The High Court dismissed a second appeal challenging concurrent findings of fact in a partition suit. The court held that revenue entries do not confer title and, as no substantial question of law arose, the appeal was dismissed under Order 41 Rule 11 CPC.
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IN THE HIGH COURT OF JUDICATURE AT PATNA SECOND APPEAL No.396 of 2016
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Versus
Patna High Court SA No.396 of 2016(7) dt.27-08-2024 2/13
... ... Respondent/s
====================================================== Appearance : For the Appellant/s : Mr. Raghunandan Kumar Singh, Adv. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE KHATIM REZA ORAL ORDER
7 27-08-2024
This Second Appeal has been filed by the defendants/appellants against the judgment and decree of affirmance. Title Suit No. 95 of 1993 was filed by the plaintiffs/respondent-1st set for partition of half share in the suit land described in Schedule-'K' of the plaint along with other relifes. The suit was decreed by learned Additional Munsif-II, Bikramganj, Rohtas by judgment and decree dated 26.05.2011 against which the defendant/appellant filed Title Appeal No. 71 of 2011 which was dismissed by the learned Additional District Judge-III, Rohtas, Sasaram by its judgment and decree dated 28.05.2016 which is under challenge in the instant Second Appeal.
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Kumhar was common ancestor of the parties. Nine decimals of Old Plot No. 332 Khata No. 16 was in his name and its partition was not made by meets and bounds among the descendants of Laxman Kumhar. The said Laxman Kumhar had three branches Bhajan Kumhar, Dawar Kumhar and Bharosa Kahar. Dawar and his wife Laxminia died issueless, therefore, the property of nine decimals will incumbent upon only two branches, namely, Bhajan Kumhar and Bharosa Kumhar. The plaintiffs are descendants of branch of Bhajan Kumhar and defendants/appellants are descendants from Bharosa Kumhar. Late Bharosa had one son Thug Kumhar, who had two sons Late Yadunandan and Shivnandan. The defendants are heirs of two deceased persons Yadunandan and Shivnandan. The ancestoral property of Late Laxman Kumhar mentioned in Old Khata No. 16 in the name of son of Bhajan Kumhar and Old Khata No. 14 in the name of Thug Kumhar son of Bharosa Kumhar, Old Khata No. 22 in the name of Buddhan and Sahdev Kumar son of Jhuthan Kumhar, Old Khata No. 38 in the name of Mosst. Laxminia wife of Dawar Kumhar and Old Khata No. 39 Plot No. 366 and Areas 5 decimals recorded in the name of Laxminia Kuar and Thug Kumhar. It is also pleaded that Khata No. 39 Plot No. 366 were recorded in the name of Shivnandan and
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Yadunandan in Revisional Survey Khatiyan bearing New Plot No. 611 Area 5 decimals. It is further pleaded that defendant left Old Plot No. 370 Area 4 decimals for ancestor of the plaintiff which was recorded in the Revisional Survey Khatiyan in the name of Rajnath Kumhar bearing Khata No. 74 Plot No. 531 Area 4 decimals. It is also pleaded that after the death of Dawari Kumhar and his wife Ginia his share was devolved upon half share of Rajnath Kumhar and half share of Mukund Kumhar and Teju Kumhar. Likewise, Teju Kumhar and Rajnath Kumhar both died issuelss. Mukund executed gift deed of his share of Plot No. 332 to Yadunandan and Shivnandan through registered deed of gift on 20.09.1958. In the aforesaid gift deed half area of Plot No. 332 i.e. 4 ½ decimals. Mukund Kumhar executed in favour of Yadunandan and Shivnandan while in boundary of the deed Rajnath Kumhar is shown in each side, thus, it is clear that 4 ½ decimals is at the eastern side. No partition of Old Plot No. 332 Khata No. 16 Area decimals done by meets and bounds. It is further contended that without any partition the said property was transferred in favour of Yadunandan and Shivnandan. In Revisional Survey out of Old Plot No. 332, three new plots were carved out, these are Plot Nos. 536, 538 and 539. Due to mistake of Survey Authority New Plot No. 539, New Khata No.
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73 Area 3 decimals recorded in the name of Rajnath Kumhar while New Plot Nos. 538 and 536 Area 6 decimals were recorded in the name of Yadunandan and Shivnandan which is also wrong because they have got 4 ½ decimals by registered deed of gift.
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Thus, in Old Plot No. 370 Yadhunandan and Shivnandan gave 1/3 decimals to Rajnath Kumhar and Rajnath Kumhar gave 1 ½ decimals to Yadunandan and Shivnandan. New Plot No. 531 of Old Plot No. 370 Area four decimals was prepared in the name of Rajnath only while 1 ½ decimals of Old Plot No. 332 was given by Rajnath Kumhar after amalgamation with New Plot No. 536 recorded in the name of Yadunandan and Shivnandan and they were in peaceful possession of their share.
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No. 539 Area 3 decimals wrongly recorded in the name of Rajnath Kumhar and also New Plot No. 536 and 538 Area 6 decimals wrongly recorded in the name of Yadunandan and Shivnandan, while Shivnandan and Yadunandan got 4 ½ decimals land in his share. There is denial of story of exchange by the plaintiff. The Plaintiff is entitled to half share of the suit property.
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entry in the Municipal Survey Khatiyan.
Gopal Sulakh reported in AIR 1986 SC 79 , the Hon’ble Apex Court has held that “The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family-character so long as the joint family property is in existence and is not partitioned amongst co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.”
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or municipal survey entry neither creates nor extinguishes title. The perception of correctness of entries are rebuttable. This issue has been examined several times by different Courts such as Narshing Mishra & Another Vs. Rajendra Mishra & Ors reported in (2009) 2 PLJR 1028 as well as in the Case of Smt. Shashikala Vs. the State of Bihar & Anr reported in (2019) 1 BLJ PHC 597 in which the Hon'ble Court has held that the entry in khatiyan is always rebuttable in nature and mere entry in survey khatiyan does not extinguish the title of the rightful owner. This issue has also been considered by the Hon’ble Supreme Court in the case of Suraj Bhan & others Vs. Financial Commissioner & others reported in (2007) 6 SCC 186 , wherein the Hon’ble Apex Court has held that an entry in revenue record does not confer title on a person whose name appears in records of rights. Entry in the revenue records or jamabandi have only “fiscal purpose” i.e. payment of land revenue and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only by decided by a competent civil court.
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limitation and the plaintiff had no cause of action to file the suit as the Revisional Survey Khatiyan was published in the year 1970 and the suit was filed on 14.09.1993. It is well settled that the cause of action arises on the date when plaintiff feels any disturbance in the peaceful possession not on the date when the entry in Khatiyan is mentioned so the time will be counted from 10.09.1993 i.e. date of disturbance.
“14. In support of the contention that the suit was filed within the period of limitation, the learned Senior Counsel appearing for the appellant-plaintiffs before us submitted that there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In support of this contention the learned Senior Counsel strongly relied on a decision of the Privy Council in Bolo v. Koklan [(1929-30) 57 IA 325 : AIR 1930 PC 270]. In this decision their Lordships of the Privy Council observed as follows: (IA p. 331)
“...There can be no ‘right to sue’ until
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there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.”
15. A similar view was reiterated in C. Mohammad Yunus v. Syed Unnissa [AIR 1961 SC 808] in which this Court observed: (AIR p. 810, para 7)
“7. ...The period of six years prescribed by Article 120 has to be computed from the date when the right to sue accrues and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right.”
In C. Mohammad Yunus [AIR 1961 SC 808] , this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry in the revenue records cannot give rise to cause of action.
16. Keeping these principles in mind, let us consider the admitted facts of the case. In Para 16 of the plaint, it has been clearly averred that the right to sue accrued when such right was infringed by the defendants about a week back when the plaintiffs had for the first time come to know about the wrong entries in the record-of-rights and when
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the defendants had refused to admit the claim of the plaintiffs. Admittedly, the suit was filed on 218-1990. According to the averments made by the plaintiffs in their plaint, as noted hereinabove, if this statement is accepted, the question of holding that the suit was barred by limitation could not arise at all. Accordingly, we are of the view that the right to sue accrued when a clear and unequivocal threat to infringe that right by the defendants when they refused to admit the claim of the appellants i.e. only seven days before filing of the suit. Therefore, we are of the view that within three years from the date of infringement as noted in Para 16 of the plaint, the suit was filed. Therefore, the suit which was filed for declaration on 21-81990, in our view, cannot be held to be barred by limitation.”
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findings of fact and no question of law, much less substantial questions of law arises for consideration in the instant Second Appeal, which is, accordingly, dismissed at the stage of hearing under Order 41 Rule 11 CPC.
(Khatim Reza, J)
prabhat/-
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3 issues framed by the court
Whether the respondents proved an earlier partition of the joint family property by meets and bounds?
Whether the entry in the Revisional Survey Khatiyan confers title or extinguishes the rightful owner's title?
Whether the suit for partition was barred by limitation?
Colour shows how this judgement treated each authority
Bhagwant P. Sulakhe Vs. Digambak Gopal SulakhRelied on¶47
AIR 1986 SC 79 · Who else cites this
Narshing Mishra & Another Vs. Rajendra Mishra & OrsRelied on¶51
(2009) 2 PLJR 1028
Smt. Shashikala Vs. the State of Bihar & AnrRelied on¶51
(2019) 1 BLJ PHC 597
Suraj Bhan & others Vs. Financial Commissioner & othersRelied on¶51
(2007) 6 SCC 186 · Who else cites this
Daya Singh and another vs. Gurdev Singh (Dead) by LRS and othersRelied on¶55
(2010) 2 SCC 194 · Who else cites this
1 provisions across 1 enactments
Shiomuni Kumhar
Kanhaiya Kumhar
Khatim Reza
As recorded by the court registry
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