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2004 DIGILAW 356 (JHR)

Lilawati Sahun v. Madan Sahu

2004-04-02

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the defendant appellant has been preferred against the impugned judgment and decree dated 9.6.1989 and 19.6.1989 passed in Title Appeal No. 1 of 1989 by Shit B.K. Dubey, District Judge, Gumla whereby and whereunder the judgment and decree dated 12.12.1988 and 21.12.1988 respectively passed in Title Suit No. 20 of 1986 by Munsif, Gumla were set aside and appeal was allowed declaring the title in respect of four plots also in favour of the plaintiffs-respondent. 2. The plaintiff-respondent Paras Sahu (since dead) had filed Title Suit No, 20 of 1986 for declaration, of his title in respect of plot Nos. 1704, 2104, 2140, 2201, 2202 and 2745 appertaining to Revisional Survey khata No. 38 fully detailed in Schedule A of the plaint. The Trial Court had decreed the suit in part declaring the title of the said plaintiff-respondent in respect of plot No. 1704 and 2202 only. The plaintiff-respondent filed Title Appeal No. 1 of 1989 whereby his title over plot Nos. 2104, 2140, 2201 and 2745 was declared by the impugned judgment under this appeal and as such title of the plaintiff- respondent on the entire suit land stands declared in his favour. 3. The case of the plaintiff-respondent 1st party (hereinafter referred to as the respondent), in brief, is that khata No. 38 of village Kasira PS Gumla, district Ranchi (now district Gumla) stands recorded in the name of Gujru Sahu and Bigna Sahu and there had been a partition between the said recorded raiyats after the revisional survey and the suit land was allotted in the share of Gujru Sahu exclusively and he was in possession over the same till he was alive. Said Gujru Sahu died leaving behind his widow Most. Said Gujru Sahu died leaving behind his widow Most. Phudan Sahun and one married daughter appellant Lilawati Sahun and they have sold the suit land vide registered sale deed dated 18.3,1959 for valuable consideration for legal necessities and family benefits to respondent Paras Sahu and put him in cultivating possession over the same and since then the respondent is in physical cultivating possession over the same and at the time of the execution of the said sale deed it did contain the correct name, area and boundary with their respective plot numbers but some interpolations have been done by some interested persons behind the back of the respondent in the number of the plots and the sale deed initially contained plot Nos. 1704, 2104, 2140, 2201, 2745 and 2202 but by interpolation plot No. 2104 has been made 2114, plot No. 2140 has been made 3140 plot No. 2201 has been made 2211 and plot No. 2745 has been made plot No. 3745 and the respondent being an illiterate ignorant villager could not know the said fraud at the time of the registration. After the execution and registration of the said sale deed Most. Phudan Sahun died and appellant Lilawati Sahun was living in her matrimonial home in village Ambowa. The respondent came to know about the said interpolation when he filed an application for mutation in the year 1962 before Circle Officer, Gumla but he was mutated in respect thereof on the basis of the possession found in course of local inspection made by the Revenue Authorities over the land in question according to the correct plot, area, boundary and name of the land and also in view of the fact that there was no other plot under khata No. 38 of the appellants with the said boundary, area and name of the land bearing plot Nos. 2114, 3140, 2211 and 3745 and the appellant had knowledge of the said mutation proceeding and there was no objection by her in respect thereof and the plaintiff has perfected his right, title and interest over the entire suit land by adverse possession and ouster by continuing in exclusive physical cultivating possession within the knowledge of the appellant and of all the persons with hostile title since the date of the execution of the sale deed and the title, if any, of the appellant stands extinguished. Thereafter, the appellant at the instigation of some interested persons filed one objection case at Khanapuri stage in Tanaza Case No. 1 of 1977 before the survey authority and in the said objection she has admitted the possession of the respondent over the suit land and her Tanaza was rejected and, thereafter, she filed a Mutation Case for mutation of her name in respect of plot Nos. 2104, 2140, 2201 and 2745 which was also rejected vide order dated 24.9.1980 passed in Mutation Case No. 53 of 1977-78 but the appeal preferred by her was allowed on 10.1.1.985 and as against that the respondent also filed an Appeal No. 45 of 1985-86 before the Additional Collector, Ranchi which was dismissed and, thereafter, the appellant filed a proceeding under Section 144 of the Code of Criminal Procedure which was decided in favour of the respondent. The appellant again filed a proceeding under Section 83 of the Chotanagpur Tenancy Act in respect thereof which was also dismissed. The respondent had sold plot No. 2201, 2202 and 2104 to Shankar Sahu and Hari Sahu and they are in possession over the same. Since a clog has been cast in view of the order aforesaid of the Additional Collector on his right and title and hence the necessity of this suit. 4. The case of the defendant appellant, inter alia, is that she along with her mother Phudan Sahun was in need of money to meet the necessary expenditure and they contacted the respondent to purchase their land bearing plot No. 1704 having area of 89 decimals and plot No. 2202 having area of 78 decimals for Rs. 700/- and they have only transferred the aforesaid two plots and no other plots have ever been sold by them to the respondent and taking undue advantage of the illiteracy he got other plots mentioned in the sale deed by the scribe Anand Swaroop Sahu who happens to be his relative and they have only produced a plain paper to the scribe containing plot Nos. 1704 and 2202 only and they have no knowledge about the other plots mentioned in the sale deed. It is alleged that plot Nos. 1704 and 2202 only and they have no knowledge about the other plots mentioned in the sale deed. It is alleged that plot Nos. 1704 and 2202 have only been sold to the respondent and he was put in possession over the same and the appellant is continuing in possession over the other four plots since the death of her father and her mother had died in the year 1974-75 and after her death she applied for the mutation in her favour in respect of the four plots aforesaid which was allowed and the revision filed against that appeal by the respondent was dismissed. It is alleged that she came to know for the first time that the respondent has manipulated to get other lands mentioned in the sale deed for which she or her mother have never received any consideration amount and the aforesaid four plots never came in possession of the respondents and the question of perfection of right and title in respect of the four plots aforesaid by the respondent by adverse possession does not arise at all. 5. In view of the pleadings of the parties the learned Trial Court has framed the following issues for adjudication in this case. (i) Is the suit as framed maintainable? (ii) Has the plaintiff valid cause of action for the suit? (iii) Is the suit barred by law of limitation? (iv) Has the plaintiff acquired right, title, interest and possession over the plot Nos. 2140, 2201, 2104 and 2745 through registered sale deed 18.3.1959? (v) Has the plaintiff perfected title to plot Nos. 2140, 2201, 2104 and 2745 under khata No. 38 by adverse possession? (vi) Whether the defendant No. 1 Lilawati Devi is in possession of plot Nos. 2140, 2201, 2104 and 2745? (vii) To what relief or reliefs is the plaintiff entitled? 6. While deciding issue Nos. (iv), (v) and (vi) the learned Trial Court on the basis of the evidence on the record has held that only two plots i.e. plot No. 1704 and 2202 having total area of 1.67 acres were actually transferred to the plaintiff-respondent through registered sale deed dated 18.3.1959 and the plaintiff-respondent is not in possession of disputed plot Nos. 2104, 2140, 2201 and 2745 and the plaintiff-respondent has acquired title only in respect of plot Nos. 2104, 2140, 2201 and 2745 and the plaintiff-respondent has acquired title only in respect of plot Nos. 1704 and 2202 having total area of 1.67 acres and he is in possession over the same. The learned Trial Court has further held that the plaintiff-respondent has not acquired title to and possession over plot Nos. 2104, 2140, 2201 and 2745 and the plaintiff-respondent has not acquired title to the aforesaid four plots by adverse possession and there is no apparent interpolation in the sale deed dated 18.3.1959. While deciding issue No. (iii) it has been held that the suit of the plaintiff-respondent is barred by limitation having been filed after three years from the date of the knowledge of the detection of the manipulation in describing the correct number of the plots in the sale deed. In view of the findings aforesaid the learned Trial Court decreed the suit in part declaring title of the plaintiff-respondent only in respect of plot No. 1704 having area of 89 decimals and plot No. 2202 having area of 78 decimals. 7. Aggrieved by the judgment and decree of the Trial Court, the plaintiff- respondent preferred Title Appeal No. 1 of 1989. The lower appellate Court on re-appraisal and re-appreciation of the evidence oral and documentary on the record reversed the judgment of the Trial Court decreeing the suit in part and allowed the appeal and decreed the suit in full. The lower appellate Court came to the finding that the documents are more than sufficient to prove the continuous possession of the plaintiff-respondent from the time of his alleged purchase to till date of the suit over all the six plots where as there is no documentary evidence on behalf of the defendant appellant to prove her possession over the disputed four plots after the execution of the admitted sale deed till the date of institution of this suit. It has also been held that in view of the overwhelming documentary and oral evidence the claim of possession of the plaintiff-respondent over all the disputed plots from the time of execution of the sale deed till the date of institution of the suit has to be accepted. It has also been held that in view of the overwhelming documentary and oral evidence the claim of possession of the plaintiff-respondent over all the disputed plots from the time of execution of the sale deed till the date of institution of the suit has to be accepted. It has also been held that in the present suit the plaintiff- respondent claims the land through the sale deed dated 18.3.1959 which did not pass valid title on the ground of wrong entry i.e. mistake in the plot numbers and ambiguity in the consideration money but since then the plaintiff-respondent being in possession continuously and peacefully for about 18 years has perfected his title by way of adverse possession and he is entitled to a decree for declaration of his title over the aforesaid four disputed plots i.e. plot Nos. 2104, 2140. 2201 and 2745. 8. The defendant-appellant preferred this appeal before this Court and while admitting the appeal for hearing this Court has formulated the substantial question of law vide order dated 24.8.1990 which runs thus : "........Whether the question of limitation as found by the Trial Court was considered by the appellate Court or not?" 9. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the respondent had come to know about the mis- description of the number of the disputed plots appearing in the sale deed dated 18.3.1959 (Ext. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the respondent had come to know about the mis- description of the number of the disputed plots appearing in the sale deed dated 18.3.1959 (Ext. 1/B) in the year 1962-63 when he had filed an application for mutation before the Circle Officer, Gumla and he came to know the fraud having been committed in describing the number of four plots out of the six plots in the said sale deed and the learned appellate Court below has also opined that valid title did not pass in favour of the respondent in respect of the four disputed plots on the ground of mis-description of the aforesaid four plots and ambiguity regarding the payment of consideration money but the respondent did not take any step for rectification of the number of the said four plots in the said sale deed within the statutory period of three years from the date of his knowledge of the said fraud and as such the suit for declaration of his title in respect thereof stands barred by the law of limitation and the learned Trial Court while deciding issued No. (iii) has rightly held that the suit of the respondent is barred by limitation. It has further been submitted that the learned appellate Court below has not adverted to this aspect of the mater in the impugned judgment and he has also not adverted to any finding in respect thereof rather he was illegally swayed in his finding on the basis of the possession of the respondent perfecting his title over the aforesaid four plots and thereby a manifest illegality has been committed in the impugned judgment by the learned, appellate Court below and in this view of the matter the impugned judgment is unsustainable. 10. In contra, if has been submitted by the learned counsel for the respondent that it is an admitted fact that the appellant has executed the sale deed 18.3.1959 (Ext. 10. In contra, if has been submitted by the learned counsel for the respondent that it is an admitted fact that the appellant has executed the sale deed 18.3.1959 (Ext. 1/B) in favour of the respondent and handed over the possession over all the plots which are the subject matter of the said sale deed to the respondent and since then the respondent is in peaceful continuous cultivating possession over the same to the knowledge of the appellant and to all persons and the appellant in her objection petition before the settlement authorities during the course of the Revisional Survey has admitted the possession of the respondent over all the plots which were the subject matter of the said sale deed. It has also been submitted that the respondent had purchased six plots which have been correctly described in the said sale deed by its plot numbers, area, boundary and also by the name by which they are known but subsequently the some interpolation has been made surreptitiously therein and there is no reason for the respondent himself to make any such interpolation and it must have been done by some one vitally interested in the said land and the respondent came to know regarding the said interpolation in the year 1962-63 when he applied for mutation before the competent authority and after proper enquiry and finding the respondent in possession over all the six plots he was mutated in respect thereof and in this view of the matter there was no reason for him to take steps for certification of the said sale deed or to agitate the mater in the competent Civil Court for its rectification as well as for declaration of his title in respect thereof. It has also been submitted that the respondent continued in possession peacefully till 1977 i.e. for a period of 18 years when the appellant for the first time raised an objection before the settlement authorities and by that time the respondent has perfected his title over all the six plots, four of which is in dispute in the case, by their continuous possession over the same and in this view of the matter the finding of the Trial Court that the suit is barred by law of limitation is erroneous and the learned appellate Court below on the basis of the evidence on the record has recorded a finding in the most clear term that respondent being in possession continuously and peacefully for about 18 years has perfected his title by way of adverse possession and he is entitled to a decree for declaration of his title over the four disputed plots and in-view of this finding it is implied that the learned Court of Appeal has considered the finding of the Trial Court regarding the question of limitation. It has also been contented that the appellant has executed a sale deed in respect of six plots and in spite of interpolation in the four plots of the said sale deed their identity is quite established and it is the settled principle of law that where a reference to a survey plot number in a sale deed is a mis-description of the land but the other particulars given in the sale deed describe it correct so that there is no doubt as to its identity, the mis-description in a document may be disregarded and does not render it useless as a document of title and such mis-description does not at all prejudice the title of the vendee. Lastly it has been contended that the question of limitation is a mixed question of fact and law and it is never a substantial question of law and furthermore in a case where a given set of circumstances two references are possible, one drawn by the lower appellate Court is binding on the High Court in Second Appeal and adopting any other approach is not permissible and in exercise of the jurisdiction under Section 100 of the Code of Civil Procedure this Court cannot substitute its opinion for the opinion of the 1st Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court or was based upon inadmissible evidence or arrived at without evidence or it is perverse and here in the case at hand the learned appellate Court below has correctly appreciated the evidence on the record for coming to the finding of the title of the respondent over all the plots which are the subject matter of the said sale deed and the evidence brought on the record on behalf of the appellant was definitely not sufficient to dislodge the evidence of possession of the respondent over all the six plots aforesaid. There is, therefore, no illegality in the impugned judgment. . 11. The respondent had filed the said suit for declaration of his title over the suit plots bearing Nos. 1704, 2202, 2104, 2140, 2201 and 2745 appertaining to khata No. 38. The respondent claims his title in respect thereof by virtue of the sale deed dated 18.3.1959 admittedly executed by the appellant along with her , mother Phudan Sahun and he also claims his possession over the said plots from the date of the execution of the said sale deed. The respondent applied for mutation before the competent authority in respect thereof and at that stage he came to know about the mis-description in respect of plots Nos. 2104, 2140, 2201 and 2745 and according to him an interpolation was made without his knowledge in respect thereof and these plots have been made by such interpolation to read as 2114, 3140, 2211 and 3745 respectively. 2104, 2140, 2201 and 2745 and according to him an interpolation was made without his knowledge in respect thereof and these plots have been made by such interpolation to read as 2114, 3140, 2211 and 3745 respectively. It is pertinent to mention here that there are no plot having the description of 2114, 3140, 2211 and 3745 under khata No. 38. The competent authority allowed the mutation in favour of the respondent in respect of 4.17-1/2 acres of land of plot No. 1704, 2104, 2140, 2201, 2202 and 2745. The respondent continued in possession over the aforesaid plot for 18 years peacefully without any objection, protest and hindrance at the instance of the appellant to her knowledge as well as knowledge of all. At the stage of Khanapuri in the revlsional survey the aforesaid plots were recorded in possession of the respondent and at the Tanaza stage in the year 1977 the appellant filed an objection on 7.7.1977 i.e. after about 18 years and preferred her claim over four of the plots, namely 2104. 2440, 2201 and 2745 out of the aforesaid six plots and in her application she has categorically stated that the respondent is in possession over the said plot. The settlement authorities rejected the application of the appellant. Therefore, the appellant filed an application for her mutation in respect of the said four plots which was rejected but her mutation was allowed vide order dated 10.1.1985 passed in Revenue Appeal No. 25 of 1980-81 by the Deputy Collector, Land Reforms, Gumla and the respondent lost the appeal against that order, before Additional Collector, Gumla vide order dated 17.2.1986. The respondent had filed the said suit prior to the order dated 17.2.1986 for declaration of his title in respect thereof. The learned appellate Court below in the impugned judgment has threadbare discussed the evidence on the record regarding possession of the respondent to the suit in respect of six plots i.e. 1704, 2202, 2104, 2240, 2201 and 2745 and on re appraisal of the evidence came to the finding that the respondent is in possession over all the six plots of khata No. 38 since the date of the execution of the sale deed i.e. 18.3.1959. The learned appellate Court below also came to the finding that the evidence brought on the record on behalf of the appellate regarding her possession thereon is not sufficient to dislodge the evidence of the respondent regarding his possession thereon is not sufficient to dislodge the evidence of the respondent regarding his possession thereon and the learned Court below has rightly, come to the finding that the respondent has perfected his title over the four disputed plots by virtue of his peaceful continuous uninterrupted possession over the same for 18 years when the dispute has cropped up in the year 1977 for the first time before the settlement authorities at the instance of the appellant. There was no reason for the respondent to ask the appellant to rectify the said, sale deed; in view of the interpolation which he had noticed when he had applied for his mutation before the competent authority in the year 1962-63 specially when his mutation was allowed by the said competent authority as by then there was no clog on his title in respect of the suit land and when an adverse order was passed against him finally in the mutation proceeding initiated at the instance of the appellant he came before the competent Civil Court for declaration of his title in respect thereof. Therefore, the question of the suit being barred under law of limitation does not arise at all in this case and the learned Trial Court has misconstrued the matter. The learned appellate Court below has clearly held that the respondent has perfected his title by his continuous possession over them for 18 years quite adversely against the appellant and thus there was no need for him to advent to a specific finding on the question of limitation. It is the settled principle of law that if one enters upon the land against the law he perfects his title by adverse possession by keeping himself in possession for more than the statutory period and he begins possession adverse to the real owner from the date of his "entry. In the case of Angara Bhoiani and Ors. It is the settled principle of law that if one enters upon the land against the law he perfects his title by adverse possession by keeping himself in possession for more than the statutory period and he begins possession adverse to the real owner from the date of his "entry. In the case of Angara Bhoiani and Ors. v. Kanhei Misra and Anr., AIR 1981 Ori 93 , the plaintiff had acquired land through an unregistered sale deed which under the law did not confer title on him but he remained in possession over the land continuously from 1932 to 1963 and it has been observed therein that the plaintiff had perfected his title by way of adverse possession in the case of Collector of Bombay v. Municipal Corporation of the City of Bombay and Ors., AIR 1951 SC 469 it has been observed which runs thus : "The position of the corporation and its predecessor-in-title was that of a person having no legal title but nevertheless holding possessing of the land under colour of an invalid grant of the land in perpetuity and free from pent for the purpose of a market. Such possession not being referable to any legal title it was prima facie for adverse to the legal title of the Government as owner of the land from the very moment the predecessor-in-title of the corporation took possession of the land under the invalid grant." The said ratio was also followed by the Apex Court in the case of State of West Bengal v. The Dalhousie Institute Society, AIR 1970 SC 1778 . Therefore, the learned appellate Court below has rightly come to the finding that the respondent had perfected his title by adverse possession and in this view of the matter the question of limitation as adverted by the Trial Court does require no consideration at all. 12. The matter in controversy may also be viewed by another angle. The sale deed dated 18.3.1959 (Ext. 1/B) executed by the appellant along with her mother describes the plots by their number, area, boundary and also by the name. A critical perusal of the sale deed shows that initially the correct number of the plots were mentioned therein and after interpolation for the reasons, whatsoever, plot Nos. 2104, 2140, 2201 and 2745 were made to read as 2114, 3140, 2211 and 3745 respectively in the said sale deed. A critical perusal of the sale deed shows that initially the correct number of the plots were mentioned therein and after interpolation for the reasons, whatsoever, plot Nos. 2104, 2140, 2201 and 2745 were made to read as 2114, 3140, 2211 and 3745 respectively in the said sale deed. Therefore, it can simply be viewed that there is mis-description of the certified number of the aforesaid four plots in the said sale deed but the other particulars given with regard to these four plots described them correctly so that there is no doubt as to their identity. It is equally pertinent to mention here that aforesaid mis-described plot numbers do not at all appertain to khata No. 38. Therefore, the said mis- description in the sale deed in respect of the certified plot nos. of the four plots in dispute has to be disregarded and in any view of the matter this mis- description does not render the sale deed useless as a document of title and such mis-description equally does not prejudice the title of the respondent in the facts of this case. The Privy Council in the case of The Palestine Kupat Am Bank Co-operative Society Limited v. Government of Palestine and Ors., AIR 1948 PC 207 has observed that in construing a grant of land a description by fixed boundaries is to be preferred. Here in this case as per the given facts the boundary of the aforesaid four disputed plots clearly establishes the identity of the aforesaid plots having their numbers as plot Nos. 2104, 2140, 2201 and 2745. Therefore, it is evidence that the appellant has sold plot Nos. 1704, 2104, 2140, 2201, 2202 and 2745 by virtue of the sale deed dated 18.3.1959 (Ext. 1/B) executed by her along with her mother in favour of the respondent. 13. The learned appellate Court below has correctly appreciated the evidence on the record and it cannot be said that the conclusion drawn by the learned appellate Court below is erroneous being contrary to the mandatory provision of law applicable or its settled position on the basis of pronouncements made by the Apex Court or is based upon inadmissible evidence or arrived at without evidence and is perverse. I, therefore, see no illegality in the impugned judgment requiring an interference therein. 14. There is no merit in the appeal and it fails. I, therefore, see no illegality in the impugned judgment requiring an interference therein. 14. There is no merit in the appeal and it fails. The impugned judgment is hereby affirmed. The appeal is dismissed. No order as to costs in the facts and circumstances of this case.