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2016 DIGILAW 1227 (JHR)

Sarswati Devi v. Rekha Devi

2016-08-05

D.N.UPADHYAY

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JUDGMENT : D.N. Upadhyay, J. 1. This second appeal has been preferred by the plaintiff/appellant against the judgment dated 29th November, 2003 and decree dated 16th December, 2003, passed and signed by learned District Judge, Deoghar in connection with Title Appeal No.37 of 2003, whereby the judgment 19th August, 1986 and decree dated 13th July, 1987, passed and signed by learned 3rd Additional Sub Judge, Deoghar in connection with Title Suit No.83 of 1974/04 of 1984 has been set aside and the appeal preferred by the defendants first set stood allowed. 2. This Court while admitting the appeal framed following substantial question of law:- “Whether lower Appellate Court has committed serious error of law in reversing the judgment and decree of the Trial Court on extraneous ground, beyond the pleadings and evidences on record?” 3. The fact of the case, in brief, is that the appellant, who was plaintiff in the court below, had filed a title suit, being Title Suit No.83 of 1974/04 of 1984. The plaintiff had purchased land, measuring 11 Bighas, 11 Kathas and 4 Dhurs, situated in village Sapha, Town Madhupur, being Thoka Nos.10 to 10/D of Patharol Ghatwal Estate, Holding No.120, Ward no.9 within Madhupur Municipality, described in Schedule-A of the plaint, from Lal Chand Mallick and Rup Chand Mallick through registered sale deed dated 12th March, 1974 and prior to the execution and registration of sale deed, the plaintiff had paid a sum of Rs.1001/- as earnest money on 21st November, 1973, when he contracted for purchase of the aforesaid land. It is contended that Defendant Nos.1 and 2, who are mussel men, with the help of their henchmen encroached upon portion of land, measuring 25’ x 12’ falling at the road side, mentioned in Schedule-B of the plaint, and after making encroachment, the defendants first set had constructed a shop. It is also contended that in course of encroachment, the defendants first set demolished part of the boundary wall lying towards road side. The plaintiff had stored some bricks for further construction and repair of the boundary wall, but those bricks and building materials were also taken by the defendants and their men. It is also contended that in course of encroachment, the defendants first set demolished part of the boundary wall lying towards road side. The plaintiff had stored some bricks for further construction and repair of the boundary wall, but those bricks and building materials were also taken by the defendants and their men. The plaintiff asked the defendants first set to surrender the encroached land, but they refused to do so and that created apprehension in the mind of plaintiff that the defendants may further encroach rest portion of the land because he resides in Kolkata. The cause of action for filing of the suit arose sometimes in the month of November, 1973 when the defendants constructed a shop over encroached portion of the land and on 18th March, 1974 when the plaintiff asked the defendants first set to vacate and surrender possession of the suit land, mentioned in Schedule-B of the plaint, the plaintiff had sought for a decree for possession over the suit land, mentioned in Schedule-B, and also for a decree for declaration of plaintiff’s right, title and interest over the suit property, described in Schedule-A of the plaint, inclusive of property described in Schedule-B of the plaint. He has further prayed for a decree for confirmation of possession over the land, mentioned in Schedule-A against the defendants first set and a decree for recovery of possession over the property, mentioned in Schedule-B, as against defendants first set. It was alternatively prayed for recovery of possession with respect to Schedule-A land in case the plaintiff is found dispossessed in future. 4. On being receipt of notice, the defendants first set, who are contesting defendants (Defendant Nos.1 and 2), appeared and filed their written statement. The allegations levelled in the plaint have been denied specifically parawise and they have made out a case that no cause of action ever arose. According to the defendants first set, total area of land in dispute is 11 Bighas, 10 Kathas and 16 Dhurs, whereas the plaintiff has given total area of land, which he had purchased is measuring 11 Bighas, 11 Kathas and 4 Dhurs. The defendants first set have contended that the sale deed executed in favour of the plaintiff is a fabricated document. No such sale in favour of the plaintiff ever took place. The defendants first set have contended that the sale deed executed in favour of the plaintiff is a fabricated document. No such sale in favour of the plaintiff ever took place. Contrary to that, said Rup Chand Mallick-Defendant No.4 sold the suit land to defendants first set for a consideration amount of Rs.900/- and put them in possession in the month of March, 1958. Even after repeated requests, no sale deed by Rup Chand Mallick was executed on the pretext that members in the family are lying ill. The defendants first set were made to convince that they are in possession of the land, therefore, they will have nothing to worry about the sale deed. It is contended that Rup Chand Mallick and other co-sharers kept on assuring that the sale deed would be executed, but it was not done. The defendants first set constructed a room in a portion of land and also put a wall on the north side of the land to protect the same against attack of animals and they have started running a shop in the room constructed on the land. Rest portion of the land was also acquired by them for the purpose of cultivation. 5. The defendants second set (Defendant Nos.3 to 15) are the original owner of the suit land and they have supported the case of the plaintiff. It is stated on their behalf that the suit land is 11 Bighas, 11 Kathas and 4 Dhurs and to sell the said land, they contracted the plaintiff in the month of November, 1973 and consideration amount was agreed at Rs.16,000/-. After receipt of full and final consideration amount, the defendants second set had executed a sale deed in favour of the plaintiff and also delivered possession of the land to him. It is denied that the defendants first set ever came in possession of the suit land and it was never sold to them. So far as the encroachment made by the defendants first set is concerned, it was not within the knowledge of defendants second set because they are residents of West Bengal. 6. It is denied that the defendants first set ever came in possession of the suit land and it was never sold to them. So far as the encroachment made by the defendants first set is concerned, it was not within the knowledge of defendants second set because they are residents of West Bengal. 6. On the basis of pleadings, issues were framed by the learned Sub Judge and after considering the evidences and documents brought on record by the parties, the Trial Court has decreed the suit in favour of the plaintiff on contest with cost against defendants first set and ex parte against rest of the defendants, but without cost. The title to the plaintiff has been declared on the suit land, measuring 11 Bighas, 11 Kathas and 4 Dhurs, mentioned in Schedule-A of the plaint. Possession of the plaintiff has also been confirmed over Schedule-A land except Schedule-B land and the plaintiff is entitled to have possession over Schedule-B land. The defendants first set were directed to deliver vacant possession of Schedule-B land to the plaintiff within one month from the date of passing of the order, failing which same shall be recovered through process of Court. 7. The defendants first set being aggrieved by and dissatisfied with the judgment dated 19th August, 1986, decree signed on 13th July, 1987, passed by learned 3rd Additional Sub Judge, Deoghar in connection with Title Suit No.83 of 1974/04 of 1984, preferred a title appeal, being Title Appeal No.37 of 2003, in the court of learned District Judge, Deoghar. After granting hearing to the parties, learned District Judge set aside the judgment and decree passed by the learned Trial Court in Title Suit No.83 of 1974/04 of 1984 and the suit filed by the plaintiff was considered dismissed and hence this second appeal. 8. Learned counsel for the appellant has submitted that the findings of the learned District Judge are highly erroneous and the Lower Appellate Court has committed serious error of law in reversing the judgment and decree of the learned Trial Court after considering the facts, which were neither pleaded nor evidenced. Only because the defendants first set have challenged the sale deed executed in favour of the plaintiff, the Court should not have travelled beyond the pleadings and evidence available on record to decide the issue. Only because the defendants first set have challenged the sale deed executed in favour of the plaintiff, the Court should not have travelled beyond the pleadings and evidence available on record to decide the issue. The defendants, who are having no chit of paper to show that at any point of time either they were put in possession over the suit land by the landlord or any transaction in their favour was ever made. The defendants second set are the owner of the property and that is admitted by the contesting defendants i.e. Defendant Nos.1 and 2. The contesting defendants did not produce even a single document to show that they have been enjoying possession over the suit land since 1958. Learned Lower Appellate Court has wrongly followed the principle that the plaintiff has to stand on his own leg and he cannot take advantage of weakness of the case of the defendants. Such issue was not at all involved because the plaintiff has claimed his right, title, interest and possession over the suit property on the basis of a valid registered sale deed and no co-sharer or owner of the property has come forward to challenge the title of the plaintiff, rather they all have supported the case of the plaintiff by filing written statement before the Trial Court. In support of the said contentions, learned counsel for the appellant has relied upon the following judgments:- (i) AIR 2002 SC 812 [Mool Chand Bakhru & Anr. Vs. rohan & Ors.] (ii) (2009)3 Supreme 460 [Vimal Chand Ghevarchand Jain & Ors. Vs. Ramakant Eknath Jajoo] (iii) (2003)4 SCC 161 [Bondar Singh & Ors. Vs. Nihal Singh & Ors.] (iv) 2007(3) JLJR 266 [Amar Singh & Ors. Vs. Swarn Singh] (v) 2009 SCCR 81 [Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & Ors.] (vi) (2006)7 SCC 570 [T. Anjanappa & Ors. Vs. Somalingappa & Anr.] (vii) AIR 1960 SC 100 [Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi & Ors.] 9. On the other hand, learned counsel for the respondents has submitted that the sale deed executed in favour of the plaintiff by defendants second set is nothing but a sham transaction. At no point of time, the plaintiff was put in possession over the suit land and he did not enjoy his possession over the suit property at any point of time. At no point of time, the plaintiff was put in possession over the suit land and he did not enjoy his possession over the suit property at any point of time. In support of the said contentions, counsel for the respondents has relied on the following judgments:- (i) (1997)1 SCC 477 [Ninge Gowda Vs. Linge Gowda & Ors.] (ii) (2001)9 SCC 521 [Pakeerappa Rai Vs. Seethamma Hengsu Dead by LRS. & Ors.] (iii) (2010) 15 SCC 530 [Gurvachan Kaur & Ors. Vs. Salikram (Dead) through LRS.] (iv) (2011)12 SCC 220 [Rangammal Vs. Kuppuswami & Anr.] 10. To answer the substantial question of law, framed in this second appeal, I have examined Lower Court Record and the impugned judgments. The admitted fact is that the defendants second set are the owner of the property, which is admitted by the contesting defendants too. The sale deed executed in favour of the plaintiff by the defendants second set has not been denied, rather they have admitted. It is evident from the judgment of the Lower Appellate Court that the Court has travelled beyond the pleadings and evidences available on record for coming to the conclusion that all the co-sharers of the property have not joined as vendors for execution of sale deed and the vendors, who had executed the sale deed, were not holding valid title over the suit property. I do not find that any such evidence was led by the contesting defendants first set or it was the case of the contesting defendants in the court below. Simple case of the defendants first set was that they had acquired property in the year 1958 by way of oral transaction and they paid a sum of Rs.900/-to Defendant No.4-Rup Chand Mallick, but no sale deed was executed because of illness in the family of owner of the property. 11. Here in the case at hand, the admitted position is that the defendants first set are not having a single chit of paper either to prove their ownership over the property or valid possession. As per the evidence, they are encroachers. Sale of immovable property for more than Rs.100/- is necessarily be required to be registered, but the defendants first set are not having any such document even unregistered. As per the evidence, they are encroachers. Sale of immovable property for more than Rs.100/- is necessarily be required to be registered, but the defendants first set are not having any such document even unregistered. The Lower Appellate Court has further erred in holding that the contesting defendants first set by enjoying possession over the suit land for more than 12 years have perfected their title. There is no such evidence on record and the possession claimed by the contesting defendants has not been substantiated because of the defendants second sent, who are owner of the property, did not recognize them as purchaser nor persons who were put in possession over the suit property. The findings of the learned Lower Appellate Court based on extraneous ground, beyond the pleadings and evidences on record cannot be sustained. 12. In the result, I feel inclined to allow this second appeal. Accordingly, this second appeal is allowed. The judgment dated 29th November, 2003 and decree dated 16th December, 2003, passed and signed by learned District Judge, Deoghar in connection with Title Appeal No.37 of 2003, is hereby set aside and the judgment dated 19th August, 1986 and decree dated 13th July, 1987, passed and signed by learned 3rd Additional Sub Judge, Deoghar in connection with Title Suit No.83 of 1974/04 of 1984 is hereby affirmed.