Joidha Verma Vs Smt. Kamla Bai Verma and Ors.

Facts of the case, in brief, are that plaintiffs filed a civil for vacant possession and damage against the defendant pleading that Pawan Kumar Verma, husband of plaintiff No.1 and father of plaintiff No.2 & 3, had purchased the land bearing Khasra No.116/2 (Part), area 0.040, 0.020 & 0.033 hectare situate in village Bagdehi, PH No.161, Tahsil Abhanpur, District Raipur (henceforth ‘the suit land’) vide registered sale deed dated 3.6.1983, 26.3.1984 and 2.12.1986 respectively and came into possession of the same. Pawan Kumar Verma died on 25.6.1997 and since then the plaintiffs being only legal representatives of said Pawan Kumar Verma, are in peaceful possession of the suit land. It was further pleaded that plaintiffs and defendant are close relatives and as defendant was not having any accommodation in village Bagdehi to reside, therefore, the house in question was given to him to reside. Defendant is in possession of said house as a licensee. On need being arisen, plaintiffs asked the defendant to vacate the said house, however, defendant firstly avoided to vacate the house and thereafter tried to get the house recorded in his name in municipality as also to obtain tap connection. When this fact came to notice of plaintiffs, they objected the

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proceeding pending in the Municipal Council Gobra Nawapara as a result defendant failed to obtain tap connection and get his name recorded. It was further pleaded that despite service of legal notice through advocate, defendant has not handed over vacant possession of the said house within notice period, therefore, necessity has arisen to file civil suit.

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On service of summons, defendant appeared before the trial Court, submitted his written statement and denied the averments made in plaint. It was pleaded that the land over which house in question is constructed was purchased by defendant in the name of his elder brother vide registered sale deed dated 3.5.1983 and since the date of purchase, defendant is in possession of the same by constructing a house thereon. While residing in joint family, defendant had purchased said land out of his income from hotel business. It was further pleaded that under a mutual settlement, husband of plaintiff No.1 was managing the agriculture land situated in village Chandana, whereas defendant and his younger brother were residing in house situated in Nawapara and running the business of hotel and out of income from hotel business, defendant had purchased the suit land in village Bagdehi in the name of his elder brother and after constructing a house thereon residing therein since 1987-88.

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It was further pleaded that after purchase of land, defendant installed flour mill and hauler mill at one portion of land and operating the same. Plaintiffs have obtained the papers of suit land from the defendant saying that the same is required to obtain caste and domicile certificate but thereafter did not return the same. Plaintiffs ought to have filed the suit in the year 1988-89. Plaintiffs have not filed any suit during lifetime of Pawan Kumar. Defendant being in peaceful possession of suit property for the last 21 years has acquired title.

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On the basis of pleadings of respective parties, learned trial Court framed as many as 07 issues, afforded opportunity of leading evidence to the parties in support of their respective case. Upon appreciation of the oral and documentary evidence on record, learned trial Court decreed the suit of plaintiffs holding that plaintiffs have proved the lands, subject matter of sale deeds Ex.P-1, Ex.P-2 & Ex.P-16, were purchased by Pawan Kumar Verma and defendant was residing in disputed property with the permission of Pawan Kumar.

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I have heard learned counsel for respective parties and perused the record.

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Learned counsel for defendant/appellant herein submits that from the pleadings made in plaint it is appearing that property in dispute was not purchased from the income of ancestral

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property, rather it was purchased by defendant/appellant herein from his own income. In pleadings of plaint, plaintiffs have pleaded that defendant was permitted to resident in suit house as licensee. As per pleadings, the suit house was given to defendant by Pawan Kumar Verma, who died on 25.6.1997, however, suit was filed on 23.2.2010 i.e. after more than 12 years, and therefore, suit was barred by limitation. He next contended that plaintiff No.1-Kamla Bai Verma is third wife of Late Pawan Kumar Verma, her marriage was during subsistence of second marriage with Kesar Bai and as such, plaintiff No.1 was not legally wedded wife of Late Pawan Kumar and therefore, having no right to file suit for possession of property recorded in the name of Late Pawan Kumar Verma. Though son of Pawan Kumar Verma also arrayed as plaintiffs along with their mother Kamla Bai, however, they did not enter into witness box to prove the pleadings made in the plaint and therefore, pleadings made in the plaint remain unproved. However, this important aspect has not been considered by learned trial Court. He also referred to evidence of DW-4 Ashok Kumar to submit that this witness had clearly admitted that amount of sale consideration for purchase of land, subject matter of sale deed Ex.D-18, was paid by defendant. He next contended that Pawan Kumar Verma was not having source

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of income to purchase property and therefore also it is apparent that suit property purchased through registered sale deed Ex.P-1, Ex.P-2C, Ex.P-16C were from the income of defendant. In support of his submissions, he placed reliance upon decisions rendered in case of Ishwarlal Vyas vs. District Judge and another, reproted in 1990 MPLJ 579.

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Learned counsel appearing on behalf of plaintiffs/ respondents herein opposing submissions made by learned counsel for defendant/appellant herein, submits that there is material available in record to show that Pawan Kumar Verma during his lifetime was working as Radio Mechanic and thus, he was having source of income to purchase the property, subject matter of suit. In support of contention, he referred to evidence of Joidharam (DW-1) in particular Para23. He also referred to deposition of Ashok Kumar (DW-4) and submits that this witness admitted in Para-11 of his statement that he had sold land to Pawan Kumar after accepting sale consideration. With reference to the ground raised by learned counsel for appellant that plaintiff No.1 is not legally wedded wife of Pawan Kumar Verma, he submits that there is no such pleading in written statement and therefore trial Court has not framed any issue in this regard. Facts which were not pleaded at first instance, cannot be permitted to be raised during course of argument at appellate

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stage as a ground. He also contended that daughters of plaintiff No.1 is not arrayed as a party because it is not a title suit and only for recovery of possession on the ground that suit property which is in the possession of defendant was given to him on lease and it can be stated that defendant was in permissive possession. To substantiate the argument/ground raised that defendant has paid sale consideration of the land, subject matter of suit, no witness is examined in this behalf like seller of said land, and therefore, said ground raised by learned counsel for appellant remains unproved. In support of his submissions, he placed reliance on decision rendered in case of Shivaji Balram Haibatti vs Avinash Maruthi Pawar, reported in (2018) 11 SCC 652.

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I have heard learned counsel for respective parties and perused the record.

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Admittedly, the suit was filed by three persons as plaintiff, plaintiff No.1 to be widow of Late Pawan Kumar Verma and mother of plaintiff No.2 and 3. In support of proof of pleadings made in plaint that suit property was exclusively purchased by Late Pawan Kumar Verma, plaintiffs have submitted sale deeds dated 26.3.1981 (Ex.P-1) and 3.6.1983 (Ex.P-2) executed by Pratap Chand in favour of Pawan Kumar Verma and sale deed dated 12.12.1985 (Ex.P-18) executed by Ashok Sharma in favour of Pawan Kumar

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Verma. Plaintiffs have further submitted legal notice (Ex.P-3) issued by an advocate to defendant asking him to evict the suit premises pleading therein that defendant was in permissive possession being licensee of the suit premises owned and possessed by Late Pawan Kumar Verma and after death of Pawan Kumar Verma, the plaintiffs, in revenue records (Ex.P-8), name of plaintiffs along with other children of Late Pawan Kumar Verma is also recorded. Copy of kishtbandi khatoni is placed on record as Ex.P-8 and Khasra Panchsala is Ex.P-9. Joint affidavit of Rohini Verma, Ishwari Deshmukh and Smt. Tulsi Verma is also filed wherein it is pleaded that plaintiff No.1 is their mother and plaintiff No.2 and 3 are brothers. Suit accommodation was temporarily given to defendant as he was not having any alternate place or accommodation and that, defendant after death of their father, was making attempt to get his name recorded in government documents.

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Kamlabai is examined as PW-1. She stated as per pleadings made in plaint and also proved the documents Ex.P-1, Ex.P-2, Ex.P-3 and others. She denied the suggestion that her husband was residing in village Chandana for purpose of doing agriculture activities and stated that she was residing in village Nayapara in part of suit accommodation. It is plea of defendant that it is defendant who purchased the property

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in the name of Late Pawan Kumar Verma (elder brother) and after purchase of land, it is defendant who had constructed two room accommodation and started living.

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In aforementioned facts of the case whether the land on which accommodation in dispute is constructed is recorded in the name of Pawan Kumar Verma and pleading of defendant is that sale consideration was paid by him though Pawan Kumar is shown to be owner/purchaser of the suit property, then burden of proof lies upon the defendant to prove the facts pleaded in written statement as provided under Section 101 of the Evidence Act.

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Defendant/appellant herein is examined as DW-1. In para-22 of cross-examination, he admitted that in the sale deed, Ex.P-1, Ex.P-2 and Ex.P-16, it is not mentioned that defendant has paid the sale consideration but stated that they were jointly residing and working. He also has not filed any document or adduced any evidence to show that he has obtained possession from Pawan Kumar. He also admitted that the land is recorded in the name of plaintiffs; Late Pawan Kumar Verma was doing work of Television, Radio mechanic. In para-31 though he denied suggestion that hauler mill is established in the suit accommodation with the permission of Kamlabai, stated that he has established hauler mill with the permission of Pawan, husband of plaintiff No.1.

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Sharan is examined as DW-2. This witness in Para-11 of cross-examination stated that he is not aware about purchase of property by defendant Joidha Verma. He also clarified that information which he gave with regard to cash transaction is according to information gathered from defendant Joidha. This witness also stated that he is not aware about the fact that suit accommodation was given to Joidha as licensee to reside.

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Banshilal is examined as DW-3. In examination-in-chief he stated nearer to the pleadings made in written statement. This witness in cross-examination stated that he is not having knowledge as to when defendant Joidha came to village Nawapara; he is not aware as to what property was purchased by defendant. In para-8 of cross-examination, he stated that Kamla is residing in disputed property along with her son. He further clarified that prior to it, she was residing in village Chandana and he did not visit village Chandana at any point of time. Question was posed to this witness that in examination-in-chief there is mention that he visited house of defendant 2-3 times, this witness answered the question that, he did not visit.

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Ashok Sharma, one of land owners who sold the property, subject matter of dispute, vide sale deed, Ex.P-16C, is examined as DW-4. In Para-11 of his cross-examination, he

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stated that it is true that he sold the land mentioned in Ex.P18 to Pawan Kumar, received the sale consideration, handed over possession and transferred the ownership rights to purchaser.

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From the above facts as brought in record by defendant to prove the pleadings made in written statement, it is apparent that there is no clinching and admissible piece of evidence to suggest that defendant had paid the sale consideration to purchase the property, subject matter of dispute. In fact, one of sellers examined as DW-1 has stated that he sold the land to Pawan Kumar, executed and registered the sale deed in his favour and made owner of land.

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From the evidence available in record it is not in dispute that property was purchased in the name of Pawan Kumar Verma. Defence taken by defendant is that it is he who paid the sale consideration and therefore, in view of provisions under Section 101 of the Evidence Act, burden was upon defendant to prove existence of facts which he asserted. In case of Rangamal vs. Kuppuswami reported in AIR 2011 SC 2344 , it is observed that when a person is bound to prove existence of any fact, it is said that the burden of proof lies on that person. Thus, the burden of proving facts always lies upon the person who asserts it. Unless such burden is

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discharged, other party is not required to be called upon to prove his case.

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Learned trial Court upon appreciation of evidence brought on record in the facts and circumstances of case, came to conclusion that defendant failed to prove that property, subject matter of sale deeds, Ex.P-1, Ex.P-2 and Ex.P-16, is purchased by his own income in the name of Pawan Kumar Verma. Defendant also failed to prove that he got construction of superstructure out of his own income. Learned trial Court based on preponderance of probabilities and upon appreciating the evidence and other material on record has also concluded that all three properties, subject matter of sale deeds as mentioned above, were purchased by Pawan Kumar and build up property. Defendant was residing in part of the property with the permission of Pawan Kumar Verma. Said finding cannot be said to be perverse to the evidence available on record and therefore, judgment and decree passed by learned trial Court cannot be said to be erroneous calling interference of this Court.

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So far as decision in case of Ishwarlal (supra), which is relied upon by learned counsel for appellant herein, is concerned, the same is of no help to appellant being distinguishable on facts. The issue involved in that case was regarding allotment of space to appellant therein, license of which was

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granted to his deceased father. In case at hand, dispute is pertaining to title over the land in question.

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