HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.848 of 2001
JUDGMENT :
This appeal is arising out of the judgment dated 26.07.2001 in A.S.No.9 of 1994 on the file of Senior Civil Judge, Jagtial, Karimnagar District, confirming the judgment and decree of the trial Court dated 08.03.1994, passed in O.S.No.673 of 1987on the file of District Munsif Court, Jagtial.
2. For the sake of convenience, the parties are referred to as arrayed before the trial Court.
3. Heard learned counsel for the appellants as well as the counsel for the respondents and perused the record.
4. The appellants are the plaintiffs in the suit. The original suit is filed for declaration of title and recovery of possession in respect of the suit schedule open land admeasuring 59½ square yards (49.98 square metres) bearing Grampanchayath No.5-57, situated at Kodimial village. It is the specific contention of the plaintiffs that the defendant No.1 was the original owner and possessor of 2 GAC, J S.A.No.848 of 2001 the suit land and the same was sold to the plaintiffs on 10.04.1986 for a consideration of Rs.4,500/- and executed a receipt to that effect. Subsequently, at the request of the plaintiffs, the 1st defendant also executed registered sale deed on 15.09.1987 and since then, the plaintiffs are in peaceful possession and enjoyment of the land. The 2nd defendant is the father of the plaintiffs who divorced their mother few years back and their relations got strained. The 3rd defendant who is the friend of the 2nd defendant, in collusion with the Grampanchayath authorities, started construction over the suit schedule land unauthorisedly from 16.09.1987 and completed it by 01.10.1987 and the same was noticed by the plaintiffs on 01.10.1987. The recitals of the plaint further disclose that defendant Nos.1 to 3 have no right, title or interest over the property and as they refused to restore the possession of the suit schedule land, the plaintiffs are constrained to file the suit.
5. The 1st defendant admitted the contents of the plaint and prayed to decree the suit.
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6. The 2nd and 3rd defendants filed a detailed written statement. The recitals of the written statement disclose that the 1st defendant sold the suit schedule property to the 3rd defendant, his two brothers (M.Laxmi Rajam and M.Rajesham) and to the wife of the 2nd defendant by name P.Rajeshwari for a consideration of Rs.30,000/- on 09.10.1986 and executed an agreement of sale and further delivered possession of the suit scheduled property and the 1st defendant also filed application on the same day to the Grampanchayath informing about the alienation of the suit schedule property and for deletion of his name from the Register of property tax. Further, on 14.10.1986, M.Laxmi Rajam and M.Rajesham have executed an agreement of sale in favour of the 3rd defendant to that effect and the wife of the 2nd defendant also executed an agreement of sale to the 3rd defendant for a consideration of Rs.10,000/- which was also signed by the 2nd defendant. As disputes arose between the 2nd defendant, his wife on one side and with the plaintiffs on the other side in respect of partition of properties owned by the 2nd defendant, the plaintiffs in collusion with the 1st defendant, brought the suit into existence, 4 GAC, J S.A.No.848 of 2001 basing on nominal, sham and fictitious registered sale deeds dated 15.09.1997 and also the receipt dated 10.04.1986 to defeat the rights of the 3rd defendant. The recitals of written statement further disclose that the 3rd defendant obtained permission from the Grampanchayath, Kodimial for construction of the shops/house and completed the construction by the end of August, 1987 and the plaintiffs, who reside in the same village, did not object for the construction being made by the 3rd defendant and moreover, the 1st plaintiff, who was working in Desai Beedi factory, Kodimial, cannot deny the fact of construction. Accordingly, prayed to dismiss the suit.
7. Basing on the pleadings, the trial Court has framed the issues as under:
"1.Whether the plaintiff Nos.1 and 2 purchased the plaint schedule lands from defendant No.1 on 10.04.1986 by paying the consideration and were put into possession of the plaint schedule land by defendant No.1 on the same day ?
2. Whether the receipt dated 10.04.1986 passed by the 1st defendant and the registered sale deed dated 15.09.1987 executed by defendant No.1 in favour of the plaintiff are sham, fictitious and without consideration ?5
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3. Whether the 1st defendant sold the plaint schedule land to the 3rd defendant, his two brothers and the wife of the 2nd defendant and put them into possession of the plaint schedule property on 09.10.1986 under an agreement of sale ?
4. Whether the plaint schedule property transferred in the names of 3rd defendant, his two brothers and wife of defendant No.2 in the property tax register of Grampanchayat, Kodimial on the application dated 09.10.1986 of the defendant No.1 ?
5. Whether the brother of defendant No.3 given up his share in the plaint schedule property in favour of 3rd defendant in lieu of their ancestral house under an agreement dated 14.10.1986 ?
6. Whether the wife of the 2nd defendant by name P.Rajeshwari sold her 1/4th share in the plaint schedule property to the defendant No.3 under the agreement of sale dated 14.10.1986 ?
7. Whether the plaintiff was dispossessed by the defendant from the plaint schedule property during the period from 16.09.1987 to 30.09.1987 by raising illegal constructions over the plaint schedule property in the absence of the plaintiff ?
8. Whether the plaintiff is entitled for recovery of possession of the plaint schedule property ?
9. To what relief ?"
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8. During the course of trial, on behalf of the plaintiffs, PWs.1 to 3 were examined and Exs.A-1 to A-3 were marked. On behalf of the defendants, DWs.1 to 8 were examined and Exs.B-1 to B-17 were marked.
9. After considering the oral and documentary evidence on record, the trial Court has dismissed the suit with a specific finding that the plaintiffs have not purchased the suit land from defendant No.1 on 10.04.1986 and the documents covered under Exs.A-1 to A-3 have not been duly proved, and in fact, the 1st defendant has sold the plaint schedule property to defendant No.3, his two brothers and to the wife of defendant No.2 on 09.10.1986 by putting them into possession and the suit schedule property has been duly transferred in the names of the purchasers in the records of Grampanchayath, Kodimial and that the brother of defendant No.3 gave up his share in the suit schedule property in favour of the 3rd defendant in lieu of their ancestral house under the family agreement-cum-settlement dated 14.10.1986 and further, the wife of defendant No.2 has sold her 1/4th share in the purchased property from defendant No.1 on the same day i.e. 14.10.1986 and 7 GAC, J S.A.No.848 of 2001 consequently, the plaintiffs have failed to establish their dispossession from the suit schedule property. Further finding of trial Court is that the construction was made by defendant No.3 on the suit land is legal and as such, the plaintiffs are not entitled for the reliefs of declaration of title and recovery of possession of the suit schedule land.
10. Being aggrieved by the orders of the trial Court, the plaintiffs have filed an appeal before the Court of Senior Civil Judge, Jagtial.
11. The lower appellate Court, after hearing the rival contentions of the parties and considering the material on record, has framed the following point for consideration:
"Whether the contention of the plaintiff that he purchased the suit property under Ex.A-1/receipt, dated 10.04.1986 is true, genuine and correct or the purchase of the property as contended by the 3rd defendant under Ex.B-1 is valid and binding on the plaintiffs ?"
12. On considering the contentions and material, the lower appellate Court has dismissed the appeal confirming the judgment and decree of the trial Court.
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13. Being aggrieved, this second appeal is filed by the plaintiffs raising the following substantial questions of law along with the grounds of appeal:
"1. Whether the title holder under a registered sale deed should prove his title or a person who is not having registered sale deed in his favour, should prove his title ?
2. Whether under Section 58 of Evidence Act, if execution of the terms of the document are admitted, the proof of the document is necessary ?
3. Whether the Court under Order XII Rule 2 of CPC, the burden of admitting the document lies upon the party in whose favour the concerned person already filed an affidavit admitting the document or it will be made on the other party ?"
14. It is contended by the learned counsel for the appellants that as the 1st defendant has filed his written statement admitting the claim of the plaintiffs, the trial Court ought to have decreed the suit in favour of the plaintiffs, as the plaintiffs possess valid registered document in their favour.
15. It is further contended by the learned counsel for the appellants that both the Courts below have erred in coming to a 9 GAC, J S.A.No.848 of 2001 conclusion that the plaintiffs are not entitled for the reliefs though he is the rightful owner of the property and therefore, prayed to set aside the judgments of the Courts below.
16. On the other hand, the learned counsel for the respondents contended that both the Courts below have given concurrent findings and as no substantial question of law is involved in the second appeal, prayed to confirm the orders of the Courts below.
17. The point that arise for consideration in this appeal is ;
"Whether the Courts below have erred in rejecting the claim of plaintiffs even in spite of having registered sale deed in their favour ?"
18. Admittedly, the trial Court as well as the appellate Courts have considered the entire oral and documentary evidence on record and gave findings on facts that the defendant No.3 is the rightful owner of the property under Ex.B-1 and the plaintiffs failed to establish their right by proving Exs.A-1 to A-3.
19. On perusal of the record, it is evident that Ex.A-1 is the receipt dated 10.04.1986 and Ex.A-3 is the registered sale deed dated 15.09.1987, which came into existence after 17 months of 10 GAC, J S.A.No.848 of 2001 Ex.A-1. Ex.A-1 is hand-written on a half page of white paper in Urdu language. Ex.A-2 is the true translation copy of Ex.A-1. The contents of Ex.A-2 reads as follows:
" RECEIPT I, Syed Khadir Shareef S/o.Asammed Shareef R/o. Kodimial Taluq, Jagtial, hereby execute this receipt to the effect that I have received on this 10th April 1986, total sale consideration of Rs.4,500/- from Pashikanti Narsaiah and Pashikanti Gopal to whom I have sold my land admeasuring 59½ square yards at Kodimial.
Hence, this receipt.
Dated this 10th April 1986.
Sd/- Thumb
Impression
Syed Khadir Shareef. LTI of
Piduguru
Kashiram.
Scribe Sd/-
Self Khaja."
20. It is relevant to mention that any document under Transfer of Property Act, which is worth of above Rs.100/- should be executed on non-judicial stamp paper and registration is compulsory. But, no effort has been made by the plaintiffs to prove that they purchased the property under Ex.A-1. Further, Ex.A-1 does not disclose the details of the property i.e. survey number or about the link documents under which defendant No.1 has received the amount from the plaintiffs. So also, the boundaries of the property were also not mentioned in Ex.A-1. Ex.A-3 is the sale deed dated 11 GAC, J S.A.No.848 of 2001 15.09.1987. If at all the plaintiffs have to establish their right over the property, they ought to have examined the 1st defendant on their behalf, who is the author of Ex.A-1. For the reasons best known to the plaintiffs, the witness to the document was also not examined before the Court to prove Ex.A-1.
21. Therefore, this Court can safely come to a conclusion that the plaintiffs have failed to establish their right over the suit schedule property. Moreover, the substantial questions of law raised by the appellants are under Section 58 of Indian Evidence Act and under Order 12 Rule 2 of CPC.
22. Section 58 of Indian Evidence Act reads as follows:
"Facts admitted need not be proved:- No fact need to be proved in any proceedings which the parties thereto or their agents agree to admit at the hearing or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings.
Provided that the Court may, at its discretion, require the facts admitted to be proved otherwise by such admission."
23. Further, in the judgment of Hon'ble Supreme Court in Union of India v. Ibrahim Uddin1, their Lordships have held that 1 (2012) 8 SCC 148 12 GAC, J S.A.No.848 of 2001 admission of fact must be during trial, before or at hearing and procedure under Order XII CPC must also be followed.
24. It is relevant to mention that the 1st defendant, who is the owner of the suit schedule property, has filed a written statement admitting the claim of the plaintiffs. At the same time, the 1st defendant sold the same property under Ex.B-1 to the brothers of the 2nd defendant and also to the wife of the 2nd defendant, but the 1st defendant, except filing written statement, did not appear before the Court during the course of trial to admit the said fact. Hence, the recitals of the written statement of defendant No.1 cannot be called as admitted facts. Therefore, the question of law under Section 58 of Indian Evidence Act is not available to the plaintiffs.
25. Order XII of CPC deals with admissions. As per Rule 1 of Order XII, any party to the suit may give notice, by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of another party and Rule 2 of Order XII deals with notice to admit the documents, further, Rule 4 deals with notice to admit the facts. In the present case, except the written statement of 13 GAC, J S.A.No.848 of 2001 defendant No.1, there is no notice to the 1st defendant either on admission of case, admission of documents or on admission of facts as stipulated, and therefore, the substantial question of law under Order XII of CPC is also not applicable to the plaintiffs.
26. Further, there is limited scope under Section 100 of CPC while dealing with the appeals by the High Courts. In a Second Appeal, if the High Court is satisfied that the case involves a substantial question of law, then only, the Court can interfere with the orders of the Courts below. In the present case, it is not proper to interfere with the concurrent fact findings of the Courts below, in the absence of substantial question of law. Therefore, the Second Appeal deserves to be dismissed.
27. In the result, the Second Appeal is dismissed confirming the judgment of the Senior Civil Judge, Jagtial, Karimnagar District, in A.S.No.9 of 1994, dated 26.07.2001.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 19.09.2022 ajr