HONOURABLE MR. JUSTICE v. NATH ORAL JUDGMENT Date
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.517 of 1986 =========================================================== 1. Md.Fashiuddin, Son of Md Sharfuddin, Resident of Mohalla-White House, P.s.- Civil Lines, District-Gaya. 2. Shambhu Parveen, Daughter of Md Sattar Ansari and Wife of Md Fashiuddin, Resident of Mohalla-White House Compound, P.s.-Civil Lines, District-Gaya. 3. Shahida Parween, Wife of Sibte Hussain, Resident of Hathwa, P.S.-Hathwa, District-Gopalganj. 4. Zahida Nassin, Wife of Shasul Wadoor, Resident of Village-Hasanpura, P.S.- Siwan, District-Siwan. (Defendant nos. 1 to 3 and 3(b) in the lower court . Versus 1. Syed Afzal Hassan, husband of Bibi Obaida Khatoon, deceased and Son of Late Dr Syed Ahsanul Tauheed. 2. Nematunnisa, Wife of Khursheed Anwar and daughter of Afzal Hassan and Bibi .... .... Appellants. Obaida Khatoon, deceased. 3. Khalid Ahsan. 4. Farhatun Nisa. 5. Siddiqueen Nisa, Wife of Mr Md Jawed Akhtar.. Son and daughter of Syed Afzal Hassan and Bibi Obaida Khatoon, deceased and all Residents of Mohalla- Gawalbigha, P.S.-Civil Line Town, P.O.-Gaya and District-Gaya. -------------------------- Respondents. ========================================================= Appearance : For the Appellant/s : Mr. Keshav Srivastava, Sr.Adv. Md. Abu Shajar, Adv. Md.Abu Haidar, Adv. For the Respondent/s : Mr. Raghib Ahsan, Sr Adv. Mr. Abbas Haider, Adv. Mr. Atif Inam, Adv. Mr. Ranjay Kumar Singh, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 16-09-2013 V.Nath, J. This appeal has been filed by the defendants against the judgment and decree dated 25.06.1986 passed by Additional Sub Judge IV, Gaya in T.S.No. 01/1985/27/1981 decreeing the suit declaring the title of the plaintiff over the suit house and further declaring the sale deed in favour of the defendant nos.1 to 3/b for the Patna High Court FA No.517 of 1986 dt.16-09-2013 2 suit house as not binding upon the right, title and interest of the plaintiff in the suit house. 2. The suit has been filed by the plaintiff (now deceased. through L.R.) for declaration that the plaintiff is the owner of the suit house and the five sale deeds in the name of defendant no.1 to 3/b are void, ab initio, inoperative and not affecting the right, title and interest of the plaintiff over the suit house. It is not in dispute that the defendant no.4 is the husband of the plaintiff. It is also not in dispute that a registered deed of Bai Mukasha was executed by the defendant no.4 in favour of plaintiff on 11.10.1969 for the suit house for payment of the dower-debt. The plaintiff has claimed her title over the suit house on the basis of the deed of „Bai Mukasha‟ and has claimed that she has been coming in possession over the suit house as absolute owner and also residing in the same with her children. 3. It is the case of the plaintiff that her husband showed signs of mental decay in 1973 and had been treated in Kanke Mental Hospital, Ranchi also. It is her further case that taking undue advantage of the mental condition of her husband, one Akil Ahmad got a sale deed executed by him fraudulently with regard to the part of the suit house in his favour but the said deed remained inoperative and
Legal Reasoning
on the protest of the plaintiff, later on the purchaser Akil Ahmad executed a registered deed of relinquishment on 02.02.1976 accepting Patna High Court FA No.517 of 1986 dt.16-09-2013 3 the title of the plaintiff over the suit property on the basis of Bai Mukasha. It is further case of the plaintiff that the elder brother of the husband of the plaintiff had transferred some property to meet the expenses for the medical treatment of the husband of the plaintiff but the said transfer was challenged by the husband of the plaintiff by filing a suit wherein the plaintiff, as a witness, supported the transfer and deposed the truth about mental illness of her husband. It has been alleged by the plaintiff that her deposition in the suit had enraged her husband who informed her that he had executed sale deeds in respect of the suit house and thereafter on enquiry the plaintiff got knowledge of the sale deeds in favour of the defendants and the deed of cancellation of the Bai Mukasha executed by her husband. The plaintiff has alleged that defendant nos. 1 to 3(b) are related to each other and have conspired together to grab the property of the plaintiff and got the sale deeds in question executed by her husband (defendant no.4) by bringing him in collusion. The validity of the sale deeds for the suit house in favour of the defendant nos. 1 to 3(b) has been questioned on the ground of absence of title of the defendant no.4 over the suit house and the deeds being void, forged, fabricated and collusive documents. 4. The defendants appeared in the suit. The defendant nos. 4 has contested the suit by filing his separate written statement. The Patna High Court FA No.517 of 1986 dt.16-09-2013 4 defendant nos. 1 to 3 together, and defendant no. 3/b also filed their separate written statements respectively contesting the claim of the plaintiff. The common case of these defendants, in substance, is that dower-debt of the plaintiff was satisfied immediately after her marriage with the defendant no.4 and the deed of Bai Mukasha in favour of the plaintiff was executed by the defendant no.4 in order to protect the suit house from his elder brother Jamal Ahsan and as such the said transaction of Bai Mukasha was only showy, nominal and never become operative. It is their further case that the title over the suit house remained with the defendant no.4 and as such he was legally entitled to transfer the same in favour of the defendants who have acquired valid title on the basis of the sale deeds in question executed by the defendant no. 4 after cancelling the Bai Mukasha, which are all legally valid document. With regard to the payment of the dower-debt, the defendants have accepted the same to be Rs. 25,000/- and the defendant nos. 1 to 3 have stated in their written statement that the dower-debt was paid promptly before the consummation of marriage. However, the defendant no. 3/b in her written statement has come out with the case that the dower-debt was paid partly in cash and partly by execution of a deed of gift in favour of the plaintiff and handing over the registration receipt to her. The case of the defendant no.4 in this regard, in his written statement, Patna High Court FA No.517 of 1986 dt.16-09-2013 5 is that the dower-debt had been promptly paid to the plaintiff by his (defendant no. 4) elder brother Sayed Jamal Ahsan who was authorized to do so by the father of the defendant no.4. The defendant no. 1 to 3 (b) thus have claimed their title over the suit house on the basis of the five sale deeds executed in their favour by the defendant no.4. 5. In view of the rival pleadings of the parties, the trial court framed altogether 11 issues out of which issue nos. 4,5,7,8 and 9 were material issues and are as follows:- Issue No. 4. Whether deed of gift is a deed of Bai-Mukasha which is said to have been executed by Afzal Ahsan defendant no.4 in lieu of dower debt in favour of his wife(plaintiff)? Issue No.5. Whether deed of Bai-Mukasha(Ext.5) is a farzi and without consideration or a valid document? Issue No. 7. Whether deed of cancellation of Bai-Mukasha affect title of plaintiff over the suit property? Issue No. 8. Whether defendant nos.1 to 3/b have acquired valid title and possession over the suit property on the strength of the sale deeds(Ext.E Series) executed in their favour by defendant no.4? Issue No. 9. Whether plaintiff acquired valid title and possession over the suit property by virtue of deed of Bai- Mukasha? Patna High Court FA No.517 of 1986 dt.16-09-2013 6 6. After hearing the parties and scrutinizing the evidence adduced by them, the trial court has decided the issue no.4 in favour of the plaintiffs and held that the deed of gift dated 12.04.1963 executed by the defendant no.4 in favour of the plaintiff was not executed in lieu of the dower-debt. The issue nos.5 and 7 have also been decided in favour of the plaintiff and it has been held that the deed of Bai Mukasha (Ext.5) is not a farji document and the cancellation deed dated 16.11.1978 cannot affect the title of the plaintiffs over the suit house on the basis of Bai Mukasha. Sequentially the issue no.8 has been decided against the defendant and it has been held that the defendant nos. 1 to 3/b have not acquired valid right, title and possession over the suit house on the strength of the sale deeds (Ext.E Series) executed by the defendant no.4 in their favour. 7. Questioning the legal pregnability of the impugned
Legal Reasoning
judgment, Mr Keshav Srivastava, the learned senior counsel appearing for the appellants, has submitted that the learned court below has not taken into consideration the material evidence on record adduced on behalf of the defendants. It has been urged that the plaintiff herself has accepted the gift deed (Ext.A-1) in her favour to be in lieu of dower-debt before the ceiling authorities and the said statement must be taken to be the admission of the plaintiff of the said Patna High Court FA No.517 of 1986 dt.16-09-2013 7 fact. It has been pointed out that the contents of the order (Ext.1) passed in Land Ceiling Appeal No. 18/77-78 are self-evident in this regard recording the case of the plaintiff that she had received the land in gift from her husband in lieu of dower-debt. It has been also argued by the learned senior counsel that the fact that the gift deed (A- 1) was executed in favour of the plaintiff in lieu of dower-debt has also been corroborated by D.W.7 and 8 who have been examined on behalf of the defendant no.3/b. It has been pointed out that the learned court below has not considered the effect of Ext.I and has simply made a passing reference to the said document. The learned senior counsel has further submitted that the deed of Bai Mukasha deed dated 11.10.1969 was in fact a farji document executed by the defendant no.4 due to undue influence and coercion of his brother and therefore the said document cannot be legally accepted as a legally valid document conferring title of the suit house on the plaintiff. It has been thus proponed that under these facts the defendant no.4 was legally entitled to get the deed of Bai Mukasha nullified by executing a deed of cancellation on 16.11.1978 which should have been accepted as an effective document. The reliance has been placed for this proposition on the Full Bench decision in the case of Yanala Malleshwari Vs Smt Ananthula Sayamma, AIR 2007 Andhra Pradesh 57. It has, therefore, been submitted on behalf of Patna High Court FA No.517 of 1986 dt.16-09-2013 8 the appellants that once after the discharge of the liability to pay the dower-debt by defendant no.4 by executing the gift deed, and after cancelling the deed of Bai Mukasha (Ext.5), the defendant no.4 had valid title and possession over the suit house which he lawfully alienated in favour of the defendant nos.1 to 3/b by executing the three sale deeds in question. Criticizing the impugned judgment further, it has been canvassed that the learned court below has not considered the facts and circumstances of the case in correct perspective and therefore the same is vulnerable. 8. Mr Raghib Ahsan, the learned senior counsel for the plaintiff-respondent, on the other hand, has supported the impugned judgment and submitted that there is no error or illegality either on facts or in law in the same. It has been urged that there is absolutely no evidence to show that the gift deed dated 12.04.1963 executed in favour of the plaintiff was in fact a gift in lieu of the dower- debt and has pointed out that there is no such recital in the gift deed and there is no other corroborating evidence to support the said fact. It has been further submitted that there is no ambiguity in the recitals in the gift deed and therefore no other evidence is admissible to contradict the facts stated in the gift deed. It has also been argued by the learned senior counsel that the plaintiff in her deposition has clearly denied to have filed any petition before the ceiling authorities and no cogent Patna High Court FA No.517 of 1986 dt.16-09-2013 9 evidence has been adduced on behalf of the defendant no.4 to establish the said fact. Elaborating his submissions the learned senior counsel has pointed out that the documents said to have been filed by the plaintiff before the Land Reforms Deputy Collector are clearly original copies and not the certified copies, and in particular the attention has been drawn to the Vaklatnama (Ext.C). It has been submitted that the said Vaklatnama does not bear any case number and even if the said Vaklatnama would have been actually filed by the plaintiff before the before the Land Reforms Deputy Collector, the original of the said Vaklatnama could not be with the defendants who could have got only the certified copy of the same from the office of the Land Reforms Deputy Collector. It has been further argued that the order passed by the Collector (Ext.I) also does not support the contention of the defendants inasmuch as when it could not be established that any objection was filed by the plaintiff before the Land Reforms Deputy Collector, there was no scope for filing the appeal by the plaintiff. It has also been submitted that in any view of the matter when the plaintiff denied to have filed any such petition or Vaklatnama or appeal, it was incumbent upon the defendants to establish their assertion by getting the signature of the plaintiff examined by an expert or to lead other corroborative evidence. 9. In reply to the submission with regard to the validity of Patna High Court FA No.517 of 1986 dt.16-09-2013 10 the cancellation deed dated 16.11.1978 by the defendant no.4, it has been submitted on behalf of the plaintiff-respondent that a cancellation deed is not recognized in law and cannot be accepted to be a valid document taking away the legal effect of an earlier registered document of transfer of immovable properties. It has been urged that the defendant no.4, if he intended to avoid the registered deed of Bai Mukasha deed dated 11.10.1969 (Ext.5), was required in law to file a suit with appropriate relief in this regard within the prescribed period of limitation. The learned senior counsel has placed reliance on the decision by the Apex Court in the case of Thota Ganga Laxmi Vs Government of Andhra Pradesh, 2010(15) SCC 207. 10. In view of the rivalised contentions the following points emerge for determination in this appeal:- (I) Whether the gift deed dated 12.04.1963 executed in favour of the plaintiff by the defendant no.4 was in lieu of the dower debt and was not a gift simpliciter? (II) Whether the cancellation deed dated 16. 11.1978 can nullify the legal effect of the earlier registered deed of Bai Mukasha dated 11.10.1969. 11. For convenience, both the points are taken up together for Patna High Court FA No.517 of 1986 dt.16-09-2013 11 determination. 12. It is not in dispute that the plaintiff and defendant no.4 are related as wife and husband. It is also not in dispute that a gift deed dated 12.04.1963 had been executed by the defendant no.4 in favour of the plaintiff for about 29 acres of agricultural land. It is also not in dispute that the deed of registered deed of Bai Mukasha dated 11.10.1969 has also been executed by the defendant no.4 in favour of the plaintiff with regard to the suit house. However, the perceptible notes of discord between the parties is the real nature of the gift deed which the plaintiff has asserted to be a transaction of gift simpliciter but the contesting defendants have claimed the same to have been executed in lieu of dower-debt in favour of the plaintiff by her husband (defendant no.4). The parties are further at difference on the legal effect of the cancellation deed dated 16.11.1978 inasmuch as the plaintiff has claimed the same to have been no effect on her title whereas the contesting defendants have asserted that the cancellation deed was a legally valid and operative document nullifying the legal effect of the registered deed of Bai Mukasha dated 11.10.1969. The parties have adduced oral and documentary evidence in support of their respective pleadings. At this juncture, it would be relevant to mention that the defendant no.4 has executed five sale deeds (Ext.E Series) transferring the entire suit house to the five defendants Patna High Court FA No.517 of 1986 dt.16-09-2013 12 [defendant nos. 1 to 3 (b)] who are closely related to each other inasmuch as the defendant nos.1 and 3(b) are husband and wife and the defendant no.3 (a) is their son and the defendant no.2 and 3 are sisters of the defendant no.1. 13. Before adverting to the evidence of the parties, it would be pertinent to examine the pleadings of the defendants with regard to the payment of the dower-debt to the plaintiff. The defendant nos. 1 to 3 in their written statement have stated that the entire amount of dower- debt of Rs.25,000/- was promptly paid before the consummation of the marriage and no amount was left to be later paid on demand. The case of the defendant no.4 in this regard is that the father of the plaintiff was in strained circumstance and short of sufficient funds, and the dower-debt of Rs.25,000/- was promptly paid at the time of performance of the marriage ceremony by Jamal Ahsan(brother of the defendant no.4) as authorized by the father of the defendant no.4. However, the case of the defendant no.3(b), who is wife of the defendant no.1 with regard to the manner of payment of dower-debt is entirely different as she has come out with the case that the entire dower-debt was promptly paid partly in cash and partly by way of gift of 29.19 acres of land of village-Kelwar and Rupaspur through registered gift deed dated 12.04.1963. Remarkably there is no mention of gift in lieu of dower-debt in the written statement of the defendant Patna High Court FA No.517 of 1986 dt.16-09-2013 13 no.1 who is husband of the defendant no.3(b) and also in the written statement of the defendant no.4 who has admittedly executed the said gift deed. This aspect assumes significance as this defendant no.3(b) appeared and filed her written statement in the suit after the plaintiff had opened her evidence, and further also when in her deposition in the suit she has stated that she acquired knowledge of the relevant facts of the suit from her husband and her father. 14. In the precincts of these pleadings, the evidence is now to be examined. The gift deed dated 12.04.1963 has been adduced in evidence on behalf of the contesting defendants and marked as Ext. A-I with a translated copy in Hindi of the said document also on the record. From the recitals in the gift deed (Ext.A-1) it transpires that there is a statement in paragraph 1 that the land subject matter of the gift is in excess of the ceiling area. It has further been recited that the gift has been made by the donor-husband in favour of his wife out of love and affection for her. There is absolutely nothing in the recitals to lead to the inference that the gift deed has been executed in lieu of dower-debt. Moreover the dower-debt between the plaintiff and the defendant no.4 was admittedly Rs.25, 000/- but the valuation of the gifted property has been mentioned in the deed as only Rs.3000/-. The defendant no.3(b) who has come out with the case of payment of dower-debt partly in cash and partly by gift has also not disclosed as Patna High Court FA No.517 of 1986 dt.16-09-2013 14 to how much amount was paid in cash. The D.Ws.7 and 8, examined on behalf of the defendant no.3(b), have also not said a word regarding the payment of the dower-debt by way of cash also. As such there appears to be substance in the submission on behalf of the plaintiff, taken into notice by the learned court below also, that the gift deed was executed to save the property from the land ceiling in view of the exemption of one year as granted by the provision of Section 5(5) of the Bihar Act 18 of 1962, and not by way of payment of dower-debt to the plaintiff. 15. Much reliance has been placed on behalf of the contesting defendants on the order dated 05.05.1980/ 15.06.1980 (Ext-I) passed in Land Ceiling Appeal No. 18/77-78 by the Collector, in support of the assertion that the gift has been made in lieu of dower-debt. It appears from the perusal of the order (Ext.I) that it has been passed in an appeal purportedly filed by the plaintiff Zubaida Khatoon. It further transpires that the said appeal was filed against the order passed by the Land Reforms Deputy Collector against Bibi Zubaida Khatoon and Bibi Jaha Ara in land ceiling proceeding but the number of the case or the date of the order impugned in the appeal has not been mentioned. It has been, though, stated in the order that the applicants had claimed that they had received the lands in their names from their husband by way of gift in lieu of dower-debt and they lived Patna High Court FA No.517 of 1986 dt.16-09-2013 15 separately from their husbands but there is no description of the land which had been said to have been received by the applicants in gift from their husbands and the order (Ext. 1) appears to have been passed only in general terms. On behalf of the contesting defendants, this order passed in appeal has been sought to be substantiated by linking the same with the petition said to have been filed before the Land Reforms Deputy Collector by the plaintiff as well as the Vaklatnama filed by her alongwith the petition which have been brought on record as Ext. D & Ext. C respectively. It would be relevant to mention here that the filing of any petition before the Land Reforms Deputy Collector or appeal thereafter in ceiling proceeding has been specifically denied by the plaintiff and the genuineness of these documents have been strongly questioned. 16. From the perusal of the documents (Ext.C and Ext.D) it becomes apparent that they are the original copies and not the certified copies of the Vaklatnama and the petition said to have been filed by the plaintiff. There is no explanation on behalf of the contesting defendants as to how the original copies of the Vaklatnama (Ext.C) and the petition (Ext.D) have been produced by them when it is their case that the same were filed before the Land Reforms Deputy Collector by the plaintiff as in such a case, the certified copies of those documents only could have been obtained. This fact alone Patna High Court FA No.517 of 1986 dt.16-09-2013 16 shows that the petition or the Vakalatnama had never been filed as claimed by the defendants. Once the filing of the original petition has not been proved, the filing of the appeal thereafter also cannot be accepted. Moreover the petition (Ext.D) or the Vakalatnama (Ext.C) also does not bear any case number and the order (Ext.1) does not bear the description of the court or authority by which it has been passed. There is no corroborative evidence on behalf of the contesting defendants, in view of the complete denial by the plaintiff, to show that these documents bear the signature of the plaintiff nor there was any prayer by them in the court below to call for the original records in order to establish that the petition and after its rejection the appeal were, in fact, filed by the plaintiff. These facts and circumstances pronouncedly make the documents (Ext.C, D and I) suspicious and not worth reliance. The plaintiff has also categorically denied in paragraph 38 of her deposition regarding filing of any petition in the ceiling proceeding. As such the facts mentioned in the order (Ext.-I) cannot be accepted as admission made by the plaintiff of the fact that the gift deed (Ext.A-1) had been executed in lieu of dower debt. This fact situation when considered alongwith the inconsistent cases of the defendant nos. 1 to 3, defendant no. 3/b and the defendant no.4 regarding payment of dower debt to the plaintiff, leads to the irresistible conclusion that the gift deed (Ext.A-1) for the land Patna High Court FA No.517 of 1986 dt.16-09-2013 17 mentioned therein was not executed by the defendant no.4 in favour of the plaintiff in lieu of the dower-debt. 17. The depositions of the D.W.7 and 8, examined on behalf of the defendant no.3 (b), and relied heavily on behalf of the defendant-appellants, also do not support the case of the gift in lieu of dower-debt as pleaded by the defendant no.3 (b). The D.W.7 has stated in paragraph 3 of his deposition that “ has been made by D.W.8 in paragraph 3 of his deposition that “ ” The similar statement ” These witnesses have not spoken a word about the payment of dower-debt in cash also and their depositions show that the dower- debt was paid only by way of the gift of land. The statements made by these witnesses are against the pleading of the defendant no.3 (b) that dower-debt was partly paid by gift and partly in cash. It cannot be lost sight of that the defendant no.4, who has executed the gift deed (Ext.A-1), has not claimed the same to have been executed in lieu of dower-debt and even in the year 1969, when there was no dispute between the parties, the deed of Bai Mukasha (Ext.5) was Patna High Court FA No.517 of 1986 dt.16-09-2013 18 admittedly executed by the defendant no.4 and in that deed also he did not mention the execution of this gift deed rather has stated that the Bai Mukasha was being executed for the part payment (Rs.15,000/-) of the dower-debt to the plaintiff. Although the defendant no.3 (b) has alleged in the written statement that the plaintiff and the defendant no.4 are in collusion in order to defraud the purchasers but she has not supported this allegation in her deposition. There is also no evidence to sustain this allegation rather the deposing defendant no.1 (husband of defendant no.3 (b)) in paragraph 19 of his deposition has stated that the defendant no.4 had never betrayed him. The cumulative effect of these considerations leaves no cavil or doubt that the gift deed (Ext.A- 1) in favour of the plaintiff was not executed in lieu of dower-debt and was a different independent transaction altogether. The learned court below has meticulously scrutinized the evidence of the parties and thereafter has reached to the correct conclusion that the gift deed dated 12.04.1963 cannot be accepted to be Hibba-bil-ewaj or a gift in lieu of Dower debt. 18. The execution of the deed of „Bai Mukasha‟ dated 11.10.1969 is also an admitted fact. However it is the case of the defendants that this document was only a farzi and nominal transaction and never meant to be acted upon and therefore the defendant no.4 was legally entitled to execute the cancellation deed on Patna High Court FA No.517 of 1986 dt.16-09-2013 19 16.11.1978 for taking away the legal effect of the said deed. The deed of Bai Mukasha (Ext.5) is a registered document and its execution has also been admitted by the defendant no.4 who has, however, dubbed it as fictitious and nominal transaction not intended to be acted upon. But the presumption of validity is attached to this document and the defendant no.4 was required in law to avoid its legal effect by filing a suit seeking necessary declaration regarding its invalidity within the period prescribed by Article 58 of the Limitation Act. The execution of the cancellation deed by the defendant no.4 itself shows that he was aware of the fact of this Bai Mukashs to be an obstacle in his title over the suit house. Instead of filing a suit within the prescribed period of limitation with necessary reliefs before a competent court, the defendant no.4 has proceeded only to execute the cancellation deed (Ext.G). The unilateral act of the defendant no.4 in executing the cancellation deed to nullify the registered Bai Mukasha deed (Ext.5) cannot be countenanced as even the assertions of the defendants in this regard do not make this deed void ab initio rather the requirement in law to avoid it becomes more emphasized. The principle in this regard has also been recognized by the Apex Court in the case of Thota Ganga Laxmi Vs Government of Andhra Pradesh, 2010(15)SCC 207 where their Lordships have held that the cancellation deed cannot have the effect of taking away the validity Patna High Court FA No.517 of 1986 dt.16-09-2013 20 and the legal effect of a duly executed and registered document. The Full Bench judgment of the Andhra Pradesh High Court in Yanala Malleshwari Vs Smt Ananthula Sayamma AIR 2007 Andhra Pradesh 57, relied upon on behalf of the appellants, has, thus, stood overruled on this point in the said decision. 19. It is not the case of the contesting defendants that the said document has ever been challenged before the competent court by the defendant no.4. This fact suggests the acceptance by the defendant no.4 of the possession of the plaintiff over the suit house on the basis of the Bai Mukasha (Ext.5). The deposing defendant no.1 has also accepted the possession of the plaintiff over the suit house in his deposition in paragraph 32 that he saw the plaintiff and her husband living in the suit house one week prior to his deposition. The mutation of the name of the plaintiff over the suit house in the Jamabandi (Register 2) is also established by the rent receipts (Ext.6 Series), and in the Municipal records by the rent receipts (Ext1 Series). The plaintiff has been dealing with suit house is also evident by Ext.2, 7, 7/A and 8 which are the correspondences with Magadh Medical College, Gaya relating to the lease of the suit house. There is no evidence that the defendant no.4 ever raised any objection against the right exercised by the plaintiff over the suit house as owner. Instead he has accepted the possession of the plaintiff over the suit Patna High Court FA No.517 of 1986 dt.16-09-2013 21 house on the basis of Bai Mukasha(Ext.5) when he has stated in Ext.E/3 (the sale deed in question in favour of the defendant no. 3 Zahida Nasreen) that he regained possession over the suit house after the cancellation of the deed of Bai Mukasha. The learned court below has carefully scrutinized the evidence in this regard and has rightly found the plaintiff to be in possession of the suit house. 20. The defendant no.4 though has contested the suit but did not choose to examine himself in the suit. As such there is no legal impediment in drawing adverse inference against him and to hold that the defendant no.4 is not in possession of the suit house which is in possession of the plaintiff on the basis of the Bai Mukasha (Ext.5). By necessary corollary, the right of the defendant no.4 in the suit house has also stood extinguished after the expiry of the period of limitation, in view of the provision of Section 27 of the Limitation Act. These facts and discussions leave no scintilla of doubt that the defendant no.4 after the execution of the Bai Mukasha (Ext.5) was left with no right, title or interest over the suit house to transfer the same in favour of the defendant nos. 1 to 3(b) by the sale deeds (Ext. E Series) in question. I therefore find no illegality in the conclusion by the learned court below that the defendant nos.1 to 3(b) have acquired no right, title and interest in the suit house on the basis of the sale deeds (Ext.E Series). Patna High Court FA No.517 of 1986 dt.16-09-2013 22 21. It has been submitted, in last, on behalf of the appellants that the plaintiff-respondent died during the pendency of this appeal and the defendant no.4 has succeeded to her estate alongwith her other heirs and therefore the sale deeds (Ext.E Series) executed by him now cannot be said to have been executed by a person having no title. This submission, in the facts of the case, is clearly misconceived. It is well established principle that suit must be decided/tried in all its stages on the cause of action as it existed on the date of its commencement and subsequent event can be taken into notice only when the original relief due to the said event has become inappropriate or when it has become necessary to do so to shorten litigation or to do complete justice. It is also admitted fact that the defendant no.4 is not the only heir of the deceased plaintiff-respondent, and therefore he cannot be said to have become alone entitled to the entire suit house which he had transferred by five sale deeds (Ext.E Series) to the defendant nos. 1 to 3(B). In this view of the matter, there is no scope for accepting this submission on behalf of the appellants. 22. In result this appeal, being sans merit, is accordingly dismissed and the impugned judgment and decree passed by the
Decision
learned court below is upheld. There shall be no order as to costs. Nitesh/- (V. Nath, J)