IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN D.B. Civil Special Appeal (Writ) No.343/2002 Nandlal and Others Vs. Devi Shankar and Others Date of Order ::: 26.08.2010 Present Hon'ble the Chief Justice Mr. Jagdish Bhalla Hon'ble Mr. Justice Mohammad Rafiq Shri R.K. Goyal with Shri M.A. Khan, Counsel for appellants Shri M.S. Yadav, Counsel for respondents
####
//Reportable//
By the Court (Per Hon’ble Rafiq, J.):-
This special appeal is directed against the judgment of the learned Single Judge dated 15.03.2002 whereby the writ petition filed by the appellants herein was dismissed. The appellants original writ petitioners in the writ petition, had challenged the judgment of the Board of Revenue dated 03.05.1989 by which the Board reversed the judgment and decree dated 20.10.1981 passed by the Revenue Appellate Authority, Kota and that of the S.D.O. dated 30.04.1979.
The factual matrix of the case is that the predecessor-in-title of the respondents herein, namely, Anandilal, filed a revenue suit in the year 1973 for partition and division of holding against the predecessor-in-title of the appellants, namely, Kanhaiyalal, claiming that he was co-sharer in the lands comprising of Khasra No.124 measuring 35 bigha and 3 biswa situated in village Talaiwala and Khasra No.134 measuring 5 biswa gair mumkin chahi, situated in village Hanotiya, Tehsil Ladpura, and prayed that half of the said land be ordered to be recorded in his name. According to the plaintiff-respondent cause of action for filing of the revenue suit arose in 1970 when the defendant started making obstructions in the way of the plaintiff for cultivation of the agriculture land. It may be noted that the plaintiff Anandilal and defendant Kanhaiyalal were real brothers and the plaintiff claimed that both had inherited the land from their father; this being ancestral land, he was entitled to half the share thereof. The defendant contested the suit and set up a plea that as far as the land of Khasra No.134 is concerned, he had purchased the said land from Tehsil Ladpura for Rs.31/- and ‘sanad’ of which was granted by Mahakama Khas, Kota on 05.01.1945. This land measuring 5 biswa was always in the sole khatedari of the defendant. As far as the land of Khasra No.124 measuring 35 bigha 3 biswa is concerned, it was asserted by the defendant that the plaintiff had relinquished his share in the said land in favour of the defendant on 15.07.1949 and a document in writing was executed as a proof thereof. It was also asserted by the defendant that he was continuously in possession of the entire land and that even otherwise by adverse possession against the defendant, he became the absolute owner of the said land. It was therefore prayed that the revenue suit be dismissed.
The S.D.O. dismissed the revenue suit filed by the plaintiff-respondent and his appeal filed there-against was also dismissed by the Revenue Appellate Authority. It was thereupon that the plaintiff-respondent filed an appeal before the Board of Revenue, which reversed the above referred to judgments and decreed the revenue suit filed by the plaintiff-respondent, vide its judgment dated 03.05.1989. The defendant-appellants before this Court by filing writ petition challenged the said judgment of the Board of Revenue. The learned Single Judge, by his order dated 15.03.2002, however, dismissed the writ petition. Hence this special appeal before the Division Bench.
Shri R.K. Goyal, learned counsel for appellants has argued that mere fact that the land of disputed Khasras was throughout recorded in the joint khatedari of the plaintiff and defendant, could not be accepted as the conclusive proof of the joint title of two brothers. The land of Khasra No.134 was purchased in auction by the defendant Kanhaiyalal from the then Government of Kota on 05.01.1945 and on that basis issued ‘sanad’ in his name. So far as land of Khasra No.124 is concerned, the plaintiff had relinquished his title over the said land and executed a document as a proof thereof as far back as in 1949, which was produced in evidence as Exhibit D-1. The plaintiff himself, in his statement, admitted this document as correct. The learned counsel, in this behalf, referred to the statement of Anandilal and also submitted that even if there is no reference therein of Khasra number or measurement of the land, the plaintiff Anandilal having admitted in his statement that he did not have any other land, this would be taken as admission of correctness of the document of relinquishment with regard to the same land.
Learned counsel submitted that once witnesses of the plaintiff, namely, Devi Lal and Kana also admitted the fact that the land was in possession of the defendant, the Jamabandi cannot be therefore taken as conclusive proof of the fact regarding joint possession of the co-sharers as this is rebutable document even according to Section 140 of the Land Revenue Act. Learned trial court and first appellate court rightly rejected the revenue suit. The Board of Revenue has gone beyond scope of appellate powers as prescribed in Section 224(2) of the Rajasthan Tenancy Act. Learned counsel submitted that the Board of Revenue was wholly unjustified in discarding the relinquishment-deed merely because it was unregistered and unstamped. It is submitted that the defendant could explain the nature of his possession and on that basis resist decree of dispossession or even of division of holding on the strength of said relinquishment deed. In support of his submissions, learned counsel relied on the decisions of Supreme Court in Javer Chand and Others v. Pukhraj Surana AIR 1961 SC 1655 and Ram Rattan (dead) by legal representatives v. Bajrang Lal and Others AIR 1978 SC 1393.
Shri R.K. Goyal, learned counsel further submitted that possession of even a co-sharer in certain circumstances become adverse to another co-sharers if one of the co-sharer has relinquished his share and has parted with the possession in favour of another. Learned counsel, in support of this argument, relied on old judgment of Allahabad High Court in Jhamphu v. Kutramani and Others AIR 1917 Allahabad 47.
Alternatively, it was submitted by the learned counsel that even if the document in question is not accepted as relinquishment deed, it is certainly a memorandum of event which had happened in the past and proves relinquishment of interest in the land by the plaintiff, and therefore such a document was neither required to be registered nor stamped. He also for that purpose referred to the provisions of Section 95 of the Evidence Act. In this connection, learned counsel relied on the judgment of Supreme Court in Munna Lal v. Suraj Bhan AIR 1975 SC 1119.
It is submitted by the learned counsel for the appellant that the relinquishment-deed executed in 1949 was never challenged by the tenant for 24/25 years and if at all wanted to rely on that document, he should have immediately approached the court for declaration of his rights.
It is therefore prayed that the appeal be allowed and the judgment passed by the learned Single Judge and that of the Board of Revenue, be set-aside and those of the suit court and first appellate court be restored.
Per contra, Shri M.S. Yadav, learned counsel for the respondents, opposed the appeal and submitted that the possession of one co-sharer or co-tenant can in no circumstance be adversed to another co-tenant because it is well settled proposition of law that possession of one cotenant in the event of co-tenancy is deemed to be possession of all the co-tenants on every inch of land. Learned counsel in this connection relied on the judgment of the Supreme Court in P. Lakshmi Reddy Vs. Lakshmi Reddy AIR 1957 SC 314 and in Karbalai Begum Vs. Mohd. Sayeed AIR 1981 SC 77.
It is argued that if the judgment of the suit court and the first appellate court suffer from gross misconstruction of document which goes to the root of the matter, the second appellate court would definitely be well within its right to interfere the scope of second appeal as per Section 224 (2) of the Rajasthan Tenancy Act. The learned counsel, in this behalf, relied on the judgment of the Supreme Court in Mohd. Yunus Vs. Gurubux Singh 1995 Supp (1) SCC 418 and Kochukakkada Aboobacker Vs. Attah Kasim (1996) 7 SCC 389. With the help of these judgments, the learned counsel sought to argue that when the land in question throughout remained in joint khatedari of the plaintiff and the defendant even as per the Jamabandi maintained by the revenue department, there could be no question of plaintiff not being considered as co-tenant/co-sharer/co-owner in the land in dispute and there also does not arise any question of adverse possession. Moreover the learned counsel argued that the land was in joint possession of the brothers and that the plaintiff was also cultivating the same; cause of action to file the revenue suit arose when the defendant raised obstruction in the way of the plaintiff in cultivation of the land in 1973.
Shri Mahendra Yadav further argued that if at all there was any truth in the assertion about relinquishment of the interest in the land by the plaintiff in 1949, there was no reason why the defendant did not take any step to get the revenue records corrected or to get himself declared as the sole owner/khatedar of the agriculture land for as long as 24/25 years. The plaintiff-respondent had to file the revenue suit in 1973 only because at that time physical obstruction was caused by the defendants in his right to cultivate the agriculture land and it was from the written statement filed in that revenue suit that he for the first time came to know about the alleged relinquishment. The document Exhibit D-1 sought to be relied upon by the defendant-appellant, is not at all relinquishment-deed; it is in the shape of letter, wherein there is no reference either of khasra number or measurement of the land or the fact as to where this land was located. The learned counsel in this connection referred to the Jamabandi for Samvat 2023 to 2026 and 2027 to 2030 to substantiate the fact that land was recorded in the joint khatedari of both brothers and further argued that throughout between 1949 to 1973 it continued to be so recorded. It is contended that according to Section 140 of the Land Revenue Act, Jamabandi is a record of rights and the kind of evidence that the defendant was producing was not sufficient to rebut that proof. The alleged relinquishment-deed even otherwise cannot be relied because it is neither registered nor stamped, therefore, it would be inadmissible in evidence. It is therefore prayed that the appeal be dismissed.
We have given our thoughtful consideration to the rival submissions and perused the material available on the record.
Reading of the judgment of the first two courts i.e. the court of SDO and the Revenue Appellate Authority, transpires that both the courts heavily relied on the relinquishment deed and the statement of the plaintiff and his two witnesses to hold that the plaintiff had relinquished his right and that the defendant was throughout in possession of the land and that mere fact that land continued to be recorded in joint khatedari could not be taken as proof of possession. Perusal of those two judgments also show that the first two courts did not give any importance to the fact that the Jamabandi was the record of rights according to Section 140 of the Land Revenue Act and that unless rebutted by any other sufficient or cogent evidence, it could not be taken as disproved. Those two courts also did not appreciate the Jamabandi for the entire period from 1949 to 1973, when the revenue suit was filed had entries of both the brothers i.e. plaintiff Anandilal and defendant Kanhaiyalal as joint khatedars. It is in that context that the learned Single Judge examined the validity of the judgment of the Board of Revenue, which had reversed the first two judgments and held the judgment of the Board of Revenue as valid not warranting any interference.
In order to test the strength of the argument raised by the learned counsel for the appellants, we have to for ourselves examine the nature of the document Exhibit D-1 so heavily relied upon by the appellant to find out whether or not this document can be described as relinquishment deed. This document in fact is in the shape of a letter running hardly into three lines written on 11.07.1948, which is Annexure-9 to the writ petition. This letter was written by the plaintiff, the younger brother of the defendant wherein the first line merely conveys his regards to him and then it is sought to be stated that the defendant had given up his right in the land. Neither any description of the land is given with reference to its khasra number or measurement nor is it mentioned as to where this land is located. It is also not mentioned as to when was the alleged relinquishment made. Now the learned counsel for the appellant would seek to shift the argument to say that if not relinquishment deed, it can be taken as a memorandum regarding previous event when the land was relinquished and that the vagueness of the document can be overcome by statement of the defendant wherein he did not deny having written the document. This submission shall have to be appreciated keeping in view the rural background from which both the parties come and the level of their literacy and the fact that the defendant himself did not claim any right on the strength of this so-called relinquishment-deed for as long as 25 years. In his statement the plaintiff merely states that the said document was got written from him by the Kanoongo by use of pressure but he in the same statement also says that he did not transfer his right in the land in question to the defendant and that he did not write in that letter that he was giving up his right in the land. He was not in his full control of his senses and that part of the writings in the letter were not in his hand i.e. the names of the witnesses Dhoolilal and Amarlal were not written in his hand. He has categorically denied that the land was in exclusive possession of the defendant Kanhaiyalal, rather the land was ancestral land which had an old well in it and both the brothers were cultivating the same.
Matter can be examined from another angle also which is that if at all the defendant thought of document Exhibit D-1 as a deed of relinquishment, nothing prevented him from getting his rights declared immediately after 1948 when it was written. It is only when the plaintiff filed the suit for division of holding that he has come out with this document to allege that defendant had already relinquished his share. Moreover, he has also not been able to disprove the fact that the land continued to be recorded in joint khatedari of both the brothers throughout between 1948 and 1973. In the first place, statements of two witnesses on which reliance is placed by the appellants to say that he was in exclusive possession of the land, cannot be taken as sufficient evidence in proof of the fact that he was throughout the period of 25 years was in exclusive possession of the land and secondly, possession of one of the co-sharers/co-tenants has to be accepted of and on behalf of each of the co-tenants, is settled proposition of law. In this connection, learned Single Judge, in our view, has rightly based his findings on two judgments of the Supreme Court in P. Lakshmi Reddy (Supra) and in Karbalai Begum (Supra). We are therefore not inclined to uphold the contention that the possession of one co-sharer/co-tenant in certain circumstances can be taken as adverse possession to another co-tenant. Ratio of the judgment of Allahabad High Court in Jhamphu (Supra), cannot be accepted in the light of subsequent specific Supreme Court judgment in P. Lakshmi Reddy’s case (Supra) to the effect that where one co-sharer is found in possession of the property, his possession in law is considered as possession of all the co-sharers the law presumes it to be on the basis of joint title. The co-sharers in possession cannot render his possession adverse to other co-sharer not in possession, merely by any secret hostile animus on his own part in derogation of the other co-sharers’ title. It is a settled rule of law that as between co-sharers, there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.
In the present case, therefore, if the defendant wanted to rely on the so-called relinquishment-deed or the memorandum of recording such a event, nothing prevented him to openly assert his hostile title as against the plaintiff so as to get his rights declared at the earliest opportunity and delay in the present case being so huge, i.e. 25 years, the plea set up by the appellants cannot be accepted.
In Karbalai Begum’s case (Supra) also the Supreme Court categorically held that co-sharers in possession of land do not prescribe title against co-sharer not in possession. Non-participation in rent and profits by latter is immaterial. The settled position of law is that co-sharers in possession would become constructive trustees on behalf of the co-sharer, who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees.
In the facts of the present case, however, we find that the plea of the appellants that he was in exclusive possession throughout for the period of 25 years i.e. from 1948 to 1973 cannot be held to have been sufficiently proved because cause of action for the plaintiff to file the revenue suit for division of holdings accrued when the plaintiff physically prevented him from cultivating the land and he thereafter filed the revenue suit. This has to be accepted also because despite claimed by him that he was in exclusive possession during this period in between 1948 to 1973, plaintiff did not approach any revenue court for getting himself declared as owner or khatedar of the suit property.
Argument that despite the document being unregistered and unstamped should have been accepted as admissible in evidence because it can certainly be made use of to explain the nature of possession, losses sight of the fact that the dispute in the present case is between two real brothers, who claim to have inherited the agriculture land in joint khatedari and which claim is substantiated by Jamabandi of this entire period of 25 years, which is record of rights in view of Section 140 of the Land Revenue Act. The argument is based on the analogy of Section 53A of the Transfer of Property Act but that principle of law would not be applicable in the facts and circumstances of the present case because it is essentially a dispute between two co-sharers, where possession of one co-sharer has to be accepted possession of all the co-sharers, for in law the former is held to be in possession of the land on behalf of all the other co-sharers as trustee.
Coming now to the submission that the Board of Revenue exceeded its jurisdiction by going outside the scope of its authority in interfering with the concurrent judgments, especially on the findings of fact, we are not persuaded to uphold this submission either. Section 224(2) of the Rajasthan Tenancy Act, itself postulates that the Board of Revenue can interfere with the judgment passed by the Revenue Appellate Authority where the decision rendered by such Authority is contrary to law or to some uses having force of law, or it has failed to determine some material issue of law or where it has committed substantial error or defect in the procedure provided by or under this Act or by any other law of the time being in force, reflecting upon the merits of the case or the decision is contrary to the weightage of evidence on record, where appellate court has varied or reversed any finding of trial court on a question of the facts. The wording of Section 224(2) of the Act i.e. the decision being contrary to law or having failed to determine some material issue of law or suffering from any substantial error or defect or contrary to weight of evidence on record, are so wide as to cover the situations which have arisen in the present case and therefore the learned Single Judge has rightly relied on two decisions of the Supreme Court in Mohd. Yunus Vs. Gurubux Singh (Supra) and Kochukakkada Aboobacker Vs. Attah Kasim (Supra), wherein it was held by their Lordships of the Supreme Court that where there is a gross misappropriation of evidence which goes to the root of the matter, or where the court has not considered certain documents in a proper perspective and the effect of those documents with regard to the rights of the parties certainly the second appellate court can exercise its jurisdiction. In the present case, we find that the decisions rendered by the first two courts really proceeds on misconstruction of the document Exhibit D-1, and those decisions were rendered contrary to the weight of evidence and the law, on the question of possession of one co-sharer being possession of all, has completely been misunderstood and misapplied by those two courts contrary to settled proposition of law. The learned Board of Revenue was therefore perfectly justified in interfering with the judgment rendered by the S.D.O. And Revenue Appellate Authority and the learned Single Judge for that reason was wholly justified in upholding that judgment of the Board of Revenue.
We therefore do not find any error in the judgment of the learned Single Judge or that of the learned Board of Revenue, so as to warrant our interference.
This appeal therefore fails and is accordingly dismissed with no order as to costs.
(Mohammad Rafiq) J. (Jagdish Bhalla) CJ. //Jaiman//