Ramesh Chand Sharma vs Purshottam Kamriya and Another

Rohit Arya, J.—The instance appeal u/s 100 of CPC is directed against the concurrent judgment and decree dated 2.12.2011 rendered in Civil Appeal No. 29A/2011 affirming the judgment and decree dated 20.5.2011 passed in Civil Suit No. 62A/09. Facts relevant for the disposal of this Appeal are that appellants - plaintiffs filed a suit for declaration of title and permanent injunction in respect of open land ad-measuring 96.4 x 70 sq. ft towards east of the house situated in Kishanganj Bohdapur, District Gwalior. The aforesaid open land is hereinafter referred the suit property.

The suit is primarily based on the facts that the father of the appellant No. 1 and husband of appellant No. 2, Ram Gopal Sharma had purchased the suit land from its owner Madari son of Kapoor Baksh on 07.12.1926 and possession was handed over to him. Thereafter, on 20.10.1962, he had obtained permission of building construction from Gram Panchayat Shankarpur. However, due to paucity of fund Ram Gopal Sharma could not construct the house during his life time. He had executed the Will in favour of his son appellant No. 1 on 16.7.1975. Ram Gopal Sharma had died on 4.7.1976. On such premise, appellant No. 1 claimed to be exclusive owner and possession of the suit land. He also averred that in Municipal Corporation, Gwalior his name was also recorded in property tax register. Another set of facts averred in the plaint are that one Bhagwan Singh Kushwah was inducted as tenant in the house. However, one Nadariya and his wife Kalavati in collusion with Bhagwan Singh Kushwah claimed him to be their tenant. Under the circumstances appellant No. 2 filed a civil suit No. 22A/1996 before the IInd Civil Judge Class-2 and during the pendency of the suit there was an agreement dated 30.4.1998 among four namely appellant No. 2, Nadariya, his wife Kalavati and Bhagwan Singh Kushwah wherein the ownership and possession of appellant No. 2 on the house was accepted and accordingly decree was obtained. However, as defendant Bhagwan Singh Kushwah attempted to encroach upon the suit land, hence, the instant suit for declaration and permanent injunction in respect of suit land was filed by the appellants. It is pertinent to mention at this juncture that the suit as aforesaid was in respect of house and not the suit land.

Defendants denied the plaint averments and submitted that alleged sale deed dated 07.12.1926 related to the house that too prepared fraudulently on forged stamps paper. Further it was submitted that there was no Gram Panchayat Shankarpur at the relevant time when permission of construction is alleged to have been sought. As regards the suit land, it was submitted that the same is of their ownership and they are using for grazing ground for their cattle for a long period.

The trial Court framed as many as 8 issues and inter-alia, issues No. 1 and 2 related firstly, as to whether the suit land is owned by the appellant No. 1 and secondly as to whether the suit land was purchased by late Ram Gopal Sharma, father of appellant No. 1 and husband of appellant No. 2 from Madari Son of Kapoor Baksh through sale deed dated 7.12.1926.

Parties led evidence.

The trial Court while addressing upon issues No. 1 and 2 has recorded the findings of facts that appellants � plaintiffs failed to prove that the suit land was purchased by late Ram Gopal Sharma from Madari Son of Kapoor Baksh. According to Ex. P/1 (un-registered document) dated 7.12.1926 though it is shown that seller was Madari Son of Kapoor Baksh and is said to have sold the suit land i.e. part of survey No. 123/1 Kishanbagh Gurja however, appellant failed to produce any document, including revenue document to demonstrate the ownership of Madari Son of Kapoor Baksh over the suit land. Besides no document, much less, revenue record was produced by appellant to show the ownership and possession over the suit land. Instead in para 16 of the cross-examination the appellant No. 1 (PW-1) has admitted that he has not produced any document to fortify the fact that Madari Son of Kapoor Baksh was owner and in possession of the suit property. Further in para 55 he has stated that from the date of institution of suit till date he has not produced any document as regards payment of property tax regarding the suit land. Under circumstances, the trial Court held that the appellants have failed to establish their title and possession over the suit land while discussing the entire evidence brought on record.

The trial Court answering the issue No. 3 relating to factum of execution of "Will" dated 16.7.1975 by late Ram Gopal Sharma in favour of appellant-plaintiff No. 1 held that since no benefit can be said to have accrued to the appellant No. 1 in respect of suit property for the reasons that the appellants failed to produce title and possession of Madari Son of Kapoor Baksh over the suit land and therefore, on the principle "Nemo Dat Qui non habet" no one can transfer title and right better than what he possessed. By the aforesaid "Will" dated 16.7.11975, no title over the suit land can be transferred in favour of Appellant No. 1. The trial Court applying the principle laid down in Patel Joitaram Kalidas and Others Vs. Spl. Land Acquisition Officer and Another, in support of its finding and conclusion to the effect since the plaintiffs � appellants failed to establish title or possession of his predecessor and therefore, he was bound to be non-suited. Trial Court further held that since the appellants - plaintiffs failed to prove their legal right and possession were not entitled to possession of the suit property. Accordingly, the trial Court dismissed the suit.

The First Appellate Court, confirmed the finding and conclusion of the trial Court and held (1) the appellants failed to prove title over the suit land, (2) the appellants failed to establish their possession over the suit land, (3) appellants failed to produce any documentary evidence and revenue record in support of their case and even if "Will" dated 16.7.1975 executed by late Ram Gopal Sharma in favour of appellant No. 1 that will not help the appellant to establish their title over the suit land in view of the fact that appellants failed to produce ownership of their predecessor and title and possession of Madari Son of Kapoor Baksh by any documentary evidence, in view of the aforesaid, the appeal was dismissed.

After having gone through the record of the case and judgments rendered by the Courts below, this Court is of the view that the appeal is devoid of substance and sans merits.

Learned counsel for the appellants inter-alia contended that the appellants had better title to the suit land in contrast to defendants, who did not disclose the source of title and therefore, Courts below have committed error having not drawn inference against the defendants. Learned counsel for the appellants relied upon the judgments Iswar Bhai C. Patel @ Bachu Bhai Patel Vs. Harihar Behera and Another, and Vidhyadhar Vs. Manikrao and Another, .

Heard and considered the submissions.

Both the contentions raised are misconceived and deserve to be rejected. It is well settled law that weakness of the defendants'' title to the suit property can by no stretch of imagination establish the plaintiffs'' title, as both the Court below have rightly recorded concurrent finding of facts that plaintiffs � appellants failed to establish their title an possession of suit property and also that of predecessor Madari Son of Kapoor Baksh over the suit land by documentary evidence and revenue record. As such, Madari Son of Kapoor Baksh having no right could not have transferred suit land in favour of late Ram Gopal Sharma father of the appellant No. and husband of appellant No. 2. Besides, the appellants have also failed to establish their possession over the suit property by an documentary evidence, including revenue record. It is settle preposition of law. I may profitable referred to judgment of the Supreme Court in Civil Appeal No. 3267/1982 Ram Das Vs. Salim Ahmed and another report in 1999 (1) Vidhi Bhasvar 89, wherein their lordship then held:

It, however, appears to us that although the High Court indicated in the impugned judgment that the defendant''s claim of easement right and also the claim of title by way of adverse possession could not be accepted, such weakness in the defendant''s title to the suit property cannot establish the plaintiff''s title. The High Court has failed to consider the specific finding made by the lower appellant Court that the plaintiff had failed to establish the plaintiff''s title. It may be noted that the plaintiff was not entitled to get declaration of title if such title could not be established by the plaintiff by leading convincing evidence. The lower appellate Court had considered the evidence in detail and by giving cogent reasons had come to the finding that the plaintiff failed to establish the title to the property. Such finding was not reversed by the High Court by indicating any reason for such reversal but indicating the weakness of the defendant''s title the plaintiff''s suit was decreed. Even if it is assumed that the property in question was bequeathed by Bandi Janna by executing the Will, the title to the suit property cannot be declared in favour of the plaintiff unless the title of the executor of the Will is fully established. In the aforesaid facts, the impugned judgment of the High Court cannot be sustained and the same is therefore set aside by allowing this appeal. The judgment and decree of the lower appellate Court are restored. There will be, however, no order as to costs.

In view of the aforesaid, appeal being bereft of merits and no substantial question of law arises, hence, dismissed.