1 S.A. No. 63/1989 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 63/1989 APPELLANT: Abdul Majeed (since deceased) through his LRs: (i) Abdul Salim, aged about 47 years, (ii) Mohd. Kalim, aged about 42 years, (iii) Mst. Jamila Bano, aged about 30 years, (iv) Sakila Bano, aged about 28 years, (v) Nastari Bano, aged about 25 years, (i) to (v) are sons and daughters of Late Abdul Majeed, R/o Amhiya Ward, Rewa (M.P.) -Versus- RESPONDENTS: 1. Mohd. Ramzan Khan (since deceased) through his LRs: (i) Ibran Khan, S/o Late Mohd. Ramzan Khan, aged about 50 years, (ii) Irfan Khan, S/o Late Mohd. Ramzan Khan, aged about 45 years, Both R/o 373, Akbarpara, Allahabad (U.P.) 2. Mohd. Yusuf (since dead) through his LRs 2 S.A. No. 63/1989 (i) Khatumul Nisha, wife of Late Mohd. Yusuf, aged about 60 years, (ii) Mohd. Sabbir, son of Late Mohd. Yusuf, aged about 25 years, (iii) Mst. Ashiya Bano, D/o of Late Mohd. Yusuf, aged about 30 years, (iv) Mst. Rajiya Bano, D/o of Late Mohd. Yusuf, aged about 25 years, All are residents of Amahiya, near Badi Dargah, District Rewa (M.P.) ................................................................................................ Appellant - Shri A.K. Pathak, Advocate Respondent No.1 - Shri Atul Anand Awasthy, Advocate. Other Respondents- None though served. ............................................................................................... Date of hearing : 18/08/2011 Date of judgment : /08/2011 J U D G M E N T ( /08/2011) 1. This appeal has been filed by defendant no.2 against the judgment of reversal passed by learned First Appellate Court decreeing the suit for possession in respect of portion shown within black lines shown in the plaint map and to remove the door which has been shown in the map at portion ‘X’ and to built a wall on that place; and to grant decree of permanent injunction as well as for mesne profit. 3 S.A. No. 63/1989 2. The plaintiff’s maternal grandfather Mohd. Khan who has been shown as owner in the municipal record area 0.01 acre or 436 sq. ft. of Plot No. 3574 on which his house has been built and has been shown within yellow coloured lines in the plaint map. On 26.11.1963 plaintiff’s maternal grandfather Mohd. Khan executed a registered gift deed of the suit property in favour of plaintiff who later on got his name mutated as owner in the municipal record. The plaintiff’s donor Mohd. Khan expired about 10 years prior to filing of the present suit which was filed on 16.7.1979 (32 years ago). The portion in the plaint map denoted by letter ‘Ka’ shown in the brown coloured lines was in possession of tenant Pannalal s/o Mewalal Dhobhi and that of letter ‘Kha’ of the tenant Abdul Majeed who were paying rents to the plaintiff as their landlord. In Summer 1977, the defendant no.1 served notices on these tenants for vacating the portions which they were possessing and to pay rent to him but they had repudiated the title of defendant no.1 as well as his ownership and further stated in the reply that plaintiff is their landlord. The defendant no.1 on receiving such reply from those persons did not file suit in any Court against them on the relationship of landlord and tenant. But, he 4 S.A. No. 63/1989 (defendant no.1) had sold the part of the disputed property shown within black coloured lines in the plaint map to the defendant no.2 (the applicant) on 8.3.1979 vide registered sale deed. It is the further case of the plaintiff that defendant no.2 had rebuilt a portion which he purchased from defendant no.1 somewhere in August, 1981. 3. It is the further case of the plaintiff that the Mohd. Khan being the owner of 0.01 acre or 436 sq. ft. of Plot no. 3574 had constructed a house about 60 to 70 years ago and started residing in it with his family which is shown in yellow coloured lines in the plaint map. Said Mohd. Khan in the adjoining south and west part of his house on a portion of Plot No. 3576 had made a further construction about 60 years ago which is shown within brown coloured lines and thereafter rented out that portion mentioned as ‘Ka’ and ‘Kha’ to the tenants Pannalal and Abdul Majeed who are now his (plaintiff's) tenants. It is also pleaded that said Mohd. Khan built a ‘Kotha’ (room) about 30 years ago on the adjoining land next towards south of the brown coloured lined portion which has been delineated within black lines. Apart from the construction (supra) and towards south and west there was open public land of Plot No. 3576 which 5 S.A. No. 63/1989 remained in the exclusive use of plaintiff’s maternal grandfather Mohd. Khan and that land has been shown within green coloured lines in the plaint map. According to the plaintiff, his maternal grandfather transferred the complete suit house bearing numbers 50, 364/1 and 374/5 (old) and number 378/10 (new) through registered ‘Hiba- nama’ (gift deed) dated 26.11.1963 to the plaintiff and from this date he is occupying the suit property as owner. 4. It is also pleaded in the plant para 9 that defendant no.1 (the vendor of defendant no.2) along with his six brothers had filed a civil suit in the civil court in respect of yellow and brown enclosed portion of the suit house against Mohd. Khan (plaintiff’s maternal grandfather) in respect of the suit property and the said civil suit was dismissed on 24.8.1946 and the first appeal and the second appeal were also dismissed. The plaintiff further submitted necessary application before Nazul Officer, Rewa to mutate his name and in those proceedings although defendant no.1 submitted objection but the plaintiff’s name was directed to be mutated on 17.7.1978. This made annoyance to the defendant no.1 and eventually he broke the wall of plaintiff on 19.7.1978 and built upon a door at that particular place 6 S.A. No. 63/1989 which is shown as ‘X’ in the plaint map. He further dismantled the plaintiff’s lavatory and tried to interfere in his possession. Not only this, the defendant no.1 in the absence of plaintiff broke the locks of ‘Kotha’ and by throwing out the household articles on 28.7.1978 illegally took its possession which is shown within black lines. A report was also lodged by Mst. Kariman in this regard. During the pendency of the suit, the defendant no.1 had illegally encroached upon 9 sq. ft of land towards south within the green lines up to the brown lines and had also built a ‘varanda’ and a ‘kothari’ (room) shown by letters ‘Aa, Ba, Sa and Da’ in the plaint map. The defendant no.2 to whom defendant no.1 had sold the ‘Kothari’ delineated within black lines had reconstructed the same somewhere in the month of July and August in the year 1981 extending it from east to west to 14 ft. and north to south to 8 ft. and thus the plaintiff has claimed damages and mesne profit @ Rs.25/- per month from 28.7.1978 up to June 1979 to Rs.277.50 and further mesne profit pendente lite at the same rate till the possession is delivered to him. 5. In the present case, there are two written statements. The first written statement which was filed on 15.3.1980 7 S.A. No. 63/1989 was filed by both the defendants however later on, on 9.1.1982 defendant no.1 Mohd. Yusuf filed a separate written statement. But in both the written statements, the plaint averments were emphatically denied. According to defendants, the land of Plot Nos. 3574 and 3576 had in fact belonged to father of defendant no.1 late Noor Mohd. alias Dhodhe who had built a number of houses on these lands situated in Amhiya Ward, Rewa. The portion of suit house built on 0.01 acre or 436 sq. ft on Plot No. 3574 as shown enclosed in yellow lines in the plaint map ‘A’, a portion buit by Noor Mohd. alias Dhodhe in which the plaintiff’s maternal grandfather Mohd. Khan used to live on rental basis but had later on stopped paying rent and had got his name recorded as owner in the various documents. Later on, on the basis of the gift deed executed by Mohd. Khan in favour of plaintiff, the portion which has been delineated by yellow lines was mutated in various records in the plaintiff’s name. 6. Further it has been pleaded by the defendants in their written statement that the sanction for construction of houses on 0.18 acre on Plot No. 3576 which was shown within black and green lines in the plaint map ‘A’ was granted by the Nagar Palika, Rewa in Board Regulation No. 8 S.A. No. 63/1989 44 dated 22.11.1941, file no. 42/279 dated 28.9.1950 to Noor Mohd. alias Dhodhe to whom 329 sq. ft. were sold, that 126 sq. ft. and 325 sq. ft.'s sanction was in the said file and permission to built on 610 sq. ft. had already been obtained in the past. The father of defendant no.1 was accordingly in possession of 1390 sq. ft. of land and the houses standing on this land. The portion of suit house shown enclosed in brown and black lines and open land of Plot No. 3576 of the Government, shown enclosed in green lines were being used by father of defendant no.1 Noor Mohd. alias Dhodhe and after his death in partition amongst the brothers, this property fell in the share of defendant no.1. The house shown in the plaint map of Chhote etc. was also built upon by the father of defendant no.1 and his father built up a door opening towards land enclosed within green lines. The two tenants namely Pannalal s/o Mewalal and Abdul Majeed were the tenants of defendant no.1 and to whom they used to pay the monthly rent but had fallen to the inducement held out by plaintiff and stopped paying rents to the defendant no.1 who served notice on them in the year 1977 to which the said tenants had sent their 9 S.A. No. 63/1989 replies as detailed in the plaint. On account of paucity of money, eviction suit could not be filed against him. 7. Further it has been pleaded in the written statement that defendant no.1 had no knowledge of filing of any suit by him along with his brothers against the plaintiff’s maternal grandfather regarding suit house or any of its portion or about any proceedings before the competent Officer, Nazul, Rewa. 8. Further, it has been pleaded in the written statement that defendant no.1 had sold the ‘Kotha' shown within black lines in the plaint map on 8.3.1979 and the sale deed was registered on 12.4.1979 in favour of defendant no.2 who had rebuilt the portion in the month of August, 1981 which was fallen down. 9. Thereafter, defendant no.1 filed a separate written statement on 9.1.1982 in which he raised an additional pleas that defendant no.2 had fraudulently got a registered sale deed executed through him of black lines enclosed portion of the suit house and accordingly he had filed a civil suit against him (defendant no.2) which is pending in the Court. In fact, the defendant no.2 had actually got into forcible possession of the black lined enclosed portion on 10 S.A. No. 63/1989 22.2.1981 regarding which he (defendant no.1) had lodged a report with the police and that he would take steps to evict defendant no.2 from illegal possession. A plea has also raised that without seeking relief to get the sale deed as null and void declared, the suit of plaintiff cannot be decreed. 10. The learned Trial Court framed necessary issues and after recording evidence of the parties decreed the suit of plaintiff by the impugned judgment and decree holding that plaintiff has successfully proved his ownership to the portion delineated within yellow and brown lines and in that regard the suit of injunction of plaintiff is liable to be decreed and because plaintiff has failed to prove rest part of his suit, it stands dismissed. The plaintiff and defendants both filed appeals before learned First Appellate Court. The learned First Appellate Court allowed the plaintiff’s first appeal and decreed the suit in toto and eventually the cross appeal no. 5-A/1986 filed by defendant no.1 has been dismissed by passing a common judgment. 11. In this manner, this second appeal has been filed. 12. This Court on 21.8.1989 admitted the second appeal on the following substantial questions of law:- 11 S.A. No. 63/1989 (i) “Whether conclusion of the Courts below holding plaintiff's claim over the property purchased by the defendant- appellant by registered sale-deed dated 8.3.1979 is perverse?” (ii) “Whether the Courts below misconstrued the documents on record vitiating the impugned judgment and decree with illegality?” 13. The contention of Shri A.K. Pathak, learned counsel for the appellant (defendant no.2) is that the conclusion of the courts below holding the plaintiff’s name over the property purchased by defendant (appellant) by registered sale deed is perverse and contrary to the evidence. By addressing the substantial question of law no.2 it has been put forth by learned counsel that the learned Trial Court in its wisdom has marshalled the evidence of the parties vis-a- vis to their pleadings and had arrived at a finding that except a decree of injunction in respect of yellow and brown lines shown in the plaint map, the plaintiff is not entitled for any other relief, however, the learned First Appellate Court without considering the finding of the learned Trial Court has jumped upon a conclusion holding that plaintiff's suit is proved and has passed the impugned judgment decreeing 12 S.A. No. 63/1989 the suit of plaintiff. Learned counsel submits that learned First Appellate Court has totally failed to take into account the admission of plaintiff which he had made in para 8 of his cross examination and if this admission of his would have been taken into account by that Court, certainly the appeal of plaintiff would have been dismissed. 14. On the other hand, Shri Atul Anand Awasthy, learned counsel for the respondent no.1 argued in support of the impugned judgment and submitted that learned First Appellate Court had not only considered the evidence of the parties as well as the evidence placed on record but has also taken note of the evidentiary value of the witnesses on the touchstone and anvil of the documentary evidence and has come to the conclusion that plaintiff has successfully proved his case and, therefore, learned First Appellate Court did not err in passing the impugned judgment and decree and hence submitted that this appeal be dismissed. 15. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. Regarding Substantial Question of Law No.2:- 16. The substantial question of law no.1 would depend upon the answer of substantial question of law no.2. Admittedly, 13 S.A. No. 63/1989 defendant no.2 (whose LRs are present appellants) has stepped in the shoes of defendant no.1 and if defendant no.1 is out of Court certainly defendant no.2 would be automatically out because he had bought the part of suit property from defendant no.1 on which plaintiff is claiming his right. Hence before deciding substantial question of law no.1, I would like to apt to answer substantial question of law no.2. 17. The learned First Appellate Court by assigning several reasons from para 13 onwards considering the pleadings of the parties vis-a-vis to each other as well as the evidence led by them has held that plaintiff has successfully proved his case and hence entitled for the decree which he has sought for. Which particular document has been misconstrued by the learned First Appellate Court which has resulted in vitiating the impugned judgment, this has not been mentioned in the substantial question of law. On bare perusal of the impugned judgment passed by learned First Appellate Court, I find that in very detail the learned First Appellate Court has arrived at a pure finding of fact that plaintiff is the owner of the suit property. Indeed, those findings are pure findings of fact which cannot be interfered 14 S.A. No. 63/1989 in this second appeal. However, since a substantial question of law has been framed, I would like to go through the documents which are placed on record and which are taken note of by learned First Appellate Court in its impugned judgment. 18. On bare perusal of 'Hiba-nama' (gift deed) Ex. P/1 this Court finds that the property in question was gifted to plaintiff on 26th November, 1963. Although the parties are Mohammadan and under the Mahomedan Law, an oral gift is permissible if it is followed by delivery of possession. However in the present case the gift deed is a registered document and possession has also been delivered and this has been so embodied in the document Ex. P/1 itself. The plaintiff has proved his possession on the entire suit property not only by this gift deed but by placing several documents. There is specific pleading of plaintiff which has been found to be proven in his evidence that the portion marked as 'Ka' and 'Kha' in the plaint map and which are delineated by brown coloured lines, in that portion two tenants were inducted by his maternal grandfather (his donor Mohd. Khan). After the death of his maternal grandfather, the defendant no.1 served notices to these 15 S.A. No. 63/1989 tenants Ex. P/3 and P/4 dated 31.5.1977 and 1.5.1977 respectively to the tenants Pannalal and Abdul Majeed but they sent replies disowning the defendant no.1 as their landlord and intimated that they are the tenants of plaintiff. The reply of the notices dated 8.6.1977 sent by them have been filed as Ex. P/5 and P/6 respectively. Despite these tenants disowning the right of defendant no.1 it appears that he did not file any suit against them because no document in this regard has been filed by the defendants. 19. In para 14, the learned First Appellate Court has arrived at a pure finding of fact that since plaintiff Mohd. Ramzan Khan was serving at a Allahabad, the defendant no.1 in his absence had broken the wall of his house and installed a door towards the suit property and took illegal possession of 'Kotha' shown within black coloured lines of plaint map on 28.7.1978 and in this regard his grandmother Mst. Kariman, who used to reside in the suit property lodged complaint which is Ex. P/14 in the concerning police station. Further plaintiff has proved copy of notice Ex.P/16 sent to the defendant no.1 not to alienate the 'Kotha' (part of suit property) to anybody against which defendant no.1 sent his reply Ex. P/19 dated 16.4.1979 intimating of its sale for a 16 S.A. No. 63/1989 consideration of Rs.1000/- on 8.3.1979 to defendant no.2 claiming it to be his ancestral property. The plaintiff has also proved publication of notice in the newspaper Ex. P/21 which is a general public notice not to purchase any portion of the suit property. He has also proved the constructions carried out by his maternal grandfather to which he had succeeded by gift and green coloured lined enclosed open land used exclusively by Mohd. Khan for 'Nistar' and then by him. 20. A very important document Ex. P/8 which is a judgment dated 24.8.1946 (Lal Mohammed and others Vs. Mohammed Khan) of a suit which was filed by present defendant no.1 for himself and for his minor brothers against maternal grandfather of plaintiff Mohd. Khan disclosing him to be his tenant but the said suit has been dismissed holding that plaintiffs of that suit have utterly failed to prove the relationship of landlord and tenant. 21. For the plethora of reasons, the learned First Appellate Court by relying the evidence of plaintiff and his witnesses and by marshalling their testimony vis-a-vis to the defendants' pleadings and evidence has come to the conclusion that plaintiff and his witnesses are quite reliable 17 S.A. No. 63/1989 and case of plaintiff has also been proved by umpteen documents which he has filed and proved. The plaintiff has proved his possession on the suit property and has further proved that he was forcibly dispossessed from the portion shown within the black lines in the plaint map. 22. I do not find any substance in the contention of learned counsel for the appellant that if para 8 of the cross examination is considered in its true perspective, the plaintiff is out of Court. On going through para 8 of the testimony of plaintiff, I do not find anything therein in order to hold that plaintiff has failed to prove his case. This para is in respect of mutation in the record of local authority and I find nothing in his cross examination in order to hold that this piece of evidence has dismantled the case of plaintiff. 23. The learned First Appellate Court in para 16 onwards and particularly in para 18 has held that defendant no.1 Mohd. Yusuf is a rank liar because he hated speaking the truth and that he was not at all reliable. In cross-examination he denied that he ever sold the 'Kothari' shown within black coloured lines in the plaint map A to the defendant no.2 and when he was confronted with para 14 of the defendants' written statement and the contents of notice Ex. P/19 dated 18 S.A. No. 63/1989 16.4.1979 admitting that he had sold that portion to defendant no.2, he disowned the contents. Not only this, he has denied the execution of the registered sale deed dated 12.4.1979 whose certified copy is marked as Ex.D/2(1) to the respondent no.2 with the map which is corresponded to the plaint map for Rs.1000/-. 24. The learned First Appellate Court in para 19 of its impugned judgment has held that defendant no.1 Mohd. Yusuf (DW-1) admitted that he had six other brothers naming all of them. But he has denied any knowledge that his brothers including himself had filed a suit whose certified copy is Ex. P/9-C dated 6.5.1946 in the Court of Munsif, Rewa and Court's decision dismissing the suit Ex. P/8 on 24.8.1946 (Civil Suit No. 147/1946) which was filed against Mohd. Khan, the plaintiff's donor. The height of falsehood is that this witness has tried to wriggle out of this position by stating that he was not a party to the suit. However, on bare perusal of Ex. P/9-C it is gathered that defendant no.1 was very much a party to the said suit. 25. Thus, I am of the view that learned First Appellate Court has not all misconstrued any of the document and hence the judgment and decree cannot be said to be illegal. 19 S.A. No. 63/1989 The substantial question of law no.2 is thus answered against appellants and in favour of defendants. Regarding Substantial Question of Law No.1: 26. Since it is already held while deciding substantial question of law no.2 that learned First Appellate Court has rightly came to hold that plaintiff is the owner of the suit property and, therefore, even if defendant no.1 has sold part of it to the defendant no.2, according to me, it will not jeopardize the right of plaintiff and, therefore the findings of the Court below holding the plaintiff's claim over the property purchased by the defendant-appellant by registered sale deed is not perverse. This substantial question of law is also answered against appellants and in favour of respondents. 27. Resultantly, this appeal fails and is hereby dismissed with costs. Counsel fee Rs.3000/-, if pre certified. (A.K. SHRIVASTAVA) JUDGE rao