Chattisgarh High Court
Nand Kumar vs Mayaram And Others on 8 September, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 20.06.2022
Pronounced on 08.09.2022
FA No. 189 of 2011
Nand Kumar S/o Sagun Gond, R/o Village Pachariyapara, Kurud, Tahsil
Kurud, District Dhamtari (C.G.)
---- Appellant
Versus
1. Mayaram S/o late Parasram Sahu, R/o Village Jalampur ward Dhamtari,
Tahsil Kurud, District Dhamtari (C.G.)
2. Pushpendra S/o Mayaram Sahu R/o Jalampur Ward Dhamtari, Tahsil and
District, Dhamtari (C.G.)
3. Dhela Bai W/o Sagun Gond R/o Pacharipara, Kurud, Tahsil Kurud, District,
Dhamtari (C.G.)
4. Horilal S/o Sagun Gond R/o Pacharipara, Kurud, Tahsil Kurud, District,
Dhamtari (C.G.)
5. Durgesh S/o Sagun Gond R/o Pacharipara, Kurud, Tahsil Kurud, District,
Dhamtari (C.G.)
6. Dheluram S/o Jodhi Gond R/o Pacharipara, Kurud, Tahsil Kurud, District,
Dhamtari (C.G.)
7. Urva Bai W/o Horilal Gond R/o Pacharipara, Kurud, Tahsil Kurud, District,
Dhamtari (C.G.)
8. Dukalhin Bai W/o Durgesh Sahu R/o Pacharipara, Kurud, Tahsil Kurud,
District, Dhamtari (C.G.)
9. State of Chhattisgarh, Through Collector, Dhamtari (C.G.)
---- Respondents
For Appellant : Shri Manoj Kumar Dubey, Advocate
For Respondent No. 1 and 2 : Shri Somnath Verma, Advocate
For State : Mr. Ravi Pal Maheshwari, Panel Lawyer
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. JUDGMENT
1) This is defendant No. 4's first appeal under Section 96 of the Code of
Civil Procedure arising out of judgment and decree passed by the
learned District Judge (FTC), Dhamtari (C.G.) passed on 13.12.2010 in
Civil Suit No. 12-A of 2010 filed by the plaintiff wherein in the suit filed by
the plaintiff has decreed in favour of the plaintiff directing the defendant
to give vacant possession of the suit property bearing Khasra No.
222/22 area 156 Sq.ft. within one month from the date of the judgment
and decree.
2) For convenience plaintiff and defendant are termed as it exists before
the trial Court.
3) The brief facts as reflected from the record are that plaintiffs have filed
civil suit before the learned trial Court for grant of injunction and
possession mainly contending that property bearing Khasra No. 222/22
area 156 Sq.ft. situated at village Kurud P.H. No. 29 Revenue Circle and
Tahsil Kurud District Dhamtari situated in old Abadi land situated at Ward
No. 14 was purchased through registered sale deed from defendant No.
1 executed on 24.07.2006 by plaintiff No. 2. It is contended that in the
plot one Kaweli house in deteriorated condition constructed in 100 Sq.ft
and open area of 56 sq.ft are situated which in the foregoing
paragraphs referred to as suit property. After purchase the plaintiff has
moved before the District Panchyat Kurud for obtaining NOC for
construction and has given workorder for constructing the house. The
construction was completed in December, 2007. The plaintiff No. 1 who
is lawyer by profession while going to Dhamtari on 22.10.2007 saw that
there was lock in the door of the house. When he enquired from the
defendants No. 2 to 4 it was revelead that due to family dispute they
have locked the door, the dispute will be decided by other lawyer L.P.
Goswami and the negotiations are going on. In the meantime when he
was going to Tahsil Office on 29.10.2007, he saw that the wall was
broken and it was informed to him that defendants No. 2 to 4 have
broken the wall. It has also been contended that the action of
defendants No. 2 to 4 suffers from malafide. They have also misbehaved
with him. Therefore, he has lodged FIR before the Police Station, Kurud
on 30.10.2007. It has been alleged that defendants No. 2 to 4 to grab
the property of the plaintiffs have put certain allegation against him
which has necessitated the plaintiffs to file the civil suit and prayed that
defendants be kindly restrained from interfering peaceful possession of
the plaintiffs over the suit property and also prayed that the defendants
No. 1 to 7 be dispossessed from the suit property and possession be
handed over to the plaintiffs.
4) Defendants No. 1 to 7 have filed their written statement contending that
the property does not belong to defendant No. 1 as it was received by
defendant No. 5 in the partition. She has no right to sell the property. It is
further contended that defendant No. 1 belongs to tribal community. She
engaged plaintiff No. 1 as her counsel who took signature of the
defendant No.1 on the blank paper which has been misused by the
plaintiffs and the forged sale deed has been executed. It is further
contended that plaintiff No. 1 has never given Rs. 40,000/- to defendant
No. 1 and as such no sale deed has been executed. The property is still
in possession of defendant No. 5 and he is also paying the taxes. It has
also been contended that construction has been carried out by the
defendant No. 5 therefore, defendants No. 4 and 5 have lodged FIR on
19.10.2007. It is further contended that defendant No. 5 has locked the
door just to secure the property. The plaintiff has only filed suit for
injunction and possession whereas declaration has not been sought.
Without declaration the suit is not tenable and would pray for dismissal
of the suit.
5) On the basis of pleadings of the parties, learned trial Court framed as
many as 9 issues. Issue Nos. 7, 8 and 9 are relevant, which are
extracted below :-
(I) Whether the suit property being joint property the defendant No. 1
has no right to sell the property?
(ii) Whether the suit property belong to tribal then without the leave of
the Government can't it be sold?
(iii) Whether in absence of declaratory relief the suit is maintainable
or not?
6) To substantiate his case the plaintiff examined himself (PW/1),
Chandrahas Nirmalkar (PW/2), Pupshpendra Sahu (PW/3), Likhan
Nirmalkar (PW/4), Girdhar Sahu (PW/5) and exhibited documents
Saledeed Ex.P/1, NOC from District Panchayat Kurud Ex.P/2, Map
Ex.P/3, Bills with regard to purchase of the materials for construction of
house Ex.P/4 to Ex.P/8, Report to Police Station Kurud Ex.P/9 to
Ex.P/12. Receipt given by the District Panchayat Kurud Ex.P/13,
Vakalatnama Ex.P14, Ordersheet of revenue case Ex.P/15. The
defendant examined himself (DW/1) and Dheluram (DW/2), exhibited
documents report to Police Station, Kurud dated 05.12.2007 Ex.D/1,
report to Police Station, Kurud dated 06.12.2007 Ex.D/2, receipts from
Panchayat, Kurud Ex.D/3 to D/5, Bills and Tax Receipt Ex.D/6,
Rashancard Ex. D/7, Meter reading card Ex.D/8, Electricity Bills Ex.D/9.
7) The plaintiff in his examination-in-chief as provided under Order 18 Rule
4 CPC has reiterated the stand taken by him in the plaint. The witness
was extensively cross-examined by the defendant and he has stated
that at the time of inspection the Patwari was present and he has also
given map, record of the revenue, accordingly the sale deed was
executed. The map is also annexed with the sale deed. He has stated
that agreement was executed in presence of Chandrahas and Mangal.
He denied that construction in the suit property was carried out by the
Dheluram. Other witness PW/2 Chandrahas who examined before the
trial Court has supported the case of the petitioner in his affidavit under
Order 18 Rule 4 of the CPC. The witness was extensively cross-
examined by the defendant in the cross examination he has stated that
the suit property is in front of his shop. He has also denied that at the
time of agreement the said property was valued at Rs. 1,00,000/-. He
has denied the fact that the plaintiff has not given sale consideration to
defendant No. 1 for registration of the sale deed. PW/3 Pushpendra has
also denied that the plaintiff has not given sale consideration to
defendant No. 1. at the time of execution of sale deed. He has stated
that defendant No. 1 brought the document with regard to ownership.
Other witnesses have reiterated the same stand taken by the plaintiff.
The plaintiff was also examined Girdhari Sahu who is the contractor of
the house. He has narrated entire carrying out work of construction over
the land.
8) The defendant Dhelabai was examined before the trial Court. She has
stated in examination in chief the averments which have been already
pleaded in the written statement. The witness was cross-examined by
the plaintiff wherein she has admitted that Dheluram has big plot where
he has constructed the complex. She has also admitted that behind the
complex Dheluram has house and he is residing there. She has
admitted that in the proceeding before the SDM Court that she has
engaged Mayaram as her counsel which was prior to 3 years. She has
denied that she has received the sale consideration. Other witness
Dheluram who has supported case of the defendant No. 1 in his affidavit
has reiterated the stand taken by them in their written statement. The
witness has admitted that no document with regard to partition has been
produced before the trial Court. He has stated that the suit property is
Abadi Land and also admitted that the property falls within the ambit of
Municipal Corporation limit and the permission has to be taken from
Nagar Palika. He has admitted that he is paying property tax of the
house where he is residing. He is also paying electricity bills. The bills
which have produced by him relate to house where he resides. He has
also Rashancard which has been produced before the court. The house
where he resides is a separate house from the suit property.
9) Learned trial Court after appreciating the evidence and material on
record has decreed the suit. Learned trial Court while deciding the issue
No. 8 has recorded finding that the suit property is a diverted land and
falls within Municipal Corporation Act, as such provisions of Section
165(6) and 170-B of the Chhattisgarh Land Revenue Code are not
applicable. As such permission from the Collector is not required before
the purchase of the property though the defendants belong to Schedule
Tribe.
10) . Learned trial Court after appreciating the evidence particularly the
contention of the defendants that defendant No. 1 has engaged plaintiff
No. 1 in some dispute before the Sub Divisional Magistrate, Kurud which
was dated 17.08.2007 (Ex.P/14) and the sale deed which has been
registered is dated 24.07.2006 i.e. after execution of the sale deed. The
learned trial Court has also recorded finding that as per the order sheet
of Sub Divisional Magistrate dated 17.08.2007 it reflects that
Vakalatnama was filed on that date only on 17.08.2007. therefore, the
issue No. 2 has been decided in favour of the plaintiffs. Learned trial
Court while deciding issue No. 9 has recorded a finding that the plaintiffs
have filed suit after construction over the land when the defendants have
taken forceful possession over the suit property then the suit without
decree for declaration is maintainable as plaintiff is dispossessed from
his legal possession in violation of law. The learned trial Court after
examining the entire material and evidence decreed the suit in favour of
the plaintiffs.
11)It is pertinent to mention that defendant No. 1 Dhelabai who would be
aggrieved party should have filed appeal but she has chosen not to file
appeal and as such it can be presumed that she was satisfied with the
judgment and decree whereas decree has been challenged by a person
who was not actually aggrieved with the decree i.e. defendant No. 4
under Section 96 of the CPC before this Court. This Court on 14.09.2011
has issued notice on application for condonation of delay. Notice was
served upon respondent No. 1 to 9. On behalf respondents No. 1 and 2
the counsels have entered appearance but respondents No. 3 to 9 have
chosen not to appear before this Court. The appeal was admitted on
25.08.2012 and effect and operation of the judgment and decree passed
by the trial Court was stayed until further order. Thereafter, no one has
entered appearance on behalf respondents No. 3 to 9, therefore, this
Court has directed for issuance of SPC to them on 28.02.2022 directing
them to make appearance /representation before this court on
05.04.2022. For the said date SPC was served upon all the defendants
except defendant No. 5 Durgesh as he expired prior to 1 ½ years from
the service of notice by this Court, but no steps have been taken by the
appellant to bring the legal representatives on record, as such, the
appeal stands abated against defendant No.5. it is pertinent to mention
here that the defendants in their written statement, particularly in
paragraph 2 of the written statement have pleaded that defendant No. 5
has right over the property as he has received it in partition but this
pleading has neither been proved by defendants by filing the documents
nor defendant No. 5 preferred appeal against the impugned judgment
and decree. Therefore, the appeal so far as defendant No. 5 is
concerned stands abated.
12) Assailing the judgment and decree passed by the learned Trial Court
learned counsel for the defendant No. 4 would submit that the finding
recorded by the learned trial Court is perverse. He would submit that
suit property belongs to defendant No. 5 as sole owner. The plaintiff has
no right to dispossess defendant No. 5. He would further submit that the
issue framed by the learned trial Court does not relate to the controversy
raised in the suit, therefore, the judgment and decree deserves to be set
aside. It has also been contended that defendants No. 1 to 7 have filed
single joint written statement and in para 2 it is specifically mentioned
that the suit property does not belong to defendant No. 1 but it belongs
to defendant No. 5. He would further submit that defendant No. 5 was
not subjected to cross-examination about the ownership of the disputed
land though defendant No. 5 has in his examination-in-chief
categorically stated that the suit property belongs to him. Therefore, the
finding recorded by the trial court is perverse and contrary to the
evidence.
13) On the other hand, learned counsel for the plaintiffs would submit that
the learned trial Court has recorded a correct finding. He would submit
that the plaintiff has acquired the suit property on the basis of the sale
deed. The judgment and decree passed by the trial Court does not call
for interference by this Court and would pray for dismissal of the appeal.
In support of his contention he would refer to the judgment passed by
the Hon'ble Supreme Court in case of Muddasani Venkata Narsaiah
(D) Th. Lrs v. Muddasani Sarojana 1 and would submit that defendant
dispossessed the plaintiff on 22.10.2007 and the suit was filed on
AIR 2016 SC 2250
04.03.2008, therefore, within six months under the provisions of Section
of the 6 of the Specific Relief Act the suit has been rightly filed. He
would further submit that provision of Section 165(6) of the Revenue
Code is not applicable for transfer of the land other than suit property as
it is a diverted plot and falls within the ambit of Municipal Corporation
limit. To substantiate his contention he would refer to the judgment of
the Hon'ble High Court of Madhya Pradesh Mewalal Kanhaiyalal vs.
Janki Bai { 1994 MPLJ 369} para 12 13 and Pandhurama vs. Udhavlal
{ 1981 RN 13} Therefore, the judgment and decree passed by the
learned trial Court is just and legal and does not warrant any
interference.
14) I have heard learned counsel for the parties and record of the trial Court
with utmost satisfaction.
15) Before adverting to the rival submission made by the learned counsel
for the parties, it is expedient for this Court to extract provisions of
Sections 165(6 & 7) and 170-B of the Land Revenue Code which read
as under :-
"Section 165 (6)-- Notwithstanding anything in Sub-section (1), the
right of a Bhumiswami belonging to a tribe which has been declared
to be an aboriginal tribe by the State Government by a notification in
that behalf for the whole or a part of the area to which this Code
applies shall not be transferred to a person not belonging to such
tribe without the permission of a Revenue Officer not below the rank
of a Collector, given for reasons to be recorded in writing."
Section 165. (7) Notwithstanding anything contained in Sub-section
(1) or in any other law for the time being in force--
(a) only that part of a holding of a Bhumiswami shall be liable to
attachment or sale in execution of any decree or order as is in
excess of five acres of irrigated or ten acres of un-irrigated
land;
(b) no land comprised in a holding of a Bhumiswami belonging to
a tribe which has been declared to be an aboriginal tribe under
Sub- section (6) shall be liable to be attached or sold in
execution of any decree or order;
(c) no receiver shall be appointed to manage the land of a
Bhumiswami under Section 51 of the Code of Civil Procedure,
1908 (V of 1908) nor shall any such land vest in the Court or
any receiver under the provincial Insolvency Act, 1920 (V of
1920) contrary to the provisions of clause (a) or clause (b):
Provided that nothing in this Sub-section shall apply where a
charge has been created on the land by a mortgage."
170-B. Reversion of land of members of aboriginal tribe which was
transferred by fraud.----(1) Every person who on the date of
commencement of the Madhya Pradesh Land Revenue Code
(Amendment), 1980 (hereinafter referred to as the Amendment Act of
1980) is in possession of agricultural land which belonged to a
member of a tribe which has been declared to be an aboriginal tribe
under sub- section (6) of Section 165 between the period
commencing on the 2 nd October, 1959 and ending on the date of
the commencement of Amendment Act, 1980 shall, within [two years]
of such commencement, notify to the Sub-Divisional Officer in such
form and in such manner as may be prescribed, all the information
as to how he has come in possession of such land.
(2) If any person fails to notify the information as required by sub-
section (1) within the period specified therein it shall be presumed
that such person has been in possession of the agricultural land
without any lawful authority and the agricultural land shall, on the
expiration of the period aforesaid revert to the person to whom it
originally belonged and if that person be dead, to his legal heirs.
[(2-A) If a Gram Sabha in the Scheduled area referred to in clause (1)
of Article 244 of the Constitution finds that any person, other than a
member of an aboriginal tribe, is in possession of any land of a
bhumiswami belonging to an aboriginal tribe, without any lawful
authority, it shall restore the possession of such land to that person
towhom it originally belonged and if that person is dead to his legal
heirs:
Provided that if the Gram Sabha fails to restore the possession of
such land, it shall refer the matter to the Sub-Divisional Officer, who
shall restore the possession of such land within three months from
the date of receipt of the reference.]
(3) On receipt of the information under sub-section (1), the Sub-
Divisional Officer shall make such enquiry as may be deemed
necessary about all such transactions of transfer and if he finds that
the member of aboriginal tribe has been defrauded of his legitimate
right he shall declare the transaction null and void and pass an order
revesting the agricultural land in the transferor and, if he is dead, in
his legal heirs.]
[(3) On receipt of the information under sub-section (1) the Sub-
Divisional Officer shall make such enquiry as may be necessary
about all such transactions of transfer and if he finds that the member
of aboriginal tribe has been defrauded of his legitimate right he
shalldeclare the transaction null and void and---
(a) Where no building or structure has been erected on the
agricultural land prior to such finding pass an order revesting
the agricultural land in the transferer and if he be dead, in his
legal heirs,
(b) Where any building or structure has been erected on the
agricultural land prior to such finding, he shall fix the price of
such land in accordance with the principles laid down for
fixation of price of land in the Land Acquisition Act, 1894 (No.1
of 1894) and order the person referred to in sub-section (1) to
pay to the transferor the difference, if any between the price so
fixed and the price actually paid to the transferor :
16)From the pleadings and material on record it is not in dispute that suit
property is situated at Abadi land and within the Nagar Panchayat, and
not agriculture land therefore, this court has to see whether provisions of
Section 165 (6) and (7) as well as Section 170-B of the Land Revenue
Code are applicable or not and whether without permission of the
Collector the suit property can be sold by the defendant No. 1 to the
plaintiffs. From the pleadings and material on record it is qite vivid that
the suit property is situated at Abadi land and not a agriculture land
therefore, from the provisions of the Land Revenue Code it is clear that
the permission of the Collector before selling of the property is not at all
required. This issue has come up for consideration before Hon'ble High
Court of Madhya Pradesh in case of Aildas vs Board of Revenue 2
wherein Hon'ble Division bench has held as under:-
15. Agreeing with the view of the learned Judges constituting the said
Division Bench, we are of opinion that Sub-section (5) of Section
165 and Section 170 of the M. P. Land Revenue Code, 1959, cannot
be made applicable to Nazul lands situated in urban areas. In this
view of the matter, the decision of the Board of Revenue is liable to
be quashed, as neither Section 165 (6) of the M. P. Land Revenue
Code, 1959, nor Section 170 of the said Code, nor the provisions of
the C. P. Land Alienation Act, 1916, would be applicable to the instant
case, where the predecessor of the fourth respondent sold a house
situated on Nazul land in an urban area. For that reason we quash
the order of the Board of Revenue and we restore the order passed
by the Commissioner, Bilaspur Division, dated 26-11-1969
(Petitioner's An-nexure-D), which, in our opinion, represents the
correct legal position.
17)Similar view has been taken by the Hon'ble High Court of Madhya
Pradesh in case of Mewalal Kanhaiya Lal vs. Janki Bai 3 in para 12
and 13 which reads as under:-
12. I have considered arguments of learned counsel for the appel-
lant. Firstly - In relation of sale of house vide Ex. P. 4/D. 3. The
finding recorded by the trial Court was that there was no fraud
played by Mewalal and that the sale deed executed with con-
sideration. It was also held that the registration was done be-
fore the Sub-Registrar at Khargone. The endorsement on the
sale deed discloses payment of consideration before the Sub-
Registrar. In these circumstances it cannot be said that no pay-
ment was received by the plaintiff, under sale deed Ex. D. 3.
The proposition that when endorsement is made in respect of
payment of consideration before the Sub-Registrar, it will be
presumed that the payment has been made. In AIR 1948 Nag.
110 it has been clearly stated that endorsement proves the
payment of consideration before the Sub-Registrar unless it is
AIR 1973 MP 130
1994 MPLJ 868
rebutted by very strong evidence. Sub-Registrar has not been
examined nor any one else to show that no payment was
made.
13. There is another question which has to be considered along
with this case. Whether the sale of a house is prohibited un-
der Section 165/(6) of the Code? In 1981 Revenue Nirnaya 13,
(High Court) Justice B. C. Verma (as he then was) held that no
permission was required for sale of house as such keeping in
view the finding recorded by the trial Court. I am of the view
that lower Appellate Court committed a mistake in setting aside
the finding recorded by the trial Court. It cannot be held that the
transfer of the house was bad in law because of the bar under
Section 165(6) of the Code. In view of this, the finding recorded
in para 38(2) of the judgment is set aside and it is held that the
sale of house vide Ex. P. 4/D. 3 was not hit by Section 165(6) of
the Code.
18) Similar view has been taken by the Madhya Pradesh High Court in case
of Nandramji Gupta vs Heeralal 4.
19)Therefore, it is quite clear that the sale deed can be executed without
leave of the Collector as it is Abadi land situated within the limits of
Nagar Panchayat not being an agricultural land.
20)The learned counsel for the appellant would further submit that the
defendants in their written statement have taken specific plea that the
suit property belongs to defendant No. 5 but no issue with regard to this
has been framed by the learned trial Court as such this Court exercising
power under Order 14 Rule 5 CPC may remit the matter to trial Court for
reframing the issue with respect to title over the suit proeperty. He would
further submit that as per Section 7 of the Transfer of Property Act a
person competent to transfer the property can only transfer the property.
In the case in hand defendant No. 1 was not the title holder of the
property therefore, she has no authority to transfer the said suit property.
To refute the submission the learned counsel for the plaintiff would
submit that though no issue has been framed by the learned trial Court
but the defendants have filed written statement and have also led
evidence, the parties are aware of the pleadings and no such steps have
taken by them by filing application before the trial Court as per the
provisions of CPC for framing additional issue. As such, they have
missed the opportunity and after completion of trial the plea of non-
framing of issue cannot be raised as from the record it is quite vivid that
no prejudice has been caused to them. As such, it is not required for this
court to remand the matter.
2012 (1) MPLJ 168
21)From the facts, evidence and material on record it is evident that though
the defendants have taken the plea in their statement about the title of
the property, the witnesses of the plaintiff were cross-examined and
defendants have examined and cross-examined by the plaintiff, as such
the entire material was placed before the trial Court therefore, it cannot
be said that non-framing of issue has caused prejudice to them.
22)Hon'ble the Supreme Court in Kali Prasad Agarwall & others Vs.
Bharat Coking Coal Limited & others 5, has held at paragraphs 16 &
17 as under:-
"16. It was, however, urged for the appellants that there is no proper
pleading or issue for determination of the afore- said question and the
evidence let in should not be looked into. It is too late to raise this
contention. The parties went to trial knowing fully well what they were
required to prove. They have adduced evidence of theft choice in
support of the respective claims. That evidence has been considered
by both courts below. They cannot now turn round and say that the
evidence should not be looked into. This is a well accepted principle.
17. In Kunju Kesavan v. M.M. Philip & Others , [1964] 3 SCR
634, this Court has stated (as summarised in the headnote at p. 637):
"The parties went to trial, fully understanding the central fact
whether the succession as laid down in the Ezhava Act applied to
Bhagavathi Valli or not. The ab- sence of an issue, therefore, did not
lead to a material sufficient to vitiate the decision. The plea was
hardly needed in view of the fact that the plaintiff stated in his
replication that the "suit property was obtained as makka- thayam
property, by Bhagavathi Valli under the Ezhava Act". The subject of
exemption from Part IV of the Ezhava Act, was properly raised in the
trial court and was rightly considered by the High Court."
23) Similarly the High Court of Andhra Pradesh in case of Mohd.
Kareemuddin Khan (Died) & others Vs. Syed Azam 6 has held at
paragraph 7 as under:-
"7........The position of law is well settled that where parties adduce
evidence in respect of a matter for which an issue has not been
struck and both sides are well aware of the dispute which relates to
the issue, the defect of non- framing of the issue is cured and there
will be no inherent lack of jurisdiction in the Court to go into that
question and decide that aspect of the matter. It was observed in Kali
Prasad v. M/s. Bharat Coking Coal Ltd. AIR 1989 SC 1530......."
24) As such submission made by the learned counsel for the appellant to
remit the matter after framing the issue over title cannot be accepted and
accordingly it is rejected.
25)The other submission of the learned counsel for the appellant that
defendant No. 5 is the owner of the suit property but the defendants
have not filed any document to demonstrate that defendant No. 5 is the
(1989) AIR (SC) 1530 : (1989) Sup 1 SCC 628
(1997) 2 ALT 625
title holder of the suit property. Even in the evidence they have referred
to about the partition but neither any partition deed nor any revenue
record to demonstrate that suit property belongs to defendant No. 5 has
been filed. In absence of any documentary evidence the learned trial
Court has rightly recorded its finding on issue No. 1 whether the suit
property has been received by the defendant No. 5 on partition has
answered in negative. It is pertinent to mention here that defendant No.
5 has never challenged the suit declaring the sale deed to be null and
void and even he has not challenged judgment and decree passed by
the trial Court by filing appeal, which clearly establishes that entire case
was projected by appellant without any foundation led before the trial
Court. Thus, the finding recorded learned trial Court with regard to right
of the defendant No. 1 to sell the property while deciding the issue No. 7
is justified. Even the defence taken by the defendant that plaintiff No. 1
has misused his position being lawyer defendant No. 1 has been
effectively negated by the trial Court after appreciation of the evidence
and recording cogent reasons as this story was specifically falsified as
the sale deed was executed in 2006 and plaintiff No. 1 was engaged by
defendant No. 1 in year 2007 nor any such material was produced
before the trial Court to demonstrate that plaintiff No. 1 has influenced
defendant No. 1 to execute the sale deed. As such, the finding with
regard to the issue No. 2 does not suffer from perversity or illegality
which warrants interference by this Court.
26)The last contention raised by the learned counsel for the defendant that
without declaration of the title suit for grant of injunction is not tenable, is
not acceptable as this issue has come up for consideration before the
Hon'ble Supreme Court in case of Muddasani Venkata Narsaiah
(dead) Th. Lrs. Vs. Muddasani Sarojana AIR 2016 SC 2050 in para
13 which is extracted below:-
"13. We are fortified in our aforesaid conclusion by a decision in
Kurella Naga Druva Yudaya Bhaskara Rao v. Galla Jani Kamma
(2008) 15 SCC 150, wherein this Court has examined the question of
maintainability of suit for possession without prayer for declaration of
title. This Court has referred to its earlier decision in Anathula
Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594, wherein the plaintiff
had purchased the suit land under registered sale deed dated
10.4.1957 and the defendant did not claim the title with reference to
any document but claimed to have perfected title by adverse
possession. It was held by this Court that the said plea did not prima
facie put any cloud over the plaintiff's title calling him to file suit for
declaration of title. Unless there is serious cloud over the title of the
plaintiff there is no need to file suit for declaration of title. The suit for
possession was maintainable. This Court laid down as follows:
"16. The plaintiff had purchased the suit land under registered
sale deed dated 10.4.1957. Defendant did not claim title with
reference to any document but claimed to have perfected title
by adverse possession. A mere claim by the defendant that he
had perfected his title by adverse possession, does not mean
that a cloud is raised over plaintiff's title and that the plaintiff
who is the owner, should file a suit for declaration of title.
Unless the defendant raises a serious cloud over the title of the
plaintiff, there is no need to file a suit for declaration. The
plaintiff had title and she only wanted possession and therefore
a suit for possession was maintainable. We are fortified in this
view by the following observations of this Court in Anathula
Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594:
"14. We may however clarify that a prayer for declaration will
be necessary only if the denial of title by the defendant or
challenge to plaintiff's title raises a cloud on the title of plaintiff
to the property. A cloud is said to raise over a person's title,
when some apparent defect in his title to a property, or when
some prima facie right of a third party over it, is made out or
shown. An action for declaration, is the remedy to remove the
cloud on the title to the property. On the other hand, where the
plaintiff has clear title supported by documents, if a trespasser
without any claim to title or an interloper without any apparent
title, merely denies the plaintiff's title, it does not amount to
raising a cloud over the title of the plaintiff and it will not be
necessary for the plaintiff to sue for declaration. ...."
27)Learned trial Court has also recorded a finding that defendants No. 1 to
7 have forcefully dispossessed the plaintiff, accordingly restrained the
defendants from interfering in the peaceful possession of the suit
property by the plaintiffs and has directed the defendants to vacate the
possession over the suit property within one month which is neither
perverse nor contrary to the evidence. Thus, the judgment and decree
passed by the learned trial Court is legal, justified and does not warrant
any interference.
28)Accordingly, the first appeal deserves to be and is hereby dismissed.
The interim stay of the impugned judgment and decree dated
25.08.2022 stands vacated. The defendants are directed to vacate the
possession within two months from the date of judgment and decree
passed by this Court.
29)The decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
Deshmukh
