Rajasthan High Court - Jodhpur

Champalal vs Chandra Devi on 16 March, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 207/2018

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For Appellant(s) : Mr. O.P.Boob.

Mr. Bharat Boob.

For Respondent(s)            :     Mr. Moti Singh.



             HON'BLE MR. JUSTICE ARUN BHANSALI

                                    Judgment

16/03/2021

This second appeal under Section100 CPC is directed against

the judgment & decree dated 14/9/2018 passed by the Addl.

District Judge, Jodhpur (District) (first appellate court), whereby,

the appeal filed by the appellant against the judgment & decree

dated 14/12/2011 passed by the Civil Judge (Sr. Div.) Jodhpur

(2 of 8) [CSA-207/2018]

(District) (trial court), whereby, the suit filed by the appellant-

plaintiff for cancellation of sale deed and permanent injunction

was rejected, has been dismissed.

The suit for cancellation of sale deed dated 18/12/1998 was

filed by the plaintiffs on 13/7/1999 inter alia with the submissions

that land comprised in khasra no. 620 ad measuring 56 bigha 10

biswa and khasra no. 576 ad measuring 79 bigha 18 biswa at

village Kanodiya Purohitan belonged to Simartha, grandfather of

plaintiff nos. 1 to 5. Simartha expired in Samvat Year 2014 and

his only heir was his son Gena Ram. After the death of Simartha,

the land remained in possession and cultivation of Gena Ram

alone and after the death of Gena Ram, five sons of Gena Ram &

Asu Ram came in possession. After the death of Asu Ram, plaintiff

no.6, his wife along with plaintiffs are in cultivator possession. It

was averred that defendant no. 2 - Bhanwara Ram's mother, Rupi

Devi, was wife of Ramu Ram and Ramu Ram along with his father

Anada Ram shifted to Jodhpur and died at a young age. After the

death of Ramu Ram, Rupi Devi started living with Dula Ram Jat

and is presently residing in his house at Jodhpur. Rupi Devi and

Dula Ram live like husband and wife and from their cohabitation,

defendant no.2 Bhanwara Ram was born and as such he is son of

Dula Ram, however, as Dula Ram was in Government service, he

got name of Ramu Ram indicated as father of Bhanwara Ram.

It was further averred that Bhanwara Ram, his mother and

Rupa Ram never stayed at village Kanodiya Purohitan, he was not

heir of Simartha and never cultivated the land, however in

collusion with the employees of Revenue department and

Sarpanch, after the death of Simartha, through mutation no. 149

(3 of 8) [CSA-207/2018]

in the revenue record, along with Gena Ram as legal

representative of Simartha, name of defendant no.2 - Bhanwara

Ram was also got entered.

It was further averred that defendant no.2 had no share in

khasra no. 620, however, taking advantage of incorrect revenue

entry, on 18/12/1998 by wrongly indicating his half share in the

land, the same was transferred and defendant no. 1, based on the

incorrect sale, got her name entered in the revenue record. It is

claimed that when husband of defendant no.1 claimed possession,

the said aspect came to light. It was further indicated that the

plaintiffs had filed the suit before the Addl. Collector for

declaration of khatedari rights and for correction of entries, which

is pending. It was alleged that as the sale deed was executed

without there being any share, and a specific portion of joint land

was transferred, the sale was illegal and deserves to be set aside.

It was also indicated that the mutation without possession

could not have been accepted and, therefore, the sale deed

deserves to be quashed and set aside and injunction be issued

against the defendants not to interfere in their possession.

Written statement was filed by Bhanwara Ram contesting the

averments made in the plaint. It was indicated that Simartha had

three sons, Lalu Ram, who died issue less, Ramu Ram, father of

Bhanwara Ram and Gena Ram, father of plaintiff nos. 1 to 5. The

averments made in the plaint seeking to allege that defendant

no.2 is son of Dula Ram were denied. It was claimed that being

son of Ramu Ram, defendant no.2 had half share in the property

and that no specific portion has been transferred and, therefore,

the suit was liable to be dismissed.

(4 of 8) [CSA-207/2018]

Replication was filed reiterating the submissions made in the

plaint.

The trial court framed 08 issues. On behalf of the plaintiffs,

five witnesses were produced and four documents were exhibited.

On behalf of defendants, six witnesses were examined and 24

documents were exhibited.

After hearing the parties, the trial court came to the

conclusion that the plaintiffs have failed to prove that they were

the only khatedars of the land in question, that Bhanwara Ram

was not son of Ramu Ram s/o Simartha and, therefore, he had

share and right in the agricultural land and on account of death of

Simartha, the same was rightly recorded in the name of defendant

no. 2 also. Issue no. 2 pertaining to transfer without right was also

decided in favour of defendants. Issue no. 3 pertaining to

mutation being incorrect was decided against the plaintiffs. On

issue no. 4, it was indicated that co-tenant can transfer his

undivided share, in the present case as the suit for partition filed

by the defendant has already been decreed on 16/5/2008 and as

no specific portion of land has been transferred, the issue had no

substance. The objection raised by the defendants pertaining to

court fees & jurisdiction of the court were decided against them

and ultimately the suit was dismissed.

Feeling aggrieved, first appeal was filed. The first appellate

court after hearing the parties, reiterated the findings recorded by

the trial court and dismissed the first appeal.

Learned counsel for the appellants made submissions that

the two courts below were not justified in coming to the

conclusion that defendant no.2 - Bhanwara Ram was son of Ramu

(5 of 8) [CSA-207/2018]

Ram and had share in the suit property and, therefore, the finding

in this regard being perverse deserves to be set aside.

Further submissions were made that finding on issue no. 4 is

also against law inasmuch as once the defendant no. 2 was not in

possession of the land in question, his name could not be mutated

in the revenue records and that without partition, he could not

have transferred the land in question and, therefore, the finding

on issue no. 4 also deserves to be set aside.

Reliance was placed on Ramoo vs. Hanuman : 1987 RRD

330.

Learned counsel for respondents vehemently opposed the

submissions. It was submitted that the two courts below have

recorded concurrent findings of fact and the appeal does not give

rise to any substantial question of law, therefore, the same

deserves dismissal.

Further, with reference to the material on record, it was

submitted that the appellants have failed to point out any

perversity in the findings and on that count also, no case for

interference is made out.

Reliance was placed on Dnyanoba Bhaurao Shemade vs.

Maroti Bhaurao Marnor : 1999 DNJ (SC) 131 and Smt. Sugani vs.

Rameshwar Das & Anr. : 2006 (2) WLC (SC) Civil 162.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

as well as the record of the two courts below.

On the foundational issue regarding the allegations made in

the suit that respondent no. 2 - Bhanwara Ram was not son of

Ramu Ram but was son of Dula Ram and as such had no share in

(6 of 8) [CSA-207/2018]

the property of Simartha has been exhaustively dealt with by the

trial court inasmuch as it was found that P.W.1 - Bhagirath Ram,

plaintiff no. 5, himself stated in his cross examination that he did

not know whether Bhanwara Ram was son of Ramu Ram or Dula

Ram and he has not seen Ramu Ram and Dula Ram. He also

indicated that he did not see Rupi Devi & Dula Ram living together.

He further indicated that he only heard about it from his mother,

brothers and elders and he also admitted that the averments

made in the affidavit in examination-in-chief were hearsay. P.W.3,

Champa Lal, also denied having seen Dula Ram and Rupi Devi

living together and that he did not know as to whether Bhanwara

Ram was son of Rupa Ram or Dula Ram. P.W.4, Chain Singh

Rajpurohit, denied even the indication made in the affidavit filed in

examination-in-chief and regarding all other aspects. P.W.5, Pep

Singh, denied having known Bhanwara Ram. As such, from the

evidence led by the plaintiffs nothing was proved, on the other

hand, the documents produced including the mutation entry, voter

list (Ex.A/10 & A/11), voter ID cards (Ex.A/2 and A/3), indication

made in the title of the suit, wherein, Bhanwara Ram has been

shown as son of Ramu Ram and the fact that in Ex. A/4, the

appeal filed before Revenue Appellate Authority by the plaintiffs

along with defendant Bhanwara Ram and Smt. Rupi Devi, they

were indicated as wife & son of Ram Lal (Ramu Ram), clearly

demolish the case of the appellants in relation to questioning the

fact that defendant no. 2, Bhanwara Ram, was son of deceased

Ramu Ram, who was son of Simartha and as such the findings

recorded by the two courts below in this regard cannot be faulted

and/or give rise to any substantial question of law.

(7 of 8) [CSA-207/2018]

So far as the finding on issue no. 4 is concerned, admittedly,

the land in question belonged to Simartha and on his death, by

way of succession under Section 40 of the Rajasthan Tenancy Act,

1955 which provides that when a tenant dies intestate, his

interest in his holding shall devolve in accordance with the

personal law to which he was subject at the time of his death, was

rightly entered in the name of Gena Ram and Bhanwara Ram s/o

Ramu Ram as Ramu Ram had pre-deceased Simartha, in the year

1977.

Attempts made to question the entry in the revenue record,

in view of express provisions of Section 40 of the Rajasthan

Tenancy Act, 1955, has no substance.

The submissions made about the mutation being incorrect in

absence of possession is equally baseless. The Hon'ble Supreme

Court in Neelavathi & Ors. vs. N. Natarajan & Ors. : AIR 1980 SC 691,

observed as under:

"The general principle of law is that in the case of co- owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession."

So far as the submissions made that Bhanwara Ram could

not have transferred the land in question without partition and

that also when the suit in this regard was pending consideration is

concerned, the provisions of Section 44 of the Transfer of Property

Act, 1882 empowers the co-owner to transfer his share and as

(8 of 8) [CSA-207/2018]

such it cannot be said that Bhanwara Ram could not have

transferred his undivided share.

So far as the submission made that Bhanwara Ram could not

have transferred specific share in the land in question is

concerned, the trial court has specifically come to the conclusion,

based on the averments made in the sale deed (Ex.3) that specific