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2019 DIGILAW 29 (JHR)

Chunni Devi v. Kaushalaya Devi

2019-01-03

ANIL KUMAR CHOUDHARY

body2019
JUDGMENT Anil Kumar Choudhary, J. - Heard the learned Senior Advocate appearing for the appellants. 2. The appellants have preferred this Second Appeal under Section 100 of the Code of Civil Procedure being aggrieved by the Judgment and Decree dated 22nd March, 2010 passed by the learned Additional Judicial Commissioner XVIII, Ranchi in Title Appeal No. 52 of 2007 by which the learned court below has dismissed the appeal on contest and upheld the judgment and decree passed by the learned trial court. 3. The brief facts of the case is that the suit land originally belonged to Ishwar Choudhary. Ishwar Choudhary sold and transferred the suit land to the plaintiff vide registered sale deed dated 10.12.1986 and thus the plaintiff acquired valid right, title and interest over the suit land and came in possession over the same as rightful owner. The plaintiff also got her name mutated in the office of Ranchi Municipal Corporation and has been paying the rent and taxes for the same also. The defendant no.1 is the own sister of the plaintiff and the defendant no.2 is the husband of the defendant no.1. After purchase, the plaintiff made certain addition and alteration in the said house. The defendants requested the plaintiff to accommodate them in the suit house for some time and the plaintiff temporarily allowed the defendants to reside in that house till they make their alternative arrangement for residence and thus the defendants continued in possession of the suit house for about eight years prior to filing of the suit by the plaintiff under the permissive possession of the plaintiff. The plaintiff asked the defendants to vacate the suit premises but the defendant avoided the same on one pretext or the other. When the plaintiff pressed the defendants hard to vacate the suit premises, the same resulted in quarrel between the parties and a proceeding under Section 144 Cr.P.C. was also initiated. In the said proceeding, the defendants denied the title of the plaintiff over the suit property; hence the plaintiff filed the suit. 4. When the plaintiff pressed the defendants hard to vacate the suit premises, the same resulted in quarrel between the parties and a proceeding under Section 144 Cr.P.C. was also initiated. In the said proceeding, the defendants denied the title of the plaintiff over the suit property; hence the plaintiff filed the suit. 4. The case of the defendants on the other hand is that in the year 1977 when the defendant no.1 was a minor child, her mother Kamla Devi settled with Ishwar Choudhary to purchase the suit land which was vacant at that time and for that she entered into an agreement with Ishwar Choudhary for purchase and Ishwar Choudhary fixed a price of Rs.10,000/- only and Kamla Devi paid a sum of Rs.2000/- as an advance money out of the said amount and thereafter Ishwar Choudhary put Kamla Devi in possession of the suit land and allowed Kamla Devi to construct her residential house over the same and assured her that when the entire amount will be paid, he would execute the sale deed in her favour. Accordingly, Kamla Devi constructed a Kachha house and began to live there along with her family. After marriage with the defendant no.1, the defendant no.2 became a Ghar Damad. It is also the case of the defendants that the plaintiff is the daughter of Kamla Devi from her first husband and the defendant no.1 is the daughter of Kamla Devi from her second husband. The plaintiff had no concern with Kamla Devi. In the absence of defendant no.2 in connection of treatment of defendant no.1, the plaintiff came to Kamla Devi and told her that Ishwar Choudhary was ready to execute the sale deed if the entire consideration amount would be paid to him and the original agreement for sale would be handed over to him. Kamla Devi in good faith handed over the original agreement to the plaintiff and the plaintiff succeeded in managing to get the suit land transferred in her name by keeping Kamla Devi in dark. The defendants denied that they are in permissive possession of the plaintiff over the suit property. 5. Kamla Devi in good faith handed over the original agreement to the plaintiff and the plaintiff succeeded in managing to get the suit land transferred in her name by keeping Kamla Devi in dark. The defendants denied that they are in permissive possession of the plaintiff over the suit property. 5. On the basis of the rival pleadings of the parties, the learned trial court framed altogether 7 issues, the main issue being issue no.6 which is " Whether the plaintiff has acquired valid right, title and interest over the suit property by virtue of registered sale deed dated 10.12.1986 and entitled to get recovery of possession of suit property?". 6. The learned trial court answered all the issues in favour of the plaintiff and decreed the suit on contest. The defendants being aggrieved by the judgment and decree passed by the trial court being the learned Sub-Judge II, Ranchi in Title Suit No. 32 of 2004, preferred an appeal in the Court of learned Judicial Commissioner, Ranchi which was numbered as Title Appeal No. 52 of 2007. The said appeal was ultimately heard and disposed of by the learned Additional Judicial Commissioner XVIII, Ranchi by the impugned judgment. The only point agitated by the appellants before the first appellate court is that the trial court erred by not considering that the defendants-appellants have been in actual physical possession over the suit property since last more than 25 years and as such the appellants have acquired their right, title and interest by adverse possession. The learned first appellate court formulated only point for determination is "whether the impugned judgment and decree passed by the learned court below are sustainable?" The learned first appellate court made an independent assessment of the evidence in the record and came to conclusion that the defendants have failed to prove their pleadings that they have been residing in the house in question with the permission of Ishwar Choudhary- the admitted owner and their possession has become adverse to him and held that the defendants are residing in the suit house under permissive possession of the plaintiff and dismissed the appeal. 7. Mr. 7. Mr. Manjul Prasad, the learned Senior Advocate appearing for the appellants submits that the learned first appellate court erred by shifting the burden of proof of the case to the defendants when it is a settled principle of law that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. In support of his contention, Mr. Prasad, learned Sr. Advocate appearing for the appellants relied upon the judgment of Hon''ble Supreme Court of India in the case of Union of India and Others V. Vasavi Co-op. Housing Society Ltd. and Others, (2014) AIR SC 937 wherein the Hon''ble Supreme Court has held as under in paragraph no. 15:- "15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff''s own title, plaintiff must be non-suited." But Mr. Prasad, learned Sr. Advocate did not contest the contents of the impugned judgment wherein it has been categorically mentioned by the first appellate court that the only ground agitated before the first appellate court is regarding acquisition of right, title of the defendants over the suit land by way of adverse possession. 8. Having heard the submissions made at the Bar and after going through the materials on record, it is pertinent to mention here that the trial court has discussed the evidence in the record to arrive at the conclusion that the plaintiff has acquired valid right, title and interest over the suit property by virtue of registered sale deed dated 10.12.1986 and entitled to get recovery of possession of the suit property. The finding of the trial court regarding acquisition of the valid right, title and interest over the suit land was not agitated before the first appellate court as is evident from the impugned judgment and the same is not contested by the learned Senior Advocate appearing for the appellants. It is a settled principle of law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse as has been reiterated by the Hon''ble Supreme of India, in paragraph -10 of the case of Gurvachan Kaur and Others vs. Salikram (dead) through LRS., (2010) 15 SCC 530 which reads as under:- "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate Court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." (Emphasis Supplied). The only point which was agitated before the first appellate court was the error on the part of the learned trial court in not considering the fact that the defendants have perfected their title by way of adverse possession and accordingly the first appellate court has considered the only point raised before it regarding adverse possession and after considering the evidence in record and the relevant law has come to the conclusion that the defendant-appellants have not succeeded in establishing their title over the suit land by way of adverse possession as agitated by them before the first appellate court. No doubt, as rightly submitted by the learned Senior Advocate appearing for the appellants and as also being held by the Hon''ble Supreme Court in the case of Union of India and Others V. Vasavi Co-op. No doubt, as rightly submitted by the learned Senior Advocate appearing for the appellants and as also being held by the Hon''ble Supreme Court in the case of Union of India and Others V. Vasavi Co-op. Housing Society Ltd. and Others (Supra) that the plaintiff in the suit of declaration of title and possession could succeed only on the strength of its own case and that could be done only by adducing sufficient evidence to discharge the onus on it but as undisputedly no other contention apart from perfection of title of the defendants over the suit property by way of adverse possession was agitated before the first appellate court, there is no finding of facts of the first appellate court before this court so far as any other ground to set aside the judgment of the trial court, to be appreciated by this court as to whether such finding is perverse or not and certainly the act of the first appellate court in not considering the grounds other than the ground agitated before it in the facts and circumstances of the case can by no stretch of imagination be termed as perverse. Under these facts and circumstances of this case, this Court is of the considered opinion that there is no substantial question of law involved in this appeal. Accordingly, this appeal being without any merit is dismissed but in the circumstances without any costs. 9. Let a copy of this judgment be sent to the learned court below forthwith.