The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.395 of 2019 ------ 1. Mosomat Birja Khatoon, W/o Late Md. Idris, aged about 70 years. 2. Md. Jalil, aged about 40 years, 3. Md. Shamim, aged about 38 years 4. Md. Quayum, aged about 35 years 5. Md. Haidar, aged about 30 years Nos. 2 to 5 All sons of Late Md. Idris, Appellant nos. 1 to 5 are resident of Village –Boro, P.O. –Pachamba, P.S. –Giridih (T), District -Giridih .... Versus Defendants No. 1 to 5/Appellants/Appellants …. .... 1. Salahi Firoj, Son of Dr. Kalim Ansari, resident of Mohanpur (Alakapuri), P.O. –Giridih, P.S. –Giridih(T), District –Giridih. …. .... …. Palintiff/Respondent 1st Set/Respondent 2(a) Raja 2(b) Md. Nawab 2(c) Md. Saheb 2(a) to 2(c) all sons of Late Md. Mumtaz @ Jalil Akhtar, resident of village –Boro, P.O. –Pachamba, P.S. –Giridih(T), District –Giridih. 3. Nuresha Khatoon, W/o Md. Affaque Ansari 4. Md. Salim Akhtar, S/o Late Janab Ali Respondent nos. 3 & 4 are resident of Village –Bhandwadih, P.S. – Giridih (T), District –Giridih. 5. Md. Sadique, Son of Dilawar Mian, Resident of village Bankhanjo, P.O. –Giridih, P.S. –Giridih (M), District -Giridih …. .... …. For the Appellants For the Respondents Defendant No. 6 to 9/Respondent 2nd Set/Respondents ------ : Mr. Arbind Kr. Jha, Advocate : Mr. Prabhash Kumar, Advocate : Mr. Ganesh Ram, Advocate : Mr. Ashish Kumar, Advocate : Mr. R.B. Sinha, Advocate : Mr. S.K. Murty, Advocate ------
Legal Reasoning
PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of concurrence dated 29.07.2019 passed by the learned District Judge- II, Giridih in Civil Appeal No.31 of 2015 by which the learned first 1 Second Appeal No. 395 of 2019 appellate court dismissed the appeal. 3. The brief fact of the case is that the plaintiff filed Title Suit No. 92 of 2008 in the court of learned Civil Judge (Senior Division)- III, Giridih with a prayer for declaration of his right, title and interest and recovery of the suit land. An alternative prayer was made for a decree of Rs.1,32,000/- with reasonable damages/interests pendentelite and till realization of the amount against the defendant nos. 1 to 6 and Rs.10,000/- with reasonable damages/interests pendentelite and till realization be passed in favour of the plaintiff and against the defendant no.7. 4. The case of the plaintiff in brief is that the defendant nos. 1 to 7 approached the plaintiff and persuaded him to purchase the suit land. The defendant no.7 is a land broker. The defendant nos. 2 to 5 are the sons of Late Md. Idrish. The defendant no.6 is the son-in-law of Md. Idrish and the defendant no.1 is the wife of Late Md. Idrish. The defendant nos. 1 to 7 convinced the plaintiff that the suit land was purchased by Md. Idrish by virtue of registered sale deed no. 9493 dated 09.06.1965 from Karu Mian and became the owner of the land and the defendant nos. 1 to 6 having inherited the property of Md. Idrish are the owners of the said land. Believing the defendant nos. 1 to 7, the plaintiff purchased the suit land for a consideration of Rs.1,32,000/- and the defendant no.7 received Rs.10,000/- towards his commission/brokerage in respect of the said land. The sale deed was executed by the defendant no.1 and the defendant nos. 2 to 7 were the witnesses of the said sale deed. In June, 2007 when the plaintiff wanted to dig 2 Second Appeal No. 395 of 2019 foundation for putting compound wall, the defendant no.9 came there and raised objection. The defendant no. 9 claimed that he is the owner of the suit land. A proceeding under Section 144 of the Cr.P.C. was initiated in the court of SDM, Giridih. In the said proceeding defendant no.9 contended that Md. Idrish had already sold 18 decimals of land in plot no.913 on 12.05.1970 to Bibi Mehrun and the niece of Karu Mian namely Bibi Majidan sold 10 decimals of land to Bibi Mehrun. Thus, Bibi Mehrun became the owner of 28 decimals of land in the said plot and the suit plot was included in the purchased land of Bibi Mehrun. Bibi Mehrun died leaving behind her two sons who inherited her property and after partition between them, the said 28 decimals of the land fell to the share of Md. Anish Ansari, son of Bibi Mehrun and Md. Anish Ansari has sold the land to defendant nos. 8 and 9. The plaintiff then confronted the defendant nos. 1 to 7. The defendant nos. 1 to 7 stated that entire 28 decimals of land fell to the share of Karu Mian in the partition with his two brothers namely Chatru Mian and Baso Mian. Karu Mian sold 18 decimals of land to Md. Idrish on 04.01.1965 and Karu Mian further sold 10 decimals of land to Md. Idrish on 09.06.1965 and the said 10 decimals of land was sold by the defendant no.1 to the plaintiff, therefore, there is no defect in the sale in favour of the plaintiff. Hence, the plaintiff filed the suit with the prayer for aforesaid reliefs. 5. In their written statement, the defendant nos.1 to 5 challenged the maintainability of the suit on various technical grounds. It was further pleaded by the defendant nos. 1 to 5 that 3 Second Appeal No. 395 of 2019 after sale of the land by the defendant no.1, plaintiff was put in possession of the suit land. These defendants pleaded that claim of the defendant nos. 8 & 9 are bogus and frivolous and neither the defendant no. 8 & 9 nor Bibi Mehrun or Bibi Majidan have any right, title and interest over the suit land. 6. In their joint written statement, the defendant nos. 7 & 8 also challenged the maintainability of the suit on various technical grounds and it was further pleaded that the plaintiff has neither title nor possession over the suit land and the sale deed executed in favour of the plaintiff dated 31.09.2006 is a forged and fabricated one as the vendor of the said sale deed was not having right, title and interest to transfer the same to the plaintiff. It is then pleaded that the plaintiff has suppressed the facts. These defendants next pleaded that the area of plot no. 913 is 63 decimal and in the amicable partition, an area of 21 decimals each out of the said plot no. 913 was allotted to Karu Mian, Chatru Mian and Baso Mian and they remained in possession of their respective shares. The heirs of Baso Mian sold 7 decimals out of plot no. 811, Khata no.16 and 10 decimals out of plot no. 913 Khata no.71 to Bibi Majidan by registered sale deed and put her in possession. Bibi Majidan sold the said 17 decimals of land to Bibi Mehrun Nisha by registered sale deed no. 12480 dated 11.09.1964 and put her in possession over the same from the date of purchase itself. Md. Idrish also purchased 18 decimals of land from Karu Mian by virtue of registered sale deed no. 48 dated 04.01.1965. Md. Idrish sold the said 18 decimals of land to Bibi Mehrun Nisha vide registered sale 4 Second Appeal No. 395 of 2019 deed no. 11490 dated 12.05.1970 and put her in possession. Thus Bibi Mehrun Nisha became the owner of 28 decimals of land purchased by her by the said two sale deeds. They also pleaded that the son of Mehrun Nisha namely Md. Anish Ansari sold the 28 decimals of land to Nuresha Khatoon and Md. Zalim Akhtar by virtue of registered sale deed no. 8659 dated 13.07.2004 and put them in khas possession. After purchase, the defendant nos. 7 and 8 namely Nuresha Khatoon and Salim Akhtar got their names mutated in the office of Circle Officer and they have been paying rent to the government of Jharkhand and obtaining receipts thereof. The Circle Officer, Giridih also issued Land Possession Certificate to the defendant no.7 & 8 in respect of the suit land. As Karu Mian was having 21 decimals of land which was allotted to him in the partition, so he was not competent to sale 28 decimals of land of plot no. 913 and hence by execution of the sale deed no. 9493 dated 09.06.1965, no right, title and interest has been passed on Md. Idrish, the husband of the defendant no.1 and the said sale deed was also never acted upon. 7. On the basis of rival pleadings of the parties, the learned trial court settled the following six issues:- (1) Whether the suit is maintainable in its present form? (2) Whether the suit land was validly and lawfully transferred by Karu Mian to Md. Idrish by virtue of registered sale deed dt. 09.06.1965, or whether the said sale deed was illegal and void? (3) Whether the defendant no.1 to 6 heirs and successors of Md. Idrish validly sold and transferred the suit land to the plaintiff and plaintiff has valid and subsisting title? (4) Whether the defendant nos. 8 & 9 have acquired valid title and possession of the suit land? (5) Whether the plaintiff is entitled to have possession of the suit land by evicting defendant nos. 8 and 9 from suit land, and if not, whether the plaintiff is entitled to get 5 Second Appeal No. 395 of 2019 refund of the consideration money of Rs.1,32,000/- with reasonable interest from defendant no. 1 and 6 and further whether the plaintiff is entitled to a decree of Rs.10,000/- with damages against the defendant no.7? To what relief or reliefs the plaintiff is entitled to? (6) 8. In support of his case, the plaintiff examined altogether three witnesses and proved the documents which have been marked Ext. 1 to Ext.2/c. On the other hand, from the side of the defendant no.1 to 5, three witnesses were examined but the defendant did not adduce any documentary evidence. From the side of the defendant nos. 8 & 9 also five other witnesses were examined and the defendant nos. 8 & 9 also proved the documents which has been marked Ext. A to C. 9. The learned trial court first took up issue nos. 2 & 3 together and after considering the evidence in the record came to the conclusion that the plaintiff has not been able to prove his entitlement over the suit land and the very genesis of the case that Karu Mian was allotted 28 decimals of land in his share in the partition could not be proved by the plaintiff and the plaintiff has also failed to prove the subsisting title and possession of his vendor over the suit land and decided the issue nos. 2 & 3 against the plaintiff. The learned trial court next took up issue no. 4 and after considering the evidence in the record, as the plaintiff has not filed any counter claim, the learned trial court thought it proper not to decide the issue no. 4 separately. The learned trial court then considered issue no.5 & 6 together and after considering the evidence in the record and Section 55 (1) (f) and Section 55 (2) of the Transfer of Property Act went on to hold that the plaintiff is 6 Second Appeal No. 395 of 2019 entitled to refund of his consideration money of Rs.1,32,000/- from the defendant no.1 and the legal heirs on the ground of not having title and possession over the suit land. The learned trial court further held that the plaintiff could not produce any cogent and reliable evidence regarding payment of Rs.10,000/- to the defendant no.7, hence went on to hold that the plaintiff is not entitled for the relief against the defendant no.7 and held that the plaintiff is only entitled to get Rs.1,32,000/- from the defendant no.1 and the defendant nos. 2 to 6. Lastly, the learned trial court took up issue no.1 and went on to hold that the suit is maintainable in its present form and decreed the suit in respect of alternative relief and directed the defendant no. 1 and 2 to 6 to return the consideration amount of Rs.1,32,000/- along with interests of 6% per annum from the date of decree till payment to the plaintiff. 10. Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Civil Appeal No.31 of 2015 in the court of Principal District Judge, Giridih which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 11. The learned first appellate court on the basis of the materials available in the record and the submissions made before it, formulated the following four points for determination:- “I. Whether the plaintiff is entitled for declaration of his subsisting title and recovery of possession over the suit land on the basis of sale deed executed by defendant no.1 Mosomat Birja Khatoon on 21.09.2006? II. Whether the Karu Mian had right and title to execute a sale deed in favour of Md. Idrish on 09.06.1965 in respect to the suit land? III. Whether the plaintiff is entitled to get refund of his 7 Second Appeal No. 395 of 2019 consideration money of Rs.1,32,000/- & Rs.10,000/- with interest from defendant no.1 & defendant no.7? IV. Whether the judgment and decree passed by the learned court below is sustainable in the eye of law which warrants any interference by this Court?” 12. The learned first appellate court took up the point for determination nos. I & II together and after making independent appreciation of the evidence in the record came to the conclusion that as the plaintiff has not brought any evidence in the record to show that Karu Mian had been allotted 28 decimals of land; as such, the sale deed executed by Karu Mian in respect of the land of area 10 decimals of plot no. 913 in favour of Md. Idrish is a void document and Karu Mian has no right to execute a sale deed in respect of the land, which was in excess than his allotted share and went on to hold that the defendant no.1 has no right to execute any sale deed in favour of the plaintiff, in respect of the suit land. The learned trial court next took up the point for determination no. III and considering the evidence in the record, from which it was established that the defendant no.1 even though had no right to sale the suit land purchased by her husband Md. Idrish from Karu Mian, held that such sale deed is void ab initio and Md. Idrish has not acquired any title on the basis of the sale deed executed in his favour. Therefore, the defendant no.1 has also no right to sell the property. Hence, the plaintiff is entitled to get the return of the consideration money of Rs.1,32,000/- from the defendant no.1 and her legal heirs. Lastly, the learned first appellate court took up point for determination no. IV and confirmed the judgment and decree passed by the learned trial court and dismissed the appeal. 8 Second Appeal No. 395 of 2019 13. It is submitted by the learned counsel for the appellant that the direction given by the courts below to refund the consideration amount to the plaintiff is illegal, as even though the courts below have held that the plaintiff has not been able to prove his entitlement to the suit land and as the plaintiff after purchase got his name mutated in the Records of the State. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiff be dismissed after formulating appropriate substantial question of law. 14. Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that it is the admitted case of the defendant nos. 1 to 6 who are the appellant of this second appeal that the defendant no.1 with the consent of defendant nos. 2 to 6 has sold the suit land to the plaintiff for a consideration of Rs.1,32,000/-. In the said Title Suit No. 92 of 2008, it was the case of the defendant no.1 to 5 that their ancestor Md. Idrish had acquired title over the suit land which they have sold to the plaintiff. Both the courts below have arrived at the conclusion that the plaintiff has failed to establish that she has any entitlement over the suit land. The reason being Md. Idrish did not have any right, title and interest in respect of the suit land to be transferred by the defendant no.1 as well as the defendant nos. 2 to 5. So, such finding of both the courts below that the plaintiff has not been able to prove his entitlement over the suit land is based on the failure of the defendant nos. 1 to 5 to prove their entitlement to the suit land. Under such circumstances, as the 9 Second Appeal No. 395 of 2019 defendant nos. 1 to 5 even though they had no right, title and interest over the suit land but still by way of deceit having cheated the plaintiff by inducing him to purchase the suit property for consideration of Rs.1,32,000/-; in the considered opinion of this Court, such a judgment cannot be termed as perverse, warranting interference by this Court in exercise of its power under Section 100 of the Code of Civil Procedure. 15. It is also pertinent to mention here that such concurrent finding of fact that the plaintiff including the defendant nos. 1 to 5 failed to put forth sufficient evidence to establish their entitlement over the suit land has not been arrived at by excluding any admissible evidence or considering any inadmissible evidence nor such finding of fact can be termed as outrageously defying any logic incurring the blame of being perverse. Under such circumstances, this Court is of the considered view that there is no substantial question of law involved in this appeal. 16. Accordingly, this appeal being without any merit is dismissed. 17. Let the copy of the Judgment be sent to the learned court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 27th November, 2024 AFR/ Sonu-Gunjan/- 10 Second Appeal No. 395 of 2019