2011 Supreme(Guj) 238

2011 (2) GCD 1151 (Guj)
Hon’ble Mr. Justice J.C. Upadhyaya
Mer Dhaniben Wd/o Decd. Mer Malde Vagha & Ors.
Versus
Mer Rupiben Viram & Ors.
First Appeal No. 1188 of 20091—Decided on 08/04/2011

Point in Issue :
Whether in the facts of the case appellants appeals are acceptable and judgment of trial Court liable to be set aside.

Headnote:Head Note :

       (a) Civil Law — Permissible use of land — Does not confer any title — Finding of — Justified.

       Held :

       Mere fact that Viram along with his family members after the year 1979 permanently left village Bhavpara and permitted Malde to use and occupy his land, would not thereby confer any title or ownership of Malde in the lands. The overall re-appreciation of oral and documentary evidence on record rather suggests that the user of Malde and after his death by his family members of the disupted lands was permissible user. It is to be noted that both Viram and Malde were real brothers. As admitted by both the parties, when their two other brother, namely, Karsan and Tapu got themselves separated earlier in point of time, at that time also, Viram and Malde continued to remain as joint family. Nothing transpires that till Malde attempted to get his name mutated in the revenue record and, subsequently till defendants No. 1, 2 and 3 sold the disputed land to the defendant No. 4, there was any dispute between the two families, in other words, when Viram and after his death, when the plaintiffs felt that there was threat to their ownership of the disputed lands, then they took legal action. As stated above, the bare perusal of the orders passed by the revenue authorities [Para 19]

       Head Note :

       (b) Civil Law — Mutation entries — Change of — Not based on any document or statement recorded by concerned authority — Claim that based on partition not proved — Entries made on basis of mere permissible possession — Not sustainable — Finding of trial Court proper.

       It is pertinent to note that here is not a case wherein, mutation entries came to changed on the basis of any document or statements recorded by the concerned revenue authorities of family members of the families of Viram and Malde to the effect that the necessity for change occurred on account of partition having been taken place in the year 1974. To put it differently, neither it is the defence of the defendants nor it is in evidence that mutation entries came to be changed in revenue record, because the parties admitted in their statements recorded by the revenue authorities about the partition. However, the fact remains that the changed mutation entries were posted on the basis of only actual and physical possession. As stated above, the possession by Malde of the disputed lands can only be said to be nothing more than permissible user and enjoyment of the lands. [Para 19]

       In the result, this Court finds no infirmity or any illegality having been committed by the learned Civil Judge in coming to the conclusion that the plaintiffs established that the lands S. No. 242 and S. No. 95/2 were independently owned by Viram Vagha by virtue of the sale-deed, Exh.65 dated 29.4.1957 and after death of Viram Vagha, the plaintiffs became joint owners of the lands. The trial Court did not err in coming to the conclusion that the defendants failed to prove their defence regarding any partition having taken place in the year 1974. [Para 20]

       Head Note :

       (c) Civil Law — Ancestral land — Partition alleged not proved — Held, jointly owned — Sale deed of said land by Defendant Nos. 1 to 3 in favour of Defendant No. 4 — Not sustainable — Trial Court rightly cancelled the sale deed — Cancellation upheld.

       Held :

       Considering the disputed sale-deed, Exh.68, copy produced at Exh.95 in the suit, it transpires that the defendants No. 1, 2 and 3 sold to defendant No. 4, land admeasuring 1 acre and 16 gunthas, out of land bearing S. No. 95/2 as well as land bearing S. No. 61/1 and the said sale transaction is dated 29.4.2002. As stated above in this judgment, the trial Court rightly came to the conclusion that so far as land S. No. 61/1 is concerned, it is ancestral land wherein the plaintiffs and defendants No. 1, 2 and 3, both have shares and so far as land S. No. 95/2 is concerned, the said land exclusively belongs to Viram Vagha and he was independent owner of the land by virtue of the registered sale-deed, Exh.65 dated 29.4.1957 and after the death of Viram Vagha, the plaintiffs became joint owners of the land. In that view of the matter, the trial Court rightly cancelled the disputed sale-deed by holding that the defendants No. 1, 2 and 3 had no right or authority to sell lands S. No. 61/1 and S. No. 95/2. [Para 22]

       Head Note :

       (d) Civil Law — Bona fide purchaser — Claim made by Defendant No. 4 — Written statement not filed in suit — In statement made in Court admitted no proper enquiries made as to how Defendant Nos. 1 to 3 acquired the land — Trial Court rightly held that Defendant No. 4 is not bona fide purchaser — Finding of trial Court upheld.

       Held :

       Learned advocate for the appellant – defendant No. 4 during the course of his submission stated that the defendant No. 4 can be said to be a bona fide purchaser and, therefore, the trial Court should not have cancelled the sale transaction. In this respect, first of all, perusing the record of the suit, there is no dispute that the defendant No. 4 did not file any written statement in the suit. He only stepped into the witness box and his deposition was recorded at Exh.97. Thus, the defendant No. 4 adduced his evidence without filing any written statement in the suit. However, in his deposition, Exh.97, he only contended that he was bona fide purchaser. He further stated that he entered into the sale transaction after verifying revenue record. In his cross-examination, he admitted that he entered into the sale transaction only at the instance of defendant No. 1 Dhaniben and only relying upon her words. He further admitted that after he purchased the land, he came to know that the land S. No. 95/2 came to be purchased by husband of plaintiff No. 1, namely, Virambhai by a registered sale-deed. He pleaded his complete ignorance as to how the defendants No. 1, 2 and 3 acquired the land S. No. 95/2. In the above view of the matter, appreciating the overall evidence on record, this Court is of the opinion that the learned Civil Judge rightly came to the conclusion that the defendant No. 4 can never be said to be bona fide purchaser. [Para 22]

       Law Laid Down :

       Permissible use of land does not confer any title on user