Ram Bali and Others vs Jagdish and Others

Hon''ble S.U. Khan, J.—Heard Sri V.K. Rai, learned counsel for the appellants, Sri D.S.P. Singh and Sri P.P. Chaudhary, learned counsel for the respondents at the admission stage in both the appeals.

Both these appeals by the same set of three of several defendants arise out of O.S. no.461 of 1993, Gajendra Pal Singh Vs. Ram Bali and others. The suit was decreed on 5.4.2003 by Civil Judge (J.D.) Pharenda, District Maharajganj. Against the said judgment and decree two appeals were filed one by Jagdish, Brij Raj and Grij Raj sons of late Ram Chandra (Civil appeal no.6 of 2003). The other appeal was filed by present appellants Ram Bali, Harihar and Sadhu (Civil Appeal no. 7 of 2003). Both the appeals were allowed in part. Second appeal no.873 of 2009 (earlier no.47 defective of 2006) arises out of Civil Appeal no.7 of 2003 and Second Appeal no.274 of 2006 arises out of civil appeal no.6 of 2003.

As far as plaintiff''s 1/9 share in the property in dispute is concerned, no party raised any objection against that in the appeals before lower appellate court (paras 16 and 21 of its judgment).

A sale deed dated 6.4.1957 was executed by Smt. Mehrunisha in favour of Ram Chandr Basudev and Gajendra Pal of plot nos.135 and 136, Ram Chandr had 1/3 share therein. The crux of the dispute is whether Ram Chandr purchased 1/3 share for himself alone or he purchased the share on behalf of other family members also. The total area of the sold land was 66 decimal (0.66 acres) and each of the 3 purchasers was sold 22 decimal. Defendants no. 1 to 3 (appellants in this Second Appeal) Ram Bali son of Bansh Raj, Harihar and Sadhu sons of Akshaibar stated that Bansh Raj, Akshaibar and Ram Chandr were real brothers and the portion of 22 decimal purchased by Ram Chandr in 1957 was on his own behalf as well as on behalf of Bansraj and Akshabar. Obviously defendants 4 to 6 Jagdish, Brijaraj and Gajraj sons of Ram Chandr denied the said assertion. Accordingly, the main dispute in the Second Appeals as well as in the appeals before the lower appellate court was in between defendant nos. 1 to 3 on the one hand and defendant nos. 4 to 6 on the other hand. Vasudev one of the transferees under the sale deed of 6.4.1957 sold the land of his share under the said sale deed to all the three brothers i.e. Ram Chandr, Akshaibar and Rambali in equal share i.e. 1/3 each through two sale deeds executed in 1962 and 1964, paper nos.29 Ga and 30 Ga.

Defendants nos. 1 to 3 took up a fantastic case that pandit had told that in case land was purchased in the name of Ram Chandar, it would be auspicious. The lower appellate court rightly held it to be nothing but fairy tale. The fact that one of the transferees in the same sale deed of 6.4.1957 i.e. Basudev sold his share to the three brothers (Ramvati, Akshay and Ram Chandr) in equal share completely disproved that Ram Chandar who purchased 1/3 property through same sale deed dated 6.4.1957 purchased the same on his own behalf and on behalf of his two other brothers, Rambali and Akshaibar.

Defendant nos.1 to 3 further contended that in consolidation proceedings Ram Chandra had admitted that his share was only 1/3 in the share purchased byhim in 1957 and Ram Bali and Akshar also had sharetherein. The lower appellate court held that no order of C.O. was filed accepting the said alleged admission. It has further been held that from perusal of CH form 23 it was evident that the property in dispute was abadi land, hence consolidation authorities had no authority or jurisdiction to pass any order regarding that determining the share of the parties. It was also held that no order of consolidation court was filed. Page 176 of the paper book is copy of document 93 Ga (or 13 Ga) which is alleged admission by Ram Chandr dated 6.2.1962 in respect of Khata Khatauni no.49. Thereafter Annexure 3 to the affidavit filed in support of Stay application on page 178 is Khatauni of basic year (when consolidation starts). In that it is mentioned that in accordance with order of Assistant C.O. in case no.829 Ram Chandr Vs. Aksha Bar, decided on 6.2.1972 the names of Akshaibar and Ram Chandra were also included in Khata no, 49 (Entry was made on 30.5.1972). From Annexures 2 and 3 it is quite evident that a pure fraud has been played by the appellants. In Annexure 2, names of the parties are Akshay and others Vs. Ram Chandra while in Annexure 3 names of the parties in the case are Ram Chandar V. Aksha bar. In Annexure 2 no case number is mentioned, only area no.6 Mahadava Bugurga is mentioned while in Annexure 3 case number is mentioned as 829. Annexure 2 is dated 6.2.1962 while in Annexure 3 date of decision is mentioned as 6.2.1972. The alleged order dated 6.2.1972 has not been filed. The assertion that consolidation records had been weeded out in 1981 is meaning less. If copy of alleged compromise was available and filed then copy of order accepting the compromise could also be filed.

It is not uncommon that after conclusion of consolidation dishonest persons manufacture the documents and start seeking benefit on that basis in subsequent litigation. In Annexure 4 copy of Goshewara Chakbandi in column no.6, 2.7.62 is mentioned. It appears that these figures denote some date of decision. In this manner three dates of the alleged decision are available on record filed by the appellants.

No other point has been argued. Second Appeals are accordingly dismissed under Order 41 Rule 11 C.P.C.