Gujarat High Court
Whether Reporters Of Local Papers May Be ... vs Dayalbhai Somabhai Ravjibhai Thro Pah ... on 2 August, 2011
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL No 277 of 1980
For Approval and Signature:
Hon'ble MR.JUSTICE K.M.MEHTA
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1. Whether Reporters of Local Papers may be allowed : NO to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO of the judgement?
4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
-------------------------------------------------------------- GOVINDBHAI SUKHABHAI R PATEL THRO PAH GOVINDBHAI JOGIBHAI Versus DAYALBHAI SOMABHAI RAVJIBHAI THRO PAH KANTILAL RANCHHODBHAI
-------------------------------------------------------------- Appearance:
1. Second Appeal No. 277 of 1980 MR SK JHAVERI for Petitioner No. 1 MR ARUN H MEHTA for Respondent No. 1 NOTICE UNSERVED for Respondent No. 2
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CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 27/02/2002 CAV JUDGEMENT #. Govindbhai Sukhabhai the appellant original plaintiff has filed this Second Appeal under section 100 of Civil Proc.Code against the judgment and decree dated 15.3.1980 passed by the learned District Judge, Valsad at Navsari in Regular Civil Appeal No.98 of 1977. The learned District Judge by his judgment and decree was pleased to allow the appeal filed by Dayalbhai Somabhai the respondent herein original defendant no.1 quashing and setting aside the judgment and decree passed by the learned Civil Judge (JD) Navsari in Regular Civil Suit No.125 of 1975 filed by the original plaintiff.
#. The facts giving rise to this appeal are as under:
2.1 There is a property bearing survey no.22/K-A/2 admeasuring 14 gunthas having four blocks bearing Panchayat No.66 situated at Navsari, district Valsad (hereinafter referred to as the suit property).
Govindbhai Sukhabhai the original plaintiff filed Regular Civil Suit No.125 of 1975 before the learned Civil Judge (JD) at Navsari.
2.2 The pedigree of the parties is as under:
Ravjibhai Hirabhai :
:
:-------------------------------------------:
: :
Sukhabhai Somabhai-wife
: :
:
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: :
: :
(wife) Rajitbhai Dayabhai
Champaben (Deft.No.1)
Champaben(deft.No.2)
Govindbhai(plff)
2.3 In the plaint it was alleged that Sukhabhai Ravjibhai who was the father of the plaintiff had purchased the suit property on 2.4.1942 from Maganlal Gandabhai.He had become the owner of the said property since the date of the purchase and was in possession of the same. It was alleged that his father had constructed 4 galas on the said land and was paying the Panchayat tax for the property purchased from Maganlal. The father of the plaintiff was paying the Panchayat tax bill till he lived and after his death the plaintiff has paid the same. It is alleged by the plaintiff that the said galas were constructed in the year 1952 or so after obtaining the permission from the Panchayat. The galas bearing nos 68 and 69 used to be given on rent by the father of the plaintiff. After his death the plaintiff was collecting the rent from he tenants. The plaintiff was using the gala bearing No.67 and gala no.66 was used by Somabhai with the permission of the plaintiff's father as he was related to him. The son of Somabhai had vacated the said gala and his father was in possession of the same. The defendant no.1 had written a letter in the year 1966 requesting to give on rent the gala no.66 to his daughter who is wife of Ranjitbhai Somabhai-defendant no.2 in this case. He had informed that he would pay the same rent as was paid by other before the defendants came to resided in the suit premises. The plaintiff's father Sukhabhai and father of defendant no.2 was staying in the joint family property. The father of the plaintiff whenever was visiting India from foreign countries stayed with the joint family. The said gala was rent out to mother of defendant no.1 and defendant no.2 at a monthly rent of Rs.15/- as per the English calendar month beginning on the first day of the month and ending on the last day of every month only for the purpose of residence and for not other purpose. Somabhai the father of defendant no.1 and Champaben wife of Rajitbhai died before about 10 years The defendant no.2 and her mother occupied the suit gala as heir of deceased tenant Somabhai. Defendant no.1 who came to India in 1969 resided in the suit house for six months. The mother in law of defendant no.2 died before 8 years. Defendant no.2 was married and she went to reside with her father in law. Defendant no.1 thereafter locked suit gala from 1970 and went abroad. Thereafter he did not come to India and the suit premises has been remained closed since then. The plaintiffs father died intestate leaving the plaintiff as he sole heir surviving after him and so the plaintiff became the owner of all the properties of Sukha Ravji by way of succession as his sole surviving heir. It was contended that the defendants had no right title or interest except that they were tenants of the suit premises and defendant no.1 has vacated the suit premises as a tenant.
2.2 In the plaint it was contended that defendant no.
Dayalbhai Somabhai served a notice dated 17.10.1970 (exh.56) to the plaintiff claiming proprietory rights in the suit property.
2.3 The plaintiff had replied to the said notice on 19.11.1970 (exh.57) and defendant no.1 was called upon to hand over vacant and peaceful possession of the suit gala. The defendants did not hand over possession as demanded in the notice and therefore, filed a suit for possession of the suit property some whereon 10.7.1975.
2.4 Defendant no.1 filed written statement at exh.15.; Defendant no.1 inter alia contended that the suit in the present form is not maintainable and cannot be entertained by the court. The suit is bad for delay and laches. It is also bad for want of necessary parties. It is denied that the plaintiff is the exclusive owner of the property described in par 1 of the plaint. It is also denied that Somabhai had purchased the property in the year 2.4.1942 from Maganbhai Gandabhai and he had become the owner of the suit property on the strength of a will. It is denied that the the plaintiff is in enjoyment and possession of the suit galas. Defendant no.1 did not know whether the plaintiff is paying the Panchayat tax as regards the four galas as was being paid by his deceased father and he has no knowledge and information about the same. He did not know whether the father of the plaintiff has constructed the 4 galas on the land. He also did not know whether any permission was obtained from the Panchayat in the year 1952 for the construction of the said 4 galas. It is stated by the defendant no.1 that there are 4 galas on the property bearing survey no.22 and they have been numbered as 66,67,68 and 69. It is denied that the plaintiff's father and then the plaintiff was letting out the gala nos 68 and 69 to the tenants and that they were collecting the rent from him. It is also denied that Nanubhai Somabhai was staying with the permission of plaintiff's father and that afer vacating the block by him, the father of the defendants had written a letter in 1960 for giving the rent to his mother and defendant no.2. It is also denied that his father had agreed to pay rent as paid by other persons. It is also denied that they were staying in the property belonging to joint Hindu family. His father had never taken the property on rent at any time from the plaintiff. It is denied that his mother and sister had continued to stay in the suit property after the death of Somabhai. It is also denied that he had gone away to foreign countries closing the suit premises. This fact has been put forth with a view to file a false suit against the defendants. It is denied that after the death of his father he has acquired and enjoyed the right of the tenant and that he had given up the said rights in the suit premises. It is also denied that the allegations made on this ground are baseless and false. His father had served the plaintiff with a notice dated 17.10.1970 (exh.56) and the true facts were brought to his notice asserting the title in the suit premises. He has no knowledge whether the plaintiff has replied to the said notice on 19.11.1970. The plaintiff has not demanded the possession from him and he is not entitled to the same. The plaintiff has not produced the document dated 2.4.1942 and therefore, he is not able to state about the contents of the same. The suit property was treated as join Hindu undivided family property and was being enjoyed as co owners and co-parceners of the property in question. There is no partition of the suit property between the parties to the suit. It is stated that the defendant is a co-owner and has got right title and interest in the suit property and he cannot be evicted from the suit property as he was never the tenant of the suit property. In the circumstances the defendant prayed that suit filed by the plaintiff deserves to be dismissed and he may be awarded compensatory costs as false, frivolous and vexatious suit has been filed.
#. Before the Trial Court necessary documentary and oral evidence was produced by the plaintiff claiming the tile of the property. It has been stated by the power of attorney of the plaintiff that the father of the plaintiff had purchased the property on 2.4.1942 from Maganlal Gandabhai of the value of Rs.200/- and there was an oral sale and on the basis of the same entry has been made in the record of rights under the Bombay Land Revenue Code and said entry has been produced at exh.60 and obtained permission from the Collector, Valsad to permit him to built house on the said land, copy of which is produced at exh.59 (Sanad). The plaintiff has relied upon a letter dated 7.10.60 written by defendant no.1 to the plaintiff in this behalf. In this letter he has relied on the entry in the Record of Rights issued by the Talati cum Mantri exh.62 and also payment of tax to the Panchayat regarding the suit property at exh.63 and other necessary evidence in this behalf.
#. On behalf of the plaintiff oral evidence of Govindbhai Jogibhai was recorded at exh.58 and Keshavbhai Panchabhai at exh.65. On behalf of defendant no.1 two witnesses were examined viz. Kantibhai Ranchhodbhai ( at exh.70) and one Parbhubhai Hirabhai ( at exh.77) Otther documentary evidence was also produced on behalf of defendant no.1.
#. On the basis of the same the Trial Court by its judgment and decree dated 9.8.1977 was pleased to hold
(i) that the plaintiff proved that his late father Sukhabhai purchased the land admeasuring 14 gunthas on 2.4.1942 and became the sole owner of the said land; (ii) that out of the four galas , gala no.68 and 69 were let out to the tenant by Sukahbhai and after his death by his son by the plaintiff; (iii) that in gala no.66 Nanubhai resided under leave and licence from the plaintiff as he was related to plaintiff's father; (iv) that in 1960 defendants father wrote letter requesting the plaintiff to let out house bearing panchayat No.. 66 to the defendants on rental basis; (v) that the the plaintiff proved that his father had rented to the defendants the gala no.66 on a monthly rent of Rs.15/and rent was payable on 1st of each calender month; (vi) that the defendant no.2 has married and she was not residing in the suit premises and that the defendant no.1 had gone abroad and the suit premises were kept closed from the year 1970; (vii) that the plaintiff has become the sole owner of the suit galas and other properties of late Sukhabhai as his only heir; (viii) that the defendant no.1 failed to prove that suit property is a joint family property and that his father paid to the plaintiff's father Rs. 4192/- on 12/6.1960 towards the costs of construction of the suit galas; (ix) that the defendant failed o prove that he is coparcener and co owner of the suit gala as contended in written statement; (x) that the suit in the present form is tenable at law; (xi) that the suit is not bad for non joinder and misjoinder of necessary parties and (xii) that the plaintiff is entitled to possession of the suit premises from the defendant.
#. Being aggrieved by the aforesaid judgment and decree of the learned Civil Judged (JD), Navsari, Dayalbhai Sukhabhai (wrongly written as Dayalbhai Somabhai ) has filed Regular Civil Appeal No. 98 of 1977 before the learned District Judge, Valsad at Navsari.
#. The learned Appellate Judge after considering the evidence on recorded by his judgment and decree dated 15.3.1980 came to he conclusion that the plaintiff has failed to prove that here was relationship of land lord and tenant between the parties. The learned Appellate Judge further held than the plaintiff is enitled to he reliefs as prayed for in he plaint and the learned Appellate Judge has also held that the Trial Court has committed an error in passing the decree of possession in favour of the plaintiff.
#. Being aggrieved by the aforesaid judgment and decree passed by the learned Appellate Judge Govindbhai Sukhabhai the original plaintiff has filed this Second appeal before this court somewhere ion October 1980. After he appeal was filed the learned advocate for the appellant had raised four substantial question of law to be determined by this court. However, it appears that when the mater was admitted by this court (Coram:
A.M.Ahmedi-J as he was then) on 9.10.1980 the learned Judge framed the following question of law in this Second Appeal for determination of this Court.
"1. Whether on the basis of the evidence on record the courts below ought to have concluded that the plaintiff-appellant is the absolute owner of the suit property and since the first respondent had set up a title claiming on undivided share in the property and thereby disputing the title of the plaintiff-appellant the latter was entitled to possession of the property in question ? "
#. Mr. S.K. Zaveri learned advocate for the appellant has submitted that in this case the plaintiff has failed a suit for possession based on title. He submitted that it is no doubt true that the father of the plaintiff Sukhabhai had purchased the suit property by oral sale deed dt. 2.4.1942 from Maganbhai. However, he contended that on the basis of he said oral sale an entry has been registered in the record of rights which has been produced by the plaintiff at exh.60. He submitted that on the basis of the said record of rights, a Sanad has been produced by the plaintiff at exh.59 in which he has been stated that the suit property was entered in the name of he father of the plaintiff. He further submitted that the defendant no.1 had written a letter for permissive user on 7.10.1962 to he plaintiff's father Sukhabhai. That shows the plaintiff was in possession of the suit property and defendant wanted to permissive user of the suit property which is a house. He has also relied upon the record of the Panchayat as regards payment of tax at exh.62 and at exh.63. He has fairly conceded that it is no doubt true that the original sale deed dated 2.4.1942 is an oral sale and there is no documentary evidence to show that said sale deed has been executed and registered with any authority and therefore, said oral sale may not confer any tile on the plaintiff's father. However the subsequent documents show that the plaintiff had a tittle possession of the property in question.. He has also referred to exh.75 which was the record of rights which refers to the suit property. ##. He has also relied upon the judgment of the Apex Court reported in AIR 1972 SC 608 in the case of P.C.Purushotthama Reddiar vs. S. Perumal. He has relied upon para 18 of this judgment which reads as under:
"Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi learned counsel for the respondent. He contended that the Police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility- see Bhagat Ram vs. Khetu Ram AIR 1929 PC 110 "
10.1 He has also relied upon the judgment of this court reported in 15 GLR 675 in the case of Nanavati Jayantilal Chunilal vs. Shah Ashabhai Mahijibhai P.A.H for Shah R.A.. In this case in para 7 it has been observed as under:
".....I am unable to agree with the submissions made by Mr. Majmudar for the simple reason that if the tenant renounces the title of his landlord there would not remain any relationship of the landlord and tenant between them and in that case the court under the Rent Control Act would have no jurisdiction to deal with the matter. In such an eventuality the landlord would be required to go to an ordinary civil court to file the suit against the tenant on the strength of his title. He cannot ask the court under the Rent Control Act to give a relief for possession on the ground of disclaimer of title. The very fact that as long as the tenant i performed other conditions of tenancy, he would be entitled to protection of the Act goes to indicate that there must exist a tenancy between the parties before the court under the Rent Control Act could have jurisdiction over them. The moment a tenant disclaims the title of the landlord and sets up a title in a third person or himself there would not be a relationship of landlord and tenant between them and in my opinion the court under the Rent Control Act in that case would have no jurisdiction to decide such a case."
10.2 The learned counsel for the plaintiff submitted that the plaintiff is the owner of the properties in view of the entries in the record of rights.
10.3 The learned counsel for the plaintiff further submitted that in any view of the matter the plaintiff has been the owner of the property in view of the adverse possession.
##. The learned counsel for the respondents stated that in this Second Appeal is not maintainable at law particularly under section 100 as amended by Act of 104 of 1976. He submitted that this case does not involve any substantial question of law and therefore, this court may dismiss the second appeal in this behalf. In support of the learned advocate for the respondent has relied upon the judgment of the Honourable Apex Court reported in 1999(3) SCC 722 in the case of Kondiba Dagadu Kadam vs.Savitribai Sopan Gujar & ors. He has also relied upon the judgment of the Honourable Supreme Court reported in AIR 2001 SC 2920 in the case of Veerayee Ammal vs. Seeni Ammal and in para 10 of this judgment the Honourable Supreme Court has observed as under:
"10. Then question of law formulated as substantial question of law in the instant case cannot, in any way, be terms to be a question of law much less as substantial question of law. The question formulated in fact is a question of fact. Merely because of appreciation of evidence another view is also possible would not clothe the High Court to assume the jurisdiction by terming the question as substantial question of law. In this case issue no.1 as framed by the trial court, was, admittedly an issue of fact which was concurrently held in favour of the appellant-plaintiff and did not justify the High Court to disturb the same by substituting its own finding for the findings of the Courts below, arrived at on appreciation of evidence."
##. Learned advocate for the respondent has further submitted that in this case the entire case of the plaintiff is that he has obtained the suit property by a sale in the year 1942 from Manganlal. He submitted that this was an oral sale and no written documents have been produced . No document is registered in support of the same has been produced. The oral sale cannot confer any title on the plaintiff. For this purpose he has relied upon the the definition of sale contained under section 54 of the Transfer of Property Act, which reads as under:
"54. Sale defined.- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part promised.
Sale how made.- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards or in the case of reversion or other tangible thing can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees such transfer may be made either by a registered instrument or by delivery of the property Delivery of tangible immovable property takes place when the seller places the buyer or such person as he directs, in possession of the property.
Contract for sale.- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not of itself create any interest in or charge on such property."
##. He has also relied upon section 17 of the Registration Act in this behalf which reads as under:
"17 Documents of which registration is compulsory) . The following documents shall be registered if the property to which they relate is situate in a district in which and if they have been executed on or after the date on which Act No. XVI of 1884 or the Indian Registration Act 1866 or the Indian Registration Act 1871 or the Indian Registration Act 1877 or this Act came or comes into force, namely.
(b) other non testamentary instruments which purport or operate 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 one hundred rupees and upwards, to or in immovable property.
(c) non-testamentary instruments which acknowledges the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and 13.1 The learned counsel submitted that under T .P.Act sale is defined. A sale there must be absolute transfer of rights of the property to the purchaser by the seller.
He submitted that when the value of the property is more than Rs.100/which is an immoveable property there is only one document of transfer of sale which is known as registered instruments. Under proviso to section 17 of the Registration Act a sale of immovable or tangible property can only be made by a registered instrument. Ordinarily a sale deed is registered in the mater of conveyance. As in the present case, the plaintiffs have not produced registered sale deed no title to the property conferred on the plaintiffs.
##. In support of that he has relied upon a decision of the Honourable Supreme Court reported in AIR 1956 SC 17 in the case of Ananda Behera & anor. vs. State of Orissa & anor. The Honourable Supreme Court in para 11 has observed as under:
11. Now a "sale" is defined as a transfer of ownership in exchange for a price paid or promised. As a 'profit a prendre' is immoveable property and as in this case it was purchased for a price that was paid it requires writing and registration because of S.54 T.P.Act."
14.1 He has also relied upon a decision of the Honourable Supreme Court reported in 1959 SC 254 in the case of Commissioner of Income-tax vs. Bhurangya Coal Co. and in para 3 of the judgment the Honourable Supreme Court has observed as under:
"3. Now the point that arises for determination in these proceedings is as to the extent to which the profits of the transaction entered into on 16.3.1946 are assessable to Income-tax under the above section. So far as the immovables are concerned the position is clear. The title to them passed to the transferee only when the sale deed was executed on 17.5.1946 and not when the agreement was concluded on 16.3.1946."
14.2 He has also relied upon the judgment of the Honourable Supreme Court in the case of Alapati Venkataramiah vs. Commissioner of Income-tax reported in AIR 1966 SC 115. In paras 14 and 15 of the judgment the Honourable Supreme Court has observed as under:
"14. Even if the agreement was accepted by the company in 1949 the question still remains whether any sale or transfer of assets took place before April 1948. Sale or transfer of an asset could take place as it did in respect of the site even before the agreement was accepted The assets comprised of two items of immovable property viz. plant and machinery valued at Rs. 15,989 and site and buildings valued at Rs. 1,26,470. It is clear that title to these assets could not pass to the company till the conveyance was executed and registered.(See Commissioner of Income-tax vs. Bhurangya Coal Co. 1958-34 ITR 802(AIR 1959 SC 254) No such conveyance was executed before April 1,1948. It is only on November 22,1948 that a sale deed was executed and registered in respect of the site. Therefore, it is clear that the title to these assets did not pass to the company till after April 1,1948 and consequently no sale took place of these assets before April 1,1948.
15. .......It is true that the word 'transfer' is used in addition to the word 'sale' but even so, in the context transfer must mean effective conveyance of the capital asset to the transferee. Delivery of possession of immovable property cannot by itself be treated as equivalent to conveyance of the immovable property."
##. The learned counsel submitted that the plaintiffs have contended that a title can be established on presumptive entry in the record of rights. Against that the learned advocate for the respondent submitted that entries in the Records of Rights under section 135-J of Bombay Land Revenue Code can be raised but the same presumption is rebuttable.
15.1 He has also relied upon the decision of the Honourable Supreme Court reported in AIR 1998 SC 308 in the case of Vishal Singh & anor vs. State of Madhya Pradesh and para 4 of this judgment shows the effect of a non registered document in this behalf. Para 4 of this judgment the Honourable Supreme Court has observed as under:
"4. We are unable to accept any of the aforesaid contentions. No doubt the entry in revenue record was made in favour of the appellants and their men but such an entry could only give rise to a rebuttable presumption. Admittedly the proceedings were pending and the parties were challenging the correctness of entries in the revenue records. On the basis of the evidence on record, the High Court has come to the conclusion that the appellants and their men could not be said to have been in possession. The High Court has observed that the statutory presumption under section 117 of Madhya Pradesh Land Revenue Code 1959 was rebutted by the evidence of PW 23 and others who claimed that the disputed land was in their possession. We do not find any error in the appreciation of the evidence made by the High Court.
##. In view of the same he submitted that once by oral sale the plaintiff's father has not been able to obtain any title then subsequently the document which has been referred to by them viz. entry exh.60 which is a revenue entry for physical purpose cannot confer title on the plaintiff. He submitted that even in the Sanad which has been conferred in favour of the plaintiff there is no inquiry in it. In the absence of any registered sale a Sanad cannot confer tittle on the plaintiff. He has also stated that the said letter from defendant no.1 cannot lead to such inferences that plaintiff is the owner of the property in question. Even the the Panchayat tax bills exhs.62 and 63 cannot lead to a conclusion that the plaintiff is the owner of the suit property.
##. He further submitted that entry in the record of rights cannot create title. In support of his submission he has relied upon the decision of the Honourable Supreme Court reported in AIR 1997 SC 2181 in the case of State of Himachal Pradesh vs. Keshav Ram & ors. and in para 4 of this judgment the Honourable Supreme Court has observed as under:
"4. In view of the rival contentions, the question that arises for consideration is whether the plaintiffs have been able to establish their title and the Courts below were justified in declaring plaintiffs title. As has been stated earlier the only piece of evidence on which the Courts below relied upon to decree the plaintiffs' suit is the alleged order made by the Assistant Settlement Officer directing correction of the record of right. The order in question so not there on record but the plaintiffs relied upon the register where the correct appears to have been given effect to . The question therefore arises as to whether the entry in the settlement papers recording somebody's name could create or extinguish title in favour of the person concerned..It is to be seen that the disputed land originally stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land an the record of right prepared in the year 1949-50. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the plaintiffs, it is not possible to visualize on what basis the aforesaid direction had been made. But at any rate such an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. In our considered opinion the Courts below committed serious error of law in declaring plaintiffs title on the basis of aforesaid order of correction and the consequential entry in the Revenue papers. In the circumstances the appeal is allowed and the judgment and decree passed in all the three forums are set aside. The plaintiffs'' suit dismissed. There will be no order as to costs"
Adverse possession ##. Learned counsel for the appellant during the course of the argument submitted that the appellant has been able to obtain the title on the plea of adverse possession. Against this submission the learned advocate for the respondent submitted that as regards adverse possession there is no pleading in the plaint. There is no issue of adverse possession. No evidence has been led by the plaintiff claiming adverse possession. Plea of adverse possession has not been raised either before the Trial Court or before the Appellate Court or in the memo of Second Appeal. In view of the same he submitted that this court cannot entertain the said contention of adverse possession. He further submitted that there are several decisions which show how the plea of adverse possession can be pleaded and proved. In support of the same he has relied upon the judgment of the Honourable Supreme Court reported in AIR 2000 SC 1485 in the case of Roop Singh (Dead) through L.Rs. vs. Ram Singh (Dead) through L.Rs. The Honourable Supreme Court in para 7 of its judgment has obseerved as under:
"7. It is to be reiterated that under Section 100 of the CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC. That apart at the time of disposing of the matter the High Court did not even notice the question of law formulated by it at the time of admission of the second appeal as there is no reference of it in the impugned judgment. Further fact finding courts after appreciating the evidence held that defendants entered into the possession of the premises as a batai that is to say, as a tenant and his possession was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded by two Courts below were based on proper appreciation of evidence and material on record and there was no perversity illegality or irregularity in those findings. If the defendant got the possession of suit land as a lessee or under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing evidence too show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession (Re. Thakur Kishan Singh (Dead)) vs. Arvind Kumar (1994) 6 SCC 591: (1994 AIR SCW 4082: AIR 1995 SC 73). Hence the High Court ought not to have interfered with the findings of fact recorded by both the Courts below."
##. He has also relied upon the judgment of the Honourable Supreme Court reported in AIR 1997 SC 2930 in the case of D.N.Venkaatarayappa & anor. vs. State of Karnataka & ors.
##. He has also relied upon the decision of the Honourable Supreme Court reported in AIR 1998 SC 1132 in the case of Tirumala Tirupati Devasthanams vs K.M.Krishnaiah ##. He has also relied upon the decision of the Honourable Supreme Court reported in AIR 2000 SC 153 in the case of T.H.Musthaffa vs. M.P.Varghese & ors. 21.1 Learned advocate for the appellant has relied upon a judgment of the Honourable Supreme Court reported in AIR 1977 SC as regards the plea of adverse possession but in that case the question of adverse possession directly arose for consideration before the Supreme Court. He has further submitted that the learned advocate for the appellant has also stated that the plaintiff has obtained the possession or tittle in view of letter dt.17.10.1960 (exh.61). He has also relied upon the said letter on the ground that here the defendant has admitted that plaintiff is the owner and he wants the said suit premises on leave and licence basis. He submitted that contents of the said letter cannot be relied upon because simple letter cannot confer any title because there is not other proof of rent paid or any other evidence for creating tenancy. In support of this he has relied upon the decision of the Honourable Supreme Court reported in AIR 1972 SC 608. He further submitted that admission is binding on parties who make it. He submitted that the admission binds only to the person who makes it and not to others. In support of this contention he has relied upon the decision of the Honourable Supreme Court in reported in AIR 1992 123 in the case of Sri Chand Gupta vs. Gulzar Singh & anor.
##. He further submitted that when the plaintiff claims tile, he must prove the title. He burden of proof in this regard is on the plaintiff which he has failed to discharge. In support of this submission he has relied upon the judgments of the Honourable Supreme Court reported in AIR 1999 SC 2872 in the case Shakir Hussain vs. Nagar Palika, Mandsaur. In para 2 the Honourable Supreme Court has held as under:
" Mr. Bagga the learned Senior Counsel appearing for the appellant has submitted that the names of owners of boundary lands mentioned in the deed of gift and such names in the sale deed differed because of long lapse of time. The present neighbours were examined by the plaintiff for the purpose of establishing that the plaintiff had owned and possessed the suit property. He has also submitted that the Municipality was in possession of the records showing the lands owned and possessed by the Municipality and also the records showing the Municipal rates and taxes paid by different owners. In the aforesaid circumstances it was the duty of the Municipality to produce such records and the Municipality not having done so an adverse inference should have been drawn against the Municipality. In support of such contention Mr. Bagga has referred to the decision of this Court in Gopal Krishnaji Ketkar vs. Mohd. Haji Latif reported in (1968) 3 SCR 862: (AIR 1968 SC 1413) It has been held in the said decision that even if the burden of proof does not lie on a party the court may draw an adverse inference if such party withholds important documents in his possession which can throw light on the facts in issue. It has also been indicated in the said decision that it is not a sound practice for those desiring to rely upon a certain state of affairs to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In our view the said decision does not help the plaintiff appellant in the facts and circumstances of the case. Even if adverse inference is drawn against the Municipality for not producing the documents in its possession the plaintiff cannot succeed unless the plaintiff establishes the plaintiff's title to the suit property and also possession in respect of the same. In the instant case it has been held by the lower Appellate Court that neither the possession of the suit property either by the predecessor in interest of the plaintiff or by the plaintiff nor the title to the same had been established by leading any cogent evidence. The boundaries mentioned in the document of sale and in the document of gift are different. It has not been established by any reliable evidence that the very same property was conveyed to the predecessor in interest of the plaintiff and the plaintiff got the same by virtue of the sale deed. The existence of latrine was also not mentioned in the sale deed. In the aforesaid circumstances, the finding of the lower Appellate Court cannot be held to be perverse for which interference by the High Court in a second appeal was warranted. We therefore, do not find any reason to interfere in this appeal and the same is dismissed without any order as to costs."
22.A. He further submitted that merely because there is failure to prove that the suit property is HUF property, it cannot automatically prove that the plaintiff has title. He further submitted that if the property is the joint property of HUF, it is a finding of fact. He further submitted that the defendant made payment of Rs.4193/- only for the use of the house. The plaintiff has not produced any evidence of expenditure of Sukhabhai. He submitted that the house in Vaniavad admittedly belongs to HUF. The plaintiff has not recovered any any rent since 1960 and there is no adjustment for Rs. 4193/-. In support of the aforesaid submissions he has relied upon the judgment of the Honourable Supreme Court reported in AIR 1969 SC 1076 AIR 1954 SC 379 in the case of Srinivas Krishnarao Kango vs. Narayan Devji Kango and AIR 1959 SC 906 in the case of Mallapa Girinallappa Betagiri & ors vs. R. Yellappa Gauda Patil & ors. He has also relied upon the Book of Mulla on Hindu Law (17th Edition) page 346 ##. The learned counsel further submitted that title of the property obtained by alleged admission has been referred to in letter exh.61. He further submitted that admission is not a conclusive. No proof of rent paid has been produced. Handwriting of Somabhai is not proved. In support of the same he has relied upon the judgment of Honourable Suprme Court reported in AIR 1972 SC 608 in the case of P.C.Purushotthama Reddiar (supra) He submitted that admission binds only to its maker and not to a third party.But it is not binding to the defendant. In support of his above submission he has relied upon the judgment of the Honourable Supreme Court in the case of Sri Chand Gupta vs. Gulzar Singh reported in AIR 1992 SC
123. In para 2 of this judgment the Honoourable Supreme Court has observed asi aunder:
"...Under these circumstances, as rightly found by the High Court that the admission made by Avtar Singh in the affidavit is inadmissible and does not bind Gulzar Singh. Once that admission is excluded from consideration, there is no other evidence worth accepting to conclude that Avtar Singh was in exclusive possession as a tenant. The High Court rightly held that the finding of subletting or parting with possession of the premises in dispute was vitiated in law as it was open to the High Court to re examine and reappreciate the evidence on record. On reappraisal it disbelieved the oral evidence. We do not find any error in such reappraisal. It is then sought to be contended that Gulzar Singh had other business and it implies that he is not in exclusive possession of the demised premises. We find no force in the contention. It may be that Gulzar Singh had other business but that does not lead to the conclusion that Gulzar Singh is not in exclusive possession of the demised premises as tenant or that he sublet the premisses to Avtar Singh"
My conclusion ##. I have considered the contentions raised by the learned advocate for the plaintiff in this behalf and the authorities cited by him. I have also considered the contentions raised by the learned advocate for the defendant and the authorities cited by him. In my view the plaintiff has failed to prove his case. The basis of his case is of oral sale of 1942. If the value of immovable property is more than Rs.100/-, in view of section 54 of the Transfer of Property Act and section 17 of the Registration Act, no oral sale is permissible and an oral sale cannot confer any title on plaintiff. I have also considered the judgments cited by the learned advocate for the respondent in this behalf and the judgments cited by the learned counsel for the respondents clearly supports the case of the respondent in this behalf. Here the property is immovable property valued at Rs.200/- and therefore, the provisions of section 54 of the Transfer of Property Act and section 17 of the Registration Act clearly attracted in this case.
##. In this case the plaintiff has tried to establish the right, title and interest in the property on the basis of record of right receipts. In my view, the entry in the record of rights under section 135 (J) of the Bombay Lane Revenue Code has a presumptive value and the same presumption can be rebuttable in this behalf. In my view, by relying upon the judgment of the Honourable Supreme Court reported in AIR 1998 SC 308 (supra) has clearly established that the said presumption is rebuttable. In my view, merely an entry in the record of right cannot confer title and for that purpose also learned advocate for the respondent has relied upon two judgments of the Honourable Supreme Court viz. AIR 1997 SC 2181 (supra) and AIR 1989 SC 1269 (supra) . Thus the contention raised by the learned advocate for the respondent is well founded.
##. As regards the contention of the plaintiff that he has obtained title by adverse possession, it may be noted that as regards adverse possession, there is no pleading in the plaint. No issues has been raised to this effect either by the Trial Court or by the Appellate Court. No evidence either oral or documentary has been produced before the Trial Court in this behalf. There is no finding either of the Trial Court or the Appellate Court in this behalf. Moreover, even in the memo of Second Appeal this point has not been raised and even the substantial question of law which has been raised does not have a whisper about adverse possession. Adverse possession has to be proved as per the procedure laid down under the Transfer of Property Act . I have considered the decisions cited by the learned advocate for the respondent as to how adverse possession has to be pleaded and proved. In my view looking to the facts and circumstances of the case and the authorities cited by the learned advocate for the respondent, in my view, the plaintiff has failed to prove his right,title or interest in the property by adverse possession. The plaintiff has also submitted that he has obtained the title by alleged admission in the letter exh.61 Except exh.61 nothing has been produced. The letter exh.61 is an inland letter from Somabhai Roy to Sudhakarbhai Raiji. The alleged admission contained in the letter cannot bind the defendant. There is no proof of rent paid which is produced in this behalf and admissions binds only to its maker and not to other parties.
26.1 In view of the judgments of the Honourable Supreme Court in the case of Roopsingh (supra) and D.N. Venkatarayappa(supra), the plaintiff is not entitled to raise the said plea of adverse possession in this behalf. In my view, the plaintiff cannot claim to have perfected title by adverse possession in view of the fact that there is no pleading or evidence or finding of the Trial Court or Appellate Court in this behalf.
##. In this case the plaintiff has contended that he has title to the property. In my view the burden is on the plaintiff to prove and the plaintiff has failed to discharge the said burden successfully and therefore, the plaintiff is not entitled to any right, title or interest in the property in question. The plaintiff has also contended that joint propriety is an HUF property and therefore, in any case the plaintiff is entitled to the same. In my view joint property is an HUF property is a finding of fact. However, the payment of Rs. 4,193/is only for the use of the house. But no evidence of expenditure has been produced by Sukhabhai. The house in Vaniavad is admittedly HUF. No recovery of rent has been made since 1960 and/or there is no adjustment for Rs.4,193/-. In view of the same, merely because the property is HUF, the plaintiff cannot get title to the property in this behalf.
##. In my view the plaintiff also cannot obtain title by alleged admission by letter exh 61. The admission is also not clearly proved in this behalf and the admission made in the letter binds only to the person who has signed the same and it does not apply to the defendant in this behalf.
##. In my view this Second Appeal raises only question of fact and it does not raise any substantial question of law and therefore also in any view of the matter the Second Appeal is required to be dismissed and the Second Appeal is dismissed accordingly. No order as to costs.
(K.M.Mehta-J) govindan