Narayan Kapri Vs Saligram Yadav

IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.97 of 2020

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Narayan Kapri, aged about 70 years, son of Late Saudagar Kapri, Resident of village –Sour Pachisa, P.O. –Saidpur, P.S. –Godda (M), District –Godda.

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.... .... …. Defendant/Respondent/Appellant Versus

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Saligram Yadav, son of Late Moti Yadav

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Vishnu Yadav, son of Late Moti Yadav Both are Resident of Village –Bisaha, P.O. –Latona, P.S. –Pathargama, District –Godda.

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…. .... …. Palintiffs/Appellants/Respondents ------ For the Appellant : Mr. Bhaiya Vishwajeet Kumar, Advocate : Mr. Manoj Kr. Sah, Advocate : Mr. Amarjeet Prasad, Advocate

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PRESENT

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------

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By the Court:- Heard the learned counsel for the appellant.

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This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of reversal dated 31.01.2020 passed by the learned District Judge-I, Godda in Civil Appeal No.07 of 2016 whereby and where under, the learned first appellate court set aside the judgment and decree passed by the learned trial court being the Sub-Judge-I, Godda in Title Suit No. 43 of 2003 dated 31.08.2016 and allowed the Civil Appeal No. 07 of 2016 and directed the office clerk to prepare a preliminary decree in the light of the judgment passed by the learned first appellate court.

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The brief fact of the case is that the respondents of this second appeal as plaintiffs filed Title Suit No. 43 of 2003 with a prayer for a preliminary decree of half share and for appointment

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of Amin Commissioner to carve out the half share of the plaintiff.

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The case of the plaintiff in brief is that the parties to the suit are Hindus governed by Mitakshara School of Hindu Law. In the last Survey Settlement before filing the suit, Jamabandi no. 15 of Mouza Bhagwan Chack and Jamabandi No. 34 of Mouza Bisaha were recorded in the name of Chutari Mandal, son of Bansi Mandal and Bhajan Mandal son of Butan Mandal. Bhajan Mandal died issueless. Chutari Mandal had two daughters namely Jhula Devi and Bajo @ Bechni Devi. The plaintiffs are the descendants of Jhula Devi whereas the defendants are the descendants of Bajo Devi. Thus, the plaintiffs have half share of the suit property whereas the defendants have also half share of the suit property. The mother of the plaintiffs even after her marriage continued to reside in the house of her father –Chutari Mandal with her husband and the plaintiffs were born and brought up in the house of maternal grandfather –Chutari Mandal at village –Bisaha. The defendant filed Badar No. 36 before the Assistant Settlement Officer falsely claiming that Chutari Mandal died leaving behind only one daughter namely Bechni Devi and claimed that Jhula Devi is the daughter of Bhagan Mandal. They also claimed that Chutari Mandal has executed a Will dated 13.05.1940 transferring his share in favour of Bechni Devi, in which he had shown Bechni Devi as his only daughter and upon such pleading the defendant prayed for deleting the name of Jhula Devi from Column No. 4 of of Jamabandi no.34 of Mouza Bisaha. The Assistant Settlement Officer wrongly directed to delete the name of Jhula Devi from Column No. 4 even though Jhula Devi was one of the daughters of

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Chutari Mandal and in the will executed by Chutari Mandal also there is no assertion that Chutari Mandal had one daughter only and presuming that Jhula Devi was the daughter of Bhagan Mandal as claimed by the defendant, even then there was no justifiable reason to delete the name of Jhula Devi from the Column No. 4 of the corresponding new Jamabandi. The plaintiffs claimed that the purported Will executed by Chutari Mandal is a forged one having no legal value. The said will has not been probated. As the defendant refused partition demanded by the plaintiffs, hence the plaintiffs filed the suit.

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The defendant in his written statement challenged the maintainability of the suit on various technical grounds. The defendant pleaded that the suit property of Mouza –Bisaha bearing Jamabandi no. 34 stood recorded in the name of Chutari Mandal and Bhagwat Mandal. The land of Bhagwan Chak bearing Jamabandi no. 15 also stood recorded in the name of Chutari Mandal and Bhagwat Mandal. Chutari Mandal and Butan Mandal were full brothers. The defendant admitted that the parties are governed by Mitakshara chool of Hindu Law. The defendant admitted in para-15 of the written statement that Chutari Mandal and Bhagan @ Bhajan Mandal were jointly recorded in respect of the suit land. In para-17, the defendants pleaded that Bhagan Mandal died in the year 1934 in the state of jointness leaving his uncle Chutari Mandal who inherited the entire interest of Bhagan Mandal in the suit property. The defendant next pleaded that Chutari had only one daughter Bajni @ Bajo Devi and Jhula Devi

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was not the daughter of Chutari Mandal but Jhula Devi was the daughter of Butan Mandal who died prior to death of Bhagan. The defendants pleaded that the plaintiffs have no concern with the suit property and does not have half share of the suit property. The defendant next pleaded that the entire suit property is the exclusive property of the defendant. The mother of the plaintiff namely Jhula Devi was the daughter of Butan Mandal who was full brother of Chutari Mandal. The possession of the plaintiffs’ family in Bisaha in the house of Chutari Mandal was only permissive possession. The Will executed by Chutari Mandal in favour of his daughter is correct.

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On the basis of rival pleadings of the parties, the learned

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trial court settled the following six issues:-

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(1) Is the suit barred by limitation? (2) Is the suit hit by waiver, estoppel and acquiescence? (3) Have the plaintiffs and defendant unity of title, right, interest and possession over the suit property?

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(4) Are the plaintiffs entitled to ½ Share in the suit property?

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(5) Are the plaintiffs entitled to relief as prayed for or any other relief or reliefs?

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(6) Whether Jhula Devi was daughter of R.T. Chutari Mandal?

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In support of their case, the plaintiffs examined altogether six witnesses and proved the documents which have been marked Ext. 1 and Ext.9. On the other hand, from the side of the defendant, the defendant examined altogether four witnesses and proved the documents which have been marked Ext. A to Ext. C.

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The learned trial court first took up issue nos. 3, 4 & 6 together and after considering the evidence in the record came to the conclusion that the suit property mentioned in Schedule A and

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B in the joint name Chutari Mandal and Bhagan Mandal but the plaintiffs failed to establish that Jhula and Bajo are real sisters and daughter of Chutari Mandal. So there is no unity of title and possession in favour of the plaintiffs. Therefore, the plaintiffs are not entitled for partition of half share in suit property by metes and bounds. The learned trial court next took up issue nos. 1, 2 & 5 together and went on to hold that the plaintiffs’ case is barred by the principle of waiver, estoppel and time barred as in the year 1996, the Assistant Settlement Officer having deleted the name of the plaintiffs mother from Column No.4, the suit filed in the year 2003 i.e. after more than three years is not maintainable and dismissed the suit.

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Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed Civil Appeal No.07 of 2016 in the court of Principal District Judge, Godda which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.

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The learned first appellate court first took up issue nos. 6 & 3 as framed by the learned trial court together and made independent appreciation of the evidence in record. The learned first appellate court considered that in para-23 of his written statement, the defendant himself has admitted that the mother of the plaintiffs namely Jhula Devi was the daughter of Butan Mandal who was the full brother of Chutari Mandal, so the possession of the plaintiffs’ family in Bisaha in the house of Chutari Mandal was only permissive possession and the defendant never objected.

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According to the learned first appellate court, the learned trial court committed a grave illegality by deciding the issue no.6 and 3 in the light of Ext. B –Will of Chutari Mandal which was not probated in the court. The learned first appellate court next considered that the learned trial court committed an error by relying upon the order passed in the proceeding under Section 145 of Cr.P.C. even though the same was related to possession only and not related to title of the land. The learned first appellate court considered the deposition of P.W.1 to 4 who are the residents of village Bisaha who have stated that Chutari Mandal had two daughters namely Jhula Devi and Bajo Devi and they also admitted that the defendant and plaintiffs were in joint possession of the suit land and considering the evidence in the record, the learned first appellate court arrived at the conclusion that the plaintiffs successfully proved that Jhula Devi is also a daughter of Chutari Mandal, the other daughter of Chutari Mandal being Bajo Devi. Therefore, the mother of the plaintiffs has joint right, title and possession over the suit land situated in Mouza Bisaha and Bhagwan Chak and answered the issue nos. 6 & 3 in favour of the plaintiffs. The learned first appellate court next took up issue nos. 1 & 2 as framed by the learned trial court and considering the fact that the Assistant Settlement Officer was not entitled to decide the possession on the basis of the Will purportedly executed by Chutari Mandal; when that Will was not even probated. The learned first appellate court also considered that the plaintiffs rightly filed the present suit and the suit is not barred by principle

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of estoppel, waiver or acquiescence and decided the issue nos. 1 & 2 also in favour of the plaintiffs. Lastly, the learned first appellate court took up issue nos. 4 & 5 as framed by the learned trial court and considered that since defendant has taken the plea that Jhula Devi is the daughter of Butan Mandal and Butan Mandal had two children Bhagan @ Bhajan Mandal and Jhula Devi and as per the defendant Chutari Mandal had only one daughter namely Bajo Devi, the learned first appellate court treated the evidence of P.W.1 to P.W.4 as trustworthy. All the witnesses of the plaintiffs also deposed that Chutari Mandal has two daughters namely Jhula Devi and Bajo Devi and to the effect that the plaintiffs are living in the house of Chutari Mandal and on the basis of the evidence in the record came to the conclusion that the plaintiffs are the sons of Jhula Devi who is the daughter of Chutari Mandal; therefore, the plaintiffs are entitled to half share of the suit land and further went on to observe that the finding of the learned trial court in respect of issue nos. 4 & 5 is not in accordance with law and set aside the judgment and decree passed by the learned trial court and decreed the appeal.

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It is submitted by the learned counsel for the appellant that the judgment and decree passed by the learned first appellate court is contrary to law, facts and the materials available in the record. It is then submitted that the learned first appellate court has erred in ignoring the Ext. B which is the Will executed by Chutari Mandal in favour of Bajo Devi. Hence, it is submitted that the judgment and decree passed by the learned first appellate

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court be set aside after formulating appropriate substantial question of law and the judgment and decree passed by the learned trial court be restored.

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Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that the undisputed fact remains that the suit property is the joint property recorded in the name of Chutari Mandal and Bhagan Mandal. Such a finding of fact has even been arrived at by the learned trial court and such finding of fact has not been challenged by the defendant who is the appellant in this second appeal; in the first appeal by filing any cross-objection. So, when the undisputed fact remains that the suit property was a joint property and there was no partition, certainly Chutari Mandal, in the absence of any material to suggest that the property in question was the self-acquired property of Chutari Mandal, was not entitled to execute a Will in respect of a joint ancestral property, of which he is not even the exclusive owner. So, the Will which has been marked Ext.B cannot divest the right of inheritance of the plaintiffs through their mother Jhula Devi, who as per the plaintiffs is the daughter of Chutari Mandal and as per the defendants is the daughter of Butan Mandal and the undisputed fact remains that Butan Mandal and Chutari Mandal were full brothers. So, under such circumstances, execution of a Will by one of the coparceners in respect of the descendants without having any exclusive right, title and interest over the property in respect of which the Will is executed cannot deprive the other coparceners

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from the right of inheritance of such property.

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Under such circumstances, this Court is of the considered view that the learned first appellate court has not committed any illegality by reversing the judgment and decree passed by the learned trial court. The finding of facts has been arrived at by the learned first appellate court without ignoring any admissible evidence in the record and without taking into consideration any inadmissible evidence nor the finding of facts arrived at by the learned first appellate court can be termed as based on no evidence. The finding of facts arrived at by the learned first appellate court cannot be termed as being without any logic incurring the blame of being termed as perverse.

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