Patna High Court · 2010
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.172 of 2010 ====================================================== Sharda Devi .... .... Appellant/s Chunchun Sah & Ors. Versus .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Uday Chand Prasad Mr. Binod Kumar Sinha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 6 10-07-2013 1. Heard the learned senior counsel Mr. Kamal Nayan Chaubey appearing on behalf of the appellant under Order 41 Rule 11 of the Code of Civil Procedure. 2. The plaintiff appellant appellant has filed this second appeal against the judgment and decree dated 29th January 2010 passed by the learned Additional District Judge, Fast Tract Court No.2, Purnea in Title Appeal No. 32 of 2000 whereby the learned lower appellate court dismissed the appeal and confirmed the
Legal Reasoning
judgment and decree of the trial court dated 6.5.2000 passed by the learned Sub Judge-6th, Purnea in Title Suit No. 374 of 1993. 3. The plaintiff appellant filed the aforesaid suit claiming relief to the effect that let it be declared by the court that the plaintiff has acquired valid right, title, interest over the suit land by virtue of oral purchase long ago in the year 1980 from her Patna High Court SA No.172 of 2010 (6) dt.10-07-2013 2 father and defendant No.5 and later on confirmed by decree passed in Title Suit No. 592 of 1993 of the court of Sadar Munsif, Purnea and acquired title on the principle of adverse possession and the defendants 1st party did not acquire any valid right, title and interest on the basis of fraudulent and collusive sale deeds said to have been executed and registered by her father. 4. The plaintiff claimed the aforesaid relief alleging that the suit property comprised within three plots being plot Nos. 1235, 1236 and 1237 measuring 85 decimal, 29 decimal and 13 decimal belonged to her father namely Upendra Kumar Jaiswal. The plaintiff is the daughter from first wife of Upendra Kumar Jaiswal and defendant No.5, the brother of plaintiff is son from the second wife. The first wife died in 1949. It is stated that there is a house in plot No. 1235 and rest portion of the land was being used by father as agricultural land. The plaintiff with a view to settle in the village of her father came there and thereafter she purchased orally the suit land from her father in the year 1980 and thereafter she filed Title Suit No. 592 of 1993 in the court of Sadar Munsif, Purnea wherein the title and possession of the plaintiff was admitted by her father and the brother, defendant No.5. However, subsequently, on the pressure of the defendant Patna High Court SA No.172 of 2010 (6) dt.10-07-2013 3 No.5 the father sold the suit property in favour of defendant 1st party by 20 registered sale deeds dated 5.1.1993 and 6.1.1993. According to the plaintiff since the plaintiff was the owner as she had already purchased the land and the father and brother had already confirmed her title and possession in Title Suit No. 592 of 1993, the defendants have not acquired any title on the basis of the registered sale deeds executed by the father. 5. On the other hand, the case of the defendants respondents including the brother of the plaintiff is that the defendant No.5 had no knowledge about filing of any title suit being Title Suit No. 592 of 2013 by the plaintiff and in that suit the defendant No.5 never appeared. The further case is that prior to the alleged compromise in the aforesaid suit the property had already been sold by father of the plaintiff and defendant No.5, therefore, the subsequent compromise, even if there is, it will not affect the right, title and interest of the purchasers because on the date of compromise the father had no title and interest over the suit property. 6. The trial court recorded the finding that the plaintiff in her evidence stated that she had purchased the property for Rs.10,000/- from her father in the year 1980 but no registered sale deed has been filed and the compromise decree passed in the Patna High Court SA No.172 of 2010 (6) dt.10-07-2013 4 said Title Suit No. 592 of 1993 is of the month of May 1993 whereas the sale deed has already been registered by the father on 5.1.1993 and 6.1.1993. The trial court has also recorded the finding that the plaintiff never prayed for declaration that the sale deed executed by father is void, voidable or never prayed for setting aside the sale deed and, accordingly, dismissed the plaintiff’s suit. 7. On appeal, the lower appellate court recorded the same finding that the plaintiff is claiming on the basis of oral purchase and alleged compromise decree passed in Title Suit No. 592 of 1993. The lower appellate court also recorded the finding that this compromise decree is much after the sale deed executed by the father and accordingly dismissed the appeal. 8.
Legal Reasoning
The learned senior counsel Mr. Kamal Nayan Chaubey appearing on behalf of the appellant firstly submitted that both the courts below have not considered and examined the acquisition of title by adverse possession as it is admitted fact as has been admitted by the defendants that the plaintiff is residing in residential house. The learned counsel secondly submitted that since the defendants have admitted that the plaintiff is in possession of the residential house the trial court has wrongly dismissed the suit as having barred under Section 34 of the Patna High Court SA No.172 of 2010 (6) dt.10-07-2013 5 Specific Relief Act and, therefore, the judgment is vitiated. The learned counsel further submitted that at the very old age the sale deeds have been executed by the father on the pressure of the defendant No.5 and, therefore, the sale deeds are tainted with fraud. According to the learned counsel instead of obtaining signature the thumb impression has been taken in the registered sale deeds. 9. So far the first submission of the learned counsel regarding acquisition of title by adverse possession is concerned, it may be mentioned here that in the relief portion only there is one line amendment made to the effect that the plaintiff has acquired title by adverse possession. The plaintiff is claiming title on the basis of oral purchase made by her in the year 1980 and according to the plaintiff the said purchase was confirmed by the father in compromise decree passed in title suit No. 592 of 1993. Now therefore, on the one hand the case of the plaintiff is that she is the real owner on the basis of purchase and on the other hand she is claiming title on the basis of adverse possession. 10. In the case of Karnataka Board of Waqf vs. Government of India 2004(3) PLJR 245 SC the Hon’ble Supreme Court has held that a person pleading adverse possession has no equities in his favour. Pleas on title and Patna High Court SA No.172 of 2010 (6) dt.10-07-2013 6 adverse possession are mutually inconsistent and later will not begin to operate until the former is renounced. Therefore, the claim of the plaintiff itself is mutually inconsistent. The adverse possession pre-supposes that title vest with another person. Here the plaintiff herself is claiming title on the basis of purchase and compromise decree then there is no question of acquiring title by adverse possession arises. In the said decision the Hon’ble Supreme Court has held that a person who claims adverse possession should show (a) on what date he came into possession (b) what was the nature of his possession (c) whether the factum of possession was known to the other party (d) how long his possession is continued and (e) his possession was open and undisturbed. In the present case, therefore, there is no pleading on which date she came in possession of the property. Now even if it is admitted that she is in possession, she never acquired title on the basis of adverse possession unless the ingredients constitute the adverse possession is proved. 11. In the case of P.T. Munichikkanna Reddy & Others vs. Revamma & Others (2007) 6 SCC 59 the Hon’ble Supreme Court has held that for constituting adverse possession one must not only be in possession of the property and intention to possess the same but also the intention to dispossess the real owner. Patna High Court SA No.172 of 2010 (6) dt.10-07-2013 7 Recently in the case of State of Haryana vs. Mukesh Kumar (2011) 10 SCC 404 the Hon’ble Supreme Court considering all the earlier decisions in connection with adverse possession held that people are often astonished to realize that a trespasser may take the title of a building or land from the true owner in certain conditions and such theft is even authorized by law. The theory of adverse possession is also perceived by the general public as a dishonest way to obtain title to property. Here the case of the defendant is that the plaintiff is in forcible occupation of the property and, therefore, they were going to file an eviction suit but in the meantime, summons of this case was received by the defendants, therefore, they did not file eviction suit and waited the result of the case. 12. In view of the above facts, in my opinion, the plaintiff has not acquired title by adverse possession because the basic foundation for constituting the adverse possession is absent here. So far acquisition of title by the oral purchase or by the compromise decree passed in Title Suit No. 592 of 1993 is concerned, it may be mentioned here that the father had already sold the property by registered sale deeds dated 5.1.1993 and 6.1.1993. Therefore, on the date of compromise in title suit i.e. on 18.5.1993 the father had no title or interest in the suit property Patna High Court SA No.172 of 2010 (6) dt.10-07-2013 8 therefore, on the compromise the title never passed to the plaintiff. Moreover the compromise is nothing but a contract between the parties. Here since the father had already parted with his title and interest the plaintiff entered into compromise with the father who had no right, title with respect to the properties. The other aspect of the matter is that by admission title will never pass. It is admitted that father was the owner of the property. If he admits that he gave possession and title that admission will not do or that admission will never confer title on the plaintiff. If statute requires that title will pass only after registration of a document (according to Transfer of Property Act and Registration Act) the title will never pass unless requirement of law is fulfilled. Admitted fact in this case is that the compromise decree is also not registered, therefore, the courts below have rightly held that by this compromise decree passed in the Title Suit No. 592 of 1993 the plaintiff did not acquire any title. 13. So far the submission that the suit is not barred under Section 34 of the Specific Relief Act is concerned, even if it is held that the suit is not barred but on that ground alone the plaintiff will not be entitled for the grant of declaration of her title and possession over the suit property. 14. So far the submission that the sale deeds are fraudulent sale Patna High Court SA No.172 of 2010 (6) dt.10-07-2013 9 deeds or collusive sale deeds is concerned, it may be mentioned here that the plaintiff never prayed for declaration the sale deeds as void or prayed for setting aside the sale deeds. The only relief claimed by the plaintiff is that declaration of her title on the basis of oral purchase in the year 1980 and declaration of non-title of the defendants on the basis of the collusive sale deeds. In such view of the matter, this question raised by the learned counsel for the appellant is also not a substantial question of law involved in this second appeal. 15. In view of my above discussion, in my opinion, no substantial question of law is involved in this second appeal. Accordingly, this second appeal is dismissed at the stage of admission itself. S.S./- (Mungeshwar Sahoo, J)