Allowed

Ramcharan (Died) Through Lrs. v. Gorelal

Chhattisgarh HC24 Jan 2024SA/501/2004

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for perpetual injunction, the High Court set aside the first appellate decree granting title to the defendant based on an unproved Will and lack of counter-claim, restoring the trial court decree in favor of plaintiffs.

What did the court decide?

Impugned judgment and decree by first appellate Court set aside; judgment and decree of Civil Judge restraining defendant from interfering with plaintiffs' possession restored.

Ramcharan (Died) Through Lrs. Vs Gorelal — Property and Title | Chhattisgarh HC (2024)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second appeal No. 501 of 2004

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Judgment Reserved on : 17.01.2024

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Judgment delivered on : 25.01.2024

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Ramcharan (dead) through LRs:-

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(i) Rupram, son of late Ramcharan, aged about 64 years

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(ii) Tikaram, son of late Ramcharan, aged about 60 years,

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(iii) Fairuram, son of Ramcharan, aged about 58 years,

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(iv) Kunwar Singh, son of late Ramcharan, aged about 50 years,

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Applicants no. (i) to (iv) are resident of village – Sardha, Tahsil- Lormi, District Mungeli (C.G.)

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(v) Shyam Kunwar wife of Makhan, aged about 62 years, daughter of late Ramcharan, Village- Majgaon, Tahsil- Lormi, District Mungeli (C.G.)

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(vi) Chhedin Bai, wife of Ramanand, aged about 40 years, daughter of late Ramcharan, resident of Village – Jhafel, Tahsil- Lormi, District Mungeli (C.G.)

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Radheshyam, aged about 50 years, S/o Baliram Rathore, R/o Village Sardha, Tahsil Lormi, District Bilaspur (C.G.)

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Smt. Nainibai [dead/ deleted]

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---- Appellants/Plaintiffs

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Versus

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Gorelal, aged about 53 years, S/o Samaru, R/o Village Sardha, Tahsil Lormi, District Bilaspur (C.G.)

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State of Chhattisgarh, Through the Collector Bilaspur, District Bilaspur, C.G.

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---- Respondents/Defendants

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For Appellants : Ms. Sofia Khan, Advocate. For Respondent No. 1 : Ms. Hamida Siddiqui, Advocate. For Respondent No. 2 : Mr. U.P.S. Sahu, Panel Lawyer –----------------------------------------------------------------------------------------------

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Hon'ble Mr. Justice Naresh Kumar Chandravanshi

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CAV JUDGMENT

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This is plaintiffs' second appeal. By way of instant second appeal under Section 100 of the Code of Civil Procedure, 1908, appellants / plaintiffs have challenged the judgment and decree dated 25.09.2004 passed by Second Upper District Judge (F.T.C.), Mungeli, District – Bilaspur [First Appellate Court] in Civil Appeal No. 9-A/2003, whereby learned first appellate Court modified the judgment & decree dated 17.05.2003 granted by Civil Judge, Class-I, Mungeli [Trial Court] in Civil Suit No. 46-A/97, by which, the trial Court had granted decree of perpetual injunction/permanent injunction in favour of appellants/plaintiffs in respect of all the suit lands mentioned in Schedule “A” attached with the plaint, but first appellate Court held that defendant Gorelal is having title and possession on the part of the suit land mentioned in Anusuchi -1 annexed with the written statement, thus, set aside judgment & decree granted by trial Court with regard to Anusuchi – 1 annexed with the written statement and upheld in respect of remaining portion of the suit land. [For the sake of convenience, the parties would be referred to as per their status shown in the plaint ].

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The facts leading to file the instant second appeal are that plaintiffs instituted a suit stating inter alia that late Ramcharan (plaintiff No.1), Baliram & Faliram were real brothers, Radheshyam (plaintiff No. 2) is son of Baliram whereas, plaintiff No. 3 – Naini Bai (since deceased) was wife of Baliram Rathore. Faliram died 64-65 years prior to filing of civil suit. At that time, widow was not having right to get title on the land of

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her husband, therefore, plaintiffs were joint owner of suit land, which is joint family property and they were also having possession over the same, but wife of late Faliram namely Upkunwar was not having any right on the suit land, despite that her name was got entered in the revenue records. Upkunwar Bai died in the month of January, 1997, thereafter, her name was deleted from the revenue records, but after her death, defendant – Gorelal started claiming his right over the share of Upkunwar on suit land on the basis of Will (Ex.D-7) allegedly executed by Upkunwar Bai in his favour, whereas it is false and fabricated document. On the basis of that Will, defendant No. 1 started interfering in peaceful possession of the plaintiffs over the suit land, whereas, neither he has any right nor possession on the same, therefore, the plaintiffs filed a civil suit for grant of perpetual injunction against defendant No. 1 – Gorelal.

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Defendant No. 1 Gorelal filed his written statement stating inter alia that mutual partition was effected between Ramcharan, Faliram & Baliram and after death of Faliram, his widow Upkunwar Bai inherited his share i.e. 4.03 acres of the land, got possession and cultivated the same which has been mentioned in Anusuchi -1 annexed with the written statement. It is further stated that since Upkunwar Bai was issue-less, therefore, she executed Will (Ex.D-7) in respect of the land shown in Anusuchi -1 annexed with the written statement on 23^rd May, 1995 in favour of Gorelal, who is son of Samaru (brother of Upkunwar Bai), therefore, the plaintiffs are not entitled to get any relief, as sought for by them.

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After framing issues and recording of evidence, learned trial Court granted decree of perpetual injunction in favour of plaintiffs against any interference by the defendant No. 1. Against which, defendant No. 1 – Gorelal preferred first appeal before the first appellate Court. Learned First Appellate Court vide its impugned judgment & decree dated 25.09.2004 granted decree in favour of defendant No. 1 Gorelal holding therein that suit land shown in Anusuchi -1 annexed with written statement, are in the ownership & possession of defendant No. 1 - Gorelal on the basis of Will dated 23.5.1995 (Ex.D-7) executed by Upkunwar in his favour, but learned first appellate court not passed any order in decreetal part of its judgment with regard to other suit land, which has not been mentioned in Anusuchi -1 annexed with the written statement, however, in paragraph 16 of the impugned judgment it has been observed that except the land mentioned in Anusuchi 1 annexed with the written statement, Civil Suit, with regard to other suit land is held to be proved. Therefore, plaintiffs have preferred instant second appeal questioning the decree granted by First Appellate Court in favour of defendant Gorelal in respect of the land shown in Anusuchi 1 annexed with the written statement.

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The substantial questions of law involved, formulated and to be answered in this second appeal preferred by appellants/plaintiffs are as under :-

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“1. Whether the lower appellate Court committed an error of law in reversing negative finding in relation to execution of Will (Ex.D-7) when only the scribe supported the

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execution of Will and the alive attesting witness declined to support the same ?

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Whether in a suit for perpetual injunction a declaratory decree of title and possession in favour of the defendant can be passed in the absence of any counter claim by the defendant in this regard ?

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Whether the suit for permanent injunction is tenable without seeking relief of declaration of title ?

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Learned counsel for the appellants/plaintiffs would submit that, the plaintiffs had filed civil suit only for perpetual injunction stating inter alia that they are having title and possession over the suit land, as it was undivided joint family property, that learned trial Court passed decree of perpetual injunction in favour of plaintiffs and against the defendant No. 1, but first appellate Court considering irrelevant facts and on the basis of conjectures & surmises, has observed that there was mutual partition between Upkunwar (wife of Faliram), Baliram & Ramcharan. She further submits that defendant No. 1 Gorelal has neither filed any counter suit nor has sought any declaration that he be declared title holder of any portion of the suit land on the basis of Will deed, allegedly executed by Upkunwar Bai, even defendant No. 1 has neither proved alleged Will (Ex. D-7), which is also a forged one, nor filed any document to show his title or possession on any portion of the suit land, despite that learned First Appellate Court has granted decree in favour of defendant No. 1, therefore, decree granted by learned first appellate Court in faovur of defendant No. 1 is perverse and illegal. She would

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further submit that since plaintiffs are having title and possession over the suit land, therefore, suit filed by them for permanent injunction is very well maintainable in view of the provisions contained in Section 38 (3) of the Specific Relief Act, 1963, therefore, she prayed that appeal may be allowed by setting aside the judgment & decree passed by the first Appellate Court in favour of defendant No. 1 and judgment & decree passed by learned trial court be upheld.

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Per contra, learned counsel appearing for defendant No. 1 would submit that about in the year 1958, mutual partition was effected between Upkunwar (wife of Faliram), Baliram & Ramchara, who were son of Jaitram and in that partition, Upkunwar obtained 4.03 acres of land in his share, which has been shown in Anusuchi 1 annexed with the written statement filed by defendant Gorelal. Since Faliram had expired therefore, his wife Upkunwar became absolute owner and having possession on that 4.03 acres of land. She would further submit that since Upkunwar was issue-less, therefore, she had executed Will (Ex.D-7) in favour of defendant Gorelal on 23.5.1995, therefore, the plaintiffs neither having title over the suit land nor having possession at the time of filing civil suit, rather on the basis of Will (Ex.D-7), defendant - Gorelal was having title and possession over the suit land after death of Upkunwar, on the basis of Will executed by her, hence, learned first appellate Court has rightly declined to grant relief to the plaintiffs in respect of portion of suit land mentioned in Anusuchi -1 annexed with the written statement. However, learned counsel appearing for the defendant fairly submitted that defendant has never filed counter claim or counter

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suit for declaration of his title over the land shown in Anushuchi 1 annexed with the written statement, therefore, she would further fairly submit that relief (A) of decree granted by first Appellate Court may be modified to the extent that plaintiffs are not entitled to grant perpetual injunction / permanent injunction in respect of land shown in Annexure (Anusuchi -1) annexed with the written statement, as learned first appellate Court itself has observed in last portion of paragraph No. 16 of impugned judgment. In other words, learned counsel for defendant submit that she has no objection to uphold the decree passed by learned trial Court over the suit land, except to the land shown in Anusuchi-1 annexed with the written statement. Learned counsel without prejudice to the aforesaid submissions made by her, further submits that civil suit had been filed by plaintiffs only seeking relief to grant perpetual injunction, but no other relief was sought for by them, hence, she submits that suit only for perpetual injunction is not maintainable. In this regard, she placed reliance upon the judgment of the Supreme Court in the case of T.V. Ramakrishna Reddy v. M. Mallappa and another reported in (2021) 13 SCC 135 and Om Prakash and others v. Ram Kumar and others reported in (1991) 1 SCC 441 .

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I have heard learned counsel appearing for the parties and perused the record of both the courts below with utmost circumspection.

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9 . It is not in dispute that plaintiffs namely Ramcharan, Faliram & Baliram were the son of Jaitram; Upkunwar was wife of Faliram and plaintiff Radheshyam is a son of Baliram.

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Radheshyam (PW-1) has stated in his deposition that the suit land was joint property of Faliram, Baliram and Ramcharan, who were having possession also on the same and after death of Faliram, his wife Upkunwar Bai inherited the suit land. His statement has also supported by Dhanauram (PW-2) & Lilluram (PW-3), who are resident of the same village. Certified copy of Record of Right (Ex.D-5) also supports statements of plaintiffs' witnesses, which shows that in the year 19541955, suit land were recorded in ownership of Upkunwar Bai, wife of Faliram, Baliram and Ramcharan. Certified copy of Kist Bandi Khatouni (B-1) [Ex.D-17] of the year 1995-96 also supports the aforesaid fact, which also contained endorsement that after death of Upkunwar Bai, her name had been deleted from the revenue record of suit land in the year 1997. Neither defendant No. 1 – Gorelal has challenged aforesaid facts nor both the courts below have negated the same, therefore, on the basis of oral and documentary evidence available on record, it is proved that suit land is the family property of plaintiffs.

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Defendant No. 1 – Gorelal has challenged his title on some portion of suit land, which has been mentioned in Anusuchi -1 annexed with written statement filed by him, stating inter alia that Upkunwar had executed Will (Ex.D-7) on 23.5.1995 in respect of aforesaid land mentioned in Anusuchi-1 annexed with the written statement. He has also stated aforesaid facts in his deposition and examined Ratan Lal Pandey (DW-1), who had scribed the alleged Will (Ex.D-7).

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Ratan Lal Pandey (DW-1) has only stated in his evidence that he is scribe of the Will (Ex.D-7), but he has admitted in cross-examination that

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neither he identified Upkunwar Bai nor Ramasre & Omeda, who were said to be the witness of the Will deed (Ex.D-7). He has also stated that the person, who had brought one lady, told that the lady who had come to him was Upkunwar Bai, therefore, he stated that Will (Ex.D-7) was got executed by Upkunwar Bai. None of the witness of aforesaid Will have been examined by the defendant Gorelal and scribe of the Will Ratan Lal himself was not identifying any of the persons named in the Will.

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For a valid 'Will,' in terms of Section 63 of Succession Act, 1925, it is to be attested by two witnesses. Further, to prove factum of execution of 'Will', in terms of Section 68 of the Evidence Act, it is to be proved at least by one of the attesting witnesses.

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Section 3 of the Transfer of Property Act defines the word “attested” and the meaning of the definition clause is well explained by the Hon'le Apex Court in the matter of M.L. Abdul Jabbar Sahib v. H.V. Venkata Sastri & sons reported in AIR 1969 SC 1147 to the following effect :

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“ 8. ……………. It is to be noticed that the word

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“attested,” the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of valid attestation under Section 3 are :

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(1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature;

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(2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature amimo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is as scribe or an identifier or a registering officer, he is not an attesting witness.”

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In the matter of N. Kamalam (dead) and another v. Ayyaswamy and another , reported in AIR 2001 SC 2802 , their Lordships of the Supreme Court has again elaborately and lucidly explained the scope, meaning and consequence of attestation in the context of factum of execution of 'Will.'. Significant requirements are found to be two-fold; (1) that, the attesting witness should witness the execution which implies his presence; and (2) that, he should certify or mark for execution by subscribing his name as a witness; which implies a conscious intention to attest, i.e., atttesting witness as animus to attest.

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Subscribing of signatures on the 'Will' by the scribe cannot be equated with the signatures of attesting witnesses as signatures of the attesting witnesses are for a specific purpose of having witnessed the execution and for fulfilment of the statutory requirements.

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The scribe appends his signatures on the 'Will' as scribe. He is not a witness to the 'Will' but a mere writer of the 'Will.' The element of the animus to attest is missing, i.e., intention to attest is missing. His signatures are only for the purpose of authenticating that he was a scribe of the 'Will.'.

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In the instant case, none of the Witnesses of Will deed (Ex.D-7) have examined by defendant No. 1 nor scribe of the Will was known to Upkunwar Bai or any of the witnesses.

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On the other hand, Omeda (PW-4), who is said to be one of the witnesses of the Will (Ex.D-7), has stated that his signature was obtained in blank paper. He has further stated that none other had put their signatures on that paper in front of him. He has also deposed that he did not know Scribe of the Will – Ratan Lal Pandey (DW-1). Thus, only witnesses of alleged Will has not supported valid execution of Will (Ex.D-7) by Upkunwar Bai, therefore, finding of learned First Appellate Court that Gorelal acquired title over the portion of suit land mentioned in Anusuchi -1 annexed with the written statement is perverse and illegal. It is also pertinent to mention here that defendant Gorelal has not filed counter claim or cross suit claiming his title over the portion of the suit land shown in Anusuchi -1 annexed with the written statement as provided under Order 8 Rule 6-A of the CPC on the basis of alleged Will.

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In the case of Om Prakash and others Vs. Ram Kumar and others reported in (1991) 1 SCC 441 , their Lordships of the Supreme Court has held that, a party cannot be granted a relief which is not

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claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute.

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Since defendant – Gorelal has not filed counter claim or cross-suit, therefore, there was no occasion to file reply of such claim to the plaintiffs, hence, it is found that granting relief of ownership and possession to Gorelal on the portion of the suit land mentioned in Anusuchi -1 annexed with written statement is perverse and illegal on this count also, therefore, such relief granted by learned First Appellate Court to defendant No. 1 is not sustainable.

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Learned counsel for defendant No. 1 had contended that mutual partition was effected between Upkunwar Bai, Radheshyam (son of Baliram) and Ramcharan in the year about 1958 and, thereafter, all three were occupied their share over the suit land and on that mutual partition, Upkunwar Bai had got suit land shown in Anusuchi-1 annexed with the written statement. This fact has also been supported by Gorelal (DW-3) and Pirit Ram (DW-2) in their deposition.

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Learned counsel for defendant No. 1 would draw attention of his Court on sale-deed (Ex.D-1), sale-deed (Ex.D-6), sale-deed (Ex.D-8) and certified copy of written statement filed by Naini Bai @ Kakti Bai (wife of Baliram) in Civil Suit No. 54-A/63 vide Ex.D-13 & Ex.D-14. Although in aforesaid documents, it has been mentioned that land sold vide aforesaid documents were fall in share of Baliram, but only on this count, it cannot be held that they had partitioned all the lands between

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three brothers or their successors i.e. Faliram / his wife, Baliram & Ramcharan, because it has not been stated by defendant No. 1 Gorelal that in alleged partition, which portion of suit land was given to Baliram (or his son plaintiff Radheshyam) and Ramcharan, whereas suit land continuously recorded as joint family property of Upkunwar (wife of Faliram), Balraim & Ramcharan right from 1954-55 to 1995 -1996, hence, on the basis of principle of preponderance of probabilities, it is also proved that plaintiffs are in joint possession over the suit land, as plaintiffs' witnesses have deposed in their deposition, therefore, finding arrived at by learned first appellate Court that there was mutual partition between Upkunwarbai, Baliram and Ramcharan and in that mutual partition, portion of subject land mentioned in Anusuchi 1 annexed with the written statement were obtained by Upkunwar Bai and she was in separate possession of that land is also perverse and illegal, hence, the same is unsustainable in law.

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In view of above discussion, it is found that learned lower appellate Court has committed an error of law in reversing the negative finding in respect of alleged Will, as, Will has not been legally proved by defendant No. 1 – Gorelal, because none of the attesting witnesses have been examined by him and one of the alleged attesting witness namely Omeda (PW-4) who has been examined by plaintiffs has not supported the execution of alleged Will (Ex.D-7). Further, without filing any counter claim or cross suit, learned first appellate Court has also erred in holding that defendant Gorelal is having title and possession over the portion of suit land mentioned in Anusuchi 1 annexed with the written statement

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filed by defendant Gorelal in the instant suit, which had been filed by the plaintiffs only for granting decree of perpetual injunction. Thus, finding of 1^st substantial question of law is recorded as ‘Yes’ and finding of 2^nd substantial question of law is recorded as ‘No’ .

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So far as 3^rd question of law is concerned, it would be appropriate to notice the provision contained in Section 38 of the Specific Relief Act, 1969, which reads as under :-

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" 38. Perpetual injunction when granted. - (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

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(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

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(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely -

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(a) where the defendant is trustee of the property for the plaintiff;

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(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

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(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.”

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Perusal of aforesaid provision shows that it does not provide any

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specific law that suit simplicitor filed for permanent injunction to restrain defendant (s) from interfering with plaintiffs' peaceful possession and enjoyment of the suit property is not maintainable, without seeking declaration of title. In instant case, plaintiffs have proved by adducing

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oral and documentary evidence i.e. record of Right of the year 1954-55 (Ex.D-17), which shows their ownership over the suit land and Kist Bandi Khatouni of the year 1995-96 (Ex.D-17) proves that suit land are their joint family property and have been entered in revenue records in their joint ownership right from 1954-55 till filing of the instant suit, therefore, there is no cloud over the title of plaintiffs over the suit land, hence, suit filed by plaintiffs only for perpetual injunction is very well maintainable, without seeking declaration of title. The case law i.e. T.V. Ramakrishna Reddy (supra) relied upon by learned counsel for defendant No. 1- Gorelal is not favorable to the defendant No. 1 in aforesaid fact situation of the instant case, therefore, 3^rd question of law is answered positive i.e. the same is answered in favour of plaintiff and against the defendant No. 1.

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Consequently, the second appeal is allowed. Impugned Judgment & decree dated 25.09.2004 passed by first appellate Court in Civil Appeal No. 9-A/03 is set aside and judgment & decree passed by Civil Judge, Class -1, Mungeli, in Civil Suit No. 46-A/97 restraining the defendant No. 1 from interfering possession of the plaintiffs over the suit land as mentioned in Schedule “A” attached with the plaint is restored.

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Parties shall bear their own costs.

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A decree be drawn-up accordingly.

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Sd/-

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(Naresh Kumar Chandravanshi) Judge

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Amit/-

Ramcharan (Died) Through Lrs. v. Gorelal

Case brief

What is this about?

What did the court decide?

Ramcharan (Died) Through Lrs. v. Gorelal

Case brief

What is this about?

What did the court decide?

What the court decided

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