Patna High Court FA No.313 of 1979 dt.24 -07-2012 1/24 IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.313 of 1979 (Against the judgment and decree dated 22.12.1978 passed by Sri Raja Ram Singh, Subordinate Judge, Khagaria in Title Suit No.94 of 1975/33 of 1977). =========================================================== Kranti Devi & Ors .... .... Plaintiffs-Appellants Versus Om Bahadur Jha & Ors .... .... Defendants-Respondents =========================================================== Appearance : For the Appellant/s : Mr. Dhruv Narain, Sr. Advocate Mr. Birendra Singh, Advocate Mr. Ram Sevak Choudhary, Advocate with him. For the Respondent/s : None =========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO CAV JUDGMENT Date:24-07-2012 Mungeshwar Sahoo, J. (1) The original plaintiff, Lakshmi Narain Aarya who died during the pendency of this appeal and substituted by legal representatives had filed this First Appeal against the judgment and decree dated 22.12.1978 passed by the learned Subordinate Judge, Khagaria in Title Suit No.94 of 1975/33 of 1977 whereby the plaintiff’s suit was dismissed. (2) The plaintiff filed the aforesaid suit praying for declaration of title and recovery of possession with respect to Schedule I property i.e. 1 bigha 15 katthas 5 dhurs land out of plot no.499, khata no.320 of village Mathurapur. According to the plaintiff, plot no.70 and plot no.499 measuring 4 acres 34 decimals and 2 acres 63 decimals respectively were recorded under khata Patna High Court FA No.313 of 1979 dt.24 -07-2012 2/24 no.380, tauji no.3719 in the name of Janki Prasad Singh as bataidar with occupancy right within the zamindari of Raj Bainaili and Mungeri Sah was recorded as tenure holder. Said bataidar, Janki Prasad Singh orally surrendered the said lands to the tenure holder, Mungeri Sah who came in possession thereof. Mungeri Sah died leaving behind his two sons, Jugal Behari Sah and Ram Sahay Sah. Jugal Behari Sah died leaving behind two sons, Bhagwan Das and Anandi Prasad Sah and likewise, Ram Sahay Sah also died leaving a son, Kishun Sah. In Partition Suit No.620 of 1910 between the aforesaid legal heirs of Mungeri Sah, plot no.499 was allotted in the share of Bhagwan Das and plot no.70 was allotted to Anandi Sah and Ram Sahay Sah and accordingly, they came in possession of the lands allotted in their share. They also dealt with the lands according to their need. The legal heirs of Bhagwan Das namely Pratap Chand Sah sold suit plot no.499 to Girja Devi wife of Kishun Sah by a registered sale deed dated 28.07.1934 for a consideration of Rs.1300. Girja Devi came in possession of the land and her name was mutated in the serista of Raj Bainaili and she was paying rent. After vesting, her name was mutated and jamabandi was opened in her name. The plaintiff specifically stated that Janki Prasad Singh executed a deed of dedication in respect of his entire properties in the name of Sri 108 Sri Thakur Ramjanki Ji Maharaj established by him in village Patna High Court FA No.313 of 1979 dt.24 -07-2012 3/24 Mathurapur. (3) The further case of the plaintiff is that Girja Devi had 4 sons and in private partition in the year 1956 between the sons, the plot no.499 was allotted to Laddu Lal and Satya Narain Prasad the two sons who came in exclusive possession thereof. Both of them when desired to sell plot no.499, the plaintiff and defendant 1st party negotiated and plaintiff purchased 1 bigha 15 katthas 5 dhurs which is described in Schedule I of the plaint for consideration of Rs.2,000 through a registered sale deed on 18.08.1962. Likewise, defendant 1st party purchased the Schedule II property out of the said plot in the name of his mother-in-law, defendant no.3, Genda Devi on 17.08.1962. Thereafter, the property was measured and a ridge was made between the Schedule I and Schedule II property. However, subsequently, at the instance of the defendant 2nd party, a proceeding under Section 144 was initiated which was converted to 145 Cr.P.C. proceeding which was decided against the plaintiff. Thereafter, defendant 1st party and defendant 2nd party dispossessed the plaintiff from the suit land on 15.11.1963. Hence, the suit was filed. (4) The defendants-respondents appeared and filed separate contesting written statement. Besides taking various legal and ornamental pleas mainly they contented that Janki Prasad Singh Patna High Court FA No.313 of 1979 dt.24 -07-2012 4/24 never surrendered either plot no.70 or plot no.499. The sale deed executed by legal heirs of Mungeri Sah to Girja Devi has no legal basis. Therefore, the vendee neither derived title nor came in possession over the property sold. The mutation or grant of rent receipt will not vest title on Girja Devi in absence of any right to sell possessed by vendor. In view of Section 22 of Bihar Tenancy Act when Girja Devi purchased the land, she acquired Bakast interest and, therefore, there was no question of mutation or payment of rent arises. The recorded bataidar, Janki Prasad Singh died issueless. Therefore, his properties including the suit properties passed on to his Gotias namely Shital Singh and Chunchun Singh, sons of Jugeshwar Singh who came in possession after inheritance. The defendant 2nd party purchased plot no.499 measuring 3 bighas 5 dhurs from Shital Singh and Chunchun Singh by registered sale deed dated 18.06.1960 with defendant 1st party. Subsequently, there was partition between defendant 1st party and defendant 2nd party by registered partition deed dated 01.05.1962 and the plot no.499 was partitioned half and half. They applied for commutation of Bhawli rent of khesra no.499 into cash rent. Objection was raised by Laddu Lal and Satya Narain Prasad, sons of Girja Devi claiming to have purchased the same from heirs of Mungeri Sah. Therefore, to avoid future trouble, the defendant 1st party got executed a registered sale Patna High Court FA No.313 of 1979 dt.24 -07-2012 5/24 deed from Laddu Lal and Satya Narain Prasad in respect of the portion of plot no.499 which was in his possession and in which he had already acquired valid title by virtue of the registered sale deed dated 18.06.1960 executed by legal heirs of Janki Prasad Singh. This time he got the sale deed executed in the name of his mother-in-law, Smt. Genda Devi. He got the sale deed only to avoid dispute and complication in future. There is no such land on the spot as described in Schedule I of the plaint. The defendant denied to have dispossessed the plaintiff. (5) The defendant 2nd party filed separate contesting written statement. The contention of defendant 2nd party is in the same line. In addition to the same defence, the defendant 2nd party alleged that the defendant 1st party and the defendant 2nd party contested post of Mukhiya in 1962 and, therefore, there was enmity and, therefore, the defendant 1st party in collusion with Laddu Lal and Satya Narain Prasad got the collusive sale deed in the name of her mother-in-law, Genda Devi. He set up the plaintiff to claim over the partition of land in possession of defendant 2nd party. Laddu lal, Satya Narain Prasad or Girja Devi had no title or possession nor could they ever sell the property to anybody. (6) The other defendants although filed written statement but they did not contest. Patna High Court FA No.313 of 1979 dt.24 -07-2012 6/24 (7) On the basis of the aforesaid pleadings of the parties, the trial court framed the following issues: I. Whether the suit as framed is maintainable? II. Whether the plaintiff has got cause of action and right to sue? III. Whether the suit is barred by Limitation? IV. Whether the plaintiff has got title over the suit land? V. Whether the story of possession and dispossession as alleged by the plaintiff is true? VI. To what relief or reliefs the plaintiff is entitled to? (8) While deciding issue nos.4 and 5 jointly, the learned court below came to the conclusion that the story of surrender purported by plaintiff is neither supported by any legal evidence nor appears to be inconformity with legal provisions of law as such, plaintiff has not been able to prove the story of surrender vide paragraph 9. Laddu Lal was not in possession of the land as such, Girja Devi never came in possession of the land on the basis of sale deed, Exhibit 2 of the year 1934. Although, there is no sufficient evidence on the record that Chunchun Singh and Shital Singh were the legal heirs of Janki Prasad Singh but P.W.9 has admitted that they belonged to the family of Janki Prasad Singh. The sale deed executed by Laddu Lal and Satya Narayan Prasad in favour of plaintiff and defendant 1st party were never acted upon and they were only paper transactions. Thus, since the title and possession of the Patna High Court FA No.313 of 1979 dt.24 -07-2012 7/24 vendor of the plaintiff over the suit land has not been established so, the plaintiff did not acquire any title on the basis of sale deed executed by Laddu Lal and Satya Narain Prasad. Even if the vendor of the plaintiff had any title over the said plot, defendant 1st party acquired title over the suit land because the sale deed was executed in his favour earlier. If the plaintiff acquired any title on the basis of the sale deed executed in his favour by Laddu Lal and Satya Narain Prasad he got title over the land in the northern portion of plot no.499 but he has claimed the land from south in the plot in the plaint which is admittedly in possession of defendant 2nd party accordingly, dismissed the plaintiff’s suit. (9) The learned senior counsel, Mr. Dhrub Narain appearing on behalf of the appellant submitted that the learned trial court did not appreciate the case of the plaintiff in its right perspective and held the registered sale deed of the year 1934 as not acted upon on the basis of surmises and conjectures. The trial court also did not rely on the final decree passed in partition suit of the year 1910 on the oral evidence of the plaintiff P.W.18 who has stated that the surrender was made in the year 1930. The reasoning of the trial court that when surrender was made by the bataidar in 1930, how the said property was partitioned in the year 1910 cannot be accepted as valid reason for not relying the final decree of the Patna High Court FA No.313 of 1979 dt.24 -07-2012 8/24 partition suit particularly when the presumption of its validity and legality is in favour of the plaintiff. The learned trial court also wrongly discarded the rent receipts granted by Raj Bainaili on flimsy grounds by wrong appreciation of Section 22 of the Bihar Tenancy Act. According to the learned counsel, the case of the plaintiff that the property was partitioned in the year 1910 is not challenged by the defendants and the said partition is not dependent on surrender of the bataidar. The partition took place between the tenure holder and, therefore, the tenure holder in whose share the property fell in partition was only entitled to receive rent. This aspect of the matter was not considered by the trial court. (10) The learned counsel further submitted that the heirs of Janki Prasad Singh who sold the property in favour of defendant 1st party and defendant 2nd party in the year 1960 had no title at all because the court himself held that there is no evidence as to how they succeeded to the property of Janki Prasad Singh. Further, Janki Prasad Singh died issueless and he executed a registered “samarpannama” with respect to his entire property and dedicated the same to Sri 108 Sri Thakur Ramjanki Ji Maharaj which was produced by the plaintiff being Exhibit 6 but the trial court did not consider the same. Further, the defendant 1st party himself purchased the same very property from Laddu Lal and Satya Narain Patna High Court FA No.313 of 1979 dt.24 -07-2012 9/24 Prasad by registered sale deed in the year 1962 along with the plaintiff and thereby the defendant 1st party admitted the title of Satya Narain Prasad and Laddu Lal. In such circumstances, the defendants are estopped from challenging the title of Laddu Lal and Satya Narain Prasad as it is well settled principles of law that one person cannot be allowed to aprobate and reprobate. Had the defendant 1st party acquired title on the basis of the registered sale deed executed by Chunchun Singh and Shital Singh in the year 1960, there was no question of getting another sale deed from Laddu Lal and Satya Narain Prasad in the year 1962 with respect to the same very property but the learned court below did not consider all these aspects of the matter. The trial court also committed error of record by holding that the description of the property in the sale deed and the description of the boundary in the plaint do not tally because there was some mistake in the sale deed of the plaintiff while describing the boundary. Therefore, a correction deed was executed which has been produced by the plaintiff marked as Exhibit 5 and if the same is taken into account, there is no discrepancy in the boundary mentioned in the plaint and mentioned in the sale deed. On these grounds, the learned counsel submitted that the impugned judgment and decrees are liable to be set aside and the plaintiff’s suit be decreed. Patna High Court FA No.313 of 1979 dt.24 -07-2012 10/24 (11) At the time of hearing of this First Appeal, nobody appeared on behalf of the respondents. (12) In view of the above contentions of the appellant, the point arises for consideration in this appeal is as to “whether the plaintiff has been able to prove his title over the suit property and he is entitled for recovery of possession of the same” and “whether the impugned judgment and decrees are sustainable in the eye of law?” (13) As stated above, the plaintiff’s case in short is that originally Mungeri Sah was the tenure holder of the suit property. Janki Prasad Singh was bataidar. Janki Prasad Singh surrendered the suit property orally in favour of tenure holder, Mungeri Sah. Subsequently, on partition between the heirs of Mungeri Sah, the suit plot fell in the share of Pratap Chand Sah who sold the plot in the name of Girja Devi by registered sale deed dated 28.07.1934 for Rs.1300. The sons of Girja Devi namely Laddu Lal and Satya Narain Prasad sold the Schedule I property to the plaintiff and Schedule II property to the defendant 1st party. On the contrary, the defendant’s case is that Janki Prasad Singh never surrendered the suit land. He died issueless and his entire property was inherited by Shital Singh and Chunchun Singh being the Gotias and they sold the property to defendants in the year 1960 and there was partition between defendant 1st party and defendant 2nd party. Patna High Court FA No.313 of 1979 dt.24 -07-2012 11/24 (14) In support of their respective cases, the parties have adduced oral as well as documentary evidences. Let us consider the evidences of the parties. (15) P.W.1 is the original plaintiff. He has stated the same thing as pleaded in the plaint, therefore, it is not reiterated here. He has proved his sale deed as Exhibit 2. P.W.2, Shyam Sumran Prasad has proved Register II i.e., Jamabandi No.374 which is in the name of Girja Devi. He has stated that this jamabandi was with respect to 2 bighas 15 katthas 5 dhurs and the rent was Rs.6.94 and cess was 44 paise. Out of that jamabandi, 1 bigha 5 katthas was deducted and Jamabandi No.931 was opened in the name of Genda Devi. There is 1 bigha 10 katthas 5 dhurs is still there in the original jamabandi. He has proved the rent receipt, Exhibit 3 series. P.W.3 has proved rent receipt, Exhibit 3/F to 3/G. He has also proved Register D, Exhibit 4. (16) P.W.4 has stated that the orchard measuring 3 bighas was in possession of Bhagwan Das and after his death, his son came in possession who sold the property to Kishun Lal Sah(Kishun Lal is the husband of Girja Devi). Subsequently, the sons of Girja Devi namely Lakshmi Narayan sold 1 bigha 15 katthas to plaintiff and defendant no.1. Janki was never in possession of the property. P.W.5 has also stated the same thing as that of P.W.4. P.W.6 has Patna High Court FA No.313 of 1979 dt.24 -07-2012 12/24 proved Exhibit 2A, the sale deed which was executed in favour of the plaintiff. He has proved the correction deed as Exhibit 5. This witness is scribe of the sale deed. He has stated that defendant no.1, Om Bahadur Jha has signed as witness in this sale deed. He has proved Exhibit A/1, the sale deed in the name of defendant no.1. This witness has also proved passing of consideration. It may be mentioned here that plaintiff is also witness in the sale deed of defendant no.1. (17) P.W.7 has stated that he is the shivayat of Thakurbari established by Janki Prasad Singh. His father was bhagina of Janki Prasad Singh. In the year 1936, by registered deed of dedication, Janki Prasad Singh dedicated his entire property to Thakurbari. He has proved the said registered deed as Exhibit 6. He has further stated that till his lifetime, Janki Prasad Singh was shivayat. After his death, Nunu Prasad Choudhary became shivayat. After death of Nunu Prasad Choudhary, this witness became the shivayat. On the death of Janki Prasad, his entire property vested in the Thakurbari. P.W.8 has proved the rent receipt, Exhibit 7 to 7/O. P.W.9 has stated that prior to execution of sale deed in favour of the plaintiff, the suit property was in possession of Laddu Lal and it was never in possession of Kusheshwar Jha and Om Bahadur. Chunchun or Shital were also never in possession. P.W.10 has also stated about Patna High Court FA No.313 of 1979 dt.24 -07-2012 13/24 sell in favour of plaintiff and possession of plaintiff over the Schedule I property. P.W.11 and P.W.12 have also stated the same thing. P.W.13 and P.W.14 are formal witnesses. P.W.15 has proved “sudhbharna” which has been marked as Exhibit 8, Exhibit 8/A and Exhibit 8/B. P.W. 16 has proved the record of C.O. which has been marked as Exhibit 9. Likewise, P.W.17 has proved Exhibit 10 and Exhibit 11. P.W.18 is Laddu Lal Sah, son of Kishun Lal and Girja Devi. He has stated that after purchase, his father came in possession and his father was paying rent to Raj Bainaili. The purchase was made in the name of his mother. He has given the numbers of the trees i.e., Mango, Amrud etc. After partition, he got the suit property with his brother, Satya Narain Prasad. Janki Prasad Singh was never in possession. There was negotiation to purchase the land by the plaintiff and the defendant no.1. The negotiation was final and plaintiff purchased 1 bigha 15 katthas and 1 bigha 5 katthas was purchased by defendant no.1. The defendant no.1 purchased the land in the name of his mother-in-law, Genda Devi. Both the brothers signed on the sale deeds. There was some mistake in the boundary of the land of plaintiff and defendant no.1 in the sale deed. (18) From the above evidences of the plaintiffs, it appears that almost all the witnesses have supported the case of the plaintiffs regarding the title and possession on the basis of the sale Patna High Court FA No.313 of 1979 dt.24 -07-2012 14/24 deed executed by the sons of Girja Devi who in turn has purchased the same from heirs of Mungeri Sah. (19) Now let us consider the documentary evidences. Exhibit 2 is the registered sale deed dated 28.07.1934 executed by Pratap and his brothers, son of Bhagwan Das in favour of Smt. Girja Devi, wife of Kishun Lal Sah. This sale deed is of the year 1934. Exhibit 2A is the sale deed dated 18.08.1962 executed by sons of Girja Devi in favour of the plaintiff. Exhibit 3 series are the rent receipts. Exhibit 4 is the Register II. Exhibit 5 is the correction deed by which the boundary of the land of plaintiff’s sale deed was corrected. Exhibit 6 is the registered deed of “samarpannama” dated 02.03.1936. This Exhibit 6 has been filed by the plaintiff to show that Janki Prasad Singh had dedicated all his properties to Thakurbari as far back as in the year 1936. In such circumstances, there was no question of inheritance by his Gotias as claimed by Shital and Chunchun, the vendor of defendant 1st party and defendant 2nd party arises. From perusal of this Exhibit 6, it appears that Janki Prasad Singh has dedicated his entire properties to Thakurbari. He has stated that after his death, Babu Nunu Choudhary will be shivayat. After his death, his heirs will be the shivayat. At paragraph 12 of this “samarpannama”, Exhibit 6, he has clearly stated that even if there is any khas Gotia of Manmokir i.e. Gotia of the executant, they Patna High Court FA No.313 of 1979 dt.24 -07-2012 15/24 have no concern with the property of Janki Prasad Singh and they will have no right to claim over the dedicated property and if any claim is made that will be illegal and they will never be shivayat of the Thakurbari in any condition. (20) We have seen the case of the defendants that on the death of Janki Prasad Singh, the entire property was inherited by his Gotia, Shital Singh and Chunchun Singh. So far this fact is concerned, it is clearly falsified by this Exhibit 6 which is of the year 1936 and is a registered document. In such circumstances, even if there was no surrender by Janki Prasad Singh, the property will go to Thakurbari and not to his agnates. There is no satisfactory evidence as has been held by the trial court itself as to how Chunchun Singh and Shital Singh claimed themselves to be agnates of Janki Prasad Singh. It appears that the learned court below has not at all considered this aspect of the matter. If the property was of Janki Prasad Singh then it was dedicated to Thakurbari. If it was not his property then how Shital and Chunchun inherited the same. Further, the sale deed in the name of Girja Devi is of the year 1934. (21) In the case of Vimal Chand Ghevarchand Jain and ors. Vs. Ramakant Eknath Jadoo, (2009)5 SCC 713, the Apex Court has held that registered deed of sale carries presumption that the transaction was genuine one. As stated above here, in the present Patna High Court FA No.313 of 1979 dt.24 -07-2012 16/24 case, the only pleading is that Girja Devi never acquired title on the basis of this sale deed because the heirs of Mungeri Sah had no title. In other words, the defendants admitted the execution of the sale deed by heirs of Mungeri Sah. The rent receipts have been produced by the plaintiff, Exhibit 7 series to show that her name was mutated in the estate of Raj Bainaili and she was paying rent. These documents were produced to show her possession but the learned court below disbelieved the rent receipt holding that since after purchase she became the tenure holder and, therefore, there was no question of mutation and payment of rent arises. Here, it may be mentioned that after purchase she became a co-tenure holder, therefore, she was liable to pay rent in view of second para of Section 22 of the Bihar Tenancy Act. Moreover, these documents are very old documents and were granted when there was no dispute between the parties. In such view of the matter, even if the rent receipts are against the provision then also, the possession of Girja Devi cannot be denied. (22) The next