[Cites 15, Cited by 0]
Chattisgarh High Court
Smt. Injoriya vs Shivkumar on 27 February, 2026
1
2026:CGHC:10373
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 546 of 2016
Judgment reserved on 08/12/2025
Judgment delivered on 27/02/2026
1 - Smt. Injoriya W/o Ishwar Dayal, Aged About 45 Years S/o Ramprasad, R/o
Village- Baselpur, Chhoti Salhi, Police Station And Tahsil- Khadgawan, District
Korea, Chhattisgarh
2 - Smt. Fuleshwari W/o Shambhu Sahu, Aged About 44 Years R/o Village-
Amka, Police Station And Tahsil- Khadgawan, District- Korea Chhattisgarh
............Defendants
... Appellants
versus
1 - Shivkumar S/o Gangaram, Aged About 40 Years R/o Village- Tutimar Laad,
Tahsil- Katghora, District- Korba, Chhattisgarh
2 - Smt. Sewari D/o Gangaram, Aged About 42 Years R/o Village- Bango,
Police Station- Bango, Tahsil- Bango, District- Korba,
Chhattisgarh ...............Plaintiffs
3 - State Of Chhattisgarh, Through The Collector, Korea, Place At
Baikunthpur, District- Korea, Chhattisgarh .................Defendant No.3
... Respondents
(Cause Title taken from Case Information System)
For Appellants : Mr. Rishikant Mahobia, Advocate
VED : Mr. V.K. Pandey, Advocate
PRAKASH For Respondents No. 1 & 2
DEWANGAN
For Respondent No.3/State : Mr. Kalpesh Ruparel, Panel Lawyer
Hon'ble Shri Ravindra Kumar Agrawal, Judge
C.A.V. JUDGMENT
1. The second appeal under Section 100 of the Code of Civil Procedure,
1908 has been filed by the defendants No. 1 and 2 against the
impugned judgment and decree dated 24.09.2016, passed by learned
First Additional District Judge, Manendragarh, District Koriya, in Civil
Appeal No. 9-A/2015, whereby the first appeal filed by the plaintiffs was
allowed and the judgment and decree dated 30.09.2014, passed by
learned Civil Judge Class-1, Chirmiri, District Koriya, in Civil Suit No.
64-A/2011 was set aside.
2. For the sake of convenience, the status of the parties is referred to as
shown in the civil suit.
3. The second appeal is admitted on 15.05.2017 on the following
substantial questions of law:-
"1. Whether the lower appellate court was justified
in reversing the finding of the trial Court by
holding that the plaintiffs' have acquired their right,
title and interest over the suit property by virtue of
the Adhikar Abhilekh (exhibit P-6)?
2. Whether the findings of the trial court
dismissing the suit on the point of limitation could
be set at naught by the lower appellate court,
even without setting aside the said finding?"
4. The plaintiffs had filed a civil suit against the defendants for declaration
of title, declaring the sale-deed executed by defendant No.1 in favour of
the defendant No.2 is null and void, possession of the suit property and
for permanent injunction over the suit property of khasra No. 11 and
135, area 0.450 and 0.110 hectare respectively, situated at Village
Amka, Tahsil Khadgawan, District Koriya. They pleaded in the plaint
that the defendant No.1 is the cousin sister of the plaintiffs. The land of
khasra No. 11 and 135, area 0.450 and 0.110 hectare (old khasra No.
15/3 and 28) was allotted by the then Madhya Pradesh State
Government to the father of the plaintiffs, namely Gangaram by the
order dated 13.06.1966, passed by SDO (Revenue), Koriya
(Baikunthpur) and since then, the father of the plaintiffs was in
possession. Due to the necessity of the family, their father was also
earning the lands at village Tutimar Lad. On 16.10.1973, Gangaram
was convicted in a criminal case and sentenced to life imprisonment,
and during the period of sentence, he gave his land of village Amka to
his brother Ramprasad for cultivating in adhiya and the nurture of his
minor sons, i.e. the plaintiffs. Ramprasad was cultivating the land and
regularly given half share of the crop to the plaintiffs' family. The mother
of the plaintiffs has remarried and gone somewhere else. After being
released from jail, the father of the plaintiffs died. Thereafter,
Ramprasad stopped giving the share of the crop to the plaintiffs, and by
the collusion of the revenue authorities, he got the name of his
daughter/defendant No.1, Injoriya, mutated in the revenue records of
the suit land. After sometime, the plaintiffs came to know that, the
defendant No.1 has sold the suit land to defendant No.2. It is also
pleaded that, since the land was obtained by the father of plaintiffs, it
cannot be transferred without prior permission of the District Collector to
any third person and the mutation in the name of Injoriya Bai, itself is
null and void, and she has no right or title to sell the land, therefore, the
suit has been filed.
5. The defendants No. 1 and 2 have contested the claim of the plaintiffs
and filed their written statement. They denied the plaintiff's averment
and pleaded that the suit land was jointly owned and possessed by
Gangaram and Ramprasad. Since Gangaram was the elder member of
the family, the patta was granted in his name, but both brothers were
jointly cultivated. Both the brothers, i.e. Gangaram and Ramprasad,
have settled that one brother should be shifted to Tutimar Lad and the
other brother should be shifted to village Amka, and it was settled
between them that Gangaram should go to Tutimar Lad and
Ramprasad will take the land of village Amka. Accordingly, Gangaram
has gone to village Tutimar Lad and subsequently executed a gift deed
in favour of the defendant No.1. He never claimed the land of village
Amka during his lifetime, even after being released from jail, he has not
claimed it. The father of defendant No.1 nurtured the plaintiffs and
performed their marriages and got them settled in their occupation. The
land of the village Amka was obtained by the father of the defendant
No.1 in the family settlement. The mutation of the name of defendant
No.1 over the suit land was on the basis of the gift deed executed by
the father of the plaintiffs, and the mutation was legally done. The land
of old khasra No. 15 was obtained on the basis of old possession since
the lifetime of their ancestors, there was no need of any permission
from the District Collector for alienation and the land of khasra No. 28
was purchased by Gangaram and Ramprasad jointly, therefore, the
alienation of the suit lands in favour of the defendant No.2 is also valid
and the plaintiffs have no right to challenge the sale-deed and the
defendant No.1 is presently in possession of the suit land. It is also
pleaded by the defendants that the mutation in the name of defendant
No.1 was well within the knowledge of the plaintiffs since its inception,
and thus, the suit of the plaintiffs is barred by limitation.
6. Based on the pleadings of the parties, the learned trial Court framed
issues and proceeded for recording evidence of the parties. The
plaintiffs have examined PW-1/Shiv Kumar, PW-2/Hajarilal, PW-3/
Jaykaran Kurre and have relied upon the documents (exhibit P-1 and P-
2), which are the B-1 Kishtbandi and Khasra Panchshala; exhibit P-3 is
the Patwari map, exhibit P-4 is the renumbering list, exhibit P-5 is
another Patwari map, exhibit P-6 is the copy of Adhikar Abhilekh of the
year 1954-55, exhibit P-7 is the copy of Sanshodhan Panji dated
15.07.1975; exhibit P-8 is the sale-deed. The defendants have
examined Fuleshwari Bai (defendant No.2)/DW-1, Bachchalal/DW-2,
and Mansai/DW-3, but they have not relied on any document.
7. After appreciation of oral as well as documentary evidence led by the
parties, the learned trial Court dismissed the suit of the plaintiffs by
holding that, the plaintiffs have failed to prove their title and possession
over the suit land and the suit is appears to be barred by limitation as
the mutation in the name of Injoriya Bai was done in the year 1975 on
the basis of gift deed and in the year 1984, when Gangaram released
from jail, he has not raised any objection and even before 2011, i.e. the
time when the suit land was sold to defendant No.2, no objection was
raised by the plaintiffs, and therefore, the plaintiffs are not entitled for
any relief.
8. The judgment and decree passed by learned trial Court was challenged
by the plaintiffs before the learned First Appellate Court and the learned
First Appellate Court allowed the appeal filed by the plaintiffs and
decreed the suit in their favour by setting aside the judgment and
decree of the learned trial Court and held that, the suit land was
acquired by Gangaram from the State Government in the year 1966
and in the year 1975, the name of Injoriya Bai was mutated in the
revenue records on the basis of gift deed executed by Gangaram,
which is within 10 years of its acquisition and as per Section 158(3) of
the Chhattisgarh Land Revenue Code, 1959 such land cannot be
transferred within 10 years of its acquisition. It was also held that
Gangaram was not competent to execute gift deed in favour of Injoriya
Bai without prior permission of the Collector under Section 165(7-B) of
the C.G. Land Revenue Code and held that, the transaction in favour of
Injoriya Bai and subsequent transaction in favour of defendant No.2 is
illegal and declared that, the plaintiffs are title holder of the suit land and
entitled for possession of the same. The judgment and decree passed
by the learned First Appellate Court are challenged in the present
second appeal.
9. Learned counsel appearing for the defendants would submit that the
learned First Appellate Court has erred in holding that the plaintiffs are
the title holders of the suit property and entitled to possession. He
would submit that, after the acquisition of title by Gangaram over the
suit land, he executed a gift deed in favour of Injoriya Bai, which was
the rightful transfer and the said transaction is not barred under Section
158(3) of the C.G. Land Revenue Code. The plaintiffs or their father
have not challenged the said gift deed. The defendant No.1 has been in
possession of the suit land since 1975 without raising any objection by
the plaintiffs, and after about 36 years, the present suit has been filed,
which is beyond the limitation period, and the suit of the plaintiffs was
barred by limitation. The learned trial Court has rightly held that the suit
of the plaintiffs is barred by limitation, but the learned First Appellate
Court, without considering and without reversing the finding of limitation,
decreed the suit of the plaintiffs. He would further submit that, when the
suit itself was barred by limitation, no relief can be granted in favour of
the plaintiffs. The issue of limitation has not been considered by the
learned First Appellate Court, and therefore, the impugned judgment
and decree passed by the learned First Appellate Court is erroneous
and liable to be set aside.
10. It is also submitted by him that, the learned First Appellate Court has
erred in considering the provisions of Sections 158(3) and 165(7-B) of
the Chhattisgarh Land Revenue Code, 1959 and held that, the mutation
in favour of Injoriya Bai is illegal and she has not acquired any title over
the suit property and consequently the alienation made by her in favour
of the defendant No.2 is also illegal. Gangaram also had land at village
Tutimar Lad, and therefore, the land cannot be allotted to him at village
Amka under the Ceiling Act. It was the land allotted to both the brothers,
i.e. Gangaram and Ramprasad. The transfer of the land by Gangaram
in favour of Injoriya Bai was not challenged by Gangaram till his lifetime.
From the document (exhibit P-6), only the land of khasra No. 15, area
1.00 acre, was said to have been allotted and not the land of khasra No.
28, and there is no document of their title over both these lands, yet the
decree has been passed. Therefore, the impugned judgment and
decree passed by the learned First Appellate Court is liable to be set
aside, and the substantial question of law may be answered in their
favour.
11. On the other hand, learned counsel appearing for the plaintiffs
supported the impugned judgment and decree passed by the learned
First Appellate Court and submits that there was no issue framed by the
learned trial Court with respect to the limitation to file the suit. The
learned trial Court has not dismissed the suit on the issue of limitation,
but dismissed the suit on merits, and the merits of the case have been
considered by the learned First Appellate Court also. He would further
submit that the relevant entries have been made in the record of right,
and it is not in dispute that the land was allotted to the father of the
plaintiffs in the year 1966 by the State Government, and there was no
right of the father of defendant No.1 over the suit land. In the document
(exhibit P-7) i.e. the mutation register, it has been mentioned that, in the
year 1972, a gift deed was executed in favour of Injoriya Bai by
Gangaram and on that basis, her name was mutated and the said
transaction was within 10 years of the acquisition of the land from State
Government, which is barred under Section 158(3) and 165(7-B) of the
C.G. Land Revenue Code, and thus, no title has been transferred in
favour of Injoriya Bai and she was not competent to alienate the same
in favour of the defendant No.2, which was rightly considered by the
learned First Appellate Court and granted a decree in favour of the
plaintiffs, which is neither perverse nor illegal.
12. I have heard learned counsel for the parties and perused the records of
the trial Court as well as First Appellate Court.
13. The claim of the plaintiffs in the suit is on the basis of the fact that the
suit land was allotted to their father, Gangaram, in the year 1966 from
the State Government. The name of Gangaram was entered in the
record of right (exhibit P-6) with the endorsement that "e/;izns'k ds
lhfyax ,DV ds vuq- vuqfo- vf/kdkjh dksfj;k vkns'k fnukad 13-06-66 ds vuqlkj cankscLr gksus ds
dkj.k". The third part of column No. 6 shows that the said entry in the
record of right is made on 08-03-1967. As per the record of rights (Ex.
P-6), only the land of Kh. No. 15 (new Kh. No. 11), area 1.00 acre, has
been allotted to the father of the plaintiffs. The said entry or acquisition
of the property by Gangaram has never been challenged by any of the
parties or even by the State Government. The record of right has also
not denied by the parties. Rather, the claim of the defendants also flows
through the said record of right that Gangaram was having right and title
over the property, and he executed a gift deed in favour of Injoriya Bai,
and then Injoriya Bai sold the property to the defendant No. 2. Thus, the
flow of the transaction of the land of Kh. No. 15 (new Kh. No. 11) comes
from the said record of right exhibit P-6.
14. The "Land Records" are defined in Chapter IX of the Chhattisgarh Land
Revenue Code, 1959 (in short, the "Code of 1959"). The record of right
is also a Land Record recognized under Section 108 of the "Code of
1959", prepared in accordance with the relevant rules. The relevant
provision of Section 108 of the Code of 1959 is quoted hereinbelow,
which is as under:-
"108. Record of rights.
(1) A record-of-rights shall in accordance
with rules made in this behalf be prepared
and maintained for every village and such
record shall include following particulars :-
(a) the names of all bhumiswamis together
with survey numbers or plot numbers held
by them and their area, irrigated or
urtirrigated;
(b) the names of all occupancy tenants and
Government lessees together with survey
numbers or plot numbers held by them and
their area, irrigated or unirrigated;
(c) the nature and extent of the respective
interests of such persons and the
conditions or liabilities, if any, attaching
thereto;
(d) the rent or land revenue, if any, payable
by such persons; and
(e) such other particulars as may be
prescribed.
(2) The record-of-rights mentioned in sub-
section (1) shall be prepared during a
revenue survey or whenever the State
Government may, by notification, so direct.
15. Section 117 of the Code of 1959 provides that all entries made in the
land records shall be presumed to be correct until they are rebutted.
Section 117 of the Code of 1959 reads as under:-
117. Presumption as to entries in land records.
- All entries made under this Chapter in the
land records shall be presumed to be
correct until the contrary is proved.
16. The presumption under Section 117 of the Code of 1959 is a rebuttable
presumption. In the present case, the defendants could not be able to
rebut the presumption, but they supported the entries made in the
record of right Ex. P-6. It is the case of the defendants that Gangaram
had gifted the property to his niece, Injoriya Bai, through a gift deed in
the year 1972. Although the defendants have pleaded that the suit
property was acquired by Gangaram and his brother, Ram Prasad,
jointly, and that only the name of Gangaram was recorded in the
revenue records, there is no evidence that Ram Prasad also acquired
the suit property. It is recorded in the record of rights, Ex. P-6 that under
the Ceiling Act, the lands were allotted to Gangaram. The document of
record of rights only bears the land of Kh. No. 15 (new Kh. No. 11), area
1.00 acre, whereas the document of Sansodhan Panji (Ex. P-7) bears
the entry that the land of Kh. No. 15/3 and 28, (new Kh. No. 11 and
135), area 0.405 Hect. And 0.105 Hect. Respectively, have been gifted
to Injoriya Bai, by the father of the plaintiffs, namely Gangaram.
17. It is also the case of the defendants that Gangaram and Ram Prasad,
under their mutual settlement, settled their property, and Gangaram
went to the village Tutimar Lad and executed a gift deed in favour of the
defendant No. 1 with the consent of Ram Prasad, with respect to the
property of village Amka. From the document Ex. P-7, which is the
Sansodhan Panji of the year 1975, it is recorded that Gangaram
executed a gift deed in plain paper in the year 1972 in favour of Injoriya
Bai.
18. In the evidence adduced by the plaintiff, the title of Gangaram over the
suit property has not been disputed by the defendants. The D.W. 1
Fuleshwari Bai, admitted in para 7 of her deposition, that Gangaram
was the title holder of the suit property. When the title of Gangaram is
not in dispute over the suit property, the entries made in the record of
rights, which is a land record, are presumed to be correct as provided
under Section 117 of the Code of 1959, until rebutted. In the present
case, the defendants have failed to produce any gift deed or
documentary evidence in support of their claim of ownership over the
suit property. In the absence of such evidence, the claim lacks legal
foundation and does not confer any valid title upon them.
19. Since the title of Gangaram over the suit property has remained
unchallenged, the revenue entries recorded in the record of rights
assume significant evidentiary value. Under Section 117 of the Code of
1959, entries in the revenue records carry a statutory presumption of
correctness until the contrary is proved.
20. In the case of "Kasturchand and Others v. Harbilash and Others",
2000 (7) SCC 611, the Hon'ble Supreme Court, in para 16 and 17 of its
judgment, held that:-
"16. The entries in annual village papers create
presumption albeit rebuttable in favour of a
person whose name is recorded. We find that a
procedure is prescribed to challenge the entries
made in the annual village papers. The procedure
is contained in the Madhya Bharat Land Revenue
and Tenancy Act of 1950 (for short 'Land Revenue
Act'). Section 45 of that Land Revenue Act
specifies that Khasra, Jamabandi or khatoni and
such other village papers as the Government may
from time to time prescribe shall be annual village
papers. Section 46 enjoins preparation of annual
village papers each year for each village of a
District in accordance with rules made under the
Act. Section 52 embodies the presumption that all
entries made under that Chapter in the annual
village papers shall be presumed to be correct
until the contrary is proved and Section 50
prescribes the method or procedure for correction
of wrong entries in the annual village papers by
superior officers. Thus it is clear that in the event
of wrong entries in the annual village papers the
same is liable to be corrected u/s 50 and unless
they are so corrected the presumption u/s 52 will
govern the position.
7. Insofar as Samvat year 2008 is concerned it is
not in dispute that initially the names of the
appellants were recorded. They were
subsequently scored off by the Patwari and the
name of Gayadeen was entered. There is nothing
to show that this correction was made in
accordance with the procedure prescribed under
Section 50 of the Land Revenue Act. Indeed it is
not the case of the respondent that correction was
carried out under the said provisions. Therefore,
the subsequent entry will be of no consequence
and it confers no benefit either on Gayadeen or
anybody claiming through him.
21. In the case of "Vishwasrao Satwarai Naik and others v. State of
Maharashtra" 2018 (6) SCC 580, the Hon'ble Supreme Court has
reiterated the rebuttable presumption of entries made in the revenue
records and held that:-
"6. The main ground urged is that since in the
earlier proceedings held under the Act, the extent
of pot kharab land was found to be 106.24 acres,
then in the second ceiling proceedings the extent
of pot kharab land could not come down to 28.20
acres. In this behalf, it is urged that the Revenue
Authorities have relied upon the revenue entries
with regard to the classification of the land and
have not actually visited the land to determine
which land is cultivable and which land is not
cultivable. In ceiling proceedings, it is the duty of
the owner of the land to show which portion of
his land is exempt from ceiling proceedings. In
this case, in the return filed on behalf of the
owner it was mentioned that only 11.10 acres of
land is pot kharab. However, on the basis of the
revenue record, the officer assessed the pot
kharab land as 28.20 acres. The appellant led no
evidence and has not even placed on record the
revenue records prior to the earlier ceiling
proceedings or the revenue record thereafter, to
support his claim that even earlier the land which
was declared to be pot kharab, was actually not
classified as such in the revenue record.
Presumption of truth is attached to the revenue
record. No doubt, this is a rebuttable
presumption, but it is for the party who alleges
that the entries in the revenue record are wrong
to lead evidence to rebut this presumption. This,
the appellants have miserably failed to do. The
appellants have also failed to lead any evidence
to show that the revenue entries are wrong."
22. Now, the second part of the claim of the defendant is the gift deed,
through which the defendant No. 1 is claiming the property of
Gangaram. No gift deed or any other documents have been filed by the
defendants in their support that Gangaram has executed the gift deed in
favour of Injoriya Bai in the year 1972. Although the entries have been
made in the Sansodhan Panji of the year 1975 (Ex. P-7), the mutation
of the name of Injoriya Bai is on the basis of a gift deed of the year
1972, but there is no gift deed produced by them. True it is that the
entries made in the revenue records are presumed to be correct, as has
been held earlier in this judgment, but the entries made in the document
Ex. P-6, record of right, is not disputed by the parties; rather, the title of
the property flows from the said record of right, Ex. P-6, but the
document of Sansodhan Panji, Ex. P-7 is disputed by the plaintiff, and
then the defendant has to prove the transfer of the suit property by a
valid gift deed.
23. The "Gift" is one of the modes of transfer of property as defined in
Section 122 of the Transfer of Property Act, 1882 (in short "T.P. Act").
Section 123 of the T.P. Act provided the manner to execute the gift
deed. From the conjoint reading of both Sections 122 and 123 of the
T.P. Act, it is quite vivid that the valid gift can be made through a
registered deed only. It is necessary to notice here Sections 122 and
123 of the T.P. Act, which are as below:-
"122. "Gift" defined.--"Gift" is the transfer of
certain existing moveable or immoveable property
made voluntarily and without consideration, by
one person, called the donor, to another, called
the donee, and accepted by or on behalf of the
donee.
Acceptance when to be made.--Such acceptance
must be made during the lifetime of the donor and
while he is till capable of giving,
If the donee dies before acceptance, the gift is
void.
123. Transfer how effected.--For the purpose of
making a gift of immoveable property, the transfer
must be effected by a registered instrument
signed by or on behalf of the donor, and attested
by at least two witnesses.
For the purpose of making a gift of moveable
property, the transfer may be effected either by a
registered instrument signed as aforesaid or by
delivery.
Such delivery may be made in the same way as
goods sold may be delivered."
24. It is not in dispute that the plaintiffs are the legal heirs of Gangaram and
inherited his property. The defendant No. 1 is claiming to be the niece of
Gangaram and claims title through a gift deed allegedly executed by
Gangaram in the year 1972. No gift deed was produced by the
defendant No. 1, and the defendant No. 1 could not be able to prove her
alienable title over the suit property. The defendant No. 2 claims her title
through the registered sale deed dated 08-04-2011, executed by
Injoriya Bai in her favour. When the transfer of the suit property in favour
of Injoriya Bai is not proved through a valid source of document, the title
could not be transferred in favour of Injoriya Bai, and thus, she was not
competent to alienate the suit property to defendant No. 2, Fuleshwari
Bai. The sale deed dated 08-04-2011 executed by Injoriya Bai, in favour
of Fuleshwari Bai, is without the alienable title in her favour, and no title
could be passed in favour of defendant No. 2 through such sale deed.
25. The settled principles of law are that no person can transfer a better title
than he himself possesses (nemo dat quod non habet). Such a transfer
cannot convey a better title to another, and such a transfer does not
create lawful ownership in favour of the transferee. In the present case,
in the absence of any lawful title in favour of the defendants or their
predecessors, any alleged transfer in favour of the defendant No. 2 by
the defendant No. 1 would not confer title upon her. Therefore, unless
the defendants establish that their transferor had a legal, enforceable
and subsisting title over the suit property, their claim of ownership
cannot be sustained in the eyes of the law.
26. It is a settled and fundamental principle governing transfer of property
that no person can convey a better title than he himself possesses
(nemo dat quod non habet). The Hon'ble Supreme Court in Rame
Gowda (Dead) by LRs v. M. Varadappa Naidu (Dead) by LRs, (2005)
12 SCC 77, while dealing with competing claims of title and possession,
has reiterated that a person who does not have lawful title cannot pass
any better title to another. The transferee merely steps into the shoes of
the transferor and can acquire only such right, title and interest as the
transferor lawfully possessed. If the transferor's title is defective or non-
existent, the transferee does not acquire any valid ownership
notwithstanding execution of a registered instrument.
27. Similarly, in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana,
(2007) 2 SCC 404, the Hon'ble Supreme Court underscored that
immovable property can be legally transferred only in the manner
recognized by law and that mere execution of documents by a person
lacking valid title does not create or convey ownership. It was
emphasized that transfer of property presupposes existence of lawful
and transferable interest in the transferor. In absence thereof, the
transaction remains ineffectual in conferring title upon the transferee.
28. Applying the aforesaid principles to the facts of the present case, when
defendant No.1 has failed to establish acquisition of valid title through a
legally executed and proved gift deed from Gangaram, she did not
possess any lawful or alienable interest in the suit property.
Consequently, the subsequent sale deed executed by her in favour of
defendant No.2 could not convey any better title than what she herself
had. The registered sale deed dated 08.04.2011, therefore, does not
create or vest ownership in favour of defendant No.2 in the absence of
a valid antecedent title in the vendor.
29. In the present case, the acquisition of title by Gangaram through the
allotment of land in Ceiling Proceeding has not been challenged by the
defendants. The said allotment of land was only with respect to Kh. No.
15 (new Kh. No. 11), area 1.00 acre, as reflected from the document of
record of right Ex. P-6. Though there is no document that the father of
the plaintiffs also acquired the property of Kh. No. 28 (new Kh. No. 135)
area 0.105 Hect., but the entries of the Sansodhan Panji Ex. P-7 shows
that both these lands were transferred to Injoriya Bai by Gangaram,
through the alleged gift deed in the year 1972. It is not the case of the
defendants that Gangaram was not the owner of the land of Kh. No. 28
(new Kh. No. 135), and it was the property of Ram Prasad. Both the
lands are admittedly owned by Gangaram, but there is no valid deed of
transfer in favour of the defendant No. 1, and therefore, the alienable
title of defendant No. 1 has not been proved. Further, the alienation by
defendant No. 1 in favour of defendant No. 2 also found to be without
any lawful authority to alienate the property and no title can be
conveyed through the sale deed.
30. On the other limb of argument that, the suit of the plaintiffs is barred by
limitation and the learned trial Court has observed in its judgment and
decree that, the defendants are in possession of the suit land since
1975 and even when, the father of the plaintiffs came out from the jail in
the year 1984, he has not raised any objection and the suit has been
filed in the year 2011, which is barred by limitation, it transpires that the
learned trial Court has observed in its judgment that the suit of the
plaintiffs appears to be barred by limitation. In the plaint, the plaintiffs
have pleaded that, cause of action arose on 08.04.2011, when the sale-
deed was executed in favour of the defendant No.2 and also when the
name of Injoriya Bai was mutated on the basis of forged deed by
Ramprasad. The plaintiff Shiv Kumar/PW-1 has stated in his evidence
that, Gangaram had gone to jail in the year 1973. After releasing from
jail, he disclosed that, he has not executed any gift deed in favour of
anyone. He came out from the jail in the year 1984-85. During his
lifetime, Gangaram has not raised any objection on the said gift deed.
Injoriya Bai has given the land to Ramprasad in adhiya cultivation and
after death of Ramprasad, Injoriya Bai is in possession of the land. He
is residing at village Turimar from his birth. He admitted that in the year
1984, when his father came out from the jail, he disclosed that, he has
not executed any gift deed in favour of Injoriya Bai. When this witness
has stated that, his father has denied the execution of any gift deed in
the year 1984, when he came out from the jail, it means that the
plaintiffs and their father Gangaram came into knowledge of the gift
deed and mutation of Injoriya Bai and she was in possession of the
land. The plaintiffs have not specifically pleaded, as to when they came
to know about gift deed and when Injoriya Bai came into possession of
the suit land, whereas the revenue records (exhibit P-7) filed by the
plaintiffs shows that, the land was recorded in the name of Injoriya Bai
in the year 1975. There is pleading in the written statement by the
defendants that, the plaintiffs were in knowledge of mutation of the
name of Injoriya Bai and execution of gift deed by Gangaram, the suit
filed in the year 2011 is barred by limitation. Despite raising objection in
the written statement with respect to limitation period of the suit, it
transpires that no issues have been framed by the learned trial Court,
though the learned trial Court has observed in para 13 of its judgment
that, suit of the plaintiffs appears to be barred by limitation.
31. From perusal of the judgment and decree passed by learned First
Appellate Court, it further transpires that there is no consideration by the
learned First Appellate Court with respect to the observation made by
learned trial Court regarding the limitation period to file the suit. When
the learned trial Court observed in para 13 and 14 of its judgment that
the suit itself is barred by limitation, that has to be considered in the first
appeal filed by the plaintiffs, as to whether the suit is barred by limitation
or not, although no issue has been framed by the trial Court.
32. Section 3 of Limitation Act provided that, the suit instituted after the
prescribed period of limitation shall be dismissed, although the limitation
has not been set up by the defence. In the present case, the limitation
was set up as a defence in the written statement, but no issues have
been framed and despite having observation made by the learned trial
Court in its judgment, the learned First Appellate Court has not
considered the limitation period of the suit, and therefore, on this ground
also, the impugned judgment and decree passed by learned First
Appellate Court appears to be erroneous.
33. Accordingly, the substantial question of law No.1 is answered in favour
of the plaintiffs that the learned First Appellate Court rightly reversed the
finding of the trial court by holding that the plaintiffs have acquired their
right and title over the suit property by the Adhikar Abhilekh (exhibit P-
6).
34. With respect to substantial question of law No.2, it is answered that the
learned First Appellate Court has erred in passing the judgment and
decree in favour of the plaintiffs without considering the finding of
limitation to file the suit, given by the trial Court, which has been raised
by the defendants in their written statement also, and therefore, the
judgment and decree passed by the First Appellate Court is not
sustainable.
35. Accordingly, the second appeal is partly allowed. The finding recorded
by the First Appellate Court on merits are affirmed with certain
modifications as has been discussed hereinabove. Since the First
Appellate Court has not adjudicated upon the issue of limitation, which
goes to the root of the matter, the impugned judgment and decree are
set aside to that limited extent. The matter is remanded to the First
Appellate Court for the limited purpose of deciding the issue of limitation
in accordance with law, after affording opportunity of hearing to the
parties. The first appellate court shall decide the appeal afresh on the
question of limitation and pass an appropriate judgment and decree.
36. The parties are directed to appear before the learned First Appellate
Court on 10th of March, 2026.
37. Parties to bear their own costs.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved
