Jharkhand High Court
Sudesh Kumar vs Smt. Pushpa Devi on 30 June, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
( 2025:JHHC:17164 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 376 of 2019
1. Sudesh Kumar, aged about 54 years
2. Mukesh Kumar, aged about 50 years
3. Shivesh Kumar, aged about 40 years
4. Akhilesh Kumar, aged about 30 years
All sons of Sri Ram Chandra Kunwar, resident of Manohartand Basti,
PO & PS Sindri, District Dhanbad
... ... Plaintiffs/Respondents/Appellants
Versus
1. Smt. Pushpa Devi, wife of Sri Upendra Singh, resident of Railway
Cinema Road, Purana Bazar, Dhanbad, PO & PS Dhanbad, District
Dhanbad
2. Vijay Kumar Singh, son of Late Shiv Pujan Singh, Prahlad Mahato,
resident of Purana Bazar, PO & PS Dhanbad, District Dhanbad
... ... Defendants/Appellants/Respondents
3. Bindu Agarwala, wife of Sri Niranjanlal Agarwala
4. Sanjay Heliwal, son of Ram Dayal Heliwal
Both are resident of Ratanjee Road, Purana Bazar, Dhanbad, PO & PS
Dhanbad, District Dhanbad
... ... Defendants/Proforma Respondents/Respondents
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Ms. Niharika Mazumdar, Advocate
For the Respondents : Mr. Rahul Kumar Gupta, Advocate
---
CAV on 06.03.2025 Pronounced on 30.06.2025
1. This appeal has been filed against the judgment dated 16 th July,
2019 (decree signed on 26.07.2019) passed by the learned District Judge-
XIV, Dhanbad in Civil Appeal No. 01 of 2018, whereby the appeal has
( 2025:JHHC:17164 )
been partly allowed. The learned trial court judgment is dated 28.11.2017
(decree signed on 07.12.2017) passed by the learned Civil Judge (Sr.
Division)-II, Dhanbad in Title Suit No. 100 of 2003, whereby the learned
trial court has decided the suit in favour of the plaintiffs.
2. This appeal was admitted for hearing vide order dated 30.01.2025
on the following substantial question of law: -
"Whether the learned first appellate court failed to peruse
the exhibits in toto while partly allowing the first appeal in
favour of the defendants and has further failed to consider
the document in its correct perspective?"
Arguments of the appellants.
3. The learned counsel for the appellants has submitted that the
learned trial Court had committed no error in deciding the case.
Samsuddin Khalifa father of Md. Ibrahim Tailor had acquired the property
of Schedule-A land through registered sale deed and registered gift deed
in the year 1955/1960 and 1954. On 22.07.65 through registered sale deed
No. 12511 he sold the entire property to his wife Sarifan. Sarifan died in
the year 1974-75 leaving behind her only son Md. Ibrahim Tailor and
married daughter Nasiran Khatoon who was living in her in-laws house.
Nasiran Khatoon has relinquished her claim/share of the property in
Schedule-A land. Md. Ibrahim Tailor sold the land to the plaintiffs vide
registered sale deed No. 5013 dated 19.09.95 and sale deed No. 6794
dated 09.01.98. The plaintiffs got their name mutated and were in
possession of the purchased property. Later on vide sale deed No. 9312
dated 31.10.06 and 9313 dated 31.10.06 they have sold the property to
defendant No. 3 and 4. Learned Trial Court while deciding Issue No. IV
and V have rightly decided that the plaintiffs are entitled for decree of
their right, title, interest and possession over the suit property. She
submits that once the schedule B property was a part of schedule A
property and schedule A property was acquired by the plaintiffs, there was
no occasion to interfere with the judgement passed by the learned trial
court by the learned 1st appellate court. Right, title and possession of the
( 2025:JHHC:17164 )
entire schedule A property was with the plaintiffs and hence with the
defendant no. 3 and 4 which was mutated in their name. It is submitted
st
that the learned 1 appellate court has not recorded given any finding with
respect to the possession of property covered by exhibit-A although the
entire property covered by schedule A stood mutated in favour of the
defendant no. 3 and 4 and has consequently failed to consider the exhibits in
toto while partly allowing the 1st appeal. She has submitted that the scope
of schedule A and Schedule B properties have not been properly
considered by referring to the respective sale deeds and the documents
relating to mutation with regards to possession .
Arguments of the Respondents.
4. The learned counsel for the respondents while clarifying the
position with regards to schedule A and schedule B properties has
submitted that schedule-A property was having total area of 3.72 decimal
which is equivalent to 2 ¼ Katha. He submits that schedule-B property is
a part of schedule-A property but schedule-B consisted of two items i.e.
item No.1 total area 0.61 decimal and item No.2 total area 1.23 decimal.
The trial court had decreed the suit although recorded a finding that
Nasiran Khatoon was the sister of Md. Ibrahim Tailor and the Appellate
Court has sustained the trial court's Judgment with regard to item No.1
i.e. 0.61 decimal. With respect to item No.2 the property was transferred
by Nasiran Khatoon and there is a concurrent finding that she was the
sister of Md. Ibrahim Tailor and being governed by Muslim Law was
entitled to 1/3rd share. He submits that the sale by Nasiran Khatoon to the
extent of 1/3rd share of the schedule-A property which comes to 1.23
decimal and constitutes item No.2 is the subject matter of dispute. He has
submitted that the item No.2 of schedule-B property was rightly
transferred by Nasiran Khatoon and this finding has been recorded by the
learned 1st Appellate Court and therefore the substantial question of law is
fit to be answered in favour of the respondents and against the appellants.
( 2025:JHHC:17164 )
The learned Counsel has also submitted that considering the scope of
substantial question of law framed by this Court all the documents have
been considered. The learned Counsel has submitted that the purchaser of
the property with regard to 0.61 decimal who was the defendant No.2 in
the suit and appellant No.2 before the first Appellate Court has not come
up before this Court in the Second Appeal and he is the proforma
respondent in this case.
The relief in the suit
5. The suit was filed by the plaintiffs for the following reliefs: -
(A) A decree for confirmation of possession of the
plaintiffs over Schedule-B property be passed by declaring
their right, title and interest thereon.
AND
A decree for recovery of possession of Schedule- B property
be passed in case the plaintiffs may be found and to be
dispossessed from the same during the pendency of the suit.
(B) A decree for permanent injunction may be passed
restraining the defendants, their men, agents, servants,
employees, representatives, labours etc. to make any
interference/obstruction in peaceful enjoyment and
possession of the plaintiffs and/or they may be restrained to
make any construction over the suit property or any portion
thereof and/or to change the nature and character of the
suit property in any manner and/or to alienate the same in
any manner.
(C) A decree for all cost of the suit be passed in favour of
the plaintiffs and against the defendants.
(D) A decree for any other relief or reliefs may be passed
in favour of the plaintiffs and against the defendants for
which the plaintiffs may be found entitled thereto under the
law and equity.
6. The detail of Schedule 'A' and Schedule 'B' property is as under: -
SCHEDULE 'A'
Item No. I: - All that piece and parcel of homestead (Tikuri) land
along with structures standing thereon situated in Mouza Dhanbad,
( 2025:JHHC:17164 )
P.S. and Municipality Dhanbad, Chowki Sadar Sub Registry
office, Dhanbad, Mouza No. 51, within Dhanbad Municipal Ward
No. 6, Mouza No. 51, within Dhanbad Municipal Ward No. 6
(old) and new Ward No. 26, old holding No. 111, 112, 113 and
new holding No. 126, 127, 128, part of plot No. 4321, 4322, 4323,
out of which measuring an area 2 ¼ kathas out of which measuring
an area 1 katha 7 chattaks or to say 2.38 decimals or
30'x34'6"butted and bounded as follows: -
North 12 feet wide proposed road
South Md. Ibrahim Tailor
East 12 feet wide road
West 3 feet wide gali
Purchased by the plaintiffs vide sale deed No. 5013 dated
19.09.1995.
Item No. II: - All that piece and parcel of homestead (Tikuri) land
along with structures standing thereon situated in Mouza Dhanbad,
P.S. and Municipality Dhanbad, Chowki Sadar Sub Registry
office, Dhanbad, Mouza No. 51, within Dhanbad Municipal Ward
No. 6 (old) and new Ward No. 26, old holding No. 111, 112, 113
and new holding No. 126, 217, 128, part of plot No. 4323
measuring an area 13 chhataks or to say 585 square feet butted and
bounded as follows: -
North Land of the vendee (plaintiffs)
South Rameshwar Agarwalla
East Municipal Road
West Fatehchand Agarwalla
Purchased by the plaintiffs vide sale deed No. 6794 dated
9.11.1998
SCHEDULE 'B'
Item No. I: - All that piece and parcel of homestead land situated
in Mouza Dhanbad, P.S. and Municipality Dhanbad, Chowki
Sadar Sub-Registry Office, Dhanbad, District Dhanbad, Mouza
No. 51, within Dhanbad Municipal Ward No. 6 (old) and new
Ward No. 26, within Municipal Holding No. 111, 112, 113 and
( 2025:JHHC:17164 )
new holding No. 127 and 128 part of plot No. 4321, 4322 and
4323 out of which measuring an area 6 Chhataks or to say .61
decimals of land butted and bounded as follows: -
North Book Corner
South Minu Agarwalla
East Gali
West Kailash Agarwalla
Alleged to have been purchased by defendant No. 2 by registered
sale deed No. 3406 dated 14.10.2000
Item No. II: - All that piece and parcel of homestead land situated
in Mouza Dhanbad, P.S. Bankmore, Dhanbad within Dhanbad
Municipality, Chowki Sadar Sub-Registry Office Dhanbad, Mouza
No. 51, within Dhanbad Municipality, Ward No. 6 (old) and then
Ward No. 26 and Ward No. 23, Holding No. 111, 112, 113 (new)
holding No. 127 and 128 (old) part of plot No. 4321, 4322 and
4323 out of which measuring an area 3/4 kathas equal to 12
Chhataks or to say 1.23 decimals of land butted and bounded as
follows: -
North Purchased land Bijay Kr. Singh
South Vendor niz land
East 12 feet wide road
West 2"-6" wide gali and Puranmal
Agarwalla.
Alleged to have been purchased by defendant No. 1 by registered
sale deed No. 5280 dated 27.09.2002.
7. Sale deed with respect to schedule B (part -I) property was alleged
to have been purchased by defendant No. 2 by registered sale deed No.
3406 dated 14.10.2000 executed by Zarina Khatoon. Sale deed with
respect to schedule B (part-II) property was alleged to have been
purchased by defendant No. 1 by registered sale deed No. 5280 dated
27.09.2002 executed by Nasiran Khatoon.
8. Case of the plaintiffs
( 2025:JHHC:17164 )
(a) The specific case of the plaintiffs is that one Samsuddin
Kalifa (father of the vendor of the plaintiff) had acquired the
property described in Schedule 'A' of the plaint by virtue of
purchase and also by virtue of gift by registered sale deed
No.10393/1955 and 9746/1960 along with registered deed of gift
of 1954 and was in possession thereof.
(b) The said Samsuddin Kalifa sold the aforesaid property to
his wife Sarifan by registered sale deed No. 12511 dated
22.07.1965 and since then Sarifan has acquired right, title,
interest and possession over the suit property. Sarifan died
sometimes in the year 1974-75 leaving behind her only son
Md. Ibrahim Tailor and married daughter Nasiran Khatoon.
Nasiran Khatoon was living in her in-law's house and hence, she
had relinquished her claim/share of the property.
(c) Md. Ibrahim Tailor after the death of his mother remained
in exclusive continuous possession of the property being
absolute owner and acquired indefeasible right by way of
adverse possession. After the death of Sarifan, Md. Ibrahim
Tailor got his name mutated in the Sherista of the State of
Bihar and paid Tikuri rent under Jamabandi No. 1339. Md.
Ibrahim Tailor also got his name mutated in Dhanbad
Municipality, paid holding tax and let out the portion of the
property to different tenants by realizing rent from his tenants
right after the death of his mother.
(d) Thereafter, Md. Ibrahim Tailor while in possession of the
property described in Schedule 'A' of the plaint sold the
property to the plaintiffs by way of two registered sale deed Nos.
5013 dated 19.09.1995 and 6794 dated 09.01.1998 on payment
of valuable consideration amount and put them in possession of
the suit property. The plaintiffs got their name mutated in the
serista of the State of Bihar now Jharkhand vide Mutation Case
( 2025:JHHC:17164 )
No.1234(III)/2000-01 and Mutation Case No.634(III)/95-96 and
paid rent up to 2001. The plaintiffs also got their name mutated
in Dhanbad Municipality vide Mutation Case No.99/2002-03
and paid holding tax to Dhanbad Municipality. Since they have
purchased the property described in Schedule 'A' for their
personal use and tenants also defaulted in payment of the rent,
they have filed Title (Eviction) Suit No.80/96 against Bhairo
Ram Rawani, Title (Eviction) Suit No. 81/96 against Sarju
Prasad Rawani, Title (Eviction) Suit No. 83/96 against Indua
Devi and Title (Eviction) Suit No.88/96 against Chandu Ram in
the Court of learned Munsif, First Court, Dhanbad. Title
(Eviction) Suit Nos. 81/96 and 88/96 were compromised and the
plaintiffs got the delivery of possession of the said tenanted
premises on the strength of compromise decree.
(e) The plaintiffs after purchasing Schedule 'A' property
submitted their plan, for new construction of the house by
demolishing the old house, before Modified Area Development
Approach (MADA) and the plan was sanctioned and MADA has
issued letter No. P-446 dated 27.04.01. After obtaining sanction
order, the plaintiffs had demolished the old structure from the
portion of the property leaving the portion which were in
occupation of monthly tenants.
(f) While they were demolishing the part of old house,
Upendra Singh asked them to sell the property but the plaintiffs
refused. Upendra Singh made several attempts to create
disturbance and nuisance to grab the suit property but in vain.
Upendra Singh also managed to get forged and fabricated sale
deed being registered sale deed No.5280 dated 27.09.2002 and
sale deed No.3406 dated 14.10.2000 in favour of the defendants.
He tried to get the name of purchaser mutated for the purchased
property for which the plaintiffs objected before Circle Officer,
( 2025:JHHC:17164 )
Dhanbad and after hearing, Mutation Case No. 995(III)/2002-03
filed by Bijay Kumar Singh was rejected by the Circle Officer,
Dhanbad. However, mutation case filed by Pushpa Devi is still
pending before the Circle Officer, Dhanbad.
(g) The plaintiffs alleged that both sale deeds of the
defendants are forged and fabricated, collusive and
manufactured documents without any consideration and the same
were never acted upon. The defendants have not acquired any
right, title, interest and possession over the Schedule-B property
or any portion thereof by virtue of the alleged forged and
fabricated documents as their vendors had no title or transferable
right to sell and transfer the same to the defendants.
(h) It was further stated by the plaintiffs that since the period
for completion of construction work of the house over the
Schedule 'A' property was going to be expired as per the terms
of sanction order/plan by MADA, the plaintiffs on 20.07.2003
started digging foundation of the house and while the work was
going on, Upendra Singh and Bijay Singh with some men came
there and stopped the work. Thereafter, the plaintiffs informed
the police but nothing was done. On 21.07.2003 the plaintiffs
came to know that Bijay Singh and Upendra Singh with some
muscle men are doing construction work over the suit land. The
plaintiffs have objected and informed the police but no action
was taken and hence the plaintiffs have no other alternative, but
to file the suit. The cause of action for the suit arose on
December-2002, 20.07.2003 and 21.07.2003 and was still
continuing day to day.
9. Bindu Agarwal and Sanjay Heliwal were added as defendant Nos. 3
and 4 vide order dated 03.10.2007 passed by the learned trial court. On
notice, the defendant Nos. 1 and 2 appeared and filed their written
( 2025:JHHC:17164 )
statement. The defendant Nos. 3 and 4 also appeared and filed their
written statement.
10. Case of defendant no. 1 and 2
i. Defendant No.1 and 2 (Pushpa Devi and Bijay Kumar Singh) in
their written statement have stated that the suit is undervalued
and without payment of required court fee and therefore, the suit
cannot proceed. They also stated that the suit was barred under
the provisions of Transfer of Property Act.
ii. It was the case of the defendants that Sarifan died leaving
behind her son Md. Ibrahim Tailor and daughter Nasiran
Khatoon and it is wrong to say that Nasiran Khatoon has
relinquished her right, title, interest, and share/claim of the suit
property left by her mother. She also got her right, title, interest
and possession over the suit property after death of her mother.
Md. Ibrahim Tailor was not in exclusive and absolute possession
of the suit property and has not acquired indefeasible title over
the same by virtue of adverse possession and whatsoever. They
denied that Sarifan died in the year 1974-75. They further denied
that Md. Ibrahim himself let out the property to different tenants.
Md. Ibrahim Tailor had not delivered the possession of the
property in question to the plaintiffs on valuable consideration.
The sale deeds executed in favour of plaintiffs are paper
transaction. The plaintiffs never came in possession over the
alleged property and in connivance with the official they got
their name mutated. Upendra Singh never asked the plaintiffs to
sell the property nor had he created any disturbance.
iii. The defendant Nos. 1 and 2 have stated in their written
statement that Nasiran Khatoon had sold her right, title and
interest to the extent of 1/3rd share of property by executing
registered sale deed No.5280 dated 27.09.2002 on valuable
( 2025:JHHC:17164 )
consideration of Rs.1,10,000/- for an area 12 Chhatak in favour
of Smt. Puspa Devi (defendant No. 1).
Zarina Khatoon one of the co-sharers and successor of Kharullah
Khalifa had sold her right, title and interest in favour of Vijay
Kumar Singh in respect of the property through registered sale
deed No.3406 dated 14.10.2000 on valuable consideration of
Rs.55,000/- to the extent of her share of an area six Chhatak.
iv.The possession of the purchased property was handed over to
the defendants. Defendant No. 1 & 2 have their residence and
other property adjacent to their purchased property. It was stated
that mutation of land does not create title as well as refusal of
mutation does not cease its title, right and interest of land in
question.
v. It was alleged that the registered sale deed in favour of the
plaintiffs is forged, fabricated, collusive and manufactured
document. The defendants have their right, title, interest and
possession over the suit property. It was denied that the
defendants had threatened and abused the plaintiffs and their
labourers. The defendants are enjoying the suit property after
making pucca construction over the suit property. It was also
denied that Upendra Singh was not doing any construction work
on 21.07.2003. It was stated that prior to the alleged date, the
defendants were doing their construction work. The plaintiffs
had no cause of action for filing the suit and the plaintiffs were
not entitled for the reliefs as sought for.
11. Case of the defendant Nos. 3 and 4 (supported the plaintiffs)
The defendant Nos. 3 and 4 Bindu Agarwalla and Sanjay
Heliwal have also filed their written statement stating therein
that Pushpa Devi wife of Upendra Singh and Vijay Kumar Singh
own brother-in-law of Upendra Singh are disputing the title of
the plaintiffs over the suit property (Schedule-B) which is part of
( 2025:JHHC:17164 )
schedule-A property. They stated that in two suits, defendant
Nos. 1 and 2 had admitted the title of the plaintiffs over the
schedule-A property. Title Suit No.46/07 pending in the Court of
learned Sub-Judge-I, Dhanbad was filed against the plaintiffs for
specific performance of contract in which the defendant No.1 &
2 had admitted the title of the plaintiffs over the suit property.
The defendant Nos. 3 and 4 supported the case of the plaintiffs
by stating that the plaintiffs had acquired valid right, title,
interest and possession over the disputed property by virtue of
purchase from the rightful owner. The defendant No.3 & 4 had
purchased entire schedule-A land vide registered sale deed
No.9312 dated 31.10.2006 and 9313 dated 31.10.2006 from the
plaintiffs and were in possession of the suit property along with
Schedule-A property. They are paying rent to the State and tax to
Dhanbad Municipality. They stated that the plaintiffs are entitled
to get the decree as claimed.
Issues before the learned trial court.
12. On the basis of above pleadings altogether six issues were framed
after re-cast.
I. Whether the suit is maintainable in its present form?
II. Whether the plaintiffs have got valid cause of action to
file the suit?
III. Whether the suit is barred by law of limitation and
under principles of waiver, estoppel and acquiescence?
IV. Whether the plaintiffs have right, title, interest and
possession over the schedule-A and schedule-B land?
V. Whether the plaintiffs are entitled for a decree of
permanent injunction against the defendants with
respect of the suit property?
VI. Whether Nasiran Khatoon relinquished her share in the
suit property?
( 2025:JHHC:17164 )
13. The Plaintiffs examined two witnesses in support of their case.
P.W. 1 is Ram Chandra Kunwar and P.W. 2 is Saiyad Asharful Huda. No
Document has been brought on record by the Plaintiffs.
The defendant Nos.1 and 2 examined two witnesses. DW-1 is Upendra
Singh and DW-2 is Rajesh Kumar Srivastava.
The defendant Nos.3 and 4 examined two witnesses. DW-3 is Sanjay
Heliwal and DW-4 is Ajay Kumar Verma.
14. The documents produced and exhibited by the defendant Nos. 1 & 2
and defendant Nos. 3 & 4 are as under: -
Documents produced by Exhibit
Registered sale deed Ext.-A and A/1
Nos.5280 dated 27.09.02 and respectively.
3406 dated 14.10.2000
Documents produced by Exhibit
Rent Receipts Ext.-B to B/3
Holding Tax Receipts Ext.-C to C/7
Certified copy of registered
deed No. 9313 dated
31.10.2006, registered deed
No.9312 dated 31.10.2006, Ext.-D to D/3
registered deed No.5013 dated
19.09.1995, registered deed
No.6794 dated 09.11.1998
Certified copy of Mutation
order passed in Mutation Case
No.2013(III)/2006-07 with Ext.-E
correction slip
Certified copy of order passed
in Mutation Case
No.2012(III)/2006-07 and Ext.-E/1
correction slip
Certified Copy of deposition
of Upendra Singh in Title Suit Ext.-F
15. The learned trial Court at first took up the issue no. VI and decided
the same against the plaintiffs by holding that Nasiran Khatoon, the
( 2025:JHHC:17164 )
Married daughter of Sarifan Bibi and sister of Ibrahim Tailor never
relinquished here share over the schedule A property.
Then the learned trial court took up the issue no. IV and V and held that
the schedule B property is part of schedule A property and the plaintiffs
had right title and interest over the said property through two registered
sale deeds dated 19.09.1995 (exhibit-D/2) and 09.01.1998 (Exhibit-D/3)
both executed by Md. Ibrahim Tailor son of Sarifan ; during the pendency
of the suit the disputed schedule B property was sold by the plaintiffs to
the defendant no. 3 and 4 by registered sale deeds who now have the right
, title , interest and possession over the disputed property. The trial court
held that the plaintiffs and the proforma defendants are entitled to
permanent injunction. Thus, the issue no. IV and V were decided in
favour of the plaintiffs and also the proforma defendant no. 3 and 4 and
against the defendant no. 1 and 2.
While deciding the issue no. III, the learned trial Court held that the suit
was not barred by limitation and so far as the plea of waiver, estoppel and
acquiescence are concerned, they were not pressed. The issue no. III was
accordingly partly decided in favour of the plaintiffs. The issue no. II was
also decided in favour of the plaintiffs.
The suit was decreed in favour of the plaintiffs.
16. The defendant no. 1 and 2 were the appellants before the learned 1st
appellate court. On the basis of pleadings of the parties, the learned 1 st
appellate court has framed the following points for determination: -
Point no. I:- Had Nasiran Khatoon relinquished her right,
title and interest in the property of her mother?
Point no. II:- Are the plaintiffs/ proforma defendant No.3
and 4 entitled for declaration of their right, title, interest and
possession over the property they purchased including
Schedule-B land?
17. The learned 1st appellate Court has recorded its finding with regard
to point of determination Nos. I and II from paragraph 10 onwards. The
operative portion of the findings are quoted as under: -
( 2025:JHHC:17164 )
16. " I have already discussed the oral evidence on record
that Nasiran Khatoon and Nimai Chandra Banerjee are not
examined in this case. Vijay Kumar Singh, Pushpa Devi,
plaintiff and Bindu Agarwal are also not examined in this
case. In fact the plaintiffs have not produced any document.
It is not disputed that plot No.4321, 4322 & 4323 under
holding No. 126, 127, 128 ward No.26 Dhanbad Municipal
consist 2 ¼ Kathas of land. Out of which the plaintiffs have
purchased 1 Katha 7 Chhatak or 2.38 decimals or 30 X
36.6" vide sale deed No.5013 dated 19.09.95 Ext.-D/2. They
have purchased 13 Chhatak or 585 Square feet under plot
No.4323 vide sale deed No.6794 dated 09.11.98 Ext.-A/3.
Later on they have sold entire Schedule-A land i.e. 1 Katha
7 Chhatak to Bindu Agarwal and Sanjay Heliwal through
registered sale deed on 31.10.06. Certified copy of sale deed
No.9312 dated 09.03.12 is Ext.-D on record. On perusal of
the same I find that the plaintiffs have sold 1 Katha 7
Chhatak or 2.38 decimals or 30 X 34 6" to Sanjay Heliwal
on payment of consideration amount of Rs.3,50,000/-. They
have further sold 13 Chhatak or 585 Square feet on payment
of consideration amount of Rs.3,00,000/- to Smt. Bindu
Agarwal. Sanjay Heliwal got his name mutated for 1 Katha
7 Chhatak in Mutation Case No.2013(III)/2006-07 and
paying rent to the State and also paying rent to Dhanbad
Municipality. Certified copy of mutation order is Ext.-E on
record. Likewise, Smt. Bindu Agarwal got her name mutated
for 13 Chhatak of land vide Mutation Case
No.2012(III)/2006-07. Certified copy of mutation order is
Ext-E/1. The rent receipts issued in their favour is in Ext.-B
series and the rent receipt issued by Dhanbad Municipality
is in Ext. -C series.
17 Exhibit-A is the sale deed No.5280 dated 27.09.02 along
with map. It was executed on 27.09.02 by Nasiran Khatoon
@Nasrin Khatoon widow of late Bakhtiyar Ahmad resident
of Ratanji Road near India Hotel Dhanbad, P.O., P.S &
District Dhanbad in favour of Smt. Pushpa Singh on
payment of consideration amount of Rs 1,10,000/-. By this
sale deed Nasiran Khatoon had sold Homestead land of
Dhanbad, P.S. Bank More. District Dhanbad under
Municipal ward No.6 (old) then ward No.26 new ward
No.23 holding No 111, 112, 113 (new) holding No 127 &
( 2025:JHHC:17164 )
123 (old) part of plot No.4321, 4322 & 4323 of which 3/4
Kathas or 12 Chhatak or 1.23 decimals of land including
katcha house of plinth area 80 Sq. Feet constructed in the
year 1960 with electricity but without water connection as
per plan. Admittedly, Pushpa Devi is not mutated for her
purchased land. There is nothing on record to show that
Khairullah Khalifa and his daughter Jainab Bibi, Hamidan
Bibi, Rojni Bibi and Taslima Bibi are related with
Samsuddin Khalifa in any manner. As per sale deed No
3406 dated 14.10.2000 Ext.-A/1 Rojni Bibi died leaving
behind her daughter Zarina Khatoon who had executed sale
deed Ext.-A/1 in favour of Vijay Kumar Singh on
consideration amount of Rs.55,000/- for an area 61 Acre
including two rooms under plot No.4321, 4322 & 4323 under
new ward No.26 holding No.127 & 128. There is nothing on
record to show that Zarina Khatoon is in any way related with
Samsuddin Khalifa or she is heir or successor or for that
matter tenant in common of Samsuddin Khalifa but it is
admitted fact from both the sides that Nasiran Khatoon is the
daughter of Samsuddin Khalifa and she is sister of Md.
Ibrahim Tailor. As per settled principles of Mohammedan Law
on death of Sarifan she is entitled for 1/3 rd share of her
property which she has sold to Pushpa Singh vide registered
sale deed No.5280 dated 27.09.02 Ext.-A. It is mentioned in
the sale deed that she has sold 3/4 Katha i.e. 1.23 decimals or
12 Chhatak of land. As per the plaintiff's case the total area of
plot No.4321, 4322, 4323 was 2¼ Katha out of which Nasiran
Khatoon has sold 3/4 Katha i.e. 1.23 decimals to Pushpa
Singh (apparently her 1/3rd share).
18. Plaintiffs/respondents have brought the suit for
confirmation of their possession for Schedule-B land i.e. .61
decimals of land under plot No.4321, 4322 & 4323 with
specific boundary as in north book corner, in south Nilu
Agarwal, in east Gali and in west Kailash Agarwal purchased
by defendant No.2 Vijay Kumar Singh vide sale deed No.3406
dated 14.10.02 (year wrongly mentioned) Ext.-A/1. I have
already held that there is nothing on record to show that
Zarina Khatoon is in any way related with Samsuddin Khalifa.
There is nothing on record to show that she is legal heir and
successor or tenant in common with Samsuddin Khalifa. The
Specific case of the plaintiffs/ respondents is that they want a
( 2025:JHHC:17164 )
relief of confirmation of possession of Schedule-B land which
is purchased by Vijay Kumar Singh through registered sale
deed No.3406 dated 14.10.2000. Vijay Kumar Singh has not
been examined and as held earlier by this court his vendor
Zarina Khatoon is not related with Samsuddin Khalifa (Father
of Md. Ibrahim Tailor). As far as sale deed No.5280 dated
27.09.02 Ext.-A is concerned Nasiran Khatoon has sold her
1/3rd share in the property to Pushpa Singh which she had
every right to sale.
19. As per settled principle of law the plaintiffs can succeed
only by making out their title and entitlement to possession
and not on any alleged weaknesses in title or possession of the
defendants. The reliance may be placed upon the case of T.K.
Mohammed Abubucker (D) through L.Rs. And others Vs.
P.S.M. Ahmad Abdul Khader and others as reported in 2009
(77) AIC 2 SC on the case of Union of India and others Vs.
Vasavi Co-operative Housing Society Ltd. and others as
reported in AIR 2014 Supreme Court 937 and also the case of
Nirmala Devi and others Vs. Ram Sahay & others reported in
AIR 2004 Allahabad 359. The case of Charanjeet Lal Mehra
& others Vs. Smt. Kamal Saroj Mahajan & others decided by
Hon'ble Supreme Court of India on 11-03-2005 in SLP (Civil)
no. 20914 of 2004, the case before the Hon'ble Apex Court
was regarding a rented property. The respondent no. 1 in that
case has filed the suit for eviction, arrears of rent and
damages/mesne profit against the defendant/petitioner. The
case at hand has altogether different facts, so this citation is of
no use to the plaintiff/respondent. Likewise, the case of Uttam
Singh Duggal & Co. Ltd. Vs. United Bank of India & others
decided by the Hon'ble Supreme Court of India on 08-08-2000
was related with dispute regarding debit which was claimed
illegal. The case of Bharat Singh & another Vs. Bhagirathi as
reported in 1966 AIR 405 is related with correctness of
Jamabandi papers which is not the case at hand. So, the same
are not of any use of the plaintiff/respondent."
18. The learned 1st appellate court decided the point of determination
no. 1 against the plaintiff and in favour of the defendant no.1 and held that
the exhibit-A (part II of schedule B property) was validly executed by the
vendor of the defendant no.1 but did not give any ultimate finding on
( 2025:JHHC:17164 )
possession ; the learned 1st appellate court also held that the exhibit- A/1
(part 1 of schedule B property) executed in favour of the defendant no. 2
was invalid as the vendor of the defendant no.2 had no title and this
finding was in favour of the plaintiff. The learned 1 st appellate court, in
short, observed/held as under: -
a. The either schedule A property was sold by plaintiffs to defendant
no. 3 and 4 and they had got the property mutated in and were
paying rent to the state as well as rent to Dhanbad municipality;
defendant no. 1 had not got her name mutated with respect to
property of exhibit-A which was admittedly a part of schedule A
property and was covered under schedule B (part -II).
b. There is nothing on record to show that Khairullah Khalifa and his
daughter Jainab Bibi, Hamidan Bibi, Rojni Bibi and Taslima Bibi are
related with Samsuddin Khalifa in any manner. As per sale deed No.
3406 dated 14.10.2000 Ext.-A/1 Rojni Bibi died leaving behind her
daughter Zarina Khatoon who had executed sale deed Ext.-A/1 in
favour of Vijay Kumar Singh (defendant no.2) on consideration
amount of Rs.55,000/- for an area .61 Acre including two rooms under
plot No.4321, 4322 & 4323 under new ward No.26 holding No.127 &
128. There is nothing on record to show that Zarina Khatoon is in any
way related with Samsuddin Khalifa or she is heir or successor or for
that matter tenant in common of Samsuddin Khalifa, who was
admittedly the original owner of the property.
Thus, this court finds that the learned 1st appellate court in
substance held that the sale deed in favour of the defendant no.2
being sale deed No. 3406 dated 14.10.2000 Ext.-A/1 was of no
consequence as the vendor of the defendant no. 2 had no title.
c. Nasiran Khatoon (sister of Md. Ibrahim Tailor) had not
relinquished her right, title, interest in the property originally
belonging to her mother.
d. It is admitted fact from both the sides that Nasiran Khatoon is the
daughter of Samsuddin Khalifa and she is sister of Md. Ibrahim
( 2025:JHHC:17164 )
Tailor. As per settled principles of Mohammedan Law on death of
Sarifan she is entitled for 1/3rd share of her property which she has
sold to Pushpa Singh (defendant no 1) vide registered sale deed
No.5280 dated 27.09.02 (Ext.-A). It is mentioned in the sale deed that
she has sold 3/4 Katha i.e. 1.23 decimals or 12 Chhatak of land. As
per the plaintiff's case the total area of plot No.4321, 4322, 4323 was
2¼ Katha out of which Nasiran Khatoon has sold 3/4 Katha i.e. 1.23
decimals to Pushpa Singh (apparently her 1/3rd share).
Thus, this court finds that the sale deed in favour of the defendant
no.1 being sale deed No.5280 dated 27.09.02 (Ext.-A) was held to
be valid as the vendor namely Nasiran Khatoon had title over her
share and she had sold only to the extent of her share.
e. The ultimate findings were recorded as under:-
"20. On the basis of above discussions, it is held that
(a) The Plaintiffs/Respondents and their purchasers are
entitled for a decree confirming their possession over .61
decimals or 6 Chhatak of land in plot No. 4321, 4322 and
4323 under Municipal Holding no. 111, 112 & 113 (Old) of
new holding No. 127/123 under Municipal Ward no. 6 (old)
New Ward no. 26 of village & P.S. Dhanbad, District
Dhanbad bounded in North Book Corner, South Milu
Agarwala, East Gali and West Kailash Agarwala.
(b) Nasiran Khatoon has rightly sold 3/4 Katha out of 2¼
Katha i.e. 1.23 decimals of land or 12 Chhatak in plot No.
4321, 4322 and 4323 under holding No.127 and 123 old
holding No.111, 112, 113 under new ward No.26 old ward
No.6 of Dhanbad Municipality, PS and District Dhanbad vide
sale deed No.5280 dated 27.09.02 Ext.-A."
19. So far as the ultimate finding with regards to .61 decimals or 6
Chhatak of land covered by exhibit- A/1[schedule B part I] is concerned, the
appellants have no grievance.
20. So far as ultimate finding with regards to 1.23 decimals of land or
12 Chhatak covered by exhibit- A [schedule B part II] is concerned, it
only declares that Nasiran Khatoon had the right to sell her 1/3 rd of
( 2025:JHHC:17164 )
schedule A property, but it is silent so far as possession of the property
covered by exhibit-A is concerned.
21. The learned 1st appellate court has however recorded a finding in
paragraph 16 of the judgement that the defendant no. 3 and 4 were in
possession of the entire schedule A property sold to them by the plaintiffs
during the pendency of the case and their respective properties were duly
mutated in their favour and in paragraph 17 of the judgement it has been
recorded that the defendant no. 1, purchaser of exhibit-A , had not got the
property mutated in their name.
22. Therefore, this court is of the considered view that the plaintiffs and
their purchasers were also entitled to a declaration regarding confirmation
of possession with respect to the property covered by exhibit-A even if
Nasiran Khatoon had the right to execute exhibit-A in favour of defendant
no.1.
23. Thus, the learned 1st appellate court has failed to consider the
documents relating to possession of the property covered by exhibit- A
while recording the ultimate finding in para 20 of the impugned
judgement although the finding in that connection has been duly recorded
in the body of the judgement by observing that the defendant no. 3 and 4
have got the mutation done not only in revenue records but also in
Dhanbad municipality [ exhibit- D, D/1, E, E/1, B series and C series] and
the defendant no. 1 did not get the property mutated in her name pursuant
to the exhibit-A.
24. Accordingly, the learned 1st appellate court ought to have declared
the possession of the plaintiffs and hence their purchasers [defendant no. 3
and 4] with respect to the entire schedule B property [covered by exhibit-
A as well as exhibit-A/1] which was admittedly a part of schedule A
property.
25. The learned 1st appellate court has not recorded/ given any finding
with respect to the possession of property covered by exhibit-A although
the entire property covered by schedule A stood mutated in favour of the
( 2025:JHHC:17164 )
defendant no. 3 and 4 and has consequently failed to consider the
aforesaid exhibits in toto while partly allowing the 1st appeal. The
substantial question of law is accordingly answered by holding that the
Plaintiffs/Respondents and their purchasers are entitled for a decree
confirming their possession with respect to entire schedule B property
covered by exhibit-A as well as exhibit-A/1.
26. Consequently, it is held that the Plaintiffs/Respondents and their
purchasers are entitled for a decree confirming their possession with
respect to property covered under exhibit- A also, over and above the
relief already granted vide paragraph 20 (a) of the 1st appellate court's
judgment with respect to possession of property covered by exhibit- A/1.
This certainly does not disturb the ultimate finding as recorded in
paragraph 20 (b) of the learned 1st appellate court's judgement.
27. This appeal is partly allowed in the aforesaid terms.
(Anubha Rawat Choudhary, J.)
Mukul/Binit
