Smt. Inder Kour vs Municipal Corporation Raipur
2021 Latest Caselaw 420 Chatt

                                                  1

                                                                                              NAFR

                  HIGH COURT OF CHHATTISGARH, BILASPUR

                              Second Appeal No.416 of 2007

Smt. Inder Kour, aged 57 years (present age 67), wife of Shri Balwant Singh
Chhabra, R/o Shanker Nagar, Raipur, Tehsil and District Raipur (C.G.)
                                                         (Plaintiff/Appellant)
                                                               ---- Appellant

                                              Versus

Municipal Corporation, Raipur, through the Commissioner, Municipal
Corporation, Raipur (C.G.)
                                            (Defendant/Respondent)
                                                    ---- Respondent

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For Appellant/Plaintiff: Mr. Arvind Shrivastava, Advocate. For Respondent/Defendant: -

Mr. H.B. Agrawal, Senor Advocate with Ms. Swati Agrawal, Advocate.

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Hon'ble Shri Justice Sanjay K. Agrawal

Judgment On Board

21/06/2021

1. This second appeal preferred by the plaintiff was admitted for hearing

by formulating the following substantial question of law, on 5-11-

2019:-

"Whether first appellate Court was justified in holding that the plaintiff is not title holder of the suit land by recording a finding, which is perverse and contrary to the record?"

(For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court.)

2. The plaintiff purchased the suit property bearing Khasra No.16/3, area

0.114 hectare, from one Jitendra Kumar, S/o Mohan Das, by

registered sale deed Annexure P-1 on 27-3-1991 and got her name

recorded in the concerned revenue record and claimed to be in

possession from the date of purchase. It is the further case that on 5-

12-1997, boundary wall was dismantled by the defendant leading to

issuance of notice and filing of suit for declaration of title and

permanent injunction.

3. The defendant Municipal Corporation entered into defence by filing

written statement stating inter alia that the suit land has been acquired

in Land Acquisition Case No.105-A/82, 1978-79 on 15-8-1995 in the

case of State of Madhya Pradesh v. Taturam and others. On behalf of

the plaintiff, plaintiff Inder Kaur examined herself, whereas on behalf

of the defendant, neither any document was filed nor any one was

examined to support the case of the defendant.

4. The trial Court after appreciating oral and documentary evidence

available on record, declined to grant decree in favour of the plaintiff

which in turn was affirmed by the first appellate Court in appeal having

been taken-up by the plaintiff and which has now been called in

question in this second appeal by the plaintiff in which substantial

question of law confining to title of the plaintiff has been formulated

and which has been set-out in the opening paragraph of this judgment

for the sake of convenience.

5. Mr. Arvind Shrivastava, learned counsel appearing for the appellant

herein / plaintiff, would submit that since the plaintiff was permitted to

lead secondary evidence of Exs.P-1 & P-2 i.e. copy of sale deed and

copy of mutation order in her favour, respectively, and there is no

counter evidence put forth by the defendant in rebuttal thereof, decree

could have been inevitably passed in favour of the plaintiff which has

not been granted relying upon the defence of the defendant of having

acquired the suit land without there being any evidence, as such, both

the Courts below have concurrently erred in not granting decree for

declaration of title and permanent injunction in favour of the plaintiff.

6. Mr. H.B. Agrawal, learned Senior Counsel appearing for the

respondent herein / defendant, would submit that since the land was

acquired in a duly constituted land acquisition proceeding, therefore,

the plaintiff could have examined Jitendra Kumar to prove her title

over the suit land. He would further submit that both the Courts below

have rightly concluded that even the attesting witnesses have not

been examined on behalf of the plaintiff to prove that she has

purchased the suit land from Jitendra Kumar.

7. I have heard learned counsel for the parties and considered their rival

submissions made herein-above and also went through the record

with utmost circumspection.

8. The plaintiff purchased the suit land from Jitendra Kumar on 27-3-

1991 to which the defendant disputed by pleading that the suit land

has been acquired in a duly constituted land acquisition proceeding

i.e. Land Acquisition Case No.105-A/82, 1978-79 (State of Madhya

Pradesh v. Taturam and others), on 15-8-1995.

9. In that view of the matter, at least, the plaintiff in order to get a clear

declaration of title under Section 34 of the Specific Relief Act, 1963,

ought to have examined a competent witness apart from the plaintiff to

prove that Jitendra Kumar has title over the suit land and he has right

to alienate the suit land in favour of the plaintiff, particularly, when it is

not admitted position on record that Jitendra Kumar had title over the

suit land and he has right and title to alienate the suit land in favour of

the plaintiff. If the title of Jitendra Kumar is admitted by the defendant

then the question of examination of any other person to prove the title

of Jitendra Kumar was absolutely not necessary, but in this case, the

title of Jitendra Kumar, from whom the plaintiff has purchased the suit

land, was seriously disputed by the defendant, though the defendant

did not adduce any evidence apart from taking defence, yet, in order

to clear the doubt in the mind of the court and particularly, when the

plaintiff is seeking declaration of title under Section 34 of the Specific

Relief Act, 1963, it was incumbent upon the plaintiff to lead evidence

to establish the title of Jitendra Kumar from whom she has purchased

the suit property, as both the Courts below have found that it is only a

self-serving statement of the plaintiff that has been brought on record

and no evidence has been adduced even of the witnesses to the sale

deed that Jitendra Kumar had right and title over the suit land to

alienate the suit land in favour of the plaintiff.

10. The finding recorded by the two Courts below holding that the title of

Jitendra Kumar is not established appears to be based on correct

reasoning. Unless the plaintiff proves that Jitendra Kumar had title

over the suit land, merely because he has executed sale deed in

favour of the plaintiff on which secondary evidence has been allowed

to be produced by accepting Exs.P-1 & P-2, it cannot be held that

both the Courts below have erred in holding that in absence of proof

of title of Jitendra Kumar, the plaintiff would get any title over the suit

land resulting into decree for declaration of title in her favour.

11. As such, the plaintiff has miserably failed to establish her title over the

suit land in absence of any evidence of the source of title having been

brought on record, particularly when title of Jitendra Kumar is not

admitted or established on record. I do not find any perversity or

illegality in the finding of the first appellate Court affirming the

judgment and decree of the trial Court dismissing the suit. The

substantial question of law is answered accordingly.

12. The second appeal deserves to be and is accordingly, dismissed

leaving the parties to bear their own cost(s).

13. Decree be drawn-up accordingly.

Sd/-

(Sanjay K. Agrawal) Judge Soma