Mahesh Singh and Others vs Md. Kaisar Jamal and Others

Mungeshwar Sahoo, J.—The defendants have filed this first appeal against the judgment and decree dated 13.8.1985 passed by the learned Subordinate Judge, Biharsarif in Title Suit No. 11 of 1979 whereby the court below decreed the plaintiffs respondent''s suit for partition. The plaintiffs respondents filed the aforesaid suit for partition of their share to the extent of 4 acres 24 decimal from 33 acres and 13 decimal. The plaintiffs respondents claimed the aforesaid relief alleging that 33 acres 13 decimal land was the khud kast and bakast land of the Malik Habibur Rahman and others. Habibur Rahman had 5 anas 6 dam 13 kauri and 6 bauri share in Tauji No. 13249 at the time of cadastral survey. At that time the khata No. 18 was under Thika. On the death of Habibur Rahman his entire share devolved on his father Mohd. Ishaque who sold 1 ana 6 dam Milkiyat interest including khud kast and bakast land to Mohd. Samshul Haque by registered sale deed dated 2.9.1929 who came in joint possession of the land. Subsequently, Samshul Haque further purchased 15 dam and odd Malkiyat interest from Most. Nasihan by registered sale deed dated 16.3.1931. Accordingly, he acquired 2 anas 5 dam Malkiyat interest in the tauji including khud kast and bakast land as such he had 4 acres 24 decimal interest in the khud kast and bakast land of khata No. 18.

The further case is that the said Samshul Haque made permanent oral settlement of 4 acres 13 decimal out of his khud kast and bakast land in the year 1943 in favour of his Sarhu and Samdhi namely Abdul Gaffar. In proof of the settlement delivery of possession was given and Hukumnama was written on 5.6.1943. Since then the name of Abdul Gaffar was entered in the Zamabandi and rent receipts were granted to him. Subsequently Samshul Haque went to Pakistan giving power of attorney to Abdul Gaffar. Abdul Gaffar died in 1971 leaving behind the daughters and grand-daughters who are the plaintiffs. On the death of Abdul Gaffar, the plaintiffs came in possession and are coming in joint possession over all the properties left by Abdul Gaffar and are in joint possession with the defendants.

The defendant Nos. 1 to 5 filed joint contesting written statement. The defendant Nos. 6 to 9 filed separate written statement but did not contest. According to the contesting defendants appellants khata no. 18 was in possession of Ram Tahal Singh since before cadastral survey. After his death his brothers Puneet Singh and Rohan Singh came in possession. They acquired the Milkiyat interest along with the khud kast of Mohd. Ishaque to the extent of 5 anas 6 dam, 13 kauri, 6 bauri, 13 Kauri and 10 rauri out of 6 anas in village Gauspur, Goraur in tauzi no. 13249 under registered sale deed dated 22.6.1929. According to the defendants there was no settlement of 4 acres 24 dam by the Malik in favour of Abdul Gaffar and Abdul Gaffar never came in possession. There was no unity of title and possession and still there is no unity of title and possession between the parties. If any paper of settlement is filed it is forged document. Ram Tahal Singh remained in possession without any interruption and openly to the knowledge of entire locality including the plaintiffs as such the title of the defendant has been perfected by adverse possession. The names of these defendants have been entered in register-II. Mohd. Ishaque never sold his Milkiyat interest including khud kast and bakast to Mohd. Samshul Haque. Hukumatnama dated 5.6.1943 is forged and fabricated.

On the basis of the aforesaid pleadings of the parties the learned court below framed the following issues.

i. Whether the suit as framed is maintainable ?

ii. Whether the plaintiffs have got a valid cause of action for the suit ?

iii. Whether there is unity of title and community of possession between the plaintiffs and defendants in respect of the suit lands ?

iv. Whether the plaintiffs are entitled to a decree for partition, if so, to what extent ?

v. To what relief or reliefs, if any, are the plaintiffs entitled ?

After trial the court below recorded the finding that the settlement made by the landlord Most. Shamshul Haque in favour of Mohd. Abbdul Gaffar for 4 acres 24 decimal under khata No. 18 Tauji no. 13249 is valid. The court below also recorded a finding that the parties have got unity of title and possession and the defendants are not in exclusive possession over the entire property.

The learned counsel for the appellants Mr. Ajeet Kumar Singh appearing on behalf of the appellants submitted that the learned court below has not properly appreciated the evidence. The appellants have produced reliable evidence in support of their case that they are in possession of the entire property and the appellants have perfected their title by adverse possession. According to the learned counsel the appellants were exercising their possession in denial of the title of the plaintiffs openly and continuously within the knowledge of the plaintiffs therefore, the finding of the court below that there is unity of title and possession is not sustainable. The learned counsel further submitted that the defendants have produced register-II which are running in the name of the defendants to show that they are not in possession of the property. According to the learned counsel for the appellants the Hukumnama produced by the plaintiffs respondents is forged and likewise the sale deed is proper transaction and the purchaser never came in possession or joint possession of the property therefore, the plaintiffs respondents are not entitled to any decree for partition. On these grounds, the learned counsel submitted that the impugned judgment and decrees are liable to be set aside.

On the other hand, the learned counsel Mr. Abbas Haidar appearing on behalf of the respondents submitted that the plaintiffs are not claiming their title and possession over the entire property. The plaintiffs admitted that the defendants are in possession jointly with the plaintiffs but the plaintiffs have got share measuring 4 acres 24 decimal only out of 33 acres 13 decimal. The documentary evidence or the register II produced by the appellants is not for whole area measuring 33 acres 13 decimal. So far adverse possession is concerned, the learned counsel submitted that in fact the appellants were given Thika of the land and the appellants on the basis of that Thika came in possession over the land of the plaintiffs respondents therefore, now they cannot be allowed to say that they perfected their title by adverse possession because the parties are co-sharer on their respective purchased land. On these grounds, the learned counsel submitted that the first appeal is liable to be dismissed with cost.

In view of the above contentions of the parties the point arises for consideration in this appeal is as to whether the plaintiffs have been able to prove their unity of title and possession over 4 acres 24 decimals as such are entitled for partition of the said area out of 33 acres 13 decimals or the defendants have been able to prove their title by adverse possession and whether the impugned judgment and decree are sustainable in the eye of law ?

In support of their respective cases, the parties have adduced oral as well as documentary evidence. The plaintiff''s claim is that Habibur Rahman and others were the Malik of Tauji no. 13249 measuring 33 acres 13 decimal. Habibur Rahman had got 5 anas 6 dam 13 kauri and 6 bauri interest in the tauji and in the cadastral survey khata No. 18 was under Thika and shown as such in khatiyan. On his death his father Mohd. Ishaque sold 1 ana 6 dam to Mohd. Shamshul Haque by registered sale deed dated 2.9.1929 and the purchaser came in joint possession. Subsequently, Shamshul Haque also purchased 15 dam and odd Milkiyat interest in the said Tauji from Nasihan by registered sale deed dated 16.3.1931. Thus Shamshul acquired 4 acres 24 decimal i.e. 2 ana 5 dam out of 16 anas in 33 acres 13 decimal. The said Samshul Haque made settlement in favour of Abdul Gaffar in 1943 and the plaintiffs are the heirs of Abdul Gaffar. The defendants denied the sale made by Mohd. Ishaque and also denied the possession of the purchasers and also denied the settlement by the Shamshul Haque in favour of Abdul Gaffar.

PW 2 has stated about the joint cultivating possession of the plaintiffs. Likewise PW 3 and PW 6 have stated about the possession of the appellants. PW 7 is plaintiff Kaisar Jamal himself, he has fully stated and supported his pleadings in the plaint.

The plaintiffs have produced the registered sale deed dated 3.9.1929 and 16.3.1931 which have been marked as Exhibit 4-4/A. So far these sale deeds are concerned, the defendants only denied that no sale was made by Mohd. Ishaque to Shamshul Haque and by Nasihan. Except denial nothing had been brought on record to show that the said documents are forged documents.

In the case of Vimal Chand Ghevarchand Jain and Others Vs. Ramakant Eknath Jajoo, the Hon''ble Court has held that a registered sale deed is presumed to be valid and genuine document unless the contrary is proved by the persons who challenges the said registered deed. In the case of Prem Singh and Others Vs. Birbal and Others, also the Apex Court has held that there is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of prove thus would be on a person who leads evidence to rebut the presumption.

In the case of Sita Saran Prasad vs. Manorama Devi 2012 (2) BLJ 165 this Court has held that a registered sale deed is presumed to have been validly executed with all its legal consequence and such document cannot be said to be void ab initio and there cannot be presumptive invalidity attached to such a transaction. Such document remains valid on principle that apparent state of affairs is real state of affairs, until facts invalidating the same are established. In the present case at our hand as sated above nothing has been produced to rebut the presumption of validity of these registered sale deed. Moreover, these registered sale deed are more than 30 years old document. The plaintiffs have also proved the Zamabandi returned which has been marked as Ext.-3 and the Hukumnama and rent receipt which has been marked as Ext.-2. Power of attorney has been proved as Ext.-1/A. To prove the case of the plaintiff that the defendant ancestors were the Thikadar the plaintiffs have produced a registered Patta of Thika dated 1.9.1924 which has been marked as Ext. 6 and this shows that Rohan Singh the ancestor of defendants executed this patta in favour of Mohd. Ishaque and according to this deed he took thika of 8 anas and 10 pai Milkiat interest including khud kast and bakast in Tauji No. 13249 and 3 ana 10 dam in Tauji no. 1006 for Rs. 100/- for a period of 9 years from 1332 fasli to 1340 fasli. So far this document is concerned also the only defence of the defendants and the submission of the appellants is to the effect that it is forged document. In view of the above settled proposition of law laid down by the Apex Court as well as by this Court by mere submission the presumption of valid registered sale deed cannot be rebutted. The other witnesses examined by the plaintiffs are formal witnesses.

On the contrary, the defendants have produced registered sale deed dated 21.6.1929 Ext. B. By these sale deeds Mohd. Ashfaqe son of Mohd. Ishaque sold 5 annas 6 dams 13 kauri 6 bauri 13 fauri and 10 rauri to Rohan Singh and Puneet Singh. Ext. G the Khatiyan shows that it was Thika with respect to khata No. 18. The defendants have also produced register II, Ext.- E series which are in the name of Rukmani Devi, Dhanki Singh, Razo Kuer which have been marked as Ext. E to E/2. These documents have been produced in proof of possession of the entire land measuring 33 acres 13 decimal but on calculation the area of these register-II it is much less than 33 acres 13 decimal. Ext. A series are the rent receipt in the name of the persons in whose name Register-II has been opened. The defendants have also adduced oral evidences. The witnesses have only stated the possession of the defendants and denied the possession of the plaintiffs. The witnesses also denied joint possession of the plaintiffs. Therefore, the possession or not possession cannot be decided on the basis of only oral evidences particularly when both the parties have adduced documentary evidences in support of their title.

From the registered sale deeds produced by the plaintiffs and the defendants i.e. Ext. 4 and 4 - A, the registered sale deeds of the plaintiffs and Ext. B the registered sale deed of the defendants it is clear that the parties are claiming title on the basis of these sale deeds and the sale deeds of the defendants also do not cover the entire 16 anas share. The plaintiffs are claiming only 4 acres 24 decimals out of 33 acres 13 decimal. The plaintiffs are not denying the defendant''s claim on the rest of the land. According to the learned counsel for the plaintiffs respondents the defendants might have purchased the share from the other but they have not purchased the entire share i.e. 16 anas share. According to the learned counsel possession follows title the documents produced i.e. Ext. E series do not cover the entire area measuring 33 acres 13 decimal.

From the above discussion oral as well as the documentary evidence it is clear that the plaintiffs have been able to prove their title over 4 acres 24 decimal which was settled by the owner in favour of Abdul Gaffar.

The learned counsel for the appellants submitted that the Sada Hukumnama is not admissible. So far this submission is concerned it may be mentioned here that the lands are agricultural land and possession was delivered coupled with the grant of Hukumnama. Even if for creating title the Hukumnama is not admissible but then it can be looked into for collateral purposes i.e. for the purpose of determining the possession. I therefore, find that the plaintiffs have also been able to prove their joint possession.

The learned counsel for the appellants submitted that the appellants have perfected their title by adverse possession but the court below has not considered this aspect of the matter. So far this submission is concerned, also I find no merit because the only case of the defendants appellants is that they are in possession of the entire properties since long within the knowledge of the plaintiffs without any interruption. It is settled principles of law that mere possession how so long it may be, it will never constitute adverse possession. We have seen above that the defendants ancestor came in possession on the basis of Ext. 6. Therefore, their possession was as Thikadar. There is no pleading or evidence produced to the effect as to when they started denying the title of the owner and as such they have acquired title by adverse possession.

In the case of P.T. Munichikkanna Reddy and Others Vs. Revamma and Others, the Hon''ble Supreme Court has held that adverse possession is based on the theory of presumption that the owner has abandoned the property to the adverse predecessor on the acquiescence of the owner to the hostile act and claims of the person in possession. For constituting adverse possession it is not sufficient to prove possession only. Their must be animus possidandi also that is there must not be only intention to possess the property but there must also be intention to dispossess the real owner.

In the case of State of Haryana Vs. Mukesh Kumar and Others, the Apex Court again considering all the earlier decisions on the point of adverse possession has held that a person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British, it is important to note that these days English law as amended and changed substantially to reflect these changes, particularly in the light of the view that property is a human right adopted by the European commission. At paragraph 44 the Hon''ble Supreme Court has held has follows:

Adverse possession allows a trespasser-a person guilty of a tort, or even a crime, in the eye of law-to again legal title to land which he has illegally possessed for 12 year. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its the stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change.

In view of the above settled proposition of law laid down by the Apex Court, I find that the appellants have also failed to prove their title by adverse possession. Moreover, when the plaintiffs respondents have been able to prove unity of title and possession there is no question of adverse possession arises. The learned court below has therefore rightly recorded that the plaintiffs have been able to prove their title and possession jointly with the defendants and has rightly decreed the plaintiff''s suit for partition. In the result, I find no merit in this first appeal. Accordingly, this first appeal is dismissed with cost of Rs. 5000/- to be paid by the appellants to plaintiffs respondents within two months, failing which the plaintiffs are at liberty to realize the same through the process of the court.