Akhileshwar Mahto vs Smt. Kasida Devi
2022 Latest Caselaw 98 Jhar

               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                S.A. No. 198 / 2013
     1. Akhileshwar Mahto,
     2. Moti Devi
     3. Bajranti Devi,
     4. Shatranti Devi
     5. Jagranti Devi
     6. Manoj Kumar
     7. Sunita Kumari      ....  .... Appellants/Appellants/ Defendants

                                   Versus
     1. Smt. Kasida Devi
     2. Kamla Devi
     3. Rakesh Kumar Upadhayay,
     4. Kaushlesh Kumar Upadhayay,
     5. Renu Devi
     6. Indu Devi
     7. Sindhu Devi
                                 .... Plaintiffs/Respondents/Respondents
     8. Sumati Devi
     9. Arbind Kumar Singh,
     10. Arun Kumar Singh,
     11. Manoj Kumar Singh,
     12. Manju Devi
     13. Sanju Devi
                     .... ....   Proforma Plaintiffs/Respondents/Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Rahul Kumar Gupta, Advocate For the Respondents : Mr. Manjul Prasad, Sr. Advocate

C.A.V. ON 17.12.2021 PRONOUNCED ON 11 / 01 / 2022

1. This appeal has been preferred by the Defendant No.1 (LR) against the judgment of affirmation passed by District Judge-II, Palamu in Title Ap- peal No. 09 of 2007.

2. The plaintiffs / respondents filed the suit for declaration that schedule -

B sold by Defendant No. 1 to Defendant No. 2 and 3 vide sale deed No. 321 dated 7.1.1985 be declared null and void. Schedule B is part of the land obtained by gift deed fully described in Schedule-A of the plaint.

3. The case of the plaintiff Kasida Devi is that Maheshwari Devi (Proforma Defendant No. 4 now dead) W/O Mahang Mahto acquired different plots of land by registered sale deed No.5341 dated 19.4.1968, Deed No.8295 dated 1.9.1969, Deed No.10432 Dated 22.12.69, Deed No.884 dated

17.1.72 and came in possession of them. The plaintiff acquired Title and possession over Schedule-A property from Maheshwari Devi by regis- tered deed of Gift No. 1904 executed on 28.2.1978 (Schedule-A). Ma- hang Mahto had two sons Ramcharitar Mahto (Defendant No. 1) and Sukhdeo Mahto. Kasida Devi W/o Sukhdeo Mahto is the plaintiff. In pursuance to the gift deed the land was duly mutated and demand of rev- enue has been opened in her name.

It is further case of the plaintiff that Defendant No.1 stole all the deeds by which Schedule-A land were purchased regarding which a criminal case was also registered. Defendant No.1 sold the part of Schedule-A land to Defendant Nos.2 and 3 by registered deed of 07.01.1985 vide sale deed No. 321. Purchasers of the land had however not entered into possession. The land illegally sold has been fully detailed in Schedule-B of the plaint which comprises of 58 decimals of land in Plot No. 1371.

4. Proforma Defendant No.4 Maheswari Devi filed her separate written statement in which she admitted the case of the Plaintiff. She has denied the title and possession of Defendant No.1 over the suit land.

5. The case of the contesting Defendant no.1 is that the lands in suit were not actually purchased by the parents of defendant No. 1 but by defen- dant No. 1 himself in the name of his father Mahang Mahto and mother Maheshwari Devi as benami and they had no title or possession over it. The registered deed of gift No.1904 dated 28.02.1978 was not according to law as Kashida Devi was not present in the Registration office and hence she never accepted the gift and has not come in possession up till now. The name of defendant No. 1 has been duly mutated. The plaintiff and defendant No. 4 had no concern over the suit land.

6. On the basis of the pleading of the parties the Trial Court framed the is-

sues of which the following are the main issues:

(III) Is the case of the defendants that Proforma defendant No. 4 Ma- heshwari Devi was simply a Benamidar Farzidar and name -lender in the matter of the acquisition of the suit land for Defendant No. 1 true?

(IV) Whether the Plaintiff acquired title and possession from Proforma Defendant No. 4 by the gift deed with respect to Schedule-A land?

(V) Are the sale-deeds executed by Defendant No. 1 in favour of de-

fendant nos. 2 & 3 void and of no legal consequence conferring no title and possession upon these defendants?

7. The Trial Court recorded a finding on these material issues that on the disputed land the plaintiff had the title and possession over the suit land, therefore, sale deed executed on 07.01.1985 vide sale deed No. 321 to Defendant No. 2 & 3 by defendant No. 1 was void and not binding. When the gift deed was executed the defendants were not in possession and six-seven years after the gift defendant No. 1 sold some portion to the defendants on the basis of which they have come into illegal posses- sion. It has been observed in para-38 of the judgment that since no re- covery of possession has been prayed for, therefore, the plaintiff after depositing the requisite Court Fees can claim the recovery of possession. The plaintiff has been given the right of recovery of possession after de- positing the requisite Court Fees.

8. The learned Court of Appeal concurred with the finding of fact and held Proforma defendant No. 4 Maheshwari Devi had valid right to execute the registered deed of gift in favour of plaintiff / respondent and accor- dingly she acquired Right, Title and Possession over the same and de- fendants / appellants has no right to execute the sale deed in favour of defendant No. 2 & 3. For the consequential relief the plaintiff was di- rected to pay the advalorem Court Fee.

9. The appeal has been admitted for hearing on the following substantial question of law:

"Whether the suit for declaration of Title in the absence of any conse- quential relief for recovery of possession was barred under Section 34 of the Specific Relief Act in view of the decision reported in 1993 Supp. (3) SCC 129 (Vinay Krishna -vs- Keshav Chandra &Anr.)

10. It is argued on behalf of the appellant that the liberty given to the plain-

tiff to pay Advalorem Court Fees and seek recovery of possession is against the specific mandate of Section 34 of the Specific Relief Act 1963 (hereinafter called "Act 1963") and is against the express authority in 1993 Supp. (3) SCC 129.

11. Before considering the technical question raised in this appeal it will be desirable to set the concurrent findings of fact to get a clear perspective of the legal issues involved.

a. The Schedule B land is part of Schedule A land purchased by the Proforma Defendant No.4 Maheswari Devi by four different registered sale deeds in the year 1968-69.

b. Maheswari Devi (PD4) executed registered deed of gift in favour of the Plaintiff in 1978 with respect to Schedule-A land.

c. Defendant No.1, who is son of PD4 sold Schedule-B land to Defendant Nos.2 and 3 in 1985 vide registered deed of sale.

12. The claim of title of Defendant no.1 over the suit property is on the plea that he had purchased the Schedule A land in the name of his mother Maheswari Devi (PD 4) as benami. There are no details or particular as about how the benami purchase was effected. If there were really a benami transaction the mother (PD4) would have been a party to the sale deed of the year 1985 to Defendant No.2 and 3. If she had refused to execute the sale deed being a benamidar, proceeding should have been initiated prior to the sale deed. In any case there is no evidence of benami. Maheswari Devi acquired valid title over the land by the regis- tered deed of sale is beyond reproach.

13. The suit property was purchased by Maheswari Devi (PD4) through reg-

istered sale deed and she was the full owner, and in exercise of her right of her ownership she transferred it to the Plaintiff by registered deed of gift. In these circumstances, defendant no.1 had not title with himself, which he could transfer to Defendant Nos.2 and 3 and the registered deed of transfer did not convey any title to them on the principle of nemo dat quod non habet that no one can convey a better title than he has.

14. On the question of declaration of title in the absence of a prayer of con-

sequential relief, it is held that it is permissible in view of the ratio de- cided in 2021 SCC Online 1146 Akamma and Ors. Vs Vemabathi wherein it has been held that if the plaint contains claims for declara- tory relief as also consequential relief in the form of injunction that

would insulate a suit from an attack on maintainability on the sole ground of bar mandated in the proviso to the aforesaid section. If on evidence the plaintiff fails on consequential relief, the suit may be dismissed on merit so far as plea for consequential relief is concerned but not on maintainability question invoking the proviso to Section 34 of the 1963 Act. If the plaintiff otherwise succeeds in getting the declaratory relief, such relief could be granted ................. There is no bar in the Specific Relief Act, 1963 in granting standalone declaratory decree.

In the light of above ratio, I find no infirmity in declaration of title in favour of the Plaintiff by the both the learned Courts below.

15. The short question that falls for consideration is whether declaration of title and liberty given to the plaintiff to seek recovery of possession on payment of ad-valorem court fees is barred by Section 34 of Act 1963, as the plaintiff had not claimed relief of recovery of possession in the suit in view of the Judgment of the Hon'ble Apex Court in 1993 Supp (3) SCC 129?

16. Appellant has relied on the following authorities:

a. 1999 Supp (3) SCC 129 Vinay Krishna Vs. Keshav Chandra and another

b. Meharchand Das Vs La Babu Siddique 2007(4) SCC 253

c. K.R Mohan Reddy Vs Net Work Inc Represented through MD (2007) 14 SCC 257

d. Union of India Vs Ibrahimuddin (2012) 8 SCC 148

e. Phool Kumari Vs Office of the Superintendent Tihar Jail (2012) 8 SCC

f. (2014) 14 SCC 502 Venkataraja and others Vs Vidyane Doudreadja-

preumal

g. 2017(2) Scale 747 Executive officer Arulimigu Chokkanatha Sway Koil Trust Vs Chandran and others

17. Respondent/plaintiff has relied on the following authorities:

a. AIR 2003 SC 1989 Banarsi and Ors Vs Rampal-Vendor has no right to prefer appeal. He cannot be termed as person aggrieved.

b. AIR 2008 SCW 463 Abdul Rahim Vs Karanataka Electricity Board and others--

c. AIR 1966 SC 4653 Bhagwati Prasad Vs Chandra Maul --Court can grant relief other the asked for under Order VII Rule 7

d. 2005(3) JCR 188 (jhr) Jaikishan Chaudhari Vs Ramdeo Chaudhari--

Confirmation of possession includes recovery of possession.

e. AIR 1975 SC 1409 Pasupleti Vencateswarlu Vs The Motor and General Traders. Right to relief must be judged to exist as on the date of institu- tion of suit.

f. AIR 1971 Delhi 310 Autolite Finacers (P) Ltd Vs Swastik Financial Cor-

poration (P) Ltd and others

g. AIR 1975 Madhya Pradesh 193 Santosh Chandra and Ors Vs Gayansun-

darbai and ors-- If plaintiff is in possession of suit land on the date of in- stitution of suit, he she is not required to ask for consequential relief along with relied for declaration.

h. AIR 2013 SC 1470 Narendar Singh Rao Vs AVM Mahendar Singh Rao

i. AIR 1985 Orissa 126 Jagbandhu Naik and another Vs Gauri Bandha and others

j. AIR 1998 Raj 157 Sh Abdul Hakim and another Vs Habib Khan

18. The authorities relied upon on behalf of the appellant is of no help since the facts are entirely different. The most of the authorities are on the question of maintainability which has been answered in Akamma case (supra) discussed above.

On the facts of the present case where the possession was usurped during the pendency of the case, beacon light is the Judgment of Hon'ble Apex Court in Pasupuleti Venkateswarlu v. Motor and General Traders, (1975) 1 SCC 770 at page 772 wherein it has been held that if a fact, arising after the lis has come to Court and has a fundamental impact on

the right to relied or the manner of moulding it, is brought diligently to the notice of the court it cannot ignore it . His Lordship V.R. Krishna Iyer speaking for the majority held "4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judi- cial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice -- sub- ject, of course, to the absence of other disentitling factors or just circum- stances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling re- sort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the cur- rent realities, the Court can, and in many cases must, take cautious cog- nisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."

Further, the High Court of Madhya Pradesh has also held in AIR 1975 Madhya Pradesh 193 Santosh Chandra and Ors. Vs. Gayansundarbai and ors that if plaintiff was in possession of suit land on the date of institu- tion of suit, he/she is not required to ask for consequential relief along with relief for declaration.

This Court has also held in 2005(3) JCR 188 (Jhr) Jaikishan Chaudhari Vs Ramdeo Chaudhari that Confirmation of possession include recovery of possession.

19. It is the consistent case of the plaintiff that at the time of filing of the Suit the defendants were not in possession over the suit land, therefore there was no occasion to claim for consequential relief of possession. The existence of a registered sale deed by Defendant No.1 where he had no interest to transfer, provided sufficient cause of action for the plaintiff to come with a suit for declaration simpliciter. It is also a settled prin- ciple of law that possession ordinarily goes with title. The exceptions are very few and require specific pleadings and preferably documents to support which is not there in this case. Thus, consequential relief cannot be denied to a title holder against one who had no semblance of title on the technical ground that consequential relief was not prayed for. The facts in the case explain the reason for not seeking the recovery of pos- session at the time of institution of suit, which in my considered view cannot be a ground for refusing the same.

20. In view of the aforesaid discussion and for the reasons stated above the substantial question of law is answered in favour of the Plaintiff/ Respondent No.1 and against the appellants. I do not find any infirmity in the Judgment and decree passed by the Court below which is accor- dingly affirmed.

This is a case where the Defendant No.1 sold the suit property to third party without having ownership over the suit property engendering liti- gation which has continued since 1985 for about four decades. A Party before filing his claim or defence must examine the truth and correct- ness. Later on, when an appeal is filed he must assess the truth and mer- its of his appeal before filing the appeal and pursuing it. All incentives for meritless litigation must be removed.

It was precisely to curb such cases that the Delhi High Court imposed a cost of Rs.15,10,000 to be recovered from the petitioners jointly and severally in Padmawati v. Harijan Sewak Sangh, (2008) 0 Supreme (Del) 1120 also excerpted in 2012 (6) SCC 461 and observed " Before parting with this case, I consider it necessary to pen down that one of the reasons for overflowing of the court dockets is the frivolous litigation in which the courts are engaged by the litigants and which is dragged on for as long as possible. Even if these litigants ultimately lose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions

from the courts must be made to pay the sufferer not only the entire ille- gal gains made by them as costs to the person deprived of his right, but also must be burdened with exemplary costs. The faith of people in judi- ciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the court and ulti- mately win, they would turn out to be a fool since winning a case after 20 or 30 years would make the wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years' long litigation. Despite the settled legal positions, the obvious wrongdoers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the courts." This was approved by the Hon'ble Supreme Court in Indian Council for Enviro-Legal Action Vs Union of India (2011) 8 SCC 161 at para 174 and 175.

Considering the long delays caused by frivolous litigations in Jharkhand, I will also take the same view.

21. The Courts are required to award cost as per specific provision for awarding cost under Section 35. The general rule under Section 35(2) of the Code is that costs shall follow the event unless for good reason the Court holds otherwise. Actual cost and not nominal cost should be im- posed which will depend upon different factors and will include every- thing that increases litigation.

The appeal is dismissed with cost.

The cost assessed is Rs 100,000 (Rupees one lakh).The purchasers of the suit property who purchased it from a person who had no title to sell it, cannot escape liability for paying cost as it is not in the normal course of human conduct that one will purchase without verifying the title. The lia- bility for payment of cost is jointly and severally on the Defendant no.1,2 and 3 (in case of death their LRs) to the Plaintiff Kasida Devi within three months of the order failing which the Plaintiff/Respondent no.1 shall be at

liberty to realize the amount as a money decree as per the provision of law.

The parties are permitted to get the return of the exhibited documents filed in this Court.

Consequently, I.A. Nos. 117/2017, 2154/2014 and 4858/2017 stand disposed of.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 11th January, 2022 AFR / D.S.