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2013 DIGILAW 41 (MP)

Narbadiya Bai v. Ramdas

2013-01-04

R.S.JHA

body2013
JUDGMENT 1. This appeal has been filed by the appellants being aggrieved by the judgment and decree dated 20.8.1998 passed by the 2nd Additional District Judge, Shahdol, in C.A. No. 24A/97, affirming the judgment and decree dated 26.2.1997, passed by the Civil Judge Class II, Shahdol, in C.S. No. 21A/94, whereby the suit filed by the appellant/plaintiffs for declaration and partition relating to 1/3rd share of the lands comprising of Khasra Nos. 48, 91, 92, 96, 164, 243, 298, 308, 309, 310, 351, 366, 423, 424, 473, 516 and 518 total measuring 19.54 acres situated at village Samantpur and Khasra Nos. 37 and 54 situated at village Kodwar, has been dismissed. 2. It is submitted by the learned counsel for the appellant/plaintiffs that the appellant No. 1 is the daughter of Shobhaiya who was the son of the original owner Charka and the appellant No. 2 is the daughter-in-law of Shobhaiya and wife of Atmaram son of Shobhaiya. It is submitted that the property initially belonged to Charka, who had three sons, namely, Shobhaiya, Ramdas and Ramswarit. It is stated that on the death of Shobhaiya and his son Atmaram the appellants/plaintiffs had sought a decree of declaration and partition in respect of 1/3rd of the property of Charka which claim has been dismissed by both the Courts below. 3. The appellant/plaintiffs have, therefore, filed the present appeal stating that the following substantial questions of law arise for adjudication in the appeal:- (i) Whether the two Courts below erred in law in shifting the burden of proof date of death of Sobhaiya and Atmaram on the plaintiffs; in view of the provisions of sections 101 to 104 of the Evidence Act; resulting in miscarriage of justice? (ii) Whether the learned Court below erred in law in not awarding decree in favour of plaintiffs, in view of the provisions of section 14 of Hindu Succession Act; inspite of a clear admission by defendant regarding continuance of possession of the plaintiffs on the suit land after 1956? (iii) Whether the findings of the Courts below in relation to Exh. D. 1 is perverse in view of the provisions of M.P. Land Revenue Code and Revenue Circulars regarding mutation and the facts and circumstances of the case? (iv) Whether the Courts below were justified in applying the provisions of Rewa Land Revenu Code in the facts and circumstances of the case? D. 1 is perverse in view of the provisions of M.P. Land Revenue Code and Revenue Circulars regarding mutation and the facts and circumstances of the case? (iv) Whether the Courts below were justified in applying the provisions of Rewa Land Revenu Code in the facts and circumstances of the case? (v) Whether the First Appellate was justified in refusing to grant a decree even after holding the death of Atmaram to be subsequent to 1956 in the facts and circumstances of the case? 4. It is submitted by the learned counsel for the appellant/plaintiffs that the Courts below have erred in law in determining the date of death of Shobhaiya as well as Atmaram and has also erred in law in placing the burden of proof on the appellant/plaintiffs to establish the date of death of Shobhaiya and Atmaram. It is also contended that as the respondents asserted that Shobhaiya and Atmaram had died priod to 1956 but had failed to produce any document or evidence in that respect, adverse inference in respect of their claim should have been drawn by the Court below. It is submitted that as Sobhaiya and Atmaram had died subsequent to 1956, both the appellants are entitiled to 1/3rd share in the property in accordance with the provisions of section 14 of the Hindu Succession Act. 5. I have heard the learned counsel for the appellant/plaintiffs at length and perused the record. 6. From a perusal of the judgments of the lower appellate Court and the trial Court as well as the evidence on record it is clear that both the Courts below have recorded a finding to the effect that Shobhaiya had died prior to coming into force 1956 Act. It is also clear that both the Courts below have concurrently recorded a finding that the appellant/plaintiffs have failed to establish that Shobhaiya had died 30 years prior to institution of the suit in the year 1990 and that Atmaram had died 25 years prior to institution of the suit. It is further clear that both the Courts below have relied upon Ex.D-1, the document filed by the respondent/defendants, to record a finding to the effect that Shobhaiya had died prior to 1951 as the name of Atmaram was mutated in the record along with the two surviving sons of Charka, namely, Ramdas and Ramswarit (Swarit). It is further clear that both the Courts below have relied upon Ex.D-1, the document filed by the respondent/defendants, to record a finding to the effect that Shobhaiya had died prior to 1951 as the name of Atmaram was mutated in the record along with the two surviving sons of Charka, namely, Ramdas and Ramswarit (Swarit). It is also apparent from a perusal of the evidence and documents on record as well as the judgment of both the Court below that the appellants have not denied Ex.D-1 nor have they brought any document on record to indicate that Shobhaiya died 30 years prior to institution of the suit and Atmaram died 25 years prior to institution of the suit. 7. It is also clear from a perusal of document, Ex.D-1 that in 1951 the name of Ramdas, Ramswarit and Atmaram son of Shobhaiya had been mutated which indicates that as on that date Shobhaiya had already expired. It is also apparent from a perusal of the statement of the appellant No. 1/plaintiff herself that Atmaram died 5-6 months after the death of Shobhaiya. In fact, the appellant No. 1/plaintiff has reiterated this statement twice in her evidence asserting that Atmaram had died 5-6 months after the death of Shobhaiya. 8. It is also apparent from a perusal of the statement of the appellant/plaintiff No. 1 that she had claimed 1/3rd share of the property in herself alleging that the appellant No. 2 wife of Atmaram son of Shobhaiya had married another person after the death of Atmaram and left the property to her, however, there is nothing on record to indicate that appellant No. 2 transferred her rights to appellant No. 1. On the contrary, the appellant No. 2 has not appeared to record her statements before the trial Court and therefore has not made any claim for herself while appellant No. 1 being the daughter did not have any right to claim 1/3rd share at the time of death of her father prior to 1951. 9. On the contrary, the appellant No. 2 has not appeared to record her statements before the trial Court and therefore has not made any claim for herself while appellant No. 1 being the daughter did not have any right to claim 1/3rd share at the time of death of her father prior to 1951. 9. In view of the aforesaid facts and circumstances, I am of the considered opinion that as the appellants/plaintiffs failed to produce any evidence to establish that the death of Shobhaiya and Atmaram occurred after 1956 as asserted by them or 30 years 25 years, respectively, after filing of the suit in 1990, no fault can be found in the findings recorded by the Courts below in this regard. It is also clear that as Shobhaiya and Atmaram died prior to 1956, no right, whatsoever, can be claimed by the appellants/plaintiffs in the property, more so, as there is no assertion on their part regarding possession of the property prior to 1956. 10. In the circumstances, as no substantial question of law arises for adjudication in the present appeal, it is accordingly dismissed.