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2000 DIGILAW 1002 (MP)

Nanku @ Nagendra Singh v. Ramdarash Singh

2000-09-13

ARUN MISHRA

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JUDGMENT Arun Misra, J. 1. This second appeal has been preferred by the defendants aggrieved by reversal of judgment and decree passed by the learned trial Court. 2. The suit was filed by the plaintiff for declaration of title and permanent injunction in respect of open piece of land "Ka Kha Aa Ba Sa Da" purchased by registered sale deed dated 10-11-1986 from one Bhagwandas. Defendants were trying to dispossess the plaintiff. Hence, suit was filed. Defendants in their written statement denied the plaint allegations and contended that Bhagwandas was not the owner and in possession of the land in dispute, whereas the possession was that of Defendants and no sale-deed with respect to the land in question was executed by Bhagwandas in favour of the Plaintiff. 3. The trial Court dismissed the suit. The Appellate Court has reversed the judgment and decree. Hence, this Second Appeal has been filed before this Court, which has been admitted on 4-3-1997 by this Court on the following substantial questions of Law: i. "Whether from the sale-deed Ex. P-1 and from the evidence on record plaintiff has proved his title over the suit lands? "ii. Whether in the absence of any finding that plaintiffs vendor has right to sell the property, suit of plaintiff can be decreed? 4. Learned counsel for the defendants/appellants has submitted that it is a case where title of vendor of the plaintiff has not been established by specific evidence. He has further submitted that PW-3 Shiv Karan Singh who is an attesting witness has not stated the size of the property sold. He has also submitted that another attesting witness; Suman Singh has not been examined in the instant case. It is further submitted that the deposition of Jaldevi DW-6 has not been properly appreciated by the Court below. His further submission is that affidavit of deceased Bhagwandas Ex. D1 has not been properly appreciated. He had mentioned land in question was not sold. Counsel placed reliance on 1985 MPWN Short Note 380, Nihalchand vs. Danishali. He has further submitted that the judgment of reversal without adverting to the reasoning, is not permissible approach available to the first Appellate Court and he has pressed into service the decision in case of Keluni Dei vs. Kanhei Sahu and others, AIR 1972 Ori 28 . Counsel placed reliance on 1985 MPWN Short Note 380, Nihalchand vs. Danishali. He has further submitted that the judgment of reversal without adverting to the reasoning, is not permissible approach available to the first Appellate Court and he has pressed into service the decision in case of Keluni Dei vs. Kanhei Sahu and others, AIR 1972 Ori 28 . It is further submitted that weakness of the defence in such case is not material plaintiff has to prove his own case and the approach of the Court below is vitiated. Reliance is placed on the decision in case of Dayawanti Bai vs. Iqbal Mohammed Khan, 1978 (2) MPWN 323. 5. In the instant case the only documentary evidence on record is sale- deed in disputes Ex. P/1. It is apparent from the sale-deed that sale deed is not only for piece "KA KHA AA BA SA DA", but, the other property, house, court-yard and area in between Court-yard and house was also sold besides the land in question. The title of Bhagwandas to alienate the entire suit property is not in dispute. What is in dispute is the piece of land "KA KHA A A BA SA DA" shown in the plaint map. There is evidence on record to show that Bhagwandas was the owner and property was that of Bhagwandas' ancestors and Bhagwandas has executed registered sale-deed which is not disputed in its entirety, that is supported by oral evidence led by the plaintiff. 6. The submission of learned counsel for the appellants Shri K.L. Mangal is that Shiv Karan an attesting witness has not deposed as to what property was actually sold. An attesting witness is not supposed to give about the details, he has simply to support execution of the sale-deed. Execution of the sale-deed cannot be disputed, nor has been disputed by the widow of the deceased Bhagwandas namely; Jaldevi (DW-6). She has clearly deposed that certain property was sold by Bhagwandas to the plaintiff, but, she was unable to say what actual piece of property was alienated. 6-A. I find no force in the submission of learned counsel that the affidavit of deceased Bhagwandas ought to have been accepted. As a matter of fact Ex. D/1 is an affidavit of the deceased Bhagwandas executed after parting with interest in the property by the registered sale-deed executed in favour of plaintiff. 6-A. I find no force in the submission of learned counsel that the affidavit of deceased Bhagwandas ought to have been accepted. As a matter of fact Ex. D/1 is an affidavit of the deceased Bhagwandas executed after parting with interest in the property by the registered sale-deed executed in favour of plaintiff. No admission could be made after parting with the interest it could be relevant if made during subsistence of the interest no admission is admissible in derogation to the right of purchaser if made after selling the property to him as per section 18 of the evidence Act. In the case of Shaffiullah Khan vs. Abdul Wahab, 1963 MPLJ SN 171 : 1963 JLJ SN 14 such an admission was held to be inadmissible and was rejected. 7. The weakness of defence or burden of proof looses its much of importance when both the parties have led the evidence. plaintiff has been able to prove his title. 8. It is the effect of the finding recorded by the court below that Bhagwandas was having right to execute sale-deed and had executed the sale- deed. He was in possession of property and has placed the plaintiff in possession. The possession by itself is presumptive proof of title in the absence of other evidence. The oral evidence is led to prove the title. Particularly in the absence of documentary evidence from the side of the Defendant the entire case hinges on oral depositions. Learned Court below has adverted to evidence and reasons are based on appreciating the evidence. The approach of trial Court was wrong while drawing adverse inference for nonproduction of other attesting witness namely; Suman Singh. Ex. D/1 to sale- deed, the trial Court also considered affidavit which is not admissible piece of evidence which was important piece of inadmissible evidence considered to dismiss the suit. 9. Questions raised are purely questions of fact. The plaintiff's suit has been decreed on the strength of sale-deed Ex. P/1. 10. I find no merit in the present appeal. Same is dismissed. Parties are directed to bear their own costs.