AI Structured Summary
Not yet generated for this judgment
Judgment
K.A. Puj, J.—The appellants/original plaintiffs have filed this Second Appeal u/s 100 of the Civil Procedure Code, challenging the judgment and order passed by the learned District Judge, Panchmahals at Godhara on 16.7.1983 in Regular Civil Appeal No. 105 of 1981, confirming the judgment and decree passed by the learned Civil Judge (J.D.) Godhara in Regular Civil Suit No. 467 of 1978. This Second Appeal was admitted and following substantial questions of law was formulated by the Court;
Whether in the facts and circumstances of the case, the Lower Appellate Court has substantially erred in law in raising presumption u/s 114 of the Indian Evidence Act, with regard to Entry No. 581 dated 4.3.1967, particularly when the evidence on record shows that no notice u/s 135 of the Bombay Land Revenue Code was issued before holding the said Entry.
In this appeal, learned advocate Mr. N.R. Tandel is appearing on behalf of the appellants/original plaintiffs. Originally Mr. Akshay H. Mehta, learned advocate appeared on behalf of the respondents. However, on his elevation as a judge of this Court, fresh notice was issued to the respondents. Despite, service of notice nobody appears on behalf of the respondents.
The brief facts giving rise to the present Second Appeal are that the appellants/original plaintiffs have filed Regular Civil Suit No. No. 467 of 1978 on or about 1.8.1978. All the Three appellants as well as the respondent No. 2 are the four brothers. The respondent No. 1 is the uncle of the appellants and the respondent No. 3 being the widow of Anopsinh Nansinh was joined as party in the suit and in all subsequent proceedings. The appellants contended that in sim of village Motal in Godhra Taluka, Block No. 235, survey No. 44/2 admeasuring about 1 Acre, 21 Gunthas is the joint property of both the parties and in possession of them jointly. The suit land was previously standing in the record of right in the name of their uncle as well as Andarsinh, father of the appellants. Except appellants and the respondents, no one has got any share in the suit land. Since the deceased Vajesinh and Anopsinh have already obtained their shares, they have not got any right , title or interest over the suit land. During the life time of the father of the appellants and respondent No. 2, they were cultivating the suit land jointly with the respondent No. 1 but after the death of their father, the appellants as well as the respondent No. 2 and respondent No. 1 are cultivating the land jointly. On 12.7.1978, the appellants had gone for the purpose of agriculture work in the suit land and the respondents obstructed them alleging that the appellants have no right, title or interest therein. The appellants, therefore, inquired and came to know that the respondent Nos. 1 and 2 had colluded and filed Regular Civil Suit No. 355 of 1974 in the Court of the Civil Judge (S.D.) Godhara, and the respondent No. 1 had obtained a decree in his favour against the respondent No. 2. It was an ex-parte as well as collusive decree. Under this decree, the respondents Nos. 1 and 2 did not allow the appellants to enter and cultivate the suit land in spite of the fact that the appellants have right, title or interest in the suit land. The respondent No. 1 had not joined them as a party when he filed Regular Civil Suit No. 355 of 1974. Under the circumstances, the said ex-parte decree is null and void and not binding on the appellants. On the basis of the said decree, if the names of the appellants are got deleted from the record of rights, it is not binding to the appellants. The appellants as well as the respondent No. 2 have got one half share in the suit land and as such, the suit is filed by them for a declaration to that effect. The appellants have prayed for declaration in the suit that the lands admeasuring 1 Acre, 21 Gunthas of Revenue survey No. 44/2 of Block No. 235 situated in the sim of village Motal, one half share from it is belonging to the appellants and the respondent No. 2. They have also prayed for consequential relief of permanent injunction against the respondents not to obstruct the cultivation and possession of the appellants.
The said suit was contested by the respondent No. 1 vide written statement at Exhibit-14, wherein he denied all the averments made in the plaint. The respondent No. 2, the brother of the appellants had made an attempt to commit a criminal tracepass by entering upon suit land in 1974 and as such, Regular Civil Suit No. 355 of 1974 was filed against the respondent No. 2 only. The respondent No. 2 did not succeed therein and the respondent No. 1 obtained a declaration in his favour, as per the judgment and decree dated 26.9.1977. The respondent No. 3 has also filed a written statement at Exhibit-23 contending that the averments and allegations made by the appellants are made at the instance of the stand taken by the respondent No. 1.
The learned Civil Judge framed issues at Exhibit-18 and after recording the evidence of both the sides, the learned Civil Judge came to the conclusion that the appellants failed to prove that the suit land was joint ownership of both the parties. The respondent No. 1 proved that there was a partition as per the averments made in Paras 4 and 6 of his written statement and the suit land is in possession of respondent No. 1. The learned Civil Judge accordingly, dismissed the suit and passed the judgment and decree against the appellants.
Being aggrieved by the said judgment and decree, the appellants have filed Regular Civil Appeal No. 105 of 1981. The learned Joint District Judge, Panchmahals at Godhara, raised the following points for determination;
(i) Whether it is proved that the appellants-respondents are joint owners of the suit land as alleged by the appellants ?
(ii) Whether the respondent No. 1 proves that there was a partition after 1966 and thereafter, he was only the person in possession of the suit land ?
(iii) Whether the suit is maintainable in view of the prior Regular Civil Suit No. 355 of 1974 ?
After considering the rival submission of the parties and after appreciating the evidence on record and the judgments and decree passed by the learned Civil Judge, the Appellate Court came to conclusion that the appellants have failed to prove that they have one half share in the suit land. The appellants have also failed to prove that they have got the possession of one half share or one half portion of the suit land. When the mutation entry as well as revenue record are there supporting the respondent No. 1''s case and when even in the prior suit when the respondent No. 2 the brother of the appellants has failed to establish his share, the appellants cannot be allowed to reagitate that they were technically entitled to file the suit because they were not the parties. The Appellate Court, therefore, held that the judgment and decree passed by the learned Civil Judge is quite legal, proper and consistent with the facts and circumstances as disclosed in the evidence and there is no reason to interfere in the same when the learned Civil Judge has rightly appreciated the evidence on record.
It is this order which is under challenge in the present Second Appeal.
Impugned orders are challenged on the ground that during the pendency of the suit, a Commissioner was appointed by the Court and the Panchnama at Exhibit-41 was prepared by him, which clearly shows that one half portion of land bearing Survey No. 44/2 of Block No. 235 was divided in two parts by a cactous hedge and the appellants were in the joint possession of the said land along with the respondents. It is further contended that relying on the evidence of witness Vikramsinh Makansinh together with the evidence of Pratapsinh Jivatsinh and the Panchnama prepared by the Commissioner, the lower Appellate Court should have appreciated that eastern portion of land bearing Survey No. 44/2 of Block No. 235 was being cultivated by the appellants for the last 18 to 19 years and therefore, possession of the suit land by the appellants should not have been doubted by the Court. It is further contended that if the appellants had no right, title or interest in the suit property, then there was no need to divide the suit land into two parts by a cactous hedge and the respondent No. 1 would not have been permitted the appellants to cultivate the suit land for the last 18 to 19 years. It is further contended that in Regular Civil Suit No. 355 of 1974 filed by the respondent No. 1 against the respondent No. 2, the appellants were never impleaded as parties and hence the decree passed in the said suit would not be binding on the appellants and even otherwise, decree in the said suit was obtained in collusion by the respondent No. 1 with respondent No. 2. It is further contended that the respondent No. 1 was serving in the Police Department, and since he was out of station, the appellants were cultivating the land on behalf of the respondent No. 1. If the appellants had no right, title or interest in the suit land, they would not be interested in cultivating the suit land without any reward and it is not the case of the respondent No. 1 that something was being paid or given in kind by him to the appellants for cultivating the suit land. It is further contended that raising presumption u/s 114 of the Indian Evidence Act regarding Entry No. 581 dated 4.3.1967 is not justified in view of the fact that no notice u/s 135 of the Bombay Land Revenue Code was issued on the appellants. It is, therefore, urged that the judgments and decrees passed by the Courts below are erroneous and bad in law and hence they are required to be set aside.
As stated earlier no one appears on behalf of the respondents after service of the fresh notice. However, the judgments and decrees passed by the Courts below have been perused by the Court and records and proceedings are also available with this court. Both the Courts below have considered the materials and evidence produced before them and after appreciation they have arrived at the conclusion that the declaration sought for by the appellants cannot be granted in absence of any evidence to that effect in their favour. The factum of partition was accepted by the Courts below. Though, the appellants were not parties in the earlier suit i.e. Civil Suit No. 355 of 1974, the judgment and decree passed therein was not challenged or disputed by the respondent No. 2 a brother of the present appellants. It has also came on record that after partition, Panch has passed a resolution and a reference to the said resolution was made before the Courts below. The Entry No. 581 dated 4.3.1967, clearly shows that the respondent No. 1 was the owner and in possession of the suit land. The said Entry has not been challenged by the appellants even on the ground that the same was passed without issuance of notice u/s 135 of the Bombay Land Revenue Code. Even if, the said Entry is null and void it has to be challenged and got it quashed and set aside in appropriate proceedings. So long as such Entry remains in existence, it is binding on the parties affected by the said Entry. The lower Appellate Court has clearly observed that the Entry No. 581 was prepared after consulting all the brothers and after issuing necessary notices. When mutation entry is made the parties concerned are required to be contacted. The Court can presume that u/s 114 of the Indian Evidence Act, the necessary procedure must have been followed while entering the mutation entry. The learned Trial Judge has also held that the appellants have got no evidence, particularly any documentary evidence to show that they were paying half of the land revenue or any land revenue for the part of the revenue Survey No. 44/2. The learned Trial Judge has further observed that when the witnesses of the appellants have admitted that the partition was evicted in the year 1966 and Entry No. 581 was made as per the partition and as per the shares that have gone to the parties concerned, the appellants could not have been allowed to back out from that Entry which was never challenged since then. The Courts below, therefore, rightly held that the Entry No. 581 is self sufficient to show that the appellants have no case that they have got the shares in the suit land.
Considering the entire facts and circumstances of the case and scrutinizing the evidence as well as impugned judgments and orders passed by the Courts below, this Court is of the view that no interference is called for by this Court while exercising its appellate jurisdiction u/s 100 of the Civil Procedure Code.
This Second Appeal is, accordingly dismissed, with no order as to costs.