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1977 DIGILAW 451 (MP)

Bene v. Benewat

1977-10-24

J.S.VERMA

body1977
Short Note : 1. This is plaintiff's second appeal. The plaintiffs claim a declaration that the registered sale deed (Ex. D-1) dated 9-12-1964, executed by defendants Nos. 3 and 4 in favour of defendant No. 1, is void not affecting the right, title and interest of the plaintiffs in the lands conveyed thereby and confirmation of their possession over 2/3rd share of these lands, and alternatively, for delivery of possession in case they were found to be out of possession. The plaintiffs make this claim on the basis of their title in these agricultural lands. 2. The defendant No. 1 Benewat is the son of defendant No. 2 Khito. Defendants Nos. 3 and 4, namely Shrimati Biman and Shrimati Bilmani, are real sisters being the daughters of Hablu. The plaintiffs as well as the defendants belong to the family of Bhonder through his three sons. The genealogy is given in paragraph 1 of the plaint. The plaintiff's case is that these lands initially belonged to Bhonder and, after him, to his three sons; there was a partition between the sons of Bhonder and these lands ultimately fell to the share of Hablu the only son of one of the sons of Bhonder. In the case as set out in the plaint, the plaintiffs further alleged that after the death of Hablu, his two daughters, namely defendants Nos. 3 and 4, were recorded as owners of these lands in his place by the order (Ex. P-1) and this order, together with the subsequent order (Ex. P-16), had the effect of passing of these lands to the plaintiffs and defendant No. 2 jointly after the marriage of defendants Nos. 3 and 4 which took place in 1949 and 1953, respectively. It is, thus, on the basis of these two orders that the plaintiffs claim title to the land along with the defendant No. 2 and in this manner, the plaintiffs claim 2/3rd share therein. Held : The first question in this appeal is, whether the plaintiffs have acquired any title in these lands by virtue of the orders (Ex. P-15 and P-16) as claimed by them. Unless this question can be answered in the affirmative in plaintiff's, favour, no further question would arise. Held : The first question in this appeal is, whether the plaintiffs have acquired any title in these lands by virtue of the orders (Ex. P-15 and P-16) as claimed by them. Unless this question can be answered in the affirmative in plaintiff's, favour, no further question would arise. Clause 44 of the wajib-ul-Arz of the Jashpur State is relied on by both sides as the provision which governed the succession to Hablu's property on has death in or about the year 1941. According to this provision, the plaintiffs and defendant No. 2 admittedly had no claim to the properties of Hablu on his death. These persons were admittedly separate from Hablu prior to his death and that being so, this provision excluded them from succession to Hablu's properties. Nothing more in this provision is relevant for the purpose of deciding the plaintiffs, case. The order (Ex. P-15) made in 1944 by the Tahsildar, Jashpur State, directed the names of defendants Nos. 3 and 4 to be recorded in respect of Hablu's properties, saying that they will remain in possession thereof for their maintenance till marriage. This order clearly gave no right to the plaintiffs and defendant No. 2. Ex. P-16 is a subsequent order of the year 1945, which came to be made probably on a dispute about the management and distribution of the usufruct of these lands. It has no other effect. The plaintiff's reliance is on the last part of the Tahsildar's order wherein a reference is made to the plaintiffs and defendant No. 2 for the purpose of managing the lands indicating their interest as reversioners. This is, in fact, the foundation of the plaintiff's case. There is nothing to indicate how the plaintiffs and defendant No. 2 could be treated as reversioners and that being so, the mere use of that expression in this order could not confer a title on the plaintiffs and defendant No. 2 which they did not have under the law then applicable. As earlier stated clause 44 of the Wajib-ul-Arz which governed the succession, clearly did not confer any right in Hablu's properties to the plaintiffs and defendant No. 2. Appeal dismissed.