Manrakhan And Ors vs Muktiram Alias Niyamdas And Ors

Ram Prasanna Sharma, J

1) This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 20-9-2000/23- 9-2000 passed by the Additional District Judge, Dhamtari (CG) in Civil Suit No. 31-A/91 wherein the said court declared 1/11 share of respondent No.1 in the land situated at Bhanpuri, total area 21.31 acres and again mesne profits of Rs.72,000/- upto date of decree and thereafter @ Rs.6000/- per annum till delivery of the possession of the land of his share against original appellants Manrakhan, Ganpatram and respondent No.2 Dhaniram.

2) The Respondent No.1/plaintiff namely Muktiram filed suit before the trial court alleging that Dhanaram was owner of the land measuring area 45.85 acres as per Ex.P/1. The said Dhanaram had five sons namely Manrakhan, Ganpatram, Mukti Ram alias Niyamdas, Dhaniram and Narayanlal and five daughters namely Chandbai, Bodhinbai, Tejinbai, Kumwar Bai and Homin Bai. As per version of original appellants Manrakhan, Ganpatram and respondent No.3 Dhaniram, they were managing the property. It was informed to Muktiram by villagers when he was in Kabeer Sahitya Mandir that the above three persons partitioned the property that is why he reached the village and demanded his share. As per version of Mankaran, Ganpatram and Dhaniram, their father namely Dhanaram partitioned the property through registered partition deed dated 2-4-1972, therefore, the suit filed in the month of May, 1988 is time barred. The trial court opined that though partition took place on 12-4-1972, but Mukti Ram is entitled for share in the land of his father namely Dhanaram who got the land measuring 21.31 acres in partition.

3) Learned counsel for the appellant would submit as under:

i) As respondent No.1 Mukti Ram executed an agreement dated 7-1-1974 (Ex.D/1) and had left his share, now he cannot claim any share.

ii) The trial Court ought to have considered that Muktiram left the house in 1964 and became Sant, therefore, he cannot claim share in the property.

iii) Ex.D/1 (deed of relinquishment) is not required to be registered as per Section 49 of the Registration Act. The finding of the trial court is based on misappropriation of the facts of the case, therefore, same is liable to be set aside.

4) On the other hand, learned counsel for the State would submit that the finding of the trial court is based on proper marshalling of the evidence which does not call for any interference by this court while invoking jurisdiction of the appeal.

5) I have heard learned counsel for the parties and perused the record in which judgment and decree has been passed.

6) Ex.D/1 is the document of partition in which land measuring area 21.31 acres was allotted to Dhanaram who is father of Mukti Ram. Dhanaram died sometime in the year 1986 as per evidence. The suit was filed in the year 1988 for partition, therefore, same is maintainable so far as sit relates to the property of Dhanaram which he got in partition. From the evidence it is established that registered partition deed was executed on12-4-1972 and it was partitioned for the entire land of Dhanaram measuring to 45.42 which is shown in Ex,.P/1. Partition deed is not rebutted by the evidence, therefore, it is established before the trial Court that partition took place on 12-4-1972 and this was not challenged for more than 12 years and it was within knowledge of Mukti Ram as per evidence, therefore, the trial court is right in holding that the land which was allotted to Mankharan, Ganpatram and Dhaniram by the said partition deed is not questionable. After filing the suit the development is that wives namely Bhago Bai and Ratiyan Bai of Dhanaram died and their share is also inherited by their sons and daughters. Again, one brother Narayanlal also died on 6-6- 1998 having no successor, therefore, now nine successors are there for inheriting property of Dhanaram who is alleged to have died on 29-8-1986. Four sons namely Manrakhan, Ganpatram, Dhaniram and Muktiram and five daughters namely Chandbai, Bodhinbai, Tejinbai, Kumwar Bai and Homin Bai, in all nine will get share in the property of late Dhanaram because right opened on 29-8-1986. Mukti Ram will get 1/9th share in the area measuring 21.31 acres which is the property of late Dhanaram. The survey number of the said property is 94, 114/1, 156, 179, 191/3, 33/1 and 33/7 area measuring 5.74, 2.91, 1.08, 0.03, 3.44, 6.11 and 2.00 total 21.31 acres.

As per evidence on record, the entire property was in possession of Manrakhan, Ganpatram, Muktiram and Dhaniram and the trial Court after assessment of income from the land opined that Muktiram is entitled to Rs.6000/- per annum since filing the plaint from 1988 till disposal of the case i.e., 20-9-2000 and the period is 12 years and accounted of mesne profits @ Rs.6000/- per annum. After re-assessing the entire evidence this court has no reason to substitute contrary finding.

8) Accordingly, the share part of the decree is liable to be modified while the other part of the decree shall remain intact. Accordingly, decree is passed in favour of respondent Muktiram and against appellant/LR of Manrakhan, Ganpataram and respondent Dhaniram as under:

(i) Respondent No.1 Muktiram/plaintiff will get 1/9th share in the land area 21.31 acres as mentioned above.

ii) He will get actual land after partition as per Section 54 of the CPC, 1908 by the Collector or authorised officer/Tahsildar

iii) Mukti Ram will get mesne profits to the tune of Rs.72,000/- upto the period of year 2000. Thereafter he will be entitled to get Rs.6000/- per annum till actual delivery of possession of the land from the legal representative of Manrakhan, Ganpatram and Dhaniram.

iv) Appellants to bear the costs of respondent No.1 Mukti Ram through out.

v) Pleader's fee., if certified, be calculated as per Schedule or as per certificate whichever is less.

vi) A decree be drawn up accordingly.

Accordingly, the appeal is partly allowed.