IMPORTANT POINTS
(1) Secondary evidence – A notarized true copy is generally not admissible as primary evidence in Courts – It may, however, be admitted as secondary evidence.
(2) Partition – Undivided share of a coparcener can be subject-matter of sale or transfer, but possession cannot be handed over to vendee unless property is partitioned.

ORDER

The defendants have filed this second appeal, assailing the judgment and decree passed by the District Judge, Surguja (Ambikapur), in Civil Appeal No. 92A of 1999 dated 20.3.2001, whereby the appeal was dismissed.

This appeal was admitted for hearing on the following substantial question of law, vide order dated 21.1.2016:—

“(i) Whether the learned lower Appellate Court was justified in law in holding that the property in dispute being joint property of Sampat Barga and Gathiya Barga, the sale deed executed in the year 1942 did not pass any title in favour of Dashrathlal Mehta?

(ii) Whether defendant Surendra Kumar Mehta son of Dashrathlal Mehta was entitled to half of the share in the joint property of Sampat Barga and Gathiya Barga by virtue of sale deed executed in the year 1942?”

3. The facts of the present case are that Civil Suit No. 156A of 1990 was filed by the plaintiffs for declaration of title and permanent injunction in respect of the agricultural land described in Schedules A and B. Schedule B forms part and parcel of Schedule A. The plaintiffs pleaded that the suit property was the self-acquired property of Sampat Bargah and Gathiya Bargah, as a joint lease deed was issued in their names during the settlement period. The plaintiffs further pleaded that they are the descendants of the original owners and have inherited the property in succession, and they are in possession of the suit land. They pleaded that the cause of action arose when defendant No.1 interfered with their possession, leading to a proceeding under Section 145 of the Cr.P.C.

4. Defendants No.1 & 2/appellants filed their written statement and denied the plaint averments. They pleaded that the suit land was transferred by Sampat Bargah to the father of defendant No.1 (Dashrath Lal Mehta) in the year 1942, and subsequently, the land described in Schedule-B was transferred to the late Nanhu (father of defendant No.2) in 1962 through a sale-deed. The defendants further pleaded that they had perfected their title by the law of adverse possession.

5. Learned trial Court framed issues, and both parties led oral and documentary evidence. After due appreciation of the evidence, the trial Court recorded findings that the suit property mentioned in Schedule-A was the self-acquired property of Sampat Bargah and Ghatiya Bargah; in the year 1932, the property was sold to Dashrath Lal Mehta; and that in 1978, the defendants started asserting rights over the property described in Schedule-B. Learned trial Court also held that the plaintiffs failed to prove the dates of the death of Sampat Bargah and Ghatiya Bargah, and they remained in possession of the suit property till their death, or the plaintiffs themselves are currently in possession. Learned trial Court recorded a finding that the notarized copy of the sale deed executed in the year 1942 was prepared by Notary S.P. Gupta (PW-2) on 5.8.1980, after comparing it with the original, and its execution was duly proved in evidence, which conferred title in favor of Dashrath Lal Mehta.

6. Learned trial Court further held that the defendants have perfected their title on the basis of adverse possession. Accordingly, the civil suit was dismissed vide judgment dated 15.2.1993. The plaintiffs preferred a first appeal before the learned District Judge, Surguja. The Appellate Court allowed the appeal and set aside the judgment and decree passed by the learned trial Court vide judgment and decree dated 20.3.2001.

7. The Appellate Court reversed the findings, holding that the sale-deed of the year 1942 executed by Sampat Bargah did not convey a valid title to late Dashrath Lal Mehta, and the defendants have not perfected title by adverse possession. It further held that Dashrath Lal Mehta did not have a valid title to execute the sale-deed in favour of the late Nanhu.

8. The plaintiffs exhibited Ex.P/1 revenue records of Surguja State settlement, in which the names of Sampat Bargah and Ghatiya Bargah are recorde