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2020 DIGILAW 36 (CHH)

BIRAN RAM (DIED) v. MANGLI BAI, WIDOW OF LATE HARINATH RAJWAR

2020-01-09

SANJAY K.AGRAWAL

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JUDGMENT Sanjay K Agrawal, J. - Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellant/defendant (Now, his Lrs.) under Section 100 of the CPC assailing the impugned judgment and decree whereby the first appellate Court reversed the judgment and decree of the trial Court and thereby, decreed the suit of the plaintiffs. 2. Mr. Ashok Ku. Shukla, learned counsel appearing for the appellant/defendant would submit that the first appellate Court is absolutely unjustified in reversing the well-reasoned judgment and decree of the trial Court and thereby, decreeing the suit of the plaintiffs ignoring the plea that defendant's mother namely Budhni Bai was the 'Gharjiha' daughter of Bhola Ram who is the grandfather of the plaintiffs and the suit property was originally held by him and he gave 1.76 acres of land to her daughter Budhni Bai during his lifetime, as such, the finding recorded by the first appellate Court is perverse and contrary to record and the appeal deserves to be admitted by formulating substantial question of law in this regard. 3. It is a case of the plaintiffs that the suit property including other land was given on patta in Sarguja Settlement vide Ex. P/8 to plaintiffs' father Lagan Sai and their uncle Kanak Sai from whom they have inherited the said suit property, which the trial Court did not accept and dismissed their suit holding that plaintiffs' names have not been recorded in the revenue records and Bhola Ram had given 1.76 acres of the land to defendant's mother Budhni Bai during his lifetime which the defendant has been in possession of and has been cultivating it after the death of his mother Budhni Bai. Learned first appellate Court did not accept the findings recorded by the trial Court and held that the suit property was given to plaintiffs' father Lagan Sai and uncle Kanak Sai vide Ex. P/8 by granting Raiyati Patta in Sarguja Settlement, as such, plaintiffs are the title-holders of the suit property as it was the self-acquired property of Lagan Sai and Kanak Sai. 4. In paragraph 228 of Mulla Hindu Law (23rd edition), it has been held that the property granted to a member of the joint Hindu family is considered to be his separate property which states as under :- " 228. 4. In paragraph 228 of Mulla Hindu Law (23rd edition), it has been held that the property granted to a member of the joint Hindu family is considered to be his separate property which states as under :- " 228. Separate property.-Property acquired in any of the following ways is the separate property of the acquirer, it is called 'self-acquired' property, and is subject to the incidents mentioned in 222: (1) xxx xxx xxx (2) xxx xxx xxx (3) Government grant.-Property granted by government to a member of a joint family is the separate property of the donee, unless it appears from the grant that it was intended for the benefit of the family." 5. The learned author (Mulla) in the next page 342 (23rd Edition) has also remarked that selfacquired property, in its technical sense, means property obtained by a Hindu without any detriment to ancestral property as to the property described in clauses (1)-(3) and (5) of paragraph 228. 6. As such, the property acquired by Government grant even to a member of joint family would be separate property of the donee. (See Katama Natchiar v. Rajah of Shivagunga,1863 9 MIA 539, pp 543, 610 and Sri Mahant Govind v. Sitaram,1899 21 All 53 : 20 IA 195.) 7. Mayne's Hindu Law & Usage (16th Edition) revised by Justice Ranganath Misra in para 308 while dealing with the grants made by the Government observed: Estate conferred by Government in the exercise of their sovereign power becomes the self-acquired property of the donee, whether such gifts are absolutely new grants, or only the restoration to one member of the family of property previously held by another but confiscated, unless some contrary intention appears from the grant, or the conduct of the donee and the other members of his family shows that they treated it as joint family property. 8. In my considered opinion, it has rightly been held that the suit property was settled in favour of plaintiffs' father Lagan Sai and uncle Kanak Sai vide Ex. P/8, therefore, it would be their separate property and it was not the property held by Bhola Ram, therefore, the title claimed by the defendant through Budhni Bai being the 'Gharjiha' daughter of Bhola Ram is not at all established. 9. P/8, therefore, it would be their separate property and it was not the property held by Bhola Ram, therefore, the title claimed by the defendant through Budhni Bai being the 'Gharjiha' daughter of Bhola Ram is not at all established. 9. Likewise, with regard to the plea of adverse possession raised by learned counsel for the appellant/defendant, the trial Court dismissed the suit of the plaintiffs while holding it to be within limitation but stating that on 10/01/1999, defendant forcibly possessed the suit property by dispossessing the plaintiffs. Even otherwise, the defendants have failed to plea and prove the three classic requirements of adverse possession namely adequate in continuity, adequate in publicity and adverse to competitor in denial of title and his knowledge as per the decision of the Supreme Court in Ravinder Kaur Grewal and Ors. v. Manjit Kaur and Ors., (2019) 8 SCC 729 . 10. Lastly, learned counsel for the appellant/defendant has submitted that the State of Chhattisgarh was necessary party in the suit and in its absence, plaintiffs' suit could not have been decreed by the first appellate Court. No such objection was either raised before the trial Court or before the first appellate Court, therefore, this plea cannot be entertained for the first time before this Court. 11. As a fallout and consequence of the aforesaid legal analysis, the second appeal deserves to be and is accordingly dismissed in limine without notice to the other side. No cost(s).