Patna High Court
Nashruddin Mian & Ors vs Inther Khan on 29 November, 2013
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.693 of 2010
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1. Nashruddin Mian.
2. Sobrati Mian.
3. Kalamu Mian.
All are sons of late Malizan Mian and are residents of Village-
Khadauli, P.S. - Chenari, District- Rohtas.
4. Fatma Bibi, wife of Anul Ansari, resident of Village- Shahar Bakasara, P.S.-
Birodihari, District- Rohtas.
5. Barafatma Bibi, wife of Istaik Ansari, resident of Village- Bartali, P.S.-
Chenari, District- Rohtas.
6. Saliman Khatoon, wife of Nazabuddin Ansari.
7. Munna Ansari, son of Nazabuddin Ansari.
8. Adalat Ansari, minor son of Nazabuddin Ansari under the guardianship of his
natural guardian and mother Saliman Khatoon.
9. Tobusum Khatoon.
10. Sima Khatoon.
Both minor daughters of Nazabuddin Ansari under the guardianship
of their natural Guardian and mother Saliman Khatoon.
All Sl. Nos. 6 to 10 are residents of Village- Khadauli, P.S. -
Chenari, District- Rohtas.
11. Saira Khatoon, wife of Basir Ahmad, resident of Hazi Mumtaz Chitanpur,
near Hazi Reshami Mau, Azamgarh, District- Azamgarh, Pin-275101.
12. Md. Safi Ansari, son of Esa Ansari, resident of Village- Khadauli, P.S.-
Chenari, District- Rohtas.
13. Batasi, wife of Badruddin Ansari and daughter of Isa Mian, resident of
Village- Nakara, P.S.- Agrer, District- Rohtas.
.... Plaintiffs.....Respondents .... Appellant/s
Versus
Inther Khan, son of said Khan, resident of Village- Khadauli, P.S.- Chenari,
District- Rohtas.
....Defendant.....Appellant .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Triloki Nath Maitin, Sr. Advocate
For the Respondent/s : Mr. Yugal Kishore, Sr. Advocate
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL JUDGMENT
Date: 29-11-2013
Heard Mr.Triloki Nath Maitin, learned senior counsel
appearing on behalf of the appellants and Mr. Yugal Kishore,
learned sernior counsel appearing for the sole respondent.
Patna High Court SA No.693 of 2010 dt.29-11-2013 2
This appeal is directed against the judgment and
decree dated 7.9.2010/18.9.2010 passed by the learned Additional
District Judge, F.T.C. No.1, Rohtas at Sasaram in Title Appeal
No.99 of 2007, whereby the learned appellate court below while
allowing the appeal has set aside the judgment and decree dated
6.9.2007/19.9.2007 passed by the learned Munsif 1st, Rohtas at Sasaram in Title Suit No.126 of 1986.
I shall be going by the status of the parties as occurring before the trial court.
The suit in question i.e. Title Suit No.126 of 1986 was filed by the plaintiffs to set aside the gift deed bearing no.6941 dated 7.6.1986 stated to have been executed by Noor Mohammad alias Noori Miyan in favour of defendant no.1 Inthar Khan who is respondent no.1 herein, inter alia, on grounds of being fraudulent, illegal, inoperative and not binding on them. The plaintiffs also prayed for permanent injunction over the land described in Schedule-I to the plaint in addition to the cost of the suit.
According to the plaintiffs and as per the genealogical table given at the foot of the plaint, one Naitullah Miyan had four sons, namely, Pir Mohamad, Noor Mohammad @ Noori Miyan, Issa Miyan and Walizan Miyan. Noor Mohammad died on 4.6.1986 and was survived by his sons. It is the case of the plaintiffs that they Patna High Court SA No.693 of 2010 dt.29-11-2013 3 have possession over the property left by Noor Mohammad and which is in state of jointness. It is further the case of the plaintiffs that Pir Mohammad and Noori Miyan died issueless in state of jointness. The plaintiffs before the trial court are descendants from Isa Mian and Walizan Mian. It is further the case of the plaintiffs that on 18.9.1986 when they faced some obstruction at the hands of the sole defendant who came on the disputed land along with some unsocial elements and tried to harvest and destroy the crops on the basis of an alleged gift deed dated 7.6.1986 stated to have been executed by Noor Mohammad alias Noori Miyan in his favour that the plaintiffs obtained a certified copy of the said gift deed from the office of the District Registrar on 20.9.1986 and upon gathering knowledge about the same the suit in question was filed. The gift- deed was sought to be questioned by the plaintiffs, inter alia, on the following grounds, namely:
(a) whereas the gift-deed is dated 7.6.1986, Noor Mohammad alias Noori Miyan had already deceased on 4.6.1986; and
(b) since the village was notified under section 4 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as 'the Act') and the consolidation proceedings were going on Patna High Court SA No.693 of 2010 dt.29-11-2013 4 in the area since 1972 and no notification had been published under section 26A of the Act, the gift deed was a void document in view of the stipulations underlying section 5 read with section 32 of the Act.
The sole defendant appeared and contested the claim of the plaintiffs to submit that the donor Noor Mohammad alias Noori Miyan did not expire on 4.6.1986 rather he died on 24.6.1986 and thus the contention of the plaintiffs were not correct. It was further the contentions of the defendant that since at the relevant time there was no consolidation proceeding going on in the area hence the gift-deed was not hit by the provisions of section 5 of the Act.
The plaintiffs in support of their submission that the village was notified under section 4 of the Act and had yet not been de-notified under section 26A of the Act relied upon Exhibits-2 and 2/A which were the information provided by the Consolidation department. In support of their contention that Noor Mohammad alias Noori Miyan had deceased on 4.6.1986, the plaintiffs relied upon the certificate issued by the Registrar of Births and Death and which was led as Exhibit- 4.
On the other hand whereas the defendant relied upon a certificate issued by the Panchayat Sewak in support his contention Patna High Court SA No.693 of 2010 dt.29-11-2013 5 that Noor Mohammad @ Noori Miyan died on 24.6.1986 which was marked as Exhibit-C, although it was the contention of the defendant that no consolidation proceeding was going on in the area at the relevant time, no evidence was led in support thereof.
The trial court on the basis of the pleadings framed nine issues which stand translated in English and finds mention at paragraph 7 of the appellate court judgment and are as follows:
(i) Is the suit as framed legally maintainable?
(ii) Have the plaintiffs got valid cause of action to file the suit?
(iii) Is the suit barred by law of limitation?
(iv) Is the suit hit by the provisions of Specific Relief Act?
(v) Is the suit bad for defect of parties?
(vi) Has the suit been properly valued and proper court
fee has been paid?
(vii) Whether the gift deed dated 7.6.1986 executed by Noori Miyan in favour of Intehar Khan is fraudulent, illegal and inoperative?
(viii) Whether the plaintiffs are entitled to get relief of permanent injunction against the defendant?
(ix) Are the plaintiffs entitled to get any relief or reliefs?
Patna High Court SA No.693 of 2010 dt.29-11-2013 6 Both the plaintiffs and the defendants adduced oral and documentary evidence and the trial court upon consideration of the pleadings of the rival parties and the evidence on record decreed the suit in favour of the plaintiffs vide judgment and decree dated 6.9.2007/19.9.2007. The sole defendant being aggrieved by the judgment and decree passed by the trial court preferred Title Appeal No.99 of 2007 and which has since been allowed by the judgment and decree impugned dated 7.9.2010/18.9.2010 and hence this appeal by the plaintiffs.
I have heard Mr. Triloki Nath Maitin, learned counsel appearing on behalf of the plaintiffs as appellants before this Court and Mr. Yugal Kishore, learned senior counsel appearing on behalf of the sole defendant as respondent before this Court.
This appeal was admitted vide order dated 3.7.2012 on the following substantial questions of law:
(i) Whether the judgment and decree of the lower appellate court is vitiated because of the fact that the lower appellate court while dismissing the plaintiff's suit has wrongly not applied the provision as contained in section 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Patna High Court SA No.693 of 2010 dt.29-11-2013 7 Act, 1956, although at that time there was denotification under section 26A of the said Act.
(ii) Whether the judgment and decree of the lower appellate court is vitiated because of the non-consideration that the donee is totally outsider and of different caste having no concern with the plaintiff's family and without meeting the reasonings of the trial court regarding jointness of both the brothers, particularly when the trial court recorded the finding of possession in favour of the plaintiff which was also affirmed by the lower appellate court.
Mr. Maitin, learned senior counsel appearing on behalf of the plaintiffs has mainly argued on two issues which were the foundation for the suit, namely: that the donor Noor Mohammad @ Noori Miyan died on 4.6.1986 and the gift-deed is dated 7.6.1986 and on grounds of the gift being hit by the provisions of section 5 of the Act, in absence of sanction being obtained by the parties from the Consolidation authorities.
It has been submitted by Mr. Maitin with reference to Patna High Court SA No.693 of 2010 dt.29-11-2013 8 the certification of Registrar, Births and Death led as Exhibit-4 that the said authority being custodian of record relatable to births and deaths, his certification would have primacy over a certification by a Panchayat Sewak. In support of his contention that the gift-deed dated 7.6.1986 was a void document in absence of any proper sanction being taken by the donor and donee to the deed from the consolidation authorities in the light of the provisions of section 5 of the Act, learned counsel has relied upon the Full Bench decision of this Court reported in 2010 (2) PLJR 1066 (Panna Devi Vs. The State of Bihar).
A supplementary affidavit has been filed today on behalf of the sole defendant enclosing a copy of the notification dated 11.10.1983 published in Bihar Gazette (Extraordinary) dated 28.3.1984 to submit that the villages notified under section 4 of the Act were exempted for a period of one year since the date of publication of the notification and which period was extended subsequently and also covered the date of execution of the gift deed. To support the contention, Mr. Kishore has relied upon an information slip issued by the Section Officer of the Directorate of Consolidation, Bihar, Patna placed at Annexure-5 of the supplementary affidavit. It is further submitted that in absence of any evidence to disprove the authenticity of the certification by the Patna High Court SA No.693 of 2010 dt.29-11-2013 9 Panchayat Sewak it cannot be outrightly rejected.
I have heard learned counsel for the parties and have perused the materials on record. Of the nine issues framed by the trial court it is seen that the entire contest revolves around the validity of the gift-deed dated 7.6.1986. Whether on the anvil of the fact that the donor was alive on the said date or in the light of the statutory provisions underlying section 5 of the Act it is ultimately the gift deed, which requires an answer as to its validity.
Having considered the rival contentions, this Court is of the opinion that if the plaintiffs as appellants before this Court are able to substantiate their contentions that the gift-deed dated 7.6.1986 was a void document in absence of sanction under section 5 of the Act and that the village having been notified under section 4 of Act, no notification was yet published under section 26A of the Act, the rest of the issues would become academic and would require adjudication only if this issue fails for the plaintiffs.
It is not in contest that the village Khadauli under the Chenari block in the district of Rohtas was admittedly notified under section 4 of the Act. Thus the moment the notification was issued under section 4 of the Act, no transaction could have been entered into in relation to any of the area falling within the village without obtaining sanction of the authorities in terms of section 5 of Patna High Court SA No.693 of 2010 dt.29-11-2013 10 the Act. The reliance of Mr. Yugal Kishore on the notification dated 11.10.1983 keeping the operation of section 5 in abeyance for a period of one year, certainly does not come to his rescue inasmuch as the notification is dated 11.10.1983 and thus was expired one year thereafter on 10.10.1984 and the gift-deed was executed on 7.6.1986. Mr. Kishore sought to canvass that the operation of the notification was extended subsequently and covered the period of gift-deed does not find any support from any successive notification and even the information slip placed at Annexure-5 merely refers to the notification which is appended at Annexure-4 and is dated 11.10.1983. The information provided by the consolidation authorities does not reflect that the said notification was renewed and was extended for further period covering the gift.
In the circumstances aforementioned the finding of the trial court rendering the gift deed void on grounds that the same was issued without obtaining sanction under section 5 of the Act suffers from no infirmity and requires no interference. The finding of the trial court is supported by the Full Bench judgment of this Court rendered in the case of Panna Devi (Supra). This Court cannot withhold its disapproval on the manner in which the appellate court has dealt with this issue even after noticing the Full Bench judgment and the ratio decided therein. The opinion Patna High Court SA No.693 of 2010 dt.29-11-2013 11 expressed by the appellate court below is in clear teeth of the Full Bench judgment.
Once the gift-deed is rendered a void document in absence of proper sanction under section 5 of the Act, this Court does not deem it necessary to enter into the other issues which form the basis of the appeal.
For the reasons aforementioned the judgment and decree passed by the appellate court below cannot be upheld and is accordingly set aside. The substantial questions of law framed by this Court are answered accordingly.
This appeal is allowed.
Let the lower court records received in connection with Title Appeal No.99 of 2007 and T.S. No.126 of 1986 be transmitted to the court below forthwith.
(Jyoti Saran, J) SKPathak/-