Dismissed

Sudama Yadav v. Awlad Shah and Others

Chhattisgarh HC2 Aug 2019SA/211/2006

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for declaration of title and permanent injunction, the High Court of Chhattisgarh dismissed the appeal. The court held that the plaintiff failed to establish that the seller had the right to transfer the property due to lack of proof regarding the ownership status of the deceased vendor, rendering substantive legal questions moot. The appeal was dismissed for fa

What the court decided

AI extract

Sudama Yadav Vs Awlad Shah and Others — Property and Title | Chhattisgarh HC (2019)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.211 of 2006

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Judgment reserved on: 25-7-2019

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Judgment delivered on: 2-8-2019

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Sudama Yadav, S/o Bali Charan Yadav, aged 50 years, Occupation Cultivation, R/o Khalpara, Narmadapur, P.S. Kanilshwarpur, Tehsil Sitapur, Distt. Surguja (C.G.)

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(Plaintiff) {Appellant (in first appeal)} ---- Appellant

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Versus

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Awlad Shah, S/o Poinda Khan, aged 50 years, Occupation Cultivation, R/o Village Sur, P.S. & Tehsil Sitapur, District Surguja (C.G.)

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Jumma Goel, S/o Nur Khan, aged 40 years, Occupation Cultivation, R/o Village Baherade, P.S. Dhoarpur, Tehsil Lundra, Distt. Surguja (C.G.)

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Ashraf Qureshi, S/o Hanif Qureshi, aged 40 years, R/o Mohalla, Mugal Bazar, Kharsia, Distt. Raigarh (C.G.)

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State of C.G., Through Collector, Surguja (C.G.)

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(Defendants) {Respondents (in first appeal)} ---- Respondents

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For Appellant: Mr. Malay Shrivastava, Advocate. For Respondents No.1 and 2: - None present, though served. For Respondent No.3: Mrs. Hamida Siddique and Mr. Rahul Agrawal, Advocates. For Respondent No.4 / State: - Mr. Ravi Kumar Bhagat, Deputy Govt. Advocate.

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Hon'ble Shri Justice Sanjay K. Agrawal

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C.A.V. Judgment

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This plaintiff's second appeal was admitted for hearing on the

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following substantial questions of law: -

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“1(a) Whether the finding that the entire consideration was not paid to defendant No.1 vitiates because, the said plea raised by defendant No.1 has not been substantiated by examining himself or any other witness?

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1(b) Whether the Courts below committed an error of law in holding that the sale-deed dated 31/3/1998 (Ex.P-1) does not confer any valid title upon the plaintiff and the same vitiates on the above ground?

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Whether the Courts below should have drawn adverse inference and have rejected the contention of defendant No.1 regarding the plea of non-payment of full consideration, when he himself did not appear in the witness box to substantiate the plea?”

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The suit property was originally held by Peer Khan. It is the case of the plaintiff that he has purchased the suit land from the nephew of Peer Khan by registered sale deed dated 31-3-1998 (Ex.P-1) and obtained possession and got the name recorded in the revenue record, but since the defendants started quarrelling on the basis of gift deed dated 18-3-1989 and on account of the revenue proceedings initiated and pending, he filed the suit on 1-8-2000 seeking declaration of title and permanent injunction in which defendant No.1 filed written statement and admitted the fact of execution of sale deed in favour of the plaintiff, but further averred that the consideration amount of only ₹ 15,000/- has been paid out of ₹ 75,000/- and therefore no title has been passed. However, defendant No.3 setup the plea of gift in his favour by Peer Khan on 18-6-1989 and also filed counter-claim seeking possession, before the trial Court.

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The trial Court by its judgment & decree dated 30-9-2004 dismissed the suit as well as the counter-claim and on appeal preferred by both the parties, dismissal of suit and counter-claim was upheld by the first appellate Court. Now, only the plaintiff has filed second appeal in which the above-stated three substantial questions of law have been formulated for determination.

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Mr. Malay Shrivastava, learned counsel appearing for the appellant herein / plaintiff, would vehemently submit that defendant No.1 had

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already admitted sale in his favour, but allegedly pleaded that he has not been paid full consideration, however, he has not entered into the witness-box and therefore his stand cannot be accepted in view of the decision rendered by the Supreme Court in the matters of Vidhyadhar v. Manikrao and another 1 and Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others 2. Therefore, both the Courts below ought to have held that valid consideration has been passed in favour of defendant No.1 and he has conveyed full title to the plaintiff for which he is entitled for decree of declaration of title and permanent injunction.

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None present for respondents No.1 & 2 herein / defendants No.1 & 2, though served.

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Mrs. Hamida Siddique, learned counsel appearing for respondent No.3 herein / defendant No.3, would submit that the plaintiff has failed to prove that he has succeeded original holder Peer Khan, as defendant No.1 was a man of bad repute and he used to torture original holder Peer Khan and thereby Peer Khan has executed a gift deed dated 18-6-1989 in his favour on the basis of which revenue records have already been corrected and those documents have been exhibited as Exs.D-1 & D-2. As such, the first appellate Court has rightly held that the plaintiff has failed to establish that he has inherited the property from Peer Khan being nephew and he has no legal representative and therefore dismissal of first appeal cannot be taken exception to by the plaintiff. Therefore, the judgment & decree of the first appellate Court dismissing the appeal of the plaintiff deserves to be affirmed.

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I have heard learned counsel for the parties and considered their rival

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1 (1999) 3 SCC 573

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2 (2005) 2 SCC 217

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submissions made herein-above and also went through the record with utmost circumspection.

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The suit property was admittedly owned by Peer Khan. The first appellate Court has held that he died leaving his son at Afghanistan, Kabul and therefore defendant No.1 Awlad Shah being his nephew had no right to sell the suit property in favour of the plaintiff. The plaintiff is purchaser from Awlad Shah. He had filed suit that by sale deed dated 31-3-1998 (Ex.P-1) made by Awlad Shah, valid title has been conferred to him. Since the original owner was Peer Khan and the plaintiff is claiming title, therefore, the plaintiff was required, not only to plead, but also to establish that Peer Khan died issue-less and his nephew defendant No.1 inherited the property of Peer Khan in inheritance which he did not do. The plaint is blissfully silent on the fact that whether Peer Khan died issue-less or he had a legal heir to inherit the property. Merely claiming that he is the near relative of Peer Khan and he inherited the property and thereafter he had right to sell the property, it cannot be held that Awlad Shah – defendant No.1 has in his lawful right transferred the property by way of Ex.P-1 in favour of the plaintiff. The plaintiff has failed to establish that Peer Khan died issue-less and therefore defendant No.1 inherited the property, as he was claiming through the sale deed executed by Awlad Shah who was claiming to be nephew of Peer Khan. Since the plaintiff has failed to establish and plead that Awlad Shah had right to transfer the suit property, therefore, even the questions of law are answered in favour of the plaintiff. The plaintiff would not be entitled for decree for the reason that the plaintiff had failed to establish that Awlad Shah – defendant No.1 had the right to sell the property of Peer Khan to the plaintiff. As such, the substantial questions of law as

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framed at the time of admission do not arise for consideration for the reasons mentioned herein-above. I do not find any perversity or illegality in the said finding. The second appeal deserves to be and is accordingly dismissed. No order as to cost(s).

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Decree be drawn-up accordingly.

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Sd/(Sanjay K. Agrawal) Judge

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Soma

Sudama Yadav v. Awlad Shah and Others

Case brief

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What the court decided

Sudama Yadav v. Awlad Shah and Others

Case brief

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