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2013 DIGILAW 1081 (PAT)

Jai Prakash v. Raj Kumar Prasad

2013-09-03

MUNGESHWAR SAHOO

body2013
CAV JUDGMENT The original plaintiff had filed this First Appeal against the Judgment and Decree dated 16.4.1981 passed by the learned Addl. Subordinate Judge-II, Munger in Title Suit Nos. 14 of 1973/19 of 1980. On the death of original plaintiff, Keshav Sao, the present appellant have been substituted. 2. The plaintiff filed the suit for declaration of his title and non-title of the defendants on the suit land. The plaintiff also prayed for eviction of the defendant and recovery of possession of the suit land and also prayed for arrears of rent and damages. According to the plaintiff late Nawab Abdul Wahab Khan was, Jamindar and Sheikh Abdul Sattar, Sheikh Abdul Hai and Sheikh Abdul Haque, 3 brothers were the tenant in occupation of the suit land. On the death of landlord, his heirs became the Jamindar. In Money Suit No. 154 of 1947, a decree was passed against the tenants and in execution case No. 1 of 1948, the heirs of ex-landlord Abdul Wahab Khan purchased the property. Sale certificate was issued on 11.8.1949 and delivery of possession was given to the auction purchaser on 19.11.1949 and accordingly, the auction purchaser came in Khas possession of the property. There was partition in the year 1951 and the suit property fell in the share of Mostt. Bibi Maimuna Sultana Begum. She let out the suit land to Raghunandan Prasad Singh who was keeping a coal depot on the suit land which is vacant land. Subsequently, in the year 1963 Mithoo Ram took the suit land on rent who continued as tenant till April, 1970. Thereafter, the defendant first party were inducted as tenant on monthly rent of Rs. 30/- only with respect to half portion only. A deed of agreement was entered into between Bibi Maimuna Sultana Begum and Ram Kumar Prasad. Subsequently, on the permission the defendant first party occupied the rest half portion and was using it as coal depot. The plaintiff agreed to purchase the suit land from Sultana Begum on 15.7.1971 but before execution of the sale deed Bibi Maimuna Sultana Begum died. However, her heirs executed and registered a sale deed on 12.4.1972 with respect to suit property. The plaintiff purchased the suit property for his personal use and occupation and, therefore, he requested the defendant to vacate the suit land but they did not vacate. However, her heirs executed and registered a sale deed on 12.4.1972 with respect to suit property. The plaintiff purchased the suit property for his personal use and occupation and, therefore, he requested the defendant to vacate the suit land but they did not vacate. In reply to the notice, the defendant denied relationship of landlord and tenant. 3. The defendant appeared and filed contesting written statement. Their main contention is that Bibi Maimuna Sultana Begum never inducted them as tenant. The defendants were legal representative in possession .on the suit land for more than 12 years on their own right. They denied the alleged agreement and partition of the year 1951. According to them, the sale deed is not genuine and it is without consideration. The defendants got the land from the recorded tenants 20 years ago and they are continuing in possession of the suit land without any objection from any quarter as such have acquired title by adverse possession. The defendant has constructed on the suit land and also has inducted tenants. 4. On the basis of the aforesaid pleadings, the trial Court framed various issues. Issue No. 5 was as to whether claim of the plaintiff that he acquired title on the suit land is correct and the defendant first party and also second party have no right title on the suit land. Issue No.6 is as to whether the plaintiff is entitled for recovery of possession of the suit land after dispossessing the defendant. These two issues were the main issues which were decided by the Court below recording a finding that the defendants are in possession at lest since 1956 to the knowledge of everyone so they have acquired title by adverse possession. Accordingly, the trial Court dismissed the plaintiff's suit. 5. Earlier the First Appeal was heard by me on 15.9.2010 and 16.9.2010 and Judgment was pronounced in open Court on 30.9.2010 whereby this First Appeal was allowed. Thereafter, an application being Civil Review No. 174 of 2011 was filed by the heirs of respondent No. 4 under Order 41, Rule 21 read with Section 151 C.P.C. praying for setting aside the Judgment and rehearing of the appeal on the ground that the respondent No.4 died during the pendency of appeal on 5.2.2006 but no substitution was made, therefore, the Judgment passed in First Appeal is a nullity. After hearing the parties by terms of order dated 17.7.2013 the Judgment passed by me on 30.9.2010 was set aside and the First Appeal was restored to its original file. The petitioners in the application were substituted in place of the deceased respondent No.4 and thereafter I heard both the side again and a fresh Judgment is being passed. 6. The learned counsel, Mr. Arvind Kumar Tiwary appearing on behalf of the appellant submitted that the trial Court has wrongly dismissed the plaintiff's suit on the ground that the defendants have acquired title by adverse possession. The learned counsel further submitted that the plaintiffs have produced the documentary evidences, Exts.-11, 12, 14, 15, in support of the fact that the suit property was auction sold and delivery of possession in favour of the decree holder in Money Suit No. 154 of 1947 was delivered. The trial Court without discussing the legal position about adverse possession has held that the defendants have acquired title by adverse possession without considering the fact that the plaintiff have produced the oral evidences and also documentary evidences in support of the fact that by registered sale deed dated 12.4.1972, the suit property was purchased by plaintiff Kesho Sao and that in the suit land Mithoo Ram was tenant and thereafter Ashrfi became the tenant. After him, his son Ram Kumar is carrying coal depot business for last 10 years. According to the learned counsel, the plaintiff acquired title through registered sale deed and possession was delivered to him. This fact has been supported by the witnesses also. The plaintiff also produced Ext.-17 and Ext.-18 and Ext.-10 in support of the fact that the property fell in the share of plaintiff's vendor in partition and the plaintiff's vendor sold the same in favour of the plaintiff. The trial Court discarded the evidences without any cogent reason and recorded the finding that the defendants had acquired title by adverse possession. The learned counsel further submitted that the defendants claimed title alleging that the suit land was given to them by Shaffaitullah in the year 1947 and subsequently they claimed title on the basis of adverse possession. The learned counsel submitted that if they came in possession with permission of Shaffaitullah how their possession will become adverse but the trial Court held that the defendants have acquired title by adverse possession. The learned counsel submitted that if they came in possession with permission of Shaffaitullah how their possession will become adverse but the trial Court held that the defendants have acquired title by adverse possession. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff's suit be decreed. 7. On the other hand, the learned senior counsel, Mr. Dhruv Narain, appearing on behalf of the respondent submitted that the property is recorded in the name of defendant's ancestor in the cadastral survey khatiyan. Therefore, the presumption is in favour of the defendants. The so-called auction sale alleged by the plaintiff is not according to the provisions of Bihar Tenancy Act, Chapter-XIII. Therefore, the documents produced in support of the rent suit, decree, the sale certificate and the delivery of possession all, are void documents. Because these documents are contrary to law, the same could not have been relied upon and the learned trial Court has rightly not relied upon those documents. Since the question is pure question of law, the same can be raised at any stage. In spite of said decree and documents the defendants continued in possession of the property and after vesting, they became the raiyat in such circumstances, the trial Court has rightly recorded the finding that the defendants have acquired title by adverse possession. The learned counsel submitted that Chapter-XIII of the Bihar Tenancy Act was inserted in 1938 and after completion of 12 years, the defendants became occupancy raiyat. The Judgment of the lower appellate Court, therefore, is legal and valid and the same cannot be interfered within this First Appeal. The learned counsel submitted that the First Appeal be dismissed with cost. 8. In view of the above rival contentions of the parties, the main point for consideration is as to whether the plaintiff has been able to prove his title and entitled for the recovery of possession over the suit property or whether the defendants have acquired title by adverse possession? 9. According to the plaintiff, there was partition between landlords and heirs and in Money Suit No. 154 of 1947, a decree was obtained by the landlord, i.e., widow, son and daughters of Nawab Abdul Wahab Khan. 9. According to the plaintiff, there was partition between landlords and heirs and in Money Suit No. 154 of 1947, a decree was obtained by the landlord, i.e., widow, son and daughters of Nawab Abdul Wahab Khan. In execution of the said decree in Execution Case No. 191 of 1948, the suit property was auction purchased by the heirs of Nawab Abdul Wahab Khan and sales certificate was issued and delivery of possession was given to the auction purchaser. In 1951 there was partition and in that partition property fell in the share of Bibi Maimuna Sultana Begum who let out the property in favour of the tenants. She ultimately entered into agreement to sell the property. This agreement was executed on 15.7.1971 but prior to execution of the sale deed she died. However, her legal heirs executed a registered sale deed on 12.4.1972 in favour of the plaintiff. On the contrary, the allegations of the plaintiffs were denied and according to them, defendants had acquired title by adverse possession. In support of their respective cases, the parties have adduced oral as well as documentary evidences. 10. The plaintiffs witnesses P.W. 2, P.W. 7 have stated that originally the suit land belong to Nawab Saheb. Mithoo Ram had a coal depot on it and after him Ashrfi and his son Raj Kumar has coal business since last 10 years. P.W. 8, P.W. 9 and P.W. 12 have all stated the same thing regarding the plaintiff's case and inductment of the tenant who are doing business of coal in the suit property. P.W. 12 has produced the documents from the office of Nawab Saheb which was called for by the Court. He has stated that Nawabjada and his brothers has filed the rent suit which was decreed against the tenant and in the execution case, the property was auction sold. The decree holder purchased the same and obtained delivery of possession through Court. After obtaining possession, there had been partition between the heirs of Nawabjada and the suit property was allotted to Bibi Maimuna Sultana Begum. He has proved Ext.-4 series, Ext.-8, the agreement. He has admitted that plaintiff Kesho Sao purchased property. P.W. 16 has also supported the case of the plaintiff and P.W. 17 is the plaintiff himself. From perusal of the oral evidences, it appears that the witnesses have supported the case pleaded by the plaintiff. He has proved Ext.-4 series, Ext.-8, the agreement. He has admitted that plaintiff Kesho Sao purchased property. P.W. 16 has also supported the case of the plaintiff and P.W. 17 is the plaintiff himself. From perusal of the oral evidences, it appears that the witnesses have supported the case pleaded by the plaintiff. The trial Court on flimsy grounds discarded the evidences of P.W. 18 and P.W. 12 P.W. 16, 17. It appears that the trial Court discarded the evidence of P.W.18 on the ground that he refused to sign, therefore, Mahavir signed on it and P.W. 18 has not written anything on the write (sic), he is also unable to say boundary. In my opinion, on these grounds, his evidence could not have been disbelieved. On the basis of this evidence, the lower Court has delivered the delivery of possession. The approach of the Courts below appears to be not acceptable. It is settled principle of law that the act of the judicial process is presumed to be correct unless it is otherwise shown or proved by the other side. The plaintiff produced the Ext.-14, the suit registered, Ext.-15, auction sale certificate, Ext. -12, the order whereby Nazir was directed to deliver possession to the auction purchaser and Ext.11 is the report of delivery of possession. In view of these overwhelming documentary evidences, the Court below could not have disbelieved these documentary evidences by discarding the oral evidences produced by the plaintiff. The trial Court discarded the evidence of P. W. 12 because she stated that in his presence partition did not took place. P.W. 16 and P. W. 17 were also disbelieved on the ground that they were not present at the time of partition whereby the suit land was allotted to Bibi Maimuna Sultana Begum. Exts.-10, 17 and 18 are the papers relating to Bibi Maimuna Sultana. Begum in municipality and the rent receipt which clearly proves that Bibi Maimuna Sultana Begum was mutated with respect to the suit property and there is no other evidence against the said evidence, in other words, no other person is claiming that in partition, the property fell in the share of other co-sharer. Ext.-1 is the sale deed of the year 1972. It is a registered sale deed. This sale deed was never challenged by the defendants. Ext.-1 is the sale deed of the year 1972. It is a registered sale deed. This sale deed was never challenged by the defendants. It is settled principle of law that a registered sale deed is presumed to have been validly executed and the onus is on the other side to prove the fact that it was not acted upon or a sham transaction as has been held by the Hon'ble Supreme Court in (2009)5 SCC 713 Vimal Chand Ghevar Chand Jain vs. Ramakant Eknath Jadoo. It is also settled principle of law that possession follows title. Here, the case of the plaintiff is that the defendants were tenant. According to the defendant, they came in possession after permission of Shaffaitullah. 11. The submission of the learned counsel that the provision of Chapter-XIII of Bihar Tenancy Act was not complied with, therefore, the auction sale or the sale certificate or the decree in money suit is void is concerned, it may be mentioned here that the defendants never challenged the decree or the delivery of possession passed in the money suit. The defendants never challenged the auction sale. Now, therefore, in this collateral proceeding, the defendants cannot be allowed to say that the Judgment or the auction sale or the delivery of possession or the issuance of sale certificates are all void documents. In this relation, it may be mentioned here that the Hon'ble Supreme Court in the case of Indrajeet Singh vs. State of Punjab, 2012(1) BLJ 42(SC), has held that even if the order is void or voidable, the same requires to be set aside by competent Court and in collateral proceeding, the same cannot be declared to be void. 12. In view of the above settled proposition of law in this suit, the decree or auction sale and delivery of possession cannot be declared to be void at the instance of the defendant, particularly when they never changed the same by initiating any appropriate proceeding. I, therefore, find no force in the submission of the learned counsel for the respondent that these documents produced by the plaintiffs in support of the decree in money suit, auction sale, sale certificate and delivery of possession are void, document because the defendants never challenged the same and this is a collateral proceeding wherein these questions raised by the respondents are not involved that too after such a long period. 13. 13. So far the recording of the defendant's ancestor in cadastral survey record of right is concerned, in my opinion, only because the suit property is recorded in the name of the defendant's ancestor, it cannot be held that they continued to be in possession. It is settled law that presumption of a states of safaris (sic)-state of affairs?) is backward and forward unless the other is proved. Here even though the ancestor of the defendant were tenant in cadastral survey record of right, the plaintiffs have been able to show that they were dispossessed by the auction sale and delivery of possession in execution of the money decree. 14. The defendants have adduced the oral evidences and documentary evidences. D.W. 4 to D.W. 7 are the tenants who have stated that they are tenant of defendant. Ext.-D series are the rent receipts. Ext.-E series are the vouchers and Ext.-F series are the money receipts. These documents and the witnesses have been produced in support of the fact that the defendants are in possession of the property. The defendant Nos. 1 and 2 have been examined as D.W. 15 and DW. 17 who have stated that they are coming in possession of the property as owner thereof. From the above pleading of the defendant, it appears that the defendants are claiming title on two account. Firstly, on the ground that Shaffaitullah had given them property in the year 1947. So far this case is concerned, no documentary evidences have been produced. Therefore, if Shaffaitullah had given them the possession then their possession will be permissive possession because as has been stated above neither any gift deed or registered document of transferee is there. The next claim is that they have acquired title by adverse possession. So far this claim is concerned, it is inconsistent plea. 15. In the case of Karnataka Board of Wakf vs. Govt. of India and Ors., 2004(3) P.L.J.R. 245, the Hon'ble Supreme Court has held that a party claiming adverse possession has no equity in his favour. The plea of general title and adverse possession are mutually inconsistent and the latter will never operate unless the former is relinquished. It has been held in the decision by the Hon'ble Supreme Court that there must be intention to dispossess the true owner. The claim of adverse possession has two elements. The plea of general title and adverse possession are mutually inconsistent and the latter will never operate unless the former is relinquished. It has been held in the decision by the Hon'ble Supreme Court that there must be intention to dispossess the true owner. The claim of adverse possession has two elements. Firstly, that the possession of the defendants become adverse to the plaintiff and secondly the defendant must continue to remain in possession for a period of 12 years. In the present case, the only defence of the defendant is that they have acquired title by adverse possession. Unless they proves animus possidendi simply long possession will never constitute adverse possession. 16. In the case of P.T. Munichikkanna Reddy vs. Revamma, (2007)6 S.C.C. 59 , the Hon'ble Supreme Court has held that adverse possession in one sense is based on the theory of presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. In view of the above settled proposition of law merely because the defendants are coming in possession of the property, it cannot be said that they have acquired title by adverse possession. Their main defence is that with the permission of Shaffaitullah, they came in possession of the property. In such circumstances, their possession will never became adverse. There is no pleading that since which date they started claiming adverse title to the plaintiff. The learned counsel relied upon a decision of the Hon'ble Supreme Court AIR 1973 SC 2341 , Jugal Kishore Mandal vs. Fani Shushan Kundu on the ground of adverse possession. It appears that in this case, the Hon'ble Supreme Court was considering the old limitation Act Article 142 of the Limitation Act. Therefore, it is not applicable in the present case. After amendment of the Limitation Act in the year 1963, the plaintiff is required to prove title only. The onus is on the defendant to prove adverse possession. Here except the evidence that they are in possession since a long, there is no reliable evidence but the learned Court below without considering the legal settled principle of law discussed above has wrongly held that the defendants have acquired title by adverse possession. 17. The onus is on the defendant to prove adverse possession. Here except the evidence that they are in possession since a long, there is no reliable evidence but the learned Court below without considering the legal settled principle of law discussed above has wrongly held that the defendants have acquired title by adverse possession. 17. In view of the above discussion, I find that the plaintiff appellant has been able to prove title on the suit property. The defendants have failed to prove adverse possession. Therefore, the plaintiff is entitled to recovery of possession of the suit property. It appears that the defendants have taken a frivolous plea of adverse possession. 18. In the case of Salem Advocates Bar Association, (2005)6 SCC 344 [ : 2005(4) PLJR (SC) 270], the Hon'ble Supreme Court has held that judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs as awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages filing of frivolous suits. It also leads to taking up of frivolous defences. Further, wherever costs as awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof. 19. In the result, this First Appeal is allowed. The impugned Judgment and Decree of the trial Court is set aside with cost of Rs. 25,000/- to be paid by the defendant-respondent to the plaintiff-appellant within 2 months failing which the plaintiff is at liberty to realize the same through the process of the Court. Thus, the plaintiff's suit is decreed.