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2008 DIGILAW 1112 (PAT)

Lal Bahadur Rai v. Kalap Nath Singh

2008-08-07

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S.N. HUSSAIN, J.:- This second appeal, filed by the plaintiff-respondent-appellant against the judgment and decree of reversal passed by the learned lower appellate court, arises out of Title Suit No. 54 of 1989, which was filed by the appellant, for declaration of his title and confirmation of possession and in the alternative recovery of possession and also for injunction and other ancillary reliefs with respect to the suit properties, namely 19 decimals of survey plot no. 4004, Khata No. 1589, Touzi No. 5337, situated in Mouza Digha, Thana No.1, P.S. Digha in the district of Patna detailed in the schedule of the plaint. 2. The said suit was decreed on contest by learned Munsif-II, Patna by judgment and decree dated 24.3.1994 declaring title of the plaintiff and directing recovery of possession from the defendants within three months. Against the aforesaid judgment and decree of the learned trial court, the defendants filed Title Appeal No. 69 of 1994, which was allowed by learned Additional District Judge-III, Patna by judgment and decree dated 26.3.1996 setting aside the judgment and decree of the trial court and rejecting the claim of the plaintiff. 3. The claim of the plaintiff-appellant is that Bulaki Mian was the raiyat of the suit land under the ex-intermediary and, accordingly, Cadastral Survey Khatian (Ext.5) was prepared in the name of Bulaki Mian, against which no objection was ever raised by anyone. It was further claimed that said Bulaki Mian sold the suit land to the plaintiff for Rs. 95.00 by an unregistered deed (termed as Ekrarnama) dated 8.4.1940 (Ext. 15) and put the plaintiff in possession, who started his machinery repair work therein. It was also claimed by the plaintiff that he was duly recorded in the Sarishta of the ex-intermediary and after vesting of Zamindari, Jamabandi was duly prepared by the authorities of the State in the name of the plaintiff with respect to the suit land and he throughout remained in possession of the sun land as exclusive owner thereof. 4. It was also claimed by the plaintiff that he was duly recorded in the Sarishta of the ex-intermediary and after vesting of Zamindari, Jamabandi was duly prepared by the authorities of the State in the name of the plaintiff with respect to the suit land and he throughout remained in possession of the sun land as exclusive owner thereof. 4. On the other hand, the claim of the defendant-respondents is that, no doubt, Bulaki Mian was the raiyat of the suit land under the ex-intermediary, but since the said land was useless and infertile and huge amount of rent had fallen due, Bulaki Mian surrendered the said land to the ex-intermediary before vesting and the ex-intermediary after coming into possession transferred the land to Brahmadeo Narayan Singh in the years 1934 and 1941. It was also claimed by defendant-respondents that after vesting of Zamindari, the heirs of Brahmadeo Narayan Singh sold the suit land to Samta Grih Nirman Sahyog Samiti by registered deed dated 22.6.1983 (Ext. B) and on the said date itself the said Samiti sold the suit land to the defendants by five registered sale-deeds, all dated 22.6.1983 (Exts. 'A' series). It was also claimed that on the basis of the said deeds, the defendants filed a petition for cancellation of Jamabandi of the suit land in the name of the plaintiff, whereafter, the Anchal Adhikari allowed the said petition and cancelled the Jamabandi standing in the name of the plaintiff and entered the names of the defendants in his place. It is also averred that the appellate-authority, namely the Deputy Collector Land Reforms affirmed the said order of the Anchal Adhikari and since then the names of the defendants are recorded in Government registers. It is also claimed by defendant-respondents that a proceeding under the provision of Section 145 of the Code of Criminal Procedure was also going on between the parties with respect to the suit land, but during the pendency thereof aforesaid title suit was filed by the plaintiff. In the said circumstance, it is claimed by defendant-respondents that the plaint1ff had no rightful claim over the suit property and his claim and suit were fit to be rejected. 5. On the pleadings of the parties, the trial, court framed the following issues for deciding the suit:- (i) Is the suit as framed maintainable? In the said circumstance, it is claimed by defendant-respondents that the plaint1ff had no rightful claim over the suit property and his claim and suit were fit to be rejected. 5. On the pleadings of the parties, the trial, court framed the following issues for deciding the suit:- (i) Is the suit as framed maintainable? (ii) Has, the plaintiff got any cause of action for the suit? (iii) Is the suit barred by waiver, estoppel and acquiescence? (iv) Is the suit barred and not triable by this court under the provision of Bihar Co-operative Act? (v) Has the pecuniary jurisdiction to try the suit? (vi) Is the deed which is unregistered genuine one? (vii) Has the defendant any possession over the suit land? (viii) Is the plaintiff any right, title and possession over the suit land? (ix) Is the suit barred by limitation and the defendants have perfected their title in the suit property by adverse possession through their vendors? (x) Is the plaintiff entitled to any relief as claimed for? 6. On the aforesaid issues framed in the suit, eight witnesses deposed on behalf of the plaintiff, who also produced several exhibits i.e. Ext. 1 to Ext. 15. On the other hand, ten witnesses deposed on behalf of the defendants, who also produced several documents i.e. Ext. 'A' to Ext. 'L' series. The said witnesses and exhibits have been fully detailed in paragraphs 4 and 5 of the judgment of the trial court. After considering the pleadings of the parties and the evidence on record, the learned trial court decreed the suit and the claim of the plaintiff by judgment and decree dated 24.3.1994 after arriving at the following findings:- (a) Issue Nos. 3, 4 and 5 were not pressed by any of the parties. (b) Bulaki Mian was, admittedly, raiyat of the suit land, but the defendants' claim of surrender of the suit land by Bulaki Mian to the ex-intermediary has not been proved. (c) There is no question of partition between ex-landlords giving suit land to the Takhta of Brahmadeo Narayan Singh. (d) On the basis of the deed of transfer by heirs of Brahmadeo Narayan Singh, the defendants cannot derive any, right and title in the suit property. (e) The deed (Ext. 15) is a deed of transfer for Rs. (c) There is no question of partition between ex-landlords giving suit land to the Takhta of Brahmadeo Narayan Singh. (d) On the basis of the deed of transfer by heirs of Brahmadeo Narayan Singh, the defendants cannot derive any, right and title in the suit property. (e) The deed (Ext. 15) is a deed of transfer for Rs. 95.00 which is valid and legal, by which right and title of the suit property was transferred by Bulaki Mian to the plaintiff. (f) Defendants' claim title on the basis of purchase and adverse possession but they have failed to prove their title, whereas, the plaintiff has been able to prove his title, hence the defendants have to prove adverse possession. (g) Defendants claim to have purchased in 1983 from persons, who never claimed the suit property and the suit was filed in the year 1989, hence the defendants' possession even according to them was only for six years, therefore, there is no question of adverse possession. (h) Brahmadeo Narayan Singh had acquired in 1934 and 1941 only a portion of Touzi No. 5337 as per the defendant's claim and not the entire Touzi and in his deed the number of suit plot was not even mentioned, hence they had not acquired the suit land. (i) Register-II (Exts. 4 series) produced was with respect to plot no. 4008 and not for plot no. 4004 and it shows interpolation and cuttings. (j) The suit land was never property of Brahmadeo Narayan Singh and sale-deeds (Exts. 'A' series and 'B') are void ab initio creating no title. (k) Defendants are found to be in possession. (I) According to the plaintiff, the defendants are in possession since 1991 i.e. after the order of temporary injunction, whereas, according to the defendants they are in possession since their purchase in the year 1983. (m) Suit is maintainable, plaintiff has got cause of action for the suit and is entitled to the reliefs as claimed for declaration of title and recovery of possession etc. 7. (m) Suit is maintainable, plaintiff has got cause of action for the suit and is entitled to the reliefs as claimed for declaration of title and recovery of possession etc. 7. Against the said judgment and decree of the trial court, the defendants filed Title Appeal No. 69 of 1994 and after hearing both the parties, the learned court of appeal below by its judgment and decree dated 26.3.1996 allowed the title appeal, set aside the judgment and decree of the trial court and rejected the claim of the plaintiff on the basis of the following findings:- (a) Story of purchasing the disputed land through registered sale deed by the plaintiff is not established at all. (b) Sale-deed executed by Bulaki Mian is not valid and genuine and was never acted upon. (c) Plaintiff failed to prove title over the suit land on the basis of Ext. 15, which is merely deed of agreement, which suggested that the land was transferred to the plaintiff. (d) From a perusal of Exts. 4' series, it appears that mention of plot no. 4004 is not free from doubt in Register-II of the sons of Brahmadeo Narayan Singh, but the plaintiff cannot claim benefit of the same. 8. Against the abovementioned judgment and decree of the learned court of appeal below, the plaintiff filed the instant second appeal, which was admitted by this Court on 28.7.1997 formulating the following substantial questions of law:- (i) Whether the lower appellate court committed an error in holding that the plea of the plaintiff-appellant was that he had acquired title by dint of a registered document but led evidenced contrary to the pleading? (ii) Whether the lower appellate court committed an error in reversing finding of the trial court without discussing the evidence of the plaintiff's witnesses respecting his title and possession? 9. So far question no. 1 is concerned, from the pleadings of the plaintiff as well as from the evidence adduced on his behalf, it is quite apparent that he had throughout been claiming that he purchased the suit land from Bulaki Mian for Rs. 95.00 by a deed dated 8.4.1940 (Ext. 15), which was not registered and he never claimed the said deed to be a registered deed, rather he claimed that the said unregistered document was genuine and legal, by which the title over the suit land was duly transferred to him. 95.00 by a deed dated 8.4.1940 (Ext. 15), which was not registered and he never claimed the said deed to be a registered deed, rather he claimed that the said unregistered document was genuine and legal, by which the title over the suit land was duly transferred to him. In the said circumstances, the assumption of the learned court of appeal below that story of purchasing the disputed land through registered sale deed was propounded by the plaintiff, is absolutely wrong, baseless and against the records of the case, which is apparent from the plaint as well as from the evidence both oral and documentary including Ext. 15. 10. From the pleadings of the parties also and the evidence led by them, it is quite apparent that it was not in dispute that Bulaki Mian had executed a deed dated 8.4.1940 (Ext. 15) nor there is any specific finding of the learned court of appeal below that the said deed was not executed by Bulaki Mian, rather the case of the plaintiff and the finding of the learned court of appeal below was merely that the said deed was not a valid and genuine document, which was never acted upon. The said finding of the learned court of appeal below is based merely on the ground that the said deed dated 8.4.1940 (Ext. 15) is a deed of agreement, which suggests that the land was transferred to the plaintiff on 4.3.1940 and that Bulaki Mian had put his mark on a registered deed of partition (Ext. D) as he was illiterate but in the plaintiff's deed (Ext.15), which is an unregistered document, Bulaki Mian had written the execution portion himself mentioning 'Gokul Dhobi in the northern boundary of the suit land in place of the plaintiff'. 11. The learned court of appeal below failed to consider that sale deed dated 8.4.1940 (Ext. 15) was only for a consideration amount of Rs. 95.00 and hence it was not compulsorily registerable under Sections 17 and 18 of the Registration Act, 1908 and hence the said document cannot be legally discarded only on account of not being registered. Furthermore although deed dated 8.4.1940 (Ext. 15) is mentioned as a deed of agreement, but in the said deed it was specifically stated that Bulaki Mian had sold the suit property to the plaintiff for Rs. 95.00 giving the details of the suit properties. Furthermore although deed dated 8.4.1940 (Ext. 15) is mentioned as a deed of agreement, but in the said deed it was specifically stated that Bulaki Mian had sold the suit property to the plaintiff for Rs. 95.00 giving the details of the suit properties. This fact is also supported by several witnesses both oral and documentary adduced on behalf of the plaintiff, which were not satisfactorily disproved by the defendant-respondents. 12. So far question of handwriting of Bulaki Mian on deed dated 8.4.1940 (Ext.15) is concerned, the plaintiff had proved the same by valid evidence. However, the persons, who could have been aggrieved or could have challenged the handwriting/signature of Bulaki Mian, would have been his heirs but none of them came forward to challenge the said deed, whereas, the defendants also could not validly disprove the said fact, except by way of taking help of Ext. D, which is a certified copy of registered deed of partition, in which Bulaki Mian is said to have put his mark. Merely putting a mark/left thumb impression on a document cannot legally lead to a conclusion that the person executing the document is an illiterate person. There may be circumstances, in which a person may put his thumb impression on one document and may put his signature on the other. Hence, in the absence of any other material, or evidence in that regard, the execution by Bulaki Mian of the aforesaid deed dated 8.4.1940 (Ext. 15) cannot be doubted. 13. So far wrong mentioning of one of the boundaries is concerned, it is an admitted fact that remaining three boundaries as well as other details of the land in dispute given in the deed are correct. Hence, merely on that score, the learned court of appeal below wrongly discarded deed dated 8.4.1940 (Ext. 15), which was clearly executed by Bulaki Mian. 14. It is an admitted fact that Bulaki Mian was the raiyat of the suit land under the ex-intermediary and the same was proved by Cadastral Survey Khatian (Ext. 5) also. Hence, merely on that score, the learned court of appeal below wrongly discarded deed dated 8.4.1940 (Ext. 15), which was clearly executed by Bulaki Mian. 14. It is an admitted fact that Bulaki Mian was the raiyat of the suit land under the ex-intermediary and the same was proved by Cadastral Survey Khatian (Ext. 5) also. So far the claim of the defendants that Bulaki Mian surrendered the suit land to the ex-intermediary is concerned, they have miserably failed to prove the said claim of surrender or ouster by any piece of evidence, whereas, the plaintiff has been able to prove that Bulaki Mian was throughout in possession of the suit property as raiyat till it was transferred to the plaintiff in the year 1940. Hence, when the defendants were unable to prove their claim of dispossession or ouster of Bulaki Mian, there was no question of any partition between the ex-intermediaries as raiyats giving suit land to the Takhta of Brahmadeo Narayan Singh. This claim of the defendants cannot be allowed to stand either on the basis of evidence adduced by the parties or on the basis of principle of law. In the said circumstances, the defendants cannot legally derive any right or title in the suit property on the basis of any transfer made by heirs of aforesaid Brahmadeo Narayan Singh by registered deeds dated 22.6.1983 (Ext. B. and Ext. A series). 15. So far acquisitions made by Brahmadeo Narayan Singh in the years 1934 and 1941 are concerned, they are with respect to only a portion of Tauzi No. 5337, which is a very big Tauzi even according to the claim of the defendants and in the said deeds of 1934 and 1941, number of the suit plot was not even mentioned. Hence, there can be no legal presumption that by the said acquisitions Brahmadeo Narayan Singh acquired the suit land. In the said circumstances, Brahmadeo Narayan Singh or his heirs had no right, title or interest in the suit properties and hence the registered sale deed dated 22.6.1983 (Ext.B), said to have been executed by heirs of Brahmadeo Narayan Singh in favour of Samta Grih Nirman Sahyog Samiti, is ab initio void creating no title at all. 16. It is interesting to note that said Samta Grih Nirman Sahyog Samiti is said to have purchased the suit land on 22.6.1983 (Ext. 16. It is interesting to note that said Samta Grih Nirman Sahyog Samiti is said to have purchased the suit land on 22.6.1983 (Ext. B), but on the same day i.e. 22.6.1983 they sold the suit lands to the defendants by five registered sale-deeds, all dated 22.6.1983 (Annexures A series). Hence, sale-deeds dated 22.6.1983 (Exts. A series) also appear to be flimsy documents executed merely with a view to support the aforesaid void sale deed (Ext. B) by the heirs of Brahmadeo Narayan Singh, who had no right, title or interest at all. In the said circumstances, the defendants clearly did not acquire any right, title or interest from the said deeds (Exts. A series and Ext. B). Furthermore, both the learned courts below have specifically found that Register-II (Exts. 4 series) was with respect to plot no. 4008 and not with respect to plot no. 4004 (suit land) and it showed interpolation and cutting. Hence, the defendants cannot legally take advantage of the said exhibits, which were in the name of Brahmadeo Narayan Singh. 17. Furthermore the plaintiff had been able to prove that after his purchase of plot no. 4004 in the year 1940, he was in exclusive possession of the same, which was proved by Zamindari receipts as well as Government receipts, whereas, defendants failed to show by any material that the heirs of Brahmadeo Narayan Singh were ever in possession of the suit lands i.e. plot no. 4004. Although according to the plaintiff's claim, the defendants are in possession thereof since 1991 i.e. after the order of temporary injunction, but according to the defendants they are in possession since their purchase in the year 1983. Hence, even assuming the claim of possession of the defendants to be correct they remained in possession only for about six years prior to the filing of the suit in the year 1989, hence there was no question of any adverse possession of the defendants. 18. Hence, even assuming the claim of possession of the defendants to be correct they remained in possession only for about six years prior to the filing of the suit in the year 1989, hence there was no question of any adverse possession of the defendants. 18. With respect to the second question raised by the plaintiff-appellant, it may be noted that all the aforesaid aspects of the matter had been fully considered by the learned trial court in view of the pleadings of the parties, evidence adduced by them and the principles of law applicable thereto, but the learned court of appeal below committed serious errors in reversing the finding of the trial court without even discussing the evidence of the plaintiff's witnesses with respect to his title and possession and without relating that the claim of the defendants was illegal and frivolous and was based on documents which were ab initio void. 19. In the aforesaid facts and circumstances, this second appeal is allowed, the impugned judgment and decree passed by the learned Additional District Judge-III Patna dated 26.3.1996 in Title Appeal No.69 of 1994 are set aside, the judgment and decree passed by the learned Munsif-II, Patna dated 24.3.1994 in Title Suit No. 54 of 1989 are hereby affirmed and the claim and suit of the plaintiff are hereby decreed. 20. However, since no one has appeared on behalf of the respondents when the second appeal was taken up for hearing even after repeated calls, there will be no order as to costs.