Dismissed

Amit Kumar Singh v. Shaikh Jabbar and Others

Chhattisgarh HC9 Aug 2019SA/134/2005

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal challenging a revenue suit decision. The court held that the appellant's denial for want of knowledge constituted an admission of the plaintiff's claim that their ancestral land, renumbered from Khasra 240 to 219/11, was purchased by them, not the appellant.

What did the court decide?

Second appeal dismissed. Cross objection stands finally disposed. Decree drawn in favour of plaintiffs.

Amit Kumar Singh Vs Shaikh Jabbar and Others — Property and Title | Chhattisgarh HC (2019)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No. 134 of 2005

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Judgment reserved on 29.07.2019 Judgment delivered on 09.08.2019

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Giriraj Singh (since deceased) through LRs:-

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Amit Kumar Singh, S/o Late Dau Kartar Singh, aged about 27 years, Occupation Government Service Shiksha Karmi, r/o Jaiswal Colony Juna Lakhanpur, Post Office Lakhanpur, Tehsil Lakhanpur, District Sarguja (C.G.)

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---Appellant/defendant No. 1

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Versus

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Shaikh Jabbar, aged about 42 years,

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Babudeen, aged about 50 years,

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Hasamddeen, aged about 39 years,

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Kasamddeen, aged about 37 years,

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All sons of Late Haknuddeen, Occupation : Agriculture, Caste : Musalman, R/o Village Khajrikala, PS: Lohara, District : Kawardha (CG) …. Plaintiffs

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State of Chhattisgarh, Through the Collector, Kawardha (CG)

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–- -Respondents

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For Appellant : Mr. H.V. Sharma, Advocate. For Respondents No.1 to 4 : Mr. Amrito Das, Advocate. For Respondent No. 5 : Mr. Akash Pandey, Panel Lawyer.

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Hon’ble Shri Justice Sanjay K. Agrawal

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JUDGMENT (C.A.V.)

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(1) The substantial questions of law involved, formulated and to be answered in

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this second appeal preferred by defendant No. 1 state as under:-

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“(i) Whether the purchase made by the father of the respondents/plaintiffs Haknuddeen in the year 1968 the land was already renumbered after consolidation proceeding as Khasra No. 240 which could not have been changed by the oral evidence ?

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(ii) Whether the impugned judgment and decree of the appellate Court liable to be set aside being perverse ?

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(For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court).

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(2) It is the case of the plaintiffs that their father late Shri Haknuddeen by registered sale deed dated 31.03.1968 purchased part of Khasra No. 240, area 5 acres of the land with due permission of the Collector, Durg and came into possession of the suit land and they were continuing in possession of that land for the last 32 years. It is further case of the plaintiffs that in the village Lohara, settlement proceedings were held in the year 1966 - 67 and in that settlement, Khasra Nos. 87, 88, 89, 228, 229, 230,231,232 {238,239} and 240 were jointly given new Khasra No. 219 and old Khasra No. 240, total area 15.17 acres was divided in three parts giving new Khasra Nos. 219/2, 219/3 and 219/11 and their total area was 15.17 acres and, this old Khasra No. 240 is new numbered as 219/11 and in which the plaintiffs are in possession for the last 32 years, which the defendant No. 1 claimed to be part of the land which their father purchased vide registered sale deed dated 21.04.1988 vide Ex. D-2 and, on which, the Tahsildar directed to deliver possession under Section 250 of the

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Land Revenue Code to defendant No. 1, which was affirmed by the Sub Divisional Officer on 13.6.2000 and that has given rise a dispute to his title

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leading to filing of the civil suit stating inter alia that the plaintiffs are in possession over the suit land pursuant to the sale deed dated 31.3.1968 and new number of suit land is Khasra No. 240 is 219/11. It was also pleaded that defendant No. 1 has purchased the land bearing Khasra No. 219/1, area 5 acres by registered sale deed dated 21.04.1988 (Ex.D-2) but it has got mutated their name in Khasra No. 219/11, which is the land owned and possessed by the plaintiffs, as such, plaintiffs' suit deserves to be dismissed.

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(3) The trial Court, after appreciating the oral and documentary evidence available on record, dismissed the suit holding that defendant No. 1 has purchased the suit land bearing Khasra No. 219/11, area 5 acres vide Ex. D-2. On an appeal being preferred, the first appellate Court reversed the judgment and decree of the trial Court and decreed the suit of the plaintiffs, against which instant second appeal under Section 100 of the CPC has been preferred by the appellants/defendant No.1, in which, substantials questions of law have been formulated and set-out in the opening paragraph of this judgment.

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(4) Shri H.V. Sharma, learned counsel appearing for the appellant/defendant No. 1 would submit that the first appellate Court has committed legal error in holding that the plaintiffs have purchased the suit land bearing Khasra No. 219/11 whereas it has been purchased by defendant No. 1 vide Ex. D-2 and he is in possession after mutation in his favour, which was also found favour with by the Tahsildar and confirmed in appeal by Sub Divisional Officer and pursuant to the order of the revenue Court, he has been placed in possession of suit land and continued on the suit land and the finding recorded by First

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Appellate Court is absolutely perverse and contrary to the record, as such, the plaintiffs are not entitled for any decree of the declaration of title and possession over the suit land, as such, judgment and decree of the first appellate Court is liable to be set aside and that of trial Court is restored.

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(5) On the other hand, Mr. Amrito Das, learned counsel appearing for the respondents No. 1 to 3/plaintiff would submit that in paragraphs 4 & 8 of the plaint it has clearly been pleaded that in the sale deed, old Khasra No. 240 was mentioned and which has become new number as 219/11, which has not been controverted by filing written statement and that averment made in plaint have have been denied for want of knowledge and that will be deemed to be admission under Order 8 Rule 5 of the CPC. He would further submit that the land bearing Khasra No. 219/11 (Ex. P-1) purchased by the plaintiffs whereas the land bearing bearing Khasra No. 219/1 (Ex.D-2) purchased by defendant No.1 are distinctly placed and shown in the Map (Ex.P-1), which is also shown in Ex.D-6 filed by the defendant No.1, as such, the first appellate Court after appreciating the oral and documentary evidence available on record has reached to the right conclusion that plaintiffs are owner and title holder of the suit land, as such, the appeal is liable to the dismissed.

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(6) I have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove and went through the record with utmost circumspection.

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(7) In order to answer the substantial questions of law, it would be appropriate to notice the averment made in paragraphs 2 and 4 of the plaint in

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which the plaintiffs have categorically stated Khasra No. 240, other khasra numbers were consolidated in consolidation proceedings and new khasra numbers were given. Paragraphs 4, 4A and 8 of the plaint states as under:-

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“4. ;g fd xzke y[kuiqj i-g-u- 48 jk-fu-e- l- yksgkjk esa o”kZ 1966&67 v{kjh lu~ mUuhl lkS NSlB&l<+qlB esa pdcanh gqbZ rFkk pdcanh ds le; tks fdlku ftl [kljk uacj ij dkfct Fkk mldk uke u;k [kljk uacj esa vafdr dj fjdkMZ vfHkys[k esa ntZ fd;k x;kA o”kZ 1966&67 esa tc pdcanh gqbZ ml le; dk iqjkuk [kljk uacj dze’k% 87] 88] 89] 228] 229] 230] 231] 232 (238] 239) ,oa 240 dqy jdck ,dM+ dks feykdj u;k [kljk uacj 219 cuk;k x;k rFkk rkRdkyhd pdcanh ds vf/kdkjh iVokjh ,oa jktLo fujh{kd ds dk’r dCts ds vk/kkj ij iqjkuk [kljk uacj 87 ,oa 89 dks u;k [k-u- 219@5 o 219@6 mlh izdkj iqjkuk [k-u- 88 dks rhu Hkkxksa esa foHkkftr dj u;k [k-u- 219@10] 219@9 o 219@12 cuk;k x;kA blh rjg iqjkuk [k-u- 228 dks 219@8] iqjkuk [kljk uacj 229 dks u;k [k-u219@15] iqjkuk [k-u- 230 o 231 dks feykdj u;k [k-u- 219@13 cu;k x;kA blh izdkj iqjkuk [k-u- 232 dks rhu Hkkxksa es a foHkkftr dj u;k [k-u- 219@14] 219@4 o 219@7] iqjkuk [ku- 238 o 239 dks feykdj 219@1 rFkk blh izdkj iqjkus [k-u- 240 dqy jdck 15-17 ,- dk rhu Hkkxksa esa foHkkftr dj u;k [k-u- 219@2] 219@3 vkSj 219@11 cu;k x;kA eq[; fookn iqjkuk [k-u- 240 u;k [k-u- 219@2] 219@3 o 219@11 dqy jdck 15-17 (ianzg ,dM+ l=g fMlfey) ij gh gSA ftl ij oknhx.k vius

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fgLls dh Hkwfe iqjkuk [k-u- 240 dk u;k [k-u219@11 ij oknhx.k foxr 32 o”kksZa ls ‘kkafriwoZd jgdj dk’rdkjh djrs vk jgs gSaA

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4v ;g fd ] eq[; fookn iqjkuk [kljk ua240 (nks lkS pkyhl) dqy jdck 15-17 ,dM+ (ianzg ,dM+ l=g fMlfey) dk VqdM+k u;k [k-u219@11 (nks lkS mUuhl cVs X;kjg) dqy jdck 5- 00 ,dM (ikap ,dM+) ij gSA mDr fooknxzLr Hkwfe ds mRrj fn’kk esa x;kjke ,oa vjln dh Hkwfe] nf{k.k esa ‘ks[k tCckj ,oa ckcwnhu dh Hkwfe] iwoZ esa [katjhdyk dk vkejkLrk] if’pe esa dY;k.kiqj dk ljgn fLFkr gSA

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8@ ;g fd oknhx.k }kjk iathc) fodz;i= }kjk [kjhnh xbZ Hkwfe dk pdcanh ds i'pkr~ u;k [k-u219@11 gqvk gSA”

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(8) The defendant No. 1 filed his written statement before the trial court and denied the contents of paragraphs 4 and 8 of the plaint for want of knowledge, and did not even denied the contents of paragraph 4A which was inserted in the plaint by amendment dated 20.09.2001. The paragraphs 3 and 8 of the written statement denying the plaint allegation states as under:-

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“3. okn i= dafMdk 4 dk mRrj & ;g fd bl dafMdk ds lEiw.kZ dFku tkudkjh ds vHkko esa vlR; gksus ls vLohdkj gS] vko';d mRrj vfx z e dafMdkvksa esa fn;k x;k gS A

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8@ okn i= dafMdk 8 dk mRrj & ;g fd bl dafMdk ds dFku ds laca/k esa izfroknh dz0 1 dks dksbZ tkudkjh ugha gSA vr% vLohdkj gS] oknhx.k dk okn muds gh dFkuksa ls vlR; gksus ls fujLr fd;s tkus ;ksX; gS A”

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(9) At this stage, it would be appropriate to notice the provisions contained in Order 8 Rule 3 which clearly directs to defendant that the denial to be specific and provides as under:-

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“ Rule 3. Denial to be specific - it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.”

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(10) Order VIII Rule 5 provides for the consequence of evasive denial, Order VIII Rule 5(1) & (2) provides as under:-

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“ Rule 5. Specific denial – (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:

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

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(2)Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgement on the basis of the facts 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.”

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(11) According to Section 58 of the Evidence Act, 1872 (henceforth “Act, 1872”), admitted fact need not be proved. Section 58 of the Evidence Act, 1872 provides as under:-

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58.Facts admitted need not be proved.- No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing

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under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

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Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”

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The object of this provision is to save time and expense at the trial. Admission in the pleadings under Order 8 Rule 5 CPC of by way of answers to the to the interrogatories are covered by above stated provision. The Supreme Court in the matter of Nagindas Ramdas v. Dalpatram Iccharam @ Brijram and others1 has observed that admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stands on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the parties that made them and constitutes a waiver of proof. They by themselves can be made the foundation of the rights of the parties On the other hand evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.

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(12) The Supreme Court in the matter of Badat & Co. Bombay v. East India Trading

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Co. 2 while considering the above-stated provision held as under :-

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“17.…….These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its noncompliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. ”..........................................................

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2 AIR 1964 SC 538

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1 AIR 1974 SC 471

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(13) Thereafter, again in the matter of Jahuri Sah v. Dwarika Prasad Jhunjhunwala 3,

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the Supreme Court has held that denial for want of knowledge would amount to an admission of the averment made in the plaint in terms of Rule 5 of Order VIII CPC and held as under:-

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“10 …………In neither of two written statements filed on behalf of the defendants teas this assertion of tact by the plaintiffs been specifically denied. Instead, what is stated in both these written statements is that the defendants have no knowledge of the allegations made in Para 1 of the plaint. Bearing in mind that O. VIII, R. 5, C. P C. provides that 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 to say that a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact, not even an implied denial……..”

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(14) In M. Venkataramana Hebbar (Dead) by Lrs. v. M. Rajagopal Hebbar and others4, their Lordships of the Supreme Court has held in light of provision contained in Order 8, Rule 3, Rule 5 of the CPC , if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved.

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(15) In the matter of Jaspal Kaur Cheema and another Vs. Industrial Trade Links and others5, their Lordships of the Supreme Court have held that in terms of Order 8 Rule 3 of the CPC, 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

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3 AIR 1967 SC 109

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4 (2007) 6 SCC 401

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5 (2017) 8 SCC 592

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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 plain. The failure to make specific denial amounts to an admission.

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(16) Reverting to the fact of the case in light of aforesaid pleadings of the parties, it is quite vivid that it is a case of the plaintiffs that in sale deed dated 21.03.1968, Khasra No. 240 was mentioned but in the consolidation proceeding it was changed and new Khasra number i.e. 219/11 which he has purchased and in possession for last 32 years by cultivating the same. The defendant in his written statement has not made any averment that the Khasra No. 240 which was mentioned in the sale deed of the plaintiffs as on 21.03.1968 was the new khasra number, which has been given after the consolidation proceeding in the year 1967-68, but only denied those averments for want of knowledge, which is apparent from the extract of their written statement reproduced in the above mentioned paragraph which by virtue of provisions contained in Order VIII Rule 5(1) shall be taken to be admitted as held by their Lordships of the Supreme Court in the matter of Jahuri Sah (Supra), Badat (Supra), M. Venkataramana Hebbar (Dead) by Lrs. (supra) and Jaspal Kaur Cheema (supra) and by virtue of Section 58 of the Evidence Act, 1972, admitted facts need not be proved and binding on the defednatn No. 1. . Apart from this the plaintiff in support of their case has examined Rikhiram (PW1), Mohd. Iqbal , Revenue Record Keeper (PW2) from the office of Collector and Nand Kumar Yadu (PW-3) from the office of Sub-Registrar, Rajnandgaon, who had brought the original record. The defendant No.1 did not put any question to elicit any information with regard to old and new khasra numbers. Rikhiram (PW-1)- Patwari has proved the renumbering parcha and he has proved the renumbering parcha and clearly stated that by joining Khasra Nos. 87, 88, 89,

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228, 229, 230,231, 232, 238, 239 & 240, new Khasra no. 219 has given after renumbering. In paragraph 5 of his statement he has also indicated that as per map (Ex.P-3) & Khasra Nos. 219/11 & 219/1 both are separate and distinct, but surprisingly defendant did not cross examine the said witness and did not put any question to elicit any answer with regard to old and new khasra numbers. The First Appellate Court after appreciating the oral and documentary record as discussed above came to the right conclusion that plaintiff has purchased suit land Khasra No. 240 by registered sale deed which in consolidation proceeding renumbered as 219/11 which he is title in possession holder and therefore entitled for declaration of title and entitled for possession of suit property is a finding of fact based on evidence on record which is neither perverse nor contrary to the record. The First Appellate Court is absolutely justified in granting the decree in favour of plaintiff.

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(17) Resultantly, the second appeal, being devoid of merit, is liable to be and is hereby dismissed. In view of the dismissal of appeal filed by appellant/defendant, the cross objection filed by the plaintiff-decree holder stands finally disposed of. No cost(s)

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(18) A decree be drawn up accordingly.

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Sd/-

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(Sanjay K. Agrawal) Judge

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Amit Kumar Singh v. Shaikh Jabbar and Others

Case brief

What is this about?

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Amit Kumar Singh v. Shaikh Jabbar and Others

Case brief

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