Meva Devi & Ors. v. Oniprakash & Ors.

Meva Ramkishan; aged 70 years Devi, W/o Late Shri s/o Shri Banarasi Das, Ramkishan; aged about 65 years Smt. Asha Devi, W/o Late Shri Govindram; aged about 45 years Ku. Sonal D/o Late Shri Govindram; aged about 16 years Rachna, Ku. Govindram; aged about 15 years Akash Govindram; aged about 11 years Ku. Govindram; aged about 9 years Ayushi, Kumar, Late Late Shri Shri Shri D/o D/o S/o (Appellants No. 3 to 7 are the Legal Representatives deceased defendant late Shri Govindram, S/o Late Shri Ramkishan) impugned judgment (In decree Govindram has been shown as defendant No. 4, however he had died during the pendency of the suit representatives have and his legal already been brought on record and therefore no need to mention the name of this deceased defendant) therefore (Appellants No. 4 to 7 are the minors represented through their mother and natural Guardian Smt. Asha Devi, w/o. Late Shri Govindram. Pawan Kumar, Ramkishan; aged about 45 years All appellants are resident of Gandhi Ganj, Raigarh, Tehsil and District Raigarh (C.G.) Late Shri S/o S/o Late Shri aged about 52 S/o Omprakash, Ja.gSLnna.th. Agrawal, Shri Ramesh Kumar, Jagannath Agrawal; aged about 49 Natwar Lal, S/o Late Shri Jagannath Agrawal; aged about 43 years Pramod Kumar Late Jagannath Agrawal, aged Shri about 41 Late S/o

Sharda Devi, W/o Smt. Kumar Kediya, aged about 47 years Smt. Kiran Kediya, W/o Kumar Kediya, aged about 45 years Pawan Pawan suit, impugned judgment (In Jagannath decree, Agrawal and Smt. Pushpa Devi, W/o Jagannath Agrawal has been shown plaintiff. However, during the pendency Jagannath Agrawal and Smt. Pushpa Devi had expired hence they are not respondent. Their already been brought on record and 6) they are Plaititiffs All residents of Gandhiganj, Raigarh, Tehsil and Distt. Raigarh (C.G.) representatives impleaded respondents 1 s/o Agrawal,

Baijnath Late Jaynarayan Agrawal, aged about 75 years, R/o Gandhi Ganj, Raigarh, Tehsil and District Raigarh (C.G.)

State of Chhattisgarh through the Collector, Raigarh, District Raigarh (CG)

FIRST APPEAL N0. 55/2006 APPELLANTS

1. Agrawal, Baijnath Jainarayan Agrawal, age 55 years, r/o Gandhiganj, Raigarh, Tehsil and Distt. Raigarh, Chhattisgarh S/o i. ii. Defendaut No. 1 Smt. Savitri Devi, widow of Late Baijnath Agrawal, aged about 70 Santosh Agrawal, son of Late Baijnath Agrawal, aged about 52 iv. iii. Mohan Lal Agrawal, son of Late Baijnath Agrawal, aged about 45 Pankaj Agrawal, s/o Late Baijnath Agrawal, aged about 28 years The above mentioned heirs are resident of M.G. Road Raigarh, Distt. Raigarh C.G. Smt. Lata Agrawal, d/o Late Baijnath Agrawal, wife of Shri Shyam Lal Agrawa, aged about 42 New Khurshipar, years, Bhilai C.G. Smt. Madhu Agrawal, d/o Late Baijnath Agrawal, wife of Shri R/o v. vi. RESPONDENTS . > vii. Vlll. Vs 1. l.A B C. D. E. F. G.

A. B. C. D. E. Sanjay Agrawal, aged about 38 r/o 106 Sunder Nagar, years, Bhilai, C.G. Smt. Sarita Agrawal, d/o Late Baijnath Agrawal, wife of Shri Mukesh Agrawal, aged about 34 New Khurshipar, years, R/o Bhilai C.G. Ku. Uma Agrawal, d/o Late Baijnath Agrawal, aged about 29 years, R/o M.G. Road Raigarh C.G. S/o Jagannath Prasad Agrawal, son of Late Jainarayan Agrawal, through the Legal representatives Smt. Pushpa Devi, widow of Jagannath Agrawal, aged about 71 years (dead deleted) Omprakash, S/o Late Jagannath Agrawal, aged about 52 years Ramesh Kumar, Late Jagannath Agrawal, aged about 49 years Natwarlal, S/o Late Agrawal, aged about 43 years Kumar, Pramod Jagannath Agrawal, aged about 41 years Smt. Sharda Devi, W/o Pawan Kumar Kedia, aged 47 years Smt. Kiran Kedia, W/o Pawan Kumar Kedia, 45 Jagannath S/o 3 Tehsil residents Late years- aged about 40 Plaintiffs of Gandhiganj, Distt. All Raigarh, Raigarh, C.G. Mewa Devi, Widow of Ramkishan aged about 65 years-Defendant No. 2 Banarsidas, Ramkishan, Defendant No. Ram, Late Govind Ramkishan, aged years, Legal (dead Representatives- Defendant No. 4 Smt. Asha Devi, w/o. Goyindram, aged about 43 years Ku. Sona, D/o Late Govindrara, aged about 15 years Ku. Rachna, D/o late Govindram, aged about 15 years S/o Akash Govindram, aged 11 years Ku. Ayushi, D/o Late Govindram about 38 through: deleted), Kumar, Tehsil Kumar, through resident aged 9 years Minors natural Guardian mother Smt. Asha Devi, All of Gandhiganj, Raigarh, Distt. Raigarh, C.G. Pawan Rarakishan Defendant No. 5 Respondent No. residents of Gandhiganj, Raigarh, Tehsil and District Raigarh, C.G. State of Madhya Pradesh (Now State of Chhattisgawrh), through: Collector, Raigarh. Late years- s/o 35 5 2 Present: Shri P. Diwakar, Sr. Advocate with Shri P.R. Patankar, Advocate for the appellants Shri Ravish Agrawal, Sr. Advocate with Shri Agrawal, Advocate for the respondents No. Sanjay S. 1 to 7. Shri Arun Sao, Govt. Advocate respondent No.

7. Shri Shree Kumar Agrawal, Sr. Advocate with Anand Kumar Gupta, Advocate for Shri appellants. Shri Ravish Agrawal, Sr. Advocate with Shri Sanjay S. Agrawal for the respondent No. 1 to 5. Shri Arun Sao, Govt. Advocate for respondent No. 6. JUDGMENT (Delivered on o3 / 10/2007) Dhirendra Mishra, J 1) First Appeal No. 52/2006 preferred by the original representatives of defendants No. 2, 3 and legal and First Appeal No. 55/2006 defendant No. 4 preferred by the defendant No. of by this common judgment as both the appeals are arising out of the judgment and decree dated 25th February, 2006 passed in F.A. No. 50A/84 whereby learned First Additional District Judge, Raigarh has 1 are being disposed filed by the Original Plaintiff decreed the Jagannath Agrawal for recovery of possession of the suit house and decree of declaration of the title oj the plaintiff over the agricultural lands described in Schedule 5 of the plaint.

2) Plaintiff Jagannath Agrawal and defendant No. 4 Govind Ram died during pendency of whereas defendant No. 1 died during pendency of the appeal. (Parties hereinafter shall be referred to as per their description before the trial Court.) 3) Relationship between the parties in the suit is not in dispute. Plaintiff Jagannath, defendant Baijnath and late Ranikishan, husband of defendant No. 2 and father of defendants No. Jainarayan Agrawal. Ramkishan died in the year 1967. 3 and 4 were sons of 4) The case of the plaintiff in brief is that the House No. 46, Raigarh situated in front of Police Kotwali, Gandhi Ganj Ward 15 and other Pakka houses in all 8 in number and 2 Kachcha houses were acquired property of late Jainarayan and 30 acres of land, cash, gold ornaments etc acquired by Jainarayan family. During Agrawal was property of lifetirae of late Jainarayan Agrawal, Ramkishan Das the joint and Baijnath expressed their desire of doing independent business separating from the in the family and, oral partition of all family due to domestic quarrels therefore, late Jainarayan on Kartik Badi 13, Samvat 2005 (year 1949) with the consent of his three sons, the movable and affected immovable properties ahd separated Ramkishan Das and Baijnath from the joint family after giving them the younger son Jagannath their share, however, Agrawal remained joint with the father.

Since then, the defendant No. and Ramkishan Das 1 independently in the possession of their respective shares. A memorandum of partition was recorded on Asarh Sudi 2 Samvat 2006 and the same was signed Jainarayan and witnesses d." ^*1-? (. Agrawal, LaxminarayanAgrawal, Birkhman Agrawal and Gopiram, however Hariprasad Agrawal Laxminarayan Agrawal have died. Late Ramkishan Das Baijnath defendant acknowledgement of receiving their shares. Since the plaintiff was young boy at the time of oral partition, he continued to live jointly with his father. In the said partition, apart from cash and jewelry and other house hold utilities, Ramkishan Das was given three Pakka Houses in the city of Raigarh whereas defendant Baijnath was given one Pakka Sadar Bazar and two Pakka houses situated over In the said partition, the renaaining two Pakka Houses, Khasra No. 1460 and 1462. Jainarayan kept house of two Kachcha houses and 30 acres of agricultural land situated in village Beladula for himself and his son Jagannath.

Apart from this, the responsibility towards loss and profit of Firm Pannalal Jainarayan fell in the share of late Jainarayan and the plaintiff. Since the house allotted in the share of Baijnath was not fit for residential purposes, Baijnath was allowed to live in the house No. 46 situated in Ward No. 15, Gandhiganj, Raigarh (the suit house) purely as a In the meanwhile, mother of the plaintiff licencee. died in the year 1959 and father Jainarayan died on 14th plaintiff became absolute owner of the joint property of Jainarayan and Jagannath. After the death of the father, plaintiff went to Kolkata and Siligudi in the records pertaining to the house were mutated in the share of respective share holders in the year 1949 itself the defendants or for doihg business. The without any objection of their death, and after January, 1963-64 1961 Ramkishan Das. In April, 1983, the plaintiff returned to Raigarh and started residing in the suit house and requested the defendants to vacate the house and on refusal, the suit for vacant possession, damages was filed, subsequently the suit was amended by the plaintiff on 19-4-1989 and by this amendment, was pleaded that after the oral partition, the plaintiff agricultural possession admeasuring 30 acres described in Schedule 2, however he sold some part of the land between 1969 to 1972 and the plaintiff is in possession over the remaining agricultural land of 17 acres 85 decimals described in Schedule 5 and a declaration was sought that he is the owner of the land situated at village Beladula described in Schedule 5 of plaint.

5) The defendant No. 1 in his written statement denied that the properties described in the plaint were acquired properties of Jainarayan and they stated that it was a property earned by joint family. The partition was also denied. Partition in the year 1949 as alleged in the plaint was denied and pleaded that Ramkishan Das and Baijnath were not allotted any share and it was further pleaded that Jainarayan and his sons continued to be joint and all members of the joint family enjoyed the joint execution of together. Oral partition, property meinorandum of partition and acknowledgement of share by Ramkishan Das or defendant was denied. It pleaded Firni Pannalal Jainarayan continued to be the firm of joint family and the suit house is the property of the joint family and it jointly possessed by them. The pleading that after death of absolute owner plaintiff became Jainarayan in the year 1961 has been denied and it has been pleaded that after the death of father, all the properties of the joint family has been inherited by coparceners on the basis of survivorship.

The plaintiff has obtained the lease of secretly and the defendants after knowing about the the suit same have raised objection before the authorities. The ownership over plaintiff on the basis of oral partition has also been the agricultural land of t7- denied. It has been stated that the plaintiff has sold land with the his 1/3rd share of the agricultural the defendants and therefore, permission of plaintiff does not have any right over the remaining land and the defendants are in possession of the reinaining agricultural land since beginning. 6) The defendants No. 2 to 5 have also taken identical stand in their written statement. 7) On the basis of the pleading of the respective parties, issues were framed. The plaintiff examined himself as P.W.l, Manoj Kumar Mishra as P.W. 2, Hariprasad Nayak as P.W. 3, N.R. Ratre as P.W. 4 and A.K. Pratap as P.W, 5 whereas the defendant examin^d Baijnath as D.W. 1, Shyam Sunder Agrawal as D.W. 2, Bhaggu Bhai Gandhi as D.W. 3 and Santosh Kumar as D.W. 4.

8) Learned Additional District Judge decreed the suit by finding that the complete suit the defendants are in recording a possession of 1/3rd portion of house, proper court fee has been paid by the plaintiff partition of the properties belonging to undivided Hindu family took place in the year 1949 between the the suit property parties and in the said partition, fell in the share of the plaintiff and his father and the defendants are residing in the suit house as licencee with the permission of the plaintiff and his revoked by the father and the licence has beerl plaintiff and the plaintiff is entitled to recover the and the vacant possession of defendant shall deliver possession of the suit land described in Schedule I with the red ink within a suit house period of two months. It has been further held that the land described in Schedule 2 fell in the share of the plaintiff and the plaintiff is in possession over the land described in Schedule 5 continuously since 1964 till date and the plaintiff's suit is within the limitation and accordingly a decree of declaration of ^) title over the agricultural land described in Schedule 5 that the defendants have no right over the same has been passed and the suit has been decreed with cost.

9) The grounds urged by the learned counsel for the appeal may be appellants support summarized as under:- claims, the property to be A. The plaintiff's self- acquired property of Jainarayan who affected oral partition and allotted shares to his sons Baijnath and Ramkishan Das. However the partition of any property can be affected only among the parties who have pre- existing right to the property and the same could not be orally partitioned between the sons by Jainarayan himself as his sons did not have any pre-existing right to the property during the life time of Jainarayan. is placed on Hiraji Tolali Baewan -v- Reliance Shakuntala1. B. The case of the plaintiff is that Jainarayan affected oral partition on Kartik Badi 13 Samvat 2005 (year 1949) with the consent of his sons and separated his continued Jagannath memorandum of sons Ramkishan Das and Baijnath frora the joint fainily after giving their shares and he along with his younger this oral partition was recorded on Asarh Sudi 2 Samvat 2006, however it has also been pleaded that on the basis of the above memorandum, Ramkishan and Baijnath acknowledged the receipt of their'share and gave tUe same to Jainarayan, however alleged acknowledgment given by Ramkishan and Baijnath has not been adduced in and proved.

The application under Section 65 of the Indian Evidence Act memorandum . partition evidence permission memorandum of partition was allowed by the trial Court however, revision No. the defendants moved a civil secondary evidence 'AIR 1990 SC 619 10 477/89 against observation that the order dated 15-9-89 of the Trial Court which was allowed by the High Court of Madhya Pradesh there was no basis to arrive at a satisfaction that the original is destroyed or lost. The plaintiff's S.L.P. dismissed by the Apex Court. Referring to Section 91 of the above order was also 1-10-1993 with against by production of the Indian Evidence Act, it is argued that the case of the plaintiff is based on memorandum of oral partition of partition executed by the and acknowledgement defendant on the basis of memorandum of above partition, therefore, the best evidence of contents of the document is the document itself which could be proved by primary evidence the original document.

Section 91 of the Evidence Act excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence the plaintiff has not produced the original document being the memoranduin of partition or acknowledgement of partition, oral evidence adduced by the plaintiff to prove the contents of the document should have been excluded. Reliance is placed on Hiralal and others -v- Badkulal and others2 and Bai Hira Devi and others -v- Official Assienee of Bontbay3. is allowed to be led. Since further C. It was argued that the plaintiffs have withheld the best evidence i.e. the alleged memDrandum of partition and acknowledgement of the partition given by the defendants which would have thrown light on the issue in controversy. In these circumstances, the trial to have drawn adverse inference against Court ought the plaintiffs under Section 1-14 of the Indian Evidence Act.

Reliance is placed on Gopal Krishna.ji Ketkar -v- Mohanied Haji Latif and pthers4. 2AIR 1953 SC 225 3AIR 1958 SC 448 AIR 1968 SC 1413. \. 11 D. Referring to document of Ex. D-3, it has been argued that the plaintiff has taken different stand before the Tehsildar in the application for rautation wherein he has claimed that according to oral partition, the land at Beladula was allotted in his father share by his whereas in the civil suit he claiins that he continued to be joint with his father. Similarly in the document of Ex. D-5, the plaintiff has objected to the transfer of the house by his brothers claiming that he also has a share in the said property though in the plaint it has been mentioned that in the the property in question fell share of his brothers whereas document of Ex. P-13 is the receipt of the tax of the suit house issued by the Municipality which shows that the house is recorded in the name of Firm Jainarayan Pannalal.

The Tehsildar vide order Ex. P-21 has rejected the application for mutation preferred by the plaintiff on the basis of the memorandum of partition and directed the parties to get their title adjudicated in Civil Court. E. Extensively referring to the statement of Hari Prasad it has been argued that the plaintiffs Nayak (P.W. 3), have examined this witness as the witness of oral partition as he claims that Jainarayan and his family were his clients. However, he is the witness of only oral partition and execution of memorandum after oral partition. On the contrary, he has submitted that had the oral partition been reduced into writing, he would have definitely ignorance expresses known about the same. The version of this witness is contrary to the case of the plaintiffs who have claimed that memorandum of oral partition was subsequently recorded, therefore, the evidence that the oral partition was affected in his presence is not worth reliance.

This witness was also not cited by the plaintiff in the list of witnesses subraitted by him. F. Referring to para 26 Jagannath Agrawal, statement of P.W. 1 the plaintiff, it has been argued 12 that he is not a witness of partition and he does not know anything about the partition as the same was affected by his father. This witness has admitted that he had preferred objection vide Ex. D-5 against the sale by the defendants of the house of their shares. Except 'these two witnessed, there is no oral evidence adduced by the plaintiff in support of the oral partition. G. The Court below ignoring the above documentary evidence and inconsistency in the oral evidence of the plaintiff has acted upon their testimony and decreed the suit. The plaintiff has failed to prove his case by leading credible documentary evidence and the court below ought to have dismissed the suit. 10) Relying upon the judgment Conitnissioner of Wealth JTax, Ka^ipur etc.

Chander Sen etc.6, it is argued that under the Hindu in the matter of -v- Law the son would inherit the property of his father as karta of his own family. But the Hindu Succession Act has modified the rule of succession. The Act lays down the general rules of succession in the case of males. The first rule is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II and Class I of the Schedule provides that if there is a male heir of a Class I then upon the heirs mentioned in Class I of the Schedule. 11) Referring to the judgment of Bipin Shantilal Panchal -v- State of Guiarat and anr.6, it is argued several court has decided objectians reserved by it with respect admissibility of the documents during evidence which were necessary before delivery judgment. 12) Sum and substance o.f the arguments advanced counsel respondents may summarized as under:-