Manilal Sah v. Ramchandra Sah

21.01.2010 passed by Sri Aditya Kumar Trivedi, the then District Judge, Khagaria in title appeal No.1 of 2000 whereby the learned lower appellate Court dismissed the appeal and confirmed the Judgment and Decree dated 16.12.1999 passed by the learned Munsif, Khagaria in title suit No.15 of 1990.

3. The plaintiff respondent filed the aforesaid suit for declaration of title and confirmation of possession in the alternative recovery of possession of the suit property, if found dispossess during the pendency of the suit. According to the plaintiff, Tulsi Sah had 5 sons, namely, Mauji Sah, Kisun Sah, Mungeri Sah, Bisu Sah and Fudo Sah. Out of the 5 sons, the first two sons namely, 2 Patna High Court SA No.190 of 2010 (9) dt.26-06-2013 Mauji and Kisun died issueless, thereafter there was partition between the 3 brothers and the suit land fell in the share of Biso Sah. Biso Sah by registered sale deed dated 22.08.1973 sold the said land jointly to the plaintiff Ram Chander Sah and Banarsi Sah. Plaintiff’s grand son of Mungeri whereas Banarsi is son of Fudo. Subsequently, by registered sale deed dated 2.2.1974 Banarsi Sah sold his half share in favour of the plaintiff and, therefore, the plaintiff became the owner of the entire suit property measuring 11 katha 18 dhur. The 144 Cr.P.C. Proceeding between the parties was decided in favour of the defendant, therefore, the plaintiff filed the aforesaid suit for declaration of his title.

4. The defendant appellant appeared and filed a contesting written statement. According to the defendant, the genealogy is admitted. The partition between the 3 sons of Tulsi is also admitted. The only dispute raised by the defendant is that in that partition between the 3 brothers, the suit property fell in the share of Fudo. On the death of Fudo, his son Banarsi had half share and second son Manilal had half share. Manilal sold his half share by registered sale deed dated 5.5.1987 in favor of defendant and on the death of Banarsi, his widow sold his half share on 11.11.1987 in favour of defendant and, therefore, the defendant became the owner of the entire suit property. According to the defendant the sale deed of the plaintiff are forged and fabricated and in partition, the suit property never allotted in the share of Biso.

5. After trial, the trial Court recorded a finding that in partition suit, property fell in the share of Biso. The trial Court also 3 Patna High Court SA No.190 of 2010 (9) dt.26-06-2013 recorded the finding that the plaintiff is in possession of the property. The trial Court also recorded the finding that since the property was allotted in the share of Biso Sah, the heirs of Fudo had no right title to sell suit land in favour of the plaintiff. However, the trial Court directed the defendant appellant to give possession of the suit property within two months. Accordingly, decreed the plaintiff’s suit.

6. The defendant filed the appeal before the lower appellate Court. The lower appellate Court also recorded the finding that in the partition between the 3 brothers, the suit property fell in the share of Biso Sah. On the death of Biso Sah, the property was recorded in the name of Bhuneshwar Sah who is son of Biso Sah and accordingly held that Biso Sah was the owner of the property. The lower appellate Court found that the plaintiff is in possession of the property. Recording the above findings, the lower appellate Court dismissed the title appeal.

7. The learned counsel for the appellant submitted that the trial Court recorded a finding that the plaintiff is in possession of the property but directed the defendants to hand over possession within 2 months to the plaintiff. This direction could not have been given by the trial Court, particularly when possession of the plaintiff was found. According to the learned counsel, the plaintiff prayed for recovery of possession stating that if he is found dispossessed during the pendency of the suit, the possession may be recovered. However, no amendment application was filed in the Court below stating on which date he was dispossessed during the 4 Patna High Court SA No.190 of 2010 (9) dt.26-06-2013 pendency of the suit, therefore, the trial Court had no jurisdiction to direct the defendant to deliver possession within 2 months to the plaintiff. The lower appellate Court has not decided this question clearly and there is ambiguity in the lower appellate Court Judgment. Therefore, the lower appellate Court should have remanded the matter to the Court below. The learned counsel further submitted that although the defendant raised the question that the sale deeds of the plaintiff are forged and fabricated, this question was never decided by any of the Courts below, therefore, the Judgments of the Courts below are vitiated. Except these points, no other points have been raised.

8. So far the first point raised by the learned counsel for the appellant is concerned, it may be mentioned here that the trial Court as well as the lower appellate Court both have recorded clear finding that the plaintiff is in possession of the suit property. Both the Courts below recorded further finding that in partition, the property was allotted in the share of Biso Sah. Both the Courts below also recorded the finding that the heirs of Fudo had no authority to sell the property. The grievance of the appellant is that the trial Court although recorded the finding that the plaintiff is in possession could not have directed the appellant to deliver the possession. From perusal of the Judgment of the lower appellate Court, it appears that this question was also raised before the lower appellate Court and the lower appellate Court in clear term has held that this direction is surplus because the plaintiff is in possession of the property. In my opinion, therefore, on this 5 Patna High Court SA No.190 of 2010 (9) dt.26-06-2013 ground alone, it cannot be said that the Judgments are vitiated. Moreover, the plaintiff has prayed for declaration of title and has paid advelorum Court fee for recovery of possession of the suit property. So far the second question that the Court below have not decided regarding the case of the defendant that the plaintiff sale deeds are forged and fabricated sale deeds is concerned, it may be mentioned that except this statement in the written statement, no evidence was adduced and moreover when the finding has been recorded by both the Courts that the property was allotted in the share of Biso and the documents of the year 1973-74 that is the registered sale deeds in favour of the plaintiff are registered sale deeds, there is presumption of correctness and genuineness of the document in favour of the plaintiff.

9. In the case of Vimal Chand Ghevarchand Jain Vs. Ramakant Eknath Jadoo 2009 (5) SCC 713, the Hon’ble Supreme Court has held that a registered deed of sale carries presumption that the transaction was a genuine one. If execution of sale deed is proved, the onus is on defendant to prove that the deed was not executed and it was a sham transaction. In the present case when the defendant himself has purchased from the persons who had no authority to sell the property, in my opinion, he has no locus standi to challenge the sale deed. Moreover, no evidence has been adduced to that effect when this question was raised before the lower appellate Court.

10. It is also settled principal of law that finding of fact arrived at by the lower Courts on the basis of evidence and 6 Patna High Court SA No.190 of 2010 (9) dt.26-06-2013 materials available on record cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. Here, the finding of both the Courts below that in partition, the property was allotted in the share of Biso is concerned, it is finding of fact. The defendants are claiming through heirs of Fudo. Since, the finding as stated above are finding of fact, the same cannot be interfered with in Second Appeal. Accordingly, in my opinion, no substantial question of law is involved in this Second Appeal, therefore, this Second Appeal is dismissed at the stage of admission itself. (Mungeshwar Sahoo, J) Sanjeev/-