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SHAILENDRA KUMAR versus LRS OF BHIKA & ANR

High Court of Rajasthan

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SHAILENDRA KUMAR v LRS OF BHIKA & ANR - CFA Case No. 199 of 2005 [2007] RD-RJ 4913 (3 October 2007)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR. :::

JUDGMENT

Shailendra Kumar @ Shaila. vs.

LRs. Of Bhika and another.

S.B.CIVIL FIRST APPEAL NO.199/2005

UNDER SECTION 96 CPC AGAINST THE

JUDGMENT AND DECREE DATED 28.4.2005

PASSED BY SHRI OM KUMAR VYAS,

ADDITIONAL DISTRICT JUDGE (FAST

TRACK), JALORE IN CIVIL ORIGINAL

SUIT NO.61/2004 (6/2000).

DATE OF JUDGMENT ::: 3.10.2007

PRESENT

HON'BLE MR. PRAKASH TATIA, J.

Mr.GL Khatri, for the appellant.

Mr.TC Sharma, for the respondents.

-----

BY THE COURT:

Heard learned counsel for the parties.

The appellant/plaintiff is aggrieved against the judgment and decree dated 28.4.2005 by which the trial court dismissed the suit of the appellant/plaintiff for declaration, partition and injunction.

Brief facts of the case are that the plaintiff/appellant filed a suit for declaration, partition and injunction with the allegations that the suit property is situated in Village Agwari, Tehsil

Ahore of District Jalore in Ward No.7, neighbourhood of which has been given in para no.1 of the plaint, which was belonging to plaintiff's father Narsaji. Said

Narsaji had three sons plaintiff Shailendra Kumar,

Bhika and Dhuka. Narsaji died in the year 1959. In the life time of Narsaji, all Narsaji, Bhika and Dhuka along with the plaintiff used to live in the property in dispute. The suit was filed by the plaintiff on 5.7.2000 in the trial court and by that time, plaintiff's both brothers Bhika and Dhuka had already died. It is not mentioned in the plaint that when said

Bhika and Dhuka died. Be it as it may be, according to the plaintiff, he joined government service in the year 1962 2 years after the death of his father. The plaintiff's marriage was solemnised in the house in dispute in the year 1968 i.e. after 6 years of his joining government service. In the year 1973, plaintiff's ancestral house (Padwa) fell down, therefore, the plaintiff applied for government aid by writing a letter to the Collector on 21.9.1973 and send reminder vide letter dated 5.12.1973. Said letter was forwarded to the Compensation Commissioner, Government of Rajasthan, Jaipur on 8.10.1973 but no aid was given to the plaintiff. Since the property in question was belonging to the plaintiff's father and the plaintiff being son of Narsaji has 1/3rd share in the property in dispute. The plaintiff also annexed a blue print describing the entire property wherein the plaintiff marked his portion in the property in dispute as 'ABCD' measuring 34 x 36 feet which comes to 1224 sq.ft.

According to the plaintiff, since there was a joint family and, therefore, after the death of his father, for the agriculture land, mutation was opened and the plaintiff's name was also recorded for 1/3rd share in the ancestral agricultural land.

The plaintiff in his plaint very specifically pleaded that Bhika and Dhuka both separated from the joint family and in the portion marked as 'B', Dhuka started living and in rest of portion, the plaintiff and deceased Bhika started living jointly. Bhika also desired that he should separate from the joint family and, therefore, Bhika started living in the portion marked 'A' in the map. In this way, portion marked 'C' remained with the plaintiff. With this pleading, the plaintiff further pleaded that in the remaining 'joint property', the plaintiff sought permission to raise construction from Gram Panchayat, Agwari and for that purpose, he deposited Rs.159/- on 10.7.1998 vide receipt no.2/118. When the plaintiff tried to raise construction, defendants Ratilal and Shankerlal, sons of his deceased brother Bhika obstructed him.

Thereafter, the plaintiff want to Jalore. On 29.5.2000, defendants Ratilal and Shankerlal, in the absence of the plaintiff raised construction at places 'C to D' marked in the map and closed the way of the plaintiff for entering in the plot in dispute. According to the plaintiff, the cause of action accrued on 29.5.2000 because of the overt act of the defendants. The plaintiff prayed for relief that in the entire land, described in para no.1 including the land described as

A, the plaintiff's share be declared to be 1/3rd. The entire property be partitioned by metes and bounds and the portion described in para no.8 of the plaint may be given to the plaintiff. The plaintiff sought relief of mandatory injunction for removal of wall raised at places 'C and D' by the descendants of Bhika with further relief of prohibitory injunction against the defendants.

Defendant Ratilal alone submitted written statement and stated that neither Narsaji nor Bhika and

Dhuka lived in the property in dispute any time in their lief. Narsaji was residing in the Dhani situated in the agriculture land where there were huts. From their, the plaintiff left for Jalore and joined the service. Even Narsaji also left the plaintiff and started living at Jalore. After several years, Bhika and Dhuka constructed their separate house on the plot in dispute. Narsaji never constructed any house over the plot in dispute. It is stated that even the plaintiff was born in the dhani situated in the agriculture field of Narsaji. The defendant stated that the property situated on the plot in dispute never damaged in the floods of 1973, therefore, there was no question of submitting any application for compensation by anybody and in view of the above facts, the plaintiff neither had any share nor has any share in the property. The plaintiff was not in possession of the property in question.

In the trial court, issues were framed. The crucial issue was whether the plot in dispute was ancestral plot of the plaintiff ? whether the plaintiff after the death of his father and thereafter continued to live in the property in dispute as member of joint family ? whether the plaintiff applied for compensation for the loss caused to his property by flood ? whether the plaintiff is entitled to declaration that his share in the property is 1/3rd and whether the plaintiff is entitled to decree for partition by metes and bounds.

In addition to above, issues were framed for relief of injunction and accrual of cause of action as well as on the plea of the defendant that the suit is barred.

In the trial court, the plaintiff gave his statement as PW4 and produced his PW1 Gheesalal, PW2

Jalam Singh, PW3 Bhanwar singh, PW5 Khetpal Singh and

PW6 Bishan Singh. The plaintiff produced documentary evidence letter written by the Dy. Commissioner,

Jaipur as Ex.1, copy of mutation order by which the plaintiff's name was entered as co-sharer in the agriculture land as Ex.2, certificate issued by Gram

Panchayat, Agwari to certify that construction permission was granted to the plaintiff by Gram

Panchayat as Ex.3, letter written to District

Collector, Jalore as Ex.4, construction permission certificate as Ex.5, letter of Compensation

Commissioner as Ex.6, plaintiff's character certificate as Ex.7, plaintiff's own appointment letter as Ex.8, voter list of 1966 as Ex.9 and photographs as Ex.10 &

Ex.11.

Defendant Rati Lal gave his statement as DW3 and produced DW1 Pola Ram and DW2 Prem Singh. The defendant also produced documentary evidence which are electricity and water bills, certificate of Gram

Panchayat about possession of Ratilal over the plot in dispute etc.

The trial court held that admittedly there is no title deed in favour of any of the parties, therefore, the matter is required to be decided according to oral evidence and collateral evidence. The trial court after considering the evidence, dismissed the plaintiff's suit after holding that the plaintiff failed to prove the property was of his father Narsa nor he could prove that he or his father ever lived in the property in dispute.

The contention of the appellant in the suit appears to be quite confusing in the sense that the appellant in his plaint very specifically admitted that from the joint family, two of the members Dhuka and

Bhika separated, then the only member of joint family remained is the plaintiff as his father already died.

In view of the above, how there could have been any joint Hindu family when out of three, two members separated from the family ? The plaintiff in his plaint further though stated that by mutual consent, Dhoka started living in the house situated at portion 'B' of the land described in para no.1 of the plaint and the plaintiff and Bhika continued to live as members of joint Hindu family but thereafter stated Bhika also showed his desire to separate from the joint Hindu family and, therefore, he started living in the house on the portion of the land marked 'A'. In view of the above, the pleading of the plaintiff of the disruption of the joint family by separation of all the three brothers is the specific case in the plaint itself. The property was also demarcated and the plaintiff in his suit claimed that the property described as 'C' in the map with boundary 'ABCD' was left for the plaintiff.

Assuming for the sake of argument that the plaintiff's contention might have been that for their convenience, they started living separately, then admittedly at portion 'ABCD', there is no house constructed. Coupled with this fact, if we look into the documentary evidence produced by the plaintiff, which is relied upon by learned counsel for the plaintiff heavily, the plaintiff for the reasons best known to him did not produce the copy of resolution of the Gram Panchayat by which the permission was granted to the plaintiff to raise construction over the land which came in his share. The certificate Ex.5 also contains the facts which substantially is the case pleaded by the plaintiff. The Sarpanch certified that the plaintiff applied for construction permission on 10.7.1998 and for which he deposited Rs.159/- vide receipt no.2/118.

In this certificate, it is also mentioned that the plaintiff sought permission to raise construction over the land which "came in his share", then in the application dated 10.7.1998, the plaintiff himself has stated that some of land of plot described in para no.1 of the plaint came in his share. This also is contrary to the plaintiff's case that the entire property was undivided joint Hindu family property. Therefore, the trial court was right in drawing inference from the fact that the plaintiff did not produce the relevant documents of seeking permission to raise construction over the plot. Apart from it, the plaintiff's own case is that he shifted from Village to Jalore in the year 1966 and his two brothers were living in Village Agwari where the property is situated. The plaintiff's both brothers did not sought any financial assistance of the

State Government due to the damage to their property because of the floods in the year 1973 and the plaintiff who was not residing in the village say that he applied for assistance of the Government for reconstructing his house by submitting application on 21.9.1973. The application dated 21.9.1973 was not produced but the reminder sent by the plaintiff on 5.12.1973 was produced by him as Ex.4. In this Ex.4 also, the plaintiff stated that his house was destroyed and, therefore, he may be given financial assistance by the State Government. In the light of the above facts, the plaintiff's total and oneside case which appears from the evidence of the plaintiff himself appears to be more towards earlier partition but that too in the life time of Bhika and Dhuka, the ancestors of the defendants, and must be prior to the year 1973 because even in 1973, the plaintiff stated that his house was damaged in the flood. Inspite of above, the plaintiff is seeking partition of property.

The plaintiff nowhere pleaded what is the construction over the entire land and who raised those constructions. Whether the house situated at portion 'B' was constructed by Dhuka and house at portion 'A' was situated at Bhika or it was constructed by joint family funds. Coupled with these facts, the contention of the defendant is that the father of plaintiff deceased Narsa was living in the dhani and the plaintiff was also living there and after joining service by the plaintiff, the plaintiff and his father left the village Agwari and started living at Jalore.

The plaintiff who was conscious of his right in the property in dispute and started claiming his separate demarcated portion in the property if letter dated 5.12.1973 is considered and he continued to claim that he has his separate portion in the property in dispute as mentioned in certificate Ex.5 obtained by the plaintiff from Sarpanch, Gram Panchayat dated 2.6.2000, then in that situation, the trial court was right in observing that the plaintiff failed to prove even the fact that plaintiff's father Narsa was residing in the property in dispute which is described in para no.1 of the plaint.

The trial court also considered the oral evidence produced by the plaintiff in detail and observed that the plaintiff failed to produce any of his relation who could have been best evidence to prove that Narsaji in fact died at Jalore and before his death, Narsaji's three sons were residing with Narsaji in the property in dispute. Oral evidence produced by the plaintiff was considered in detail and was rightly not believed by the trial court for the reasons mentioned by the trial court in detail.

The plaintiff also produced the copy of voter list of the year 1966 and according to learned counsel for the appellant/plaintiff, the plaintiff by this document of 1966 proved that the plaintiff and his two brothers were living together in the house in dispute in the year 1966. The name of the plaintiff in the voter list of 1966 is contradicted by the plaintiff's own document his appointment letter Ex.8 which has been produced by the plaintiff to prove that since 1962, the plaintiff started living in Jalore and was not living in Village Agwari. In addition to the above, the plaintiff could not explain what was the reason for him for not submitting the voter list of the year 1966. It appears that one entry of 1966 in the voter list has been made the basis for claiming that the plaintiff and his two brothers were living together since 1966.

Assuming for the sake of arguments that two brothers might have been living together in the year 1966 but the plaintiff's own case is that he was living not in the village even in the year 1966. The plaintiff, who submitted application for financial assistance from the

Government in the year 1973, admitted that no compensation or financial assistance was given to him by the Government on account of any damage to his property.

The preponderance of probabilities also lean in favour of the defendants and that is that the plaintiff since 1962 left the village Agwari and shifted to

Jalore. Looking to the nature of the propety as well as the fact pleaded by the plaintiff, the plaintiff could not have lived with his two brothers. The plaintiff did not plead when Bhika and Dhuka separated from joint family but specifically pleaded that Bhika and Dhuka separated from the joint family and at that time, only person left was the plaintiff, then this fact coupled with the fact that physically the property was separated and remained in possession of Bhika and

Dhuka, then how could there arise any question of having joint family. Neither the families were living together nor the property was joint and a specific case of the plaintiff in the plaint itself is that his two brothers separated from joint family, therefore, so far as suit for partition is concerned, that was rightly dismissed by the trial court. The plaintiff's own claim for the property described in para no.8 of the plaint marked 'C' and 'ABCD' is concerned, for that, the trial court rightly held that he failed to prove that he was ousted from the said property on 29.5.2000. The trial court was right in holding that the plaintiff failed to prove his possession over the property much less title over the property.

In view of the above discussion, this appeal having no merit, is hereby dismissed with no order as to costs.

(PRAKASH TATIA), J.

S.Phophaliya


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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