The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No.533 of 2018 ------ 1(a). Mamta Shrama 1(b). Rasika Pathak 1(c). Ruchika Kumari 1(d). Prabal Pratap Versus 1. Pankaj Kumar Mahatha 2. Bikram Kumar Mahatha 3. Pushpa Kumari 4. Sat Rupa Devi 5. Bhaduri Mahato .... .... …. Appellants .... .... .... Respondents CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellants For the Respondents : Mr. Rahul Kumar Gupta, Advocate : Mr. Ram Prakash Singh, Advocate ------ Order No.10 / Dated : 30.04.2024 1. The judgment and decree dated 28.09.2018, passed in Title Appeal No. 08/2015, whereby and whereunder, the judgment and decree passed in
Legal Reasoning
Title Suit No. 76/2003 was affirmed, is under challenge in this second appeal. 2. Parties will be referred to their original placement in the suit and shall include their heirs and descendants substituted at different stages. 3. The plaintiff filed the suit for declaration of right, title, interest and confirmation of possession over the suit property fully detailed in the plaint on the basis of registered deed of sale on 15.05.1988, and for further declaration that the sale deed executed by defendant no. 2 in favour of defendant no.1 on 29.03.1985 was forged, fabricated and inoperative. A further prayer for permanent injunction has also been made. 4. The suit land comprises an area of 03 decimals under Plot No. 345, Khata No. 48 of Mouza Kamaldih which the plaintiff had purchased from Telotama Devi and Jagadamba Prasad Singh on 15.05.1988. 5. This land was part of 29 decimals of land of the said plot which was jointly recorded in the name of Mohar Mahto, Ahlad Mahto, Nehal Mahto, Ganesh Mahto, Samsher Mahto, Bagru Mahto and Khedan Mahto. 6. The interest of the recorded tenants was inherited by altogether ten persons as stated in the plaint including Bhaduri Mahato, son of Late Sanichar Mahto. It is not in dispute that Bhaduri Mahato was the heir and descendant of 1 recorded tenant. All the ten heirs and descendants sold 14 ½ decimals of land by registered sale deed No. 2677 dated 11.09.1974 to Ram Chandra Prasad and remaining 14 ½ decimal was sold by them vide sale deed No. 2675 dated 11.09.1974 to Ram Narayan Singh. 7. Ram Chandra Prasad sold three decimal of land out of 14½ decimal to Telotama Devi and Jagadamba Prasad Singh vide registered Sale Deed No. 9261 dated 29.09.1975 and the plaintiff claimed to have purchased the said land from them and after the said purchase, the land was duly mutated in his name. 8. The main contention of the answering defendants is that the suit land has not been sufficiently identified in the plaint as the boundary has not been given. Further, Telotama Devi and Jagdamba Prasad Singh were not the lawful owners of the suit property nor did they transfer any valid right title to the plaintiff. The alleged deed bearing No.4794 dated 16.05.1988 was a forged and fabricated document. It is also pleaded that the deed dated 10.09.1974 in favour of Ram Chandra Prasad was forged and fabricated and their vendors had no right, title and interest over the suit property to convey the title to Ram Chandra Prasad. Bhaduri Mahato had only right over 7½ decimal of land including the suit property and the sale deed dated 10.09.1974 was not acted upon. 9. On the basis of the pleadings of the parties, following main issues were framed. Issue No. VI — Whether the plaintiff has acquired legal and valid title over the suit property on the basis of sale deed No. 4794 dated 16.05.1988 and thereupon came in possession of the suit property? 10. Learned trial Court answered the issue in negative for the reason that the plaintiff had failed to prove the chain of title as because Exhibit 2 which was the sale deed dated 16.05.1988 executed in favour of Telotama Devi and Jagadamba Prasad Singh was incomplete having only two pages without concluding page. In view of incomplete evidence, the suit was dismissed. 11. On 25.01.2016, learned First Appellate Court allowed the application and marked the following documents as Exhibits. i. Certified copy of sale deed no. 2677 dated 11.09.1974 ii. Sale deed no. 9261 dated 29.09.1975 iii. Sale deed no. 4794 dated 16.05.1988 2 12. The main contention of the appellant before this Court is that learned trial Court although allowed the petition under Order XLI Rule 27 of C.P.C. admitting this evidence, but they were not considered at all while adjudicating the right, title and interest of the plaintiff in appeal. 13. This appeal has been admitted on the following substantial questions of law: i. Whether the learned courts below have failed to take note of the effect of sale deed dated 11.09.1974 i.e. Exhibit 2/A by which Bhaduri Mahato had already transferred land in Plot No. 345? ii. Whether the courts below have failed to note that oral evidence was not required in terms of Section 92 of the Evidence Act where there were documentary evidences? iii. Whether the learned First Appellate Court has committed a grave error of record by observing in page-29 of the judgment that the plaintiff has not adduced the sale-deed of the vendor Tilotama Devi and Jagdamba Prasad Singh though the sale- deeds executed by Tilotma Devi and Jagdamba Prasad Singh have been marked Ext. 4/2 and 4 vide order dated 25.01.2016 passed in Title Appeal No. 08 of 2015 by way of additional evidence? 14. As per the plaintiff’s case, the chain of title by which he acquired right, title and interest over suit land comprising 03 decimals in Plot No.345, Khata No.48 is as under:- I. Sale Deed No.2677 dated 11.09.1974 (Exhibit 4) executed by Bandhu Mahto, Charku Mahto, Kamal Mahto, Jodhan Mahto, Bideshi Mahto, Jhumri Mahato, Manghi Mahato, Bhaduri Mahato, Rengia Mahatain, Kuili Mahatain in favour of Ram Chandra Prasad. II. Sale Deed No.9261 dated 29.09.1975 executed by Ram Chandra Prasad in favour of Tilottama Devi and Jagdamba Prasad Singh, 03 decimal of Plot No.345, Khata No.48, Exhibit 4/1. III. Sale Deed No.4794 dated 16.05.1988, Exhibit 4/2, executed by Tilottama Devi and Jagdamba Prasad Singh in favor of original plaintiff. 15. It is definite pleading of the plaintiff as averred in para 4 of the plaint that remaining 14½ decimal of land in Plot No.345 was sold by aforementioned vendors of Sale Deed No.2677 dated 11.09.1974 to Ram Chandra Prasad and by another Sale Deed No.2675 dated 11.09.1974 in favour of Ram Narayan Singh. 16. It is however pleaded that both these sale deeds were vitiated because 3 of forgery and they were fabricated document. The existence and execution of these documents were not denied. The plaintiffs filed the petition before the learned first appellate Court under Order XLI Rule 27 of the C.P.C. to bring on record Sale Deed No.2675 dated 11.09.1974 which was rejected by the learned first appellate Court vide order dated 01.06.2016. Although it has been pleaded by the defendants that these deeds executed on 11.09.1974, were forged and fabricated, but no suit was filed for cancellation of these deeds or any evidence has been laid during trial or in First Appeal to support their averment regarding the deeds being forged and fabricated. 17. If these two sale deeds are accepted to have been executed and not cancelled, the result is that Bhadari Mahto was completely divested of any right, title and interest after execution of these sale deeds to execute the sale deed in 1985 in favour of defendant no.1. 18. The main contention raised by the learned counsel on behalf of respondents is that at the time of execution of the sale deed in 1974, the defendant no.2 namely Bhaduri Mahto was a minor and sale deed executed by minor is ab initio and void in terms of Section 11 of the India Contract Act. On the basis of sale deed executed by defendant no.2 in favour of defendant no.1, he came into actual physical possession of the land and the said land was duly mutated in his name, entries were made in Register II and he has been paying rent to the State. In support of contention regarding possession, Exhibit C- Revenue Receipt, Exhibit G-Khatiyan is relied upon. 19. The present suit has been filed interalia for the relief of confirmation of possession which includes recovery of possession and the suit cannot be dismissed on the technical ground that consequential relief has not been prayed for. Pasupuleti Venkateswarlu v. Motor and General Traders, (1975) 1 SCC 770 at page 772 wherein it has been held that if a fact, arising after the lis has come to Court and has a fundamental impact on the right to relied or the manner of moulding it, is brought diligently to the notice of the Court and it cannot be ignored. His Lordship V.R. Krishna Iyer speaking for the majority held “4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the 4 to principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice — subject, of course, just the absence of other disentitling circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.” factors or Further, the High Court of Madhya Pradesh has also held in Santosh Chandra and Ors Vs Gayansundarbai and Others AIR 1975 M.P. 193 that if plaintiff was in possession of suit land on the date of institution of suit, he/she is not required to ask for consequential relief along with relief for declaration. This Court has also held in Jaikishan Chaudhari Vs Ramdeo Chaudhari, 2005(3) JCR 188 (Jhr) that Confirmation of possession include recovery of possession. 20. It is a settled principle of law that possession ordinarily goes with title. The exceptions are very few and requires specific pleadings and preferably documents to support which is not there in this case. Thus, consequential relief cannot be denied to a title holder against one who had no semblance of title on the technical ground that consequential relief was not prayed for. 21. The argument advanced on behalf of the respondents cannot be accepted for the reason that at no point of time Defendant no.2 moved Court of competent jurisdiction for cancellation of the sale deeds executed in the year 1974, in which he was also one of the co-seller. Mere assertion that the said deed was vitiated by fraud or that the seller was a minor at the time of its execution is not sufficient. There is a presumption in favour of due execution of his sale deed and the said presumption can only be rebutted by leading evidence on the point. 22. The trial Court dismissed the Suit of the plaintiff only on the 5 technical ground of non-production certain concluding pages of the sale deed, which complete the chain of title in favour of the appellant. Relevant documents were produced before the first appellate Court, which allowed them under order XLI Rule 27 of the C.P.C. However, it is surprising that the effect of these documents have not been considered by the First appellate Court. 23. Under Section 47 of the Registration Act, title in a property passes on the date of execution of the sale deed. The title of the Defendant no.2 passed to the purchasers of the land, pursuant to the execution of sale deeds on 11.09. 1974, and thereafter, he had no title to transfer it to Defendant no.1 by sale Deed No.2827 of 1985. No one can transfer a valid title than he has. 24. It is settled law that mutation does not create or extinguish title. Mutation in favour of Defendant no.1 cannot be regarded as a proof of Title. 25. It has been argued by the learned counsel on behalf of the Respondents that both the learned Courts below in their finding have held that defendant no.1 was in physical possession over the land in question. As the defendant no.1 has been found to be in actual physical possession therefore, a declaration of title will be hit under Section 34 of the Specific Relief Act. 26. From perusal of the trial Court as well as the first appellate Court judgment, it appears that instead of recording an independent finding of possession, both these Courts have banked and accepted the finding of possession recorded in a Section 145 Cr.P.C. proceeding. This cannot be called a concurrent finding of fact of possession. Therefore, the argument on behalf of the Respondents to frame another substantial question of law is not allowed. In the present case, a prayer for confirmation of possession has also been made which will mean suit for recovery of possession, in the event of dispossession during the pendency of suit or appeal. 27. Fact remains that, the edifice of claim of title has been raised by Defendant no.1 on a sale deed executed by Defendant no.2 in the year 1985, which he had no title in the property to transfer, as he was divested of title on execution of two sale deeds executed on 11.09.1974. Plaintiff was the bonafide purchaser for consideration of the suit property and has proved the chain of title by which he acquired title from Ram Chandra Prasad in whose favour the sale deed was executed on 11.10.1974 by defendant no.2 and 6 others. Under the circumstance, the point for determination is answered in favour of the appellant/plaintiff and the suit is decreed in their favour on contest. Sale Deed No. 2827 dated 29.03.1985 executed by Defendant no.2 to Defendant no.1 shall have no binding effect. Impugned judgment and decree is set aside. Appeal is allowed. Parties will bear their own cost. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, 30th April, 2024 AFR/Anit 7