Madhya Pradesh High Court
Ghisa Ji vs Kali Bai W/O Onkar Ji on 5 March, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 5 th OF MARCH, 2024
SECOND APPEAL No. 154 of 2015
BETWEEN:-
GHISA JI S/O DHULA JI, AGED ABOUT 65 YEARS,
OCCUPATION: AGRICULTURIST, R/O GRAM PADLA,
TEH. ANJAD (MADHYA PRADESH)
.....APPELLANT
(BY SHRI HARISH JOSHI - ADVOCATE)
AND
1. KALI BAI W/O ONKAR JI D/O DHULA JI, AGED
ABOUT 66 YEARS, OCCUPATION: HOUSEWIFE, R/O
GRAM PADLA, TEHSIL - ANJAD (MADHYA
PRADESH)
2. STATE OF MADHYA RPADESH THROUGH
COLLECTOR , BARWANI, DISTRICT BARWANI
(MADHYA PRADESH)
.....RESPONDENTS
(R.NO.2 BY SMT. VARSHA SINGH THAKUR - GOVT. ADVOCATE)
This appeal coming on for admission this day, th e court passed the
following:
JUDGMENT
The appellant/defendant No.1 is aggrieved by the concurrent finding of
both the Courts below challenging the judgment and decree dated 24/01/2015
passed by II Additional District Judge, Barwani, District Barwani (M.P.) in Civil
Regular Appeal No.28-A/2014, whereby the judgment and decree pronounced
by the Civil Judge Class-I, Anjad, District Barwani (M.P.) has been affirmed, by
which the suit for declaration, partition and mesne profit has allowed.
2. The facts necessary for adjudication of the instant appeal are that
appellant/defendant Ghisaji and the respondent No.1/plaintiff Kali Bai are the
real brother and sister and they are the son and daughter of Dhulaji. Dhulaji has
been died twenty years prior to filing of the civil suit and after the death of
Dhulaji, the land in question was recorded in the name of both the parties. Both
the parties are having joint possession over the suit land and each of them
getting 50-50% crop, but for last one year defendant Ghisaji refused to give any
share to the respondent No.1/plaintiff. Being aggrieved by the same, the plaintiff
Kali Bai has preferred a case for partition before the Tehsildar Anjad, but the
same has been dismissed as it was relating to the title dispute. Thereafter, the
plaintiff has filed a suit before the trial Court for declaration of her 50% share in
the land in question and also seeking mesne profit @ Rs.10,000/- per annum.
3. The appellant/defendant No.1 marked his presence before the trial
Court and denied the plaint allegation by submitting that he is having sole
possession over the suit land since last 35 years and plaintiff was never in
possession of the suit land. Plaintiff is not entitled to get any share in the suit
property. Plaintiff has executed a consent letter dated 31/03/1995 in favour of
the defendant, therefore, the suit deserves to be dismissed.
4. The trial Court proceeded to conclude the suit by pronouncing the
judgment dated 09/12/2023, whereby the suit was decreed in favour of the
respondent No.1/plaintiff and the appellant/defendant No.1 was directed to pay
mesne profit @ Rs.10,000/- per annum since 20/06/2011 till the partition. This
judgment and decree was subjected to a first appeal under Section 96 of CPC,
which was decided vide judgment and decree dated 24/01/2015 by which the
first appellate Court affirmed the judgment and decree passed by the trial Court.
Being aggrieved by the said judgment and decree the appellant/defendant No.1
has preferred this second appeal before this Court.
5. Learned counsel for the appellant contended that the judgments and
decrees passed by both the Courts below are contrary to law and facts. Both
the Courts below have failed to consider the oral as well as documentary
evidence adduced by the appellant. During the pendency of the first appeal,
appellant has filed two applications first under Order XLI Rule 27 of the CPC
and another under Order VI Rule 17 of the CPC, but both the applications have
been rejected by the first appellate Court. Consent letter is filed for the collateral
purpose, therefore, there is no need for registration of the said document and
the said document is admissible in evidence. The suit filed by the plaintiff is also
barred by time. In absence of any relief for possession simply suit for
declaration is not maintainable. Mesne profit cannot be passed on assumption
and presumption when no documentary or oral evidence are on record
regarding the income from the disputed land to the defendant. Thus, in view of
the aforesaid, learned counsel for the appellant submits that the present appeal
deserves to be admitted on the substantial questions of law so proposed by the
appellant.
6. I have gone through the impugned judgments and decrees passed by
both the Courts below and also perused the entire record with due care.
7. Admittedly Dhulaji was the father of the appellant/defendant No.1
Ghisaji and respondent No.1/plaintiff Kali Bai. As per the Kishtbandi Khatoni
(Ex.-P/1) and Khasra (Ex.-P/2) earlier Dhulaji was the owner of the land in
question, therefore, it is quite clear that land in question is the ancestral property
of both the parties i.e. appellant Ghisaji and respondent No.1 Kali Bai. Kali Bai
(PW-1) also stated that her father Dhulaji was the actual owner of the land in
question and after his death the suit property was mutated in their names. Gopal
(PW-2) also corroborated the statement of plaintiff Kali Bai before the trial
Court.
8. Appellant/defendant No.1 Ghisaji categorically admits in para 7 of his
cross-examination that suit land was recorded in the name of his sister Kali Bai
and his name. Earlier the suit land was recorded in their father's name Dhulaji
and after the death of Dhulaji the land was mutated in their names. Although
appellant/defendant No.1 Ghisaji contended that his sister respondent
No.1/plaintiff Kali Bai executed a consent letter (Ex.-D/1) in his favour by
stating that she has relinquished her share in favour of defendant, but consent
letter (Ex.-D/1) is an unregistered document. As per the provisions of
Registration Act, any share in immovable property shall be relinquished only by
the registered documents, therefore, both the Courts below have rightly
considered that the document Ex.-D/1 is not admissible in evidence and on the
basis of Ex.-D/1 relinquishment of respondent is not proved.
9. Apart from that appellant also claimed adverse possession over the
suit land, but in the instant case, it is crystal clear that the suit land was mutated
in the name of both plaintiff Kali Bai and the defendant No.1 Ghisaji and they
are the co-owners of the suit land.
10. Hon'ble the apex Court in the case of Nagabhushanammal (Dead)
by Legal Representatives Vs. C. Chandikeswaralingam reported in (2016)
4 SCC 434 has held as under:-
"Ouster of non-possessing co-owner by the co-owner
in possession, who claims his possession to be
adverse, is a weak defence in a suit for partition of
family property and it is strong if the defendant is
able to establish consistent and open assertion of
denial of title, long and uninterrupted possession
and exercise of right of exclusive ownership openly
and to the knowledge of the other co-owner. In
Vidya Devi, (1995) 4 SCC 496 the Court stated three
necessary elements for establishing the plea of ouster
in the case of co-owner viz. (i) declaration of hostile
animus, (ii) long and uninterrupted possession of the
person pleading ouster, and (iii) exercise of right of
exclusive ownership openly and to the knowledge of
other co-owner."
11. Hon'ble the apex Court in the case of Syed Shah Ghulam Ghouse
Mohiuddin Vs. Syed Shah Ahmed Mohiuddin Kamisul Quadri reported in
(1971) 1 SCC 597 held that "possession of one co- owner is presumed to be
on behalf of all co-owners unless it is established that the possession of the co-
owner is in denial of title of co-owners and the possession is in hostility to co-
owners by exclusion of them. It was further held that there has to be open
denial of title to the parties who are entitled to it by excluding and ousting
them."
12. Therefore, it is a settled position of law that in order to establish
adverse possession of one co-heir as against another it is not enough to show
that one out of them is in sole possession and enjoyment of the profits of the
properties. Ouster of the non-possessing co-heir b y the co-heir in possession,
who claims his possession to be adverse, should be made out. The possession
of one co-heir is considered, in law, as possession of all the co-heirs. When
one co-heir is found to be in possession of the properties it is presumed to be
o n the basis o f jo int title. T h e co-heir i n possession c anno t rend er his
possession adverse to the other co-heir not in possession merely by any secret
hostile animus on his own part in derogation of the other co-heir's title.
13. Appellant/defendant has failed to prove his continuous and
uninterrupted possession over the suit property prior to the institution of civil
suit for the period of more than twelve years as per Section 65 of the Limitation
Act, therefore, plea of adverse possession sought by the appellant has rightly
been dismissed by both the Courts below as there was no evidence available
before the Courts below to establish this plea.
14. The another contention of the appellant is that without any specific
pleading and the specific evidence, both the Courts below have erroneously
held the amount of mesne profit @ Rs.10,000/- per annum. It is noteworthy that
the total land in question are about 04 acres. Appellant/defendant Ghisaji
admitted in his cross-examination that last year he earned Rs.8,000-10,000/-
from the crop of cotton from the suit land. Defendant's witness Maluram (DW-
3) in para 14 of his cross-examination admitted that he is also having 04 acres
agricultural land from which he is taking agriculture produce twice a year worth
of about Rs.72,000-85,000/-, therefore, on the basis of the aforesaid evidence
and also taking note of the fact that land in question is about 04 acres, both the
Courts below have rightly considered the amount of mesne profit of
Rs.10,000/- per annum.
15. The appellant's another contention is that his applications under
Order VI Rule 17 and Order XLI Rule 27 of CPC have been erroneously
dismissed by the first appellate Court. From perusal of the proposed
amendment, it appears that these amendments are not necessary for proper
adjudication of the dispute, therefore, first appellate Court has rightly rejected
the application for amendment in the pleading.
16. For ready reference, Order XLI Rule 27 of CPC provides as under:-
"Production of additional evidence in Appellate Court.
--(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or
documentary, in the Appellate Court. But if --
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which ought to
have been admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge
or could not, after the exercise of due diligence, be
produced by him at the time when the decree appealed
against was passed, or
(b) the appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial
cause, the Appellate Court may allow such evidence or
document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall
record the reason for its admission."
17. In the instant case the appellant did not produce any proper
explanation that why these documents were not produced before the trial Court
in exercise of due diligence. These documents may be available at the stage of
filing of the civil suit before the trial court, but the appellant did not show any
sufficient cause for non filing of these documents at earlier stage. These
documents were filed after a huge delay. There was ample opportunity to
produce these documents before the trial Court, but the same were not filed and
no satisfactory explanation is given for their non production at the earlier stage.
18. This Court is of the considered opinion that application under Order
XLI Rule 27 of CPC does not appears to be bona fide and there is no sufficient
cause for acceptance of these additional evidence, therefore, first appellate
Court has rightly rejected the above application.
19. In view of the aforesaid discussion, this court is of the considered
opinion that the judgments and decrees passed by both the courts below are
based upon due appreciating of oral as well as documentary evidence available
on record. The findings recorded by both the Courts below are concurrent
finding of fact.
20. Learned counsel for appellant has failed to show that how the
findings of fact recorded by both the Courts below are illegal, perverse and
based upon no evidence. Thus, no substantial question of law arises for
consideration in present second appeal.
21. The Hon'ble Apex court in number of cases has held that in exercise
of power under Section 100 of CPC, the Court can interfere with the findings of
fact, only if same is shown to be perverse and based on no evidence.[See:
Union of India Vs. Ibrahim Uddin reported in 2012(8) SCC 148]
22. Accordingly, the present second appeal being sans merit, is hereby
dismissed at motion stage. No order as to cost.
Certified copy as per rules.
(ANIL VERMA)
JUDGE
Tej
