Ram Krishna Murari vs Arjun Turi

Gautam Kumar Choudhary, J

Heard learned counsel for the parties.

The instant Second Appeal has been filed by the defendant/appellant against the judgment and decree passed by learned Principal District Judge, Koderma in Title Appeal No.07 of 2013 affirming the judgment and decree passed by learned Civil Judge (Senior Division) No.1, Koderma in Title Suit No.38 of 2003.

Parties shall be referred to by the original placement in the suit and will include the legal representative(s) who have been substituted at different stages.

Plaintiff filed the suit for the following relief(s):-

(i) Declaration that the sale deed No.5889 dated 30.06.1989 was never executed by the plaintiff no.1 in favour of the defendant and the said sale deed was fraudulent and void?

(ii) Cancellation of the sale deed dated 30.06.1989?

(iii) The title of the plaintiff on the said land be declared and the possession be confirmed.

The suit land is with respect to 19 ½ decimals of land, fully detailed in the schedule of the plaint. The suit land was recorded in the name of the father of plaintiff no.1-Arjun Turi and after his death, he inherited the same and became the absolute owner of it and came in cultivating possession of the same. In the month of March, 2002, his wife/ plaintiff no.2, namely, Kanti Devi came to know from the villagers that her husband had sold his entire share of the suit land measuring an area of 19 ½ decimals of Khata No.59 of

Mouza Purnadih and when she inquired from her husband, it was informed by him that he had not executed the sale deed. It further transpired that land, in question had also been mutated on 17.01.2002 vide Mutation Case No.745/2001-02.

It is contended that plaintiff no.1 had not received any consideration amount with respect to the fictitious sale deed.

After the knowledge of the said fraud, plaintiffs requested the defendant to set aside the sale-deed in respect of the suit land on 10.05.2001, but defendant did not agree, hence, the case was filed.

Cause of action arose in the Month of March, 2002 when for the first time, the plaintiff could detect the fraud of the defendant.

CASE OF THE DEFENDANT

The case of the defendant is that the suit was barred by law of limitation and adverse possession. It has been denied and disputed that the said sale-deed was vitiated by fraud.

It is contended that the defendant had purchased the land validly on payment of full consideration amount and it was duly mutated in his name.

Co-vendors namely Munshi Turia and Suraj Turia have not been impleaded as party(s) in the suit though they were necessary party(s).

On the basis of the pleadings of the parties, the following main issues were framed by the learned trial Court.

(ii) Whether the suit suffer from the law of limitation?

(iv) Whether sale deed No. 5889 dated 30.06.1989 is valid, legal, operative and binding upon plaintiffs?

(v) Whether the plaintiff has valid right, title, interest and possession over the suit property?

(vi) Whether the defendant by practicing fraud and mis-representation got the sale deed No. 5889 executed in his favour.

Learned trial Court decreed the suit by recording finding of fact in favour of the plaintiffs on the following ground:

Firstly, D.W.2-Jagdish Pandit in paras 11 and 22 of his cross examination stated that at the time of registration of sale deed bearing No. 5889 dated 30.06.1989, he was there and plaintiff was there as a witness (identifier) from whom defendant took thumb impression as vendor.

Secondly, execution of the sale deed was in violation of Section 46(1)(b) of the Chhotnagpur Tenancy Act as the vendor was of Schedule

Caste and sale deed was executed without having permission from the Deputy Commissioner.

Thirdly, there was delay of fourteen years in getting said land mutated.

The learned First Appellate Court concurred with the finding of the trial Court.

This appeal has been admitted to be heard on the following substantial questions of law:

(i) Whether findings of the courts below that sale is in violation of Section 46(1)(b) of the CNT Act is beyond the pleadings of the parties?

(ii) Whether in absence of any issue as to whether the sale is in violation of 46(1)(b) of the CNT Act, the courts below could have given a finding that sale is bad and is hit by Section 16(1) of the CNT Act?

(iii) Whether Exhibit-D the partnership agreement can be construed to be an admission of sale of the property by the plaintiffs to the defendant?

ARGUMENT ON BEHALF OF APPELLANT

It is argued on behalf of the appellant on the substantial question of law Nos. 1 and 2 that with respect to sale being in violation of Section 46(1)(b) of the CNT Act, there was no averment made in the pleadings by the plaintiff and no issue was framed. Under the circumstances, it was not permissible for the learned trial Court to have travelled beyond the pleadings and record a finding with respect to sale being in violation of Section 46(1)(b) of the CNT Act. Plaintiffs had no opportunity to lead evidence on this issue. The plaint is completely silent about the caste of the parties. Under the circumstance, it is only by conjecture, the trial Court as well as Appellate Court held that Plaintiff was member Schedule Caste and the sale was in violation of the statutory provisions of CNT Act.

With regard to the third substantial question of law, it is argued that registered partnership agreement (Ext.D), executed by the plaintiff Nos. 1 and 2 with defendant in 2006 was an admission in pleading. In the said partnership deed at para-1 there is emphatic admission regarding valid execution of the sale deed by the plaintiff No. 1 in favour of the defendant.

With regard to findings of the both courts below regarding deposition of the D.W.2 at para-22, it is submitted that such stray statement made in the cross-examination cannot be regarded as an admission in view of the ratio laid down by the Hon’ble Supreme Court in AIR 1966 SC 405 para-19.

It is also argued that once a sale deed is executed, there is presumption of its knowledge to the vendor. Reliance is placed on 1995 SCC Online Pat 331 para 21 (Chhatu Paswan and Anr. Vs. Salim Mian & Ors). It is also argued that as per mandate of Section 46(1)(b) of CNT Act, plaintiff has failed to plead and prove his membership to scheduled caste. There is no pleading on the point of caste and no issue was even framed whether he belongs to scheduled caste or not. It is further argued that there is no clarity in evidence that the plaintiff belongs to scheduled caste which will be apparent from Ext.2 which is the records of right of revisional survey in which the name of the plaintiff and his father has been recorded with surname Turiya and the caste has also been referred to as Turiya. In the partnership deed (Ext.D) the caste has again been referred to as Turiya and the same is with the caste of the plaintiff (Ext.B). In the plaint, his surname is Turi, whereas in the documentary evidence his surname stands as Turiya.

ARGUMENT ON BEHALF OF RESPONDENT

It is argued by the learned counsel for the respondents that the pleadings are on questions of fact and not on question of law. On the legal principle, it is trite to say that a pure question of law can be examined at any stage including by the Hon’ble Supreme Court held in K. Lubna & Ors. vs. Beevi & Ors. passed in Civil Appeal Nos.2442-2443 of 2011 and State of Rajasthan vs. Rao Raja Kalyan Singh, 1972 (4) SCC 165.

It is further submitted that there is specific mandate of law under Section 46(3) of the C. N. T. Act that no transfer in contravention of sub-section (1) shall be registered or shall be in any way recognized as valid in any Court, in exercise of civil, criminal or revenue jurisdiction. On this point, reliance is placed on 2004(4) JCR 535 Jhr. (DB) Para 21 (State of Jharkhand vs. Arjun Das.

It is further argued that on the point of fraud, there is specific admission in the deposition of D.W.2 at Para-22 that the plaintiff(s) had gone for becoming a witness to the said registered sale-deed and his LTI was taken by making a misrepresentation that he was a witness although he was made a vendor in that case.

With regard to the 3rd substantial question of law, it is argued that P.W.1 has specifically deposed in para 25 that he got knowledge of execution of sale deed in 1999. It is further deposed by him in para 39 that he was vendor of the sale deed and he got to know about this on obtaining the certified copy of the sale deed.

Under Section 230 of CNT Act, the provision of Indian Limitation Act has been made to be applicable so far as they are not inconsistent with this Act regarding the suits, appeals and applications. It is also argued that specific timeframe has been laid down under Section 46 (4) of the CNT Act for restoration of land which has been transferred in contravention of the provision of this Act in which the period of limitation is three years. Therefore, the suit was barred by limitation as prescribed under Article 59 of the Limitation Act read with Section 230 of the CNT Act.

FINDING

This second appeal arises from a suit filed in 2003 seeking to challenge a registered sale deed executed 14 years ago in 1989 with respect to suit property measuring total area 0.19 ½ acre in plot nos.2840, 2841 and 2842 fully detailed in the plaint.

In order to appreciate case of the parties, at the outset, list of date would be useful:

30.06.1989-Date of Execution of Sale Deeds (Exhibit B & B/1) executed by Arjun Turi (Plaintiff), Munsi Turi and Suraj Turi.

17.01.2002-Mutation of the land in favour of defendant allowed on.

08.12.2003-Date of filing of Suit.

21.06.2006-Date of Execution of registered Partnership agreement between the appellant Ram Krishna Murari Sao (defendant) and the plaintiffs admitting the execution of the sale deed.

06.02.2013-Judgment delivered by the trial court.

23.04.2015-First Appeal being Title Appeal No.7/2013 dismissed.

As per para 12 of the plaint, the land was agricultural in nature and the consideration money in the sale deed has been stated to be Rs.3000/-.

The particulars as given in the plaint are not sufficient for the reason that it was not an exclusive sale deed executed by Arjun Turi (Plaintiff) in favour of the defendant, but the other co-vendors have not challenged the said sale deeds and have also not been examined as witness on behalf of the plaintiff to support the averment that Arjun Turi was induced to become an identifier to the sale deeds to be executed by them.

Furthermore, deed of partnership bearing no.3356 dated 21.06.2006 between the plaintiffs and defendant which admits to the due execution of the sale deed by none other than the plaintiffs themselves is in contradiction to the plea of sale deed having been executed by fraud.

Under Section 17 of the Evidence Act, an admission is statement oral or documentary or in electronic form which suggests any inference as to any fact in issue or relevant fact. An admission in the legal sense is not always admission in the popular sense i.e. statement which at the time it was made, was against the real or apparent interest of the party. When such an admission states fact against the interest of the maker, in such cases, the admission is used as evidence to the truth of its contents. An admission in pleading and admission in evidence are two different things. Provision dealing with admission in pleadings is provided under Order XII and Order VIII Rule 5 of the CPC whereas admission in evidence is under Section 17 – 20 of the Evidence Act. Evidentiary admission are receivable at the trial and are rebuttable in nature.

In the present case, the learned courts below have failed to consider the evidentiary admission in the form of registered partition deed. It also failed to take into account the fact that other two co-vendors namely Munsi and Suraj Turi has not assailed the sale deed, nor have been examined as a witness by the plaintiffs in support of the contention that the sale deed was vitiated by fraud. There is a presumption in favour of due execution of a registered sale deed. It has been held in 2009 (5) SCC 713 Vimal Chand Ghevar Chand Jain & Ors. Vrs. Ramakanth Eknath Jadoo that there is presumption of genuineness in favour of registered document and heavy burden lies on the party who assails such a document. This is also an authority on the point that the title of the property passes with the execution of the registered sale deed irrespective of the fact whether the payment has been made or not.

Under the circumstance and for the reasons discussed above, the substantial question of law No.III is answered in favour of defendant that partnership agreement can be construed to be an admission of due execution of sale of property by the plaintiff no. 1.

Now coming to substantial question nos. I and II, this Court is of the view that the factual premise to trigger the statutory bar under Section 46 of the CNT Act need to be pleaded and proved by evidence. In the present case, there is no pleading to that effect to give an opportunity to the respondent to rebut the same. No issue was framed and consequently, no evidence was led on the point. Despite the absence of the pleading, issues, and evidence on the point, the courts below have returned a finding that the execution of sale deed was barred under the provision of C.N.T. Act. Such an approach is impermissible in view of the settled principles of pleadings and evidence. Both these substantial questions are answered in favour of the defendants/appellants. On account of the real estate price rise, this is yet another instance of claim being made to disown the duly executed registered sale deed after about thirteen years of its execution.

The judgment and decree passed by the trial Court and first appellate is not sustainable, is accordingly set aside.

Second appeal is allowed.

Pending I.A., if any, stands disposed of.