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2013 DIGILAW 991 (MP)

Lakhan Lal v. Sitaram

2013-08-22

ALOK ARADHE

body2013
JUDGMENT Alok Aradhe, J. 1. This appeal is by the defendant which was admitted by the Bench of this Court on the following substantial questions of law:-- (i) Whether the learned Lower Appellate Court was legally justified in setting aside the reasoned finding of the learned Trial Court that the suit property was the joint family property of the parties and in holding that the same was the self acquired property of respondent No. 1-Sitaram, when from his own evidence it appeared that he had no independent source of income and continued to be a member of the Joint Hindu Family for about thirteen years after the execution of the document of sale (Exh. P-1), dated 14-6-1956, till the year 1969? (ii) Whether the Lower Appellate Court was legally justified in granting a decree of declaration regarding Khasra Nos. 1868, 1869, 1865 and 1866, though no relief therefor was claimed by the plaintiffs and that the above lands did not constitute the disputed property, as would appear from the plaintiff allegations? Facts giving rise to filing of the appeal, briefly stated, are that the plaintiff filed a suit on the ground that he purchased the suit land vide registered sale deed dated 14-6-1956 (Exh. P-1) from one Nathua for a consideration of Rs. 500/- and was placed in possession. Thereafter, one Chhakilal sold the suit land to defendant No. 1 on 20-1-1981 vide Exh. D-1. However, the factum of aforesaid sale was not within the knowledge of plaintiff. The defendant No. 1 on 20-1-1981 got his name mutated in the revenue records and interfered with the possession of the plaintiff over the suit land. Accordingly, the suit seeking the relief of declaration and permanent injunction was filed. 2. The defendant No. 1 filed written statement in which inter alia, it was pleaded that the plaintiff and defendant No. 1 are the real brothers and their father and uncle were Kamlapath and Chhakilal respectively. It was further pleaded that the suit lands belong to joint family. Since Kamlapath and Chhakilal were in need of the loan, therefore, they mortgaged the land with Nathua. On payment of mortgage money, the sale deed was executed, in which the name of plaintiff alone was mentioned. Chhakilal, who was issueless, sold his share in the land to the defendant No. 1. Since Kamlapath and Chhakilal were in need of the loan, therefore, they mortgaged the land with Nathua. On payment of mortgage money, the sale deed was executed, in which the name of plaintiff alone was mentioned. Chhakilal, who was issueless, sold his share in the land to the defendant No. 1. It was further pleaded that on the date of execution of the sale deed dated 14-6-1956 (Exh. P-1) the plaintiff was minor and had no source of income and the suit lands were acquired from the funds of the joint family. 3. The Trial Court vide judgment and decree dated 23-12-1995, inter alia, held that on the date of sale, i.e., 14-6-1956 the plaintiff was aged about 13 years and had no source of income and was a member of joint family, and the suit land were purchased from the funds of joint family. The Trial Court also found that after sale in the year 1956, in the revenue records the possession of the plaintiff was never recorded. It was further held that plaintiff himself admitted that Chhakilal sold the suit land to defendant No. 1 for a consideration of Rs. 2,000/-. Accordingly, it was held that the sale deed dated 20-1-1981 is not illegal. In the result, the suit filed by the plaintiff was dismissed. 4. The aforesaid decree was reversed in appeal by the Lower Appellate Court on the ground that the plaintiff is the owner on the strength of the sale deed (Exh. P-1), which is a registered document. It was further held that there is no evidence on record that the suit lands were re-conveyed to Kamlapath and Chhakilal. It was further held that subsequent sale deed executed in favour of the defendant No. 1 did not transfer any title to him as the property was already sold to the plaintiff. 5. Learned Counsel for the appellant submitted that the Lower Appellate Court grossly erred in reversing the well-reasoned judgment and decree of the Trial Court and in the state of evidence erred in holding that suit property was self acquired property of the plaintiff. It is further submitted that no relief with regard to Khasra Nos. 1868, 1869, 1865 and 1866 was claimed in the plaint and, therefore, the claim of the plaintiff in respect of the aforesaid khasra numbers could not been decreed. 6. It is further submitted that no relief with regard to Khasra Nos. 1868, 1869, 1865 and 1866 was claimed in the plaint and, therefore, the claim of the plaintiff in respect of the aforesaid khasra numbers could not been decreed. 6. I have considered the submissions made by learned Counsel for the appellant and have perused the record. It is well-settled in law that the First Appellate Court is under an obligation to reappraise the entire material on record as it is the Final Court of facts. The First Appellate Court while reversing the finding of the Trial Court has to meet the reasonings on which it is based. [See: Haryana State Industrial Development Corporation Vs. Cork (2007) 8 SCC 120 , Deva (dead) through L.Rs. Vs. Sajjan Kumar (dead) by L.Rs., (2003) 7 SCC 481 , Dilbagrai Punjab Vs. Sharad Chandra, AIR 1988 SC 1858 ]. It is well-settled in law that where the existence of joint family is established and such joint family is in possession of the nucleus sufficient to make acquisition then the presumption arises that acquisition standing in the name of person is by the joint family. Such person has to lead affirmative evidence to show that property in question has been acquired from his own funds. [See: Mudigowda Gowdappa Sank and others Vs. Ram Chandra Revgowada Sank (dead) by his Legal Representatives and another, AIR 1969 SC 1076 , Baikuntha Nath Paramanik (dead) by his L.Rs. and heirs Vs. Sashi Bhusan Pramanik (dead) by his L.Rs. and others, AIR 1972 SC 2531 and Surendra Kumar Vs. Phoolchand (dead) through his L.Rs. and another, AIR 1996 SC 1148 ]. 7. From perusal of the plaint, it is apparent that the plaintiff has sought declaration that sale deed dated 20-1-1981 is illegal and invalid and that the plaintiff should be declared as the owner in respect of the suit lands, the particulars of which have been mentioned in Paragraph 1 of the plaint. From perusal of the particulars of khasra numbers given in Paragraph 1 of the plaint, it appears that Khasra Nos. 1868, 1869, 1865 and 1866 have not been mentioned in Paragraph 1 of the plaint. The plaintiff has been examined as P.W. 1. In Paragraph 1, of his evidence he has admitted that at the time of execution of sale deed dated 14-1-1956 (Exh. P-1), he was minor. 1868, 1869, 1865 and 1866 have not been mentioned in Paragraph 1 of the plaint. The plaintiff has been examined as P.W. 1. In Paragraph 1, of his evidence he has admitted that at the time of execution of sale deed dated 14-1-1956 (Exh. P-1), he was minor. In Paragraph 3, he has further admitted that in the year 1958-59, he separated himself from the joint family. The plaintiff was the member of joint family at the time of execution of registered sale deed dated 14-6-1956. From the evidence of the plaintiff, it is not discernible that he had any source of income and, therefore, it is axiomatic that the suit property was acquired vide registered sale deed dated 14-6-1956 from the funds of the joint family, though the sale deed was executed in favour of the plaintiff. In the instant case, from the evidence of plaintiff it is evident that the plaintiff has failed to discharge the burden that he has acquired the suit property from his own funds. For the aforementioned reasons, both the substantial questions of law are answered in the negative and in favour of the appellant. Accordingly, the judgment and decree passed by the Lower Appellate Court is set aside and that of the Trial Court is restored. In the result, the appeal is allowed with cost.