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2002 DIGILAW 588 (RAJ)

Nand Lal v. Devi Shanker

2002-03-15

ARUN MADAN

body2002
Honble MADAN, J.–The petitioners are the LRs of late Shri Kanhaiyalal (defendant) while respondent Nos. 1 to 5 are the LRs of Anandilal (plaintiff). Late Kanhaiyalal and Anandilal were real brothers. (2). Late Anandilal who is represented in this writ petition by NP Nos. 1 to 5 filed a suit on 3.12.73 bearing No. 199/78 for division of property under Sec. 53 of the Rajasthan Tenancy Act, 1955 for short the Act before the Assistant Collector Kota on 15.11.73 ad 3.12.73, respectively which was contested by the defendant-petitioner who filed written statement by contending inter-alia that plaintiff had executed a relinquishment deed of the land in dispute in favour of the defendant way back on 15.7.49 and since then he is in sole possession of the land in dispute. Apart from this, another objection which was raised was to the maintainability of the suit that it was time barred and the defendant had become the owner of the whole land in dispute by way of adverse possession. The trial Court thereafter on the basis of pleadings of the parties framed eight issues for adjudication of rival claims. (3). In support of his evidence, plaintiff relied upon certain documents inter-alia Exh. 5 & 6 which are Jamabandis for Samwat Year 2023-2026 and 2027-2030 which are the record of rights by way of authentic and reliable evidence which shows that the land in dispute is in joint possession of both the plaintiff and defendant since long. By way of oral evidence the plaintiff got examined besides himself as PW-1 and five other witnesses. The defendant in his evidence adduced Exh.1 relinquishment deed dt. 15.7.49 which was on a plain paper neither registered nor stamped nor attested and in his oral evidence got examined besides himself as DW-1 and four other witnesses. The trial Court decided Issue Nos. 1 to 3, 5 & 7 together but as regards the Jamabandis which is a public record of rights of the party in possession, the said evidence was not only erroneously ignored but also overlooked and brushed aside for the Samwat year 2026-2030 which were adduced by the plaintiff in support of his case not only by the trial Court but also by the Appellate Court. It is well established that Jamabandi being a record of rights is more reliable than any other document to which reliance can safely be attached. It is well established that Jamabandi being a record of rights is more reliable than any other document to which reliance can safely be attached. Contrarily, trial Court erroneously placed reliance upon unregistered unattested/unstamped relinquishment deed and thereby declared the defendant as owner of the whole land in question vide order dt. 30.4.79 (Ann. 3). Against the said judgment of the trial Court, the plaintiff preferred an appeal before the revenue appellate authority Kota which too without application of mind and property considering and without going into the factual aspect aspect of the matter, relied on the said relinquishment deed and dismissed the appeal preferred by the plaintiff vide its judgment dt. 20.8.81 (Ann. 6). (4). The plaintiff being aggrieved by the judgment of the appellate Court, preferred second appeal before the Board of Revenue Ajmer on the grounds inter-alia that the plaintiff- appellant and defendant-respondents are real brothers and the land in dispute has come in their share by virtue of succession after their fathers demise. In the record of rights i.e. Jamabandi for Samwat Year 2027 and 2023-36 they are both co- sharer of the land. As regards the relinquishment, it was contended by the plaintiff that it is not in respect of the land in dispute as it does not contain either the precise details of the land, Khasra numbers nor any change has been indicated ever since possession of the parties to their respective shares over the land and no change had ever since been made in the initial allotment. Hence, it was not a reliable document and it was totally unsafe to rely on such document as against the Jamabandis for the period in question which is revenue record being more authentic and reliable and for which the defendant had led sufficient corroborative evidence to establish his case before the courts below. (5). It is under the aforesaid circumstances that notwithstanding the concurrent findings of the trial Court as well as the appellate Court, the Board of Revenue partly interfered with the findings recorded by the courts below by partly allowing the plaintiffs appeal vide its judgment dt. 3.5.89 (Ann. 7). (5). It is under the aforesaid circumstances that notwithstanding the concurrent findings of the trial Court as well as the appellate Court, the Board of Revenue partly interfered with the findings recorded by the courts below by partly allowing the plaintiffs appeal vide its judgment dt. 3.5.89 (Ann. 7). The Board of Revenue in its judgment recorded a finding to the effect that from the perusal of the relinquishment deed on the strength of which the defendants were taking their claim, it is not clear as to which khasra number pertains to which land in dispute, how much land he has claimed and what type of land and how much revenue it relates. Moreover, the document not being registered, no value could be attached to such a document moreso having been executed in suspicious circumstances no reliance could be placed on such document. Thus, on the strength of this finding, the Board of Revenue came to the conclusion that the courts below have committed serious error in deciding whole case merely on the basis of Issue No. 5. (6). As regards the relinquishment deed in question, it was vehemently contended by the learned counsel for the defendant that onus to discharge the burden regarding validity of the said document, the plaintiff did not lead any evidence in rebuttal to dispel the doubt except to say that from the perusal of document Exh. D-1, it cannot be established that the onus had been successfully discharged by him which neither contains the description of khasra number is specified nor the exact area of which it comprises. Be that as it may, I am of the considered opinion that it appears to be a vague statement on the record on which no reliance could safely have been placed for construing it as relinquishment of respective share of a party to the property in question and apparently the trial court has committed grave error in relying upon the same, therefore, the Board of Revenue has rightly, ratified the same. (7). (7). From the perusal of findings recorded by the Board of Revenue, it is to be noted that the Board of Revenue had rightly interfered with the findings of the courts below to the extent of half share of the plaintiff in Khasra No. 124 measuring 35 bighas and 3 biswas which as per the record of rights contained the names of both parties i.e. plaintiff and defendants in their respective half share each in village Hanela Tehsil Ladpura, Alwar. As regards this half share, parties were entitled to get the share partitioned from the revenue authorities as per the decree. As regards khasra No. 134 measuring 5 biswas, the Board of Revenue did not interfere with the findings of the courts below and thereby upheld affirming their findings in favour of the plaintiff. (8). I have heard learned counsel for the parties at length, examined their rival claims and contentions and so also the finding recorded by the courts below as well as the finding recorded by the Board of Revenue vide judgment dt. 3.5.1989 which is under challenge in this writ petition. (9). In my view, the Board of Revenue has rightly appreciated the controversy in true perspective by observing that the plaintiff is entitled to his half share by partition and division of suit land which is under the joint tenancy of the respective parties to litigation. Reference may be made in this regard to Sec. 140 of the Rajasthan Land Revenue Act, 1956, in short the Act, which stipulates as under :- ``140. Presumption as to entries- All entries made in the record of rights shall be presumed to be true until the contrary is proved. (10). Reference may be made in this regard to Sec. 140 of the Rajasthan Land Revenue Act, 1956, in short the Act, which stipulates as under :- ``140. Presumption as to entries- All entries made in the record of rights shall be presumed to be true until the contrary is proved. (10). This being the established and settled legal position, the courts below have erred in law by ignoring the entries in the revenue records i.e. Jamabandi for Samvat year 2027 & 2023-36 of the village as referred to above which in all probability should have been presumed to be true and correct unless proved to the contrary and since the defendant was not able to demolish the plaintiffs case by leading any evidence in rebuttal, it was not safe to accept his evidence led in this regard and the trial court should have considered plaintiffs evidence which obviously was more reliable and authentic and it was altogether unsafe to rely upon the alleged document i.e. relinquishment deed the execution of which itself was shrouded in mystery being lightly suspicious to which no credibility could have attached as against the entries in the record of rights which was more authentic and reliable but ignored by the courts below. (11). I am fortified in my observations from the judgments of the Apex Court (1) in Mohd. Yunus vs. Gurubux Singh (1), wherein the apex court observed as under :- ``Where there is a gross misappreciation of evidence which goes to the root of the matter, certainly the second appellate court can exercise its jurisdiction. Here the documents which are relied on by the appellant do not show that it was addressed to Respondent G. In order to establish the same, the postman should have been examined. The High Court is right in its conclusion. As regards the next contention, the mere ipse dixit, even without any cross-examination by the Supreme Court of the appellant, will not establish that the money-orders were addressed to the respondent. (2) In Kochukakkada Aboobacker vs. Attah Kasim (2), the Apex court observed as under :- ``It would thus be clear that the title of the property which is the subject-matter of the partition suit in favour of the respondents stands established. The appellate court had not considered these documents in a proper perspective and the effect of those documents on the rights of the parties. The appellate court had not considered these documents in a proper perspective and the effect of those documents on the rights of the parties. Accordingly, the learned Judge reluctantly had reconsidered the evidence and, in our view, quite rightly since it is not a mere appreciation of evidence but drawing inferences from the admitted documents. (3) In Abdul Ajit Shaikh Jumma vs. Dashrath Indas Nhavi (3), the Apex court observed as under :- ``The Tribunal has recorded the finding that on the `appointed day, that is to say, on June 15, 1955, the father of the respondents who was the tenant in respect of the lands in question at the material time was in possession of the lands but that he had been later on dispossessed otherwise than in accordance with law. The contention raised by the appellants before the Tribunal that the tenant had surrendered the lands in accordance with law on February 21, 1955 and that he was not in possession of the lands in question on the appointed day (June 15, 1955) was repelled by the Tribunal. (12). I am further fortified in my observations from the judgments of the apex court in (1) P.Lakshmi vs. Lakshmi Reddy (4), wherein the Apex court held as under :- ``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 on the basis of joint title. The co-heir in possession cannot render 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-heirs title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. In Karbalai Begum vs. Mohd. Sayeed (5), the apex court observed as under :- ``Co-sharers in possession of land do not prescribe title against co-sharer not in possession. Non participation in rent and profits by latter is immaterial. It is well settled that mere non-participation in the rent and profits of the land of a co- sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Non participation in rent and profits by latter is immaterial. It is well settled that mere non-participation in the rent and profits of the land of a co- sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact is admitted, then the legal position would be that the co-sharers in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees. (13). During the course of hearing, it has been contended by the learned counsel for the petitioner that the defendant in his written statement filed on 8.10.1974 had admitted the situation of the above land as per the plaintiffs case while the remaining averments were denied. Counsel further submitted that the earlier number of land in question was as falling in khasra No. 134 was 195 and the same had been purchased by the defendant from the Tehsildar-Ladpura Distt. Kota for Rs. 31/- the sanction of which had been granted by Mahakama Khas, Kota on 5.1.1945. Since then, the land comprising khasra No. 134 measuring 5 biswas was continuing in the sole khatedari of the defendant in which the plaintiff had no semblance of right and title whatsoever. As regards the land comprising khasra No. 124 measuring 35 bighas 3 biswas, it was stated by the defendant in the written statement that the disputed land earlier was `parat (fallow) and was unfertile and only Kana (useless grass) used to grow in the same while the parties were saddled with the responsibility of paying land revenue of the same unnecessarily. In the above circumstances, in order to escape from the liability of paying the land revenue the plaintiff had voluntarily relinquished his share in the disputed land in favour of the defendant on 15.7.1949 (15.7.1949) and, in this regard, the plaintiff himself had executed a document in his own writing and had got the same attested by the witnesses. The counsel further contended that since then it was the defendant, who was continuing in the sole possession of the disputed land and the plaintiff had no right, interest or title over the same. The defendant also contended that the suit filed by the plaintiff was barred by limitation. The counsel further contended that since then it was the defendant, who was continuing in the sole possession of the disputed land and the plaintiff had no right, interest or title over the same. The defendant also contended that the suit filed by the plaintiff was barred by limitation. The defendant further claimed ownership in the disputed land comprising khasra No. 124 measuring 35 bighas and 3 biswas by adverse possession. In support of his case, the plaintiff Anandilal produced six documents, including the certified copies of the Jamabandies of Village Nanotiya for samvat year 2026 to 2030 and certified copes of Jamabandies from Samvat Year 2033 to 2036. In addition to the documentary evidence, the plaintiff examined himself as PW-1 and produced PW-2 Devilal, PW-3 Kanha, PW-4 Jailal, PW-5 Radha Kishan and PW-6 Rasul Ahmed Patwari as witnesses. In rebuttal, the defendant-Kanhaiyalal produced the relinquishment deed dt. 15.7.1949, executed by the plaintiff and the certificate of sale (Neelam) of well (chaha) comprising Khasra No. 134 Old Khasra No. 195, and other documents and examined himself as DW-1 and produced DW-2 Vitthal Lal, DW-3 Banwarlal, DW-4 Laxmi Narain and DW-5 Suresh Kumar, Patwari. (14). As per petitioners case, the scope of second appeal under Sec. 224 of the Rajasthan Tenancy Act, is narrower than the scope of second appeal under Sec. 100 CPC. While hearing second appeal filed under Sec. 100 CPC, no bar has been provided for interference into the findings of fact howsoever erroneous since the only requirement while entertaining the second appeal is that substantial questions of law should be involved for consideration by this Court. Where the substantial question of law is found for adjudication in second appeal under Sec. 100 CPC, the appellate court can enter into discussion regarding appreciation of evidence with the findings recorded by the courts below where they have failed to consider either material evidence on record or have misread or misappreciated the same. (15). The aforesaid proposition as advanced by the learned counsel for the petitioner if viewed in the present context, while deciding second appeal under Sec. 224 of the Act of 1955, in my view, the Board of Revenue had rightly interfered with the finding of the courts below which were based on misappreciation of evidence and the law. (16). (15). The aforesaid proposition as advanced by the learned counsel for the petitioner if viewed in the present context, while deciding second appeal under Sec. 224 of the Act of 1955, in my view, the Board of Revenue had rightly interfered with the finding of the courts below which were based on misappreciation of evidence and the law. (16). Sub section (2)(iv) to Section 224 of the Act of 1955 provides as under :- ``(2) An appeal shall lie to the Board from a decree passed in appeal by a revenue appellate authority on any of the following grounds, namely:- (iv) the decision being contrary to the weight of evidence on record where the lower appellate court has varied or reversed any finding of the trial court on a question of fact. (17). It is in view of the illegality committed on the record regarding misappreciation of evidence as done by the courts below and the decision being contrary to the weight of the evidence on record, in my view, the Board of Revenue had rightly interfered by reversing its findings even though the finding of fact were erroneous unjust and not sustainable. (18). Another argument which has been advanced by Shri K.K. Mehrishi learned counsel for the petitioner was that according to the evidence of PW-2 Devilal and PW-3 Kanha as regards well (chaha land) comprising khasra No. 134, he was in cultivatory possession of the land in dispute since last 35 years. (19). In rebuttal Shri Mahendra Yadav, learned counsel for the respondent has stated that mere having the cultivatory possession over the land in dispute, does not by itself give any vested right to the defendant to have claimed the title over the said property. (20). The Board of Revenue vide impugned order dt. 3.5.89 (Ann. 7) partly allowed the appeal and set-aside the document (Ann. 3 & 6 respectively) and decreed the suit for division of holding the land bearing khasra No. 124 Rakba 530 and 3 biswas against which the present writ petition was been filed which is now being finally decided by this order. (21). On the basis of above discussion, I am thus of the considered view that the courts below have grossly erred in placing reliance upon document (Ex.4, i.e. relinquishment deed dt. (21). On the basis of above discussion, I am thus of the considered view that the courts below have grossly erred in placing reliance upon document (Ex.4, i.e. relinquishment deed dt. 15.7.49) by ignoring the salient features of the case that the suit was filed heavily barred by limitation as well with inordinate delay of 34-35 years. The courts below have failed to appreciate that Jamabandi of the land in question forming part of Khasra No. 124 undisputably contained entries in the record of rights in favour of the defendant so also the plaintiff which should not have been ignored, as the land in question was in joint cultivatory possession of the parties to the suit. If the relinquishment deed had been executed allegedly in the manner as so contended by the learned counsel for the petitioner in the year 1949 in his favour, then also the claim of the respondent plaintiff over the property in dispute being the khatedar in the revenue records, could not be ignored and hence, the aforesaid contention of the petitioner has no merit being not sustainable in law. (22). Bowing his head in reverence by the younger to his elder, has been construed as relinquishment of his respective half share in the land in dispute or property which has neither been corroborated nor established by any cogent, independent and reliable evidence on record and in the absence of this, the relinquishment deed which has been construed as a document having created rights in favour of a party cannot be sustained in favour of the defendant; particularly when there has been no cross examination as regards execution of the relinquishment deed in question. This being the admitted position on the record, how and in what circumstance, it was construed as relinquishment of his share to the elder brother and how reliance on such document could be possibly placed by the trial court as well as the appellate authority, which remains unexplained on record. (23). The Board of Revenue has in my view, has rightly considered and examined the situation in true and correct perspective by holding the plaintiff entitled for partition of his half share in the joint tenancy which aspect of the matter has altogether been ignored by the courts below. (23). The Board of Revenue has in my view, has rightly considered and examined the situation in true and correct perspective by holding the plaintiff entitled for partition of his half share in the joint tenancy which aspect of the matter has altogether been ignored by the courts below. When there is no corroborative evidence which could possibly establish that the plaintiffs in the instant case had in fact surrendered their respective shares over the land in question in favour of the defendant, I find no reason to interfere with well reasoned findings of the Board of Revenue. (24). As a result of the aforesaid discussion, the writ petition is dismissed being not maintainable. Consequently the judgment of the Board of Revenue dt. 3.5.1989 is upheld. There will be no order as to costs.