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2013 DIGILAW 1033 (PAT)

Md. Akil Ahmad v. Baleshwar Pd. Gupta

2013-08-22

MUNGESHWAR SAHOO

body2013
ORDER 1. Heard the learned senior counsel, Mr. Keshav Prasad Srivastava appearing on behalf of the appellant and the learned counsel, Mr. Sudhir Kumar Raj, appearing on behalf of the respondent under Order 41 Rule 11 of the Code of Civil Procedure. 2. The plaintiff-respondents appellants have filed this Second Appeal against the Judgment and Decree dated 29.3.2011 passed by the learned 4th Addl. District Judge Nalanda at Biharsharif in title appeal No.77 of 1992 whereby the learned lower appellate Court allowed the appeal and reversed the Judgment and Decree of the trial Court dated 12.11.1992 passed by the learned Sub Judge I, Biharsharif at Nalanda in title suit No.159 of 1979. 3. The plaintiff respondent appellant filed the aforesaid suit praying for declaration of the plaintiffs right title over the suit land described as “Gha” shown in the map and also prayed for recovery of possession alternatively. 4. The plaintiff’s case in short is that the old holding No.56 corresponding to new holding No.551 of Ward No.7 belong to one Tulsi Devi. She had her house on the portion shown in map as “Ka”. Adjacent to the said house, she had latrine mentioned at “kha”. In the western side, she had vacant land mentioned in the map as “Gha”. She gifted only “ka” portion by registered deed of gift dated 16.8.1925 to one Rajkeshar Mishra. Subsequently, she also gifted the portion “Ga” and “Gha” by Khista deed in the year 1927-28 in favour of Rajkeshar Mishra who reconstructed his house and extended in Block “Ga”. He sold block “Gha” portion of holding No.551 to the plaintiff by registered sale deed dated 9.8.1977 measuring 1 katha 15 dhur. Tulsi Devi died issueless leaving no heir, Dwarika Nath is claiming to be the heir on the basis of forged document. 5. The defendants filed contesting written statement. The main contention is that there was no vacant land of holding No.56 in the western side. By registered Khista deed, title did not pass to the vendor of the plaintiff, namely, Rajkeshar Mishra, therefore, he had no right to transfer the property in favour of the plaintiff in the year 1977. The Khista deed is forged and fabricated. The defendants have purchased the property by registered sale deed dated 27.6.1977 from Dwarika Nath in favour of whom Tulsi Devi had surrendered the property by deed of surrendernama in the year 1945. 6. The Khista deed is forged and fabricated. The defendants have purchased the property by registered sale deed dated 27.6.1977 from Dwarika Nath in favour of whom Tulsi Devi had surrendered the property by deed of surrendernama in the year 1945. 6. The trial Court relying on the Khista deed recorded the finding that the plaintiff have acquired title and they came in possession over the suit land on the basis of their registered sale deed. Accordingly, decreed the plaintiff’s suit. 7. The lower appellate Court came to the conclusion that the plaintiff’s vendor had no right over the suit land, therefore, the sale deed executed by him in favour of the plaintiff did not confer title on the defendant. Kameshwar Mishra has sold the property in favour of the plaintiff who had no title. Tulsi Devi had already gifted 16 anas of holding No.551 to Rajkeshar Mishra by registered gift deed. Accordingly, the lower appellate Court allowed the appeal and reversed the Judgment of the trial Court. 8. The learned senior counsel appearing on behalf of the appellant submitted that the lower appellate Court has misread the gift deed ext.5 and recorded the finding that 16 anas of holding No.551 was gifted to Rajkeshar Mishra whereas in the sale deed, it is mentioned 16 anas building was gifted, the lower appellate Court did not consider the fact that the expert was appointed for examining the signature of Tulsi Devi on the Khista deed (Sada gift deed) ext.2 who found it to be the signature of Tulsi Devi and the trial Court relied upon the same whereas the lower appellate Court wrongly without considering the opinion of the expert reversed the finding. The learned counsel further submitted that by surrendernama deed, property could not have been transferred by Tulsi Devi in favour of the vendor of the defendant. 9. On the other hand, the learned counsel appearing on behalf of the respondent submitted that none of the points raised by the learned counsel for the appellant are substantial question of law. 10. So far the submission of the learned counsel that the lower Court has misread the registered gift deed ext.5 is concerned, it may be mentioned here that this submission do not relate to the legal effect of the terms of a document or construction of document involving applications of any principle of law. 10. So far the submission of the learned counsel that the lower Court has misread the registered gift deed ext.5 is concerned, it may be mentioned here that this submission do not relate to the legal effect of the terms of a document or construction of document involving applications of any principle of law. It is settled principle of law that inference or appreciation of facts from recitals or contents of a document are questions of fact. In the present case after reading the contents of the documents, the lower appellate Court recorded the finding that 16 anas of 551 holding has been gifted to Rajkeshar Mishra. It may be mentioned here that so far this registered gift deed is concerned, it is not disputed by the defendant also. So far the disputed property is concerned, it is Block “Gha”. The plaintiff is claiming over this block “Gha” on the basis of purchase through Rajkeshar Mishra. According to him Tulsi Devi had gifted block “Gha” by sada gift deed. The trial Court relied upon this sada gift deed holding that Rajkeshar Mishra had right to sell the property in favour of the plaintiff. The lower appellate Court held that by sada gift deed, title never passed to the donee. 11. Section 123 of the Transfer of Property Act provides that for the purpose of making a gift deed of immovable property, the transfer must be affected by registered instrument signed by or on behalf of the doner and attested by at least two witnesses. In view of this provision, the finding of the learned trial Court has rightly been reversed by the lower appellate Court. The question will be, therefore, when title did not pass to Rajkeshar Mishra by sada Khista deed how his son could have transferred the block “Gha” in favour of the plaintiff by registered sale deed. Therefore, the lower appellate Court has rightly held that by the registered sale deed, the plaintiff did not acquire title. It is settled principle of law that possession always follows title. In such view of the matter whether Block “Gha” is part of holding No.551 or part of holding No.552, it is immaterial because admittedly, the title is claimed by the plaintiff on the basis of sada gift deed said to have been executed by Tulsi Devi in favour of the plaintiff’s vendors. 12. In such view of the matter whether Block “Gha” is part of holding No.551 or part of holding No.552, it is immaterial because admittedly, the title is claimed by the plaintiff on the basis of sada gift deed said to have been executed by Tulsi Devi in favour of the plaintiff’s vendors. 12. So far the submission that passing of title by surrender deed is concerned, it may be mentioned here that the appellant is the plaintiff, therefore, he will stand or fall on the basis of the strength of his case and, therefore, he cannot be allowed to take advantage of the weakness of the defendant’s case. The learned counsel submitted that the plaintiff is in possession of long period, therefore, the plaintiff have acquired title by adverse possession. So far this submission is concerned, it may be mentioned here that main claim of the plaintiff himself is that he is owner of the property on the basis of the sale deed purchased from son of Rajkeshar Mishra. It is settled principle of law that the claim of title in general law and claim of title on the basis of adverse possession are mutually inconsistent. The Hon’ble Supreme Court in the case of Karnataka Board of Wakf Vs. Govt. of India and Ors. 2004 (3) P.L.J.R. 245 SC has held that a person pleading adverse possession has no equities in his favour. Please of title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. The plaintiff is required to specifically plead on what date he came into possession and what was the nature of his possession. Mere long possession will never constitute adverse possession. 13. In view of the above settled proposition of law, I find that none of the points raised by the learned counsel for the appellant are substantial question of law, therefore, no substantial question of law involved in this Second Appeal. As such this Second Appeal is dismissed at the admission stage itself.