Sheopujan Sah v. Samsuddin Mian

P.O.-Koiladewa, P.S.-Mirganj, District-Gopalganj. ----------Defendant-Respondent/Respondent 2nd set. ====================================================== Appearance : For the Appellant/s : Mr. Jitendra Kumar Srivastava ,Adv. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 6 07-03-2013 Heard Mr. Jitendra Kumar Srivastava, the learned counsel 2 Patna High Court SA No.270 of 2011 (6) dt.07-03-2013 appearing on behalf of the appellants. The defendant 1st set is the appellant in this appeal against the judgment and decree of reversal. The plaintiff has filed the suit for declaration of his title and confirmation of possession over the suit land. The plaintiff claimed to have purchased the suit land through sale deed dated 27.04.1945 executed in his favour by Noor Mohammad and Abdul Mian. It is the case of the plaintiff that the said property originally belonged to Lagan Mian who had two sons Noor Mohammad Mian and Ramjan Mian. The said Ramjan Mian suffered a paralytic stroke, and therefore, in order to meet the urgent need of money for his treatment the sale deed had been executed by his brother Noor Mohammad Mian and his son Abdul Mian. It is further case of the plaintiff that the property subject matter of the sale deed was under several mortgages and the amount of those mortgages were adjusted in the consideration money. The plaintiff has asserted that the mortgages were redeemed by him later on. The plaintiff has claimed his title on the basis of the sale deed or alternatively on the basis of the possession over the suit land. The defendant Abdul Mian contested the claim of the plaintiff assailing the validity of the sale deed executed by him on 3 Patna High Court SA No.270 of 2011 (6) dt.07-03-2013

27.04.1945 on the ground that during the lifetime of his father Ramjan Mian he could not have validly alienated the property and also on the ground that he was minor on the date of execution of the sale deed, and therefore, the sale deed was not valid. The defendant also claimed his possession over the suit land. The trial court, after considering the pleadings and evidence of the parties, dismissed the suit. The appellate court on reappraisal of the materials on the record has decreed the suit granting the relief as prayed by the plaintiff. Mr. Srivastava, the learned counsel appearing on behalf of the appellants has submitted that the appellate court below has not properly considered the evidence of the defendants and has also misinterpreted the material evidence on record. It has been urged by the learned counsel that the defendant no.1 Abdul Mian was definitely a minor on the date of execution of the sale deed, and therefore, the plaintiff could not have acquired title on the basis of sale deed executed by a minor. It has also been submitted by the learned counsel for the appellant that during the lifetime of his father, Abdul Mian even as a de facto manager could not have validly alienated the property in favour of the plaintiff. From the perusal of the impugned judgments of both the courts below and after considering the submission of the 4 Patna High Court SA No.270 of 2011 (6) dt.07-03-2013 learned counsel for the appellant, it is manifest that the property originally belonged to Lagan Mian who had two sons Noor Mohammad Mian and Ramjan Mian. The plaintiff has claimed his title over the suit property consisting of 7 katha 13 dhur of R.S. plot no. 1999 and 12 katha 7 dhur of R.S. plot no. 2000 on the basis of the sale deed dated 27.04.1945. Both the courts below have come to the concurrent findings that this sale deed has been executed by Abdul Mian and disbelieved his case in this regard. It will be opt to notice that the execution of the sale deed by Noor Mohammad Mian is not in dispute and the contesting defendant Abdul Mian has resisted the claim of the plaintiff only over half of the property i.e. 18 katha of the suit land. The sale deed dated 27.04.1945 (Ext.6) shows that it has been executed by Noor Mohammad Mian and Abdul Mian s/o Ramjan Mian in favour of the plaintiff. The stipulation in the sale deed was to the effect that the part of the consideration money was to be adjusted in the redemption of the mortgagees created by Lagan Mian over the property subject matter of the sale deed. The contesting defendant Abdul Mian in his deposition as D.W.-8 has accepted that neither he nor his father nor his uncle ever redeemed the mortgages. The plaintiff has produced the mortgage deeds (Ext. 8 series) to show that he had redeemed those mortgages. It 5 Patna High Court SA No.270 of 2011 (6) dt.07-03-2013 is thus evident that the part of the consideration had been left with the vendor plaintiff which he paid by way of redeeming the mortgagees created by Lagan Mian, the grand father of the defendant. The appellate court in particular has taken notice of the mortgage deed (Ext. 8/b) dated 07.04.1942 whereby Lagan Mian had put the property in mortgage for the purpose of raising funds for the marriage of his grandson Abdul Mian (the defendant in case). The appellate court below has rightly reversed the finding of the trial court that no consideration was paid which has been recorded ignoring the redemption of the mortgages by the plaintiff which amounts to payment of part consideration. Further, the mortgage deeds (Ext. 8 series) show that the mortgaged properties were in possession of the mortgagees. The defendant has admitted that he or his family never redeemed the mortgages. The mortgage deeds have been produced by the plaintiff showing their redemption by him. From the rent receipts (Ext. 3 series) also it appears that the plaintiff’s name has been mutated and he has been paying rent for the suit property. The appellate court below has scrutinized the oral and documentary evidence in this regard, found the plaintiff to be in possession and disbelieved the case of possession by the defendant. No perversity in the findings of fact by the appellate court in this regard could be 6 Patna High Court SA No.270 of 2011 (6) dt.07-03-2013 established on behalf of the appellant. The sale deed in question is of the year 1945 when the defendant has claimed to be 17 years old and the mortgage deeds were also redeemed by the plaintiff during that period and the possession retrieved from the mortgagees. The defendant or his uncle Noor Mohammad Mian has not assailed the sale deed or the possession of the plaintiff over the suit land. The defendant, in particular has also not assailed the sale deed in question after attaining majority or sought recovery of possession from the plaintiff within the prescribed period of limitation. In view of the aforesaid discussion, the submission with regard to non-applicability of the provision of Section 43 of the T.P. Act loses much of its relevance. It has been found that the defendant-appellant has executed the sale deed in question. Even if it is accepted that he was not entitled during the lifetime of his father to transfer the suit property, the fact remains that the sale deed in question has not been challenged by the defendant or his father within the prescribed period of limitation and allowed the plaintiff to continue in possession. The appellate court below has committed no illegality in concluding that the defendant would be barred by the doctrine of estoppel by conduct and has rightly held the plaintiff to be entitled to the decree as prayed. 7 Patna High Court SA No.270 of 2011 (6) dt.07-03-2013 Thus, in the ultimate eventuate, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. (V Nath, J) Nitesh/-