Chattisgarh High Court
Smt. Chameli Bai vs Ujagar Singh on 17 July, 2008
Author: Dilip Raosaheb Deshmukh
Bench: Dilip Raosaheb Deshmukh
HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No. 291 of 1995
1. Smt. Chameli Bai
2. Thakur Deepak Singh
3. Ku. Jyoti
4. Legal representatives of
deceased appellant Thakur
Nanhe Singh
Lochan Singh
Rajendra Singh
Ravi Singh
Shakuntala Singh
Rekha Bai
5. Smt. Prembai
6. Thakur Kamal Singh
7. Smt. Usha Bai
...Petitioners
versus
Ujagar Singh
...Respondents
! Shri Anand Kumar Shukla, counsel for the appellants with Shri Parag Kotecha.
^ Smt. Renu Kochar, counsel for respondents Hon'ble Shri Dilip Raosaheb Deshmukh, J. Dated:17/07/2008 :Judgement O R A L J U D G M E N T This appeal is directed against the judgment and decree dated 31.05.1995 passed by the 4th Additional Judge to the Court of District Judge, Raipur in Civil Appeal No. 10-A/1995 affirming the judgment and decree dated 7.1.1994 passed by the 4th Civil Judge Class-2, Raipur in Civil Suit No. 232-A of 1992 whereby the unsuccessful appellants/plaintiffs' suit for declaration of title and mandatory injunction was dismissed.
2. Admittedly, Rameshwar Singh, Vishwanath Singh, Nanhe Singh, Dhiraj Singh and Ghanshyam Singh were brothers, being the sons of Raghuveer Singh. Rameshwar Singh was the eldest son. Smt. Uma Bai was his widow. They had no issue. Rameshwar Singh died on 6.10.1978. On 29.10.1979, Vishwanath Singh, Nanhe Singh and Dhiraj Singh instituted civil suit No. 232-A of 1992 in the Court of Civil Judge Class-II, Raipur for declaration of title and perpetual injunction against Smt. Uma Bai and Ujagar Singh on the ground that Raghuveer Singh, the father of the plaintiffs, had been granted permanent lease over Government Nazul Plot No. 6/356 situated at Gol Bazaar, Raipur (hereinafter referred to as the suit property).
3. The appellants/plaintiffs had averred that the plot No.6/356 and construction erected thereon was the property of the joint Hindu family. The respondent/defendant No.1 Ujagar Singh who was living with the defendant No.2 i.e. Smt. Uma Bai and looking after the business of Rameshwar Singh had made an application for mutation of his name over plot No.6/356 on the ground that he was the adopted son of Rameshwar Singh. The Commissioner, Municipal Corporation, Raipur ordered mutation of the name of Ujagar Singh over the suit plot bearing municipal No.6/356. Proceedings under Section 145, 146 of the Code of Criminal Procedure were initiated on a dispute regarding possession of the land bearing municipal No. 6/356. Since Ujagar Singh, the respondent/defendant No.1 was interfering with their peaceful possession, the appellants/plaintiffs sought a declaration that the disputed plot No.6/356 was the property of joint Hindu family consisting of the appellants/plaintiffs and Uma Bai, the respondent/defendant No.2 and a perpetual injunction was also sought against the defendants - Ujagar Singh and Uma Bai from interfering with their peaceful possession over the suit plot. Respondent/defendant No.2 Uma Bai's name was deleted from the cause title on account of her death during the pendency of the second appeal on 18.11.1995.
4. The respondents/defendants resisted the suit and denied that Raghuveer Singh was ever granted permanent lease over plot No.6/356. It was pleaded that Rameshwar Singh was the sole tenant on plot No. 6/356 and paid rent to the Municipal Council and later to the Corporation in his individual capacity. Rameshwar Singh had, from out of his own earnings, constructed a pucca building on the said plot. It was further pleaded that in pursuance of a vyavastha patra executed by Rameshwar Singh, the respondent/defendant No.1 was admitted as tenant on the said plot No.6/356 by the Raipur Municipal Corporation. It was specifically averred that since the appellants/plaintiffs were not in possession of the plot No.6/356, the suit as framed was not maintainable and perpetual injunction, as prayed for, could not be granted in favour of the appellants/plaintiffs.
5. The trial Court, on appreciation of evidence, oral as well as documentary, held that the appellants/plaintiffs had failed to discharge the initial burden on them to prove that plot No.6/356 was the property of the joint Hindu family or was allotted on a permanent lease to Raghuveer Singh in the year 1992. It also held that the construction raised by respondent/defendant No.1 over plot No.6/356 could not be held to be illegal as it was established that the said plot was allotted on a permanent lease exclusively to Rameshwar Singh who had raised construction over the said plot and after his death name of respondent/defendant No.1 was mutated by the Municipal Corporation on the basis of an affidavit of the respondent/defendant No.2. On these findings, it dismissed the suit.
6. The appellants/plaintiffs preferred First Appeal 10-A/1995 before the 4th Additional District Judge, Raipur. The lower appellate Court on a reappraisal of the evidence affirmed the finding of the trial Court and further held that the appellants/plaintiffs were not in possession of plot No.6/365 and a suit for declaration simplicitor was not maintainable. It also affirmed the finding recorded by the trial Court that the appellants/plaintiffs had failed to prove that the construction over plot No.6/356 was the property of the joint Hindu family. Being aggrieved, the appellants/plaintiffs have preferred this second appeal.
7. The following questions of law arise for determination of this appeal:
"( Whether on the facts and in the
1) circumstances of the case, the first appellate Court was justified in holding that the property in suit was self-
acquired property of Rameshwar Singh, even when respondent No.2 widow of Rameshwar Singh has categorically admitted that the property was ancestral?
(2 Whether on the facts and in the ) circumstances of the case, respondent No.1 who is neither successor nor adopted son of Rameshwar Singh, and respondent No.2 Umabai, could he succeed to the property of the deceased Rameshwar Singh?
(3 Whether on the facts and in the ) circumstances of the case, the first appellate Court was justified in dismissing the suit of the plaintiff in its totality?"
8. Submissions at length of Shri Anand Shukla, learned counsel for the appellant and Smt. Renu Kochar, learned counsel for the respondent were heard. Record is perused.
9. Question of law No.1:-
It is a well settled legal principle that there is no presumption of a property being joint family property only on account of the existence of a joint Hindu family. The burden of proving that the property is a joint family property is upon one who asserts it. In D.S.Lakshmaiah and another v. L. Balasubramanyam and another, 2003 AIR SCW 4347, the Apex Court held as under:
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
10. The appellants/plaintiffs were thus required to plead and prove that there was a nucleus with which Raghuveer Singh had acquired plot No.6/356 on lease and raised construction thereon. The mere fact that the appellants/plaintiffs and Uma Bai constituted a joint Hindu family and held certain other properties jointly] would not by itself be sufficient to hold that plot No.6/356 and the construction raised thereon was the property of joint Hindu Family.
11. The appellants/plaintiffs led no evidence whatsoever to show that the construction over the plot No.6/356 was raised by Raghuveer Singh from the joint family nucleus. Nanhe Singh P.W.1 specifically admitted in cross-examination that his elder brother Rameshwar Singh had left the ancestral house in the year 1953-54 and had started living with his wife Uma Bai on the disputed plot situated in front of Amardeep Talkies. Uma Bai, defendant no.2 has also made a categorical statement that the suit plot was owned exclusively by her husband. Her admission in paragraph 3 that all the brothers had a share in the agricultural land in village Oteband would in no manner go to show that the suit plot was also owned by the joint Hindu family. In the same paragraph, she has again categorically stated that the suit plot was recorded exclusively in the name of her husband, and therefore, she claims that the property in question was the exclusive property of her husband. The documentary evidence adduced by the appellants/plaintiffs also does not support them. Ex.P.27 and Ex.P.28 on the basis of which the appellants/plaintiffs' claim that the plot No.6/356 was allotted to Raghuveer Singh pertains to a different portion of land situated in a different locality i.e. Baijnathpara at Raipur whereas the plaint map shows that the property in question is situated at Amardeep Talkies Road at Raipur.
12. On the other hand, the documentary evidence adduced by the respondents/defendants i.e. Ex.D-2 to Ex.D-5 substantiates that after death of Rameshwar Singh, on the basis of an affidavit Ex.P.33 filed by Uma Bai that Ujagar Singh is their adopted son, the name of respondent/defendant No.2 Ujagar Singh was mutated over the shop situated at plot No.6/356. Ex.D.1, an order passed by the Executive Magistrate, Raipur in proceedings under Section 145 of Cr.P.C. further shows that Ujagar Singh was put in possession of the suit plot and shop situated thereon. This goes to show that Ujagar Singh was in possession of the suit plot and shop situated thereon on the date of suit. On a perusal of the record with utmost circumspection, I am of the considered opinion that the finding recorded by both the courts below that the appellants/plaintiffs have failed to establish that the property in question was the property of joint Hindu family of Raghuveer Singh is impeccable being based on proper appreciation of the evidence, oral as well as documentary and is in accordance with law. First question of law is, therefore, answered against the appellants/plaintiffs.
13. Question of law No.2:-
A look at the relief sought by the appellants/plaintiffs also leaves no room for any doubt that where a declaration was sought that the suit plot was the joint family property of the appellants/plaintiffs and Uma Bai, the defendant No.2, the relief of perpetual injunction, as prayed for, could not be granted against Uma Bai, the defendant No.2. Once the conclusion drawn by both the Courts below that the appellants/plaintiffs had failed to prove that plot No.6/356 was the property of the joint Hindu family and that the plot No.6/356 was allotted to Rameshwar Singh and after his death was in possession of the respondent/defendant No.2 Ujagar Singh and was also mutated in his name is upheld, there is no need to divulge on the second question of law because the appellants/plaintiffs did not have a semblance of title over plot No.6/356.
14. Question of law No.3:-
The lower appellate Court considered the arguments advanced by the respondents/defendants that the appellants/plaintiffs were not in possession of the suit plot, and therefore, a suit for a mere declaration of title was not maintainable. It rightly recorded a finding that the appellants/plaintiffs were not in possession of the suit plot and on this ground it dismissed the appeal while affirming the judgment and decree passed by the trial Court in its totality.
15. Section 34 of the Specific Relief Act reads as under:
"34. Discretion of court as to declaration of status or right.-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.-A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee."
The proviso to Section 34 makes it abundantly clear that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. In Ram Saran and another v. Smt. Ganga Devi, AIR 1972 SC 2685, it was held by the Apex Court that where the fact finding Courts had found that the plaintiffs were not in possession, a mere declaration of title could not be granted to the plaintiffs. In this case, the lower appellate Court has, on proper appreciation of evidence, oral as well as documentary, recorded a finding that respondent/defendant No.1 Ujagar Singh was in possession of the plot No.6/356 on the date of suit. In this view of the matter, I am of the considered opinion that under Section 34 of the Specific Relief Act, the relief of declaration of title was rightly refused by the Courts below to the appellants/plaintiffs. In view of the above discussion, the last question of law is also answered accordingly that the first appellate Court was justified in affirming the finding recorded by the trial Court and dismissing the appeal.
16. In the result, there is no merit in this appeal which is accordingly dismissed. Parties shall bear their own costs.
Judge