Prem Prakash Shrivastava vs Devendra Kumar Nayak

Both these appeals have been preferred by the Defendants under Section 96 of the Code of the Civil Procedure, 1908 (hereinafter referred to as

the CPC) questioning the legality and propriety of the judgment and decree dated 15.05.2015 passed in Civil Suit No. 7-A/2011, whereby the Plaintiff's

claim for declaration of title and injunction has been decreed. Since the judgment and decree under appeals is common, they are being disposed of by

this common judgment. The parties to this Appeals shall be referred hereinafter as per their description in the Court below.

Briefly stated the facts of the case are that a claim for declaration of title and injunction in a mandatory form for removal of the illegal construction

raised by the Defendants during pendency of suit was made by the Plaintiff with regard to the property in question bearing Kh.No.2/11d/6

admeasuring 0.101 hectare situated at village Baikunthpur, as described in red colour in plaint schedule â€" A, submitting, inter alia, that one Laxmin

Bai, D/o Samund Rawat was the owner of the property bearing Kh.No. 2/11d/1 admeasuring 0.444 hectare and from whom, he purchased a part of it,

i.e., 0.101 hectare under the registered deed of sale dated 15.06.1998 and which was numbered as Kh.No. 2/11d/6 admeasuring 0.101 hectare upon

mutation. According to the Plaintiff, the said Laxmin Bai by executing another registered deed of sale dated 08.07.2002 had sold Kh.No.4/1 area

0.271 hectare and Kh.No.5/1 area 0.065 hectare to defendant No.1 â€" Kailash Sharma, who in turn, had sold the part of it to Defendants No.2 & 3,

namely, Vijay Choudhary and Prem Prakash Shrivastava by executing two registered deeds of sale, both dated 15.10.2003. It is pleaded further that

the said Defendant Kailash Sharma, after purchasing the suit property, has created a forged document by incorporating the digit “4†under the

digit “5†by his hand-writing at page No.3 of it and converted the said Kh.No.5/1 into Kh.No.5/4/1 and by changing further the map of it, the

description of his (Plaintiff) land has been shown therein, which he purchased under the sale deed dated 15.06.1998. It is pleaded further that

Defendants No. 2 & 3, after purchasing the same from said Defendant No.1, started the construction work, and therefore, he has been constrained to

initiate the proceedings before the Tahsildar Raigarh for restraining them from raising the alleged work.

It is pleaded further that the alleged Kh.No.5/4/1 admeasuring 0.065 hectare as shown in sale deed dated 08.07.2002 was not recorded in the name

of his vendor Laxmin Bai and instead Kh.No.5/1 area 0.016 hectare was in fact recorded in the Register maintained by the Deputy Registrar,

Raigarh.

It is put forth further that the property, which was purchased by said Defendant Kailash Sharma under the sale deed dated 08.07.2002 was 1000

feet away from the main road and is covered by the agricultural lands, and therefore, the alleged Kh.No.5/4/1 and the map, as shown therein, is

apparently manipulated, created and, thus, a forged document. According to the further averments made in the plaint, the map attached with it was

recommended to be rectified by the Tahsildar, Raigarh on 01.08.2002 and was accordingly rectified on 25.10.2002 without providing any opportunity

of hearing to him. It is thus pleaded that the alleged rectification of map made in the alleged subsequent sale is apparently a manipulated and a

concocted document and is, therefore, null and void and the subsequent sales as made by him in favour of Defendants No. 2 & 3 on 15.10.2003 are

also null and void and/or not binding upon him.

While denying specifically the alleged allegations of manipulation in the sale deed dated 15.10.2003, it is pleaded by Defendant No.1 â€" Kailash

Sharma that prior to the alienation of the land in question to the Plaintiff, said Laxmin Bai had sold her property to three different persons and was not

in possession of the land bearing Kh.No. 2/11d/1 admeasuring 0.444 hectare, as alleged by the Plaintiff. It is stated further that the Plaintiff has no

right to question the sale executed in his favour by said Laxmin Bai on 08.07.2002. It is contended further that the alleged dispute of identify of land

could be decided only by way of demarcation and the claim as made is barred by jurisdiction under Section 257 of the Chhattisgarh Land Revenue

Code, 1959 (hereinafter referred to as the Code of 1959).

While reiterating the aforesaid defence as taken by Defendant No.1, Defendants No. 2 & 3 pleaded that they are the bona fide purchasers and

have raised alleged construction after taking the loan from the Bank. It is stated further that the claim as made without impleading the necessary party

is liable to be dismissed.

The Plaintiff has examined himself as P.W.1, Shastri Kumar Pradhan (Patwari) and Shivnandan Sahu (Revenue Inspector) as P.Ws.2 & 3, in

support of his claim, while none was examined by the Defendants in rebuttal.

The trial Court, after considering the evidence led by the Plaintiff, arrived at a conclusion that by virtue of the registered deed of sale dated

15.06.1998 (Ex.P.4), the Plaintiff has acquired his ownership with regard to the property in question bearing Kh.No. 2/11d/6 admeasuring 0.101

hectare adjacent to eastern side of the main road and held further that the description of the said property purchased by the Plaintiff has been shown

illegally in the map attached with Kh.No.5/4/1. In consequence, the registered deed of sale dated 08.07.2002 (Ex.P.5) executed in favour of

Defendant No.1 Kailash Sharma and the subsequent sales (Ex.P.6 & Ex.P.7) as made by him in favour of Defendant No.2- Vijay Choudhary and

Defendant No.3 - Prem Prakash are null and void and not binding upon the Plaintiff. It held further that Defendants No. 2 & 3 have raised the alleged

construction over the property in question during the pendency of the suit and the Plaintiff is thus held to be entitled to get the vacant possession of it

after its removal.

Learned counsel appearing for the appellants/Defendants submits that the finding of the trial Court holding that Defendant No.1 Kailash Sharma

has created a forged document by interpolating the digit “4†under “5†in page No.3 of the alleged sale deed dated 08.07.2002 (Ex.P.5) by his

own hand and thereby converted the same as Kh.No.5/4/1 instead of Kh.No.5/1 by describing the alleged property of the Plaintiff in the map attached

with it is apparently contrary to law. It is contended further that the Plaintiff being a stranger had no right whatsoever to question the validity of the

same and contended further that since the dispute is of the identity of the land in question, and therefore, in absence of demarcation, the Court below

ought not to have decreed the suit as such. He also moved an application on 18.01.2021 under Order 41 Rule 27 of CPC seeking production of

additional documentary evidence in order to show that the Plaintiff's vendor was not possessed the land, i.e., 0.101 hectare, which was purchased by

the Plaintiff under sale deed dated 15.06.1998 (Ex.P.4), and therefore, the Plaintiff's claim is liable to be dismissed.

On the other hand, learned counsel appearing for respondent No.1/Plaintiff has supported the judgment and decree under appeal as passed by the

trial Court.

I have heard learned counsel appearing for the parties and perused the entire record carefully.

First of all, it is necessary to deal with the application filed on 18.01.2021 (marked as I.A.No.05/2021) under Order 41 Rule 27 of CPC by the

Appellant â€" Vijay Choudhary in F.A.No. 200/2015 seeking production of certified copies of the documents known as the land record showing the

acquisition of 0.057 hectares of land out of the original Kh.No.11/1d/1 admeasuring 0.444 hectares held by one Hiralal who was the brother of

Plaintiff's vendor, namely, Smt. Laxmin Bai; copies of registered deeds of sale, dated 15.04.1994, 14.03.1995 and 06.01.1996, purported to have been

executed by said Smt. Laxmin Bai in favour of Shiv Kumari and others with regard to 0.121 hectares along with 14 feet, which was left for passage,

likewise in favour of Saraswati Bai with regard to 0.048 hectares along with 8 feet x 66 feet was left for passage and in favour of Ramesh with

regard to 0.105 hectares, out of the alleged Kh.No.11/1d/1 where 12 feet was left for passage, respectively. Certified copies of those documents have

been sought to be produced in order to demonstrate the facts that after the alienation of these piece of lands, the total land left with the Plaintiff's

vendor Laxmin Bai was 0.053 hectare, and therefore, she had no right to execute the sale deed (Ex.P.4) with regard to 0.101 hectares out of Kh.No.

11/1d/1 admeasuring 0.444 hectares. According to the Appellant, these documents were given to the counsel during trial, but the same could not be

filed before the trial Court. It appears that the requisite plea in this regard was made by Defendants in their written statements, therefore, in my

opinion, these documents, marked as Annexures “A†and “B†alone are required to be taken on record in order to provide substantial justice

to the parties, while rest of the documents attached with this application are refused.

Accordingly, the application, marked as I.A.No.05/2021, is hereby allowed in part to the extent as observed herein above.

It is to be noted here further that during trial, the Plaintiff had amended the plaint vide order dated 30.03.2005 whereby the relief of removal of

superstructure, alleged to have been raised by Defendants No. 2 & 3, was claimed. However, neither the claim was properly valued nor the proper

Court fee, required to be paid under the law, was paid nor the suitable direction was issued by the trial Court in this regard. At this juncture, it is to be

noted the principles laid down by the Supreme Court in the matter of Tajinder Singh Ghambhir and another vs. Gurpreet Singh and others reported in

(2014) 10 SCC 702 wherein it has been observed at paragraph 8 as under:-

“8. The scheme of the above provisions is clear. It casts duty on the court to determine as to whether or not court fee paid on the plaint is deficient

and if the court fee is found to be deficient, then give an opportunity to the plaintiff to make up such deficiency within the time that may be fixed by

the court. The important thread that runs through sub- sections (2) and (3) of Section 6 of 1870 Act is that for payment of court fee, time must be

granted by the court and if despite the order of the court, deficient court fee is not paid, then consequence as provided therein must follow.â€​

In the light of the aforesaid principles laid down by the Supreme Court, it is clear that the duty is cast upon the trial Court to determine as to

whether or not court fee paid on the plaint is deficient and if the court fee is found to be deficient, then court is bound to give an opportunity to the

Plaintiff to make up such deficiency within the time which may be fixed by the Court.

Since the Court below has failed to issue a suitable direction in the light of the provision prescribed under Section 6 of the Act, 1870, the

Plaintiff/Respondent No.1 is, therefore, directed to make a suitable application before the trial Court in order to correct the valuation of the suit in its

proper manner and also for depositing the requisite court fee, if any, thereon. It is directed further that in the event of moving such an application, the

trial Court shall decide the same in accordance with law..

In view of the aforesaid background, the matter is remitted to the learned Second Additional District Judge, Raigarh and/or the concerned Court

with a direction to record the evidence based upon the aforesaid documentary evidence alone after providing sufficient and reasonable opportunity of

hearing to the parties in accordance with law and then return the evidence to this Court together with its findings thereon and the reason therefor. The

trial Court shall also decide the application, if filed, with regard to the aforesaid observation and shall specify the time for payment of deficient court

fee, if found to be paid by the Plaintiff.

Registry is directed to transmit the entire file/record to the concerned Court below while retaining the file of this appeal awaiting the evidence and

findings of the Court below, as observed herein above and list the appeal thereafter for hearing.