GOPALU v. DEVI CHAND — 1997 DIGILAW 240 (HP)

JUDGMENT P.K. Palli, J.(Oral) This second appeal has been filed by the plaintiff. Suit filed by him was partly decreed in his favour in respect of 57 Bighas 8 Biswas of land of which he was held to be the exclusive owner. Suit in respect of the other land claimed by him was ordered to be dismissed. The plaintiff felt agitated against the decree in respect of tie refusal to grant him the entire relief and he filed appeal before the learned first appellate Court. The defendants also filed cross-objections. The appeal as well as the cross-objections have been disposed of by a common judgment whereby the suit of the plaintiff has been ordered lo be dismissed in its entirety. Parties, herein-after in this judgment, shall be referred to as plaintiff and defendants. 2, One Attru had three sons, Ram Charan, Rama and Govind. Ram Charan had two sons, Goplau and Devi Chand. Suit, out of which the present appeal has arisen, was filed by Gopalu, plaintiff, impleading his father Ram Charan as defendant No. 1 and his real brother Devi Chand as defendant No.2. Defendants No.3,4,5 and 6 are sons of Devi Chand, defendant No.2. Rama has been impleaded as defendant No.8 and Govind as defendant No.9. 3. The plaintiff sought a declaration to the effect that the land measuring has 3 Biswas entered in Khatauni No.6, Khata No.9 was held by Ram n, his father and by his two uncles, Rama and Govind in equal shares. This land is said to be ancestral. Plaintiff claims share to the extent indicate in the plaint in this property. 4. Suit has also been filed in respect of the property wherein the plaintiff has alleged that he along with his father and other brother constituted a join Hindu family of which his father was the KARTA and in that capacity he had acquired ownership in respect of 98 Bighas 8 Biswas of land by purchase am the amount was paid out of the joint family earnings consisting of himself and the two sons, that is, the plaintiff and his brother. 5. Third piece of land is said to be measuring 57 Bighas 8 Biswas, whid the plaintiff claimed to be his exclusive ownership and possession and which had nothing to do with the joint Hindu family property. 6. 5. Third piece of land is said to be measuring 57 Bighas 8 Biswas, whid the plaintiff claimed to be his exclusive ownership and possession and which had nothing to do with the joint Hindu family property. 6. It is stated that the father, Ram Charan, wrongly and illegally included his other brothers, Rama and Govind as co-owners in respect of the land measuring 98 Bighas and at a later stage exchanged this land and Ram Charn obtained his share in the ancestral property and Rama and Govind acquired their share in the land measuring 98 Bighas and 57 Bighas, respectively. It is also said that Ram Charan in order to deprive the plaintiff from succeeding to his share in the ancestral property made a gift of land measuring 17 Bigkas Biswas and S3 Bighas 9 Biswas in favour of his grand-sons, that is, the sons of Devi Chand, defendant No.2. 7. There acts of Ram Charan are said to be illegal and are said to have been done with the motive to deprive the plaintiff of his legitimate share in the other property which has acquired by him exclusively. 8. The defendants, besides raising several preliminary objections, on merits, have stated that so far as the inheritance of the ancestral property by the plaintiffs father and his two brothers constituted joint Hindu family is admitted, the constitution of the joint Hindu family consisting the father of the plaintiff and his sons has been denied. It has also been denied that the plaintiff had purchased 57 Bighas of land of which he claimed exclusive ownership and possession. 9. The learned trial Court, on appreciation of the material placed on record by the parties, found that the plaintiff had successfully proved himself to be the exclusive owner in respect of the land measuring 57 Bighas 8 Biswas and was entitled to the declaration claimed by him in that respect. The suit in respect of the other property claimed by him was ordered to be dismissed. 10. The learned first appellate Court, vide impugned judgment, has disposed of the appeal filed by the plaintiff as well as cross- objections filed by the defendants resulting in the dismissal of the suit filed by the plaintiff. 11. Learned Counsel appearing for the plaintiff, Mr. 10. The learned first appellate Court, vide impugned judgment, has disposed of the appeal filed by the plaintiff as well as cross- objections filed by the defendants resulting in the dismissal of the suit filed by the plaintiff. 11. Learned Counsel appearing for the plaintiff, Mr. Bhupender Gupalu to start with his address, has contended that the plaintiff had placed sufficient material before the learned first appellate Court by way of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. The additional evidence was allowed vide order dated August 20,1986 and the costs imposed have been accepted by the defendants and this additional evidence goss a long way to establish the claim of the plaintiff over the suit property. Notice of the fact will be taken later. 12. Mr. Gupta has taken me through the plaint where the plaintiff has given full and complete details in respect of the three sets of properties, which are claimed by him. It is sought to be contended on the basis of these averments that it has been admitted by the other side that the property inherited by the father of the plaintiff along with his two brothers is ancestral and joint Hindu property qua them. The property, admittedly, has not been partitioned and the plaintiff has a right to succeed this property 13. The third limb of the argument is that Ram Charan was living in village Ghumaro separately from his two brothers, whereas, Govind and Rama, the other brothers living in village Bambira. Ram Charan is said to have constituted joint family with his two sons, that is, the plaintiff and defendant No.2, Devi Chand and he acquired a Chunk of land in that village which was the exclusive joint family property of Ram Charan and his sons. 14. The forth limb of the argument is that besides these properties the plaintiff had acquired 57 Bighas 8 Biswas of land under Neutor Rules from the State by his own earning and this property was given to him on the basis of a "PATTA" where after the mutation was sanctioned in his favour to that effect. 15. Mr. 14. The forth limb of the argument is that besides these properties the plaintiff had acquired 57 Bighas 8 Biswas of land under Neutor Rules from the State by his own earning and this property was given to him on the basis of a "PATTA" where after the mutation was sanctioned in his favour to that effect. 15. Mr. Gupta contends that the relations of the plaintiff and his mother on the one hand and his father on the other hand had become strained and for that matter the plaintiffs father employed all means to sec that the plaintiff is left high and dry. . 16. It is argued that the father of the plaintiff got the property entered in his name fraudulently which was purchased by the plaintiff exclusively without any aid or help from the joint Hindu family. 17. The mutation which was sanctioned in favour of the plaintiff was got set aside and the property was got mutated by the father in his name and mutation to that effect came to be sanctioned in a clandestine manner. My attention has also been brought to the additional evidence placed on record and on the strength of which it is being argued that the father of the plaintiff had admitted in unequivocal terms about the litigation between him and his wife, that is, the plaintiffs mother that this property measuring 57 Bighas 8 Biswas exclusively belonged to the plaintiff and that fact had been noticed in the judgment given by the Court where suit had been filed by the mother of the plaintiff against his father claiming maintenance. 18. Mr. Sharma, learned Counsel appearing for the defendants, while opposing Mr. Gupta, in reply, contends that the learned first appellate Court has rightly appreciated the controversy between the parties and the judgment does not call for any interference by this Court. It is further contended by Mr. Sharma that no proof was available on record to show that the plaintiff had purchased the property exclusively of his own earnings and without any aid from the joint Hindu family. 19. It is further contended by Mr. Sharma that no proof was available on record to show that the plaintiff had purchased the property exclusively of his own earnings and without any aid from the joint Hindu family. 19. The argument is that as a member of the joint Hindu family and in view of the fact that no partition had taken placed between the members of the family, the property acquired by him rightly came to be placed in the common pool and his father got the mutation recorded in his favour and thereafter exchanged the entire land with his other brothers. It is further sought to be contended by Mr. Sharma that there was no proof of any connivance of the father of the plaintiff with his brothers. "PATTA" on which the reliance is being placed by the plaintiff is not free from suspicion, as, admittedly, the same was in possession of his father. My attention has also been brought to the statement of DW-1 to the effect that the father of the plaintiff, Ram Charan, had obtained loan from him in order to purchase the property, which the plaintiff exclusively claims to be his own. Mr. Sharma further contends that there was no severance of interest and since the property remained joint, the father of the plaintiff in the interest of the family exchanged it with his brothers after putting the entire property in the hotch-potch. 20. After hearing the learned Counsel for the parties at length and on careful examination of the impugned judgment and the record, I find that there is merit in the contentions raised by the learned Counsel for the plaintiff. 21. Ext. AW-l/A is the "PATTA", which was granted in favour of the plaintiff by the State and is dated January 3, 2005 BK. This was permitted by way of additional evidence. It is recorded that the plaintiff had moved an application in. respect of land which he claimed to be entitled, to under the Nautor Rules. On the application of the plaintiff, report was sent for from the revenue department, which was accepted and it was found that the plaintiff had also deposited the amount by way of "NAJRANA" in the treasury. respect of land which he claimed to be entitled, to under the Nautor Rules. On the application of the plaintiff, report was sent for from the revenue department, which was accepted and it was found that the plaintiff had also deposited the amount by way of "NAJRANA" in the treasury. It may also be noticed that the plaintiff had claimed much more land under the Rules, but the "SANAD" was granted in respect of 57 Bighas 8 Biswas only which he claimed to have acquired by his own earnings. 22. Ext.AW-1/B is the order of the Tehsildar verifying the fact that the plaintiff had deposited the amount and the ownership may be sanctioned in his favour. Ext.AW-1/C is the AKSTATIMA of that land. 23. Ext.A.2 is the judgment of the civil. Court given in the suit field by Nagroo, mother of the plaintiff, against her husband, Ram Charan, claiming maintenance. During the course of discussion on the issue it has been observed by the learned Court that the mother of the plaintiff was mal-treated by her husband - Ram Charan, who had appeared as DW-1 and , had stated that his wife had earlier filed another suit seeking injunction restraining him from alienating his land and he had made a statement that he would not alienate his property. 24. It appears that the father of the plaintiff was always devising ways and means to see that the plaintiff and his mother are deprived from the entire property by all means. 25. It may be noticed that in the judgment it has been recorded that Ram Charan had admitted that the land which is in possession of Gopalu, that is, the plaintiff belongs to him because of Nautor. A finding was recorded that the land in possession of Gopalu had been acquired by him end had not been given to him by defendant in that suit, that is, the father of the plaintiff. Be that as it may. 26. Ext. A.4 is the statement of Ram Charan, who was examined as DW-1 in the suit referred to above. In the statement it has been admitted by him that the land which is in possession of Gopalu has been acquired by him under the Nautor Rules. 27. If the PATTA" was to be read in isolation, there was some strength in the arguments raised by the learned Counsel for the defendants. In the statement it has been admitted by him that the land which is in possession of Gopalu has been acquired by him under the Nautor Rules. 27. If the PATTA" was to be read in isolation, there was some strength in the arguments raised by the learned Counsel for the defendants. It may be noticed that after the said "PATTA" was granted, the name of the plaintiff was duly reflected in the record-of-rights and mutation in this respect is Ext.PW-1/E. This mutation was sanctioned in favour of the plaintiff vide order passed by the Tehsildar dated January 7, 2005. The name of the earlier owner, that is, Darbar was obliterated and the name of the plaintiff was entered as owner and he was put in possession in sequence of the allotment. 28. Strangely enough it was through Ext.PW-1/C that he mutation was got entered in favour of Ram Charan, father of the plaintiff. In the remarks column the Patwari reported that the name of the plaintiff be scored out and his fathers name be entered, as his father claimed that the amount had been paid by him. The report is dated January 3, 2005 BK. The mutation was sanctioned in favour of Ram Charan, who happens to be the Lambardar at that time. The Tehsildar while sanctioning mutation has recorded in his order that he knows Ram Charan, Lambardar and he states that his son Gopalu has made an application which is accepted by Gopalu that his name be obliterated and the mutation be carried out in the name of his father Ram Charan. This mutation is also sanctioned no the same date, that is, January 7, 2005 BK. It is really surprising how the second mutation came to be attested and in what manner. The presence of the plaintiff is not recorded and the mutation has been sanctioned on the statement made by his father. 29. Irrespective of the fact that the name of the plaintiff came to be scored out, but he continued to be in possession of the lend either as son of Ram Charan or in the capacity of "GIAR MAROOSI". 30. 29. Irrespective of the fact that the name of the plaintiff came to be scored out, but he continued to be in possession of the lend either as son of Ram Charan or in the capacity of "GIAR MAROOSI". 30. In respect of the other property which is said to be ancestral of the three brothers there are mutations to that effect which ace Exts-PW-l/E and PW-l/F, wherein Ram Charan is recorded as owner of 1 /3rd and the other 2/3rd in the name of other brothers. In mutation ExtPW-1/F, all the three brothers are recorded in the ownership column "BAHISHA BRABAR". This property, admittedly, has not been partitioned between the three brothers and remained joint till the plaintiff is alleged to put his own property which is said to be joint of the father and his sons as well as the property acquired by the father of the plaintiff into the common pool and then exchanged it with his-other brothers. 31. Jamabandi of the year 1948-49, Ext.PW-1/K, records all the three brothers as "BAHISHA BRABAR" and in joint possession of that land. Ext.PW-1/L is the Jamabandi of the year 1964-65 of village Ghumari where there is a note in red ink in the remarks column in respect of exchange and gift. Possession of the father of the plaintiff is recorded in this Jamabandi and is recorded as son of Gopalu HISSADAR. There is no doubt that he is recorded to be in its exclusive possession. The total land after amalgamation has been, recorded as 166 Bighas 12 Biswas. This is the total land included by the plaintiff in the present suit. Father of the plaintiff is exclusively recorded as owner in possession of the property which the plaintiff claims to be the joint family property of the father and his two brothers. Ext.FW-1/M, Jamabandi of the year 1950-51 can be read with advantage in this respect. 32.. In the Fifteenth edition of Hindu law by Mulla in paras 230 and 231, it has been clearly stated that the property acquired by way of Government grant would be the separate property of the acquirer and it would be called his self-acquired property. It has also been said there that the property acquire, by separate earnings of a member of the joint family would belong to him and is called his self acquired property. 33. It has also been said there that the property acquire, by separate earnings of a member of the joint family would belong to him and is called his self acquired property. 33. It has been noticed by the learned trial Court that the plaintiff was earning a good deal of amount as he was a wrestler and the evidence led by the plaintiff remains un-rebutted throughout. The issue was, consequently, decided that 57 Bighas 8 Biswas of land was acquired by himself out of the earnings and exclusively belongs to him. 34. It is not disputed that Ram Charan and his two brothers got the entries made in their favour in the record-of - rights. In my considered opinion, there was no bar for Ram Charan to join his two brothers as co-sharer with him qua the land which he had acquired and thereafter exchanged it with his other brothers 35. This would in no way affect the right, title and interest of the plaintiff qua the land which he acquired exclusively out of his earnings. 36. No piece of evidence has been pointed out to me that the property purchased by the plaintiff was acquired out of the joint Hindu family funds or that his father had finarlced him to purchase that property. 37. As per statement made by DW-1, property was purchased by Ram Charan after borrowing money from him. The amount borrowed has not been specified. He has also, stated that there was very less earnings out of the joint Hindu family property. 38. Surprisingly, in the written statement no plea has been raised by Ram Charan that he had purchased this property after borrowing money from this witness. On the contrary, a plea has been raised that the property has been acquired exclusively out of the earnings of joint Hindu family property 39. The leaned first appellate Court in the impugned judgment has not taken care to notice the additional evidence placed by the plaintiff on records of the case during the appeal. The learned Court concluded that Ram Charan along with his brothers constituted joint Hindu family. It was also found that Ram Charan on the basis of the mutation, Ext.PW-1/A, acquired proprietary rights in respect to 98 Bighas 5 Biswas on payment of Rs. 1500/- as "NAJRANA". The learned Court concluded that Ram Charan along with his brothers constituted joint Hindu family. It was also found that Ram Charan on the basis of the mutation, Ext.PW-1/A, acquired proprietary rights in respect to 98 Bighas 5 Biswas on payment of Rs. 1500/- as "NAJRANA". It has also been observed that as defendants No.7 and 8 were brothers of the father of the plaintiff they constituted joint Hindu family. It was in the said situation that the property acquired by Ram Charan was got mutated in the name of three brothers and mutation to that effect was sanctioned on January 5,1953. While dealing with the question of exclusive ownership and possession of the plaintiff in respect of 57 Bighas 8 Biswas of the land, it has been held that since the plaintiff, defendants No. l and 2 constituted a joint Hindu family property, how the plaintiff claimed this land as his exclusive ownership when there was no severance of the joint Hindu family status. In my considered opinion, the learned first appellate Court has certainly gone wrong in viewing the matter in that angle. 40. For the reasons given above, the judgment and decree of the learned first appellate Court is set aside and the appeal is partly allowed. The suit of the plaintiff is decreed in respect of 57 Bighas 8 Biswas out of the suit land. The suit of the plaintiff in respect of the other land claimed by him is, however, dismissed. In short, the judgment passed by the learned trial Court is upheld, though for different reasons. There shall, however be no order as to costs in view of the close relationship of the parties.