Jharkhand High Court
Md. Rebbani Alam Aged About 59 Years vs Md. Nesar Ahmed Son Of Late Abdul Sattar ... on 23 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Second Appeal No.128 of 2024
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1.Md. Rebbani Alam aged about 59 years
2. Md. Mahmood Alam, aged about 55 years
3.Md. Mkbul Alam aged about 50 years all son of late Md Shekh Elahi Bux
4.Jaheda Khatoon aged about 56 years wife of late Jilani Alam
5.Md. Firdaus Alam aged about 38 years
6.Md. Mahfooj Alam aged about 32 years
7.Md. Tausif Alam aged about 28 years sl.no.5 to 7 are son of late Md
Jilani Alam - All are resident of Village Sisai, PO and PS Sisai, District
Gumla
...... .... ... Appellant(s)
-- Versus --
Md. Nesar Ahmed son of late Abdul Sattar resident of Village and P.O. and
P.S. Sisai, District Gumla ................. Defendant/Respondent/Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant(s) :- Mr. Rahul Kumar Gupta, Advocate
For the Respondent(s) :-
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4/23.01.2025 Heard Mr. Rahul Kumar Gupta, the learned counsel appearing on behalf
of the appellants.
2. This second appeal has been preferred against the judgment and decree
dated 6.7.2024 passed by learned District Judge-III, Gumla, with regard to Civil
Appeal No.22 of 2018 whereby the learned court has been pleased to dismiss
the appeal and affirm the judgment and decree passed by learned Civil Judge,
Senior Division-II, Gumla in Title Suit No.38 of 2009 by judgment dated
31.08.2018 and decree dated 4.9.2018.
3. The plaintiff-appellant has instituted the Title Suit No.38 of 2009 for
declaration of right, title and possession over the suit land and declaration of
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sale deed No.2319 of 2006 dated 10.10.2006 instituted by the plaintiff in favour
of the defendant be declared void ab initio and of no consequence as described
in schedule of the plaint.
4. The case of the plaintiff, in short, is that the lands under Khata no. 183,
plot no. 2382, Area 0.54 acres including some other lands of village and PS
Sisai, District Gumla has been recorded in the R.S record of right in the names
of Lakku Teli, Mali Teli and Gunga Teli sons of late Gansu Teli of the village and
P.S Sisai. Mali Teli and Gunga Teli died issue less and Mali Teli died leaving
behind his widow Somari Sahun. Somari Sahun W/o Malı Teli had sold the land
under khata no. 183, plot no. 2382, Area 0.35 acres out of 0.54 acres towards
east in favour of Sk. Md Elahi Bux S/o Late Sk Karim Bux through registered
sale deed no. 421 dated 3.3.1965 for her legal necessity after taking valid
consideration. The land was shown in remarks column of R.S record of right
under the possession of Mali Teli after getting the land purchased, the plaintiff
came in possession, got his name mutated and he is paying the rent and cess
regularly to the State without any interruption from any corner Besides this he
has erected boundary wall over his purchased area, and also a house bearing
six rooms.
The plaintiff fell in urgent need of money and sold the land under Khata
no. 183. plot no 2382. Area 0.09 acres out of 0.35 acres towards West in favour
of the defendant through registered sale deed no. 2319/06 dated 10-10- 2006
for a consideration of Rs. 1.76,000/- (One lac seventy six thousand). The
defendant assured him that all the consideration amount will be paid as earlier
as possible and the plaintiff accepted the payment in deed, but the defendant
on demand by the plaintiff, always used to post-pone the matter for some
pretext or the other and as yet he did not pay a single paisa to the plaintiff Now
three years is going to be elapsed but on repeated request the defendant did
not pay the consideration amount to the plaintiff. Due to non payment of sale
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consideration money the plaintiff has not delivered possession to the defendant
and the plaintiff is still in possession over the suit land. Due to non payment of
consideration money the title did not pass to the defendant. The plaintiff
demanded the consideration money lastly 25-09-2009, but the defendant refuse
to pay the consideration amount, Hence the plaintiff is compelled to file this
suit.
5. The case of the defendant is that upon notice, the defendant appeared in
title suit before the trial Court and has filed his written Statement contesting the
claim and prayer made on behalf of the Plaintiff. It has been contended that
this suit as framed in its present form is not maintainable and is fit to be
dismissed. There is no cause of action for the suit and those reveal in
paragraph 9 or elsewhere in the plaint are all concocted and fabricated for the
purpose of the present suit. The facts are otherwise different than those stated
in the plaint. The real facts are that the plaintiff on 10.10.2006 executed a sale
deed no 3739 in favour the defendant, before execution of the sale deed
plaintiff receiving full consideration money of the land Rs. 1,76,000/- (Rupees
one lac seventy six thousand) and expended this consideration money in his use
because at that time he was facing hardship and urgently required money
hence full consideration money was paid to the plaintiff before execution of the
sale deed in favour of the defendant. The plaintiff before execution of the sale
deed had shown the land to the defendant and had also shown the sale deed
by which he had acquired the land and believing upon the plaintiff the
defendant agreed to purchase the land of sale deed and after that full
consideration amount was paid to the plaintiff. After execution of sale deed by
the plaintiff, defendant started construction of building on the land shown by
the plaintiff to the defendant and when up to Lintel Level bricks work was done,
one Ludhuwa Sanu inheritor of the recorded tenant of Khata no. 183 along with
some other persons came there and asked the defendant to stop the work
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because plot no 2383 is his own land on which the defendant was constructing
building and this plot of land was never sold to SK. Md Elahi Bux and also
Record of right of khata no. 183 in which plot no 2382 is not there which was
sold to this defendant by the plaintiff, after the said occurrence the defendant
on his own began to inquire about the details of the land and found that there
is no plot no. 2382 in Khata no. 183 The plot no. 2382 is situated in khata no.
133, which is recorded in the joint names of Gandur Oraon son of Budhu Oraon
and Dukha Oraon son of Jata Oraon of the village. The defendant went to the
plaintiff and asked to return the consideration money which was paid to him by
the defendant stating all the fact which has came in the knowledge of the
defendant from Ludhuwa Sahu and also going through R.S Khata no 133 of the
village but the plaintiff told the defendant that he shall also inquire in the
matter himself and then he shall pay back consideration money to the
defendant. but after repeated requests made to the plaintiff by the defendant,
plaintiff did not return back the amount. The defendant informed several
persons of the village, but the villagers told the defendant that plaintiff is active
member of congress any and if any case is instituted against him, plaintiff shall
drag the defendant in several false cases, hence the defendant could not
institute any case against the plaintiff for his own acts. It is further pleaded
that the defendant had spent a huge amount in constructing building up to
Lintel level as such he approached Ludhuwa Sahu, and asked to sale the land
on which building was constructed up to Lintel level being plot no. 2383 under
khata no 183 and Ludhuwa Sahu agreed to sale the land and after receiving full
consideration money from the defendant, Ludhuwa Sahu executed sale deed no
1817/1786 dated 14-7-2009 after knowing the fact of execution of sale deed by
Ludhuwa Sahu in favour of the defendant, the plaintiff has instituted the
present suit on false and concocted statement on 5.10.2009 The defendant has
denied each and every statement of the plaint except which has been
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specifically admitted. The defendant has denied that plot no 2382 has been
recorded under khata no 183. It has been contended that the plaintiff has got
sale deed executed by Soman Sahu for plot no 2382 not for plot no 2383 The
Plot no 2383 is not under khata no. 183 but this plot is of khata no 133 which is
Adivasi khata and as such plaintiff has got no right, title or possession over plot
no. 2383. The land of plot no. 2382 may have been mutated in favour of the
plaintiff, but the mutation order is itself wrong because the Raiyat of Khata no
133 have never sold the land to the plaintiff and this deed has been executed
by the plaintiff playing fraud upon the defendant after receiving full
consideration money in presence of witnesses before the execution of sale
deed. The plaintiff is not in possession over on a single inch of plot no. 2383
and prayer has been made to dismiss the suit with compensatory costs.
6. Mr. Rahul Kumar Gupta, the learned counsel appearing on behalf of the
appellants submits that the learned courts have failed to appreciate that the
sale consideration of the suit land was not paid to the plaintiff which was the
root cause to file the suit. He submits that the law points are involved to that
effect and in view of that, this second appeal may kindly be admitted on that
law point(s).
7. The learned trial court has framed the five issues to decide the suit.
8. Issue no.4 was with regard to sale deed executed by the plaintiff in
favour of the defendant is void ab initio or not?
9. Issue no.3 is with regard to that the plaintiff has got the right, title and
interest over the suit property or not?
10. Issue nos.3 and 4 have been taken together by the learned trial court.
11. The learned trial court has appreciated the evidences of the P.Ws as well
as the documentary evidences and then the learned court has come to the
conclusion that the plaintiff Shekh Md. Elahi Bux has executed the sale deed
no.2319 of 2006 dated 10.10.2006 in favour of Md. Nesar Ahmed, exhibited
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Exhibit-B by the defendant. It has been accepted by the plaintiff that he has
executed the sale deed dated 10.10.2006 and has got it registered. It has also
been accepted by the plaintiff that the said sale deed is used by the defendant
the document for title and further it was not the case of the plaintiff that he
was not aware of the legal effect of the said sale deed. The sale deed was
registered one and pursuant to that, the right, title and interest has been
transferred to the purchaser.
12. The learned court relying on the judgment of the Hon'ble Supreme Court
in the case of Prem Singh v. Birbal reported in (2006) 5 SCC 353 has
found that there is presumption that registered document is validly executed
which is valid in law and onus to prove would be on a person to made evidence
to remove presumption and the plaintiffs have failed to do so. The court has
also found that the declaration of the sale deed was sought to be null and void.
However, no attempt was taken to exhibit the sale deed and on the other hand,
the defendants have exhibited the sale deed. The plaintiff on oral evidence have
contested that the consideration was not paid. However, no attempt was made
to prove that. On the other hand, the defendants have led oral and
documentary evidence placed on record that sale deed was executed only on
payment of consideration amount of Rs.1,76,000/-, that has also been recorded
in the sale deed and the consideration amount was also disclosed and
thereafter the execution was made. Considering this the learned trial court has
been pleased to dismiss the suit.
13. Aggrieved by the judgment dated 31.8.2018, the said judgment was
challenged by the appellants herein in Civil Appeal No.22 of 2018 which was
decided by the judgment dated 6.7.2024 by the learned appellate court and has
been pleased to dismiss the appeal and affirmed the order of the learned trial
court. The learned appellate court in paragraph no.17 has further made points
to decide the appeal. The learned appellate court has also considered that PW1
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is son of plaintiff and reiterated the contents of the plaint during his evidence.
The defendant witnesses contesting the claim by plaint have deposed that the
consideration amount was paid at the time of execution of sale deed. PW2
Mangar Mahli has deposed that the plaintiff Shekh Md. Elahi Bux has sold land
to Md. Nesar Ahmed on payment of consideration of Rs.1,76,000/- by
registered sale deed no.3739 dated 10.10.2006. He has also deposed that
plaintiff has shown previous sale deed and the land of the defendant prior to its
registration and the learned appellate court has further dealt with the other
witnesses and the documents and has affirmed the order. There is concurrent
finding of the two learned courts and no law point has been made out to admit
the second appeal.
14. There is no perversity in the order of both the learned courts and
perversity has also not been pointed out by the learned counsel for the
appellant. The second appeal can be admitted only on the substantial law point
and the Court finds that the facts and the depositions as well as the documents
have rightly been considered by both the learned courts.
15. No case of interference is made out.
16. Accordingly, Second Appeal No.128 of 2024 is dismissed.
( Sanjay Kumar Dwivedi, J.)
SI/,
A.F.R.
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