HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No 376 of 2001
Yugal Prasad Dewangan
...Petitioners
Versus
1. Smt.Kanakbati
2. Takeshwar Prasad Dewangan
3. Ku Bindu
4. Tomeshwar Prasad Dewangan
5. Ku Neelmani Dewangan
6. State of Chhattisgarh through
...Respondents
! Mr Parag Kotecha counsel for the appellant
^ Mr Prafull Bharat Mr Rakesh Kumar Jha, Dy Govt Advocat
Honble Mr T P Sharma
Dated: 07/09/2010
: JUDGEMENT
Second Appeal under Section 100 of C P C
1. By this Second Appeal, the appellant has challenged the
legality & propriety of the judgment and decree dated
10.9.2001 passed by the Additional District Judge, Bastar at
Kanker, in Civil Appeal No.13-A/96, affirming the judgment and
decree of dismissal of the suit and decreeing the suit filed
on behalf of respondents No.1 to 5/plaintiffs for partition
and separate possession dated 8.10.96 passed by the Civil
Judge Class-II, Narayanpur, in Civil Suit No.4-A/91.
2. The present appeal is admitted for consideration on the
following substantial questions of law:-
i) Whether the Courts below have fallen into error by
passing a decree regarding the validity of the deed of
settlement dated 22.6.1971 (Ex.D-1) in the absence of any
prayer made in the plaint or any issue having been framed in
this regard?
ii) Whether the plaintiffs’ suit was barred by limitation?
3. As per pleadings of the parties i.e. respondents No.1 to
5, predecessor-in-title of respondents No.1 to 5 deceased
Janak Prasad Dewangan and appellant Yugal Prasad Dewangan are
sons of Neelkanth Dewangan. Total 38.46 acres of the land was
held by Neelkanth Dewangan situated at village Narayanpur. The
property was ancestral property. The present appellant and
Janak Prasad Dewangan (since deceased) were entitled for half
of the share of the property left by Neelkanth Dewangan.
Janak Prasad Dewangan was in Government service and was posted
in the places other than Narayanpur. The appellant was
residing with his father. Father of the appellant had given
12.59 acres of the land bearing khasra Nos. 2151, 2157, 569/1,
2251/1 and 2259 to Janak Prasad Dewangan for agricultural only
on the ground that he is not in a position to cultivate the
entire land or substantial part of the land. Fourteenth years
prior to filing of the suit dated 26.2.91, properties were not
partitioned between both brothers. Neelkanth Dewangan died in
the year 1983. During his life time, Neelkanth Dewangan has
executed one document in the style of Vavasthapatra relating
to 25.57 acres of the land in the name of the appellant which
does not give any right and title to him. No partition was
possible by the said Vavasthapatra. The appellant succeeded
and mutated his name in the revenue record relating to 25.41
acres of the land, but the same does not give any right or
title to the appellant. Cause of action arose in the year
1983 after death of his father when the appellant refused to
give share to Janak Prasad Dewangan. Then suit for partition
and possession was filed on 26.2.1991. By filing written
statement the present appellant denied adverse allegation made
in the plaint and has specifically claimed that during
lifetime of Neelkanth Dewangan vide registered Vavasthapatra
dated 22.6.1971 has given 25.57 acres of the land to appellant
out of 31.46 acres of total land. Properties were self-
acquired of Neelkanth Dewangan and he was entitled to give the
land to the appellant by Vavasthapatra. Name of the appellant
was mutated in the revenue record and he is in possession over
the land since 22.6.1971 despite the objection of Janak Prasad
Dewangan. Again in the year 1976 Janak Prasad Dewangan has
filed an application for mutation of his name in the revenue
record which was dismissed on account of compromise vide order
dated 14.2.1977. On the basis of averments made by the
parties, issues were framed and after providing opportunity of
hearing to the parties, learned Civil Judge Class-II,
Narayanpur has decreed the suit and declared that Janak Prasad
Dewangan is entitled for half of the share and possession over
the entire property of 38.46 acres of the land recorded in the
name of Neelkanth Dewangan. Same was challenged in the appeal.
By the judgment and decree impugned, the lower appellate Court
has dismissed the appeal.
4. I have heard learned counsel for the parties, perused the
judgment and decree impugned, judgment and decree of the trial
Court and records of the Courts below.
5. Learned counsel for the appellant vehemently argued that
in the present case, respondents No.1 to 5 were having
definite knowledge of Vavasthapatra Ex.D/1 which was executed
by Neelkanth Dewangan on 22.6.1971, the present appellant is
in possession of the suit land since 22.6.1971 and his name
was mutated in the revenue record in the year 1971 at the time
of such mutation. Predecessor-in-title of respondents No.1 to
5 had objected the mutation by filing objection Ex.D/8 on
15.10.71, but despite the objection of Janak Prasad Dewangan,
name of the appellant was mutated in the revenue record.
Again in the year 1977, Janak Prasad Dewangan applied for
mutation before the revenue authority and the same was
dismissed vide order dated 14.2.77 on the basis of compromise
(vkilh lgefr) vide Ex.D/10. Learned counsel further argued
that as per documentary and oral evidence the present
appellant is in possession of the suit land since 22.6.1971
i.e. from the date of execution of Vavasthapatra by father of
the appellant Neelkanth Dewangan. Property held by Neelkanth
Dewangan was self acquired property and he was competent to
execute Vavasthapatra or dispose of his property in any
manner, even in an arbitrarily manner. Vavasthapatra was well
within the knowledge of Janak Prasad Dewangan. During the same
time 12.59 acres of the land was given to Janak Prasad
Dewangan and Janak Prasad Dewangan was in possession of that
land given to him by his father and present respondents No.1
to 5 are his predecessor-in-title. Janak Prasad Dewangan had
not challenged Vavasthapatra on the ground that same is forged
document but they have pleaded in his plaint that the alleged
Vavasthapatra does not give any right or title to the present
appellant. They have not claimed any relief for cancellation
of Vavasthapatra or any relief relating to that Vavasthapatra.
In case any grievance on account of Vavasthapatra, the
plaintiffs were required to file suit for declaration or
possession within three years from the date of execution of
Vavasthapatra dated 22.6.1971 or at the worst within three
years from the death of Neelkanth Dewangan dated 24.11.1981,
but he has not filed any suit within three years from the
aforesaid death and has filed the suit on 22.6.91 after lapse
of 20 years from the date of execution of such Vavasthapatra
and after 10 years from the death of his father. The suit is
hopelessly barred by limitation. No issues were framed
relating to validity of Vavasthapatra, therefore, any suit
relating to validity of Vavasthapatra, the Courts below were
not competent to pass a decree regarding the validity of deed
of settlement.
6. Learned counsel for respondents No.1 to 5 submits that
respondent No.1 to 5/plaintiffs have specifically pleaded
relating to deed of settlement and pleaded that the same is
void and does not give any title or right upon the present
appellant and no specific claim or relief was necessary to
respondents No.1 to 5. Even otherwise both the parties were
having knowledge relating to their case. Both the parties have
led their evidence and both the parties understood their case
and for purpose of proving and contesting the case, therefore,
absence of pleading in the plaint relating to validity of deed
of settlement or absence of specific issue is of no use. Suit
for partition and possession of joint family property is 12
years from the cause of action arose. In the present case,
ouster or hostile possession has not been pleaded or proved by
the appellant after death of his father. When the appellant
refused to give partition, then within 12 years of such
refusal, Janak Prasad Dewangan has filed suit for partition
and possession which is within limitation in accordance with
Article 65 of the Limitation Act, 1962.
7. Learned counsel placed reliance in the matter of Sree
Swayam Prakash Ashramam and another v. G.Anandavally Amma and
others1 in which the Apex Court has held that absence of
pleadings in plaint regarding implied grant of easementary
right in relation to pathway concerned and passing of decree
on the basis of conclusion as to said implied grant is not
liable to be interfered with as despite absence of specific
issue, parties had understood their case and for purpose of
proving and contesting implied grant, had adduced evidence.
Learned counsel further placed reliance in the matter of Bhuri
Bai and others v. Ramnarayan and others2 in which the Apex
Court has held concurrent finding of both the Courts below
relating to allotment and possession of the property is pure
questions of fact and appreciation of evidence and no
substantial question of law is involved. Learned counsel also
placed reliance in the matter of Sneh Gupta v. Devi Sarup and
others3 in which the Apex Court has held that a suit cannot be
withdrawn by a party after it acquires a privilege and right
to withdraw a suit of the party bringing the suit would be
unqualified, if no right has been vested in any other party.
8. On the other hand, learned counsel for respondent
No.6/State supported the judgment and decree impugned.
9. In the present case, as per Ex.D/1 alleged deed of
settlement, the same was executed by father of the appellant
in the style of Vavasthapatra on 22.6.1971 by which it has
been specifically mentioned that by the deed of settlement,
the appellant become owner and possessor of the land and
father of the appellant has devested from ownership upon the
suit land. Ex.D/6 shows khata No.182 bearing 38.46 acres of
the land in the name of Neelkanth Dewangan in the year 1964-
65. Exs.D/8 and D/9 objection filed on behalf of Janak
Prasad Dewangan and reply filed by the appellant reveal that
Janak Prasad Dewangan has objected the mutation proceeding
before the Tahsildar for mutation of the land in the name of
the appellant relating to aforesaid 25.57 acres of the land on
the basis of Vavasthapatra on the ground that his father has
without any advise from him confidentially executed
Vavasthapatra in the name of the present appellant which was
well relied by the appellant and finally name of the appellant
was mutated in the revenue record. In the year 1976-77, again
Janak Prasad Dewangan has filed an application for mutation of
his name but proceeding was dismissed on the ground that both
the parties do not want to prosecute and they have decided
their dispute amicably. The proceeding was dismissed on
14.2.77 vide Ex.D/10.
10. Both the parties led their evidence. Present respondents
No.1 to 5 have examined Ku.Bindu Dewangan, Smt.Kanakvati,
Surajram Dewangan and Sayyad Nawab Ali who have deposed in
their evidence that 12.81 acres of the land was given to Janak
Prasad Dewangan and the appellant has succeeded in execution
of Vavasthapatra from his father. On the basis of documentary
and oral evidence, both the Courts below have arrived at a
finding that the property was self acquired of Neelkanth
Dewangan. Learned Civil Judge Class-II, Narayanpur has arrived
at a finding relating to Vavasthapatra that three pieces of
stamp were purchased and out of three pieces of stamp, one
stamp was purchased in the name of Neelkanth and two pieces of
stamp were purchased in the name of the appellant. Para 8 of
judgment of the trial Court further reveals that Ex.D/1 is not
registered document which is admittedly not proved.
11. Present respondents No.1 to 5 have not pleaded that the
alleged deed of settlement is not genuine and has obtained by
fraud, they have not pleaded that it does not give any right
or title to the appellant, they have not disputed the
genuineness of execution of the document but they have pleaded
relating to its effect. They have not claimed any relief
relating to cancellation or bindingness of the document upon
them. No specific issue has been framed by the trial Court or
lower appellate Court but issue No.2″B” was framed by the
trial Court that whether the defendant i.e. present appellant
is entitled for + of the share upon the land given to the
plaintiff i.e. Janak Prasad Dewangan which is decided as
positive.
12. While dealing with the question of necessity of specific
pleading and specific issue for proving the fact and
contesting the claim, the Apex Court in the matter of Sree
Swayam Prakash Ashramam and another (supra) has held that if
the parties had understood their case and for purpose of
proving and contesting implied grant, had adduced evidence,
absence of any specific issue is not required. Paras 30 and
31 of the said judgment read as under:-
“30. The learned counsel for the appellant raised
an argument that since no case was made out by the
respondent -plaintiffs in their plaint about the
easementary right over the B Schedule pathway by
implied grant, no decree can be passed by the
courts below basing their conclusion on implied
grant. We have already noted the findings arrived
at by the trial court, on consideration of
pleadings and evidence on record on the right of
easement over B Schedule pathway by implied grant.
31. The trial Court on consideration of the
evidence of both the parties recorded the finding
that there was no evidence on record to show that
either Yogini Amma or the defendants themselves
until 1982 had objected to the plaintiff’s use of
B schedule pathway to access A schedule property.
The trial court on consideration of the
plaintiff’s evidence and when the defendant had
failed to produce any evidence, had come to the
conclusion that the plaintiff was given right of
easement by Yogini Amma as an easement of grant.
Considering this aspect of the matter, although
there is no specific issue on the question of
implied grant, but as the parties have understood
their case and for the purpose of proving and
contesting implied grant had adduced evidence, the
trial court and the High Court had come to the
conclusion that the plaintiff had acquired a right
of easement in respect of B schedule pathway by
way of implied grant. Such being the position, we
are not in a position to upset the findings of
fact arrived at by the courts below, in exercise
of our powers under Article 136 of the
Constitution of India.”
13. In the present case, definitely no specific relief
relating to validity of deed of settlement has been claimed by
the plaintiff, but both the parties have pleaded relating to
existence/non-existence and effect of Vavasthapatra Ex.D/1.
As per pleadings of respondents No.1 to 5, Ex.D/1 does not
create any right or title upon the appellant. As per
pleadings of the appellant, right and title has been created
upon him on the basis of the alleged deed of settlement. In
the light of the judgment of the Apex Court in the matter of
Sree Swayam Prakash Ashramam and another (supra), it is
difficult to hold that both the Courts below have committed
illegality. Inter alia, both the Courts below were competent
to consider the validity of Ex.D/1.
14. As regards the question of validity of Vavasthapatra
Ex.D/1, respondents No.1 to 5 and their witnesses have not
adduced any evidence to show that Ex.D/1 was not genuine
document or has obtained by fraud. They have pleaded and
adduced evidence that in the light of the fact that property
was ancestral, father of the appellant was not competent to
execute such document, therefore, it does not give any right
or title to the appellant. The trial Court has not placed
reliance upon the document on the ground that the same was not
registered and three pieces of stamp have been purchased by
two different persons i.e. the appellant and his father,
although the document is registered document and purchasing of
stamp by one of the party or both the party is not sufficient
to create doubt on the genuineness of the document, as held by
both the Courts below. Neelkanth Dewangan was absolute owner
of the property held by him, therefore, he was competent to
dispose of or alienate the property to any person, even in an
arbitrarily manner. Ex.D/1 was executed by father of the
appellant on 22.6.1971. Execution of title on the basis of
Ex.D/1 was objected by Janak Prasad Dewangan in the year 1971
by filing objection Ex.D/8 before the revenue authority during
lifetime of his father and the same was rejected. Again Janak
Prasad Dewangan filed mutation application before the revenue
authority during lifetime of his father and the same was
dismissed on the basis of amicably settlement between the
parties.
15. Definitely as held by the Apex Court in the matter of
Sneh Gupta (supra), parties are not entitled to withdraw the
suit after execution of privilege or right.
16. Mutation proceeding was initiated at the instance of
Janak Prasad Dewangan and the same was withdrawn by both the
parties on the basis of amicable settlement. Virtually the
proceeding was dismissed on the basis of amicable settlement
that they do not want to prosecute the proceeding and no
parties has gained any profit or privilege at the time of
termination of such mutation proceeding on behalf of the Janak
Prasad Dewangan (since deceased).
17. As held by the Apex Court in the matter of Bhuri Bai and
others (supra), allotment of the property to the appellant in
partition and he was never in possession is pure question of
fact and appreciation of evidence and no substantial question
of law is involved.
18. In the present case, as per pleadings and evidence of
both the parties, deed of settlement was executed by father of
the appellant Neelkanth Dewangan and name of the present
appellant was mutated on the basis of such deed. The present
appellant is in possession of the land given to him on the
basis of such deed. About 12.59 acres of the land were given
simultaneously to predecessor-in-title of respondents No.1 to
5 and they are in possession of such land. Acquisition of
title on the basis of deed of settlement was objected by Janak
Prasad Dewangan in the year 1971 and in the year 1977 during
lifetime of his father but he did not succeed in his claim.
19. In the present case, land was given to the appellant on
the basis of deed of settlement and he is in possession of the
land on the basis of such document. Definitely the same is
pure question of fact and not substantial question of law, but
in the present case, the trial Court has disbelieved the
document Ex.D/1 deed of settlement that same is not registered
document required registration under the Indian Registration
Act. As per Ex.D/1, same is registered document. The
respondents have not pleaded and proved that document was
forged or not genuine. In the absence of such pleading and
evidence, finding of the Courts below that document is not
legal is complete perverse finding against pleading and
evidence. In these circumstances, such question becomes
substantial question of law. As per pleading and evidence of
the parties, Ex.D/1 was duly executed by father of and it was
objected twice by Janak Prasad Dewangan during lifetime of his
father before the revenue Court. Property was self-acquired
property of Neelkanth Dewangan, father of Janak Prasad
Dewangan and was competent to dispose of the property by way
of deed of settlement or other way.
20. As regards the question of limitation, definitely the
alleged deed of settlement Ex.D/1 executed on 22.7.1971 was
within the knowledge of Janak Prasad Dewangan and in the year
1971 he has filed objection before the revenue authority and
in the year 1977 same was dismissed. Again he has filed
mutation proceeding and same was also dropped. As per
pleadings of Janak Prasad Dewanwan, his father died in the
year 1983, but as per pleadings of the appellant, his father
died on 24.11.1981. Unless deed of settlement is declared
null and void or inoperative, Janak Prasad Dewangan is not
entitled for possession over self-acquired property held by
his father during his lifetime or after his death. He was
required to file suit for declaration of the document null and
void and for possession within three years from the date of
execution of the document or denial of his claim by revenue
authority or death of his father when actual cause of action
relating to partition arose in his favour in accordance with
Article 58 of the Limitation Act, but Janak Prasad Dewangan
has not filed any suit within three years from the date of
execution of the document, date of denial of his claim by
revenue authority or death of his father. Therefore, suit
filed on behalf of Janak Prasad Dewangan was hopelessly barred
by limitation. Suit was simplicitor for partition and
possession, especially in the light of the alleged deed of
settlement which was not found genuine as per finding of the
Courts below. In these circumstances, Janak Prasad Dewangan
was under obligation to file suit for declaration of deed of
settlement not binding upon him. In case it is considered
that they have made sufficient averment in the pleadings and
they understood their claim and have adduced evidence,
therefore, specific plea and issue was not necessary to them.
In these circumstances, limitation available to Janak Prasad
Dewangan was 3 years under Article 58 of the Limitation Act
and not 12 years under Article 65 of the Limitation Act,
therefore, suit was hopelessly barred by limitation.
21. For the foregoing reasons, substantial question No.1 is
decided that on the basis of detailed pleadings and cryptic
issue, the Courts below have not fallen into error regarding
the finding on validity of the deed of settlement Ex.D/1 but
have committed error in arriving at a finding that the deed of
settlement Ex.D/1 was null and void, inter alia Ex.D/1 is
valid document executed by Neelkanth Dewangan in favour of the
appellant, for which he was competent to execute the same and
substantial question No.2 is decided as positive. On the
basis of aforesaid decision on the substantial questions of
law formulated for the decision of this appeal, the appeal is
allowed. Judgment and decree of the Courts below are hereby
set aside. Suit filed on behalf of Janak Prasad Dewangan
(since deceased) continued by respondents No.1 to 5 are liable
to be dismissed and is hereby dismissed. Parties shall bear
their own cost.
22. Advocate fee as per schedule.
23. A decree be drawn accordingly.
JUDGE
