Jharkhand High Court
Smt. Shanti Devi vs Sheo Prasad Sahu on 14 September, 2022
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 80 of 2010
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1. Smt. Shanti Devi
2. Vijay nandan Singh @ Vijay Kumar Singh ..... ..... Appellants Versus
1. Sheo Prasad Sahu
2. Surendrea Prasad Sahu
3. Kameshwar Prasad Sahu
4. Ram Bilas Prasad Sahu
5. Sheopati Devi
6. Amit Kumar Singh
7. Mamta Devi
8. Sanjukta Devi .... .... Respondents
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CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellants : Mr. Manjul Prasad, Senior Advocate
Mr. Rishi Pallava, Advocate
For the Respondents : Mr. Vishal Kumar Tiwary, Advocate
Mr. S.M. Mudassar Nazar, Advocate
CAV ON 13.05.2022 PRONOUNCED ON 14.09.2022
1. Appellants are the plaintiffs and the appeal has been preferred against the Judgment of reversal passed by the District Judge, Latehar in T.A. No. 02 of 2008 setting aside the judgment and decree dated 10.03.2008 passed by the Munsif, Latehar in Title Suit No. 13/2004.
2. The parties shall be referred to by their original placement in the suit and will include their legal representatives substituted at different stages.
3. The plaintiffs brought the suit for declaration of the deeds of gift executed bearing No. 5561 dated 06.06.1980 and No.9564 dated 26.08.1988 executed by Adhikari Devi in favour of plaintiff No.1 were legal and valid and the plaintiff no.1 acquired valid right title, and possession over the same including the suit property. A further declaration has been sought that the Sale Deed no.1374 and 1375 both dated 25.08.1982 executed by Aashnandan Singh were void ab initio. The defendant be evicted from the suit premises and plaintiff no.1 be restored in possession.
4. The suit land comprises of two shop rooms and land enclosed with boundary situated in village Balumath under District Latehar in a total area of 0.12 acres out of which 0.10 acres was in C.S. Plot No.1350 under C.S. Khata No.37 and 0.02 acre was in Plot No.1349 under Khata No.261.
25. The suit land appertaining to C.S. Plot No.1350, was recorded in the name of Lagan Basi Kuar and C.S. Plot No.1349 area 12 decimals of Khata No.261 was recorded in the name of Deoki Nandan Singh. Both these raiyats were in right title and possession of Plot No.1350 and 1349. Both of them died in the year 1981 and 1982 respectively leaving behind a daughter Adhikari Devi who was married to Jagdish Singh. Thus, Adhikari Devi inherited the land and came in possession of the entire land held by her parents and got it mutated in her name by Mutation Case No.17 of 1982-83.
6. Adhikari Devi died in the year 1994 leaving behind two sons namely Aashnandan Singh and Vijay Nandan Singh. Aashnandan Singh died in the year 2002 leaving behind his heirs Defendants 2 nd Set. During her life time, Adhikari Devi through the two registered deeds of gift conveyed the suit properties to plaintiffno.1 (w/o Vijay Nandan Singh) bearing No. 5561 dated 06.06.1980 and No. 9564 dated 26.08.1988. The donee duly accepted the gift and came in possession of the properties so gifted and got her name mutated by order dated 05.02.1990 passed in Mutation Case No.311 of 1989-90. Against the mutation order Aashnandan Singh filed Mutation Appeal No.1 of 90 - 91 in the Court of D.C., Latehar which was dismissed on 03.09.1991.
7. The plaintiff no.1 constructed two shops in Plot No.1350 and extended on portion of Plot No.1349. It is averred that during his brief absence defendants (1st Set) forcibly took possession of the shop rooms. On objection being raised by plaintiff no.1, it was informed by the defendants that the suit property had been purchased from Aashnandan Singh on 25.08.1982 vide Sale Deed No.1375 of 1982 executed in favour of Sheo Prasad Sao and Sureshwar Prasad for Plot No.1350 area 05 decimals, Sale Deed no. 1374 of the year 1982 was also for 05 decimals land in Plot No.1350 was executed by Aashnandan Singh in favour of Kameshwar Pd. Sao and Ram Belash Sao. It is averred with respect to these sale deeds that it was full of falsehood and no deed of WILL was executed by Deoki Nandan Singh which was never produced or probated. As a matter of fact, Aashnandan Singh, father of respondent nos.6 to 8 and husband of defendant no.5 had instituted suit for partition in the Court of Sub Judge, Latehar with respect to the lands held by Deoki Nandan Singh being S.No.39 of 1989. In the suit, no claim was made by virtue of any WILL.
38. Aashnandan Singh had executed another sale deed for the land of Plot No.1350 in favour of Ishlam Mian and Md. Mozahid and had the land mutated in their name, against which appeal was preferred and mutation cancelled.
9. Defendant Nos.1 to 4 are the purchasers of the land from Aashnandan Singh. They have filed joint W.S. and contested the suit.
10. The suit proceeded ex-parte against the other defendants.
11. The case of the contesting defendants is that after acquiring the suit land by virtue of registered sale deeds in 1982 they were in khas possession of the suit land and had perfected their title by adverse possession.
12. Recorded tenant was Deoki Nandan Singh is not in dispute. He and his wife lagan Basi died leaving behind their daughter Adhikari Devi has not been disputed. It has been disputed that Adhikari Devi inherited the properties left by her parents. Deoki Nandan Singh and Smt Lagan Basi Devi had jointly executed a WILL with respect to their properties in favour of their grandsons (Nati) namely Aashnandan Singh and (2) Bijay Nandan Singh on 23.06.1980 which was duly registered on 07.07.1980. The suit land on partition was exclusively allotted to the share of Aashnandan Singh, who came in separate possession of the same. The averment of gift made by Adhikari Devi in favour of plaintiff no.1 has been denied. These defendants acquired valid right, title and interest over the suit property by virtue of registered sale deed dated 25.08.1982 and came in khas possession of the same. They have constructed their residential house over the land. Basgit Parcha has been issued with respect to 2 decimals of land under Plot No.1349 before the filing of the present suit. The deed of WILL was acted upon and there was no requirement of it being probated as such a requirement is only with respect to property situated within the territory of Bengal, Bombay and Madras. Islam Mian and Md. Mozahid were in possession over portion of Plot No.1350.
13. To elucidate the point in controversy, the trial court framed the following issues :-
(i) Whether the suit is maintainable as framed?
(ii) Whether the plaintiffs have got valid cause of action for the suit?
(iii) Whether the suit is barred under the provisions of Law of Limitation?
(iv) Whether the suit is barred by the law of Estoppel, waiver and acquiescence?
4(v) Whether Aashnandan Singh was entitled to sell the suit land to defendant Nos. 1 to 4.
(vi) Whether the suit property was valued properly and the sufficient court fee has been paid?
(vii) Whether there was any partition of the share of land between Aashnandan Singh and Vijay Nandan Singh?
14. The trial Court decreed the suit of the plaintiff by recording a finding of fact that from the two registered deed of gift, Adhikari Devi transferred the property in favour of the donee. On the basis of the gifts the land was mutated and the appeal of Aashnandan Singh against it was dismissed on 03.09.1991. A petition initiated proceeding under Section 144 of the Cr.P.C was also dismissed a suit filed by him for partition against plaintiff no.2 was also dismissed as withdrawn. The defendants did not file any suit against the said gifts.
15. The learned Court of first appeal reversed the Judgment and decree of the trial Court and dismissed the suit of the plaintiff on the ground that the two gift deeds which are the basis of the claim of title of the plaintiffs have not been proved by examining the attesting witnesses as required under Section 123 and Section 3 of the Transfer of Property Act read with Section 68 of the Evidence Act and therefore, it did not confer any title the plaintiff. It further held that sale deed executed by Aashnandan Singh was a void document and did not confer any title to the contesting defendants since the date of execution of the two sale deeds in the year 1982, since Adhikari Devi, the sole legal heir was alive and she inherited the property of her parents after their death. It also held that Aashnandan Singh had not acquired any right by WILL since no probate was granted in his favour. It was however held that the contesting defendant had acquired possession over the suit land and continued on it for more than 12 years by constructing house over the same and were residing therein. Section 65 of the limitation act was applicable and hence the suit for eviction was barred by law of limitation
16. This appeal has been admitted to be heard on the following substantial questions of law:
1. Whether the ground for disallowing the plaintiff's case on the basis of adverse possession could be done without there being any pleading regarding adverse possession and any evidence in 5 respect of adverse possession and thereby, without fulfilling the requirement in law to constitute a claim of adverse possession?
2. Whether the gift deed in favour of the plaintiff could be discarded in the manner as it has been done by the Lower Appellate Court?
3. Whether the Registered Sale Deed No. 1374 and 1375 both dated 25.08.1982 executed by Aashnanda Singh conveys any valid title to Defendant No. 1- 4 ?
17. It is argued on behalf of the appellants that the learned lower appellate Court has committed serious error of law by discarding the deeds of gift on the ground of non-examination of attesting witnesses. The proviso to section 68 of the Evidence Act clearly postulates that it shall not be necessary to call an attesting witness in proof of execution of any document, not being a WILL, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.
18. It is submitted that although the sale deed on the basis of which the contesting defendants claimed title has been declared to be void, but it has been held that eviction cannot be ordered in view of limitation under Article 65 of the Limitation Act. This was not permissible since there was no pleading of adverse possession, rather they had been claiming title on the basis of the sale deed. The Court cannot make out a case which has not been pleaded. Further, the finding of the first appellate Court regarding the sale deed to be void on the basis of which the title has been claimed has not been challenged by the respondent/defendant and has thereby attained finality.
19. It is submitted on behalf of the respondents that admittedly after the death of Deokinandan Singh and Lagan Basi Kuar the suit property devolved upon their daughter Adhikari Devi, Aashnandan Singh and Bijay Nandan Singh as coparceners of the Hindu undivided family and as such the suit property was part of the joint family property after the death of Deokinandan Singh and Lagan Basi Kuar. This being a joint family property, as per the provisions of the Mitakshara law it cannot have been given in gift without the consent of the other co-parceners, hence the said deed of gift made by Adhikari Devi in favour of Shanti Devi, was invalid and void ab initio. Under Mulla's Hindu Law, 15th edition Article 264 at page 357, it is stated that 6 admission of undivided coparcenary property by way of gift without the consent of other coparceners was void. This article has been relied by Hon'ble Supreme Court in AIR 1987 SC 1775. Further in view of the specific denial of exclusion of the gift deed it was incumbent on the part of the plaintiff to have examined the attesting witnesses as required under Section 68 of the Evidence Act. Hence, the learned appellate Court has correctly come to the finding that in the absence of attesting witnesses the gift deed has not been proved. Reliance has been placed on (2000) 7 SCC 189.
20. With regard to the pleading on adverse possession is concerned the same has been pleaded in para 3 of the WS. There is a definite finding of fact by the first appellate court regarding the dispossession of the plaintiffs. Once this has been admitted it was incumbent on the part of the plaintiffs to prove the actual or constructive possession within 12 years in view of the ratio decided in (1977) 3 SCC 468.
21. After having considered the rival submissions advanced on behalf of both the sides, the judgment delivered by both the learned courts below and the evidence on record, this Court finds that the learned Court of first appeal has grossly erred in setting aside the judgment of the trial court for the following reasons:
Firstly, there is a presumption of due execution of a registered instrument and a non-testamentary registered instrument does not require the evidence of the attesting witness, except where the purported executant pleads forgery and impersonation. The proviso to Section 68 of the Evidence Act, makes it abundantly clear that it shall not be necessary to call an attesting witness in proof of the execution of any document, which has been registered in accordance with the provisions of the Indian Registration Act.
It has been held in Surendra Kumar v. Nathulal, (2001) 5 SCC 46
13. Section 123 of the Transfer of Property Act, 1882 provides:
"123. Transfer how effected.--For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses."
In the present case there exists a registered deed of gift signed by the donor and attested by two witnesses. Therefore, the requirement of the law as incorporated in the section is satisfied. Section 68 of the Indian Evidence Act, 1872 makes a provision regarding proof of execution of a document required by law to be attested. Therein it is laid down that:
"If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose 7 of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence:"
The proviso to the section, which is relevant for the present purpose, reads:
"Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
(emphasis supplied) On a plain reading of the proviso, it is manifest that a registered deed of gift can be received in evidence without examining one of the attestors if the person who has executed the deed of gift has not specifically denied its execution.
Secondly, the admitted position is that the suit property was recorded in the name of Deokinandan Singh and after his death his daughter Adhikari Devi (Donor of gift) inherited the property. This property was inherited by her as Class I heir to the Schedule and under Section 8 of the Hindu Succession Act, 1956, in exclusion of her sons. The suit property being inherited from her father side by Adhikari Devi was not the joint family property but her exclusive property in which her sons had no right, title or interest. Under Section 9, among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs. Aashnandan Singh, who executed the sale deeds in 1982 in favour of the contesting defendants, being the maternal grandson (nati) of Deokinandan Singh the recorded owner of the suit land, was not his Class I heir. This being so, he did not inherit the property simultaneously with his mother and therefore had no right to dispose of the property as rightly held by both the learned courts below. Under Section 14, any property purchased by female Hindu, whether before or after the commencement of the Act, shall be held by her. The property included both movable and immovable property acquired by her by inheritance. It has been held in Govt. of A.P. v. M. Krishnaveni, (2006) 7 SCC 365 :
"21. Section 14(1) of the Hindu Succession Act, 1956 provides that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Smt P. Rukmini and Smt M. Krishnaveni, both daughters of Late T. Chinna Seetharamaiah, had acquired an absolute right in the lands given to them by their father in the family arrangement on 13-11-1970."
Thirdly, this property was not the joint family property of the family of Adhikari Devi and her two sons Vijay Nandan Singh (Plaintiff no.2) and Aashnandan Singh, but was inherited by her from her father's side as Class I 8 heir in exclusion of the other heirs and she was the absolute owner of it and had right to transfer it. This was not a property of her matrimonial family, but came from her father, therefore it cannot be regarded as joint family property. The property being her absolute property, her son Aashnandan Singh had no right to transfer by any instrument the suit property in favour of the defendants. Having no title, the transfer of the suit property was void and not binding on the plaintiffs.
Finally, the finding on adverse possession by the trial Court was equally perverse, as it failed to satisfy the basic ingredients of adverse possession which requires that there should be definite pleading with regard to it. There had been no definite pleading and no issues were framed by the trial Court.
It has been held in Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779 :
"11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] , Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567] .) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128] .]
12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] .) In P. Periasami v. P. Periathambi [(1995) 6 SCC 523] this Court ruled that: (SCC p. 527, para 5) 9 "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced".
In the present case, the defendants have failed to plead and prove these basic ingredients to entitle them to the title to suit property by adverse possession. On the other hand, the gift deeds have been adduced into evidence which have been marked as Exhibits 2/3 and 3. Plaintiff No.1 came into possession and her name was mutated in Mutation Case No. 311 of 1989-90 (Ext-8). Mutation appeal preferred by Aashnandan Singh was dismissed in Mutation Appeal No. 01 of 1989 was dismissed vide order dated 03.09.1991 (Exhibit-6). The mutation of another purchaser from Aashnandan Singh was cancelled. On the face of these documentary evidence, the learned Court of first appeal was clearly in error to record a finding of adverse possession in favour of the defendants.
22. The substantial questions of law are accordingly answered in favour of the appellants for the reasons discussed above. The Judgment and Decree passed by the learned Court of first appeal is not sustainable in law and is accordingly set aside and that of the trial Court is restored.
Appeal is allowed.
(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 14th September, 2022 AFR / Anit