Research › Search › Judgment

Jharkhand High Court · body

2003 DIGILAW 920 (JHR)

Ghuilu Gope v. Mohan Ahir

2003-07-30

VISHNUDEO NARAYAN

body2003
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the defendants-appellants is directed against the judgment and decree dated 26.4.1988 and 3.5.1988 respectively passed in Title Appeal No. 34 of 1980/13 of 1981 by Shri Arun Kumar Sinha, Sub-Judge, Gumla whereby and whereunder the appeal was allowed and judgment and decree dated 30.1.1980 and 9.2.1980 respectively passed by Munsif. Gumla in Title Suit No, 46 of 1973 was reversed. 2. The plaintiff-respondents filed aforementioned suit for declaration that the sale deeds dated 11.4.1972. 4.7.1972 and 7.11.1973 executed by defendant No. 4, Lachman Ahir (who died during the pendency of the suit) in favour of defendant Ghuili Gope along with Pusa Gope @ Tupha Ahir in respect of Schedule A and B land as well as in favour of defendant Gandura Sahu in respect of Schedule C land of khata No. 28 situate in village Golmer, P.S. Palkot, District Ranchi (now Gumla) are void, illegal and not binding upon the plaintiffs-respondents. The case of the plaintiff, inter alia, is that the land of khata No. 28 situate in village Golmer. P.S. Palkot, District Ranchi (now Gumla) stands jointly recorded in the record of rights in the name of Bhukhan Ahir, Sukhnath Ahir, Charku Ahir and Lachman Ahir all sons of Dalua Ahir having equal shares and they were the members of the joint Hindu Mitakshara family and no metes and bounds partition has ever taken place between them. Bhukhan Ahir aforesaid died in the state of jointness leaving behind his three sons namely, Deoman Ahir, Johan Ahir and Mohan Ahir. The said Deoman Ahir also died issueless in the state of jointness, Johan Ahir also died in the jointness leaving behind his three sons, namely, Dondo Ahir, Mondo Ahir and Baneshwar Ahir. Sukhnath Ahir and Charku Ahir also died during the pendency of the suit in the state of jointness and their heirs are also on the record as plaintiffs. Defendant No. 4 Lachman Ahir who is issueless kept Kelwa Ahirin his house and started living with her for the last four years after the death of his lawfully wedded wife which was protested to by these plaintiffs causing annoyance to him. The said Kelwa Ahirin had two sons, defendant No. 1 Pusa Ahir (since dead) and defendant No. 2 Ghuili Ahir born of her former husbands. The said Kelwa Ahirin had two sons, defendant No. 1 Pusa Ahir (since dead) and defendant No. 2 Ghuili Ahir born of her former husbands. Lachman Ahir aforesaid under pressure, coercion and undue influence of Kelwa Ahirin and her two sons executed sale deeds dated 11.4.1972 and 4.7.1972 in favour of defendant No. 1 Pusa Ahir and defendant No. 2 Ghuili Ahir in respect of the land of Schedule A and B of the plaint and also executed the sale deed dated 7.11.1973 in favour of defendant No. 3, Gandura Sao in respect of Schedule "C" land of the plaint. The said Lachman Ahir executed a deed of cancellation dated 3.5.1972 cancelling, the sale deed dated 11.4.1972 aforesaid. Their case further is that Lachman Ahir has no right to sell joint family lands without consent of other co-sharers and all the sale deeds aforesaid executed by Lachman Ahir is void, illegal and not binding upon the plaintiffs who are still in joint possession of the suit properties. 3. The case of the defendants-appellants is that there has been metes and bounds partition of the joint family land between the four sons of Daula Ahir long ago and they are in separate and exclusive possession of the land allotted to each of them in the said partition and they are, accordingly, dealing with the properties separately as per their convenience and the defendants-appellants by virtue of the sale deeds executed by Lachman Ahir are in exclusive possession of the suit properties and defendants Ghuili Ahir and Pusa Ahir stand mutated in respect thereof and they are paying rent. Their case further is that Lachman Ahir has solemnized his marriage in the sagai form with Kelwa Ahirin about 18 years ago and since then they are living as husband and wife. 4. In view of the pleadings of the parties, the trial Court framed the following issues for adjudication in the case :-- (i) Is the suit maintainable in its present form? (ii) Have the plaintiffs any cause of action? (iii) Is the suit barred by the provisions of Section 34 of the Specific Relief Act? (iv) Is the suit bad for defect and non-joinder of proper parties? (v) Is the story of previous partition by metes and bounds among the plaintiffs or the co-sharers true? (vi) Are the sale deeds executed by Lachman Ahir legal. (iii) Is the suit barred by the provisions of Section 34 of the Specific Relief Act? (iv) Is the suit bad for defect and non-joinder of proper parties? (v) Is the story of previous partition by metes and bounds among the plaintiffs or the co-sharers true? (vi) Are the sale deeds executed by Lachman Ahir legal. Are the sale deeds valid and binding against the plaintiffs? (vii) To what relief or reliefs, if any, are the plaintiffs entitled? 5. While deciding issue No. 5 and 6 the trial Court has held that Lachman Ahir and his co-sharers were separate in mess, cultivation and residence and the case of previous partition by metes and bounds among Lachman Ahir and his co- sharers is true and the sale deeds executed by Lachman Ahir in favour of the defendants-appellants is legal binding and with consideration and the suit of the plaintiffs-respondents was, accordingly, dismissed. 6. Aggrieved by the judgment and decree of the trial Court plaintiff preferred title appeal No. 54 of 1980/13/1981. The lower appellate Court on reappraisal and reappreciation of the evidence, oral and documentary, on the record reversed the Judgment and decree of the trial Court and allowed the appeal as per the impugned judgment and decreed the suit. The appellate Court below came to the finding of fact that the defendants have failed in proving partition and further recorded a finding that a coparcener cannot alienate the joint family property without taking a prior permission of the other coparcener and thus the sale deed executed by Lachman Ahir in favour of the defendants are void, illegal and not binding on the plaintiffs. 7. This Court while admitting the appeal for hearing formulated the substantial question which runs thus : "Even if the finding of the Court below is accepted that there had been no partition by metes and bounds between the co-sharers whether the transfer made by one of the co-sharers should have been upheld on the ground that there was no coparcenary and there has been disruption in the joint family." During the course of hearing and in view of the liberty given vide order dated 12.10.1988, a farther question of law was formulated which runs thus : "Whether the suit of the plaintiff for declaration simplicitor is maintainable in the absence of a relief of confirmation of possession and in the alternative recovery of possession." 8. Assailing the impugned judgment, Shri P.P.N. Roy, learned counsel for the defendants-appellants has submitted that the learned Court below has committed a manifest error in view of the evidence on the record in disbelieving the case of the defendant regarding the metes and bounds partition of the joint property between Lachman Ahir and his three brothers and he could not appreciate the difference between the coparcenary property and the properly held jointly and has equally committed an error in the interpretation of Hindu Law in respect thereof and Lachman Ahir was a co-tenant and co-owner and co-sharer rather a copar-cener of the land recorded jointly in the name of Lachman along with his three brothers. It has further been contended that the transfer made by one of the co-sharer tantamounts to the fact that there was no coparcenary in existence and there has been disruption in the joint family though there may not be metes and bounds partition between the co-sharers in respect thereof. Elucidating further it has been submitted that the execution of the sale deeds by Lachman Ahir will tantamount to the disruption of the joint family and the aforesaid execution of the sale deeds shall be deemed to constitute a partition taking it as a definite and unequivocal indication of his intention to separate himself from the other co-sharers and to enjoy his share in severally. Referring Ext. 4, the cancellation deed executed by Lachman Ahir cancelling the sale deed dated 11.4.1972 it has been submitted that the said cancellation deed recites in respect of the inclusion therein of some of the plots of other co-sharers in the sale deed dated 1.4.1972 inadvertently and this recital clearly establishes the fact that there had been partition in the joint family of Lachman and his other brothers and the defendants-appellants acquired valid right, title and interest in the disputed property and the lower appellate Court did not construe the said fact in proper perspective and has erred in reversing the finding of the learned trial Court. It has also been submitted that the plaintiff-respondents was definitely not in possession of the properties covered under the sale deeds aforesaid and they have filed the suit only for declaration of the sale deed as void and illegal and not binding upon them and they have not sought any further relief regarding confirmation of possession or recovery of possession and in this view of the matter the suit of the plaintiff-respondent is not at all maintainable under Section 34 of the Specific Relief Act. In support of his contention reliance has been placed upon the ratio of the case of Rajasthan Bhawan Trust v. Most Pradlya Devi and Ors., 2003 (1) JCR 486 (Jhar) and M.K. Rappai and Ors. v. John and Ors., 1969 (2) SCC 590 . Lastly it has been contended that the appellate Court below while setting aside the trial Court judgment has not given any strong, cogent and convincing reasons and under the law it is bound to give reasons as to why the findings of the trial Court below were not found favour with and also the basis or the foundation or reasoning on which the conclusion of appellate Court is grounded and where the judgment of the appellate Court below does not give any reason nor discusses the evidence and the law applicable to the facts of the case then in that case the impugned judgment of the appellate Court below is definitely improper and requires to be set aside. In support of his contention reliance has been place on the case of Pratap Chandra Ghose and Ors. v. Ishan Chandra Nath and Ors.,AIR 1977 NOC 285 (Gau). 9. It has been submitted by Shri A.K. Sahani, learned counsel for the respondents that in this case the appellate Court below on proper appreciation and reappraisal of the evidence came to the finding that the defendant- appellants have failed to prove the factum of metes and bounds partition between Lachman Ahir and his three brothers and it also further held that Lachman Ahir as a member of the joint family being a coparcener cannot alienate his joint family property without taking the prior consent of the other coparceners and thus the sale deed executed by Lachman Ahir in favour of the defendants are void and illegal and not binding upon the plaintiff respondents. Relying upon the ratio of the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., (1999) 3 SCC 722 , it has been submitted that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact being the first appellate court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible one drawn by the lower appellate Court is binding on the High Court In Second Appeal Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court or was based upon inadmissible evidence or arrived at without evidence. It has also been submitted that the appellate Court below has properly scrutinized and considered the evidence on the record and has exercised its discretion in the judicial manner and it cannot be termed to be an error either of law or of procedure requiring any interference in the second appeal. It has also been submitted that this Court in second appeal can not interfere with the judgment of the first appellate Court merely on the ground that the first appellate Court failed to advert to the reasons scribed by the trial Court and the first appellate Court can consider the evidence adduced by the parties and give its own reasons for accepting or rejecting the evidence of one party or the other party. In support of his contention reliance has been placed on the ratio of the case of Arumugham and Ors. v. Sundarambal and Anr., 1999 (4) SCC 350 . In support of his contention reliance has been placed on the ratio of the case of Arumugham and Ors. v. Sundarambal and Anr., 1999 (4) SCC 350 . It has also been submitted that there is no application of Section 34 of the Specific Relief Act in this case in view of the existence of unity of title and possession over the disputed property in question between the recorded tenants in respect thereof being the members of a joint Hindu Mitakshara Family and coupled with the finding of the fact of the appellate Court below regarding the possession of the plaintiff respondents over the suit property and, therefore, the declaratory suit filed by the defendant-respondent is quite maintainable and the learned Court below has rightly allowed the appeal and had decreed the suit filed by the plaintiff. Viewed thus the impugned judgment cannot be said to be unsustainable. 10. Admittedly the suit land along with the other lands of khata No. 28 of village Golmer stands recorded jointly in the names of Bhukhan Ahir, Sukhnath Ahir, Charku Ahir and Lachman Ahir, in the Survey Record of Rights and the aforesaid recorded tenants are full brothers being the sons of Dalua Ahir and they constitute a joint Hindu Mitakshara Family being the coparceners. A joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters but Hindu coparcenary is a much narrow body than the joint family and it includes only those persons who acquire by birth an interest in the joint or coparcenary property and they are sons, grandsons and great grandsons of the holder of the joint family for the time being, in other words, the three generation next to the holder in broken male descent. The essence of a coparcenary under the Hindu Mitakshara Law is unity of ownership and possession. The ownership of the coparcenary property is for the whole body of coparceners and according to true notion of an undivided family governed by Hindu Mitakshara Law no individual member of the family, whilst it remains undivided, can predicate of the joint and undivided property, that a particular member has a definite share and it is only on a partition that a member of the joint family becomes entitled to a definite share. The Apex Court has observed in the case of State Bank of India v. Ghamandi Ram, AIR 1969 SC 1330 . ".....That according to the Mitakshara school of Hindu Law, all the property of a Hindu Joint Family is held in collective ownership by all the coparceners in quasi-corporate capacity. The incidents of coparcenary are : first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person, secondly, that such descendants can at anytime work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co- ownership the possession and enjoyment of the properties is common, fifthly, that no alienation of the property is possible unless it is for necessity, without the concurrence of the coparceners and sixthly, that the interest of a deceased member passes on his death to the surviving coparceners." Here it is relevant to mention that coparcenary property is liable to be partitioned and every coparcener is entitled to a share on partition. Partition is a severance of joint status and as such it is a matter of individual volition. To constitute partition all that is necessary is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severally and the said definite and unequivocal indication of his intention should be to the knowledge of the person affected and once a member of the joint family has clearly and unequivocally intimated to the other members of his desire to severe himself from the joint family his right to obtain and possess his share is unimpeachable whether or not the other members of the joint family agree to a separation and there is an immediate severance of the joint status. Article 260 of the Mulla Hindu law (16th edition) mandates that no coparcener can alienate even for value his undivided interest without the consent of the other coparceners. 11. Article 260 of the Mulla Hindu law (16th edition) mandates that no coparcener can alienate even for value his undivided interest without the consent of the other coparceners. 11. Admittedly the land appertaining to khata No. 28 of village Golmer which includes the property in suit stands jointly recorded in the Survey Record of Rights in the name of Bhukhan Ahir, Sukhnath Ahir, Charku Ahir and Lachman Ahir all sons of Dalua Ahir as coparceners being the members of joint Hindu Mitakshara Family and they are, therefore, joint tenant having unity of ownership and possession and in such a situation Lachman Ahir being the coparcener and the joint tenant of the land of khata No. 28 executes sale deeds dated 11.4.1972, 4.7.1972 and 7.11.1973 in favour of the defendant appellants which is definitely in contravention of the law as Lachman Ahir being the member of the joint Hindu Mitakshara Family cannot sell the coparcenary land without the consent of the other members of the coparcenary unless there is separation or partition between them. The defendant-appellant in para 11 of the written statement had made out a case that there has been a family partition long ago among the co-sharers by metes and bounds and each of them has been separately and exclusively holding and possessing the land allocated to his separate Thakhta and they have also been separately alienating as also otherwise managing, mortgaging and dealing according to their sweet will and convenience the land allocated to his separate Thakhta and the lands in dispute are the portions of the land allocated to the Thakhta of Lachman Ahir. It is pertinent to mention here that the onus is on the defendant appellant to prove the factum of separation or partition as alleged by him. It is relevant to mention at the very outset that no specific period of partition has been pleaded in the written statement of the defendants nor there is any averments regarding the separation of the Jamabandi of the recorded tenants. There is also no evidence on the record adduced by the defendant to establish the aforesaid facts. It is relevant to mention at the very outset that no specific period of partition has been pleaded in the written statement of the defendants nor there is any averments regarding the separation of the Jamabandi of the recorded tenants. There is also no evidence on the record adduced by the defendant to establish the aforesaid facts. No document of separate dealings by Lachman Ahir or by any other member of the coparcenary prior to the execution of the sale deeds aforesaid by Lachman Ahir has been brought on the record to show that the members of the coparcenary were separately alienating the joint family property and they were in separate exclusive possession of the lands of khata No. 28 aforesaid. There is also no document of inter se dealings in respect of the joint family property between the four sons of Dalua Ahir. Therefore, in the absence of any legal evidence on the record brought by the defendant appellants, the appellate Court below has rightly disbelieved the case of metes and bounds partition as pleaded by the defendant-appellants and has correctly reversed the finding in respect thereof recorded by the trial Court. The learned appellate Court below had scanned the evidence on the record in proper perspective in disbelieving the cases of the metes and bounds partition between the recorded tenants as alleged by the defendant appellant and thus it cannot be said that the findings of the appellate Court below is based on misreading of evidence, misapplication of law and conjectures and surmises and the finding recorded by the learned appellate Court below cannot be said to be erroneous in view of the evidence on the record. However, this Court has no jurisdiction to entertain in the second appeal even there is an erroneous finding of fact arrived at by the appellate Court below as it is not the function of the Court in the second appeal to re- appreciate evidence just to replace the findings of the appellate Court below by its own finding. It is the settled principle of law that every Hindu Family is presumed to be joint unless the contrary is proved. In the absence of proof of division such is the legal presumption. It is the settled principle of law that every Hindu Family is presumed to be joint unless the contrary is proved. In the absence of proof of division such is the legal presumption. The presumption of jointness is the greatest in the case of father and sons and it is stronger in the case of brothers than in the case of cousins and father one goes from the founder of the family the presumption becomes weaker and weaker. The reason is that brothers are for the most part undivided, second cousins are generally separated and the third cousins are for the most part separated. Therefore, in this case there is presumption of the existence of coparcenary between the four sons of Dalua Ahir as they are jointly recorded in the Survey Record of Rights in respect of the land of khata No. 28 to which the disputed property appertains to. There is no legal evidence on the record to prove to the contrary to the presumption aforesaid. The execution of the ale deeds by Lachman Ahir in this case of the joint family property being a member of the coparcenary is definitely void and illegal because it has no prior consent of the other members of the coparcenary. Therefore, by execution of the sale deeds by Lachman Ahir in the existence of the coparcenary between him and his three brothers can never amount to disruption of the coparcenary as well as of the joint family and an illegal act on the part of Lachman Ahir by executing the sale deeds in favour of the defendant appellants cannot tantamount of the disruption of the coparcenary as well as of the joint family of the Jointly recorded tenants in respect of the land of khata No. 28. Therefore, the transfer made by Lachman Ahir as a member of the coparcenary does not disrupt the coparcenary as well as the joint family of the plaintiffs along with him. 12. Here in this case the plaintiff has sought the relief for declaration that the sale deeds executed by Lachman Ahir is void, illegal, inoperative and not binding upon the plaintiff respondents. It is, therefore, a simple suit for declaration. No consequential relief has been sought in this case by the plaintiff-respondents. 12. Here in this case the plaintiff has sought the relief for declaration that the sale deeds executed by Lachman Ahir is void, illegal, inoperative and not binding upon the plaintiff respondents. It is, therefore, a simple suit for declaration. No consequential relief has been sought in this case by the plaintiff-respondents. The trial Court has not accorded any finding regarding the application of Section 34 of the Specific Relief Act in the judgment as the matter in respect thereof was not pressed there. It appears that applicability of Section 34 of the Specific Relief Act has also not been pressed before the appellate Court below and there is no finding recorded in respect thereof in the impugned judgment. Question of applicability was raised for the first time in the appeal before this Court. Section 34 of the Specific Relief Act runs thus : ".....Section 34. Discretion of Court as to declaration of status or right. --Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not, in such suit, ask for any further relief : Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of the title, omits to do so...." In a suit under this section the plaintiff first must be a person entitled to any legal character or to any right as to any property and secondly the defendant must be a person denying or interested to deny the plaintiffs title to such character or right and thirdly the declaration sued for must be declaration that the plaintiffs are entitled to a legal character or to a right to property and fourthly where the plaintiff is able to seek further relief than a mere declaration of title, he must seek such relief. If any of the first three conditions is not fulfilled the suit should be dismissed. If those three conditions are fulfilled but fourth is not the Court shall not make the declaration sued for. If any of the first three conditions is not fulfilled the suit should be dismissed. If those three conditions are fulfilled but fourth is not the Court shall not make the declaration sued for. The proviso to Section 34 aforesaid is imperative and makes it obligatory on every Court not to make any declaration in cases where the plaintiff being able to seek further relief omits to do so but objection to the maintainability of the suit on the ground that he does not seek consequential relief must be taken with promptitude. Here in this case the question of application of Section 34 of the said Act has been raised for the first time in the second appeal. It is the settled law that if the plaintiff is out of possession of the suit land and only seeks to have his title declared, his suit for mere declaration will not He without the consequential relief of recovery of possession. Thus a plaintiff out of possession suing for a declaration of title to land ought to pray for possession if the defendant is in possession but he is not obliged to do so if the defendant is not in possession or the plaintiff is in lawful possession of the suit land. The plaintiff in possession of the property, when seeks a declaration of his title, the suit without a prayer for possession is maintainable. Here in this case, the plaintiffs being the members of the coparcenary have unity of ownership and possession over the property in suit along with Lachman Ahir. There has not been any severance in the coparcenary consisting of the plaintiffs along with Lachman Ahir. The case of metes and bounds partition as set up by the defendant appellants has been negatived by the appellate Court below. Therefore, the question of allotment of specific plots of khata No. 28 to Lachman Ahir is totally ruled out and thus the defendant appellants cannot be deemed to be in possession of the property in dispute as it cannot be said that possession has been handed over to him in respect thereof. Therefore, the question of allotment of specific plots of khata No. 28 to Lachman Ahir is totally ruled out and thus the defendant appellants cannot be deemed to be in possession of the property in dispute as it cannot be said that possession has been handed over to him in respect thereof. On the contrary the plaintiff respondents claimed to be in possession of the suit land and it stands established in view of the finding of the learned appellate Court below that there had been no severance of the coparcenary or the joint family in view of the fact that the case of metes and bounds partition as set up by the defendant appellants has not been proved by legal evidence. Therefore, the plaintiffs are in possession of the suit property. In the case of Bhup Narayan Singh v. Hira Lal, AIR 1936 Pat 185, it has been observed that if the plaintiff is not in possession at the date of the suit it was not open for him to sue for mere declaration of title without also seeking the further relief of the recovery of possession which he has definitely omitted to pray and pay for. The position may, however, possibly have been different if it had been found in accordance with law that the plaintiff was in actual possession of the disputed land as well. In the case of Manginath Tiwary and Ors. v. Phool Mohammad Dhobi, AIR 1985 Pat 338 , it was observed that the plaintiff being in possession of the land, the suit for declaration that they were ratyats and that the fixation of rent in respect thereof in favour of the defendant-appellants under the Bihar Land Reforms Ac was illegal could not be held barred by Section 34 as consequential relief for possession was not necessary. Therefore, the plaintiff-respondents, being in possession as coparceners having unity of ownership and possession in respect of the suit land and also in possession in respect thereof is entitled only to seek for declaration of his rights without seeking any consequential relief for confirmation of possession or recovery of possession in view of the cloud cast on their title by the execution of the sale deeds by Lachman Ahir regarding the coparcenary property without the consent of the other coparceners. Therefore, Section 34 of the said Act is not at all attracted in this case. Therefore, Section 34 of the said Act is not at all attracted in this case. Viewed thus, the case laws relied upon by the learned counsel for the defendant- appellants are of no help to him. 13. The appellate Court while reversing the finding of the trial Court and declaring the sale deeds as void, illegal, inoperative and not binding upon the plaintiff-respondents has properly weighed the evidence on the record and has also assigned satisfactory reasons for doing so and there is no illegality in the finding of fact arrived at by the appellate Court below. 14. Therefore, there is no merit in this appeal and it fails. The impugned judgment of the learned appellate Court below is hereby affirmed. The appeal is hereby dismissed. However, there shall be no order as to costs.