Suresh Prasad v. Rajendra Prasad

Judgment

1. 2. Heard the learned counsel appearing on behalf of the parties. This appeal has been filed against judgment dated 31.05.2022 (Decree signed on 10.06.2022) passed by the Additional Judicial Commissioner-VIII, Ranchi in Civil Appeal No. 102 of 2018 whereby the appeal has been dismissed. The suit was decided by learned Munsiff, Ranchi in Title Suit No. 95 of 2004 on 26.07.2018 whereby the suit was decreed. 3. 4.

The defendants are the appellants before this Court. The learned counsel for the appellants has submitted that the specific case of the plaintiff was that the suit property was self- acquired property of the plaintiff and the plaintiff had purchased 5 chattak 22.5 square feet of land in the name of defendant No. 2 vide registered sale deed No. 10510 dated 28.11.1989 and the defendant No. 2 executed registered sale deed dated 14.05.1992 in favour of the 1 plaintiff to the extent of 2 chattak 34 square feet. The learned counsel also submitted that the plaintiff filed suit for recovery of possession in connection with the property covered by the sale deed dated

14.05.1992. 5. The learned counsel has further submitted that there were two defendants. Defendant No. 1 is the full brother of the plaintiff and Defendant No. 2 is the wife of defendant No. 1. He has submitted that the specific case of the defendant No. 1 was that the Bajrang Book Centre was opened by the defendants from his own fund and resources and plaintiff was later on allowed to join the business as working partner. It was false to say that the defendants ever lived as a member of plaintiff’s family in any rented residential accommodation of the plaintiff. The defendants used to reside separately in the backside of Bajrang Book Centre and later on took his own rental accommodation. 6. The story that the plaintiff purchased the property in question was alleged to be false. It was asserted that the defendant’s wife from her own saving, resources and stridhan got the property in her own name. It was also asserted that the claim of the plaintiff was barred under Benami Transactions Prohibition Act. It was alleged that the plaintiff had taken advantage of defendant’s illness and represented to defendant’s wife that a power of attorney is to be executed and, on that pretext, got a sale deed executed and the plaintiff did not pay any money as price or on any other account to the defendant or his wife against the suit property and the deed of sale was a forged document. The wife i.e. defendant No. 2 filed another written statement considering that when she came to know about forgery on the part of the plaintiff, the plaintiff executed a relinquishment agreement over the suit property in favour of the defendant No. 2. 7. He submits that the main issue was issue No. VII i.e. whether plaintiff has got right, title and interest over the suit property? 8. The learned counsel has submitted that the case of the defendants has not been properly appreciated by both the courts and therefore, the present appeal has been filed. He submits that 2 substantial questions of law be framed and case be admitted for hearing. 9. After hearing the learned counsel for the appellants, this Court finds that the plaintiff has filed the suit seeking declaration of right, title and interest over the suit property and also recovery of possession. The suit land was relating to a portion of Khata No. 58 plot No. 696/B, area 02 Chattak 34 square feet situated in Village- Harmu, District Ranchi. 10. It was the case of the plaintiff that plaintiff and defendant No. 1 are full brothers and plaintiff was the elder brother. The plaintiff opened a shop of books from his own earnings in rented house in the name and style of M/s Bajrang Book Centre in the year 1981. The plaintiff with the increase of family member, purchased a piece of land in the name of defendant No. 2 i.e. the wife of defendant No. 1 in the year 1989 with his own money from one Laxmi Kumari through registered sale deed dated 28.11.1989. Differences cropped up between the parties and ultimately transfer was made by the wife of defendant No. 1 i.e. the defendant No. 2 to the plaintiff through registered sale deed dated 14.05.1992 which was executed by the wife of the defendant after receiving full consideration money of Rs.2,500/- . Defendants made request for short time to deliver possession to the plaintiff pursuant to registered deed dated 14.05.1992 but defendants ultimately did not vacate the premises. 11. Further case of the plaintiff is that on 04.03.1997 at the request of the defendant, an agreement was made between the plaintiff and the defendants in presence of witnesses and according to the terms of the agreement dated 04.03.1997, the book shop namely M/s Bajrang Book Centre shall belong to the defendant No. 1 exclusively and the defendants was to pay a sum of Rs.1,15,000/- to the plaintiff by

31.03.1997 and the house in which the defendants were residing shall belong to the plaintiff and the defendants shall vacate the house and deliver the possession of the house to the plaintiff by 31.03.1997. The 3 case of the plaintiff was that the defendants did not act according to the agreement and did not pay anything to the plaintiff. 12. Ultimately, a legal notice was sent on 16.02.2004 which was received by the defendant on 21.02.2004 but the defendants neither vacated the suit premises nor cared to reply to the notice. The case of the plaintiff is that the cause of action arose on 14.05.1992,

04.03.1997 and 16.02.2004. 13. The defendants filed written statement stating that the M/s Bajrang Book Center was opened by the defendant from his own funds and the plaintiff was later on allowed to join the business as working partner. It was false to say that the defendant ever lived as a member of plaintiff’s family in any rented residential accommodation and it was asserted that the plaintiff maintained his own family. The case of the defendants was that the defendants used to reside separately in the backside of Bajrang Book Centre and later on took rented accommodation of his own, maintained his family member from his own income. 14. It was asserted by the defendants that property was purchased by the defendant’s wife i.e. defendant No. 2 by her own savings and resources and stridhan funds and it was false to say that the plaintiff purchased the property in the name of defendant’s wife Nirmala Devi i.e. the defendant No. 2. It was asserted that plaintiff’s claim is barred under the Benami Transactions Prohibition Act. 15. It was the case of the defendants that during the illness of the defendant, the plaintiff represented the defendant’s wife that a power of attorney is to be executed and, on the pretext, he got a sale deed executed and the sale deed was never given effect to and she has signed the document believing the plaintiff’s representation that it is a power of attorney. It was also asserted that plaintiff did not pay any money as price to the defendant No. 1 or his wife against the suit property or any portion thereof and the sale deed is a forged document by practicing fraud. The defendant had no knowledge of the same till the service of summon of this suit on his wife. It was asserted that 4 defendant’s wife all along have been in possession of the entire suit property and had exclusive title. 16. The defendant No. 2 filed a separate written statement in the same line as that of defendant No. 1 and has stated that when the forgery on the part of the plaintiff was detected, the plaintiff executed undertaking and relinquished his interest over the suit property. It was asserted that the suit was barred by limitation and defendants wherein continuous possession of the suit land. 17. The following issues were framed by the learned trial court. Is the suit maintainable in its present form? I. II. Whether plaintiff has got valid cause of action for the suit? III. Whether the suit is barred by law of limitation and adverse possession? IV. Whether the suit is barred under the provisions of Benami Transactions Prohibition Act, 1988? Is the suit barred by the provisions of the Specific Relief Act? Is the suit undervalued? V. VI. VII. Whether plaintiff has got right title and interest over the suit property? VIII. Whether plaintiff is entitled for a decree of perpetual injunction restraining the defendant from alienating the suit property? IX. To what relief/reliefs plaintiff is entitled for?

18. Both the oral and documentary evidences were adduced on behalf of the parties. The learned trial court recorded that the plaintiff did not claim the entire property covered by the registered deed No. 10510 dated 28.11.1989 which was to the extent of 05 Chattak 22.5 square feet but claimed only 02 Chattak 34 square feet purchased by him from the defendant No. 2 vide exhibit 4 which is registered sale deed dated 14.05.1992 executed by defendant No. 2 in favour of the plaintiff. 19. Issue No. VII was decided by the learned trial court after considering the materials on record and the learned trial court recorded that the evidence of D.W. 1 was conflicting. The learned trial court did not rely upon Exhibit A which was not admitted by P.W. 2 in his cross examination and Exhibit A was a document in photocopy 5 form and the original was not produced before the court. The learned trial court also recorded that neither scriber nor the witnesses of the said undertaking as contained in Exhibit A were examined to support the case. Apart from that either of the defendant did not come forward to give evidence to give credence to the document i.e. Exhibit A. D.W. 1 who proved the signature of the witnesses was himself not the witness of the said undertaking and the learned trial court recorded that Exhibit A was not reliable piece of evidence. 20. The learned trial court further recorded that the sale deed marked as Exhibit 4 was not cancelled or set aside. The learned trial court ultimately recorded that the sale deed in question was a valid document assigning valid right, title and interest to the plaintiff over the suit land and the issue was decided in favour of the plaintiff. 21. While deciding issue No. III, the learned court has recorded that it was admitted case that plaintiff was never in physical possession of the suit property since purchase and the period of limitation will be guided by Article 65 of the Limitation Act i.e. when the possession of the defendant become adverse to the plaintiff. The learned trial court after considering the materials on record found that the ingredients of adverse possession was not satisfied and held that the suit was not barred by law of limitation of adverse possession and decided the issue against the defendants. 22. So far as issue No. V and VI are concerned, the learned trial court observed that neither any evidence was advanced nor any arguments were placed. 23. While deciding the issue No. IV, the learned court recorded that the plaintiff admitted the title of the defendant No. 2 through the sale deed of the year 1989 and was claiming the title through sale deed executed by defendant No. 2 in favour of the plaintiff and held that in such circumstances, the suit was not barred under the provision of Benami Transaction (Prohibition) Act, 1988 and decided the issue against the defendants. 6

24. Issue No. I and II were also decided in favour of the plaintiff and the learned trial court ultimately held that the plaintiff has got right, title, interest over the suit property and the suit property was decreed on contest and the defendants were directed to vacate the possession of the suit property in favour of the plaintiff within two months. 25. So far as learned 1st appellate court is concerned, all the issues were taken up for consideration and the core issue i.e. issue No. VII was considered vide paragraph 26 which is as follows:- “26. PW-1 Ramesh Kumar has deposed that his father (plaintiff) purchased 5 chattak 22.5 sq.ft. land of plot no. 696/B in the name of his aunty Nirmala Devi (defendant no. 2) and a house was constructed thereon. Thereafter, defendant no. 2 Nirmala Devi sold half portion of the said land to his father (Plaintiff) in the year 1992 after receiving the consideration amount. PW-2 (plaintiff) has also reiterated the said fact. He has further stated that the defendant no. 2 after receiving the appropriate consideration amount sold 02 chattak 34 sq.ft. of land on which room and lavatory were constructed vide registered sale deed no. 4792 dated 14/05/1992 to him and he has proved the certified copy of said registered sale deed and the same has been marked as Exhibit-4 with objection. He allowed the defendants to stay in the suit premises. In his cross-examination by the ld. counsel for the defendants, he has proved the xerox copy of agreement dated 05/09/1994 and the same has been marked as Exhibit-A (with objection). It is relevant to mention here that although the defendants have claimed that the original of Exhibit-A is in their possession but the original of Exhibit-A has never been produced and got exhibited by the defendants, the reasons best known to them. In Para-4 DW-1 Balkrishna Agrawal has stated that by playing fraud the half portion of the land was got registered by the plaintiff from the defendant no. 2 Smt. Nirmala Devi. It is worthwhile to mention there that neither the defendant no. 1 nor the defendant no. 2 Smt. Nirmala Devi have been examined as witness by the defendants in the instant case. By adducing evidence the defendants have not been able to prove the fact that the plaintiff got registered the sale deed i.e. Exhibit-4 in his favour from the defendant no. 2 by playing fraud. In the written statement the defendants have admitted the fact that the land in question was purchased by the defendant no. 2 Nirmala Devi from her own savings and Stridhan etc. It is not in dispute that the defendant no. 2 Smt. Nirmala Devi was the owner of the suit property prior to its 7 sale in favour of the plaintiff. In case of registered deed, whether it is original or certified copy it has presumptive value of correctness u/ss 114(e), 79 of the Indian Evidence Act and u/s 60 of the Registration Act, 1908. A registered document carries presumption of correctness of the endorsement made thereon. The party who claims a registered deed to be forged, the initial onus lies upon him/her to prove that the said registered document is a forged one. But the defendants have failed to prove their claim that the Exhibit-4 is a forged one. Exhibit-4 i.e. registered sale deed is found to be a valid document assigning valid right, title and interest in favour of the plaintiff over the suit property. Thus, I am of the view that this issue has rightly been decided in favour of the plaintiff.”

26. The learned 1st appellate court after scrutinizing the materials on record observed that in case of registered deed there is a presumption under section 114(e), 79 of the Indian Evidence Act and Section 60 of the Registration Act, 1908 and the party who claims that registered deed is a forged, the initial onus lies upon him to prove the registered deed is a forged one. The learned 1st appellate court recorded that the defendants have failed to prove their claim that Exhibit 4 is a forged one. 27. The learned 1st appellate court while considering the issue No. IV and V recorded that the plaintiff admitted right, title, interest of defendant No. 2 and he purchased the suit property from the defendant No. 2 on 14.05.1992 and therefore, the sale deed of the year 1989 was not at all the subject matter of consideration. The learned 1st appellate court has also considered the materials on record and given concurrent findings and dismissed the appeal. 28. Upon going through the impugned judgments, this Court finds that while deciding issue No. VII the learned courts have considered the materials on record including Exhibit-A which was document in photo copy form and was an undertaking by the plaintiff relinquishing his interest over the suit property and it was disbelieved. The learned court has recorded that sale deed dated 14.05.1992 was not under challenge in the proceeding and it was never challenged. It has also 8 been recorded in the appellate court’s judgment in paragraph 2 that sale deed had carried a consideration of Rs.2,500/-. 29. This Court finds that the learned trial court has considered every aspect of the matter and has decided the issue against the defendants with regard to right, title and interest over the suit property. The appellate court has also considered the materials and has given concurrent findings. 30. This Court is of the considered view that there is no substantial question of law arises for consideration in this second appeal. Accordingly, this Second Appeal is dismissed. 31. 32. Let this order be communicated to the concerned courts through Pending I.A., if any, is dismissed. FAX/E-mail. Rakesh/- (Anubha Rawat Choudhary, J.) 9