Patna High Court
Ram Charan Mistry And Ors. vs Most. Purni And Ors. on 30 August, 2000
Equivalent citations: 2002(1)BLJR76
Author: S.N. Pathak
Bench: S.N. Pathak
JUDGMENT S.N. Pathak, J.
1. This Second Appeal is directed against the judgment dated 20-7-87 passed by 6th Additional District Judge, Bhagalpur, in Title Appeal No. 77/83 confirming the judgment passed by Munsif, 1st, Bhagalpur, in Title Suit No. 43/79. The plaintiffs of the suit are the appellants before this Court.
2. The case of the plaintiff-appellants was that there was one Bhukhan Mistry who left behind his two sons Bishun Mistry and Pairu Mistry. Bhukhan Mistry died in the year 1920-21 leaving behind one residential house and some ban' land. In the year 1923, Bishun and Pairu Mistry separated their mess and business and they also partitioned the ancestral land. Bishun Mistry was a skilled carpenter and he shifted to Calcutta where he earned handsome income, out of which he acquired 1.91 acres of land from one Kharju Mistry by registered sale-deed dated 2-3-1945. Thereafter, Bishun Mistry executed two mortgage deeds including the suit land of 46 decimals over khata No. 59, plot No. 166. However, taking advantage of the absence of Bishun Mistry from village home, his brother Pairu Mistry got his own name mutated in the revisional survey, which was started in the year 1959, and which was later-converted into consolidation proceedings, over the suit land. However, in the year 1965 a petition was filed by Pairu Mistry to the effect that he apprehended disturbance from Bishun Mistry over the suit land. The petition was filed in the gram panchayat. There was a compromise petition dated 7-3-65 in the gram panchayat where by Pairu Mistry relinquished his claim over the suit land. Pairu died in the year 1968-69. Thereafter his widow, defendant No. 1, got her name mutated in the office of the Circle Officer, Sabour, Thereafter, the appellants challenged this order and the D.C.L.R. cancelled the mutation in favour of the defendants. Then, the defendants preferred an appeal before the Additional Collector who set aside the order of the D.C.L.R.. Thereafter, the plaintiff-appellants filed the suit.
3. The case of the defendant-respondents was that Bhukhan Mistry acquired 1.91 acres of land along with one Kharju Mistry. Kharju's share was 10 annas and the share of Bhukhan was 46 annas (2/3rd and 1/3rd respectively). However, subsequently Bishun Mistry acquired 1.91 acres from Kharju jointly with Pairu Mistry. In 1947, there was partition between the two brothers, as a result of which Pairu Mistry got 6 decimals of land, 6 decimals of Pairu along with the 46 decimals of land was mutated in his name and he remained in possession. Thereafter, his widow got her name mutated. Thus, the order of Additional Collector was rightly passed. The defendants were all along in possession of the suit land right from the days of their ancestor Pairu Mistry. Thus, they had perfected their title also by adverse possession. No petition was filed in the gram panchayat by Pairu Mistry nor any compromise was effected between the parties in the gram panchayat. Mortgage deeds and sale-deeds executed by Bishun Mistry were all forged and fabricated documents.
4. I find that the trial Court and the appellate Court both held that the mortgage deeds executed by Bishun Mistry were never acted upon and in villages such deeds are created without giving possession to the mortgages. The plaintiff-appellants had failed to prove that there was partition in the year 1923. Since the names of Pairu Mistry and later his widow were entered in the demand register of the State Government, the two lower Courts below though that the defendants were in possession of the suit land. On the basis of the aforesaid findings, the two lower Courts dismissed the plaintiffs' suit.
5. In this appeal, the substantial question of law framed was to the following effect:
Whether the Court of appeal below erred in law in dismissing the suit on the ground that the defendants have acquired title by adverse possession.
Besides the above substantial question of law, some more substantial questions of law appear to have emerged from the judgment of the two lower Courts. In this connection, 1st substantial question of law would be "whether the two lower Courts gave their finding on adverse possession without framing any issue to this effect and without any specific pleading by the defendant-respondents in this connection." The next substantial question of law would be "whether the two lower Courts took apparently wrong legal approach to the rival contentions of the parties in their pleadings".
6. It is apparent from the plaint and the W.S. of the defendant respondents that the common ancestor of the parties was one Bhukhan Mistry. It was pleaded by the plaintiff-appellants that Bhukhan Mistry died in the year 1020-21 and this fact was not denied by the defendant-respondents. The plaintiff-appellants pleaded that Bhukhan left behind one residential house and some bari land. This fact was also not denied, but the defendant-respondents in the W.S. at paragraph 9 stated that Bhukhan died leaving behind one residential house and some bari land together with 62 2/3 decimals of land of the old suit plot No. 125 (correspondent to khasra No. 166) (his 1/3rd share). Earlier, the defendants had pleaded at paragraph 7 that Bhukhan and Kharju had jointly acquired 1.92 acres of land of old plot No. 125 under Khata No. 12 of Mauja Chandhari (1/3rd and 2/3rd respectively). But, the averment at paragraph 10 of the W.S. of the defendant-respondents shows that acquisition of 1.92 acres of plot, in question, by Bhukhan and Kharju jointly is belied and the earlier pleadings of the defendants is self-defeating. This is so because at paragraph 10, it has been clearly mentioned that 1.92 acres of land was acquired by Bishun and Pairu Mistry jointly by registered sale-deed dated 2.3. 45, but of course, in the name of Bishun Mistry only because he was karta of the family. This sale-deed was obtained from Kharju Mistry. However, if Bhukhan had acquired on purchase 1.92 acres of plot, in question, along with Kharju, it is not understandable why Bishun Mistry and his brother Pairu Mistry obtained sale-deed over the entire land of this plot again from Kharju Mistry by sale-deed in the year 1945. If 1/3rd of this plot was already acquired by Bhukhan Mistry along with Kharju, 1/3rd of the same would be inherited by both Kharju and pairu and hence the question of acquiring the sale-deed from Kharju Mistry over the entire 1.92 acres of land from Kharju would not arise. So, the pleading at paragraph 10 will defeat the pleading at paragraphs 7 and 9 of the defendants that Bhukhan Mistry had acquired his share over the suit plot along with Kharju. Admittedly, the sale-deed of the year 1945 acquired from Kharju was exclusively in the name of Bishun Mistry, the ancestor of the plaintiff-appellants. So, unless it was proved by the evidence of the parties that the family of Bishun and Pairu was possessed of sufficient nucleus to acquire further property, acquisition in the exclusive name of Bishun Mistry would be deemed to be his independent acquisition and it would not form part of the joint family property. There is no presumption that joint family must be possessed of joint family property as well. It was clearly admitted by the defendant-respondents at paragraph 9 of the W.S. that Bhukhan had died leaving behind small residential house and bari land. So, unless it was shown by the defendant-respondents through their evidence that this bari land had given sufficient income to the two brothers to acquire further land from the income of the joint family property, there shall be no presumption that the acquisition in the name of Bishun Mistry was the acquisition from the joint family funds. So, contention of the defendant-respondents that both Bishun and Pairu had acquired the suit plot in the area of 1.91 acres was not to be accepted without a pinch of salt. Moreover, no evidence was adduced on behalf of the respondents that bari land left behind by the common ancestor Bhukhan was yielding sufficient income to purchase the old suit plot No. 125 (correspondent to new plot No. 166). The two lower Courts took an apparently wrong and illegal view regarding the acquisition of the suit plot by the two brothers who are the ancestors of the plaintiffs and respondents both. Proceedings on a wrong legal approach, the two lower Courts fixed the onus of proving partition on the shoulders of plaintiff-appellants. Thereafter, they held that the plaintiff-appellants failed to prove partition in the year 1923.1 am, however, of the opinion that this wrong legal approach adopted by the two lower Courts resulted in wrong approach to the onus and the wrong findings. So, I am to hold that even if the plaintiff-appellants had failed to prove partition as pleaded by them, the onus to prove that in partition the defendant-respondents' ancestor Pairu Mistry got the suit land lay heavily on them. It was the plea of the defendant-respondents that they had got 46 decimals (suit land) of plot, in question, on partition in the year 1947 and added to this their own 6 decimals of land, they got mutation in the name of Pairu Mistry. From this assertion of the W.S., it transpired that perhaps, the defendants, had got 6 decimals of their ancestral land because there was no pleading that there was any independent acquisition by Pairu Mistry. So, the 6 decimals of land appears to have been given to the defendant-respondents in partition, whatever may be the period of the same. The contention that they had got 46 decimals of land on partition out of the 1.91 acres acquired in the year 1945 does not appear to be probable because Pairu would have half share in the 1.91 acres of land purchased in the year 1945 and, therefore, his share would go to 95 and odd decimals. But, admittedly, he had got only 46 decimals. So, this story of partition as set up by the defendants does not appear to be convincing or probable.
7. So far the dealings of the suit property by the mortgage and sale etc. and the documents in question with which were filed, it was the pleading by the defendant-respondents that all the documents were forged documents. This contention, however, is not acceptable because all the deeds were registered ones and unless their forged or fraudulent character was proved by any evidence on behalf those who branded them as forged and fabricated, the contention in this respect cannot be accepted nor the deeds can be declared to be forged and fabricated. Therefore, the dealings of these properties by Bishun Mistry in the year 1947-49 and even beyond that would show his control over the suit land and his possession. Now, so far the contention of the defendant-respondents that Pairu Mistry got his name mutated during the consolidation proceedings as also in the landlord and State seresta, it is to be noted that three rent receipts were filed. However, only three rent receipts were not sufficient to prove the possession on, because it was pleaded by them that return was filed in the name of Pairu Mistry and by the ex-landlord, but no return was filed in the lower Court nor the register-ll was filed. Admittedly, D.C.L.R. had cancelled the mutation in the name of defendant No. 1 who was the widow of Pairu Mistry and, of course, the Additional Collector set aside the order of D.C.L.R. and immediately, thereafter, the suit was filed. So, filing of the three rent receipts (Ext. A to A/3) was not sufficient to prove that the defendants were paying rent of the suit land to the ex-landlord and to the State of Bihar, they being in possession of the same. It was not difficult for the defendants to obtain three rent receipts in view of the earlier order of Circle Officer mutating the name of defendant No. 1 which was later cancelled by the order of the D.C.L.R. Other documents filed by the defendant-respondents were one sale-deed by Bishun Mistry in favour of Shyam Sundar Das (Ext. B), Ext. C was Jarsaman receipt, Ext. D was order of the Additional Collector passed in the year 1978-79, Ext, E was notice under Section 144 Cr. P.C., Ext. B/1 was another sale-deed dated 11 -2-47 executed by Bishun Mistry in favour of Thakur Prasad, Ext. F was Chakbandi Khasra prepared in the name of Pairu Mistry. None of these documents would show that Pairu Mistry was throughout in possession over the suit land right from the days of partition in the year 1947.
8. Both the lower Courts on the basis of certain documents filed by the defendants, which I have referred to above, and disbelieving the documents filed by the plaintiffs specially Ext. 4 and Ext. 5, Ext. 9 and Ext. 9/A, held that the plaintiffs were not in possession and the defendants were in possession. However, the two lower Courts failed to refer to the oral evidence on behalf of the defendants regarding their adverse possession. I have already stated above that none of the documents filed by the defendant-respondents indicated their uninterrupted and peaceful possession over the suit land and the whole evidence on possession adduced by the defendants were not considered in detail nor in its depth in order to come to a finding regarding their possession. So, the judgments of the two lower Courts suffer from non-consideration of the evidence. Now, the question is whether the defendant-respondents had, of course, perfected their title over the suit land by virtue of possession. In this connection, the pleading has to be examined in close quarters and in its proper prospective. At paragraph 18, it has been pleaded that defendants and their ancestor Pairu Mistry had been and have been coming in peaceful cultivating possession of the land in suit since after partition in the year 1947 openly and adversely to the knowledge of the plaintiffs and their ancestor and, thus, the plaintiffs had lost the title, interest and possession over the same. Now, the question is whether a person getting a piece of land on partition and also describing adversely against the co-owner is an acceptable proposition. I think the two positions are dynamically opposed to each other. If a person claims getting a land on partition from his co-owner, it is not understandable how he starts prescribing adversely to his co-owner. So, the pleading in this connection is self-deceptive. It is not a plea of adverse possession in specific and explicit terms. Such a pleading is rather a misleading one and the defendant who makes such a pleading tries to assert his title over the piece of land by hook or by crook, Adverse possession has to be pleaded in a specific term and in all its ramifications and ingredients. A person who claims adverse possession over a piece of property has to give the period of adverse possession and the man against whom he starts prescribing. Moreover, continuous and uninterrupted and peaceful possession must be pleaded and must be shown by cogent and reliable unimpeachable evidence. In this connection, I have already stated above that pleading is vague and self-defeating.
9. The two lower Courts had discussed the evidence on behalf of the plaintiff-appellants regarding the partition, but they had failed to consider the evidence of the parties regarding the possession. As I have already stated above that it was the onus of the defendant-respondents to prove the adverse possession. So, the evidence led by them has to be examined.
10. So far as the evidence regarding adverse possession adduced by the defendant-respondents is concerned, I find that the defendants examined five witnesses, out of which D.W. 5 was the defendant No. 1 Purni Devi herself. D.W. 1 was purely a formal witness, D.W. 2 was Mukund Sharma, D.W. 3 and 4 were other witnesses on the point of possession. Undoubtedly, they spoke in a general way that the defendant-respondents were in possession of the suit land, but their evidence has to be critically examined to see whether their testimony is reliable. D.W. 2 in paragraph 6 gave the boundary of the suit land which does not tally with the boundary of the suit land given in the plaint. D.W. 3 at paragraph 10 said that regarding the partition he had learnt from Pairu and Bishun Mistry. At paragraph 13 he said that he was unable to say as to what area of land was possessed by Bishun Mistry and Pairu Mistry. At paragraph 14, he said that he was helping Purni from the very beginning in her litigation. So, D.W. 2 and D.W. 3 both cannot be relied upon in view of their above statements in support of the case of possession of the defendant-respondents as also regarding their case of partition. D.W. 4 at paragraph 8 said that he was unable to say as to what land was left behind by Bhukhan on his death. At paragraph 10, he said that he had filed a case against Ram Khelawan (one of the plaintiff-appellants) for assaulting him (this witness) with bhala which ended in acquittal of the accused. So, this witness becomes inimical to the plaintiff-appellants. So far as D.W. 5, defendant No, 1, is concerned, she is bound to support her own case and, therefore, her evidence may not be so relevant for deciding the fact of possession, but certain disclosers made by her in her cross-examination would go against her own case. At paragraph 9, she said that she was unable to say as to when the name of her husband was entered in the revisional survey. At paragraph 11, she said that a well was constructed on the suit land by her father-in-law (Bhukhan). At paragraph 14, she said that there was a partition paper prepared which was lost.
However, the case of the parties was that there was no partition paper. So, this evidence on the part of the defendant No. 1 was neither here nor there. From the aforesaid evidence adduced on behalf of the defendant-respondent, it is apparent that the evidence regarding adverse possession as pleaded by the defendant-respondents, was not at all reliable nor it can be held that defendant-respondents were in adverse possession of the suit land. So far as the papers are concerned, mutation in the name of Pairu Mistry was admitted and subsequently mutation before the Circle Officer in the name of defendant No. 1 was also admitted. Three rent receipts were filed in proof of payment of rent, but I am of the opinion that neither mutation nor rent receipts can conclusively prove the fact of adverse possession. There are chances of obtaining mutation orders by erroneous orders passed in this connection. Admittedly, D.C.L.R. has cancelled the mutation in favour of defendant No. 1 and, of course, the Additional Collector set aside the order of the D.C.L.R. and thereafter, the suit under appeal was filed. So, mutation or rent receipts filed by the defendant-respondents was not sufficient to prove their adverse possession on. As against the evidence on behalf of the defendant-respondents, there were a large number of witnesses examined by the plaintiff-appellants to speak of their possession. Besides the same, there were sale-deeds and mortgage deeds indicating dealings by the plaintiff-appellants. The contention of the defendant-respondents that these deeds were showy ones cannot be accepted in view of the fact that when these deeds were executed, there was no controversy between the parties and if it is assumed for a moment that the executors of the deeds did not pay consideration, at least it must be presumed that they had obtained or purchased stamps for preparation of those deeds. It is, therefore, not understandable what for the executors (Bishun Mistry) would purchase stamps for several deeds or if it is assumed that beneficiary of the deeds purchased stamps, again it becomes unbelievable that the beneficiaries shall purchase stamps only for showy documents. In such circumstances, unless there was definite and conclusive proof that these documents were showy ones, the contention of the defendant-respondents in this connection could not be given any credence. I have already held that there was no evidence on behalf of the defendant-respondents to prove that those mortgagee-deeds or sale-deeds executed by Bishun Mistry were showy ones. So, the dealings of the property by Bishun Mistry indicated his possession over the suit land. Besides the above, there was evidence on behalf of the plaintiff-appellants that they dug up well on the suit land. The evidence of D.W. 5 in this connection was that it was her father-in-law who had constructed the well. So, it appears that the evidence on behalf of the defendants could not be relied upon in face of the evidence of the plaintiff-appellants. Onus to prove the adverse possession was entirely upon the defendant-respondents in view of the fact that the plaintiff-appellants had proved their title and admittedly well the sale-deed of the year 1945 stood in the name of Bishun Mistry. I have stated above that unless there was evidence on behalf of the defendant-respondents that there was nucleus sufficient to purchase the property from the joint income, the presumption of self-acquisition in favour of the person who acquired the land shall lie in his favour. To rebut the presumption would be the onus of a person who pleads joint acquisition. I have already discussed the pleadings of the parties in this connection and in view of the pleadings, the defendant-respondents had failed to prove that the suit land was acquired from the joint income of the family and for the benefits of the entire family. In view of the aforesaid position of law, the onus to prove the partition of the joint family property specially regarding the suit land was also upon the defendant-respondents. Admittedly, there was no paper for partition and the evidence, which I have already discussed above, is also not sufficient to prove partition in the manner as pleaded by the defendant-respondents. I have already discussed other aspects of the manner of partition.
11. As a result of the aforesaid discussion, I am to hold that the two lower Courts adopted an illegal approach to the pleadings of the parties and the evidence on record and that resulted in wrong and erroneous findings of fact. The judgments passed by the two lower Courts are, therefore, not sustainable.
12. In the result, this appeal is allowed. The judgments and decrees passed by the two lower Courts are, hereby, set aside. The suits shall stand decreed for all the reliefs prayed for by the plaintiff-appellants. There shall be no order as to cost of this appeal.