Jharkhand High Court

Deonath Lal vs Bhagwati Devi on 10 September, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
               S.A. No.65 of 2021
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Deonath Lal, aged about 71 years son of Niranjan Lal @ late Dashrath Lal, r/o Holding No.314, Line No.11, Kashidih, P.S.-Sakchi, Dist.-East Singhbhum .... .... .... Appellant Versus

1. Bhagwati Devi, w/o Husband's/Father's name not known to the plaintiff/appellant, resident of Road No. 04, Jawahar Nagar, P.O.- Mango, P.S.-Mango Town, Jamshedpur, Dist.-East Singhbhum

2. Amar Lal, s/o not known to the plaintiff/appellant, resident of Ulidih, Tank Road Mango, P.O. & P.S.-Mango Town, Jamshedpur, Dist.-East Singhbhum .... .... .... Respondents

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For the Appellant : Mr. Prabhash Kumar, Advocate : Mr. Manish Sharma, Advocate For the Respondents : Mr. Amitabh Prasad, Advocate : Mr. Gunendra M. Mishra, Advocate

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PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the learned counsel for the appellant.

2. This second appeal has been preferred under Section 100 of

Code of Civil Procedure against the judgment and decree of

affirmance dated 27.03.2021 passed by the learned District Judge-

VII, East Singhbhum at Jamshedpur in Civil Appeal No.9 of 2019

whereby and where under, the learned first appellate court has

upheld the judgment and decree passed by the learned trial court

being Civil Judge (Sr. Div.)-I, Jamshedpur in Title Suit No. 20 of

2012.

3. The brief fact of the case is that the plaintiff-appellant filed

Original Title Suit No. 20 of 2012 in the court of Civil Judge (Sr.

Div.)-I, Jamshedpur with a prayer for declaration of title and

ownership of the plaintiff over the suit house, cost of the suit and

other reliefs.

4. The case of the plaintiff in brief is that the plaintiff

purchased the suit property by a registered sale deed from

Basiruddin. After purchase, the plaintiff renovated the house and

made it habitable. The plaintiff is paying water, electricity and

other charges to the municipality regularly. The defendant no.3 has

wrongly mutated the suit house in the name of the elder brother of

the plaintiff Sidhnath Prasad who died issueless on 02.04.2006.

After death of Sidhnath Prasad the defendant nos.1 and 2 started

making false claims with regard to the suit property, being the

successor of Sidnath Prasad and threatened to evict the plaintiff.

Hence, the plaintiff filed the suit.

5. The defendant nos. 1 and 2 in their written statement

challenged the maintainability of the suit of the plaintiff on various

technical grounds and pleaded that they are the wife and son

respectively of Sidhnath Prasad. Sidnath Prasad was an employee

of defendant no.3. Hence, the suit premise was allotted to Sidnath

Prasad by the defendant no.3. When the house was allotted to

Sidnath Prasad the plaintiff being the younger brother of Sidnath

Prasad was in permissive possession in the portion of the suit

premises but after death of Sidnath Prasad the appellant intends to

grab the suit property and with ill motive has filed the suit. The

defendant nos.1 and 2 claimed that they are paying rent and bill to

the defendant no.3 after death of Sidnath Prasad.

6. The pro-forma defendant no.3 being Tata Steel Ltd. also

challenged the maintainability of the suit and besides, it has been

pleaded by the defendant no.3 that the vendor of the plaintiff

namely Md. Basiruddin had never any authority to execute any

sale deed in favour of the plaintiff transferring the suit property

which belong to the said pro-forma defendant no.3. The pro-forma

defendant no.3 had no knowledge about the execution of any sale

deed by the vendor of the plaintiff in favour of the plaintiff and the

plaintiff is not paying electricity, water or any other charge to the

defendant no.3 in his name. The defendant no.3 further pleaded

that the suit premises was never mutated in the name of Sidnath

Prasad but it was allotted in the name of Sidhnath Prasad in

respect of holding bearing holding No. 315, Kasidih.

7. On the basis of rival pleadings of the parties, the learned

trial court settled the following five issues:-

(I) Whether the suit is maintainable in its present form? (II) Whether the suit is barred by estoppel, wavier, acquiescence and limitation?

(III) Whether the plaintiff has got valid cause of action to bring this suit?

(IV) Whether the plaintiff is entitled to get right, title, interest and possession over the schedule house property? (V) Whether the plaintiff is entitled to get any other relief or reliefs as claimed for?

8. In support of his case, the plaintiff examined altogether

three witnesses and proved the documents which have been

marked Ext. 1 to Ext.10. On the other hand from the side of the

defendant nos.1 and 2, altogether two witnesses and from the side

of the defendant no.3 one witness was examined. The defendants

also proved the documents which have been marked Ext. A to F.

9. The learned trial court first took up issue no. IV and after

considering the materials in the record , came to the conclusion

that the sale deed marked Ext.1, by which the plaintiff allegedly

purchase the house from his vendor, has never came into force and

it remained inoperative and the plaintiff has got no title and

ownership of the suit property and decided the issue no. IV against

the plaintiff. In respect of issue no. I next taken up by the learned

trial court, the learned trial court held that the suit is not

maintainable. The learned trial court answered the issue no. II, by

holding that the suit is barred by estoppel, wavier, acquiescence

and the learned trial court disposed of the issue of limitation as not

pressed and decided the issue no. II accordingly. The learned trial

court then took up issue no. III and held that the plaintiff has no

valid cause of action. Lastly the learned trial court took up issue

no. V and came to the conclusion that the plaintiff is not entitled to

get any relief and dismissed the suit.

10. Being aggrieved by the judgment and decree passed by the

learned trial court, the plaintiff-appellant filed Civil Appeal No.09

of 2019 in the court of Principal District Judge, Jamshedpur which

was ultimately heard and disposed of by the learned first appellate

court by the impugned judgment and decree.

11. The learned first appellate court on the basis of the materials

in the record and submissions made before it, formulated the

following four points for determination :-

"(i) Is the suit barred by law of limitation, estoppel, waiver and acquiescence?

(ii) Is the suit barred under Section 34 of the Specific Relief Act?

(iii) Is the suit bad for non-joinder of necessary party?

(iv) Has the appellant/plaintiff right and title over the suit premises?"

12. The learned first appellate court first took up the point for

determination no. (i) and after considering the materials in the

record independently, came to the conclusion that the plaintiff

himself waived his right, if any, over the suit property and thereby

accepted and acquiesced the ownership right of Sidhnath Prasad

over the suit property. The learned first appellate court further

held that the suit of the plaintiff is barred by law of limitation,

waiver, estoppel and acquiescence and decided the same against

the plaintiff.

13. The learned first appellate court next took up second point for

determination and after considering the materials in the record

concluded that the plaintiff though being able to seek further relief

than a mere declaration of title, omitted to do so, so the suit is

barred under Section 34 of the Specific Relief Act. In respect of

third point for determination, the learned first appellate court held

that since it is admitted case that the Government of Jharkhand is

the owner of the suit property so Government of Jharkhand was a

necessary party to the suit hence, the suit is bad for non-joinder of

necessary party. Lastly the learned first appellate court took up the

fourth point for determination and after making independent

appreciation of the evidence in the record came to the conclusion

that the plaintiff has no title and ownership over the suit property

and dismissed the appeal and upheld the judgment and decree

passed by the learned trial court.

14. It is submitted by the learned counsel for the appellant that

both the courts below could not appreciate the evidence in the

record in its right perspective. It is then submitted by the learned

counsel for the appellant that both the courts below has failed to

appreciate that the plaintiff has established his ownership and title

by way of unchallenged sale deed which has been marked Ext.1.

Hence, it is submitted that the judgment and decree passed by

both the courts below be set aside and the suit of the plaintiff be

dismissed after formulating appropriate substantial question of

law.

15. Having heard the submissions made at the Bar and after

carefully going through the materials in the record, so far as the

contention of the plaintiff that Ext.1- the sale deed executed by his

vendor Md. Basiruddin in his favour having not correctly

appreciated by the courts below is concerned, It is a settled

principle of law that a vendor cannot by a sale deed transfer the

title better than what he was having, at the time of execution of the

sale deed.

16. Now coming to the facts of the case, Md. Basiruddin had no

title over the suit premises, in respect of which the sale deed has

been executed by him in favour of the plaintiff, which has been

marked Ext.1. So even if Ext. 1 has remained unchallenged, since

Md. Basiruddin was not having any title or ownership over the

suit premises and the same could not be established by the

plaintiff, so obviously no title could have been accrued to the

plaintiff by virtue of the said sale deed marked Ext.1 and in fact no

right, title or interest has accrued to the plaintiff, by such sale deed.

Hence, this Court is of the considered view that no illegality has

been committed by both the courts below in appreciation of the

contention of the plaintiff on the basis of the sale deed which has

been marked Ext.1 is concerned.

17. So far as the contention of the appellant that the courts

below could not appreciate the evidence in the record in their right

perspective is concerned, it is a settled principle of law that the

concurrent finding of fact can be interfered with in this second

appeal in exercise of the power under Section 100 and 104 of Code

of Civil Procedure only if there is perversity in the finding of fact

as has been held by the Hon'ble Supreme Court of India in the case

of Gurvachan Kaur and Others v. Salikram (Dead) through LRs.

reported in (2010) 15 SCC 530, paragraph no.10 of which reads as

under:-

"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." (Emphasis supplied)

18. Perversity as is applicable to the present facts of the case as

one in which the finding of fact is returned based on no evidence

or inadmissible evidence or excluding any admissible evidence or

when the finding defies any logic so as to incur the vice of

arbitrariness.

19. Now coming to the facts of the case, as already indicated

above, the plaintiff could not establish any title of his vendor so

obviously the vendor of the plaintiff could not transfer any title or

ownership, which the vendor himself was not having, by virtue of

the sale deed marked Ext. 1. This Court also finds that both the

courts below has not considered any inadmissible evidence nor

they have ignored any admissible evidence nor finding of facts can