Harchand vs Madhubai
2023 Latest Caselaw 4211 MP

                          1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 17th OF MARCH, 2023
               SECOND APPEAL No. 437 of 2019

BETWEEN:-

HARCHAND S/O CHAMPALAL GAVLI, AGED
ABOUT      51    YEARS,    OCCUPATION:
AGRICULTURIST   R/O VILALGE    DAMAMA
TEHSIL HARSUD (MADHYA PRADESH)
                                               .....APPELLANT
(BY SHRI SARVESH KUMAR JAISWAL - ADVOCATE)

AND

1.    MADHUBAI D/O CHAMPALAL, AGED
      ABOUT 35 YEARS, CASTE GAVLI, R/O
      VILLAGE    DAMDAM   TAH.   HARSUD,
      DISTRICT KHANDWA, AT PRESENT R/O
      VILLAGE MORGHADI, TAHSIL KHIRKIYA,
      DISTRICT HARDA (MADHYA PRADESH)

2.    LEELABAI    D/O   CHAMPALAL     W/O
      LAKHANLAL, AGED ABOUT 59 YEARS,
      OCCUPATION: CASTE GAVLI R/O VILLAGE
      DAMDMA, TAHSIL HARSUD, AT PRESENT
      R/O VILLAGE JAMNIYAKALA, TAHSIL AND
      DISTT KHANDWA (MADHYA PRADESH)

3.    AMARCHAND S/O CHAMPALAL CASTE
      GAVLI, AGED ABOUT 56 YEARS, R/O
      VILLAGE DAMDMA, TEHSIL HARSUD
      DISTRICT KHANDWA (MADHYA PRADESH)

4.    STATE OF MADHYA PRADESH THR.
      COLLECTOR DISTT-KHANDWA (MADHYA
      PRADESH)

5.    GULABBAI W/O JUGALKISHORE CASTE
                                   2


         GURJAR R/O VILLAGE DAMDMA, TEHSIL
         HARSUD DISTRICT KHANDWA (MADHYA
         PRADESH)
                                                         .....RESPONDENTS
   (RESPONDENTS NO.1 AND 2 BY SHRI HEMANT KUMAR CHOUHAN - ADVOCATE)
   (RESPONDENT NO.4 BY MS.SHANTI TIWARI - ADVOCATE)

         This appeal coming on for admission this day, the court passed the
   following:
                                JUDGMENT

1. This second appeal under section 100 CPC has been filed against the judgment and decree dated 20.11.2018 passed by IV Addl. District Judge, Link Court, Harsood, District Khandwa in R.C.A.Case No.116/2017, arising out of judgment and decree dated 26.7.2017 passed by Civil Judge Class I, Harsood, District Khandwa in R.C.S.A.No.100033/2016.

2. The appellants are the defendants who have lost their case before the first appellate court.

3. The undisputed facts are that the plaintiffs no.1 and 2 and defendants no.1 and 2 namely Madhubai, Leelabai, Amarchand and Harchand are the real brothers and sisters being children of Champalal. It is also undisputed fact that the property mentioned in Schedule A to the plaint is the ancestral property of plaintiffs as well as defendants no.1 and 2. Champalal was utilizing the land in dispute during his lifetime and after his death defendants no.1 and 2 started looking after the lands and were in cultivating possession. It was the case of the plaintiffs that earlier defendants no.1 and 2 were giving share in the crop as well as the proceeds of the agricultural profits and were assuring that the

plaintiffs have equal share in the land in dispute and were also assuring that after partitioning the land in dispute equal share will be given to the plaintiffs. It was claimed that the land in dispute has not been partitioned so far. The plaintiffs are residing in their matrimonial houses. However, now defendants no.1 and 2 have refused to give their share in the crop as well as in the proceeds of the agricultural activities and have openly said that now they would not give their share to the plaintiffs. Defendants no.1 and 2 started abusing the plaintiffs and also informed that they have got the names of the plaintiffs deleted from the revenue records. Thereafter, plaintiffs obtained certified copy of the revenue record and found that the Tahsildar by order passed in Case No.13-A/27 has recorded names of defendants no.1 and 2 whereas plaintiffs also have shares in the said land. Accordingly, the suit was filed for declaration of title, permanent injunction and separate possession.

4. The defendant no.1/respondent no.3 admitted the plaint of the plaintiffs/respondents no.1 and 2.

5. The defendant no.2/appellant filed a separate written statement and denied that the plaintiffs are the real sisters of defendant no.1/respondent no.3 and defendant no.2/appellant. In the additional statement it was pleaded that plaintiffs were aware of the fact that the land in dispute is recorded in the name of appellant/defendant no.2 and even then the plaintiffs never asked for partition and separate share and therefore, the suit is barred by time. It was claimed that the lands mentioned in Schedule A is not the ancestral property but it was claimed that it belongs to the exclusive ownership of the appellant. It

was claimed that initially the land in dispute, i.e. old Khasra No.72 area 13.87 acres was jointly recorded in the name of appellant and defendant no.1 and after partition both the brothers got equal shares, i.e. 2.79 hectares each. The partition was in the knowledge of the plaintiffs. However, the defendant no.1 was alcoholic person and accordingly, he has alienated his entire share and is on the verge of starvation whereas defendant no.2/appellant has protected his land and has improved the condition and accordingly the defendant no.1 in connivance with his sisters has got the suit filed on false grounds.

6. Thus, it is clear that in the earlier part of the written statement the defendant no.2/appellant had denied his relationship with the plaintiffs but in the later part of the written statement it is stated that the plaintiffs are his sisters.

7. The trial court after framing issues and recording the evidence dismissed the suit.

8. Being aggrieved by the judgment passed by the trial court, the plaintiffs/respondents no.1 and 2 preferred an appeal, which has been decreed by the impugned judgment and decree and it is held that the plaintiffs/respondents no.1 and 2, defendant no.1/respondent no.3 and defendant no.2/appellant have 1/4th share each in Khasra No.215/2 area 0.11 hectares, Khasra No.158/2 area 2.68 hectares, Khasra No.158/1 area 0.03 hectares, Khasra No.215/1 area 0.11 hectares and Khasra No.158/3 area 2.66 hectares, total area 5.59 hectares. It was also held that plaintiffs are entitled to get vacant possession of their 1/4th share after partition. It was also held that the plaintiffs are entitled for additional 0.665 hectares each from the share of defendant

no.1/respondent no.3 and decree for permanent injunction has been issued.

9. Challenging the judgment and decree passed by the court below it is submitted by counsel for the appellant that the plaintiffs have failed to prove that they were the legal representatives of Champalal and were entitled for their share under section 8 of the Hindu Succession Act and the suit was rightly dismissed by the trial court as the same is barred by limitation and proposed the following substantial questions of law :-

i) Whether the lower appellate court rightly and justifiedly reversed the judgment and decree dated 26.07.2017 of the trial court based well reasoned finding ?

ii) Whether the lower appellate court is legally correct in decreeing the suit of plaintiffs even without establish their successive right and title in the suit property under Section 8 of Hindu Succession Act and which possessed which possessed by appellant since lifetime of his father ?

iii) Whether the suit filed by plaintiffs rightly decreed by lower appellate court being suffers from provision of Section 110 of Limitation Act 1963?

iv) Whether lower appellate court is right in decreeing the claim of plaintiff who already excluded from her right and title by appellant being having continue possession over the suit property and acquired title by adverse possession against plaintiffs ?

v) Whether the claim of plaintiffs seeking decree of declaration partition and possession in respect of suit property is under barred provision of Article 110 of Limitation Act being not filing appropriate suit within time as prescribed under the law ?

10. Considered the submissions made by counsel for the appellant.

11. It is well established principle of law that the finding of fact recorded by the First Appellate Court is not to be interfered under Section 100 of CPC unless and until the same is found to be perverse or contrary to the record.

12. The Supreme Court in the case of Christopher Barla Vs. Basudev Naik (Dead) by LRs. reported in (2005) 9 SCC 207 has held as under:-

"5. Learned counsel appearing on behalf of the appellant submitted that the High Court itself noticed the fact that the onus had been wrongly placed on the plaintiff to prove his title, and that the appellate court did not even look into the evidence led by the defendant. The submission is that since both the parties had led evidence on the question as to whether in the oral partition of the year 1941 the plot in question fell to the share of Kunu or Benudhar, the appellate court ought to have looked into the evidence adduced by both the parties and it was not justified in merely examining the evidence produced by the plaintiff and not the evidence adduced by the defendant. Having noticed this fact the High Court initially thought that the matter may have to be remanded, but on further consideration the High Court wanted to be satisfied as to whether there was any evidence adduced by the defendant, which if accepted, would have supported the

case of the plaintiff. The High Court, therefore, called upon the counsel for the appellant to point out any particular evidence adduced by the defendant which would necessitate the disturbance of the finding of fact recorded by the appellate court. The High Court has further noticed the insistence of the counsel for the appellant to consider the reasoning given by the appellate court while rejecting the evidence led on behalf of the plaintiff. However, the High Court was of the view that in second appeal it was not permissible for the High Court to do so, unless the case fell within one of those categories of cases where the High Court may be justified in looking at the evidence afresh. The mere fact that on appreciation of the evidence the appellate court came to record a finding from which it may be possible to differ, was not a sufficient ground for interfering in second appeal."

13. The Supreme Court in the case of Dinesh Kumar Vs. Yusuf Ali reported in (2010) 12 SCC 740 has held as under:-

"13. A second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. The High Court should not entertain a second appeal unless it raises a substantial question of law. It is the obligation on the court of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same.

14. In Ram Prasad Rajak v. Nand Kumar & Bros. [(1998) 6 SCC 748 : AIR 1998 SC 2730], this Court held that existence of the substantial question of law is a sine qua non for the exercise of jurisdiction under Section 100 of the Code and entering into the question as to whether the need of the landlord was bona fide or not, was beyond the jurisdiction of the High Court as the issue can be decided only by appreciating the evidence on record.

15. There may be a question, which may be a "question of fact", "question of law", "mixed question of fact and law"

and "substantial question of law". Question means anything inquired; an issue to be decided. The "question of fact" is whether a particular factual situation exists or not. A question of fact, in the realm of jurisprudence, has been explained as under:

"A question of fact is one capable of being answered by way of demonstration--a question of opinion is one that cannot be so answered. The answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong." (Vide Salmond on Jurisprudence, 12th Edn., p. 69, cited in Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [(1994) 1 SCC 682], at SCC p. 705, para 34.)

16. In RBI v. Ramakrishna Govind Morey [(1976) 1 SCC 803 : AIR 1976 SC 830] this Court held that whether the trial court should not have exercised its jurisdiction differently, is not a question of law or a substantial question of law and, therefore, the second appeal cannot be entertained by the High Court on this ground.

18. In Sheel Chand v. Prakash Chand [(1998) 6 SCC 683 : AIR 1998 SC 3063], this Court held that question of reappreciation of evidence and framing the substantial question as to whether the findings relating to the factual matrix by the court below could vitiate due to irrelevant consideration and not under law, being question of fact cannot be framed.

19. In Rajappa Hanamantha Ranoji v. Mahadev Channabasappa [(2000) 6 SCC 120] this Court held that it is not permissible for the High Court to decide the second appeal by reappreciating the evidence as if it was deciding the first appeal unless it comes to the conclusion that the findings recorded by the court below were perverse.

20. In Jai Singh v. Shakuntala [(2002) 3 SCC 634 : AIR 2002 SC 1428] this Court held that it is permissible to interfere even on question of fact but it has to be done

only in exceptional circumstances. The Court observed as under: (SCC pp. 637-38, para 6) "6. ... While scrutiny of evidence does not stand out to be totally prohibited in the matter of exercise of jurisdiction in the second appeal and that would in our view be too broad a proposition and too rigid an interpretation of law not worthy of acceptance but that does not also clothe the superior courts within jurisdiction to intervene and interfere in any and every matter--it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible--it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection."

21. In P. Chandrasekharan v. S. Kanakarajan [(2007) 5 SCC 669] this Court reiterated the principle that interference in the second appeal is permissible only when the findings are based on misreading of evidence or are so perverse that no person of ordinary prudence could take the said view. More so, the Court must be conscious that intervention is permissible provided the case involves a substantial question of law which is altogether different from the question of law. Interpretation of a document which goes to the root of title of a party may give rise to a substantial question of law.

24. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non- consideration of relevant evidence or by showing erroneous approach to the matter. [Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604], Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353], Satya Gupta v. Brijesh Kumar [(1998) 6 SCC 423], Ragavendra Kumar v. Prem Machinery & Co. [(2000) 1 SCC 679 : AIR 2000 SC 534] and Molar

Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC 285] ]

25. Thus, the law on the subject emerges to the effect that second appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the findings of fact recorded by the courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to reappreciate the evidence. The landlord is the best judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent."

14. The Supreme Court in the case of S.R. Srinivasa and Others Vs. S. Padmavathamma reported in (2010) 5 SCC 274 has held that the High Court must exercise its power with proper care and caution by thoroughly examining the evidence led by the parties, especially when it was not in agreement with the reasons recorded by the First Appellate Court.

15. If the facts of the present case are considered then it is clear that defendant no.2/appellant has admitted that plaintiffs are his sisters being daughter of Champalal. As already held, in earlier part of the written statement, the appellant had denied his relationship with the plaintiffs but in the written statement it was admitted that the defendants no.1 and 2 are real brothers and in para 14 of his written statement he claimed that since defendant no.1 had already alienated his part of share and is on the verge of starvation, therefore, he has instigated his sisters to file the present suit on false grounds. If para 14 of the written statement is considered in its letter and spirit then it is

clear that since the defendant no.2 has admitted that the defendant no.1 is his real brother, then the averments made in para 14 that the defendant no.1 has got the suit instituted by instigating his sisters would clearly mean that the plaintiffs are the real sisters of defendant no.2/appellant. The property belonged to Champalal is not in dispute. It is also undisputed that no share was given to the plaintiffs from the property of Champalal. It is the case of the appellant that the property of Champalal was mutually partitioned between defendants no.1 and 2. Both the courts below have come to a conclusion that Champalal had purchased the property in dispute by registered sale-deed dated 24.3.1962 and thus it was held by the trial court that the property was purchased by Champalal after coming into force of Hindu Succession Act, 1956 and it was held that since Champalal had died intestate, therefore, it is clear that the plaintiffs as well as defendants no.1 and 2 are the class I heir of Champalal as per section 8 of the Hindu Succession Act. However, the claim of the plaintiffs was denied by the trial court on the ground that the plaintiffs were ousted by the defendants no.1 and 2 and the suit should have been filed within 12 years from the date of ouster as per provision of Article 110 of Schedule I of the Limitation Act. It was further held that the plaintiffs have impleaded Gulabbai to whom 2.68 hectares of land was alienated by defendant no.1 but since no relief has been claimed for cancellation of the said sale-deed, therefore, it has to be presumed that the plaintiffs were aware of the execution of the said sale-deed and, therefore, they should have sought relief for consideration of the sale-deed. Accordingly it was held that the suit was filed beyond the period of

limitation and they have also failed to prove their 1/4th share in the property in dispute.

16. Thus, one thing is clear that the plaintiffs are the legal representatives of Champalal being his daughters has been concurrently held by both the courts below.

17. Now the only question for consideration is as to whether the plaintiffs were ousted by defendants no.1 and 2 or not ?

18. Once, it is held by the courts below that the plaintiffs are the real sisters of defendants no.1 and 2 and are the legal representatives of Champalal, then it is clear that they have equal share in the property in dispute. It is also well established principle of law that each and every co-sharer has to be treated to be in joint possession unless and until he is ousted from the property in dispute.

19. The Supreme Court in the case of Jai Singh and others Vs. Gurmej Singh, reported in (2009)15 SCC 747 has held as under :-

"9. It is to be noted that in the subsequent Full Bench judgment in Bhartu case [1981 PLJ 204], the earlier decision in Lachhman Singh case [AIR 1970 P&H 304] was distinguished on facts. The principles relating to the inter se rights and liabilities of co-sharers are as follows: (1) A co-owner has an interest in the whole property and also in every parcel of it.

(2) Possession of joint property by one co-owner is in the eye of the law, possession of all even if all but one are actually out of possession.

(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the

presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies, that of the other.

(5) Passage of time does not extinguish the right of the co- owner who has been out of possession of the joint property except in the event of ouster or abandonment. (6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.

(7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to anybody to disturb the arrangement without the consent of others except by filing a suit for partition".

20. The Supreme Court in the case of Sakhahari Parwatrao Karahale vs. Bhimashankar Parwatrao Karahale, reported in (2002)9 SCC 608 has held as under :-

3. Having given our consideration to the submissions raised by the learned counsel for the parties, we find, the High Court committed error in allowing the second appeal by setting aside the concurrent findings recorded by both the courts below. The High Court held, even in the absence of any partition, there was family arrangement under which the plaintiff came in possession of the suit property. This finding of family arrangement is a new case taken by the High Court. Apart from partition, we do not find any pleading by the plaintiff of such a family arrangement. Not only there is no pleading, but no issues, no adjudication by any of the two courts below. How can such a finding then be sustained? In the absence of this, once a finding is recorded there was no partition between the members of the joint family, each member of the joint family is co-sharer and possession of one is the possession of all. Even if there be exclusive possession of the plaintiff-respondent before

partition, it would be possession on behalf of all. Thus it cannot disentitle the defendant-appellant's claim against the suit property. In view of this it is inconceivable that injunction could be granted against another co-sharer of the joint Hindu property as has been done in the present case. Thus the findings recorded by the High Court, as aforesaid, are unsustainable in law. We quash the impugned order of the High Court and confirm the findings recorded by both the courts below. Accordingly, the present appeal is allowed with costs.

21. Thus, it is clear that each member of joint family is co-sharer and possession of one of the co-sharer is the possession of all. Even if there be an exclusive possession of one of the party before partition, it would be possession on behalf of all. Thus, it is clear that the plaintiffs are to be treated in joint possession of the land in dispute irrespective of the fact as to whether they were in exclusive possession or not.

22. Now, the only question for consideration is as to whether they were ousted from the land in dispute or not.

23. It is the case of the plaintiff that earlier defendants no.1 and 2 were given their share in the crops as well as the proceeds of the agricultural activities. Thus, it is clear that the plaintiffs were never ousted from the joint property. It is the claim of the plaintiffs that only when the defendants stopped giving their share in the property and started asserting that their names are recorded in the revenue records, therefore, plaintiffs have no right or title, then they obtained certified copies of the revenue records and filed the civil suit. Thus, it is clear that suit was filed within a period of 12 years from the date of knowledge. Section 17 of the Limitation Act provides that the period

of limitation would not start to run unless and until plaintiffs/applicants have discovered fraud with reasonable diligence.

24. If the facts of the present case are considered it is clear that since plaintiffs are residing in their matrimonial houses and defendants no.1 and 2 were in cultivating possession of the land and since they were giving their share to the plaintiffs, therefore, there was no reason for the plaintiffs to have a doubt on the honesty of defendants no.1 and 2. Further more, counsel for the appellant could not point out any document to show that plaintiffs were aware of the mutation of names of defendants no.1 and 2. No proceedings of revenue authority have been filed to show that the plaintiffs were ever heard before mutation. If the mutation was got done in a clandestine manner behind the back of the plaintiffs then the said mutation cannot be considered as an ouster.

25. No other argument is advanced by counsel for the appellant.

26. As no substantial question of law as proposed by the appellant arises in the present appeal, therefore, the judgment and decree dated 20.11.2018 passed by IV Addl. District Judge, Link Court, Harsood, District Khandwa is hereby affirmed.

27.The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

HEMANT SARAF 2023.03.21 13:56:54 +05'30'

HS