DEVIDMATI Vs. SHYAMKALI

JUDGEMENT

(1.) THIS is plaintiffs' first appeal under Section 96 of the Code of Civil Procedure (for brevity 'the C.P.C.') against the judgment and decree dated 27.01.1997 passed in Civil Suit No. 33 -A/1981 by the 2nd Additional District Judge to the Court of District Judge, Bilaspur dismissing the plaintiffs' suit. Facts of the case, in brief, are as under: - (i) A suit seeking relief of declaration of title and possession of the suit property comprising land bearing Kh.No.492/1 area 0.12 decimals and Kh.No.492/2 area, 0.10 decimals and house constructed thereupon was filed by Davidmati Das and Ku. Elizabeth, i.e., son and daughter of late Matidas. (ii) During the pendency of the suit, pursuant to execution of sale deeds (Ex.P. 1 -& P. 2) in favour of Laxmi Devi, Badri Prasad Gupta and Rajendra Kumar Gupta by plaintiff No. 1 and late Ku. Elizabeth -, their names were added as plaintiffs No.2, 3 and 4 and name of Ku. Elizabeth was deleted due to her death. (iii) According to the plaint averments, Matidas had purchased the suit property from Ludku and his brothers, in the year 1933 and constructed the suit house thereupon and since then he along with Davidmati Das and Ku. Elizabeth was in possession of the suit property till his death, in his own right? Matidas had died on 12.05.1981. After his death, Davidmati Das and Ku. Elizabeth continued in possession of the suit property. (iv) On 17.05.1981, defendants No. 5 to 7 forcibly entered into the suit house. The first information report was lodged against the defendants. (v) The suit property stands recorded in the revenue papers in the name of late Matidas. The defendants have no right or title over the suit property. (vi) As per the defendants' case, Ludku, Polo and Samaru orally gifted the suit land to Dheerpal, i.e., father of Timothi and Daniel in the year 1935, who constructed a Kachha house over it. Later on, 20 - 22 years back (from the date of filing of written statement), the defendants have constructed a 'Pakka house over the suit land, consisting of 9 rooms and one well. They themselves borne the expenses and since then they are in possession of the suit property. (vii) Matidas was living along with his wife and daughter Ku. Elijabeth with his son Davidmati Das at Pali, Tahsil Katghora. Matidas left Pali due to misbehaviour of his son Davidmati Das. He requested defendants to permit him to live in the suit house, which they permitted and due to above -permission, Matidas along with his wife and daughter lived in the suit house. Late Elizabeth started living in the house of Badri Prasad Gupta (£R if 8ft). Neither Davidmati Das nor late Elizabeth was ever in possession of the suit property. (viii) Wife of Matidas had died in the year 1970. Matidas had also died on 5.12.1981. Davidmati Das did not come for their last rites. However he came on 13.05.1981 to Takhatpur and started negotiations for selling the suit property to Badri Prasad Gupta. (ix) Davidmati Das and late Elizabeth have colluded with plaintiffs No.2,3 & 4 and sold the suit property to them through registered sale deeds, which are totally illegal and do not confer any title on them. The defendants are owners of the suit property and are also in possession of the same. (x) In criminal case No. 20/1982, Judicial Magistrate Second Class, Bilaspur, vide its judgment dated 27.04.1982 has held, the defendants are living in 4 rooms of me suit house and also using the open land. Therefore, the suit is liable to be dismissed. (xi) The trial Court framed the follow ing issues : <IMG>JUDGEMENT_90_MPHC(CHHAT)2_2013.jpg</IMG> <IMG>JUDGEMENT_90_MPHC(CHHAT)2_12013.jpg</IMG> (xii) The plaintiffs examined P.W. 1 Davidmati Das, P.W.2 Badri Prasad, P.W.3 Shri Kumar Pathak and Chailram P.W.4. On the other hand, the defendants have examined D.W. 1 Daniel, D.W.2 Chandra Dayal, D.W.3 Govindram and D.W.4 Sheo Kumar. (xiii) The trial Court held: the suit property is joint family property of late Matidas, Timothi and Daniel; Davidmati Das and Elizabeth were not in possession of the suit property; Matidas died on 13.04.1980 and not on 12.05.1981; defendants were in possession of the entire suit house and plaintiffs were not residing in the suit house prior to filing of the suit and dismissed the plaintiffs' suit. Hence, this appeal. (xiv) During the pendency of the appeal, appellant No.3 - Badri Prasad Gupta and defendant No. 1 - Chandra Dayal and defendant No.2 Deen Dayal have died and their legal representatives were brought on record.

(2.) SHRI Rajeev Shrivastava, learned counsel appearing for the appellants would submit: the defendants have admitted the date of death of Matidas in para - 2 of their written statement as 12.05.1981; the judgment of Civil Court dated 18.09.1941 (Ex.P.10) and appellate Court's judgment dated 13.41942 (Ex.P.11) go to show, Matidas alone was owner and in possession Of the suit property, even prior to 1941; the suit property also stands recorded in the revenue papers in the name of Matidas; as per defendants' own evidence, Matidas and his wife lived in the suit house till their death and late Elizabeth also lived in the suit house. However, the trial Court ignoring the documentary evidence as well as oral evidence led by the plaintiffs, gave much weightage to the oral evidence led by the defendants which is in variance with the averments made in the written statement.

(3.) PER contra, Shri K.A. Ansari, learned Senior Counsel with Shri Devesh Kela for respondents No. 1 (A) & (B), 2 (A) to (C) and 3 to 11, vehemently argued : the plaintiffs failed to prove their forcible dispossession by the defendants; as per death certificate Ex.D. 11, date of death of Mati Das is 13th April, 1980; as per sale deed Ex.P.2 executed on 16.01.1982 the possession was not handed over to original plaintiffs No.2,3 & 4 by Davidmati Das and late Ku. Elizabeth, and therefore, the trial Court, on proper appreciation of the evidence and material available on record, has rightly dismissed the plaintiffs' suit, which does not call for any interference.