Abhay Singh vs Ajoy Jaisawal

Anubha Rawat Choudhary, J

This appeal has been filed against the judgment dated 21.07.2022 (decree signed on 04.08.2022) passed by the learned District Judge-I, Seraikella-Kharsawan in Civil Appeal No. 40 of 2011 affirming the judgment dated 30.06.2011 (decree signed on 11.07.2011) in Title Suit No. 111 of 2007 passed by learned Additional Munsif, Civil Courts, Seraikella-Kharsawan.

The suit has been dismissed by the learned trial court and the judgment of the learned trial Court was affirmed by the learned 1st appellate Court. Consequently, the plaintiffs are the appellants before this Court.

The suit was filed for the following reliefs:-

a. For a declaration that the suit land is the purchased land of the plaintiff’s mother and the plaintiffs have got a right, title, interests over the same.

b. For confirmation of possession and in alternative if the plaintiffs are found to be dispossessed then for recovery of khas possession.

c. For declaration that the sale deed No. 2813 dated 06.06.1992 is nothing but a false and fabricated fake deed and the same was never acted upon and the same is fraudulently obtained and the same is not binding against the plaintiffs or anybody else since there was no existence of land of the said area mentioned in the deed.

d. For a permanent injunction restraining the defendant to disturb the plaintiffs suit land area.

e. For cost of the suit.

f. For any other relief or reliefs for which the plaintiff’s are found to be entitled.

The appeal was admitted vide order dated 06th February, 2025. On 06th February, 2025 only one substantial question of law was framed and thereafter, one additional substantial question of law has been framed vide order dated 18th June, 2025 by submitting that it was admitted fact from the plaint itself that Gunadhar Ghosh was left with 13 decimals of land out of total land of 19½ decimals after he had sold 6 ½ decimal of land to the defendants.  Thus, there are two substantial questions of law to be answered in this appeal which are as follows: -

“I. Whether both the learned courts below erred in not considering that when the defendants have admitted the sale deed executed by Gunadhar Ghose in favour of plaintiffs and further admitted that original raiyat (Jagannath Napit & his son Gopal Napit) had sold some plots of land to Gunadhar Ghose and further came with a defence that Gunadhar Ghose did not have possession of 9 decimals of land rather only 6 ½ decimals, then onus of proving of such facts was with the defendants?

II. Whether both the learned courts erred in not considering the admitted case of the defendants, that Gunadhar Ghose was left with 13 decimals of land out of his total land of 19 ½ decimals, after he had sold 6 ½ decimals of land to defendants and further when plaintiffs proved their possession over 9 decimals of land purchased from Gunadhar Ghose by way of registered sale deed, mutation and rent receipts, plaintiffs were successful in proving their right, title and interest over the suit land?

Arguments of the appellants.

The learned counsel for the appellants has submitted that the dispute relates to khata no. 20, plot no. 259 which had total area of 64 decimals and it originally belonged to Jagannath Napit. He has stated that the following sale deeds were executed by Jagannath Napit: -

(i) 11 decimals to Baidyanath Mandal vide sale deed No. 6064 dated 28.12.1971

(ii) 9 decimals to R.C. Sharma vide sale deed No. 3315 dated 11.05.1971

(iii) 9 decimals to Gunadhar Ghosh vide sale deed no. 165 dated 09.01.1973

After the death of Jagannath Napit, his son, namely, Gopal Napit executed the following sale deeds: -

(i) 7 decimals to R. K. Singh vide sale deed No. 4415 dated 24.07.1973

(ii) 5 decimals to Darshan Singh vide sale deed no. 3892 dated 22.04.1974

(iii) 6 decimals to Ashwini Ghosh vide sale deed no. 8918 dated 10.09.1974

(iv) 13 decimals to Gunadhar Ghosh vide sale deed no. 132 dated 31.05.1975

(v) 2 decimals to R. C. Sharma vide sale deed no. 5039 dated 31.05.1975.

Thus, Jagannath Napit sold 29 decimals of land during his lifetime and Gopal Napit sold 33 decimals, total being 62 decimals out of 64 decimals.

The learned counsel for the appellants has submitted that the entire 9 decimals of land, which was sold by Jagannath Napit to Gunadhar Ghosh vide sale deed no. 165 dated 09.01.1973, was sold to the mother of the plaintiffs, namely, Sarswati Devi vide sale deed no. 4080 dated 10.11.1982, which is mentioned in Schedule-A of the plaint.

The learned counsel has also referred to Schedule-B of the property, which is the disputed property involved in this case and has submitted that schedule B property is a part of Schedule-A. The description of the property in Schedule-B reveals that the dispute is in connection with north-south measuring 66ft x 17ft and in some part 15ft, consisting of a well on the northern side and used as angan and open garden in portion of plot no. 259, Khata no. 20. The boundary has also been provided in Schedule-B; North is Prabhu Patel, South is Bihar Sarkar now Jharkhand Sarkar, East is defendant, West is plaintiffs’ building and remaining part of purchase land. He submits that in connection with Schedule-B property, there was a proceeding under Section 144 of Cr.P.C. and ultimately the suit was filed to dissolve the dispute.

Learned counsel for the appellants has submitted that the original defendant namely, Mohan Jaiswal had claimed that he had purchased 6.5 decimals of land from Gunadhar Ghosh vide sale deed no. 1480 dated 09.03.1976 (exhibit-B). Further, he claimed to have purchased 7.5 decimals of land vide sale deed no. 2813 dated 06.06.1992 (exhibit-B/1) from Gopal Napit and again, claimed to have purchased 6 decimals of land vide sale deed no. 3388 dated 26.11.1994 (exhibit-B/2) from Ashwani Ghosh [who had purchased the said land from Gopal Napit] vide sale deed dated 10.09.1974. The sale -deed dated 10.09.1974 has not been exhibited.

During the course of argument, it also transpired that the plaintiffs have exhibited the sale-deed in connection with schedule-A property in the name of their mother as exhibit-2. No other sale-deed has been exhibited by the plaintiffs including the sale-deed no. 165 dated 09.01.1973 through which the land is said to have been sold by Jagannath Napit in favour of Gunadhar Ghosh [ the vendor of the mother of the plaintiffs]. However, the sale-deed no. 165 dated 09.01.1973 has been mentioned in the sale-deed exhibited as exhibit-2.

Learned counsel for the respondents does not dispute that the total area of the land in plot No. 259 was 64 decimals. However, he has submitted that the specific case of the plaintiffs was that the Schedule-B is the part of Schedule-A property, but no evidence was led to prove this aspect of the matter. He has referred to paragraph 14,15 and 17 of the plaint and paragraph 11 of the written statement to submit that it was never admitted by the defendant that schedule-B was part of schedule-A property. He has also submitted that it was the specific case of the defendant that the land covered under the sale deed dated 10.11.1982 executed in favour of the mother of the plaintiffs was only 6½ decimal which she was already in possession and the land was not to the extent of 9 decimal. He has also submitted that the vendor of the mother of the plaintiff had also acquired only 6 decimals of land and not 9 decimals of land. The learned counsel has submitted that the sale deed of the vendor of the plaintiffs was not exhibited before the court to ascertain as to how much property was purchased by Gunadhar Ghosh [vendor of the mother of the plaintiffs] in the year 1973.

The learned counsel submits that the plaintiffs has sought a declaration that the suit land is the purchased land of the plaintiff’s mother and the plaintiff has got right, title and interest over the same. The suit land was referable to schedule-B of the plaint. The learned counsel submits that it was for the plaintiffs to demonstrate that schedule-B was the part of schedule-A property which the plaintiffs have failed to demonstrate. He has also submitted that the plaintiffs having failed to demonstrate that schedule-B was part of schedule-A property, the suit was rightly dismissed.

The  learned  counsel  for  the  respondents  has  referred  to paragraph 28 of the Trial Court’s judgment and has submitted that it was the specific case of the plaintiff that 62 decimals out of 64 decimal was already sold but they have failed to prove. He submits that this was foundational fact to challenge the sale deed dated 06.06.1992 involved in this case, which was challenged in the suit. The learned counsel submits that in the written statement it is not an admitted fact that 62 decimals out of 64 decimals was sold as claimed by the plaintiffs. He has submitted that the sale deed by which 62 decimals was said to have been sold were not exhibited before the court and therefore this fact was not proved.

With respect to the 1st substantial question of law framed by this court vide order dated 06.02.2025, the learned counsel for the respondents has submitted that though the sale deed exhibit-2 executed in favour of the mother of the plaintiffs was admitted but there was a dispute that the same was not in connection with 9 decimal of land but it was only in connection with 6 ½ decimal of land which was the area which was handed over pursuant to the sale deed. He submits that the said admission by the defendants with regard to execution of sale deed is qualified by the fact that the it was only in connection with 6 ½ decimal of land and not 9 decimals does not help the plaintiffs in any manner as the plaintiffs have failed to prove that schedule-B is part of schedule-A property.

The learned counsel for the respondents while referring to the 2nd substantial question of law has submitted that the learned trial court has recorded a finding at internal page-13 that the execution of sale deed in the name of mother of the plaintiffs in the year 1982 was not challenged by the defendants but the area mentioned in the sale deed was under challenge. He submits that the sale deed (exhibit-2) of 9 decimal read with the rent receipts and mutation orders certainly prove that the plaintiffs’ mother had purchased 9 decimal of land and got the same mutated, but this does not help the appellants in any manner in as much as they have failed to prove that schedule-B of the property was a part of schedule-A property. He submits that the suit property was only schedule-B property and not schedule-A property and therefore even if 2nd substantial question of law is answered in favour of the appellants, the same has no bearing in this case.

The learned counsel has referred to the judgment passed by the Hon’ble Supreme Court reported in (2017) 9 SCC 586 (Adiveppa and others versus Bhimappa and another) para 15 and 16, to submit that unless a finding of fact though concurrent are found to be extremely perverse so as to affect the judicial conscience of a Judge, they would be binding on the appellate court. He has also submitted that initial burden is always on the plaintiffs to prove their case through proper pleadings and adequate evidence both oral and documentary in support thereof. He submits that though the aforesaid judgement was arising of a partition suit, but the principles of law would apply in the present case also.

The learned counsel for the respondents has relied upon another judgment passed by the Hon’ble Supreme Court reported in (2004) 7 SCC 708 (Sayed Muhammed Mashur Kunhi Koya Thangal versus Badagarajumayath Palli Dhars Committee and Others) paragraph 8, to submit that any statement made in the written statement cannot be used unless it is duly proved. He has submitted that in the written statement certain averments have been made in the present case but the same has not been proved and therefore those statements are of no consequence in the matter of deciding substantial questions of law involved in this case. However, upon perusal of paragraph 8 of the said judgement, it appears that it was observed that the written statement filed by Waqf Board could not bind the defendant no. 2 and in order to bind defendant no. 2, the statement made in the written statement by the Waqf Board was required to be established on the basis of evidence.

Rejoinder argument of the appellants

In response, the learned counsel for the appellants has referred to the evidence of P.W. 5, who is the plaintiff of the case and submitted that P.W. 5 has clearly stated that Schedule-B is a part of Schedule-A property and during his cross examination in paragraph 39 has stated that it is not correct to say that the disputed land is not the part of the property purchased by his mother. He has also referred to paragraph 18 of the plaint.

Case of the plaintiffs

i. The suit land is situated in Mouza-Balrampur P.S. Gamaria under Khata No. 20, portion of Plot No. 259 having length north-south measuring 66 feet X 17 feet and in some part 15 feet described with boundary in the Schedule ‘B’ of the plaint.

ii. The original owner was Jagannath Napit with respect to the land of Khata No. 20, Plot No. 259 consisting of an area of 0.64 decimals and Plot No. 258 area 0.68 decimals.

iii. The following sale deeds relating to 29 decimals were executed by Jagannath Napit: -

(iv) 11 decimals to Baidyanath Mandal vide sale deed No. 6064 dated 28.12.1971

(v) 9 decimals to R.C. Sharma vide sale deed No. 3315 dated 11.05.1971

(vi) 9 decimals to Gunadhar Ghosh vide sale deed no. 165 dated 09.01.1973

iv. After the death of Jagannath Napit, his son, namely, Gopal Napit executed the following sale deeds relating to 33 decimals:-

(vi) 7 decimals to R. K. Singh vide sale deed No. 4415 dated 24.07.1973

(vii) 5 decimals to Darshan Singh vide sale deed no. 3892 dated 22.04.1974

(viii) 6 decimals to Ashwini Ghosh vide sale deed no. 8918 dated 10.09.1974

(ix) 13 decimals to Gunadhar Ghosh vide sale deed no. 132 dated 31.05.1975

(x) 2 decimals to R. C. Sharma vide sale deed no. 5039 dated 31.05.1975.

v. Thus, Jagannath Napit sold 29 decimals of land during his lifetime and Gopal Napit sold 33 decimals, total being 62 decimals out of 64 decimals. Gopal Napit was left with only 2 decimals of land.

vi. Gunadhar Ghosh had purchased 22 decimals of land as aforesaid (9 + 13) and also got possession. Mother of the plaintiffs, purchased an area of 9 decimals from Gunadhar Ghosh vide Registered Sale Deed No. 4080 dated 10.11.1982 and got the possession of 9 decimals which he had purchased vide sale deed dated 09.01.1973. She applied for Mutation which was allowed vide Mutation Case No. 280 of 1987-88 after thorough enquiry.

vii. That plaintiff’s parents constructed a building on the northern part of the purchased land and gave boundary on the western side and southern side and the eastern part remained open with a future plan. They dug a well in the year 1983 on the north-east part of the opening portion and have been using the same for gardening. The boundary wall of the eastern part could not be completed due to bad financial condition. Mother expired on 10.4.03 leaving behind her two sons, the plaintiffs who continued in possession. The suit property in schedule B is situated on the eastern party of the purchased property by the mother of the plaintiffs which had no boundary on the eastern side.

viii. The defendant filed a proceeding u/s 144 Cr.P.C. vide Misc. Case No.168/1995 with a false plea that the defendant has purchased 7 and ½ decimals of land in Plot No. 259 as till 31.5.75, 62 decimals of land out of 64 decimals were already transferred by Jagannath Napit and Gopal Napit and only 2 decimals remained un-sold being the residential house of Gopal Napit and their family who were continuously living in said house.

ix. It was stated that Mohan Jaiswal (sole defendant) was purchaser of 6 and ½ decimals of land in the year 1976 in Plot No. 259 from Gunadhar Ghosh which was possible because Gunadhar Ghosh purchased 22 decimals of land (9 + 13) as mentioned above. However, the defendant managed another sale deed in his favour claiming purchase of 7 and ½ decimals in 1992 vide sale deed No. 2813 dated 6.6.92 from Gopal Napit although Gopal Napit had only 2 decimals of land left with him.

x. It is the case of the plaintiffs that the defendant acquired only 6 and ½ decimal of land. It was the specific case of the plaintiffs in paragraph 11 and 12 as follows: -

“11. That the purchasing of 0.061/2 decimals of land from Gunadhar Ghosh is well possible because Gunadhar Ghosh once purchased 0.09 decimals land vide Sale deed No. 165 dated 9.1.73 in Plot No. 259 and again Gunadhar Ghosh purchased land measuring 0.13 decimals of land from Gopal Napit vide sale deed No. 132 dated 31.5.75. Therefore, in fact the defendant by such purchase acquired 0.061/2 decimal of land. The plaintiffs have no concerned with the lands of the defendant and on the other hand the defendant has no concern with the land measuring an area 0.09 decimals of land in Plot No.259.

That in fact Gopal Napit was not at all in possession of 0.071/2 decimals of land in plot No. 259, rather the total area of Plot No. 259 was already disposed of upto 31.5.75 by transfer by aforesaid Jagannath Napit and Gopal Napit to the extent of 0.62 decimals and remaining 0.02 decimals of land is the ancestral house and bari land of the then Jagannath Napit, Gopal Napit and now their descendants the wife and sons of late Gopal Napit.”

xi. The defendant has mischievously, by suppressing got mutation, managing the Anchal Staff. The land is not an elastic that the actual area can be extended or minimized in any manner as such the defendant’s claim has got no leg to stand upon.

xii. The defendant was laying false claim over the open area on the Eastern part of the purchased land of the plaintiffs measuring 9 decimals over which a well was dug and in use of the plaintiffs. The eastern part of the purchased land is the suit property.

xiii. A demarcation case was entertained by Anchal Adhikari being demarcation case No. 58/2006-07 who found and prepared a report that area 9 decimals has been mutated and rents have been paid. As per claim of Mohan Jaiswal his purchase land was 20 decimals which was not available in plot No. 259 and only 15 decimal of land was found in actual possession of Mohan Jaiswal the defendant.

xiv. Since the eastern part of the plaintiff’s land was lying open, the defendant caused to start a proceeding U/S 145 Cr.P.C. which was pending since long in the court. Due to misconception and misguide, the 2nd Party Dipti Singh husband of Saraswati Devi was deprived to give evidence and unfortunately the said case ended fruitless and was dropped. The same Misc. Case was numbered as 168/95. The defendant filed another case for an area of 20 decimals of land bounded as North- the house of 1st party, South- house of the 1st party, East – Sohan Zami and West- 2nd parties house. Misc. Case No. 5/07 was initiated and the father of the plaintiffs was made the 2nd party in which he filed show cause but the S.D.M. without any appreciation has converted the proceeding into 145 Cr.P.C. Defendant also filed a case U/S 107 Cr.P.C. showing breach of peace on land dispute. The said case has been numbered as Misc. Case No. 11/2007. Ultimately, the suit was filed. The plaintiffs claimed that the schedule B property is part of schedule A property, that is, 9 decimals of land purchased by the mother of the plaintiffs, for which mutation was already done in her favour and claimed that the plaintiffs have been coming in uninterrupted continuous possession of the suit lands and asserted that admittedly the plaintiffs have got their house a pucca constructed building for which there is no dispute.

Case of defendant.

A. The defendant opposed the suit. It was stated that Gunadhar Ghose never sold and could not have sold an area of 9 decimals to this plaintiff’s mother as he himself was in possession of only 6 and ½ decimals in Plot No. 259 which he acquired by purchase in 1973. Consequently, the plaintiff’s mother never possessed an area of 9 decimals on the basis of the alleged sale deed. The contention regarding the mutation case No. 280/87-88 and alleged enquiry was denied and it has been stated that there was no enquiry or measurement on the spot done by the Anchal Office and no istahar was issued in the mutation case.

B. The sale of lands have been mentioned as follows:-

a. Jagannath Napit transferred 6 and ½ decimals of land to Gunadhar Ghosh in 1973 and delivered the same to the purchaser with measurement by an Amin.

b. Gunadhar Ghosh also purchased an area of 13 decimals from Gopal Napit by registered sale deed No. 132 dated 31.5.75. Thus, Gunadhar Ghosh purchased 19 and ½ decimals ( 13 +6 and ½ ) and remained in possession.

c. Gunadhar Ghosh sold 6 and ½ decimals to the defendant by regd. Sale deed No. 1480 on 9.3.76.

d. Gopal Napit transferred 7 and ½ decimals of land to the defendant by registered sale deed No. 2813 dated 6.6.92 and delivered possession.

e. The defendant purchased 6 decimals of land by Regd. Sale Deed No. 3388 dated 26.11.94 from Ashwani Ghosh as he acquired the same by purchase in 1974 from Gopal Napit.

f. Thus, the defendant purchased a total area of 20 decimals and possessed the same on payment of rent to the State Government after mutation.

C. The defendant constructed houses and dug a well in his purchased area which included the suit land as described in schedule ‘B’ of the plaint about more than 12 years ago.

D. Plaintiffs’ mother had already raised boundary wall on the eastern side of their purchased area and the suit land as described in schedule ‘B’ of the plaint is beyond their purchased land. The defendant has a passage in his purchased land falling on the eastern side of plaintiffs’ boundary which is used by the defendant for ingress and egress from the rasta on the North to the house and well situated in suit land towards deep south.

E. The plaintiff’s mother never got possession of 9 decimal of land. It was denied that the plaintiffs’ mother dug a well and that the Eastern boundary could not be completed. The plaintiffs’ area is well covered with boundary wall on the Eastern side and they have no well or any construction outside their Eastern boundary wall. The plaintiffs claim of possession with reference to the suit land is false and baseless.

F. In 1995 the plaintiffs and their parents with some mischievous intention to grab the defendant purchased land created disturbance and breach of peace. Consequently, a proceeding u/s 144 Cr.P.C. was started. The plaintiffs had therefore, knowledge about the sale deed executed in favour of the defendant with respect to the land in plot No. 259 including the suit land but they never filed any suit to challenge the sale deeds. It was further submitted that Gopal Napit died about 14/15 years ago. His wife Mukta Napit along with her son, after selling away the homestead land, went to her parental house but a few years back returned to Balrampur and are residing in a house on rent from the defendant.

G. The plaintiffs have falsely and wrongly alleged that the defendant acquired 6 and ½ decimals of land by purchase. As a matter of fact, the defendant has acquired a total area of 20 decimals in plot No.259. The defendant’s prayer for mutation over 20 decimals of land purchased by him was allowed on the basis of title deeds and possession of the said area.

H. There was no measurement by the government amin of the plaintiffs’ land and for that matter the defendant’s land. Further there was also no necessity for the plaintiff to measure their purchased area as they have their boundary wall on the eastern side also. The so-called report by the government amin, if any, is merely a table work prepared with the connivance of the plaintiff.

I. Claim and contention shown by the plaintiffs appears to be incorrect as according to them Jagannath Napit and Gopal Napit had transferred 62 decimals of land out of 64 decimals in plot No. 259. Now if it is presumed to be true than the defendant cannot be said to be in possession of only 15 decimals of land rather, he should be in possession of 18 decimals of land covered by the three sale deeds including the sale made by Gopal Napit which includes the suit land.

J. Paragraph 11 of the plaint was denied by stating that it was wrongly alleged that the defendant acquired 6 ½ decimal of land by purchase in plot No. 259 and as a matter of fact the defendant has acquired a total area of 20 decimal in plot no. 259 as stated above. The statement of para 12 of the plaint was denied and it was stated that the plaintiffs had not brought the different owners of the land of plot no. 259. The allegation of para 13 and 14 of the plaint were denied and it was stated that the defendant’s prayer for mutation over 20 decimals of land purchased by him was allowed on the basis of title deeds and possession of the said area and the plaintiffs never raised any objection against the said mutation or possession by the defendant. It was asserted that the plaintiffs have renewed their false claim of digging a well and further the plaintiffs never left any vacant land as their eastern boundary wall was still existing.

K. The allegations of para 16 and 17 of the plaint were denied save and except the fact that there was proceeding under the Cr. P.C. as the plaintiff tried to dispossess the defendant from their purchased him. The defendants claim of the title and possession over the suit land is also established from the description of boundary as contained in the sale deed of the plaintiffs.

Issues before the trial court.

i. Whether the suit is maintainable in its present form or for the relief claimed?

ii. Whether the plaintiffs have got valid cause of action to file this suit?

iii. Whether the suit is barred by law of limitation Specific Relief Act and under the provision of estoppel, waiver and acquiescence?

iv. Whether the suit is barred by for want of necessary parties?

v. Whether the description of the suit land is vague and incorrect?

vi. Whether the suit is under valued?

vii. Whether the plaintiff have got right, title and interest over the suit land by virtue of the registered sale deed No.4080 dated 10.11.1982?

viii. Whether the sale deed No.2813 dated 06.06.1992 is a false and fabricated deed and the same was never acted upon?

ix. Whether the plaintiffs are entitled for any other relief or reliefs as claimed?

The  plaintiffs  in  order  to  prove  their  case  has  adduced altogether six witnesses and also produced some documentary evidences which are as follows:-

Oral witnesses on behalf of plaintiffs

P.W.-1

Shyam Sundar Shah

P.W.-2

Radhey Shyam Srivastava

P.W.-3

Shesnath Singh

P.W.-4

Dineshwar Dwedi

P.W.-5

Abhay Singh

P.W.-6

Dipti Singh

Documentary evidences on behalf of plaintiffs

Exhibit-1

Rent receipt No. 106/248  dated 23.07.2000

Exhibit-1/1

Rent  Receipt  No.  1310226  dated

28.02.2007

Exhibit-1/2

Rent receipt No. 713256 dated

08.10.2008

Exhibit-2

Certified copy of sale deed No. 4080

dated 10.11.1982

Exhibit-3

Information slip in original form of  Khata No. 20 showing that plot No.  259 has 0.64 decimals of land.

The defendant in order to prove his case has adduced altogether six witnesses and also produced some documentary evidences which are as follows:-

Oral witnesses on behalf of defendant

D.W.-1

Surya Bhushan Jaiswal

D.W.-2

Roop Singh Soren

D.W.-3

Laljit Prasad Singh

D.W.-4

Jaglal Yadav

D.W.-5

Raghunath Mahato

D.W.-6

Mohan Jaiswal

Documentary evidences on behalf of defendant

Exhibit-A, A/1 to A/4

Rent receipt No. 376344, 376351, 253906, 347804 and 713355 respectively

Exhibit-A/5

Rent receipt No. 783798

Exhibit-B, B/1 & B/2

Sale Deed No. 1480, 2813 and 3388

Exhibit-C and C/1

Mutation Case No. 416/92-93 and 47/95-96

Exhibit-D

Certified copy of Khatian No. 20 of Village Balrampur.

Exhibit-E

Original notice issued by Anchal Office.

Findings of the learned trial court, in short, is as under: -

I. Issue No. 7 and 8

a. The plaintiffs have not able to prove that Jagannath Napit and his son Gopal Napit sold 0.62 decimals of land from 0.64 decimal of land of Khata No. 20, Plot No. 259.

b. As plaintiff is not able to produce and exhibit, different sale deed by which he could have been proved that 0.62 decimals of land was sold to different persons and only 0.20 decimals remained unsold so 0.071/2 decimals of land cannot be purchased from Gopal Napit as Gopal Napit is not himself in possession of the 0.071/2 decimals of land.

c. The plaintiffs have not able to prove that the sale deed No. 2813 dated 06.06.1992 is a false and fabricated sale deed and the same was never acted upon and also not able to prove that plaintiff have got right, title, interest over the suit land by sale deed No. 4080 dated 10.11.1982. Issues were decided negatively against the plaintiffs.

II. Issue No. 3 & 5

Suit land in schedule ‘B’ land is part and parcel of the suit land as described in the plaint. The description of the suit land is not vague. Suit is neither barred by law of limitation, specific relief act and under the provision of estoppel, waiver and acquiescence. Issue No. 3 & 5 were decided in favour of plaintiffs.

III. Issue No. 6- not pressed.

IV.  Issue No.4

The burden heavily lies on the plaintiff to prove this fact as it is a case of plaintiff that out of 0.64 decimals of land 0.62 decimals of land was sold so defendant cannot have purchased 0.09 decimals of land. The suit is barred by for want of necessary parties.

V. Issue No. 1, 2 & 9

On the basis of discussion made above, I find that the suit is maintainable in its present form and for the relief claimed and the plaintiffs have not got any valid cause of action to file this suit as plaintiffs are not entitled for any other relief or reliefs as claimed.

The learned 1st appellate court has framed following point for determination No.1:-

“I. Whether the plaintiffs/appellants have valid right, title and interest over the land in suit, as mentioned in schedule B of the plaint, by virtue of the registered sale deed No. 4080 dated 10.11.82 measuring an area of 9 decimals?

II. Whether the sale deed No. 2813 dated 6.6.92 of the respondent/defendant is a false and fabricated deed and the same was never acted upon and not binding against the plaintiffs/appellants?

III. Whether the suit is barred for want of necessary parties?

IV. Whether the appellants/plaintiffs are entitled for relief or reliefs as claimed for?”

Findings of the learned 1st appellate court, in short, is as follows: -

I.  Point of determination No. I & II

i. There is a dispute of only .02½ dec. of land regarding which the plaintiffs claim to have purchased the same forming a part of the total area of .09 dec. and on the contrary the defendant alleges that only .06½ dec. was sold to the mother of plaintiffs by Gunadhar Ghosh.

ii. It is an admitted position that .06½ dec. of land was sold to the defendant by Gunadhar Ghosh vide sale deed no. 1480 on 9.3.76.

iii. It is evident that the plaintiff as well as the defendant both have purchased some part of the suit property from Gunadhar Ghosh who himself had purchased from Jagannath Napit and his son Gopal Napit.

iv. From the evidence of the defendant, the sale deed executed by Gunadhar Ghosh in favour of Saraswati Devi, the mother of the plaintiffs, has not been disputed by the defendant rather only the area has been disputed.

v. The plaintiff is under an obligation to bring on the record all the necessary evidence in the form of oral or documentary, in order to establish its claim. I find that the plaintiff has filed a sale deed concerning their mother which is sale deed no. 4080 dt. 10.11.82. Neither the sale deed of Gunadhar Ghosh which was sold by Jagannath Napit vide sale deed no. 165 dt. 9.1.73 measuring an area of .09 dec. nor the sale deed sold by Gopal Napit to Gunadhar Ghosh vide registered sale deed no. 132 dt. 31.5.75 measuring an area of .13 dec. have been produced and brought on the record. It is claim of the plaintiff that in the year 1982 a purchase was made from Gunadhar Ghosh of .09 dec. of land which has been challenged by the defendant saying that only .06½ dec. of land under plot no. 259 appertaining to khata no. 20 village Balrampur was sold in favour of the defendant way back in the year 1973. When the title is claimed through a sale deed the plaintiff is required to file the sale deed of the vendor who had valid right over the suit property.

vi. The plaintiff P.W. 5 in para 37 has clearly admitted that the tube well and well were situated inside the boundary whereas, it is the specific case of the plaintiff that the eastern part of the purchased land was lying open with a future plan. The defendant has clearly contended that he had constructed a house and dug a well in his purchased area which includes the suit land as described in schedule B of the plaint and contended further that the plaintiff’s mother had already raised a boundary wall on the eastern side of the purchased area and eventually, the suit land as described in schedule B of the plaint is lying beyond their purchased land. It has been mentioned that the defendant has a passage in his purchased land falling on the eastern side of the plaintiff’s boundary which is used by the defendant for egress and ingress from the rasta on the north to the house and well situated in suit land towards deep south.

vii. The plaintiffs have not been able to properly establish the fact that Jagannath Napit and his son Gopal Napit had sold .62 dec. of land out of .64 dec. in Khata No. 20 appertaining to plot no. 259. Though the contention has been raised in the plaint about the sale by mentioning various sale deed no. allegedly executed in favour of several vendees however, that sale deeds mentioned in the plaint have not been brought before the court and marked in exhibit. By bringing those sale deeds on record and by exhibiting them the plaintiff could have proved that .62 dec. of land was sold to different persons and only .02 dec. land was remaining to be sold and consequently .07½ dec. of land could not have been purchased by the defendant from Gopal Napit.

viii. The plaintiff could not be able to prove that the schedule B land of the plaint which is the land in dispute measuring an area of .02 ½ dec. was their purchased land, which was allegedly purchased by their mother and therefore, I find that the plaintiffs could not be able to prove their right, title and interest over the schedule B land of the plaint.

ix. The plaintiffs could not be able to prove that sale deed no. 2813 dt. 6.6.92 is a false and fabricated deed of sale which was never acted upon.

x. The point for determination no. I and II were decided against the appellant/plaintiff and in favour of the respondent/defendant.

II. While deciding the point for determination no. III the suit was held to be bad for non-joinder of necessary parties. However, no substantial question of law has been framed on this point.

III. While deciding point of determination no. IV the plaintiffs have been held entitled to no relief and the appeal was dismissed.

Findings of this Court.

I.A. 11242 of 2025

This petition has been filed seeking to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure.

Through this I.A, the appellants are seeking leave of this Court to bring on record the certified copy of Registered Sale deed No. 165 dated 09.01.1973 stating that through this sale deed, the original raiyat Jagannath Napit sold 9 decimals of land to Gunadhar Ghosh, vendor, which was subsequently transferred to the plaintiff’s mother vide registered sale deed No. 4080 dated 10.11.1982 (exhibit-2).

It has been asserted that a petition under Order 41 Rule 27 of the CPC was filed at the 1st appellate stage in Title Appeal No. 40 of 2011 for marking certain document including the certified copy of registered sale deed No. 165 dated 09.01.1973 but the same was rejected vide order dated 29.05.2013. It has been stated that the application for additional evidence at the appellate stage was required to be considered at the final hearing of the appeal by the learned 1st appellate court but it was rejected vide order dated 29.05.2013.

This court finds that the plea of seeking additional evidence at the 1st appellate stage was rejected vide detailed order dated 29.05.2013 which has attained finality and in this second appeal, the plaintiffs are again seeking to adduce one amongst those documents, that is, Sale deed dated 09.01.1973 by filing an application under Order 41 Rule 27 of the CPC. The order passed by the learned 1st appellate court rejecting the additional evidence reveals that the appellants sought to file additional evidence with regard to sale of only 49 decimals of land in plot no. 259 which were sold by the original owner, Jagarnath Napit and his son Gopal Napit through registered sale deeds, although their specific case was that 62 decimals of land in plot no. 259 were sold to different person by original owner Jagannath Napit and Gopal Napit. The learned 1st appellate court has also observed that no sale deed regarding 13 decimals of land on the said plot was filed by the plaintiffs which was alleged to be executed by Gopal Napit.

This court finds that order dated 29.05.2013 has attained finality and further no substantial question of law has been framed with regards to rejection of prayer for additional evidence by the 1st appellate court and the learned 1st appellate court by a reasoned order rejected the additional evidence including the certified copy of the registered Sale deed dated 09.01.1973. This court is of the considered view that I.A. No. 11242 of 2025 filed under Order 41 Rule 27 of the CPC seeking to adduce Sale deed dated 09.01.1973 as additional evidence which has been rejected by the learned 1st appellate court cannot be allowed under the aforesaid facts and circumstances.

It is also observed that discussions while answering substantial questions of law would reveal that even if the sale deed no. 165 dated 09.01.1973 executed by Jaganath Napit in favour of Gunadhar Ghosh (vendor of the mother of the plaintiffs) is taken into consideration, the same does not help the appellants in any manner to establish their case that schedule B of the plaint was part of schedule A of the plaint. It also has no bearing on the challenge to the sale deed executed in favour of the defendant by Gopal Napit in the year 1992 alleging that Gopal Napit had remaining two decimals of land only and could not have sold 7 ½ decimal of land to the plaintiffs. It was for the plaintiffs to demonstrate that Gopal Napit had only 2 decimal of land which the plaintiffs have failed to demonstrate.

Accordingly, I.A. No. 11242 of 2025 is dismissed.

Both the substantial questions of law are taken together for consideration.

The plaintiffs prayed a declaration that the suit land in schedule B is part of the purchased land of plaintiff’s mother (schedule A property), confirmation of possession and also a declaration that sale deed no. 2813 dt. 06.06.1992 for 7 and ½ decimals of land in plot no 259 executed by Gopal Napit, son of the recorded tenant Jaganath Napit, is a false and fabricated which was never acted upon and not binding upon the plaintiffs since there was no existence of land of the said area mentioned in the sale deed no. 2813 dt. 06.06.1992. It was their specific case that Gopal Napit was left with only 2 decimals of land and could not have transferred more than what he possessed.

The plaintiffs, claimed rightful ownership, title, interest and possession over 9 decimals of land situated in Plot No. 259 purchased by their mother from Gunadhar Ghosh through a registered sale deed No. 4080 dated 10.11.1982 and the mother got the land mutated in her name after due enquiry in mutation case no. 280/1987–88 and constructed a house in the northern portion, erected boundaries on the west and south, and dug a well in the northeast portion.

It was the specific case of the plaintiffs that the eastern side of the land purchased vide sale deed of the year 1982 (exhibit-2) was left vacant for future use and no boundary was erected on the eastern side.

The plaintiffs emphasized that Jagannath Napit, the original owner of Plot No. 259 (total 64 decimals) sold most of the land by 1975 and after his death his son sold the remaining portion except 2 decimals. Therefore, plaintiffs argued that there was no land left which could have been sold in 1992 as claimed by the defendants. The details of the land sold by Jagarnath Napit and his son has been mentioned above but none of the sale deeds were exhibited by the plaintiffs to prove this fact and the only sale deed exhibited was sale deed in the name of the mother of the plaintiff of the year 1982 (exhibit-2) . It was the specific case of the plaintiffs that schedule B was a part of the land purchased by the mother of the plaintiffs by virtue of exhibit-2 in which they have dug a well and there was no boundary towards that side (eastern boundary).

It was their case that the defendant falsely claimed to have purchased 7½ decimals of land in 1992 as the vendor did not possess 7 and ½ decimals of land and had only 2 decimals left with him. Defendants initiated proceedings under Section 144 CrPC, leading to a demarcation case (No. 58/2006–07). In that proceeding, the official Amin, in the presence of local witnesses, confirmed that the plaintiffs were in possession of 9 decimals while the defendants held 15 decimals.

On  the  other  hand,  the  defendant  claimed  that  Gunadhar Ghosh could not have sold 9 dec. of land to the plaintiff’s mother as he himself was not in possession of the said area of the land in plot no. 259. The defendant contended that the defendant purchased 20 decimal of land in plot no. 259 through two vendors who had purchased from Jagannath Napit / his son Gopal Napit and also from Gopal Napit. The three deeds of the defendants have been mentioned above which were exhibited as exhibit B to B/2. The defendant has also denied the contention of the plaintiffs that they do not have a boundary wall on their eastern side and that the mutation in the name of the plaintiff’s mother was without any measurement was made by any government Amin. It was their specific case that there is a boundary constructed on the eastern side of the property and the suit property in schedule B is outside the boundary wall and is a part of the purchased land of the defendant in which they have dug a well and they use the property for their ingress and outgress.

The entire transaction relates to Khata No. 20 plot no. 259 total area 64 decimal originally belonging to Jagannath Napit who sold some portion and some portion was sold by his son Gopal Napit after death of his father . This court finds that the claim of the respective parties with respect to various transfers of the property in plot no 249 are as under:

Claim of plaintiffs

Claim of defendant

11.05.1971 -Jagannath Napit sold

9 decimals to R.C. Sharma  (deed not exhibited)

Not admitted by defendant

28.12.1971 -Jagannath Napit sold

9  decimals  to  B.  Mandal  (deed not exhibited)

Not admitted by defendant

09.01.1973 -Jagannath Napit sold

9 decimal to Gunadhar Ghosh (deed not exhibited)

1973 - Jagannath Napit sold 6 and

½ decimals  of land to Gunadhar Ghosh- and he came in actual possession of only 6 and ½ decimals   of   land   and   he transferred  only  what  he possessed  to  the  mother  of  the

plaintiffs

24.07.1973  -Gopal  Napit  sold  7 decimals  to  R.K.Singh  (deed  not

exhibited)

Not admitted by the defendant

22.04.1974  -Gopal  Napit  sold  5 decimals  to  Darshan  Singh  (deed

not exhibited)

Not admitted by the defendant

10.09.1974  -Gopal  Napit  sold  6 decimals to Ashwini Ghosh (deed not exhibited but admitted by

defendant)

Admitted  by  the  defendant  -as defendant  purchased  6  decimals from Ashwani Ghosh.

31.05.1975  -Gopal  Napit  sold  7 decimals to Gunadhar Ghosh - deed not exhibited.

1975  -Gopal  Napit  sold  13 decimals  to  Gunadhar  Ghosh. Area under sale as claimed by the plaintiffs  is  disputed  by  the

defendant – deed not exhibited.

31.05.1975  -Gopal  Napit  sold  7

decimals  to  R.C.  Sharma  (deed not exhibited)

Not admitted by the defendant

Gunadhar  Ghosh  had  16 decimals.

Not  admitted  by  the  defendant  . According   to   defendant, Gunadhar   Ghosh   had   19.5

decimals.

09.03.1976   -Gunadhar   Ghosh

sold   6.5   decimals   to   the defendant. (exhibit- B)

26.11.1994  -Ashwani Ghosh  sold 6  decimals  to  defendant  (exhibit-

B/2)

1982- Gunadhar Ghosh sold 9 decimals to the mother of the plaintiffs. (exhibit- 2)

Not  admitted  –  defendant  stated that the vendor had only 6 and ½

decimals in possession

1992  deed  of  the  defendant  was challenged by alleging that the vendor  namely  Gopal  Napit  had only 2 decimals of land  available

for sale.

1992 - Gopal Napit sold 7 and ½ decimals  to  the  defendant (exhibit- B/1).

Plaintiff acquired  total of 20 decimals  from  Gunadhar  Ghosh, Ashwani Ghosh  and Gopal  Napit vide  3  sale  deeds  -exhibit-  B  to

B/2.

This court finds that the various deeds by which Jagannath Napit and his Son Gopal Napit sold the property to various persons as claimed by the plaintiffs have not been exhibited by the plaintiff and thus it could not be proved as to how much property each purchaser acquired from Jagannath Napit/ Gopal Napit, except deed 10.09.1974, by which Gopal Napit sold 6 decimals to Ashwini Ghosh, as the defendant claimed to have purchased the same area of land from Ashwani Ghosh vide deed dated 26.11.1994 (exhibit- B/2) .

Further, plaintiffs claimed that Gunadhar Ghosh, the vendor of the mother of the plaintiffs, purchased 9 decimals from Jagannath Napit in the year 1973 but the deed was not exhibited; the defendant accepted that a deed was executed in 1973 but claimed that only 6 and ½ decimal was in possession of Gunadhar Ghosh which was sold to the mother of the plaintiffs. Similarly, plaintiff claimed that on 31.05.1975 Gopal Napit sold 7 decimals to Gunadhar Ghosh; the defendant admitted the sale but stated that the land was 13 decimal and Gunadhar Ghosh sold 6 and ½ decimals to defendant in the year 9.3.1976 (exhibit- B).

Further, plaintiffs claimed that only 2 decimals land were left with Gopal Napit and the defendant could not have purchased 7 and ½ decimals of land vide registered deed in the year 1992 from Gopal Napit. This was the sole ground for challenge to the sale deed of the year 1992.

The deeds on the basis of which the plaintiffs claimed that only 2 decimals of land were left with Gopal Napit were not exhibited in order to prove the case of the plaintiffs.

The plaintiffs claimed that Gunadhar Ghosh had 16 decimals of land and claimed to have purchased 9 decimals so sale by Gunadhar Ghosh to the extent of 6 and ½ decimals to the defendant cannot be disputed. This court also finds that plaintiffs claimed that only 2 decimals were left with Gopal Napit and the defendant could not have purchased 7 and ½ decimals of land vide registered deed in the year 1992 from Gopal Napit, but this was not proved by the plaintiffs as the fact that Gopal Napit was left only with 2 decimals of land was not proved by the plaintiffs in the absence of all the sale deeds on the basis of which it was claimed that the Jagannath Napit and Gopal Napit had sold 62 decimals of land out of 64 decimals in plot no 259.

The plaintiffs claimed to have purchased 9 decimals of land from Gunadhar Ghosh vide registered sale deed of the year 1982 (exhibit-2) and claimed that they did not erect the eastern boundary of the property and the schedule B property was a part of their purchased land. This has been disputed by the defendant and the learned 1st appellate court has referred to the evidence of the plaintiff P.W. 5 in para 37 has clearly admitted that the tube well and well were situated inside the boundary whereas, it is the specific case of the plaintiff that the eastern part of the purchased land was lying open with a future plan to hold that the eastern boundary of the purchased property of the plaintiffs was duly erected and the schedule B property was outside the boundary and was thus not a part of the purchased property of the plaintiffs (schedule A). While coming to the aforesaid finding the learned court has also taken into consideration the specific case of the defendant was that he had constructed a house and dug a well in his purchased area which includes the suit land as described in schedule B of the plaint and the plaintiff’s mother had already raised a boundary wall on the eastern side of the purchased area and eventually, the suit land as described in schedule B of the plaint was lying beyond their purchased land and the schedule B land is used by the defendant for egress and ingress from the rasta on the north to the house and well situated in suit land towards deep south. No perversity has been pointed out in the matter of appreciation of the aforesaid evidence and no such substantial question of law has been formulated by this court.

This court is of the considered view that even if it is assumed that the defendant had admitted the sale deed of the year 1973 executed by Gunadhar Ghosh, who is said to have purchased from Jagannath Napit to the extent of 9 decimals who in turn sold it to the mother of the plaintiffs, the same will not have any bearing in the matter, as the plaintiffs have failed to prove that schedule B property was a part of schedule A property. The plaintiffs have failed to prove that they were in possession of schedule B property and have also failed on their challenge to the sale deed in favour of the defendant of the year 1992 executed by Gopal Napit, son of Jagannath Napit which relates to sale of 7 and ½ decimals of land on the alleged ground that Gopal Napit had only 2 decimals of land left with him. The defendant has proved purchase of 20 decimals of land through three sale deeds which were duly exhibited. Both the parties have claimed mutation in their favour with respect to their purchased land but the same do not help the plaintiffs to demonstrate that the schedule B property was a part of schedule A property as the eastern wall of the property of the plaintiffs was held to be existing and the schedule B property was held to be falling outside the boundary wall.

In view of the aforesaid findings, this court is of the considered view that the learned 1st appellate court has not erred in coming to their findings inspite of the fact that the defendants had admitted the sale deed executed by Gunadhar Ghosh in favour of plaintiffs and inspite of holding that the original raiyat (Jagannath Napit & his son Gopal Napit) had sold some plots of land to Gunadhar Ghosh and inspite of the case of the defendant that Gunadhar Ghosh did not have possession of 9 decimals of land rather only 6 ½ decimals. This court is of the considered view that the plaintiffs have failed to prove their case and whether Gunadhar Ghosh was in possession of 9 decimals to be sold to the mother of the plaintiffs has no bearing in the case once the defendant proved title with respect to 20 decimals of land by virtue of registered sale deeds and the plaintiffs failed to prove that one of the sale deeds of the defendant executed by Gopal Napit was illegal for want of availability of land with Gopal Napit to the extent it was sold to the defendant in the year 1992. It is also held that the learned 1st appellate court has not erred in coming to its findings inspite of the admitted case of the defendant that Gunadhar Ghosh was left with 13 decimals of land out of his total land of 19 ½ decimals, after Gunadhar Ghosh sold 6 ½ decimals of land to defendant. In fact, the plaintiffs could not prove their title and possession with respect to the suit land in schedule B property and could not prove that schedule B was a part of the purchased land of the plaintiffs and it has come in evidence that the schedule B property was outside the eastern boundary of the property of the plaintiffs.

Accordingly, both the substantial questions of law are decided against the appellants (plaintiffs) and in favour of the respondents (defendants). Consequently, this appeal is dismissed.

It is important to note that both the courts have held that the suit was barred for non-joinder of necessary parties and there is no substantial question of law on this point .

Let this order be communicated to the court concerned through FAX.