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2013 DIGILAW 270 (MP)

Prabhudayal v. Bari Bai

2013-02-28

U.C.Maheshwari

body2013
ORDER 1. The appellants/defendants/tenants have filed this appeal under section 100 of the CPC being aggrieved by the judgment dated 20.6.2012 passed by Addl. Judge to the Court of First ADJ, Datia in Civil Regular Appeal No. 16A/11, affirming the judgment and decree dated 8.11.2011 passed by the Civil Judge Class-I, Datia in COS No. 12A/11 whereby the suit of respondent No. 1 filed for declaration and perpetual injunction against the appellants with respect of the half of the agricultural land described in the plaint has been decreed. 2. The facts giving rise to this appeal in short are that the disputed land was initially recorded in the name of husband of respondent No. 1, namely, Gyandas, Subsequent to his death, the same was mutated in the name of respondent No. 1 in the revenue record vide order of Tahsildar dated 15.12.2008. Thereafter, the appellants under some conspiracy with the revenue officials had obtained the signature of respondent No. 1 on some blank paper and by preparing some documents on the same, they got mutated their name on the land of respondent No. 1 in the record of rights. In this regard, no intimation was given to respondent No. 1 by the revenue Courts. Even the opportunity of hearing was also not extended. It is also stated that on the basis of forged and fabricated papers, some proceedings of partition was carried-out. The same was known to respondent No. 1 in the year 2010 when she went to the land for cultivation where the appellants tried to restrain her to carry-out such agricultural activities saying that she does not have any share in the land then on verification she came to know about the aforesaid fraud of the appellants, on which, she filed an application for review of the order of Tahsildar. The same was dismissed. Such order was challenged in the Court of Collector, on which, by allowing such proceedings in part, the case was remitted back to the Tahsidlar, Bhander for re-consideration. Thereafter, again such review application was dismissed and, in such premises, when the appellants were trying to interfere in the possession and title of respondent No. 1 then the impugned suit was filed by her for declaration and perpetual injunction till the extent of her half share. 3. Thereafter, again such review application was dismissed and, in such premises, when the appellants were trying to interfere in the possession and title of respondent No. 1 then the impugned suit was filed by her for declaration and perpetual injunction till the extent of her half share. 3. In the written statement of the appellants, by denying the title and possession of respondent No. 1 over the property, it is stated that it being their exclusive property, they are in possession and cultivating the same since long. The respondent No. 1 was never remained the Bhumi Swami of the same. As such, in partition, the respondent No. 1 herself had given such land to the appellants and now she is bound by the principle of estopple and could not challenge such partition. It is also stated that the appellants served Gyandas because he was residing with them and in life-time, he shown his wish to give the land to the appellants and pursuant to that the aforesaid partition was carried out at the instance of respondent No. 1 in which the entire land was recorded in the name of the appellants. Thereafter, by making the false and fabricated story under the pressure of Haridas, the brother of respondent No. 1 she has filed the present suit. It is also stated the no cause of action is available to the respondent No.1 to file the suit and specially after dismissal of the review petition by the Tahsildar, there is no scope to pass the decree in the matter. On account of long possession of the appellant, the suit of the respondent is also barred by time. The same being not filed on proper valuation and Court fees, deserves to be dismissed. In addition to it, it is stated that appellants being the legal representatives of Gyandas of class II of the schedule of Hindu Succession Act. Besides this, some other technical objections with respect of section 80 and non-jointing the Tahsildar as necessary parties in the suit are also taken. In such premises, the prayer for dismissal of the suit was made. 4. On bahalf of respondent No. 2/State of MP, no written statement was filed. It is apparent fact that State of MP was impleaded formal party because the main dispute was only between the respondent No. 1 and the appellants. 5. In such premises, the prayer for dismissal of the suit was made. 4. On bahalf of respondent No. 2/State of MP, no written statement was filed. It is apparent fact that State of MP was impleaded formal party because the main dispute was only between the respondent No. 1 and the appellants. 5. In view of the aforesaid pleadings of the parties, after framing the issues, the evidence was recorded. On appreciation of the same, by holding the respondent No. 1 to be the owner of the disputed land till the extent of her half share, the possession of the same was held in her favour by the trial Court. Pursuant to it, to protect her possession, the perpetual injunction was also issued against the appellants. Being dissatisfied with such decree, the appellant approached to the appellate Court under section 96 of the CPC. On consideration, by affirming such judgment and decree of the trial Court, such appeal was dismissed, on which, the appellants have come to this Court with this appeal. 6. Shri Sarvesh Sharma, counsel of the appellants, after taking me through the record along with the judgments of the Courts below argued that after death of Gyandas, the recorded Bhumi Swami and husband of respondent No. 1/plaintiff who was also the uncle of the appellants, the respondent No. 1 with her own consent, filed the above mentioned revenue proceedings in the Court of Tahsildar in which she categorically admitted the possession of the appellants over the land and on her consent, the name of the appellants were mutated in the revenue record at the place of Gyandas as well as of respondent No.1. After such admission of respondent No. 1, she did not have any authority to challegne the same because she was bound by the principle of estopple and theory of admission but any of the Courts below have not considered either the question of estopple or the question of admission of respondent No. 1 with proper approach and contrary to that decreed the suit of the respondent No. 1 taking into consideration that she is the only natural heir and the legal representatives of the deceased Gyandas and inherited the property in her exclusive title of Bhumi Swami righ and, in such premises, she was held in possession. In fact while dealing the matter it was also not considered by any of the Courts below that respondent No.1 subsequent to death of her husband was not residing in the village concerned where the land is situated and she use to reside with her parental family and, in such premises, her possession over the land could not be deemed by any of the Courts below. In support of such contention he also referred the cause title of the plaint in which the respondent No. 1 has mentioned her address to be the place of her parental home. It was also argued that it is undiputed fact on record that initially the property was recorded in the joint name of the deceased Gyan Das and the father of the appellants and, in such premises, it was the joint property of the equal share of the appellants branch as well as the branch of respondent No. 1. So declaration of one and a half share of respondent No. 1 in the disputed land, appellants being joint holder of such property with the respondent No. 1, the decree of perpetual injunction could not be passed against them and prayed for admission of this appeal on the substantial questions of law proposed in the appeal memo. 7. Having heard the counsel, keeping in view his arguments, I have carefully gone through the record of the Courts below along with the impugned judgments. 8. It is undisputed fact in the matter that the decreed property was belonging to the joint Hindu family of Gyandas, the husband of respondent No. 1 and the father of the appellants and, in such premises, the branch of both the parties had equal undivided share in the property. 8. It is undisputed fact in the matter that the decreed property was belonging to the joint Hindu family of Gyandas, the husband of respondent No. 1 and the father of the appellants and, in such premises, the branch of both the parties had equal undivided share in the property. It is also apparent fact on record that subsequent to death of Gyandas, the name of respondent No. 1 was mutated in the revenue record at the place of Gyandas, But it is apparent fact on record that subsequent to such mutation without any documentation of transfer of the share of respondent No. 1 in the alleged agricultural land, merely, on some papers, as alleged, singed by respondent No. 1, the name of such respondent No. 1 was deleted from the record and entire land was recorded in the name of the appellants and, in such premises, the appellants had shown themselves to be the exclusive Bhumi Swami of such land and as per the concurrent findings of the Courts below, on the basis of such mutation proceedings, they tried to deprive the respondent No. 1 from her right and enjoyment of the property but could not get success. 9. It is settled proposition of the law that in the property of joint family the coparcenary rights could not be transferred unless the documents of transfer is executed by one coparcener in favour of other person in accordance with the procedure prescribed under the law. The same could be transferred either by relinquishment deed, gift deed or any other documentation. Section 178 of the Madhya Pradesh Land Revenue Code does not permit the revenue Court to delete the name of co-Bhumi Swami from the record of rights. Such land may be partitioned between recorded co-Bhumi Swamis but by virtue of section 178 of the Code, any of the co-Bhumi Swami cannot deprive the other co-Bhumi Swami from their right in such land. So, in the lack of any documents and proper proceedings, mere on the basis of some entries in the khasra and khatoni, the appellants could not be deemed to be the Bhumi Swami or the exclusive owner of the property and in such premises, the Court below could not deprive the respondent No. 1 from her rights, title and possession of the property by dismissing her suit. It is apparent fact that on appreciation of the evidence, the impugned suit has been decreed for half of the share of respondent No. 1 along with perpetual injunction of such part of land. 10. It is settled proposition of the law that in a routine course, the decree of injunction is not granted againsd the co-owner or the coparcener of the property but where there are compelling circumstances then, there is no bar under the law to pass such perpetual injunction to protect the interest of the coparcener or the co-owner. So, keeping in view such principle if the case at hand is examined then it is apparent that there is concurrent findings of the Courts below on appreciation of the available evidence declaring the respondent No. 1 to be Bhumi Swami and owner of half of the share in the land described in the plaint and she was also held in possession of such half of the share. For giving such findings the available evidence was appreciated by the trial Court in its judgment in elaborate manner and later it was also considered by the appellate Court in same manner and accordingly both the Courts have found possession of respondent No. 1 over the disputed part of the land. So, such situation is not giving rise to any circumstance for framing the substantial question of law. 11. Apart the aforesaid, it is settled proposition of the law that the concurrent findings of the Courts below based on available evidence on the question of possession of the agricultural land being findings of fact could not be interfered at the stage of second appeal under section 100 of the CPC as laid down by the Apex Court in the matter of - Kishanlal Biharilal Maheshwari and others v. Ramrao Hanumant Rao Patil and another- AIR 1981 SC 1183 . So, in such premises there is no situation in the case at hand to frame any substantial question of law. 12. In the aforesaid premises, whatsoever arguments are advanced by the appellants counsel against the findings and approach of the Courts below have not appealed me because all such arguments were made by the counsel contrary to the concurrent findings of the Courts below on the factual matrix and, therefore, on these arguments also, I have not found any situation in the matter to frame any substantial question of law. 13. 13. In view of the aforesaid discussion, I have found any material substance in the matter giving rise to any substantial question of law requiring consideration under section 100 of the CPC at this stage. Consequently, this appeal being devoid of any merits is hereby dismissed at the stage of motion hearing.