Gujarat High Court
Jusab Bachu Miyana vs Umar Bachubhai Miyana & 4 on 7 July, 2017
Equivalent citations: AIR 2018 (NOC) 110 (GUJ.)
Author: Anant S.Dave
Bench: Anant S. Dave, A.Y. Kogje
C/FA/410/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 410 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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JUSAB BACHU MIYANA....Appellant(s)
Versus
UMAR BACHUBHAI MIYANA & 4....Defendant(s)
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Appearance:
JENIL M SHAH, ADVOCATE for the Appellant(s) No. 1
MR P P MAJMUDAR, ADVOCATE for the Defendant(s) No. 5
MR SP MAJMUDAR, ADVOCATE for the Defendant(s) No. 5
MR TATTVAM K PATEL, ADVOCATE for the Defendant(s) No. 4
MR VIJAY H NANGESH, ADVOCATE for the Defendant(s) No. 1.1 - 1.2 ,
2.2 - 2.6 , 3.1 - 3.2
RULE SERVED for the Defendant(s) No. 2.1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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C/FA/410/2014 CAV JUDGMENT
Date : 07/07/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. This appeal arises out of judgement and decree passed on 14.10.2013 by learned 7th Additional Senior Civil Judge in Special Civil Suit No.8 of 2009 whereby Special Civil Suit filed by the plaintiff came to be dismissed.
2. The above Special Civil Suit was preferred by the plaintiff with a prayer for partition, possession, declaration and permanent injunction of the suit property mentioned at Annexure 'A' to the plaint. Accordingly to the plaintiff he was entitled for 1/5th of the suit property and further prayer was made against defendant Nos. 3 to 8 and 9 to 10, so far as consent order dated 16.8.2005 was passed in Civil Suit No.277 of 2005 and decree drawn accordingly to be quashed and set aside. Further declaration was sought to set aside and declare sale deeds dated 29.11.2007 and another sale deed dated 3.5.2008 by defendant No.11 and 10 as null and void.
3. According to plaintiff revenue survey Nos. 49, 75 and 76 are an ancestral land of one Bachu Kara Miyana and entry number was made in village form No.6 as early as on 1.5.1953. The plaintiff is one of the sons of Bachu Kara Miyana. In all they are five brothers namely sons of Bachu Kara named as Jusab, Umar, Kasam, Mamad, Allarakha. Umar and Kasam had died and legal heirs are defendants Nos. 1 to 8 while plaintiff and defendant Nos. 9 and 10 are brothers. Upon death of Bachu Kara, father of the plaintiff on 10.3.1964 revenue entry (kacha ) No.143 was entered on 15.5.1964 and was approved Page 2 of 17 HC-NIC Page 2 of 17 Created On Sun Jul 23 18:24:34 IST 2017 C/FA/410/2014 CAV JUDGMENT on 13.8.1964. With a view to defeat the claim of the plaintiff defendant No. 3 to 8 filed a suit against defendant Nos. 9 and 10 and consent decree was drawn. Later on, the above defendants executed sale deeds in favour of defendants No. 11 and 12 who are respondent Nos. 4 and 5 in this appeal.
4. In the above context, Mr. Mehul Shah, learned advocate for the appellant/original plaintiff emphasized on provisions of Mohammadian Law and submitted that upon a death of a person following Muslim religion legal heirs are tenant in common and consent decree drawn by the trial Court earlier in which, the plaintiff was not a party and the subsequent transaction of entering into sale vide sale deeds dated 29.11.2007 and 3.5.2008 respectively are illegal when the trial Court ought to have allowed suit by granting prayers of the appellant.
5. The following decisions are relied on by Mr. Mehul Shah, learned Senior Advocate for the appellants:
[1] Sneh Gupta v. Devi Sarup & Ors. reported in 2009(2) GLH 94 [SC] is about relinquishment by registered document.
[2] Bankey Behari v. Surya Narain Alias Munnoo reported in (2004)11 SCC 393.
5.1. It is submitted that relinquishing is also transfer for which registration is required under the Registration Act. In support of his contention about applicability of Mohammadan Law viz. upon death of a person following Muslim religion, legal heirs are tenant in common, the learned counsel placed reliance on Page 3 of 17 HC-NIC Page 3 of 17 Created On Sun Jul 23 18:24:34 IST 2017 C/FA/410/2014 CAV JUDGMENT the decision of the Apex Court in the case of Syed Shah Gulam Ghouse Mohiuddin & Ors. v. Syed Shah Ahmad Mohiuddin Kamisul Qadri [dead] by his legal representatives and Ors. [AIR 1971 SC 2184][paras 12 and 21].
5.2. Reference is also made to Mohammedan Law authored by Mulla. Section 41, 49 and 56 about devolving specific share in legal heir and tenancy in common and protection of right of co-sharer even in matter of alienation which took place at the time of partition.
6. As against the above Mr.Tatvam Patel, learned counsel for respondent No.4 relied on decision in the case of Sahabdar Khan & Anr. v. Sadloo Khan [Dead] by Lrs. & Ors. [(2001)10 SCC 464] about relevance of longstanding entries in revenue record.
7. So far as three survey numbers are concerned viz. Survey No.49, 75 part of the land is sold to respondent No.4 admeasuring 22,359 square meters out of total land admeasuring around 35,308 square meters and 45,324 square meters of land of both the above survey numbers. Before sale deed was executed public notice was given on 19.05.2007 to which no objection was raised by plaintiff and accordingly sale deed was executed on 29.11.2007. A reference was made to prayers in the suit about partition of suit land and 1/5th share to be given to the plaintiffs along with prayer of setting aside consent decree and also relevant sale deed. Further, no new right is created and knowledge of the plaintiff about entry Nos.143 and 144 with regard to relinquishing his right and further admission about Umar, one of the successor of Bachu Page 4 of 17 HC-NIC Page 4 of 17 Created On Sun Jul 23 18:24:34 IST 2017 C/FA/410/2014 CAV JUDGMENT Kara, was managing subject land in question. Not referring to survey No.58 admeasuring approximately 62,000 square meters of the land itself which part of the land was sold in the year 1964 and 1967 in favour of Anand Swami and Patel. Alternatively it is submitted that enough land is available to determine and 1/5th share of the ancestral land is in the possession of other co-sharers who have chosen not to appear before the trial court.
8. Mr. Sharvil Majmudar, learned counsel for original defendant No.12 refers to public notice dated 11.04.2008 to which no objection was raised and execution of sale deed dated 03.05.2008, who purchased the land bearing survey No.76 admeasuring around 31,363 square meters i.e. Exh.102.
8.1. Learned counsel further submitted that the conduct of the plaintiff by referring to suppression of fact about relinquishment recorded for entry No.144 and only after defendant produced relevant document the above fact was disclosed and, therefore, suit was rightly dismissed. There was no challenge to the entries No.143 and 144 for even subsequent entry was also recorded pursuant to the sale deed and claim is made after a period of 44 years. The plaintiff has already acquiesced to the situation viz. facts and circumstances of the case and the same is proved by his conduct and remained negligent about his right, if any. The defendant No.12 is bonafide purchaser and after verifying revenue record and issuing public notice to which no objection was raised, sale deed was executed in accordance with law which is registered and that he is in possession of the subject land purchased by him that plaintiff has no surviving interest Page 5 of 17 HC-NIC Page 5 of 17 Created On Sun Jul 23 18:24:34 IST 2017 C/FA/410/2014 CAV JUDGMENT in the suit property and so far as reference is made to consent decree dated 16.08.2005 is concerned, purchaser had no knowledge about same and no relief can be claimed against him. By referring to cross examination of the appellant - plaintiff Exh.49 at page 421 of the paper book it is submitted that survey No.58 sold by Allarakha, brother of the plaintiff in the year 1967, etc. to which plaintiff had knowledge and pursuant to entries made as early as in 1964 no mention was made about the same. The above cross-examination referred to certain admission. The above relinquishment can be oral, but reflected no revenue record for which registration is not necessary. By referring to Section 54 of Transfer of Property Act and Registration Act, distinction is drawn about requirement of registration only when document is under writing to be registered. About suppression by the plaintiff of relinquishment to which reliance is placed on the decision of the Apex Court in the case of S.P.Chengal Varaya Naidu [Dead] By Lrs. v. Jagannath [Dead] By Lrs. & Anr. [1994(1) SCC 1] in which relinquishment deed was suppressed and no disclosure was made, the Apex Court found that decree was obtained by non-disclosure of release deed and hence decree was required to be set aside. By referring to decision of Bombay High Court in the case of Ramdas Chimna v. Pralhad Deorao [AIR 1965 Bombay 74] that where no deed is required by The Transfer of Property Act or any other law, transfer will be made orally and applicability of Section 17 of the Registration Act which requires any particular transaction to be recorded in writing will not apply to the transaction like the relinquishment, etc. since none of the provisions of the Transfer of Property Act envisaged registration of oral transaction like relinquishment.
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9. The case of Kale & Ors. v. Deputy Director of Consolidation & Ors. [(1976)3 SCC 119] is about family arrangement not required to be registered and para 10 about binding fact and essential about family settlement and certain propositions emerged therein.
10. The case of Digambar Adhar Patel v. Devram Girdhar Patil [Died] [1995 suppl (2) SCC 428] is about record of rights and its functionary value vis-a-vis when the factum of partition was evidenced by entries in the Record of Rights, under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed.
11. In the case of Kenchegowda [since deceased] by Legal Representatives v. Siddegowda Alias Motegowda [(1994(4) SCC 294], it is held that unless all the joint family properties are made the subject matter of the suit, suit for partial partition is not maintainable.
12. However submissions are made on the basis of law of limitation would apply as the suit was time barred though cross-examination arose as early as in 1964 and 1967 that rule of estoppal will apply qua the plaintiff.
13. As against the above Mr. Mehul Shah, learned Senior Advocate would again refer to entry Nos.143 and 144 about 13.08.1964 and 16.08.1964 and remarks 'approved' and 'subject to approval'. That no family arrangement was made since no share to plaintiff was determined or earmarked. That Page 7 of 17 HC-NIC Page 7 of 17 Created On Sun Jul 23 18:24:34 IST 2017 C/FA/410/2014 CAV JUDGMENT cross-examination of plaintiff is not to be read in isolation or in piecemeal but admission with regard to legality and validity of the sale deed is only about manner and mode in which such sale deed was executed. That survey No.58 was not referred to or mentioned in the suit only because it was not forming part of consent decree. Mr. Shah further submitted that public notice was not the part of the record.
14. Having heard learned counsel appearing for the parties and perusal of the record of the case which include original case papers and the judgement and decree passed by learned 7th Additional Senior Civil Judge, Jamnagar in Special Civil Suit NO.8 of 2009 the reliefs claimed in the above suit was for partition, possession, declaration and injunction for the suit land described at Annexure/schedule 'A' and plaintiff is to be given 1/5th share from defendants on the basis of applicability of Mohammadian Law.
15. Secondly, to quash and set aside consent decree dated 16.8.2005 in Civil Suit No.277 of 2005 in the Court of learned Principal Senior Civil Judge, Jamnagar in which, order was passed in favour of defendants No.3 to 8 and 9 to 10. Thirdly, sale deed executed in favour of defendant No.11 on 29.11.2007 and defendant No.10 on 3.5.2008 to be treated as cancelled and not binding to the plaintiff and fourthly, permanent injunction to be granted against defendants of not alienating the land in any manner etc. At the outset original defendants who are brothers and legal heirs of brother of the plaintiffs respondent No.1, 1/1 and ½, respondent No.2, 2/1, 2/2, 2/3, 2/4, 2/5, 2/6 and respondent No.3, 3/1 and 3/2 are represented by learned advocate Mr.Vijay Nangesh. On their Page 8 of 17 HC-NIC Page 8 of 17 Created On Sun Jul 23 18:24:34 IST 2017 C/FA/410/2014 CAV JUDGMENT behalf and unequivocal statement is made that they have no objection if prayer of the appellant is granted in this appeal namely for partition of the suit land and declaration of entitlement of the appellant for 1/5th share and even to set aside consent decree as prayed for.
16. On 23.122014, following order was passed in Civil Application (For Interim Relief) No.1478 of 2014.
"1. Applicant appellant seeks stay of the judgment of the trial Court and further protection against disposal of the suit properties.
2. Having heard learned advocates for the parties, we notice that the applicant had filed the said suit for partition and declaration claiming right, title and interest in three agricultural lands bearing Survey Nos. 49, 75 and 76 along with other four brothers. The trial Court dismissed the suit, against which, the applicant has filed an appeal, which is admitted.
3. We further notice that out of the said survey numbers, under sale deed Exh.95, part of survey No.49 and part of survey No.75 have been sold to respondent No.4 in the year 2007. Likewise, the entire survey No.76 has been sold to respondent No.5 in the year 2008. This, however, still leaves substantial portion of survey Nos. 49 and 75 intact. We further notice that during the pendency of the suit, plaintiff's application below Exh.5 was Page 9 of 17 HC-NIC Page 9 of 17 Created On Sun Jul 23 18:24:34 IST 2017 C/FA/410/2014 CAV JUDGMENT dismissed, against which, he filed Appeal from Order, which was also dismissed. We further notice that the trial Court recorded that after the death of the father of the appellant and his brothers, a mutation entry was made indicating that the appellant had forgone his right. We are informed that such entry was made on 15.04.1964.
4. Under the circumstances, in our opinion, no case for granting blanket stay against the judgment and decree of the trial Court and prohibiting further use and enjoyment of the suit properties, arises. Learned counsel Shri Shah for the applicant, however, submitted that the trial Court did hold that the properties were ancestral properties and that the plaintiff would have a share in the said properties. However, on the basis of a consent decree in a suit in which the plaintiff was not a party, it was held that the partition of the properties would not be available.
5. Considering the facts and circumstances of the case, there shall be order of status quo with respect to the possession and title of the suit properties minus those which are already sold under sale deeds Exh.95 and 102. In other words, insofar as the subsequent purchasers are concerned, there shall be no stay pending the appeal qua the lands they have purchased under the above mentioned sale deeds.Page 10 of 17
HC-NIC Page 10 of 17 Created On Sun Jul 23 18:24:34 IST 2017 C/FA/410/2014 CAV JUDGMENT Rule made absolute to the aforesaid extent. Civil application disposed of."
17. We have perused the order and relevant factual details which are as under:
Pedigree (As per paragraph-1 of the plaint) Bachu Kara Miyana Page 11 of 17 HC-NIC Page 11 of 17 Created On Sun Jul 23 18:24:34 IST 2017 C/FA/410/2014 CAV JUDGMENT Umar Mamad Allarakha Kasam Jusab (died on (Defendan (Defendant (Died about (Plaintiff= 5.9.2008) t No.9= No.10= 25 years Appellant) (Heirs, Responde Responden prior to Defendant nt No.3/1) t No.1.3/2.) suit.) Nos. 1 and (Heirs, 2=Respond Defendant ent Nos. Nos. 3 to 1/1 and ½) 8= Respondent Nos. 2/1 to 2/6.) Sold part of Sold Survey Survey No.76 on No.49 and dated Part of 3.5.2008 to Survey Defendant No.75 on NO.12=Res date pondent 29.11.2007 No.5.
to Defendant No.11=Res pondent NO.4 Suit Properties Survey Area (Sq.mtr) Number 49 35,409 (Part of it admeasuring 8397 sq. mtr.
Sold by the respondent No.1 to the
respondent No.4)
75/1 31363
75/2 13,962 (Sold by the Respondent No.1 to the
Respondent No.4)
76 31,363 (sold by the respondent No.3/2 to the
respondent No.5)
Total 1,12,097 sq.mtr.
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Therefore, 1.5th share as claimed by the appellant comes to 22,410 sq.mtr. Total area of the land sold to respondent No.4 and 5 comes to 53,722 sq.mtr. And area of land still remaining with respondent Nos. 1 and 3 comes to 58,375 sq. mtrs.
The Court was cursorily taken through the record of the case which is as under:-
Written statement of the respondent Nos.1/1 and ½ (exh.33) supporting the case of the appellant. No written statement by the respondent Nos. 2/1 to 2/6 and respondent Nos. 3/1 to 3/2.
Written statement of respondent No.4 (Exh.28) Written statement of respondent No.5 (Exh.35) Documentary evidences:
1 Exh.57 Mutation entry No.143 dated 15.5.1964 recording names of all five sons as heirs of deceased father.
Certified on date 13.8.1964 2 Exh.86 Mutation Entry No.144 of the same date i.e. 15.5.1964 recording alleged relinquishment by four brothers in favour of one brother-
Umar-with two endorsements-(a) "certified" on date 13.8.1964, (b) "Liable to be certified after inquiry" on date 16.8.1964.
3 Exh.58 Mutation entries No.191 to 193 dated 16.6.1972 recording internal partition between three brothers-(a) Mamad, (b) Kasam, and (3) Allarakha 4 Exh.59 Mutation Entry No.225 dated 24.9.1983, recording family partition by the respondent No.1 in favour of his sons, in respect of part Page 13 of 17 HC-NIC Page 13 of 17 Created On Sun Jul 23 18:24:34 IST 2017 C/FA/410/2014 CAV JUDGMENT of the lands.
5 Exh.52 Plaint of earlier Regular Civil Suit No.277 of 2005, filed on date 16.7.2005 by the respondent Nos. 2/1 to 2/6 against the respondent Nos. 1, 3/1 and 3/2 without joining the appellant as party in respect of all the three survey numbers of the present suit lands.
6 Exh.54 Application for drawing consent decree, recording consent terms.
7 Exh.55 Consent decree drawn on date 16.8.2005, recording partition of the suit lands, without the appellant being a party thereto.
8 Exh.61 Mutation Entry No.289 dated 7.3.2006, recording consent decree-certified on date 16.5.2006.
9 Exh.90 Public Notice prior to purchase of part of the lands from the respondent Nos. 1/1 and ½.
10 Exh.95 Sale-deed of survey number 49 part and survey number 75 part by the respondent Nos. 1/1 and ½ in favour of the respondent NO.4 dated 29.11.2007.
11 Exh.102 Sale-Deed of survey number 76 by the respondent No.3/2 in favour of respondent No.5 dated 3.5.2008.
12 Exh.62 Mutation entry Nos. 302 and 303, in respect
(= of two sale deeds, mutated on 3.5.2008 and
Exh.103 24.5.2008 respectively, but the said entries
) have not been certified.
Oral Evidences:
1 Exh.49 Oral evidence of appellant-plaintiff
2 Exh.81 Oral evidence of the respondent No.1/2-
defendant No.2
3 Exh.84 Oral evidence of the respondent No.4-
Defendant No.11
4 Exh.100 Oral Evidence of the respondent No.5-
Defendant No.12.
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18. That perusal of the record reveals that the plaintiff has raised belated claim for the prayers made in the plaint and entries recorded in the revenue record particularly entry No.144 dated 15.5.1964 and plaintiff Jasub Bachu relinquishing his right in the suit property is to be believed and long standing revenue entry like in the present case will have evidentially value and has relevance while deciding the claim in ancestral property like the subject appeal in view of decision of the Apex Court in the case of Sahabdar Khan & Anr. v. Sadloo Khan (supra).
19. Further claim of the plaintiff right from the beginning namely for grant of injunction based on prima facie case, balance of convenience and irreparable loss etc. came to be rejected on 31.12.2009. All the revenue entries, promulgation and certifying the same by competent authority remained unchallenged. That purchase of the property by respective purchasers respondents No.4 and 5 respectively by sale deeds dated 29.11.2007 and 3.5.2008 vide Exh.95 and 102, procedure was followed of issuing public notices as borne out from record Exh.90 dated 19.5.2007. Again there is gross suppression in the plaint as well as other pleadings about land bearing survey No.58 also part of the ancestral joint property was sold earlier in the year 1967, to which, no objection whatsoever was raised by the plaintiff. Neither the above survey number was referred to in the plaint, prayer, or before this Court. Both purchasers respondents no. 4 and 5 are bonafide purchasers for value and sale deeds were executed based on available revenue record and entires made therein Page 15 of 17 HC-NIC Page 15 of 17 Created On Sun Jul 23 18:24:34 IST 2017 C/FA/410/2014 CAV JUDGMENT and the subject property was purchased after following proper procedure of issuing public notices, to which, no objection was raised. Consent decree dated 16.8.2005 passed in Civil Suit No.277 of 2005 was again based on record particularly share was relinquished by the plaintiff as early as on vide entry No.144 in the year 1964. Besides, conduct of legal heirs of deceased brother of the plaintiff and heirs and legal representatives speak volume about their intention to resurrect the whole issue and throughout the proceedings before the trial Court had not remained present and before this Court in this First Appeal. Mr.Vijay Nangesh, learned advocate appearing on behalf of the defendants has made a statement unequivocally that they have no objection if the prayer of the appellant is granted in this appeal for partition of suit land and declaration of entitlement of the appellant for 1/5th share and even to set aside consent decree as prayed for. That evil design in the mind of appellant/original plaintiff and heirs of legal representatives of Bachu Kara Miyana, now agreeing and consenting for partition though agreed earlier for drawing consent decree dated 16.8.2005 in Civil Suit No.277 of 2005 cannot be permitted in a belated claim made by the plaintiff who had acquiesced by his conduct and so found in the record of relinquishing the share and even vide entry No.144 and recording of family partition vide mutation entry No.255 by respondent No.1 in favour of his sons vide Exh.86 and 59 respectively.
20. In view of the above contention based on provisions of Mohammadian Law with regard to partition of property and treating legal heirs as tenants in common so argued by learned senior counsel for the appellant of plaintiff have no relevance.
Page 16 of 17HC-NIC Page 16 of 17 Created On Sun Jul 23 18:24:34 IST 2017 C/FA/410/2014 CAV JUDGMENT Only claim if any of the plaintiff of 1/5th share in the subject property has to be made in remaining subject land of 58,375 sq. mtrs as noticed in para 17 of the judgement. We are persuaded by the decision relied on by Mr.S.P.Majmudar, learned counsel for original defendant No.12, to which, reference is made in para 8.1, 9, 10 and 11 and accordingly dismissal of suit by learned trial Court cannot be said in any manner contrary to law and record. In absence of merit appeal is dismissed.
(ANANT S.DAVE, J.) (A.Y. KOGJE, J.) SMITA Page 17 of 17 HC-NIC Page 17 of 17 Created On Sun Jul 23 18:24:34 IST 2017