Patna High Court
Smt. Maina Devi @ Mainabati Bageria And ... vs Mohammed Asagar on 12 May, 1997
Equivalent citations: 1997(2)BLJR1829
Author: P.K. Deb
Bench: P.K. Deb
JUDGMENT P.K. Deb, J.
1. This appeal has been preferred against the judgment and decree dated 5.5.1994 passed by Shri Raja Ram Singh, the then District Judge, Giridih in Title Appeal No. 8 of 1993 reversing the judgment and decree dated 6.2.1993 passed by Shri Vijay Bahadur Singh, Sub-Judge-III, Giridih in Title Suit No. 92 of 1986.
2. The suit of the plaintiff-respondent was dismissed in the original court while the said dismissal had been set aside in the First Appellate Court and decree has been granted in favour of the plaintiff-respondent.
3. The suit was filed by the plaintiff-respondent for declaration of his right, title and interest in respect of the suit property which appertains to Dag No. 1300 and 1301 under Khata No. 187 of village Jaridih Pachamba. It is the admitted case of the parties that Rangu Gaddi and Mithu Gaddi were jointly recorded as Basatu right over Khata No. 187 having various plots and Dag numbers. The Khata was recorded under joint names of Rangu Gaddi and Mithu Gaddi, but according to the plaintiff, although Khata was in joint name but the Survey Authorities recorded separate possession of Rangu Gaddi and Mithu Gaddi in the remarks column in a number of plots and some plots remained joint. The plaintiff has claimed his right over the suit plots on the basis of his purchase from the share of Mithu Gaddi.
4. Mithu Gaddi died leaving behind four sons, namely, Maqbul, Ajij, Subhan and Sultan. Except Sultan all the three sons died intestate and the whole share of Mithu Gaddi have been inherited by Sultan. Sultan also died leaving behind two sons, Yusuf and Ismail. Yusuf had two daughters, but both the daughters died intestate during the life time of Yusuf and then Yusuf also died leaving behind on heirs except his brother Ismail. So, the whole share of Mithu was inherited by Ismail, Ismail left behind four sons, namely. Asagar Mustafa, Muslim and Mustakim.
It is the case of the plaintiff that Md. Ismail Gaddi during his life time left village Jaridih Pachambha in the year 1965 but he used to look after the landed property of Jaridh Pachambha by coming and going from Purlia. After the death of Ismail Gaddi, his four sons also adopted the same policy and accordingly cultivation work was being done by the sons of Ismail Gaddi. Sons of Ismail Gaddi felt that it was not possible for them to keep possession of the suit property alongwith others by living at Purlia and they expressed their desire to sale out the lands and, therefore, they appointed and nominated one Md. Shalim son of Md. Ibrahim Gaddi, who happens to be a share holders from the lineage of Rangu Gaddi as their lawful attorney for transferring the lands bearing plot Nos. 1300 and 1301 and some other plots. The said power of attorney was a registered one dated 21.10.1986. The said attorney Md. Shalim son of Ibrahim transferred the suit plots alongwith some other plots in favour of Md. Asagar through a registered deed dated 31.10.1986 for a consideration of Rs. 7,000/-. As such according to the plaintiff, he acquired valid right, title and interest over the suit plots. It is the further case of the plaintiff that the defendant No. 1 who happens to be the wife of defendant No. 2 purchased a plot Nos. 1302 and 1304 of Khata No. 187 and disputed plots 1300 and 1301 lies on western boundary and southern boundary of their purchased plots. In the month of August, 1986, defendants encroached the suit lands in the absence of the sons of Ismail Gaddi. According to the plaintiff, the cause of action of suit arose in the month of August, 1986 when the defendants had encroached the suit land and also in the first week of November, 1986 when the plaintiff protested regarding expansion of the existing construction and its further construction and encroachment thereof into the purchased land of the plaintiff. When the defendant did not pay heed to the protest made by the plaintiff, the suit was filed.
5. Defendants took various pleas in the written statement contending, inter alia, that the suit was not maintainable, barred by estoppel, acquiescence, waiver and then principle of adverse possession. Specific Relief Act, Limitation Act etc. There was also plea of mis-joinder or non-joinder of party as hit under Order 7, Rule 2, C.P.C. According to the defendants, there were separate possession of Mithu Gaddi and Rangu Gaddi and the suit plots namely suit plot Nos. 1300 and 1301 were in the Kabjawari of Rangu Gaddi and the heirs of Rangu Gaddi had transferred the suit land alongwith some other lands to the defendants and they remained in possession as such. Their further case is that Ismail Gaddi had never left for Purlia rather his grand father Mithu Gaddi long back had left to Purlia leaving Jaridih Pachamba and gave up on all his landed property at Jaridih Pachamba. Neither the sons of Mithu Gaddi nor their heirs had ever exercised their possession over the landed property at Jaridih Pachamba.Defendants had acquired valid right, title and possession on the basis of the sale deed executed not only by heirs of Rangu Gaddi but also by the purchasers from the heirs of Rangu Gaddi and the suit plots were always remained in possession of the defendants. According to the defendants, the plaintiff being a litigant has purchased the litigation through a power of attorney of Ismail Gaddi's sons and then filed the suit. Long before the suit was filed the land remained in possession of the defendants and Md. Asagar is only trying to assert his right by semblance of title of Mithu Gaddi.
6. During the trial stage, several issues were framed and both parties adduced a large number of witnesses including documents of purchase and also some documents regarding Revenue records. The admitted position as held by the learned trial Court remained that as per Revenue records, the suit properties were partitioned amongst Rangu Gaddi and Mithu Gaddi, and as per evidence of defendants also the heirs of Rangu Gaddi had never claimed any right over the lands of Mithu Gaddi and their possession were separate and as such while as per Revenue records plot No. 1300 and 1301 remained in the Kahjawari of Mithu Gaddi and then his heirs, then the defendants cannot have any right over the suit properties. But, on the other hand, he held that the document, Ext. 2, by which the plaintiff had purchased suit property was only a appear transaction as the vendors of the plaintiff had never exercised possession over the suit plots, and hence the plaintiff cannot get any declaration of his right, title and interest and the suit was dismissed.
7. On appeal being preferred, the Ist Appellate Court held that when the trail Court had decided that the suit plots were in the share of Mithu Gaddi and when plaintiff or their vendors had never claimed any right, title and interest over the share of Mithu Gaddi then purchase made by the plaintiff of the shane of Mithu Gaddi can never be a paper transaction, when the question of adverse possession is not there as per Article 65 of the old Limitation Act.
8. While admitting this Second appeal, Hon'ble Mr. Justice Gurusharan Sharma vide order dated 1.12.1994 framed the following substantial question of law:
Whether the finding of the lower appellate Court reversing the finding of the trial Court that Ext. 2 was only a paper transaction and the plaintiff did not acquire any right, title and interest over the suit lands on the strength thereof can be sustained in law?
9. Practically, the point which has been formulated is not a substantial question of law on the face of it, rather it is the matter of factual aspect alone. However, the crux of dispute being with respect to Ext. 2 having conferred title on plaintiff or not was decided concurrently by the two facts finding courts. The execution of Ext. 2 was not challenged and the validity of Ext. 2 regarding its execution, registration had also been allowed by both the courts, but the trial Court held that it was only a paper transaction and it did not give or confer any title on the plaintiff as the alleged vendor of the plaintiff had no possession over the suit plots for several decades and when there was no possession of the vendors of the plaintiff, such possession cannot be claimed on the basis of title deed by the plaintiff, while the Appellate Court reversed the same.
10. At the time of argument of this appeal, Mr. N.K. Prasad, appearing on behalf of the appellants has submitted that practically following substantial question of law are to be decided in this appeal:
(i) Whether the lower courts gravely erred in basing their finding on the question of title to the suit lands merely on the basis of the entries in the remarks column of the concerned plots, when the certified copies were conflicting in nature?
(2) Whether the lower Appellate Court has gravely erred in not recording any finding on the plaintiff's document of Title, Ext. 2?
11. The admitted position remains that Rangu Gaddi and Mithu Gaddi were jointly recorded by the Revenue authorities in Khata No. 187 but in the remarks column. Kabjawari had been recorded in respect of the different plots in favour of Rangu Gaddi and Mithu Gaddi, but some plots in the same Khata remained joint, so, the question of partition by notes and bounds of both the share holders does not arise at all. It was wrongly found by both the courts below that the joint property between Rangu Gaddi and Mithu Gaddi were partitioned amongst them and as. per that partition Kabjawari was noted in the remarks column.
"Kabjawari" literally means possession by convenience. Such recording of Kabjawari does never infer partition amongst the co-sharers, Moreso, when some of the plots in the same Khata remained in joint. Thus, both the courts below had approached on a wrong angle in deciding the suit. The certified copy of Revenue records regarding Khata No. 187 had been produced by both the parties and those have been marked as Ext. 10, Ext. 10/A and Ext. G. Ext. 10 is found to be issued in 1940's and therein regarding suit plots, Kabjawari was mentioned in favour of Mithu Gaddi, while Ext. G produced from the side of the defendants, which was issued in the year 1971 shows that Kabjawari in respect of suit plots were mentioned in favour of Rangu Gaddi.
12. During the pendency of the suit, Ext. 10/A was taken by the plaintiff and it shows again that the suit plots were mentioned in the remarks column as in Kabjawari of Mithu Gaddi. Thus, there was three certified copies of the same Revenue records and those have got conflicting annotation. Learned Court below rejected Ext. 10/A because of its ambiguity, but the fact remains that all three are certified copies of the same documents and related to the same Revenue records. It would have been proper to call for the original records to verify as to which was the real certified copies. However, that has not been done. Even, it is taken that Ext. 10 gives the proper picture regarding Khata No. 187 then also it reveals that several plots were mentioned in possession (Kabjawari) of Mithu and several other plots in favour of Mithu Gaddi. The total area of the Khata is 103.87 decimals out of which 2.84 decimals remained joint. Thus, there was no partition by metes and bound and when there is no partition by metes and bounds and only for convenience possession has been recorded in respect of some plots in favour of the particular share holder then the legal inference is that the property remained joint between the co-sharers and it would remain so until and unless proper partition is there either through Court or amicably between the co-sharers.
13. On the basis of Kabjawari/possession by convenience, title cannot follow on it alone. Possession is based on title but title is not based on possession. Entries in the Revenue records regarding possession of a particular plot do not confer title exclusively to the person whose name appears so and as as such by sale title to the said plot exclusively do not follow to the purchaser. If vendor has got title to the extent of area in the particular Khata then title to so much of land would definitely go in favour of the purchaser but not particularly to some plots even if plots are being specifically mentioned in the sale-deed.
In this respect, Nagarpalika Jind v. Jagat Singh be referred to.
14. Title cannot be based merely on the basis of entries in the Revenue records that too in respect of possession alone. Admission of the parties that as per possession recorded in revenue records, one party had not interfered with the possession of the party has no bearing while question of conferring of title comes in. Co-sharers may possess according to convenience and by purchase of share of one co-sharer, he cannot get title or possession on that particular plot alone on the basis of recording of possession in remarks column of revenue records. The whole notion adopted by both the courts below are incorrect on the face of it.
15. Now, coming to the factual position, plots No. 1302 and 1304 were sold by heirs of Rangu Gaddi to Kamla Devi and Geeta Devi. The sale-deed of defendants is Ext. C/5, which is dated 14.6.1965 while the plaintiff's purchase is vide Ext. 2 dated 31.10.1986, so the plaintiff's sale is a sale later one than that of the defendants. But, it appears that the areas of land which had been sold to both plaintiff and defendants were within the share of the vendors of both the plaintiff and the defendants and as such by such purchase both plaintiff and defendants had become share holder in the said Khata but when there was no partition by metes and bounds, their purchase only become a purchase of ejmali property and by a subsequent purchase by the plaintiff, he cannot take Khas possession on dispossession of the defendants unless and until there is a proper partition between the share holders of Khata No. 187 and there cannot be any decree for Khas possession. The plaintiff can at best be declared of his title over the 0.6 decimals of land in Khata No. 187 irrespective of the specific plots being mentioned in the sale-deed. Similarly, defendants would also not get any exclusive possession regarding their purchases vide Ext. C/5. They would get shares of their vendors in Khata No. 187 irrespective of the plot numbers.
16. The learned original court made an error on the face of it, which has been cured by the first Appellate Court. When there are joint possession of the co-sharers then unless a complete ouster be proved there cannot be adverse possession of one co-sharer against the other. Only because, Mithu Gaddi or his heirs had left for Purlia leaving Jaridih Pachamba, that does not take away their share in the suit khata. Their shares shall remain so until ousted completedly. From the evidence of the defendants, it could be found that a complete ouster was not there rather they had admitted that they did not claim anything on the share of Mithu Gaddi.
17. Hence, in the circumstances and legal position as analyses above, the impugned judgment of the Appellate Court is modified to the extent that the plaintiff's title shall be declared in respect of 0.6 decimals of land in respect of Khata No. 187 and he would be in joint possession with the defendants and other co-sharers irrespective of the plot numbers mentioned in the sale-deeds of both the parties.
It must be mentioned here that when other co-sharers, if existing and are not parties to the suit, they would not be bound by this decree and they shall be entitled to challenge the title of both the plaintiff and the defendants, if occasion arises so.
18. The Second Appeal is thus partly allowed and the decree of the 1st Appellate Court is modified to the extent as mentioned above.
No order as to costs.