=================================================== Shaukat Ali & Ors v. Sk.Keyamuddin & Ors
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.259 of 1998 Against the Judgment and Decree dated 19th February, 1998 passed by learned 2nd Addl. District Judge, Gopalganj in Title Appeal No.35 of 1973 whereby the learned lower appellate Court reversed the Judgment of the trial Court dated 23.12.1972 passed by the learned Ist Addl. Munsif, Gopalgaj in Title Suit No.52 of 1961. =================================================== Shaukat Ali & Ors ........Defendants-respondents-Appellant/s Versus Sk.Keyamuddin & Ors .........Plaintiffs-appellants-Respondent/s ==================================================== Appearance : For the Appellant/s : Mr. Ragib Ahsan, Advocate Mr. Aatif Inam, Advocate with him. For the Respondent/s : Mr. Farooque Ahmad, Advocate Mr. Md.Sufiyan ==================================================== Dated : 28thday of November, 2013 P R E S E N T CORAM : THE HON’BLE MR. JUSTICE MUNGESHWAR SAHOO O R A L J U D G M E N T 1.
Legal Reasoning
The defendants have filed this Second Appeal against the Judgment and Decree of the lower appellate Court dated 19.02.1998 passed by the 2nd Addl. District Judge, Gopalganj in Title Appeal No.35 of 1973 whereby the learned lower appellate Court allowed the appeal and thereby reversed the Judgment and Decree of the trial Court dated 23.12.1972 passed by the learned Ist Addl. Munsif, Gopalganj in Title Suit No.52 of 1961. 2. The plaintiffs-respondents filed the aforesaid suit for declaration of title and confirmation of possession and in the alternative for recovery of possession over the suit property measuring 1 bigha 16 dhur. 2 Patna High Court SA No.259 of 1998 dt.28-11-2013 2 / 6 3. According to the plaintiff, the property belonged to Latif who died leaving behind his widow Hafizan and a sister Kupari. On the death of Latif, his widow and sister sold the property by registered sale deed dated 31.05.1932 in favour of Sk. Eqbal Hussain who sold the property by registered sale deed dated 5.3.1935 to Bikau. The plaintiffs are the sons of that Bikau. However, one Sk. Amir Hussain obtained money decree against Samsuddin, nephew of Latif and in execution of the money decree, the entire suit property was auction sold, therefore, the plaintiff filed the suit for the aforesaid relief. 4. The defendants appeared and contested the suit. According to the defendant in fact Latif died leaving behind Hafizan, the widow and his sister Kupari and also his uncle Jhakkar, therefore, on his death 8 anas share devolved of his sister and 4 ana share devolved on widow Hafizan and 4 ana share devolved on uncle Jhakkar and Samsuddin is the son of Jhakkar. Because Latif had no issue, he had gifted the suit property to Samsuddin and delivered possession to him. The money decree was executed in execution case and the delivery of possession was affected through the Court in the year 1955 in favour of the defendant appellant and since then appellants are in possession of the property. 5. The trial Court dismissed the plaintiff’s suit recording a finding that the plaintiff failed to prove that the sale deed executed by Hafizan and Kupari in favour of Sk. Equbal and the sale deed executed by Sk. Equbal in favour of Bikau are for consideration and the sale deed was acted upon. The trial Court also recorded that the suit is barred by law of limitation. On appeal, the lower appellate Court reversed the Judgment of the trial Court recording a finding that the plaintiffs were in possession of the property, therefore, plaintiffs acquired title by adverse possession with respect to the share of 3 Patna High Court SA No.259 of 1998 dt.28-11-2013 3 / 6 Samsuddin also. The lower appellate Court also recorded the finding that the defendants failed to prove their possession over the suit property. 6. At the time of admission on 04.01.1999, the following 3 substantial questions of law were formulated : (i) Whether the lower appellate Court erred in reversing the judgment and Decree passed by the trial Court without meeting the reasonings which weighed with it in dismissing the suit? (ii) Whether the lower appellate erred in granting a decree for recovery of possession of the suit land ignoring the specific case of the plaintiffs that they were in possession of the suit land and without recording a contrary finding that the plaintiffs were dispossessed by the defendants no decree for recovery of possession could have been granted? (iii) Whether the lower appellate Court erred in decreeing the suit in respect of the entire suit lands although the plaintiffs are transferee from a co-owner, who had admittedly 12 anas share? 7. The learned senior counsel appearing on behalf of the appellant submitted that while reversing the Judgment of the trial Court, the lower appellate Court has not at all considered the reasonings of the trial Court and that the lower appellate Court at one place recorded the finding that the plaintiffs have acquired title by adverse possession and at the same time decree has been passed for recovery of possession of the suit property. According to the learned counsel, there is no relief claimed by the plaintiff for declaration of title on the basis of adverse possession with respect to the share of Samsuddin but the lower appellate Court by making third case presumed that the plaintiffs are in possession for more than 12 year and therefore, decreed the plaintiff’s suit which is contrary to law. So far the
Legal Reasoning
third substantial question of law is concerned, the learned counsel submitted that the lower appellate Court itself found that 4 ana share devolved on Samsuddin. The plaintiffs ancestor have purchased the property from the 4 Patna High Court SA No.259 of 1998 dt.28-11-2013 4 / 6 co-sharer of Samsuddin, i.e., the widow and sister of Latif who admittedly only12 ana share in the property. In such view of the matter, the lower appellate Court could not have decreed the plaintiff’s suit for 16 ana share ignoring the share of Samsuddin. The learned counsel further submitted that the plaintiff never prayed for setting aside the auction sale in execution case pursuant to the money decree passed against Samsuddin. The trial Court categorically recorded that the delivery of possession was affected in favour of the defendant pursuant to the money decree in execution case. Now, therefore, unless the plaintiffs proves the title with respect to the share of Samsuddin, no recovery of possession could have been granted by the lower appellate Court. On these grounds, the learned counsel submitted that the substantial question of law formulated be answered in favour of the appellant and the plaintiff’s suit be dismissed. 8. On the other hand, the learned counsel appearing on behalf of the respondent submitted that the sale deed is of the year 1932 in favour of Equbal Hussain and the sale deed in favour of Bikau is of the year 1935 which are ext.1/A and ext.1 respectively. According to the learned counsel, since the sale deeds are registered, the trial Court has wrongly held that the plaintiffs failed to prove passing of consideration. It is settled principle of law that the sale deed if proved according to law then the onus is on the other side to show that the sale deed is sham transaction or void transaction. In this case although the widow and the sister of Latif had no right to sale 16 ana share but they sold 16 ana share including 4 ana share of Samsuddin. Therefore, there will be presumption that 4 ana share of Samsuddin also came in possession of the plaintiff, therefore, the learned lower appellate Court has rightly drawn inference that the plaintiffs have acquired title by adverse possession. 5 Patna High Court SA No.259 of 1998 dt.28-11-2013 5 / 6 9. From perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court categorically recorded the finding that on the death of Latif, 8 ana will go to his sister Kupari and 4 ana will go to his widow and 4 ana will go to Samsuddin who was alive at the time of death of Latif. It may be mentioned here that the plaintiff never claimed that although Samsuudn had 4 ana share but he was ousted from the possession or that the plaintiff prescribed title over the share of Samsudin by adverse possession. It may be mentioned here that there is no such pleading or evidence adduced on behalf of the plaintiff. The only dispute between the parties raised before the Court below is that according to the plaintiff, the entire suit property was sold by widow and sister and according to the defendant, Latif had gifted the property to Samsuddun and in auction sale the property was sold in favour of the appellant. It is admitted case of the parties that Latif was the owner of the property. It is also admitted and in fact the finding was also recorded by the lower appellate Court that on the death of Latif, Samsuddin got 4 ana share in the suit property. In such view of the matter, the widow and the sister could not have sold the share of Samuddin in favour of Sk. Equbal Hussain. This aspect of the matter has not been considered by the lower appellate Court and only held that because the plaintiff came in possession of the said property, he has acquired title by adverse possession. It is settled principle of law that the Court cannot make a third case. The Court is required to decide the case of the parties on the basis of case pleaded and evidence adduced vide 2008 (17) S.C.C. 491. In the present case from perusal of the lower appellate Court Judgment, I find that the lower appellate Court has decided this question of adverse possession when there was no such pleading and case of the plaintiff. It is admitted fact that Kupari and Hafizan had only 12 ana share, therefore, the 6 Patna High Court SA No.259 of 1998 dt.28-11-2013 6 / 6 sale deed in favour of Equbal Hussain of the year 1932 in excess of share will be void and no title will pass on Equbal Hussain with respect to 4 ana share of Samsuddin and likewise Equbal could not have conferred title more than 12 ana share and widow and daughter of Latif in favour of Bikau. 10. So far the case of the defendant is that the entire property was auction sold in the execution case. We have found above that the widow and sister had 12 ana share. The lower appellate Court recorded the finding that oral gift pleaded by the defendant, i.e., Latif had gifted the suit property orally in favour of Samsuddin is not correct. In such circumstance, the property belonging to Hafijan and Kupri could not have been auction sold in execution of the money decree in execution case of the year 1955. In other words, it can be said that the 12 ana share of the widow and sister of Latif was out of the purview of the auction sale in execution case, therefore, the auction purchaser could not derive title to that extent. He derived title only to the share of Samsudin, i.e., 4 ana. 11. All these aspects of the matter have not been considered by the lower appellate Court and therefore, the substantial question of law formulated at the time of admission are answered in favour of the appellant and accordingly this Second Appeal is allowed in part and the Judgment and Decree of the lower appellate Court is modified to the extent that the plaintiff’s suit is decreed in part to the extent of 12 ana share only. The defendant will get 4 ana share. No order as to cost. (Mungeshwar Sahoo, J.) Sanjeev/-