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2015 DIGILAW 1316 (JHR)

Bhola Mahto v. Nirpath Mahto

2015-10-16

AMITAV K.GUPTA

body2015
Judgment : Amitav K. Gupta, J: This appeal is directed against the judgment and decree dated 30.01.2003 and 20.02.2003 respectively passed in Title Appeal no.2 of 2002/109 of 2002 whereby the 6th Addl. District Judge, Giridih allowed the appeal and set aside the judgment and decree dated 19.12.2001 and 07.01.2002 respectively whereby Title Suit no.63/97 was dismissed by the learned Munsif, Giridih. 2. This original suit i.e. Title Suit no.63 of 1997 was instituted by plaintiffs, namely, Nirpat Mahto, Bhikho Mahto, Karman Mahto and Sukhdeo Mahto who are respondent no.1 to 4 herein. Bhikho Mahto died pendente lite and is substituted by his legal representatives. Original defendant no.1-Bhola Mahto is the appellant herein. Defendant nos.2 and 3, namely, Bibi Madina Khatoon and Bibi Jahira Khatoon were proforma defendants and are respondent nos.5 and 6 herein. Bibi Zahira Khatoon died pendentelite and is substituted by her legal representatives. Brief facts of the case is that the suit property of plot no.270, Khata no.13 was recorded in the name of Gulab Miyan who was survived by two sons, namely, Imamuddin and Rahmat Ali. Each inherited half a share in the said property. Imamuddin transferred his half share in the name of his wife-Bibi Rafidan in lieu of dower. Likewise, Rahmat Ali, plaintiff's son, transferred his half share in the name of Bibi Zahira, his daughter-in-law. Both the transfers were made by the registered deed in the year 1944 and 1954 respectively. It is claimed that the plaintiff purchased the interest of Bibi Zahira through registered sale deed and Bibi Rafidan also transferred her interest in plot no.270 in favour of her daughter-Bibi Madina. The interest of Bibi Madina, transferee of Bibi Rafidan, is claimed to have been purchased by the plaintiffs in the year 1997. It is alleged that when the plaintiff tried to erect a fence over the entire purchased land the defendant no.1 obstructed to the construction. It is alleged that the defendant claimed title over the suit property on the basis of a bogus document. Consequent thereto, the plaintiffs filed the suit for declaration of title and recovery of possession of the property. 3. Defendant no.1-Bhola Mahto, the present appellant, contested the suit claiming that Bibi Rafidan had transferred her entire interest in Plot no. It is alleged that the defendant claimed title over the suit property on the basis of a bogus document. Consequent thereto, the plaintiffs filed the suit for declaration of title and recovery of possession of the property. 3. Defendant no.1-Bhola Mahto, the present appellant, contested the suit claiming that Bibi Rafidan had transferred her entire interest in Plot no. 270, Khata No. 13 through registered sale deed dated 11.11.1954 in the name of Bharat Narayan Lal, therefore she did not have any right or authority to transfer any portion of land of Plot no. 270. Accordingly, the alleged sale deed of the year 1966 executed by Bibi Rafidan in favour of her daughter is a nullity in the eye of law. The defendant no. 1 claimed to have purchased the entire interest of Bibi Rafidan in Plot no. 270 through registered sale deed from the heirs of Bharat Narayan Lal. 4. The trial court after considering and discussing the oral and documentary evidence adduced by the parties, dismissed the suit of the plaintiff on the ground that since the property had already been transferred in the name of Bharat Narayan Lal as far back in the year 1954, hence the sale deed alleged to have been executed by Bibi Rafidan in favour of Bibi Madina or any subsequent transfer by the said purchaser in 1997 shall not convey any title over the property which had already been transferred to Bharat Narayan Lal by registered sale deed dated 11.11.1954. The certified copy of registered sale deed in favour of Bharat Narayan Lal is marked Ext. B. Ext. B/1, is the subsequent sale deed executed by the successor in interest of Bharat Narayan Lal, in favour of defendant no. 1/appellant. 5. The first appellate court, after hearing the appeal, allowed the appeal observing therein that no reliance can be placed on Ext. B. It has been held that the original sale deed has not been brought on record and certified copy of the sale deed has not been properly proved. It has also been observed that in the sale deed (Ext.-B) 0.18 acres of land within Plot no. 270 was transferred whereas the share of Bibi Rafidan in Plot no. 270 was only 0.11 acres. It has also been observed that in the sale deed (Ext.-B) 0.18 acres of land within Plot no. 270 was transferred whereas the share of Bibi Rafidan in Plot no. 270 was only 0.11 acres. The appellate court referred to Section 92 of the Evidence Act and held that the defendant/appellant, herein, failed to discharge the onus of proving that there was any mistake in the sale deed. Consequently, the trial court judgment was set aside and the appeal was allowed holding therein that the plaintiff/appellant/respondent had title over the suit property. 6. Aggrieved by the said judgment the second appeal has been preferred which was admitted for hearing on the substantial question of law which was framed as hereunder:- “Whether the lower appellate court has misconstrued the sale deed dated 11.11.1954 (Ext. B) and has wrongly applied the provision of Section 92 of Evidence Act and has committed error of law by setting aside and reversing the judgment and decree of the trial court?” 7. Mr. Manjul Prasad, learned senior counsel for the appellant submitted that this court is not bound by the substantial question as framed and if necessary other questions of law can be framed for the purpose of deciding this appeal. It has been canvassed that once the certified copy of sale deed dated 11.11.1954 was marked as Ext.-B, without any objection, hence it cannot be challenged in the appeal. It has been argued that certified copy of sale deed is admissible in evidence without further proof of calling for the original document. Learned counsel submitted that the sole reason for discarding Ext. B by the first appellate court is that it contains a recital showing the area of Plot no. 270 to be 18 decimals of land while the alleged transferor did not have any interest beyond 0.11 acres. Further, the first appellate court has observed that this fact was admitted by the present appellant that same was a mistake, hence the burden was on the appellant/defendant to prove the mistake. It is contended that appellate court erred in law by recording such finding because the recital of the sale deed could be proved by oral evidence. Further, if a person transfers the land beyond his title then the entire transfer shall not be vitiated rather it shall be valid to the extent of the title, the transferor. It is contended that appellate court erred in law by recording such finding because the recital of the sale deed could be proved by oral evidence. Further, if a person transfers the land beyond his title then the entire transfer shall not be vitiated rather it shall be valid to the extent of the title, the transferor. On the above points it has been contended that the first appellate court has committed grave error in law and on facts therefore the judgment of the first appellate court be set aside and the present appeal be allowed. In support of the contention learned Senior counsel has placed reliance on the decisions reported in AIR 2001 SCW 723 ; 2003 SCW 5316; AIR 2014 SC 1442, AIR 2004 SCW 4419 and 2006 JCR 330 . 8. Per contra, learned counsel for the respondent Nos. 1 to 4. i.e., original plaintiff, has argued that the first appellate court has rightly set aside the judgment of the trial court as the alleged sale deed dated 11-11-1954 executed in favour of Bharat Narayan Lal is ex-facie a bogus document. It is submitted that the appellant/plaintiff has not been able to bring on record any plausible explanation as to under what circumstances he could not produce the original document. It is urged that it is explicit from the recital made in the alleged bogus sale deed that 18 decimal of land in Plot no, 270 was transferred whereas it is admitted fact that Rafidan Bibi had purchased only 11 decimals of land in Plot no. 270. It is contended that section 92 of the Evidence Act categorically prohibits and mandates that no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding to or subtracting from the terms of registered instrument. To butress his argument learned counsel has relied on the decisions reported in 2004 (2) SCC 283 on the point of Section 92 of the Evidence Act and further 2008 (7) SCC 716 has been relied upon on the issue of burden of proving a mistake in the sale deed. Learned counsel has relied on the decision reported in 2010 (15) SCC 530 and contended that the findings of facts by the first appellate court is final and it cannot be interfered with in the second appeal. 9. Learned counsel has relied on the decision reported in 2010 (15) SCC 530 and contended that the findings of facts by the first appellate court is final and it cannot be interfered with in the second appeal. 9. Having heard the submission advanced by the learned counsels it is needless to state that the law is well settled that second appeal is to be heard on the substantial question of law as mentioned under Section 100 of CPC which mandates that if the High Court is satisfied that substantial question of law is involved in any case it shall formulate such question and that the appeal shall be heard on the question so formulated. The proviso to sub-clause 5 of Section 100 of CPC reads as hereinunder:- “Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear for reasons to be recorded, the appeal on any substantial question of law, not formulated by it, if it is satisfied that the case involves such question.” The Hon'ble Apex Court while considering this matter in the decision reported in AIR 2008 SC 2594 has held the substantial question of law, means not only substantial question of law of general importance, but also substantial question of law arising in a case between the parties. In the context of Section 100 CPC, any question of law which affects final decision in a case between the parties is a substantial question of law as between the parties. In another decision reported in 2012 (8) SCC 148 the Hon'ble Apex Court held that the High Court can entertain second appeal on substantial question of law even if the same is not formulated and additional substantial question of law can be framed in course of the hearing of the appeal. Under exceptional circumstances, the High Court can entertain in second appeal even on question of fact provided the court is satisfied that the findings of the court below were vitiated by non consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded by the court below are perverse. 10. At this juncture it is pertinent to state that the substantial question of law which was framed in this appeal was whether the first appellate court has wrongly applied the provisions of section 92 of Evidence Act with regard to (Ext. 10. At this juncture it is pertinent to state that the substantial question of law which was framed in this appeal was whether the first appellate court has wrongly applied the provisions of section 92 of Evidence Act with regard to (Ext. B), the sale deed dated 11.11.1954. For better appreciation of the finding of the first appellate court which has relied on the provision of Section 92 of the Evidence Act, while allowing the appeal, it is necessary to reproduce the provision of Section 92 of the Evidence Act. Section 92 of the Evidence Act reads as hereinunder:- “When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced in the form of document, have been proved according to the last Section, no evidence of any oral evidence or statement shall be admitted, as between the parties to any such instrument or their representative in interest, for the purpose of contradicting, varying, adding to or subtracting from its terms.” There are six proviso appended to the section. The first appellate court, while deciding the appeal, has observed that oral evidence adduced by the defendant to vary the terms of the sale deed vide Ext. B was not admissible and therefore the learned lower appellate court has ignored Ext.B. It is necessary to take note of the fact that the bone of contention therein, was an alleged mistake in the area of land shown to have been transferred vide Ext. B in relation to Plot no. 270, Khata no. 13. Apparently the dispute relates to the question whether Rafidan Bibi, the vendor of Ext.B, who had title only to the extent of 11 decimals of land in Plot no. 270, has a right to transfer of 18 decimals of land in the said plot vide Ext.B. It is abundantly clear that the question whether the entire sale deed, 'Ext. B' is vitiated on account of this mistake has not been adjudicated by the first appellate court. On the contrary without deciding the said question or the finding of the learned Munsif, the first appellate court ignored 'Ext. B' solely on the ground that there was variance of the area of land in Ext. B, vis-a-vis, the share of the vendor. On the contrary without deciding the said question or the finding of the learned Munsif, the first appellate court ignored 'Ext. B' solely on the ground that there was variance of the area of land in Ext. B, vis-a-vis, the share of the vendor. In my considered view, if a person transfers land in excess of his ownership or title then the entire sale deed shall not be vitiated rather transfer to the extent the title is valid as it is settled proposition that no one can transfer a better title then he has. In the instant case, the learned first appellate court wrongly interpreted the provision of Section 92 of the Evidence Act for the purpose of ignoring Ext. B. 11. It is pertinent to mention that Ext. B is the certified copy of sale deed of the year 1954. This was admitted as evidence without any formal proof and the original document was not exhibited. The law is settled that secondary evidence should be given only in case of non-availability of primary evidence. Section 57 (5) of Registration Act reads as hereunder: “All copies given under this section shall be signed and sealed by the Registering Officer, and shall be admissible for the purpose of proving the contents of the original documents.” Section 52 of the Registration Act deals with the duties of the Registering Officer and sub-Clause C of Clause 1 of the said Section makes it obligatory for the Registering Officer to get copied the document which had been admitted to registration without necessary delay in the book appropriated thereof. It is not disputed that the Registering Officer is a public authority and the act of entering copy of the document admitted to registration in the book maintained therefor is definitely an act done in discharge of public duty. Further Section 65 (f) of the Indian Evidence Act reads as hereunder: “When the original is a document of which certified copy is permitted by this Act or by any other law in force in India to be given in evidence.” On combined reading of the above provisions read with Sections 74 and 77 of the Evidence Act shows that the entry of private document i.e. a sale deed made in the book maintained by the registering authority is a public document and certified copy of such document also comes within the purview of public document. As noticed from the facts of the present case no objection was raised when the certified copy of sale deed was marked as Exhibit i.e. Ext. B. Further, original sale deed of the year 1954 is also partially (first two pages) available on record. The original sale deed bears the signature/L.T.I. of the vendor but as noticed only two pages have been filed. The entire document is not available. On perusal of the said document the factum of transfer, the area of land shown to have been transferred and the name of the vendor and purchaser appears, therein. Further, the contents of the first two pages of the original document contains almost the recital of the entire deed and there is no variance in the certified copy, Ext.B, to the extent of the original partially available. Under such circumstances, merely because there is a recital of 18 decimals of land in Plot No. 270, the document ought not to have been ignored by the learned lower appellate court. In fact, the learned appellate court has made out a third case and such finding is perversity in law. 12. Considering the entire facts and provisions of law, it is apparent that the first appellate court passed the impugned judgment by wrongly interpreting the provisions of law and ignoring the material evidence available on record. The law is settled that once transfer has been effected, ownership gets transferred and subsequent transfer by the same vendor shall not convey any title. Rafidan Bibi having transferred her interest in Plot no. 270 in favour of Bharat Narayan Lal in the year 1954 could not subsequently transfer the same property in favour of Bibi Madina in the year 1966. This transfer deed of the year 1966 being marked as Ext. 1/A is the source of title of plaintiff/respondent and when the source itself is a nullity in the eyes of law all subsequent transfers are automatically non-est transactions. In view of the discussions made the substantial question of law is answered accordingly. 13. In the result, the present appeal is therefore allowed and the impugned judgment of the first appellate court is set aside and judgment and decree of the trial court is hereby affirmed. Appeal allowed.