Patna High Court
Bibi Jamila Khatoon & Ors vs Janardan Kunwar & Anr on 2 January, 2014
Equivalent citations: AIR 2014 PATNA 63, (2014) 134 ALLINDCAS 827 (PAT) 2014 (134) ALLINDCAS 827, 2014 (134) ALLINDCAS 827
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.151 of 2006
(Against the judgment and decree dated 16.05.2006 passed by Additional
District Judge, Fast Track Court No.1, Munger in Title Appeal No.08 of 2005
reversing the judgment and decree dated 31.01.2005 passed by Munsif-1st,
Munger in Title Suit No.11 of 2002)
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Bibi Jamila Khatoon & Ors
.... .... Defendant nos.2 to 4-Respondent nos.2 to 4-
Appellants
Versus
1. Janardan Kunwar .... .... Plaintiff-Appellant-Respondent 1st Set
2. Md. Akhtar Hussain ... .... Defendant no.1-Respondent no.1-
Respondent 2nd Set
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Appearance :
For the Appellants : Mr. Abbas Haider, Advocate.
For the Respondents :Mr. S.S. Dvivedi, Sr. Advocate.
Mr. Ranjan Kumar Dubey, Advocate with him.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
C.A.V. JUDGMENT
Date: 02-01-2014
Mungeshwar The contesting defendants have filed this Second
Sahoo, J.
Appeal against the judgment and decree dated 16.05.2006 passed by the learned Additional District Judge, Fast Track Court No.1, Munger in Title Appeal No.08 of 2005 whereby the lower appellate court allowed the appeal and reversed the judgment and decree of the trial court dated 31.01.2005 passed by the learned Munsif-1st, Munger in Title Suit No.11 of 2002.
2. The plaintiff-respondent filed the aforesaid suit for declaration of title and possession over the suit land and alternatively prayed for recovery of possession. The plaintiff claimed the aforesaid Patna High Court SA No.151 of 2006 dt.02-01-2014 2 relief alleging that the suit land was recorded with other land in the name of Seikh Abdullah and Seikh Illtaf. Seikh Abdullah died leaving behind Akhtar Hussain, Ali Haj and Md. Aslam. Seikh Illtaf Hussain died leaving behind his widow and one son Asalat Hussain. The widow and the sister of Seikh Illtaf Hussain transferred their share to Asalat Hussain by registered deed of gift dated 29.12.1951, who in turn, gifted the property in favour of Jamila on 22.03.1972. It was only a paper transaction. The plaintiff was in possession of the suit land measuring 1 acre 86 decimals since 1960. The defendants negotiated with the plaintiff on 07.02.1970 to execute the sale deed with respect to the suit land out of 4 acres 68 decimals of the suit plot. On 14.09.1970 the plaintiff paid Rs.9,000.00 and he came in possession of the suit property. In the year 1978 the defendants executed the sale deed in favour of the brother and wife of the plaintiff relating to an area of 2 acres 82 decimals out of the suit plot no.227. The plaintiff also prescribed title by adverse possession. The plaintiff requested the defendants to execute the sale deed but they did not execute the sale deed, therefore, the suit was filed.
3. The contesting defendants-appellants filed written statement denying the allegation of the plaintiff. They denied to have orally agreed to sell the suit property. They also denied to have received the consideration amount and also denied the possession of Patna High Court SA No.151 of 2006 dt.02-01-2014 3 the plaintiff.
4. The trial court on the basis of the evidences held that in absence of any written and registered instrument of sale the plaintiff cannot acquire any title over the suit land. The trial court also found that the plaintiff has not been able to prove title on the basis of adverse possession as the plaintiff admitted the title of the contesting defendants even on 09.02.2002. Accordingly, the plaintiff's suit was dismissed.
5. On appeal, the lower appellate court recorded the finding that defendant no.1 admitted the claim of the plaintiff and his admission is of binding nature. The lower appellate court also held that the plaintiff is in possession for more than 12 years as such he has perfected title by adverse possession.
6. On the date of admission on 19.11.2008 the following two substantial questions of law were formulated:
(i) Whether the parties being governed by
Mohammedan Law, the presumption of
jointness as provided in Hindu Law would be
applicable specially when the separation is
admitted in the instant case?
(ii) Whether the agreement for sale of property in
question for a consideration of Rs.9,000.00
would amount to passing of a title without any
registered deed of transfer?
7. The learned counsel for the appellants Mr. Abbas Patna High Court SA No.151 of 2006 dt.02-01-2014 4 Haider submitted that the lower appellate court decreed the plaintiff's suit for declaration of title merely on the ground that the defendant no.1 admitted the claim of the plaintiff and there is no partition between defendant no.1 and the contesting defendant nos.2 to 4, therefore, the admission of defendant no.1 will be binding on defendant nos.2 to 4. According to the learned counsel, the approach of the lower appellate court is wrong particularly when it is admitted case that the parties belonged to Mohammedan Law and separation is admitted. The learned counsel further submitted that the presumption available to Hindu family is not available in favour of the plaintiff in this case but the lower appellate court wrongly held that the parties are joint, therefore, the admission of defendant no.1 will bind the contesting defendants.
8. So far the substantial questions of law are concerned, the learned counsel submitted that even if there is agreement to sell in favour of the plaintiff for Rs.9,000.00, the title will not pass on the plaintiff unless a document is registered according to the Transfer of Property Act. The learned counsel further submitted that the finding of the court below regarding acquisition of title by adverse possession is against the plaintiff's case because in the plaint at paragraph-22 he specifically pleaded that he requested the defendant to execute the sale deed which means that on that date also he was admitting the Patna High Court SA No.151 of 2006 dt.02-01-2014 5 title of the plaintiff. In view of the above facts there is no question of claiming hostile title to the defendant arises but the lower appellate court merely recording a finding on the basis of pleadings without considering the evidences held that since the plaintiff is in possession for more than 12 years, therefore, he has acquired title by adverse possession. On these grounds, the learned counsel submitted that the substantial questions of law be answered in favour of the appellants and the plaintiff's suit for declaration of title be dismissed.
9. According to the learned counsel, at best, it can be said that on the basis of agreement the plaintiff has acquired a right to obtain a sale deed but his title cannot be declared on the basis of agreement.
10. The learned senior counsel Mr. S.S. Dvivedi appearing on behalf of the respondents, on the other hand, submitted that according to Section 57 of Mohammedan Law by Mulla, no doubt, the presumption available to Hindu family is not applicable in case of Mohammedan family but if it is proved that the property is possessed by all the members jointly, there is presumption that they are the properties of the family. In the present case, the lower appellate court on the basis of evidences recorded the finding that there has been no partition between the parties. In such circumstances, the admission of defendant no.1 is binding on the Patna High Court SA No.151 of 2006 dt.02-01-2014 6 contesting defendants-appellants. So far the question whether there has been partition or not is essentially a question of fact which cannot be interfered with in the second appellate jurisdiction.
11. According to the learned counsel, the plaintiff clearly pleaded that he is in possession of the property since 1960 and, therefore, the defendants agreed to sell the property in favour of the plaintiff. The entire consideration amount of Rs,9,000.00 was paid but when the defendants did not execute the sale deed in favour of the plaintiff, a Panchayati was held and Panchayat gave a decision that the plaintiff is in possession of the property as owner thereof and this Panchayati was held in the year 1981. The suit has been filed by the plaintiff in the year 2002. In such view of the matter admittedly the defendants are not in possession for more than 12 years. In other words, the plaintiff continued in possession after Panchayati in the year 1981 as owner of the property for more than 12 years, therefore, the lower appellate court has rightly held that the plaintiff has acquired title by adverse possession. So far the pleading in paragraph- 22 of the plaint is concerned, the learned counsel submitted that to avoid any future litigation if the plaintiff had requested the defendant to execute the sale deed, it will not mean interruption of the possession of the plaintiff as such the title by adverse possession which has vested on the plaintiff cannot be divested because of the Patna High Court SA No.151 of 2006 dt.02-01-2014 7 pleading in paragraph-22 of the plaint. The learned counsel regarding substantial question of law no.2 is concerned, submitted that the decree has been granted by the lower appellate court on the basis of adverse possession and not on the basis of oral agreement, therefore, this substantial question of law does not arise for consideration. On this ground, the learned counsel submitted that the Second Appeal be dismissed with cost.
12. From perusal of the judgment of the lower appellate court, it appears that the lower appellate court disbelieved the case of the contesting defendants on the ground that the defendant no.1, who has filed written statement supporting the plaintiff's case, has admitted the case of the plaintiff. Instead of deciding the case as to whether in fact Rs.9,000.00 was paid or not or in fact whether there was any oral agreement, the lower appellate court disbelieved the case of the appellant and held that since the admission of defendant no.1 is binding in nature, the appellant will be bound by the admission. So far this finding of the lower appellate court is concerned, it may be mentioned here that even if it is assumed that the plaintiff was put in possession of the property on the basis of the agreement to sell after paying Rs.9,000.00, the question will be whether title will pass on the plaintiff?
13. In the case of Zeyarat @ Jeyarat Hussain and Patna High Court SA No.151 of 2006 dt.02-01-2014 8 another Vs. Kamsmali Mian and others, reported in 1993 (1) P.L.J.R. 172, Hon'ble Mr. Justice S.B. Sinha as he then was held that right, title and interest can be acquired with respect to immovable property only when the property is transferred by execution of a registered instrument. Title passes only on registration of document. If title in a property has not been validly created, the same cannot be created either by admission, by estoppel or by acquiescence. It is validly created only when it conforms to the requirement of the statute. Unless and until conditions precedent for passing of a title from one to other are satisfied, one cannot derive title by reason of inaction on part of another.
14. In the case of Farid Ahmad and ors. Vs. Bibi Mataban and ors., reported in 2000 (4) P.L.J.R. 498, this Court again reiterated that title cannot pass by mere admission, estoppel or mere acquiescence. Title will be created only when it conforms to the requirement of the statutes. In the present case, at our hand, even if it is held that there was agreement between the parties and the defendants have received the consideration amount of Rs.9,000.00 and that the defendant no.1 admitted that the plaintiff was put in possession on the basis of agreement, title will not pass on the plaintiff unless a registered document is created in view of the settled propositions of law discussed above. By mere admission, title will Patna High Court SA No.151 of 2006 dt.02-01-2014 9 never be created in favour of the plaintiff and likewise mere inaction of the defendant to execute the sale deed, title will not be vested on the plaintiff. On the basis of this agreement it can very well be said that the plaintiff had acquired a right to obtain a registered sale deed from the defendants but because of non-execution of the registered sale deed the plaintiff will not acquire title. Here, it may be mentioned that the plaintiff has not filed the suit for specific performance of contract rather he has filed the suit for declaration of title. Now, therefore, when he came in possession of the property on the basis of the agreement, according to his case itself, how he will acquire title by adverse possession. Admittedly the title did not pass on him and he was put in possession pursuant to the agreement, therefore, his possession became permissive possession. In other words, the defendants allowed him to continue in possession till the registered document is executed in his favour.
15. In the case of Karnataka Board of Wakf Vs. Government of India & Ors., reported in 2004 (3) P.L.J.R. (SC) 245, the Hon'ble Supreme Court held that a party claiming adverse possession must prove that his possession is peaceful, open, continuous and must be adequate in publicity and in extent to show that possession is adverse to the true owner. Adverse possession is hostile possession by clearly asserting hostile title in denial of the title Patna High Court SA No.151 of 2006 dt.02-01-2014 10 of true owner. He must prove that what was the nature of his possession. In the present case, at our hand, according to the plaintiff himself he came in possession pursuant to the agreement. No doubt in the plaint there is pleading that he was in possession of the property prior to 1960 but what was the nature of his possession has not been made clear.
16. Be that as it may, subsequently according to him pursuant to the agreement he came in possession, therefore, when his possession became adverse and since when he started prescribing title by adverse possession, is not pleaded.
17. From perusal of the judgment of the lower appellate court it appears that the lower appellate court gave much emphasis on Ext.3 which is order dated 17.12.1981 passed by Gram Panchayat. From perusal of this Ext.3 it appears that there was dispute regarding execution of the sale deed. It was decided in Ext.3 that the plaintiff is in possession since 20 years, therefore, Md. Akhtar Hussain and others should execute the sale deed and if they did not execute the sale deed, Janardan Kunwar may get it executed according to law and he will take steps for the same. The defendants were restrained from disturbing the possession of the plaintiff. In view of these contents of Ext.3, the right to obtain a sale deed was recognized by the Panches. There is specific direction to the plaintiff to take appropriate legal Patna High Court SA No.151 of 2006 dt.02-01-2014 11 action according to law for obtaining sale deed but instead of obtaining the sale deed, the plaintiff has filed the suit for declaration of title.
18. From perusal of the judgment of the lower appellate court it appears that the lower appellate court has not at all considered the evidences and recorded the finding that because the defendant no.1 admitted the case which is binding in nature, therefore, the lower appellate court did not decide as to whether the consideration money has been paid to the plaintiff or not.
19. So far the adverse possession is concerned, it may be mentioned here that at paragraph-22 the plaintiff clearly pleaded that he requested the defendants to execute the sale deed in the year 2002 and the defendants-appellants refused to execute the sale deed. In view of these averments till that date the plaintiff was recognizing the appellants to be the owner of property and was requesting them to execute the sale deed, therefore, his right was only to obtain the sale deed but for non execution of registered sale deed by the defendants- appellants how the title will pass on the plaintiff or how it can be said that since the plaintiff is in possession for more than 12 years he has acquired title by adverse possession.
20. In the case of P.T. Munichikkanna Reddy and others Vs. Revamma and others, reported in (2007) 6 Supreme Patna High Court SA No.151 of 2006 dt.02-01-2014 12 Court Cases 59, the Hon'ble Supreme Court has held that adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and wilful neglect but also on account of possessor's positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the owner of the property on paper. In the present case, at our hand, there may be intention to possess the property but there is no intention to dispossess the true owner. Here, the defendants are not praying for declaration of title. Admittedly they are title-holders. The plaintiff agreed to purchase the property and came in possession. When this possession became adverse, is not clear. It is settled law that mere long possession will never constitute adverse possession. As stated above on the basis of the agreement when he came in possession, he was allowed to possess the property by the defendants and he did not step into the possession of the property in assertion of his hostile title. So far Ext.3 is concerned also his right to obtain sale deed has been recognized and nothing more and on that date also his case was of simple possession.
21. In view of the above discussions and the law laid Patna High Court SA No.151 of 2006 dt.02-01-2014 13 down by the Hon'ble Supreme Court it is held that the title did not pass on the plaintiff on the basis of mere agreement because there is no registered sale deed. So far adverse possession is concerned also in the facts of this case the plaintiff cannot acquire title by adverse possession. Accordingly, substantial question of law no.2 is answered in favour of the contesting defendants-appellants and against the plaintiff-respondent.
22. So far substantial question of law no.1 is concerned, it is only academic question in the present case because even if it is held that the parties were joint then also by mere admission title will not pass in favour of the plaintiff. Moreover when separation is admitted in the present case, there is no question of application of principles of Hindu Law regarding presumption of jointness arises.
23. In the result, this Second Appeal is allowed. The impugned judgment and decree of the lower appellate court is hereby set aside. The judgment and decree of the trial court is restored. In the facts and circumstances of the case, there will be no order as to cost.
(Mungeshwar Sahoo, J) Harish/-