Jharkhand High Court
Unknown vs Has The Plaintiff Got Right on 4 November, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 59 OF 2001
1(a). Etwari Devi
1(b) Tapas Kumar Pramanik
1(c) Bimal Kumar Pramanik
2. Rewati Devi
3. Paro Devi
4. Duro Devi
5. Chutumania Devi
..... .... Appellants
Versus
1(i) Jhagru Hazam
1(ii). Janimjay Hazam
1(iii) Hemant Hazam
1(iv) Phalguni Devi
1(v) Durga Devi
.... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant(s) : M/s V.K. Tiwari, S.M. Mudassar Nazar,
& P.C. Roy, Advocates
For the Respondent(s) : M/s Indrajit Sinha & Ankit Vishal, Advocates
CAV ON 07.09.2022 PRONOUNCED ON 04.11.2022
1. The appellants are the plaintiff of T.S. No. 31 of 1990 and the appeal is
preferred against the order of reversal passed by the appellate Court in Title
Appeal No. 98 of 1995 by 1st Additional Judicial Commissioner, Ranchi,
Jharkhand.
2. The parties shall be referred by their placement in the original suit and
shall include their Legal Representatives substituted from time to time.
3. The plaintiff filed the suit, for declaration of right, title and interest of
the plaintiff over the suit land shown in Schedule A and for declaration that
the sale deed dated 11.9.1946 alleged to be executed and registered by the
plaintiff was forged and fabricated document and not binding on the plaintiff.
The suit land comprised of an area of 4.61 acres being portion of Khata nos.
34 and 33 of village Sindri, P.S Arki Distt. - Ranchi.
PLAINTIFFS CASE
4. The plaintiff is the occupancy raiyat of the suit land (schedule A) was
recorded in the name of Gorachandra Hajam as Kayami in the R.S records of
Rights. The said Gorachandra Hajam was in peaceful possession of the suit
plots till his death in 1948 during his minority. After the death of Gorachand
Hajam, he was looked after by his mother and after the death of his father
inherited the suit land and came in peaceful possession. The plaintiff used to
pay rent earlier to the Ex- landlord and on vesting of the estates, to the State of
Bihar till 1961-62. After that one Radha Govind Sao began to lay claim over
the suit land on the basis of a registered deed of sale alleged to have been
executed and registered by Smt. sakhibala and Sahdeo Hajam.
5. A case was then instituted being G.R Case No. 506/75 against the
plaintiff which ended in acquittal on 20.01.82. After acquittal the plaintiff
filed a petition before the L.R.D.C for accepting rent from him in respect of
the suit land. The case was contested claiming to have purchased the suit land
along with others by registered sale deed executed and registered allegedly by
the plaintiff in favour of Sahdeo Hajam and Sakhibala as far back as on
11.09.46. The plaintiff thus, for the first time, came to know about the said
sale deed in 11.9.46.
6. It is contended that the plaintiff had never executed and registered any
deed of sale with respect to the suit land in favour of Sahdeo Hajam and
Sakhibala and the said deed was forged and fabricated one and the same was
never acted upon and the plaintiff was in peaceful possession of the suit land.
Plaintiff had not received any consideration for the said deed dated 11.09.46.
CASE OF THE DEFENDANT
7. Sakhibal w/o Sahdeo Hazam is the defendant who claims to have
acquired title by the registered deed of sale executed by the plaintiff
Jagmohan Hazam. The suit was barred by limitation. The plaintiff having sold
the land had absolutely no title. Gorachand Hajam died in or about 1942 and
at that time the plaintiff had attained majority. After the acquisition of the suit
land by virtue of registered deed of sale dated 11.09.46 the defendants have
been coming in peaceful possession and their names have been duly recorded
in Register II in the office of the State of Bihar and they have been regularly
paying rent. Radha Gobind Sahu had not claimed the land of khata no.33 plot
no. 41 after 1961-62 rather he had claimed only in the year 1975 after
institution of G.R. Case No. 506 of 1975. Misc. Case No. 3/84-85 was also
contested in favour of the defendants. The defendant along with her husband
were in possession since their purchase from Jagmohan Hazam and their
names have been duly mutated and finds place in Register II and rent receipts
were being regularly issued in his name after 1961-62. The plaintiff had
registered the lands of Khata no.33 plot no.41 to the Defendant and her
husband had been given possession over the same. Miscellaneous Case No.3
of 1984-85 was also decided in favour of Umacharan Hazam.
8. On the basis of the pleadings of the parties the following issues have
been framed :
I. Has the plaintiff any cause of action for the suit?
II. Is the suit maintainable in its present for?
III. Is the suit properly valued?
IV. Is the suit barred by limitation, adverse possession and ouster?
V. Has the plaintiff got right, title and interest and possession over the suit
land?
VI. Is the sale deed dated 11.09.46 executed in favour of the defendant
genuine, legal and binding on the plaintiff?
VII. Was the plaintiff minor in the year, 1946?
VIII. Is the plaintiff entitled to any other reliefs?
9. The Learned Trial court held that sale deed dated 11.09.46 was wholly
legal and genuine and the plaintiff failed to prove his right, title and interest or
possession over the suit land. It was further held that the plaintiff was major
and married in the year 1946. The suit has been filed after 44 years from the
date of sale deed of the year 1946, thus the suit is barred by law of limitation.
On the suit land Umacharan Hazam son of the Defendant was in possession.
The plaintiff had failed to prove title and possession over the suit land. The
plaintiff is not entitled to any relief. The plea of minority of the plaintiff at the
time of execution of the sale deed in 1946 has been rejected for the reason that
the plaintiff failed to produce any documentary evidence in support of his
claim of minority. Plaintiffs witness no.1, 4 and 6 had not stated anything on
this issue to support the claim of minority. It has only come in the testimony
of P W5 Haripado Das that Gorachand Hazam had died in the year 1948 and
at that time Jagmohan was aged 10/11 years whereas Jagmohan (PW7) has
himself deposed that he was 10 years of age at the time of the death of his
father. DW1 in para-2 has deposed that at the time of execution of the sale
deed the plaintiff was a major. That there was consistent evidence of
possession in favour of the defendants.
10. Learned First Court of Appeal allowed the appeal in part. The Judgment
and decree passed by the court below with respect to the title of the Defendant
was set aside and declared in favour of the plaintiff with respect to Schedule
A land. The appeal is with respect to relief no. (b) which was dismissed. The
title for the suit land was declared in favour of the plaintiff for the reason that
the defendants had not produced the title paper of the suit land before the
SDJM to show that title over it. This factor was considered by the first
appellate court to have created doubt on the execution of the sale deed. Not
producing the original sale deed dated 11.9.1946 created doubt on the sale
deed to have been executed by the plaintiff. Thus, an adverse inference was
drawn for non-production of the original sale deed and the evidence of
Sakhibal (Defendant) explaining the loss of the original sale deed was not
accepted by the first appellate Court. Exhibit C which was the recital of the
sale deed dated 11.9.1946 and mutation of the defendants and issuance of rent
receipts in their favour was also not accepted. As per exhibit C the lands of
khata no.34 and 33 had been sold by the plaintiff to the defendant Sakhibala
and her husband Sahdeo Hazam (Defendants) but the defendant had not
claimed the land of khata no.34.
11. The plaintiff had pleaded that he was minor at the time of execution of
the sale deed dated 11.4.1946. It held that the defendant had failed to examine
the scribe and witness and identifier of the sale deed to prove that it had been
executed by the plaintiff. The non-examination of any witness became fatal to
the defendants case that plaintiff was major and the time of execution of the
deed. The appellate court held that the plaintiffs case of his minority the year
1946 was proved. However, the suit for cancellation of the sale deed was held
to be time-barred.
12. Before moving forward it will be desirable to note that the prayer for
relief (a) for declaration of right title and interest has been allowed. The
prayer for the relief (b) was to declare the registered sale deed dated 11.9.1946
as null and void, has not been allowed as being time barred.
13. The appeal has been admitted to be heard on the following substantial
question of law:
"Whether the Courts below erred in law in entertaining the suit and
declaring the plaintiff's title over the suit Property?"
14. There is an inherent contradiction in the Judgment of the first appellate
Court. Once it is accepted that the sale deed was valid and not void, then it
perforce followed that by the registered sale deed, the title was transferred to
the defendant from the date of execution of the sale deed in terms of Section
47 of the Registration Act, 1908. In this view of matter to hold and declare the
title of the plaintiff for the entire suit land, while not declaring the sale deed to
be void, was antithetical and bizarre.
15. Registered sale deed was executed in the year 1946 followed by
mutation of the land in the name of the defendants, and rents being accepted
by them as tenant has been proved beyond reproach. Certified copy of the
registered deed has been adduced into evidence and marked as exhibit C. The
rent receipts being issued after the execution of the sale deed has also been
proved and marked as Exhibits B series. The learned first appellate Court
brushed aside all these evidence on the ground that the original sale certificate
was not produced by the Defendants, and the onus was on the Defendants to
prove.
16. The approach of the appellate Court was fallacious, legally not tenable
for the following reasons:
Firstly, the certified copy of the sale deed is admissible into evidence as
public document and the formal proof of it is not required. In 2009(4)
JLJR 271 Dhirendar Bihari Srivastava Vs. Smt. Leela Mishra it has
been held that once a sale deed is registered there is no need to examine
vendor and vendee. It can be straight way marked as exhibit. Ratio of
2010(4) JLJR 454 Santosh Kumar Vs Purnima Kumari is also to the
same effect.
Secondly, the learned Appellate Court was utterly wrong to hold that onus
was on the Defendants to prove that the registered sale deed was duly
executed. It has been held in 2009 (5) SCC 713 Vimal Chand Ghevar
Chand Jain Vrs. Raman Kanth Eknath Jadoo that there is presumption
of genuineness in favour of registered document and heavy burden lies on
the party who assails such a document.
Thirdly, the trial Court was absolutely right to hold that oral evidence on
minority of the vendor cannot be accepted in the absence of any
documentary evidence. Even the oral evidence was not consistent and
unambiguous on the point. To accept such a proposition shall render all
registered instruments open to challenge by oral evidence.
Fourthly, mutation and issuance of rent receipts are evidence that the sale
deed was acted upon.
17. Under the aforesaid facts and circumstance of the case, the Judgment
and decree of the appellate Court of declaring title with respect to the part of
the suit land which had been transferred by registered deed of sale of 1946, is
not sustainable and accordingly is set aside. The sale deed was legal and valid
document which transferred the property.
18. Before parting it needs to be noted that the sale deed dated 11.9.1946
was executed by Jagmohan Hazam in favour of Sahdeo Hazam and Ors. has
been adduced into evidence and marked as Ext C. The sale deed is with
respect to the following property:
Khata no.34
Plot no. 952 Area -.08 acre
Plot no.953 Area- 1.73 acre
Plot no. 954 Area-.08 acre
Plot no. 1208 Area -.58 acre
Total = 2.47 acre
Khata no.33
Plot no. 41 Area 1.16 acre.
19. The suit is filed for declaration of title over the land, measuring an
area of 6.61 acre fully detailed in Schedule A of the plaint, which includes the
property already transferred by registered deed of sale. The plaintiff is entitled
to a decree for declaration of title and possession with respect to land detailed
in the Schedule of the plaint, excluding the land as mentioned above
transferred by the plaintiff by Registered sale deed dated 11.09.1946. Thus the
right title and interest of the plaintiff in Schedule-A property is declared
excluding the 3.63 acre of land transferred by the registered sale deed stated
above.
The substantial question of law is accordingly answered that the
appellate Court grossly erred in its finding while setting aside a well-reasoned
Judgment of the trial Court on the validity of registered sale deed.
The suit of the plaintiff is decreed as at above.
With the above modification in the finding and order the appeal
stands dismissed with cost.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 4th November, 2022
NAFR / AKT
