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2023 DIGILAW 46 (JHR)

Krishna Turi v. Emil Minj (Died)

2023-01-16

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Dr. H. Waris, learned counsel appearing for the appellants and Mr. Vikash Kumar, learned counsel appearing for the respondents. 2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 23.01.2001 and the decree signed on 03.02.2001, passed in Title Appeal No. 05 of 1991 by the learned Additional District Judge, Simdega, allowing the said title appeal and setting aside the judgment dated 07.12.1990 and the decree signed on 03.01.1991, passed in Title Suit No. 02 of 1984 by the learned Munsif, Simdega. 3. The Title Suit No. 02 of 1984 was instituted for adjudication of the right, title and interest over the suit land, as described in the plaint and for declaration of sale deed No. 8518 dated 26.11.1980, executed by Bhukhan Turi and Dhutu Turi registered at Ranchi as farji, fabricated, null and void, in-operative and not binding on the plaintiffs. 4. On contest, the aforesaid Title Suit No. 02 of 1984 was decreed in favour of the plaintiffs/respondents/plaintiffs. Aggrieved by the judgment dated 07.12.1990, passed in Title Suit No. 02 of 1984, the defendants/appellants/respondents challenged the said judgment in Title Appeal No. 05 of 1991, which was allowed in their favour and the judgment of the learned Trial Court was set aside. Aggrieved with the said order, this second appeal has been preferred and the said second appeal was admitted by order dated 12.11.2002 on the following substantial question of law: (1) Whether the suit was barred by time? (2) Whether Bhukhan Turi and Dhutu Turi descendants of Harakh Turi had executed sale deed, Exhibit-4? 5. Dr. H. Waris, learned counsel appearing for the appellants by way of drawing the attention of the Court to paras-14 and 15 of the Trial Court judgment submits that the limitation point has been considered by the learned Trial Court in the said paragraphs and by considering the documents as well as the sale deed No. 8518 dated 26.11.1980 has held that the suit is within time and not barred by limitation. He submits that the learned Appellate Court has reversed this finding of the learned Trial Court only on the ground that it was well within the knowledge of the plaintiffs that the sale deed was executed on 20.08.1981 and the suit was instituted on 25.08.1984 and the learned Appellate Court has held that after three years, the said suit was filed and that’s why, it has been declared that the suit was barred by time. He further submits that PW-1 at para-10 of his evidence has stated that he tried to find out about the sale deed at Ranchi and thereafter he came to Ranchi and he has been able to obtain the certified copy of the sale deed and thereafter the said certified copy of the sale deed was filed before the learned Trial Court on 02.06.1990. He further submits that PW-1 has further stated in his evidence that in absence of money, he has not been able to take any step before the police or any other authority. He further submits that in para-33 of the cross-examination, he has stated that he was not knowing about the date of execution of the sale deed prior to that as has been stated by him in Para-13. 6. On the point of limitation, Mr. Waris submits that the learned Appellate Court has not considered this aspect of the matter and has wrongly held that nothing has been brought on record to suggest that the appellants were not knowing about the execution of the sale deed prior to that. On this ground, he submits that the law point No. 1 may kindly be answered in favour of the appellants. 7. On the law point No. 2, Mr. Waris, learned counsel appearing for the appellants submits that the learned Trial Court has considered this aspect of the matter in paras-16, 17 and 18 of the judgment and considering that not a single attesting witness has been examined in the suit, subscriber has also not been examined and there is no endorsement of the registering authority about the payment of consideration money is there and also considering the other aspect of the matter, the learned trial court has come to the conclusion that the genuineness of the sale deed is under doubt. He submits that the learned Appellate Court has reversed that finding only on the ground that the defendants/appellants have adduced evidence on the point of negotiation for sale as also for execution of the sale deed as Exhibit-4 and on that point, he has reversed the finding on the point of Exhibit-4. He submits that learned trial court has dealt with this aspect of the matter elaborately and the reversal of that finding by the learned appellate court is bad in law and the second law point is also required to be answered in favour of the appellants. 8. Per contra, Mr. Vikash Kumar, learned counsel appearing for the respondents submits that the learned appellate court has considered and has observed that during cross-examination under para-35, PW-1 has deposed that the plaintiffs-respondents have supported his evidence in chief discussed in the impugned judgment. He further submits that the learned appellate court has taken note of the fact that PW-1 has stated that the documents were taken to Ranchi by cheating him, where they lived to 4 to 5 days and after return from there this deposing plaintiff-respondent demanded those documents from the defendant-appellant, 2 to 3 days, thereafter the defendant-appellant took him to Ranchi with the assurance to return those documents to him, where they disclosed that they have purchased those lands. He submits that considering that there is no evidence of the knowledge of the execution of the sale deed, the learned appellate court has rightly reversed the finding on the point of limitation. Mr. Kumar, on the point of Exhibit-4, submits that during cross-examination under para-7, PW-3 has stated that Lothe Turi disclosed to him that Harakh Turi had given these lands to him on Zimma and considering the other aspect, the learned appellate court has rightly held that even if this witness for the plaintiffs-respondents are relied upon according to them, the possession of the family of Lothe Turi over the lands in dispute was permissive possession and not the adverse possession and the learned appellate court has observed that there is no transfer of ownership, i.e. title of the land by Harakh Turi to Lothe Turi. He further submits that the learned appellate court has rightly held that L.T.I. on the said Exibit-4 has been challenged, but the plaintiffs-respondents have not taken trouble to get them compared and examined by an expert. He further submits that the learned appellate court has rightly held that L.T.I. on the said Exibit-4 has been challenged, but the plaintiffs-respondents have not taken trouble to get them compared and examined by an expert. He also submits that the learned appellate court has also considered the evidence on the point of negotiation for sale as also for execution of sale deed (Exhibit-4) of the trial court and in that view of the matter, the learned appellate court has reversed the finding of Exhibit-4 of the learned Trial Court. 9. In view of the above submissions of learned counsel appearing for the parties, the court has gone through the judgments of the learned Trial Court as well as learned Appellate Court as well as the witnesses examined on behalf of the parties. Looking into the evidence of PW-1, it is crystal clear that he has stated in para-10 that to find out about the sale deed at Ranchi, he came to Ranchi and he has been able to obtain the certified copy of the sale deed and thereafter the said certified copy of the sale deed was filed before the learned Trial Court on 02.06.1990 and in his cross-examination, he has denied that he was having the knowledge prior to obtaining of the certified copy of the sale deed in question. Thus, prima facie, it is crystal clear that the document in question has been brought before the learned Trial Court and that has been considered by the learned Trial Court. The learned Trial Court has rightly considered that the parties are illiterate and the members of the Scheduled Caste and Scheduled Tribe and there is no positive evidence on record that these appellants/plaintiffs/respondents are knowing the fact about the registration of the sale deed earlier. The documents have been brought before the learned Trial Court, which is Exhibit-4, clearly suggests that it was registered on 20.08.1981 and as per the evidence of PW-1, he has enquired about the sale deed and then he has obtained the certified copy and considering the illiteracy of the plaintiffs, it cannot be said that the appellants / plaintiffs are knowing about the said transaction. 10. In that view of the matter, the finding of the learned appellate court does not sound good. Accordingly, the law point no. 1 is answered in favour of the appellants. 11. So far as law point no. 10. In that view of the matter, the finding of the learned appellate court does not sound good. Accordingly, the law point no. 1 is answered in favour of the appellants. 11. So far as law point no. 2 with regard to Exhibit-4 is concerned, learned Trial Court has considered that the land in question comes within the jurisdiction of the Sub-Registrar, Simdega, whereas it has been registered at Ranchi and not a single attesting witness has been examined in the suit on that point and the subscriber has also not been examined. There is no endorsement of the registering authority about the payment of consideration amount. It is well settled that in absence of consideration money, no transfer can take place. The stamp papers were purchased on 10.11.1980 in the name of Bhukhan Turi and the sale deed was executed at Ranchi on 26.11.1980. Bhukhan Turi and Duti Turi have not been examined to support the execution of the sale deed, who are the executants of the sale deed. However, attesting witness Karlus Tirkey was alive and also residing in Ranchi was also not examined in the said suit. Considering all these aspects of the matter, the learned Trial Court has rightly considered the correctness of the sale deed, which has been reversed only on the point of oral evidences as discussed in the appellate court judgment, which does not sound good. Accordingly, the law point no. 2 is also answered in favor of the appellants/ respondents. 12. In view of the above discussions and considering that the evidences and documents have not been properly appreciated by the learned Appellate Court. Accordingly, the judgment dated 23.01.2001 and the decree signed on 03.02.2001, passed in Title Appeal No. 05 of 1991 by the learned Additional District Judge, Simdega, is hereby, set aside. The Title Appeal No. 05 of 1991 is restored to its original file. The parties are at liberty to appear before the learned Appellate Court on 13.02.2023. 13. In view of the above discussion, the learned appellate court after hearing the parties on merits afresh and also examine the above discussions and pass the appropriate judgment afresh in accordance with law. 14. Let the Lower Court Records be sent back to the learned Appellate Court forthwith.