Chattisgarh High Court
Mst. Nirashi Bai vs Ramlal S/O Kajal Ganda And Ors. on 7 October, 2005
Equivalent citations: AIR2006CHH73
JUDGMENT Vijay Kumar Shrivastava, J.
1. This second appeal under Section 100 of the Code of Civil Procedure, is directed against the judgment and decreed dated 22-7-1991 passed by 1st Additional District Judge, Raigarh, in Civil Appeal No. 15-A/90 arising out of the judgment and decree dated 2-1-1990 passed by 3rd Civil Judge, Class II, Raigarh. in civil Suit No. 62-A/87 whereby reversing the judgment and decree passed by the trial Court, decreed the suit in favour of the plaintiffs/respondents Nos. 1 and 2.
2. Plaintiff /respondent Nos. 1 and 2 filed a suit for declaration and possession of the suit land as also sought declaration that the sale deed dated 3-5-1967 executed by deceased Sadvo in favour of defendant No. 1 / appellant, transferring the suit land in her favour is not binding on them, on the averment that the father of the plaintiffs/respondents Nos. 1 and 2 and deceased Sadvo were real brothers having 4.04 acres of agricultural land at village Nawapara. They were in joint family and were cultivating jointly. After the death of Kajal Ganda, father of the plaintiffs/respondents Nos.1 and 2, the property remained joint in the name of plain-tiffs/respondents Nos.1 and 2 and Sadvo. The land was also in their joint possession, but without knowledge of plaintiffs/respondents Nos. 1 and 2, Sadvo sold one acre of land for consideration of Rs. 1400/- to defendant No. 1 /appellant vide a registered sale deed dated 3-5-1967 and thereafter Sadvo died. Defendant No. 1 /appellant filed an application for mutation. The same was objected by plaintiffs/respondents Nos. 1 and 2, but the Tahsildar, Raigarh vide his order dated 30-3-1977 dismissed the objection and mutated the land in favour of defendant No. 1/appellant. By incorporating amendment they further pleaded that on 15-6-1985 they have been disposed from the suit land.
3. Defendant No. 1 appellant denied the plaint allegations and averred that the father of the plaintiffs/respondents Nos. 1 and 2 and his brother Sadvo entered to partition and were separated. They were living separately and also enjoying the lands received by them in their respective shares. Some of the lands received by Kajal Ganda in his share have been sold by the plaintiffs/respondents Nos. 1 and 2 and the plaintiffs/respondents Nos.1 and 2 are in possession of the remaining land. Sadvo obtained the suit land in his share and was in exclusive possession of the same. Sadvo sold the land to her and also delivered possession and since then she is in continuous possession over the suit land. Tahsildar, Raigarh, mutated the land in her name validly and in accordance with law.
4. Both the parties in support of their case adduced evidence. Learned trial Court, after evaluating the evidence, held that the total land as mentioned by the plaintiffs/ respondents Nos. 1 and 2 was the joint family property of Kajal Ganda and Sadvo. Sadvo had fight to sell his share and accordingly he sold one acre of his land to defendant No. 1/appellant and since 1967 defendant No.1 /appellant, after purchasing the suit land, is in continuous possession over the same. The suit is barred by time, therefore, learned trial Court dismissed the suit. The First Appellate Court held that the joint family property was not partitioned, therefore, the suit property was the joint family property. The plaintiffs/respondents Nos.1 and 2 were dispossessed from the suit land within 12 years of the filing of the suit. The First Appellate Court further held that deceased Sadvo without obtaining consent from the plaintiffs/respondents Nos.1 and 2 sold the land, therefore, the sale deed is not operative against the plaintiffs/respondents Nos. 1 and 2 and accordingly allowed the appeal and decreed the suit for declaration and possession in favour of the plaintiffs/respondents Nos. 1 and 2. This second appeal has been admitted on 12-12-1991 for hearing on the following substantial questions of law.
(1) Whether the suit filed by the respondents/plaintiffs/respondents Nos. 1 and 2 is barred by limitation?
and (2) Whether the sale in favour of the appellant was void for reasons stated in the impugned judgment?
5. Initially, plaintiffs/respondents Nos. 1 and 2 filed the suit for declaring the sale deed dated 3-5-1967 not binding on them and void, averring that they are in possession of the suit land and in mutation proceeding their objections have been rejected by the Tahsildar. Subsequently, during pendency of the suit they amended the plaint and pleaded that defendant No. 1/appellant dispossessed them on 15-6-1985 and took possession over the suit land. Therefore, they also prayed for restoration of the possession. Defendant No. 1/appellant in her written statement pleaded that the plaintiffs/respondents Nos. 1 and 2 were never in possession of the suit land and since the date of sale she is in possession of the suit land. Admittedly, the defendant No. 1 /appellant filed an application for consequential amendment denying the factum of dispossession, averring that since the date of purchase she is in continuous possession over the suit land and before that the suit land was in the share and possession of Sadvo. The said application was allowed by the trial Court on 28-10-1988, but the amendment could not be incorporated in written statement. Learned trial Court framed additional Issues. The translated version of additional issue No. 7 is as below:
7. Whether the defendant took possession of the plaintiffs' suit land on 15-6-1985?
6. Both the parties were directed to adduce evidence and accordingly they adduced their evidence. Learned trial Court after minutely evaluating the evidence on record held that the plaintiffs/respondents Nos. 1 and 2 were never in possession over the suit land. Defendant No. 1/appellant neither dispossessed the plaintiff/respondents Nos. 1 and 2 nor took possession on 15-5-1985. Learned trial Court further held that since 1967 the suit land is in possession of the defendant No. 1/appellant. Learned trial Court further held that the suit for declaring the sale deed inoperative, has not been filed within three years and also plaintiffs/ respondents Nos. 1 and 2 were not dispossessed within 12 years of the institution of the suit. Therefore, the suit is time barred.
7. The First Appellate Court was of the opinion that the defendant No. 1 /appellant did not incorporate the consequential amendment in her written statement, therefore, treated the lapse as admission regarding pleading of dispossession made by the plaintiffs/respondents Nos.1 and 2 during pendency of the suit. Further, the First appellate Court, relying on Exs. P/2 and P/ the revenue papers showing the joint possession of plaintiffs/respondents Nos. 1 and 2 and defendant No. 1 /appellant up to year 1975-76 and also on the ground that defendant No. 1/appellant herself did not enter into witness box to support her case, held that defendant No. 1 /appellant dispossessed the plaintiffs/respondents Nos.1 and 2 within 12 years and accordingly held the suit within time.
8. Order VIII, Rule 5 of the Code of Civil Procedure reads as below:
5. Specific denial.- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion, require any fact so admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the, defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the Judgment was pronounced.
9. Plaintiffs/respondents Nos. 1 and 2 in their suit have pleaded that they were in possession and subsequently during pendency of the suit by amendment they pleaded that on 15-6-1985 defendant No. 1/appellant dispossessed them whereas defendant No. 1/appellant in her written statement very specifically pleaded that from the date of purchase of the suit land she was in possession over it and plaintiffs/respondents Nos. 1 and 2 were never in possession of the suit land. Although she failed to incorporate the consequential amendment in written statement, despite that controversy remains and by necessary implication the fact of dispossession was denied by the defendant No. 1 /appellant. Apart from that, the Court did not accept the non-incorporation of consequential amendment, admission, therefore, framed specific issue on that dispute and required both the parties to adduce evidence hence the factum of possession could not have been decided on the basis of non-incorporation of consequential amendment, but was required to be proved by substantial evidence. Accordingly, both the parties adduced their evidence. Plaintiffs/respondents Nos. 1 and 2 were duty bound to prove their possession up to 15-6-1985. It is not disputed that the suit land has been sold to defendant No. 1/appellant by a registered sale deed dated 3-5-1967.
10. Ramlal one of the plaintiffs examined himself as PW/1. In his examination-in-chief, itself he deposed that since the date of mutation defendant No. 1/appellant is in possession over the suit land and according to plaint itself the mutation order was passed on 23-5-1977. Suklal is also one of the plaintiffs/respondents Nos. 1 and 2 who entered into witness box as PW/3. He very specifically in his deposition stated that from the date of purchase defendant No. 1/appellant is in possession of the suit land and is doing agriculture over the land. Therefore, when both the plaintiffs/respondents Nos. 1 and 2 themselves in their evidence did not say that they were in possession of the suit land up to 15-6-1985 or they were dispossessed by defendant No. 1 /appellant then how it can be held that the plaintiffs/ respondents Nos. 1 and 2 were dispossessed on 15-6-1985. Non-examination of defendant No. 1 /appellant in person, in these circumstances, was neither fatal nor any adverse inference, in these circumstances, could be drawn against her. Learned trial Court very correctly held that the plaintiffs/ respondents Nos. 1 and 2 were not dispossessed on 15-6-1985, but the defendant No. 1/appellant from the date of purchase was in continuous possession over the suit land.
11. Articles 64 and 65 of the Limitation Act, 1963 read as below.
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Description of suit Period of Time from which
limitation period begins to
run
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Article 64.- For Twelve years The date of dis- possession of possession, immovable pro- perty based on previous posse- ssion and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65.- For Twelve years When the pos- possession of session of the de- immovable pro- fendant therein perty or any becomes adverse interest therein to the plaintiff. based on title. Explanation- For the purpose of this Article - (a) where the suit is by a remainder- man, a reversioner (other than a land- lord) or a devisee, the possession of the defendant shall be deemed to become adverse, only when estate of the re- mainderman, rever- sioner or devisee, as the case may be, falls into possession. (b) where the suit is by a Hindu or Muslim entitled to the posse- sion of immovable property on the death of a Hindu or Muslim female, the posses- sion of the defendant shall be deemed to become adverse only when the female dies; (c) where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of posses- sion.
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12. In the instant case, apparently the suit does not fall within the ambit of Article 64 of the Act, as plaintiffs/respondents Nos. 1 and 2 failed to prove their dispossession within 12 years from the date of filing of the suit. So far as Article 65 of the Act is concerned, Hon'ble the Apex Court in Pataria and Ors. v. Mst. Chitia and Ors. reported in 1994 (1) VIBHA 224, has observed in Para 11 which reads as below:
11. It is thus, clear that a suit for possession of immovable property or in the interest therein being based on title and not merely possessory title is governed by Article 65 of the new Limitation Act. Once the title of the plaintiff is proved, a suit cannot be defeated unless and until the defendant has pleaded and proved acquisition of title in him by adverse possession. A mere failure on the part of the plaintiff in alleging and proving his possession over the suit property at any time within the period of 12 years calculated back from the date of the suit would be immaterial and irrelevant.
13. In the instant case, defendant No. 1/appellant in her written statement no where pleaded that she acquired right over the suit land by adverse possession. Therefore, the suit for possession of the suit land based on title is not barred by time. Accordingly, question No. 1 is answered.
14. Both the Courts below have held that the suit land is joint family property of Kajal Ganda, the father of respondents Nos. 1 and 2/plaintiffs and deceased Sadvo. Learned trial Court held that if partition has not been proved, then co-sharer or co-owner had right to sell his share and accordingly Sadvo sold his share to defendant No. 1 /appellant who got title over the suit land. Learned First Appellate Court without their being any pleading or proof that the sale in favour of defendant No. 1 /appellant was benami held the sale to be a benami transaction. Also held that in absence of partition in whose share suit land will fall, cannot be determined. Learned First Appellate Court further held the sale in favour of defendant No. 1 /appellant was not in accordance with law and therefore, the sale by deceased Sadvo in favour of defendant No. 1/appellant does not effect the title of the plaintiffs/respondents Nos. 1 and 2.
15. Learned First Appellate Court failed to consider the provisions of the Transfer of Property Act, 1882 which envisage the transfer of title by co-owners. Section 44 of the Transfer of Property Act, 1882 reads as below.
44. Transfer by one co-owner.- Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give effect to the transfer the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
16. From the aforesaid provision, it is apparent that undivided shares can validly be transferred and transferee acquires right of share or interest of the transferor. The sale in favour of defendant No. 1/appellant by deceased Sadvo for consideration and that too by a registered instrument, cannot be declared void for want of partition or for reasons stated in the impugned judgment. Accordingly, question No. 2 is answered.
17. Subject to the findings arrived at by this Court, the judgment and decree passed by the trial Court is restored and that of First Appellate Court is set aside. In the result, the appeal succeeds and is allowed in above terms.
18. Parties to bear their own costs.