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2013 DIGILAW 1342 (PAT)

Kari Devi v. Madho Yadav

2013-11-27

MUNGESHWAR SAHOO

body2013
Judgment Mungeshwar Sahoo, J. 1. The plaintiffs have filed this Second Appeal against the judgment and decree dated 22.11.1984 passed by the learned 4th Additional District Judge, Gaya in Title Appeal No.33 of 1978/121 of 1977 whereby the learned Lower Appellate Court dismissed the appeal and thereby confirmed the judgment and decree dated 28.07.1977 passed by the learned Sub Judge II Court, Gaya in Title Suit No.27 of 1975. 2. The plaintiffs filed the suit for declaration of title alleging that the property belonged to one Nanhkoo Thakur. He died in the year 1968 leaving behind the only daughter, Daulatia Devi who was defendant no.5 in the trial court. After the death of Nanhkoo Thakur, his daughter, Mostt. Daulatia Devi came in possession of the property and she sold the property in favour of the plaintiff by registered sale deed dated 25.11.1969 and the purchaser plaintiff was put in possession of the property. However, the manager of Nanhkoo Thakur namely Keshav Thakur sold the property in favour of the defendants by registered sale deed in the year 1972. According to the plaintiff, Keshav Thakur had no right to sell the property. 3. The defendants-purchasers filed contesting written statement alleging that in fact, Daulatia Devi is not the daughter of Nanhkoo Thakur rather Keshav Thakur is the cousin of Nanhkoo Thakur and, therefore, on the death of Nanhkoo Thakur, the property was inherited by the cousin of Keshav Thakur. Daulatia Devi filed written statement supporting the case of the plaintiff and alleged that Keshav Thakur is not related to Nanhkoo Thakur and he was only manager. 4. The trial court on the basis of the materials available on record came to the conclusion that Daulatia Devi is not the daughter of Nanhkoo Thakur and the name of wife of Keshav Thakur has been mutated. Since Daulatia Devi was not the daughter, therefore, she had no right to sell the property in favour of the plaintiffs. Accordingly, the plaintiff’s suit was dismissed. 5. On appeal, the Lower Appellate Court reversed the finding of the trial court regarding parentage of Daulatia Devi and held that Daulatia Devi was the daughter of Nanhkoo Thakur and further held that Keshav Thakur was not cousin of Nanhkoo Thakur rather he was the manager of Nanhkoo Thakur. Accordingly, the plaintiff’s suit was dismissed. 5. On appeal, the Lower Appellate Court reversed the finding of the trial court regarding parentage of Daulatia Devi and held that Daulatia Devi was the daughter of Nanhkoo Thakur and further held that Keshav Thakur was not cousin of Nanhkoo Thakur rather he was the manager of Nanhkoo Thakur. However, the Lower Appellate Court dismissed the plaintiff’s suit only on the ground of Section 34 of the Specific Relief Act. 6. At the time of admission on 14.05.1985, the following 3 substantial questions of law were formulated: I. Whether in view of the findings recorded by the lower appellate court in favour of the appellants, the suit could have been dismissed on the ground of Section 34 of the Specific Relief Act? II. Whether the finding on the question of possession recorded by the court below is illegal on account of non-consideration of the relevant evidence and reliance on inadmissible evidence? III. Whether in any event, the court below should have given an opportunity to the plaintiffs-appellants for getting their plaint amended? 7. The learned senior counsel appearing on behalf of the appellants submitted that both the courts below have recorded the finding of possession of Sahodari Devi on the basis of mutation only without considering the fact that natural heir, Daulatia Devi inherited the property from her father, Nanhkoo Thakur and she executed the sale deed in favour of the plaintiffs in the year 1969 and without considering the fact that the sale deed of the contesting defendant is of the year 1972. According to the learned counsel, possession follows title and without recording any finding that the plaintiff was not put in possession on the basis of the sale deed of the year 1969, the finding of the Lower Appellate Court is unsustainable in the eye of law and, therefore, the suit of the plaintiffs could not have been dismissed under Section 34 of the Specific Relief Act. By dismissing the plaintiff’s suit, indirectly title has been declared in favour of defendant who has not title or possession. 8. At the time of hearing of this Second Appeal, nobody appeared on behalf of the respondents. 9. From perusal of the judgment of the Lower Appellate Court, it is clear that the Lower Appellate Court categorically recorded the finding that Keshav Thakur is not the cousin of the owner, Nanhkoo Thakur. 8. At the time of hearing of this Second Appeal, nobody appeared on behalf of the respondents. 9. From perusal of the judgment of the Lower Appellate Court, it is clear that the Lower Appellate Court categorically recorded the finding that Keshav Thakur is not the cousin of the owner, Nanhkoo Thakur. The Lower Appellate Court also categorically recorded the finding that Daulatia Devi was the only heir of Nanhkoo Thakur. Therefore, on the death of Nanhkoo Thakur, the property devolved on Daulatia Devi. Daulatia Devi has executed a registered sale deed in favour of the plaintiffs on 25.11.1969, Exhibit 1/A. It is not the case of the defendants that this sale deed of the plaintiffs is a sham transaction or that no possession was given to the plaintiffs by Daulatia Devi. The only defence is that Daulatia Devi was not the daughter of Nanhkoo Thakur. The trial court recorded the finding that Daulatia Devi was not the daughter of Nanhkoo Thakur and, therefore, consequently held that the name of wife of Keshav Thakur has been mutated and he was the cousin of Nanhkoo Thakur. Therefore, the contesting defendant who is purchaser from Keshav Thakur is in possession of the property. It may be mentioned here that in second appeal in the year 1986, an amendment application was filed by the appellants praying for recovery of possession of the suit property if at all he is found to be dispossessed. This amendment application has already been allowed today by separate order. Now, therefore, the technical objection by which the suit of the plaintiffs was dismissed by both the courts below, have been cured. In view of the amendment, the plaintiffs have now prayed for the further relief for recovery of possession of the property. Moreover, when the finding of the Lower Appellate Court is to the effect that Daulatia Devi was the daughter of Nanhkoo Thakur and she has sold the property in favour of the plaintiffs, there is no question of claiming any further relief for recovery of possession because it is the settled principles of law that possession always follows title. It has been categorically recorded by the Lower Appellate Court that Keshav Thakur was not related with Nanhkoo Thakur. Now, therefore, in view of this finding of the Lower Appellate Court, the purchaser from Keshav Thakur will never derive any title. It has been categorically recorded by the Lower Appellate Court that Keshav Thakur was not related with Nanhkoo Thakur. Now, therefore, in view of this finding of the Lower Appellate Court, the purchaser from Keshav Thakur will never derive any title. Now, therefore, without there being any evidence to the effect that in fact, the purchaser from Keshav Thakur is in possession of the property only on the basis of mutation, no conclusive finding could have been recorded by the Lower Appellate Court regarding possession. 10. In view of the above position of law as well as the facts, the finding of the Lower Appellate Court on this question is, therefore, unsustainable. It appears that all other substantial questions of law formulated at the time of admission relate only with respect to these questions decided above. 11. In view of the above discussion, the substantial questions of law formulated at the time of admission are answered in favour of the appellants. The judgment and decree of both the courts below are hereby set aside. The plaintiff’s suit for declaration of title and recovery of possession is decreed. 12. Accordingly, this Second Appeal is allowed. No order as to cost.