Patna High Court
Case Details
Patna High Court SA No.168 of 2010 (7) dt.10-09-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.168 of 2010 ====================================================== Kailash Sah & Anr. .... .... Appellant/s Most. Janki Devi & Ors. Versus .... .... Respondent/s ====================================================== with Second Appeal No.242 of 2010 ====================================================== Most. Janaki Devi & Ors. .... .... Appellant/s Versus Kailash Sah & Ors. .... .... Respondent/s ====================================================== Appearance : (In SA No.168 of 2010) For the Appellant/s : Mr. Pushkar Narain Shahi Mr. Sanjeet Kumar Singh For the Respondent/s : Mr. (In SA No.242 of 2010) For the Appellant/s : Mr. Ajay Kumar For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 7 10-09-2013 (1) Heard the learned counsel, Mr. R.K.Srivastava on behalf of the appellants in Second Appeal No.168 of 2010 and the learned counsel, Mr. Ajay Kumar appearing on behalf of the appellants in Second Appeal No.242 of 2010 under Order XLI Rule 11 C.P.C. (2) Both these Second Appeals have been filed by the appellants against the judgment and decree dated 26.02.2010 passed by the learned Additional District Judge-cum-F.T.C. IV, Samastipur in Title Appeal No.82 of 2009 whereby the Lower
Legal Reasoning
Patna High Court SA No.168 of 2010 (7) dt.10-09-2013 2 Appellate Court confirmed the judgment of the trial court so far it relates to the plaintiff’s suit is concerned whereas reversed the judgment and decree of the trial court dated 18.07.2009 passed by Civil Judge(Jr. Div.) I, Samastipur in Title Suit No.7 of 2008, so far it relates to the counter-claim made by the defendants. (3) The plaintiffs filed the aforesaid suit for declaration of title over the suit property comprised within plot no.5129 on the ground that he has purchased the property from Kanhai Sah by registered sale deed dated 11.03.1980, Exhibit 2 measuring 5 ½ decimals. According to the plaintiffs, Kanhai Sah was the agnates of the owner of the property, Yadu Sah. Since after purchase, the plaintiff is coming in possession of that part of the land. In the recent survey, the entire area measuring 11 decimals has been recorded in the name of the defendants and on the basis of the said wrong entry, the defendants are claiming title on the entire property. (4) On the other hand, the defendants filed contesting written statement alleging that in fact, Yadu Sah was issueless, therefore, he adopted Madanlal Sah, the father of the defendant nos.1 and 2. Therefore, on the death of Yadu Sah, the property of Yadu Sah was inherited by Madanlal Sah, the adopted son of Yadu Sah. On his death, the defendants are coming in possession Patna High Court SA No.168 of 2010 (7) dt.10-09-2013 3 of the said property. According to the defendants, after adoption, an yadast was executed by Yadu Sah on 19.03.1962, Exhibit E. Subsequently, a counter-claim was filed by the defendants for declaration of title on the suit property on the basis of the aforesaid pleading. (5) The trial court on the basis of the materials available on record recorded the finding that the plaintiffs failed to prove relationship of Kanhai Sah with the admitted owner, Yadu Sah and that the plaintiffs have purchased plot no.5128 whereas the suit land is comprised within plot no.5129. However, the trial court presumed that there had already been adoption of the father of defendant nos.1 and 2. Accordingly, the trial court dismissed the plaintiff’s suit and decreed the counter-claim of the defendant nos.1 and 2. The plaintiffs thereafter filed Title Appeal before the Lower Appellate Court. The Lower Appellate Court confirmed the finding so far it relates to the claim of the plaintiffs and dismissed the plaintiff’s suit. However, the Lower Appellate Court reversed the finding regarding counter-claim also and dismissed the counter-claim also. (6) The defendants have filed Second Appeal No.168 of 2010 against that part of the judgment whereby their counter- claim has been dismissed by the Lower Appellate Court. The Patna High Court SA No.168 of 2010 (7) dt.10-09-2013 4 plaintiffs have filed Second Appeal No.242 of 2010 against the judgment and decree whereby their suit has been dismissed by the Lower Appellate Court.
Legal Reasoning
(7) The learned counsel for the appellants in Second Appeal No.168 of 2010 raised only one question that yadast was produced by the defendants in support of the fact that Madanlal Sah, the father of defendant nos.1 and 2 was adopted by Yadu Sah because he was issueless which was relied upon by the trial court and the trial court recorded categorical finding that Madanlal Sah was adopted son but the Lower Appellate Court wrongly held that there was no adoption. The learned counsel relying on the decision of the Apex Court reported in AIR 1969 Supreme Court 1359(Voleti Venkata Ramarao v. Kesaparagada Bhaskararao and others) submitted that the burden was on the plaintiffs to prove that there was no valid adoption. Since after adoption, the father was being treated as adopted son and continued in possession of the property, therefore, the Lower Appellate Court should have presumed that there was valid adoption but without considering this settled principle of law, the Lower Appellate Court reversed the finding regarding adoption and dismissed the counter-claim. Therefore, that part of the judgment is vitiated. (8) On the other hand, the learned counsel appearing Patna High Court SA No.168 of 2010 (7) dt.10-09-2013 5 on behalf of the plaintiff-appellant in Second Appeal No.242 of 2010 submitted that the Lower Appellate Court has not at all considered the genealogy provided by the plaintiffs in the plaint and without considering genealogy has recorded the finding that the plaintiff’s vendor, Kanhai Sah was not related with Yadu Sah. Therefore, the judgment of the Lower Appellate Court is vitiated. (9) From perusal of the Lower Appellate Court judgment, it appears that the Lower Appellate Court considering the evidences on record, recorded a clear finding that the sale deed in favour of the plaintiffs was executed without the permission of the Consolidation Authority as required by the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Therefore, the sale deed, Exhibit 2 is a void document. The trial court also categorically recorded the finding that the plaintiffs have purchased plot no.5128 and not plot no.5129 whereas the subject matter of the suit is plot no.5129. (10) A Full Bench decision of this Court reported in 2010(2) PLJR 1066(Panna Devi vs. State of Bihar through Secretary, Revenue and Land Reforms Department, Govt. of Bihar, Patna & Others) held that no transaction can take place without prior sanction of the authority required under the Act and if any transaction is made without sanction according to Section Patna High Court SA No.168 of 2010 (7) dt.10-09-2013 6 32, the transaction will be void ab initio. Admittedly, no permission has been obtained by the vendor of the plaintiff or the plaintiff and it is not disputed that during the transaction, the consolidation proceeding was going on. In view of the above settled proposition of law, the sale deed, Exhibit 2 has been rightly held by the Lower Appellate Court to be a void ab initio document. (11) Further, it is admitted fact that in the sale deed, plot no.5128 has been purchased by the plaintiffs. The case of the plaintiffs is that it is a mistake. It may be mentioned here that the sale deed is of the year 1980 and the suit has been filed in the year 2008 i.e. after 28 years but no correction has been made in the sale deed. In such circumstances, after such a long period, the plaintiff’s title cannot be declared on the ground that because of mistake, plot number has been mentioned as plot no.5128. (12) In view of the aforesaid facts, it is not necessary to consider the genealogy of the plaintiffs because even if it is held that plaintiff’s vendor was related then because of the above facts, the plaintiff’s title cannot be declared on the suit plot no.5129. (13) So far the submission of the learned counsel for the appellants in Second Appeal No.168 of 2010 is concerned, the only case of the defendant-appellant in the written statement and Patna High Court SA No.168 of 2010 (7) dt.10-09-2013 7 counter-claim is that Yadu Sah had adopted Madanlal Sah and a yadast was prepared being Exhibit E. This is a sada document. (14) According to Section 16 of the Hindu Adoption and Maintenance Act, 1956, the Court shall presume that the adoption has been made in compliance with the provision of this Act if a registered document is produced. As stated above, no registered document has been produced. There is no evidence on record to show that there was any give and take ceremony and in fact adopted son was given in the lap of the adoptive mother and father. In the counter-claim, there is no pleading about the age of Madanlal Sah when he was adopted. Therefore, there can not be any presumption and the fact has to be proved by evidence. (15) In the case of Rahasa Pandiani (dead) by L. Rs. and others v. Gokulananda Panda and others, AIR 1987 Supreme Court 962=(1987) 2 Supreme Court Cases 338, the Hon’ble Supreme Court has held that “in the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life Patna High Court SA No.168 of 2010 (7) dt.10-09-2013 8 shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place. And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach.” Admittedly, in the present case, except the pleading that the father was adopted from childhood, there is nothing on record. The yadast is of the year 1962. Moreover, the question whether Madanlal was adopted or not is a pure question of fact. (16) So far the decision relied upon by the learned counsel for the appellants i.e. AIR 1969 Supreme Court 1359(supra) is concerned, it appears that in that case, the adoption was of the year 1904 and it was never challenged. Therefore, the adoption in that case was prior to coming of the force of Hindu Adoption and Maintenance Act, 1956. In such circumstances, the facts of that case are not applicable here. (17) In view of the above discussion, I find that the points raised by the learned counsel for the appellants are not at all substantial question of law. Therefore, the appeal filed by the defendants who have filed counter-claim i.e. Second Appeal Patna High Court SA No.168 of 2010 (7) dt.10-09-2013 9 No.168 of 2010 and the Second Appeal No.242 of 2010 both are dismissed at the admission stage itself. Saurabh/- (Mungeshwar Sahoo, J)