High Court
Case Details
RSA 127/2002 BEFORE HON’BLE MR JUSTICE N.CHAUDHURY Heard Mrs. R. Chaudhury, learned counsel appearing on behalf of the appellant. Although, it appears from the office note that notice upon the sole respondent was served, yet no one has put up appearance on behalf of the said respondent. The appeal was admitted in the year 2002 and it has been in th 2. e hearing list for quite sometime. So, the appeal is taken up for decision on me rit. 3. By this second appeal, the defendant No.2 has challenged the jud gment and decree dated 18.5.2002 passed by the learned Civil Judge (Sr. Divisio n), Sonitpur, Tezpur in Title Appeal No.26/1994 allowing the appeal and setting aside the judgment and decree dated 4.4.94 passed by the learned Munsiff No.1, T ezpur in Title Suit No.10/1990. The learned trial court had dismissed the suit b ut on appeal the learned lower appellate court allowed the appeal and thereby d ecreed the suit of the plaintiff/respondent No.1 therein. The appeal was admitte d on 26.11.2002 and the following substantial question of law was framed for con sideration by this court U/s.100 CPC:
Legal Reasoning
(cid:28)Whether the defendant acquired title by adverse possession over the sui t land since 31.12.77 and if the title of the plaintiff stood extinguished (cid:29). 4. te the basic fact of the case in a nutshell. For the purpose of deciding the appeal, it is necessary to narra The plaintiff/respondent No.1, Md. Jahar Ali instituted Title Suit No.10 /1990 in the court of the learned Sadar Munsiff No.1, Tezpur contending, inter a lia, that he purchased schedule A and B land from the defendant No. 2 and 1 by registered sale deed dated 12.2.74 and 12.11.73 respectively on payment of valu able consideration and obtained possession thereof. It is the case of the plain tiff that after purchase, he took delivery of possession of the said land and got his name duly mutated in the records of rights, which , however, was cancell ed subsequently on 22.11.83 in Misc Case No. 13/81-82. The plaintiff, unsucces sfully challenged the said order of cancellation of mutation before the appellat e authority and consequently the title of the plaintiff over the schedule ’A ’ a nd ’ B’ lands were clouded. It was further contended that the defendant attempt ed to disposes the plaintiff from the suit land for which he had to institute a proceeding U/s.145 CrPC in the court of the learned Executive Magistrate at Tezp ur and the same was registered as Misc Case No.123/86. The land was attached U/s . 146 of the Code of Criminal Procedure vide said proceeding. 5. The defendant appeared and submitted written statement denying t he pleaded case of the plaintiff. The defendant brought it on record vide para -9 of the written statement that after sale of the land covered by schedule ’A ’ and ’B’ to the plaint on 12.11.73 and 12.2.74, there was an agreement for reco nveyance. While defendant had obtained a registered agreement for reconveyance o n 12.2.77 itself condending that if the defendant No.1 had refunded the conside ration money to the tune of Rs. 1,500/- to the plaintiff, the plaintiff would b e duty bound to execute a registered deed of reconveyance . 6. It is further contended that while there was a written deed of agreement for re conveyance between the defendant and plaintiff, there was an o ral agreement of re conveyance between the defendant No.2 and 1. It is further contended that pursuant to the agreement they refunded the consideration money to the plaintiff on 31.12.77 and thereby came into possession of the land on 31. 12.77 and continued possessing the same untill the land was attached in the pro ceeding U/s 145 CrPC. 7. On consideration of the pleadings of the parties, the learned tr ial court framed as many as 10 issues. However, Issues No. 4 and 6 appear to hav e been re-framed at the time of argument which are as follows: (cid:28)Issue No. 4 - Whether the plaintiff has executed registered Deed No.931 dated 12.2.74 in favour of the defendant No.1 Md. Sahidur Rahman?. (cid:28)Issue No.6 - Whether the mutation of the suit land in favour of the defendants have been made legally ?. 8. Both the parties adduced evidence. Plaintiff examined as many as 4(four) witnesses including himself. The defendant adduced 3(three) witnesses. While defendant No.1 was examined as DW-1, defendant No.2 avoided to stand i n the witness box and did not examine himself to support his pleadings. 9. From the materials on record and the findings of the learned co urts below, it appears that execution of registered sale deed dated 12.11.73 and 12.2.74, namely Ext. 1 and 2 are admitted. However, in course of deposition, DW 1 wanted to deny execution of the said sale deeds. It is necessary to menti on here that while plaintiff conveniently described Ext 1 and 2 as document in regard to the land in question, he did not make any mention of the reconveyan ce dated 12.2.74 and it is the defendant, who brought it on record and exhibited the same vide Ext.4. It further appears that the plaintiff has not disputed his signature on Ext.4 although, he attempted to describe the same as forged docum ent. Be that as it may, the learned trial court arrived at the find 10. ing (cid:28)The land was under occupation of the defendants since 1977 dismissed in 198 6 the land was attached U/s 145 CrPC proceeding by the Executive Magistrate and still the suit land is under attachment as I found from the record (cid:29). On the back ground of the factual situation, it appears that purchase of land by the plaint iff from defendant Nos 1 and 2 by two separate registered sale deeds and thereup on getting possession of the land is established. 11. It is the finding of fact of both the learned courts below that the defendant No.1 had obtained Ext. K registered deed of conveyance from the p laintiff in regard to schedule B land. So far as oral agreement in regard to sch edule ’A’ land between the plaintiff and defendant No.2 is concerned it has nei ther been discussed by the learned courts below nor had the parties led any evid ence thereto. The defendant No.2 stayed away from the witness box to support his case that there was at all such an agreement between himself and the plaintiff . 12. Hon’ble Apex Court considered such an exigency in the case of V idhyadhar Vs Manikrao & Anr., reported in AIR 1999 SC 1441. It is held by the H on’ble Apex Court that a party after staking a claim is duty bound to establis h the same. If a party himself does not come in the witness box to depose and to prove the pleaded case, presumption is to be taken U/s.114 of the Indian Eviden ce Act,1872 that his case is not correct. .Such application U/s 114 of the India n Evidence Act makes it clear that the defendant No.2 having stayed away from th e witness box the plea of his oral agreement with the plaintiff has to be presu med incorrect. But so far as the claim of the plaintiff is concerned the learne d lower court decreeing the suit on reversal of the judgment of the trial court held as follows:- (cid:28) In the result, I find and hold that the plaintiff executed registere d Deed No.931 dated 12.2.74 in favour of the defendant No.1, Sahidur Rahman (cid:29). If that be the case, the learned courts below ought to have co 13. nsidered the consequence of Section 53-A of the Transfer of Property Act, 1882 o n the ground of the aforesaid factual matrix. Section 53-A of the Transfer of P roperty Act is quoted hereinbelow: (cid:28)53-A. Part of performance,- Where any person contracts to transfer for consider ation any immovable property by writing signed by him or on his behalf from whic h the terms necessary to constitute the transfer can be ascertained with reasona ble certainty, and the transferee has, in part performance of the contract, take possessio n of the property or any part thereof, or the transferee, being already in poss ession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the co ntract, then, notwithstanding that where there is an instrument of transfer, that th e transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him sha ll be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or co ntinued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a trans feree for consideration who has no notice of the contract or of the part perform ance thereof (cid:29). 14. On a bare perusal of the said section, it appears that where any person contracts to transfer for consideration any immovable property by writin g signed by him and the transferee has, in part performance of the contract, tak en possession of the property, then notwithstanding that where there is an instr ument of transfer, that the transfer has not been completed in the manner prescr ibed therefore by the law for the time being in force, then, he shall be debarre Here is a case where the defenda d from enforcing against the transferee. nt has come into possession of the schedule ’B’ land on the basis of registered deed of re- conveyance. May be the plaintiff has not executed a deed of sale in favour of the transferee, namely, the defendant No.1 herein. In that view of t he matter, the plaintiff or any body stepping into his shoe is deemed to be deb arred from staking any claim to the land in question. In the light of Section 5 3-A of the T.P.Act, the transferor of the land cannot resile from his stand aft er executing a deed of agreement for conveyance and after the transferee obtain ed possession. It appears that none of the courts below have disputed the posses sion of the defendant over the suit land w.e.f. 31.12.77. 15. I have perused the evidence on record and tried to find if ther e was any cross examination from the side of plaintiff on the point of obtainin g possession of schedule ’B’ land by the defendant No.1 on 31.12.77. In my opi nion, Section 53-A stand on the way of plaintiff for staking claim to the land c overed by schedule ’B’ land i.e. Ext.2 and Ext.4. So far as the land covered by schedule ’A’ is concerned neither the agreement of reconveyance has been proved nor was any evidence led to show that the said defendant had come into possessi on of the schedule ’A’ land. So, the plaintiff has right, title and interest wit h regard to schedule ’A’ land. Consequently the plaintiff has valid right, title and interest to schedule ’A’ land but he is debarred from staking claim to the land covered by schedule ’B’ land. 16. In the result, the substantial question of law framed at the tim e of admission of this second appeal in regard to extinguishment of title to la nd under schedule ’B’ is held in the affirmative. But the plea of adverse possession of the defendant indicated in the last part of the substantial questi on of law was neither pressed by the learned counsel for the appellant nor is there any material to come to any finding in regard thereto. If the defendant cl aims the right of specific performance on the basis of the re conveyance deed, t here is no question of raising the plea of adverse possession. Besides, the esse ntial ingredients or adverse possession also do not appear to have been made in the written statement of the defendant. In this view of the matter, this substan tial question of law does not necessarily arise in the pleaded case. 17. In view of what has been stated above, the second appeal is part ly allowed dismissing the suit of the plaintiff with regard to claim of right , title and interest over the schedule ’B’. land of the plaintiff, but affirming t he decree in respect of schedule ’A’. 18. No order as to cost.