Bijay Singh vs Dashrath Sahu Son Of Late Sohrai ...
2022 Latest Caselaw 2902 Jhar

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             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         S.A. No. 256 of 2005

 1. Bijay Singh
 2. Dinai Singh
 3. Sarman Singh @ Sarwan Singh
 4. Suresh Singh
    All sons of Late Kailu Singh
 5. Keshari Sahu
 6. Mahadeo Sahu
    Both sons of late Harlal Teli,
    All residents of village- Arra P.O.- Tapez, P.S. & Dist- Chatra.

                                                 .....    .....          Appellants.
                       Versus

      1.
      Dashrath Sahu son of late Sohrai Teli
      2.
      Sewa Sahu
      3.
      Lachhman Sao
      4.
      Ram Kishor Sao
      Sons of Dasrath Sao,
      All residents of village- Arra, P.O.- Tapez, P.S & Dist- Chatra.
                                               .... ....            Respondents
                                 ------

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant(s) : Mr. Kundan Kumar Ambastha, Advocate Mr. Amar Kumar Sinha, Advocate

For the Respondent(s) : Mr. B.K. Sinha, Advocate.

                                       Mr. Saibal Mitra, Advocate

CAV ON 10.05.2022                           PRONOUNCED ON 28 .07.2022

1. Appellants are the Defendants who have preferred the appeal against

the judgment passed by the District Judge, Chatra allowing Title Appeal

No. 41/2004 and setting aside the judgment and decree dated

27.08.2004 passed by Munsif in Title Suit No. 03 of 1990.

2. The plaintiffs/respondents filed Title Suit No. 3/1990 for declaration of

title and confirmation of possession and in the alternative for recovery

of possession which respect to the suit lands appertaining to khata no.

21 measuring an area of 3.50 acres.

Plaintiffs' case

3. The plaintiffs claim the suit property as reversioner of Fuchan Teli who

died issueless in or about 1930 in the state of jointness with their

ancestor Gopal Teli. Widow of Fuchan Teli died shortly thereafter and

Gopal Teli became the owner of the land. Gopal Teli died in the year

1945 leaving behind his only heir Sohrai Teli who came and continued

to be in possession of the same. The plaintiff no.1 Dashrath Sahu is the

son of Sohrai Teli, whereas Plaintiff no.2-4 are the sons of Dashrath

Sahu who formed the joint Hindu family.

4. Cause of action arose after the defendants started disturbing their

peaceful possession consequently a proceeding was initiated by the

plaintiffs under Section 144 of the Cr.P.C in respect of land under khata

no.21. From the show cause filed by the defendants the plaintiffs came

to know that the defendants were claiming the land under Court auction

purchase in execution case no. 62/1935-36 filed against Kishuni Teli

W/o Fuchan Teli who had died soon after the death of her husband. The

land lord had no right to auction sale the land as there was no arrear of

rent and the sub divisional officer had no authority or jurisdiction to

grant sale certificate.

Defendants' Case

5. The Defendants contested the case by filing written statement stating

inter alia that Fuchan Teli was independent and separate and acquired

the suit lands under khata no.21 prior to cadastral survey out of his own

income and similarly the land of khata no. 7 was acquired by Gopal

Teli. Similarly the lands of khata No. 7 was acquired Gopal Teli and his

name was recorded in survey khatian and both these khatas were never

joint property of Fuchan Teli and Gopal Teli. Fuchan Teli died in or

around 1930 leaving behind widow Most. Kishuni Teli who came in

exclusive possession of the suit land as absolute owners.

6. After the death of Fuchan Teli, the rent of suit land fell in arrears and a

rent suit was filed by the Manager of the Court of wards of Ramgarh

Estate against the widow of recorded tenant Most. Kishuni Telin, and

obtained a decree followed by Execution Case No. 62 of1935-36 in

which the suit land was sold by Court auction. Chhathua and Kailu

Singh purchased the same and were granted sale certificate on

25.11.1935 . After auction purchase both were put in khas possession of

the suit land through processes of the court and they became exclusive

owner and all rights, title of the recorded tenant or their ancestor stood

extinguished.

7. The defendants were making payment of rent to the ex-landlord after

their purchase in auction sale for which they were granted rent receipts

and thereafter they got their names mutated in Government Seristha and

rent receipts were also granted and they have been coming in peaceful

possession. Before vesting of Zamindari, the ancestors of the

defendants had applied for reduction of rent for which rent reduction

purcha was also granted to them. The heirs of Chhathu Teli and Kailu

Singh had partitioned their lands of khata no.21 and now paying rents

separately against separate rent receipts for each of the land of Khata

no.21. In this way, the defendants have denied the right, title, interest

and possession of the plaintiffs/appellants over any portion of the suit

land.

8. The following issues were framed by the trial Court which are as

follows :-

      (i)     Is the suit as framed maintainable?

      (ii)    Is the suit barred by law of limitation, estoppel, acquiescence and

              adverse possession?

(iii) Was there unity of title and possession between Fuchan Teli and

Gopal Teli with regard to the suit land?

(iv) Whether the suit land was purchased by Kailu Singh and Chhatua

Teli in auction sale and delivery of possession was effected?

(v) Whether the suit land devolved upon Gopal Teli by rule of

survivorship being the own brother of recorded tenant?

(vi) Have the plaintiffs any cause of action for the suit?

(vii) Whether the plaintiffs have acquired valid right, title and

possession over the suit land?

(viii) Are the plaintiffs entitles for any relief as prayed in the plaint?

9. The case of jointness of Gopal Teli and Fuchan Teli was not accepted

by the trial court on the ground that the survey khatian Ext.1 finds

mention of only name of Fuchan Teli. Plaintiff's case that widow of

Fuchan Teli to have died few months after his death was also not

accepted for want of any evidence. In this view of matter claim of

reversionary interest over the suit property made by the plaintiff was

denied by the Trial Court and the suit was dismissed.

10. The first appellate Court reversed the trial Court Judgment and decreed

the suit mainly for the reason that there was a presumption of jointness

so it was accepted that after the death of Fuchan Teli and his widow the

property reverted to Gopal Teli which was supported by the testimony

of the plaintiff (PW1) and PW2. Further, defendants' case of purchase

in Court auction sale was not accepted as it was held to be not in

conformity with the procedural requirements under the C.P.C and the

notice of the said sale was not served to Gopal Teli.

11. The suit has been admitted to be heard on the following substantial

question of law:

I. Whether the Court of Appeal has erred in law in recording a

finding of jointness among the parties in respect of the suit

properties?

II. Whether the Court of appeal below has correctly decided issue of

adverse possession vis-a-vis the effect of exhibit D?

12. It is argued on behalf of the appellant that the learned Court of appeal

completely misdirected itself while recording a finding of jointness of

status between Gopal Teli and Fuchan Teli when their property was

separately recorded in the cadastral survey record of rights. Khata 21

which is the suit property was recorded in the name of Fuchan Teli and

Khatan no.7 was separately recorded in the name of Gopal Teli. Their

separate status was buttressed by court auction sale after the death of

Fuchan Teli under which the defendants were given delivery of

possession and their names were mutated and revenue receipts were

issued in the name. On the face of these clinching evidence the order of

reversal based on the oral testimony of the plaintiff and one of his

witnesses was without any sound legal basis. The first court of appeal

failed to meet the reasoning of the trial court while setting aside the

judgment. The sale certificates which were issued in the year 1935 in

pursuance to court auction sale cannot be brushed aside after lapse of

55 years when it had attained finality. The records of rights are not

documents of title but they are evidence to show that after the court

auction purchase the defendants had come into possession. They being

contemporaneous in nature after the execution proceedings, are

evidence to show how the property was dealt with after execution. It is

also argued that in the absence of clear pleading on the point of adverse

possession the plaintiff cannot claim title on its basis. Reliance has been

placed on

Uttam Chand v. Nathu Ram, (2020) 11 SCC 263 : 15. In which Hon'ble The Apex Court reiterated the established principles to make out a case under adverse possession in M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1] 1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case.

On the point of presumption of jointness, reliance has been placed on D.S. Lakshmaiah v. L. Balasubramanyam, (2003) 10 SCC 310 :

18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.

13. The learned counsel on behalf of the respondent defendants has defended the order of the appellate Court. It is submitted that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact. It is true that lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witness accepted by the trial court, the same is no ground for interference in second appeal, when it is found that the appellate court has given satisfactory reason for doing so. Reliance is placed on Mst Sugani Vs Rameshwar Das & anr Appeal (Civil) 3465 of 2000.

14. To put it briefly plaintiffs claim over the suit property is on reversionary interest after the death of the recorded tenant and his widow. Defendants claim is based on court auction purchase from the widow of the recorded tenant whose land was sold in execution proceeding for realisation of rent by the landlord.

15. The plaintiff's claim is grounded on presumption of jointness and oral evidence.

16. The defendant's claim is based on the following evidence:

I. Ext 1/a is the suit land which was recorded in the name of Fuchan Teli in the cadastral survey record of rights. II. Exhibit D is the sale certificate in the court auction sale which shows that the defendants purchased the suit land. III. Ext C is the rent reduction parcha which shows that defendants' ancestors were put in possession after the said auction sale. IV. Exhibit B to B/11 are Zamindari rent receipts of the suit lands in favour of the defendants after the auction purchase

17. On these evidence and specific reasons assigned by the trial Court for dismissing the suit, the learned court of appeal has grossly erred in setting aside the well-reasoned judgment of the trial court. Presumption of jointness is a rebuttable presumption and once there is evidence to the effect that property had been separately held as evidenced by the documentary evidence of possession the presumption of jointness gets rebutted. Here not only the suit land was separately recorded in the name of Fuchan Teli, but it was sold in auction sale for realization of rent by the landlord to the defendants. The auction sale attained finality

after issuance of the sale certificate. In the teeth of auction sale the claim of reversionary interest is not tenable. It has been held in Municipal Corpn. of Delhi v. Pramod Kumar Gupta, (1991) 1 SCC 633 at page 635

5. An examination of the relevant provisions of Order XXI of the Code of Civil Procedure will show that the title to the property put on auction sale passes under the law when the sale is held. The owners and certain other interested persons are afforded opportunity under the Code to make a prayer for setting aside the sale on enumerated grounds, and after all such matters are disposed of without disturbing the sale, the sale is confirmed under Rule 92. The relevant part of Rule 92 reads as follows:

"92. Sale when to become absolute or be set aside.--(1) Where no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the court shall make an order confirming the sale, and thereupon the sale shall become absolute:"

The stage for issuing a certificate of sale arises only thereafter, and Rule 94 states:

"94. Certificate to purchaser.--Where a sale of immovable property has become absolute, the court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute."

It is manifest that the title passes under the auction sale by force of law and the transfer becomes final when an order under Rule 92 confirming it is made. By the certificate issued under Rule 94, the court is formally declaring the effect of the same and is not extinguishing or creating title. The object of issuance of such a certificate is to avoid any controversy with respect to the identity of the property sold, and of the purchaser thereof as also the date when the sale becomes absolute.

It has been held in AIR (31) 1944 Patna 261 Traders and Miners Ltd Vs Dhirendra Nath Banerjee-- A sale certificate granted at a sale in

execution of a mortgage decree is a document of title and is the best evidence to prove what was actually sold even if the description of the property in the mortgage bond on the basis of which the decree was obtained the ambiguous.

Law on the point is crystal clear and on the basis of mortgage deed which is confirmed and the sale certificate is issued that is the best evidence of title and delivery of possession. The sale certificate has not been challenged by any quarter and after more than five decades the plea of the plaintiff that in the auction sale the procedures were not followed cannot be accepted. It may be noted that after the auction sale the defendants were not only accepted as tenant by the ex-landlord and revenue receipts were issued, but even after vesting the state accepted as tenant and issued rent receipts. It is surprising that on the face of these clinching evidences the appellate Court decreed the suit on the basis of oral evidence. The judgment of the appellate Court is perverse to say the least.

18. In the absence of pleadings and evidence on adverse possession the claim of title on its basis is equally misplaced.

19. The second appeal succeeds as both the substantial questions of law are answered in favour of the appellants the judgment and decree passed by the first appellate court is set aside.

The appeal is allowed with cost.

Consequently, I.A. No. 2195 of 2022 stands disposed of.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 28th July, 2022 AFR / AKT