No.5 and the claim of the plaintiffs were totally
false, incorrect and wrong.
50. It is not in dispute that schedule -A property consisted of 17.94 acres
at mouza Kandarbera, P.S. Chandil and the plaintiffs and defendant nos. 1
to 4 as well as proforma defendant nos. 10, 11 and 12 had common ancestor
namely, Govindji B. Thakkar who died leaving behind four sons including
Manikant G. Thakkar and Indulal G. Thakkar. It is further not in dispute
that the schedule A property was purchased in the joint name of defendant
no.8 and Manikant G. Thakkar. It is also not in dispute that plaintiffs are
legal heirs and successors of Indulal G. Thakkar and defendant no. 1 to 4
are legal heirs and successors of Manikant G. Thakkar.
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The bone of contention is whether there was a partition in the year 1973
and whether the half share of schedule A property was allocated exclusively
to Indulal G. Thakkar in such partition so as to entitle the plaintiffs to claim
exclusive title over half share of schedule A property and disentitle the
defendant no. 1 to 4 to sell half share of schedule A property to the
defendant no. 6 and 7 through registered sale deed covering Schedule B
property and hence such sale deed was null and void.
51. Altogether 4 witnesses have been examined on behalf of the
plaintiffs.
52. P.W. 1 is Raja Manjhi, who has stated that the plaintiffs have been in
continuous possession of the suit property and he had not seen anybody else
possessing the same. He has further stated that the suit has been filed for
nullifying the sale deeds executed by Jayesh Thakkar and Hari Narayan
Parikh and others. During his cross-examination, he has stated that he is a
resident of Hatia, Chainpur; he has got no property in Kanderbera where
the suit property is situated; he was unable to give the Khata number and
plot number of the suit property ; he had not seen any documents in
connection with the property; he could not say the boundary of the property;
the rent was being paid with respect to the disputed property, but he has not
seen the rent receipt; he does not know as to how much paddy is grown on
the property, however, he has stated that he used to cultivate the land.
He further stated that he had not seen Manikant G. Thakkar nor he knows
Hari Narayan Parikh; he does not know Govindji B. Thakkar. He has also
denied having known other family members. He has simply stated that he
knows Piyush and Prakash. At the time of measurement by Amin, he was
present but no document was prepared and he did not sign any document;
he has stated that he does not know Jayesh and Hemant and he does not
know the name of defendants. He could not say as to by whom and how the
disputed property was acquired. He was not able to give the details of the
neighbourhood of the property. He did not know that the property was
purchased by Hari Narayan Parikh and Manikant G. Thakkar and whether
they used to pay rent to the government. He could not say that after death
of Manikant G. Thakkar, half portion of the suit property devolved upon his
sons and daughters. He also could not say that the two daughters and the
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two sons of Manikant G. Thakkar together sold the property by virtue of
registered deed dated 06.03.2012 in favour of the defendant nos. 6 and 7
and that they came in possession of the property and got their name mutated
and had been paying rent. He had also no idea that Hari Narayan Parikh had
half share of the property which he also sold vide registered deed dated
20.10.2012.
53. So far as P.W. 2 (Gayaram Singh) is concerned, he has stated that in
the family partition, half share of the disputed property was allocated to
Indulal G. Thakkar, when he was alive and subsequently it devolved upon
his family members, who were in possession of the property. The family
partition had taken place in the year 1973. He has stated that he has been
working on the property and the property was in possession of the plaintiffs.
He further deposed that suddenly in March 2012, the plaintiffs came to
know that defendant nos.1 to 4 appointed power of attorney defendant no.5,
who has sold portion of the property to defendant nos.6 and 7 and
defendants nos.6 and 7 got the property mutated in their name. Thereafter,
the plaintiffs raised objection before the Circle Officer. He also deposed
that in the year 2013, the plaintiffs came to know that defendant no.8 had
sold some portion of the property to defendant no.9 although defendant no.8
had no right to sell the property. He asserted that defendant nos.1 to 4 and
defendant no.8 sold the property in illegal manner in spite of knowing that
they have no right, title and interest over the suit property. He asserted that
the plaintiffs have been in continuous possession of the property and the
sale deed executed in favour of the defendant nos.6 and 7 and defendant
no.9 is illegal and consequently the suit was filed for setting aside the sale
deed. This witness has also been cross-examined. During cross-
examination he stated that he is the resident of Kanderbera and has ancestral
property but could not give the details of his property nor could he give the
details of the disputed property; He stated that he has heard of Khata
No.102 but had not seen it; He has stated that he had not seen Manikant G.
Thakkar; the plaintiffs have filed case against the defendants but he does
not know their name; Indulal G. Thakkar had expired and he had not seen
any paper other than the plaint. He has also stated that Yashomati (Plaintiff
no.1) had told him that he has to go for deposing in the court. He has stated
2025:JHHC:14099
that he had heard the name of Manikant G. Thakkar and Hari Narayan
Parikh but had not seen them and that Hari Narayan Parikh had expired and
his two sons are Piyush and Prashant; his wife had also expired. He had not
seen the father of Manikant G. Thakkar and has no idea as to how many
brothers were Manikant G. Thakkar. He is not aware as to how the disputed
property was acquired by Manikant G. Thakkar. He had not been to the
house of Manikant G. Thakkar nor he knew him. He has further stated that
he is not aware about the date of partition nor he has seen any document
nor any partition had taken place in his presence. He is not aware as to
which plot was allotted to whom during partition and the property was
never measured in his presence. He could not say that Hari Narayan Parikh
was alive and he was defendant no.8. He has stated that it was correct that
defendant Rahat Saeed Khan has constructed some house over the property
and is carrying on business from the said property. He could not say the
date and month of construction of the house. The other property sold to
Mithila Motors is being occupied by them. During cross-examination by
defendant no.9, he stated that in the disputed property Hari Narayan Parikh
had made 8 rooms and was in possession of the same.
54. PW-3 is the Plaintiff No. 5, Mr. Piyush I. Thakkar, son of the late
Indulal G. Thakkar. He has identified the suit land located in Kandarbera,
Thana No. 327, Khata No. 102, with a total area of 17.94 acres. He stated
that the Plaintiffs along with Defendants Nos. 1 to 4 and Proforma
Defendants No. 10, 11, and 12, are all descendants of the late Govindji B.
Thakkar. The Principal Defendants are Defendants No. 5 to 9, who had no
relationship with Govindji Thakkar. While giving the genealogy, the said
defendant had stated that Govindji Thakkar had four sons, Manikant G.
Thakkar, Indulal G. Thakkar, Mukundlal G. Thakkar, and Chandrakant G.
Thakkar. After death, his property devolved upon his four sons. He stated
that on 26.05.1959, Manikant G. Thakkar, along with one Hari Narayan
Parikh, purchased the suit land through registered sale deed no. 1777 dated
26.09.1959; the property was purchased from the joint family fund of
Manikant G. Thakkar, as he was the Karta of the family; the property was
mutated jointly in the name of Manikant G. Thakkar and Hari Narayan
Parikh; consequently, Manikant G. Thakkar was the owner of the half share
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of the property jointly with his three brothers; Manikant G. Thakkar died in
the year 1972; thereafter, his three brothers, his wife Savita Thakkar, and
his sons and daughters underwent a family partition as a consequence of
which the property involved in the case fell in the share of Indulal G.
Thakkar who was in possession of the same and the plaintiffs continued to
remain in possession of the property. He referred to earlier Title Suit No.
42 of 1982 filed by Hari Narayan Parikh seeking declaration of his right,
title and interest over the entire property covered by the sale deed dated
26.09.1959; the suit was decreed by the judgment dated 30.05.1992. The
judgment passed in the said title suit was subject matter of appeal in Title
Appeal No. 10 of 1992, in which the plaintiffs were also included. He
further stated that in Title Suit No. 42 of 1982, the wife of Manikant G.
Thakkar and his son Jayesh M. Thakkar deposed that the half share of the
disputed property was allocated to Indulal G. Thakkar in family partition.
The Title Appeal No. 10 of 1992 was allowed, and the judgment and decree
were set aside, and it was held that Hari Narayan Parikh was entitled only
to half share of the property. Against the judgment, Hari Narayan Parikh
filed Second Appeal No. 101 of 1999(R), which was also dismissed. He
asserted that thereafter the plaintiffs continued to remain in possession of
the property. He deposed that suddenly in the year 2011, the defendant nos.
1 and 2 filed application before the Circle Officer for demarcation of land
upon which the plaintiffs objected, but in spite of that, demarcation was
done in Demarcation Case No. 43 of 2011-2012, wherein Hari Narayan
Parikh gave in writing that after death of Manikant G. Thakkar in the year
1973, the half share of the property was allocated to Indulal G. Thakkar in
family arrangement . The order passed in the demarcation case was
challenged before the High Court in CWJC No.1354 of 2012, which was
dismissed against which LPA No. 310 of 2012 was filed, but the same was
also dismissed with observation. It was also deposed that in the month of
March 2012, the plaintiffs came to know that the defendants Nos. 6 and 7
got the land mutated in their name on the basis of registered deed No. 687
dated 06.03.2012, executed through the power of attorney, namely
defendant No. 5. It was asserted by P.W. 3 that the land of the plaintiffs was
wrongly transferred by defendant No. 5, the power of attorney holder of
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defendant Nos. 1 to 4 in favour of defendant Nos. 6 and 7. The application
for mutation was objected by the plaintiffs, but in spite of that, mutation
was allowed against which Mutation Appeal No. 9 of 2012-13 was filed,
and the matter was remanded back to the Circle Officer. The Circle Officer
heard the matter and again allowed the mutation. It was further stated that
the plaintiffs in the year 2013 came to know that Hari Narayan Parikh had
also sold half share of the property vide sale deed no.4324 dated 20.10.2012
to defendant no. 9-Mithila Motors. It was asserted that there has been no
demarcation and partition with respect to the suit property, and
consequently, the sale of half share of the property by Hari Narayan Parikh
in favour of Mithila Motors was also illegal. This witness stated that
defendant nos. 1 to 5 and defendant no. 8 had no right, title and interest to
sell the property.
During cross-examination, the witness (P.W-3) admitted that he could not
specify the number of plots involved in the case, the nature of the disputed
land, its location, boundaries, or the number of Kiyaris on the property; he
was also unable to state the direction in which the suit property was situated
in Mauza Kandarbera. He stated that he had not seen Govindji Thakkar,
who had expired way back in 1954, and stated that Govindji Thakkar was
engaged in civil construction work; he could not say about the properties of
Govindji Thakkar, and stated that he had not seen any document in
connection with the property of Govindji Thakkar. He stated that Manikant
G. Thakkar died in 1972 and at that time, Hari Narayan Parikh was alive.
He has stated in paragraph 32 of his cross-examination that there was no
registered partition amongst Manikant G. Thakkar and his brothers; he
could not recollect the date of partition, but stated that there was partition
in 1973; he did not mention the date and year of the partition in his
evidence-in-chief, and could not specify when the partition had taken place;
he could not say as to which brother got what share in the property, and in
the partition, there was no witness; he stated that the joint property was
situated at four places including Golmuri, Agrico, Burma Mines. He has
further stated that in Title Suit No. 42 of 1982, the present plaintiffs were
not parties and the suit was between Hari Narayan Parikh, Savita Thakkar,
and her two sons and three daughters and he had seen the judgment, but had
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not read it. He stated that no order was passed to make present plaintiffs
party in the earlier suit. He has stated that there was no joint bank account
of Govindji Thakkar with his brothers, and Manikant G. Thakkar had no
joint bank account; there was no bank account in the name of father of
Manikant G. Thakkar or in the name of his mother. He has clearly stated in
paragraph 36 that with respect to the disputed property, he was not in a
position to produce any documents to show that the property was purchased
from the joint family fund nor he has seen such documents nor could he
give any evidence to this effect, and he was making such statement by
assumption. He has stated that Title Appeal No. 10 of 1992 was filed by
Savita M. Thakkar and her children, and the present plaintiffs were not
party in the said proceedings; he has further stated that in the Second Appeal
No. 101 of 1999(R), no notice was served; however, he further stated that
in Title Appeal No. 10 of 1992, they were made parties, they had contested
the matter and they were made defendants. He further stated that Manikant
G. Thakkar had expired prior to filing of Title Suit No. 42 of 1982, and the
suit was contested by the wife of Manikant G. Thakkar and her children.
On account of death of Manikant G. Thakkar, the entire burden to take care
of the family and children fell on the shoulder of wife of Manikant G.
Thakkar, namely Savita M. Thakkar. He has stated that prior to Title Suit
No. 42 of 1982, there had been no litigation and when notice was received
by Savita M. Thakkar, she had approached the plaintiffs for help, and she
used to go to the court along with them. Savita M. Thakkar had also expired
around 20 years back. He has stated that Savita M. Thakkar and her children
used to live separately since the beginning. He has further stated that
Manikant G. Thakkar had been living separately since his lifetime and he
had separate source of income. He has also denied the suggestion that
Manikant G. Thakkar had purchased the property from his own source of
income and that the disputed property was his self-earned property and that
there was no contribution from the brothers of Manikant G. Thakkar. He
denied the suggestion that Manikant G. Thakkar was the owner of half share
of the property, and that, consequently, his sons and daughters jointly
inherited the property. He asserted that half share of the disputed property
was in the share of Hari Narayan Parikh. Further, during his cross-
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examination, he stated that the defendant nos.6 and 7 are in possession of
Schedule B property and defendant no.8 had given his entire property on
rent to Gramin Vikash Kendra and after purchasing the land from defendant
no.8, the defendant no.9 has got his name mutated. He has also stated that
there was a demarcation case in which half share of Hari Narayan Parikh
was separated from that of Manikant G. Thakkar, and there was mutation
with respect to the property in their separate name and they have been
paying rent separately.
55. The defendant no. 1, 3(a), 3(b), 4, 5, 6 and 7 have led evidence of
altogether 4 witnesses.
56. So far as D.W. 1 is concerned, he stated that he knows the parties to
the suit and he has seen the disputed property. He gave the new khata
number of the properties as Khata No. 102 and gave the details of the plots
as Plot Nos. 559, 560, 562, 563, 565, 558, 581, 586, 587 and 557, total 17
acres 94 decimal. As per this witness, in Chandil 33 decimal constitutes one
Bigha. He has further stated that the disputed property was jointly
purchased by Hari Narayan Parikh and Manikant G. Thakkar and they were
jointly in possession of the property; while in jointness, Manikant G.
Thakkar expired leaving behind him his wife Sabita M. Thakkar, 2 sons
namely Jayesh M. Thakkar and Hemant M. Thakkar and 2 daughters
namely Rajni and Priti, and they were the successors of Manikant G.
Thakkar with respect to the half share of the disputed property. Thereafter
the descendants of Manikant G. Thakkar mutually divided the disputed
property with Hari Narayan Parikh and the entire property in plot no. 563,
565 and 581 as well as 20 decimals in plot no. 559, 73 decimals in plot no.
560 and 20 decimals in plot no. 562, total 8 acre 97 decimals of land fell in
the share of successors of Manikant G. Thakkar and they came in
possession of the same; Plot No. 581 was vacant land in which they used to
cultivate paddy every year and in some portion of the remaining property,
there were mango trees and in some portion of the property, vegetables were
being grown by them. This witness further stated that wife of Manikant G.
Thakkar expired and the property devolved upon his two sons and two
daughters who came in possession of the property. D.W.-1 also stated that
in the year 2012, all the 4 children of Manikant G. Thakkar who acquired
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the aforesaid 8 acres and 97 decimals of land, executed power of attorney
and sold the property vide registered sale deed in favour of defendant nos.
6 and 7 upon consideration and thereafter, the defendant nos. 6 and 7 have
been in continuous possession with respect to the property. They also got
the property mutated in their name and have been paying rent to the State.
They have constructed house, workshop and shed in portion of the property.
He has stated that the property purchased by defendant nos. 6 and 7 are in
3 parts though they are adjoining to each other. He has also stated that the
plaintiffs or the father of plaintiff nos. 2 to 5 namely Indulal G. Thakkar did
not ever have any right, title, interest and possession nor are having so at
present. It was further stated that the portion of the property which fell in
share of Hari Narayan Parikh was also sold to Mithila Motors and Mithila
Motors was in possession of the property. He has stated that he is supervisor
of Kanderbera Village Development Centre and he has been living in the
area for the last 37 years and is having farm house. He has also stated that
the disputed plot no. 560, 565 and 581 are adjoining to his property and the
aforesaid Village Development Centre.
D.W.-1 has been thoroughly cross-examined. In his cross-examination, he
has stated that he has seen the Khata No. 102 in the Khatiyan which is in
the name of Manikant G. Thakkar and Hari Narayan Parikh and he is
acquainted with Manikant G. Thakkar and Hari Narayan Parikh, but not
acquainted with their family members. He has further stated that Manikant
G. Thakkar was the eldest amongst his brothers. As per this witness, he is
not aware that Manikant G. Thakkar had purchased the property from joint
family fund. This witness has categorically denied that in the half share of
the suit property, the brothers of Manikant G. Thakkar were ever seen and
he is not aware that with respect to the suit property, there was any family
partition ever amongst the brothers of Manikant G. Thakkar. He has also
stated that he is not aware that the aforesaid property fell in the share of
Indulal G. Thakkar in terms of the aforesaid family partition. He has also
denied that till death of Indulal G. Thakkar, he was in possession of the suit
property or later on, his descendants were in possession. He further stated
that he is aware of one suit fought between Manikant G. Thakkar and Hari
Narayan Parikh; he is not aware as to whether Indulal G. Thakkar was made
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party in the suit; he is aware that in the suit, half share each was declared in
favour of Manikant G. Thakkar and Hari Narayan Parikh. He has denied
the suggestion that the descendants of Manikant G. Thakkar did not have
the right to sell the property because Manikant G. Thakkar had purchased
the property from joint family fund of all the brothers. He has denied that
the plaintiffs were having right, title, interest and possession with respect to
the property.
57. So far as D.W. 2 is concerned, he is Gulab Chandra Manjhi. He also
claims to know the parties. He has also given the description of the disputed
property. He has also fully supported the case of the defendants as that of
D.W. 1 and has confirmed the right, title, interest and possession of the
defendant nos. 6 and 7 with respect to the half share of the property which
was purchased by Manikant G. Thakkar and Hari Narayan Parikh.
During his cross-examination, he has stated that he has his own land in
Kanderbera. He has no idea that Indulal G. Thakkar was the brother of
Manikant G. Thakkar nor he knows the brothers of Manikant G. Thakkar
or their children. He has no idea that Manikant G. Thakkar had purchased
the property from joint family fund. He has no idea as to whether there was
any family partition amongst them nor he is aware that the property came
in share of Indulal G. Thakkar. This witness has clearly denied that Indulal
G. Thakkar or their children ever came in possession of the property and he
stated that there has been no suit between Manikant G. Thakkar and Indulal
G. Thakkar. He is not aware of the civil suit fought between Manikant G.
Thakkar and Hari Narayan Parikh. He has stated that it is not correct to say
that Manikant G. Thakkar and his children did not have the right, title,
interest and possession to sell the property or that the property was
purchased from the joint family fund of Manikant G. Thakkar and his
brothers.
58. So far as D.W. 3 is concerned, he is the defendant no. 6 in the present
case. He has fully supported the case of the defendants. He has stated that
the entire property was jointly purchased by Hari Narayan Parikh and
Manikant G. Thakkar who were in possession of the property and in
revisional survey settlement, the property stood recorded under Khata No.
102 in joint name of Hari Narayan Parikh and Manikant G. Thakkar;
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Manikant G. Thakkar died leaving behind his wife, 2 sons and 2 daughters
and the remaining half of the property was of Hari Narayan Parikh; after
death of Manikant G. Thakkar his legal heirs and successors divided the
property with Hari Narayan Parikh and remained in separate possession of
half share of the property. He has given the details of the property which
fell in the share of Manikant G. Thakkar which is having a total area of 8.97
acres. After death of wife of Manikant G. Thakkar, the property devolved
upon two sons and 2 daughters of Manikant G. Thakkar and they used to
grow paddy in a portion and in another portion, there were mango trees and
in the remaining portion, they used to grow vegetables and they were in
possession of the property; they executed power of attorney and sold the
property to defendant nos. 6 and 7 through registered sale-deed no. 687
dated 06.03.2012 for a consideration amount of Rs. 30 lakhs and thereafter,
the defendant nos. 6 and 7 came in possession of the property, got the
property mutated through Mutation Case No. 2446 of 2011-12 and have
been paying rent and their name has also been recorded in Jamabandi
Register (part-2). He has also stated that the property so purchased is in 3
parts, but they are adjoining to each other. He has stated that in a portion he
has constructed a house and has given the description of the house and has
also got a hand pump over the property and has been growing mango, paddy
and vegetable on the property. He has stated that Manikant G. Thakkar had
purchased the property from his own source of income and not from the
joint family fund and the plaintiffs or their father Indulal G. Thakkar did
not ever have right, title and interest or possession over the suit property.
He has categorically stated that it is completely false to say that the property
was purchased by Manikant G. Thakkar from joint family fund and the
property was allocated to Indulal G. Thakkar during family partition. He
has asserted that the property was purchased from the own income of
Manikant G. Thakkar and was his self-acquired property. The remaining
half share of the property which fell in the share of Hari Narayan Parikh
was also sold by registered deed to defendant no. 9. He has further stated
that Hari Narayan Parikh wrongly claimed right, title, interest and
possession over the entire suit property. He has further stated that at the
time of death of Manikant G. Thakkar, his children were minor and his wife
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was not educated and was a housewife. She used to remain in distress for
maintenance of herself and her children and she used to trust Prakash I.
Thakkar who wrongly advised her and prepared false document and made
them party at the appellate Court. He has stated that the property never came
in possession of Indulal G. Thakkar nor any document regarding family
partition was made and if there is any such document, the same is forged
and fabricated. This witness has further stated that he has also filed the
certified copy of the sale-deed which is a public document. He has also
exhibited the registered power of attorney dated 23.11.2011 and asserted
that it is a public document. He has exhibited the certified copy of the
correction slip in connection with Khata No. 102 as Exhibit- C and D. He
has exhibited different rent receipts of each year from the year 2012-13
onwards. He has also exhibited the receipts issued by Jharkhand State
Electricity Board in his name and has asserted that he has right, title, interest
and possession with respect to the suit property.
D.W. -3 has been duly cross-examined and in his cross-examination, he has
stated that he is not aware as to how many brothers Manikant G. Thakkar
had. He has denied that the property was purchased from the joint family
fund of brothers of Manikant G. Thakkar and that the property was jointly
in the possession of Manikant G. Thakkar and his brothers. He has denied
that there was ever any family partition amongst the brothers of Manikant
G. Thakkar and the property was allotted to Indulal G. Thakkar. He has
stated that there was a partition between Hari Narayan Parikh and
descendants of Manikant G. Thakkar and the descendants of Manikant G.
Thakkar got 8 acres and 97 decimals of land. He has denied that the disputed
land was being cultivated by Indulal G. Thakkar and after his death, his
descendants were in possession of the property. He has stated that Sabita
Mahto is the Member of Legislative Assembly (M.L.A.) and at the relevant
point of time, her husband Sudhir Mahto was the Deputy Chief Minister of
the State of Jharkhand and despite objection by the plaintiffs the property
was mutated. He has given the boundary of the property and denied that the
plaintiffs have been forcibly removed from the property.
59. D.W. 4 is Md. Naushad. He has exhibited the rent receipts of the year
2012-13, 2013-14, 2014-15, 2015-16 and 2016-17 and he has also exhibited
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the receipts dated 06.04.2013 and 26.04.2013 issued by Jharkhand State
Electricity Board. This witness has also been cross-examined and he has
fully supported the case of the defendants and he has given names of the
officers who had issued the receipts and were posted at the relevant point
of time.
60. Numerous documents as exhibited by both the parties have been
already mentioned above. The most important documents for the purposes
of this case are the judgement passed in the earlier suit, the appellate court's
judgement (exhibit-22) which attained finality and also the stand taken by
the widow and children of Manikant G. Thakkar and their evidences
(exhibit-20 and 20/1 in this case) in the earlier title suit which was fought
between Hari Narayan Parikh and legal heirs of Manikant G Thakkar which
has been heavily relied upon by the respondents (plaintiffs) to submit that
there was admission of family settlement vide exhibit-C in the earlier case
(exhibit-16 in the present case) and allocation of the suit property was made
to the exclusive share of Indulal G. Thakkar, the brother of Manikant G.
Thakkar. The second appeal against the appellate court's judgement was
also dismissed.
61. The Exhibit- 22 is the judgement passed in Title Appeal No. 10 of
1992 arising out of the judgment dated 30.05.1992 passed in earlier Title
Suit No. 42 of 1982 fought between the legal heirs of Manikant G. Thakkar
and Hari Narayan Parikh whereby the suit was decreed in favour of Hari
Narayan Parikh declaring that the entire suit property was the exclusive
property of Hari Narayan Parikh although it was purchased in joint name
of Manikant G. Thakkar and Hari Narayan Parikh and the same property
is the schedule A property in the present case . In the Title Suit No. 42 of
1982 some of the issues which were framed and are relevant for the present
case are: -
"7. Was the suit property acquired by joint family of Manikant
G. Thakkar along with the plaintiff?
8. Was consideration money for purchase of the suit property
was paid by the plaintiff alone and has joint family of the Mani
Kant G. Thakkar acquired any right over the property in
question?
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9. Is the plaintiff sole owner of the property in suit?
10. Was in any family arrangement dated 16.1.73 the property
in schedule 'A' was allotted to the sole brother of Mani Kant G.
Thakkar?"
62. The points for determination as framed by the learned 1st appellate
court in Title Appeal No. 10 of 1992 are as under: -
"(i) Whether the respondent has got valid cause of action for the
suit?
(ii) Whether the suit is maintainable in its present form?
(iii) Whether it is barred by law of limitation?
(iv) Whether respondent has got exclusive right, title and interest
over the suit property?
(v) Whether suit property was acquired by the joint family of
Mani Kant G Thakkar along with respondent?
(vi) Whether consideration money was paid by respondent alone
as alleged by him?
(vii) Whether respondent acquired right title over the suit property
by way of adverse possession?
63. The learned 1st appellate court decided points of determination nos.
(iv), (v), (vi) and (vii) in paragraph 8 of the judgment as under: -
"8. The above points are interlinked and related to each other,
therefore, they are taken together for determination. The respondent
has examined 13 witnesses and also filed certain documents marked
exhibits in this suit. P.W.1,2,3,4,6,10 and 12 are formal witnesses.
Whereas P.W.5,7,8,9,11 and 13 respondent himself are the witnesses
on material points. Exhibit A series are signatures, Exhibit 2 series
are rent receipts, Exhibit 3 series are wealth tax returns whereas
Ext.4 series are statement attached to Ext.3 series, Ext.5 series are
assessment orders inconsonance with the returns, Ext.6 is the typed
letter dated 28.9.91 addressed to Income Tax Department, alleged
to be written by Sabita M. Thakkar. Ext.7 is agreement of lease,
alleged to be executed by respondent dated 20.3.92 in favour of
Gram Vikash Kendra Jamshedpur. Ext.8 is the sale deed dated
5.10.59 by virtue of which suit property was purchased in the name
of the respondent Hari Narayan Parekh and Mani Kant G.
Thakkar."
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64. The findings of the learned 1st appellate court are in paragraph nos.
11, 12, 13, 15, 16, 17 and 18 of its judgment whose important extracts for
the purposes of this case are quoted as under: -
11. Now let us examine the oral and documentary evidence of the
respondent/plaintiff regarding his exclusive title over the suit
property. It is an admitted fact that the suit property was jointly
purchased by the respondent and Mani Kant G. Thakkar vide
registered sale deed dated 26.9.59 on payment of consideration
money of Rs. 10,000/- vide Ext. 8. It is also an admitted fact that
in revisional survey which was finally published in the year 1964
the suit property was jointly recorded in the names of Mani Kant
G. Thakkar and respondent Hari Narayan Parekh. The respondent
(P.W.13) in para-15 has clearly admitted that he filed objection
against the settlement but the same was turned down by the
settlement authorities. The rent receipts filed and proved on behalf
of respondent have been marked Ext.2 series in this case. The rent
receipts relates to 1971 to 1986. There is no rent receipts for the
year 1975 to 1984. From perusal of the receipts it is evidently
clear that it is in the joint names of the respondent and the said
Mani Kant G. Thakkar. ........................ Moreover, the above
documents do not substantiate the exclusive right, title and
possession of the respondent over the suit property.
12. Exhibit -6 is the typed letter dated 28.9.81 addressed to the
Tax Recovery Officer Ranchi alleged to have been written by
Sabita M. Thakkar (Original defendant No.1) wife of Mani Kant.
G. Thakkar. It is alleged by the respondent that by writing this
letter said Sabita M. Thakkar clearly admitted that her husband
Mani Kant G. Thakkar has got no title and interest over the suit
property rather the same is exclusively belong to the respondent. I
find that the learned court below has also given much importance
of Ext.6. The learned court below has held that Ext.6 is the settler
with regard to exclusive ownership of the respondent over the suit
property. At the very out set I would like to mention here that there
is no whisper regarding Ext.6 in the whole pleading of the
respondent. Moreover, it is a typed letter bearing only signature of
Sabita M. Thakkar. Admittedly respondent Hari Narayan Parekh
was very close friend of the said Mani Kant G. Thakkar. Sabita M.
Thakkar (D.W.12) has stated in her evidence that respondent was
in visiting term as brother. The respondent obtained her signature
on a blank paper in good faith. The respondent (P.W.13) has stated
in para-7 of his evidence that the suit property was attached by
Tax Recovery Officer for which Sabita M Thakkar submitted a
written report that the land in question belongs to the respondent.
He has further said that Sabita M. Thakkar simply signed over the
letter. He has proved simply signature marked Ext.6 in this case.
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Не has also stated that the letter was typed by one B.L. Sharma.
In para -22 he has further admitted that Ext.6 is a typed letter. It
does not bear the signature of Typist to prove this fact that same
was typed by B.L. Sharma. There is no mention of any date and/or
signature of Sabita M. Thakkar. The respondent has clearly
admitted that Mani Kant G. Thakkar was his good friend and he
was on visiting terms in his house. In view of the facts stated above
this seems to be spurious document. Sabita M. Thakkar
emphatically denied the existence of Ext.6. She has expressed her
ignorance with regard to the contents of the Ext.6. Moreover Ext.6
was never read and explained to her. I have already stated above
that there is no pleading of the respondent in his plaint with regard
to existence of Ext.6. Exhibit -7 is the agreement of lease between
respondent and Gram Vikash Kendra. The respondent has proved
Ext.7 in order to substantiate his exclusive right, title and
possession over the suit property. Ext.7 goes to show that the
respondent entered into an agreement with Gram Vikash Kenra on
20.3.82 for some portion of the suit property for a period of 10
years. Admittedly it is an unregistered document prepared on 3
rupees stamp paper. It contains 3 pages. There is no signature of
either lessor or lessee in two pages. The later page has been
signed by respondent and Secretary Gram Vikash Kendra
Jamshedpur. Section 107 of T. P. Act Provided that lease of
immovable property from year to year for any term exceeding one
year or receiving yearly rent can be made only by registered
document. Lease for agricultural purpose are exempted from the
provisions of section 107 T. P. Act. Such lease may be made orally
or in writing and if made in writing requires registration u/s 17(i)
(d) if they are year to year or for any terms exceeding one year or
receiving yearly rent. Section 117 T.P. Act also provides that a
lease for agricultural purpose is not necessary to be made by
written agreement and when so affected no registration is
required. But if transaction is reduced to writing then in the case
of lease from year to year or for any term exceeding one year of
receiving a yearly rent registration would be under section 117 of
Registration Act and if unregistered the lease will be inadmissible
in evidence under section 49 of the act and other evidence of its
terms will also be precluded by section 91 of Evidence Act. Thus,
I find that Ext.7 is hit by the provisions of Indian Registration Act,
moreover it also appears that Ext.7 has been created in the year
1982 prior to the filing of the suit by the respondent and after the
order of the Hon'ble High Court dated 25.2.82 in C.W.J.C No. 281
of 1982 by which respondent was advised to file regular suit for
declaration of his title over suit property.
13. Now let us examine the oral and documentary evidences of the
appellants. D.W.4. has stated that his father was 4 brothers and
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their family was joint Hindin family. The eldest brother Mani
Kant G. Thakkar was karta of the family. Mani Kant G. Thakkar
and respondent Hari Narayan Parekh were close friends. Both
of them purchased schedule 'A' property by registered sale deed
in the year 1959 for consideration of Rs.10,000/-. Mani Kant G.
Thakkar paid his share to Rs.5000/- out of the joint family fund.
Mani Kant G. Thakkar died in the year 1972 leaving behind his
widow, sons and daughters. In the year 1973 there was family
partition amongst the heirs of Mani Kant G. Thakkar and other
members of the joint family. In the said family partition suit
property was allotted in the share of his father Indulal G.
Thakkar. This witness has proved the paper of family
arrangement dated 16.2.93 marked Ext.C in this case. Ext.C.
bears signature of all the co-sharers of the joint family property.
He has further stated that there was tax recovery case against
Mani Kant G. Thakker in which he filed objection (Ext. D) that
the suit property fall in the share of his father Indulal G.
Thakkar. He has also filed objection against auction (Ext.D/1)
before the Income Tax authorities. D.W.9 and D.W.12 the son
and the wife of Mani Kant G. Thakkar have also supported the
case of the appellants in their evidences. The learned court below
has held that Ext. C (Family arrangement) is a spurious
document and the same has been created by D.W.4 only to put
his claim over the suit property. The view expressed by the
learned court below is not logical and convincing. It is definite
case of the appellant from the very beginning that Mani Kant G.
Thakkar was 4 brothers and he was Karta of the family. He paid
Rs.5000/- out of the joint family fund. Mani Kant G. Thakkar
died in the year 1972 and thereafter there was partition in Joint
family property and by way of family arrangement on 16.3.73
vide (Ext.C) suit property was allotted to Indulal G. Thakkar,
father of the intervener appelants. I do not find specific denial
by the respondent or his witnesses in this regard. The respondent
and his witnesses have simply stated that they have no knowledge
about the family arrangement of Mani Kant G. Thakkar in
which the suit property was allotted to the share of Indulal G.
Thakkar. Moreover Ext. C is the family arrangement of the
appellants. None of the co-sharers have raised objection against
the above family arrangement. The son (D.W.9) and the wife
(DW.12) of the said Mani Kant G. Thakkar have supported the
claim of family arrangements. There is no dispute in it that the
family arrangement may be done either orally or in writing.
Thus, the findings of the learned court below seems to be
perverse and unjustified.
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15. In order to substantiate his exclusive title and possession, the
respondent has proved returns of wealth tax and income tax (Ext.3
series and 4 series). .............................
16. Having the discussions made above and after critical analysis
of oral and documentary evidence of the parties, I find that the
respondent has got no exclusive right, title and interest over the
suit property. The suit property was jointly acquired by the
respondent and Mani Kant G. Thakkar. The said Mani Kant G.
Thakkar paid his share of consideration amount of Rs.5000/- out
of joint family fund. After the death of Mani Kant G. Thakkar in
the year 1972, there was partition in the family and the ½ share in
the suit property was allotted to Indu Lal G. Thakkar. It may be
noted that heirs of Indu Lal G. Thakkar has been added as co-
appellants by the order of the Hon'ble High Court dated 28.6.99
passed in Civil Revision No.122/99(R). Thus, the above 4 points
are accordingly decided in favour of the appellants and against
the respondent."
65. The perusal of the aforesaid judgement passed in Title Appeal No.
10 of 1992 arising out of the earlier suit [ Title Suit No. 42 of 1982] between
the legal heirs of Manikant G. Thakkar and Hari Narayan Parikh reveals
that at the stage of trial the legal heirs of Manikant G. Thakkar and Hari
Narayan Parikh were the parties and the legal heirs and successors of
Indulal G. Thakkar were added as co-appellants by the order of the Hon'ble
High Court dated 28.06.1999 passed in Civil Revision No.122/99(R).
Meaning thereby, that the suit was never contested between the legal heirs
and successors of Indulal G. Thakkar and legal heirs and successors of
Manikant G Thakkar. Moreover, the judgement passed by the learned 1 st
appellate court in Title Appeal No. 10 of 1992 reveals that the findings of
the learned trial court that the family arrangement (exhibit- C) was spurious
document was interfered primarily on the ground that the family
arrangement [Ext. C] was of the appellants of the said case and none of the
co-sharers had raised objection against the above family arrangement. The
son (D.W.9) and the wife (DW.12) of Manikant G. Thakkar supported the
claim of family arrangement and learned 1st appellate court in the said title
appeal held that family arrangement may be done either orally or in writing
and it was also held that the findings of the learned trial court that the family
arrangement (exhibit-C) was a spurious document seemed to be perverse
and unjustified.
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66. This Court is of the considered view that the legality and validity of
the family arrangement which was admittedly unregistered document was
never examined in the aforesaid appeal and it was accepted without any
adjudication as to its legality or validity in the eyes of law and without
examination as to whether the said document of family arrangement can be
said to be a document of family partition as none of the co-sharers raised
objection against the above family arrangement and the son (D.W.9) and
the wife (DW.12) of Manikant G. Thakkar had also supported the claim of
family arrangement.
67. The learned trial court in the earlier suit [ Title Suit No. 42 of 1982]
decided issue nos. 7 to 10 in favour of the plaintiff Hari Narayan Parikh and
against the legal heirs and successors of Manikant G. Thakkar. The learned
1st appellate court in Title Appeal No. 10 of 1992 did not frame any issue
relating to the issue no.10 framed by the learned trial court, as to whether
pursuant to the family arrangement the property was allotted to the sole
brother of Manikant G Thakkar. The fact also remains that Manikant G.
Thakkar were four brothers and Indulal G. Thakkar was not the sole brother
of Manikant G. Thakkar. Apparently, there was no occasion to enter into
such issue as the point for consideration was whether Manikant G. Thakkar
had paid his share of consideration for the suit property purchased in the
joint name of Manikant G. Thakkar and Hari Narayan Parikh.
68. This Court finds that even the facts as to whether the so-called family
arrangement ever eventually ended up in allocation of exclusive right, title,
interest and possession to Indulal G. Thakkar (father of the plaintiffs of the
present case) with respect to the half share of schedule A property involved
in this case which was jointly purchased by Manikant G Thakkar and Hari
Narayan Parikh and whether there was any partition by metes and bound
in the family of Thakkars and whether the unregistered family settlement
was at all admissible in evidence, were neither examined nor considered
nor were the subject matter of consideration in the earlier title suit [ Title
Suit No. 42 of 1982] fought between the legal heirs of Manikant G Thakkar
and Hari Narayan Parikh and legal heirs of Indulal G. Thakkar became
party as co-appellants for the first time only at the appellate stage. The issue
in the earlier suit [ Title Suit No. 42 of 1982] fought between the legal heirs
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of Manikant G Thakkar and Hari Narayan Parikh was as to whether
Manikant G Thakkar had contributed in the payment of consideration for
the property which was jointly purchased by Manikant G Thakkar and Hari
Narayan Parikh, who admittedly do not belong to the same family; in the
earlier suit [ Title Suit No. 42 of 1982] Hari Narayan Parikh claimed
exclusive right , title and interest over the entire property purchased in the
joint name of Hari Narayan Parikh and Manikant G Thakkar by stating that
the entire consideration amount was paid only by Hari Narayan Parikh and
legal heirs of Manikant G Thakkar had taken a stand that the half
consideration amount was paid by Manikant G Thakkar from his joint
family fund and accordingly it was held in the Title Appeal No. 10 of 1992
arising out of earlier suit [ Title Suit No. 42 of 1982] that the property was
jointly acquired by Manikant G Thakkar and Hari Narayan Parikh and
Manikant G Thakkar paid his share of consideration out of joint family
fund.
69. The learned counsel for the respondents (representing the original
plaintiffs - legal heirs of Indulal G. Thakkar ) has submitted that once all
the family members of Manikant G. Thakkar had taken a specific stand in
the earlier suit [ Title Suit No. 42 of 1982] fought between the legal heirs
of Manikant G Thakkar and Hari Narayan Parikh that there was a partition
and the property was allocated in the name of Indulal G Thakkar, there was
no occasion for them to deny the factum of partition. He has also argued
that the allocation of share of the suit property in the name of Indulal G.
Thakkar stood concluded and therefore, the defendant nos. 1 to 4 of the
present case had no right, title and interest to transfer the property in favour
of defendant nos. 6 and 7 through defendant no. 5.
70. In view of the aforesaid discussions with respect to the allocation of
half share of the schedule A property relatable to share of Manikant G
Thakkar, this Court finds that there is no finding in the Title Appeal No. 10
of 1992 regarding allocation of share of the suit property in the name of
Indulal G. Thakkar through family arrangement and the finding is that
Manikant G Thakkar contributed from joint family fund to purchase the
property. In view of the aforesaid discussions, this court is also of the
considered view that merely because the legal heirs of Manikant G.
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Thakkar had taken a plea in the earlier suit [ Title Suit No. 42 of 1982]
fought with a third party , namely, Hari Narayan Parikh who is outside the
family of Thakkars that there was a family arrangement and the property
was allocated in the name of Indulal G. Thakkar, it cannot be said that there
is no occasion for them to deny the factum of partition. The factum of
partition and allocation of share was certainly required to be proved as per
law in order to claim that the half share of the property jointly purchased in
the name of Manikant G Thakkar and Hari Narayan Parikh fell into the
share of Indulal G. Thakkar and that he came in exclusive possession of
the same, which the plaintiffs ( the legal heirs and successors of Indulal G.
Thakkar ) miserably failed to prove and this would be evident from the
following discussion of the materials on record.
71. The evidences led on behalf of the plaintiffs and the defendants, both
oral and documentary have been mentioned above.
72. This court finds that P.W-1 has no idea about the ownership,
location, neighbourhood, boundaries, land use etc. of the suit property nor
has any idea about the family members of Thakkars. This witness does not
help the plaintiffs to prove their case with respect to possession, partition
or allocation of this property exclusively to Indulal G. Thakkar and then
devolution upon legal heirs and successors of Indulal G. Thakkar. This
court further finds that P.W-2 also has no idea about the partition and
allocation of share exclusively to Indulal G. Thakkar as claimed by the
plaintiffs and has no idea about the details of the property and he has stated
that the property was in possession of the defendant Rahat Saeed Khan who
has constructed some house over the property and is carrying on business
from the said property. This court finds that the oral evidence of P.W-3
does not give the details of so called partition, neither the unregistered
family settlement has been proved nor the factum of partition has been
proved nor the allocation of schedule B property exclusively to Indulal G.
Thakkar has been proved nor the possession of Indulal G. Thakkar and then
of the plaintiffs beings sons of Indulal G. Thakkar has been proved and
the possession of the defendant no.6 and 7 over the property has been
admitted. This court also finds that the documents from the earlier suit, its
written statement filed by the wife of Manikant G Thakkar, the evidences
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led in the said suit were not proved and exhibited during the oral evidence.
However, the records reveal that the said documents were simply filed and
marked as exhibits. This witness has also admitted that wife of Manikant G
Thakkar became helpless after the death of her husband and was totally
dependent upon the plaintiffs /their father Indulal G. Thakkar in conducting
the court proceedings and had never faced any litigation earlier.
73. This Court finds that D.W. 1 has fully supported the case of the
defendants and has also stated that the property was jointly purchased by
Hari Narayan Parikh and Manikant G. Thakkar and while in jointness,
Manikant G. Thakkar expired leaving behind his legal heirs who divided
the property mutually with Hari Narayan Parikh and came in exclusive
possession. Thereafter, legal heirs of Manikant G. Thakkar sold the
property to defendant nos. 6 and 7 and handed over the possession to them.
Since then, the defendant nos. 6 and 7 have been in continuous possession
of the property and have constructed house, workshop and shed over the
property and also got their name mutated in the revenue records. He has
also given the description of the property and the manner it was being used
i.e. in some portion there was cultivation of paddy every year and in the
remaining portion, there were Mango trees and vegetables were also grown.
Even during cross-examination, no material contradiction has been brought
on record, rather he has clearly denied that Indulal G. Thakkar ever came
in possession of the property and also denied that later on his descendants
were in possession and denied the right, title, interest and possession of the
plaintiffs with respect to the property. So far as D.W. 2 is concerned, he has
supported the case of the defendants with regards to right, title, interest and
possession of defendant nos. 6 and 7 and he has also supported that the
property was purchased jointly by Manikant G. Thakkar and Hari Narayan
Parikh. This witness has stated that he has his own property in the same
locality and he had no idea that Indulal G. Thakkar was brother of Manikant
G. Thakkar nor he knew the brothers of Manikant G. Thakkar or their
children nor he had any idea that Manikant G. Thakkar had purchased the
property from joint family fund. He denied that Indulal G. Thakkar or their
children ever came in possession of the property. D.W. 3 is the defendant
no. 6 who has fully supported the case of the defendants and has duly
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deposed and supported his right, title, intertest and possession over the
property. He has also stated that he has constructed a house, got installed a
handpump and has been growing mango trees, paddy and vegetables on the
property and he has got his name mutated in the revenue records after
purchasing the property through sale-deed no. 687 dated 05.03.2012 for a
consideration of Rs. 30 lakhs from the legal heirs and successors of
Manikant G. Thakkar who handed over the physical possession of the
property to him. He has also stated that Manikant G. Thakkar had purchased
the property from his own source of income and not from joint family fund
and that the plaintiffs or their father Indulal G. Thakkar did not ever have
right, title, interest or possession over the suit property. He has also stated
that at the time of death of Manikant G. Thakkar, his children were minor
and his wife was not educated and was a housewife. She remained in
distress for maintenance of herself and her children and used to trust
Prakash I. Thakkar who had prepared false documents and in fact, no
document regarding family partition was made and if there was any such
document, the same was forged and fabricated. He has also taken electricity
connection over the suit property. This witness has been thoroughly cross-
examined. He is not aware about brothers of Manikant G. Thakkar. He
denied that there was any family partition and the property was allotted to
Indulal G. Thakkar. He had given the boundary of the property and denied
that the plaintiffs were forcibly removed from property. D.W. 4 has
exhibited the rent receipts and also the receipts issued by Jharkhand State
Electricity Board and has given the names of the officers who were posted
at the relevant point of time.
74. The oral evidences on record clearly demonstrate that the plaintiffs
failed to prove that they or even their father Indulal G. Thakkar were ever
in possession of the property. Rather, the defendants have proved through
cogent evidence that Manikant G. Thakkar and after his death, his legal
heirs and successors including his wife and defendant nos. 1 to 4, were in
possession of the property and they sold their half share to defendant nos.
6 and 7 who also got their name mutated in revenue records and were
paying rent. There is no documentary evidence from the side of the
plaintiffs that the property was ever possessed by them or even by their
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father Indulal G. Thakkar at any point of time. Their entire case is based on
unregistered family arrangement of the year 1973 (exhibit-16) but there is
nothing on record to show that it was ever acted upon. On perusal of exhibit
-16 there is no mention of any previous partition and it is certainly not a
memorandum of partition and in absence of registration the same is
inadmissible in evidence.
75. As already observed above, the documents from the earlier suit, its
written statement filed by the wife of Manikant G Thakkar and the
evidences led in the said suit were not proved and exhibited during the oral
evidence. However, the records reveal that the said documents were simply
filed and marked as exhibits.
76. In the judgement passed by the Hon'ble Supreme court in the case of
"Basant Singh v. Janki Singh" reported in (1967) 1 SCR 1 : (1967) 1 SCJ
476 : AIR 1967 SC 341 it has been held that an admission in a pleading can
be used only for the purpose of the suit in which the pleading was filed but
in other suits, this admission cannot be regarded as conclusive, and it is
open to the party to show that it is not true. The paragraphs relevant for the
purposes of this case are quoted as under:-
"5. The High Court also observed that an admission in a
pleading can be used only for the purpose of the suit in which
the pleading was filed. The observations of Beaumont, C.J. in
Ramabai Shriniwas v. Bombay Government lend some
countenance to this view. But those observations were
commented upon and explained by the Bombay High Court
in D.S. Mohlte v. S.I. Mohile. An admission by a party in a
plaint signed and verified by him in a prior suit is an
admission within the meaning of Section 17 of the Indian
Evidence Act, 1872, and may be proved against him in other
litigations. The High Court also relied on the English law of
evidence. In Phipson on Evidence, 10th Edn, Article 741, the
English law is thus summarised:
"Pleadings, although admissible in other actions, to
show the institution of the suit and the nature of the
case put forward, are regarded merely as the
suggestion of counsel, and are not receivable against
a party as admissions, unless sworn, signed, or
otherwise adopted by the party himself."
Thus, even under the English law, a statement in a pleading
sworn, signed or otherwise adopted by a party is admissible
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against him in other actions. In Marianski v. Cairns the
House of Lords decided that an admission in a pleading
signed by a party was evidence against him in another suit
not only with regard to a different subject-matter but also
against a different opponent. Moreover, we are not
concerned with the technicalities of the English law. Section
17 of the Indian Evidence Act, 1872 makes no distinction
between an admission made by a party in a pleading and
other admissions. Under the Indian law, an admission made
by a party in a plaint signed and verified by him may be used
as evidence against him in other suits. In other suits, this
admission cannot be regarded as conclusive, and it is open
to the party to show that it is not true."
77. In the judgement passed in the case of "LIC Vs. Ram Pal Singh
Bisen" reported in (2010) 4 SCC 491 : (2010) 2 SCC (Civ) 191 : (2010) 1
SCC (L&S) 1072, it has been held that mere admission of a document in
evidence does not amount to its proof, in other words, mere marking of
exhibit on a document does not dispense with its proof, which is required
to be done in accordance with law. It has been held that under the law of
evidence also, it is necessary that contents of documents are required to be
proved either by primary or by secondary evidence. At the most, admission
of documents may amount to admission of contents but not its truth. It has
also been held that the contents of the document cannot be proved by merely
filing in a court. The paragraphs relevant for the purposes of this case are
quoted as under :-
"21. It is also necessary to mention here that Rule 2-A of
Order 12 CPC deals with the situation where notice of
admission as contemplated in Order 12 Rule 2 CPC has been
served but is not denied, then the same shall be deemed to have
been admitted. Similarly, Rule 3-A of the aforesaid Order
grants power to the court to admit any document in evidence,
even if no notice has been served. The aforesaid provisions of
law have been brought in the Code vide amendment by Act No.
104 of 1976 w.e.f. 1-2-1977.
22. Records do not reveal that any such procedure was adopted
either by the appellants or by the trial court to prove the
documents filed by the appellants and mark them as exhibits.
Thus, no advantage thereof could be accrued to the appellants,
even if it is assumed that the said documents have been admitted
by the respondent and were then exhibited and marked.
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25. We are of the firm opinion that mere admission of a
document in evidence does not amount to its proof. In other
words, mere marking of exhibit on a document does not
dispense with its proof, which is required to be done in
accordance with law.
26. As has been mentioned hereinabove, despite perusal of the
record, we have not been able to come to know as to under what
circumstances the respondent-plaintiff had admitted those
documents. Even otherwise, his admission of those documents
cannot carry the case of the appellants any further and much to
the prejudice of the respondent.
31. Under the law of evidence also, it is necessary that contents
of documents are required to be proved either by primary or by
secondary evidence. At the most, admission of documents may
amount to admission of contents but not its truth. Documents
having not been produced and marked as required under the
Evidence Act cannot be relied upon by the court. Contents of
the document cannot be proved by merely filing in a court."
78. The law is well settled that a family arrangement which creates,
declares, assigns, limits or extinguishes any right, title or interest in
immovable property including joint family property is compulsorily
registrable under section 17 of Indian Registration Act, 1908. This Court is
of the considered view that the unregistered deed of partition/family
arrangement (exhibit-16) cannot be relied upon for proving division of
property and is inadmissible for establishing the terms of partition or the
division of property.
79. So far as the judgment relied upon by the learned counsel for the
respondents representing the plaintiffs is concerned, which is reported in
(1997) 2 SCC 552 (Supra), the same does not apply to the facts and
circumstances of this case. In the said case, the inter-parte earlier judgment
declaring the gift deed invalid was held to be binding on the parties even if
erroneous and the parties were estopped from challenging the validity of
gift in the subsequent suit.
80. In the present case, the plaintiff nos. 2 to 5 or their father were not
party in the previous title suit, but they were added as co-appellants at 1st
appellate stage by virtue or order passed by the High Court in civil revision.
Further, the appellate court's judgment in the previous suit did not even
record a finding that half share of the schedule-A property of the case was
allotted to Indulal G. Thakkar in partition/family arrangement. The finding
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was that consideration was paid by Manikant G. Thakkar to the extent of
Rs. 5,000/- from joint family fund who jointly purchased the property with
Hari Narayan Parikh. The point is whether written statement filed in earlier
suit and evidence led therein amounts to admission of partition and
allocation of suit property to exclusive share of Indulal G. Thakkar. This
Court finds that the factum of partition and allocation of exclusive share to
Indulal G. Thakkar with respect to the suit property was not the subject
matter in the previous suit. Rather the subject matter was as to whether
Manikant G. Thakkar had contributed in payment of consideration amount
while jointly purchasing the property with Hari Narayan Parikh so as to
claim half share of the property.
81. As already observed above, the legality, validity and admissibility of
the document relating to family arrangement (Exhibit 16 in this suit /
exhibit-C in the previous suit) was not examined in the earlier title suit
fought between Hari Narayan Parikh and legal heirs and successors of
Manikant G. Thakkar. Admittedly, exhibit 16 is an unregistered document.
82. From perusal of Exhibit 16, this Court finds that the same is full of
cuttings and it is not clear as to who all are signatories to the said document.
The said document does not give clear description of the properties and it
also refers to future division with respect to certain properties. The perusal
of the said document also does not reveal that it was in the form of any
memorandum of partition. Rather, the family arrangement appears to be
allocating certain properties to one or the other member of the family.
83. Further, the materials on record do not reveal that the so-called
family arrangement was followed by separation amongst the family
members leading to exclusive possession of properties including exclusive
possession of the property at schedule B (half share of schedule A property)
by Indulal G Thakkar and then by the plaintiffs after his death . This court
is of the considered view that the document Exhibit 16 being unregistered,
is not admissible in evidence at the first instance and further it suffers from
lacuna as mentioned above. This Court also finds that nothing has been
brought on record to show that Indulal G. Thakkar had ever even acted
pursuant to the so-called family arrangement (Exhibit 16) with respect to
the property involved in the present case, inasmuch as, no mutation was
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ever carried out in his name nor he was put in possession, much less in
exclusive possession of the property involved in this case. The aforesaid
discussion of the oral evidences of the witnesses reveals that it was
Manikant G. Thakkar, who was in possession of the property and after his
death his legal heirs and successors continued to be in possession of the
property and transferred the property to defendant nos. 6 and 7 through
registered sale deed and the purchasers (defendant no. 6 and 7) got their
name mutated in the revenue records. At no point of time Indulal G.
Thakkar came in exclusive possession of the property at schedule B (half
share of schedule A property).
84. The plaintiffs have miserably failed to prove through oral and/or
documentary evidence that Indulal G Thakkar and then plaintiffs were ever
in possession of the property much less, exclusive possession of the
property pursuant to the so-called unregistered family settlement (exhibit-
16). Admittedly the property was standing in the joint name of Manikant
G. Thakkar and Hari Narayan Parikh. It has also come in the cross-
examination of PW-3 that Manikant G. Thakkar was living separately since
beginning and he also had his independent source of income. However, it
was held in the earlier suit at appellate stage that Manikant G. Thakkar had
paid his share of consideration from joint family fund and therefore Hari
Narayan Parikh was only entitled to half share of present schedule A
property.
85. This Court is of the considered view that the point as to whether there
was any partition in the family of Thakkars by virtue of Exhibit-C in the
earlier suit corresponding to Exhibit 16 in the present case, was never in
issue in the earlier suit and the core issue was as to whether Manikant G.
Thakkar had contributed in the purchase of the suit property along with Hari
Narayan Parikh. There is no finding of the 1st appellate court in the appeal
arising out of the earlier suit that there was partition through family
settlement and the property at schedule B (half share of schedule A
property) was exclusively allotted to Indulal G Thakkar.
86. This Court also finds that the family settlement (Exhibit 16) was
never proved by any of the witnesses. Rather, it was simply exhibited and
placed on record. Mere exhibiting the document does not amount to proof
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of the document. This Court also finds that the evidence of Savita M.
Thakkar in the earlier suit was exhibited as exhibit-20 in the present suit,
who in her evidence-in-chief in the earlier suit had supported the family
settlement as Exhibit 16 and allocation of the property at schedule B (half
share of schedule A property) to Indulal G Thakkar and she had also
deposed that she had signed certain blank documents. Her cross-
examination in the earlier suit reveals that she was completely unaware
about the proceedings and the purpose for which the suit was filed. She has
also stated in her cross-examination that some documents were to be filed
before the Income Tax Department. She has stated that her husband,
Manikant G. Thakkar, used to run a canteen in Telco and stated that the
canteen could run for a period of six months after the death of her husband;
she was not even aware about the contents of the so called family
arrangement. Further in her cross-examination in exhibit-20 , she had also
stated that whatever she had deposed before the court was according to the
instructions given by sons of Indulal G. Thakkar.
87. This Court finds that no reliance can be placed on oral evidences led
in the earlier suit by the wife of Manikant G. Thakkar, namely Sabita M.
Thakkar and her son and also on exhibit 16 to hold that there was a
partition through family settlement and the property at schedule B (half
share of schedule A property) was allotted exclusively to Indulal G Thakkar
and the statements and the stand taken by Sabita M. Thakkar and her son in
the earlier suit cannot be used as an estoppel against them to claim
otherwise as the issue of partition and the allocation of exclusive share to
Indulal G Thakkar was neither the subject matter of the earlier suit nor
decided as discussed above.
88. This Court finds that the learned trial court while deciding issue no.
4 has primarily relied upon the Exhibits 20 and 20/1 which were the
evidence of Savita M. Thakkar and her son Jayesh M. Thakkar in the earlier
title suit wherein Jayesh M. Thakkar had stated that the suit property was
purchased from joint family fund and that in the year 1973, there was a
family partition and the property was allocated to Indulal G. Thakkar and
consequently Indulal G Thakkar had half share of the property with Hari
Narayan Parikh. The court has also relied upon the evidence of Savita M.
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Thakkar, who had also supported the factum of partition and allocation of
share to Indulal G. Thakkar in her evidence in the earlier title suit. However,
this court finds that cross-examination of Savita M. Thakkar in the earlier
suit was not considered by the learned trial court while considering her
evidence in the present case.
89. This Court finds that the learned Trial Court relied upon these two
documents i.e. Exhibits 20 and 20/1 to hold that there was a partition and
the property at schedule B (half share of schedule A property) was allocated
to the share of the father of the plaintiff no. 2 to 5, namely, Indulal G
Thakkar. The learned trial court has not examined the legality, validity and
admissibility of the Exhibit 16 nor its legality, validity and admissibility
were examined in the previous suit. This Court finds that the written
statement filed in this case has explained the circumstances under which
the so-called family settlement remained undisputed in the previous suit.
Further, the claim of partition and allocation of half share of the present
schedule A property exclusively to Indulal G. Thakkar was not in issue in
the earlier suit and the core issue was as to whether Manikant G Thakkar
had contributed in purchase of schedule A property and it was held that he
had contributed from the joint family fund. The learned trial court has failed
to consider these aspects of the matter.
90. This court also finds that in the previous suit, there was no such
finding that pursuant to partition, the property was allocated to Indulal G.
Thakkar. Rather, the specific finding was that Manikant G. Thakkar had
purchased the property from joint family fund. This court is also of the
considered view that the claim of partition and allocation of half share of
the present schedule A property exclusively to Indulal G. Thakkar was
neither in issue nor decided in the earlier suit and accordingly the evidences
led in the earlier suit cannot be the basis to hold that the property at schedule
B (half share of schedule A property) was exclusively allotted to Indulal G
Thakkar in family settlement and therefore the defendant no. 1 to 4 had no
right to transfer the property to the defendant no. 6 and 7 . Further the
learned trial court while deciding the issue no. 4 has not at all considered
the other materials placed on record, both oral and documentary which have
been discussed in details as aforesaid.
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91. Considering the aforesaid facts and circumstances, the finding of the
learned trial court that the property involved in this case was subject matter
of partition through family arrangement and was allocated exclusively to
Indulal G. Thakkar and consequently the plaintiffs had exclusive right, title
and interest over the property and accordingly the sale deed executed by the
defendant nos. 1 to 4 in favour of defendant nos. 6 and 7 was null and void,
cannot be sustained in the eyes of law.
92. This Court is of the considered view that the family arrangement and
consequent allocation of the property at schedule B (half share of schedule
A property) exclusively to Indulal G. Thakkar and the possession of Indulal
G. Thakkar and thereafter, the possession of the plaintiffs has not been
proved by oral and documentary evidences placed on record. In such
circumstances, the exclusive right, title, interest and possession of the
plaintiffs with regard to the suit property having not been proved, the sale
deed executed by defendant nos. 1 to 4, who are the legal heirs and
successors of Manikant G. Thakkar, cannot be said to be a transfer without
any right, title, interest and possession. Thus, the point of determination is
answered by holding that the defendant nos. 1 to 4 [legal heirs and
successors of Manikant G. Thakkar] had the right to sell the property at
schedule B (half share of schedule A property) to the defendant nos. 6 and
7 vide registered sale deed no. 687 dated 06.03.2012.
93. Consequently, the registered sale-deed no. 687 dated 06.03.2012
executed by defendant no. 5 (the power of attorney holder of defendant nos.
1 to 4- the legal heirs of late Manikant G. Thakkar) in favour of the
defendant nos. 6 and 7 is held to be valid. The right, title, interest and
possession of the property covered by the registered sale-deed no. 687 dated
06.03.2012 is decided in favour of the appellants (defendant no. 6 and 7).
94. Accordingly, the judgment and decree dated 28.02.2023 (decree
signed on 13.03.2023) passed by learned Civil Judge, Senior Division-I,
Chandil in Title Suit No. 13 of 2014, to the extent it declares the registered
sale-deed no. 687 dated 06.03.2012 as null and void and also directs the
recovery of possession covered by the aforesaid sale deed to the plaintiffs,
is hereby set-aside.
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95. This appeal filed by defendant no. 6 and 7 is allowed in the aforesaid
terms.
96. Office to prepare decree.
97. Pending interlocutory application is closed.
98. Let this judgment be communicated to the learned Court concerned
through 'FAX/email'.
(Anubha Rawat Choudhary, J.)
Pankaj
