Md. Samsul Haque vs Safura
2022 Latest Caselaw 179 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          S.A. No. 129 of 2013

      Md. Samsul Haque                      ....      .... Appellant
                                      Versus
     1.   Safura
     2.   Anna Khatoon
     3.   Rabia Khatoon
     4.   Razia Khatoon
     5.   Sajo
     6.   Hajo
     7.   Md. Maksood
     8.   Kulsum Bibi
     9.   Md. Haque                          ....   ....   Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant : M/s Shashi Kumar, Ashutosh Kr. Singh, Mr. Akash Topno & Anil Kumar, Advocates For the Respondents :

C.A.V. ON 04.01.2022 PRONOUNCED ON 31 /01/2022

1. Plaintiff is the appellant who has preferred the appeal against the judgment of affirmation in appeal by which the Judgment passed in Title Suit No. 19 of 1989/ 7 of 1999 has been affirmed.

2. The plaintiff filed the suit for declaration of title to confirm the possession over the suit property and also for perpetual injunction against the defendants from disturbing the possession of the plaintiff.

3. The case of the plaintiff is that he was married to Rajia Khatoon on 20th July, 1971 at Irba, Ranchi with the daughter of defendant no.1 and at the time of Nikah defendant No. 1 had promised that he had one son Maksud and that he will keep plaintiff in his house and will share half the land and house with him. It is further case of the plaintiff that the defendants were in need of money and a proposal was made to sell the property of Irba at Ranchi. In pursuance of the proposal the plaintiff purchased the suit property by a registered deed of sale on 9.8.85. Later, when she got the certified copy of sale deeds No. 8361 and 8817 dated 3.9.1985 he discovered that by mistake his name has not been mentioned in the sale deed as vendee but the possession over the property was given to the plaintiff. Later on in 1986 the defendants abused and threatened the wife of the plaintiff regarding which a proceeding under Section 107 of the Cr.P.C. was drawn. It was against this background, the present declaratory suit has been filed.

4. The suit has been contested by defendants Nos. 1 & 2 by filing a written statement and defendant No. 3 has filed a separate written statement.

5. The case of defendant Nos. 1 & 2 is that they had sold the disputed property to defendant No. 3 Md. Haque son of Allauddin Ansari. The name of plaintiff is Md. Samsul son of Md. Hassan but with ulterior motive the plaintiff started adding in his father's name Late Allauddin Ansari @ Ali Hassan and his name as Md. Haque. It has been denied that the defendants had ever promised to give half of the share of the property to the plaintiff at the time of marriage. The plaintiff was residing in the house of Hatal Mian since before the marriage and after his death when it became difficult for him to live there, on much request his father-in- law Sharifuddin gave a room to live. It was Md. Haque who got the land registered and took its possession and got the land duly mutated in his name. The averment that his name had been wrongly mentioned in the registered deed of sale has been duly denied.

6. Defendant No. 3, Md. Haque has also refuted the claim of purchase of the suit land by the plaintiff.

7. On the basis of the pleadings of the parties, altogether 11 issues were framed by the learned Trial Court out of which the under-mentioned issues are the main issues.

III. Does the plaintiff, Md. Shamshul Haque, possess any alias name as Md. Haque?

IV. Did the father of the plaintiff, Ali Hussain or Md. Hassan possess any alias name as Allauddin Ansari?

V. Has the plaintiff acquired any right, title and interest over the suit property on the basis of sale deed dated 09.8.1965 executed by Md. Sharfuddin and Md. Neyazuddin, the defendant No. 1 & 2 in favour of Md. Haque defendant No. 3?

VI. Has the plaintiff come in possession of the suit property on the basis of the sale deed dated 9.8.1985 executed in favour of Md. Haque or his possession over a portion of the suit house is with the permission of Md. Haque the defendant No 3 as a licensee? XI. Whether name of Md. Haque as purchaser was mentioned in sale deed dated 09.8.1985 by mistake or fraud?

8. The Trial Court has recorded a definite finding of fact on issue Nos. 3 & 4 on the basis of evidence on record against the plaintiff and in favour of

the defendants. It was found that the plaintiff of this case Md. Samsul Haque does not bear any alias name of Md. Haque nor his father's name was Md. Hassan or Ali Hassan with alias name of Allauddin Ansari.

9. Issue Nos. 5 & 11 was also it was answered in favour of the defendants and against the plaintiff. It has been held that it was Md. Haque who had purchased the suit property and there had not been any omission in mentioning the name of Samsul in the registered deed of sale.

10. The learned Court of appeal has fully concurred with the finding of the facts recorded by the trial Court and dismissed the appeal. The appeal has been preferred on the ground that the impugned judgment relied on Exhibits-B & B/1and Exhibit-C but these documents cannot be taken as admission on the part of the appellant under Section 18 and 21 of the Evidence Act. Further reliance on Exhibits- 3 & 3/1 which is the judgment passed in Probate Case No. 24 of 1992 was also misplaced. It is finally argued that considering these documents by the learned Courts below raised a substantial question of law for admitting the instant appeal and hearing it on merit.

11. Plaintiff is the son-in-law of defendant no.1, defendant no.2 is the son of defendant no.1 and defendant no.3 is the purchaser of the suit property from defendant no.1. The claim of title over the suit property of the plaintiff is mainly on two grounds. First isthe said promise at the time of marriage made by defendant no.1 that he will treat the plaintiff as his son and share half of his property and second is the sale deed executed by Defendant no.1 of the suit property which the plaintiff claims to have been executed by mistake in the name of defendant no.3.

12. With regard to the first ground of the promise or agreement of giving half share in the property by the plaintiff, will come within the definition of 'dowry'. Section 2 of the Dowry Prohibition Act 1982 defines "dowry" asany property or valuable security given or agreed to be given either directly or indirectly--

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before[or any time after the marriage][in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I.--[* * *] Explanation II.--The expression "valuable security" has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860). Section 3 and 4 provides for penalty in cases of giving or taking of dowry or making any demand thereof.

13. From the above it is manifest that claim of title over the property on the promise made at the time of marriage will certainly come within the definition of dowry which has been made unlawful under the provision of the Dowry Prohibition Act. Under section 23 of the Contract Act an agreement of which the consideration and objects are unlawful is void. Therefore, the claim of the plaintiff over the suit property on the basis of the promise made at the time of marriage is not tenable and has no legal basis.

14. With regard to the second plea that the registered deed of sale was executed in his favour, but by mistake the name of defendant no.3 has been entered in place of the plaintiff in the sale deed as purchaser of the suit property, both the learned Courts below have by concurrent finding of fact refuted the plea after discussing the evidence at length. Vendor of the property defendant no.1 has denied that there was any mistake in naming the purchaser of the suit land. In the absence of any pleading of fraud on the part of defendant no.1, there was really no triable issue since defendant no.1 had denied any mistake in execution of the sale deed. When the very owner of the property emphatically takes a stand that he had executed the sale deed in favour defendant no. 3, there cannot be any reason to differ with it, unless an intention to defraud is imputed. The Courts below in no uncertain terms have recorded that plaintiff is neither the person by name Md. Haque nor did he assume any alias name stating himself to be so. There was distinct person by name Md. Haque S/O Alauddin Ansari whose name was mutated after sale and revenue receipts Ext D to D/13 have been issued in his name. Even the revenue receipts filed on behalf of the plaintiff i.e. Ext.-1 Series are in the name of Md. Haque and not in the name of the plaintiff. Trial Court has noted that the plaintiff has failed to produce any document to establish that the plaintiff was Md. Haque. Even without Ext.-B/1 there is sufficient evidence on record to dismiss the claim of the plaintiff. Ext B/1 which is a petition filed by the plaintiff on the basis of which proceeding under

Section 107 Cr.P.C was initiated before the Court of S.D.O. against Md. Haque S/O Alauddin Ansari by none other than plaintiff demolishes the plaintiff's case that he and Md Haque where the same person.

15. The main ground of appeal is that the learned Courts below committed a material error by considering Ext B/1 which is a petition filed by the plaintiff in a proceeding under Section 107 Cr.P.C. I am of the view that there is no legal bar in considering Ext B/1 by the learned Courts below. Under Section 5 of the Evidence Act evidence may be given in a suit or proceeding of the existence or non- existence of any fact in issue or relevant fact and such other facts declared to be relevant under Part-I of the Evidence Act. "Fact in issue" has been defined to include any fact which, by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.

Section 11 makes facts not otherwise relevant become relevant if they are inconsistent with any fact in issue or relevant fact. Thus an earlier statement made by a party becomes relevant if it is inconsistent with the party's present statement of claim and if it exhibits the quality of inconsistency with the facts now being asserted by him in pleading or testimony.

An admission, in the legal sense is not always an admission in the popular sense, i.e. a statement which, at the time it was made, was against the real or apparent interest of the party. But an admission may also state facts against interest, as where it admits a claim or a fact relied on by the adversary. It also prevents raising of a dispute at a later stage In such cases, the admission is used as evidence of the truth of its contents as possessing an evidentiary force per se. It is then equivalent to affirmative testimony for the party offering it with reference to that fact. In this way a statement made by the parties in another suit may clearly be used as an admission within the meaning of Section 18. Admission in pleading and admission in evidence are two different things. Provision dealing with admission made in pleading is provided under Order 12 and O 8 R 5 of the C.P.C. Once there is an admission in pleading as per the provision of the procedure code, it will dispense with further proof of it. It has been held in Nagindas Vs Dalpatram AIR 1974 SC 471 that an

admission in pleadings or judicial admissions by themselves can be made the foundation of the right of the parties. Once there is an admission in pleading as per the provision of the procedure code, it renders proof unnecessary and it no longer raises an issue. These are called procedural admissions. An evidentiary admission lies in a slightly different category. It can be regarded as estoppel and can also used to contradict a witness under Section 145 of the Evidence Act. Relevancy of admission as evidence is provided under Section 21 of the Evidence Act, whereas Sections 17 to 20 define admission. Admission as evidence will include entries made in book of accounts, recitals and descriptions in deeds, horoscope, receipts etc. What is admitted by a party to be true must be presumed to true, unless the contrary is shown. The question, whether an admission made by a party to a suit can be utilized against him without being put to him in witness-box, was referred to a Full Bench of the Lahore High Court in Firm Malik Des Raj Vs Firm Piara Lal Aya Ram AIR 1946 Lahore 65 in which it has been held that a party's previous admission is relevant under Section 21, and can be used against him, if that party has not appeared in the witness box at all. Admission though not conclusive proof of the matter is a valuable piece of evidence. Admission is a substantive piece of evidence. Here in the present case the identity of the vendee in the registered sale deed is a fact in issue and any fact in support or in contradiction will be a relevant fact . Statement made by the plaintiff in the proceeding under Section 107 Cr.P.C. is relevant as destructive of his present case that Md. Haque was a different person. The learned Court below did not commit any infirmity by relying on Ext.-B/1.

The plaintiff has attempted to unsuccessfully challenge the sale deed in respect of the suit property executed by defendant nos. 1 and 2 in favour of defendant no. 3 by assuming the name and parentage which he has failed miserably to establish in the case. The Judgment and decree passed by the learned Courts below is affirmed.

16. This is yet another instance where a party without any semblance of title filed the suit, pursued it in the first and second Courts of appeal in order to prolong his illegal occupation for about three decades in the suit property on frivolous plea that the sale deed was executed in his favour, but by mistake in other's name. The claim has been raised on a false plea

to the core. These are cases where the trial Courts should not rest content with awarding nominal costs under Section 35 of the CPC but in appropriate cases and where it is expedient in the interest of justice to initiate criminal prosecution under Section 340 of the Cr.P.C for making false plea in the plaint on sworn affidavit and leading false evidence. Such an approach is required to curb frivolous and false litigation to maintain the sanctity of the judicial process.

Under the aforesaid facts and circumstance of the case and for the reasons discussed above, I find that there is not substantial question of law for being heard in the present appeal.

The appeal is accordingly dismissed at the admission stage with cost. The cost assessed to Rs 50,000/-.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 31st January, 2022 AFR / A.K.T.