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2012 DIGILAW 1371 (PAT)

Madan Prasad v. Mostt. Malati Devi

2012-09-25

MUNGESHWAR SAHOO

body2012
Mungeshwar Sahoo, J. – The defendants have filed this Second Appeal against the judgment and decree dated 16.1.2002 passed by the learned 2nd Additional District Judge, West Champaran, Bettiah in Title Appeal No.39 of 1994 whereby the Lower Appellate Court allowed the appeal and reversed the judgment and decree dated 7.6.1994 passed by learned Sub Judge I, Bettiah in Title Suit No.122 of 1991. 2. The plaintiffs-respondents filed the aforesaid suit praying for declaration of title and confirmation of possession over plot no.737 and 741 detailed in Schedule I of the plaint and for permanent injunction. According to the plaintiffs, the suit plots were recorded in the name of Mahadeo Nonia s/o Bahadur Nonia in municipal survey. Mahadeo Nonia was in possession during his lifetime. He died leaving behind his son, Dhebar Mahato who came in possession over the said land. This Dhebar Mahato sold the suit plots by registered sale deed dated 20.7.1990 in favour of the plaintiff and after receiving consideration amount delivered possession thereof to the plaintiffs. However, because of mistake, instead of 8 ½ cubits it has wrongly been mentioned as 5 ½ cubits in the sale deed. When it was detected, Dhebar Mahato executed another deed of rectification dated 21.2.1991 and rectified the mistake on said deed of 20.7.1990. Dhebar Mahato also subsequently sold the remaining 3 dhurs to the plaintiffs by registered sale deed dated 21.2.1991 of plot no.741. The plaintiffs amalgamated the same. The defendants have got their double storied pucca house. The defendant no.1 pressed hard on the plaintiffs to execute a sale deed with respect to half of the suit land but when the plaintiffs refused, the defendant no.1 disclosed that he has executed a deed of gift in respect of the suit plots in favour of his wife. The defendant no.1 also gave Xerox copy of gift deed dated 9.2.1982 and then the plaintiffs became surprised. The plaintiffs came to know from the contents of the gift deed that a sale deed dated 13.11.1957 was executed by Tildhari Mahato and others to Rajkali Devi, mother of defendant no.1. When the plaintiffs saw the sale deed, he found that the sale deed dated 13.11.1957 is with respect to plot no.641 and 647 measuring 3 katthas 9 dhurs of land as such, the said sale deed has got no concern with the suit plots. When the plaintiffs saw the sale deed, he found that the sale deed dated 13.11.1957 is with respect to plot no.641 and 647 measuring 3 katthas 9 dhurs of land as such, the said sale deed has got no concern with the suit plots. The said lands mentioned in sale deed of the year 1957 were purchased by Tildhari Mahato and his brother, Rupdhari Mahato by registered sale deed dated 22.3.1939 and in fact, the sale deed is not related with the suit plot. Therefore, the gift deed is sham and furgi deed of gift wherein illegally the suit plots have been included. 3. According to the defendants, the daughter of defendant no.1 namely Malati Devi is married with the plaintiff in the year 1961 and, therefore, the plaintiff is son-in-law of defendant no.1. The mother of the defendant no.1 had purchased the land by registered sale deed dated 13.11.1957 wherein the boundary has been mentioned and still today, the boundary is same but because of mistake, plot numbers have been mentioned wrongly. The vendors are Tildhari and Rupdhari. When the mistake of plot numbers were detected, a correction deed was written on 26.4.1958 and in that correction deed, the correct plot numbers were mentioned as plot no.736, 737, 738 and 741. The mother of defendant no.1 died in the year 1970 leaving behind only defendant no.1 as her son. The daughter died unmarried, therefore, the defendant no.1 is the rightful owner of the property. Mahadeo Nonia and Dhebar Mahato have no concern with the suit land from the year 1939 nor they were in possession of any portion of the suit land. Dhebar Mahato never executed any sale deed. The plaintiff never came in possession. 4. The trial court dismissed the plaintiff’s suit relying upon the correction deed. On appeal, the Appellate Court allowed the appeal and the judgment and decree of trial court were set aside. The Appellate Court decreed the plaintiff’s suit. 5. On 23.5.2003, the following substantial questions of law were formulated: – I. “Whether the Appellate Court committed error in holding the title over the lands in favour of the vendor of the plaintiff on the basis of municipal survey records when admittedly no revenue records are there in favour of the plaintiff’s vendor? II. 5. On 23.5.2003, the following substantial questions of law were formulated: – I. “Whether the Appellate Court committed error in holding the title over the lands in favour of the vendor of the plaintiff on the basis of municipal survey records when admittedly no revenue records are there in favour of the plaintiff’s vendor? II. Whether the Appellate Court committed error in not considering the plea of adverse possession as raised by the defendant when admittedly defendant has claimed title and possession since 1957?” 6. At the time of hearing on 24.8.2012, the following substantial question of law was framed by the court on being satisfied after some argument of the appellants: – “Whether the Lower Appellate Court could have reversed the finding of the trial court regarding the description of the boundary of the suit land mentioned in the deed of the year 1939 and 1957 and also that the vendor of the plaintiff namely Dhebar Mahato or his father, Mahadeo Nonia had no title over the suit property without considering the reasons assigned by the trial court and meeting the reasons and, therefore, the judgment is vitiated or not?” 7. The learned senior counsel, Mr. Manan Kumar Mishra appearing on behalf of the appellants submitted that the Lower Appellate Court has wrongly discarded the documentary evidences produced by the defendants-appellants i.e. Exhibit F, G and H which clearly indicates that Rajkali Devi applied for permission to construct house over the suit land and permission was accorded and further, Exhibit F shows that the plot numbers mentioned in the sale deed has been corrected. Because of discarding these documents by the Lower Appellate Court on flimsy grounds, the judgment of the Lower Appellate Court is vitiated as such, is liable to be set aside. The learned senior counsel next submitted that the trial court has rightly held that the correction deed is not required to be registered but the Lower Appellate Court wrongly reversed the same. Moreover, there is no title documents produced by the plaintiffs in support of their claim of title, therefore, the Lower Appellate Court would not have relied upon the case of the plaintiffs. The defendants also challenged that Dhebar is not the son of Mahadeo but the courts below did not give any finding to that effect. Moreover, the above evidence clearly shows that the appellants are in possession of the suit land. The defendants also challenged that Dhebar is not the son of Mahadeo but the courts below did not give any finding to that effect. Moreover, the above evidence clearly shows that the appellants are in possession of the suit land. Therefore, the Lower Appellate Court should have considered the case of adverse possession but decreed the plaintiff’s suit without considering question of adverse possession. 8. On the other hand, the learned senior counsel, Mr. Surendra Kumar Singh appearing on behalf of the respondents submitted that the rectification deed is sada deed. Therefore, the trial court wrongly relied on the said document. By the sale deed of the year 1957, only two plots were sold but in the garb of correction by Exhibit F, the appellants got mentioned 4 plots including the suit plot. The learned senior counsel further submitted that according to the written statement itself, the defendants, Rajkali Devi died in the year 1970 vide paragraph 9 but the application seeking permission to make construction was filed by Rajkali Devi on 2.2.1989 in the municipality which has been marked as Exhibit G. Considering all these aspects of the matter, the Lower Appellate Court disbelieved the case of the defendants. Different plot number has been mentioned in registered sale deed of the year 1957, therefore, the terms and conditions including the plot numbers would not have been varied or altered or subtracted or added by mere execution of sada document without being registered. The trial court, therefore, wrongly relied on this unregistered correction deed. The Lower Appellate Court, therefore, did not agree with the trial court reasonings and held that by this unregistered correction deed, it cannot be said that the defendants acquired title to the suit property. 9. Admittedly, the suit plots have been purchased by plaintiffs through registered sale deed. The claim of the defendants-appellants is based on firstly, the sale deed of the year 1957 and secondly, on the basis of possession. So far the registered sale deed of the year 1957 is concerned, it is with respect to different plots. In the said sale deed, the suit lands were never sold. According to the appellants, subsequently it was corrected by correction deed, Exhibit F. This Exhibit F is sada document. In this Exhibit F, the numbers of plot have been mentioned as 736, 737, 738 and 741. In the said sale deed, the suit lands were never sold. According to the appellants, subsequently it was corrected by correction deed, Exhibit F. This Exhibit F is sada document. In this Exhibit F, the numbers of plot have been mentioned as 736, 737, 738 and 741. From perusal of the Lower Appellate Court judgment, it appears that the case of the plaintiff has been considered i.e. the mistake is in the patta deed dated 22.3.1939, Exhibit A and, therefore, the mistake was carried in sale deed of the year 1957. It may be mentioned here that heirs of Nakched Khan executed the patta deed in the year 1939. If any mistake was there in the patta then the mistake occurred in the year 1939. In such circumstances, only the vendor of Exhibit A could have corrected the same. The purchasers, Tildhari and Rupdhari were not competent to execute Exhibit F and moreover, Exhibit F is sada document which will not vary or alter plot numbers of registered sale deeds. 10. So far possession is concerned, according to the appellants, the mother of defendant no.1, Rajkali Devi applied for permission to construct house. The application has been produced by the defendant which has been marked as Exhibit G. This Exhibit G is dated 2.2.1989 filed by Rajkali Devi whereas in paragraph 9 of the written statement, the specific case of the defendant is that the mother of defendant no.1 died in the year 1970. Therefore, it appears that the defendants were forging the documents and were filing the same before the different authorities. The other documents Exhibit D, D/1, H, I, I/1, all are documents relating to the municipality which are in the name of Rajkali Devi of the year 1973, 1989 and 1990. When Rajkali died in the year 1970, there was no question of applying for permission by Rajkali Devi in the year 1989 arises. 11. In view of the above facts, in my opinion, the defendants did not come to the court with clean hand. Exhibit F is unregistered document. In the sale deed, 2 plots were mentioned but in the garb of correction deed, 4 plots have been included. All these papers produced by the defendants-appellants show the intention of the appellants to garb the property and this is the case of the plaintiffs. Exhibit F is unregistered document. In the sale deed, 2 plots were mentioned but in the garb of correction deed, 4 plots have been included. All these papers produced by the defendants-appellants show the intention of the appellants to garb the property and this is the case of the plaintiffs. Considering all these aspects of the matter, the Lower Appellate Court has not relied on these documentary evidences produced by the appellants. 12. So far the submission that the question of adverse possession was not considered by the Appellate Court, it may be mentioned here that there is neither any pleading nor any evidence nor any issue raised before the courts below. Moreover, when the appellants were not found in possession of the property, there is no question of adverse possession arises. 13. So far the submission that except the municipal record of right, no revenue records have been produced is concerned, it may be mentioned here that the municipal record of right has got presumption of validity. In the case of Vishwa Vijay Bharati vs. Fakhrul Hassan and others, AIR 1976 Supreme Court 1485, the Apex court at paragraph 14 has held that it is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title. Admittedly, the revenue record of right is in the name of father of Dhebar Mahato. Unless it is shown that the entry is fraudulent, the court cannot make any enquiry with regard to that. 14. So far the submission that Dhebar Mahato was not the son of Mahadeo Nonia is concerned, it appears that it is an evasive denial on the part of the defendants. Therefore, on the basis of mere evasive denial, the presumption attached to a registered document (sale deed in favour of the plaintiff) cannot be rebutted. 14. So far the submission that Dhebar Mahato was not the son of Mahadeo Nonia is concerned, it appears that it is an evasive denial on the part of the defendants. Therefore, on the basis of mere evasive denial, the presumption attached to a registered document (sale deed in favour of the plaintiff) cannot be rebutted. In the sale deed, he has been described as the son of Mahadeo Nonia. 15. So far the submission that the trial court found that the boundary mentioned in 1939 sale deed and 1957 sale deed are same is concerned, it may be mentioned here that the case of the plaintiff is that the suit land was never purchased by the defendant and the sale deed of the year 1957 relates to different plot and this fact is apparent from the registered sale deeds. Merely because there is some semblance of similarity in the boundary, it cannot be said that the suit lands were sold. From perusal of the Lower Appellate Court judgment, it appears that this submission was also raised before the Lower Appellate Court. The Lower Appellate Court considering all the aspects of the matter, found that the lands purchased through the sale deed of the year 1957 is entirely different plot situated at different place. In my opinion, therefore, so far this finding is concerned, it is pure finding of fact based on evidences and materials. 16. So far non-meeting of reasonings of the trial court is concerned, the Lower Appellate Court has stated that the Exhibit G, H and I cannot be relied upon because Rajkali Devi died in 1970 and likewise, Exhibit F, the correction deed is sada deed, therefore, the reasons assigned by the Appellate Court is acceptable. Merely because some reason has not specifically been mentioned by the Appellate Court, it cannot be said that the judgment is vitiated. 17. In the case of Arumughamz vs. Sundarambal, AIR 1999 Supreme Court 2216, the Apex Court relying upon the earlier decision, the case of V. Ramachandra Ayyar vs. Ramalingam Chettiar, AIR 1963 Supreme Court 302 held that second appellate court cannot interfere with the judgment of the first appellate court on the ground that the first appellate court had not come to the close grip with the reasonings of the trial court. It is open to the first appellate court to consider the evidence adduced by the parties and give its own reasonings for accepting the evidence on one side or rejecting the evidence on other side. In Ramachandra Ayyar’s case (supra), the Apex Court has held that an erroneous finding of fact is different thing from an error or defect in procedure. The High court cannot interfere with the conclusion of fact recorded by the Lower Appellate Court however erroneous the said conclusions may appear to be to the High Court. 18. In view of the above position of law and the facts and circumstances of the case, the substantial questions of law formulated are answered against the appellants. Accordingly, this Second Appeal is dismissed. No order as to cost.