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2011 DIGILAW 1302 (MP)

Lilawati v. Vishram

2011-11-17

K.K.TRIVEDI

body2011
Judgment ( 1. ) THIS Second Appeal under section 100 of the Code of Civil Procedure is by plaintiff against the reversing judgment and decree passed by the First Appellate Court. The appellant/plaintiff filed a suit for possession of land bearing Khasra No. 95 Area 2.14 Dismil of village Sonaura, Tehsil Rampur Bagheian District Satna against the respondents alleging that in fact the aforesaid land was mortgaged with the respondent No. 1 and when the appellant tried to get the said mortgage redeemed, the respondents refused to deliver the possession therefore, the suit was required to be filed. It was contended that the respondents have started saying that the suit land was purchased and, therefore, there was no requirement of returning the possession after redemption of mortgage. It was further alleged that the respondent No. 1 was trying to grab the land of the appellant therefore, suit was required to be filed. ( 2. ) THE respondents/defendants contested the suit categorically contending that the suit land was in fact given in partition and the said land was purchased by respondent No. 1 by un-registered sale deed for an amount of Rs. 225/-. From the date of purchase the respondent No. 1 was continuously in possession of the said suit land and was cultivating the same. THEre was no question of any acquisition of right by inheritance in favour of the appellant/plaintiff as the suit land was already sold by the mother of the original appellant/plaintiff and this fact was well within the knowledge of the appellant. Since the suit land was purchased from the member of the family mutation of the land was not got done in the revenue papers. When the emergency was enforced in the country and instructions were issued by the Revenue Authorities, the respondent No. 1 got his name mutated over the land in suit in the revenue records. It was categorically denied that the suit land was ever mortgaged with the respondent No. 1. A plea of adverse possession was also raised. The trial Court after framing of the issues recorded the evidence of the parties. The definite finding was given by the learned trial Court with respect to the plea of mortgage raised by the appellant as Issue No.2 was specifically framed in the following manner:- "2(a) Whether the plaintiff has mortgaged the suit land with respondent No. 1? The trial Court after framing of the issues recorded the evidence of the parties. The definite finding was given by the learned trial Court with respect to the plea of mortgage raised by the appellant as Issue No.2 was specifically framed in the following manner:- "2(a) Whether the plaintiff has mortgaged the suit land with respondent No. 1? (b) Whether the plaintiff is entitled to get the said mortgage redeemed?" ( 3. ) THE trial Court after recording the evidence categorically held that this issue was not proved by the appellant/plaintiff. Admittedly no appeal was filed against such finding of the learned trial Court by the appellant/plaintiff. Such a finding is therefore final and binding on the appellant and she could not travel beyond the same. ( 4. ) IF the plea of mortgage raised by the appellant/plaintiff was not proved, whether the suit for simplicitor possession was well within time or not, this particular aspect was not examined by the trial Court. The appellant/plaintiff has never disputed that the suit land was transferred by an un-registered sale deed dated 9-3-1962 (Exh. D-4). Though the same was not a registered document but this has been used only for the purposes of demonstrating as to how the respondent No. 1 came in possession of the land in suit. This particular aspect was also not disputed by the appellant/plaintiff that the suit land was in possession of the respondent No. 1. However, no definite date could be given by the appellant in her entire plaint, indicating as to how and when the appellant was dispossessed from the land. Her plea was only this much that the land was mortgaged with the respondent No. 1 in the year 1973-74 and this particular fact was not found proved by the trial Court. According to plaintiff, respondents were in possession of the said land for a long time which according to her were in fact 'tisovarsh'. This itself is enough to demonstrate that in fact deliberately the appellant/plaintiff has not given definite date on which the respondent No. 1 had taken possession of the suit land. Admittedly, the suit was filed on 1-11-1980. IF the plea that the suit land was purchased by respondent No. 1 is to be accepted then the possession of respondent No. 1 on the suit land would be right from the year 1962. Admittedly, the suit was filed on 1-11-1980. IF the plea that the suit land was purchased by respondent No. 1 is to be accepted then the possession of respondent No. 1 on the suit land would be right from the year 1962. The law of limitation prescribes limitation for filing of suit for possession which is 12 years. From 1962 till 1980, no litigation was brought by the appellant/plaintiff and therefore, the suit as filed by the appellant was barred by limitation. This particular aspect was not examined by the trial Court and the suit for possession was decreed in favour of the appellant, though a categorical finding was given that the suit land was not mortgaged by the appellant with the respondent No.1. Finding recorded by the trial Court in paragraphs 20 and 21 in its judgment categorically show that marshalling of evidence of the appellant/ plaintiff was rightly done. It was found that the appellant/plaintiff was though stating to have best evidence available but failed to produce such evidence in proof of the fact that the land in suit was ever mortgaged by her with the respondent No. 1. As has been mentioned hereinabove, the appellant/plaintiff has not challenged such findings of the trial Court in the appeal and as such it is not open to examine the validity of such findings of the trial Court. ( 5. ) AS the suit was partially decreed by the trial Court in favour of the appellant/plaintiff only with respect to the possession of the suit land, a regular First Appeal was filed by the respondent No. 1 before the lower Appellate Court. Learned lower Appellate Court examined the entire evidence of the parties and reached to the definite conclusion that the learned trial Court erred in decreeing the suit in favour of the appellant/plaintiff for grant of possession when the claim relating to mortgage of the suit land made by the appellant/plaintiff was not found proved. The learned lower Appellate Court went to examine as to whether the suit land was taken in possession by the respondents/defendants in the year 1974-75 or prior to that. The learned lower Appellate Court went to examine as to whether the suit land was taken in possession by the respondents/defendants in the year 1974-75 or prior to that. The lower appellate Court reached to the conclusion that as per the document available on record it was to be held that the respondent No. 1 was put in possession of suit land some time in the year 1961-62 and since the suit was filed in the year 1980 that is after a period of 12 years, the suit itself was barred by limitation. Learned lower Court thus reached to the conclusion that the finding recorded by the learned Civil Court with respect to the issues No. 1, 5, 7 and 8 were not correct and the said findings were set aside. ( 6. ) LEARNED counsel for the appellant/plaintiff has contended that the entire findings have been given by the learned lower Appellate Court only on the basis of one unregistered document (Exb.D-4) which is said to be a sale deed for the suit land executed by the mother of the appellant. It is contended by the learned counsel for the appellant that as per the provisions of section 17 of the Indian Registration Act, 1908, a document of transfer could not have been treated to be valid document of transfer unless it is registered. It is contended that the value of the suit property was said to be Rs. 225/- on the date of sale which is more than Rs.100/- and, therefore, the registration of a document was necessary. It is further contended by the learned counsel for the appellant that as per section 49 of the Registration Act, such a document could not have been read in evidence at all. LEARNED counsel for the appellant has put his reliance heavily on a decision rendered by the Apex Court in the case of Suraj Lamp and Industries Private Limited through Directors vs. State of Haryana and another, 2009 (4) MPLJ 315. LEARNED counsel for the appellant has contended that in view of the specific law laid down by the Apex Court in paragraph 8 of the report, the registration of such a document of transfer was must. True it is that registration of a document was necessary. LEARNED counsel for the appellant has contended that in view of the specific law laid down by the Apex Court in paragraph 8 of the report, the registration of such a document of transfer was must. True it is that registration of a document was necessary. However, only a defence plea was raised by defendant No. 1 that the land in suit was purchased by him and it was not mortgaged by appellant/plaintiff as claimed. He was not asking for any other thing except indicating that he was in possession of the land in suit from the date the said document was executed. Thus, if the appellant was of the view that such a document was not to be accepted at all or that such was not a valid document, it was necessary for the appellant to make amendment in the plaint and challenge the validity of such document. This was not done. On the other hand, the appellant utterly failed to prove the fact with respect to the mortgage of the suit land. The learned lower Appellate Court has considered only one aspect whether the suit filed by the appellant was within limitation, for the purposes of grant of decree of possession, as was granted by the trial Court or whether the suit was liable to be dismissed on this count. Factum of delivery of possession to the respondent No. 1 was not categorically proved by the appellant/plaintiff, On the other hand, the respondent No. 1 firstly claimed that he took possession of the land in suit when the un-registered sale deed (Exhibit D-4) was executed in his favour and there was no question of any mortgage of the suit land by the appellant/plaintiff with the respondent No. 1. In alternate, the respondent No. 1 claimed that since he is in possession of the suit land right from the year 1961-62, this fact was well within the knowledge of appellant/plaintiff and more man 12 years of period has expired therefore, he has perfected his title over the land in suit by adverse possession. In alternate, the respondent No. 1 claimed that since he is in possession of the suit land right from the year 1961-62, this fact was well within the knowledge of appellant/plaintiff and more man 12 years of period has expired therefore, he has perfected his title over the land in suit by adverse possession. This particular aspect was examined by the learned lower Appellate Court and it has been said that, if the appellant was not in possession of the suit land as she herself was asking for decree of possession of the suit land, she could not point out from which date the land in suit was taken in possession by the respondent No. 1, it is to be inferred on the basis of evidence of the parties that the respondent No. 1 was in possession of the land from the date when he alleges that the land was purchased by him through Exhibit D-4. That being so, in the opinion of this Court un-registered document Exhibit D-4 was not relied for settlement of a claim of the respondent No. 1 by the lower Appellate Court. Therefore, there was no question of making application of the bar of section 49 of the Registration Act for reaching to this particular finding with respect to the possession of the suit land by respondent No. 1. The law laid down by the Apex Court as relied by the learned counsel for the appellant does not help the appellant. ( 7. ) LEARNED counsel for the appellant has further relied on the decision of this Court in the case of Natthu Khan vs. Komal and others, 2010 (1) MPHT 265 . It is contended that the Court below was required to decide the admissibility of the document (Exhibit D-4) in terms of the provisions of sections 17 and 49 of the Registration Act and then only to record any finding. As has been discussed hereinabove the Courts below were not relying on such a document to grant any benefit to respondent No. 1 on the strength of such a document. Therefore, it would not require to conduct an enquiry whether the registration of such a document was necessary or not and whether such a document was admissible in evidence or not ? Therefore, it would not require to conduct an enquiry whether the registration of such a document was necessary or not and whether such a document was admissible in evidence or not ? The next contention of the learned counsel for the appellant is that unless the duty is paid on such a instrument it is not to be admitted in the evidence. For the said purposes the learned counsel for the appellant has relied upon the decision of this Court in the case of Narbada Prasad Agrawal vs. Tarun Bhawasar, 2009 (1) MPLJ 176 . In view of the aforesaid discussion, the law laid down by this Court as relied by the learned counsel for the appellant is not helpful to him. ( 8. ) THE learned Lower Appellate Court has very categorically examined the statement of witnesses and has reached to the definite finding that the suit of the appellant was barred by limitation and that no decree of possession could have been granted to the appellant. In view of the specific finding reached by the learned Lower Appellate Court, this Court do not find any error in appreciation of the evidence of the parties and provisions of law by the learned Lower Appellate Court. Resultantly, the appeal fails and is hereby dismissed but with no order as to costs. Appeal dismissed.