Butani Bai (Dead) Through Lrs Smt. Murdin Bai v. Urmila Prasad (Dead) Through Lrs Mst. Draupadi Gupta
2025-08-20
DWARKA DHISH BANSAL
body2025
DigiLaw.ai
JUDGMENT : DWARKA DHISH BANSAL, J. This second appeal has been preferred by the appellants/defendants1-4 challenging the judgment and decree dtd.05/01/2005 passed by 2 nd Additional District Judge, Shahdol, District Shahdol in Civil Appeal No.11A/2004 reversing the judgment and decree dtd.01/10/1997 passed by Civil Judge Class-II, Rajendragram in Civil Suit No.21A/1989 whereby Trial Court dismissed the original respondent 1/plaintiff-Urmila Prasad’s suit for declaration of title and permanent injunction filed in respect of land survey no.300 area 4 acres, situated in Village/Mauja Kirgi, District Shahdol, which has been decreed by First Appellate Court. 2. Facts in short are that the respondent 1/plaintiff-Urmila Prasad had instituted the suit for declaration of title and permanent injunction with the allegations that along with other lands, the suit land survey no.300 area 4 acres, was acquired by his father, the defendant 8-Gulabdas Gupta and in the year about 1970, there being strain relations in the family, especially with brother-Jagdish Prasad, the plaintiff started residing separately and when he asked for his share, he was given the land of survey no.300 area 4 acres by the father and since thereafter he is in cultivating possession of the land. It is alleged that when the defendants 1-7 on the basis of revenue entries, started making interference in possession of the plaintiff, then the plaintiff after receiving the certified copies of the revenue record, filed the suit. 3. The defendants 1-4 appeared and filed written statement denying the plaint allegations and contended that the suit property is not self acquired property of Gulabdas Gupta but it is joint Hindu family property, regarding which partition has already taken place, in which the land came in share of defendant 1-Butani Bai and accordingly the defendants are in possession. On inter alia contentions, the suit was prayed to be dismissed. 4. The defendants 5-7 did not file any written statement. However, the defendant 8 filed his separate written statement and admitted the plaint allegations and contended the suit land to be his self acquired property, altogether different from the joint Hindu family property. 5. On the basis of pleadings of the parties, Trial Court framed issues and recorded evidence. In support of his case the plaintiff examined Narmada Gupta (PW/1), Gulabdas Gupta (PW/2), Dalsah Singh (PW/3) and produced documents (Ex.P/1 to P/5). In rebuttal, the defendants examined Dwarika Prasad (DW/1) and Naanshah (DW/2), however did not produce any documentary evidence. 6.
5. On the basis of pleadings of the parties, Trial Court framed issues and recorded evidence. In support of his case the plaintiff examined Narmada Gupta (PW/1), Gulabdas Gupta (PW/2), Dalsah Singh (PW/3) and produced documents (Ex.P/1 to P/5). In rebuttal, the defendants examined Dwarika Prasad (DW/1) and Naanshah (DW/2), however did not produce any documentary evidence. 6. After hearing the parties, Trial Court vide its judgment and decree dtd.01/10/1997, dismissed the suit holding the suit land to be a joint Hindu family property of the parties and also held that the suit is barred by limitation in respect of the relief claimed by the plaintiff to the effect that the mutation entry and partition order is null and void, however held the suit to be within limitation in respect of relief of declaration of title. 7. Against the aforesaid judgment and decree passed by Trial Court, the plaintiff preferred civil appeal. After hearing the parties, First Appellate Court vide its judgment and decree dtd.05/01/2005 allowed the civil appeal and decreed the suit holding the suit property to be a self acquired property of Gulabdas Gupta and at the same time it is also held that the plaintiff is in possession. 8. Against the aforesaid judgment and decree passed by First Appellate Court, instant second appeal was preferred by the defendants 1- 4 which was admitted for final hearing on 18/01/2006 on the following substantial question of law:- “Whether learned appellate court has committed an error in reversing the decree of the trial court regarding dismissal of the suit and decreeing the suit of respondent no.1 contrary to provision of Article 58 of the Limitation Act ?” 9. Learned counsel for the appellants/defendants 1-4 submits that upon due consideration of the material available on record, Trial Court rightly dismissed the suit holding it to be barred by limitation and further in absence of any evidence led by the plaintiff regarding self acquisition of the suit property and in view of the fact that all the parties were residing together, Trial Court rightly held the suit property to be belonging to the joint Hindu family and in absence of any other evidence, there was no reason to reverse this finding by First Appellate Court.
He submits that although no revenue record has been placed on record by the defendants, but they are still in possession of the suit property and during pendency of the suit as well as appeal, both the parties were directed to maintain status quo in respect of possession. With these submissions, he prays for allowing the second appeal. 10. Learned counsel appearing for the respondent 1/plaintiff supports the impugned judgment and decree passed by First Appellate Court and submits that the suit land survey no. 300 area 4 acres was granted to the plaintiff’s father Gulabdas Gupta vide patta (Ex.P/1) and in absence of any other evidence adduced by the defendants, against self acquisition of the suit property by Gulabdas Gupta, First Appellate Court has rightly held the suit property to be self acquired property of Gulabdas Gupta. He submits that as the suit land was granted on patta to the father of the plaintiff, namely Gulabdas Gupta, therefore, First Appellate Court has rightly held the plaintiff to be in possession of the suit land and decreed the suit holding it to be within limitation. With these submissions, he prays for dismissal of the second appeal. 11. Heard learned counsel for the parties and perused the record. 12. From perusal of the patta (Ex.P/1) it clear that the suit land was granted on patta to the plaintiff’s father in Samvat 2008. For the reasons best known to the defendants, they have not produced any documentary evidence on record. Although, the defendants are placing reliance on the order of partition dtd. 13/12/1975 (Ex.P/3), but perusal of this order shows that the land survey no. 300 area 4 acres was not given to anybody and on the second page of this order, it is mentioned that in the proceedings, the plaintiff appeared and said that land of survey no. 300 area 4 acres, has already been given to him and he is in possession. Except this, nothing has been mentioned in the order of partition regarding allotment of this land to anybody. 13. Perusal of the judgment of Trial Court, shows that it has found the suit land to be belonging to joint Hindu family mainly on the premise that at the time of granting patta, Gulabdas Gupta was residing in the joint family.
Except this, nothing has been mentioned in the order of partition regarding allotment of this land to anybody. 13. Perusal of the judgment of Trial Court, shows that it has found the suit land to be belonging to joint Hindu family mainly on the premise that at the time of granting patta, Gulabdas Gupta was residing in the joint family. It is well settled that mere by joint residence, it cannot be presumed that the property acquired by a member of joint family, in his exclusive name, was acquired from the funds of joint Hindu family or for the benefit of joint Hindu family. First Appellate Court taking into consideration the undisputed fact of grant of patta in the name of plaintiff’s father Gulabdas Gupta and in absence of any other evidence, more so in absence of any document/evidence showing allotment of this land to the defendants, in alleged partition, has held that the suit land is self acquired property of Gulabdas Gupta and it was given to the plaintiff. 14. Perusal of the judgment and decree of Trial Court also shows that it has not recorded any finding of possession in favour of defendants, but First Appellate Court has upon due consideration of the oral and documentary evidence, held that the plaintiff is in possession of the suit land, which in absence of any perversity, is a pure finding of fact. 15. So far as the question of limitation is concerned, Trial Court in respect of the relief of declaration of title, has held the suit to be within limitation but in respect of relief of declaring the order of mutation and partition, held the suit to be barred by limitation. Upon due consideration of the cause of action and the evidence adduced by both the parties, First Appellate Court has held that the suit filed by the plaintiff is within limitation. Even otherwise in the light of finding of First Appellate Court regarding title and possession of the plaintiff over the suit land, the suit cannot be said to be beyond limitation, only on the premise of some revenue entry made in favour of the defendants, that too in view of settled legal position, that mere mutation entry in revenue record, neither confers any title nor extinguishes title of the true owner.
Accordingly, the substantial question of law formulated by this Court, is decided in negative and against the appellants. 16. Apparently, no other substantial question of law has been framed by this Court nor the same has been proposed by the appellants additionally, by moving any application under Section 100(5) of the CPC. 17. Resultantly, this second appeal fails and is hereby dismissed. 18. Pending application(s), if any, shall also stand disposed of.