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2009 DIGILAW 418 (MP)

SUMATRA BAI v. ABDUL WAHID

2009-04-01

ARUN MISHRA

body2009
Judgment ( 1. ) THE appeals have been preferred by the plaintiffs as well as by defendant Sumatrabai aggrieved by judgment and decree dated 20. 1. 1994 passed by Addl. District Judge, Sohagpur, in regular civil appeal no. 4-A/91 which was filed against the judgment and decree dated 31. 1. 1991 passed by Civil Judge Class-I, Camp Pachmadhi, in civil suit no. 3-A/87. ( 2. ) THE plaintiff Abdul Wahid filed the instant suit on the strength of registered sale-deed dated 3. 6. 1969 with respect to house situated in survey no. 93/207 purchased by him from one Chhotelal s/o dehla Katiya for a sum of Rs. 600/ -. ( 3. ) PLAINTIFF submitted that he obtained the vacant house from Chhotelal. He applied for mutation before the Cantonment Board, Pachmadhi. The house was mutated in the name of plaintiff abdul Wahid. Smt. Gindiabai was inducted by him as a tenant at Rs. 10/- per month. Gindiabai died on 11. 10. 86. After her death the possession was obtained by the plaintiff. Thereafter on 3. 12. 1986 defendant no. 1 Sumatrabai had illegally entered into the possession of the house without permission and knowledge of the plaintiff of which a written complaint (Ex. P. 3) was submitted at P. S. Pachmadhi. Police did not take any action. Notice was served to vacate the house. On failure to vacate the house by defendant no. 1, suit was filed. ( 4. ) DEFENDANT no. 1 in her written statement denied the plaints averments and contended that she was in occupation as tenant. Gindiabai was not the tenant of plaintiff. Gindiabai had executed a will dated 9. 10. 1986 in her favour, even otherwise she took the plea of adverse possession and Gindiabai remained in possession in her life time and she enjoyed the property as owner. Puran was husband of Gindiabai. Puran and chhotelal were brothers. ( 5. ) THE trial court decreed the suit on the ground that Chhotelal was ostensible owner of the property. He had sold the property to Abdul Wahid in the year 1969 and thereafter mutation was obtained by Abdul Wahid. Gindiabai was found to be the tenant at Rs. 10/- per month. The defendant no. 1 had encroached upon the premises on 3. 12. 86. The adverse possession was not found to be proved. He had sold the property to Abdul Wahid in the year 1969 and thereafter mutation was obtained by Abdul Wahid. Gindiabai was found to be the tenant at Rs. 10/- per month. The defendant no. 1 had encroached upon the premises on 3. 12. 86. The adverse possession was not found to be proved. On appeal being preferred the appellate court has found that Gindiabai was not the tenant of Abdul wahid, she was in occupation in her own rights and she perfected the right by virtue of adverse possession for more than 12 years. The suit with respect to portion in possession of Gindiabai which she has been bequeathed in favour of sumatrabai by will dated 3. 6. 1969, has been dismissed. Since Natthu had compromised the matter with the plaintiff and had handed over the key in the court,the plaintiffs suit has been decreed with respect to the portion in possession of Natthu. Aggrieved thereby the appeals have been preferred by plaintiff Abdul Wahid as well as by defendant Sumatrabai - second appeal no. 117/94 has been preferred by Sumatrabai whereas second appeal no. 185/94 has been filed by Abdul Wahid. ( 6. ) SHRI Amanullah Usmani, learned counsel for plaintiff, Abdul Wahid, has submitted that judgment and decree passed by the appellate court with respect to the portion in possession of gindiabai which later on came in the possession of sumatrabai is illegal. The finding with respect to adverse possession of Gindiabai has been arrived at and without discussion of evidence. He has also submitted that the property was purchased by Abdul Wahid from ostensible owner Chhotelal, thus, by virtue of section 41 of the Transfer of property Act, Chhotelal has conveyed the proper title to Abdul Wahid, on the strength of that he had obtained the mutation also; consequently the partial dismissal of the suit by the appellate court be set aside and suit be decreed in favour of Abdul Wahid. ( 7. ) SHRI A. D. Deoras, learned Sr. ( 7. ) SHRI A. D. Deoras, learned Sr. counsel with shri R. K. Jaiswal, counsel appearing on behalf of defendant Sumatrabai, has assailed the judgment and decree passed by the trial court contending that suit with respect to the portion which was in actual possession of Gindiabai, has been rightly dismissed, as she had right, title or interest by virtue of adverse possession as found by the appellate court, Chhotelal could not be said to be ostensible owner; there was no pleading made by the plaintiff Abdul Wahid with respect to purchase having been made by ostensible owner of the property and there is nothing on record to indicate that Chhotelals title was proved over the property in question, in the suit for possession it is necessary to prove it which has not been proved in the instant case. The adverse possession has not been established. Learned Sr. counsel has placed reliance on the decision rendered in Sabrani v. Muniya, 1967 RN 507. He has further submitted that it is a case where merely on the basis of agreement entered into by tenant Natthu, the plaintiffs suit could not have been decreed with respect to the portion which was in his possession; this question has not been determined by the appellate court in the instant case that Natthu was inducted as tenant by sumatrabai. He could not have surrendered the tenancy to plaintiffs. Learned Sr. counsel has submitted that Natthu was inducted as tenant as per pleading made in the plaint itself by sumatrabai during pendency of the suit, thus, it was not open to him to surrender the tenancy right in favour of the plaintiff Abdul Wahid, thus, the decree passed in favour of the plaintiff by the appellate court is liable to be set aside. ( 8. ) I have heard the learned counsel for the parties at length, have gone through the evidence on record and the judgment and decree passed by the appellate court. ( 9. ) IN my opinion, the appellate courts judgment cannot be said to be proper approach to decide the appeal and the questions raised. ( 8. ) I have heard the learned counsel for the parties at length, have gone through the evidence on record and the judgment and decree passed by the appellate court. ( 9. ) IN my opinion, the appellate courts judgment cannot be said to be proper approach to decide the appeal and the questions raised. It was argued before the appellate court that chhotelal had no right to alienate the property in question though this question was posed for consideration but no finding has been recorded that Chhotelal had the right to sell the property, merely on the strength of sale-deed executed by chhotelal in favour of Abdul Wahid and mutation having been obtained by Abdul Wahid, the finding of title has been given in favour of Abdul Wahid but finding of title of Chhotelal is missing. It was necessary to decide the question of title of vendor in the suit filed by the purchaser. The law in this regard is well settled in Sabrani v. Muniyas case (supra ). This Court has held in para-9 thus :- "9. All that the respondents have succeeded in proving is that they purchased the land from govinddas Dubey who had himself obtained his title from Parwatsingh P. W. 2 but the possession of none of them over the land has been proved. The execution of sale-deed alone would not be enough to prove the title of the respondent unless the title of parwatsingh has been satisfactorily established" In the instant cases, as the appellate court has failed to determine the aforesaid question of proof of derivative title, it cannot be said that the judgment and decree are sustainable. ( 10. ) THE finding with respect to adverse possession has been arrived at without consideration the ingredients of adverse possession nec vi, nec clam nec precario. In respect of adverse possession it was necessary to the appellate court to appreciate the evidence and thereafter to decide question of adverse possession. It was necessary to find out the actual owner of the property, whether the property was owned by Chhotelal and Puran, the evidence indicates that R. P. Acharya (DW-1) has stated that Puran was owner of the property, whether the name of Gindiabai was recorded, whether Chhotelal, Puran and Gindiabai claimed the right title under common person was also necessary to be gone into, that has not been done. It was also necessary to go into the question whether chhotelal was ostensible owner of the property, whether his name was recorded as owner which aspect has not been gone into though it was finding recorded by the trial court that Chhotelal was the ostensible owner of the property, correctness of aforesaid finding has not been adverted to, whether the pleading for that was necessary was also required to be considered along with the evidence with respect to ostensible ownership, which aspect has not been gone into by the appellate court. ( 11. ) THE approach of the appellate court cannot be said to be proper as merely on the basis that natthu has compromised the matter with the plaintiff, though he was inducted as tenant as per plaints averment by Sumatrabai during pendency of the suit. It was necessary to the appellate court to go into the question whether it was open to the tenant to surrender the tenancy in favour of the plaintiff Abdul Wahid, his possession will be on whose behalf whether Sumatrabai or plaintiff. A person in adverse possession/ possession can also induct tenant, whether tenant could have surrendered the tenancy only in favour of his landlord Sumatrabai, was necessary to be gone into, thus, judgment and decree passed by the appellate court cannot be said to be proper, same is liable to be set aside. ( 12. ) RESULTANTLY, the appeals are allowed. The judgment and decree passed by the appellate court is set aside. Appellate court is directed to decide the appeal after going into the aforesaid aspects and to render fresh decision in accordance with law. The parties are also directed to appear before first appellate court on 20. 7. 2009. No fresh notice will necessary to be issued to Abdul wahid and Sumatrabai as the date is given in presence of their respective counsel. Parties to bear their own costs as incurred of these appeals.