FIRST APPEAL No.294 OF 2005 Against the judgment and decree dated 21.09.2005 (decree signed on 5.10.2005) passed by Shri Nand Kishore Prasad Gupta, Sub Judge-II, Danapur in title Suit No. 132 of 1997. GYAN SHEELA DEVI AND ORS. …… Defendants /Appellants Versus LALLA SINGH …… Plaintiff /Respondent ******** For the appellants : Mr. B.N.B. Singh, Advocate Mr. Vikas Kumar, Advocate. For the respondent No.1 : Mr. J.S. Arora, standing counsel No. VI Mr. Amir Alam, Advocate. For the respondent Nos. 5 and 6 : Mr. Sanjay Sinha, Advocate. For the respondent Nos. 2, 3, 7 to 12 : Mr. Ramashankar Singh, Advocate Dated : 29th day of April, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendants have filed this first appeal against the judgment and decree dated 21.09.2005 (decree signed on 5.10.2005) passed by Sri Nand Kishore Prasad Gupta, the learned Sub Judge-II, Danapur in title Suit No. 132 of 1997 decreeing the plaintiff- respondent No.1 suit for declaration of title. 2. The plaintiff-respondent No.1 Lalla Singh filed the aforesaid Title Suit No. 132 of 1997 praying for declaration that the plaintiff has exclusive title over the suit land fully described in Schedule 2 at the Mungeshwar Sahoo, J. -2- foot of the plaint and further for declaration that the defendants have no title. The plaintiff also prayed for injunction against the defendants with regard to Schedule 2 property. 3. The plaintiff prayed for the aforesaid reliefs alleging that Misri Singh was the only son of Sarwan Dhari Singh. On the death of Sarwan Dhari Singh, Misri Singh inherited his entire property. Misri Singh was married with Bechani Kunwar. Out of love and affection and service rendered by Bechani Kunwar, Misri Singh executed and registered a gift deed with regard to the entire property mentioned in Schedule 1 of the plaint in favour of his wife Bechani Kunwar on 12.7.1932. On the basis of the said gift deed after accepting the gift Bechani Kunwar came in exclusive possession of Schedule 1 property. Plaintiff Lalla Singh was born out of the wed-lock. Subsequently, Bechani Kunwar died leaving behind Lalla Prasad Singh her only son as legal heirs who inherited the entire property of his mother Bechani Kunwar i.e. the Schedule 1 property. When plaintiff Lalla Prasad Singh was in need of money his father Misri Singh for the benefit of plaintiff sold some property and the purchasers were put in possession. Lalla Singh, the plaintiff also transferred some of the properties out of Schedule 1 property to meet his own legal necessity and for the satisfaction of the purchasers the father Misri Singh also joined as executant. Lalla Prasad Singh received the entire consideration amount and put the purchasers in possession. On the death of Bechani Kunwar, Misri Singh married with Navratan Devi and out of this wedlock three sons were born, who are the defendants in this case. Since on the death of Bechani Kunwar the property was exclusively inherited by the plaintiff, Misri Singh had no title over the property. Therefore, the defendants did not inherit any property. After selling the properties which remained in exclusive possession of the -3- plaintiff has been described in Schedule-II of the plaint. The defendants started claiming title forcibly over Schedule-II property and, therefore, the plaintiff was compelled to file the present suit for the reliefs as stated above. 4. The defendant-appellants appeared and filed jointly a contesting written statement. Their defence in short is that the alleged registered gift deed dated 12.7.1932 is showy document and it was never acted upon. On the basis of the said gift deed Bechani Kunwar never came in exclusive possession. Subsequently, the properties were also sold by Misri Singh which indicates that gift was not acted upon. There had been no partition and the defendants are also in joint possession of the property. Bechani Kunwar never accepted the gift and never came in possession either actual or constructive and she was not mutated. The entire property is joint family property. The defendants inherited the properties as coparceners and, therefore, they have unity of title and possession over the suit property as such the plaintiff is not entitled for declaration of exclusive title. 5. On the basis of the aforesaid pleadings, the learned court below framed seven issues. Out of the said seven issues the relevant and important issue is issue No.6 which relates to the gift deed dated 12.7.1932 Ext.4. The issue is, whether the gift deed executed by Misri Singh in favour of Bechani Kunwar is legal valid and effective? Issue No.5 is whether the parties have got unity of title and possession? While deciding both these issue Nos. 5 and 6 the learned court below came to the conclusion that there is no unity of title and possession between the parties over the suit land. Ext. 4 the gift deed dated 12.7.1932 is legal, valid and effective. On these findings, the suit has -4- been decreed. Against this judgment the present appeal has been filed. 6. The learned counsel Mr. B.N.B. Singh appearing on behalf of the appellants submitted that the appellants have adduced overwhelming evidence oral as well as documentary in proof of the fact that Bechani Kunwar never accepted the gift and she never came in exclusive possession over the Schedule-II property and that the gift deed is showy document but the learned court below has not properly appreciated the evidence and has wrongly decreed the plaintiffs’ suit. The appellants have also adduced oral and documentary evidences which clearly prove the fact that they are in joint possession of the suit property i.e. Schedule-II property. The learned counsel further submitted that if Bechani Kunwar had accepted the gift and came in exclusive possession then in the year 1940 Misri Singh could not have sold some portion of the Schedule-I property. This registered sale deed has been proved by the appellants which clearly indicate that Misri Singh was exercising title and possession over the entire property even after execution of the gift deed and, therefore, the document i.e. the gift deed is only a showy document and nothing else. The learned counsel further submitted that the plaintiff’s suit is bad for non-joinder of necessary party i.e. the mother of the defendants and also their sisters but the learned court below has not considered this aspect of the matter. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside. 7. On the contrary, Mr. J.S. Arora the learned counsel appearing on behalf of the respondent No.1 submitted that the learned court below has rightly decreed the plaintiff’s suit finding that Ext.4, the gift deed is legal, valid and effective because Bechani -5- Kunwar executed Ext.1, the Rehan deed in the year 1934. Bechani Kunwar died prior to 1940 leaving behind the only son Lalla Singh who is plaintiff. According to old Hindu Law the plaintiff being the only son inherited the entire property of Bechani Kunwar. When the plaintiff was minor Misri Singh sold some of the property in the year 1940 with a view to redeem the Rehan deed for the benefit of plaintiff. In view of the above, when Misri Singh married second wife he was not the owner of any property and, therefore, the defendants inherited nothing on the death of Misri Singh. There is no illegality in the impugned judgment and decree and, therefore, in this appeal it cannot be interfered with. The learned counsel further submitted that the Ext. A series produced by the appellants are rent receipts and on the basis of these rent receipts it cannot be said that they are in joint possession and they had got title over the property. Moreover, out of the three rent receipts two rent receipts are obtained during the pendency of this present suit. On these grounds, the learned counsel submitted that this first appeal is liable to be dismissed with costs. 8. In view of the above rival contentions of the parties, the only point arises for consideration in this appeal is whether the plaintiff is entitled for declaration of his exclusive title and whether the impugned judgment and decree are sustainable in the eye of law. 9. According to the plaintiff’s case, Misri Singh inherited the entire property of his father. He gifted all the properties to his first wife Bechani Kunwar on 12.7.1932 by registered gift deed Ext.4. Bechani Kunwar executed the gift deed and came in exclusive possession of the entire property which has been mentioned in Schedule-I of the plaintiff. Bechani Kunwar died leaving behind her only heir i.e. the plaintiff who inherited her entire property. After death of Bechani Kunwar Misri, Singh married second wife Navratan -6- Devi and the appellants are sons of Misri Singh and Navratan Devi, therefore, they have neither title nor possession over the suit property. The said property which remained in possession over the plaintiff has been mentioned in Schedule-II of the plaint which is referred to as suit property. According to the defendants case there had been no partition and the entire property is joint property. The gift deed is showy and it was not acted upon and on the basis of the said gift deed Bechni Kunwar never came in exclusive possession. In view of the pleadings of the parties, the important point for consideration is whether the gift deed Ext.4 is legal and valid and whether it was acted upon or whether Bechani Kunwar accepted the said gift deed and came in possession of the suit properties. 10. The parties have adduced the oral as well as documentary evidences in support of their cases. PW 1 is the plaintiff himself. He has fully supported the case made out in the plaint. In his evidences he has stated that Bechani Kunwar had executed the Rehan deed in the year 1934 because of legal necessity. It is not necessary here to reiterate his evidence. It will be only repetition of the fact. The learned counsel for the appellant submitted that he has admitted in his cross-examination that in the year 1981 the plaintiff and the defendants with their father sold some plots and purchasers were in possession thereof which indicates that the appellants have also got title and possession over the suit property. So far this submission is concerned it maybe mentioned here that if the gift deeds is valid and it was accepted by Bechani Kunwar then, only because subsequently in the year 1981, the appellants also joined as vendor in the sale deed there can be no presumption that they have also got title and possession. The plaintiff has clearly stated that for the satisfaction of purchasers his father was made executant with the plaintiff in earlier -7- sale deeds. PW 2 has stated about the possession of the plaintiff. PW 3 is hearsay witness. PW 4 is son of the plaintiff. He has also fully supported the case made out by the plaintiff. He has also stated the execution of Rehan deed by Bechani Kunwar. PW 5 and 6 are the formal witnesses. 11. DW 1 is one of the defendants who has stated that there has been no partition between the parties. Bechani Kunwar never came in possession on the basis of gift deed which is a showy document. The said gift deed was never acted upon. In the cross examination at paragraph 17 this witness has clearly said that he had no knowledge whether any gift deed was executed by Misri Singh in favour of Bechani Kunwar and, therefore, this witness has got no knowledge about gift deed. In my opinion, therefore, he is totally incompetent person to say that the gift deed was never acted upon. It may be mentioned here that the gift deed was executed in 1932. Bechani Kunwar executed Rehan deed in 1934 i.e. Ext.1. Admittedly, Misri Singh married the mother of the appellants after death of Bechani Kunwar who died prior to 1940. Therefore, the appellants were not in existence when either Ext. 4 or Ext. 1 was executed. Accordingly, they are not competent to say that the gift was not acted upon and Bechani Kunwar never came in exclusive possession. 12. DW-2 has only stated about joint possession and that there has been no partition between the parties. DW 3 and 4 have stated that the gift deed was never acted upon. one plot was sold by Misri Singh himself during his life time in favour of Dev lal Rai who is in possession there of. Such is the evidence of DW 6. From the discussion of the oral evidence of the defendants appellant it appears that their evidences is to the effect that gift deed was not acted upon because subsequently, Misri Singh had also sold some of the property. -8- 13. The sale deed executed by Misri Singh has been proved by the defendant which has been marked as Ext. B. From perusal of this deed it appears that this sale deed is dated 14.7.1976. In this sale deed Lalla Singh is the witness and he has identified the signature of his father Misri Singh. Therefore, the property was sold by Misri Singh and the plaintiff has got no objection. It is for the satisfaction of the purchasers who purchased the property from Misri Singh and the plaintiff is the witness. On the basis of this sale deed it cannot be said that the gift deed of the year 1932 was not acted upon. It is for the plaintiff who could have challenged the sale deed on the ground that Misri Singh could not have sold the property of Lalla Singh but he never challenged rather he consented to the transfer by the father. That will never mean that gift deed is showy document. Ext. B-1 is sale deed of the year 1940 i.e. dated 1.6.1940. From perusal of this sale deed Ext.B-1 it appears that in the sale deed itself it has been mentioned that Misri Sing is in possession of the land of deceased person. It appears that the prior to 1940 Bechani Kunwar died. In this sale deed there is mention of Rehan deed and to redeem the said Rehan deed the property has been sold. Admittedly, at that time the plaintiff was minor. In this deed also Misri Singh is not claiming as owner of the property but he has stated that he is in possession of the property of the deceased wife. Ext. B-2 is another sale deed dated 24.11.1986. The vendors are Lalla Singh, the plaintiff and Misri Singh. In this sale deed the original defendant Jitendra Prasad Singh, since deceased is a witness. Therefore, on the date of execution of this sale deed Jitendra Prasad Singh was not considered to be the owner of the property and, therefore, he was not made executant. 14. The learned counsel for the appellant submitted that these sale deeds have been produced to prove that the gift deed was never -9- acted upon. So far this submission is concerned it may be mentioned here that these are only circumstantial evidence and on the basis of these deeds no definite conclusion can be arrived at. The plaintiff has given sufficient explanation to the effect that for the satisfaction of the purchaser the father of the plaintiff was also made executant but the father never claimed the property as owner. 15. The learned counsel for the appellants submitted that the suit is barred under Section 34 of the Specific Relief Act because the plaintiff has filed simple suit for partition. So far this submission is concerned we have seen above that the plaintiff became the absolute owner on the death of his mother. Possession follows title. Only because somebody is creating trouble or attempting to dispossess the plaintiff by mutation or obtaining rent receipt it cannot be said that they are in possession also. Here since it is found that the plaintiff is in possession there is no question of bar under Section 34 of the Specific Relief Act arises. Moreover, in this case the plaintiff has prayed for injunction restraining the defendants from disturbing the possession of the plaintiff. I therefore, find that the suit is not barred under Section 34 of the Specific Relief Act. 16. The learned counsel next submitted that the plaintiff is estopped to deny the title of the appellants because in the sale deeds Ext. B/2 it has been admitted that there had been partition between the parties i.e. among four sons and Misri Singh. This admission made by the plaintiff admitting the title of the appellant. The learned counsel relied upon AIR 1928 Privy Council 20 Bhagwan Singh and others Vs. Ujagar Singh. From perusal of the said decision it appears that in that case the plaintiff filed the suit for recovery of possession. According to the plaintiff the suit property was ancestral property of Hira Singh the grandfather of the plaintiff. The defendant -10- Nos.2 and 3 had half share in the said property but they by reason of private partition had taken other land in exchange for their share. One of the widow of Hira Singh had mortgaged in favour of the defendant No.1. The trial court decided that the widow had limited power of alienation and mortgage was executed for valid necessity and, therefore, it was binding on the plaintiff. The plaintiff's father had attested the mortgage deed. The question was whether the plaintiff's father and defendant Nos. 2 and 3 acquiesced in the alienation in favour of defendant No.1 by their conduct. It was held that this does not conclude the matter, for attestation of a deed by itself estops a man from denying nothing whatsoever except that he witnessed the execution of the deed, and by itself it does not show that he consented to the transaction which the document effects. In view of the above, in my opinion this decision is not helpful to the appellant because in the present case the facts are otherwise. The plaintiff became the absolute owner on the death of his mother. Therefore, subsequently, on the basis of his admission only title will not pass. 17. The learned counsel next relied upon AIR 1934 Patna 93 Bhagwat Rai Vs. Gorakh Rai and others. It has been decided in this case that where an attesting witness is present at the transaction and attests the deed having heard its contents, he is estopped from challenging the right of the transferee. Therefore, here this question does not arise. The plaintiff is not the only attester of the deed. We have seen that he is exclusive owner of the property. The learned counsel next relied upon AIR 1979 Punjab and Haryana 12 Ujagar Singh Vs. Shyam Singh and others and submitted that the plaintiff had admitted title of defendants and, therefore, he is estopped to challenged the title of the defendant. From perusal of the said -11- decision it appears that the plaintiff was claiming title over whole property admitting that the defendants had taken forcible possession of 1/4th share. Here the possession is not admitted and according to the plaintiff he is in exclusive possession. In the said decision the defendants case was that they gave 3/4th of the property to the plaintiffs and the plaintiffs agreed to give 1/4th property to the defendants and on that basis they came in possession and the plaintiffs agreed to their mutation. In that case the property belonged to Sundar Singh and both the parties were claiming inheritance. In the present case we have seen that after gift the property was owned and possessed by mother of the plaintiff. Therefore, this decision is also not helpful to the appellants. 18. On the point of estoppel the learned counsel relied upon another decision of the Apex Court in AIR 1971 SC 2548 Dattatraya Vs. Rangnath Gopalrao Kawathekar (dead) by his legal representatives and others. It appears that in that case the second defendant admitted that the suit properties were of the exclusive ownership of the first defendant, his brother and that he had no right in the same. Subsequently, the second defendant was trying to resile from the admission made by him with a view to take advantage of the situation for which the plaintiffs were placed. Therefore, in that case earlier the second defendant admitted the title of the first defendant and subsequently, he tried to deny the title of first defendant. The Apex Court held that admission is a piece of evidence but estoppel creates title and on the basis of the admission made by second defendant in Ext.2 held that Ext.2 affords satisfactory evidence to prove the title of first defendant. Here in the present case the fact is entirely different as we have discussed above. -12- 19. The learned counsel next relied upon AIR 1981 Patna 1 (F.B.) Bibi Amna Khatun and others Vs. Zahir Hussain and another. It appears that the said suit relates to the case under Bihar Buildings (Lease, Rent and Eviction Control) Act. It has been held that the accepted connotation of ‘waiver’ is that to constitute waiver there must be an intentional relinquishment of known right or the voluntary relinquishment or abandonment or existing legal right and a conduct which warrants an interference of the relinquishment of a known right. Here in the present case there is no such intentional voluntary relinquishment or abandonment of the right by the plaintiff in favour of the appellants. I therefore, find that these decisions are not applicable in the present case. 20. The learned counsel for the appellants submitted that mother and sister of appellants are necessary party but they have not been made party. So far this submission is concerned also I find no force because this is not a suit for partition. The allegation is that the appellants are only claiming title and disputing title of plaintiff. So they have been made party. 21. In this case two interlocutory applications have been filed under Order 41 Rule 27 C.P.C. i.e. I.A. No. 2329 of 2009 and I.A. No. 8389 of 2010. The learned counsel for the appellants submitted that after birth of plaintiff Lalla Singh his mother Bechani Kunwar died and Misri Singh continued in possession and the deed of gift was never acted upon. Through these two interlocutory applications the appellants prayed that they may be allowed to adduce additional evidence to show that by different sale deeds the property was subsequently transferred by the parties. The appellants desire to produce sale deed dated 24.4.1986, the sale deed dated 10.5.2000, sale deed dated 10.7.1980, sale deed dated 22.10.1984, sale deed -13- dated 25.8.1987, 10.2.1995, 10.5.2000. It may be mentioned here that most of the sale deeds were executed prior to institution of the suit but the appellants did not produce all these sale deeds before the court below. If the appellants have produced all those sale deeds the plaintiff would have given explanation about the execution of those sale deeds. Some of the sale deeds have been admittedly executed by the appellants and their mother. It is the case of the plaintiff that after sale the remaining land has been in possession exclusively of the plaintiff which have been mentioned in Schedule-II. Order 41 Rule 27 clearly bars the production of additional evidence. Some exceptions have been mentioned under Order 41 Rule 27 and unless those exceptions mentioned in the said provision is fulfilled no party can be allowed to adduce additional evidence. It is not the case that because of the fact that the appellants were not knowing about the said sale deeds, they did not produce or in spite of due diligence they could not find earlier. As stated above these sale deeds are much after the death of Bechani Kunwar. In my opinion, therefore, these documents are not required for pronouncement of judgment. In the