Chatara vs Lachhua (Dead) Thr. Lrs. ...
2023 Latest Caselaw 13658 MP

IN THE HIGH COURT OF MADHYA PRADESH
                 AT JABALPUR
                     BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
         SECOND APPEAL no. 851 OF 1997
BETWEEN:-

CHATRA (DEAD) THROUGH L.RS.:-

a) GAJRAJ SINGH, AGED 58 YEARS,

b) RAM PRASAD, AGED 45 YEARS,

c) LAKHANLAL, AGED 38 YEARS,

ALL SONS OF LATE CHATRU R/O GRAM BOORI,
TAHSIL AND DISTRICT TIKAMGARH (M.P.)

d) SMT. BENIBAI, W/O SHRI JHALLORAM, AGED
  62 YEARS,     RESIDENT OF GANDHI GRAM
  MATARA, TAHSIL JATARA, DISTRICT
  TIKAMGARH

e) SMT. MIDDU W/O SHRI SUNDERLAL, AGED 55
   YEARS, R/O GRAM GOOMCHI, TAHSIL
   MAHRONI, DISTRICT LALITPUR (U.P.)

f) MAHILA HALLI BAI, W/O LATE KAPOORLAL,
   AGED 50 YEARS, R/O GRAM BOORI,
   TAHSIL AND TIKAMGARH.

g) SMT. JAMNA BAI, W/O HANNU AHIRWAR,
  AGED 40 YEARS, R/O BHAGAT NAGAR
   COLONY, TIKAMGARH.

h) MAHILA VIMLA D/O LATE CHHUNNILAL
   @ CHAUNG, AGED 35 YEARS, R/O RAVIDAS
   COLONY, JINSHI, JAHANGIRABAD, BHOPAL

                                            .....APPELLANTS
(BY SHRI RAVISH AGRAWAL - SENIOR ADVOCATE ASSISTED BY
SHRI SAKET MALIK - ADVOCATE)
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      AND

      1.    LACHHUA, AGED 60 YEARS, SON OF
             DHUMAN CHAMAR, (SINCE DEAD)
             THROUGH HIS L.RS.:-

            (a) PARMANAND,           AGED    S/O   LATE
            LACHHUA

            (b) SMT. RADHIYA D/O LATE LACHHUA,

            (d) CHIPPU D/O LATE LACHHUA

            ALL R/O VILLAGE BORI, TAHSIL AND
            DISTRICT TIKAMGARH,
            RESPONDENTS 1(b) AT PRESENT AT
            ANANTPURA AND RESPONDENT 1(c) AT
            LITHORA, DISTRICT TIKAMGARH

      2.    POTA, AGED 45 YEARS, SON OF HARDAS
            CHAMAR, CULTIVATOR AND RESIDENT
            OF VILLAGE BORI, TAHSIL AND
            DISTRICT TIKAMGARH (M.P.)

      3.    STATE OF M.P. THROUGH COLLECTOR,
            TIKAMGARH.

                                                      ....RESPONDENTS

      (BY SHRI VINEET KUMAR PANDEY - ADVOCATE )
      ...............................................................................................
            Reserved on :  09.08.2023
            Pronounced on :     22.08.2023

       This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the Court pronounced the following:

                              JUDGMENT

This second appeal has been preferred by the appellants/defendants challenging the judgment and decree dated 05.08.1997 passed 1 st Additional Judge to the Court of District Judge, Tikamgarh in civil appeal

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no.12-A/1988, affirming the judgment and decree dated 08.08.1983 passed by 2nd Additional Civil Judge Class-II, Tikamgarh in civil suit no.03-A/83, whereby learned trial Court decreed the plaintiffs' suit for declaration of title and restoration of possession in respect of 1/4 share in the suit land.

2. In short the facts are that the plaintiffs (Lachhua and Pota) instituted a suit on 15.03.1982 for declaration, partition and separate possession with the allegations that the plaintiffs and defendant have a Hindu mitakshara family. Ramsingh was their grand father, who was survived by three sons namely Nandu, Dhuman and Palu, who all three have died. Nandu and his wife Mahila Barethi Bai have died 40 years ago. Dhuman has left plaintiff 1-Lachhua and grandson Pota s/o late Hardas. Palu has left one son Chatra-defendant and another son Punni is missing and has not been heard for last 20 years.

3. It is alleged in the plaint that the suit lands were held by Nandu and Palu having 1/2-1/2 share each. Upon death of Nandu, his widow Mahila Barethi Bai succeeded to the estate of Nandu and upon death of Mahila Barethi Bai, her half interest was inherited by the plaintiffs and the defendant i.e. each getting half and half i.e. one-fourth share. It is alleged that there has been no partition between parties and the parties have been in joint possession but in December' 1981 defendant claimed exclusive possession and in consequence the plaintiffs claimed declaration of their title, partition and separate possession.

4. The defendant (Chatra) appeared and filed written statement and denied that the plaintiffs and defendant have a Hindu mitakshara family and contended that Dhuman is not son of Ramsingh. Denying relationship

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of plaintiffs with Mahila Barethi Bai it is contended that she was real aunt of defendant and suit land was joint land of Mahila Barethi Bai and defendant's father Palu. Mahila Barethi Bai died 40 years ago in joint family and defendant is in exclusive possession of the land for last 40 years. The suit land is the property of joint Hindu family of Mahila Barethi Bai and defendant, over which the defendant being in exclusive possession, has acquired title by adverse possession. The defendant has in the knowledge of plaintiffs, spent an amount of Rs.10,000/- in making improvement of the land by raising construction of a well, pond and in installation of electric pump and in the year 1950 name of the defendant was mutated in the knowledge of plaintiffs, as such the suit is barred by principle of res judicata and estoppel and is also barred by limitation.

5. On the basis of pleadings of the parties, learned trial Court framed as many as 10 issues and recorded evidence of the parties. The plaintiffs in support of their case examined Lachhua (PW-1), Jhutu (PW-2), Bandi (PW-3) and also produced documents (Ex.P/1 to P/7). The defendant also examined Chatra (DW-1), Kalu (DW-2), Ramsai (DW-3) and also produced documents (Ex.D/1 to D/8).

6. After hearing arguments, learned trial Court upon due consideration of the material available on record, vide judgment and decree dtd. 08.08.1983 decreed the suit holding the plaintiffs to be entitled for 1/4 share in the suit lands. Upon filing civil appeal learned first appellate Court dismissed the appeal and affirmed the judgment and decree of trial Court vide its judgment and decree dated 05.08.1997. Following genealogical tree has been found proved by learned Courts :

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                                 Ram Singh
                                        /
Nandu                  Dhuman                         Palu                  Ganesh
     /                       /                             /       (diedinchildhood)
Barethibai        Lachhua Hardas                  Chatra        Punni
                                  /                            (missing)
                                 Pota

7. Against the judgment and decree passed by learned Courts below, the defendant-Chatra (now LRs) preferred second appeal, which came in hearing on 08.04.1999 and was admitted for final hearing on the following substantial questions of law:-

"(1) (A) Whether in view of the admitted fact that the suit-property did not belong to Duman and his sons Lachhua and Hardas, the respondents/plaintiffs can claim any share in the suit property after death of Barethibai, the wife of Nandu ?

(B) Whether the appellant alone is entitled to the suit property being the sole surviving person to hold the property left by Nandu and Palu ? (2) Whether the appellant can claim exclusive right and title to the suit land on the basis of entries of his name in the revenue records from 17.02.1950 onwards ?"

8. Learned Senior counsel for the appellants/defendants submits that property in question was coparcenary property of Nandu and Palu having equal ½ share. Upon death of Nandu (40 years ago), Palu being sole surviving coparcener in the family, became owner of the property, although the property came to be recorded in the name of Nandu's wife Mahila Barethi Bai, which has no adverse effect. He submits that Mahila Barethi Bai also died 40 years ago, therefore, she would not get any right in the property because the Hindu Women's Rights to Property Act, 1937

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became effective in the Tikamgarh district w.e.f. 16.04.1950 and in such circumstances, old Hindu law would apply to the case in hand and as per devolution of property according to Banaras school of Mitakshara law, the property in question would go to Palu and after death of Palu only the defendant Chatara would get the property. However, the learned Counsel did not press the plea of adverse possession. In support of his submissions, learned Senior counsel placed reliance on the decision of Supreme Court in the case of Satrughan Isser vs. Sabujpari and others AIR 1967 SC 272, Vineeta Sharma vs. Rakesh Sharma and others (2020) 9 SCC 1 and the judgment dtd. 18.02.2013 in Second Appeal no. 291/1995 given by High Court of Bombay, Nagpur Bench in the case of Bhagirathibai and another vs. Tanabai and others and of this Court in the case of Bhagwan Kunwar w/o Devi Singh Thakur vs. Nanhidulaiya wd/o Nanhe Raja 1979 M.P.L.J. 433.

9. Learned counsel appearing for the respondents/plaintiffs supports the judgment and decree passed by learned Courts below and prays for dismissal of the second appeal with the contentions that the questions which are being raised before this Court were not raised before the Courts below. He submits that the defendant did not even accept Dhuman to be brother of Nandu and there is no material available on record to show the period of death of Dhuman, therefore, it cannot be said that after death of Nandu the property would devolve upon Palu only. He further submits that even if the case argued by the learned Senior counsel, is accepted, the plaintiffs being legal representatives of Mahila Barethi Bai's husband (Nandu), would succeed the property having equal share. He also submits that by taking plea of adverse possession, the defendant in fact has

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admitted title of the plaintiffs and as the defendant has failed to prove plea of adverse possession, the plaintiffs' suit has rightly been decreed by learned Courts below.

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

11. Both the courts below have recorded following concurrent findings:

i) The plaintiffs and defendant are members of joint Hindu family and no partition has taken place. (para 5 & 8 of trial Court)

ii) The defendant has not come to the Court with clean hands and has taken false plea that Ramsingh had only three sons and that Dhuman was not son of Ramsingh.

iii) The parties being co-owners, the defendant cannot claim adverse possession and on evidence he has failed to prove perfection of title by adverse possession. (para 7 & 9 of trial Court)

iv) The plaintiffs are in possession of the suit land and are entitled for separate possession over ¼ share of the land.

Substantial question of law no. 1(A) & (B):

12. The plaintiffs have come with the case that they are son and grand son of Dhuman, who was brother of Nandu, therefore, after death of Nandu and his wife Mahila Barethi Bai, they are entitled for 1/2 share in the property left by Nandu and Mahila Barethi Bai.

13. As against claim of the plaintiffs, the defendant took plea that Nandu and Palu were members of Hindu joint family and were so recorded in the revenue papers. Upon death of Nandu, Palu survived to the estate left behind by him and upon death of Nandu's wife Mahila Barethi Bai also, her estate was survived by Palu and his name was also

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recorded in the revenue papers vide order dated 17.02.1950. Accordingly, Palu and after his death the defendant-Chatra is in possession under his own rights being sole surviving coparcener and in any case, he being in continuous and exclusive possession has acquired title by adverse possession. The defendant has also specifically denied Dhuman to be son of Ram Singh.

14. In paragraph 3 of the plaint the plaintiffs have pleaded that Nandu was bhumiswami and in possession over ½ share of the lands and remaining ½ share was held by Palu. On this basis learned senior counsel argued that Nandu & Palu were coparceners and after death of Nandu his ½ share would go to Palu and mere entry of the name of Mahila Barethi Bai would not confer any right on her and after her death prior to year 1942 only sole surviving coparcener Palu would get the property left by Mahila Barethi Bai and after death of Palu the property came in the ownership of defendant-Chatra in which the plaintiffs have no right.

15. Legal history says that the area covered by Tikamgarh district was part of the Princely State of Orchha till its merger with the Indian Union. After merger, it became one of the eight districts of Vindhya Pradesh state in 1948. The administration of the State of Vindhya Pradesh region was handed over to the Government of India from 1 st January, 1950. Following the reorganization of states on 1 November, 1956 it became a district of the newly carved Madhya Pradesh..

16. The Hindu Women's Rights to Property Act, 1937 which was enacted by the Central Legislature under the Government of India Act, 1935 did not originally extend to Vindhya Pradesh. The parliament by the Part C State Laws Act, 1950, extended to the State of Vindhya Pradesh a

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number of Laws. By this Act, the Hindu Women's Rights to Property Act, 1937 was extended to Vindhya Pradesh from 16 th April 1950. As such it can be concluded that if a person belonging to Tikamgarh region, dies intestate prior to year 1942, the principles of Banaras sub-school of Mitakshara Law shall be applicable

17. In view of the aforesaid factual and legal position it is clear that in the present case devolution of property would be done according to Mitakshara law, as such if the suit property is considered to be the property of Nandu then at the relevant point of time it would go to his brothers namely Dhuman (now plaintiffs) and Palu (now defendant(s) or if the suit property is considered to be the property of Mahila Barethi Bai then also it would go to Dhuman and Palu, they being legal heirs of her husband Nandu.

18. It is pertinent to mention here that according to the pleadings of the parties, tentative period of death of Nandu and his wife Mahila Barethi Bai comes to 40 years ago from filing year of suit viz. 1983 but period of death of Dhuman and Palu is not available on record.

19. In the present case there is concurrent finding of fact by learned Courts below to the effect that the plaintiffs and defendant are members of joint Hindu family and no partition has taken place amongst them. This finding being a pure finding of fact is neither assailable in the limited scope of second appeal nor any substantial question of law has been framed in that regard.

20. True it is that the suit property did not belong to Dhuman and his sons Lachhua and Hardas, but Dhuman being real brother of Nandu and Lachhua and Hardas being sons of Dhuman, they have rightly been held

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to be entitled for ¼ share in the suit property after death of Mahila Barethi Bai and appellant(s)/defendant alone is not entitled to the suit property. Accordingly the substantial question of law no. 1(A) & (B) are decided against the appellant(s).

Substantial question of law no.2:

21. Learned Courts below have concurrently held that the appellants/defendants have not come to the Court with clean hands. Firstly, the defendant denied relationship of Nandu with Dhuman, who on the basis of admissions of defendant, has been found brother of Nandu and son of Ramsingh. Secondly, the defendant has taken plea of adverse possession, in proving of which the defendant has completely been failed. Moreover, learned Courts below have also found that the plaintiffs are in possession of the property according to their share. It is well settled that the finding of possession concurrently recorded by learned two Courts, is a pure finding of fact and is not assailable in the limited scope of section 100 CPC, however no substantial question of law has been framed in regard to the perversity.

22. Further, it is well settled that mere entry of name in the revenue records does not confer any right on a person, nor it extinguishes rights of others. As such there is no question of claiming exclusive right and title to the suit land by the appellant(s) on the basis of entry of his name in the revenue records. In this way, the substantial question of law no. 2 is also decided against the appellant(s).

23. In the light of aforesaid findings recorded by learned Courts below, the decisions cited by learned Senior Counsel do not give any assistance to the appellants.

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24. Resultantly, declining interference in the judgment and decree passed by learned Courts below, second appeal fails and is hereby dismissed. However, no order as to costs.

25. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE pb

Digitally signed by PRASHANT BAGJILEWALE Date: 2023.08.23 18:12:13 +05'30'