) ------ 1. Smt. Kaushalya Devi, aged about 67 years, W/o –Dhurli Mahato 2 v. 1. Bhadu Lal Mahato, S/o Late Chakar Mahato, 2. Binod Mahato, S/o Late Hardayal
Case Details
Second Appeal No. 231 of 2020 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.231 of 2020 (Against the Judgment and decree dated 22.08.2020 passed by the learned District Judge-I, Dhanbad in Civil Appeal No. 31 of 2019) ------ 1. Smt. Kaushalya Devi, aged about 67 years, W/o –Dhurli Mahato 2. Dhurli Mahato, aged about 83 years, S/o –Late Rakhal Mahato Both are resident of village –Nichitpur, P.O. –Dhariyo Mahubani, P.S. –Govindpur, District –Dhanbad .... .... …. Appellants Versus 1. Bhadu Lal Mahato, S/o Late Chakar Mahato, 2. Binod Mahato, S/o Late Hardayal Mahato, 3. Manju Devi, W/o Late Jadu Lal Mahato, 4. Madhu Mahato, S/o Late Jadu Lal Mahato All are residents of village Nichitpur, P.O. –Dhariyo Mahubani, P.S. – Govindpur, District –Dhanbad. ... .... …. Respondents For the Appellants : Mr. Jitendra Kumar Pasari, Advocate ------ ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned counsel for the appellants. 2 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 22.08.2020 passed by the learned District Judge-I, Dhanbad in Civil Appeal No. 31 of 2019 by which in a judgment of reversal, the learned first appellate court has allowed the appeal and declared the right title and interest of the plaintiffs over the suit property and further declared that the sale deed no. 4592 dated 31.08.1995 is null and void to the extent of the land mentioned in the schedule of the plaint and set aside the judgment and decree dated 07.01.2019, passed by the Civil Judge (Junior Division) –I, Dhanbad in Title Suit No. 156 of 2008. 1 Second Appeal No. 231 of 2020 3
Legal Reasoning
The case of the plaintiffs in brief is that the land under Khata No.2 and 22 of village –Nichitpur was recorded in the name of Suku Mahato, Rakhal Mahato and Chakar Mahato under Kokarari right and the said persons were in exclusive possession of the property. They settled 1/4th share in all these lands to Hemia Mahatain, wife of Chakar Mahato on 14.09.1944 by a Registered Deed of Settlement No. 7169 and Hemia Mahatain came in possession over the settled land. The tenure holders namely Suku Mahato and others also settled 1/4th share under Khata No. 2 and 22 to Cherki Mahatain, wife of Rakhal Mahato on the same day vide registered deed of settlement no. 7168 and they also settled half share under the land of Khata No. 2 and 22 of village –Nichitpur to Indarlal Mahto and others on the same day by executing a registered deed of settlement. All the settlees were in joint possession over these lands. Subsequently, there was partition and each of the settlees were in separate possession over the same. In the settlement of 1/4th share in plot no. 811 of total area 6 decimals Hemia Mahatain got 1 ‰ decimals of land towards the eastern portion of plot no. 811. Similarly Cherki Mahatain got 1 ‰ decimals of land in plot no. 811 towards the western side. Cherki Mahatain & Hemia Mahatain constructed their houses over their respective land in plot no. 811 and remained in peaceful possession over the same. The plaintiffs are the descendants of Hemia Mahatain. The plaintiffs came to know that Cherki Mahatain has sold three decimals of land of plot no. 811 to her daughter-in-law -Kaushlya Devi on 31.08.1995 through registered sale deed no.4592 though Cherki Mahatain has no 2 Second Appeal No. 231 of 2020 right, title and interest over three decimals of land of plot no. 811 as she was allotted only 1 ‰ decimals of land of plot no. 811 as the remaining 1 ‰ decimals of land was settled to Hemia Mahatain. Thus according to the plaintiffs, Cherki Mahatain illegally sold three decimals of land to Kaushlya Devi –the defendant. As on 15.12.2006, the defendants claimed the entire three decimals of land on the basis of the sale deed executed by Cherki Mahatain. Hence, the plaintiffs procured the certified copy of the sale deed on 29.08.2008. So the plaintiffs filed the suit for a decree in their favour and against the defendants that the sale deed dated 31.08.1995 being sale deed no. 4592 is null and void to the extent of the land mentioned in the Schedule of the plaint of one and half decimals towards the eastern portion of plot no. 811 which was settled in favour of Hemia Mahtain vide the said registered deed of sale. 4 The defendants in their joint written statement challenged the maintainability of the suit on various technical grounds and pleaded that in the year, 1951 there was partition of the properties according to the shares in the settlement deed of the year 1944. It is then pleaded by the defendants that in the partition, Cherki Mahatain got 03 decimals of land in plot no. 811 and in lieu of that she gave her 1 ‰ decimals of land of plot no. 810 which consisted of total area 7 decimals to Hemia Mahatain. Since Cherki Devi was in possession of 3 decimals of land of plot no. 811 and as the exchange was made amicably with consent, hence she is competent to execute the sale deed in respect of 3 decimals of land including 1 ‰ decimals of suit 3 Second Appeal No. 231 of 2020 land of plot no. 811 in favour of the defendant no.1 –Kaushlya Devi. The defendants claimed that they are in legal possession of the land described in the Schedule of the plaint by virtue of the sale deed No. 4592 dated 31.08.1995 executed by Cherki Mahatain and the plaintiffs never raised any dispute over the same. . 5 On the basis of the rival pleadings of the parties, the learned trial court framed the following ten issues:- 1. 2. 3. Is the suit maintainable in its present form? Is there any cause of action for the present suit? Is the suit barred by principle of waiver, estoppel and acquiescence? Is the suit barred by law of limitation? Is the suit bad for non-joinder and misjoinder of necessary parties? 4. 5. 6. 7. Whether the plaintiff has got any right, title, interest over the suit Is the suit properly valued or not? land mentioned in schedule of the plaint? 8. Whether the Sale Deed No. 4592 dated 31.08.1995 is null & void to the extent of the land mentioned in Schedule of the plaint? 9. Whether the defendant did not acquire any title over the schedule land on the basis of Sale Deed dated 31.08.1995 No. 4592? 10. Whether the plaintiffs are entitled for cost or any other relief? 6 The learned trial court considered the oral testimony of the six witnesses examined by the plaintiffs and the documents which have been marked Ext. 1 to 1/b series and Ext.2 and also the deposition of the D.W.1. 7 The learned trial court first took up issue no.7 and after considering the evidence in the record, came to the conclusion that the plaintiffs have failed to prove that they have valid right, title and 4 Second Appeal No. 231 of 2020 interest over the suit land and decided the issue no.7 against the plaintiffs. The learned trial court next took up issue nos. 8 & 9 together and concluded that as the plaintiffs have failed to prove valid title or right over the suit land, hence they do not have right to get declaration that the sale deed no. 4592 dated 31.08.1995 was null and void and decided the issue no.8 against the plaintiffs and in the absence of any counter-claim on behalf of the defendants, the trial court did not answer the issue no.9. The learned trial court next took up issue no.5 and after considering the materials in the record, came to the conclusion that all sons of Hemia Mahatain and Chakar Mahato are necessary parties to the suit where declaration of right, title and interest over the schedule land is being sought. Hence, the suit is bad for non-joinder of necessary parties. The learned trial court then took up issue no.3 & 6 together and as the defendants did not adduce any evidence, decided the said issues against the defendants. The learned trial court then took up issue no.2 and came to the conclusion that the plaintiffs had a valid cause of action to institute the suit. The learned trial court then took up issue no.4 and held that the suit is within the period of limitation. The learned trial court then took up issue no.1 and held that the suit is maintainable in the present form. The learned trial court lastly took up issue no.10 and held that in view of its finding of issue nos. 7, 8 & 5, the plaintiffs are not entitled for any relief as claimed for and dismissed the suit on contest but without costs. 8 Being aggrieved by the said judgment and decree passed by 5 Second Appeal No. 231 of 2020 the trial court, the plaintiffs filed Civil Appeal No. 31 of 2019 in the court of Principal District Judge, Dhanbad which was ultimately heard and disposed of by the learned first appellate court vide the impugned judgment and decree. 9 The learned first appellate court formulated the following point for consideration: “Are the plaintiffs/appellants entitled for declaration of their right, title and interest over the suit property and also that sale deed no. 4592 dated 31.08.1995 is null and void to the extent of the land mentioned in the schedule of the plaint?” 10 The learned first appellate court made independent appreciation of the evidence in the record and considered that there was no dispute between the parties that in the year 1944, as per the settled deed 1 ‰ decimals of plot no. 811 was allotted to Cherki Mahatain towards the west and another 1 ‰ decimals was given to Hemia Mahatain towards the east and rest 3 decimals of land of plot no. 811 to Santosh Mahato is living. The plaintiffs came to know about the sale of three decimals of land including the suit land by Cherki Mahtain in the year 1995 to Kaushlya Devi. From the Ext.1/a and Ext.1/b as also the admitted fact of the parties that 1 ‰ decimals of land each from plot no.811 consisting of total 6 decimals of land was settled in favour of Cherki Mahatain and Hemia Mahatain which is also evident from Ext. 1/a. The learned first appellate court considered the sale deed executed by Cherki Mahatain in favour of the defendant no.1 marked Ext.1 and found that the executant of the 6 Second Appeal No. 231 of 2020 said sale deed has averred in the said sale deed that she acquired the entire 3 decimals of land through settlement deed no. 7168 dated 14.09.1944 (Ext. 1/b) though as per Ext.1/b, Cherki Devi was settled 1/4th interest in plot no. 811 which indicates, she was settled only with 1 ‰ decimals of land out of plot no. 811. Thus the learned first appellate court concluded that in the Ext.1, Cherki Mahtain has not mentioned the source of acquisition of the remaining 1 ‰ decimals of land. The learned first appellate court also considered that though as per the pleadings of the defendants in their written statement, Cherki Mahatain exchanged the suit land with Hemia Mahatain in the year, 1951 but the same was not mentioned in the sale deed marked Ext.1 executed by Cherki Mahatain in favour of the defendant no.1. The learned first appellate court also considered that as per Section 118 of the Transfer of Property Act, exchange of land can only be made as per the provisions of Transfer of Property Act and the deed of exchange of document is mandatorily registrable and by thus considering since Cherki Devi was not having any right, title or interest in respect of 1 ‰ decimals of suit land of plot no. 811 which was settled in favour of Hemia Mahatain in the settlement admittedly by the defendants and as the defendants failed to establish that Cherki Mahatain was the owner in respect of the entire 3 decimals of land in respect of which Ext.1 was executed, the learned first appellate court dismissed the appeal and decreed the suit of the plaintiffs as already indicated above. 11
Legal Reasoning
Mr. Jitendra Kumar Pasari, learned counsel for the 7 Second Appeal No. 231 of 2020 appellants submits that the learned first appellate court could not properly appreciate the evidence in the record in its right perspective and also failed to consider that if not for any exchange between Hemia Mahatain and Charki Mahatain then under what circumstances, the descendants of Hemia Mahatain and Charki Mahatain are occupying the house over 7 decimals of land over plot no. 810 though erroneously, because of typographical error in the proposed substantial question no.2 as mentioned in the appeal memo of this second appeal, the same has been mentioned as 3 decimals. It is next submitted by Mr. Pasari that the learned first appellate court erroneously held that in the absence of any registered deed of exchange between Charki Mahatain and Hemia Mahatain, no right, title and interest in respect of the suit land accrued to Charki Mahatain even though the amicable partition between Hemia Mahatain and Charki Mahatain in the year 1951 is not disputed. It is next submitted that the trial court erred by not allowing the certified copy of the Revisional Survey Khatiyan held in the year 1971 by way of additional evidence by rejecting MCA No. 24 of 2020. Hence, it is submitted that the impugned judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court be restored after formulating appropriate substantial question of law. 12 Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that Section 118 of the Transfer of Property Act, 1882 defines 8 Second Appeal No. 231 of 2020 exchange which reads as under:- “118. “Exchange” defined.—When two persons mutually transfer the ownership of one thing for the ownership of another neither thing or both things being money only, the transaction is called an “exchange”. A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale” The plain reading of section 118 of the Transfer of Property Act, 1882 makes it crystal clear that transfer of property by way of exchange can be made only in the manner provided for transport of property by sale. In other words, as a valid sale of a tangible immovable property worth more than ₹ 100/-can only be done by way of a registered sale deed, so this mandatory requirement of registration of the instrument by which a valid sale can be effected, is squarely applicable to transfer of property by way of an exchange. 13 Perusal of the record reveals that, it is the specific case of the defendants that Charki Mahatain got additional 1 ‰ decimals of land by way of exchange. It is a settled principle of law that partition is not an exchange as has been held by the Hon’ble Supreme Court of India in para -27, in the case of Jatru Pahan and another v. Mahathma Ambikajit Prasad and another, reported in AIR 1957 PAT 570, which reads as under:- “27. A partition of joint property, like the present case is not even an "exchange" within the meaning of section 118 of the Transfer of Property Act. So as to attract section 10 of the Act "Exchange" has been defined in section 118 of the Act. When two persons mutually transferred the ownership of one thing for the ownership of another. Neither thing, or both things being money only, the transaction is called an "ex change". Therefore, obviously in the case of an exchange, both the parties have no interest in the properties exchanged. If a person gives to exchange his property, in that property the other person has no interest as long as it is not given to the other in exchange. 9 Second Appeal No. 231 of 2020 The ownership of one party must be exclusive of the ownership of the other, so that a partition is not an "exchange’’. The usual type of family settlement by which each party takes a share by virtue of an antecedent title does not involve an alienation, and does not fall within the definition of an "exchange". In my opinion, therefore, the present document cannot be considered even as an "Exchange" so as to come within the mischief of S. 10 of the Act. This view is supported by Gyannessa v. Mobarakannessa, ILR 25 Cal 210 (J), Satya Kumar Banerjee v. Satya Kripal Baner jee, 10 Cal LJ 503 (K); AIR 1946 Cal 129 (H); and observations of Wort, J., in the Division Bench case of Mohammad Yohiya v. Mt. Bibi Soghra, AIR 1937 Pat 232 at p. 234 (L).” (Emphasis supplied) It is a settled principle of law that in case of tangible immovable property of the value of one hundred rupees and upwards, the transfer by way of exchange can be made only by registered instrument. 14 Now coming to the facts of the case, it is admitted case of both the parties that the suit land was settled in favour of Hemia Mahatain. Since the defendants have pleaded in the written statement that Charki Mahatain got the suit land in exchange, so the burden was obviously upon the defendants to establish the same. As rightly observed by the learned first appellate court; in the recital of the sale deed marked Ext.1., the source of acquisition of the suit land by Charki Mahatain has not been mentioned rather, it has been mentioned that Charki Mahatain acquired the entire 3 decimals of land sold by her vide the Ext.1 including the suit land of 1 ‰ decimals; by the registered deed of settlement marked Ext. 1/b. The recital in the registered said deed marked Exhibit-1, that Charki Mahatain acquired the entire 3 decimals of land sold by her vide the Ext.1 by the registered deed of settlement marked Ext. 1/b; is not a fact as vide Ext.1/b, the suit land has not been settled in favour of 10 Second Appeal No. 231 of 2020 Charki Mahatain, which is claimed to be part of the land sold by Exhibit-1. In the considered view of this Court, there was no justification for the first appellate court to enter into a roving enquiry as to why and who is in possession of a plot number 810 as the same was not the subject matter of the suit. 15 So far as the contention of the appellants regarding rejection of the prayer to adduce additional evidence by bringing on record, the certified copy of the Record of Rights of Khata No. 113, Plot No. 1155 and Khata No. 97, Plot No. 1156 are concerned, the learned first appellate court did not allow the same to be brought on record by way of additional evidence on the ground that the same were not pleaded by the defendants as the Khata Number and Plot Number which were mentioned in the certified copy of Record of Right of sought to be adduced by way of additional evidence did not find place in the pleadings of either of the parties before the trial court. It is a settled principle of law that if any additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent and further Under O. XLI, R. 27 of the Code of Civil Procedure, 1908, the appellate Court must require the evidence sought to be adduced by way of additional evidence, to enable it to pronounce judgment as has been held by the Hon’ble Supreme Court of India in the case of Arjun Singh vs Kartar Singh and others, reported in AIR 1951 SC 193, para 7 of which reads as under: “7.It was strenuously argued by the learned counsel for the applt. that it was not open to the H. C. to interfere with the discretion exercised by the Dist. J. in allowing additional evidence to be adduced and that even assuming that there was an erroneous finding of fact, it must stand final as a second appeal can be entertained only on the specific grounds mentioned in S. 100, Civil P. C. There is, however, a fallacy underlying this argument. The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in O. 41, R. 27, Civil P. C. If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise 11 Second Appeal No. 231 of 2020 of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent. Under O. 41, R. 27, it is the appellate Ct. that must require the evidence to enable it to pronounce judgment. As laid down by the P. C. in the well-known case of Kessowji v. G. I. P. Railway, 34 I. A. 115:(31 Bom. 381(P. C.),"the legitimate occasion for the appln. of the present rule is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Ct., of fresh evidence and the appln. is made to import it;"and they reiterated this view in stronger terms even in the later case of Parsotim v. Lal Mohan, 58 I. A 254 : (A. I. R. (18) 1931 P. C. 143). The true test, therefore, is whether the appellate Ct. is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.” (Emphasis supplied) So this Court is of the considered view that there is no illegality committed by the learned first appellate court in rejecting the prayer for adducing the additional evidence of a document about which there is no pleadings by either of the parties as it is a settled principle of law that evidence in absence of any pleading is not admissible. 16 After considering the materials in the record, this court is of the considered view that as the defendants have failed to establish that there was a valid exchange of the suit land between Hemia Mahatain and Cherki Mahatain and as the finding of fact arrived at by the learned first appellate court being final court of facts has not been made by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material nor the finding of fact arrived at by the learned first appellate court being the final court of facts outrageously defies the logic as to suffer from the vice of irrationality incurring the vice of being perverse. 17 Accordingly, this Court finds that there is no substantial question of law involved in this appeal. Thus this appeal being 12 Second Appeal No. 231 of 2020 without any merit is dismissed but under the circumstances without any costs. 18 Let a copy of this Judgment be sent to the court concerned forthwith. High Court of Jharkhand, Ranchi Dated the 25th January, 2023 AFR/ Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 13