Anil Kumar vs Dharma Sheela Bai

Heard on admission.

This appeal has been preferred by the plaintiffs under Section 100 of the Code of Civil Procedure, 1908, questioning the legality and propriety of the judgment and decree dated 19.06.2015 passed by the Additional District Judge, Khairagarh, District Rajnandgaon (C.G.) in Civil Appeal No.16-A/2011, whereby, the learned appellate Court, while affirming the judgment and decree dated 28.09.2011 passed by the Civil Judge, Class-2, Chhuikhadan, District Rajnandgaon in Civil Suit No.128-A/2008, has dismissed the appeal. The parties to this appeal shall be referred hereinafter as per their descriptions before the Court below

The facts, which are essential for adjudication of this appeal, are that a suit for declaration of title and injunction was made by the plaintiffs claiming ownership with regard to the property in question described in plaint Schedule 'A' and also to the effect that the entries made in favour of defendants No. 2 to 9 based upon the registered deed of sales as executed in their favour by defendant No.1 are not binding upon them. According to the plaintiffs, the property in question bearing Kh.No.178/1 admeasuring 41.54 acres (New numbers have been shown in the plaint Schedule 'A') situated at village Pendarvani, Tahsil Khairagarh, District Durg (Now Rajnandgaon) was held by their father, namely, Madho Prasad. He purchased the said property along with others from one Sonkunwar under the registered deed of sale, dated 13.07.1957. He was, thus, the owner of the suit property and, without any sale consideration had executed a registered deed of sale on 25.09.1959 in favour of his sister, namely, Smt. Dharmasheela only by love and affection. It is pleaded further that on 25.04.1991, said Smt. Dharmasheela has relinquished her interest in favour of the plaintiffs while putting them in possession thereof and, are continuously in possession, as such acquired their interest by way of adverse possession as well. They are, therefore, entitled to be declared as owner of the property in question as described in plaint Schedule 'A'. Further contention of the plaintiffs is that despite execution of the alleged deed of relinquishment, part of Kh.No.329/1 total admeasuring 1.14 acres was sold to defendants No. 3 to 9, by executing a different sales, therefore, no right, title or interest would confer upon them.

While contesting the aforesaid claim, it was stated by defendant No.1 – Smt. Dharmasheela in her written statement that by virtue of a registered deed of sale, dated 25.09.1959, the property in question bearing Kh.No. 178/1 admeasuring 41.54 acres was purchased from her brother, namely, Madho Prasad and the revenue papers were thereafter recorded in her name. It is pleaded further that by different deed of sales, all executed on 15.05.2001, she sold the part of suit property, i.e., Kh.No.329/1, to defendants 3 to 9 and their names were also recorded in revenue papers, therefore, the claim as made by the plaintiffs deserves to be dismissed.

Defendant No.2 – Smt. Pushpa Bai, in her written statement, while supporting the claim of the plaintiffs, has stated that out of the property in question, 11.38 acres of land was purchased by her from her sister, namely, Smt. Dharmasheela and thereafter, she has relinquished her interest on 27.01.2004 in favour of the plaintiffs, and therefore, they may be declared the owner of the said properties.

The defendants No.3 to 9, while contesting the plaintiffs' claim, have pleaded specifically that they purchased the property in question, i.e., Kh.No.329/1 of the suit land, from defendant No.1 under different registered deed of sales, all executed on 15.05.2001 and, as such they have acquired their valid right, title and interest over it and, the revenue papers have accordingly been mutated in their names, therefore, the plaintiffs' claim is liable to be dismissed.

What is, therefore, reflected from a bare perusal of the aforesaid pleadings that the property in question, i.e., Kh.No.178/1 admeasuring 41.54 acres (New numbers shown in plaint schedule 'A') along with other properties were purchased by Madho Prasad, the predecessor-in-interest of the plaintiffs, from one Sonkunwar under the registered deed of sale dated 13.07.1957 (Ex.P.1), who in turn, has sold the suit land, i.e., Kh.No.178/1 admeasuring 41.54 acres to his sister, namely, Smt. Dharmasheela, defendant No.1, while executing a registered deed of sale (Ex.P.2) in her favour on 25.09.1959 and her name was thereafter recorded in revenue papers as reflected from Adhikar Abhilekh, marked as Ex.P.6. It appears further that after purchasing the property in question as such, said Smt. Dharmasheela has sold the part of Kh.No.329/1 admeasuing 0.11 acres to defendant No.3, namely, Chhavilal and his brother Khoman, under the registered deed of sale dated 15.05.2001 (Ex.D.1) while putting them in possession thereof and, likewise, by executing a registered deed of sale dated 15.05.2001 (Ex.D.2) , she sold the part of Kh.No.329/1 admeasuring 0.11 acres to defendant No.4, namely, Shatruhan and, executed another registered deed of sale (Ex.D.3) on the same day with regard to part of said Kh.No.329/1 admeasuring 0.20 acres to defendant No.5, namely, Anuj. Similarly, defendant No.1 – Smt. Dharmasheela has sold the part of Kh.No.329/1 admeasuring 0.11 acres to defendant No.6 – Uram under the registered deed of sale dated 15.05.2001 (Ex.D.4) while putting him in possession thereof and, likewise on the same day, she sold the part of its land bearing Kh.No.329/1 admeasuring 0.11 acres to defendant No.7 – Bharat vide Ex.D.5. She also executed a registered deed of sale on the same day with regard to part of Kh.No.329 admeasuring 0.50 acres of land, in favour of defendant No.8 – Ramesh, defendant No.9 – Mukesh and their brothers, namely, Khomlal and Khemu, all sons of Manglu vide registered deed of sale dated 15.05.2001 (Ex.D.6). It, thus, appears that part of the suit land as described in plaint Schedule 'A' has been sold by defendant No.1 – Smt. Dharmasheela to different defendants, i.e., defendants No. 3 to 9 under the registered deeds of sales, all executed on 15.05.2001 (Ex.D.1 to Ex.D.6). It appears further that defendants No. 3 to 9, after purchasing the property in question as such, have obtained revenue papers mutated in their favour and which was found to be questioned by the plaintiffs before the Sub-Divisional Officer (Revenue), where, it was refused by the said authority vide its order dated 31.03.2003 as reflected from orders marked as Ex.P.19 to Ex.P.24.

Now, in so far as the application filed by the plaintiffs under Order 41 Rule 27 of the Code of Civil Procedure, 1908 before the lower appellate Court seeking production of birth certificate of said defendant No.1 – Smt. Dharmasheela in order to show that when the property in question was purchased by her from her brother, namely, Madho Prasad, she was minor, and therefore, she has not acquired any interest by virtue of the alleged registered deed of sale executed on 25.09.1959 (Ex.P.2) is, however, noted to be rejected as no plea in this regard was made by them in their plaint, and therefore, the lower appellate Court has rightly refused the same, so as to call for any interference in this appeal.

That apart, the plaintiffs' claim appears to be based mainly upon a deed of relinquishment, purported to have been executed by defendant No.1 – Smt. Dharmasheela in their favour on 25.04.1991 (Ex.P.4). However, a bare perusal of the said document would show that it is an unregistered one, and therefore, it cannot be said that the property in question, i.e., Kh.No.178/1 admeasuring 41.54 acres was relinquished by her in their favour. In view thereof, it cannot be said that the plaintiffs have acquired their right, title or interest based upon the alleged deed of relinquishment, nor could it be said that they have acquired their interest by way of adverse possession, as both the pleas, i.e., claiming on the basis of plea of relinquishment as well as based on the plea of adverse possession, are mutually destructive with each other. Even otherwise, in absence of specific plea of ouster, it cannot be said that the plaintiffs have acquired their interest by way of adverse possession. Thus, from stretch of any imagination, it cannot be said that the plaintiffs have acquired their interest over the property in question as described in plaint Schedule 'A'.

In view of aforesaid factual background, the Courts below have rightly arrived at a conclusion that defendant No.1 – Smt. Dharmasheela has acquired her valid right, title and interest by virtue of a registered deed of sale dated 25.09.1959 (Ex.P.2) from her brother, namely, Madho Prasad and thereafter has sold the part of it to defendants No. 3 to 9 , as observed herein above, vide registered deed of sales (Ex.D.1 to Ex.D.6) and the plaintiffs have, therefore, rightly been disentitled to be the owner of the property in question. The findings so recorded by the Courts below, thus, deserve to be and are hereby affirmed.

The appeal, being devoid of merit is accordingly dismissed at the admission stage itself.

No order as to costs.