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2017 DIGILAW 1230 (HP)

Joginder Singh v. Bhagat Ram

2017-11-06

CHANDER BHUSAN BAROWALIA

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JUDGMENT Chander Bhusan Barowalia, J. - The present regular second appeal is maintained by the appellant, who was the plaintiff before the learned Trial Court (hereinafter to be called as ''the plaintiff''), laying challenge to the judgment and decree, dated 21.06.2005, passed by learned District Judge, Bilaspur, H.P., in Civil Appeal No. 75 of 2002, whereby the judgment and decree, dated 25.05.2002, passed by the then Senior sub-Judge, Bilaspur, District Bilaspur, H.P., in case No. 101/1 of 1999, was set aside. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the plaintiff has filed a suit against the respondents, who were the defendants before the learned Trial Court (hereinafter to the called as ''the defendants'') for permanent prohibitory injunction with regard to the land, measuring 2-6 bighas, comprising in khewat No. 43, khatauni No. 49, khasras No. 29, 70, 80, 170 and 292, situated at Village Sai Fardian, Pargana and Tehsil Sadar, District Bilaspur, H.P., as per Jamabandi for the year 1995 - 96 (hereinafter to be called as ''the suit land''). As per the plaintiff, the suit land is owned and possessed by him and the defendants have no right, title and interest over the same. The plaintiff has further alleged that on 18.06.1999, the defendants tried to cut trees from the suit land, in order to dispossess him from there and though he requested them not to interfere in the suit land, however they refused, hence he filed the suit for injunction against them. 3. The defendants, by filing written statement, denied the contents of the plaint. It has been further averred in the written statement that the plaintiff is not sole owner of the suit land, but he is one of the coparcener alongwith defendants No. 1, 3, Hiru, Naratu Ram, Keshav, Vinod Kumar, Jitender Kumar, Anil Kumar, Ashok Kumar, Ram Pal, Dwarka Devi, Ram Piari, Beasan Devi, Rattani Devi, Roshani Devi and Vidya Devi, who are also stated to be co-owners in the suit land. It is has been further stated that defendant No. 1, Bhagat Ram is managing the suit land as co-sharer being head of family and the plaintiff has only 1/12 share in the suit land, which he can get after partition of the land, thus the defendants prayed for dismissal of the suit on the ground that a co-sharer cannot restrain other co-sharers from exercising their rights over the joint property. 4. The learned Trial Court on 22.03.2000 framed the following issues for determination and adjudication: "1. Whether the plaintiff is owner in possession of suit land? OPP 6. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed? OPP 7. Whether the suit land is joint Hindu and coparcenary property? OPD 8. Relief.? 5. After deciding issues No. 1 and 2 in favour of the plaintiff and issue No. 3 in favour of the defendants, the learned Trial Court decreed the suit of the plaintiff. Subsequently, the plaintiff maintained an appeal before the learned first Appellate Court, which was allowed. Hence the present regular second appeal, which was admitted for hearing on the following substantial question of law: "1. Whether the first Appellate Court could not have accepted the appeal and dismissed the suit of the plaintiff-appellant which was for permanent prohibitory injunction simpliciter with the observation that the appellant-plaintiff had not produced and proved the Will under which he succeeded to the suit property?" 6. Mr. T.S. Chauhan, learned counsel for the appellant has argued that the latest revenue entries are in favour of the appellant-plaintiff and the learned first Appellate Court, after ignoring the latest revenue entries, to which the presumption of truth is attached, set aside the well reasoned judgment, passed by the learned Trial Court. On the other hand, Mr. Rajnish K. Lal, Advocate, vice counsel has argued that the plaintiff is claiming ownership on the basis of Will, however the said Will was never produced on record by the plaintiff. He has further argued that the entries, which have come in favour of the plaintiff, are without any valid order and no presumption of truth is attached to those entries, hence the present appeal deserved to be dismissed. He has further argued that the entries, which have come in favour of the plaintiff, are without any valid order and no presumption of truth is attached to those entries, hence the present appeal deserved to be dismissed. In rebuttal, learned counsel for the appellant has argued that as the plaintiff is recorded as owner-in-possession of the suit land and he was only praying for injunction, the suit was rightly decreed by the learned trial Court, which findings are required to be upheld to meet the ends of justice and the findings recorded by the learned first Appellate Court, which are perverse, are required to be set aside. 7. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 8. The plaintiff in order to prove his case has examined himself as PW-1 and deposed that on 19.06.1999 when he was going to his field, the defendants forcibly cut grass and trees from his land. He has further deposed that his grandfather, Mansha Ram has executed the Will in his favour and after his death on 14.03.1995, the mutation has been attested in his favour. In his cross-examination, he admitted that he has not got the probate of the Will. He has further admitted that earlier all the family members were living together. He has also admitted that the defendants used to cut the produce from the suit land. 9. PW-2, Sant Ram, has deposed that the plaintiff is owner-in-possession of the suit land and the defendants used to cut the produce, as well as grass and trees from the suit land. He has further deposed that on the day of occurrence he went there, being god brother of the plaintiff and saw that the defendants were abusing the plaintiff. In his cross-examination, he deposed that suit land is ancestral property, which Mansha Ram has inherited from his father. He has further deposed that all the sons and daughters of Mansha Ram were living jointly with him. 10. PW-3, Roop Lal, has deposed that on 18.06.1999, he was on his land, which is adjacent to the land of plaintiff and seen that the defendants were abusing the plaintiff and also throwing stones upon him. He has further deposed that the defendants had also cut two trees from the suit land and as the plaintiff was all alone he ran away from the spot. He has further deposed that the defendants had also cut two trees from the suit land and as the plaintiff was all alone he ran away from the spot. In his cross-examination, he deposed that the land in question has been gifted to the plaintiff by his grandfather, Mansha Ram on 18.06.1999, by way of registered deed. However, he feigned ignorance, as to which land has been exactly given to the plaintiff. 11. DW-1, Bhagat Ram, has deposed that suit land was owned by Mansha Ram, who acquired this land by way of succession from his father Tihru Ram. He has further deposed that he, his brothers, his sons and his nephews are all owners of the suit land and having possession over the same. He also stated that he has six sisters and his mother Gaurju Devi was alive when his father expired. He denied that the suit land has been mutated in the name of plaintiff. He also denied that they are not in possession of the suit land. In his cross-examination, he denied that after the death of his father on 14.03.1995, the suit land has been mutated in favour of the plaintiff. He denied that they had forcibly cut the grass and trees from the suit land. 12. The case of the plaintiff is that the land was gifted to him by his grandfather, Mansha Ram, however in this regard neither any Will was produced by the plaintiff, nor any probate was obtained. Further it has also come on record that the suit land is ancestral property and not the individual land of Mansha Ram. PW-3, in his examination-in-chief has specifically stated that the property in dispute was given to the plaintiff by Mansha Ram by way of registered gift deed, dated 18.06.1999, however he has also stated that Mansha Ram has 5 sons and 6 daughters. The statement of PW-3, appears to be contrary, as the plaintiff has deposed a different version. As per the plaintiff, Mansha Ram has expired on 14.03.1995, so it is difficult to believe as to how registered gift deed has been executed by him on 18.06.1999, after about 4 years of his death. The plaintiff has also not proved as to how mutation No. 332 of the property of Mansha Ram came to be sanctioned in his favour on 24.07.1995, when his 5 sons and 6 daughters were alive. The plaintiff has also not proved as to how mutation No. 332 of the property of Mansha Ram came to be sanctioned in his favour on 24.07.1995, when his 5 sons and 6 daughters were alive. The property of Mansha Ram would have been devolve upon the heirs either by way of survivorship or by way of inheritance. 13. Section 8 of Hindu Succession Act, 1956 specifically provides that the property of male Hindu dying intestate shall devolve according to the provisions of this Chapter. The general rules of succession in the case of males are as under: (a) Firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) Secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) Lastly, if there is no agnate, then upon the cognates of the deceased. Since no Will, gift or sale deed has been placed on record, it can be said that the Hindu male, i.e. Mansha Ram died intestate and his inheritance shall devolve on his legal heirs. 14. As far as mutation is concerned, it is settled proposition of law that mutation without any basis is inoperative and does not confer any right. There is nothing on record which suggests that mutation was attested on the basis of Will, gift or sale deed, as none of these three documents were produced on record, thus mutation No. 332 appears to be illegal. The defendants, being co-sharers have every right, title or interest in the suit land to enjoy the joint property. 15. This Court in Kewal Krishan & another vs. Amrit Lal has enumerated the rights of co-parceners, which are as under: "(a) A co-owner/co - sharer has an interest/right in the whole property, i.e., in every inch of it. (b) Possession of joint property by one co-owner/co sharer, is in the eye of law, possession of all even if all, except one are actually out of possession. (c) A mere occupation of a larger portion or even of an entire joint property by one co-sharer/co-owner does not amount to ouster of the other, as the possession of one is deemed to be on behalf of all. (c) A mere occupation of a larger portion or even of an entire joint property by one co-sharer/co-owner does not amount to ouster of the other, as the possession of one is deemed to be on behalf of all. This is subject to an exception when there is complete and conclusive ouster of a co-owner/co-sharer by another, but in order to negative the presumption of joint possession on behalf of all, on the ground of such ouster, the possession of a co-owner/co-sharer must not only be exclusive but also hostile to the knowledge of the other, i.e., when a co-owner openly asserts his own title and denies that of the other. (d ) Lapse of time does not extinguish the right of the co owner/co-sharer, who has been out of possession of the joint property, except in the event of abandonment. (e) Every co-owner/co-sharer has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners /co-sharers. (f) Where a co-owner/co-sharer is in possession of separate parcels under an arrangement/consent by the other co-owners/co-sharer, it is not open to any co-sharer/co-owner to disturb the arrangement without the consent of others, except by way of partition. (g) Whenever there is severance of title and the parties have a long possession on the parcels of joint land, as far as possible, the partition is required to be made in a manner that party in occupation, as far as possible, be adjusted in that portion or part of that. (h) Co-sharers/co-owners are expected to respect the right of others even when they are in settled possession on specific portion of the land in a manner that the easementary rights of the others are not obstructed. (i) The co-sharers/co-owners are required to respect the sentiments of each other to maintain peace among themselves. This is not only a legal, but a moral duty as well, which is required to be follow ed by the co sharers/co-owners and should be recognized as a right while adjudicating the rights of the parties, as the ultimate goal of the administration of justice is to maintain peace in the society, especially among the co-sharers/co-owners. (j) The eldest co-sharer/co-owner is duty bound to come forward and settle the dispute inter se any two or more co-sharers/co-owners after mediating. (j) The eldest co-sharer/co-owner is duty bound to come forward and settle the dispute inter se any two or more co-sharers/co-owners after mediating. This is not only his duty as a co-sharer/co-owner being elder, but also his moral duty to spare some time, experience, mental faculties and the respect he command to mediate dispute(s) among the co sharers/co-owners in order to achieve peace. The Courts can also make use of such process by taking help from the elder co-sharer/co-owner by asking him to mediate the matter, so that the peace is achieved among the co-shares/co-owners and ultimately in the society." 16. In view of the above discussion, the findings of the learned first Appellate Court holding that in the absence of production of Will, on the basis of which the plaintiff is claiming exclusion of the defendants from the suit land and non production of any other documents, i.e. Will, as claimed, are as per law and after appreciating the record to its true perspective, so the question of law is answered accordingly. 17. The net result of the above discussion is that the instant appeal, sans merits, deserves dismissal and is accordingly dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. 18. Pending miscellaneous application(s), if any, also stand(s) disposed of.