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2025 DAILYLAW 874 (CHH)

Dasoda Bai, D/o. Sahukar Verma v. Fakirchand Verma, S/o. Sahukar Verma

2025-08-11

Deepak Kumar Tiwari, Sanjay K Agrawal

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JUDGMENT : Sanjay K. Agrawal, J. 1. Invoking the civil appellate jurisdiction of this Court under Section 96 of the Code of Civil Procedure, 1908, the appellants herein/plaintiffs have filed this appeal calling in question legality, validity and correctness of judgment & decree dated 29-8-2017 passed by the Additional District Judge, Dhamtari in Civil Suit No.26A/2011, by which the learned Additional District Judge/trial Court has dismissed the civil suit filed by the plaintiff finding no merit. (For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the suit before the trial Court.) 2. Following genealogical tree will demonstrate the relationship among the parties:- 3. Sahukar Verma was the original land owner who died in the year 1963-64. His first wife Ramkunwar had three sons and his second wife Meena Bai had two sons and three daughters, who are defendants No.1 & 2 and the plaintiffs, respectively. The dispute with regard to the suit property, firstly, was the subject matter of Civil Suit No.71A/1985 which was disposed of by the Civil Judge Class-I, Dhamtari vide judgment & decree dated 28-2-1986 by way of compromise entered into between sons of first wife Ramkunwar on the one hand and sons & daughters of second wife Meena Bai on the other hand and following decree was passed in paragraph 3 of the said judgment:- 4. In compliance with the decree passed by the trial Court on 28-2-86, the suit property came to be registered jointly in the names of the plaintiffs and defendants No.1 & 2 vide Ex.P-2 by the Tahsildar. Thereafter, it is the case of the plaintiffs that their names were got deleted by defendants No.1 & 2 as per the agreement dated 19-3-1991 vide Ex.P-9 which is per se a forged document and defendant No.2 taking advantage of mutation in their names, sold his share to defendant No.3 to the extent of 1.24 hectares by sale deed dated 13-9-2011 leading to filing of suit for declaration of title and partition relating to 1/5 share in the suit property. 5. 5. Defendant No.1 filed separate written statement stating inter alia that after death of Meena Bai, only the names of defendants No.1 & 2 have been recorded in the revenue records on the basis of agreement dated 19-3-1991 by which the plaintiffs have received their share in the suit property and names of defendants No.1 & 2 came to be recorded, as such, the plaintiffs have no right over the suit property. 6. Defendant No.2 has also filed separate written statement stating inter alia that as per agreement dated 19-3-1991, names of defendants No.1 & 2 came to be rerecord in the revenue documents and thereafter, defendant No.2 has sold the land in question to defendant No.3 on 13-9-2011, as such, the suit deserves to be dismissed. 7. The trial Court has framed issues and answered the same in paragraph 7 of its judgment, which states as under: - 8. It is pertinent to mention here that the plaintiffs have examined Dasoda Bai (PW-1) in their defence and exhibited twenty documents Exs.P-1 to P-20 to prove their case, however, the defendants have neither examined any witness nor entered into the witness box to prove their case. 9. The trial Court by the impugned judgment & decree dismissed the suit holding that the plaintiffs have relinquished their share in the suit property in favour of defendants No. 1 & 2 by agreement dated 19-3-1991 leading to filing of this appeal. 10. Mr. Somnath Verma, learned counsel appearing for the appellants herein/plaintiffs, would submit that the trial Court is absolutely unjustified in dismissing the suit by recording a finding which is perverse to the record. Judgment of the trial Court in the earlier suit dated 28-2-1986 (Ex.P-1) has become final by which the dispute between the two wives of Sahukar Verma has been resolved and the suit property came in favour of the plaintiffs and defendants No.1 & 2 and therefore the plaintiffs’ will have right and title of 1/5 share in the suit property, as Meena Bai died on 2-4-2002. Furthermore, the finding of the trial Court that the three plaintiffs have relinquished their share in favour of defendants No.1 & 2 is not established in absence of their version that too by a registered document in support of it which is very much necessary. Furthermore, the finding of the trial Court that the three plaintiffs have relinquished their share in favour of defendants No.1 & 2 is not established in absence of their version that too by a registered document in support of it which is very much necessary. Moreover, defendants No. 1 & 2 did not enter into witness box, as such, adverse inference has to be drawn in light of the decision of the Supreme Court in the matter of Vidhyadhar v. Manikrao and another , AIR 1999 SC 1441 . As such, the appeal deserves to be allowed. 11. Mr. Rakesh Kumar, learned counsel appearing for respondent No.1 herein/defendant No.1, would support the impugned judgment & decree and submit that since the plaintiffs have relinquished their share in favour of defendants No.1 & 2, the judgment & decree of the trial Court is unexceptionable and the appeal deserves to be dismissed. 12.Mr. B.P. Singh, learned counsel appearing for respondents No.2 & 3 herein/defendants No.2 & 3, would also support the impugned judgment & decree and submit that the plaintiffs have relinquished their share in favour of defendants No.1 & 2 which has duly been recorded in the impugned judgment & decree on the basis of document filed by the plaintiffs themselves as Ex.P-9, therefore, they cannot rigor from their version and their own document and as such, the appeal deserves to be dismissed. 13.We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 14.In view of the provisions contained in Order 41 Rule 31 of the Code of Civil Procedure, 1908, in this appeal, the points for determination arise as under: - 1. Whether the finding recorded by the trial Court that the plaintiffs are not entitled for their 1/3 share, is correct? 2. Whether by agreement dated 19-3-1991, the plaintiffs have relinquished their share in favour of defendants No.1 & 2? 15.As noticed herein-above, Late Sahukar Verma had two wives, first wife was Ramkunwar and second wife was Meena Bai. Whether the finding recorded by the trial Court that the plaintiffs are not entitled for their 1/3 share, is correct? 2. Whether by agreement dated 19-3-1991, the plaintiffs have relinquished their share in favour of defendants No.1 & 2? 15.As noticed herein-above, Late Sahukar Verma had two wives, first wife was Ramkunwar and second wife was Meena Bai. The dispute with regard to the suit property between sons of first wife and sons & daughters of second wife was settled vide Ex.P-1 before the jurisdictional civil court and the suit property came jointly in favour of the plaintiffs and defendants No.1 & 2 and thereafter, their names were duly recorded in the revenue records vide Ex.P-2 and they were joint holders of the suit property. However, thereafter, vide Ex.P-9, it appears that by agreement dated 19-3-1991, defendants No.1 & 2 got their names recorded in the revenue records. As such, as per the impugned judgment & decree dated 29-8-2017, the property was jointly held by the plaintiffs and defendants No.1 & 2 and thereafter, by agreement dated 19-3-1991, the plaintiffs have relinquished their share in favour of defendants No.1 & 2, however, the said relinquishment deed in shape of the agreement has not been filed before the trial Court. Any document relinquishing the property must be a registered document and unless it is done by registered title holder, it cannot be transferred in favour of defendants No.1 & 2 which defendants No.1 & 2 have neither produced before the trial Court nor proved it, however, they have acknowledged the title of the plaintiffs in the written statement before the trial court in absence of which it cannot be held that by agreement dated 19-3-1991, the plaintiffs have relinquished their title in favour of defendants No.1 & 2. 16.The Supreme Court in the matter of Yellapu Uma Maheswari and another v. Buddha Jagdheeswararao and others , (2015) 16 SCC 787 (para 15) has clearly held that relinquishment of right in respect of immovable property through a document is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 17 read with Section 49 of the Registration Act, 1908 (also see Sita Ram Bhama v. Ramvatar Bhama, (2018) 15 SCC 130 and Korukonda Chalapathi Rao and another v. Korukonda Annapurna Sampath Kumar , (2022) 15 SCC 475 ) . 17.Similarly, the Supreme Court in Vidhyadhar (supra) has clearly held that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a serious of decisions and a presumption would be drawn under Section 114 of the Evidence Act against a party who did not enter into the witness box. The Supreme Court observed as under: - “Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh [ AIR 1927 PC 230 : 32 CWN 119]. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh [AIR 1930 Lah 1 : ILR 11 Lah 142] and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh [AIR 1931 Bom 97 : 32 Bom LR 924]. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat [ AIR 1970 MP 225 : 1970 MPLJ 586 ] also followed the Privy Council decision in Sardar Gurbakhsh Singh case [ AIR 1927 PC 230 : 32 CWN 119]. The Allahabad High Court in Arjun Singh v. Virendra Nath [ AIR 1971 All 29 ] held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. The Allahabad High Court in Arjun Singh v. Virendra Nath [ AIR 1971 All 29 ] held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand [AIR 1974 P&H 7] drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.” 18.In this case also defendants No.1 & 2 have set up a plea that the suit property was jointly owned and held by the plaintiffs along with defendants No.1 & 2 which has been later-on relinquished by the plaintiffs in favour of defendants No.1 & 2, however, defendants No.1 & 2 have not filed the alleged relinquishment deed in their favour i.e. the agreement dated 19-3-1991. Even defendants No.1 & 2 did not enter into the witness-box to support such plea of relinquishment in their favour by agreement dated 19-3-1991. 19.In that view of the matter, defendants No.1 & 2 have failed to prove and establish that the plaintiffs have relinquished their share in favour of defendants No.1 & 2 by agreement dated 19- 3-1991 in absence of registered relinquishment deed. As such, defendants No.1 & 2 have failed to prove and establish relinquishment of right by the plaintiffs also for the reason that adverse inference has to be drawn as defendants No.1 & 2 did not enter into the witness-box to support the relinquishment deed by the plaintiffs in their favour and furthermore, the alienation made by defendant No.2 in favour of defendant No.3 by sale deed dated 13-9-2011 is not binding on the plaintiffs. Thus, each of the plaintiffs will be entitled for 1/5 share in the suit property shown in paragraph 16 of the plaint and the sale deed dated 13-9-2011 is not binding to the extent of share of the plaintiffs and sale deed will be valid only to the extent of defendants No.2’s share. 20. Accordingly, the judgment & decree impugned are hereby set-aside and the plaintiffs are granted following reliefs: - 1. Sale deed dated 13-9-2011 is not binding on the plaintiffs and only valid to the extent of defendant No.2’s share and except the share of defendant No.2, all other suit lands sold to defendant No.3 will be available for partition by the revenue authorities. 2. Sale deed dated 13-9-2011 is not binding on the plaintiffs and only valid to the extent of defendant No.2’s share and except the share of defendant No.2, all other suit lands sold to defendant No.3 will be available for partition by the revenue authorities. 2. It is declared that the plaintiffs and defendants No.1 & 2 each will have 1/5 share in the suit property which is declared and they are entitled to get the suit property partitioned by the revenue court under Section 54 read with Order 20 Rule 18 of the Code of Civil Procedure, 1908. 3. Defendants No.1 to 3 are restrained from further alienating the suit property till the partition is made. 21. The appeal is allowed to the extent indicated herein-above leaving the parties to bear their own cost(s). 22. Decree be drawn-up accordingly.