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2014 DIGILAW 970 (PAT)

Bibi Basarion v. Md. Nazriruddin

2014-09-10

MUNGESHWAR SAHOO

body2014
MUNGESHWAR SAHOO, J.:–The defendants Ist party have filed this First Appeal against the Judgment and Decree dated 31.05.1979 passed by learned Vth Addl. Subordinate Judge, Bhagalpur in Title Suit No.7 of 1977 / 12 of 1979. 2. The plaintiffs respondents filed the aforesaid suit for declaration that the plaintiffs have acquired right, title and interest over the suit property and that the defendants have got no interest or title on the same. The suit lands are comprised within old plot No.113 measuring 59 decimal, old khata No.12 measuring 26 decimals in new plot No.392 and 34 decimal in new plot No.395 under new Khata No.121 total measuring 59 decimal as well as 1.10 acre of old plot No.113, old khata No.12 corresponding to 76 decimal of new plot No.397 and 50 decimal in new plot No.398 under new Khata No.8. According to the plaintiff, Sheikh Abdulla and Sheikh Arzoo were owner and in possession over 8.75 acres of lands of old plot No.113 in equal share. Sheikh Arzoo who had half share transferred 1.69 acres of land out of his share to one Sheikh Sharfuddin by registered sale deed dt.30.09.1944. Possession was delivered to Sharfuddin. Sheikh Arzoo had sold the property for repaying the mortgage amount of mortgagee Ataulla @ Atabul @ Attoo who was mortgagee with respect to 8 ana share on the basis of mortgage deed dated 22.05.1931. The amount was paid to him then he left possession, as such the transferee Sharfuddin remain in khas possession and thereafter, the bhoulidar Sheikh Niyamak cultivated the land on bhauli batai. There was partition between the branches of two owners in 1955. In that partition, Sharfuddin was allowed to remain in possession over 2.5 biggha land out of 3 biggha block and in lieu of 10 katthas land, Sharfuddin was given the land in another block by mutual adjustment with the heirs of Abdulla who were adjusted in three bigghas block. In view of this partition, the plaintiff came in possession of lands at two places, at one place 1.10 acre and in other place 59 decimal in plot No.113 itself. In the remaining portion of the land of plot No.113, the two tenants Sheikh Abdulla and Sheikh Arzoo remained in possession. He was mutated in States Shresta. In partition between the heirs of Abdulla and Arzoo, the lands of Sharfuddin was adjusted towards the land of Sheikh Arzoo. 3. In the remaining portion of the land of plot No.113, the two tenants Sheikh Abdulla and Sheikh Arzoo remained in possession. He was mutated in States Shresta. In partition between the heirs of Abdulla and Arzoo, the lands of Sharfuddin was adjusted towards the land of Sheikh Arzoo. 3. The further case of the plaintiff is that Sheikh Sarfudddin sold his entire land purchased by registered sale deeds dated 23.09.1974 to the plaintiffs and the transferee came in possession and have been mutated. During the recent survey, one piece of the land were wrongly recorded in the name of the defendants, i.e., lands comprised within plot No.397 and 398 have been recorded in the name of the defendants whereas plot No.392 and 395 were recorded in the name of plaintiff. On the basis of the said wrong entry, the defendants started disturbing the possessing of the plaintiff. 4. The defendant Ist party filed contesting written statement. The defendant 2nd party also filed separate written statement. The main defence of defendant 2nd party is that Sheikh Arzoo did not transfer 1.69 acres of lands (3 bigghas land) to Sharfuddin and did not deliver possession of the same to Sharfuddin. The deed in favour of Sharfuddin remained a paper transaction as no consideration passed under the said sale deed. The sale deed was executed to pay the Sudhbharna money to Shekih Ataulla but the money was not paid so Ataulla remained in possession. Sheikh Arzoo died 30 years ago and then Sudhbharna amount was paid by heirs of Sheikh Arzoo much after the execution of the sale deed, so Sharfuddin never came in possession of the land covered under the sale deed. The entire 8.75 acres lands of plot No.113 was joint between the recorded tenant and there was no partition. Sheikh Sharfuddin produlently and collusively mutated his name, therefore, the defendant No.2 filed petition for correction of Jamabandi which is pending before D.C.L.R. The partition alleged by defendant and allotment of land to plaintiff was denied. According to the defendant, the partition between them took place long before some time in the year 1955. The sale deed executed by Sharfuddin are fictitious document entered between them to create evidence and for the purpose of garbing the property of the defendants. By registered sale deeds, no title conveyed to plaintiff by Sharfuddin, nor the plaintiffs came in possession over the land. The sale deed executed by Sharfuddin are fictitious document entered between them to create evidence and for the purpose of garbing the property of the defendants. By registered sale deeds, no title conveyed to plaintiff by Sharfuddin, nor the plaintiffs came in possession over the land. No doubt, one piece of land was recorded in the name of Sharfuddin but it was corrected under Section 108 of Bihar Tenancy Act and now all the new plots are recorded in the name of the defendants. The entry of the names of the defendants in respect of plot No.397 and 398 is correct and the defendants are coming in possession. The case of the defendant Ist party is also same as that of defendant 2nd party. 5. On the basis of the aforesaid pleadings, the learned trial Court framed the following issues :– (i) Is the suit as framed maintainable? (ii) Have the plaintiffs got cause of action for the suit? (iii) Is the suit under valued and the Court fee paid insufficient? (iv) Is the suit barred by Limitation and adverse possession? (v) Is the suit hit by section 34 of the Specific Relief Act? (vi) Is the suit bad for non-joinder of parties? (vii) Have the plaintiffs acquired title to the suit property and, if so, have they got subsisting title to the same? (viii) Are the plaintiffs entitled to a decree as claimed (ix) To what relief or reliefs, if any, are the plaintiffs entitled? 6. The trial Court recorded the finding that sale deed in favour of Sharfuddin, exhibit ‘1’, was valid, legal and operative and title with respect to 1.69 acres plots to Sheikh Sharfuddin. Sheikh Sharfuddin came in possession and then he sold the land to the plaintiff who are in cultivating possession of the suit property, as such the plaintiffs have acquired valid and legal title to the suit property. Accordingly, the plaintiff’s suit was decreed. 7. The learned counsel, Mr. Ganapathy Trivedi, for the appellant submitted that from perusal of ext. ‘1’ series, it is apparent that plaintiffs purchased 1.60 and half acres of land from Sheikh Sharfuddin within same boundary which means that the lands was in one block. In the fourth sale deed which was executed in favour of Sheikh Abbash measures an area of 8.5 decimal only which forms another blocks. Total 1.69 acres which is contrary to their own pleading. In the fourth sale deed which was executed in favour of Sheikh Abbash measures an area of 8.5 decimal only which forms another blocks. Total 1.69 acres which is contrary to their own pleading. Therefore, the Court below should have dismissed the plaintiff’s suit on the ground of vagueness of the suit property. Further, the learned counsel submitted that when the vendor of the plaintiffs purchased 1.69 acres of land in one block by ext.‘1’ dt.30.09.1944 and possession was given to Sharfuddin then how the said property could have been made subject matter of partition in the year 1955. Moreover, in the said partition, alleged by the plaintiff, a part of land of one block would not have been given to Sheikh Asmat without their being any registered document. The plaintiff has not filed any such document showing that in partition of the year 1955, his land measuring 1.69 acres were adjusted in two blocks at two different places. Therefore, the story of bifurcation of C.S. plot No.113 measuring 1.69 acres cannot be accepted and the Court below could not have given such finding without their being any reliable evidence. Although Sheikh Sharfuddin has stated that return was submitted in his name by ex.landlord, but the return was never filed and further he for the first time applied for mutation in the year 1973 which is concocted by ext. ‘2’ itself which shows that he applied for mutation on 11.1.1974. In such view of the matter, the rent receipt dt.17.05.1973 itself appears to be a forged document. In fact the vendor of the plaintiff for proving his possession got the rent receipts forged for the purpose of selling the property. 8. The learned counsel further submitted that the rent receipts issued in the name of Sharfuddin, i.e., ext. ‘2/A’ and ‘2/B’ all have been issued pursuant to the mutation order ext.2 and admittedly in the mutation proceeding, no notice was issued to the Jamabandi holder Sheikh Arzoo and Sheikh Asmat, therefore, no reliance can be placed on the said document. The further submission is that the plaintiff should have proved the fact of payment of consideration to the Sudhbharna Sheikh Ataulla who was brother of Sheikh Sharfuddin but the plaintiff did not examine Sheikh Ataulla as witness. No explanation has also been given for his non-examination. The further submission is that the plaintiff should have proved the fact of payment of consideration to the Sudhbharna Sheikh Ataulla who was brother of Sheikh Sharfuddin but the plaintiff did not examine Sheikh Ataulla as witness. No explanation has also been given for his non-examination. Therefore, an adverse inference should be drawn against the plaintiff for non-examination of Ataulla and also the other witnesses regarding receipt of consideration namely, Munsi, Arun Prasad, Hamid and Gyasuddin. 9. The learned counsel further submitted that in revisional survey record of right, the lands comprised within R.S. plot No.397 and 398 were recorded in the name of the defendant Sheikh Uddan and others. Sheikh Sharfuddin challenged the said entry which was rejected by order dated 25.05.1974 holding that Sheikh Sharfuddin never came in possession on the basis of purchase. Revision filed against the said order was also rejected on 23.12.1975. Subsequently, all the four plots were recorded in the name of defendants but in spite of the entry of the name of the defendants, the plaintiff never sought a relief for setting aside the entry. Therefore, the suit filed by the plaintiff is barred under Section 34 of the Specific Relief Act. 10. According to the learned counsel for the appellant, on the date of execution of the sale deed by Sheikh Arzoo in favour of Sharfuddin dated 30.09.1944, Sheikh Arzoo had no right to execute the sale deed because the plaintiff’s case is that the mortgage debt was paid after the sale deed was executed. Further, the case of the plaintiff is that Sharfuddin came in possession after purchase is falsified by overwhelming evidences oral and documentary produced by the appellants but the Court below wrongly held that the land mortgaged by ext. ‘F’ by the defendant is different land from the suit land. The Court below thus failed to appreciate the evidences properly. The learned counsel further submitted that in view of the sale deed ext. ‘E’ and ‘E/1’, the mortgage deed ext.‘F’, ext. ‘G/1’ khatiyan, the learned Court below should have held that sale deed dated 30.09.1944 ext. ‘1’ remained in operative to Sheikh Arzoo and subsequently after his death, his heirs defendant Ist party continued in possession of the suit property. The learned counsel on the above grounds submitted that the impugned Judgment and Decree are liable to be set aside. 11. ‘G/1’ khatiyan, the learned Court below should have held that sale deed dated 30.09.1944 ext. ‘1’ remained in operative to Sheikh Arzoo and subsequently after his death, his heirs defendant Ist party continued in possession of the suit property. The learned counsel on the above grounds submitted that the impugned Judgment and Decree are liable to be set aside. 11. Although the respondents have appeared after notice, through the learned counsel, Mr. Nazmul Hoda but when this First Appeal is taken up for hearing, the learned counsel, Mr. Nazmul Hoda, appeared before the Court and submitted that he has got no instruction to contest the appeal and he did not participate in the hearing. 12. In view of the aforesaid submissions of the learned counsels for the appellant, the points arises for consideration in this First Appeal is as to whether the plaintiff have acquired title and possession to the suit property on the basis of four registered sale deeds executed by Sharfuddin in their favour and whether Sharfuddin, the vendor of the plaintiff, had title and possession to the suit property and whether the Judgment and Decree passed by the Court below is sustainable in the eye of law. 13. According to the plaintiff’s case, Sheikh Arzoo had half share in old plot No.113 comprised within old khata No.12. Sheikh Abdullah had half share. Sheikh Arzoo sold 1.69 acres of land of that plot out of 8.75 acres by registered sale deed dated 30.09.1944 to Sheikh Sharfuddin, the vendor of the plaintiff. Ext.‘1’ is the said sale deed which is registered sale deed. On the contrary, the defendants appellants case is that the sale deed ext.‘1’ was never acted upon as no consideration amount was paid. 14. The Hon’ble Supreme Court in the case of Vimal Chand Ghevar Chand Jain Vs. Ramakant Eknath Jadoo 2009 (5) SCC 713 at paragraph 34 has held that the right of possession over a property is a facet of title. As soon as a deed of sale is registered, the title passes to the vendee. The vendor in terms of the stipulation made in the deed of sale is bound to deliver possession of the property sold. If he does not do show, he makes himself liable for damages. 15. In the case of Prem Singh Vs. As soon as a deed of sale is registered, the title passes to the vendee. The vendor in terms of the stipulation made in the deed of sale is bound to deliver possession of the property sold. If he does not do show, he makes himself liable for damages. 15. In the case of Prem Singh Vs. Birbal 2006 (5) SCC 353 = 2006 (3) PLJR (SC) 179, the Supreme Court has held that ‘there is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof thus would be on a person who leads evidence to rebut the presumption.’ This view of the Supreme Court has been followed by this Court in the case of Seeta Saran Prasad Vs. Manorama Devi 2012 (2) PLJR 191 paragraph 13. 16. In view of the above settled proposition of law, the presumption in this case is that the registered sale deed, ext.‘1’ is validly executed and would be valid in law. The vendor handed over possession to the transferee. The onus would be on the appellant to prove that the transaction was in valid or a void document. 17. It may be mentioned here that the defendant’s ancestor, Sheikh Arzoo, i.e., vendor of Sharfuddin never challenged the genuineness or otherwise or voidability of the sale deed ext. ‘1’, during his life time. The defendants appellants also never challenged the sale deed ext.‘1’. Therefore, after lapse of more than 33 years, the defendants cannot say that the sale deed was not acted upon nor possession was given nor consideration passed. 18. The Supreme Court in the case of Abdul Rahim Vs. Abduil Zabbar AIR 2010 SC 211 held that ‘a suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act.’ Now, therefore, when the defendant would not have challenged the sale deed by instituting the suit how can they be allowed to challenge the sale deed on the ground of being void or voidable by way of defence beyond period of three years provided under Article 59 of the Limitation Act. 19. In the case of Noorul Hoda Vs. 19. In the case of Noorul Hoda Vs. Bibi Raifunnisa 1996 (7) SCC 767 , the Supreme Court has held that ‘when the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise bind him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument, is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the Court may in its discretion so adjudged it and order it to be delivered or cancelled.’ Here in the present case admittedly, the sale deed is registered sale deed executed by admitted share holder Sheikh Arzoo, the ancestor of defendants in faovour of Sharfuddin. As stated above, neither Sheikh Arzoo nor his descendants ever sought any declaration that the sale deed is void or voidable within the stipulated period provided under Article 59 of the Limitation Act. What would not have been done directly by the defendants cannot be allowed to be done indirectly by them by way of defence. In other words, in the present suit, their title cannot be declared. 20. What would not have been done directly by the defendants cannot be allowed to be done indirectly by them by way of defence. In other words, in the present suit, their title cannot be declared. 20. So far passing of consideration is concerned, the Supreme Court in the case of Janak Dulari Devi vs. Kapildeo Rai 2011 (6) SCC 555 has held that ‘as per practice of ta khubzul badlain prevalent in Bihar (that is, title to the property passing to the purchaser only when there is exchange of equivalents), where a sale deed recites that the entire sale consideration has been paid and possession has been delivered, but the registration receipt is retained by the vendor and possession of the property is also retained by the vendor, as the agreed consideration (either full or a part) is not received, irrespective of the recitals in the sale deed, the title would not pass to the purchaser, till payment of the entire consideration to the vendor and the registration receipt is obtained by the purchaser in exchange.’ In the present case at our hand it is admitted fact that the registered sale deed has been produced from the custody of the plaintiff. If consideration was not paid to Sheikh Arzoo, the registration receipt would not have been handed over to the purchasers Sheikh Sharfuddin, as a result of which he would not have received the sale deeds from the Registry office. Since the sale deed have been produced by the plaintiff, the presumption is that consideration money was paid. The defendants are challenging passing of consideration after more than 33 years, i.e., beyond limitation period. Moreover, the sale deed was executed by Sheikh Arzoo to pay the Sudhbharna money, i.e., mortgage money Rs.700/- to the mortgagee, Sheikh Atalua. There is clear recital in the sale deed regarding payment of the said amount of consideration. Had it not been paid Sheikh Sharfuddin could not have obtained the sale deed. Further it is the case of the defendant that after death of Arzoo, the defendants paid the mortgage money. If the case of the defendant is relied then it is expected that the defendants were in possession of the mortgage deed but to show the redemption note in the back of mortgage deed, the defendants never produced before the Court and only explanation has been given that it has been lost. If the case of the defendant is relied then it is expected that the defendants were in possession of the mortgage deed but to show the redemption note in the back of mortgage deed, the defendants never produced before the Court and only explanation has been given that it has been lost. Now, therefore, this explanation cannot be accepted. 21. The defendants have examined witnesses in support of their case that no consideration amount was paid. D.W.2, Sheikh Hadi, is original appellant No.2. In his evidence, he has stated that neither the consideration money was paid nor the Sudhbharna money was paid. Sudhbharna money was paid by Sheikh Arzoo one and half year after the execution of the sale deed. It may be mentioned here that the defendants in the written statement pleaded that Sudhbharna money was paid by heirs of Sheikh Arzoo but D.W.2 stated otherwise. D.W.16 who is also defendant 2nd party has stated that Sudhbharna money was paid by Sheikh Arzoo and Sheikh Ahmad. Therefore, the evidence of this witness is also contrary to the pleading. D.W.5 has admitted in cross-examination at paragraph 10 that Sheikh Arzoo paid the Sudhbharna money from the consideration money. As discussed above, the pleading is that the heirs of Sheikh Arzoo paid the mortgage money whereas the evidence is that Sheikh Arzoo paid the Sudhbharna, i.e., mortgage money. Therefore, the evidence produced by the defendants is not supporting the pleading. In other words, the evidence is contrary to the pleading. 22. The learned counsel for the appellant submitted that the sale deed was never acted upon. So far this submission is concerned, I have already discussed the law laid down by the Apex Court above. As soon as the sale deed was registered and there was exchange of equivalents, the title passed to Sharfuddin. Only because Sheikh Sharfuddin did not file any application for his mutation, it cannot be said that the sale deed was never acted upon and moreover after such a long period, no such declaration can be made at the instance of defence, particularly when the defendants neither prayed for declaration of their title. The question will be whether because of no mutation or non-opening of demand in the name of Sehikh Sharfuddin, the title which has already vested on Sehikh Sharfuddin on the bass of ext.1 will be divested? The question will be whether because of no mutation or non-opening of demand in the name of Sehikh Sharfuddin, the title which has already vested on Sehikh Sharfuddin on the bass of ext.1 will be divested? The appellant is unable to point out any such provision of any law. 23. The learned counsel for the appellant submitted that the defendants are in possession of the property and the Court below has wrongly recorded the finding that the defendants are not in possession. So far this question is concerned, the defendants have examined D.W.3 and D.W.4, D.W.6, D.W.7 and D.W.8 & D.W.10, D.W.13, D.W.14 who all have denied possession of the plaintiff and have stated that the defendants are in possession of the property. It will not be out of place to mention here that according to the defendants, no consideration was paid by Sharfuddin, therefore Sheikh Arzoo had continued in possession and after him, the defendants continued in possession. So far non-passing of consideration is concerned, as discussed above, the defendants failed to prove the same. Now, the question is if there is exchange of equivalent and vendor was bound to deliver possession to the purchaser, how Sheikh Arzoo continued in possession. It appears that the defence had been taken for the shake of defence and only the witnesses have been examined who said that the plaintiff never came in possession. Sheikh Sharfuddin was the purchaser in the year 1944 who sold the properties to the present plaintiff. He has been examined in the case and has fully supported the case of the plaintiff. 24. The defendants have also produced rent receipts ext.‘D’ series which have been issued either by ex.landlord or by the State of Bihar. Ext.‘F’ is mortgage deed dated 13.06.1956 has been produced to show that the heirs of Sheikh Arzoo were dealing the property even after execution of sale deed in favour of Sheikh Sharfuddin. From perusal of the Judgment of the court below, it appears that the Court below held that this ext. ‘F’ relates to other property which was sold to defendants 2nd Set and are not the suit property. 25. In view of the facts, it appears that the defendants have produced the evidences in support of their possession. From perusal of the Judgment of the court below, it appears that the Court below held that this ext. ‘F’ relates to other property which was sold to defendants 2nd Set and are not the suit property. 25. In view of the facts, it appears that the defendants have produced the evidences in support of their possession. It is settled principle of law that on the basis of rent receipts and / or the orders passed by the revenue authorities, and / or the revenue records of rights, neither title will be created nor extinguished. Here, Sharfuddin was the owner of the property after transfer through ext.‘1’. Only because the rent receipts have been produced by the defendant and / or their names have been mutated, in my opinion, it cannot be said that the sale deed was not acted upon or that the defendants are in possession . It is settled law that possession always follows title. Moreover, the plaintiff have also examined P.W.1 one of the plaintiff, Sheikh Sharfuddin, as P.W.11, the bhoulidar, Niyamak, P.W.14, all of them have fully supported the possession of P.W.11, Sheikh Sharfuddin since purchase and after selling the same to the plaintiff, the possession of the plaintiff. P.W.2, P.W.7, 8, 13, have also supported the possession of the plaintiffs. In view of the above position, the plaintiffs have produced the documentary evidences, i.e., title deeds and the positive evidence of possession. 26. The learned counsel for the appellant submitted that no return had been produced by the plaintiff, is concerned, in my opinion, the evidence had been adduced by the plaintiff to the effect that the return was filed by the ex.landlord. To controvert this, the defendants would have produced the return filed by the ex.landlord in their name. It is their case that they continued in possession, therefore, the return would have been filed by them. When the title deed had been produced by the plaintiff coupled with the oral evidence, merely because the return have not been produced, no adverse inference can be drawn. 27. So far the submission of the learned counsel regarding the rent receipt ext.‘3’ is concerned, I have already stated that rent receipts neither creates title nor extinguish title nor on the basis of rent receipts, finding of possession can be recorded. 27. So far the submission of the learned counsel regarding the rent receipt ext.‘3’ is concerned, I have already stated that rent receipts neither creates title nor extinguish title nor on the basis of rent receipts, finding of possession can be recorded. Moreover, the findings of possession given by the revenue authority is not binding on the civil Court. 28. So far the submission of the learned counsel regarding bifurcation of 3 bigghas of land (1.69 acres) of Sharfuddin in two blocks, it may be mentioned that the plaintiff specifically pleaded that in partition of the year 1955, his lands were adjusted at two places. It is admitted case of the parties that on the date of execution and registration of the sale deed, both the owners were joint. Out of 50 per cent share, Sheikh Arzoo sold only 1.69 acres = 3 biggha. The area of old plot No.113 is admittedly 8.75 acres. There was partition in the year 1955 and in that partition, 1.69 acres of Sharfuddin was adjusted at two places but in the same plot, in my opinion, there is no necessity for further execution of any registered document. Because there was no partition between the two owners, both of them had right over entire property equally. Sheikh Arzoo sold the property, therefore, the property sold was adjusted in the said very plot when partition took place. In such view of the matter, the plaintiff cannot be non-suited on the ground of impossibility of bifurcation or for non-execution of any document. 29. In view of my above discussion, I find that the sale deed ext.‘1’ executed by Sheikh Arzoo in favour of Sheikh Sharfuddin is legal, valid, and for consideration and Sheikh Sharfuddin came in possession of the same and he sold the property by four registered sale deeds in favour of the plaintiffs and delivered possession to the plaintiffs who are coming in possession thereof. The findings of the Court below on this question is, therefore, hereby confirmed. 30. In the result, I find no merit in this First Appeal. Accordingly, this First Appeal is dismissed. In the fats and circumstances of the case, there shall be no order as to cost. ?