Harish Chand vs Vasant Kumar

Heard on admission.

This appeal has been preferred against the judgment and decree passed by the Second Additional District Judge, Baloda Bazar in Civil Appeal No. 31A/2000 dated 29.09.2000 whereby the appeal preferred by the defendant has been dismissed.

Facts of the present case are that the plaintiff filed a suit for declaration of title and permanent injunction on the ground that he purchased the suit property comprising survey No. 316 ad measuring 1.858 hectares through a registered sale deed dated 23.08.1995 in consideration of Rs. 20,900/-. The sale deed was registered on 23.08.1995. The property was purchased from Pancham S/o Kalu through the power of attorney holder Harish Chand. It is further pleaded that the plaintiff is a contractor and he supplies clay soil to Tata Iron Steel Company Ltd. and a work order was issued in his favour on 15.06.1995. The lease was sanctioned in favour of the plaintiff by the Mines & Minerals Department and the same was effective from 05.10.1995 till 04.10.2000. It is further pleaded that defendant No. 1 is interfering in the peaceful possession of the plaintiff and thus suit was filed. The defendant No. 1 remained ex-parte. Learned trial court vide judgment dated 12.05.2000 held that witness to sale deed PW-2 Gowardhan has admitted his signature over the document but he has not stated anywhere that in his presence, vendor put his signature and on this ground alone the civil suit was dismissed. An appeal was preferred by the plaintiff and vide judgment dated 29.09.2000, the learned appellate court decreed the civil suit holding that a sale deed was executed in favour of the plaintiff and possession was also handed over. It is further held that defendant No. 1 remained ex-parte.

The appellant has moved an application under Order 41 Rule 27 of CPC whereby Rin Pustika has been filed. Learned counsel appearing for the appellant would argue that earlier the property was recorded in the name of Harishchand. He would further submit that the suit property is recorded in the name of Harishchand, Dukhiram and Kartikram whereas the name of the power of attorney holder is Hari Shankar as mentioned in the sale deed. He would also submit that no power of attorney was filed along with the plaint and sale deed, therefore, the execution of the sale deed becomes doubtful. He would further contend that defendant No. 1 is the title as well as possession holder of the property and no ancillary relief of possession has been sought by the plaintiff, therefore suit is liable to be dismissed however the learned trial Court committed an error of law.

Ms Nand Kumari Kashyap, learned counsel appearing for respondent No. 1 would submit that defendant No. 1 remained ex-parte before the trial court despite service of summons. She would further argue that the sale deed executed in favour of the plaintiff has not been challenged by defendant No.1 before the competent Court and thus it became final and binding. She would also argue that though the power of attorney was not attached along with the plaint, the sale deed was executed on the basis of the power of attorney and defendant No. 1 ought to have produced the same along with the application filed under Order 41 Rule 27 of CPC before this court. She would further contend that the learned trial Court dismissed the civil suit only on the ground that PW-2 Gowardhan has not stated that in his presence, the vendor put his signature. She would also contend that the learned first appellate court has passed a well-reasoned order.

Learned counsel for respondent No.2/State would support the contention of Ms. Nand Kumari Kashyap.

I have heard learned counsel appearing for the respective parties and perused the records.

From a perusal of records, it appears that the sale deed was executed in favour of the plaintiff on 23.08.1995 and possession was also handed over. From pleadings, it is quite vivid that the plaintiff was carrying out excavation of clay soil from suit land and at that time defendant No. 1 raised objections, therefore civil suit was filed which shows that the plaintiff was in possession at the relevant time though the issue of possession was not involved and no relief was sought with regard to possession. Defendant No. 1 did not prefer any application for setting aside ex-parte judgment and decree and he has not filed any civil suit for cancellation of the sale deed though he argues that the owner of the property bearing survey No. 316 is Harishchand and the sale deed executed by Pancham S/o Kalu in favour of the plaintiff was within his knowledge but he chose not to challenge the sale deed before the competent court. With regard to the application moved under Order 41 Rule 27 of CPC, property in Rin Pustika contains certain survey numbers recorded in the names of Harishchand, Dukhiram and Kartikram but mere filing of a copy of Rin Pustika does not confer any right or title, therefore in the opinion of this court such an application at this stage cannot be allowed. Consequently, the application filed under Order 41 Rule 27 of CPC is rejected.

The Hon’ble Supreme Court in the matter of Hasmat Ali Versus Amina Bibi & Ors reported in LL 2021 SC 689 in para 14 observed as under:-

“14. In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons. Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage. In our view, the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion.”

Taking into consideration the facts discussed above and the law laid down by the Hon’ble Supreme Court in the matter of Hasmat Ali (supra), I do not find any good ground to entertain this appeal. Accordingly, the appeal fails and is hereby dismissed.