Beniprasad Patel vs Smt. Prema Patel & Anr.

This is a first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short ‘the CPC’) filed by the appellant/defendant against the judgment and decree dated 11.03.2022 passed by the Additional District Judge, Sarangarh, District – Raigarh (C.G.) in Civil Suit Class A-23/2016. By the impugned judgment and decree, the learned Trial Court has decreed the suit filed by the respondents/plaintiffs and granted the decree as under:-

The parties are hereinafter referred to their status before the Trial Court.

The plaintiffs, who are the sisters of the defendant have filed a suit for declaration of a title, partition and possession in respect of the suit properties comprised in plot/ Khasra No.977/09/02, area 1767 sq.ft. situated at village Loharindabari, Jailpara, Ward No.12 (Old Ward No.8), Tehsil – Sarangarh, District Raigarh (C.G.) for partition of 1/3 share. As per the pleadings, the parties are siblings, they had one brother namely, Dilip Kumar who died intestate in the year 2009. The parties have inherited ancestral properties from their father and mother. The mother by virtue of a registered sale deed dated 07.02.1990 had bequeathed total 7.75 acres agricultural land situated in village Kharwani. Likewise, other properties were also recorded in the name of the plaintiffs. The disputed property as stated above is claimed under the partition of 1/3 share by the plaintiffs along with the defendant. Presently, the suit property is recorded in the name of defendant in the Municipal Council whereas the suit property was purchased by their father by registered sale deed. After the death of their father – Pyare Lal in the year 2004, the defendant made an application before the Nagar Panchayat, Sarangarh for adding his name in place of successor of deceased father and later on his name was ordered to be recorded by a proposal number – 227 dated 22.08.2006 which was subject to challenge before the Collector. In the month of February, 2015, the plaintiffs came to know that the defendant by playing fraud with them, recorded his name in the suit property. Thus, seeking the above stated relief, the suit was filed.

Written statement has been filed by the defendant and pleading was made that after the death of the mother, her properties situated in village Kharwani, Chanamuda and Baramkela was bequeathed by her through a registered will deed dated 07.12.1990 in favour of the plaintiffs and they are enjoying the said property. It is being further pleaded that a joint property situated at village Pharswani, P.H. No.45, R.I.C. – Hardi, Tehsil – Sarangarh, District – Raigarh (C.G.) was held by his father Pyare Lal and aunt Smt. Laxmin Bai out of which 0.462 hectare was kept by him for her wife for livelihood and the remaining properties were partitioned amongst the two brothers (defendant and deceased brother Dilip Kumar) in the year 1976 and the possession was also delivered. It has been further pleaded that in the year 2001, the suit property was orally partitioned by the deceased father between his two sons. Late Dilip Kumar brother of the parties, during his lifetime executed a will dated 05.05.2007 in favour of the defendant in respect of the properties received by him from this father and thus, the defendant is in peaceful possession of the properties and enjoying the same. The plaintiffs do not have any title right over the suit property. No cause of action arises in favour of the plaintiffs to file the suit. A construction worth Rs.5 Lakhs was made by the defendant and at present the market rate is around Rs.10 Lakhs and proper court fees has not been paid. Further, the suit is barred by limitation and was liable to be dismissed.

On the basis of the pleadings, the learned Trial Court formulated the following substantial question of law:-

The plaintiffs examined as many as one witness and exhibited 4 documents whereas defendants examined as many as three witnesses and exhibited 6 documents.

The learned Trial Court, after proper appreciation of the evidence available on record allowed the Civil Suit filed by the plaintiffs and granted the decree as stated above. Hence, this First Appeal.

Learned counsel for the appellant/defendant submits that the suit property was purchased by the father of the plaintiffs as well as defendant and it was his self acquired property. Apart from the suit property, other various properties have been inherited by the father from his ancestors. The mother also received certain properties from her ancestors and those properties have been bequeathed in favour of the plaintiffs by a registered sale deed which was not subject to challenge by the defendant. The property received from the ancestors and suit property purchased by the father has been duly partitioned between the deceased brother Dilip Kumar and the defendant way back in the year 1976 and 2001. The plaintiffs claiming their rights on the property of the father. When the property has already been partitioned by his father during his lifetime, the plaintiffs have no right to claim any right title over the said property. The learned Trial Court while deciding the Issue No.1 and 2, misread the evidence available on record with respect to partitioned. The defendant had been in possession of the suit property for a long period of time which also goes to show that he received the said property in way of partition and further the properties which fell in share of his brother Dilip Kumar had also been received by him by virtue of will deed executed by him in favour of the defendant. The plaintiffs/sisters have also succeeded the properties of the mother through a registered will deed and thus, the appeal deserves to be allowed setting aside the impugned judgment and decree particularly in respect of Issue No.1 and 2.

Per contra, Mr. S. N. Nande, learned counsel appearing for the respondents/plaintiffs vehemently opposes the submission made by Mr. Patel. He submits that the findings recorded by the learned Trial Court in respect of Issue No.1 and 2 is based upon proper appreciation of evidence. Apart from the other properties inherited by the plaintiffs or defendant from their parents, the suit property is in exclusively self acquired property of their father. Though, the defendant try to project the case that the suit property was partitioned by his father between his two sons i.e. defendant and deceased brother Dilip Kumar, however, there is no documentary cogent and prudent evidence available on record to substantiate this plea. Barring an oral assertion, there is nothing on record to hold otherwise. As the property was of the father of the parties, all the three have inherited the same by virtue of succession. When the defendant fraudulently recorded his name in the in the suit property, the cause of action has arisen which led to filing of this civil suit. The factum of oral partition between the brothers has been disbelieved by the learned Trial Court and this finding is based upon proper appreciation of evidence which does not require any interference. Appeal sans merit and liable to be dismissed.

Heard learned counsel for the parties and perused the evidence available on record.

The point for determination before this Court as to whether in the given facts and circumstances of the evidence available on record, whether the judgment and decree passed by the learned Trial Court can sustain the scrutiny of this Court. Issue No.1 and 2 are germane in this appeal. Burden to prove these issues was upon the plaintiffs. From the evidence of P.W.-1 Smt. Prema Patel, it is established that the suit property was of the father of the plaintiffs as well as the defendant and he was in possession of the suit property also. She has further deposed that without any intimation and consent of the plaintiffs, the defendant has recorded his name in the Municipal Council’s record fraudulently. From the record, it appears that the suit property was purchased by the father of the parties by a registered sale deed. The learned Trial Court relying upon the Ex. P-2 and Ex.P-3, the khasra panchsala form, the suit property was earlier recorded in the name of Pyarelal Patel (father of the parties) and his name was deleted after his death and the names of the defendant and deceased brother Dilip Kumar was recorded which continued subsequently. Thus, there is no dispute to the fact that the suit property was exclusively under the ownership of the father of the parties. The defence has been put forth by the defendant that the partition of rest of the properties was done by his father in the year 1976 and oral partitioned of the suit property done in the year 2001. The defendant had admitted that no paper work was done in the year 1976 and 2001 in respect of the oral partitioned. The oral partitioned was denied by the plaintiff P.W.-1 Prema Patel. The defendant examined one witness namely, Dharnidhar Patel (D.W.-3) to prove the oral partitioned. However, the learned Trial Court has not relied upon the oral evidence of these witnesses, particularly, the evidence of Dharnidhar Patel who in his paragraph 8 of his evidence has admitted that he was not present during the course of oral partition. Thereafter, the learned Trial Court relying upon the judgment of Supreme Court in case of Arunachala Gounder (Dead) By LRs V/s Ponnusamy and Ors. 2022 LawSuit (SC) 60 held that the oral partitioned has not been proved and the plaintiffs are entitled to receive the partition in the suit property.

Another defence put forth by the defendant that his late brother Dilip Kumar has bequeathed the property in his favour by way of a registered will deed vide Ex.D-6 and found the will deed Ex.D-6 suspicious as there was two signatures of testator Dilip Kumar. The learned Trial Court further found that the details of the property is also not mentioned in the will Ex.D-6. Another factor which find weight for disbelieving the will is that the alleged will was executed on 05.05.2007 and the mutation order in favour of the defendant and the deceased brother Dilip Kumar was passed on 22.08.2006 and thus, the deceased brother Dilip Kumar must had knowledge about the properties succeeded by him. On the basis of admission made by the defendant that his younger brother Dilip Kumar was mentally weak person which somehow improved, however, he was under depression. Thus, the learned Trial Court found that the testator was not a healthy person or no documentary evidence was available to show testator’s mental and physical health at the time of execution of the will and disbelieved the execution of will deed Ex.D-6. The findings so recorded by the learned Trial Court appears to be based on proper appreciation of evidence as such, the will (Ex.D-1) is a suspicious will.

Hon’ble Supreme Court in case of Bharpur Singh and others Vs. Shamsher Singh reported in (2009) 3 SCC 687 elaborated the suspicious circumstances which may surround in execution of a will and observed as under:-

Thus, the findings so recorded by the learned Trial Court in respect of disbelieving the will does not require any interference by this Court. Consequently, the findings recorded by the learned Trial Court is hereby affirmed.

Accordingly, the present appeal fails and is hereby dismissed. Decree be drawn. No order to cost.