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2022 DIGILAW 1122 (JHR)

Laxmi Devi v. Most. Kunti Devi

2022-09-07

GAUTAM KUMAR CHOUDHARY

body2022
JUDGMENT : 1. The appellant is the plaintiff, who has preferred the appeal against the Judgment of reversal passed in Title Appeal No.61 of 2004 by Additional District Judge, F.T.C., Koderma. 2. Since it is an old case, therefore the parties shall be referred to by their original placement in the suit and will include their legal representatives who have been substituted from time. 3. The plaintiff Gurucharan Modi filed T.S. No. 16 of 2000 in the Court of Munsif Koderma for declaration of his subsisting Raiyati Kaiyami right, title, interest, possession and concern over the suit land more fully described in the schedule of the plaint comprising of 1.07 acres of land in Khata No. 20 of Mauza Bhagadih and Khata No. 29 of Mauza Khutta, P.S- Satgawan, District- Koderma and in case of dispossession for putting in khas possession of it, and for declaration that registered deed of sale bearing No. 6647 dated 14.11.1946 and sale deed No.3350 dated 20.04.1955 to be null and void. 4. As per the Plaintiff’s case Jitan Modi was the recorded tenant who died leaving behind two sons Doman Modi and Kashi Modi. They amicably partitioned the properties of their father. The suit property fell in the share of Doman Modi. Kashi Modi died in 1944 issueless leaving his widow Dukhia Devi who died in the year 1945. The suit land was purchased by the father of the plaintiff, Ramtahal Ram by a registered sale deed dated 20.11.1946 from Doman Modi son of Late Jitan Modi who was the recorded tenant of the suit land for consideration of Rs. 600/-. After execution of the sale deed, Ram Tahal Modi came into possession of the suit land and was paying rent to the ex-landlord and State of Bihar. Ram Tahal Modi died on 19.08.1948 leaving behind one son namely the plaintiff. 5. Doman Modi died leaving behind two sons, Janki and Mani (defendant No. 1) Janki Modi died issueless. Mani Modi (defendant No. 1) has three sons namely defendant Nos. 2, 3 & 4. The defendant Nos. 1 to 4 started creating disturbance in the peaceful possession of the plaintiff filed a petition under Section 144 Cr. P.C. before S.D.M., Koderma which was registered as Case No. 10/98. S.D.M., Koderma illegally vacated the rule against 2nd party Mani Modi and others and made the rule against 1st Party absolute vide order dated 18.05.1999. The defendant Nos. 1 to 4 started creating disturbance in the peaceful possession of the plaintiff filed a petition under Section 144 Cr. P.C. before S.D.M., Koderma which was registered as Case No. 10/98. S.D.M., Koderma illegally vacated the rule against 2nd party Mani Modi and others and made the rule against 1st Party absolute vide order dated 18.05.1999. The plaintiff preferred Revision bearing Cr. Rev. No. 166/1998 before Sessions Judge, Hazaribagh wherein it was observed by the Sessions Judge that order passed by S.D.M., Koderma cannot be used to the prejudice of the plaintiff. 6. During the proceeding under Section, 144 Cr. P.C. before S.D.M., Koderma, the defendant nos. 1, 2, 3 & 4 filed show-cause claiming title to a part of suit land on the basis of registered sale deed dated 14.11.1946 by Doman Modi in favour of Domini Modi and by another sale deed allegedly executed by Ram Tahal Modi @ Tahal Modi on 20.04.1955 in favour of the defendants Janki Ram, Mani Ram and Manager Ram. The sale deeds on the basis of which right title and interest has been claimed by the defendants are forged and fabricated as Ram Tahal Modi had died on 19.08.1948 and hence could not have executed sale deed on 20.04.1955. The claim that the Khata No. 20 and 29 were not recorded in the name of Jiwan Modi was factually incorrect and therefore the sale of the said land by Doman Modi in favour of Domini Modi was executed by an unauthorised person. 7. The case of the defendants is that that Khata No. 29 and 20, P.S. 138 and 139 respectively were admittedly recorded in the name of Jitan Ram son of Nandlal Ram of village-Khutta, P.S.- Satgawan, District- Hazaribagh now Koderma who was the grand-father of defendant no. 1 Mani Modi @ Manik Modi. 8. The possession of the plaintiff over the suit land has been disputed. 9. It has been pleaded in the W.S that Ram Tahal Modi died near about in the year 1959-60 and not in the year 1948. Ram Tahal Modi executed sale deed in favour of Mani Modi and Janki Modi in 1955 and since then defendants are coming in peaceful possession over the suit land. 10. On the pleadings of the parties the trial Court has framed 11 issues, out of which issues no. Ram Tahal Modi executed sale deed in favour of Mani Modi and Janki Modi in 1955 and since then defendants are coming in peaceful possession over the suit land. 10. On the pleadings of the parties the trial Court has framed 11 issues, out of which issues no. 7, 8 and 9 are relevant and read as under:- VII. Whether the sale deed no. 6647 dated 14.11.1946 executed by Doman Modi in favour of Domini Modian and sale deed no. 3350 dated 20.04.1955 executed by Ram Tahal Ram in favour of Janki Ram, Manik Ram and Mangar Ram is illegal and liable to be quashed? VIII. Whether the plaintiff has right, title and interest over the suit land? IX. Whether the plaintiff is in possession of the suit land? 11. The trial Court considered issues No. VII and VIII together. The plaintiff has adduced into evidence sale deed No. 6724 dated 20.11.1946 which was marked as Exhibit 1 to prove that Ram Tahal Modi purchased the suit lands from the son of recorded tenant. The plaintiff also filed rent receipt issued in his favour which was marked Exhibit 2. The plaintiff filed certified copy of death register maintained by Thana which was marked Exhibit 3 to prove that Ram Tahal Ram @ Tahal Ram died on 19.09.1948. 12. The trial Court decreed the suit after discussing oral and documentary evidence produced by the plaintiff and held that Ram Tahal Modi had purchased suit land from son of recorded tenant vide sale deed No. 6724 dated 20.11.1946. Ram Tahal Modi died in 1948. Therefore, the sale deed purported to be executed by Ram Tahal Modi on 20.04.1955 in favour of defendants are suspicious and fake and it was so declared. It was held that defendant did not acquire title to the suit land on the basis of sale deed No. 3350 dated 20.04.1955. Thus issues No. VII and VIII were decided in favour of the plaintiff. 13. It is relevant to mention here that the defendants had filed registered sale deed No. 3350 and 3363 both dated 20.04.1955 which was noted by the trial Court in para 16 of the judgment. They were not marked exhibit although proved by D.W. 1 in examination-in-chief. The defendant Nos. 1 to 4 who were main contesting parties did not come forward for evidence in the trial Court. 14. They were not marked exhibit although proved by D.W. 1 in examination-in-chief. The defendant Nos. 1 to 4 who were main contesting parties did not come forward for evidence in the trial Court. 14. That the trial Court declared issue No. IX in favour of the plaintiff after discussing the oral evidence produced by both parties and held that the plaintiff is in possession of the suit land. 15. That the trial Court decreed the suit in favour of the plaintiff by declaring his right, title, interest and possession over the suit lands. 16. That the appellate Court allowed the appeal and set aside the judgment and decree dated 30.04.2004 passed by the trial Court. The appellate Court did not formulate any point for determination. It only discussed the arguments of both sides and held that since sale deed No. 6647 dated 14.11.1946 and sale deed No. 3350 dated 20.04.1955 were not brought on record by the plaintiff, hence the prayer with regard to cancellation of these two sale deeds is erroneous and the finding of the trial Court declaring them illegal was set aside. The appellate Court disbelieved Ext. 3 the extract of death register on the basis of oral evidence. 17. This appeal has been admitted to be heard on the following substantial questions of law: I. Whether the lower appellate Court has met with the reasoning of the trial Court while dismissing the suit? II. Whether the first appellate Court was justified in setting aside the Judgment of the trial Court entirely without disturbing the findings recorded by the Trial Court on issue no. VIII and IX whereby the right title, interest and possession over the suit land was declared in favour of the appellant? III. Whether the first appellate Court has erred in law and on fact by ignoring the documentary evidence i.e Ext. 3 which is the death register maintained by the police station and thereby reversed the finding of the trial Court that Ramtahal Ram died in the year 1948? 18. The claim of title of the plaintiff hinges on registered sale deed executed by Doman Modi in favour of Ram Tahal Modi on 20.11.1946. This registered sale deed has been adduced into evidence on behalf of the plaintiff and marked as Ext.1. 18. The claim of title of the plaintiff hinges on registered sale deed executed by Doman Modi in favour of Ram Tahal Modi on 20.11.1946. This registered sale deed has been adduced into evidence on behalf of the plaintiff and marked as Ext.1. After execution of the sale deed the rent receipts were issued in the name of Ram Tahal Modi which has been marked as Exhibit 2. There is a presumption in favour of due execution in case of a registered instrument and the title in the property is conveyed from the date of execution of the sale deed in terms of Section 54 of the Transfer of Property Act and Section 47 of the Registration Act. In Jamila Begum v. Shami Mohd., (2019) 2 SCC 727 it has been held that 16. Sale deed dated 21-12-1970 in favour of Jamila Begum is a registered document and the registration of the sale deed reinforces valid execution of the sale deed. A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. Law on the point is settled and there is no need for further elaboration on the point. 19. In the pleading of the defendants title is claimed on the basis of the sale deed executed by Ram Tahal Modi in the year 20.4.1955, but there is no whisper about the sale deed in their favour on 14.11.1946 which it is said to have been used in the proceeding under Section 144 of the Cr.P.C. In order to rebut the presumption of due execution of the sale deed in favour of the plaintiff and claim of title on the basis of the sale deed, it was incumbent on the part of the defendants to adduce into evidence the sale deed which has been claimed in the pleading to be executed in their favour, but this has not been brought on record and has remained illusive. The very document on the basis of which the title has been claimed having not been proved, this is a fit case for drawing presumption against the defendants for withholding this evidence from the Court under Section 114 (g) of the Evidence Act. The very document on the basis of which the title has been claimed having not been proved, this is a fit case for drawing presumption against the defendants for withholding this evidence from the Court under Section 114 (g) of the Evidence Act. The claim of the sale deed executed on 20.4.1955 by Ram Tahal Modi in favour of the defendants is in the teeth of oral and documentary evidence discussed in detail by the learned trial Court. The clinching evidence is Exhibit 3 which is the death register which has remained uncontroverted. According to this document, Ram Tahal Modi had died in the year 1948 and therefore the question of executing a sale deed in the year 1955 in favour of the defendants does not arise. This is a fit case where the trial Court could have ordered Section 340 Cr.P.C. enquiry against the defendant. Only because a long time has elapsed and the matter is in second appeal, I would hold back from doing so. The learned Court of first appeal has not assigned any reason to set aside the findings recorded by the trial Court on these points. On the contrary it is surprising that the appellate Court in para 16 of its judgment has cast the onus of producing the document of defence on the plaintiff. It held that the evidence of the plaintiff that Ram Tahal Modi died in the year 1948 was not reliable only on the basis of oral evidence. 20. This is yet another case where the Court of first appeal has set aside a well reasoned judgment of the trial Court without following the mandate of Order 41 Rule 31 which mandates the appellate Court to assign reason for its decision. Once the plaintiff had discharged the onus of adducing into evidence the registered sale deeds on the basis of which it claims title along with the revenue receipts showing that it was acted upon, the onus was on the defendant to lead contrary evidence to establish it’s own case of acquiring title by sale deeds which they have miserably failed to do so. The first appellate Court did not follow the fundamentals either for judicial decision-making or for deciding a first appeal. The first appellate Court did not follow the fundamentals either for judicial decision-making or for deciding a first appeal. On the facts it seems that after the evidence brought on record the death certificate showing death of Ram Tahal Modi in 1948, the defendant developed cold feet in proving the sale deed subsequent to it on which they had claimed title. The approach of the first appellate Court is contrary to settled law with regard to fact-finding and with regard to judgment writing of first appeal. The judgment is wrong, it is perverse. 21. The learned first appellate Court has misdirected itself by accepting the argument that onus was on the plaintiff to bring on record sale deed no.3350 dated 20.04.1955 the document on the basis of which the title has been claimed by the defendants. The very reasoning that cancellation of deed cannot be given because these deeds were not brought on record is fallacious. In fact, there was no prayer for cancellation of these sale deeds, nor was there any requirement for it. Under Section 31 of the Specific Relief Act a suit for cancellation of sale deed can be brought by the executant and not by a third party for declaration that the said deed was null and void and not binding on him. It has been held in Suhrid Singh v. Randhir Singh, (2010) 12 SCC 112 “Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. Therefore, the reason assigned to set aside the Judgment of the trial Court on this Count is not tenable.” The trial Court was right in accepting the plaintiffs reason and decreeing it. 22. This is a case where the defendants set up a plea of defence based on execution of sale deed which was not adduced into evidence. The pleadings of the defence appear to be false on the face of it and the learned Court of first appeal without assigning any cogent reason has unsettled a well reasoned judgment of the trial Court. Substantial questions of law are answered in favour of the appellant plaintiffs. The plaintiff proved his title by 1946 sale deed. The pleadings of the defence appear to be false on the face of it and the learned Court of first appeal without assigning any cogent reason has unsettled a well reasoned judgment of the trial Court. Substantial questions of law are answered in favour of the appellant plaintiffs. The plaintiff proved his title by 1946 sale deed. The subsequent events proved the plaintiffs case of 1946 purchase. The judgment and decree passed by the appellate Court is set aside and that of the trial Court is restored and the plaintiffs are entitled to relief as prayed for. The possession of the plaintiff will follow the title. Appeal is allowed with cost. The cost assessed at Rs.50,000/-.