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1998 DIGILAW 668 (PAT)

Sachchidanand Singh v. Nathuni Yadav

1998-09-18

M.Y.EQBAL

body1998
Judgment M.Y.Eqbal, J. 1. This Civil Revision application. is directed against the order dated 30.5.1998 passed by the Subordinate Judge IV, Darbhanga, in Title Suit No. 68 of 1990 rejecting the petition of the plaintiff-petitioners purported to have been filed under Order XII, Rule 6 of the Code of Civil Procedure and refused to pronounce judgment. 2. The plaintiffs-petitioners instituted the aforesaid suit seeking relief for declaration that the two sale deeds dated 18.11.1989 executed by Upendra Nath Shukla being attorney of Gangotri Dubey in favour of the defendants are null and void, illegal, without consideration, ineffective sham and collusive and not binding on the plaintiffs. The plaintiffs claimed the suit property measuring 5 Bighas, 7 Kathas and 17 dhurs situated in village Ramashalla, P.S. Darbhanga, District Darbhanga, on the basis of settlement by the Ex-landlord in the year 1917 Fasli and also on the basis of the sale-deeds executed on different dates in the year 1922 and 1930 and further on the basis of continuous possession. According to the plaintiffs, Upendra Nath Shukla as an attorney had no right to execute the sale deeds as neither Gangotri Dubey nor his heirs had any right and title over the suit lands. The plaintiffs also challenged the sale deeds executed by Upendra Nath Shukla on the ground of jurisdiction of the Sub-registration office at Mahua in the district of Vaishali who has no jurisdiction to register the land situated at village Ramashalla in the District of Darbhanga. The plaintiffs case is that a portion of land of village Kanhauli has been wrongly included in the sale deed dated 18.11.1989 which never belonged to the executant or his attorney and the same was included with a malajlde intention to play fraud on Mahua Registration Office. The defendants appeared and contested the suit by filing written statement denying and disputing the averments made in the plaint and also disputed the right, title and interest of the plaintiffs over the suit property. However, after filing of the written statement, the plaintiffs-petitioners filed a petition purported to be under Order XII, Rule 6 of the Code of Civil Procedure stating, inter alia, that the defendants in their written statement clearly and unequivocally admitted that the lands of village Kanhauli mentioned in the sale deeds do not belong to the donor or donee of power of attorney allegedly executed by Gangotri Prasad Dubey. The plaintiffs, therefore, prayed for pronouncement of Judgment and decree on admitted facts in favour of the plaintiffs. The Court below after hearing the parties rejected the petition holding that the judgment cannot be pronounced on a partial admission of the defendants inasmuch as several legal and factual pleas have been taken by the defendants and the plaintiffs cannot insist the Court to deliver judgment on a partial admission by the defendants. The said order is impugned in this revision application. 3. Learned Counsel appearing on behalf of the petitioners has assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel submitted that Order XII, Rule 6 of the Code of Civil Procedure is mandatory in nature and when there is unequivocal and clear admission of the defendants in the written statement, the Court has no option but to pronounce judgment. Learned Counsel relied upon the decision of Madhya Pradesh High Court in the case of Shikharchand V/s. Bari Bai -- . 4. Before appreciating the submissions of the learned Counsel it would be usefull to look into the Order XII, Rule 6 of the Code of Civil Procedure which reads as under: Order XII, Rule 6:- -"Judgment on admission.--Where admission of fact, have been made either in the pleadings or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admission. (2) Whenever a judgment is pronounced under Sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced. 5. From perusal of the aforesaid provision it is manifest that the Court may make such order for giving such judgment as he may think fit where the admission of fact have been made in the written statement. The Court may even suo motu pronounce judgment on the basis of admission of facts by the defendants. However the provision of this rule is discretionary and not mandatory. It is, therefore, not incumbent on the Court to pass a judgment on admission in all the cases. The Court may even suo motu pronounce judgment on the basis of admission of facts by the defendants. However the provision of this rule is discretionary and not mandatory. It is, therefore, not incumbent on the Court to pass a judgment on admission in all the cases. A judgment on admission is not a matter of right rather it is a matter of discretion of the Court. Where the defendants raised objection which go to the very root of the case, it would not be proper to exercise this discretion. It is well settled that the power under Order XII, Rule 6 cannot be exercised by the Court where a case involves question which cannot be conveniently tried on motion under this rule. 6. Coming back to the instant case, it will appear from the perusal of the plaint, a copy of which has been annexed as Annexure 1 that the plaintiffs challenged the sale deeds on the ground, inter alia, that the sale deeds have been illegally executed and registered in the Sub-Registration Office of Mahua in the District of Vaishali by manipulating to include one dhur of land of village Kanhauli in order to illegally drag the jurisdiction of the Sub-Registrar of Mahua Sub-Registration Office. For better appreciation of the case, paragraphs 14 and 15 of the plaint are reproduced herein below: 14. That the aforesaid two kebalas are illegal and inoperative inasmuch as the sale deeds have been got registered at Sub-Registry Office Mahua in the district of Vaishali by manipulating to include only one dhur each of land in the said sale-deeds of village Kanhauli to illegally drag the jurisdiction of the Sub-Registrar, Mahua Sub-Registration Office. 15. That the lands of village Kanhauli included in the said two sale deeds never belonged to the executant nor to the attorney and they have been falsely and illegally included in the sale deeds in question only with the intention to play fraud on the Registrar of Mahua, Sub-Registration Officer. 7. From perusal whereof it appears that the defendants have not unequivocally admitted the facts mentioned in paras 14 and 15 of the plaint. 7. From perusal whereof it appears that the defendants have not unequivocally admitted the facts mentioned in paras 14 and 15 of the plaint. In paragraph 23 of the written statement the defendants have categorically denied and disputed the averments made in paragraphs 11 to 14 of the plaint whereas in paragraph 30 of the written statement the defendants have categorically denied and disputed the statements made in paragraph 15 of the plaint. Para 30 of the written statement is reproduced herein below: Para 30. "That the statements made in para 15 of the plaint is totally absurd, baseless and unfounded. The land of Mauza Kanhauli belonged to Birendra Kumar Shukla and holder of the Power of Attorney had full right to transfer the said land of Mauza Kanhauli and there is no question of playing fraud on the registration. In place of Khasra No. 405 of Khata No. 78, the land measuring 1 dhur of khata No. 405, Khasra No. 1265 was written inadvertently in the sale deed although the boundary is correct which covers land of khasra No. 405 of khata No. 78 in the sale deed belonging to Smt. Jamail Shuklain and Smt. Bhawani Shuklain, the ancestors of the vendors of the said Kebala. The ancestors of the Vendors of these defendants had a pucca haveli of 52 rooms standing over khasra No. 406 of khata No. 78 measuring 68 dec. and khasra No. 405 belonged to their ancestor measuring 4 acres 90 dec. of khata 78 but instead of mentioning khasra No. 405 in the sale deed it was inadvertently mentioned as khata No. 405, but the boundary is of khasra No. 405 which was correctly sold to these defendants alongwith the land of Ramsalla. It is absurd to say that the vendor of these defendants have no intention to sell the small strip of land measuring 1 dhur each as has been said in para 16 of the plaint rather 1 dhur each was sold by the aforesaid kebala to these defendants of village kanhauli under definite boundary, which refers to the land of khasra No. 405 of khata No. 78. The entire statements made thereafter in para 17 to 24 of the plaint are totally false, unfounded and baseless. The holder of power of attorney had perfect right to transfer land of Mauza Kanhauli as well as the said lands were never included fraudulently. The entire statements made thereafter in para 17 to 24 of the plaint are totally false, unfounded and baseless. The holder of power of attorney had perfect right to transfer land of Mauza Kanhauli as well as the said lands were never included fraudulently. The provisions of Sec. 28 of the Registration Act was never violated nor the fraud was ever practised to the registration and the two sale-deeds dated 18.11.89 are genuine and valid documents. The said land was never registered at Mahua with intention to give lesser value of the lands refereed in the kebalas rather it was the proper consideration which was paid by these defendants. The kebala dated 18.2.88 by Shiv Prasad Dubey and others was with respect to Gharari land along with house which had a greater value than the land transferred to these defendants. North to khasra No. 9 is the land of khasra No. 2 which never belonged to the plaintiffs and the boundary given in the said sale deeds is apparently wrong. These defendants are in possession over definite portion of the particular khasra as per their purchase through the two registered sale deeds which is morefully detailed in schedule 1 of this written statement. The plaintiffs have never been in possession of the lands in suit and hence in realization they have stated a redundant, story in para 22 of the plaint which has got no bearing with truth. As a matter of fact there is no question of any interference by these defendants in the so called possession of the plaintiffs and there is no question of desisting by these defendants from their rightful claim in the suit property. 8. From bare perusal of the pleadings of the parties it is evident that even if there being admission of the defendants the said admission is not clear and unequivocal. Learned Court below has rightly come to the conclusion that in the written statement several legal and factual pleas have been taken by the defendants and, therefore, the plaintiffs cannot insist the Court to deliver judgment on a partial admission of the facts by the defendants. I fully agree with the reasoning given by the Court below and order is perfectly in accordance with law. 9. I fully agree with the reasoning given by the Court below and order is perfectly in accordance with law. 9. Having regard to the facts and circumstances of the case, and the discussions made above, I do not find any merit in this application which is, accordingly, dismissed.