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2022 DIGILAW 187 (CHH)

Chowa Ram S/o Mangluram Verma v. Sanjay Kumar S/o Ranjedet Kumar

2022-04-18

NARENDRA KUMAR VYAS

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JUDGMENT : NARENDRA KUMAR VYAS, J. 1. The appellant/defendant No. 1 has preferred the second appeal under Section 100 of the CPC being aggrieved by the judgment and decree dated 4-12-2004 passed by the 1st Additional District Judge, Mahasamund in Civil Appeal No. 39-A/2003 whereby the First Additional District Judge while allowing the appeal and reversing the judgment and decree dated 24-10-2003 passed by the 3rd “Civil Judge, Class-1, in Civil Suit No. 125-A of 2002 dismissed the suit for possession and vacant possession. 2. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 125-A of 2002. 3. This Court vide its order dated 15.04.2005 has stayed the decree so far as it relates to delivery of possession till the next date of hearing and this Court admitted the appeal vide its order dated 27.08.2015 on the following substantial question of law: “Whether the finding of the first appellate Court regarding title of the plaintiff to the suit land is perverse?” 4. The brief facts as reflected from the record are that the plaintiff filed a civil suit for removing construction of wall, suit property and for possession. The plaintiff has purchased the diverted land bearing Khasra No. 2017/14/19 area 0.02 acres (860) sq. ft. situated at Ranimandir, Mahasamund, Tehsil Mahasamund from Bhansilal. It has been further contended that Nathuram who was father of Bhansilal has purchased one part of property bearing Khasra No 2017/1 from Tiharu for sale consideration of Rs. 550/- through sale deed dated 12-11-1973 in the name of Bhansilal, but during mutation proceeding it has been written as 2014/14/19 by the Patwari instead of Khasra No. 2017/14/19. It has been further averred in the plaint that in the north side of the suit property there is house of J.L. and in the west side of suit property, there is a house of Ghorelal Joshi, in the east side of the suit property there is a house of Vishal in which defendant is residing. As per the boundary prescribed, the land pertains to 2017/14/19 the Khasra number which has been mentioned in the sale agreement 2014/14/19 is not a conclusive proof. 5. Plaintiff has purchased the above mentioned property (suit property) from Bhansailal through registered sale deed. In pursuance of the agreement, the plaintiff has given Rs. As per the boundary prescribed, the land pertains to 2017/14/19 the Khasra number which has been mentioned in the sale agreement 2014/14/19 is not a conclusive proof. 5. Plaintiff has purchased the above mentioned property (suit property) from Bhansailal through registered sale deed. In pursuance of the agreement, the plaintiff has given Rs. 7000/- to Bhansilal on 18-6-1991 and a registered sale deed was executed and when the fact was brought to his notice that khasra number has wrongly been mentioned in the sale deed, he asked Bhansilal to correct it and in pursuance of their discussion, they executed registered correction deed on 12.06.2001. Accordingly, the description of the land has been recorded as Khasra No. 2017/14/19 area measuring 860 sq. ft. On 15-7-2001 defendants illegally entered into the suit premises, put door, constructed the wall and made an attempt to take illegal possession of the suit property by saying that he has purchased the suit property from Chhabiram through registered sale deed on 4-3-1968, Tihuru has sold the property through registered sale-deed in favour of Chhabiram, as such, Chhabiram/ defendant No. 1 has no right to sell the property. On this factual foundation, the plaintiff has filed the suit and prayed that the defendant may kindly be directed to demolish the wall constructed in the suit property and also to grant open possession of place mentioned in the schedule with cost. 6. The defendant has filed written statement denying the allegation made in the plaint averment, mainly contending that he has purchased the suit property bearing khasra No. 2017/14/19 measuring 860 sq. ft. from Chhabiram. This fact has been proved through revenue record. The averment made in the plaint is hypothetical and not supported by any evidence. In paragraph 5 of the plaint averment, it has been specifically mentioned that because of the correction deed, no right has been accrued in favour of the plaintiff and he has purchased the suit property through unregistered agreement dated 28-12-1996 from Chhabiram S/o Babulal Chandrakar, till then he is in possession of the suit property. It has been reiterated that the plaintiff has never purchased the suit property and suit property is in the name of the defendant, therefore, he would pray for dismissal of the suit. 7. On the pleadings of the parties, the learned trial court has framed as many as four issues. It has been reiterated that the plaintiff has never purchased the suit property and suit property is in the name of the defendant, therefore, he would pray for dismissal of the suit. 7. On the pleadings of the parties, the learned trial court has framed as many as four issues. Issue No. 1, which is required for adjudication of this appeal is that whether the suit property bearing Khasra No. 2017/14/19 is the land belonging to Teharu. Issue No. 2- whether the plaintiff has illegally claimed title over the suit property. 8. To substantiate the averment, the plaintiff has examined himself as PW-1 and exhibited documents memo dated 13-1-2001 written by Patwari (Ex.P/1), registered sale deed (Ex.P/2), registered sale deed dated 18.06.1991 (Ex.P/3), correction deed dated 12.07.2001 (Ex.P/4), the certified copy of Form-B1 for the year 1994-95 and 2001-2002 (Ex.P/5) wherein the name of landlord has been mentioned as Sanjay Kumar. The plaintiff-Sanjay Kumar has reiterated the stand taken by him in the plaint and in the cross examination, he has stated that Banshilal has purchased the land from Tihuru measuring about 900 sq. ft. out of which he has purchased 860 sq. ft. and 40 sq. ft. of land has been utilized for construction of drainage. In the cross examination, he has stated that the defendant has done some digging work but has not put his gate. In the cross examination he has stated that the gate and wall have been constructed within three days. He has denied the allegation that to grab the land of Chhabiram, he has submitted the correction deed. He has stated that he is not aware as to who is owner of the suit bearing property Khasra No. 2014/14/19 as he has not purchased the same and exhibited documents Ex. P/1 to P/5. 9. Banshilal was examined as PW-2 wherein he has stated that his father has purchased a part of property of khasra No. 2017/1 and he has stated that the correction deed was prepared after two or three months of execution of registered sale deed. He has reiterated the stand that in typing khasra number has been wrongly mentioned. He has again stated that he sold the part of the property bearing khasra No. 2017/1 to Sanjay Kumar on 18.06.1991. He has also stated that correction deed was executed in the year 2001. 10. He has reiterated the stand that in typing khasra number has been wrongly mentioned. He has again stated that he sold the part of the property bearing khasra No. 2017/1 to Sanjay Kumar on 18.06.1991. He has also stated that correction deed was executed in the year 2001. 10. The defendant examined himself as DW-1 and in examination-in-chief he has reiterated the stand which he has taken in written statement, but in the cross examination at Para 11 he has stated that he has purchased the land bearing khasra No. 2017/5/1 measuring 817 sq. ft. on 28-12-1996, which plaintiff is treating as suit property, but registration of sale deed has not been done in his favour. He has also stated that he has not filed unregistered document before the court. He has stated that in the correction deed only Khasra number has been rectified. He has stated that he denied that he caused damage to the boundary wall. He has also stated that in the east side Vishal’s residence is situated and he has purchased that through unregistered sale. The defendant has not examined any other witness. The learned trial court despite having ample evidence on record that no registered sale deed has been produced before the court, still it has dismissed the suit by recording a finding that the plaintiff is unable to prove the factum of plaint averment. Against that, the plaintiff has preferred first appeal before the First Additional District Judge, Mahasamund. The learned Distinct Judge after appreciating the evidence, material on record specially recording the finding at paragraph 17 and 18 that the defendant has taken defence that he has purchased the suit property from Chhabiram through unregistered sale deed dated 28-12-1996 and has taken possession but neither he adduced any evidence in support of his contention nor has produced the document relating to sale of the property, therefore, adverse inference has been drawn against him, after appreciating the facts, evidence on record the trial court has allowed the appeal and the First Appellate Court has directed the defendant to demolish the wall and give vacant possession of the suit property as mentioned with the Scheduled annexed with the plaint. 11. Against that, the defendant has preferred the second appeal before this court. The second appeal has been admitted by this Court on 28.07.2015 on the substantial question of law as stated above. 12. 11. Against that, the defendant has preferred the second appeal before this court. The second appeal has been admitted by this Court on 28.07.2015 on the substantial question of law as stated above. 12. Learned counsel for the appellant vehemently submitted that the finding recorded by the learned trial court is perverse and illegal on record and he would refer to the judgment of Hon'ble High Court of Delhi in case of Phiraya Lal and Others vs. Jia Rani and Others, 1973 AIR 186, wherein Hon'ble Division Bench of Delhi High Court has held that the possessive title is the just like against original title, therefore, the finding recorded by the first appellate court is against the law, as such, the substantial question framed by this Court, deserves to be answered in affirmative in favour of the appellant. 13. Coming to the facts of the case, it was for the defendant to establish that he has valid title of the suit property, but in this case, neither document has been produced before the trial court nor before the appellate court that defendant has purchased the suit property through registered sale deed, therefore, the First Appellate Court has rightly drawn inference against the appellant. It is well settled legal position that it is duty of the party to lead the best evidence in his possession which could throw light on the issue on controversy, in such case material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the evidence act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. Hon’ble the Supreme Court in Murugesam Pillai vs. Manickavasaka Pandara, AIR 1917 PC 6 : (1916-17) 44 IA 98, Hiralal vs. Badkulal, AIR 1953 SC 225 , A. Raghavamma vs. A. Chenchamma, AIR 1964 SC 136 , Union of India vs. Mahadeolal Prabhu Dayal, AIR1965 SC 1755, Gopal Krishnaji Ketkar vs. Mohd. Haji Latif, AIR 1968 SC 1413 , BHEL vs. State of U.P. (2003) 6 SCC 528 : AIR 2003 SC 3024 , Mussauddin Ahmed vs. State of Assam, (2009) 14 SCC 541 and Khatri Hotels (P) Ltd. vs. Union of India, (2011) 9 SCC 126 . 14. Haji Latif, AIR 1968 SC 1413 , BHEL vs. State of U.P. (2003) 6 SCC 528 : AIR 2003 SC 3024 , Mussauddin Ahmed vs. State of Assam, (2009) 14 SCC 541 and Khatri Hotels (P) Ltd. vs. Union of India, (2011) 9 SCC 126 . 14. The defendant though pleaded that he has purchased the property even with the unregistered sale deed dated 28.12.1996 but no document has been produced by the defendant, therefore, in the light of the above stated legal position as settled by Hon’ble the Supreme Court, the learned First Appellate Court has rightly drawn adverse inference against the defendant whereas the plaintiff has clearly pleaded and proved that he has purchased the suit property through registered sale deed (Ex.P/3) and correction deed (Ex.P/4) has also been filed to establish the fact that there is apparent mistake in the sale deed with regard to description of the suit property, which has been rectified through correction deed. This fact was never rebutted or dislodged by the defendant, therefore, it is a finding of fact which have been rightly analyzed by the learned First Appellate Court. Even otherwise law has been settled by Hon’ble the Supreme Court unless there is grave perversity in the appreciation of evidence, material on record, this Court while hearing second appeal should not interfere concurrent finding of facts. There is no perversity or illegality in the analyzing the fact, which warrants interference by this Court, therefore, substantial question of law framed by this Court deserves to be answered against the defendant. 15. Accordingly, the second appeal is dismissed and substantial question of law framed by this Court is answered against the defendant and the interim order passed by this Court on 15.04.2005 stands vacated. 16. No order as to cost.