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2011 DIGILAW 2205 (RAJ)

Raghunath v. Board of Revenue

2011-10-13

NARENDRA KUMAR JAIN-I, PRASHANT KUMAR AGARWAL

body2011
Hon'ble AGARWAL, J.—The defendant-appellant has preferred this special appeal against the impugned order dated 01.08.1997 passed by the learned Single judge in SB Civil Writ Petition No.2991/97 whereby the writ petition filed by the defendant was dismissed and the order of the Board of Revenue dated 30.1.1995 was upheld. 2. Brief relevant facts for the disposal of this appeal are that plaintiff-respondent No.3-Smt.Mangi Bai filed a suit for ejectment under Section 183 of the Rajasthan Tenancy Act, 1955 (hereinafter to be referred as "the Act") on 7.6.85 against the defendant in the Court of Sub Divisional Officer, Kota with the averment that the land in dispute is of the khatedari of her brother deceased-Kedar, who in the life time of his father usufructuary mortgaged it in consideration of Rs.700/- about 9 years before in the month of 'Jeth' and in this regard a document (Tehrir) was executed which is in the possession of defendant. It was also averred that on the expiry of period of mortgage, the plaintiff requested the defendant several times to hand over the possession of the land in dispute to the plaintiff and she even offered to pay Rs.700/- to him but the defendant did not hand over the possession to her. It was further averred that after the expiry of period of mortgage, the possession of the defendant on the land in dispute is as a trespasser and he is liable to be evicted from it. It was also submitted that after the death of Kedar, the plaintiff being his sister is sole legal representative and successor and she is khatedar-tenant of the land, whereas the defendant has no title to it and the plaintiff having superior title is entitled to eject the defendant on the basis of her title. It was prayed by the plaintiff that a decree for ejectment may be passed and the defendant may be directed to hand over the possession to the plaintiff. 3. The defendant-appellant filed written statement and the averments made by the plaintiff were denied and he specifically pleaded that the land in dispute was sold by the khatedar/tenant-Kedar to him on 10.7.1965 and a written document was executed in his favour and possession was handed over to him and since then he is cultivating the land as a khatedar-tenant. 3. The defendant-appellant filed written statement and the averments made by the plaintiff were denied and he specifically pleaded that the land in dispute was sold by the khatedar/tenant-Kedar to him on 10.7.1965 and a written document was executed in his favour and possession was handed over to him and since then he is cultivating the land as a khatedar-tenant. It was also averred by the defendant that otherwise also khatedari rights have been accrued to him on the principle of "part performance" as well as adverse possession. Some other objections were also raised in the written statement, but they are not relevant for the disposal of this appeal. 4. On the pleadings of the parties, the learned trial court framed the following issues:- ^^1- D;k okfnuh xzke eqxsuk ds eky dh [k-ua-233 dh 11 ch?kk 12 fc- Hkwfe dh [kkrsnkj gSA ¼okfnuh½ 2- D;k okfnuh ds HkkbZ Jh dsnkj us izkfFkZuh ds firk ds thou dky esa okfnuh ds fgLls [kkrs o dCts dk'r dh [kljk la[;k 323 dh xzke eqxsuk dh 11 ch?kk 12 fcLok Hkwfe 700@& :i;ksa esa 9 o"kZ iwoZ tsB ds efgus esa jgus foy dh FkhA ¼okfnuh½ 3- D;k izfroknh us okfnuh ds dbZ erZck dgus ds i'pkr~ Hkh dCtk ugha NksMk bl dkj.k izfroknh okfnuh dh mä Hkwfe ij ,d Vªsliklj gS rFkk dkfcy csn[kyh gSA ¼okfnuh½ 4- D;k izfroknh us mi;qZä Hkwfe ds [kkrsnkj dsnkj ls mi;qZä Hkwfe fnukad 10-7-85 dks fyf[kr nLrkost ls 700@& :i;s esa [kjhnh Fkh rFkk rc ls gh izfroknh mi;qZä Hkwfe ij crkSj [kkrsnkj dkfct dk'r pyk vk jgk gS vkSj bl le; Hkh dkfct gSA ¼izfroknh½ 5 D;k okfnuh vdsyh dks izLrqr okn ykus dk dksbZ vf/kdkj izkIr ugha gSA ¼izfroknh½ 6- D;k izfroknh /kkjk 19 jkt- Vs-,- rFkk ikVZ ijQksjesUl ds vk/kkj ij mi;qZä Hkwfe dk [kkrsnkj cu pqdk gSA 7- D;k izfroknh dks lu~ 65 esa dkfct pys tkus ls bl Hkwfe ij ,MolZ its'ku dk vf/kdkj izkIr gks x;k gSA ¼izfroknh½ 8- lgk;rkA** 5. Both the parties in order to prove their respective case produced oral as well as documentary evidence and the trial court after hearing the parties decreed the suit vide judgment dated 12.1.87. Both the parties in order to prove their respective case produced oral as well as documentary evidence and the trial court after hearing the parties decreed the suit vide judgment dated 12.1.87. The learned trial court arrived at a conclusion that the defendant has failed to prove that the land in dispute was transferred to him in the year 1965 and he is in possession of the land in dispute. The trial court also held that the possession of the defendant is as a trespasser and he is liable to be ejected. The objection regarding limitation was also rejected. 6. Aggrieved by the judgment and decree passed by the trial court, the defendant filed an appeal being appeal No.266/87 before the first appellate court i.e. Revenue Appellate Authority, Kota but without success and the appellate court dismissed the appeal vide judgment dated 24.11.88 by the reasoning that the document referred by the defendant dated 10.7.65 being unregistered does not transfer any right or title in favour of the defendant and the defendant failed to produce any evidence in support of his plea that the suit is barred by limitation. The appellate court also found that the defendant has failed to prove his possession on the land in dispute. 7. Still feeling aggrieved, the defendant filed second appeal being appeal No. 464/88 before the Board of Revenue, but again without success and the learned Board of Revenue dismissed the appeal vide judgment dated 30.1.95 by the reasoning that the unregistered sale deed dated 10.7.65 is inadmissible in evidence and it conferred no title or right upon the defendant and he has also failed to prove his possession. The Board of Revenue also came to a conclusion that the possession of the defendant on the land in dispute is as a trespasser and as he has failed to prove that he is in possession since 10.7.65, the suit filed by the plaintiff cannot be said to be barred by limitation. 8. The defendant assailed the above orders by way of writ petition before this Court but that was dismissed by the learned Single Judge vide order dated 1.8.97 by finding that there is no perversity in the orders passed by the courts below. Hence, the instant special appeal. 9. 8. The defendant assailed the above orders by way of writ petition before this Court but that was dismissed by the learned Single Judge vide order dated 1.8.97 by finding that there is no perversity in the orders passed by the courts below. Hence, the instant special appeal. 9. The learned counsel for the defendant-appellant submitted that the plaintiff came with a specific case that the land in dispute was mortgaged by her brother to the defendant about 9 years before the suit was filed but she failed to aver when it was mortgaged,. what was the period and what were the other terms and conditions of it and whether a registered deed was executed or not. According to learned counsel in absence of a registered and duly stamped deed, mortgage cannot come into effect but none of the courts below including the learned Single Judge considered that aspect of the matter and did not give finding regarding it. He further contended that the courts below considered the matter as if the defendant has filed a suit for declaration of khatedari rights in the land in dispute on the ground that it was sold to him by the deceased-Kedar on 10.7.65 and as the document dated 10.7.65 is unregistered, no title or right transferred to him and as the defendant has failed to prove his possession from that date, his possession is as a trespasser and consequently he is liable to be ejected. It was also submitted that it was for the plaintiff to prove her case and as she failed to prove the fact of mortgage, the suit was liable to be dismissed and it could not have been decreed only by the reason that the defendant failed to prove his defence. The learned counsel further submitted that according to plaintiff herself a document was executed for consideration of Rs.700/- and that is in possession of the defendant, whereas the defendant produced a document dated 10.7.65 mentioning a consideration of Rs.700/-, but no rejoinder was filed by the plaintiff alleging that the document filed by the defendant is not the same document that was executed between her brother and the defendant. According to learned counsel in absence of specific denial, no other document then one produced by the defendant can be said to be in existence and this document shows that the land in dispute is in possession of the defendant since 10.7.65. It was also submitted that this document is admissible in evidence to prove possession. 10. On the other hand, the learned counsel for the plaintiff submitted that there is no reason to interfere in the concurrent findings arrived at by the courts below. 11. We have considered the submissions made on behalf of the respective parties and the material made available for our perusal as well as the relevant legal provisions. 12. As has already been stated, the plaintiff came with a specific case that the land in dispute was usufructuary mortgaged by his brother-Kedar about 9 years before from the date of the suit for a consideration of Rs.700/- to the defendant and in this regard a 'Tehrir' was also executed which is in the possession of the defendant. The case of the plaintiff was also that after the expiry of the period of mortgage, the possession of the defendant on the land in dispute is as a trespasser and, therefore, he is liable to be ejected. In view of the averments made by the plaintiff, issue No.2 was framed by the trial court and burden was on the plaintiff to prove her averment, but no evidence in this regard was produced by her. Even no sufficient particulars were averred in the plaint when the land in dispute was mortgaged, what was its period and what were other terms and conditions. It is not the case of the plaintiff herself that a registered mortgage deed in the light of Section 59 of the Transfer of Property Act was executed in this regard. In absence of these averments, the plea regarding mortgage taken by the plaintiff was liable to be rejected, but none of the courts below considered the matter in that light and arrived at a finding neither in her favour nor against her. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be affected only by a registered instrument signed by the mortgagor and attested by atleast two witnesses. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be affected only by a registered instrument signed by the mortgagor and attested by atleast two witnesses. In the present case, the plea of the plaintiff was that the land in dispute was mortgaged in consideration of Rs.700/- and thus, in the light of the legal requirement aforesaid, in absence of a registered deed usufructuary mortgage as alleged by the plaintiff could not have come into effect and the averment made by the plaintiff was liable to be out rightly rejected but that point was not considered and no finding was given by any of the courts below. Although, according to Section 43 of the Act, an agriculture land can be usufructuary mortgaged for the maximum period of five years and after the expiry of that period, the mortgage amount shall be deemed to be paid off by the usufruct of the property and the mortgagee is obliged to hand over the possession of the land back to the mortgager and his possession becomes that of a trespasser, but in the present case in absence of a valid document of mortgage, infact no mortgage at all came into existence and the averment made by the plaintiff to the effect that after the expiry of the mortgage period, the possession of the defendant is of a trespasser was liable to be rejected, but this point was also not considered by any of the courts below. The trial court decreed the suit by the reasoning that the defendant failed to prove that the land in dispute was transferred to him in the year 1965 and he is in possession and therefore, the defendant is a trespasser and is liable to be ejected. It appears that the trial court considered the matter as if the defendant filed a suit for declaration of khatedari rights on the basis that the land was sold to him by the deceased-Kedar on 10.7.1965 and by virtue of that sale, khatedari rights have accrued to him. It appears that the trial court considered the matter as if the defendant filed a suit for declaration of khatedari rights on the basis that the land was sold to him by the deceased-Kedar on 10.7.1965 and by virtue of that sale, khatedari rights have accrued to him. Although, the plea to that effect was taken in the written statement and in this regard issue No.4 was also framed by the trial court, but the plea was in defence and no counter claim was made by the defendant praying therein that he may be declared khatedar tenant by the reason that the land in dispute was sold to him by the original khatedar Kedar. In our view, when the plaintiff came with a specific case of mortgage, it was for her to prove that fact and in absence of that her suit was liable to be dismissed. Similarly, the first appellate court also did not consider the point of usufructuary mortgage and committing the same error, the appellate court dismissed the appeal by the reasoning that the document dated 10.7.1965 being unregistered, no right or title can be said to have been transferred in favour of the defendant. The Board of Revenue also did not consider the point of mortgage and by finding that the unregistered sale deed is inadmissible in evidence, held that it did not confer any right or title to the defendant. Both the appellate courts failed to consider that the burden was on the plaintiff to prove her case and when she failed to prove her plea regarding mortgage the suit was liable to be dismissed, even if the defence taken by the defendant was not tenable. It is well settled that the plaintiff has to stand on his own legs and any deficiency in the case of defendant cannot result in decreeing the suit. Although, in the written statement objection regarding limitation was not specifically taken and no separate issue was framed regarding it but plea of adverse possession was taken by the defendant and issue No.7 was framed by the trial court in this regard. The point of limitation was rejected by all the courts below by the reason that the defendant failed to produce satisfactory evidence regarding it. The point of limitation was rejected by all the courts below by the reason that the defendant failed to produce satisfactory evidence regarding it. We are of the considered view that when the plaintiff failed to prove that the land in dispute was transferred to the defendant by way of usufructuary mortgage about nine years before the suit, it was for her to plead and prove that she or her predecessor in title was in previous possession of the land in dispute and was dispossessed by the defendant any time within 12 years before the date of filing of the suit but the plaintiff miserably failed to plead and prove that. The well settled legal position is that if a plaintiff files a suit for possession of immovable property based on previous possession and dispossession of him by the defendant, the period of limitation for filing the suit is 12 years and the period commences from the date of dispossession. In the light of these, facts the suit filed by the plaintiff was barred by limitation but the courts below did not consider the matter in a right perspective. In the writ petition the defendant took several grounds including that the plaintiff failed to prove the plea of mortgage, but the learned Single Judge without considering the matter properly dismissed the writ petition by the reasoning that there is no perversity in the order assailed before it. The learned Single Judge held that in a writ petition filed under Article 226 of the Constitution findings of fact cannot be gone into. In our view, looking to the fact that the very basis of the suit was not considered by any of the courts below, the writ petition could not have been dismissed only by the reason that the findings of fact cannot be interfered in a writ petition. We are of the considered view that when the plaintiff herself failed to prove her case, the suit was liable to be dismissed. A suit can never be decreed by the reasoning that the defendant failed to prove his plea taken in the written statement. 13. Consequently, this special appeal is allowed. We are of the considered view that when the plaintiff herself failed to prove her case, the suit was liable to be dismissed. A suit can never be decreed by the reasoning that the defendant failed to prove his plea taken in the written statement. 13. Consequently, this special appeal is allowed. The impugned order dated 01.08.1997 passed by the learned Single Judge in SB Civil Writ Petition No.2991/1997, the judgment and order dated 12.01.1987 passed by the trial court, judgment dated; 24.11.1988 passed by the first appellate court i.e. Revenue Appellate Authority, Kota and the judgment dated 30.01.1995 passed in second appeal by the Board of Revenue, Rajasthan, Ajmer are, hereby, set aside and the suit filed by the plaintiff-respondent No.3-Smt.Mangi Bai filed under Section 183 of the Rajasthan Tenancy Act is dismissed. No order as to costs.