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2013 DIGILAW 2175 (RAJ)

Girraj v. Board of Revenue for Rajasthan, Ajmer

2013-12-04

MOHAMMAD RAFIQ

body2013
JUDGMENT 1. - This writ petition has been filed by the petitioner against judgment dated 29.05.1991 passed by the Board of Revenue, whereby appeal preferred by the predecessor-in-title filed by the respondents no.4 and 5 against the petitioner was allowed and the judgment dated 31.07.1987 passed by the Sub Divisional Officer and that of the Revenue Appellate Authority dated 11.05.1989 were set-aside. 2. Facts of the case are that petitioners' predecessor-in-title Ram Dev filed a suit against respondents no.3 to 6 under Sections 88, 183, 188, 207 and 91 of the Rajasthan Tenancy Act, on 02.09.1970. It was inter-alia pleaded in the plaint that the present Chak No.106 admeasuring 9 bigha 18 biswa in village Salarpur, consists of old Khasra No.119 measuring 4 bigha 13 biswa, Khasra No.426 measuring 5 bigha 1 biswa and Khasra No.125 measuring 5 biswa. It was pleaded that a pucca well was constructed on 10 biswa of land, out of which 5 biswa in Khasra no.126 measuring 5 bighas 2 biswas, was of the share of plaintiff, and 5 biswa was of Ramdev, Gopi etc. out of Khasra No.122. In the said well, the plaintiff had one-half share and one-half share was of Moolya, Ram Dev and Gopi. It was numbered as 38. The Chak No.106 was in the khatedari of the plaintiffs. The plaintiff on 10.03.1952 mortgaged the land bearing Khasra No.119, 125 and 126 including the share of the well, by way of registered mortgage-deed for a sum of Rs. 3,500/- with Jwala Devi Singh, a minor, through his natural guardian Ram Prasad. The mortgage was redeemed in May, 1952 for Rs. 3,200/-. The mortgage-deed was returned to the plaintiff Ramdev and possession was handed back to him. For redeeming the mortgage, the plaintiff took a loan of Rs. 1200/- from the defendants Bhonria and Mawasi, and the rest amount of Rs. 2000/- was taken as loan from Ratan Lal Heera Lal Gujar of Habibpur. It was further pleaded that the plaintiffs cultivated Khasra Nos.119 and 126. However, in the month of September, 1958, the defendant insisted for repayment of loan of Rs. 1200/-, therefore, on 17.09.1958, the plaintiffs mortgaged 4 bigha and 13 biswa of land out of Khasra Nos.119, 125 and 126 and the share in the well for Rs. 1200/- for a period of ten years and a mortgage-deed was executed on stamps paper of Rs. 1200/-, therefore, on 17.09.1958, the plaintiffs mortgaged 4 bigha and 13 biswa of land out of Khasra Nos.119, 125 and 126 and the share in the well for Rs. 1200/- for a period of ten years and a mortgage-deed was executed on stamps paper of Rs. 25/-, on which plaintiff Ramdev put his thumb impression. The said document was witnessed by Moolya and Gokul Mali. Looking to the financial condition of plaintiff Ramdev, the defendants no.1 and 2 allowed the plaintiff to cultivate ⅓rd part of the land in accordance with the map and since then the plaintiffs are in possession on ⅓rd part of the land. The period of ten years had expired on 17.09.1968 and defendants no.1 and 2 did not hand over the possession of the land to the plaintiffs. In Samvat Year 2027 (corresponding to the Year 1970), meeting of panchayat was convened at the instance of the plaintiff, where the defendants submitted mortgage-deed and accepted the mortgage. They further agreed to hand over the possession of the land to the plaintiffs after the crops. Thereafter, the plaintiffs received a notice under Section 107 of the Code of Criminal Procedure for appearance on 20.08.1970 from the court of Sub Divisional Magistrate, Gangapur City. Only then the plaintiffs came to know that the defendants have got their names entered as khatedar of the aforesaid land in the revenue record. In those facts, the plaintiffs filed a suit for recovery of possession of the land Chak No.106 and share in the well Chak No.38, and restraining them from interfering seeking an injunction against the defendants with possession of the plaintiffs and its use by them. 3. The defendants filed written statement admitting mortgage in favour of Jwala Prasad Singh. It was pleaded that Land of Khasra Nos.119, 125 and 126 was sold to defendants Bhoria and Mewasi for Rs. 2000/- and a sale-deed was executed on 03.06.1958 on stamp paper of Rs. 5/-, which was witnessed by Birbal S/o Rampal, Moolya and Prabhati S/o Bhoria, and the possession was handed over to them. The learned trial court by judgment and decree dated 31.07.1987 decreed the suit of the plaintiff-petitioner. The private-respondents preferred appeal, however, the same was dismissed by the Revenue Appellate Authority. However, both the judgments were reversed by the Board of Revenue. Hence this appeal on behalf of plaintiff-petitioners. 4. The learned trial court by judgment and decree dated 31.07.1987 decreed the suit of the plaintiff-petitioner. The private-respondents preferred appeal, however, the same was dismissed by the Revenue Appellate Authority. However, both the judgments were reversed by the Board of Revenue. Hence this appeal on behalf of plaintiff-petitioners. 4. I have heard Shri Ajeet Bhandari, learned counsel for the petitioners, and Smt. Naina Saraf, Shri Pawan Pareek, Shri Raghuvendra Singh and Shri Rajneesh Gupta, learned counsel for the respondents. 5. Shri Ajeet Bhandari, learned counsel for the petitioners, argued that the learned Board of Revenue has wrongly reversed the findings with regard to Exhibit A-1, recorded by two courts below. The courts below, after discussing the evidence, held that the document Exhibit A/1 has not been executed and is not free from doubt. This document is unregistered and in any case it did not convey the title. The learned Board of Revenue has, without discussing the evidence, held that execution of the document has been proved by witness Bhonria, who, in his statement, has stated that he had purchased this land for Rs. 2000/- from Phulya S/o Sonya. For this document Exhibit A/1 was executed, which was witnessed by Birbal, Moolya, Prabhati and Phulya. That apart, he stated that he and Mawasi were also present. Ramdev was son of Phulya. This statement shows that execution of document Exhibit A/1 is not proved. Under Section 67 of the Evidence Act, it is necessary that execution of document is to be proved only when the thumb impressions are proved to be of person executing the document. In the present case, no evidence whatsoever has been produced to show that the thumb impressions on the document Exhibit-1 were that of Phulya. Under Section 68 of the evidence Act, a document, which is required to be attested by the witnesses, shall not be used as evidence until one attesting witness is called for the purpose of proving its execution. None of the witnesses has been called to prove this document. The learned Board of Revenue, in its judgment, has only said that Bhonria in his statement has said that witness Birbal, Moolya and Phulya had expired and Prabhati is of unsound mind. It has not considered the finding of the two courts below with regard to the execution of the document. The learned Board of Revenue, in its judgment, has only said that Bhonria in his statement has said that witness Birbal, Moolya and Phulya had expired and Prabhati is of unsound mind. It has not considered the finding of the two courts below with regard to the execution of the document. The Revenue Appellate Authority, in its judgment, held that statement of DW-2 Bhonria that whereabouts of Prabhati are not known for about eight to ten years and that he is of unsound mind, is incorrect, as the defendants had cited him as witness and summons were also served upon him. The defendants have purposely not presented this witness in the evidence. Learned Revenue Appellate Authority has also held that this document has been filed after six years of filing of the written statement and this document was not filed even in the proceedings under Section 107 of the Code of Criminal Procedure. Looking to all these circumstances, the Revenue Appellate Authority held that this document is fabricated and has been prepared during pendency of the suit. Learned Board of Revenue has not at all discussed the findings recorded by the Revenue Appellate Authority and the trial court and only mentioned that Bhonria has proved this document. This finding of the Board of Revenue is perverse, being contrary to evidence on record. 6. Shri Ajeet Bhandari, learned counsel for the petitioners, further argued that the document Exhibit A/1 has not been proved in accordance with law and as such it cannot be relied upon. Indisputably, father of petitioner was khatedar of disputed land and defendants claimed possession through document Exhibit A/1, which is unregistered and has not been proved in accordance with law and the same cannot be relied upon. Under Section 49 of the Indian Registration Act, a document, which is required to be registered, will not effect transfer of any movable property, unless it has been registered. The document Exhibit A/1 shows that there is no mention of transferring the property and as such there cannot be any question of transfer of time. 7. Shri Ajeet Bhandari, learned counsel for the petitioners, further argued that learned Board of Revenue has erred in holding that the defendants are entitled to the benefit of Section 53A of the Transfer of Property Act. 7. Shri Ajeet Bhandari, learned counsel for the petitioners, further argued that learned Board of Revenue has erred in holding that the defendants are entitled to the benefit of Section 53A of the Transfer of Property Act. It has erred in holding that under the document, the defendant had to do nothing and therefore their right under Section 53A is not circumscribed by any thing. The Board of Revenue has not considered that the defendants were not ready and willing to perform their part of contract as they failed to comply with the requirements of Section 55(1)(d) of the Transfer of Property Act and Section 29(c) of the Stamps Act. In the present case the private respondents remained silent and have neither got the sale deed prepared on the stamps paper, which could have been got registered nor had intimated to the petitioners that they were ready and willing to get the sale deed executed. The private respondents were never ready and willing to perform their part of contract and as such they are not entitled to the benefit of Section 53A of the Transfer of Property Act. The Board of Revenue has in a cursory manner held that the defendants are entitled to the benefit of Section 53A and that the suit of the petitioner is not maintainable. Learned counsel for the petitioners, in support of this argument, has relied on the judgments of the Supreme Court in A. Lewis and Another v. M.T. Ramamurthy and Others - (2007) 14 SCC 87 , FGP Limited v. Saleh Hooseini Doctor and Another, (2009) 10 SCC 223 and Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639 . 8. Shri Ajeet Bhandari, learned counsel for the petitioners, further argued that the Board of Revenue has not at all considered the fact that the disputed land was mortgaged for Rs. 3500/- and the same was redeemed only few days earlier to alleged sale deed. The alleged amount of consideration is shown to be Rs. 2000/- only. No reason whatsoever is forthcoming from the side of the defendants to show that there had been a steep fall in the price of land. The property, which was mortgaged for Rs. 3500/-, cannot be expected to be sold for Rs. 2000/- only. The alleged amount of consideration is shown to be Rs. 2000/- only. No reason whatsoever is forthcoming from the side of the defendants to show that there had been a steep fall in the price of land. The property, which was mortgaged for Rs. 3500/-, cannot be expected to be sold for Rs. 2000/- only. The alleged document as well as the whole case of defendant is fabricated and rightly rejected by learned trial court as well as Revenue Appellate Authority. 9. Shri Ajeet Bhandari, learned counsel for the petitioners, also argued that the petitioners are entitled to possession of the land as indisputably they were khatedar of the land in dispute. It is only on the basis of document Exhibit A/1 the defendants claimed themselves to be the owner of the land. The said document is not at all proved, rather it is a fabricated one as rightly held by the Revenue Appellate Authority. Presently the petitioners are in possession of the land and cultivating the same. In case they are dispossessed, they will be deprived of their means of livelihood causing great injustice to them. 10. Learned counsel for the petitioners argued that the sale-deed for the first time was produced by the defendants before the court six years after filing of the written-statement. There was no mention of the sale-deed in the proceedings initiated at the instance of the defendants under Section 107 of the Cr.P.C. None of the three attesting witnesses to the alleged sale-deed, has been produced in the court for their statements. While, for two witnesses it is stated that they have died, for third witness, stand of the defendants-respondents is that he became mad, whereas the summon/bailable warrant sent by the court to this witness was served upon him, yet he did not appear. Scribe of the document Exhibit A/1 was stated to have died. His son Hari Shankar has been produced as DW-1, who identified the hand writing of his father, but that does not prove execution of the document. This document of sale-deed was neither registered nor executed on sufficient stamps, therefore, it could not be taken as permissible in evidence. Learned Board of Revenue has adopted a very strange approach by placing the burden of proving the thumb impressions of the witnesses on the alleged sale-deed Exhibit A/1 on the plaintiffs. This document of sale-deed was neither registered nor executed on sufficient stamps, therefore, it could not be taken as permissible in evidence. Learned Board of Revenue has adopted a very strange approach by placing the burden of proving the thumb impressions of the witnesses on the alleged sale-deed Exhibit A/1 on the plaintiffs. It has observed that it was the plaintiff who ought to have produced the hand writing expert to identify the thumb impression of the deceased, whereas no such plea was set up by the defendants in the written statement, who for the first time produced the sale-deed Exhibit A/1. All that the petitioners have stated is that the sale-deed did not have clear thumb impressions, which was placed. The burden to prove that it was thumb impression of the deceased Phulia, was on the defendants and not on the plaintiff. 11. It is further argued by learned counsel for petitioners that unless existence of preliminary document is proved, secondary evidence cannot be allowed to be led in support of the claim. Learned counsel, in support of the case, has relied on the judgment of the Supreme Court in Atul Castings Ltd. v. Bawa Gurvachan Singh, (2001) 5 SCC 133 , and argued that the Supreme Court in that case has held that it is for the appellant to prove its case. The other side cannot be expected to lead negative evidence to disprove the claim of the plaintiff. The Supreme Court held that the courts below could not expect the appellant to lead the negative evidence to prove that part of the building was not being used as office. Whereas this was the case of the plaintiff and it was for him to prove it. How and in what manner the documents are to be proved, has been discussed by the Supreme Court in State (Delhi Admn.) v. Pali Ram - AIR 1979 SC 14 with reference to Section 73 of the Evidence Act. Learned counsel for the petitioners, relying on the ratio of the judgment of the Orissa High Court in Baruna Giri and Others v. Rajakishore Giri and Others - AIR 1983 Orissa 107 , argued that it was the duty of the vendor to prove the draft of sale-deed and to express his readiness and willingness to pay the money and call upon the plaintiff to execute the sale-deed. Failure to send such notice that he was not ready and willing, his case cannot be accepted. Readiness and willingness has to be substantiated by showing that he purchased the stamp papers and for proving that stamp vendors should have been called, which was not done. It is therefore prayed that the writ petition be allowed and the judgment of the Board of Revenue be quashed and set aside restoring the judgments of the two courts below. 12. Arguments on behalf of the respondents have been led by Smt. Naina Saraf, learned counsel appearing for respondent no.6. It is argued that the defendants claimed the possession on the basis of sale-deed and alternatively claimed, on the basis of adverse possession, which plea finds place in the reply and also mentioned in the appellate court order dated 11.05.1989. Admittedly, the defendants took the possession on 03.06.1958 and suit was filed on 02.09.1970, therefore, the suit for possession was barred by limitation as provided under Section 183 of the Rajasthan Tenancy Act and thus the khatedari rights of the plaintiffs came to an end as per Section 63 (1)(iv) of the Rajasthan Tenancy Act. The defendants further claimed continuation of the possession of the land on the basis of sale-deed as the possession of the land was handed over by the plaintiffs on 03.06.1958 and their names were entered in the revenue record as per the provisions of Section 53-A of the Transfer of Property Act. The sale-deed Exhibit A/1 is the complete document in itself to prove the possession on property and there is no conditions stipulated to be fulfilled. The defendants got their names entered in the revenue record in furtherance to the sale-deed, after taking over possession of the land and thereafter deposited the 'lagan' and the Board of Revenue has rightly allowed their possession to continue referring to Section 53A and rightly observed that in a suit for redemption of possession, the defence of Section 53A is available to the defendants. 13. In support of the arguments, Smt. Naina Saraf, learned counsel for the respondents, has relied on the judgments of the Supreme Court in Joseph John Peter Sandy v. Verorika Thomas Raj Kumar, (2013) 3 SCC 801 , Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 and Hamzabi v. Syed Karimuddin (2001) 1 SCC 414 . 14. 13. In support of the arguments, Smt. Naina Saraf, learned counsel for the respondents, has relied on the judgments of the Supreme Court in Joseph John Peter Sandy v. Verorika Thomas Raj Kumar, (2013) 3 SCC 801 , Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 and Hamzabi v. Syed Karimuddin (2001) 1 SCC 414 . 14. It is therefore prayed that the writ petition be dismissed upholding the judgment of the Board of Revenue. 15. I have given my anxious consideration to rival submissions, perused the material on record and also gone through the cited case laws. 16. The Assistant Collector in his order dated 31.07.1987 was persuaded to decree the suit of the petitioner primarily on the ground that so-called sale-deed was neither registered nor sufficiently stamped therefore it was not admissible in evidence. In fact, it was not even the sale-deed. It was merely an agreement to sale and the defendant has failed to prove that it was a sale-deed. Since it was not admissible in evidence, this did not transfer any title in favour of the defendant. The defendant preferred an appeal against the aforesaid judgment. The Learned Revenue Appellate Authority while affirming the aforesaid judgment has given quite convincing and weighty reasons. According to the Milan kshetraphal (Exhibit P-2), the khasra no.106 was formed of old Khasra nos. 119, 125 and 126 as per the khatoni of Samvat 2002 to 2022 (Exhibit P-1), Phulya, father of plaintiff Ram Dev, was recorded as khatedar in respect of Khasra no.126/2. The defendant also accepted this fact. Jamabandi of Samvat 2014 to 2017 (Exhibit P-3) indicated that though the khatedar of this land was of Phulya S/o Sona Mali but it was mortgaged with Jwala Devi Singh S/o Ram Prasad. The defendant in his written statement has acknowledge the fact of first mortgage. The jamabandi of Samvat 2014 to 2017 (Exhibit P-4) again indicated name of Phulya, father of plaintiff Ram Devi, as khatedar in respect of the land of Khasra No.126/2, when it became Khasra No.106. The well in Khasra No.106 was shown in equal share of Phulya, Ram Dev and Gopi. 17. The Revenue Appellate Authority has relied on the statement of PW-1 Ram Swaroop, the office Kanoongo of Tehsil concerned, who proved the documents Exhibit P-1 to Exhibit P-6, on comparing them with the original. Mst. The well in Khasra No.106 was shown in equal share of Phulya, Ram Dev and Gopi. 17. The Revenue Appellate Authority has relied on the statement of PW-1 Ram Swaroop, the office Kanoongo of Tehsil concerned, who proved the documents Exhibit P-1 to Exhibit P-6, on comparing them with the original. Mst. Dhapa (PW-2), the plaintiff, stated that a sum of Rs. 12,000/- was borrowed by them from Bhura and Mawasi, defendants no.1 and 2, and a sum of Rs. 3000/- was waived by Jwala Devi Singh, thus the mortgaged was redeemed. Surja S/o Gyarsa Gurjar (PW-3) and Heera Lal (PW-4) have also corroborated this fact. The plaintiff has thus been candid in what is his stand about these facts. In fact, the plaintiff has admitted that he had possession over ⅓rd of the land and the defendants were in possession of ⅔rd of the land. As per the plaintiff the possession of ⅔rd land was parted with as the land was mortgaged with the defendants for a limited period of ten years. This was written on stamp paper of Rs. 25/- by the defendant but when they requested the defendants to restore the possession back to the plaintiff, the defendant refused to oblige and at their instance, a meeting of Panchayat was convened in Samvat 2006. The defendants no.1 and 2 declined to handover the possession. As against this, the defendant asserted that they had purchased the land for sale consideration of Rs. 2000/- and the sale deed was executed on a non-judicial stamp paper of Rs. 5/-, which was scribed by Ram Prasad at the askance of Phulya. Apart from Phulya himself, Birbal and Prabhati signed it as witnesses and Moolya as seller. Birbal, Phulya and Moolya have died and the only surviving witness Prabhati has gone made. The scribe of the sale deed Ram Prasad has also died. His son Hari Shankar (DW-1) was produced as a witness. He has proved the hand writing of his father in the sale-deed (Exhibit A-1). Apart from defendant Bhura as DW-2. In fact, according to Bhura, Phulya, father of plaintiff Ram Dev, himself appeared before the settlement officer and acknowledge the fact of sale and it is on that basis that name of the defendant was recorded as khatedar. 18. He has proved the hand writing of his father in the sale-deed (Exhibit A-1). Apart from defendant Bhura as DW-2. In fact, according to Bhura, Phulya, father of plaintiff Ram Dev, himself appeared before the settlement officer and acknowledge the fact of sale and it is on that basis that name of the defendant was recorded as khatedar. 18. The learned Revenue Appellate Authority did not accept all these pleas because it held that when summon was sent to Prabhati, it was served and there was no report that Prabhati had gone mad. Exhibit A-1, as already held by the learned Assistant Collector, was merely an agreement to sale and therefore could not be taken as proved as sale-deed. The fact that Phulya had appeared before the settlement officer and acknowledged the fact of sale-deed in favour of the defendant, has also not been proved by any other witness, not even by the documentary evidence obtained from the settlement department. The learned Assistant Collector and the Board of Revenue rightly doubted genuineness of so called sale-deed as it was for the first time produced in 1976, six years after filing of the written statement by the defendant. It raised serious doubt about the genuineness of the document because when proceedings against the plaintiff were initiated by the defendant under Section 107 Cr.P.C., no mention of sale-deed was made. It is only from those proceedings that the plaintiff came to know about the fact that name of the defendants has been recorded as khatedar. 19. The Board of Revenue however has approached the matter from entirely unacceptable angle. It has rather placed the burden on the plaintiff to prove the sale-deed by producing the hand writing expert if the plaintiff doubted the correctness whereas the law is well settled that the burden to prove the document in the case always lies on a party who sets up such case. In fact, the Board of Revenue has further erred in law in placing the burden of proof on the plaintiff that defendants were not ready and willing to perform part of contract and therefore they would be entitled to protect their possession by virtue of Section 53-A of the Transfer of Property Act. The Supreme Court in FGP Limited, supra, has laid down nine parameters that are necessary for attracting the provisions of Section 53-A of the Act. The Supreme Court in FGP Limited, supra, has laid down nine parameters that are necessary for attracting the provisions of Section 53-A of the Act. It held that rational of the equitable doctrine of part-performance in English law and as applicable in India via Section 53-A of the Act is that the act or action relied upon as "evidencing part-performance" must be of such nature and character that is existence would establish the contract and its implementation. The crucial act or action must be of such a character as to be unequivocally referable to the contract as having been performed in performance of the contract. The act relied upon by the party invoking the said doctrine must be such as by its own force to show the very existence of the same contract. 20. According to the aforesaid judgment of the Supreme Court, following are the necessary ingredients of Section 53-A of the Transfer of Property Act, (1) a contract to transfer immovable property; (2) the transfer should be for consideration; (3) the contract must be in writing; (4) it should be signed by or on behalf of the transferor; (5) the terms of the contract can be ascertained with reasonable certainty from the writing; (6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession; (7) such taking of or continuance in possession should be in part performance of the contract; (8) the transferee should do some act in furtherance of the contract; and (9) he should have performed, or be willing to perform, his part of the contract. 21. Aforementioned ingredients of Section 53-A therefore requires that the evidence should prove that (8) transferee has done some act in furtherance of the contract and (9) that he has performed or was willing to perform his part of the contract. What the learned Board of Revenue has held in fact amounts to putting the cart before the horse. The plaintiff, in the present case, could not be expected to prove that the defendants did not do some act in furtherance of the contract or that they have not performed or were not willing to perform their part of the contract. It was essentially for the defendants to prove these ingredients for taking advantage of Section 53-A of the Transfer of Property Act, so as to defend their possession. It was essentially for the defendants to prove these ingredients for taking advantage of Section 53-A of the Transfer of Property Act, so as to defend their possession. In any case the document Exhibit A-1, which has been sought to be relied on by the respondent, is not sale-deed as held by the Board of Revenue. It was merely an agreement to sale and there is no evidence to show that the defendants ever tried to perform or expressed their readiness or willingness to perform their part of the contract. The Board of Revenue was therefore wholly unjustified in reversing the well reasoned judgment passed by the Revenue Appellate Authority. The impugned judgment of the Board of Revenue dated 29.05.1991 (Annexure-4) is set aside and that of the Revenue Appellate Authority dated 11.05.1989 (Annexure-3) and that of the Assistant Collector dated 31.07.1987 (Annexure-2) are restored. Consequently, the suit filed by the plaintiff stands decreed in terms of the judgment of the Assistant Collector dated 31.07.1987.The writ petition is accordingly allowed.Petition allowed. *******