Kalipad Sana vs Hajari Lal Sana

Heard on admission.

This appeal has been preferred by the plaintiff under Section 100 of the Code of Civil Procedure, 1908, questioning the legality and propriety of the judgment and decree dated 28.08.2019 passed by the 7th Additional District Judge, Ambikapur, District Surguja (C.G.) in Civil Appeal No.35-A/2017, whereby, the learned appellate Court, while affirming the judgment and decree dated 17.10.2017 passed by the 5th Civil Judge, Class-2, Ambikapur, District Surguja in Civil Suit No.11-A/2014, has dismissed the appeal. The parties to this appeal shall be referred hereinafter as per their descriptions before the Court below

The facts, which are essential for adjudication of this appeal, are that the plaintiff – Kalipad instituted a suit claiming declaration of title and injunction with regard to the property in question bearing Kh.No.263/2 admeasuring 1.10 hectares situated at village Subhash Nagar, Tahsil Ambikapur, District Surguja. According to the plaintiff, the said property along with others were provided to his father Sarveshwar Sana under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as the Act, 1954) as he migrated from East Pakistan to India and upon his death, the revenue papers were recorded in his name. Further contention of him is that when he was cultivating the land in the year 2011, defendant No.1-Hajarilal started interfering in his peaceful possession while claiming his ownership over it and, therefore, he enquired the revenue papers in the year 2011-12, whereby it was revealed to him that the name of said defendant is recorded in revenue papers with regard to the property in question, i.e., Kh.No. 263/2 admeasuring 1.10 hectares. It is pleaded further that since said defendant was not his relative and as the property was earlier allotted to his father, therefore, without any authority, he obtained the revenue papers fraudulently and, therefore, no right or title as such would confer upon him.

It is pleaded further by the plaintiff that the Bhumiswami right of the properties which were earlier allotted to his father including the suit land was subsequently given to him by the Tahsildar, Ambikapur vide its order dated 25.01.1999 and since the name of said defendant was illegally recorded therein along with him, therefore, a review petition was filed by him before the said revenue authority, however, on the basis of forged deed of compromise, it was dismissed vide order dated 07.03.2012 and was affirmed further by the Sub-Divisional Officer (Revenue), Ambikapur vide its order dated 16.12.2013. Therefore, he has been constrained to institute the suit in the instant nature for his exclusive ownership of the property in question, i.e., Kh.No.263/2 admeasuring 1.10 hectares situated at village Subhash Nagar, Tahsil Ambikapur, District Surguja.

While contesting the aforesaid claim, it was stated by defendant No.1 in his written statement that being an elder member of the family, the property in question along with other lands were settled in the name of said Sarveshwar Sana, the plaintiff's father at the time when they migrated from East Pakistan to India under the said Act of 1954 as he was minor and his mother, namely, Purnima, who was the real sister of the plaintiff's father, also came along with him. It is, therefore, pleaded further while producing a copy of order dated 25.01.1999 as passed by Tahsildar, Ambikapur that after the death of plaintiff's father, the Bhumiswami right of the property in question was provided in their joint names by the said authority in Revenue Case No.108-A-19/1998-99 and thereafter in partition, the property in question, i.e., Kh.No.263/2 admeasuring 1.10 hectares came in his share and since then he is in possession while constructing a house over it and is residing along with his family members. It is pleaded further that the order as passed by the Tahsildar, Ambikapur on 25.01.1999 was questioned by him in Review Petition after passing of the considerable period of 10 years before the said authority where both the parties have arrived at a compromise and based upon the compromise, the said Petition was dismissed by Tahsildar, Ambikapur vide order dated 07.03.2012 and, which has been affirmed further by the Sub-Divisional Officer vide its order dated 16.12.2013 in appeal preferred by the plaintiff. The claim of the plaintiff, therefore, deserves to be dismissed.

From perusal of the record, it appears that Kh.Nos.273/21, 273/22 and 273/34 admeasuring 0.47 hectares, 3.53 hectares and 3.00 hectares total admeasuring 7.00 hectares are shown to be recorded in the name of one Sarveshwar Sana, the plaintiff's father, as evidenced by Survey List, marked as Ex.P.2 and, it appears that at the time of settlement, the same were renumbered as Kh.Nos.255, 256 and 263 admeasuring 0.05 hectares, 0.10 hectares and 2.68 hectares respectively. It appears further that vide order dated 25.01.1999 (Ex.D.2), Bhumiswami right was provided to the plaintiff – Kalipad Sana and others by the Tahsildar, Ambikapur, District Surguja and it was shown to be recorded in joint names of the plaintiff – Kalipad and Hajarilal, defendant No.1, who is the son of Smt. Purnima Sana, the real sister of plaintiff's father-Sarveshwar Sana. According to the plaintiff, the Bhumiswami right with regard to the said properties were given to him alone by the said order dated 25.01.1999 but defendant No.1, without any authority, has illegally succeeded to get his name recorded there along with him, and this fact came to his knowledge when he enquired the revenue papers in the year 2011, and therefore, he moved a Review Petition before the said authority as per the provisions prescribed under Section 51 of the Chhattisgarh Land Revenue Code, 1959 (in short, the Code of 1959). It, however, appears that the said Review Petition was filed by him only on 20.10.2010 (Ex.D.10) after passing of the considerable period of more than 10 years from the passing of the said order, dated 25.01.1999 (Ex.D.2). It appears further that during the pendency of the said review proceedings, both the parties have arrived at compromise and, based upon it, an application was made by the plaintiff before the said authority vide Ex.D.3 and prays for the closure of the same and that by considering the same, it was closed vide order dated 07.03.2012 (Ex.D.9). It, however, appears from the averments made in the plaint, that since the alleged compromise was a forged document, an appeal was, therefore, preferred by the plaintiff before the Sub-Divisional Officer (Revenue) Ambikapur. But, the said appeal was, however, found to be dismissed vide order dated 16.12.2013 (Ex.P.2) in Revenue Case No.390/B-121/2013-2014 and, which has attained its finality by efflux of time. Although it was pleaded by the plaintiff that his signature is not there and the alleged compromise (Ex.D.17) has been obtained fraudulently, however, a bare perusal of the application filed by him vide Ex.D.3, vis-a-vis, the document known as “Samjhauta Nama” (Ex.D.17), it appears that his signature is not only reflected from those documents, but were found to be duly corroborated by its attesting witnesses (D.W.2 and D.W.3). That apart, no effort was made by the plaintiff for verification of his said signature by way of examining the hand writing expert in order to prove the alleged “Samjhauta Nama” to be a fraudulent one, though the burden was upon him to prove the same as such. The alleged “Samjhauta Nama” (Ex.D.17) is an unregistered document, therefore, learned counsel appearing for the appellant has submitted that it is inadmissible in evidence and no reliance could be placed upon such an inadmissible evidence and in support of his contention has placed his reliance upon the decision rendered by the Supreme Court in the matter of Yellapu Uma Maheswari and Another v. Buddha Jagadheeswararao and Others reported in (2015) 16 SCC 787. The principles laid down in the said matter are, however, distinguishable from the facts involved herein, as in the said matter, two documents, i.e., a deed of “agreement” and a “memorandum”, both were found to be a deed of relinquishment upon its close scrutiny and which are, therefore, required to be registered compulsorily under Section 17 of the Indian Registration Act, 1908. However, in the instant matter, a bare perusal of the recitals made in the alleged “Samjhauta Nama”, it is difficult to hold that the plaintiff has relinquished his interest over the property in question in any manner. As such it cannot be treated to be a deed of relinquishment. In any case, the plaintiff himself has moved an application (Ex.D.3) for the closure of the said review petition based upon the alleged compromise and, after considering the same, the said review petition was not only closed vide order dated 07.03.2012 (Ex.D.9), but has been affirmed further by the Sub-Divisional Officer (Revenue), Ambikapur vide its order dated 16.12.2013 (Ex.P.2) and which has been found to be attained its finality by efflux of time.

Pertinently to be noted here further that instead of questioning the aforesaid orders as passed by the Revenue Authorities, the claim has been made with regard to the exclusive ownership over the property in question, i.e., bearing Kh.No.263/2 admeasuring 1.10 hectares of land. However, from perusal of the evidence led by the parties, as observed herein above, it is difficult to hold that the alleged Bhumiswami right was granted to the plaintiff alone and/or would be entitled to be declared the exclusive owner of it, as claimed by him. Consequently, I do not find any infirmity in the impugned judgment and decree, so as to call for any interference in this appeal.

In view of above, I do not find any question of law, much less the substantial questions of law, which arise for determination in this appeal. The appeal, being devoid of merit, is accordingly dismissed at the admission stage itself.

No order as to costs.