DEOLAL Vs. KALURAM

JUDGEMENT

(1.) THIS second appeal was admitted on the following substantial question of law :-

(2.) TO appreciate the controversy between the parties the brief facts of the case are that appellant-plaintiff filed a suit for declaration and injunction against his brother Kaluram that the land bearing survey No. 22 having area of 2.124 hectares situated at village Napenhera is joint land and he is entitled for half of the share in the land and the defence of the respondent was that the disputed land was not a joint land and was not part of any partition. The land in dispute is the personal property of the defendant. It was further pleaded that originally this survey number belongs to one Nathu who had given this land to defendant on lease and by virtue of long possession he became Bhumiswami and by filing application under section 190/110 of MPLR Code against Nathu he got the Bhumiswami rights over this land against Nathu, therefore, it was his personal property. The trial* Court found the case in favour of the appellant-plaintiff and decree the suit but the first appellate Court after appreciating the oral as well as documentary evidence on record came to the conclusion on the basis of proceedings for conferral of Bhumiswami rights before the Tehsildar, Biora and has held that by the order of conferral of Bhumiswami rights in his favour it is the self-acquired property of respondent-defendant and allowa&he appeal.

(3.) EX . P-1 is a copy of the order passed by Naib Tehsildar, Biaora on 12.9.1978 which is a material piece of documentary evidence on record by which the plaintiff's application before the Naib Tehsildar against Kaluram was dismissed about the claim of Bhumiswami rights on the basis of sub-tenancy. In that application it was stated that on survey No. 22 having area 2.124 hectares though the name of defendant Kaluram is recorded but over half of the land the plaintiff is having its possession as sub-tenant and thus he has acquired Bhumiswami rights on the basis of sub-tenancy, therefore, Bhumiswami rights be conferred in favour of the plaintiff against the respondent. But this application was dismissed by Naib Tehsildar by the impugned order and it was held that the plaintiff has failed to prove his possession over the land as Shikmi against the Kaluram. There is no other document on record to hold that the disputed land bearing survey No. 22 was an ancestral property and there was some partition and the possession of the appellant-plaintiff over half of the land was also not found proved. The first appellate Court after appreciating the evidence on record has also found that the plaintiff has failed to establish his possession and rights over the land on the contrary it was found proved that the respondent-defendant was Shikmi of one Nathu who was the original owner. It is settled principle of law that a person who is a member of joint family can also acquire separate property and that may be the personal property of the party away from the joint land. Thus, from the evidence on record it is clear that the appellant-plaintiff has failed to prove that the land in dispute is the ancestral property of the parties and was partitioned and half of the land came into the share of the appellant-plaintiff. Appellant-plaintiff attempted to show that because of his possession he has also acquired Bhumiswami rights over the same against respondent-defendant but by Ex. P-1 this has been ruled out.