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2023 DIGILAW 1282 (JHR)

Mithilesh Devi v. Mundrika Sao

2023-10-30

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Praveen Akhauri, learned counsel appearing for the appellant-plaintiff and Mr. Shashank Shekhar, learned counsel appearing for the respondent-defendant. 2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 26.07.1999 and the decree following thereupon signed on 10.08.1999, passed in Title Appeal No. 92 of 1993, by the Vth Additional Judicial Commissioner, Ranchi, dismissing the said appeal and thereby affirming the judgment dated 12.05.1993, passed in Title Suit No. 162 of 1989, by the learned Additional Munsif, Ranchi. 3. The present second appeal was admitted by order dated 28.02.2001 on the following substantial question of law:- “(1) Whether defendant by registered sale deed, Ext.-5/a transferred the suit land to the plaintiff, which was beyond the land purchased by him through Ext.-5?” 3. The Title Suit No. 162 of 1989/115 of 1989 was instituted by the plaintiff-appellant for declaration of the title and recovery of possession of R.S. Plot No. 1341/A-1 under Khata No. 34 in village Hatma, P.S.-Ranchi, described in Schedule-A of the plaint. The prayer was also made for decree for mesne profit pendent lite and future along with cost of the suit. 4. The plaintiff-appellant case before the learned trial court in short is that there was a talk of sale of one katha eleven chhataks and twenty nine sq.feet of and out of R.S. Plot No.1341 on consideration of Rs. 10,000/- between the plaintiff Mithilesh Devi and the defendants Mudrika Sao. The defendant had agreed to sale that land on consideration of Rs.10,000/, together with a kachcha house constructed on the land. As per the agreement the defendant Mudrika Sao executed the sale deed and got it registered for one katha seven chhataks twenty nine sq. feet of land which was marked as sub plot No. 1341A. The consideration amount being Rs.10,000/- was paid to the defendant before the District Sub- Registrar, Ranchi. Thereafter the plaintiff west to demarcate the land purchased by her but the defendant raised an objection that he had sold only 20’-6” of land running from west to east and 51’-3” running from north to south. Then, the plaintiff obtained the certified copy of the sale deed and found that the defendant had dishonestly and frequently given a wrong map annexed with the sale deed and committed fraud. Then, the plaintiff obtained the certified copy of the sale deed and found that the defendant had dishonestly and frequently given a wrong map annexed with the sale deed and committed fraud. The land sold to the plaintiff is 26’-6” from north to south on western side and 23’ running from north to south on eastern side whereas in the map annexed with the sale deed he had shown 51’-3” of land from north to south towards east and west. The plaintiff has purchased one katha seven chhataks and twenty nine sq.feet of land and she is entitled to get the possession of the land forty feet from west to east towards north forty three feet from west to east towards south twenty six feet seven chhataks from north to south towards west and 26’-7” from north to south towards east. The plaintiff sent a registered notice to the defendant to execute the deed of rectification, but he refused to receive the registered notice Therefore, the plaintiff has prayed for the decree for the declaration of title over the suit land detailed in schedule-A of the plaint and for the delivery of her khas possession over the suit land and also the mesne profit pendente lite and future and also cost of the suit. 5. The case of the defendant-respondent is that the defendant has contended in his written statement that the defendant had never agreed to sell one katha seven chhataks twenty nine sq.feet of land to the plaintiff on consideration of Rs.10,000/- only. The defendant never knew the plaintiff and he had no talk or negotiation for the sale of land. The defendant knew and is acquainted with Madan Singh who is a news paper hawker from whom the defendant used to borrow money from time to time. Madan Singh came to the defendant with his relation Binod Singh in the month of March, 1989 The defendant had asked for a loan of Rs.20,000/- from him business purpose. Madan Singh agreed to advance that amount but he demanded some property and security. The defendant agreed to give 1½ kathas of his land from Sub Plot No.1341.A barring his business premises which lies on the western portion of sub plot no.1341/A by way of simple mortgage to be payable within three years from the date of the execution of the registered mortgage deed. The defendant agreed to give 1½ kathas of his land from Sub Plot No.1341.A barring his business premises which lies on the western portion of sub plot no.1341/A by way of simple mortgage to be payable within three years from the date of the execution of the registered mortgage deed. Madan Singh and Binod Singh talked a short while amongst each other and stated to the defendant that each of them should land a loan of Rs.10,000/- each to the defendant who while executing to separate mortgage deeds for each one for 12 chhataks for securing loan of Rs.10,000/- from each of them on the condition that they should get deeds drafted in Hindi The defendant asked them to get the mortgage deeds drafted in Hindi since he knows Hindi alone only. Madan Singh and Binod singh brought two typed deeds in English with a sketch map on 30.3.1989 and without explaining the deeds in Hindi and assuring the defendant to be mortgage deeds Madan Singh and Binod Singh Secured the signature of the defendent of those deeds stating them to be mortgage deeds for 12 chhataks of lands being executed in the names of their wife on 31.3.89, those deeds were presented in the registration's office and those deeds were registered without revealing to be a sale deed for one katha seven chhataks twenty nine sq.ft. the price of the suit lands was Rs.50,000/- per katha on that day. The mention of katcha house has been incorporated to skip over the provision of Urban Land Ceiling Act 1976.The plaintiff did not get title to and possession over any portion of land in sub plot no.1341/A proceeding w/s 144 Cr.P.C. had been started for the suit land. The plaintiff has malicious and mala fide intention to grab the defendant's valuable land. Those deeds were never sale deeds but a simple mortgage deed and as such possession was never given to the plaintiff. Thus, the defendant has prayed to dismiss the suit with the cost. 6. In view of the above pleadings of the parties, the learned trial court has framed eight issues and the issues were re-casted at the time of final hearing of the suit. Thus, the defendant has prayed to dismiss the suit with the cost. 6. In view of the above pleadings of the parties, the learned trial court has framed eight issues and the issues were re-casted at the time of final hearing of the suit. The learned trial court after considering all aspect of the matter has been pleased to come to a finding that no case of decree in favour of the appellant is made out and in view of that the learned trial court has been pleased to dismiss the Title Suit No. 162 of 1989/115 of 1989 by the judgment dated 12.05.1993. Aggrieved with the said judgment, the appellant-plaintiff preferred the Title Appeal No. 92 of 1993, which was dismissed by the learned appellate court by judgment dated 26.07.1999, affirming the judgment of the learned trial court. Aggrieved with that, the present second appeal was preferred by the appellant-plaintiff, which was admitted on the above-quoted question of law. 7. Mr. Praveen Akhauri, learned counsel appearing for the appellant-plaintiff on the point of substantial question of law submits that the plot No. 1341A was purchased by the appellant-plaintiff from the respondent-defendant by the registered sale deed dated 31.03.1989, which was marked as Exhibit-5. He submits that the Exhibit-5/A is the sale deed of the respondent-defendant, whereby he has purchased the said plot and subsequently the said plot was sold over to the appellant plaintiff by Exhibit-5. By way of referring Exhibits-5 and 5/A, particularly the map of the said sale deed, he submits that the plot number is similar in both the sale deeds and in view of that the learned trial court as well as the learned appellate court has wrongly held that the appellant-plaintiff has not been able to make out a case of decree in favour of the appellant-plaintiff, as the learned trial court as well as the learned appellate court have not considered the boundary in its right perspective, as in such a dispute, only question is required to be answered by way of looking into the area of the boundary. He further submits that the aforesaid aspect of the matter has been well settled by the Hon’ble Supreme Court in the case of Subhaga & Ors. Versus Shobha & Ors. reported in (2006) 5 SCC 466 , where in para-6, it has been held as follows:- “6. He further submits that the aforesaid aspect of the matter has been well settled by the Hon’ble Supreme Court in the case of Subhaga & Ors. Versus Shobha & Ors. reported in (2006) 5 SCC 466 , where in para-6, it has been held as follows:- “6. The High Court has also upheld the title claimed by the plaintiff over the plot, Plot No. 1301/1 Ba. Once we accept the identification made by the Commissioner as was done by the first appellate court, it is clear that the plaintiff has the right to have the disputed construction removed and the well filled up. That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff. In this situation, we are satisfied that the judgment and decree of the High Court calls for interference. We are also satisfied that the lower appellate court was justified in affirming the decree granted in favour of the plaintiff on the pleadings and the evidence in the case.” 8. By way of referring the aforesaid judgment, he submits that the boundary wall was not appreciated correctly by the learned trial court as well as the learned appellate court and in view of that the aforesaid substantial question of law may kindly be answered in favour of the appellant-plaintiff. 9. Per contra, Mr. Shashank Shekhar, learned counsel appearing for the respondent-defendant submits that the learned trial court as well as the learned appellate court have rightly appreciated Exhibits-5 and 5/A. He refers to Exhibits-5 and 5/A and submits that the map annexed with the sale deed of the appellant-plaintiff is Exhibit-5 and the same has no identity with their dimension and that the boundary of the sale deed has given in the sale deed does not tally with the boundary of the suit land given in the plaint. He submits that this aspect of the matter has been appreciated by the learned appellate court in para-11 of the appellate court judgment. By way of referring Exhibit-5, he further submits that from the perusal of the boundary of the suit land, it is clear that in the western boundary of the suit land there is Municipal road, whereas in the sale deed (Exhibit-5), there is R.S. Plot No. 1341A in the western boundary of the land purchased. By way of referring the map of Exhibit-5 and Exhibit-5/A he submits that boundary is not tallying and in view of that a person, who is claiming the right, title and interest over the suit land is required to prove before the learned courts that he is having the better title than the other side. He submits that in view of the right interpretation of Exhibits-5 and 5/A, by the learned trial court and the learned appellate court have dismissed the tile suit as well as the title appeal, as such, the law point framed by this court may kindly be answered in favour of the respondent-defendant. 10. Learned counsel appearing for the respondent-defendant submits that even the plaintiff has not been examined in the title suit and the adverse inference has been drawn and to substantiate his contention, he relied in the case of Iqbal Basith & Ors. Versus N. Subbalakshmi & Ors. reported in (2021) 2 SCC 718 , wherein the Hon’ble Supreme Court in paras-9 and 10 has held as follows:- “9. The present suit was instituted by the appellants in 1974 seeking permanent injunction as the respondents attempted to encroach on their property. The suit scheduled property was described as No. 44/6. The respondents in their written statement claimed ownership and possession of Property No. 42, acknowledging that other properties lay in between. A feeble vague objection was raised, but not pursued, questioning the title of the appellants. The respondents raised no genuine objection to the validity or genuineness of the government documents and the registered sale deeds produced by the appellants in support of their lawful possession of the suit property. The original Defendant 1 did not appear in person to depose, and be cross-examined in the suit. His younger brother deposed on the basis of a power of attorney, acknowledging that the latter had separated from his elder brother. The original Defendant 1 did not appear in person to depose, and be cross-examined in the suit. His younger brother deposed on the basis of a power of attorney, acknowledging that the latter had separated from his elder brother. No explanation was furnished why the original defendant did not appear in person to depose. We find no reason not to draw an adverse inference against Defendant 1 in the circumstances. 10. In Iswar Bhai C. Patel v. HariharBehera [Iswar Bhai C. Patel v. HariharBehera, (1999) 3 SCC 457 ] this Court observed as follows: (SCC p. 462, para 17) “17 … Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872.” 11. He further submits that so far as Section 100 of the Civil Procedure Code is required to be considered in view of the judgment of the Hon’ble Supreme Court in the case of Nazir Mohamed Versus J. Kamala & Ors. reported in (2020) 19 SCC 57 , where in paras-22, 26, 27, 28, 29 and 32, it has been held as follows:- “22. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the court cannot expand the scope of the appeal. It was not open to the respondent-plaintiff to reagitate facts or to call upon the High Court to reanalyse or reappreciate evidence in a second appeal. 26. The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] , where this Court held : (AIR p. 1318, para 6) “6. & Mfg. Co. Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] , where this Court held : (AIR p. 1318, para 6) “6. … The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.” 27. In Hero Vinoth v. Seshammal [Hero Vinoth v. Seshammal, (2006) 5 SCC 545 ], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545 ] are set out hereinbelow : (SCC p. 554, para 21) “21. The phrase “substantial question of law”, as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying “question of law”, means— of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with—technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In GuranDitta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172 ] the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969 ] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ], AIR p. 1318, para 5) ‘5. … when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.’” 28. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.’” 28. To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way. 29. To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case. 32. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in V. Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302 ]. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.” 12. Relying on these judgments, he submits that the case is not made out for interference as there are concurrent findings of two fact finding courts, as such, this court at this stage may not interfere in this appeal. 13. In view of the above submissions of learned counsel appearing for the parties, the court has gone through the learned trial court records as well as the judgments of the learned trial court as well as learned appellate court. The learned trial court has found that not even a single witness connected with the document with regard to Exhibit-5/A was examined. Even Birju Prasad, Sarju Narayan Singh and Deo Nandan Prasad were the connected persons with the deed were not examined and no explanation to that effect of not examining them was provided. The learned trial court has found that not even a single witness connected with the document with regard to Exhibit-5/A was examined. Even Birju Prasad, Sarju Narayan Singh and Deo Nandan Prasad were the connected persons with the deed were not examined and no explanation to that effect of not examining them was provided. The appellant-plaintiff examined P.Ws.-2 and 3, who speak on the sale deed of Sukra Munda for which there is no dispute. On the other hand the appellant-plaintiff has not deposed any of the witness on the sale deed, for which, he has brought the suit. The learned trial court has further found that if there is no agreement about the sale and even in the deposition of P.W.-5, Madan Singh, he has not disclosed about any agreement and he was the only witness on the merit of the case. Considering these aspects of the matter, the learned trial court has been pleased to dismiss the title suit. 14. The learned appellate court further examined the judgment of the learned trial court. The learned appellate court has considered that the defendant has brought in evidence (Exhibits-C, D and D/2) to show that the defendant used to take money from Madan Singh. However, that was not the matter of question whether the defendant used to take money from Madan Singh. The only question was put to consider whether the defendant has executed a deed of mortgage or has executed the deed of sale. Looking into Exhibits-5 and 5/A, which is the main contention of the learned counsel appearing for the appellant plaintiff, it appears that in Exhibit-5A, the plot No. 1341A is described therein, where in Exhibit-5, by which the land in question was purchased by the appellant-plaintiff, there is description of plot No. 1341/A-1 and RM lane is disclosed in North i.e. missing in Exhibit-5 and in that view of the matter, the learned appellate court has also come to the finding that there is no clear and specific identity of the land in question in deed, on the basis of which, the appellant-plaintiff is claiming the right and title and in view of that the learned appellate court has also dismissed the appeal, by way of affirming the judgment of the learned trial court. On examining Exhibit-5 and 5/A, this court also finds that in Exhibit-5/A the plot No. 1314A is disclosed wherein Exhibit-5, which is the document, on the basis of which, the appellant plaintiff is claiming the plot No. 1341/A-1 and RM lane is disclosed in the North side. In view of that it appears that there is no clear and specific identity of the land, which is the basis of filing the title suit. 15. It appears that the learned trial court as well as the learned appellate court has rightly interpreted the Exhibits-5 and 5/A and in view of that the law point, framed by this court by the order dated 28.02.2001 is answered in favour of the respondent-defendant. 16. The judgment relied by Mr. Akhauri, learned counsel appearing for the appellant-plaintiff in the case of Subhaga & Ors. (Supra) is not in dispute. In such a case where the clear cut identity is there, the area is required to be considered, however, in the case in hand after looking into the area, the learned trial court as well as the learned appellate court has come to the concurrent finding and in view of the well proposition of law with regard to the second appeal, which has been discussed in the judgment relied by learned counsel appearing for the respondent-defendant is the case of Nazir Mohamed (Supra), no case of interference is made out. Further it is well settled that if a person who is claiming the right, title and interest, he is required to prove that his title is better than the other side. Reference may be made to the case of Umadevi Nambiar Versus Thamarasseri Roman Catholic Diocese represented by its Procurator Devssia’s Son Rev. Father Joseph Kappil, reported in (2022) 7 SCC 90 , wherein the Hon’ble Supreme Court in para-19 held as follows:- “19. It is a fundamental principle of the law of transfer of property that “no one can confer a better title than what he himself has” (Nemo dat quod non habet). The appellant’s sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation.” 17. The appellant’s sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation.” 17. In view of the above, no case of interference is made out. Accordingly, this appeal is dismissed. 18. Let the Lower Court Records be sent back to the learned court forthwith.