Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 205 (MP)

NAR SINGH v. NANDLAL

2007-02-20

N.K.MODI

body2007
JUDGMENT N.K. Modi, J. Appellants by Shri Bhagwan Singh, advocate Legal representatives of respondent No. 1 by Shri B.I. Mehta advocate. None appears for Respondent Nos. 2 to 5. Respondent No. 6 by Shri S.D. Bohra, Government Advocate Being aggrieved by the impugned judgment and decree dated 16-4-1994 passed by the 1st Additional District Judge, Neemuch in Civil Appeal No. 1-A/1986 whereby the judgment and decree dated 18-2-1985 passed by Civil Judge Class-II. Manasa in Civil Suit No. 149-A/1980 was confirmed and the suit filed by the appellants was dismissed, present appeal has been filed, which has been admitted for final hearing vide order dated 19-3-1996 on the following substantial questions of law: (1) Whether the impugned judgment and decree suffers from the infirmity of perversity on account of not considering the relinquish deed even for co-lateral purpose for assessing the nature of the possession claimed by the appellants ? (2) Whether the judgment and decree impugned suffers from the infirmity of perversity on account of the theory of 'ouster' which has been averred by the appellants? The short facts of the case are that appellants and respondent No. 1 are the real brothers and sons of the deceased Hemraj. On 13-2-1978 the suit was filed for declaration, permanent injunction and consequential relief alleging that Hemraj was the father of appellants and respondent No. 1 and apart from this appellants and respondent No. 1 were having one more brother namely Dulichand who was impleaded as defendant No. 4 and six sisters. It was alleged that Hemraj has died on 25-6-1961. Hemraj was having land bearing various survey numbers situated at village Piplone Tehsil Manasa. It was alleged that appellants are in occupation of the land within the knowledge of respondents uninterruptedly. It was also alleged that on the basis of the hostile title-right of the appellants has accrued as Bhumi Swami. It was alleged that respondent No. 4 gone in adoption to one Nanuram in the year 1940 and his rights were relinquished because of the adoption. It was further alleged that in the year 1947 respondent No. 1 deceased Jagannath got his share in the property of Hemraj and started to live separately. It was also alleged that on 17-1-1947 respondent No. 1 executed memorandum (CHHOD-CHITHTHI) whereby respondent No. 1 relinquished his rights in the suit property. It was further alleged that in the year 1947 respondent No. 1 deceased Jagannath got his share in the property of Hemraj and started to live separately. It was also alleged that on 17-1-1947 respondent No. 1 executed memorandum (CHHOD-CHITHTHI) whereby respondent No. 1 relinquished his rights in the suit property. It was alleged that because of the relinquishment deed executed by respondent No. 1, respondent No. 1 is having no right in the suit property. It was also alleged that even after the death of Hemraj, no rights have been accrued to respondent No. 1. It was alleged that respondent No. 1 has moved objections before the revenue authorities. Vide order dated 30-7-1977 revenue authorities held that respondent No. 1 is also entitled to get his name recorded in the property left by deceased Hemraj. It was alleged that on 26-1-1978 respondents No. 1 to 3 tried to get possession forcibly. Hence, the suit was filed. It was prayed that it be declared that appellants are the exclusive owner of the suit property and injunction be issued against the respondents not to disturb the peaceful possession of the appellants. The suit was contested by respondent No. 1 deceased Jagannath by filing written statement wherein all the plaint allegations, as stated, were denied. It was denied that any partition has taken place. It was denied that any letter (CHHOD-CHITHTHI) has been written by the respondent No. 1. It was alleged that as per the orders of the revenue authorities name of respondent No. 1 has been recorded as Bhumi Swami along with other respondents. It was alleged that in the Will executed by Hemraj, no property has been given to the appellants. On the basis of these facts, it was prayed that the suit filed be dismissed. Learned trial Court framed the issues, recorded the evidence and dismissed the suit. Against which, an appeal was filed which was also dismissed. Hence, this appeal. Shri Bhagwan Singh learned counsel for the appellants submits that the Courts below committed error of law in not placing reliance on document Ex.P/1, which is mentioned as CHHOD CHITHTHI. Learned counsel submits that Ex.P/1 is CHHOD CHITHTHI whereby respondent No. 1 has surrendered his rights. It is submitted that since it was a letter, therefore, it was not required to be stamped and registered. In alternative, it was submitted that it was a family arrangement. Learned counsel submits that Ex.P/1 is CHHOD CHITHTHI whereby respondent No. 1 has surrendered his rights. It is submitted that since it was a letter, therefore, it was not required to be stamped and registered. In alternative, it was submitted that it was a family arrangement. Learned counsel further submits that even assuming that Ex.P/1 is a relinquishment deed, which required registration under the provisions of Indian Registration Act and stamped under the provisions of Indian Stamps Act, then too, the document could have been looked into for collateral purpose. Learned counsel further submits that learned Courts below committed error of law in dismissing the suit filed by the appellants as the same suffers on the ground of infirmity of perversity as the theory of ouster which was averred by the appellants, has not been looked into. Learned counsel for respondent No. 1 Shri B.I. Mehta submits that after taking into consideration of the documents, learned Courts below has come to the conclusion that the document is not admissible in evidence. It is submitted that Ex.D/1 is not a document whereby partition has taken place. On the contrary by this document, it has been alleged that the rights which respondent No. 1 was having, has been surrendered in favour of appellants and their father. It is submitted that in the circumstances, document was required to be stamped and also registered and in absence of this, learned Courts below have rightly held that the document is inadmissible in evidence. Shri B.I. Mehta, learned counsel for respondent No. 1 further submits that since respondent No. 1 is real brother of appellants and name of respondent No. 1 was mutated in the revenue record, therefore, respondent No. 1 is having the right in the suit property being the co-owner and no decree of injunction could have been granted against the co-owner. It is also submitted that so far as the theory of ouster is concerned, it is nowhere pleaded by the appellants, hence, the suit has been rightly dismissed by both the Courts below. It is also submitted that since respondent No. 1 is co-owner, therefore, any of the co-owners who is in possession, holds the possession on behalf of all the co-owners. For this contention, reliance is placed on the decision reported in Sadasivam Vs. K. Doraisamy, . It is also submitted that since respondent No. 1 is co-owner, therefore, any of the co-owners who is in possession, holds the possession on behalf of all the co-owners. For this contention, reliance is placed on the decision reported in Sadasivam Vs. K. Doraisamy, . Adverse possession - Joint family property - Exclusive possession of a coparcener - Not adverse to the other coparceners unless such possession was exercised by ousting them. After going through the record of the case, it is not in dispute that the findings arrived at by the Courts below and undisputedly appellants and respondent No. 1 are the brothers and sons of deceased Hemraj. So far as execution of document dated 17-1-1947 is concerned, is a finding of fact since Hemraj died in the year 1961. Thereafter in the revenue record, name of legal representatives were recorded which includes name of respondent No. 1 as well. No objection was raised by appellants as well. After death of Hemraj no document was executed by respondent No. 1 whereby respondent No. 1 surrendered his rights being a successor of Hemraj. From perusal of the document Ex.P/1 also, it is evident that respondent No. 1 has not claimed any rights in the property which was in the shape of house. So far as agricultural land is concerned, it is specifically mentioned in the document Ex.P/1 at the bottom that respondent No. 1 is not taking his share in the agricultural land. Apart from this document, so far as rights of respondent No. 1 are concerned, learned Courts below has come to the conclusion that Ex.P/1 is document which was executed by respondent No. 1 whereby respondent No. 1 has relinquished his rights, but it was found that document is inadmissible in evidence. From perusal of the recital of Ex.P/1, it is evident that respondent No. 1 got a house and also accepted the liability of payment of debt in the said document. It was also mentioned by respondent No. 1 that he has not received any share in the agricultural land. Since by this document, respondent No. 1 has not relinquished his rights in any manner, therefore, it was not required to be registered and was admissible in evidence. Apart from this, there are two more documents which are Ex.D/1 and D/2. It was also mentioned by respondent No. 1 that he has not received any share in the agricultural land. Since by this document, respondent No. 1 has not relinquished his rights in any manner, therefore, it was not required to be registered and was admissible in evidence. Apart from this, there are two more documents which are Ex.D/1 and D/2. Ex.D/1 is power of attorney dated 11-6-1960 whereby Hemraj appointed respondent No. 1 to look after the work of agricultural operations over the suit property. Another document is Ikrarnama which has been executed by respondent No. 1 Hemraj in favour of respondent No. 1 dated 29-8-1960 where Hemraj has alleged that respondent No. 1 will have 1/3rd share in the property. Since it was not the case before learned trial Court that respondent No. 1 has ousted by making the specific pleading, therefore, there was no occasion for the learned Courts below to decide the suit holding that whether respondent No. 1 is ousted or not? However, from the evidence, it is clear that appellants are in exclusive possession of the suit property and respondent No. 1 is not occupying the land, therefore, the appellants are entitled for a limited relief to the extent that the possession of appellants shall not be disturbed by the respondents without following due process of law. With the aforesaid order, the appeal stands disposed of finally.