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2022 DIGILAW 1175 (JHR)

Deep Narain Sah v. Bandevi Jha

2022-09-16

GAUTAM KUMAR CHOUDHARY

body2022
JUDGMENT : 1. The appellants are the plaintiffs who have preferred the instant appeal against the judgment of affirmance passed by learned 4th Additional District Judge, Godda, in Title Appeal No. 8 of 2004. 2. The parties shall be referred by the placement in the suit and shall include their legal representative substituted from time to time. 3. The plaintiff filed the suit for declaration of title and possession over the suit property fully detailed in Schedule A of the plaint comprising an area 2 katha and 4 Dhurs of land. Further relief has been prayed for declaration of Sale Deed No. 1156/1975 to be forged and fabricated and that it is not with respect to the suit land (sub- plot no 6/A) and for confirmation of possession and in the alternative recovery of possession if found dispossessed. 4. The case of the plaintiffs/appellants is that suit land is contiguous West of plaintiff No.1’s own land (Plot No. 6-B), out of which 2 kathas 4 dhurs was shown as sub-plot no.6-A in the sketch map attached with the plaint which Amar Nath Mishra agreed to sell to the plaintiff for a total consideration of Rs 15000/- out of which Rs.2500/- was paid as earnest money on 21.05.1988 as part of the sale price. The plaintiff was put in possession of the same by executing jarbeyana and he agreed to execute the sale deed in his favour after receiving the balance amount of Rs.12,500/-. It is also stated that the balance amount of Rs.12500/- was paid to Amarnath Mishra on 25.02.1989. The plaintiffs pleads that Defendant No. 1 got a forged deed of sale being no. 1156 in the year 1975 purported to be executed by Basudeo Narain Verma in her favour and on its basis defendant nos. 1 and 2 came in possession over sub-plot 6/E . It is contended that the boundary of the deed does not agree with the sale deed bearing no. 1203 dated 14.02.1975 executed by the same vendor in favour of Prayag Dutt Thakur. 5. Defendant Nos.1 and 2 amalgamated Plot no.6/ D of Moti Lal Jha with their claimed plot no. 6/E and surrounded both the plots with a brick kiln boundary wall. 6. In order to grab the land, a proceeding under section 145 of Cr.P.C was initiated on 31.05.1991 vide Cr. Misc. 5. Defendant Nos.1 and 2 amalgamated Plot no.6/ D of Moti Lal Jha with their claimed plot no. 6/E and surrounded both the plots with a brick kiln boundary wall. 6. In order to grab the land, a proceeding under section 145 of Cr.P.C was initiated on 31.05.1991 vide Cr. Misc. Case No.534 of 1991 in the Court of S.D.J.M., Godda by defendant no. 1 with respect to 1 Katha and 19 Dhurs within Plot No. 6/A. In the proceeding, the possession of defendant no. 1 was declared against which Criminal Revision was preferred in the Court of Session Judge, Godda which was allowed and the case was remanded to the Court of S.D.J.M, Godda for fresh consideration. After remand, the Court of S.D.J.M again declared the possession of defendant no. 1. This order was set aside by the Session Judge, Godda in revision. Vide order dated 04.06.1997, Patna High Court under section 482 Cr.P.C restored the order passed by the S.D.J.M., Godda. Thereafter, the suit has been filed. 7. Defendant Nos. 1 and 2 filed their joint written statement. It is contended that the suit plot measures 1 katha 19 dhur and not 2 katha 4 dhurs. The map as enclosed with the plaint has been disputed. Motilal Jha had purchased three kathas of plot 6/D from Bashu Dev Narayan Verma but not from Amar Nath Mishra. Averment in the plaint regarding power of receiver Amarnath Mishra to transfer portion of plot no.6/A measuring 2 kathas 4 dhur has been disputed and denied. The suit land as claimed by the plaintiff was not available in Plot No. 6/A. In this plot, 1 kathas 19 dhurs had already been sold to the defendants by sale deed no.1156 of 1975 and was not available for resale. Plaintiff no.1 never came in possession over the suit land and the said Amarnath Mishra never executed any deed or receipt dated 21.05.1988. 8. It has been further pleaded by the plaintiff that contrary to the case of the plaintiff, deed No.1156 of 1976 was for Plot No.6/E rather it was of Plot No.6/A. In the proceeding under Section 145 Cr.P.C., the possession of the defendant was declared after spot verification. Defendant no.1 has got a clinic, car shed, cow shed, store room etc. well bounded with a gate over it. Defendant no.1 has got a clinic, car shed, cow shed, store room etc. well bounded with a gate over it. The plaintiffs never came in possession over the suit land and they did not acquire any prescriptive right over the suit land. A 4 feet wide land to the East of Prayag Thakur and to the West of Defendant Bandevi Jha was left by the Raj Baneli, for her passage. In May 1991, the father of defendant no.2 died and when the male members had gone for the funeral to Bhagalpur, plaintiff No.2 with help of some anti-social elements broke down the exit of North and West wall and closed it with false brick walls. 9. Defendant no.3 appeared and filed his written statement in which he has supported the case of the plaintiff that Amar Nath Mishra had executed a Jarbeyana referred to in para-8 of the plaint for 2 kathas 04 dhur of land in favour of the defendant. After execution of the jarbeyana the possession was handed over to the plaintiff no.1 of the suit land. 10. On the basis of the pleadings of the parties, following main issues were framed : (iv) Is Jarbeyana dated 21.05.1988 appertaining to the suit land measuring 02 kathas 04 Dhura valid and genuine? (v) Have the plaintiffs acquired title by adverse possession over the suit land? (vi) Is the said deed no.1156 dated 13.02.1975 for 1 katha 19 dhurs on which the defendants base their claim, forged and fabricated and fit to be cancelled? (vii) Does the land included in the Sale Deed No. 1156/1975 relate to the suit property or a different parcel of land in the same plot no.6 other than the suit property? (viii) Whether the plaintiffs have right to sue against the defendants and suit suffers for want of necessary party? 11. The suit of the plaintiff was dismissed by the trial Court by recording finding of fact in favour of the defendants. 12. The first appellate Court concurred with the finding of fact of the trial Court while dismissing the appeal. 13. 11. The suit of the plaintiff was dismissed by the trial Court by recording finding of fact in favour of the defendants. 12. The first appellate Court concurred with the finding of fact of the trial Court while dismissing the appeal. 13. This appeal has been admitted to be heard on the following substantial question of law : Whether the learned Courts below have failed to take into consideration the effect of Section 53-A and 54 of Transfer of Property Act, read with Section 49 of the Registration Act, on the claim of the plaintiffs-appellants possession specially when defendants-respondents could not show that they paid consideration money to the vendor against sale deed (Ext E)? 14. Case of the plaintiff hinges on an unregistered agreement of sale which is the basis of claim for title and possession over the suit land. Defendant no.1 claim the suit land on the basis of Sale Deed No.1156 dated 13.02.1975 (Ext E) from the receiver-cum-power of attorney holder of Banelli Estate, whereas the plaintiff claim it on the basis of jarbeyana i.e. an unregistered agreement of sale dated 21.05.1988 (Ext. 4) and by adverse possession. 15. There is presumption of due execution in favour of a registered instrument. The plea of the plaintiff that the consideration amount was not paid with respect to the said sale deed in favour of the defendant no.1 cannot be raised by the plaintiff as the vendor has never come forward complaining against non-payment of the consideration amount. In the event of non-payment of consideration amount in case of a registered sale deed, the remedy available is for a money suit. Here when the vendor has not come forward to assail the sale deed the same cannot be questioned by the plaintiff. 16. The second part of the substantial question of law is with respect to Section 53 A and Section 54 of the Transfer of Property Act, 1882 (hereinafter called TP Act). Section 53 A provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell to the transferee. This shield is not available against third party who has acquired title and possession on the basis of a registered sale deed. Further the plea of adverse possession cannot be claimed to a party who claims equity in his favour under Section 53A of the TP Act. This shield is not available against third party who has acquired title and possession on the basis of a registered sale deed. Further the plea of adverse possession cannot be claimed to a party who claims equity in his favour under Section 53A of the TP Act. It has been held in Seshasayee Steels (P) Ltd. v. CIT, (2020) 14 SCC 774 : 15. In order that the provisions of Section 53-A of the TP Act be attracted, first and foremost, the transferee must, in part-performance of the contract, have taken possession of the property or any part thereof. Secondly, the transferee must have performed or be willing to perform his part of the agreement. It is only if these two important conditions, among others, are satisfied that the provisions of Section 53-A TPA can be said to be attracted on the facts of a given case. Raheja Universal Ltd. v. NRC Ltd., (2012) 4 SCC 148 : Section 54 defines “sale” as a transfer of ownership in exchange for price paid or promised or part-paid and part-promised. Such a transfer of tangible immovable property of the value of Rs 100 and upwards can be made only by a registered instrument. The “contract for sale” has been explained under this very provision as follows: “Contract for sale.—A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.” Thus, on a plain reading of the statutory provisions, it is clear that an agreement for sale or an agreement to sell itself does not create any interest or charge in such property. 101. Mulla on Transfer of Property Act, 9th Edn., p. 181, clearly states that Section 54 enacts that an agreement for the sale of land does not itself create an interest in land. There was a considerable conflict of decisions as to the application of the rule against perpetuity to such agreements. This conflict has been resolved by the judgment of this Court in Ram Baran Prasad v. Ram Mohit Hazra [ AIR 1967 SC 744 ] where this Court held that a mere contract for sale of immovable property does not create any interest in the immovable property. 17. This conflict has been resolved by the judgment of this Court in Ram Baran Prasad v. Ram Mohit Hazra [ AIR 1967 SC 744 ] where this Court held that a mere contract for sale of immovable property does not create any interest in the immovable property. 17. Here in the present case, Section 53 A shall not apply for the reason that it is sought to be invoked against the defendants who have acquired title and possession by a registered sale deed in 1975 prior to the agreement of sale claimed to be made in favour of the plaintiff. Under Section 54 of the TP Act read with Section 47 of the Registration Act, the title is conveyed from the date of execution of the sale deed. Thus, even before the jarbeyana was executed, the title had been conveyed to the defendant. Both the learned Courts below have recorded a concurrent finding regarding the possession of the defendants over the suit property. Under the circumstance the substantial question of law is answered in favour of the defendant respondents. The appeal stands dismissed.