Ramautar Prasad And Ors vs Sewak Sao And Ors

This second appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 by the appellants against the judgment and decree dated 08.09.2003 and 25.9.2003, respectively passed by the learned 1st Addl. District Judge, Hazaribagh in Title Appeal No. 33 of 1993. The first appellate court reversed the judgment and decree passed by the learned Sub-Judge-III, Hazaribagh in Title Suit No. 76/1984.

The plaintiffs are the appellants herein, who had filed a suit against the respondents praying therein for declaration of their title over the suit land and also for a declaration that sale deed No. 4561 dated 11.4.1980 executed by defendant No. 7 in favour of defendant No. 1, sale deed No. 960 dated 19.1.1984 executed by defendant No. 7 in favour of defendant Nos. 1 and 2 and the sale deed No. 959 dated 19.1.1984 executed by defendant No. 8 in favour of defendant Nos. 1 and 2 are void, illegal and the same does not confer any title in favour of defendant Nos. 1 and 2 and the same are fit to be cancelled.

The common ancestor of the plaintiffs and defendants (except defendant Nos. 1 and 2) was one Pritam Sao who died leaving beheld three sons namely, Rajdayal Sao, Nemchand Sao and Lato Sao. Ramdayal Sao died in the year 1918 leaving behind a son Nageshwar Sao, who also died leaving behind two sons Misri Sao (defendant No. 3) and Jatan Sao. Jatan Sao died leaving behind his widow (defendant No. 6) and two minor sons, who are defendant Nos. 4 and 5. Nemchand Sao also died leaving behind his widow in the year 1980. The land of Khata No. 2 of village Kariyatpur P.S. Ichak, District- Hazaribagh was recorded in the name of one Udo Barahi. The said Udo Barahi died issueless in the year 1923 and after his death, the Ex-landlord came in possession of the land. Another land was also abandoned and thus the landlord took possession of the same. Nemchand Sao in the year 1924 as karta of the family approached the Ex-landlord for settling the land of Khata No. 2 and 25. The Ex-landlord after receiving salami settled the land of Khata No. 2 and two plots of Khata No. 25 through registered patta dated 24.10.1924. After settlement, the settlee came in possession of the land in question and he continued to pay rent till his death. After his death, his legal heirs came in possession of the suit land. The wife of Nemchand and son of Ramdayal i.e. Nageshwar possessed the said land. It is the case of the plaintiffs that after the death of widow of Nemchand, his two daughters namely, Dhanwa and Sudamiya never possessed the land as they were residing in their in -laws houses in different districts. The joint family took possession and the interest of their mother, and defendant Nos. 3 to 6 and 9 and 10 possessed the suit land and Dhanwa and Sudamiya remained ousted from the suit land. It is the further case of the plaintiffs that Dhanwa and Sudamiya executed the sale deed in favour of defendant Nos. 1 and 2, though the said two daughters did not have any right, tittle and interest over the same. They claimed that the sale deed was merely a paper transaction which cannot confer any right and title upon the purchaser, nor the purchaser was put on possession.

The defendants appeared and denied the submission made in the plaint. They claimed that Nemchand Sao never entered in settlement of the land as a Karta rather he purchased the same by paying salami from his own income and not from the joint fund. They claimed that he died in the year 1958 and after the death of Nemchand, his wife Sampatiya paid rent of the suit land. By playing fraud, the other brothers and their heirs got their name incorporated in the rent receipt. It is the case of the defendant that Dhanwa and Sudamiya never abandoned their right, title and interest over the suit land rather they exercised their right and after the death of Nemchand, it was his wife Most. Sampatiya, Dhanwa and Sudamiya became the absolute owners of the property having 1/3rd share each. It is stated that they had right to sell the property and they exercised their right to sell the land by registered sale deed.

On the pleadings aforesaid, the trial court framed seven issues, out of which, issue Nos. (v) and (vi) are most important, which read as under:-

(v) Are the plaintiffs entitled to a declaration of their title over the suit lands?

(vi) Are the sale deeds in question valid documents?

The parties adduced oral and documentary evidences in support of their contentions.

The counsel for the appellants submits that the findings of the first appellate court and the trial court to the effect that the daughters of Most. Sampatiya i.e. Dhanwa and Sudamiya had title in the property is erroneous. He further submits that the lower appellate court decided the case in very cryptic manner, which could not have been taken into consideration. He also submits that the appellate court had failed to take into consideration that the daughters of Most. Sampatiya i.e. Dhanwa and Sudamiya never inherited the property rather they were ousted from the property. He further submits that the court has failed to appreciate all the documents in true prospective.

The trial court has held that admittedly Most. Sampatiya died in the year 1980 and it cannot be said that her two daughters Dhanwa and Sudamiya were ousted from the suit property. The trial court has held that the plea of ousting had to be raised and proved but the plaintiffs have failed to prove that these two ladies were ousted from the property. The court held that after the death of Most. Sampatiya her legal heirs Dhanwa and Sudamiya inherited the property jointly and it is held that they were found to be entitled to 1/3rd share in the suit property and remaining 2/3rd belongings to the descendants of Lato Sao and Ramdayal Sao. The Court ultimately held that the plaintiffs alongwith defendant Nos. 9 and 10 have got title over the suit property to the extent of 1/3rd share and defendant Nos. 3 and 6 to the extent of 1/3rd share and the heirs of Nemchand i.e. Dhanwa and Sudamiya have got title over the suit property to the extent of 1/3rd share. This means, the trial court had held that the plaintiffs do not have right, title and interest over the entire land in question but in respect of a portion. From the findings of the trial court, it is also clear that the property was joint property.

So far as the sale deed are concerned, the trial court has held that defendant Nos. 1 and 2 did never come in possession over the lands which they purchased through Exts. B and B1 and Exts. B and B1 are invalid documents, which needs to be set aside.

Aggrieved by the said judgment, the defendants preferred an Appeal under Section 96 of the Code of Civil Procedure before the first appellate Court. The appellate court considered the case of the parties and after independently going through the records has held that Dhanwa and Sudamiya had got the vendible title on the date of execution of the sale deed i.e. Ext. B series. The appellate court also found from the records that it is evident that there were several other properties of the parties in Mouza Dharmu. The trial court held that if any of the view is taken i.e. the suit property is joint or in alternative the suit property is self acquired then as per both the views, the daughters of Most. Sampatiya i.e. Dhanwa and Sudamiya have acquired right, title and interest over the property in question and thus, they can execute the sale deed and no ground arises to pass the order for cancelling the sale deed. The first appellate court thus had set aside the aforesaid finding. So far as calculation of share is concerned, the first appellate court held that since the suit was not a partition suit and thus same could be decided herein and liberty was given to the plaintiffs to take such recourse by filing a partition suit only and only in that suit and the share of Dhanwa and Sudamiya can be decided. The first appellate court has also held that as per the case of the plaintiffs, the property was joint family property then the entire property held by the family should be taken into a common pool and then only the share can be decided. In view of the said findings of fact, I find no illegality in the judgment of the first appellate court.

So far as the finding of the trial court that the Dhanwa and Sudamiya had got 1/3rd title over the land in question is concerned, the plaintiffs has not challenged the said finding by way of filing any appeal or cross appeal and thus, the plaintiffs now cannot say that Dhanwa and Sudamiya had got no title to execute the sale deed. This fact has been set at rest by the trial court which goes unchallenged. The appellate court has reversed the judgment of the trial court only to the extent by which, the trial court has declared the sale deed invalid. I find that the appellants have not brought any material or any question of law which if answers in favour of the appellants, which will reverse the judgment of the trial court. Further, the liberty was granted to the appellants to file a partition suit, which is correct approach of the appellate court.

Thus, there being no substantial question of law involved in this appeal. Accordingly, this appeal is dismissed.