Shashi Kumar Singh vs Samay Lal Pasi (Died) Through Legal Heirs

Heard on admission.

The defendant has filed the Second Appeal under Section 100 of the C.P.C. challenging the judgment and decree dated 06.09.2012 passed by the learned First Additional District Judge, Manendragarh at Baikunthpur District – Korea in Civil Appeal No. 13-A/2012, by which learned First Additional District Judge has affirmed the judgment dated 17.11.2008 and decree dated 21.11.2008 passed by the Civil Judge Class –2, Baikunthpur, District – Korea in Civil Suit No. 15-A/2007 by which learned Civil Judge Class-2, Baikunthpur has allowed the suit for declaration and injunction.

For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 15-A/2007.

Brief facts as reflected from the record are that plaintiff has filed civil suit before the Civil Judge Class –2, Baikunthpur registered as Civil Suit No. 15-A/2007 for declaration of title and injunction mainly contending that the plaintiff has purchased a land situated at Patwari Halka No. 8, village Chittajhor Podi area 0.021 Ha. part of Khasra No. 71/1 and area 0.020 Ha. part of Khasra No. 72, total area 0.041 Ha. from erstwhile owner Tulsi Bai W/o Batkar Singh through registered sale deed dated 11.09.1987 for sale consideration of Rs. 5000/- and has taken the possession over the suit property. The revenue authorities have recorded name of the plaintiff vide order dated 30.01.1990 as landlord. Defendant Shashi Kumar Singh has also purchased area 0.040 Ha one part of said Khasra No. 71/1 and area 0.295 Ha. one part of Khasra No. 72 from Tulsi Bai for sale consideration of Rs. 15000/-through a sale deed dated 11.09.1987. Accordingly, name of defendant No. 1 was also recorded in revenue record. There is clear cut demarcation of boundary in the sale deed executed in favour of the plaintiff and defendant No. 1. As such, the plaintiff and defendant No. 1 were in possession of their respective portion of land. The property in dispute does not belong to defendant No. 1.

It has been further contended that one Kamla Devi D/o Ganesh Singh filed civil suit No. 2A/88 before the Civil Judge, Class I, Baikunthpur wherein the present plaintiff was not arrayed as party, though the plaintiff is in possession of the suit property. During the pendency of the suit defendant No. 1 Tulsi Bai expired. It has been further contended that during her lifetime she had executed a will on 19.01.1993 in favour of Shashi Kumar Singh. On the basis of the will Shashi Kumar was made party to the suit as legal representative. That suit was decided in view of compromise arrived on 13.12.2000 between plaintiff of that suit and defendant of the present suit, accordingly the suit was decreed as per the compromise. Since the plaintiff has also purchased the property through registered sale deed dated 11.09.1987 and he was not party to civil suit No. 2A/1988, therefore, the judgment and decree passed in the civil suit is not binding upon him.

Since Tulsi Bai has sold the said property to the plaintiff and name of the plaintiff has also been recorded in the revenue record in the year 1990, as such on the basis of the will executed on 19.01.1993 defendant No. 1 does not confer any right. It is contended that Tulsi Bai was entitled to execute a will for remaining portion of the land not the land which has been sold to the plaintiff. Plaintiff is in the possession of the suit property and doing agricultural work there. But all of a sudden in the year 2004, the defendant started interfering in the possession of the suit property on the basis of revenue record in which name of defendant No. 1 has been recorded as per the judgment passed in civil suit No. 2A/88 which has been passed on the basis of compromise. Thereafter the plaintiff has obtained copy of the record wherein it is revealed that the whole proceeding has been done without disclosing the sale of the property in favour of the present plaintiff which has necessitated him to file the present suit. On the basis of the above factual matrix the plaintiff has prayed for grant of declaration that the plaintiff is the sole owner of the suit property and also prayed for permanent injunction against the defendants restraining them from interference in the peaceful possession of the plaintiff either in person or through relatives. He has also filed an application under Order 39 Rule 1 of the CPC for temporary injunction. Learned trial Court allowed the said application and directed not to dispose him from the suit property and also restrained the defendants to sell the suit property.

The defendants have filed their written statement resisting the claim of the plaintiff contending that the plaintiff has not executed any sale deed with Tulsi Bai. The plaintiff has fraudulently recorded his name in the revenue records. It is contended that plaintiff was not necessary party to the civil suit No. 2A/88 as the property was not recorded in his name. It is contended that a compromise has been arrived at between the plaintiff of that suit and defendant No. 1 of this suit and on the basis of compromise judgment has been passed on 13.12.2000, according to which the defendant has become sole owner of the suit property. Since the plaintiff has not challenged the said judgment and decree he estopped from challenging the same. It is denied that the will is forged one. It is emphatically denied that the plaintiff is in possession over the suit property. It has been further contended that the suit is barred by limitation and on this count alone the suit deserves to be rejected, therefore, would pray that the suit filed by the plaintiff may kindly be dismissed.

On the pleadings of the parties, learned trial Court has framed as many as 10 issues.

The plaintiff to substantiate his case has examined himself as PW/1, Ram Das Singh as PW/2, Surendra Kumar as PW/3, Kendaram Patel as PW/4 and exhibited documents Sale deed dated 11.09.1987 as Ex.P/1, copy of mutation record as Ex.P/2, Map as Ex. P/3, Kistbandi Khatoini as Ex.P/4 and Ex.P/5, Khasra Panchasala Ex.P/6, Ex.P/7 Application under Order 23 Rule 3 CPC dated 21.11.2000, order sheets of Civil Suit No. 2A/88 as Ex.P/8, Copy of decree as Ex.P/9, Order of Tahsildar dated 29.07.2004 as Ex.P/10, Sale deed executed between Tulsi Bai and Shashi Kumar Singh as Ex.P/11. Defendant No.1 examined himself as DW/1 and exhibited documents objection raised by him before Tahsildar as Ex.D/1, order sheets of the proceedings under Section 145 Cr.P.C. as Ex.D/2.

The plaintiff has examined himself by way of affidavit and reiterated the averments made in the plaint. The witness was extensively cross-examined by the defendant, wherein he has stated that sale deed has been executed in 1987 and after 3 months he has recorded his name in the revenue record. He has also denied that the land belonging to Batkar Singh and due to dispute between Tulsi Bai and Kamla Devi the land belonging to Batkar Singh has been confiscated by the SDM, Baikunthpur. He has stated that there was confiscation proceedings with regard to the land belonging to the plaintiff. He has admitted that his name is recorded in the year 1990. He has reiterated that since 1987 he is in possession of the suit property. The witness has stated that in the year 2004 the defendant has manhandled him and taken possession over the suit property. He has stated that he has given Rs. 5000/- to Tulsi Bai and that money has been withdrawn from the bank. He has stated that he has given Rs. 5000/- in presence of Krishna Bihari.

Other witness Suresh Kumar Singh has also filed his examination-in-chief by way of affidavit, supported the case of the plaintiff and in the cross-examination this witness has stated that defendant has recorded his name fraudulently in the revenue record and this fact has been brought to him by the plaintiff in the year 1987. The plaintiff has examined Ramdas Singh, PW/3 who has reiterated the stand taken by the plaintiff and said witness was cross-examined wherein he has stated that Tulsi Bai has sold property for a sale consideration of Rs. 5000/- which was given to her in the office of the Registrar. The witness has stated that Tulsi Bai has sold the property to the plaintiff but he is unable to give details of the Khasra number. Other witness Kendaram Patel PW/4 also examined by way of affidavit wherein he has reiterated the stand taken by the plaintiff. The witness was cross-examined wherein he has stated that Tulsi Bai has sold the property measuring 5 disimal and 5.25 disimal to the plaintiff but he is unable to give details of the Khasra number. He has also admitted that Tulsi Bai has executed will in favour of Shashi Kumar Singh.

The defendant to substantiate his case has examined himself as DW/1 by way of affidavit and reiterated the stand taken by him in written statement. The witness was cross examined wherein he has stated that he has purchased the property on 11.09.1987 from Tulsi Bai at that time she was owner of land measuring 1.03 Acres. He is not aware that how much land was left in Khasra No. 71/1 as well as Khasra No. 72. He has also admitted that in the sale deed the boundary which has been mentioned with regard to the land purchased by him, has been mentioned that in the west the land belongs to Samay Lal. He has also stated that whatever description of boundary has been mentioned in the sale deed he is unable to recollect the same. He has admitted that he has purchased the property on 11.09.1987 but he is not aware about the ongoing dispute between Kamlabai and Tulsi Bai. He is also not aware about the sale deed with regard to the proceedings under Section 145 Cr.P.C. He has stated that he is not aware that Tulsi Bai has sold the property to Samay Lal. He is also unaware that how much land is left with Tulsi Bai after selling the land. He has stated that he is owner of the property on the basis of the will. He has stated he has not taken possession of the land on the basis of will but has taken possession over the land on the order passed by the Court.

Learned trial court after appreciating the evidence, material on record while deciding the issue No. 1 whether the plaintiff is in possession of the suit property, has given its finding that considering the sale deed wherein boundary of the property has been mentioned and considering that plaintiff has purchased the suit property on 11.09.1987 there was no dispute between Kamla Bai and Tulsi Bai and also considering that no proceedings under Section 145 Cr.P.C. with regard to Khasra No. 71/1 and 72 were going on, therefore, the plaintiff is the title holder of the suit property. Accordingly, issue No. 1 and 2 were decided in favour of the plaintiff. While deciding issue No. 3 learned trial Court has recorded a finding that since plaintiff has held to be title holder of the property, therefore, issue No. 3 is also decided in favour of the plaintiff. Learned trial Court finally granted decree of declaration in favour of the plaintiff by declaring that plaintiff is sole title holder of the suit property and restrained the defendant from interfering in the peaceful possession of the suit property. Against that judgment and decree defendant No.1 has preferred an appeal before the District Judge, Korea under Section 96 of the CPC mainly contending that learned trial Court has committed irregularity in treating the sale deed to be true and correct. The plaintiff has not been able to prove the transaction and also sale deed to be a genuine sale deed. Therefore, the judgment and decree passed by the trial Court deserves to be set aside. The defendant has also filed an application under Order 41 Rule 27 of the CPC for taking additional documents on record by which plaintiff intended to bring actual possession on the Khasra No. 71 and 72 as per revenue map in the year 1945 and 1946 as well as revenue map contending that the documents are required for proper adjudication of the case. Learned First Appellate Court vide its judgment and decree dated 06.09.2012 dismissed the appeal and affirmed the judgment and decree passed by the learned trial Court. Learned first appellate Court while deciding the appeal has framed specific question whether by way of sale deed demarcation of the property is clear or not? whether without setting aside judgment and decree passed by the learned trial Court in civil suit No. 2A/88 the suit is maintainable or not? Learned Appellate Court while appreciating the facts and evidence on record has given its finding that the boundary which has been mentioned in the sale deed is reflected in the plaint, therefore, it cannot be held that property is not identified. The plaintiff is able to establish that he has paid Rs. 5000/- to Tulsi Bai which remain unshaken in the cross examination. As such recorded a finding that sale deed is not forged one. Learned Appellate Court while deciding issue No. 2 has recorded whether without setting aside judgment and decree passed in civil suit No. 2A/88 the present suit is maintainable or not, has recorded a finding that in this case plaintiff was not a party and the case was not decided on merit but was decided on compromise. As such it is not binding upon the plaintiff. Learned first Appellate Court also rejected application under Order 41 Rule 27 CPC by recording a finding that the map has been produced subsequently and there is contradiction in the maps mentioned in the sale deed and map annexed with the application, as such it is not liable to be taken on record. Accordingly, the first appellate Court dismissed the appeal as well as an application for taking additional evidence on record. Being aggrieved with the judgment and decree passed by the first appellate Court, the defendant No. 1 preferred second appeal before this Court under Section 100 of the CPC.

Learned counsel for the plaintiff would submit that learned trial Court has decided the suit without appreciating Ex.D/2 relating to release of attachment of the suit land and wrongly decided application under Order 41 Rule 27 of CPC. He would further submit that the suit for declaration without claiming possession is not maintainable. Learned trial Court has decreed the suit which has been affirmed by the Appellate Court therefore, substantial question of law exists, as such, the appeal deserves to be admitted. In support of his contention learned counsel of the defendant relied upon the judgment passed by the Hon'ble Supreme Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) by Lrs. And Others (2008) 4 SCC 594 and would submit that appeal may be admitted by this Court.

Learned counsel for the appellant would submit that the learned trial Court has solely relied upon the sale deed and has not considered the fact that the plaintiff has failed to prove that he is in possession of the suit property. In absence of any prayer for claiming the possession the suit for injunction is not maintainable. He would further submit that since the defendant is disputing the transfer in favour of the plaintiff and mutation without notice to the defendant who is claiming over the suit land on basis of will dated 19.01.1993 as such the learned courts below have erred in decreeing the suit in favour of the plaintiff without appreciating the evidence, material placed on record on a perverse finding, therefore substantial question of law is involved in the case. He would further submit that learned courts below erred in decreeing the suit without appreciating Ex.D/2 regarding attachment of the suit land prior to sale as such finding recorded by the both the courts below that the sale is legal is perverse finding, therefore, substantial question of law exists and appeal deserves to be admitted by this Court.

Learned counsel for the appellant also filed application under Order 41 Rule 27 of the CPC for taking documents on record order passed by SDO, Baikunthpur in revenue appeal case decided on 31.01.1987 along with order sheets of the proceeding under Section 145 Cr.P.C. also sought to place on record will deed dated 19.01.1993 contending that while filing the civil suit original of the same has not been filed, therefore, learned trial Court has failed to consider the same. He also sought to file copy of revenue records of Jhimal and Batkar Singh and would submit that since theses documents are relevant for proper adjudication of the case, the same may kindly be taken on record.

Learned counsel for the respondents would support the judgment and decree passed by the trial Court affirmed by the learned first Appellate Court and would submit that no substantial question of law exists in the present case.

I have heard learned counsel for the defendant and learned counsel for the respondents No. 1a to 1d who have been arrayed being the legal heir of deceased plaintiff Samay Lal who expired during the pendency of the second appeal and perused the records of both the courts below.

Learned trial Court after appreciating the evidence and material on record has recorded a specific finding that plaintiff has purchased the suit land through registered sale deed Ex.P/1, therefore, plaintiff is the owner of the suit land. From the record, it is vivid that the defendants have neither filed counter claim, claiming title over the suit property on the basis of will nor produced material on record to disbelieve the existence of sale deed executed in favour of the plaintiff. Therefore, the learned trial Court has recorded a finding that on the basis of the sale deed executed on 11.09.1987 the plaintiff has become title holder of the property. This finding is based upon the appreciation of the evidence which is neither perverse nor suffers from surmises and conjectures which warrants interference by this Court. The learned trial Court has extensively examined the facts, evidence, material on record which has been affirmed by the first appellate and recorded a finding that plaintiff is in possession of the suit property and the defendant has not produced any document to demonstrate which property has been confiscated by the SDM, Bainkunthpur.

While examining the further contention of the defendant that identification of the suit property is not clear, learned first appellate court has examined the sale deed wherein description of the property has been mentioned and also considered the map annexed with the plaint and given a finding that the description of the suit land mentioned in the sale deed is clear. This finding recorded by the appellate court is neither perverse nor suffers from illegality. Thus, the finding regarding the identification of the property is clear and does not warrant any interference by this Court.

The finding of the appellate Court that since the plaintiff was not party to the civil suit No. 2A/88 and the case has been decided on the basis of compromise, therefore, it is not binding upon the plaintiff to file present suit, the defendant is not able to point out that how this finding is perverse or contrary to the legal position and even no foundation for challenging the said finding has been laid down before the first appellate court or before this court. Therefore, the contention raised by the learned counsel for the appellant lacks merit consideration and deserves to be rejected.

The learned counsel for the appellant has also filed an application under Order 41 Rule 27 of CPC for taking additional document on record. Learned for the appellant would submit that the documents were not in possession of the appellant, as such same was filed before the appellate court and without considering the documents the same has been rejected. He would further submit that the first appellate court should have seen that these documents are relevant for adjudication of the lis between the parties therefore, should have been taken on record.

I have heard learned counsel for the parties on this application also. From the bare perusal of the application it is quite vivid that how this Court can record a finding that these documents are relevant for deciding the lis between the parties as the defendant has not been able to prove that sale deed is null and void and in the sale deed there is clear cut demarcation of the suit land which has been recorded by the trial court and affirmed by the first appellate court. These findings are neither perverse nor contrary to the evidence, as such additional evidence by way of documents is not at all relevant. Hence, application under Order 41 Rule 27 CPC deserves to be and it is hereby dismissed.

Upon perusal of entire evidence, no substantial question of law requires to be formulated for hearing of this second appeal. There is concurrent finding of fact with regard to description of the suit property which is a finding of fact which is neither perverse nor contrary to the record. As such also no question of law requires to be determined by this Court. The Hon’ble Supreme Court in C. Doddanarayana Reddy (Dead) by Lrs. & others Vs. C. Jayarama Reddy (dead) by Lrs.& others (2020) 4 SCC 659, has held at paragraph 28 as under:-

Recently in another judgment reported as State of Rajasthan v.Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

“When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para43).”

This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended Section 100 of the C.P.C. Learned counsel appearing for the appellant failed to point out any substantial question of law which may arise for determination in the case.

In view of above, since no substantial question of law arises for determination in the instant case, this is not a fit case for admission. Consequently, the appeal is dismissed at motion stage itself under the provisions of Order 41 Rule 11 read with Order 42 Rule 1 of CPC.

A decree be drawn up accordingly.

No order as to costs.