Baunu Yadav v. Ganeshi Mehta & Ors.

appeal and confirmed the judgment and decree of the trial court dated 15.1.2008, passed by the learned Munsif, Madhepura in Title Suit No. 343 of 2003.

The plaintiff-appellant filed the aforesaid suit for declaration of title and further for declaration that revisional survey entry in the name of the defendants is null and void.

The plaintiff prayed for the aforesaid relief alleging that father of the plaintiff, namely, Awadh Yadav 2 Patna High Court SA No.499 of 2011 (7) dt.28-06-2013 acquired the land through settlement in the year 1946 from the ex- landlord Babu Bachchalal Yadav, Babu Anuplal Yadav and Babu Raghunandan Prasad Yadav. Jamabandi was opened and he was paying rent to the ex-landlord. The area of disputed Plot No. 403 is 18 decimals and area of Plot No. 404 is 21 decimals under C.S. Khata No. 33/2 which was recorded in the name of the father of the plaintiff. Due to Koshi flood, the father of the plaintiff surrendered the land orally to the ex-landlord. Subsequently, after receiving due consideration, again the lands were obtained in settlement and since then the plaintiff is coming in possession. However, in the revisional survey the same has been recorded wrongly in the name of the defendants.

The defendants-respondents’ case is that C.S. Khata No. 33/2 was recorded in the name of Awadh Mandal, Maheshwari Mandal both sons of Hiyalal Mandal and Asharfi Mandal, Son of Lali Mandal was shown in possession in the remark column of disputed Plot No. 403. Awadh Mandal and Maheshwari Mandal were shown in possession in remark column of C.S. Plot No. 404. Maheshwari Mandal died issueless. Asharfi Mandal sold 4 Katha 9 Dhur land of Plot No. 403 by registered sale deed in favour of the defendants on 11.10.1946 and since then the defendants are coming in possession of the property and the 3 Patna High Court SA No.499 of 2011 (7) dt.28-06-2013 entry has rightly been made in the revisional survey record of right.

The trial court after considering the materials available on record recorded a finding that the defendants have been able to prove their title on the basis of the registered sale deed executed by Asharfi Mandal in their favour. The plaintiff has not challenged the said sale deed, therefore, is also barred by law of limitation. Accordingly, the suit was dismissed. The plaintiff filed the title appeal before the lower appellate court. The lower appellate court recorded the same finding that the plaintiff has to prove his title and thereby dismissed the title appeal.

Mr. Braj Kishore Singh Chouhan submitted that the lower appellate court while considering the case of the parties has not discussed the evidences properly and no reason has been assigned for rejecting the case of the defendants. The learned counsel further submitted that return was filed by the ex-landlord in the name of the father of the plaintiff but the courts below have not considered the effect of the said return and that the finding of possession is also wrong.

From perusal of the judgment of both the courts below, it appears that both the courts below have considered all the evidences oral and documentary, the registered sale deed 4 Patna High Court SA No.499 of 2011 (7) dt.28-06-2013 executed by Asharfi Mandal in favour of the defendants- respondents in the year 1946 and recorded the finding that the plaintiff has to prove his title and possession. So far the finding on the question of possession is concerned, it is pure finding on fact. Admittedly the defendants have purchased the property from Asharfi Mandal who is recorded along with ancestor of the plaintiff. It is also an admitted fact that in the remark column of the said cadastral survey, the possession of Asharfi Mandal was recorded and the sale deed has been executed by Asharfi Mandal in the year 1946. This sale deed carries presumption that the transaction was a genuine one. If execution of sale deed is proved, onus is on the plaintiff to prove that the deed was not executed and it was a sham transaction. Here from perusal of the lower appellate court judgment, it appears that argument was advanced before the lower appellate court that this sale deed was never acted upon and is a void sale deed. However, it may be mentioned that the suit has been filed in the year 2003.

In the case of Md. Noorul Hoda Vs. Bibi Rafiunnisa & Ors. [(1996) 7 SCC 767], the Hon’ble Supreme Court has held that

when the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle 5 Patna High Court SA No.499 of 2011 (7) dt.28-06-2013 in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded

. As stated above, the plaintiff never challenged this sale deed which is of the year 1946.

In the case of Sita Sharan Prasad Vs. Manorma Devi [2012 (2) BLJ 165], this Court relying on the decision of the Hon’ble Supreme Court in the case of Abdul Rahim Vs. Abdul Zabar [A.I.R. 2010 SC 211] held that “a suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act”.

In view of the above facts, in the present case, since the sale deed is in favour of the defendants which is of the year 1946 was never challenged, therefore, in this title suit filed by the plaintiff which is of the year 2003, no relief can be granted to the plaintiff with respect to the said sale deed of the year 1946. It is settled law that possession always follows title. The registered document is in favour of the defendants. In such circumstances, it was for the plaintiff to have proved his title and possession both. In my opinion, unless the sale deed executed by Asharfi Mandal is set aside which is in favour of the defendants, the plaintiff is not entitled for the relief claimed merely on the ground that the father 6 Patna High Court SA No.499 of 2011 (7) dt.28-06-2013 of the plaintiff had obtained the settlement orally. It may be mentioned that no document of settlement has been produced. Only the alleged rent receipts have been produced. No return has been produced by the defendants. Moreover, in view of the registered sale deed of the defendants, on the basis of pleading only that the father of the plaintiff obtained the settlement, no relief can be granted to the plaintiff and the lower appellate court recorded the finding that the plaintiff failed to prove his title and possession. In my opinion, therefore, the grounds raised by the learned counsel for the appellant is not at all substantial question of law involved in this appeal, therefore, this second appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J.) Sanjay/-