Plaintiff No. 1, Puran Chand belongs to Shiva Hare Caste whereas Plaintiff No. 2, Sham Babu, is a 'Kayastha' (Shrivastava). Harinarain is a Thakur. The Plaintiff has not made clear how they claim joint ownership and joint possession of the land if they belong to three different castes. Neither any pleadings were made nor any evidence was placed by the Plaintiff to show how the land in dispute came under their ownership and when they have taken possession of the land.
17. The High Court gravely erred in law as well as on facts in connecting Ram Nath with the Plaintiffs-Respondents even though they have utterly failed to prove any connection with him and the pleadings are lacking regarding their particulars and even their names do not appear in Ext. P.11.
18. It is settled that for joint possession and ownership over any property, firstly the Plaintiffs are required to plead the same and the said fact should be reflected in the plaint itself. There is a concept of joint family amongst the Hindus but that is required to be pleaded and proved. As the ancestors of the Plaintiffs do not belong to one family, but three different family having three different castes, the joint possession of the Plaintiff cannot be accepted. The High Court failed to notice the aforesaid fact while allowing the appeal of the Plaintiffs.REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.
8605/2013
MUNICIPAL CORPORATION, GWALIOR
VERSUS
PURAN SINGH ALIAS PURAN CHAND
Citation;AIR 2014 SC 2665
Sudhansu Jyoti Mukhopadhaya, J.
This appeal is directed against the judgment and decree
dated 15th April, 1998 passed by the High Court of Madhya
Pradesh, Jabalpur, Bench at Gwalior in Civil First Appeal No.1
of 1995. By the impugned judgment and decree the High Court
allowed the appeal, preferred by plaintiffs-respondents, set
aside the judgment and decree passed by the Trial Court and
decreed the suit of plaintiffs-respondents.
2.
The factual matrix of the case is as follows:
The
Municipal
respondents
were
Corporation,
plaintiffs
Gwalior
was
and
a
the
appellant-
defendant
in
the
original suit. The Original Civil Suit No.44-A/1985 was filed
by plaintiff-respondents against the defendant- the Municipal
Corporation, Gwalior seeking declaration that land bearing
Original Survey No.486/19 (old) (New Survey No.619) measuring
1 Bigha
is owned and possessed by them. They also sought for
permanent injunction against the defendant on the ground that
Municipal
authorities
possession
by
tried
dismantling
to
the
interfere
fencing
with
standing
their
on
their
land.
3.
The case of the plaintiffs was that their ancestors were
the owners of the suit land. One Ram Nath was the original
tenure-holder (Mool Krishak) and thereafter they became joint
Bhumiswami.
that
they
They claimed
constructed
to be in possession on the ground
fencing,
Hauda
(pond)
and
Latrine
(toilet) on the suit land.
4.
By way of an amendment of paragraph 2 of the plaint the
plaintiffs had shown their pedigree.
5.
Defendant
–
Municipal
Corporation
filed
a
written
statement, denied the allegations and asserted that the suit
land is an
open piece of land belonging to the Corporation
and is in its possession. It is reserved for developing park
and is used as a parking place and a sign Board to this effect
is placed at the spot and the fencing by wire too has been
done
by
Municipal
Corporation.
It
was
alleged
plaintiffs manipulated Khasara entries by committing
that
the
fraud to
include their names.
6.
The Trial Court on the basis of the pleadings of the
parties framed the following issues :-
“1.
Whether the plaintiffs are Bhumiswamis of the
disputed land?
2. Whether the Court fee paid by the plaintiffs
is insufficient?
3. Whether the defendants can get Rs.3000/- as
compensatory cost?
4. Whether the disputed land belongs
defendant No.2 being Nazul land?
5. Whether the defendant can get Rs. 5,000/- as
compensatory cost?
6. (a)
the
Whether the disputed
Nazul department?
land
to
the
belongs to
(b) If so, whether the land being open
belongs to the Municipal Corporation and the
same
is not owned by the plaintiffs?
7.
7.
the
Reliefs and costs.”
On hearing the counsel for the parties and on considering
entire
evidence,
by
judgment
and
decree
dated
29th
September, 1994, the Trial Court dismissed the suit and held
as follows:-
“Issues 1,4 6(a) and 6(b):
In absence of notice under Section 401 of the M.P.
Municipality
Act,
1956
the
suit
is
not
maintainable. The plaintiffs are not the owners of
the disputed land and the disputed land is the
property
within
the
continued
ownership
and
possession and management of the Municipality.
Issue No.2:
The Court fee paid is sufficient.
Issue No.3 and 5:
Even though the suit of the plaintiffs failed but
the defendants are not entitled to get the special
damages.
Issue No.7:
On the basis of above findings the suit of the
plaintiffs for all the said reliefs is liable to
be dismissed with costs.”
8.
Against
the
Trial
Court's
decision,
the
plaintiffs-
respondents preferred a Civil First Appeal No.1 of 1995 in the
High Court. After hearing the parties, the High Court by
impugned judgment
judgment passed
allowed
by
appeal and
Trial
the
the Court with
set
the
aside
the
following
observation:
“38. That
is the position in this case as well,
when the respondents-defendants did not produce
property register to show that this property was
ever recorded as property of the Municipal
Corporation. At one stage it was recorded as Nazul
land belonging to the State when the area had not
come within the municipal limits. When the area
came within the municipal limits it was mentioned
to be Behatnam (under management) of the Municipal
Corporation. But the possession and title of the
plaintiffs has been recorded throughout even
thereafter and to have established Abadi over this
land, and therefore, the defendants-respondents
could not object to the title and possession of
the plaintiffs and the suit for declaration of
title and injunction ought to have been decreed.”
9.
Aggrieved
appellant
preferred
a
Letters
Patent
Appeal
under Clause 10 of the Letters Patent Appeal Rules before the
Division Bench of High Court.
The LPA No. 150 of 1998 was
admitted and the order of stay was passed by the High Court.
Subsequently, in the light of
a Constitution Bench decision
in Jamshed N. Guzdar vs. State of Maharashtra & Ors., (2005) 2
the Letters Patent Appeal was dismissed on 17th
SCC 591,
August, 2005 as not maintainable.
10. Learned
counsel
for
the
defendant-appellant
made
the
following submissions:
(a)
The High Court committed a grave and manifest
error
of
law
in
reversing
the
well
reasoned
judgment and decree passed by the Trial Court.
(b)
The High Court has failed to consider that as
there
is
no
prior
service
of
notice
before
institution of the suit either under Section 80 of
C.P.C. or under Section 401 of the M.P. Municipal
Corporation Act, 1956, therefore,
suit was not
maintainable and as such it was rightly dismissed
by the Trial Court.
(c)
The High Court has gravely erred in decreeing
the suit
without properly considering the oral
evidence led by the plaintiffs and on the contrary
the
plaintiffs
evidence
that
witnesses
in
Khasaras
admitted
the
in
their
Municipality
is
recorded as owner and even in some Khasaras the
plaintiffs are recorded as tresspassers.
11.
On the other hand, according to learned counsel for the
plaintiffs-respondents,
decreed
the
suit
as
the
First
Appellate
Court
predecessors-in-interest
of
rightly
plaintiffs
were recorded to be in possession of the land.
12. After giving our careful consideration to the facts and
circumstances
of
the
case,
evidence
on
record
and
the
submission made by the learned counsel for the parties, we
find ourselves in complete agreement with the submission made
on behalf of the defendant-appellant
and the judgment and
decree passed by the Trial Court.
13. The plaintiffs-respondents claimed ownership, title and
possession over the land.
They are supposed to plead the fact
and prove their case by placing evidence.
The plaintiffs have
shown their possession in the capacity of “Pukhta Maurusi
Kashtakar”
and
that
the
land
was
meant
for
agriculture
purposes.
14. Further the case of the plaintiffs was that there was no
partition between them and the land continued to be joint
family property (“Shamil Shareek”). The plaintiffs have given
the detail of their predecessor-in-title as under:
“Table of Puran Singh, Plaintiff No.1:
Chhutti Ram, widow Manko
↓
Mishrilal
↓
Puran Singh (adopted son)
Table of Shyam Babu, Plaintiff No.2:
Reoti Prasad, widow Rajwati
↓
Bhagwati alias Bhagwati Prasad
↓
Shyam Babu”
Table of Har Narain;
Mangal Singh
↓
Gopi Ram
↓
Harnarain
15. Referring to the tables of the predecessor-of-interest,
the Trial Court doubted the joint-ownership of the family
and rejected the claim of the plaintiffs in view of the
following facts:
16.
Plaintiff no. 1, Puran Chand belongs to Shiva Hare Caste
whereas
plaintiff
No.
2,
Sham
Babu,
is
a
‘Kayastha’
(Shrivastava). Harinarain is a Thakur. The plaintiff has not
made ownership
clear
possession
how
of
the
they
land
claim
if
joint
they belong
and
to three
joint
different
castes. Neither any pleadings were made nor any evidence was
placed by the plaintiff to show how the land in dispute came
under their ownership and when they have taken possession of
the land.
17.
The High Court gravely erred in law as well as on facts
in connecting Ram Nath with the plaintiffs-respondents even
though they have utterly failed to prove any connection with
him and the pleadings are lacking regarding their particulars
and even their names do not appear in Ext.P.11.
18. It is settled that for joint possession and ownership
over
any
property, firstly the
plaintiffs
are
required
to
plead the same and the said fact should be reflected in the
plaint itself.
There is a concept of joint family amongst the
Hindus but that is required to be pleaded and proved. As the
ancestors of the plaintiffs do not belong to one family, but
three
different
family
having
three
different
castes,
the
joint possession of the plaintiff cannot be accepted.
The
High Court failed to notice the aforesaid fact while allowing
the appeal of the plaintiffs.
19. Smt. Chandra Kala widow of Shyam Babu (PW-1) and Puran
Singh (PW-2) stated that they are joint owners and are in
joint
possession
based
on
revenue
records.
Mishrilal, Gopilal and Shyam Babu were shown.
name
of
ancestors
of
Plaintiff
No.2,
Shyam
The
names
of
However, the
Babu
is
not
recorded, but the name of Shyam Babu himself is recorded
therein. In the original plaint,
how Shyam Babu
it was not pleaded as to
along with Mishri Lal and Gopiram were in
joint possession over the land in dispute. In this background,
we hold that the Trial Court rightly held that the plaintiffs
failed
to
give
necessary
details
of
their
origin
and
ownership rights.
20. The High Court has failed to appreciate that there was no
document
of
title/ownership
plaintiffs-respondents
and
on
there
record
are
no
placed
pleadings
by the
in this
regard as such no finding of title or ownership can be given
in favour of plaintiff-respondents.
21.
The evidence of Chander Kala PW-1 and other evidence on
record including map were enclosed in the plaint. Nothing was
shown to suggest that Shyam Babu was in actual possession of
the land in the plaint or in the map and no pleading as the
8
Page 8
existence of a pataur, toilet and pond (Haudi) in the suit
land was made.
Therefore, the Trial Court was correct in
holding that the plaintiff- Shyam Babu was not in possession
of land.
22.
The Khasara entry of Samvat 1966 is exhibit P-11. The
name of the owner of Khasara No.486 (Vasarash Sadar), Rakam
Tehsil Khewat 1 is recorded whereas Kashtakar Dakhilkar in
column No.7 (Basrah Sadar) Ram Chander s/o Kashi Ram resident
of Deh Dakhilkar is mentioned. Further in column No.8 the
following
entry
is
given
as
Skikmi
Kashtakar
and
Muddat
Kashta:-
“Manko widow Khushi Ram and Arjun-
Rajawati widow of Reoti Prasad Kayastha,
Mangal Singh and Ram Prasad.”
In the further columns the vegetables, crop and makka,
channa etc. is mentioned.
23. In second old Khasara entry Exhibit P-10 for Samvat 1992
with respect to Khasara No.486/19 in the column No.5 for the
name of the owner ‘Municipality No.1’ is mentioned and further
Warelal
Gopi
Ram
Mauru-
Mangal
Singh-
Bhagwati
s/o
Reoti
Prasad Ka.Sa.Deh.Mu.Maurusi is mentioned and in column No.20
‘Kisam Abadi’ is mentioned. In column No.9 Chita Lagani has
been shown.
24. According to plaintiffs, the old Account No.486/19 of the
land is in dispute, and therefore, in this Khasara entry this
9
Page 9
land is reflected as Bila Lagani Abadi under the ownership of
Municipality.
25. The Trial Court on appreciation of the entries and its
genuineness which is to be presumed under the provisions of
Section 117 of the Madhya Pradesh Land Revenue Code, came to a
definite conclusion that the entries were made with different
ink and hand-writing and the compliance of the order by any
competent officer is not mentioned in the Khasara. In this
regard
when
cross-examined,
Gita
Ram
Verma
(PW-3),
Abhilekha Pal of Rajasava Abhilekhagar Gwalior made certain
statements at paragraph 5,6, and 7 of cross-examination which
raised
doubt
about
the
entries
in
some
of
the
khasara
placed by the plaintiff.
26.
Gita Ram Verma-(PW-3) in her statement stated the record
of samvat 1977 to samvat 1992 in the ‘Abhilekha Gar’ (record
room)
of
Director
Land
Record.
The
plaintiffs
could
not
correspond how they could get Exhibit P-10 and P-11 which were
available
in
the
record
room
and
could
not
prove
the
correctness of those exhibits. Errors and omissions have been
also found in the Khasara entries produced by the plaintiffs.
Hence
the
Trial
Court
doubted
the
correctness
of
those
khasaras..
27.
The aforesaid fact has not been dealt with by the High
Court in proper perspective.
Merely on the basis of
Khasara
of the year Samvat 1992 Ex.P/10, Khasara of the year Samvat
10
Page 10
1996
Ex.P/11,
Khasara
of
the
year
Samvat
2003
Ex.P/2
declaration has been given in favour of the plaintiffs.
The
High Court also noticed the Khasara of the year Samvat 2004
Ex.P/3, Samvat 2005 Ex.P/4 and Samvat 2006 Ex.P/5, and then
Khasara of the years Samvat 2010 to 2014 Ex.P/6, Khasara of
the years Samvat 2013 to 2017 Ex.P/7 and Khasara of the years
Samvat 2035 to 2038 Ex.P/8.
28. In the Khasara of the years Samvat 2035 to 2038 Ex.P/8
the nature of the land was mentioned as Nazul Abadi. In such
exhibit the Municipality has been mentioned in column No.3.
On the basis of aforesaid Khasaras, the learned Single Judge
decided
the
title
in
favour
of
the
appellant-Municipal
Corporation.
29. Mutation entries do not confer title.
In Smt. Sawarni v.
Smt.Inder Kaur & others, 1996 (6) SCC 223, this Court held :
“7.......Mutation of a property in the revenue record
does not create or extinguish title nor has it any
presumptive value on title. It only enables the
person in whose favour mutation is ordered to pay
the
land
revenue
in
question.
The
learned
Additional District Judge was wholly in error in
coming to a conclusion that mutation in favour of
Inder Kaur conveys title in her favour. This
erroneous conclusion has vitiated the entire
judgment.......”
30.
The High Court committed a grave and manifest error of
law in reversing the well reasoned judgment and decree passed
by the Trial Court by simply placing reliance upon Khasaras
entries even without properly appreciating the settled law
that Khasara entries do not convey title of the suit property
11
Page 11
as the same is only relevant for the purposes of paying land
revenue and it has nothing to do with ownership.
31.
For the
reasons
aforesaid,
we
set
aside
the
impugned
judgment and decree passed by the learned Single Judge in
Civil First Appeal No.1 of 1995 and confirm the judgment and
decree passed by the Trial Court.
The appeal is allowed. No
costs.
....................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
....................................................J.
(A.K. SIKRI)
NEW DELHI,
JULY 2,2014.
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Page 12
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