Chattisgarh High Court
Smt.Arman Begum And Another vs Smt. Sukwaro And Others 50 ... on 25 October, 2018
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HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal No. 196 of 1999
1. Smt. Arman Begum, D/o. Late Fateh Mohammad, Aged about 40 years,
Caste Musalman.
2. Saira Bano, D/o. Fateh Mohammad, Aged about 35 years, Caste
Musalman.
Both R/o. Near Kathghora, Bus-Stand, District Bilaspur, M.P. (Now District
Korba (C.G.).
---- Appellants
Versus
1. (a) Smt. Sukwaro, W/o. Dharam Say (Dead & Deleted).
(b) Ram Singh, S/o. Dharam Say, Aged about 45 years.
(c) Shyam Singh, S/o. Dharam Say, Aged about 40 years.
(d) Rajrang Singh, S/o. Dharam Say, Ageda bout 35 years.
(e) Etwar Sigh, S/o. Dharam Say, Aged about 29 years.
All R/o. Village Gharipakhna, Tahsil Katghora, District Korba (C.G.)
(f) Charan Singh, S/o. Dharam Say, Aged about 42 years, Teacher,
Primary School, Rawan, At Post Rawan, Tahsil Katghora, District
Korba (C.G.).
2. Makhan Singh, S/o. Dharam Sai Kanwar, Aged about 28 years, R/o.
Village Dharipakhana, Tahsil Katghora, District Bilaspur (M.P.) now District
Korba (C.G.).
3. Smt. Nyaj Begum, D/o. Fateh Mohammad, Aged about 34 years, R/o.
Purana Bus Stand, Purani Basti, Katghora, District Bilaspur now District
Korba (C.G.).
---- Respondents
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For Appellants : Mr. A.K.Prasad, Advocate For Respondents : Mr. Manoj Paranjpe, Advocate
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Hon'ble Shri Justice Goutam Bhaduri Judgment On Board 25.10.2018
1. The instant appeal is against the judgment & decree dated 20.01.1999 passed in Civil Suit No.11-A/1998 by the Fourth Additional District Judge, Bilaspur.
2. The facts of this case are that a suit was brought by Smt. Arman Begam, D/o. Late Fateh Mohammad and Mst. Saira Bano, D/o. Fateh Mohammad. The defendants in the suit were Dharam Sai 2 as defendant No.1, Makhan Singh as defendant No.2 and Smt. Nyaj Begum as defendant No.3. The defendant No.3 was also daughter of Fateh Mohammad. The plaintiffs came out with a pleading that at village Katghora, Khasra No.169/8 admeasuring 0.02 dismil & Khasra No.307/2, 307/3, 307/4 admeasuring 0.28 dismil belonged to the plaintiffs as also the defendant No.3, the house and superstructure exists there along-with that it consist well, boundary, vegetable garden etc. It was stated that in the well the easementary right also was being enjoyed by the plaintiffs. The plaintiffs stated that all the property belonged to their father Fateh Mohammad. It was stated that Fateh Mohammad had two wives, one was Noor Bee and another was Roshan Bee. The plaintiffs were the daughter of Roshan Bee along-with defendant No.3 namely Smt. Nyaj Begam. Admittedly, the parties stated that they are governed by Hanafi Muslim Law and Fateh Mohammad and his two wives died earlier.
3. It was stated that another wife Noor Bee was ailing and by playing fraud the defendant No.1 & 2 in connivance with defendant No.3 got two sale deeds executed in respect of the suit property in the year 1992 & 1993. It was further stated that the suit property situates near Katghora Bus Stand and the sale consideration which was shown was meager whereas the price of the property so purchased was much higher. It was stated that the defendant No.3, Smt. Nyaj Begam, had executed the sale in respect of the Khasra No.307/2, 307/3 & 307/4 admeasuring 0.26 dismil for which the purchaser do not get absolute right over the property as the property was a joint property. Further it was stated that Khasra No.169/8 admeasuring 0.02 dismil was sold by a sale deed dated 07.11.1992 in favour of defendant No.1 though it was actually 3 purchased by the defendant No.2. It was further stated that in the sale deed, the property was shown as open land whereas the house exists there. The plaintiffs further stated that all the properties were the joint property of the plaintiffs and the defendant No.3, therefore, the defendant No.3 alone could not have executed the sale. It was stated that from January, 1996, the defendant started disturbing possession of the plaintiffs, as such, the suit was filed for permanent injunction and declaration.
4. The defendant No.1 & 2, purchaser of the suit property, filed their written statement. It was contended that the sale so executed was legal and the property was purchased for a valuable consideration. They further stated that the suit house consist of superstructure and for proper value it was purchased. They further stated that after the purchase mutation of the name was made in the revenue records which shows that the defendants are in possession. They stated that the plaintiffs were in know of the fact about the sale deed but they did not object to it, as such, they were estopped to challenge the same. Subsequently, the defendant No.3, Nyaj Begum, remained exparte before the Court. The Court on the basis of pleading of the parties framed six issues and dismissed the suit on the ground that the plaintiffs have failed to establish their claim, therefore, the instant appeal.
5. Learned counsel for the appellants would submit that the property in question was a joint property as it originally belonged to Fateh Mohammad. It is stated that both the plaintiffs along-with defendant No.3 were daughter of Roshan Bee, first wife of Fateh Mohammad. It is contended that Smt. Nyaj Bee was a joint holder of the property along-with the plaintiffs, therefore, by execution of 4 power of attorney in favour of Nyaj Bee, the seller Noor Bee along- with Nyaj Bee, the second wife of Fateh Mohammad, could not have sold their part of share to the defendant No.1 & 2, the purchasers. He further submits that the documents so exhibited by the defendants wherein the trial Court has held that the defendants are in possession are post sale, therefore, that cannot be read in advantage to the defendants. He submits that the evidence of the parties if are gone through would show that the admission exists in the record that the property was a joint property. Consequently, the sale by only few of the sharers would not entitle the purchaser to be the lawful owner of the property. It is stated that the trial Court failed to understand this issue in proper perspective, therefore, the appeal may be allowed.
6. Per contra, learned counsel for the respondents supports the judgment & decree of the Court and would submit that the plaintiffs have failed to discharge their burden that the property was a joint property. It is stated that an application under Section 41 Rule 27 of C.P.C. with certain documents though were placed was dismissed by this Court by an order dated 08.04.2013, as such, no evidence exists as on today so as to consider whether the property was joint or separate individual property. He further submits that the plaintiffs since have failed to show their right in the property they would be stranger to the sale deed and as such will not have any right to challenge the same. He placed his reliance in 1970 MPLJ 50, 2016 (12) SCC 288 & 1999 (3) SCC
573.
7. Heard learned counsel appearing for the parties at length and perused the documents.
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8. Perusal of the plaint would show that the entire suit was brought on the ground that sale made by Smt. Nyaj Bee in her personal capacity as also in the capacity of power of attorney of Noor Bee in favour of Dharam Sai & Makhan Singh is bad for the ground that the plaintiffs have also the right over the property. The reasons as assigned was that the original property belong to Fateh Mohammad, father of the plaintiffs, as also the defendant No.3, the sole seller. Therefore, the burden of proof to prove those facts that the subject property of sale belong to Fateh Mohammad was on the plaintiffs. Sayra Bano (PW-1), in her statement, made an oral statement that the suit property were not partitioned and were jointly held by them. Except such oral statement, no document has been placed on record to show that the property in question originally belonged to Fateh Mohammad and the remaining daughters and surviving wife would be the sharers and residuary to inherit the property.
9. As against this, the document Ex.D-7 shows the name of Noor Bee in respect of Khasra No.307/2, 307/3, 307/4. In respect of one plaintiff No.2, Sayra Bano, her name was recorded in respect of Khasra 169/7 admeasuring 0.008 as per Ex.D-8. Likewise name of Arman Begam, the plaintiff No.1, was recorded as per the revenue record Ex.D-9 in respect of Khasra No.169/4 admeasuring 0.008. Therefore, if the statements are evaluated as against revenue entry document Ex.D-7, Ex.D-8 & Ex.D-9, it raises complete ambiguity and confusion whether the subject land were held in joint holding or not, instead the presumption leads otherwise. It was the duty of the plaintiffs to place the proper document before the Court to show that the property in sale were held in joint. 6
10. The plaintiffs and defendants both have claimed that they are in possession of the suit property. In order to prove the possession, the defendants have placed & exhibited their document i.e. sale deed as Ex.D-1 & D-2, which engrafts the statement about handing over the possession. In order to rebut the same, the plaintiffs were required to prove by cogent evidence to show that they are in possession though the witness of defendant Shyam Singh (DW-3) has stated by referring to the plaint map that Sayra Bano is residing in the plaint map marked as "A" and stated on the south side another plaintiff Arman Begam resides. Therefore, that part of possession it appears that it will lead to another litigation in between the parties and may see another bout of litigation.
11. However, for the case in hand, the plaintiffs appears to have failed to prove by any relevant document that the subject suit property in question were jointly held by the plaintiffs alongwith the defendant No.3 Nyaj Begum. Only on the basis of the oral statement, at this stage, this cannot be upheld that the plaintiffs were having right over the property as a sharer and residuary. In the circumstances, after closed scrutiny and evaluating all the statement of the witness, I am of the opinion that no interference is required by this Court in respect of the judgment & decree to disturb such finding of fact. Accordingly, the appeal fails and is dismissed.
Sd/-
(Goutam Bhaduri) Judge Ashok