Jharkhand High Court
M/S Hi-Tech Heritage Ltd vs Krishna Singh on 26 September, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:30395
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 77 of 2023
1. M/s Hi-Tech Heritage Ltd., a company registered under the
Companies Act, 1956, having its registered office at While House-
4D 119, Pana Street, Kolkata, West Bengal, being represented by
Aditya Narayan Mahato, Aged 43 years, S/o Komla Kanta Mahato,
R/o Sukla, P.O.- Rashiknagar, P.S.- Patamda, Jamshedpur, District-
East Singhbhum, Jharkhand
2. Laxmi Rani Singhdeo, Age 71 years, W/o Late Dilip Kumar Singh
Deo
3. Jivan Kumar Singhdeo, Age 35 years, S/o Late Dilip Kumar Singh
Deo
4. Vijay Kumar Singhdeo, aged 33 years, S/o Late Dilip Kumar Singh
Deo All three R/o N.H. 33, Pardih Chowka, Mango, P.O. and P.S.-
Mango, Town-Jamshedpur, District- East Singhbhum
5. Rameshwar Singh, age 56 years, S/o Radha Krishna Singh, R/o
Purana Basti, Sonari, P.O. & P.S.- Sonari, Jamshedpur, District-
East Singhbhum
6. Vijay Kumar Sinha, age 37 years, S/o Sri N.G.P. Sinha, R/o Qtr.
No.17, Duni Road, Old Baridih, P.O. & P.S.- Sidhgora, Jamshedpur,
District- East Singhbhum
... ... Defendants/Appellants
-Versus-
1. Krishna Singh
2. Sudama Singh,
3. Bhola Singh, all three S/o Tarak Nath Singh, R/o Village- Dobo,
P.O. & P.S.- Chandil, District- Seraikella-Kharsawan
... ... Plaintiffs/ Respondents
--
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
--
For the Appellants : Mr. Akhilesh Kumar Shrivastava, Advocate
: Mr. Rohit Sinha, Advocate
: Mr. Md. Imran Hasan, Advocate
For the Respondents : Mr. Sanjay Kumar Sinha, Advocate
: Mr. Ashok Kumar Sinha, Advocate
: Mr. T.N. Ojha, Advocate
--
Reserved on 11.06.2025 Pronounced on 26.09.2025
1. This first appeal has been filed against the Judgment and Decree
dated 30.11.2022 (Decree sealed and signed on 14.12.2022) passed by
the learned Civil Judge (Senior Division), Sub- Divisional Court,
Chandil in Original Suit No.46 of 2012 (Title Suit No.46 of 2012)
whereby and whereunder the suit has been decreed on contest in favour
of the plaintiffs/respondents and Sale Deed No.1421 dated 03.03.2011
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executed by the Defendant No.2 in favour of Defendant No.1 has been
declared as null and void and further, it has been held that Defendant
No.1 has not acquired any interest over the suit land. Consequently, the
defendants are the appellants before this Court.
2. The plaintiffs/respondents had filed Title Suit No.46 of 2012 for
the following reliefs:
(i) That it be declared the deed of conveyance (Sale Deed)
No.1421 dated 03.03.2011 executed by the Defendant No.2
in favour of the Defendant No.1 is forged, fabricated,
without consideration and void ab initio and the Defendant
No.1 has not acquired any interest in the suit premises,
(ii) Cost of the suit,
(iii) Any other relief or reliefs.
3. The suit land as mentioned in the Schedule of the plaint is all that
piece and parcel of the land measuring area 105 decimals under
Mouza- Dobo, Khata No.9, Plot No.1198 (Part), Thana No.331, Halka
No.2 within P.S.- Chandil, District- Seraikella-Kharsawan under
Registry Office- Seraikella, which is bounded as North: Plot No.1198,
South: River & Plot No.1201 & 1202, East: Plot No.1203 and West:
Plot No.1200, 1201 & 1188.
4. The suit was filed by three plaintiffs namely, Krishna Singh,
Sudama Singh and Bhola Singh, all sons of Tarak Nath Singh and the
Plaintiff No.1 claimed to be attorney holder of Plaintiff Nos.2 and 3.
5. The Defendant No.1 is Hi-Tech Heritage Ltd. and the original
Defendant No.2 was Dilip Kumar Singh Deo. The Defendant No.3 is
Rameshwar Singh S/o Radha Krishna Singh. The Defendant No.3 has
claimed to be original owner of the suit property. Defendant No.4 is
Vijay Kumar Sinha who is the Power Attorney holder of the Defendant
No.3.
6. Case of the Plaintiffs
A. Jogeshwar Ram was own uncle of the plaintiffs and Algu Ram
was the brother-in-law (Sarhu) of Jogeshwar Ram. Algu Ram,
his wife, the plaintiffs and Jogeshwar Ram were residing together
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under the Managership (Karta) of Jogeshwar Ram. Jogeshwar
Ram died issueless on 16.11.2000 and his wife died in August,
2000. Algu Ram died issueless on 20.01.1995 and his wife
Dukhni Devi died on 27.07.2001.
B. The suit land alongwith other lands stands recorded jointly in the
names of Jogeshwar Ram and Algu Ram in the Survey Khatian,
1964 and the suit land is their acquired property. Jogeshwar Ram
and Algu Ram both had acquired, owned and possessed an area
measuring 5 acres and 10 decimals.
C. Algu Ram had given his right, title, interest, possession, etc. over
the suit land and other lands to Jogeshwar Ram by executing a
'Panchnama' and consequently, Jogeshwar Ram became the
absolute owner of the entire 5 acres and 10 decimals of lands and
accordingly mutated in the name of Jogeshwar who paid rent to
the Government which continued to be paid till 2011.
D. Jogeshwar Ram executed a power of attorney on 08.11.2000 in
favour of the Plaintiff No.1 Krishna Singh s/o Tarak Nath Singh
authorizing him to manage the entire land including the suit land
and to do all things. It has been asserted that since prior to
08.11.2000, the plaintiffs have been looking after the lands with
their uncle Jogeshwar Ram and they came in absolute right, title,
interest and possession over same continuously.
E. The cause of action arose when the plaintiffs received letter
dated 09.05.2012 in Demarcation Case No.1/2012-13 at the
instance of the Defendant No.1 for demarcation of the suit land
said to have been purchased by the Defendant No.1. This was
followed by other letters from the circle office. Thereafter, the
plaintiffs obtained the certified copy of the Sale Deed No.1421
dated 03.03.2011 executed by the Defendant No.2 in favour of
Defendant No.1 and Sale Deed No.5890 dated 10.11.2010
executed by the Defendant No.4 in favour of the Defendant No.2.
The plaintiffs also obtained certified copy of Power of Attorney
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vide Deed No. IV 1449 dated 21.10.2010 executed by the
Defendant No.3 in favour of the Defendant No.4.
F. On 30.06.2012, Defendant Nos.1 & 2 threatened the plaintiffs to
dispossess them from the suit land, when the plaintiffs denied to
leave possession over the suit land. The plaintiffs further stated
that the Defendant No.2 had no right to execute Sale Deed
No.1421 dated 03.03.2011 and hence, the said sale deed is not
binding upon the plaintiffs and the Defendant No.3, through his
attorney Defendant No.4, had no right to transfer the suit land by
sale to the Defendant No.2 and the Defendant No.3 had no right
to execute the Power of Attorney in favour of the Defendant
No.4.
7. The plaintiffs further stated that the suit property was the self-
acquired property of Jogeshwar Ram and Algu Ram. It was their
specific case that -
a. Rameshwar Singh (Defendant No.3), was not the nephew of
Algu Ram and that Algu Ram were two brothers, the other one
was Jhagru Singh who had also died.
b. The plaintiffs categorically disputed the relationship of
Defendant No.3 with Algu Ram or even Jogeshwar Ram; the
Defendant No.3 is neither directly, nor indirectly related with
Algu Ram or Jogeshwar Ram or any of their family members.
c. The Defendant No.3 fraudulently executed power of attorney in
favour of Defendant No.4; the Defendant No.3 had no right to
execute any power of attorney with respect to the properties of
Jogeshwar Ram and Algu Ram in favour of Defendant No.4.
d. Sale Deed No.5890 dated 10.11.2010 was executed by the
Defendant No.4 in favour of the Defendant No.2 and then the
Sale Deed No.1421 dated 03.03.2011 was executed by the
Defendant No.2 in favour of Defendant No.1. It is the case of
the plaintiffs that they had requested the Defendant No.1 several
times to write a disclaimer in favour of the plaintiffs, but on
30.06.2011, they refused to do so.
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8. Case of the Defendant No.1
I. The suit is not maintainable and is bad for non-joinder and mis-
joinder of necessary parties. All the legal heirs of Balmiki Singh
including his sons namely, Awadh Singh, Hiralal Singh and
Jitendra Singh and Baijnath Singh are the necessary parties to the
suit. Defendant No.3, Rameshwar Singh has been wrongly made
as Proforma Defendant, though reliefs have been claimed against
him.
II. The plaintiffs have no locus to file the suit, as their father Tarak
Nath Singh is still alive and the plaintiffs have no right, title and
interest over the suit property. Algu Ram died issueless leaving
behind his brother Radha Krishna Singh who inherited half share
of the lands and after his death, his only son namely, Rameshwar
Singh, Defendant No.3 came in exclusive possession of the
property. The plaintiffs have not made it clear in the plaint as to
how and in what manner they have acquired right over the suit
property entitling them to institute the suit.
III. The alleged Power of Attorney is illegal, invalid, ineffective,
inadmissible in law and collusive. Jogeshwar Ram and Algu Ram
were recorded tenants, but before their death, they were in
separate possession of half share each. The plaintiffs never
resided with their uncle Jogeshwar Ram jointly under the
Managership and Karta of Jogeshwar Ram. The Defendant No.1
further stated that the Power of Attorney dated 08.11.2000
executed by Jogeshwar Ram in favour of Krishna Singh (plaintiff
no.1) authorising him to manage the entire land and transfer, if
needed and file suits, etc. is forged, fabricated and manufactured.
The Defendant No.1 denied that since prior to 08.11.2000, the
plaintiffs have been looking after the suit land with their uncle
and they have been coming in absolute right, title, interest and
possession over it continuously till now.
IV. The Defendant No.1 denied that prior to his death, Algu Ram had
given his right, title, interest and possession over the suit lands
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and other lands to Jogeshwar Ram and executed 'Panchnama' in
that regard and consequently, Jogeshwar Ram became absolute
owner of the said land. The Defendant No.1 stated that the
alleged 'Panchnama' is a forged, manufactured, invalid and
illegal document which is inadmissible in evidence and by such
document, title could not be conferred.
V. Algu Ram was in possession of the half of the land till his death
and after his death, it devolved upon his brother Radha Krishna
Singh and after his death, it devolved upon Defendant No.3
(Rameshwar Singh) who continued in possession of the same till
its transfer to the Defendant No.1.
VI. The Defendant No.1 further stated that the suit land is in
exclusive possession of the Defendant No.1 and as such, the
allegation against the Defendant Nos.1 and 2 regarding threat of
dispossession is incorrect.
VII. The Defendant No.2 purchased the suit land through legally
constituted attorney namely, Lala Vivek Prasad by means of a
registered sale deed dated 10.11.2010 on payment of valuable
consideration and the possession of the land was delivered to
Defendant No.2 and since then, the Defendant No.2 came in
possession of the land and got his name mutated and was paying
rent to the State. Thereafter, the Defendant No.2 transferred the
land to Defendant No.1 on receipt of valuable consideration and
delivered the possession to Defendant No.1 and since then, the
Defendant No.1 has been in possession of the same on payment
of rent in its name.
VIII. The Defendant No.3 had full right to appoint attorney to transfer
the suit land and it was denied that the sale deeds were forged
and fabricated.
IX. The Defendant No.1 denied that no such deed existed which was
prior to execution of Deed No.1421 which is subject matter of
this case.
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a) The Defendant No.3 has claimed to be the original owner of the
suit property. The Defendant Nos.2 and 3 jointly filed their
written statement on 05.07.2014 stating more or less the same
facts as stated by the Defendant No.1.
b) Prayer for simple declaratory relief declaring the registered Sale
Deed No.1421 dated 03.03.2011 of the Defendant No.1 as
forged, fabricated, without consideration and void ab-initio,
without seeking any relief for cancellation of the deed, is not
maintainable and is barred under the proviso to Section 34 of the
Specific Relief Act.
c) The plaintiffs have not acquired interest over the suit property
and therefore, the plaintiffs are bound to pay the advalorem
court fees on the market value of the suit property and the suit
of the plaintiffs on payment of the fixed declaratory court fee is
not maintainable in law.
d) The Defendant No.1 has purchased the suit property from the
Defendant No.2 (Dilip Kumar Singhdeo) by registered Sale
Deed dated 10.11.2010 who had in turn purchased the same
from the rightful owner Rameshwar Singh (Defendant No.3)
through his lawful attorney Proforma Defendant No.4, but the
Sale Deed executed in favour of the Defendant No.2 by the
defendant no.3 and also the registered Power of Attorney No.
IV-1449 dated 21.10.2010 executed by Defendant No.3 in
favour of Defendant No.4 have not been challenged. Therefore,
the suit is not maintainable and is barred under the proviso to
Section 34 of the Specific Relief Act. The Defendant Nos.2 and
3 further raised objection that the plaint has not been verified as
per the mandatory provisions of Order VI Rule 15 of CPC.
e) The suit is not maintainable for mis-joinder of parties and non-
joinder of necessary parties. Radha Krishna Singh was the full
brother of Algu Ram and defendant no.3 was the son of Radha
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Krishna Singh who inherited the property of Algu Ram as his
Class-II heir.
Moreover, Jogeshwar Singh was the son of Late Sakhari Singh.
Sakhari Singh left behind four sons namely, (1) Balmiki Singh,
(2) Jogeshwar Singh, (3) Tarak Nath Singh (father of plaintiffs)
and (4) Baij Nath Singh.
f) Admittedly Jogeshwar Singh, having died issueless and his wife
having predeceased him, the share of Jogeshwar Singh devolved
upon Tarak Nath Singh, the father of the plaintiffs, and his
above-named other two brothers or in the event of death of
Balmiki Singh and Baij Nath Singh, upon their respective legal
heirs as per Hindu Succession Act, 1956. Since Jogeshwar Singh
never transferred his share of property either to the plaintiffs or
to anybody else above, Tarak Nath Singh, who is alive and the
legal heirs of Balmiki Singh namely, Awadh Singh, Hiralal
Singh, Jeeten Singh and Baij Nath Singh who are alive are all
necessary parties to this suit and they having been not added as
parties, the suit is not maintainable and liable to be dismissed on
this ground alone.
g) The Defendant Nos.2 and 3 contended that the plaintiffs have
not made it clear in the plaint as to how and in what manner,
they acquired right, title, interest and possession over the suit
land entitling them to file the suit and therefore, the plaint is
itself vague and indefinite and is liable to be rejected under
Order VII Rule 1(e) and 1(g) of CPC. They further contended
that the suit is speculative, vexatious and mischievous and
suffers from the true material fact and as such, not maintainable
in law.
h) They admitted that the father's name of Jogeshwar Ram was
erroneously mentioned in suit Khata No.9 as Dev Nath Ram and
stated that Debnath Ram was the father of Algu Ram. Jogeshwar
Ram @ Singh was the son of Sakhari Singh.
i) Algu Ram died issueless on 20.01.1996 and not on 20.01.1995.
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j) Jogeshwar Ram and Algu Ram, after acquiring the suit property
and other properties, were in exclusive separate possession of
their lands in equal shares as absolute owners by exercising their
right, title, interest and cultivating and living possession till their
death.
k) Algu Ram was the brother-in-Law (Sarhu) of Late Jogeshwar
Ram and both jointly acquired 5 Acres 10 Decimals of land
including the suit land long before the year 1950 from their
respective personal funds and after acquisition, both by dint of
hard labour and reclamation converted the lands into cultivable
lands and constructed residential houses and amicably
partitioned the said land in equal shares and were all along in
exclusive separate possession of their shares of lands by
exercising their right, title and interest.
l) In the above amicable partition, half share including the suit land
out of 5.10 acres fell in the share of Algu Ram and he was in
exclusive separate possession as its absolute owner till his death.
Algu Ram died issueless on 20.01.1996 leaving behind his
widow Dukhni Devi who inherited the same and she was in
exclusive separate possession of her husband's share of lands till
she died issueless on 27.07.2001.
m) Algu Ram and Radha Krishna Singh @ Ram were two full
brothers both being sons of Late Dev Nath Ram and as Algu
Ram and his widow Dukhni Devi had died issueless leaving
behind no Class-I heir, after the death of Dukhni Devi, the entire
share of Algu Ram including the suit property devolved upon
Radha Krishna Singh @ Ram as Class-II heir as per Hindu
Succession Act, 1956 and Radha Krishna Singh @ Ram became
the absolute owner of the entire 1/2 (half) share of property of
Algu Ram including the suit lands at Mouza-Dobo recorded in
R.S. Khata No.9 till his death by exercising his right, title and
interest on payment on rent to the State Government.
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n) In the Revisional Survey Settlement, the properties of Algu Ram
and Jogeshwar Ram were recorded jointly in their names in R.S.
Khata No.9 of Mouza-Dobo in Kayami Raiyati Right, but in
Column No.II of the Khatian, father's name of Jogeshwar Ram
was wrongly noted as Dev Nath Ram instead of Sakhari Singh.
Jogeshwar Ram was the son of Sakhari Singh and not of Dev
Nath Ram. Dev Nath Ram was the father of Algu Ram.
o) The plaintiffs have deliberately suppressed the name of Radha
Krishna Singh, the full brother of Algu Ram, and the
relationship of Radha Krishna Singh and his son (Proforma
Defendant No.3) with Algu Ram and with a mischievous
intention, they simply alleged that Algu Ram and his widow
Dukhni Devi died issueless.
p) Since Algu Ram left behind his full brother Radha Krishna
Singh, after his death and after the death of his widow, the share
of Algu Ram never devolved upon Jogeshwar Ram or upon his
legal heirs. Rameshwar Singh (Proforma Defendant No.3),
having felt difficulties in the supervision of the suit property and
other share of properties of Algu Ram, executed a registered
General Power of Attorney No. IV-1449, dated 21.10.2010 in
favour of Proforma Defendant No.4, appointing him as his
lawful attorney. Thereafter, Proforma Defendant No.3 through
his lawful Power of Attorney holder, the Proforma Defendant
No.4 sold the suit property to the Principal Defendant No.2,
Dilip Kumar Singhdeo by registered Sale Deed No.5890 dated
10.11.2010 on receipt of due consideration money from him and
delivered possession to him over the said land.
q) The Defendant No.2 was in exclusive possession of the said land
by exercising his right, title, interest and by getting it mutated
in his name in the Anchal Office, Chandil and he regularly paid
rent to the State Government to the full knowledge and
acquiescence of the Plaintiffs and all others and without any
objection by anybody.
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r) The Defendant Nos.2 and 3 further stated that the Defendant
No.2, after purchasing the suit land while in exclusive
possession, sold the same to the Principal Defendant No.1 vide
registered Sale Deed No.1421 dated 03.03.2011 on receipt of the
total consideration money of Rs. 3,10,00,500/- and delivered
possession to him and since then, the Defendant No.1 has been
coming in continuous possession of the same by exercising its
right, title and interest by mutating its name in the Anchal
Office, Chandil in Mutation Case No.1390/2011-12 dated
25.06.2011 and on regular payment of rent to the State
Government to the full knowledge and acquiescence of the
plaintiffs and all others and without any objection by anybody.
s) The Defendant Nos.2 and 3 further stated that the wife of
Jogeshwar Ram @ Singh predeceased Jogeshwar Ram @ Singh
and Jogeshwar Ram @ Singh, though died issueless leaving
behind no Class-I heir, left behind his three brothers named (1)
Balmiki Singh, (2) Tarak Nath Singh and (3) Baij Nath Ram as
his Class-II heirs and as per Hindu Succession Act, the
properties of Jogeshwar Ram @ Singh devolved upon his three
brothers and not on the plaintiffs. Out of the three brothers,
Tarak Nath Singh, father of the plaintiffs and Baij Nath Singh
are still alive. Balmiki Singh has died leaving behind three sons
namely, (1) Awadh Singh, (2) Hiralal Singh and (3) Jitendra
Singh who are still alive. As per the plaint itself Tarak Nath
Singh is still alive and hence, the plaintiffs neither inherited the
property of Jogeshwar Ram @ Singh, nor they ever had, nor they
have got any right, title, interest or possession or concern over
the suit property or in the other properties of Jogeshwar Ram @
Singh.
t) They disputed that Algu Ram prior to his death had given his
right, title, interest and possession over the suit land and his
other lands to Jogeshwar Ram and had executed 'Panchnama'
in that regard and consequently, Jogeshwar Ram became the
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absolute owner of the said land. The alleged 'Panchnama' is
false, illegal, invalid, inoperative, forged and fabricated being
manufactured by the plaintiffs for the purpose of the suit and is
not at all admissible in evidence and on the basis of such illegal
document, no title ever passed to Jogeshwar Ram over the suit
property or over the other share of property of Algu Ram. They
further stated that Algu Ram was all along in exclusive separate
possession of his ½ (half) share of property including the suit
property of Khata No.9 and after his death and after death of his
widow, the same devolved upon his full brother Radha Krishna
Singh and after the death of Radha Krishna Singh, the same
devolved upon his son Rameshwar Singh who was in continuous
possession of the same.
u) The plaintiffs had full knowledge about the previous mutation
of the suit property in the name of the Defendant No.2 as well
as the transfer of the same and they had also full knowledge
about the purchase of the suit land by the Defendant No.1 and
its mutation in its name at that relevant time itself.
v) The registered Sale Deeds and the registered Power of Attorney
are all legal and valid documents and the plaintiffs had full
knowledge about the same on the dates of execution and
registration of the same and the plaintiffs in order to create false
evidence might have obtained the certified copies of the same
and they are bound to prove the same.
10. Case of the Proforma Defendant No.4
Proforma Defendant No.4 Vijay Kumar Sinha is the Power Attorney
holder of the Defendant No.3. He stated more or less the same facts and
raising the same contentions as stated by the Defendant No.1. The stand
is almost similar on facts and contentions raised in the written statement
filed by the Defendant No.2 and 3.
11. On the basis of the pleadings of the parties, the learned trial court
framed the following issues for consideration:
1. Is the suit as framed maintainable?
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2. Has the plaintiff any cause of action for the suit?
3. Is the suit barred by Limitation?
4. Is the suit barred by estoppel, waiver, acquiescence?
5. Is the suit barred by Transfer of Property and Registration
Act, under by the Specific Relief Act and Civil Procedure
Code?
6. Is the suit bad for non-joinder & mis-joinder of necessary
parties?
7. Whether the name of the plaintiffs' uncle Jogeshwar Ram
and Algu Ram have jointly recorded in Revisional Survey
Khatian of 1964 over the suit land and they remained
whole life in their right, title, interest and possession as
absolute owner of the same?
8. Whether the Deed of Conveyance, Sale Deed No.1421
dated 03.03.2011 executed in favour of the Defendant
No.1 is forged, fabricated and void ab-initio and
Defendant No.1 has not acquired any interest in the suit
land?
9. Whether the plaintiffs acquired right, title, interest and
possession over the suit land by inheritance and also by
virtue of Registered Power of Attorney dated 08.11.2000
executed by Jogeshwar Ram to the plaintiff Krishna
Singh?
10. Whether Rameshwar Singh is related as nephew of Late
Algu Ram?
11. Whether Jogeshwar Ram acquired right, title, interest and
possession over the suit land by virtue of Punchnama
dated 24.12.90 executed by Algu Ram in favour of him?
12. Whether the suit land is self-acquired property of the
plaintiffs' uncle Jogeshwar Ram and his Sarhu Algu
Ram?
13. Whether the Defendant No.4 has any right, title and
interest to execute Sale Deed No.5890 dated 10.11.2010 in
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favour of Defendant No.2 and Whether Defendant No.3
had any right, title and interest to execute Power of
Attorney vide 1449 dated 21.10.2010 in favour of
Defendant No.4?
14. Are the plaintiffs entitled to get any relief or reliefs claimed
in the suit?
12. The learned trial court considered the materials available on
record and recorded its findings in Paragraph Nos. 19, 20, 21, 22, 23,
24, 25, 26, 27, 28, 29, 30 and 31 of the Judgment which are quoted as
under:
"19. Issue No. 1: Is the suit maintainable in its present form or
not?
On this point the court is opinion that the suit is maintainable in
its present form because court has to find that whether
defendants have any right title interest over the property to
convey the same through the power of attorney and with sale
deed which is challenged in this court by the plaintiff and court
has to find the better title between plaintiff and defendant.
Therefore, this issue is decided in favour of the plaintiff and the
case is maintainable.
20. Issue No. 2: Has the plaintiff any cause of action for the
suit?
On this issue, court is of opinion that plaintiff has the cause of
action for the suit because it is alleged by the plaintiff that
without any right, title & interest the disputed property was
transferred to various defendants. Thus, the rights of plaintiff
were violated and they have got the cause of action in the suit to
defend their right regarding disputed property.
21. Issue No. 3 & 4: Is the suit barred by Limitation, estoppel,
Waiver, acquiescence and by the provisions of Specific Relief
Act? For the sake of convenience both the issues are decided
together.
The reply to the issue is that the suit is not barred by Limitation,
estoppel, waiver, acquiescence and by the provisions of Specific
Relief Act because case is filed within limitation and Rule of
estoppel waiver acquiescence and provision of Specific Relief
Act did not bar the suit.
22. Issue No. 5: Is the suit barred by transfer of property and
Registration Act?
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The reply to this issue is that the suit is not barred by Transfer of
Property and Indian Registration Act because no provision bars
the plaintiff to file this suit.
23. Issue No. 6: Is the suit barred by non-joinder & mis-joinder
of necessary parties?
All the necessary parties joined in the suit for proper
adjudication of the case. Therefore, the suit is not bad for non-
joinder & mis-joinder of the parties.
24. Issue No. 7: Whether the name of the plaintiff's uncle
Jogeshwar Ram and Algu Ram have jointly recorded in
Revisional survey Khatian of 1964 over the suit land and they
remained whole life in their right, title, interest and possession
as absolute owner of the same?
It is admitted fact by both the parties as well as that plaintiffs and
the defendant that Jogeshwar Ram and Algu Ram are recorded
raiyt in Survey Khatian of 1964 over the suit land and they
remained whole life in their right, title, interest and possession
as absolute owner of the same. There is no confusion regarding
that, therefore this issue on the basis of admission by both the
parties is decided in favour of plaintiff.
25. Issue No. 8: Whether the Deed of the conveyance, Sale deed
No.1421 dated 03/03/11 executed in favour of the Defendant
No.1 is forged, fabricated and void ab initio and Defendant
No.1 has not acquired any interest in the suit land?
The core issue in the case is that whether Rameshwar Singh is
nephew of late Algu Ram or not? Because it is proved that
Rameshwar Singh is not nephew of late Algu Ram hence he has
no right to executed a power of Attorney which is marked Ext.-C
which is quite clear by Ext.-6 in which his father's name is
mentioned as Radh Krishn and Radh Krishn father name
specifically mentioned as Vriksh Singh. Therefore, it is quite
clear Rameshwar Singh has no right to executed the power of
attorney by which the Sale deed No.1421 dated 03.03.2011 is
declared null and void because no one can transfer a title which
is not own by him. It will be discussed later that how the
Rameshwar Singh is not nephew of late Algu Ram in issue No.
10, therefore this issue is decided in favour of plaintiff and
against the defendant no.1. (emphasis supplied)
26. Issue No. 9: Whether the plaintiffs acquired right, title,
interest and possession over the suit land by inheritance and
also by virtue of registered power of Attorney dt. 08/11/2000
executed by Jogeshwar Ram to the plaintiff Krishna Singh?
Have the plaintiffs got the right, title, interest and possession of
the suit land or not?
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Before discussing this issue, we should understand that in a civil
case there is no principle of strict proof but the issues are decided
on the basis of preponderance of probability. In this case this
rule will applied because here the court has to decide better title
between plaintiff and defendant for which we have to go through
the oral as well as documentary evidences adduced by the both
the parties. Firstly, we will deal with the oral evidence of plaintiff
and in their oral evidence they have fully supported the case even
the defendant also somehow supported the case of plaintiff. If we
go through evidence of D. W.- 4 Rameshwar Singh who is main
defendant in para 33 of his cross-examination has stated that
Algu Ram and Jogeshwar Ram were living on the disputed land
and in para-38 of his cross-examination stated & admitted that
Krishna who is one of the plaintiffs is cultivating the land in
question since 1980-85.
Here, the most important fact stated by him that Krishna
and his brother was doing agriculture since 1985 from which it
is evident that the plaintiffs were having possession of the land
since 1985 and suddenly in year 2010 Defendant No.3
Rameshwar Singh appears and executed Power of Attorney
regarding disputed land without any single piece of paper in his
hand till date. It has been already discussed that Rameshwar
Singh is not nephew of late Algu Ram so that the Power of
Attorney executed by him is totally illegal and without any force
of law. On the other side several documents have been produced
by the plaintiff first one is the document which is the punchnama
Ext.5, by which late Algu Ram has given the Power of Attorney
to Late Jogeshwar Ram by which he had given the permissive
possession and right to enjoyment of disputed land to late
Jogeshwar Ram similarly Late Jogeshwar Ram also executed
Power of Attorney in name of Sri Krishan Kumar who is the
plaintiff in the case which is marked as Ext.- 3, Although it is
objected by the defendant but the opinion of this court is that the
society should respect the wishes of the dead persons in this case
it has come on record that after executing this Power of Attorney
the executor Algu Ram gone to his native village Jagdishpur and
never come back and died there, which shows that his last wish
was that to give the land to his friend, relative Late Jogeshwar
Ram, so this Power of Attorney will be treated as his last wish or
as a unregistered will. On the other hand, the Rameshwar Singh
has not produced any single chit of paper or document showing
that he is any way related to Late Algu Ram. Although his claim
has been falsified by the Ext. 6 in which it has been evident that
Rameshwar Singh is nephew of Ram Keshwar Singh because
here the father of Rameshwar Singh and father of Ram Keshwar
Singh are same who is Ramvirksh Singh and Ram Keshwar Singh
admitted and specifically stated that Radha Krishn Singh's
father is Vriksh Singh.
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Similarly, Ext.2 shows the genealogy of late Algu Ram
issued by office of Circle office of Jagdishpur where Algu Ram
died with his wife which shows that Algu Ram has only one
brother Jhagru Singh and there is no name of Radha Krishan
Singh as a brother of late Algu Ram which falsify the case of
defendant that Rameshwar Singh is nephew of late Algu Ram due
to which the whole claim of Rameshwar Singh fails.
On the other side if we see the documents of the defendant
it transpires that in year 2010 suddenly one man Rameshwar
Singh appears who is Defendant No.3 execute a Power of
Attorney regarding land related with late Jogeshwar Ram and
Algu Ram without single chit of paper regarding right, title,
owner-ship of disputed land and Power of attorney holder who
are other defendants transfer these disputed land to each other
and after this collusive acts of trans-fer, they again sold the
property to defendant High Tech Company and it is evident by
the documentary as well as oral evidence that Defendant No.3
Rameshwar Singh is not the nephew of late Algu Ram which
shows the conduct and intent of the parties, that somehow they
were creating the documents to grab the disputed land. Similarly,
no single piece of document produced by the defendant which
shows any how they are related with the reals owners in brief we
can say that without any authority Rameshwar Singh by
executing Power of Attorney making the power of Attorney
holder as owner which is corroborated by the statement of the
Rameshwar Singh himself. If these kind of transactions are
allowed in civilized society then it will make chaos in the society
because any one who is not related in any way with property
became the executor of Power of Attorney without any authority
or document can transfer it to any one and create false
documents and grab the properties of others that could not be
tolerated in civilized society and which is against the rule of law
of the land because if anybody has right then he has to come to
the court for exercising his right and here the defendants have
fabricated the documents to grab the lands.
If we weigh the balance between plaintiff and defendant it
has come on record that the plaintiff along with their ancestors
late Jogeshwar Ram and Late Algu Ram were enjoying the
properties since year 1980 and which is also sup-ported by the
main defendant Rameshwar Singh in para 38 of his cross-
examination and it is quite clear that defendant Rameshwar
Singh is not nephew of late Algu Ram so that he has no legal
right to transfer the disputed property and the better title has
been declared in favour of plaintiff and section 110 of Indian
evidence act also supports the plaintiff because it supports the
possession therefore applying the principle of preponderance of
probability the better title goes in favour of plaintiffs.
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Due to above discussion and consideration this cardinal
issue is decided in favour of the plaintiffs & against the
defendant.
27. Issue No. 10: Whether Rameshwar Singh is related as
nephew of Late Algu Ram?
The Defendant No.3 is not the nephew of Algu Ram because it
has been admitted by the defendants' evidence, oral as well as
documentary, that he does not belong to late Algu Ram and by
discussion it should be proved that the alleged nephew
Rameshwar Ram Defendant No.3 is not the nephew of Late Algu
Ram.
If we peruse the Ext.- 6 which is sale deed executed by
Ramkeshwar Singh who is P. W.-4 and supported the case of
defendant, it is evident from that particular certified copy of sale
deed No. 9915 dt. 20.12.2021 that the Rameshwar Singh who is
main defendant and executed Power of Attorney in favour other
defendants, has been made attesting witness and his father's
name has been mentioned as Radha Krishan Singh and if we
peruse the last page of that sale deed it is evident that the Radha
Krishan Singh's father was Ramvriksh Singh which means
Ramkeshwar and Radha Krishan Singh are real brothers and the
statement of Ram Keshwar Singh that Radha Krishan Singh the
father of Rameshwar Singh is brother of late Algu Ram has been
falsified which means Ramkeshwar and Rameshwar have
relation of uncle and nephew and they have no relation with the
real owner Algu Ram and Jageshwar Ram in this regard it is
pertinent to note that by perusal of Ext.-2 it transpires that the
father of Algu Ram was late Devnath Singh and Radha Krishn
and Algu Ram were real brothers then both have the sons of the
same father but if we compare the Ext.-2 which is family list and
Ext.-6 the certified copy of sale deed it is clear that Algu Ram
was son of Late Bhwanath Singh and Radh Krishn Singh since
father was Late Vriksh Singh and which is admitted by
Rameshwar Singh Defendant No.3 who has executed the Power
of Attorney to the other defendant, which shows that Algu Ram
and Radha Krishna are not brothers at all as well as claim of
defendant that he is the nephew of late Algu Ram has been
falsified and therefore this issue is decided in favour of plaintiff
and against the defendant because after due discussion it is
crystal clear that Rameshwar Singh Defendant No.3, who
executed Power of Attorney concerning disputed land is not
nephew of the real owner of the property. Hence all the
transactions (i. e sale deeds) based on such Power of attorney
are declared null and void along with Power of Attorney
executed by the Defendant No.3 Rameshwar Singh.
28. Issue No. 11: Whether Jogeshwar Ram acquired right, title,
interest and possession over the suit land by virtue of
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punchnama dt. 24/12/90 executed by Algu Ram in favour of
him?
Before discussing this issue, we should understand that in
a civil case there is no principle of strict proof but the issues are
decided on the basis of preponderance of probability. In this
case, this rule be apply because here the court to decide better
title between plaintiff and defendant. Because here one party the
plaintiff has somehow perfected his title but the defendant has no
right whatsoever in the disputed property because he was
claiming the property as nephew of the Late Algu Ram which is
proved totally false which can be dis-cussed earlier and by Ext.-
6 and in his oral evidence it is admitted.
Therefore, this issue is decided in favour of plaintiff
because although the Punch-nama is not registered but it shows
the last will of the late Algu Ram in which he expresses
specifically that the land belonging to him will be taken care by
the late Jogeshwar Ram since then the Jogeshwar Ram and his
relatives were peacefully enjoying the property without any
disturbance which is almost 12 years which perfected their right
in the property although it is not registered. The defendant
Rameshwar Singh himself stated that in para 38 that Krishna and
his brother are cultivating the land in question since 1980 to 85
which show it was in the knowledge of defendant No.3
Rameshwar Singh It is also discussed that in para 23 he himself
admitted Ramkeshwar was younger brother of his father and
name of my elder Tau (uncle) was Ram Janam Singh. He
identified his Signature on Sale Deed No. 7229 dated 01.09.2021
in which Khatian is filed and mention name of his Grand Father
was Brich Singh. The said Sale Deed also includes the name
Brich Singh as the father of Radha Krishna, Ram Keshwar, and
Ram Janam, (Ext.-6 and his Signature has been marked Exit-6/1
in this case). As such his claim that Radhakrishna Singh (his
father) was the brother of Late Algu Ram false.
It is quite clear that the plaintiffs have perfected their title
which was not perfect at the time of Punchnama but due to long
duration of time 12 years the right, title & interest has been
perfected. Therefore, this issue is decided in the favour of
plaintiff and against the defendants.
29. Issue No. 12: Whether the suit land is self-acquired
property of the plaintiff's uncle Jogeshwar Ram and his Sarhu
Algu Ram?
On this issue the court is of opinion that it is admitted by both the
parties, plaintiff and defendant, that the suit property is self-
acquired property of plaintiffs uncle Jogeshwar Ram and Sarhu
Algu Ram so this issue is decided in favour of the plaintiffs and
against the defendant.
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30. Issue No. 13, Whether the Defendant No.4 had any right,
title & interest to execute sale deed No. 5890 dated 10/11.2010
in favour of Defendant No.2 and whether Defendant No.3 had
any right, title, interest to execute power of Attorney vide No.
1449 dt. 21/10/2010 in favour of the Defendant No.4?
It is quite clear that Rameshwar Singh D. W.-3 has no right to
execute the Power of Attorney regarding the suit property due to
he is not the nephew of late Algu Ram. Therefore, all the
transactions based on the same power of Attorney have no value
in eye of law. Therefore, Defendant No.4 had any right, title, &
interest to execute sale deed No. 5890 dated 10/11.2010.
Defendant No.3 had any right, title, interest to execute power of
Attorney vide No. 1449 dt. 21/10/2010 in favour of the Defendant
No.4. Hence this issue is decided in the favour of plaintiff and
against the defendant.
31. Issue No. 14: Are the plaintiff's entitled to get any relief or
reliefs claimed in the plaint?
All the above issues decided in the favour of plaintiff and there
is no need to grant any further relief to the plaintiff, therefore,
this issue is decided against the plaintiff."
13. The learned trial court decided the Issue Nos. (1), (2), (3), (4),
(5), (6) and (7) in favour of the plaintiffs, decided the Issue Nos. (8),
(9), (10), (11), (12) and (13) in favour of the plaintiffs and against the
defendants and decided the Issue No. (14) against the plaintiffs.
14. Accordingly, the learned trial court decreed the suit on contest in
favour of the plaintiffs/respondents and declared Sale Deed No.1421
dated 03.03.2011 executed by the Defendant No.2 in favour of
Defendant No.1 as null and void and further held that Defendant No.1
has not acquired any interest over the suit land.
Arguments on behalf of the appellants
15. There is a chain of transfer and the last purchaser (defendant
no.1) is the second purchaser of the property.
16. The appellant no.1 purchased the land-in-question from one
Rameshwar Singh, nephew of Late Algu Ram, who was holding 2.55
acres of land, out of the total 5.1 acres of land, jointly held by Late Algu
Ram and Late Jogeshwar Ram, both brothers-in-law.
17. The plaintiffs filed the suit claiming themselves to be the joint
owners of the entire 5.1 acres of land. They claimed that through one
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purported 'Panchnama' issued on 24.12.1990 by Late Algu Ram in
favour of Late Jogeshwar Ram, the right, title and interest with regard
to 2.55 acres of land of Late Algu Ram vested in favour of the plaintiffs'
uncle Jogeshwar Ram and through a purported Power of Attorney
issued by Late Jogeshwar Ram on 08.11.2000, the right, title and
interest with regard to 2.55 acres of said land vested in favour of the
plaintiffs/respondents.
18. The property stood recorded in the name of Algu Ram and
Jogeshwar Ram and there was no partition between the two; the share
of Jogeshwar Ram devolved upon his death on three brothers namely,
Balmiki Singh, Tarak Nath Singh and Baij Nath Singh and thus, half of
the total property devolved upon the three brothers together and
consequently each one of them got one-third in ½ of the property.
19. Algu Ram had expired on 20.01.1996 and his wife Dukhni Devi
had expired on 27.07.2001 and there was an unregistered purported
'Panchnama' dated 24.12.1990 executed by Algu Ram in favour of
Jogeshwar Ram and one purported power of attorney was also executed
by Jogeshwar Ram on 08.11.2000 which included the entire property
of Algu Ram and Jogeshwar Ram. Jogeshwar Ram expired on
16.11.2000 and his wife had expired sometimes in the month of August,
2000.
20. Algu Ram expired leaving behind his one brother Radha Krishna
Singh who had one son namely, Rameshwar Singh and Rameshwar
Singh transferred the entire share to the extent it related to Algu Ram
to the appellant no.1. Baij Nath Singh son of Jogeshwar Ram
transferred his portion of the property to the appellant no.1.
Consequently, the appellant no.1 got ½ share of the total property which
was belonging to Algu Ram plus 1/3rd share of the remaining half
which was originally belonging to Jogeshwar Ram and consequently,
5/6th of the property was purchased by the last purchaser.
21. The learned counsel further submitted that the alleged
'Panchnama' dated 24.12.1990 was exhibited as Exhibit-5 in Title Suit
No.46 of 2012 which is subject matter of consideration in the present
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appeal being First Appeal No. 77 of 2023. He also submitted that so far
as the power of attorney dated 08.11.2000 is concerned, the same was
exhibited as Exhibit-3. He has submitted that these exhibits are
available in other records also.
22. The learned counsel also submitted that the plaintiffs are
claiming by virtue of being power of attorney holder in terms of the
document dated 08.11.2000 (Exhibit-3) and they claimed the entire
property and since the power of attorney was executed by Jogeshwar
Ram in favour of plaintiff no.1 in relation to the entire property, thereby
excluded Jogeshwar Ram and also three brothers of Jogeshwar Ram
namely, Tarak Nath Singh, Balmiki Singh and Baij Nath Singh.
Consequently, there is a conflict between power of attorney holders by
virtue of Exhibit-3 and the three brothers of Jogeshwar Ram namely,
Tarak Nath Singh, Balmiki Singh and Baij Nath Singh. He also
submitted that the plaintiffs in their relief did not challenge the initial
sale deed and they only challenged the last sale deed and consequently,
the sale deed in favour of the vendor of the last purchaser through a
chain of transfer remained intact.
23. During the course of arguments, the learned counsel for the
appellants submitted that the points for determination in the present
case would be the same as Issue Nos.1, 5, 7, 8, 9, 10, 11 and 12 which
were framed by the learned trial court. In addition, the learned counsel
for the appellants submitted that following two issues also arise for
consideration: -
Whether the learned trial court could have set aside the
registered Sale Deed No.1421 dated 03.03.2011 which was
subject matter of the suit in absence of any challenge to
the registered Sale Deed No.5890 dated 10.11.2010?
Whether the registered Sale Deed No.5890 dated
10.11.2010 could have been declared to be null and void
when there was no specific challenge in the prayer portion
of the suit?
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24. It is submitted that the learned trial court absurdly observed the
following: -
"26...Although it is objected by the defendant, but the opinion of
this court is that the society should respect the wishes of the dead
persons. In this case, it has come on record that after executing
this Power of Attorney, the executor Algu Ram went to his native
village Jagdishpur and never came back and died there, which
shows that his last wish was that to give the land to his friend,
relative Late Jogeshwar Ram, so this Power of Attorney will be
treated as his last wish or as an unregistered will."
25. The learned trial court ignored that if at all that 'Panchnama' was
a last wish and consequently, the procedure specified under Succession
Act were to be followed for claiming any right, title and interest in the
same, then only legal representatives of Late Algu Ram were entitled
for claiming any such right, title and interest and not rank outsiders like
the respondents.
26. Further despite the fact that the respondents claimed that the
'Panchnama' was a power of attorney, the learned trial court on the
contrary declared that as last wish of Late Algu Ram meaning a "Will",
whereas the said document neither consists thumb impression, nor
signature of Late Algu Ram.
27. The learned trial court ignored the trite law that the suit was bad
for non-joinder and mis-joinder of necessary parties, inasmuch as, all
the legal heirs of Late Jogeshwar Ram i.e., Late Balmiki Singh
including his sons namely, Awadh Singh, Hiralal Singh and Jitendra
Singh, Tarak Singh [father of the plaintiffs], and Baijnath Singh were
necessary parties to the suit. Late Tarak Singh, Late Balmiki Singh and
Baijnath Singh all are brothers of Late Jogeshwar Singh [died issueless]
and they were necessary parties in this suit, even though the
respondents claimed right, title and interest in the land of Late Algu
Ram and not of Late Jogeshwar Ram under the purported power of
attorney of Late Jogeshwar Ram.
28. Algu Ram died issueless living behind his brother Radha Krishna
Singh, who inherited the ½ of the lands of Khata No.9, Mouza Dobo
and after his death his only son and legal heir Rameshwar Singh
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[Defendant No.3] inherited the same and came in exclusive possession.
However, learned trial court most erroneously declared him not related
to Late Algu Ram on the basis of forged documents (Vanshavali) filed
by the plaintiffs which were not verified by the learned trial court,
inasmuch as, how could the Circle Officer of Bihar State issue a
certificate for residents of Jharkhand. The learned trial court messed up
the whole issue ignoring the depositions of PW-6 (Cross-examination
Para-5) and DW-3 completely, without any whisper on the same.
29. The plaintiffs in their sinister design tried to mislead the learned
trial court not only with regard to the relationship of Late Algu Ram
with his nephew Rameshwar Singh, but also forged the documents of
their own uncle Jogeshwar Ram by filing the Election ID Card of Late
Jogeshwar Ram, Khatian and his death certificate in which his father's
name was Late Devnath (as if Jogeshwar Ram was the own brother of
Late Algu Ram) which is actually the name of the father of Late Algu
Ram only and as such all the three documents were not cross verified
by the learned trial court and the same were taken on face value which
was falsified in the deposition of PW-2, Sudama Singh who is the own
nephew of DW-3 [Baijnath Singh], in his cross-examination at Para-16.
Even the purported Power of Attorney dated 08.11.2000 has mentioned
the name of the father of Late Jogeshwar Ram as Devnath Singh.
30. It is apparent from perusal of the impugned order that the learned
trial court has completely messed up different identities by first
declaring Rameshwar Singh as the nephew of Ram Keshwar Singh and
then declared them as brothers with father's name as Rambriksh Singh.
The learned trial court further erred in declaring the father's name of
Defendant No.3, Rameshwar Singh as Briksh Singh. The learned trial
court was completely confused as to the identity of Rambriksh Singh
and Briksh Singh, whether they represent the same person or two
different persons.
31. The learned trial court completely ignored the following
genealogical chart which emerged after conclusion of the proceedings
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before the learned trial court that Devnath, Bhavnath and Rambriksh
were three brothers having following descendants:
a. Devnath had two sons Algu Ram and Radhakrishna Singh;
Radhakrishna Singh has one son Rameshwar Singh
[Defendant No.3/ Appellant No.5]
b. Bhavnath had two sons namely, Jhagru and Narayan Singh;
and
c. Rambriksha had two sons - Ramkeshwar and Ramjanam.
32. The learned trial court ignored the depositions of DW-3, Baijnath
Singh who stated as under at Paragraph No.9:
"9. That Algu Ram had only one brother Radha Krishna. The
said Radha Krishna left his only son Rameshwar Singh as his
descendant after he died."
33. The learned trial court ignored the admissions of PW-1 itself
(PW-1-Cross-examination Para-16) that Late Jogeshwar Ram was four
brothers, (1) Jogeshwar; (2) Balmiki; (3) Tarak Nath; and (4) Baijnath.
Tarak Nath (died in 2015) was alive at the time when the suit was filed
and his brother Baijnath (DW-3) was also alive and both were the legal
representatives of Late Jogeshwar Ram. The respondents and others
were neither legal representatives of Late Jogeshwar Ram, nor any right
accrued to them with respect to the land involved in this case, much
less, that of Late Algu Ram, which the plaintiffs claimed through
Jogeshwar Ram.
34. The learned trial court has gone further wrong while passing
order against Rameshwar Singh [Defendant No.3] against whom no
order could be passed when no relief was prayed for by the plaintiffs.
35. The learned trial court ignored that Section 17 of the Registration
Act clearly provides that any document (other than testamentary
instruments) which purports or operates to create, declare, assign, limit
or extinguish whether in present or in future "any right, title or interest"
whether vested or contingent of the value of Rs. 100 and upwards to or
in immovable property must be registered.
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36. The learned trial court ignored the trite proposition of law
mandated under Section 49 of the Registration Act that no document
required by Section 17 to be registered shall, affect any immovable
property comprised therein or received as evidence of any transaction
affected such property, unless it has been registered. The deposition of
Plaintiff no.1, Krishna Singh was also ignored whereunder at Para-37
of his cross-examination he stated that the 'Panchnama' was not
registered; at Para-40 of his cross-examination, he admits that Late
Jogeshwar Ram had never filed any petition before any competent court
for declaration of Late Algu Ram's 2.55 acres of land as his absolute
property; at para 43 of his cross-examination he admits that in the stamp
paper in which alleged 'Panchnama' was written has neither been
signed by Stamp vendor or any authorized person nor the same is
sealed. It is submitted that apparently the 'Panchnama' is a forged
document.
37. It is further submitted that both the purported power of attorneys
are forged documents and both appeared to have been created post
death of Late Jogeshwar Ram in a sinister design to capture the land
belonging to others, other than ½ of the land belonging to Late
Jogeshwar Ram.
38. The purported genealogy of Late Algu Ram was brought by the
plaintiffs from C.O. Office, Jagdishpur, Bihar which was not verified
by the court as to whether the same was issued by the CO, Jagdishpur
or not and further whether the said CO examined the family members
of late Algu Ram who at the relevant time were residing in Jharkhand,
before issuing the same subscribing his signature. In the absence of
these verifications, the said genealogy had no evidentiary value and the
learned trial court went wrong in admitting the same, considered that as
genuine and passed order relying on that forged document, without
giving any finding on the fact as to how a CO of Bihar can assume
power in State of Jharkhand, as plaintiffs and defendants both were
residing within the State of Jharkhand at the relevant time when the said
certificate was issued.
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39. The main plaintiff Krishna Singh himself admits at Para-47 of
his cross-examination that no member of family of Algu Ram applied
for that genealogy. He further admits at Para-46 that his brother Sudama
Singh applied for that genealogy and at Para-47 further admits that
Sudama Singh went to Jagdishpur and what he did there was not known
to him.
40. Nirvachan Card (Ext-4) is equally of a doubtful origin inasmuch
as there are mention of two Radhakrishna Singh aged 45 years and 47
years and father's names as Briksh Singh and Ramgovind Singh
respectively. It is further apparent by the perusal of all the affidavits
and cross-examinations that no witness ever mentioned any name
called Briksh Singh and the name referred is Rambriksh Singh and
hence, this document also required scrutiny by the learned trial court
before accepting that as evidence which the learned trial court failed for
reason unknown. At first the learned trial court failed to verify the
relevant page of Exhibit-9 where the name is mentioned as Radha
Krishna Singh, who is actually the father of the Rameshwar Singh.
41. On perusal of the said document called 'Panchnama' it is also
apparent that the said document was authored by one Ram Janm Singh
and signed by him only with signatures of some witnesses Girija Singh,
Srikant Singh, Ramnaresh Singh, Satyanarayan Singh and one Paras
Mahato.
42. When the purported Power of Attorney dated 08.11.2000 is
examined, it is found that there are two witnesses one is Sudama Singh,
Plaintiff No.2 himself and another one Girija Singh who claims to have
also signed as witness. The purported 'Panchnama' is ex-facie a forged
document. In any case, the said Power of Attorney even if it is assumed
without admitting that the said purported Power of Attorney dated
08.11.2000 was genuine, the same got lapsed after the death of Late
Jogeshwar Ram on 16.11.2000 which is a trite law pursuant to Section
201 of the Indian Contract Act, 1872.
43. The plaintiffs exhibited three documents of Late Jogeshwar Ram
- first, Voter ID Card (Ext-5) in T.S. No.35 of 2012; second, Electoral
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Card (Nirvachan Card), Ext 4 in T.S. No.35 of 2012; and third, Death
Certificate - Ext- 6/2 in T.S. Case No.35 respectively. All three
documents referred above appear to be forged inasmuch as the father's
name of Late Jogeshwar Ram has been mentioned as Late Devnath
Singh which is false inasmuch as Devnath Singh is the father's name of
late Algu Ram as reflected in his death certificate being Ext-6 under
T.S. No.35 of 2012.
44. It is trite that the plaintiffs could succeed in a suit for declaration
of title and possession on the strength of their own title and hence, the
onus was on them to prove their case by leading sufficient / cogent
evidence for their claim on the said land admeasuring 5.1 acres.
45. Therefore, under the abovementioned facts and circumstances
the appellants most respectfully pray that the Impugned Orders be set
aside and the appeal be allowed.
46. The learned counsel for the appellants relied upon the following
judgments:
(i) 2014 (2) SCC 269 (UOI & Ors Vs Vasavi Cooperative
Housing Society Ltd. & Ors.)
(ii) 2012 (1) SCC 656 (Suraj Lamp & Industries Pvt. Ltd. Vs
State of Haryana & Anr.)
Arguments on behalf of plaintiffs / respondents
47. The learned counsel appearing on behalf of the plaintiffs
(Respondents in the present appeal) submitted that the first transfer was
made by Rameshwar Singh who is son of Radha Krishna Singh, but he
was not at all related with Jogeshwar Ram. The property never
devolved upon Radha Krishna Singh and then to Rameshwar Singh and
therefore, the transfer has been made by persons completely stranger to
Jogeshwar Ram and this finding has been recorded by the learned trial
court.
48. He further submitted that there was no need to separately
challenge the sale deeds which were executed by complete strangers to
the property.
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49. Jogeshwar Ram, Tarak Nath, Baij Nath and Balmiki are full
brothers. Out of these four, only Baij Nath is alive.
50. The plaintiffs are sons of Tarak Nath and it is an admitted fact
that plaintiffs are own nephew of Jogeshwar Ram, but Rameshwar
Singh, in no way, is connected either with Jogeshwar Ram or with Algu
Ram and he is totally stranger.
51. Jogeshwar Ram and Algu Ram had self-acquired the suit
property of an area 105 decimals under Mauza Dobo, Khata No.9, Plot
No.1198 (Part), Thana No.331, Halka No.2, within P.S. Chandil,
District Seraikella-Kharsawan. Land-in-question is the self-acquired
property of Jogeshwar Ram and Algu Ram.
52. The suit land stands recorded jointly in the name of own uncle of
the plaintiffs, Jogeshwar Ram and his Sarhu, Algu Ram. They owned a
total land of 5.10 acres in their joint name which were mutated in their
names in the records-of-right and they were paying rent regularly to the
Government and after their death, the plaintiffs were paying rent
regularly till 2011.
53. Jogeshwar Ram and Algu Ram, both died issueless. Algu Ram
had died on 20.01.1996, while his wife Dukhni Devi had died on
27.7.2001. Jogeshwar Ram had died on 16.11.2000 and his wife Parbati
Devi pre-deceased him on 28.8.2000.
54. Jogeshwar Ram was the Karta of joint family and when he grew
old, he executed a power of attorney on 08.11.2000 in favour of
Respondent No.1 and appointed him as representative and on that basis,
he is in possession of the suit property.
55. Algu Ram had executed a 'Panchnama' with respect to his entire
property in favour of Jogeshwar Ram on 24.12.1990 giving him
absolute right and ownership of the land-in-question.
56. During his lifetime, Jogeshwar Ram and Algu Ram both
remained in possession of the suit land having absolute right, title,
interest and exclusive possession and constructed two houses over it.
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57. There was no partition of the suit property at all between
Jogeshwar Ram and Algu Ram.
58. After death of Algu Ram and his wife, the plaintiffs and
Jogeshwar Ram were residing jointly under the managership (Karta) of
Jogeshwar Ram.
59. Prior to his death, Algu Ram had given his right, title, interest
and possession to Jogeshwar Ram by executing a 'Panchnama' dated
24.12.1990 and consequent thereupon Jogeshwar Ram became absolute
owner of the entire land of Khata No.9.
60. Jogeshwar Ram executed a power of attorney dated 08.11.2000
in favour of the Respondent No.1, Krishna Singh with respect to the
entire land of Khata No.9 (Marked as Ext. 7) and thus the plaintiffs have
been coming in possession of the entire land and looking after the same
being in absolute right, title, interest and possession thereof.
61. The plaintiffs came to know about the sale of their land through
the letter of Anchal Adhikari in Demarcation Case No.1/2012-13 and
thereafter they came to know that the suit land was sold by the Original
Defendant No.2, Dilip Kumar Singh Deo (since deceased) [who has
now been substituted by Defendant No.2(A), 2(B) and 2(C)] in favour
of defendant no.1/appellant no.1 through Sale Deed No.1421 dated
03.03.2011. Earlier, the said suit land was sold by the Defendant No.4,
Vijay Kumar Sinha to the original Defendant No.2 by executing Sale
Deed No.5890 dated 10.11.2010 on the basis of Power of Attorney
No.1449 dated 21.10.2010 executed by Defendant No.3, Rameshwar
Singh.
62. Rameshwar Singh (Defendant No.3) gave Power of Attorney to
Vijay Kumar Sinha (Defendant No.4) who sold the land to Dilip Kumar
Singh Deo (Original Defendant No.2) and Defendant No.2 sold the suit
property to Hi-Tech Heritage Limited (Defendant No.1).
63. Though the defendants filed their Written Statement before the
learned trial court, but they have not produced any chit of paper
regarding relation with Algu Ram and they have not established their
right, title, interest and possession over the suit land prior to 2010.
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64. All the PWs have deposed in favour of the plaintiffs.
65. The most relevant DW is Defendant No.3 Rameshwar Singh,
who has been examined as DW-4, who is son of Radha Krishan Singh
and the root cause of the sale of the suit land. He has projected himself
to be nephew of Algu Ram and claimed that his father Radha Krishna
Singh was the brother of Algu Ram and he claimed to have inherited
the property of Algu Ram.
66. After discussion of the issues framed, the learned trial court has
been pleased to find and hold that Radha Krishna Singh is the son of
Ram Vriksha Singh and Algu Ram is the son of Dev Nath Singh as such
father of Defendant No.3 is not brother of Algu Ram and he has got no
relation at all with Algu Ram, and he is totally stranger to Jogeshwar
Singh and Algu Ram and as such he had no right or authority to execute
power of attorney in respect of the suit land.
67. The learned trial court, while discussing the Issue No.8, has
observed that this issue is the core issue as to whether Rameshwar
Singh is the nephew of late Algu Ram or not? The learned trial court
has found and held that it is proved that Rameshwar Singh is not the
nephew of Algu Ram and hence, he had no right to execute Power of
Attorney (Marked as Ext-C) which is quite clear by Ext.-6 and it is clear
that his father Radha Krishna Singh was the son of Ram Vriksha Singh
and Late Algu Ram was the son of Late Dev Nath Singh.
68. The learned trial court has found that in Para-38 of the cross-
examination of Rameshwar Singh, he has admitted that the Krishna
Singh and his brother have been cultivating the suit land since 1985
which shows their possession over the suit land then how suddenly in
2010, Rameshwar Singh came in picture and executed Power of
Attorney No.1449 dated 21.10.2010 in favour of Vijay Kumar Sinha,
Defendant No.4 who executed Sale Deed No.5890 dated 10.11.2010 on
this basis in favour of Defendant No.2, later Defendant No.2 executed
Sale deed No.1421 dated 03.03.2011 in favour of the Defendant No.1.
69. From the above facts and circumstances mentioned above, it is
crystal clear that the learned trial court has rightly found that Defendant
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No.3 Rameshwar Singh was no way connected with Algu Ram as he
claimed and as such, he had no right to execute power of attorney in
respect of the suit land in favour of Vijay Kumar Sinha (Defendant
No.4) and the same is not legal and valid. As such, further sale of the
suit land by Defendant No.4 to Original Defendant No.2 and by
Defendant No.2 to Hi-Tech Heritage Limited (Defendant No.1) is
absolutely not legal and permissible in the eyes of law.
70. The learned trial court has rightly been pleased to allow the
Original Suit No.46 of 2012/Title Suit No. 46 of 2012 in favour of the
plaintiffs/respondents.
Findings of this Court.
71. The suit has been filed seeking a declaration that the deed of
conveyance (sale deed no. 1421 dated 03.03.2011) executed by the
defendant no.2 in favour of the defendant no.1 is forged and fabricated
and the defendant no.1 has not acquired any interest in the suit premise.
The plaintiffs also prayed for cost of the suit. The previous sale deed
dated 10.11.2010 executed by the defendant no.4 in favour of the
defendant no.2 and also the registered power of attorney dated
21.10.2010 executed by the defendant no.3 in favour of defendant no.
4 on the strength of which the defendant no. 4 executed the sale deed
dated 10.11.2010 in favour of defendant no. 2 has not been challenged
in the prayer portion of the plaint. However, in the body of the plaint in
paragraph 16 and 20 it is the specific case of the plaintiffs that defendant
no.3 , through his attorney , defendant no.4 had no right to sell the
property to the defendant no.2 and the defendant no. 3 had no right to
execute power of attorney in favour of the defendant No. 4 with respect
to the suit land and all the deeds of the suit land executed by the
defendants prior to the sale deed dated 03.03.2011 and including deed
dated 03.03.2011 do not exist at all. The suit land is a part of land
recorded in the name of Algu Ram and Jogeshwar Ram who were Sahru
and it is the specific case in paragraph 21 of the plaint that defendant
no.3 was not the nephew of Algu Ram and not at all related, directly
or indirectly, with Jogeshwar Ram or their family and therefore the
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power of attorney was fraudulently executed by defendant no. 3 in
favour of the defendant no. 4 with respect to the suit property. In the
plaint the plaintiffs claimed to be in possession of the suit property and
rent was also claimed to have been paid to the State government
regularly till 2011 and it is the specific case of the plaintiffs in
paragraph 17 of the plaint that the defendants were fully aware that suit
property belongs to the plaintiffs. No relief was sought in the plaint
seeking declaration of right, title, interest or possession of the plaintiffs
nor there was any prayer seeking recovery of possession. The cause of
action arose when the plaintiffs received a letter dated 09.05.1012 on
behalf of the circle officer, Chandil seeking to demarcate the land
followed by other letters and then the plaintiffs obtained the certified
copies of the aforesaid documents from the registry office and filed the
suit.
72. The suit was contested primarily of the ground that defendant
no.3 had the right over the property being the legal heir and successor
of Algu Ram being his nephew and all the transactions are valid; the
suit was bad for non-joinder of necessary parties as all the legal heirs
and successors of Jogeshwar Ram were not made party but it was not
in dispute that the plaintiffs are the descendants of Jogeshwar Ram.
Right, title, interest and possession of the plaintiffs over the suit
property was disputed. The suit property was claimed to be a portion
of the ½ share of Algu Ram and it was asserted that the plaintiffs have
not stated as to how they acquired the suit property. It was specifically
asserted that father's name of Jogeshwar Ram was wrongly recorded in
the record of rights as Dev Nath Ram but Dev Nath Ram was the father
of Algu Ram. It was asserted that Jogeshwar Ram was the son of
Sakhari Singh who was originally resident of Bhojpur, Bihar and Algu
Ram was also the original resident of Bhojpur, Bihar. The case of the
defendants was that Algu Ram did not leave behind any class- I heir
and therefore his share devolved upon Radha Krishna Singh, his full
brother and upon his death, it devolved upon his son, the defendant no.
3 (nephew of Algu Ram). An objection was also raised that earlier sale
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deed dated 10.11.2010 by which the defendant no.2 acquired title was
not challenged and the suit as framed was not maintainable. Prayer for
simple declaratory relief that the sale deed dated 03.03.2011 was not
maintainable without seeking its cancellation was claimed to be not
maintainable and barred under the provisions of section 34 of the
Specific Relief Act, 1963.
Points for determination
73. After hearing the learned counsels appearing for the parties, the
following points for determination arise in the present case:
(i) Whether the suit as framed is maintainable?
(ii) Whether the suit is bad for non- joinder of necessary
parties?
(iii) Is the suit barred by the Specific Relief Act?
(iv) Whether the name of the plaintiffs' uncle Jogeshwar
Ram and Algu Ram was jointly recorded in Revisional
Survey Khatian of 1964 over the suit land and they
remained whole life in their right, title, interest and
possession as absolute owner of the same?
(v) Whether the suit land is self-acquired property of the
plaintiffs' uncle Jogeshwar Ram and his Sarhu Algu
Ram?
(vi) Whether Jogeshwar Ram acquired right, title, interest
and possession over the suit land by virtue of
'Panchnama' dated 24.12.1990 executed by Algu Ram in
favour of him?
(vii) Whether the plaintiffs acquired right, title, interest and
possession over the suit land by inheritance and also by
virtue of Registered Power of Attorney dated 08.11.2000
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executed by Jogeshwar Ram to the Plaintiff -Krishna
Singh?
(viii) Whether Rameshwar Singh (defendant no.3) is related
as nephew of Late Algu Ram?
(ix) Whether it could be declared that the defendant no. 3 had
no right to execute sale deed no. 5890 dated 10.11.2010
in favour of defendant no. 2 through the power of
attorney on the premise that he had no right to execute
power of Attorney No. 1449 dated 21.10.2010 with
respect to the suit property in favour of the defendant no.
4?
(x) Whether the Sale Deed No.1421 dated 03.03.2011
executed by defendant no.2 in favour of the Defendant
No.1 is forged/ fabricated/ void ab-initio/ null and void?
(xi) Whether the learned trial court could have declared
registered Sale Deed No.1421 dated 03.03.2011 executed
by defendant no.2 in favour of defendant no.1 as null
and void in absence of any challenge to previous
registered Sale Deed No.5890 dated 10.11.2010 with
respect to the suit property? AND Whether the registered
Sale Deed No.5890 dated 10.11.2010 could have been
declared to be null and void when there was no specific
challenge in the prayer portion of the suit?
74. The undisputed facts of the case before this Court are as
under:
(i) Algu Ram was the brother-in-law (Sarhu) of Jogeshwar
Ram. Jogeshwar Ram was the own uncle of the plaintiffs.
(ii) Jogeshwar Ram and Algu Ram had jointly acquired,
owned and possessed 510 decimals of land of Khata no.9 which
was jointly recorded in their names in the Survey Khatian of
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1964. The suit land measuring 105 decimals is a part of the land
under the said Khata No.9 relatable to ½ share of Algu Ram (255
decimals).
(iii) Algu Ram died issueless on 20.01.1996 and his wife
namely, Dukhni Devi died on 27.07.2001. Jogeshwar Ram died
issueless on 16.11.2000 and his wife namely, Parvati Devi had
predeceased him on 28.08.2000.
(iv) The plaintiffs paid rent to the Government regularly till
2011.
(v) The Defendant No.3 (Rameshwar Singh) executed
General Power of Attorney vide registered Deed No. IV
1449/2010 in favour of the Defendant No.4 (Vijay Kumar Sinha)
for the share of land of Algu Ram measuring 255 decimals; on
the strength of the said power of attorney, the Defendant No.4
executed Sale Deed No.5890 dated 10.11.2010 and sold 01 acre
05 decimals of land within Plot No.1198 to the original
Defendant No.2 (Dilip Kumar Singhdeo) which is the suit land;
thereafter, the original Defendant No.2 executed Sale Deed
No.1421 dated 03.03.2011 and sold the suit land to the Defendant
No.1 (M/s Hi-Tech Heritage Ltd. represented by Aditya Narayan
Mahato).
75. The case of the plaintiffs is that Jogeshwar Ram, Tarak Nath,
Baij Nath and Balmiki are full brothers. Out of these four, only Baij
Nath is alive. The plaintiffs are sons of Tarak Nath and it is an admitted
fact that plaintiffs are own nephew of Jogeshwar Ram, but Rameshwar
Singh, in no way, is connected either with Jogeshwar Ram or with Algu
Ram and he is totally stranger.
Algu Ram had executed a 'Panchnama' with respect to his entire
property in favour of Jogeshwar Ram on 24.12.1990 giving him
absolute right and ownership of his share of land which includes the
land-in-question. Consequent thereupon Jogeshwar Ram became
absolute owner of the entire land of Khata No.9. After death of Algu
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Ram and his wife, the plaintiffs and Jogeshwar Ram were residing
jointly under the managership Karta of Jogeshwar Ram.
Jogeshwar Ram was the Karta of joint family and when he grew old, he
executed a power of attorney on 08.11.2000 in favour of Respondent
No.1(plaintiff no.1) and appointed him as his representative and on that
basis, he is in possession of the suit property. After death of Jogeshwar
Ram, the plaintiffs are in possession of the entire land of Khata no.9
and looking after the same and have absolute right, title, interest and
possession continuously.
76. Perusal of the plaint reveals that although the plaintiffs stated in
Paragraph-13 that deed of conveyance i.e. Sale deed dated 03.03.2011
executed by the Defendant No.2 in favour of Defendant No.1 was
preceded by another Sale Deed No.5890 dated 10.11.2010 executed by
Defendant No.4 in favour of Defendant No.2 on the strength of power
of attorney executed by Defendant No.3 in favour of Defendant No.4,
but no relief was sought for in connection with the Sale Deed No.5890
dated 10.11.2010 and as per the plaint, the cause of action arose firstly
on 03.03.2011 when Defendant No.2 executed the sale deed in favour
of Defendant No.1.
77. Through the plaint, the plaintiffs had challenged the relationship
of Defendant No.3 with that of Algu Ram and had stated that Defendant
No.3 was neither related to Algu Ram, nor was related to Jogeshwar
Ram. However, during the course of hearing it is not in dispute that
Defendant No.3 was not related to Jogeshwar Ram in any manner
whatsoever.
78. On the other hand, the case of the defendants/appellants as per
the written statement is that the suit is not maintainable and is bad for
non-joinder and mis-joinder of necessary parties. Tarak Nath Singh was
the brother of Jogeshwar Ram and they were four brothers, namely,
Balmiki Singh, Tarak Nath Singh, Baij Nath Ram and Jogeshwar Ram.
All the legal heirs of Jogeshwar Ram including the sons of Balmiki
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Singh are the necessary parties to the suit. Defendant No.3, Rameshwar
Singh has been wrongly made as Proforma Defendant, though reliefs
have been claimed against him. The plaintiffs have no right, title and
interest over the suit property as their father Tarak Nath Singh is still
alive.
Jogeshwar Ram died on 16.11.2000 and Jogeshwar Ram had executed
alleged power of attorney on 08.11.2000 in favour of the plaintiff no.1,
which is forged and fabricated.
Algu Ram died issueless leaving behind his brother Radha Krishna
Singh who inherited half share of the lands and after his death, his only
son namely, Rameshwar Singh [Defendant No.3] came in exclusive
possession of the property. The plaintiffs have not made it clear in the
plaint as to how and in what manner they have acquired right over the
suit property originally belonging to Algu Ram, entitling them to
institute the suit. Algu Ram was in possession of the half of the land till
his death and after his death, it devolved upon his brother Radha
Krishna Singh and after his death, it devolved upon Defendant No.3
(Rameshwar Singh) who continued in possession.
It was also their case that there has never been partition between Algu
Ram and Jogeshwar Ram.
The 'Panchnama' by which Algu Ram allegedly allocated his share to
Jogeshwar Ram and the 'power of attorney' allegedly executed by
Jogeshwar Ram in favour of plaintiff no. 1 are forged and fabricated.
Further, no property can be transferred by unregistered 'Panchnama'.
79. Thus, the core dispute apparently relates to relationship of
Defendant No.3 with Algu Ram. The plaintiffs claim that Algu Ram
was not related in any manner to defendant no.3 and the defendants
claim that defendant no. 3 was the nephew of Algu Ram.
Further dispute is whether Algu Ram could have transferred his
share through unregistered 'Panchnama' to Jogeshwar Ram.
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80. From the perusal of the issues framed by the learned trial court,
this Court finds that the issues were framed in relation to both the sale
deeds i.e. Sale Deed No.1421 dated 03.03.2011 and also Sale Deed
No.5890 dated 10.11.2010. The Sale Deed No.5890 dated 10.11.2010
was executed by Defendant No.4 in favour of Defendant No.2 and Sale
Deed No.1421 dated 03.03.2011 was executed by Defendant No.2 in
favour of Defendant No.1 and both the sale deeds were in relation to the
same suit property. However, admittedly the Sale Deed No.5890 dated
10.11.2010 was not specifically challenged in the suit.
This fact has been specifically pointed out by the learned counsel for
the appellants to submit that the previous sale deed dated 10.11.2010
having not been challenged in the relief portion, the subsequent sale
deed having been challenged, no relief could have been granted with
respect to the subsequent deed as the previous deed continued to remain
intact and unchallenged.
81. In course of trial-
The plaintiffs examined 05 witnesses to prove their case, who are
as under:
PW-1 Ram Naresh Singh
PW-2 Kokil Mahato
The plaintiffs exhibited the following documents:
Exhibit-1 Signature of Ram Naresh Singh on
'Panchnama'
Exhibit-2 Certificate of Family Chart of Late
(With objection) Algu Ram
Exhibit-3 General Power of Attorney dated
08.11.2000 executed by Jogeshwar
Ram in favour of Plaintiff No.1
Exhibit-4 Certified copy of Sale Deed No.1421
dated 03.03.2011
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Exhibit-5 'Panchnama' dated 24.12.1990
(With Objection)
Exhibit-6 The Sale Deed No.7229 executed by
(With objection) the legal heir of late Ram Janam
Singh, elder brother of Radha Krishna
and Ram Keshwar Singh
The defendants examined 06 witnesses, who are as under:
DW-1 Prashant Kumar Prashant Kumar Mandal
Mandal
DW-2 Dukhu Sahu Formal witness who is a writer
of Sale deed No.1421 (Ext.-A)
DW-3 Baijnath Singh Own uncle of plaintiffs and
also brother of Jogeshwar Ram
and son of Sukhari Singh
DW-4 Rameshwar Defendant No.3 & claimed to
Singh be nephew of Algu Ram
DW-5 Vijay Kumar Defendant No.4
Sinha
DW-6 Aditya Narayan Assistant General Manager &
Mahato Representative of Defendant
No.1
The defendants exhibited the following documents:
Exhibit-A Rent Receipt No.5569184 dated
(With objection) 19.03.2013
Exhibit-A/a Rent receipt No. A026758 dated
(With objection) 29.12.2014
Exhibit-A/b Government Rent Receipt
(With objection) No.784726
Exhibit-B C.C. of Sale Deed No.1421 dated
03.03.2011
Exhibit-C G.P.A. No.1449 dated 21.10.2010
(With objection) (Substituted)
Exhibit-D C.C. of Sale Deed No.5890 dated
(With objection) 10.11.2010
Exhibit-E C.C. of correction Slip
(With objection) No.953/1010-11
Plaintiffs' witnesses
82. PW-1 (Ram Naresh Singh) is an independent witness. He filed
his examination-in-chief on affidavit stating that he knows the plaintiffs
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and further stated that the plaintiffs have filed the suit for 105 decimals
of land situated in Khata No.9, Village- Dobo at one place and the
plaintiffs have got right, title and possession over the suit land since the
life time of their uncle. He further stated that the suit land is jointly
recorded in the name of Late Algu Ram and Late Jogeshwar Ram and
there has been no partition. A 'Panchnama' was executed by Late Algu
Ram in favour of Late Jogeshwar Ram on 24.12.1990 in which he was
a witness. He exhibited the 'Panchnama' and he exhibited the thumb
impression of Late Algu Ram in 'Panchnama'. He further stated that
Jogeshwar Ram was issueless and before his death, he had executed a
Power of Attorney in favour of Krishna Singh. None of the brothers of
Jogeshwar Ram had come to the suit property which was his self-
acquired property. Algu Ram had only one brother namely, Jhagru
Singh who used to reside in Bihar. He further stated that Rameshwar
Singh is not the nephew of Algu Ram and the Power of Attorney
executed by Rameshwar Singh is illegal and forged. Neither the brother,
nor the nephew of Algu Ram, nor the brother or other nephew of
Jogeshwar Ram had come to the suit land and only the plaintiffs have
got right over the suit land and the claim of the defendants is false.
During cross-examination, he admitted that Algu Ram and Jogeshwar
Ram were residents of Jagdishpur and both were Sarhu and he has no
relation with them. He further admitted that the 'Panchnama' was
prepared at home and the witnesses were of the village. The
'Panchnama' does not bear the signature of the wife of Algu Ram and
at the time of 'Panchnama', the age of Algu Ram was 90 years.
83. Thus , P.W-1, an independent witness, has stated that the suit
land is jointly recorded in the name of Late Algu Ram and Late
Jogeshwar Ram ; there has been no partition; a 'Panchnama' was
executed by Algu Ram in favour of Jogeshwar Ram on 24.12.1990 in
which he was a witness; Algu Ram had only one brother namely,
Jhagru Singh who used to reside in Bihar ; Jogeshwar Ram was
issueless and before his death, he had executed a Power of Attorney
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in favour of Krishna Singh (plaintiff no.1); none of the brothers of
Jogeshwar Ram had come to the suit property which was his self-
acquired property; Rameshwar Singh (defendant no.3) is not the
nephew of Algu Ram and the Power of Attorney executed by
Rameshwar Singh is illegal and forged. During cross examination he
has stated that at the time of 'Panchnama', the age of Algu Ram was
90 years; he admitted that Algu Ram and Jogeshwar Ram were
residents of Jagdishpur and both were Sarhu (brother-in-law) and
this witness has no relation with them.
84. PW-2 (Kokil Mahato) filed his examination-in-chief on affidavit
stating that the plaintiffs have filed the suit for 105 decimals of land
which is a part of Khata No.9. The plaintiffs are the nephew of Late
Jogeshwar Ram and Jogeshwar Ram had kept the plaintiffs since their
childhood. The suit land having 05 acres 10 decimals was recorded in
the name of Late Jogeshwar Ram and Late Algu Ram and before his
death, Algu Ram had prepared a 'Panchnama' transferring 2 acres 55
decimals of land of his share to Late Jogeshwar Ram and accordingly,
Jogeshwar Ram was owner of the land. Before his death, Jogeshwar
Ram had executed a Power of Attorney in favour of Krishna Singh. The
suit land was the self-acquired property of Jogeshwar Ram and Algu
Ram and not ancestral property. He further stated that Rameshwar
Singh is not the nephew of Late Algu Ram. The name of the brother of
Algu Ram was Jhagru Singh and Rameshwar Singh is not the son of
Jhargru Singh. Rameshwar Singh had never come over the suit land and
the plaintiffs are residing over the suit land for the last 30-40 years.
During cross-examination, PW-2 admitted that the present suit has
been filed for 5 acres 10 decimals of land under Khata No.9 bearing
Plot Nos.1198, 1199, 1204, 1205 and 1206. He further admitted that
Algu Ram and Jogeshwar Ram were Sarhu and Krishna Singh is the
nephew of Jogeshwar Ram. Algu Ram were two brothers and Algu Ram
was issueless. He denied that the 'Panchnama' is a forged document.
He further denied that after death of Algu Ram, the suit land devolved
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into his brother Radha Krishna Singh and after his death, it devolved
into Rameshwar Singh. He also denied that having possession over the
suit land, Rameshwar Singh executed a Power of Attorney dated
21.10.2010 to Vijay Kumar Sinha and Vijay Kumar Sinha sold the suit
land to Dilip Kumar Singhdeo and on 03.03.2011, Dilip Kumar
Singhdeo sold the disputed land to Defendant No.1 and since then,
Defendant No.1 is in possession over the suit land.
85. Thus, P.W-2 supported the case of the plaintiffs and stated that
the plaintiffs are the nephew of Late Jogeshwar Ram; The suit land
was the self-acquired property of Jogeshwar Rama and Algu Ram and
not ancestral property; the suit land is part of 5 acres and 10 decimals
of land which was recorded in the name of Late Jogeshwar Ram and
Late Algu Ram; before his death, Algu Ram had prepared a
'Panchnama' transferring 2 acres 55 decimals of land of his share to
Jogeshwar Ram and accordingly, Jogeshwar Ram was owner of the
entire land; before his death, Jogeshwar Ram had executed a Power
of Attorney in favour of Krishna Singh (plaintiff no 1) . This witness
stated that Rameshwar Singh is not the nephew of Late Algu Ram;
the name of the brother of Algu Ram was Jhagru Singh and
Rameshwar Singh (defendant no.3) is not the son of Jhargru Singh;
Algu Ram and Jogeshwar Ram were sarhu and Krishna Singh
(plaintiff no.1) is the nephew of Jogeshwar Ram; Algu Ram were two
brothers and Algu Ram was issueless; He denied that after death of
Algu Ram, the suit land devolved into his brother Radha Krishna
Singh and after his death, it devolved into Rameshwar Singh; he
denied that having possession over the suit land, Rameshwar Singh
executed a Power of Attorney dated 21.10.2010 to Vijay Kumar Sinha
and Vijay Kumar Sinha sold the suit land to Dilip Kumar Singhdeo
and on 03.03.2011, Dilip Kumar Singhdeo sold the disputed land to
Defendant No.1 and since then, Defendant No.1 is in possession over
the suit land.
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86. PW-3 (Sudama Singh) is the Plaintiff No.2 in the suit. He filed
his examination-in-chief on affidavit stating that he and Bhola Singh
have authorised Krishna Singh to file the suit. He further stated that all
the three brothers are in possession over the suit land and they are
cultivating the suit land for several decades. The disputed land consists
of 5 acres and 10 decimals and is situated at one place and they have
one house over the same where they have been residing for the last 40
years with their families. He further stated that his uncle Late Jogeshwar
Ram and Algu Ram had purchased the suit property jointly and both
died issueless. Late Jogeshwar Ram had kept the plaintiffs over the
entire 5 acres 10 decimals of land since their childhood and he had made
them the owner of the land. He has filed the Power of Attorney dated
08.11.2000 executed by Jogeshwar Ram in favour of Krishna Singh.
Jogeshwar Ram died on 16.11.2000 at village- Dobo. He further stated
that the suit property is self-acquired property of Algu Ram and
Jogeshwar Ram and the defendants or any other persons have no title
or possession over the land. Jogeshwar Ram and Algu Ram had never
partitioned the suit land. Before his death, Algu Ram had transferred his
share of land to Jogeshwar Ram vide 'Panchnama' dated 24.12.1990
and both were residing jointly over the suit land and they had kept the
plaintiffs since their childhood and had given possession over the suit
land to them. Thereafter, Jogeshwar Ram went to his Village-
Jagdishpur alongwith his wife and died there on 20.01.1996 and after
sometime, his wife also died there. He denied the right of the defendants
over the suit land and further stated that Sale Deed No.1421 dated
03.03.2011 executed in favour of Defendant No.1 was prepared under
conspiracy. He further stated that the Defendant No.3 claiming himself
to be the nephew of Algu Ram had executed Power of Attorney in
favour of Defendant No.4 and the Defendant No.4 through the said
Power of Attorney has sold the suit land to the Defendant no.2, whereas
the Defendant No.3 is not the nephew of Algu Ram. They have obtained
the Genealogy of Algu Ram on 01.03.2014 from his native village-
Jagdishpur Bhojpur from the office of Circle Officer. He further stated
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that the wives of Algu Ram and Jogeshwar Ram have also died. He
further stated that the Defendant No.1 has purchased the suit land from
the Defendant No.2 by means of a forged Sale Deed No.1421 dated
03.03.2011 on the sole basis of the Power of Attorney given by the
Defendant No.3 to the Defendant No.4. None of the deeds bear the
boundary of the disputed land. He further stated that the plaintiffs are
in possession over the suit land for the last 30 years without any
objection and they are residing over the land after constructing a house
at the centre of the land and they are also doing cultivation over the
land. The defendants had/have no title ever over the suit land and they
had no relation with Late Algu Ram and late Jogeshwar Ram and the
entire transfer is superficial and forged. He further stated that before his
death, Late Algu Ram had transferred his share of land to Jogeshwar
Ram by a 'Panchnama' and Jogeshwar Ram before his death had given
the right and title of the suit land to them and they are residing over the
suit land since their lifetime. Accordingly, the Sale Deed No.1421 dated
03.03.2011 executed in favour of Defendant no.1 is fit to be cancelled.
During cross-examination, PW-3 admitted that Algu Ram were two
brothers, but the descendants of Algu Ram have not been made party in
the suit. Dukhni Devi was the wife of Algu Ram, but Dukhni Devi has
also died. Algu Ram died on 20.01.1996. Jogeshwar Ram died on
16.11.2000 and his wife had predeceased him. He further admitted at
Para-24 that the plaintiffs have never filed any application for transfer
of the suit land in their name. He also admitted at Para-26 that the
'Panchnama' does not bear the signature of any Gram Pradhan or Ward
Member.
87. Thus, PW-3 (Sudama Singh) is the Plaintiff No.2 in the suit
who has supported the case by stating that his uncle Late Jogeshwar
Ram and Algu Ram had purchased the suit property jointly and both
died issueless and the property was their self-acquired property and
they had never partitioned the suit land ; Late Jogeshwar Ram had
kept the plaintiffs over the entire 5 acres 10 decimals of land since
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their childhood and had made them the owner of the land; he has filed
the Power of Attorney dated 08.11.2000 executed by Jogeshwar Ram
in favour of Krishna Singh (plaintiff no.1) ; Jogeshwar Ram died on
16.11.2000 at village- Dobo; before his death, Algu Ram had
transferred his share of land to Jogeshwar Ram vide 'Panchnama'
dated 24.12.1990 and both were residing jointly over the suit land;
thereafter, Jogeshwar Ram went to his Village- Jagdishpur alongwith
his wife and died there on 20.01.1996 and after sometime, his wife
also died; they have obtained the Genealogy of Algu Ram on
01.03.2014 from his native village- Jagdishpur, Bhojpur from the
office of Circle Officer. The defendants had/have no title ever over the
suit land and they had no relation with Late Algu Ram and late
Jogeshwar Ram and the entire transfer is forged. During cross-
examination, PW-3 admitted that Algu Ram were two brothers, but
the descendants of Algu Ram have not been made party in the suit
and Algu Ram died on 20.01.1996 and Jogeshwar Ram died on
16.11.2000. He admitted that the plaintiffs have never filed any
application for transfer of the suit land in their name; he also
admitted that the 'Panchnama' does not bear the signature of any
Gram Pradhan or Ward Member.
88. PW-4 (Bhola Singh) is Plaintiff No.3 in the suit and has
supported the case. He stated that they are in possession of the suit
property and have their house over the suit property and they have been
cultivating the entire land for the last more than 30-35 years without
any objection and have possession and title over the same; Jogeshwar
Ram had brought the plaintiffs in their childhood from their native
village Jagdishpur, District- Bhojpur, Bihar and since then, they have
been cultivating the land without any objection; the suit land is the self-
acquired property of Jogeshwar Ram and Algu Ram which is recorded
in the Khatiyan of 1964 and both have died issueless.; Jogeshwar Ram
died in 2000 and Algu Ram died in 1996 and their wives have also died;
the wife of Algu Ram namely, Dukhni died in 2001 and the wife of
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Jogeshwar Ram namely, Parvati Devi had predeceased Jogeshwar Ram.
He further stated that both persons were residing in the same house and
there had been no partition of the land between them.
This witness has stated that the Defendant No.3 by misrepresenting
himself as the nephew of Algu Ram executed Power of Attorney
No.1449 dated 21.10.2010 for 2.55 acres of land in favour of the
Defendant No.4 and then there have been two sale deeds all through
forgery and conspiracy using the forged Power of Attorney. He further
stated that Defendant No.3 - Rameshwar Singh is not the nephew of
Late Algu Ram; Algu Ram were two brothers and the other brother was
Jhagru Singh; Algu Ram was the Sarhu of their uncle namely,
Jogeshwar Ram.
He has also stated that the Genealogy of Algu Ram has been issued on
01.03.2014 vide Office Serial No.56 by the Circle Officer from his
native Village- Jagdishpur, District- Bhojpur, Bihar which has been
certified on the basis of the report of Sri Umesh Singh, the Revenue
Karmchari of the Jagdishpur Circle and Jitendra Prasad Ram, Circle
Inspector. He exhibited the Genealogy of Algu Ram as Exhibit-2 (with
objection).
This witness further asserted that Jogeshwar Ram had executed the
General Power of Attorney vide Serial No.3518 dated 08.11.2000
authorising the Plaintiff No.1 for purchase and sale of the land and
Government works, which was registered in the Seraikella Registry
Office. He identified the thumb impression of Jogeshwar Ram and
exhibited the General Power of Attorney dated 08.11.2000 as Exhibit-
3 (with objection).
He further exhibited the certified copy of the Sale Deed No.1421 dated
03.03.2011 as Exhibit-4, 'Panchnama' dated 24.12.1990 as Exhibit-5
(with objection). He further stated that the 'Panchnama' bears the
signatures of Girja Singh, Srikant Singh, Ram Naresh Singh, Satya
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Narayan Singh, Paras Mahto, Late Ram Janam Singh and left-hand
thumb impression of late Algu Ram.
He further stated that the Defendant No.3 - Rameshwar Singh executed
the General Power of Attorney No.1449 dated 21.10.2010 in favour of
the Defendant No.4 claiming himself the nephew of Algu Ram which
is forged and therefore, the sale and purchase made vide Sale Deed
No.1421 dated 03.03.2011 executed by the Defendant No.2 in favour
of the Defendant No.1 is illegal and fit to be cancelled. Defendant No.3,
Rameshwar Singh was not the nephew of Algu Ram.
He further stated that Radha Krishna Singh, the father of Rameshwar
Singh (defendant no.3), was not the brother of Algu Ram. Late Radha
Krishna were three brothers, one brother was Ram Janam Singh and the
other brother was Ramkeshwar Singh and their father was Vriksh Singh
and this fact has been stated by Ramkeshwar Singh in his deposition on
behalf of the defendants in Titlte Suit No.35/2012. He further stated that
the plaintiffs are in possession and have been residing over the suit land
for the last 30 years without any objection and they are cultivating the
land and the defendants have never gone to the suit land. The plaintiffs
have full right, title and interest over the suit land and the claim of the
plaintiffs are valid. During cross-examination, PW-4 admitted that
Jogeshwar Ram and Algu Ram were Sarhu of each other and they
belonged to different families; Jogeshwar Ram were four brothers,
including Balmiki Singh, Tarak Nath Singh and Baijnath Singh;
Baijnath Singh is alive and others have died and the plaintiffs are sons
of Tarak Nath. He further admitted at Para-20 that Jogeshwar Ram
during his life time had never executed any Will, Gift Deed or Sale
Deed for his share of land and further admitted at Para-21 that Algu
Ram had never executed any Will, Gift Deed or Sale Deed for his share
of land in favour of the plaintiffs and admitted at Para-22 that Algu Ram
during his lifetime had also never executed any Will, Gift Deed or Sale
Deed or Nadava Deed for his share of land in favour of Jogeshwar Ram.
He admitted that Jogeshwar Ram had executed a Power of Attorney for
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the suit land in favour of Krishna Singh (plaintiff no.1) and made him
its owner. He further admitted that they have no document regarding
ownership and title of the disputed land and asserted that the share of
the land of Algu Ram is in the name of the plaintiffs. This witness has
clearly stated during cross -examination in paragraphs 39 and 40 that
whatever genealogy was provided by his brother, the block office had
issued the genealogy on that basis and then stated that enquiry was made
and the genealogy was given after asking one Parshuram Singh and
further stated that Parshuram Singh was not from the family of Algu
Ram . In paragraph 41 he has stated that he had not seen Jhagru Singh
and he does not know the name of the father of Jhargu Singh.
89. Thus, Bhola Singh, plaintiff no.3 has supported his case and
has, interalia, stated in his evidence that the Defendant No.3,
Rameshwar Singh executed the General Power of Attorney No.1449
dated 21.10.2010 in favour of the Defendant No.4 wrongly claiming
himself as the nephew of Algu Ram; Radha Krishna Singh, the father
of Rameshwar Singh (defendant no.3) was not the brother of Algu
Ram; Late Radha Krishna were three brothers, one brother was Ram
Janam Singh and the other brother was Ramkeshwar Singh and their
father was Vriksh Singh and this fact has been stated by Ramkeshwar
Singh in his deposition on behalf of the defendants in T.S.
No.35/2012. He has also stated that the Genealogy of Algu Ram has
been issued on 01.03.2014 vide Office Serial No.56 by the Circle
Officer from his native Village- Jagdishpur, District- Bhojpur, Bihar
which has been certified on the basis of the report of Sri Umesh Singh,
the Revenue Karmchari of the Jagdishpur Circle and Jitendra Prasad
Ram, Circle Inspector and exhibited the Genealogy of Algu Ram as
Exhibit-2 (with objection). This witness has clearly stated during
cross -examination in paragraphs 39 and 40 that whatever genealogy
was provided by his brother, the block had issued the genealogy on
that basis and then stated that enquiry was made and the genealogy
was given after asking one Parshuram Singh and further stated that
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Parshuram Singh was not from the family of Algu Ram. In paragraph
41 he has stated that he had not seen Jhagru Singh and he does not
know the name of the father of Jhargu Singh.
90. PW-5 (Krishna Singh) is Plaintiff No.1 in the suit and has
supported the case of the plaintiffs as other plaintiffs. He stated that
Algu Ram had made one 'Panchnama' on 24.12.1990 in favour of
Jogeshwar Ram which bears the signature and thumb impression of
Algu Ram and signatures of Girja Singh, Srikant Singh, Parasnath
Singh, Satya Narayan Singh, Ram Naresh Singh and Ram Janam Singh;
after giving full possession of the land to Jogeshwar Ram, Algu Ram
and his wife namely, Dukhni Devi went to their village Dobo and lived
there till their whole life; Jogeshwar Ram had brought and kept the
plaintiffs at the disputed land and had given his right and title to them
and before his death, Jogeshwar Ram had executed the General Power
of Attorney vide Deed No.90 dated 08.11.2000 in his favour (Plaintiff
No.1) and had made the plaintiffs owner of his land as well as the land
of Algu Ram and they have ownership and possession over the disputed
land for the last more than 30 years and are cultivating the land. The
defendants never came over the disputed land nor they have possession
of the disputed land. He further stated that Rameshwar Singh (defendant
no.3) misrepresenting himself as the nephew of Algu Ram has given
Power of Attorney to Vijay Kumar Sinha. Late Algu Ram has one
brother namely, Jhagru Singh who resides separately in Bihar and the
land at Dobo was the self-acquired property of Algu Ram and
Jogeshwar Ram. He has filed the Family List of Algu Ram issued by
the Circle Officer of Jagdishpur Circle on 01.03.2014. He has also filed
the attested copy of the Voter List of the Municipal Election of
Jagdishpur, Bhojpur, Bihar published on 06.04.2012 and the Voter List
of the General Elections, 1971. The aforesaid documents clarify that
Rameshwar Singh (defendant no.3) had made the sale-purchase on the
basis of the General Power of Attorney misrepresenting himself as the
nephew of Algu Ram and he has no connection with the disputed land
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and the defendants have made the sale and purchase in conspiracy with
each other. The Defendant No.3 has given fake power and on the basis
of the same Defendant No.4 has sold the disputed land to the Defendant
No.2 and thereafter, the land was sold to the Defendant No.1 and
therefore, Sale Deed No.1421 dated 03.03.2011 is fit to be cancelled.
He further stated that the boundary of the land is not mentioned in any
of the deeds. During cross-examination, PW-5 stated that Jogeshwar
Ram were four brothers and his three brothers were Balmiki Singh,
Tarak Nath Singh and Baijnath Singh. Balmiki, Taraknath and
Jogeshwar have died, whereas Baijnath Singh is alive and they are the
sons of Taraknath Singh. Balmiki Singh has three sons namely, Awadh,
Hiralal and Jitendra and all are alive, but they are not parties in the suit.
He further admitted that Algu Ram during his lifetime had never
executed any registered Sale Deed, Gift Deed, Nadabi Deed or Will for
his share of land in Khata No.9 in favour of Jogeshwar Ram or the
plaintiffs. He further admitted at Para-37 that the said 'Panchnama' is
not registered and he was not present at that time and it does not bear
his signature. It also does not bear the signature or thumb impression of
Dukhni Devi, wife of Algu Ram. It bears the signature of Dobo Basti.
He further admitted at Para-39 that the share of Algu Ram in the
property has not been mutated in the name of Jogeshwar Ram in the
Circle Office on the basis of the said 'Panchnama' and Jogeshwar Ram
had never filed any suit in court for declaration of his right, title, interest
and possession over the share of the property of Algu Ram. He further
stated at Para-42 that the said 'Panchnama' was prepared in stamp paper
of court, and also admitted at Para-44 that on the basis of the
Punchnama, no paper declaring right, title and interest of Jogeshwar
Ram or the plaintiffs over the share of land of Algu Ram has ever been
prepared. He further admitted at Para-48 that on the basis of the Power
of Attorney, the land of Khata No.9 has not been mutated in his name
(Plaintiff No.1). He admitted at Para-56 that after purchase, the disputed
land has been mutated in the name of Hi-Tech Heritage and rent is being
paid to the State. He also admitted at Para-57 that Vijay Kumar Sinha,
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after taking Power of Attorney form Rameshwar Singh, had sold the
disputed land to Dilip Kumar Singhdeo and the land was mutated in the
name of Dilip Kumar Singhdeo and thereafter, Dilip Kumar Singhdeo
sold the land to the defendant - Hi-Tech Heritage vide Sale Deed dated
03.03.2011, but no application or appeal has been filed to cancel the
mutation in the name of Dilip Kumar Singhdeo and Hi-Tech Heritage.
91. The Witness Ram Chandra Paswan had filed his examination-in-
chief on affidavit. However, on the prayer of the plaintiffs, his evidence
was expunged by the learned trial court vide order dated 02.08.2018.
Defendants' witnesses
92. DW-1, Prashant Kumar Mandal filed his examination-in-chief on
affidavit stating that he has ancestral property at Mouza- Kapali. He
exhibited Rent Receipt No.5569184 dated 19.03.2013 as Exhibit-A
(with objection) and Rent Receipt No.026758 dated 29.12.2014 as
Exhibit-A/a (with objection). During cross-examination, he admitted in
Para-3 that he is working under Defendant No.1 as a contractor.
93. DW-2, Dukhu Sahu filed his examination-in-chief on affidavit
stating that in his presence the Sale Deed No.1421 dated 03.03.2011
was prepared which was executed by Dilip Kumar Singhdeo in favour
of Hi-Tech Heritage through its representative namely, Aditya Narayan
Mahto and he had made his signature on the same as a witness. He
exhibited Sale Deed No.1421 dated 03.03.2011 as Exhibit-B. During
his cross-examination, he admitted at Para-12 that he works under
Aditya Mahto, representative of Defendant No.1.
94. DW-3, Baijnath Singh is own brother of Jogeshwar Ram and
stated that they were four brothers namely, Balmiki Singh, Jogeshwar,
Taraknath and himself and they are the sons of Sukhari Singh. Balmiki
died leaving his three sons namely, Awadh Singh, Hiralal Singh and
Jitendra Singh as his legal heirs. Tarak Nath Singh died in 2015 leaving
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behind him his three sons namely, Krishna, Sudama and Bhola as his
legal heirs who are the plaintiffs in the suit.
He has stated that Algu Ram was the Sarhu of Jogeshwar Ram and Algu
Ram and his wife used to come to his house and he also used to visit
their house. Algu Ram died issueless in the year 1996 leaving behind
him his wife namely, Dukhni Devi as his only legal heir. Dukhni Devi
died in the year 2001. Algu Ram had one own brother namely, Radha
Krishna and their father was Devnath Singh. He also stated that the
name of the father of Jogeshwar Singh has been incorrectly written as
Devnath Ram and Devnath Ram was the father of Algu Ram and Radha
Krishna. He has stated that after acquiring the land, Algu Ram and
Jogeshwar Ram had partitioned the land equally and Algu Ram had
received 2.55 acres as his half share and the other half share of land
alongwith the house was the share of Jogeshwar Ram. The disputed
land is a part of the share of Algu Ram. After mutual partition, Algu
Ram was in separate possession over his share of land and after his
death, his wife namely, Dukhni Devi got the land as his legal heir and
possessed the land. After death of Dukhni Devi, the brother of Algu
Ram namely, Radha Krishna got the land as his legal heir. After death
of Radha Krishna, his only son Rameshwar Singh (defendant no.3) got
possession over the land as his legal heir. He further stated that after
death of Jogeshwar Ram, his share of land devolved upon Taraknath
Singh and him (DW-3) in equal share, as his elder brother Balmiki
Singh had died before death of Jogeshwar Ram and after death of
Taraknath Singh in the year 2015, the share of Taraknath in the share
of Jogeshwar Ram devolved into his three sons, the plaintiffs, in equal
proportion. He further stated that Jogeshwar Ram and his legal heirs
including the plaintiffs have no right, title or possession over the share
of Algu Ram. He further stated that the claim of the plaintiffs that Algu
Ram had given his share of land to Jogeshwar Ram through
'Panchnama' is false and no such 'Panchnama' was prepared and the
alleged 'Panchnama' is forged. The claim of the plaintiffs that they are
the owner of the entire land and they are the only successors of
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Jogeshwar Ram is totally incorrect and false. He further stated that the
claim of the plaintiffs that Radha Krisha Singh was not the brother of
Algu Ram and Jhagru Singh was the brother of Algu Ram is false,
rather Radha Krishna Singh and Algu Ram were full brothers and both
were sons of Devnath Singh and Jhagru Singh was the son of Bhavnath
Singh. Therefore, the claim of the plaintiffs over the disputed land is
false and baseless. In Para -30, he stated that Ram Janam and Ram
Keshwar were the uncles of Rameshwar, In Para-35 he admitted that
that he has sold 2.5 bigha of his share to Lala Vivek for Rupees five
thousand. He also admitted at Para-44 that name of the father of Algu
Ram was Devnath and after death of Algu Ram and Jogeshwar Ram,
Krishna Singh (Plaintiff No.1) is residing in the said house.
95. DW-4, Rameshwar Singh (defendant no.3) is the most
important witness who claims to be the nephew of Algu Ram. Apart
from this witness, no other witness has even claimed that he is a family
member of Algu Ram.
D.W-4 filed his examination-in-chief on affidavit stating that he is the
Defendant No.3. He stated that the disputed land measuring 01 acre 05
decimals is situated at Mouza- Dobo at one place; Algu Ram and
Jogeshwar Ram had jointly acquired 15 Bigha 06 Katha of land and the
khatiyan is jointly recorded in their name; both had partitioned the land
in equal proportion and Algu Ram had received 02 acres 55 decimals
of land and he was in continuous enjoyment and possession and he had
constructed a house and was residing with his wife. This witness further
stated that Algu Ram and his wife namely, Dukhni Devi died issueless
and therefore, his share of land devolved into his full brother namely,
Radha Krishna Singh, father of the defendant no.3. Algu Ram had only
one own brother who was his father and there was no other brother
named as Jhagru Singh. He further stated that Jogeshwar Ram and Algu
Ram were Sarhu and both died issueless and the wife of Jogeshwar Ram
had predeceased him. Jogeshwar Ram were four brothers and the names
of his three brothers were Balmiki, Taraknath and Baijnath. Balmiki
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had died before Jogeshwar Ram and Taraknath died after filing of the
suit and Baijnath is still alive. He further stated that his father namely,
Radha Krishna Singh died having possession of the said 02 acres 55
decimals of land leaving him as the only legal heir and he got the
property of Algu Ram as successor and he is possession of the same.
The disputed land is a part of the said 02 acres 55 decimals of land.
He further stated that he had appointed Vijay Kumar Sinha vide
registered General Power of Attorney in the year 2010 to look after and
sell the aforesaid share of land of Algu Ram measuring 02 acres 55
decimals. Vijay Kumar Sinha through the said General Power of
Attorney has sold the disputed property, out of 2.55 acres of the land,
to Dilip Kumar Singhdeo, the Defendant No.2 vide registered Sale
Deed dated 10.11.2010 and gave possession of the land and Dilip
Kumar Singhdeo mutated the land in his name in the circle office.
Thereafter, Dilip Kumar Singhdeo sold the disputed land to Hi-Tech
Heritage Limited Defendant No.1 vide Sale Deed dated 03.03.2011 and
the Defendant No.1 mutated the land in its name and has been paying
rent to the State and has been in possession of the land continuously.
He further stated that after partition, Jogeshwar Ram had no title,
interest and possession over the share of land of Algu Ram and the
plaintiffs never had/have any title, interest or possession over the
disputed land or over the share of land of Algu Ram. The 'Panchnama'
produced by the plaintiffs is a false and fabricated document, as Algu
Ram had never made any 'Panchnama' in favour of Jogeshwar Ram or
any other party and the claim of the plaintiffs over the land of Algu
Ram is false. The claim of the plaintiffs that his father was not the
brother of Algu Ram, rather Jhargu Singh was the brother of Algu Ram
is totally incorrect and in fact, Algu Ram was the son of Devnath Singh
and Jhagru Singh was the son of Bhavnath Singh. He further stated that
the genealogy of Devnath Singh filed by the plaintiffs is false and
forged and the claim of the plaintiffs over the disputed land is false and
baseless. The documents produced by the plaintiffs are forged and their
prayer in the suit is concocted and they are not entitled to get decree in
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their favour. During cross-examination he admitted at Para-20 that the
land of Algu Ram comprised of four plots i.e. Plot Nos. 1198, 1199,
1204 and 1206 and the land of Jogeshwar Ram comprised of Plot
Nos.1198, 1199, 1204 and 1206 of Khata No.9, total 15 Bigha 6 kathas
and the names of both persons are recorded in the Khatiyan. Both were
Sarhu Bhai (Brothers-in-Law), both were residing together and
cultivating the land. The land is situated at one place at Mouza- Dobo,
but their houses were separate at a distance of 50 metres. He further
admitted at Para-21 that his father Radha Krishna had left the house
in 1987 and he did not know as to when or where he died. He also
admitted at Para-23 that Ramkeshwar Singh was the younger brother
of his father and the name of his elder uncle was Ram Janam Singh.
Arun Kumar is the son of Ram Janam Singh. Ramkeshwar Singh and
Arun Kumar had jointly sold some land to Reena Devi vide Deed
No.7229 dated 01.09.2021 which was registered in the Registry Office
at Jagdishpur Ara Bhojpur and in which he had signed as a witness.
The sale deed bears the signatures of Ramkeshwar Singh,
Radhakrishna Singh and Ram Janam Singh and the name of their
father is Vriksh Singh. The khatiyan enclosed with the sale deed bears
the signatures of Ramkeshwar Singh and Arun Kumar as the sellers and
the signature of Reena Devi as the purchaser. Sale Deed No.7229 dated
01.09.2021 is Exhibit-6 and Signature of D.W-4 on exhibit-6 is
Exhibit-6/1. He admitted at Para-25 that in his native village, he had 15
katha share of his land, Ram Keshwar had one bigha of land and
Ramkeshwar and Ramjanam were his uncles. He also admitted in
Para-26 and 27 that Aditya Mahto had given Rs.26,00,000/- to him in
the year 2010 and he had deposited the money in State Bank. He
revealed that Aditya Mahato had asked him to give land for Hi-Tech
Company and he had executed Power to Vijay Sinha in court and at that
time, Lala Vivek and Aditya Mahto were present there. He further
admitted at Para-33 that 5 acres and 10 decimals of land in Dobo was
purchased by Algu Ram and Jogeshwar Ram and it was not ancestral
property, rather it was their self-acquired property. He also admitted at
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Para-38 that Krishna and his brothers are cultivating the land since
1980-85. He admitted at Para-42 and 45 that he had executed Power of
Attorney in favour of Vijay Sinha for Plot No.1204 measuring 1 acre 5
decimals of land and for Plot No.1206 measuring 1 acre 50 decimals of
land in Khata No.9 and Kartik Mahto and Sugriv Singh were the
witnesses. He further admitted at Para-47 that when he had executed
Power of Attorney, Vijay Sinha had not demanded any proof
regarding the genealogy of Algu Ram or proof of his being nephew
and he has no proof to show that Late Radha Krishna Singh was the
brother of Algu Ram. He admitted at Para-48 that Vijay Sinha and
Lala Vivek had told him that there was no need for family list of Algu
Ram for executing Power of Attorney. He also admitted at Para-49
that he has not filed any application in the Government office stating
that his uncle Algu Ram has died issueless and therefore, the land be
recorded in his name as his successor.
96. DW-5 (Vijay Kumar Sinha) filed his examination-in-chief on
affidavit stating that he is the Defendant No.4 in the suit and he has
already filed his written statement. He further stated that the disputed
land measuring 1.05 acres of Plot No.1198, Khata No.09 is situated at
Mouza- Dobo, Thana- Chandil. The entire land of Khata No.09
belonged to Algu Ram and Jogeshwar Ram which is recorded in their
names in the Khatiyan as equal share. Khata No.09 comprised of total
05 acres 10 decimals of land. He further stated that after partition of the
entire land, Algu Ram and Jogeshwar Ram were in possession
separately and after construction of house, they were residing with their
wives separately and used to cultivate the land. Algu Ram had got half
share of the land including the house. Algu Ram and his wife died
issueless. Algu Ram had one brother namely, Radha Krishna Singh who
inherited the property of Algu Ram and after death of Radha Krishna
Singh, his only son and legal heir namely, Rameshwar Singh inherited
the entire property of Algu Ram and he was in possession. Rameshwar
Singh is a defendant in the suit. As Rameshwar Singh was unable to
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look after the land and he was unable to walk, he appointed him as his
attorney vide registered General Power of Attorney No.1449 dated
21.10.2010 for 02 acres 55 decimals of land within Plot Nos. 1198,
1199, 1204 and 1206. On the strength of the said registered General
Power of Attorney, he sold 01 acre 05 decimals of land within Plot
No.1198 to the defendant Dilip Kumar Singhdeo vide registered Sale
Deed No.5890 dated 10.11.2010 after getting proper consideration
amount and he knows that after getting possession of the disputed land,
Dilip Kumar Singhdeo, mutated his name in the Circle Office, Chandil.
Thereafter, Dilip Kumar Singhdeo sold the disputed land to the
Defendant No.1 - Hi-Tech Heritage Limited vide registered Sale Deed
No.1421 dated 03.03.2011 and gave possession of the land to the
company and after mutation in the Circle Office, Chandil and payment
of rent to the State, the Defendant No.1 is in possession of the disputed
property. He further stated that Jogeshwar Ram had no right, title and
possession over the disputed land and it is the share of Algu Ram and
the plaintiffs also had/have no right, title and possession over the
disputed land. He further stated that Jogeshwar Ram died issueless and
Jogeshwar Ram were four brothers namely, Balmiki Singh, Jogeshwar
Ram, Taraknath Singh and Baijnath Singh and Baijnath Singh is still
alive. He denied that Algu Ram had given his share of land to Jogeshwar
Ram and further denied that after death of Jogeshwar Ram, the plaintiffs
received the entire land of Khata No.9, Mouza- Dobo. He exhibited the
registered General Power of Attorney No. 1449 dated 21.10.2010 as
Exhibit-C (with objection). During cross-examination, he admitted at
Para-24 that he does not know what has been written in the written
statement filed in the suit. He further admitted at Para-30 that he does
not remember as to what has been written in his examination-in-chief
filed on affidavit. He further admitted at Para-35 that he had no
knowledge about the area of the plots. He also admitted at para-46 that
when Rameshwar had given power to him, he had seen the land, but
Rameshwar had no document or rent receipt.
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97. DW-6 Aditya Narayan Mahato filed his examination-in-chief on
affidavit stating that he is A.G.M. of the Defendant No.1 Hi-Tech
Heritage Company Limited and a representative of Defendant No.1 and
he has filed the written statement on behalf of the Defendant No.1.
Defendant Nos.2, 3 and 4 have also filed their written statement
supporting the claim of the Defendant No.1. He further stated that the
disputed land measuring 105 decimals is situated within Plot No.1198,
Khata No.09 at Mouza- Dobo. He further admitted that Algu Ram and
Jogeshwar Ram were Sarhu bhai and they had acquired the entire land
of new Khata No.09 before the recent survey and the said land was
jointly recorded under Khata No.09 as Kaymi Right. Thereafter, Algu
Ram and Jogeshwar Ram had mutually partitioned the land of Khata
No.09 in equal proportion and Algu Ram had got the disputed land
measuring 02 acres 55 decimals in his share which he alongwith his
wife possessed and resided. He further stated that Algu Ram died
issueless leaving behind him his wife namely, Dukhni Devi as his only
successor and Dukhni Devi got the share of land of Algu Ram as his
successor and possessed the same. Dukhni Devi died issueless in the
year 2001 and therefore, the share of land of Algu Ram was inherited
by his brother namely, Radha Krishna Singh and he possessed the same.
Radha Krishna Singh died while in possession of the share of land of
Algu Ram leaving behind him his only son Rameshwar Singh as his
only successor and legal heir and Rameshwar Singh inherited the land
and possessed the same. He further stated that the disputed land is a part
of the land measuring 02 acres 55 decimals of land of Algu Ram. When
Rameshwar Singh felt inconvenience to look after the property of Algu
Ram, he appointed Vijay Kumar Sinha as his attorney to look after and
sell the said 02 acres 55 decimals of land vide registered General Power
of Attorney dated 21.10.2010. Thereafter, on the strength of the said
General Power of Attorney, Vijay Kumar Sinha sold the disputed land
to Dilip Kumar Singhdeo vide registered Sale Deed No.5890 dated
10.11.2010 and also gave possession of the land and after mutation of
the land in the Circle Office, Chandil, Dilip Kumar Singhdeo was in
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continuous possession of the land. Thereafter, Dilip Kumar Singhdeo
sold the disputed land to the Defendant No.1 Hi-Tech Heritage
Company Limited vide registered Sale Deed No.1421 dated 03.03.2011
and also gave possession of the land and since then, the Defendant No.1
has been in continuous possession of the land. The Defendant No.1 also
mutated the disputed land in its name in the Circle Office, Chandil and
is paying rent to the State. He had represented the Defendant No.1 in
the said registered sale deed. He identified the certified copy of Sale
Deed No.1421 dated 03.03.2011 exhibited as Exhibit-B and exhibited
certified copy of Sale Deed No.5890 dated 10.11.2010 as Exhibit-D
(with objection), certified copy of correction slip as Exhibit-E (with
objection) and rent receipt as Exhibit-A/b (with objection). He further
stated that Jogeshwar Ram had no right, title, possession and share over
the disputed land measuring 02 acres 5 decimals of Khata No.09 which
was share of Algu Ram after partition and the plaintiffs neither had, nor
have any right, title and possession over the disputed land. He denied
that Algu Ram had written any 'Panchnama' during his lifetime for the
share of his land in favour Jogeshwar Ram and asserted that the
'Panchnama' produced by the plaintiffs in the case is forged and fake
and therefore, Jogeshwar Ram and the plaintiffs have not acquired any
right, title and possession over the disputed land or any other part of the
share of land of Algu Ram. He further denied that Radha Krishna Singh
was not the brother of Algu Ram and Jhagru Ram was his brother. The
genealogy of Algu Ram shown by the plaintiffs is concocted and false.
He further stated that the registered sale deed of the Defendant No.1 and
the mutation in its favour are true and legal and the said defendant has
rightly got right, title and possession over the disputed land through the
said registered sale deed. In the same way, the registered General Power
of Attorney executed by Rameshwar Singh and the registered sale deed
executed in favour of Dilip Kumar Singhdeo are also true and legal. He
denied that Algu Ram and Jogeshwar Ram were residing together and
Jogeshwar Ram was the Manager and Karta of the entire land of Khata
No.09. He further stated that the General Power of Attorney executed
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by Jogeshwar Ram in favour of Krishna Singh is a forged document and
Jogeshwar Ram had not right to appoint attorney for share of land
including the disputed land of Algu Ram. He also stated that the
disputed land is the land of Defendant No.1 purchased from its true
owner and after purchase, the Defendant No.1 has got valid right, title
and possession over the land and it has been paying rent to the State. He
further stated that the father of the plaintiffs namely, Taraknath Singh
was alive at the time of filing of the suit and he died on 26.01.2015 and
therefore, the plaintiffs had no right to file the suit against the
defendants. He stated that the claim of the plaintiffs over the disputed
land is completely false and baseless and the plaintiffs are not entitled
for decree of the suit in their favour.
98. During cross-examination, DW-6 admitted at Para-43 that the
disputed land was the self-acquired land of Jogeshwar Ram and Algu
Ram and both were Sarhu Bhai and he had seen both the rooms which
were part of the same house and both used to live separately in their
rooms. In the said house, the plaintiffs are residing presently and none
else is residing there. He further admitted that the plaintiffs have filed
one 'Panchnama' in which Algu Ram handed over his share of land to
Jogeshwar Ram in presence of punches and went to his native village
in 1990 and thereafter, he never returned and died at his native village
Jagdishpur, Bihar. He also admitted that the plaintiffs have filed the
family list of Algu Ram issued by the Circle Officer, Jagdishpur in the
suit and he has seen the same. He also admitted at Para-50 that
Ramkeshwar Singh was the devar of Dukhni Devi. He further admitted
that the boundary of the land is not mentioned in General Power of
Attorney Deed No. IV 1449/2010 executed by Rameshwar Singh in
favour of Vijay Kumar Sinha and the boundary of the land is not
mentioned in the sale deed also executed after the said power of
attorney. He further admitted at Para-55 that he has seen the Power of
Attorney executed by Jogeshwar Ram before his death in favour of
Krishna Singh.
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Point of determination no. (i)
99. The suit was filed seeking a declaration that the sale-deed dated
03.03.2011 executed by defendant no. 2 in favour of defendant no. 1
was forged and fabricated, without consideration and void ab-initio and
that the defendant no. 1 had not acquired any interest in the suit
premises. It is not in dispute that the entire 5.10 acres of land stood
recorded in the name of Algu Ram and Jogeshwar Ram and both died
issueless. The plaintiffs claimed that Algu Ram had transferred his
share of land in favour of Jogeshwar Ram by 'Panchnama' dated
24.12.1990 during his lifetime and thereafter, Jogeshwar Ram became
the owner of the entire 5.10 acres. Further, it was the case of the
plaintiffs that Jogeshwar Ram executed power of attorney dated
08.11.2000 with respect to the entire property in favour of plaintiff no.
1 and that plaintiff no. 1 had been living with Jogeshwar Ram much
prior to execution of power of attorney. Jogeshwar Ram expired on
16.11.2000. The plaintiffs claimed to be in peaceful possession of the
property and claimed to have paid rent to the government regularly till
2011. The cause of action arose when the plaintiffs received a letter
dated 09.05.2012 from the Circle Office, Chandil seeking to demarcate
the land at the instance of defendant no. 1 and thereafter, they filed
rejoinder before the Circle Officer. Upon coming to know about the
sale-deed dated 03.03.2011 executed by defendant no. 2 in favour of
defendant no.1, sale-deed dated 10.11.2010 executed by defendant no.
4 in favour of defendant no.2 and the registered power of attorney dated
21.10.2010 executed by defendant no. 3 in favour of defendant no. 4,
the plaintiffs filed the present suit. All the aforesaid documents have
been exhibited before the learned trial court as mentioned above.
100. This Court finds that the right of the plaintiffs was threatened at
the instance of the defendants. It is an admitted fact on record that the
plaintiffs are the descendants of Jogeshwar Ram and they claimed to be
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in possession of the suit property. In such circumstances, this Court is
of the considered view that the suit was maintainable.
101. The learned trial court has held that the suit was maintainable in
the present form by observing that the court was called upon to decide
as to whether the defendants had any right, title and interest over the
property to convey the same through power of attorney and sale-deed
which was under challenge before the court and was of the view that
the court has to find better title between the plaintiffs and the
defendants. The finding of the learned trial court that the suit was
maintainable does not call for any interference. The point for
determination no.(i) is accordingly decided in favour of the plaintiffs
and against the defendants.
Point of determination no. (ii)
102. The plaint reveals that the plaintiffs did not seek any declaration
of their title over the suit property, but they had challenged the right of
the defendant no. 3 to deal with the share of the property of Late Algu
Ram by asserting that defendant no. 3 was in no way related to Algu
Ram and could not have inherited the share of the property of Algu
Ram, who died issueless. The fulcrum of the case was -"Whether
defendant no. 3 is the nephew of Algu Ram to have a right over the
share of Algu Ram and sell his share of property to defendant no.2,
who then could sell it to the defendant no.1?" Since the plaintiffs did
not seek any declaration of their title over the property, this Court is of
the considered view that the other legal heirs and successors of
Jogeshwar Ram were not necessary parties in the suit.
103. Further, the plaintiffs during trial, have themselves brought on
record one family tree said to have been issued by the Circle Officer,
Bhojpur, Bihar showing legal heirs and successors of Algu Ram which
did not include the defendant no.3, but did not make any of them party
in the suit. Since the relationship of defendant no. 3 with Algu Ram
was the only matter in dispute which has direct bearing in the sale-deed
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dated 03.03.2011 executed by defendant no.2 in favour of defendant
no.1, this Court is of the considered view that the suit was not bad for
non-joinder of necessary parties. The learned trial court has also held
that the suit was not bad for non-joinder or mis-joinder of necessary
parties.
104. The point of determination no. (ii) is decided against the
appellants (defendants) and in favour of the respondents (plaintiffs).
Point of determination no. (iii)
105. This Court finds that the plaintiffs were claiming the property by
virtue of the following documents in sequence: -
a) Unregistered 'Panchnama' dated 24.12.1990 executed by
Jogeshwar Ram in favour of Algu Ram with respect to the share
of Algu Ram;
b) Jogeshwar Ram transferred the entire property, including the
share of Algu Ram to the plaintiff no. 1, his nephew, through
registered power of attorney dated 08.11.2000;
c) The plaintiffs also claimed the property by way of inheritance
through Jogeshwar Ram.
106. The consequence of unregistered 'Panchnama' and registered
power of attorney dated 08.11.2000 in favour of the plaintiff no. 1 will
be considered while dealing with the other points of determination
involved in this case.
107. So far as the suit being barred by the provisions of Specific Relief
Act is concerned, this Court finds that a specific stand was taken by the
defendant nos. 2 and 3 in their written statement at paragraph 6 that the
plaintiffs have sought for a simple declaratory relief for declaring the
registered sale-deed no. 1421 dated 03.03.2011 of the defendant no. 1
as forged, fabricated, without consideration and void ab-initio without
seeking any relief for cancellation of the said deed and therefore, the
present suit is not maintainable in law and is barred under section 34 of
the Specific Relief Act.
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108. The plaintiffs have neither sought declaration of their title nor
sought cancellation of the registered sale-deed no. 1421 dated
03.03.2011 and the suit is a pure declaratory suit and the sale deed is
alleged to be void ab-initio. The specific case of the plaintiffs is
defendant no.3 has no relation with Algu Ram and has no right to deal
with the share of Algu Ram after his death; the claim of defendant no.3
that he is the nephew of Algu Ram and acquired the share of Algu Ram
through inheritance is not correct.
109. In the recent judgment of the Hon'ble Supreme Court passed in
the case of "Hussain Ahmed Choudhury and others Vs. Habibur
Rahman (Dead) through Lrs. And others" reported in 2025 SCC
OnLine SC 892 which was passed in Civil Appeal No. 5470 of 2025
(decided on 23rd April 2025), the Hon'ble Supreme Court considered
the provisions of section 31 and section 34 of the Specific Relief Act,
1963 , which read as under:
"Section 31. When cancellation may be ordered.-
(1) Any person against whom a written instrument is void or
voidable, and who has reasonable apprehension that such
instrument, if left outstanding may cause him serious injury, may
sue to have it adjudged void or voidable; and the court may, in
its discretion, so adjudge it and order it to be delivered up and
cancelled.
(2) If the instrument has been registered under the Indian
Registration Act, 1908 (16 of 1908), the court shall also send a
copy of its decree to the officer in whose office the instrument
has been so registered; and such officer shall note on the copy
of the instrument contained in his books the fact of its
cancellation.
Section 34. Discretion of court as to declaration of status or
right.-
Any person entitled to any legal character, or to any right as to
any property, may institute a suit against any person denying, or
interested to deny, his title to such character or right, and the
court may in its discretion make therein a declaration that he is
so entitled, and the plaintiff need not in such suit ask for any
further relief:
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Provided that no court shall make any such declaration where
the plaintiff, being able to seek further relief than a mere
declaration of title, omits to do so.
Explanation.-A trustee of property is a "person interested to
deny" a title adverse to the title of some one who is not in
existence, and for whom, if in existence, he would be a trustee."
110. The Hon'ble Supreme Court, while considering section 31 of
Specific Relief Act, has clearly held in paragraph 24 that section 31 of
1963 Act uses the word "may" and it is not a mandate, even as regards
to parties to the instrument or the persons claiming through or under
them, to seek for the cancellation of an instrument which is otherwise
void and therefore, it cannot be contended that a stranger to the
instrument must necessarily seek for its cancellation. It has been held
that by no stretch of imagination can this be construed to mean that
when there exists an instrument with respect to the same property but
executed by some other person, the plaintiff despite being a stranger to
that instrument would fall under the scope of "any person" in Section
31 of the Act of 1963.
111. After having explained the scope of section 31 of Specific Relief
Act, 1963, the Hon'ble Supreme Court considered the provisions of
section 34 of the Specific Relief Act and observed that the object of the
proviso to Section 34 is to obviate the necessity for multiple suits by
preventing a person from getting a mere declaration of right in one suit
and then subsequently seeking another remedy without which the
declaration granted in the former suit would be rendered otiose. It has
been further held that the answer to the question whether it was
incumbent upon the plaintiff to ask for further relief must depend on the
facts of each case and such relief must be appropriate to and consequent
upon the right or title asserted. The Hon'ble Supreme Court also
observed that "Further relief" must be a relief flowing directly or
necessarily from the declaration sought. The Hon'ble Supreme Court
has held that all that the proviso forbids is a suit for pure declaration
without necessary relief where the plaintiff being able to seek such a
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relief, has omitted to do so. The proviso must not be construed in a
manner which compels the plaintiff to sue for any and all the reliefs
which could possibly be granted to him. The plaintiff must not be
debarred from obtaining a relief that he wants for the reason that he has
failed to seek a relief which is not directly flowing from the relief of
declaration already sought for. The Hon'ble Supreme Court has also
given illustration in paragraph 29 of its judgment to explain the position.
It has also been held that a suit for cancellation of a sale deed and
seeking a declaration that a particular document is inoperative as against
the plaintiff are two distinct, separate suits. The earlier judgment passed
by the Hon'ble Supreme Court in the case of "Abdul Rahim v. Sheikh
Abdul Zabbar" reported in (2009) 6 SCC 160 was duly distinguished
by the Hon'ble Supreme Court. The findings of the Hon'ble apex Court
in the case of Hussain Ahmed Choudhury (Supra), as recorded in
paragraphs 28 to 31 and paragraphs 34 to 37 of the said judgment, are
as under:
"28. The words used in proviso to Section 34 are "further
relief" and "no other relief". Since, a further relief must flow
necessarily from the relief of declaration, if such further relief is
remote and is not connected in any way with the cause of action
which has accrued in favour of the plaintiffs, then there is no need
to claim a further relief and the proviso to Section 34 will not be
a bar. All that the proviso forbids is a suit for pure declaration
without necessary relief where the plaintiff being able to seek
such a relief, has omitted to do so. The proviso must not be
construed in a manner which compels the plaintiff to sue for any
and all the reliefs which could possibly be granted to him. The
plaintiff must not be debarred from obtaining a relief that he
wants for the reason that he has failed to seek a relief which is
not directly flowing from the relief of declaration already sought
for.
29. Where the executant of a deed wants it to be annulled, he
has to seek cancellation of the deed under Section 31 of the Act,
1963. But if a non-executant seeks annulment of a deed, he has to
only seek a declaration that the deed is invalid, or non est, or
illegal or that it is not binding on him. The difference between a
prayer for cancellation and declaration in regard to a deed of
transfer/conveyance, can be brought out by the following
illustration relating to 'A' and 'B' -- two brothers. 'A' executes
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a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the
sale. 'A' has to sue for cancellation of the deed. On the other
hand, if 'B', who is not the executant of the deed, wants to avoid
it, he has to sue for a declaration that the deed executed by 'A' is
invalid/void and non est/illegal and he is not bound by it. In
essence, both may be suing to have the deed set aside or declared
as non-binding. [See : Suhrid Singh alias Sardool Singh v.
Randhir Singh, reported in (2010) 12 SCC 112]
30. As observed aforesaid, a plaintiff who is not a party to a
decree or a document, is not obligated to sue for its cancellation.
This is because such an instrument would neither be likely to
affect the title of the plaintiff nor be binding on him. We have to
our advantage two very old erudite judgments of the Madras High
Court and one of the Privy Council on the subject.
31. In Unni v. Kunchi Amma reported in 1890 SCC OnLine
Mad 5, the legal position has been thus explained:
"If a person not having authority to execute a deed or having
such authority under certain circumstances which did not
exist, executes a deed, it is not necessary for persons who are
not bound by it, to sue to set it aside for it cannot be used
against them. They may treat it as non-existent and sue for
their right as if it did not exist." (Emphasis supplied)
32...
33...
34. Therefore, filing a suit for cancellation of a sale deed and
seeking a declaration that a particular document is inoperative
as against the plaintiff are two distinct, separate suits. The
plaintiff in the present case, not being the executant of the sale
deed dated 05.05.1997 executed in favour of the respondent no. 1
(original defendant no. 14), was therefore, not obligated to sue
for its cancellation under Section 31 of the Act, 1963. The
question that remains is whether the plaintiff ought to have sought
for a declaration that the sale deed dated 05.05.1997 was
inoperative in so far as he is concerned or is not binding on him.
35. One should not lose sight of the fact that a suit for
declaration of title to be decided by a court takes within its fold,
consideration of several factors as to how the plaintiff is entitled
for declaration of title. In such cases, the plea of the defendants
about the validity, enforceability and binding nature of any
document defeating the title of the plaintiff have also to be
considered. In such cases, the court naturally views the evidence
on both sides leaving apart the frame of the suit.
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36. Therefore, the High Court having concurred with the
Courts below on the legality and validity of the Gift Deed should
not have dismissed the suit only on the ground that the plaintiff
failed to pray for cancellation of the sale deed. The High Court
should have kept the settled position of law in mind that the
declaration of title is as good as a relief of cancellation of the sale
deed or at least, a declaration that the sale deed is not binding on
the plaintiff being void and thus non est.
37. Furthermore, it is a well-known and settled principle of
law that the plaint must be read as a whole and the actual relief
sought can also be culled out from the averments of the plaint.
Those reliefs can be granted, if there is evidence and
circumstances justifying the grant of such relief, though not
directly or specifically claimed, or asked as a relief. The plaintiff
had averred in his plaint that the original defendant nos. 1 to 6
had no title or saleable rights over the suit property. This reflects
the intention of the plaintiff to not be bound by any instrument
which they may have executed in favour of another party."
112. Upon perusal of the entire plaint and considering the arguments
advanced by the learned counsels for the parties, the core issue involved
in this case is "whether defendant no. 3 is the nephew of Algu Ram to
have a right over the share of Algu Ram and sell his share of property
to defendant no.2, who then could sell it to the defendant no.1?". It
appears that the plaintiffs were asserting that the defendant no. 3 had no
right with respect to the share of the property of Algu Ram by
inheritance as he was not at all related to Algu Ram in any manner.
113. This Court is of the view that the declaration which was sought
for through the present suit by the plaintiffs with respect to the sale-
deed dated 03.03.2011 was not barred by the provisions of Specific
Relief Act, 1963. The learned trial court, while considering the point,
has also held that the suit was not barred by Specific relief Act.
114. In view of the aforesaid discussions, the point of determination
no. (iii), so far as it relates to Specific Relief Act, is decided against
the appellants (defendants) and in favour of the respondents
(plaintiffs).
Point of determination no. (xi)
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115. In the present case the plaintiffs have sought a declaration that
the sale-deed dated 03.03.2011 executed by defendant no. 2 in favour
of defendant no. 1 was forged and fabricated, without consideration and
void ab-initio and that the defendant no. 1 had not acquired any interest
in the suit premises, but the previous sale deed with respect to the same
property which is dated 10.11.2010 has not been challenged or no
declaration has been sought that it is null and void. As observed by the
Hon'ble Supreme Court in the aforesaid judgement in the case of
Hussain Ahmed Choudhury (Supra), it is a well-known and settled
principle of law that the plaint must be read as a whole and the actual
relief sought can also be culled out from the averments of the plaint and
those reliefs can be granted, if there is evidence and circumstances
justifying the grant of such relief, though not directly or specifically
claimed, or asked as a relief. Further, the law is also well settled through
the aforesaid judgement based on previous judgement that if a person
not having authority to execute a deed or having such authority under
certain circumstances which did not exist, executes a deed, it is not
necessary for persons who are not bound by it, to sue to set it aside for
it cannot be used against them. They may treat it as non-existent and
sue for their right as if it did not exist.
116. In the present case the fulcrum of the dispute is "whether
defendant no. 3 is the nephew of Algu Ram to have a right over the
share of Algu Ram and sell his share of property to defendant no.2,
who then could sell it to the defendant no.1?" The plaintiffs have
averred in the plaint that defendant no.3 had no right to execute any
power of attorney/ sale deed through power of attorney with respect to
the suit property of Algu Ram on the sole point that defendant no.3
was in no way related to Algu Ram and could not claim inheritance
claiming to be his nephew, and thus defendant no.3 had no title or
saleable rights over the suit property. This reflects the intention of the
plaintiffs to not be bound by any instrument which defendant no.3 has
executed and consequently not be bound by any follow up instrument
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including sale deed dated 10.11.2010 and also sale deed dated
03.03.2011. The perusal of the plaint reveals that the very locus of the
defendant no. 3 to deal with the suit property was under challenge and
the parties joined the issue and led evidence on the point and the learned
trial court has held that Defendant no. 3 is neither the nephew of Algu
Ram nor related to Algu Ram in any manner and the finding of the
learned trial court has been upheld by this court while deciding point of
determination no. (viii) in the subsequent paragraphs of this judgement .
Accordingly, it is held that the learned trial court has not erred in
declaring the registered Sale Deed No.5890 dated 10.11.2010 and Sale
Deed No.1421 dated 03.03.2011 as null and void even in absence of
any prayer in the suit to challenge previous registered Sale Deed
No.5890 dated 10.11.2010 with respect to the suit property. Point of
determination no. (xi) is accordingly decided against the appellants
(defendants) and in favour of the respondents (plaintiffs).
Point of determination no. (iv)
117. So far as point of determination no. (iv) is concerned, this Court
finds that it is an admitted position that names of Jogeshwar Ram and
Algu Ram were jointly recorded in Revisional Survey Khatian of 1964.
The plaintiffs claim that Algu Ram during his lifetime executed a
'Panchnama' and transferred his share of land to Jogeshwar Ram by
virtue of which Jogeshwar Ram became the exclusive owner of the
entire 5.10 acres. It is also an admitted fact that the suit property was
referrable to the ½ share, that is, 2.55 acres of Algu Ram, out of total
area of 5.10 acres. The defendant nos. 2 and 3, in their written statement,
have taken a specific stand in paragraph 19 that Jogeshwar Ram and
Algu Ram, after acquiring the suit property and their other properties,
were in exclusive separate possession of their lands in equal share as
absolute owners of the same by exercising their right, title and interest
and claiming possession over the said properties till their deaths as
absolute owners. This was in response to paragraph 6 of the plaint
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wherein it was asserted that the Jogeshwar Ram and Algu Ram had
right, title and interest and were in peaceful exclusive cultivating and
living possession whole life over the suit property and other lands, and
they were absolute owners of the above lands.
118. The perusal of the documentary and oral evidences on record
reveal that no evidence was produced on behalf of the defendants to
show that Jogeshwar Ram and Algu Ram had separated themselves at
any point of time and were holding their half share to the exclusion of
other. It has come during the evidence that at no point of time their share
was separately mutated in their respective names. It is the case of the
plaintiffs that after executing the 'Panchnama' dated 24.12.1990, Algu
Ram had left the place and had gone to Bhojpur, Bihar and subsequently
he died and his wife also died issueless. Since the 'Panchnama' dated
24.12.1990, alleged to have been executed by Algu Ram in favour of
Jogeshwar Ram, is an unregistered document, the same is not
admissible in evidence and is hit by the provisions of section 17 of the
Registration Act. 'Panchnama' cannot be treated as document for
transfer of right, title and interest of ½ share of Algu Ram in favour of
Jogeshwar Ram as claimed by the plaintiffs. Further, there is no
material on record to show that Algu Ram and Jogeshwar Ram had
separated themselves half-and-half or separated themselves in any
manner whatsoever.
119. This court holds that Jogeshwar Ram did not acquire any right,
title and interest over the suit land by virtue of 'Panchnama' dated
24.12.1990 executed by Algu Ram in favour of Jogeshwar Ram and
both of them continued to remain in joint possession as absolute owner
holding joint right, title and interest over entire 5.10 acres of land
including the suit land. The point of determination no. (iv) is answered
by holding that the name of plaintiffs' uncle Jogeshwar Ram and name
of Algu Ram were jointly recorded in Revisional Survey Khatian of
1964 over the entire land of 5.10 acres including the suit land and they
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remained whole life having their right, title, interest and possession as
absolute owner of the same.
120. The point of determination no. (iv) is accordingly answered
against the plaintiffs.
Point of determination no. (v)
121. So far as point of determination no. (v) is concerned, the
evidences on record, as discussed, clearly reveal that the entire 5.10
acres of land was the self-acquired property of Jogeshwar Ram and his
Sarhu Algu Ram and the suit property is a part of the said property.
During the course of arguments also there is no dispute on this aspect
of the matter and the position stands admitted by the parties.
The Point of determination no. (v) is accordingly decided.
Point of determination no. (vi) and (vii)
122. While considering the 'Panchnama' dated 24.12.1990, the
learned trial court has held that it was essentially in the nature of Will
and was the last wish of Algu Ram. This Court is of the considered view
that such an approach of the learned trial court to treat the 'Panchnama'
as 'Will' to confer title upon Jogeshwar Ram and then upon the
plaintiffs is ex-facie perverse and not permissible under law and is also
against the provisions of Indian Succession Act. The Will, if any,
remains a chit of paper till it is duly probated as per the provision of law
applicable to the parties.
123. At paragraph 26 of the impugned judgment while dealing with
power of attorney executed by Jogeshwar Ram in favour of the plaintiff
no.1, the document executed by Algu Ram in favour of Jogeshwar Ram
(exhibit-5) has been referred to as power of attorney and this document
has been treated as last Will and this 'Panchnama' has also been treated
as an instrument of giving permissive possession to Jogeshwar Ram and
further, the power of attorney, exhibit- 3 has been similarly treated.
Further, while dealing with issue no. 11, as to whether Jogeshwar Ram
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acquired any right, title and possession over suit land by virtue of
'Panchnama' dated 24.12.1990 (exhibit-5), in paragraph 28, the learned
trial court has held that though exhibit- 5 is not registered, but it shows
the last Wish of Algu Ram in which he expressed specifically that the
land belonging to him will be taken care by late Jogeshwar Ram. It has
been held that since the Jogeshwar Ram and his relatives were
peacefully enjoying the property without any disturbance for almost 12
years, they have perfected their right and title over the property although
it is not a registered document. The learned trial court declared adverse
possession in favour of the plaintiffs and held that they have perfected
their right, title and intertest over the property.
124. Such an approach of the learned trial court is ex-facie perverse.
No such declaration of adverse possession could be made in favour of
the plaintiffs in absence of any pleading regarding adverse possession.
No such issue of adverse possession was framed by the learned trial
court. Further, legal heirs and successors of Algu Ram (original owner
of the property) have not been made party to the proceedings and it is
nobody's case that Algu Ram died without any heir, although
admittedly he died issueless.
125. Further, the learned trial court accepted the Panchnama ( exhibit
- 5) in three different ways- (a) as Will of Algu Ram (b) document of
permissive possession to Jogeshwar Ram and (c) considered for
declaration of adverse possession of Jogeshwar Ram and his relatives.
Such findings are conflicting amongst themselves and are beyond the
pleadings/frame of the suit. This is without any foundational pleading
by the plaintiffs and without making legal heirs of Algu Ram (real
owner) as party to the proceedings. Adverse possession cannot be
declared without foundational pleading and without proof with respect
to each element of adverse possession, that is, possession is actual, open
and notorious, exclusive, continuous and hostile to the true owner's
right, all for specified statutory period of 12 years. The specific case of
the plaintiffs was that Algu Ram transferred his share to Jogeshwar Ram
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vide unregistered 'Panchnama' (exhibit-5) which certainly cannot be
accepted in law for want of registration. It is sufficient to observe that
the plaintiffs have remained in possession as per the materials placed
on record.
126. It is held that Jogeshwar Ram, and then plaintiff no. 1 through
Jogeshwar Ram, did not acquire any right over the property by virtue
of 'Panchnama' dated 24.12.1990 executed by Algu Ram in favour of
Jogeshwar Ram. The Point of determination no. (vi) is accordingly
decided against the plaintiffs.
127. So far as point of determination no. (vii) is concerned, it is in
two parts; firstly, as to whether plaintiffs acquired right, title, interest
and possession over the suit land by inheritance and secondly, whether
they acquired such right by virtue of registered power of attorney dated
08.11.2000 executed by Jogeshwar Ram to the plaintiff no.1 - Krishna
Singh.
128. So far as the claim of title by virtue of registered power of
attorney dated 08.11.2000 is concerned, the law is well-settled that
Special power of attorney/ General Power of attorney/ will transactions
are not transfers or sales and such transactions cannot be treated as
completed conveyances or transfers [(2012) 1 SCC 656 (Suraj Lamp
and Industries Private Limited Vs. State of Haryana and Another)].
Thus, title did not pass to the plaintiffs through the registered power of
attorney dated 08.11.2000. So far as the suit property which relates to
the share of Algu Ram is concerned there is another hurdle, that is, even
the unregistered 'Panchnama' executed by Algu Ram in favour of
Jogeshwar Ram with respect to his share does not confer title as held
above. The fact also remains that immediately after execution of power
of attorney dated 08.11.2000, Jogeshwar Ram expired issueless on
16.11.2000 and his wife pre-deceased him sometimes in the month of
August, 2000. Thus, it is held that the plaintiffs did not acquire any
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right, title and interest over the property by virtue of registered power
of attorney dated 08.11.2000.
129. The plaintiffs claim to be in physical possession of the suit
property with Jogeshwar Ram much prior to execution of registered
power of attorney dated 08.11.2000 and after his death they claim to
be in exclusive possession of the suit property. The plaintiffs have not
sought any relief seeking recovery of possession from the defendants
and as discussed above, the witness of the defendants has admitted
during cross examination that plaintiffs are in possession of the suit
property.
130. So far as the claim of inheritance of the suit property by the
plaintiffs is concerned, this court is of the considered view that the suit
property is the property which was dealt by the defendant no. 3 claiming
himself to be the nephew of Algu Ram and the suit property is not of
the share of Jogeshwar Ram.
131. Admittedly, plaintiffs are descendants of Jogeshwar Ram but are
not related to Algu Ram in any manner, except that Jogeshwar Ram and
Algu Ram jointly acquired the entire area of 5.10 acres. Jogeshwar Ram
and Algu Ram belong to two different families and they are Sarhu
(brothers in law -married to sisters) of each other. The plaintiffs
claimed that Algu Ram transferred his share to Jogeshwar Ram by
unregistered 'Panchnama' and then Jogeshwar Ram became the
exclusive owner of the entire property and through Jogeshwar Ram the
share of Algu Ram also devolved upon the plaintiffs, being descendants
of Jogeshwar Ram. As already held above, the 'Panchnama' cannot be
accepted as document of transfer of title of the share of Algu Ram to
Jogeshwar Ram for want of registration. Therefore, this court is of the
considered view that the plaintiffs cannot claim the share of Algu Ram
through inheritance.
The point of determination no. (vii) is accordingly decided against the
plaintiffs (respondents).
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Point of Determination No.(viii), (ix) and (x)
132. It is the specific case of the plaintiffs that defendant no.3 is not
the nephew of Algu Ram and therefore could not have dealt with the
properties of Algu Ram including the suit property as his legal heir and
successor. On the other hand, the case of the defendants is that the
defendant no.3 is the nephew of Algu Ram and being the heir of Algu
Ram, defendant no.3 has rightly executed all the documents in question
including the sale deed through his attorney (defendant no.4).
133. In paragraph 3 of the plaint, it has been stated that the suit land
along with other lands stands recorded jointly in the name of Jogeshwar
Ram and Algu Ram in Survey Khatiyan 1964. The above lands are their
self-acquired property. In response to paragraph 3 of the plaint the
defendant no. 2 and 3 (defendant no.3 claims to be the nephew of Algu
Ram) in their written statement have stated that the statement contained
in Para-3 of the plaint is true but these Defendants stated that the father's
name of Jogeshwar Ram was erroneously mentioned in suit Khata No.-
9 as Dev Nath Ram. It has been stated that Debnath Ram was the father
of Algu Ram. Jogeshwar Ram @ Singh was the son of Sakhari Singh
who was the original resident of Jagadishpur Nagar Palika, Ward No.-
1, District-Bhojpur.
134. The plaintiffs had clearly pleaded that Rameshwar Singh
(defendant no. 3) was not the nephew of Algu Ram. It was certainly for
the defendants to prove the relationship between Algu Ram and
defendant no.3.
135. So far as D.W. 1 is concerned, he is a formal witness. He has
only exhibited the rent receipts Exhibit A and A/a and stated that he was
working under defendant no. 1 as contractor. D.W. 2 claimed that the
sale-deed no. 1421 dated 03.03.2011 which is impugned in this case
was prepared in his presence and he has also stated that he was working
under Aditya Mahato and the records reveal that Aditya Mahato was
the AGM of defendant no. 1 - company.
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136. So far as genealogy of Algu Ram is concerned, D.W. 3 who is
the own brother of Jogeshwar Ram, is an important witness. He has
clearly stated that Algu Ram and Jogeshwar Ram were Sarhu and this
fact is not disputed. Wife of Algu Ram was Dukhni Devi who was the
only legal heir after death of Algu Ram in the year 1996 and Dukhni
Devi expired in the year 2001. This witness had stated that Algu Ram
had only one brother namely, Radha Krishna and their father was Dev
Nath Singh. He further deposed that the name of father of Jogeshwar
Singh was incorrectly written as Dev Nath Ram in the record of rights
and in fact Dev Nath Ram was the father of Algu Ram and Radha
Krishna. He has stated that Radha Krishna and Algu Ram were two
brothers and both were sons of Dev Nath Singh and Jhagru Singh was
the son of Bhavnath Singh. D.W-3 does not belong to the family of Algu
Ram. The evidence of D.W-3 has to be seen with the evidence of D.W-
4 (defendant no.3) who claims to be the nephew of Algu Ram.
137. D.W. 4 is the most important witness of the case so far as
genealogy of Algu Ram is concerned. He claims to be the descendant
of Algu Ram and is the defendant no. 3 of the case. This witness
admitted that Dukhni Devi was wife of Algu Ram and he claimed that
his father Radha Krishna Singh was the full brother of Algu Ram and
there was no other brother named as Jhagru Singh. He has also admitted
that Jogeshwar Ram and Algu Ram were Sarhus and both died
issueless. He asserted that Radha Krishna Singh and Algu Ram were
full brothers and he (defendant no.3) was the son of Radha Krishna
Singh. During cross-examination, he stated that his father Radha
Krishna had left the house in the year 1987 and he did not know as to
when and where he died. He further admitted in paragraph 23 that
Ramkeshwar Singh was the younger brother of his father and Ram
Janam Singh was the elder brother of his father. If this evidence is taken
into consideration, then as per defendant no.3, Radha Krishna,
Ramkeshwar, Ram Janam and Algu Ram were full brothers. This
witness has also referred to the registered deed no. 7229 dated
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01.09.2021 executed at Bhojpur, in which this defendant had signed as
a witness. He has asserted that the said sale-deed bears the signatures of
Ramkeshwar Singh, Radha Krishna Singh and Ram Janam Singh and
the name of their father is Vriksh Singh. The exhibit - 6 reveals that
defendant no. 3 was a witness in the sale-deed and the same was
executed by Ramkeshwar Singh and Arun Kumar in which the father's
name of Ramkeshwar Singh has been mentioned as Ram Vriksha Singh.
138. Further, during cross-examination, D.W. 4 has stated that when
he had executed the power of attorney in favour of defendant no.4
[which became the basis of all the transactions of the defendants with
respect to the suit property], the defendant no. 4 had not demanded any
proof regarding the genealogy of Algu Ram showing him as nephew of
Algu Ram and that he has no proof to show that Late Radha Krishna
Singh was the brother of Algu Ram. He has further stated that the
defendant no. 4 and Lala Vivek Prasad had told him that there was no
need for family list of Algu Ram for executing the power of attorney.
139. D.W.6 is the AGM of defendant no. 1 and also a stranger to the
family of Algu Ram. He has admitted in his cross-examination that
Ramkeshwar Singh was the Devar (brother-in-law- husband's brother)
of Dukhni Devi [wife of Algu Ram]. Meaning thereby, Ramkeshwar
Singh was the brother of Algu Ram. As discussed above, the exhibit -
6 also reveals that one sale deed, which is not the subject matter of the
present suit, was executed by Ramkeshwar Singh in which the father's
name of Ramkeshwar Singh has been mentioned as Ram Vriksha Singh
in which defendant no. 3 (who claims to be the nephew of Algu Ram)
is a witness.
140. D.W. 3 who is the brother of Jogeshwar Ram has stated that
Radha Krishna Singh and Algu Ram were full brothers and both were
sons of Dev Nath Singh and Jhagru Singh was the son of Bhavnath
Singh.
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141. The evidence of D.W. 3 (brother of Jogeshwar Ram) when read
with the Exhibit -6 in which D.W. 4 (defendant no.3) was a witness,
reveals that the sale deed was, inter alia, executed by Ramkeshwar
Singh showing his father's name as Ram Vriksh Singh.
In the oral evidence of D.W. 3, at para 6 it has been asserted that Radha
Krishna Singh and Algu Ram were full brothers. It has come in the
evidence of defendant no. 3 (D.W. 4), para 21 and 23 of cross
examination, that Radha Krishna Singh was his father and Radha
Krishna Singh, Ramkeshwar Singh and Ram Janam Singh were full
brothers. His specific claim in the written statement is that Radha
Krishna Singh was the full brother of Algu Ram. In exhibit 6 (sale
deed ) Ramkeshwar Singh declared his father's name as Ram Vriksha
Singh in which defendant no.3 (D.W-4) is a witness. Thus, from the
side of the defendants it has come that Radha Krishna Singh,
Ramkeshwar Singh, Ram Janam Singh and Algu Ram were full
brothers whose father's name was Ram Vriksha Singh.
It is nobody's case as per plaint and the written statement that Ram
Vriksha Singh was the father of Algu Ram and the specific case of
defendants is Dev Nath Ram was the father of Algu Ram and it was
wrongly recorded in the record of rights that Dev Nath Ram was the
father of Jogeshwar Ram.
The defendant no. 2 and 3 pleaded in paragraph 16 of the written
statement that the father of Algu Ram was Devnath Ram. However, as
discussed above, the evidence of defendant no.3 (paragraph 21 and 23
of cross-examination) when read with exhibit- 6 reveals that the grand-
father of defendant no. 3 would be Ram Vriksha Singh as he claimed
that Radha Krishna Singh, Ramkeshwar Singh, Ram Janam Singh and
Algu Ram were full brothers.
Therefore, the evidence is contrary to the specific plea in the written
statement. The defendant no. 3 has failed to prove that his father was
the brother of Algu Ram as the name of father of Algu Ram as pleaded
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in the written statement is itself different from the name of father of
Algu Ram as stated in his evidence. Further, in his evidence in chief he
has stated that the name of his father's father and father of Algu Ram
was Dev Nath Singh, but this is contradictory to his statement in his
cross examination at para 23 where he states that his two uncles are
Ramkeshwar Singh and Ram Janam Singh and their father's name was
Vriksha Singh.
142. Once the relationship of the defendant no. 3 with Algu Ram was
denied by the plaintiffs, it was for the defendants, particularly,
defendant no. 3 to prove his relationship with Algu Ram. This Court is
of the considered view that no evidence has been produced by the
defendant no. 3 or the other defendants which could prove that
defendant no.3 was the nephew of Algu Ram or he was in any way
connected/related with Algu Ram. Defendant no. 3 (D.W-4) has
admitted in his evidence in paragraph 47 (cross examination) that he
has no documentary evidence to prove that his father was the brother of
Algu Ram. The learned trial court has rightly held that the Defendant
No.3 (D.W-4) is not the nephew of Algu Ram.
143. Thus, it is held that Defendant no.3 is not the nephew of Algu
Ram. The point of determination no. (viii) is accordingly answered in
favour of the plaintiffs.
144. In view of the findings while deciding point for determination
no. (viii) that Defendant no.3 is not the nephew of Algu Ram, this court
is of the considered view that defendant no. 3 had no right to execute
sale deed no. 5890 dated 10.11.2010 in favour of defendant no. 2
through the power of attorney (defendant no. 4) with respect to the suit
property, that is, the property of Algu Ram. The point of determination
no. (ix) is also decided in favour of the plaintiffs and against the
defendants /appellants. Since the original defendant no. 2 acquired title
through sale deed no. 5890 dated 10.11.2010 and the vendor (defendant
no. 3) had no right to sell the property of Algu Ram, the subsequent sale
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deed no. 1421 dated 03.03.2011 is void -ab- initio /null and void. This
court is of the considered view that the learned trial court has rightly
held that Rameshwar Singh - Defendant No.3, who executed Power of
Attorney concerning disputed land is not nephew of the real owner of
the property and consequently, rightly declared all the transactions (i. e.
sale deeds) based on such Power of attorney as null and void along with
Power of Attorney executed by the Defendant No.3 Rameshwar Singh.
The point of determination no. (x) is also decided in favour of the
plaintiffs and against the defendants /appellants.
145. Having held that Rameshwar Singh [Defendant No.3- who
executed Power of Attorney dated 21.10.2010 (exhibit-C) , inter alia,
concerning suit land] is not nephew of the real owner of the property,
namely Algu Ram, all the transactions i.e., sale Sale Deed No.5890
dated 10.11.2010 executed by the Defendant No.3 through power of
attorney defendant no. 3 in favour of the original Defendant No.2 as
well as Sale Deed No.1421 dated 03.03.2011 executed by the original
Defendant No.2 in favour of Defendant No.1 based on such Power of
attorney are null and void along with Power of Attorney dated
21.10.2010 executed by the Defendant No.3.
146. As a cumulative effect of the aforesaid findings, this appeal is
dismissed.
147. Pending interlocutory application, if any, is closed.
148. There shall be no order as to costs.
149. The office is to prepare decree accordingly.
150. Let a copy of this Judgment be communicated to the concerned
court through "Fax/E-mail".
(Anubha Rawat Choudhary, J.)
26th September 2025
Pankaj
