Shanti Devi vs Kundan Lal And Others

Sharad Kumar Sharma, J

The present second appeal has been preferred by the plaintiff/appellant being aggrieved against the judgment and decree dated 22.7.2019 as passed by the Additional District Judge, Rudraprayag, in Civil Appeal No. 3 of 2019 'Shanti Devi vs. Kundan Lal and Others', whereby, while dismissing the appeal of the plaintiff (appellant herein), it has resulted into consequential affirmation of the judgment and decree of the learned Civil Judge (S.D.), Rudraprayag dated 14.05.2019 as rendered in Civil Suit No. 11 of 2016 'Shanti Devi vs. Kundan Lal and Others'.

The brief facts, which involves for consideration before this Court is that the plaintiff (appellant herein) had instituted a Civil Suit by way of Suit No. 11 of 2016 on 15.02.2016 praying for a relief for grant of a decree of declaring the sale deed dated 18.09.2006 as allegedly executed in relation to the property as described in the plaint to be lying in Khata Khatoni No. 50, Khet No. 779 in relation to an area of 0.060 hectares situated in village Geed Bhuter, Tilwara, District Rudrapayrag as to be void.

As per the plaint's averments, she has contended that taking advantage of the mental disorder of defendant no. 4 (her son) the defendant nos. 1 to 3 had got the sale deed dated 18.09.2006 executed in their favour and since it is contended by the plaintiff/appellant that the sale deed will have no legal sanctity in the eyes of law for the reason that according to her case in the plaint at the time of executing the sale deed the defendant no. 4, who is the son of the plaintiff who has executed the sale deed, he was not in a fit mental condition and, hence, she has contended that a fraud has been played upon her by getting the sale deed executed from a mentally disordered son, i.e. defendant no. 4. Thus, deed will have no significance and legal existence in the eyes of law.

On institution of the Suit on 15.02.2016, the notices were issued to the defendants, and in response thereto, the defendant no. 4 has filed his written statement being written statement paper no. 61 ka and has supported the case of the plaintiff/appellant and has contended before the court below that a conspiracy was hatched by the defendant nos. 1 to 3 as against the plaintiff/appellant in getting the sale deed executed in their favour, and as a consequence thereto, after the execution of the registered sale deed, it is an admitted case of the plaintiff that a mutation proceedings was drawn by the purchasers/defendants nos. 1 to 3, to be recorded in pursuance to the sale deed in question and that has ultimately culminated in favour of defendant nos. 1 to 3 by the Court of Tehsildar, which on a challenge being given in the appeal under Section 210 of the Land Revenue Act, 1901 by the plaintiff/appellant has been affirmed by the Appellate Court. It is an admitted case of the plaintiff (appellant herein) that as against the Appellate Court's order of mutation of record of rights, i.e. khatoni, in favour of defendant nos. 1 to 3, after the dismissal of the appeal, the said order was not put to challenge by invoking the provisions contained under Section 219 of the Land Revenue Act by way of filing of revision and, hence, consequently, since it was the appeal of the plaintiff (appellant herein), which was dismissed and no revision has been preferred by her, the entries recorded as a consequence of the sale deed in favour of purchaser it stood affirmed and, hence, the sale deed by virtue of which the right was conferred, i.e. dated 18.9.2006, and which was ultimately utilized as to be valid document to be recorded in the revenue records by an order dated 31.10.2006, it could be said that a valid title was conferred upon defendant nos. 1 to 3 and since the mutation proceedings has been decided against the plaintiff/appellant and the said consequential entry made in the revenue records has attained finality and, hence, they are the entries would be determined as to be true in the light of the provisions contained under Section 44 of the Land Revenue Act, which is quoted hereunder:

"44. Presumption as to entries in the annual register. - All entries in the annual register shall, until contrary is proved, be presumed to be true."

A second written statement was independently filed by the defendant nos. 1 to 3, i.e. the purchasers, which was a written statement by way of paper no. 30A and they have supported their case from the admitted facts that they are the bonafide purchasers by virtue of the sale deed dated 18.09.2006, executed by defendant no. 4 and they further denied the theory with regards to the mental disorder of defendant no. 4, which has been contended by the plaintiff/appellant, with which the respondent no. 4, who was son of the plaintiff, was alleged to be suffering, and who had executed the sale deed, which the plaintiff/appellant admittedly claims that it was jointly recorded by defendant no. 4 in the revenue records at the time when the sale deed was executed.

Based on the rival pleadings raised by the parties, the learned Trial Court has framed the issues as quoted hereunder:

"(i) क्या वादी ग्राम गीड़ भुतेर तहसील व जिला रूद्रप्रयाग के खाता खतौनी संख्या 50 के फसली वर्ष 1413-1418 खेत संख्या 779 रकबा 0.060 है0 भूमि पर काबिज चले आ रहे हैं?

(ii) क्या प्रतिवादी संख्या 1, 2 व 3 द्वारा उपरोक्त प्रश्नगत भूमि पर जबरदस्ती कब्जा करने का प्रयास किया जा रहा है? यदि हां तो प्रभाव?

(iii) क्या प्रतिवादी संख्या 1, 2 व 3 के खेत संख्या 779 रकबा 0.026 है0 भूमि को क्रय करने के बाद उसमें काबिज चले आ रहे हैं?

(iv) क्या प्रतिवादीगण द्वारा दौराने वाद वादी के स्वामित्व व कब्जे के ग्राम गीड़ भूतेर रूद्रप्रयाग के खाता संख्या 50 के खसरा संख्या 779 मध्ये 0.026 हे0 भूमि पर अवैध रूप से कब्जा कर भवन निर्माण किया गया है?

(v) क्या प्रतिवादी संख्या 4 द्वारा प्रतिवादी संख्या 1 व 2 के पक्ष में ग्राम गीड़ भुतेर के खाता खतौनी संख्या 50 के खसरा संख्या 779 रकबा 0.060 हे0 भूमि मध्ये 0.026 हे0 भूमि के सम्बन्ध में निष्पादित पंजीकृत बयनामा दिनांकित 19.9.2006 शून्य एवं निष्प्रभावी है?

(vi) क्या वादिनी का वाद परिसीमा अधिनियम 1963 के प्रावधानों से बाधित है?

(vii) क्या वादिनी याचित अनुतोष प्राप्त करने की अधिकारी है?

The prime concern, which would be relevant for consideration is in relation to a challenge given to the sale deed, that would be as to whether the sale deed was bonafidely executed, and as a consequence thereto, the defendant nos. 1 to 3 had been placed in possession and their title stands affirmed with their entries being recorded in the revenue records.

The plaintiff in support of her contention, she apart from appearing in the witness box as PW1, has filed her affidavit in examination-in-chief as paper No. 110 ka/1 to 110 ka/3, and also adduced the evidence of PW2 and the documentary evidences was filed by way of list no. 10C, which was the khasra and khatoni, i.e. paper no. 11C and paper no. 12C, as well as, the reports, which was given by the District Registrar, i.e. paper no. 94C12 and the correspondences, which was made by her by way of a complaint as paper no. 94 C. In order to further elucidate her case with regards to the mental disorder of the son, she has produced the medical certificate, i.e. paper no. 94 C, and the other documentary evidences to show that the sale deed, which was executed in favour of defendant nos. 1 to 3, was not a valid transaction and, hence, no title would be conferred upon the defendant nos. 1 to 3 in question.

Whereas, on the other hand, the defendant nos. 1 to 3 had appeared in the witness box as DW1, DW2 and DW3. Apart from recording their oral testimony they too have also placed on record the documentary evidences, i.e. sale deed itself as paper no. 21C, 26C and 27C and Khata Khatoni no. 28C to show that in pursuance to recording of their name as a consequence of the purchase made by them they stand recorded in the revenue records by an order passed by the Tehsildar on 31.10.2006. They have also placed on record the orders passed by the Assistant Collector in Case No. 6 of 2007 'Rakesh vs. Kundan Lal and Others' as well as the order passed on it as paper no. 120C.

On the other hand the defendant no. 4, who appeared in the witness box, recorded his statement as DW4 and has also recorded his statement by way of evidence in examination-in-chief and has placed on record the order-sheet and various other complaints, which he has filed before the competent police authority. However, in the documentary evidence produced by him before the court below, which has been filed, i.e. the document on 15.12.2006, as well as, the Xerox copy of the said document rather it shows that the defendant/respondent was recorded in the revenue records after the sale deed having been executed in their favour.

The learned Trial Court while deciding issue no. 1 to the effect as to whether the plaintiff/appellant happens to be an exclusive owner of the property in dispute lying in khatoni no. 50 and she stood recorded in 1413 to 1430 fasli in relation to Khet No. 779 having an area of 0.060 hectares and also with regards to the fact of possession, the courts below has held that after appraisal of the khatoni No. 50 for the fasli year 1430 to 1480, it shows that in the revenue records the entries has been made in favour of the defendant/respondent, i.e. the purchaser and they have been recorded as to be an exclusive owner in possession of the property thus sold to them.

The learned Trial Court after considering the oral testimony of the witnesses adduced by the plaintiff/appellant, ultimately has recorded a finding in relation to issue no. 1 to the effect that as far as the defendant no. 4, who executed the sale deed, the contention of the plaintiff/appellant was not accepted to the effect that the defendant no. 4 did not have any right to execute the sale deed because the learned Trial Court has considered the fact that no doubt the land was jointly recorded with the plaintiff/appellant with defendant no. 4, but thereafter the fact of entering into a family settlement setting separate shares over the disputed property was also established by the evidences on record, and as a consequence thereto, once the fact of family partition stood established by the evidences on record, the Court has rightly held that as far as the conferment of right on the defendant no. 4 to sell the property to defendant nos. 1 to 3 stood settled because the shares of the plaintiff and defendant no. 4 stood separately recorded in the revenue records after the partition deed was executed between them. Accordingly, the learned Trial Court while deciding the issue nos. 2, 3 and 4 the court has not accepted the contention of the plaintiff to show that the defendant no. 4 or the plaintiff/appellant, even thereafter sale was in possession of the property, which was thus conveyed to the defendant nos. 1 to 3 by the registered sale deed dated 18.09.2006. Based on the aforesaid contention, the learned Trial Court has dismissed the suit and has recorded that the sale deed as executed before the Sub-Registrar was a valid document executed after entering into the family settlement and the defendant no. 4 was having a sellable rights vested with him, thus, the transaction of conveyance with defendant nos. 1 to 3 was held to be a valid transaction.

Findings with regards to the mental conditions of defendant no. 4, who has executed the sale deed, that was directed to be considered in accordance with the finding recorded on issue no. 5 as framed by the learned Trial Court. As far as the finding recorded by the learned Trial Court on issue no. 5 was that the Court has held that it is an admitted fact that as far as the defendants defendant nos. 1 to 3 are concerned that they are the purchaser of the property by the sale deed dated 18.09.2006, but as far as the grounds taken by the plaintiff/appellant with regards to the mental status of defendant no. 4, the court has held that the documentary evidence, which was produced by her in support of her contention did not establish beyond the preponderance that the mental status of defendant no. 4 at the time when the sale deed was executed was not sound to understand the pros and cons of the sale made by him on 18.09.2006.

Apart from it, the plaintiff/appellant's evidence, which was brought on record by way of paper no. 94C, i.e. the document filed in support of the ailment of defendant no. 4, i.e. the OPD card of 10. 09.2005, the said document cannot be borrowed to be read for the purposes of the mental status of defendant no. 4, at the time when the sale deed was executed, i.e. much subsequent thereafter on 18.09.2006. Apart from paper no. 94C, there was nothing brought on record by the plaintiff/appellant by way of medical certificate to show that at the time when the sale deed itself was executed the ailment, which has been projected by the document dated 10.09.2005, continued to be persisting to render him incapacitated to execute the sale deed in favour of the defendant.

The learned counsel for the appellant has argued the controversy as raised in the present second appeal from two view points:

(i) that the learned Trial Court before proceeding with the matter for its adjudication on merits ought to have exercised its power under Order 26 Rule 9 for directing to conduct the commission of local inspection because there was a controversy raised by her in relation to the possession of the property in question. For the purposes of brevity, the provisions contained under Order 26 Rule 9 is quoted hereunder:

"Commissions to make local investigations

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

(ii) Apart from it, it was argued that it was the prerogative of the court to issue a commission for local investigation of property, but the said provision of law cannot be derived to be utilized to be resorted to as a procedure for collecting evidences for any of the parties to the proceedings and the plaintiff/appellant here was to shoulder the responsibilities under Section 103 of the Indian Evidence Act to establish that she despite of the execution of the sale deed, she still continued to enjoy the possession of the property in question.

Apart from it, the said argument extended by the learned counsel for the appellant cannot be accepted for the reason being that there is nothing on record in the proceedings before both the courts below that at any point of time the defendant plaintiff (appellant) has resorted to any of the procedure contemplated under Order 26 Rule 9 for requesting the court below by way of any application praying to hold a commission in order to facilitate her stand taken before the courts below to show her possession over the property in question.

Since having not made the request before the learned Trial Court before entering to address the suit on the merits of the case, hence, at the second appellate stage, the plaintiff/appellant cannot be permitted to raise an allegation against the court that the court ought to have invoke the provisions contained under Order 26 Rule 9. The reason being that the court was not supposed to invoke the provisions contained under Order 26 Rule 9 itself, particularly, when in the proceedings before the court below the defendants have placed on record the documentary evidence, i.e. the khasra paper no. 11E/1, which is a document of possession on record, which was a document, which was not controverted by the plaintiff with regards to the genuineness of the entries made therein and, hence, once there is a legally recognized unrebutted document on record to show the factum of possession of the purchaser of the property, hence, in that eventuality, there was no necessity for the court to resort to the proceedings under Order 26 Rule 9 to prove the fact of possession.

The learned counsel for the plaintiff/appellant has further submitted that in order to prove the said document of possession, which was placed on record before the court below the court ought to have compared the entries recorded therein. He has submitted that the court ought to have permitted the recording of evidence of independent witness to support the entries of possession in the khasra. I am of the view that once the fact of possession stands established by khasra paper no. 11C and the khatoni, which is the document, which proves the title of the defendant as recorded after the sale deed executed in their favour on 18.09.2006, the court was not required to venture on behalf of plaintiff/appellant into the acts for collecting the oral witness to support the entries of a document, which is otherwise a legally recognized as to be a document of possession and once it is not resulted, it would be deemed to be an authentic entry as per Section 44 of the Land Revenue Act, 1901, the contrary view cannot be taken.

This argument of the learned counsel for the appellant is also not accepted from the view point that once the entries have been recorded in the revenue records after resorting to the procedure provided under the Land Revenue Act, and once the same has been permitted to be carried and subsequently it is an admitted case, the appellate order passed under Section 210 of the Land Revenue Act against the plaintiff/appellant since was not challenged by the plaintiff/appellant while affirming the entries made in the revenue records by filing a Revision under Section 219 then plaintiff/appellant is bound by the entries made in the revenue records as a consequence of the provisions contained under Section 44 of the Land Revenue Act.

However, despite of the aforesaid findings recorded by the learned Trial Court by the impugned judgment dated 14.05.2019 affirming the execution of the sale deed dated 18.09.2006as to be a bonafide transaction, the plaintiff appellant has preferred a Civil Appeal No. 3 of 2019 'Shanti Devi vs. Kundan Lal and Others', which has been also dismissed by the learned Appellate Court by the impugned judgment dated 26.07.2019 and that too based upon the appreciation of the documentary evidences of title and possession, which stood recorded in favour of the defendants/respondents.

The Appellate Court has further ventured into to record a finding to the effect that as far as the affirmation of right on the defendant/respondent in pursuance to the sale deed dated 18.09.2006 it stood affirmed in view of the provisions contained under Section 49 of the Registration Act and also that the challenge given to a sale deed dated 18.09.2006 by instituting a Suit by filing the same only on 15.02.2016, that too at a highly belated stage the suit also suffered from the vices of the delayed agitation of the grievance in pursuance to the sale deed dated 18.09.2006.

After having heard the learned counsel for the appellant at length and even also after interacting with the plaintiff/appellant herself, who was present in person before this court during the proceeding, and having given a mindful consideration to the facts of the case, this Court is of the view that the finding of possession and title, it stands conclusively decided concurrently in favour of the defendants and since the same having been conferred by the registered document an embargo of Section 49 of the Registration Act and in view of the embargo of Section 44 of the Land Revenue Act, the second appeal is concluded by the finding of the facts.

Hence, this Court declines to entertain the second appeal as no substantial question of law is involved consideration, and the same is, accordingly, dismissed.