Laxman Yadav vs Bandani Devi

S.N. Hussain, J.—Heard learned Counsel for the sole appellant and learned Counsel for the sole respondent.

This second appeal has been filed by the defendant-appellant-appellant challenging judgments and decree of both the learned courts below.

The matter arises out of Title Suit No. 170 of 1994 which was, filed by the sole plaintiff-respondent-respondent for declaration of her right, title and interest over the suit land and for confirmation of possession and in the alternative recovery of possession and other ancillary reliefs. During the pendency of the suit, the relief was amended by way of adding one more relief of recovery of possession claiming that the defendant-appellant had dispossessed the plaintiff-respondent during the pendency of the suit in February-March, 2003. The said suit was decreed on contest with cost by the learned Munsif, Banka vide his judgment and decree dated 12.01.2005.

Against the aforesaid judgment and decree of the trial court the defendant-appellant filed Title Appeal No. 27 of 2005 which was dismissed on contest with cost by the learned Additional District Judge-cum-Fast Track Court No. 1, Banka vide his judgment and decree dated 11.08.2000. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed by the defendant-appellant.

Learned Counsel for the defendant-appellant vehemently challenges the aforesaid judgments and decree of the learned courts below on several grounds which are as follows:

(i) Although plea of adverse possession was taken by the defendant, but neither any date of possession was provided, nor the courts below arrived at any date on which the defendant had encroached or trespassed or dispossessed, hence in a similar situation another Second Appeal No. 56 of 2008 had been admitted by this Court vide order dated 25.08.2008.

(ii) The registered deed of gift dated 19.06.1970 was said to have been executed by the admitted owner Fekan Kali in favour of Suryamukhi Devi and on that basis the title suit was filed on K 03.12.1994 and hence the learned courts below had wrongly non-suited the defendant merely on the ground that the said deed of gift was 30 years old and had a presumption of correctness u/s 90 of the Indian Evidence Act, 1872 although when the suit was filed the said deed of gift was only 24 years old. Learned Counsel for the appellant relied upon a decision of this Court in case of Haradhan Mahatha and Others Vs. Dukhu Mahatha

(iii) The aforesaid registered deed of gift dated 19.06.1970 was executed by Fekan Kali putting her left thumb impression, although she was a literate woman and had earlier executed a registered sale deed dated 13.05.1963 putting her signature thereon, hence the deed of gift was not fit to be relied upon.

(iv) Neither the plaintiff was examined in the suit, nor the attesting witness or the donor or the donee of the said registered deed of gift was examined and hence in view of Sections 68, 101 and 102 of the Evidence Act, the said deed was fit to be rejected.

(v) The entry in the Tenants Ledger Register being in the name of the defendant, there was a presumption of correctness of the said entry in the Tenants Ledger Register u/s 19 of the Bihar Tenants Moldings (Maintenance of Records), Act, 1973, but the learned courts below did not at all consider the said specific provision of law.

(vi) The defendant has been in adverse possession of the suit premises since 1970 and hence the suit filed by the plaintiff in the year 1994 was barred under the provision of the Limitation Act as the defendant had acquired title by adverse possession since he was found in possession of the suit properly by Halka Karmchari and Circle Officer in the year 198-1-85 (Ext.-B series)

The said claims of the appellants are contested by learned Counsel for the respondent and after considering the pleadings and materials on record as well as after hearing the rival contentions of both the parties this Court comes to the following findings.

The plaintiff from the beginning of the suit had been claiming that she was in possession of the suit land on the basis of registered sale deed dated 15.11.1983 executed by Suryamukhi Devi. It is also clear that the said Suryamukhi Devi was the donee of the admitted original owner Fekan Kali who had executed a registered deed of gift dated 19.06.1970 in her favour. However, by the subsequent amendment it was claimed by the plaintiff-respondent that she was dispossessed by the defendant-appellant on 20.02.2003 to 06.03.2003 and the said plea was found to be true by the learned courts below on appreciation of evidence furthermore, since it was the defendant-appellant who was claiming adverse possession and he was absolutely unable to provide the date on which he came in possession or the date on which his possession had become adverse, he cannot claim any benefit from the order dated 25.08.2008 passed by this Court in S.A. No. 58 of 2006 which was merely an interlocutory order with respect to a different case in which the party and the property was also different.

So far the provision of Section 90 of the Act is concerned, a bare perusal of the said provision shows that where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person''s handwriting, and, in the case of a document executed or attested, that was duly executed and attested by the persons by whom it purports to be executed and attested. Furthermore there is a plethora of decisions starting from a decision of the Privy Council in case of AIR 1936 15 (Privy Council) followed by other decisions including in case of Babu Nandan and Others Vs. The Board of Revenue and Others, and also in case of Pinnika Lakshmaiah Vs. Pinnika Venkateswarlu and Others, in which it had been specifically held that under the provision of Section 90 of the Evidence Act, the period of 30 years is to be reckoned from the date on which document,. Is tendered and not the date of filing it. In the said circumstances, the learned courts below were quite justified in presuming that the document executed by Fekan Kali was, in fact, executed by her in 1970 and the same was genuine because the said document was produced in court in the year 2004 when it was taken in evidence and on that date it was definitely much more than 30 years old.

So far the registered sale deed dated 13.05.1963 executed by Fekan Kali is concerned, it is not with respect to the suit properties and the defendant had relied upon that document only because the admitted owner Fekan Kali had signed the said document. Although a certified copy of the said document had been filed, but no such plea had been taken by the defendant in his pleadings, nor any such point had been raised by him at any stage due to which neither any such issue has-been framed, nor any finding with regard thereto was given by the courts below. It is quite strange that such a point for the first time is being raised at this stage in a second appeal. Furthermore, both the learned courts below had thoroughly considered the documents relied upon by the plaintiff and found them to be genuine and proper.

So far the claim of the defendant that neither the plaintiff, nor the donor, nor the donee, nor the attesting witness of the deed of gift of 19.06.1970 was examined is concerned, Sections 68, 101 and 102 of the Act cannot be relied upon in view of the specific provision of Section 90 of the Act as the said document was more than thirty years old from the date it was produced as an evidence. Furthermore, the son of the plaintiff had deposed as a witness on behalf of the plaintiff who was an old lady and had proved her pleadings which also fulfills the requirement of law.

So far the question of presumption of correctness of entries in Tenants'' Ledger Register under the provision of Section 19 of the Bihar Tenants'' Holdings (Maintenance of Records) Act, 1973 is concerned, it provides that every entry in the continuous Khatian and Tenants Ledger Register finally published under Clause (iii) of Sub-section (4) of Section 3 of the Act shall be an evidence of the matter, referred to in such entry. Hence, for the purposes of application of Section 19 the provision of Section 3 had to be fulfilled, but in the instant case, it was none of the case of any party that any record of right had been prepared or published in the name of the defendant under the provision of Section 3 of the Act, Hence, there can absolutely be no presumption of correctness of such entry. Furthermore, in view of overwhelming evidence adduced by the parties and fully considered by both the learned courts below, there was no occasion for considering Ext.-B series which included the report of the Halka Karmchari. In the said circumstances, this plea of the appellant has no legs to stand.

So far the question of adverse possession of the defendant-appellant since 1970 is concerned, he has admitted in paragraphs 5 and 6 of the written statement that he managed the entire affairs of the original owner Fekan Kali and she allowed him to be in possession of the suit properly and he throughout remained in possession as such. It was also claimed that by the alleged registered deed of gift dated 19.06.1970 Suryamukhi Devi neither acquired right, title, nor came in possession of the suit land, nor by registered sale deed dated 15.11.1983 executed by Suryamukhi Devi in favour of the plaintiff, the plaintiff acquired any right, title and possession in the suit land and Suryamukhi Devi and the plaintiff had no right, title or interest in the suit property. In the said circumstances, it is quite apparent that the defendant is claiming to be in permissive possession of the suit properties on the permission of Fekan Kali and hence he was clearly, according to his own ease, in permissive possession of the suit premises and thus he cannot claim adverse possession against Fckan Kali.

So far Surynmukhi Devi and the plaintiff are concerned, the defendant-appellant is denying their right, title and interest and hence he cannot claim any adverse possession against the plaintiff or her vendor, namely Suryamukhi Devi. Apart from the aforesaid facts and circumstances, both the learned courts below had concurrently found that the defendant was not in possession of the suit property and had come in possession only during the pendency of the suit when he dispossessed the plaintiff in the month of February-March, 2003. Reference in this regard may be made to a decision of Hon''ble Apex Court in case of T. Anjanappa and Others Vs. Somalingappa and Another, , in which it has been held that mere possession, however long, does not unnecessarily mean that it is adverse to the true owner as it really means a hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute the adverse possession, the possession proved must be adequate in continuity in publicity so as to show that it is adverse to the true owner.

So far the deeds relied upon by the plaintiff is concerned, they are registered deeds dated 19.06.1970 and 15.11.1983 and from the pleadings and evidence of the parties it is quite apparent that the defendant-appellant had full knowledge about the said deeds, but they were never challenged by them and furthermore both the aforesaid documents, after full consideration of the pleadings and evidence in support thereof, were found by the learned courts below to be genuine and valid conferring full right, title and possession to the plaintiff over the suit property.

In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below and all the points raised by the learned Counsel for the defendant-appellant are clearly frivolous, baseless and against the specific provisions of law. He has failed to make out any question of law much less any substantial one. Accordingly, this second appeal having no merit at all is dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure.