Jharkhand High Court
Unknown vs Gayatri Devi on 2 August, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
SA No. 110 of 2008
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 110 of 2008
(Against the judgment and decree dated 19th April, 2010 passed by
learned Additional District Judge, FTC I, Garhwa in Partition Appeal
no. 30 of 2008)
1(a) Chandrika Pandey
1(b) Arbind Kumar Pandey
Both s/o of Nand Kishor Pandey and grand sons of late Chintamani
Pandey, R/o village - Mahuli Khurd, P.O.- Kocheya, P.S.- Nagar
Untari
1(c) Priyanka Devi, W/o Alok Choubey, D/o Nand Kishore Pandey
and grand daughter of late Chintamani Pandey, R/o village - Dhari
Mandia, P.O.- Chapki, P.S.- Bhawnathpur, Dist.- Garhwa
2. Nand Kumar Pandey, son of Chintamani Pandey, R/o village -
Mahuli Khurd, P.O.- Kocheya, P.S.- Nagar Untari
... Defendants/Appellants/ Appellants
Versus
Gayatri Devi, wife of Rabindra Nath Dubey, D/o late Anirudh Pandey,
resident of village- Jahersarai, P.O.- Meral, P.S.- Majhiaon, Dist.- Garhwa
... Plaintiff/Respondent / Respondent
For the Appellant : Mr. T.N. Jha, Adv.
For the Respondents : Mr. Sanjay Kr. Tiwari , Adv.
Mr. Sachin Kumar , Adv.
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Second Appeal under section 100 of the Code of Civil Procedure, 1908 has been preferred against the concurrent judgment and decree of dismissal dated 19th April, 2010 passed by learned Additional District Judge, FTC I, Garhwa in Partition Appeal no. 30 of 2008 whereby and where under learned First Appellate Court dismissed the appeal of the appellant-defendant and confirmed the judgment and decree passed by learned trial court in Partition suit No. 27 of 2004 dated 29.11.2008.
3. The case of the plaintiff in brief is that the plaintiff and the defendant are the descendants of the common ancestor of 1 SA No. 110 of 2008 Deoki Pandey and Deoki Pandey had one son namely Harihar Pandey, who died in 1981 leaving behind two sons namely Chinta Mani Pandey and Anirudh Pandey- the father of the plaintiff. The father of the plaintiff pre-deceased Harihar Pandey leaving behind the mother of the plaintiff- Gulab Devi and the plaintiff, as his only legal representative. The plaintiff claims one half share from the suit land and demanded partition but the same was not acceded to, hence, the plaintiff field the suit with a prayer for preliminary decree of partition for half share of the suit land in favour of the plaintiff and that separate Takhtha of the plaintiff share be carved out by appointing a survey knowing Advocate Commissioner and plaintiff be put in a possession of a separate Takhtha and other reliefs.
4. The case of the defendant is that Deoki Pandey besides the property, also got landed property at village Jaharsarai and there was a batwara through the panches on 11.08.1958 signed by both the parties, in which the landed property at Jaharsarai was allotted to the share of the father of the plaintiff while the entire suit land was allotted to defendant no. 1, hence, the plaintiff is not entitled to partition.
5. On the basis of the rival pleadings of the parties, the trial court framed the following eight issues :-
(i) Is the suit maintainable as framed ?
(ii) Has the plaintiff got cause of action for the suit?
(iii) Is the suit barred by law of Limitation and adverse possession?
(iv) Is the suit barred by estoppel, waiver and acquiescence?
(v) Is the suit bad for non-joinder or mis-joinder of necessary parties?
(vi) Is there unity of title and unity of possession among the plaintiff and defendants with regard to the suit land?
(vii) Is the plaintiff entitled to their share as claimed in the suit land?
(viii) To what other relief or reliefs the plaintiff is entitled for ?
6. Learned trial court took up issue nos. (iii) and (iv), (vi) and
(vii) together and after appreciating the evidence in the record i.e. three witnesses examined by the plaintiff and the 2 SA No. 110 of 2008 documents which have exhibited as 1 to 6/A and eight witnesses examined by the defendants and the documents which have been marked as Exhibit A- F, came to the conclusion that there is no partition between the parties, in respect of the suit land by metes and bounds and there is unity of title and possession regarding the suit land between the parties and thus, decided the issue no. (vi) in favour of the plaintiff and against the defendant. Learned trial court came to a conclusion that the plaintiff being the legal heir and successor, is entitled to half share of the suit land and thus, decided the issue no. (vii) in favour of the plaintiff and against the defendant and also held that the suit is not barred by estoppel, waiver and acquiescence and thus decided issue no.
(iv) in favour of the plaintiff and against the defendant and observed that since the suit property was joint property hence, the principle of adverse possession will not be applicable and thus decided issue no. (iii) in favour of the plaintiff and against the defendant. In respect of the issue no. (v), the trial court came to the conclusion that there is no non-joinder or mis-joinder of necessary party. In respect of the issue no. (ii), the trial court came to the conclusion that there is valid cause of action for the suit and in respect of the issue no. (i), the trial court came to the conclusion that suit is maintainable. In respect to the issue no. (viii), the trial court came to the conclusion that the plaintiff has half share in the land and the other half belongs to the defendant and accordingly, passed the preliminary decree to the extent of half share of the suit land in favour of the plaintiff and also held that the defendants are entitled to the half share of the suit land.
7. Being aggrieved by the said judgment of the trial court, the defendant-appellant filed Partition Appeal No. 30 of 2008 in the court of District Judge, Garhwa which was heard and disposed of by the First appellate Court vide the impugned judgment and decree as already indicated above.
3 SA No. 110 of 20088. The First Appellate Court framed the following two points for determination :-
(i) Whether the suit land is joint property of plaintiff and defendants and the plaintiff has got half share in the suit land or the suit land is exclusive property of defendants allotted in their share by earlier partition dated 11.08.1958 as claimed by them ?
(ii) To what relief plaintiff is entitled for, if any?
9. Learned First Appellate Court after considering the fact that the genealogy of the parties given in the plaint is undisputed, except the fact that the defendant- Chintamani Pandey had three wives and not two wives and from the admission of the relationship between the parties, the First Appellate Court arrived at a conclusion that the suit land was joint property of undivided Hindu family consisting, three coparceners namely Harihar Pandey, the defendant no. 1 and the father of the plaintiff. The First Appellate Court took into note of the fact that the alleged partition deed which was marked as Exhibit A with objection regarding the family settlement, could not be duly proved as the DW5 who got the same exhibited, stated that the same is a document of partition, DW5 cannot read it nor he has signed over the same, though the same was prepared before him. Learned First Appellate Court also considered the fact that since the Exhibit A is a deed of partition of land and it has created exclusive right of one party in respect of a joint land and extinguishes the right of other, therefore, as per Section 17 (1) (b) of the Registration Act, 1908 Exhibit A requires mandatory registration but as the Exhibit A was not duly registered, learned First Appellate Court did not give much emphasis upon the same. Learned First Appellate Court also considered the fact that no documentary evidence could be produced by the defendant that the land at Jharsarai belongs to his father Harihar Pandey or it was their ancestral land. Learned First Appellate Court found fault in the 4 SA No. 110 of 2008 pleadings of the defendant that the mother of the plaintiff namely Gulab Devi has not acquired any land from stridhan at Jharsarai and it was gifted to her by her husband Upneti Kunwar and the same was allotted to father of the plaintiff namely Anirudh Pandey in partition but this pleading of the defendant was falsified by Exhibit 6, which is the certified copy of the sale deed executed by Upneti Kunwar in favor of Gulab Devi, the mother of the plaintiff for a consideration amount of Rs. 2,000/- regarding 16.75 acres of land of Khata No. 30, Village- Jharsarai and Rampur Pargana Belaunga, hence, the said land which was purchased in the year 1963 by the mother of the plaintiff, could not have been allotted to the share of her husband in the year 1958, as claimed by the defendant in his pleading. Learned First Appellate Court also considered the fact that except the oral testimony of the defendant-DW 8 that his great grandfather has land at Jharsarai, there is no other evidence adduced by the defendant in the record that there was some ancestral land in the village - Jharsarai, which was allotted to the share of the father of the plaintiff.
10. After making independent appreciation of the evidence in the record, the First Appellate Court came to a conclusion that the suit land is the ancestral property belonging to joint Hindu family consisting of Harihar Pandey and his two sons being the defendant no. 1 and the father of the plaintiff and this continued till death of the father of the plaintiff in the year 1961 leaving behind the plaintiff and his mother. The learned First Appellate Court also considered the settled principle of law that entry in revenue record, neither creates nor extinguishes any right, title or interest of any party nor the same is proof of title and dismissed the appeal and confirmed the judgment and decree passed by learned trial court.
11. Mr. T.N. Jha, learned counsel for the appellants submits that learned trial Court below failed to appreciate the evidence in 5 SA No. 110 of 2008 the record in its proper perspective by not considering the Exhibit A which is the document of partition between the paternal grandfather of the plaintiff, her father and the defendant no. 1, in the year 1958. It is next submitted by learned counsel for the appellants that both the courts below ought to have held that there is no unity of title or possession between the parties because partition had already taken place on 11.08.1958. It is next submitted that both the courts below ought to have considered the Exhibit E, which is Khatiyan in the name of Chinta Mani Pandey (Register - II) and would have come to the conclusion on the basis of the same, that the defendants have proved their independent title, in respect of the suit land.
12. Mr. Jha relied upon the judgment of Hon'ble Supreme Court of India in the case of Kale and others vs Deputy Director of Consolidation and others reported in AIR 1976 SC 807, paragraph 35, 42 and 47 of which reads as under :
" 35. Another argument advanced by counsel for the respondents was that the family arrangement was not valid because the appellant had absolutely no title to the property so long as Mst. Ram Pyari was in lawful possession of the property as the sole heir to Lachman, and if under the family arrangement any title was conveyed to the appellant, the said conveyance can only be by a registered instrument under the provisions of the Registration Act and the Transfer of Property Act. This argument also, in our opinion, suffers from a serious misconception. We have already pointed out that this Court has widened the concept of an antecedent title by holding that an antecedent title would be assumed in a person who may not have any title but who has been allotted a particular property by other party to the family arrangement by relinquishing his claim in favour of such a donee. In such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title. In fact a similar argument was advanced before this Court in Tek Bahadur Bhujil's case, (AIR 1966 SC 292) relying on certain observations made by Bose, J., in Sahu Madho Das's case, (AIR 1955 SC 481) but the argument was repelled and this Court observed as follows:
"Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the mother's money, could not have legally entered into a family arrangement. The observations are: It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it to the portions allotted to them respectively.
xxxxx These observations do not mean that some title must exist as a fact in the persons entering into a family arrangement. They simply mean that it is to be assumed that the parties to the arrangement had an antecedent SC822 title of some sort and that the agreement clinches and defines what that title 6 SA No. 110 of 2008 is." The observations of this Court in that case, therefore, afford complete answer to the argument of the learned counsel for the respondents on this point.
42. Finally in a recent decision of this Court in Shanmugam Pillai's case (AIR 1972 SC 2069) (supra) after an exhaustive consideration of the authorities on the subject, it was observed as follows:
"Equitable principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of Justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope.
xxxxx As observed by this Court in Subbu Chetty's Family Charities case (AIR 1961 SC 797) (supra), that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open."
In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against respondents 4 and 5. Respondent No. 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estopped as spelt out by this Court in so many cases. The learned counsel for the respondents placed reliance upon a number of authorities in Rachcha v. Mt. Medha, AIR 1947 All 177 Chief Controlling Revenue Authority v. Smt. Satyawai Sood, AIR 1972 Delhi 171 (FB) and some other authorities, which, in our opinion have no bearing on the issues to be decided in this case and it is therefore not necessary for us to refer to the same.
47. SARKARIA, J:-I am at one with my learned Brother, that this appeal should be allowed with no order as to costs and that the order dated January 22, 1965 of Respondent 1 quashed, the order dated November 28, 1964 of the Settlement Officer restored, and the Revenue authorities directed to attest the mutation in accordance with the antecedent family arrangement which had been orally arrived at between the parties and acted upon for several years. I further agree that the family settlement arrived at by the parties was oral, and the petition filed by them on August 7, 1956 before the Assistant Commissioner was merely an information of an already completed oral transaction. In other words, the petition was only an intimation to the Revenue court or authority that the matters in dispute between the parties had been settled amicably between the members of the family, and no longer required determination and that the mutation be effected in accordance with that antecedent family settlement. Since the petition did not itself create or declare any rights in immovable property of the value of Rupees 100 or upwards, it was not hit by Sec. 17 (1) (b) of the Registration Act, and as such was not compulsorily registrable. The rest of the reasoning in the judgment of my learned Brother has also my concurrence except that I will reserve my opinion with regard to the alternative proposition, whether this petition - assuming it was compulsorily registrable under Section 17 (1) (b) of the Registration Act - could be used to raise an estopped against any of the parties hereto. Decision of this point, in my opinion, is unnecessary for the disposal of this case. "(Emphasis supplied) and submits that it is a well settled law that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to this share and recognizing the right of the others, as they had previously asserted it to the portions allotted to them 7 SA No. 110 of 2008 respectively. So even if family settlement is not registered, it would operate as complete estoppel against the defendant and the Exhibit A did not itself create or declare any title in immovable property of the value Rs. 100/- or onward, hence it was not hit by Section 17 (1) (b) of the Registration Act, 1908, it is therefore submitted that the impugned judgment and decree be set aside and the suit of the plaintiff be dismissed on the ground of failing to prove the unity of title and possession of the plaintiff and the defendants, in respect of the suit land.
13. Learned counsel for the respondent, on the other hand, defends the impugned judgment and decree passed by learned First Appellate Court and submits that learned First Appellate Court has not only did not take into consideration the Exhibit A for the same being an unregistered document though the same claims to have created title by way of partition in favour of defendant no. 1 but also and more importantly because the same was not duly proved. Without doubt, the Exhibit A was marked with objection and DW 5, who proved the same has categorically stated that he cannot read what is written in Exhibit A and he was not a witness to Exhibit A. In view of such evidence in the record, certainly, the DW 5 was not the competent witness to prove the Exhibit A. Besides, Exhibit A is claimed to be a document which caused partition interalia between father of the plaintiff and the defendant no. 1 and their father Harihar Pandey and the same is not claimed to be a memorandum made subsequent to the said partition and hence, the same is mandatorily registrable and in the absence of any registration, the same is hit by Section 17 (1) (b) of the Registration Act, 1908. In support of his contention, learned counsel for the respondent relied upon the judgment of a co- ordinate Bench of this court in the case of Rupan Devi & Ors. vs. Jamuna Devi & Ors. reported in 2002 (3) JLJR 194, paragraph 9 of which reads as under :
"9. Appellant counsel submitted that the said document dated 22.3.1976 being a memorandum of partition, even if unregistered, was admissible in 8 SA No. 110 of 2008 evidence. A perusal of the said document and specially the endorsement made thereon by sarpanch and in absence of any recital that partition was already effected earlier. It cannot be termed as a memorandum of partition, rather by this document in presence of mukhiya and sarpanch actual partition was effected on 22.3.1976 itself and thereby 18.38 acres land detailed therein was allotted to Mostt. Jamuna Devi, plaintiff No. 1. Surprisingly, nothing is mentioned therein in respect of allotment of lands, if any, to Baraik Ramu Singh, husband of defendant No. 1. For this reason also, the said document could not have been accepted as a document of partition by metes and bounds between the parties. It was not admissible in evidence. The aforesaid substantial question of law is answered accordingly." (Emphasis supplied) hence, it is submitted that this appeal being without any merit be dismissed.
14. 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 relationship between the plaintiff and the defendants is undisputed that they are the common descendants of Harihar Pandey. It is a settled principle of law when the relationship between the parties is admitted that they are the descendants of the common ancestor, it carries with it the presumption of unity of title and possession. The burden lies upon such party who claims the partition by metes and bounds, to establish the same.
15. Learned first appellate court has not considered the Exhibit A , which is claimed to be a deed of partition between Harihar Pandey, the defendant no. 1 and the father of the plaintiff on the ground that the DW 5 was not competent to prove the same as he has categorically stated that he cannot say what is written in the same and he was not a witness to the same, further since the said document was claimed to be a deed of partition, the same is hit by Section 17 (1) (b) of the Registration Act, 1908. The defendant though claimed a prior partition on 11.08.1958 but they could not establish it by showing any partition by metes and bounds nor could produce any document in respect of the property, the common ancestor Harihar Pandey was having in the village Jharsarai, as claimed by the defendant.
16. So far as the contention of the appellant regarding the law laid down in the case of Kale and others vs Deputy Director of 9 SA No. 110 of 2008 Consolidation and others (supra) is concerned, there is no quarrel about the principles of law discussed in that judgment. But the facts of that case is entirely different from the facts of this case in the sense that in that case the family settlement arrived at by the parties was oral, and the petition filed by them before the Assistant Commissioner was merely an information of an already completed oral transaction and the petition was only an intimation to the Revenue court that the matters in dispute between the parties had been settled amicably between the members of the family, and no longer required determination and that the mutation be effected in accordance with that antecedent family settlement, but in this case in the Exhibit-A there is no recital that partition was already effected earlier rather by the Exhibit-A the determination was made regarding the share of the coparceners, so in the considered view of this court the same cannot be termed as a memorandum of partition. Further the courts below did not consider Exhibit-A merely because it is not registered but because the same was not duly proved. Truth of the contents of a document must be proved either by the author or by 'the person who knows and understands the contents', i.e. persons having personal knowledge of a document. Undisputedly Exhibit-A was marked with objection. So obviously the same is not admitted by the plaintiff. The D.W.5 who proved the Exhibit-A has categorically stated that he cannot read as to what was written in the Exhibit-A. Thus obviously the person who does not know or not able to read the contents of a document is certainly not a competent witness to prove that document. When a document is not admitted in evidence by proving the same by a competent person certainly the same cannot be read in evidence. Hence this court has no hesitation in holding that D.W.5 is not a competent witness to prove the Exhibit-A and thus the Exhibit-A, which was marked with objection having 10 SA No. 110 of 2008 not been proved as per law, there is nothing wrong in the court below not considering the same, on this score also.
17. Under such circumstances, this court is of the considered view that both the courts below have rightly appreciated the evidence in the record in its true perspective and there is no substantial question of law involved in this appeal, accordingly, this appeal being without any merit is dismissed.
18. No order as to costs.
19. Let a copy of this Judgment along with the Lower Court Records be sent back to the Court concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi.
Dated 2nd August, 2022 Smita/AFR 11