Bombay High Court
Jugnabi W/O Sk.Chand & 1 Another vs Jamilakhanam W/O Abdul Rasaque ... on 2 September, 2015
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 405 of 1999
Appellants : 1) Jugnabi w/o Sk. Chand, aged about 52
years,
2) Rukshanabi d/o Sk. Chand, aged about
ig 21 years,
Both residents of Buldana
versus
Respondents : 1) Jamilakhanum w/o Abdul Rasaque Ansari,
aged about 39 years, Occ: Household
2) Sk Sharif Sk. Chand, aged about 24
years .... ..... Deleted
Both residents of Ward No. 7, Buldana
Mr Kuldeep Mahalle, Advocate h/f Mr R. L. Khapre, Advocate
for appellants
None appears for respondents
Coram : A. P. Bhangale, J
Dated : 2nd September 015
Judgment
1. This appeal questions judgment and order passed in Regular
Civil Appeal No. 69 of 1997 passed by the Joint District Judge, Buldana
whereby the appeal came to be dismissed and judgment and order dated
11.4.1997 passed by the Joint Civil Judge, Junior Division, Buldana came
to be confirmed.
2. This second appeal was admitted on the following substantial
question of law :-
"Whether in absence of production of sale deed alleged to
be executed by Mehtabbi in favour of Sk. Rahim, can the
finding of title be given in favour of Sk. Rahim only on the
basis of index entry even without adducing secondary
evidence of said sale deed and proof of due execution and
attestation of said sale deed ?"
3. Plaintiff (respondent) Jamila Khanam filed Regular Civil Suit
No. 322 of 1993 for possession of two rooms described in paragraphs 5
and 6 of the plaint. According to plaintiff, she purchased Plot No. B-95,
Sheet No. 13-B, area 44.1/2 square feet along with house standing
thereon from Sheikh Rahim Sheikh Chand on 22.2.1989 by a registered
sale deed for a consideration of Rs. 12,000/-. Sheikh Rahim was son of
present appellant no. 1 and brother of appellant no. 2. Out of the said
house, present appellants/defendants no. 1 & 3 were residing in two
rooms described in plaint paragraphs 5 and 6. At the time of execution
and registration of sale deed, defendants had agreed to vacate those two
rooms within 4-6 months as they had no immediate alternate
arrangement. Plaintiff allowed them to occupy without any payment of
rent/licence fee etc. However, defendants were not vacating the suit
rooms despite verbal demands from plaintiff. She then issued registered
notice to her, but in vain. Hence, the suit came to be filed.
4. Defendants filed written statement and denied the claim of
plaintiff. They alleged that vendor of plaintiff Sheikh Rahim had
purchased the property from one Mehtabee who was not absolute owner
of the property and thus not competent to sell the same to Sheikh Rahim.
They alleged that consequently, plaintiff cannot become owner of property
in question by virtue of sale deed in her favour and she cannot call upon
the defendants to vacate suit rooms. They prayed for dismissal of suit.
5. Plaintiff examined her husband Abdul Razzak; defendant no.
2 Sheikh Rahim while defendants no. 1 and 3 (present appellants)
examined defendant no.1 Jugnabi.
6. Learned trial Judge after hearing the parties, held that
plaintiff is owner of suit property and that plaintiff is entitled to recover
possession of two suit rooms from defendants and thereby decreed the
suit. Appeal under Section 96 CPC filed by present appellants as against
that judgment and order has failed, as aforesaid.
7. Learned counsel for appellants argued mainly that alleged
sale deed in favour of plaintiff was not produced by her before the trial
Court and proved in evidence and, therefore, in absence of basic
document of title, it cannot be said that plaintiff became owner of
property including two suit rooms. He placed reliance on the following
rulings :
(1) Mt Gulab Devi v. Monji Ram and anr
(AIR 1919 Lahore 156)
(2) A.L.R.M. Arunachalam Chettyar v. Ko Tu Maung & anr
(AIR 1933 Rangoon 174)
(3) Moran Mar & anr v. Most Rev. Mar Poulose & ors
(AIR 1954 SC 526)
(4) Chakicherla Audilakshmamma v. Atmakuru Ramarao & ors
(AIR 1973 AP 149)
8. Learned counsel for appellants strenuously contended that a
person who sets up a title to property by purchase must prove that his
vendor had a title in the property sold. He further contended that where
a suit by a purchaser of property for possession is contested by the person
in possession on the ground that plaintiff's vendor had no title to the
property, the onus is on the plaintiff to prove that his vendor owned by
the suit property. Relying on the aforesaid rulings, learned counsel also
contended that plaintiff in ejectment suit must succeed on the strength of
his own title. This can be done by adducing sufficient evidence to
discharge the onus that is on him irrespective of whether the defendant
has proved his case or not. A mere destruction of the defendant's title, in
the absence of establishment of his own title carries the plaintiffs
nowhere.
9. I have perused the rulings cited by learned counsel for
appellant. There is no quarrel over the principle that one cannot dispute
a proposition of law that plaintiff has to succeed on the strength of his
own title in a suit to recover possession irrespective of denial or otherwise
as defence put forward by the defendant in the suit. In the present case,
it is the contention of learned counsel for appellants that Mehtabee was
not owner of the suit property and no document of title in her favour was
placed on record. According to him, plaintiff had failed to file original
sale deed obtained by Sheikh Rahim from Mehtabee and prove it in
evidence and, therefore, sale deed dated 22.2.1989 executed by Sheikh
Rahim in favour of plaintiff, does not give title to her and she cannot be
said to be owner of property so that she is able to call upon defendants to
vacate two rooms in question.
10. Plaintiff has placed on record certified copy of Index-II
(exhibit 54) maintained in the office of Sub-Registrar, Buldana showing
that Mehtabee executed registered a sale deed dated 11.12.1985 in
favour of Sheikh Rahim (vendor of plaintiff) in respect of Plot No. 95,
Sheet No. 13-B, area 893 square feet. She has filed copy of Tax
Assessment List (exhibit 55) issued by Municipal Council, Buldana
showing that plaintiff's house bearing municipal house no. 40 was
assessed to building tax of Rs. 55/- for the period from 1984-85 to
1987-88. In this Assessment List, name of the owner of property is
shown as Mehatabee and then Sheikh Rahim. Mutation Entry (exhibit
56) from the office of District Inspector of Land Records, Buldana shows
that Sheikh Rahim became owner of House No. 95 by virtue of sale deed
executed by Mehtabee. Death Report (exhibit 57) dated 9.3.1987 in
respect of demise Mehtabee reported by Sheikh Rahim shows that she was
residing in Ward No. 7. There are two legal notices dated 20.4.1989 and
4.10.1993 issued by plaintiff to defendants/appellants wherein she has
made it clear that she has purchased property in question from Sheikh
Rahim and two rooms were allowed to be retained by defendants free of
rent/licence fee for some period. Said notices are at exhibits 60 and 62.
Defendants had refused to receive those notices and there are postal
remarks as such on the envelopes. Notices are deemed to have been
served on them in law.
11. Looking to the above evidence adduced on record, learned
trial Judge recorded a finding that plaintiff proved title of her vendor as
well as her own and that defendants failed to prove that they inherited
suit property from Sheikh Chand. This finding of fact was not disturbed
by the first Appellate Court. First Appellate Court has recorded a finding
that defendants could not falsify sale deed dated 22.9.1989 (exhibit 58)
and defendants' contention cannot be accepted without challenging the
validity of said sale deed. First Appellate Court also found that there was
no evidence on record showing that Sk Karim was owner of the house and
the suit property and after his death the property was inherited by Sheikh
Chand. It is held that defendant's mere oral statement cannot be accepted
for want of documentary evidence.
12. A person entitled to the possession of specific immovable
property may recover it in the manner provided by the Code of Civil
Procedure, as provided under Section 5 of the Specific Relief Act. It is a
settled position of law that where the plaintiff is found having title to the
suit property entitling him/her to possession, the court must grant specific
relief of possession and has no discretion to deny it and grant damages
instead, even if enforcing the right would cause hardship to the
defendant.
13. I do not find any error in the findings of fact recorded by the
Courts below. Substantial question of law attempted to be raised by
appellant must be answered accordingly as there was ample evidence in
respect of registered sale deed executed in favour of plaintiff of the suit
property. Even vendor was examined as witness in the present case to
prove the transfer of suit property from the vendor to the plaintiff-
purchaser. The totality of the evidence considered together led to the
logical conclusion that the plaintiff is entitled to possession of the suit
property on the basis of title acquired through registered sale deed in
respect of the suit property. That being so, the appeal must fail in view of
concurrent findings of fact by both the Courts below. Even otherwise,
under Section 100 of the Code of Civil Procedure, second appeal cannot
be maintained as a matter of right against the concurrent findings of fact
by the trial Court and the 1st appellate Court. No ground is made out for
interference. Hence, appeal has to be dismissed.
14. In the result, appeal is dismissed. No order as to costs.
A. P. BHANGALE, J
joshi
