Sarv Narayan Yadav vs Ram Phal Yadav
2021 Latest Caselaw 6180 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                        SECOND APPEAL No.154 of 1985
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1. Sarv Narayan Yadav Son of Late Ayodhi Yadav Resident of Village Fulwan @ Devipur, P.S. Manigachhi, District- Darbhanga.

2. Satya Narayan Yadav Son of Late Ayodhi Yadav Resident of Village -

Fulwan @ Devipur, P.S. Manigachhi, District- Darbhanga.

... ... Appellant/s Versus Ram Phal Yadav Son of Bishun Yadav Resident of Village - Fulwan @ Devipur, P.S. Manigachhi, District- Darbhanga.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Vishwanath Prasad Singh, Sr. Advocate Mr. Ajit Kr.Singh, Advocate Mr. Rajesh Kumar, Advocate For the Respondent/s : Mr. Hamendra Prasad Singh, Sr. Advocate Mr. Md. Sufiyan, Advocate Mr. Thakur Brajesh Singh, Advocate Mr. Farooque Ahmad Khan, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR ORAL JUDGMENT Date : 16-12-2021 Heard Mr. Vishwanath Prasad Singh, learned

Senior Advocate for the appellant/plaintiffs and Mr.

Hemendra Prasad Singh for the respondent first set.

The suit was not contested by defendant second

and third party.

This appeal is directed against the judgment and

decree dated 31.08.1978 and 16.09.1978 respectively

passed by the learned Munsif, Darbhanga in Title Suit No.

21 of 1971, whereby the suit of the appellants/plaintiffs Patna High Court SA No.154 of 1985 dt.16-12-2021

was decreed in part as well as against the judgment and

decree passed by the learned 2 nd Additional Sub-Judge,

Darbhanga in Title Appeal No. 89 of 1978/9 of 1984 dated

12th of January, 1984, whereby the appeal against the

judgment and decree referred to above has been dismissed

and the cross appeal by respondent-defendant-first set has

been allowed.

The short question involved in this case is

whether the appellants/plaintiffs were successful in

establishing that the suit land was purchased by them in

the name of their Benamidar/defendant second party from

defendant third party, viz. Mst. Sarobati Devi and whether

they were in possession of the lands which they had

acquired on the basis of sale deeds of 1940, 1945, 1957

and 1958.

The learned trial court framed the following

issues:

(a) Is the suit maintainable and whether the

plaintiffs got cause of action to sue?

Patna High Court SA No.154 of 1985 dt.16-12-2021

(b) Is the suit barred by law of limitation or the

principles of waiver, estoppel and acquiescence?

(c) Has the suit property been under valued and

the court-fee paid thereon is insufficient?

(d) Whether the suit is bad for non-joinder of

parties?

(e) Whether the defendant second party is the

Benamidar of the plaintiff no. 1?

(f) Whether the plaintiffs have got subsisting

right, title and interest in the suit land on the basis of the

four kebalas dated 28.03.1945, 19.10.1958, 12.11.1957

and 26.12.1940 as well as the sale deed dated 30.04.65?

(g) Whether the suit lands are in possession of

the plaintiffs or the contesting defendants?

(h) Whether the plaintiffs are entitled to any relief

or reliefs?

It has been held that the plaintiff/appellants could

not prove that the defendant second party is a Benamidar

of the appellants/plaintiffs and that the appellants had no Patna High Court SA No.154 of 1985 dt.16-12-2021

subsisting right, title and interest in the suit land on the

basis of four sale deeds dated 28.03.1945, 19.10.1958,

12.11.1957 and 26.12.1940 as also of the sale deed

dated 30.04.1965. The appellants/plaintiffs were but found

to be in possession of 1 katha, 10 decimals and 12

kanmas in plot no. 164 and an area of 11 decimals of plot

no. 528 and 1 kattha, 14 dhurs of plot no. 326. The

possession of the appellants/plaintiffs over these plots

were confirmed.

Hence, the suit which was filed for declaration of

title and confirmation of possession with respect to the suit

land mentioned in Schedule 1 and 2 of the plaint and

permanent injunction restraining the respondent first party

from interfering in their possession and in the alternative,

recovery of possession if the appellants/plaintiffs are

thrown out of possession during the pendency of the suit,

was only decreed in part with issue having been decided in

the manner referred to above.

Patna High Court SA No.154 of 1985 dt.16-12-2021

As against the aforesaid judgment and decree of

the trial court, the appellants and the respondent first

party preferred appeal and cross-appeal respectively.

The Appellate Court vide its judgement and

decree dated 12.01.1985 and 28.01.1985 respectively

agreed with the findings of the trial court over all the

issues except issue no. 7 and held that the trial court had

wrongly decreed the suit in part by holding the possession

of the appellants over certain plots of land.

Hence, this second appeal.

The substantial questions of law framed in this

appeal are as hereunder:

(i)Whether the learned Sub-ordinate Judge and in

rejecting the plaintiffs' claim based on the sale deeds of

1940, 1945, 1957, 1958 and 12.04.1965 on the basis of

Ext. 2(A) especially after rejecting the plaintiffs' case of

Benami purchase under Ext. 2(1), 2(E), 2(H), 2(E) again

and 2(D).

Patna High Court SA No.154 of 1985 dt.16-12-2021

(ii) Whether the lower appellate court erred in law

in not appreciating that the plaintiffs were entitled to a

decree even on the alternative ground of continuous long

possession and in that view, the Pleader Commissioner's

report was a good piece of evidence to have been relied

upon.

(iii) Whether the court below failed to appreciate

that the plaintiffs' case of acquisition of title under Ext. 2A

could not have been rejected as the Benamidar viz. Anant

Yadav did not challenge the same.

(iv) And lastly, whether the findings of fact

recorded by the court below are erroneous in law.

The case of the appellants/plaintiffs is that they

had purchased the land detailed in Schedule 1 and 2 from

one Amirti Devi, who was the widow of Mithu Yadav. It

would be relevant here to state that the

appellants/plaintiffs and the respondent-defendant first

party come from the same stock of family and respondents

no. 1 and 2 are the grand-sons of Late Mithu Yadav, Patna High Court SA No.154 of 1985 dt.16-12-2021

whose widow is said to have executed four sale deeds. The

5th sale deed of 1965 (Ext. 2A) was allegedly executed by

the daughter of aforesaid Amirti Devi viz. Sarobati Devi.

The aforesaid lands were purchased vide four sale

deeds, all executed by Mst. Amriti Devi in favour of Late

Ajodhi Yadav, who was the plaintiff no. 1 in the title suit.

Since the date of the purchase of the respective lands, the

appellants/plaintiffs were coming in continuous possession

over the same.

When the 5th sale deed was about to be executed

on 12.04.1965 (Ext.2A), the appellants came to learn that

the land which was sought to be sold to them had already

been bequeathed by Mst. Amirti to her daughter Mst.

Sarobati (respondent third party) vide a deed of gift dated

03.07.1974. Since Mst. Sarobati (defendant no. 3) was

reluctant to register the sale-deed, it was compulsorily

registered on 07.01.1966 in Registration Case No. 44 of

1965.

Patna High Court SA No.154 of 1985 dt.16-12-2021

Finding that the property in question had cloud

over it, then, to be of the safer side, the

appellants/plaintiffs wanted to purchase all the property

previously purchased by plaintiff no. 1 from Mst. Sarobati

as all the lands in question fell in the gift deed executed by

Amirti Devi in favour of her daughter Mst. Sarobati.

For the aforesaid purpose, a Benamidar viz. Anant

Yadav, who is stated to be the cousin of plaintiff no. 1

(since deceased) was brought forth and the sale deed was

executed in his name.

The appellants/plaintiffs have further contended

that their Benamidar, with an evil motive, executed two

sale deeds dated 24.02.1971 in favour of defendant first

party, notwithstanding the fact that he did not have any

right to transfer the suit land.

The suit was contested only by the

respondent/defendant first set by stating that Amirti Devi

had executed the deed of gift in the name of her daughter

Mst. Sarobati Devi on 03.07.1944, which fact was known Patna High Court SA No.154 of 1985 dt.16-12-2021

to the appellants/plaintiffs all along as they were staying in

the same courtyard.

It was thus contended on their behalf that the

plea of the aforesaid deed of gift not becoming operative

any time was incorrect.

The respondent-defendant first party have also

raised the plea that all the four sale deeds by virtue of

which the appellants/plaintiffs claimed possession of land

described in Schedule 1 and 2 were forged and fabricated

documents. Even the fact of the Benamidar not being in

any manner related to the appellants could not be proved.

The claim of the appellants that they had paid the

consideration money for the sale deed (Ext.2A) was

incorrect. The land in question was purchased from

defendant second party by the defendant first party by

virtue of two sale deeds (Ext. B & B1).

The aforesaid lands were purchased by the

respondent-defendant first party for a consideration of Rs.

4000/-. The hand-notes were paid by the defendant Patna High Court SA No.154 of 1985 dt.16-12-2021

second party which stood in the name of one Nasib Lal

Yadav. The papers regarding the execution of sale deed

always remained with the so-called Benamidar but later,

with the relationship between the defendant first party and

second party deteriorating over some issue, all the

documents were given to the appellants/plaintiffs which

actually goaded them to stake their claim over the land so

purchased by the defendant second party from defendant

third party.

Prior to the sale of such land, defendant no. 3

was in continuous possession of the same and after it sale,

Anant Yadav (defendant second party) came in possession.

The trial court on finding that the

appellants/plaintiffs could not prove the motive for the

Benami purchase found that the claim of the

appellants/plaintiffs that the defendant second party is the

Benamidar, was rejected.

The trial court however found the existing

relationship between the appellants and defendant second Patna High Court SA No.154 of 1985 dt.16-12-2021

party but refused to accept defendant second party as the

Benamidar of the appellants/plaintiffs only on the ground

of their custody of the documents relating to compulsory

registration and of the sale deeds.

With the documentary evidence furnished on

behalf of the contesting parties, the trial court was

positively of the view that defendant second party was not

the Benamidar of the appellants/plaintiffs.

With respect to the hand-note, one of the

documentary evidence brought forth by the

appellants/plaintiffs which stood in the name of Nasib Lal

Yadav, aforesaid Nasib Lal Yadav, who has been examined

as P.W. 23 has stated that defendant third party had

borrowed money from him and had executed one hand-

note in his favour.

The trial court found that if plaintiff no. 1 (late

Ajodhi Yadav) would have had paid money, the name of

Ajodhi Yadav would have been mentioned in the hand-

note.

Patna High Court SA No.154 of 1985 dt.16-12-2021

With respect to the appellants/plaintiffs'

possession over the said plot of land, the trial court was of

the view that some part of the land detailed in Schedule 1

and 2 was in their possession.

This finding of fact was actually arrived at by the

trial court on the basis of Survey Knowing Pleader

Commissioner's report that some part of the land had got

amalgamated with the land of the appellants/plaintiffs.

The trial court accepted such report and therefore

decreed the suit in part by holding that the

appellants/plaintiffs are in possession of 3 kathas, 15

dhurs of land.

The appellate court has agreed with the Trial

court's finding of the defendant second party not being the

Benamidar of the appellants/plaintiffs and that the

appellants/plaintiffs were in possession of the suit land.

The appellate court has relied upon the logic

ascribed by the trial court that there was no reason for the

appellants/plaintiffs to have purchased a land in the name Patna High Court SA No.154 of 1985 dt.16-12-2021

of Benamidar from defendant third party, when they were

in possession of the suit land (Schedule 1 and 2) from

before by virtue of sale deeds executed by the mother of

defendant third party.

If at all the appellants/plaintiffs had managed to

get those lands sold to the Benamidar, it only raised a

presumption that the appellants/plaintiffs were not in

possession of the said land and the defendant third party

was actually in possession of the said land by virtue of the

deed of gift now.

With this background fact, the plea of the

appellants/plaintiffs that the deed of gift was a forged

document cannot succeed as no party can be allowed to

blow hot and cold in the same breath. The plea taken by

the appellants/plaintiffs is contradictory and the acceptance

of one excludes the possibility of the other and vice-versa.

With respect to possession of the

appellants/plaintiffs over the suit land, the appellate court

has partly agreed with the findings of the trial court but Patna High Court SA No.154 of 1985 dt.16-12-2021

has found the findings about the possession of

appellants/plaintiffs over 3 katthas, 15 dhurs of land, to be

erroneous.

The appellants had filed Ext. 2G of the year 1940

to show that they are in possession of 1 kattha, 10 dhurs

of land in plot no. 174. But such assertion could not

succeed as the appellants/plaintiffs never took any steps to

examine the scribe or the attesting witnesses of that sale

deed. No explanation also has been furnished for their

non-examination. It was not even a registered document.

On the contrary, the respondent-defendant first

party have relied upon Ext. B and B1, the sale deeds

executed by defendant second party in their favour. To

prove that, they have examined D.Ws. 2, 13 and 19.

Those witnesses have, in unison, stated that the land in

question was sold for Rs. 4000/- and they have also

proved the receipt of Rs. 4000/- Ext. A(1) to be in the

handwriting of defendant second party. Patna High Court SA No.154 of 1985 dt.16-12-2021

With respect to the part possession of the

appellants/plaintiffs as decreed by the trial court, the

appellate court has held that it was not correct for the trial

court to have relied on the report dated 21.09.1976 of the

Survey Knowing Pleader Commissioner as the

appellants/plaintiffs, in the first instance, had failed to

prove their title with respect to the entire suit land and

that the issue of amalgamation was not an issue in the title

suit.

The appellate court, therefore, was rightly of the

view that such evidence cannot be relied upon or taken

into consideration which is beyond the pleadings. The

cross-appeal therefore was allowed by the appellate court

and the appeal preferred by the appellants herein was

dismissed with cost.

The findings of fact by the appellate court is

based on evidence on record.

The lower appellate court rightly set aside the

part decree by the trial court on the ground of same Patna High Court SA No.154 of 1985 dt.16-12-2021

having been based on evidence which was beyond the

pleadings.

The claim of the appellants which was largely

based on the four sale deeds and the compulsorily

registered sale deed of 12.04.1965 in the name of

defendant second party, could not have been accepted in

view of definite finding of the defendant second party not

being a Benamidar of the appellants/plaintiffs.

Since the appellants were not found to be in

continuous long possession of the suit land, merely

because of a report of the Survey Knowing Pleader

Commissioner that the land stood amalgamated and

therefore, it would be presumed that the

appellants/plaintiffs were in possession of the said land,

was incorrect.

The defendant second party has chosen not to

contest the suit as well as appeal is no ground for allowing

the claim of the appellants/plaintiffs. The contest obviously

is between the appellants/plaintiffs who claim possession of Patna High Court SA No.154 of 1985 dt.16-12-2021

the said land and the respondent-defendant first party who

claim to have purchased the property from defendant third

party and also claim to be in possession thereof.

Merely because there was no contest on the part

of defendant second party, the part findings arrived at by

the trial court and the judgment and decree of the

appellate court cannot be faulted with.

Thus, there is no merit in this second appeal and

the same is therefore dismissed.

(Ashutosh Kumar, J) krishna/-

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Uploading Date          23.12.2021
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