Vedeshi vs Bhagwan Das

Proceedings of this matter have been takenÂ​up through video conferencing.

The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the appellants/plaintiffs are as under:Â​

“1. Whether the registered deed of sale dated 23.01.1985 (Ex.P.8) executed by Sirumal in favour of Plaintiff No.1 Videshi has rightly been refused

by the Courts below for want of the description of the property i.e., Khasra No.2/1 admeasuring 0.528 hectares ?

Whether the Courts below have erred in disbelieving the due execution of registered deed of sale dated 12.04.1989 (Ex.P.9) executed by

Defendant No.3 Ramkishun in favour of Plaintiff No.2 Smt.Nanhebai on the basis of irrelevant considerations ?â€​

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court].

The suit land bearing Khasra No.2 area 2.144 hectare situated at village Sendari, Patwari Halka No.42, Tahsil Bhatapara was earlier held by

Bhagela, father of defendant No.1. It is the case of the plaintiffs that Bhagela sold the entire suit land by registered sale deed dated 29.5.68 in favour

of Sirumal and Sirumal came in possession of the entire suit land. Thereafter in the year 1975 said Bhagela started interfering with possession of

Sirumal, therefore, Sirumal filed Civil Suit No.43A/75 against Bhagela seeking permanent injunction, in which the trial Court by its judgment and

decree dated 26.1.1977 restrained Bhagela from interfering with peaceful possession of Sirumal therein and thereafter Sirumal remained in

possession. It is further case of the plaintiffs that said Sirumal out of the suit land bearing Khasra No.2 area 2.144 hectare, sold 1.616 hectare of land

to defendant No.3ÂRamkishun on cash consideration of Rs. 4000/Â by registered sale deed dated 19.2.79 and placed him in possession, which was

also certified in the name of defendant No.3, which was later on renumbered as Khasra No.2/2 area 1.616 hectare and remaining land i.e.0.528

hectare renumbered as Khasra No.2/1 remained in the name of Sirumal. In the meanwhile, Bhagela died in the year 1980. It is also the case of the

plaintiffs that defendant No.1 on 11.11.81 harvested the crop sown by Sirumal and said Sirumal filed a suit for damages against Bhagwandas and his

son Dahar bearing Civil Suit No.9B/82, which was decreed on 30.6.84 for a sum of Rs. 750/Â against Bhagwandas and his son Dahar. It is also case

of the plaintiffs that Ramkishun also filed Civil Suit No.43A/80 against Bhagwandas and another restraining the defendants therein from interfering

with his peaceful possession, which was decreed against defendant No.1 herein on 15.12.86 vide Ex.PÂ3 and first appeal preferred by Bhagwandas

was also dismissed vide Ex.PÂ5 and it is brought on record that second appeal preferred by Bhagwandas was also dismissed by this Court being

Second Appeal No.87/1998 on 11.8.2016. Thereafter, plaintiff No.1 purchased the suit land bearing Khasra No.2/1 area 0.528 hectare from Sirumal

by registered sale deed dated 23.1.1985 (Ex.PÂ8) and plaintiff No.2 purchased the suit land by registered sale deed dated 12.4.1989 (Ex.PÂ9)

bearing Khasra No.2/2 area 1.616 hectare from Ramkishun and they are said to came in possession over the suit land and their names have also been

certified. It is the case of the plaintiffs that in Section 145 CrPC proceedings, the SubÂDivisional Officer, Balodabazar found the possession of

defendant No.3ÂRamkishun, which was setÂaside by the Additional Sessions Judge, Balodabazar on 22.8.97 and thereby defendant No.1 made an

application for mutation of his name in revenue records, which was accepted by the NaibÂTahsildar, Bhatapara, which was also challenged by the

plaintiffs, but thereafter decided to file civil suit stating interÂalia that the plaintiffs are title holders of the suit land and defendant No.1 has no right

and title over the suit land and the defendants be restrained from interfering with their peaceful possession over the suit land.

Resisting the suit, defendant No.1 filed his written statement and denied the averments made in the plaint stating interÂalia that his father has never

executed sale deed dated 29.5.68 in favour of Sirumal as it was only executed for security of loan, which his father has taken from Sirumal as Sirumal

was involved in the business of moneylending, as such, sale deed executed by his father is not binding on him. It was also pleaded that against the

order of the Additional Sessions Judge, Balodabazar revision preferred by the plaintiffs has also been dismissed by the High Court, as such, he prayed

for dismissal of suit.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and dated 23.1.2006, dismissed the suit

holding that the plaintiffs have failed to prove title on the basis of Ex.PÂ8 and Ex.PÂ9. On appeal being preferred by the plaintiffs, the first appellate

Court concurred with the judgment and decree of the trial Court and dismissed the appeal also, resulting into filing of this second appeal under Section

100 of the CPC, in which two substantial questions of law have been formulated, which have been setÂout in opening paragraphs of this judgment for

sake of completeness.

Mr.Anurag Singh, learned counsel appearing for the appellants/plaintiffs, would submit that though part of Ex.PÂ8 i.e. copy of sale deed by which

part of suit land was purchased by plaintiff No.1 from Sirumal, but description of the suit land was missing and certified copy was filed before the trial

Court, but it was not considered by the trial Court, yet the suit has been dismissed holding that sale deed (Ex.PÂ8) has not been proved in accordance

with law. He would further submit that sale deed dated 12.4.89 (Ex.PÂ9) executed by defendant No.3ÂRamkishun in favour of plaintiff No.2 has

been duly proved as defendant No.1 did not deny specifically in written statement filed before the trial court and also in statement before the trial

Court, defendant No.1 did not specifically deny that no such sale deed was executed by Ramkishun in favour of plaintiff No.2, whereas in earlier Civil

Suit No.43A/80 (Ex.PÂ3) filed by defendant No.3ÂRamkishun from whom plaintiff No.2 has purchased the suit land, the trial Court clearly recorded

the finding that Ramkishun is titleÂholder of the suit land bearing Khasra No.2/2 area 1.616 hectare and the aforesaid judgment and decree (Ex.PÂ3)

has been affirmed by the first appellate Court by the judgment and decree dated 11.9.98 vide Ex.PÂ5 and the judgment and decree (Ex.PÂ5) has

further been affirmed by this Court in Second Appeal No.87/1998 on 11.8.2016, as such, title of Ramkishun is not in dispute and it has attained finality

and once sale deed dated 12.4.89 (Ex.PÂ9) is not challenged, it could not have been disbelieved by the trial Court holding that it has not been proved

in accordance with law. He would rely upon the judgments of the Supreme Court in the matters of Muddasani Venkata Narsaiah (Dead) Through

Legal Representatives v. Muddasani Sarojana (2016) 12 SCC 288, Smt.Bayanabai Kaware v. Rajendra S/o Baburao Dhote (2018) 1 SCC 585 and

Jaspal Kaur Cheema and another v. Industrial Trade Links and others (2017) 8 SCC 592.

On the other hand, Mr.Raghvendra Pradhan, learned counsel for respondent No.1/defendant No.1, would submit that both the Courts below have

concurrently and rightly held that the document (Ex.PÂ8) has not been proved as main part of sale deed by which description of the suit land is given

is missing and not filed before the trial Court and even certified copy of missing page was sought to be produced before the trial Court, but it was not

proved by examining the officers from the office of SubÂRegistrar where the sale deed was executed, therefore, the finding recorded by two Courts

below holding the sale deed (Ex.PÂ8) to be not proved is in accordance with law and such a finding is based on evidence available on record and it

need not be interfered with in the jurisdiction under Section 100 of the CPC. He would further submit that both the Courts below have rightly

disbelieved that execution of registered sale deed dated 12.4.89 (Ex.PÂ9) executed by defendant No.3Â Ramkishun in favour of plaintiff No.2Â‐

Smt.Nanhebai has not been proved by recording correct finding, which is also based on evidence available on record, which also need not be

interfered with. He would rely upon the judgment of the Supreme Court in the matter of Thulasidhara & Another v. Narayanappa & others (2019) 6

SCC 409.

Mr.K.Rohan, learned counsel for legal representatives of respondent No.2/defendant No.2 would support the contentions raised by learned counsel

for the appellants/plaintiffs.

I have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove thoughtfully and also went through the

records with utmost circumspection.

Answer to substantial question of law No.1:Â​

A careful perusal of Ex.PÂ8 would show that though sale deed has been executed by Sirumal in favour of plaintiff No.1, but part of sale deed

giving description of the suit land including boundaries of the land is completely missing and not filed before the trial Court and on that basis, the trial

Court reached to the conclusion that from perusal of Ex.PÂ8, it is not apparent and evident the land was sold by Sirumal in favour of plaintiff No.1

and consequently, reached to the conclusion that plaintiff No.1 has failed to prove that the suit land bearing Khasra No.2/1 area 0.528 hectare was

sold by Sirumal in favour of plaintiff No.1 and that finding has also been affirmed by the first appellate Court. So far as the production of relevant

pages are concerned, both the Courts below have rightly not accepted that plea because mere production of some missing pages, it cannot be proved

that it is a part of Ex.PÂ8. The right course available to plaintiff No.1 was to file certified copies of entire sale deed (Ex.PÂ8) and after taking

permission from the Court to lead secondary evidence could have proved the said document in accordance with law specially by calling the officers

from the office of SubÂRegistrar, where the said sale deed was executed by Sirumal in favour of plaintiff No.1. Since that course has not been

followed, the finding of two Courts below that sale deed (Ex.PÂ8) has not been proved in accordance with law and by Ex.PÂ8 no title has been

transferred in favour of plaintiff No.1 is correct finding of fact based on evidence available on record, as such, finding of two Courts below to that

extent is hereby reÂ​affirmed. The first substantial question of law No.1 is answered in favour of the defendants and against the plaintiffs.

Answer to substantial question of law No.2:Â​

It is the case of the plaintiffs that plaintiff No.2 has purchased the suit land bearing Khasra No.2/2 area 1.616 hectare from Ramkishun on 12.4.89

(Ex.PÂ9) and came in possession of the suit land. At the risk of repetition, it is appropriate to mention here that originally the suit land was held by

Bhagela, father of defendant No.1 and Bhagela has executed sale deed dated 29.5.68 in favour of Sirumal and Sirumal sold the suit property i.e.

Khasra No.2/2 area 1.616 hectare to defendant No.3ÂRamkishun on 19.2.79. Ramkishun also filed Civil Suit No.43A/80 against defendant No.1Â‐

Bhagwandas for restraining defendant No.1 herein to interfere with his possession. The trial Court decreed the suit filed by Ramkishun defendant

No.3 herein by the judgment and decree dated 15.12.1986 (Ex.PÂ3) though it was suit for permanent injunction simpliciter, yet the trial Court had

framed an issue as to whether the suit land was earlier held by Sirumal. In suit filed by Sirumal being Civil Suit No.43A/75, on 26.2.1977 decree for

permanent injunction was granted in his favour and against Bhagela, father of defendant No.1 herein and also held Sirumal has sold the suit land

bearing Khasra No.2/2 area 1.616 hectare in favour of defendant No.3Â Ramkishun on 19.2.79 and restrained defendant No.1 to interfere with his

peaceful possession and thereafter Ramkishun has sold the suit land in favour of plaintiff No.2 on 12.4.89 (Ex.PÂ9) and said to have been placed in

possession.

It is the case of plaintiff No.2 that Bhagela tried to interfere with his possession leading to filing of the suit before the trial Court. Plaintiff No.2 in

her suit pleaded that she purchased the suit land bearing Khasra No.2/2 area 1.616 hectare from Ramkishun and she has been placed in possession

thereafter.

A careful perusal of written statement would show that defendant No.1 did not specifically deny the execution of sale deed by Ramkishun in

favour of plaintiff No.2 and he asserted that the suit land was never sold by his father Bhagela in favour of Sirumal, it was executed for security of

loan and that is not binding on defendant No.1, as such, execution of sale deed by Ramkishun in favour of plaintiff No.2 was not specifically denied by

defendant No.1.

At this stage, it would be appropriate to notice Order 8 Rule 5 of the CPC which states as under:Â​

“5. Specific Denial.Â(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in

the pleading of the defendant, shall be taken to be admitted except as against a person under disability.

Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.

(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the fact contained in the plaint,

except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to subÂrule (1) or under subÂrule (2), the Court shall have due regard to the fact whether the

defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the

date on which the judgment was pronounced.â€​

The  Supreme  Court  in  the  matter  of  M. Venkataramana Hebbar (Dead) by LRS. v. M. Rajagopal Hebbar and others (2007) 6

SCC 401 has clearly held that averment made in the plaint not disputed in written statement would be deemed to be admitted.

The Supreme Court in the matter of Jaspal Kaur Cheema (supra) has held that plaint allegation must be specifically denied. It was observed as

under:Â​

“7. In terms of Order 8 Rule 3 of the Code of Civil Procedure, 1908 (for short ‘the Code’), a defendant is required to deny or dispute the

statements made in the plaint categorically, as evasive denial would amount to an admission of the allegation made in the plaint in terms of Order 8

Rule 5 of the Code. In other words, the written statement must specifically deal with each of the allegations of fact made in the plaint. The failure to

make specific denial amounts to an admission. This position is clear from the decisions of this Court in Badat and Co. v. East India Trading Co. AIR

1964 SC 538, Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673 and M. Venkataramana Hebbar v. M. Rajagopal Hebbar (supra).â€​

Defendant No.1 examined himself before the trial Court as DWÂ1. In his statement before the trial Court, he asserted that the suit land is an

ancestral property and his father has not sold the suit property and never delivered any possession and he and his son both have birthright. In Section

145 CrPC proceeding, the order passed by the SubÂDivisional Officer, Balodabazar has been set aside by the Additional Sessions Judge, Balodabazar

and maintained upto the High Court and Sirumal was never in possession of the suit land, therefore, he could not have delivered the possession to

Ramkishun and Ramkishun could not have delivered the possession to plaintiff No.2, but surprisingly defendant No.1 did not specifically state in

examinationÂ​inÂ​chief that sale deed was never executed by Ramkishun in favour of plaintiff No.2.

The Supreme Court in the matter of Muddasani Venkata Narsaiah (supra) has clearly held that the provisions contained in Order 8 Rule 5 of the

CPC require pleadings to be answered specifically in written statement. It was observed as under:Â​

“14. Coming to the question whether execution of sale deed in favour of plaintiff has been proved, the High Court has held that the sale deed has

not been proved for want of examination of Buchamma. The High Court has ignored the pleadings of the parties and the evidence on the question of

execution of sale deed which establishes that sale deed had been executed by Buchamma in favour of the plaintiff. In the written statement filed on

behalf of the defendants, the sale deed was denied for want of knowledge. A perusal of same indicates that the authority of Buchamma to execute

the sale deed in favour of the plaintiff was put into question. Defendant 3 Sarojana in her deposition in court did not deny the fact that sale deed was

executed by Buchamma in favour of the plaintiff. She has stated that she was not aware whether Buchamma has executed any sale deed in favour of

the plaintiff. She only asserted that she was the adopted daughter of Yashoda.

It is settled law that denial for want of knowledge is no denial at all. The execution of the sale deed was not specifically denied in the written

statement. Once the execution of the sale deed was not disputed it was not necessary to examine Buchamma to prove it. The provisions contained in

Order 8 Rule 5 require pleadings to be answered specifically in written statement. This Court in Jahuri Sah v. Dwarika Prasad Jhunjhunwala AIR

1967 SC 109 has laid down that if a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of existence of fact,

not even an implied denial. Same decision has been followed by Madhya Pradesh High Court in Dhanbai v. State of M.P. AIR 1979 MP 17 The High

Court of Madhya Pradesh in Samrathmal v. Union of India AIR 1959 MP 305 relying on P.L.N.K.L. Chettyar Firm v. Ko Lu Doke AIR 1934 Rang

278 and Lakhmi Chand v. B. Ram Lal Kapoor Vakil AIR 1931 All 423, had also opined that if the defendant did not know of a fact, denial of the

knowledge of a particular fact is not a denial of the fact and has not even the effect of putting the fact in issue.

Moreover, there was no effective cross examination made on the plaintiff’s witnesses with respect to factum of execution of sale deed, PW

1 and PW 2 have not been cross examined as to factum of execution of sale deed. The crossÂexamination is a matter of substance not of procedure

one is required to put one’s own version in crossÂexamination of opponent. The effect of non crossÂexamination is that the statement of witness

has not been disputed. The effect of not crossÂexamining the witnesses has been considered by this Court in Bhoju Mandal v. Debnath Bhagat AIR

1963 SC 1906. This Court repelled a submission on the ground that same was not put either to the witnesses or suggested before the courts below.

Party is required to put his version to the witness. If no such questions are put the court would presume that the witness account has been accepted as

held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. AIR 1958 P&H 440.â€​

Reverting to the facts of the present case in the light of principle of law laid down by the Supreme Court in Muddasani Venkata Narsaiah (supra),

it is quite vivid that in third round of litigation with respect to the suit land bearing Khasra No.2/2 area 1.616 hectare, vide Ex.PÂ3 the Civil Court has

already been held that Sirumal had title over the suit land and he has sold the suit property bearing Khasra No.2/2 area 1.616 hectare to defendant

No.3ÂRamkishun and Ramkishun has title over the suit land and granted permanent injunction in his favour and the judgment and decree of the trial

Court was affirmed by the first appellate Court in first appeal (Ex.PÂ5) and it is stated at the Bar that Second Appeal No.87/1998 preferred by

Bhagwandas has been dismissed by this Court on 11.8.2016, as such, title of Ramkishun has already become final and his possession over the suit land

has also become final.

Both the Courts below have dismissed the suit of the plaintiffs on the count that sale deed dated 12.4.89 (Ex.PÂ9) has not been proved in

accordance with law. It has already been noticed hereinabove that defendant No.1 did not specifically challenge the execution of sale deed by

defendant No.3ÂRamkishun in favour of plaintiff No.2, rather he kept insisting that he was titleÂholder and his father has never alienated the suit

property in favour of Sirumal, whereas in civil suit filed by Sirumal, Bhagela, father of defendant No.1, was restrained vide Ex.PÂ1 and thereafter,

again in second civil suit filed by Sirumal, defendant No.1 was subjected to damages amounting to Rs. 750/Â and in third civil suit being Civil Suit

No.43A/80 filed by defendant No.3ÂRamkishun from which plaintiff No.2 has purchased the suit property, decree for permanent injunction was

granted in his favour, as such, despite the title and possession of Ramkishun having been affirmed upto this Court, defendant No.1 did not take specific

plea with regard to sale deed executed by defendant No.3Â Ramkishun in favour of plaintiff No.2 and did not put any question to plaintiff No.2 and

also did not deny the execution of sale deed. Defendant No.1 did not deny the fact that sale deed was executed by Ramkishun in favour of plaintiff

No.2, as such, sale deed (Ex.PÂ9) has not specifically questioned by defendant No.1 either by filing written statement or by the statement which he

made before the trial Court and even their witnesses have not seriously disputed the sale deed executed by Ramkishun in favour of plaintiff No.2.

The Supreme Court in the matter of Muddasani Venkata Narsaiah (supra) has also held that third party cannot question the execution of sale deed

on the ground of nonÂ​passing of amount of consideration.

In the instant case, title of Sirumal and thereafter title of Ramkishun from whom plaintiff No.2 has purchased has been declared by the trial Court

vide Ex.PÂ3 in a civil suit by Ramkishun and that has been affirmed by the first appellate Court and the second appellate Court also and plaintiff No.2

has purchased the suit land bearing Khasra No.2/2 area 1.616 hectare from Ramkishun, therefore, defendant No.1 has no right or authority to question

the sale deed executed by Ramkishun in favour of plaintiff No.2. In this regard, paraÂ17 of the judgment of Muddasani Venkata Narsaiah (supra) is

pertinent which states as under:Â​

“17. It is also settled law that passing of consideration under a sale deed cannot be questioned by third party. Defendant 3 has not been able to

establish her case that she is an adopted daughter of the deceased Yashoda and thus, she being the third party, could not have questioned the

execution of the sale deed by Buchamma on the ground of passing of consideration as rightly laid down by the High Court of Madhya Pradesh in

Ramjilal Tiwari v. Vijai Kumar 1970 MPLJ 50. The High Court of Patana has also held that passing of consideration can be questioned by a party or

his representative in Akli v. Daho AIR 1928 Pat 44. Similar is the view of the High Court of Nagpur in Maroti Bansi Teli AIR 1945 Nag 60. Thus, the

High Court has erred in law on this ground also in dismissing the suit.â€​

As such, finding recorded by two Courts below that sale deed executed by defendant No.3ÂRamkishun in favour of plaintiff No.2 has not been

proved is not based on evidence on record. So far as, the ground raised by defendant No.1 that Bhagela has not transferred the suit property in favour

of Sirumal and it was only executed for security of loan is no longer resÂintegra as in Civil Suit No.43A/80 (Ex.PÂ3) it has already been held by the

Civil Court as affirmed by the first appellate Court on 11.9.98 vide Ex.PÂ5 and the second appellate Court that Bhagela has sold the suit land in

favour of Sirumal and Sirumal was title holder of the suit property, as such, both the Courts below are absolutely unjustified in holding that plaintiff

No.2 has failed to establish title over the suit land by sale deed (Ex.PÂ9), as such, this substantial question of law is answered in favour of plaintiff

No.2 and against defendant No.1.

Consequently, second appeal filed on behalf of plaintiff No.1ÂVideshi is hereby dismissed affirming the judgment and decree of the trial Court and

the first appellate Court and second appeal filed on behalf of plaintiff No.2Â​Smt.Nanhe Bai is allowed.

It is ordered and decreed that plaintiff No.2Â Smt.Nanhe Bai is titleÂholder & possession holder of suit land bearing Khasra No.2/2 area 1.616

hectare situated at village Sendari P.H.Ho.42 R.N.M. Tahsil Bhatapara, District BhataparaÂBalodabazarand defendant No.1 himself or through his

representative/agent is restrained from interfering with her peaceful possession over the suit land.

Accordingly, second appeal filed by appellant No.1/plaintiff No.1 is dismissed and second appeal filed by appellant No.2/plaintiff No.2 is allowed to

the extent indicated hereinabove. No cost(s).

Appellate decree be drawnÂ​up accordingly.