1. This appeal is against the judgment and decree dated 10.07.2019 passed by the learned Court of Second Additional District Judge, Bilaspur in Civil Suit No. 165-A/2016. The appellant plaintiff Keju Ram along with others filed a suit for declaration of cancellation of sale deed, permanent injunction and declaration of title in favour of the plaintiff.
2. In order to appreciate the rival claims and relations between the claimants and defendant no.1 Surja Bai, the genealogical tree of the parties would be relevant which is produced herein :
3. The plaintiffs claim to be in possession of the suit lands bearing Kh.No.51/3 admeasuring 1.60 acres, Kh.51/4 area 0.70 acres, Kh.No.238 area 0.08 acres, 239 area 0.07 acres, Kh.No. 495/2 area 0.40 acres, Kh. No. 496/2 area 0.10 acres, Kh.No.227 area 0.10 acres, Kh.No.165 area 0.10 acres all situated at village Bahatarai, P.H. No. 20/31, Tahsil and District Bilaspur Chhattisgarh. According to the plaintiff, the subject land was recorded in the name of Samaru and Nanki. Both sons of Tejwa. The plaintiffs claim that the property initially belonged to Tejwa who had 4 sons namely Kartik, Sukru, Samaru and Nanki. Kartik and Sukru were unmarried and died issue-less. Samaru was married to Jana Bai and out of that relation, they had one daughter named Jamuna Bai who was married to Jodhi Ram. Jamuna Bai had two sons Keju Ram and Akhaibar who have been arrayed as plaintiffs 1 & 2. Nanki (deceased), the other son of Tejwa (since dead) had 3 children i.e., one son namely Mayaram and two daughters Dasmath and Phulmat Bai. Phulmat Bai was arrayed as plaintiff no.3 and since after her death, she was represented by the legal heirs, plaintiffs 3(a) to 3(e).
4. According to the plaintiffs, Mayaram had four wives namely Sahetrin, Dukheen, Neera, Kaveri (all dead). Mayaram begotten a child from Neera namely Nimesh, who was arrayed as plaintiff no.7. The other daughter Dasmat Bai, who was married to Tirath Ram had 5 children namely Kumari Bai who is arrayed as plaintiff No. 4, Devi Prasad (Plaintiff No. 8), Laxmi Prasad (Plaintiff No. 5), Saraswati Bai (did not join the suit as plaintiff) and Narayan (Plaintiff No. 6). The plaintiff averred that during life time of Samaru, he kept one Surja Bai as a concubine who was arrayed as defendant no.1. The said Surja Bai, after sometime left Samaru Ram. However, taking advantage of her name which was recorded in the revenue records, she sold the entire land to Aditya Upadhyay, defendant no.2 and Sardar Rajput Singh (since deceased), now represented by legal heirs. The plaintiffs claimed that Surja Bai did not have any right to sell the property in its entirety as she was not the exclusive owner, therefore, the sale deed executed for the entire property in favour of defendant Aditya Upadhyay and late Sardar Rajpal Singh who are represented by legal wives be declared as null and void. The plaintiffs further claimed that they may be declared as the owners of the entire property and their ownership/possession over the property should not be disturbed and the defendants be restrained from interfering in the peaceful possession by permanent injunction.
5. Defendant Seller Surja Bai had filed her written statement and the two purchasers also filed their written statements. However, no evidence was adduced on their behalf.
6. The trial Court framed 3 issues and held that the plaintiffs have failed to prove that they are in possession of lands bearing Kh.No.51/3, 51/4, 238, 239, 495/2, 496/2, 227 and 165. Consequently the prayer made for cancellation of the sale deed dated 09.10.2014 cannot be granted and the sale deed cannot be declared as null and void and as a fall out, the relief of permanent injunction was also refused. Being aggrieved by such order, the present appeal.
7. Learned counsel for the appellant would submit that the documents Jamabandi Register of land records 1928-29 (Ex.P-4) and Ex.P-8 would show that the plaintiffs inherited the property through their ancestors and the status of Surja Bai was only that of a concubine. He would further submit that she having not legally married, would not inherit any property left by Samaru and in cross examination of evidence specific suggestion was given that her status was concubine which was admitted. He further submits that without prejudice even if Surja Bai is held to be legally married, she would not have any exclusive right to sell out the property in its entirety wherein the right of other family members was included. He would further submit that the revenue records and the order of Tahsildar would go to show that the plaintiffs are in possession of the suit lands, therefore, the sale of such lands cannot be sustained by one of the co- sharers. He further submits that the learned trial Court has completely failed to appreciate those facts, thereby recorded a wrong finding of fact which needs to be corrected in appeal.
8. Per contra, learned counsel for the respondents submits that the plaintiffs have to prove their case and cannot succeed on the weakness of the defence. He would submit that the plaintiffs have failed to prove any fact of either documentary evidence or other evidence that they are legal heirs of either Samaru or Nanki. Consequently any claim made by them could not have been entertained and was liable to be dismissed at the threshold. He further submits that the documents filed by the plaintiff would show that Surja Bai was held to be legally wedded wife of Samaru and her name was recorded in the revenue records which has presumptive value of correctness. Consequently, the sale executed by her would be valid and cannot be questioned. He, therefore, submits that the the judgment and decree of the learned court below is well merited which did not call for any inference.
9. We have heard learned counsel for the parties at length. Perused the records. The plaintiffs originally claim the property belongs to Tejwa through Samaru and Nanki. The document Ex.P-4 the record of rights of Jamabandi of the year 1928-29 would show that the lands of respective Kh.No.227 admeasuring area 0.10 acres, Kh.No.495/1 area 0.63 acres, Kh.No.238 area 0.08 acres acres was recorded in the name of Kartik, Sukru, Samaru and Nanki all sons of Tejuram Satnami. Likewise, the document record of right of 1954-1955 Ex.P-8 Khasra No. 51/4 area 0.70, Kh.No.51/3 area 1.60, Kh.No.227 area 0.10 acre, Kh.No.238 area 0.08 acres, Kh.No.239 area 0.07 acres, Kh.No.165 area 0.10 acres, Kh.No. 495/1 area 0.063 acres, Kh.No.496/1 area 0.13 acres, Kh.No.51/3 area 1.60 acres were recorded in the name of Samaru and it also records the name of Surja Bai. The records further show that the name of Surja Bai was cut-off and Jamuna Bai was recorded along with Mayaram, son of Nanki, then Nanki's name was struck off, another name of Nirasha Bai, widow of Nanki was recorded and the names of Phulmat Bai and Dasmat both daughters of Nanki were recorded as Bhoomi-swamis. The order of Tahsildar dated 18.02.1994 (Ex.P-7) would show that the name of Surja Bai was recorded by striking off the name of Jamuna Bai. The record of right further filed by Ex.P-10 only records the name of Surja Bai. There is nothing on record to suggest that the earlier land holders whose names were recorded as Bhumiswamis have executed any deed of disclaimer/ relinquishment deed. There is no evidence adduced on behalf of the seller Surja Bai who executed the sale in her exclusive right in favour of Aditya Upadhyay and late Sardar Rajpal Singh. The defendants though filed their written statements have not adduced any evidence. Therefore, simply because of the fact that name of one of the co-sharer was recorded in the revenue records, it cannot lead to a presumption that she was the exclusive owner of the property which was subject of sale.
10. The Supreme Court in case of Municipal Corporation Gwalior v. Puran Singh AIR 2014 SCC 2665 referring to section 35 of the Evidence Act, held that Khasra entries do not convey title and that entries are only relevant for the purpose of paying land revenue and has nothing to do with ownership. The Jamabandi documents of the years1928-1929 and 1954-55 filed by the plaintiff shows the joint ownership and joint possession. As has been laid down in Subhodkumar Versus Bhagwant Namdeorao Mehetre (2007) 10 SCC 571, in a Hindu family, the Karta or Manager occupies a unique position. As a general rule, the father of the family, if alive, and in his absence, the senior member of the family, is alone entitled to manage the joint family property.' He is entitled to possession of the entire joint estate and if such alienation is made by the Manager as Karta, the law raises no presumption as to the validity of such transaction. Same part of presumption can be borrowed from the aforesaid dictum though not in the capacity of Manager by Surja Bai. Mere mutation of name in revenue records would not confer any title. In the instant case, even if it is accepted that Surja Bai was legally married wife of Samaru, she would not have the right to convey the property in its entirety beyond her share in the property. The characteristics of Mitakshara co-parcenary property were laid down way back in the year 1969 in case of SBI versus Ghamandi Ram (1969) 2 SCC 33 : AIR 1969 SC 1330. This view was subsequently reiterated by the Supreme Court in (2008) 7 SCC 46 - Hardeo Rai v. Sakuntala Devi wherein at para 19 the dicta laid down by the Court in SBI vs. Ghamandi Ram (Supra) has been reproduced. Para 19 reads as under:
"19. We may at the outset notice the characteristics of a Mitakshara coparcenary from the decision of this Court whereupon Mr. Rai has placed strong reliance being SBI v. Ghamandi Ram AIR 1969 SC 1330. Therein this Court was concerned with a notification issued by the Government of Pakistan in terms of Section 45 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. We may, however, notice the dicta laid down therein: (Ghamandi Ram Case, SCC pp.36-37, para 5)
"5. According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (see Mitakshara, Chapter I, pp 1-27). The incidents of coparcenership under the Mitakshara Law are : first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except insofar that on adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter."
11. In the instant case, subject property was sold by two sale deeds Ex.P-1 and P-2 in favour of defendant no.1 and deceased defendant no.2 on 09.10.2014. By Ex.P-1, Kh.No.51/3 area 1.60 acres, Kh.No.51/4 area 0.70, Kh.No. 238 area 0.08 and Kh.No.239 area 0.07 acres were sold in favour of Aditya Upadhyay, the defendant respondent no.2. Likewise, Kh.No.495/2 admeasuring 0.40 acres, Kh.No.496/2 area 0.10 acres, Kh.No.227 area 0.10 acres was sold in favour of late Sardar Rajpal Singh. A perusal of both the sale deeds would show that it was sold exclusively by Surja Bai wherein the other plaintiffs were not parties. Having reference to the record of right which was of the years 1928-29 and 1954- 55 Ex.P-4 and Ex.P-8 which is a 30 years old document will have a presumptive value of correctness u/s 19 of the Indian Evidence Act. Having been produced from the custody the copy of document, presumptive value of correctness would follow and existence of such facts of mutation in Jamabandi would be guarded by Section 114 of the Indian Evidence Act that in the official capacity the entries were made. Consequently, we hold that in absence of any physical partition of undivided landed property or any relinquishment, even if it is accepted that Surja Bai was one of the co-sharer could not have sold the property in its entirety by putting the purchaser in particular part of property.
12. The supreme Court in Ramdas v. Sitabai AIR 2009 SC 2735 had occasion to discuss the issue of like nature wherein it was held that co- sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. The Court at pars 15 & 16 held thus :
"15) Without there being any physical formal partition of an undivided landed property, a cosharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao Vs. M. Narasimhaswami [AIR 1966 SC 470], wherein this Court stated as follows:
"Now, it is well settled that the purchaser of a co-parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co-parcener whose share he had purchased."
16). It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors. [AIR 1953 SC 487], wherein this Court held as under :
"All that (vendee) purchased at the execution sale, was the undivided interest of co-parcener in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour."
13.Further the Supreme Court in Kailash Pati Devi v. Bhubneshwari Devi 1984 AIR (SC) 1802 laid down that what is purchaser's right when the joint family property is purchased. It held that he has the right to file a general suit for partition against the members of the joint family and, indeed, that may be the proper remedy for him to adopt to effectuate his purchase.
14. In view of the foregoing discussion, we hold that Surja Bai having not to sell the entire property, the sale executed in favour of defendants 2 & 3 would not be binding on the plaintiffs. The plaintiffs are said to be in possession of the land as per the revenue records through their predecessors-in-interest, therefore, their peaceful possession shall not be interfered with otherwise than in due course of law. In view of the aforesaid discussion, we issue the following decree :
"(i) the sale deeds dated 09.10.2014 (Ex.P-1) and (Ex.P-2) are not binding on the plaintiffs except to the extent of share of Suraj Bai, if any.
(ii) The possession of plaintiffs shall not be disturbed otherwise than in due course of law.
(iii) the costs of the suit shall be borne by the defendants."
15. With the above direction/observations, this appeal stands finally disposed of.
