Bhagtu Vs (Deleted), Kana, Through Legal Heir

For Appellant/Defendant : Mr. Prafull N. Bharat, Senior Advocate along with Mr. Tanmay Thomas, Advocate For Respondents/Plaintiffs : None appears though served

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Hon'ble Shri Justice Rakesh Mohan Pandey

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Judgment on Board

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14.08.2025

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Heard.

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This second appeal was admitted on the following substantial questions of law:-

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“1. Whether the suit filed by the plaintiff was maintainable without there being a prayer for the registered sale deed to be declared null and void?"

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Whether the suit of the plaintiff was maintainable in the light of Section 169 of the Chhattisgarh Land Revenue Code ?

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Whether the suit preferred by the plaintiff in its existing form would have been maintainable when the claim of the plaintiff was redemption of mortgage?"

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The appellant/defendant has filed this second appeal under Section 100 of the CPC against the judgment and decree passed by the learned Third Additional District Judge, Bastar, in Civil Appeal No.33-A/1999, dated 07.08.2000, whereby the appeal preferred by the appellant/defendant has been dismissed.

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The plaintiff/respondent filed a suit for declaration and possession over lands bearing survey Nos. 17/4-3, 70/3, 17/13, 17/23 total admeasuring 1.76 acres situated at Village Pathri, Tehsil Jagdalpur, District Bastar, interalia on the ground that the suit property is his ancestral property and due to weak financial condition, the suit property was mortgaged with a stipulation that whenever the plaintiff returns the money, the lands would be reverted. The plaintiff further pleaded that when he tried to return the amount, the defendant refused to accept it and denied to revert the land and therefore, a complaint was lodged at the Police Station. It is also pleaded that the defendant accepted the money advanced by him to the plaintiff but declined to return the suit property.

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The defendant filed a written statement and denied the plaint averments. He denied the fact that on 09.07.1997, Rs.2,000/- was refunded to him in the presence of the witnesses. He also denied the fact

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that the sale deed does not contain the thumb impression of the plaintiff.

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Learned Trial Court framed issues, and the parties led evidence. Learned Trial Court vide judgment and decree dated 12.04.1999 decreed the suit filed by the plaintiff.

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The appellant herein preferred a regular appeal before the learned Appellate Court, which was dismissed vide judgment dated 07.08.2000. Against the said judgment, this appeal has been preferred.

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Mr. Bharat, learned Senior Advocate appearing for the appellant/defendant, would submit that though there is an admission on the part of the plaintiff that a sale deed was executed in favour of the defendant, the same has not been challenged, and therefore, the suit filed by the plaintiff is not maintainable. He would further submit that the suit of the plaintiff was not maintainable according to the provisions of Section 169 of the Chhattisgarh Land Revenue Code, 1959 (for short ‘the Code of 1959’). He would also submit that the plaintiff had filed a suit for redemption of mortgage, whereas no such prayer has been made in the plaint. It is argued that the learned Courts below committed an error of law in holding that the suit property was mortgaged by the plaintiff; the mortgaged amount of Rs.2,000/- was refunded to the defendant in the presence of witnesses, and the appellant/defendant failed to revert the land. He would also contend that the learned Courts below committed an error in not considering the fact that the plaintiff has not challenged the sale deed, and further, the plaintiff has not sought any relief with regard to the redemption of the mortgage. He would pray to allow the instant appeal.

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Despite the service of notice, there is no representation on behalf

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of the respondent/plaintiff.

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

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A perusal of the plaint would show that the plaintiff has sought the relief of declaration of title and possession interalia on the ground that the property was mortgaged and the amount of Rs.2,000/- was refunded to the defendant on 09.07.1997 in the presence of witnesses. It is also pleaded that the defendant never executed any sale deed, and the sale deed does not contain his signature.

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The defendant in the written statement has denied the averments made in the plaint and also denied the factum of the mortgage. In para 2, the defendant stated that the suit property was never mortgaged by the plaintiff for consideration of Rs.2,000/-. In para 4, the defendant has denied the fact that he ever admitted the execution of the sale deed and the reversion of land. He also denied the fact that the amount of Rs. 2000/- was refunded by the plaintiff on 09.07.1997 in the presence of witnesses. In para 6, the defendant denied the fact that the sale deed was not executed by the plaintiff, and it does not contain the plaintiff’s thumb impression.

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A perusal of the record would show that neither the plaintiff nor the defendant adduced a single document, and even the sale deed was not produced before the learned Trial Court.

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The plaintiff examined himself as PW1. He repeated the contents of the plaint. He examined Purushottam (PW2) to prove the fact that Rs.2000/- was refunded, and there was an admission on the part of the

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defendant in the presence of the police officials that he would return the land. In cross-examination, this witness remained firm. The defendant examined himself as DW1 and pleaded that the suit property, admeasuring 1.76 acres, was purchased in consideration of Rs.2500/and the document was executed in the Collector's office in the presence of Lutturam and Khageshwar. In cross-examination, he denied the fact that Rs. 2000/- was refunded to him by the plaintiff in the presence of police officials. He also admitted the fact that the document was signed by Lutturam and Khageshwar, and the plaintiff had put his thumb impression.

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Ramchandra (DW2) in Examination-in-Chief has stated that the sale document was executed and Rs.2500/- was given to the plaintiff, and since then, the defendant is cultivating the suit property.

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Lutturam (DW3) has deposed that a sale deed was executed in the office of the Registrar, and Rs.2500/- was handed over to the plaintiff. He also stated that he had signed the sale deed as a witness.

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Learned Trial Court held that the suit property was mortgaged by the plaintiff with the defendant for consideration of Rs.2000/-; the amount of Rs.2000/- was refunded by the plaintiff to the defendant, and the sale deed is the outcome of fraud.

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Learned Appellate Court affirmed the findings recorded by the learned Trial Court.

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The plaintiff has not filed a suit for redemption of the mortgage or to declare the sale deed as null and void; therefore, there was no need to make a prayer to declare the sale deed null and void.

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Section 169 of the Code of 1959 states that if a bhumiswami leases out his holding for any period in contravention of Section 168, the rights of an occupancy tenant shall accrue to the lessee after the expiration of a period of two years from the date of possession.

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In the present case, the plaintiff never leased out his property to the defendant. Neither the plaintiff nor the defendant has pleaded the factum of the lease. The defendant has not taken a plea of Section 169 of the Code of 1959 in his written statement, and for the first time, this ground has been raised before this Court. Therefore, the contention made by Mr. Bharat with regard to Section 169 of the Code of 1959 cannot be accepted.

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The plaintiff has sough the relief of declaration of title and possession on the ground that despite the refund of the consideration amount, the defendant has not reverted the land and no prayer was made for redemption of the mortgage; therefore, there was no need for the plaintiff to claim the relief of redemption of the mortgage.

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The defendant has not pleaded the fact of the execution of the sale deed in the written statement. The names of attesting witnesses to the sale deed have not been disclosed in the written statement. The defendant also failed to mention the date of the execution of the sale deed. The fact with regard to the execution of the sale deed in the office of the Collector or Sub Registrar has not been pleaded. These facts have been disclosed for the first time in evidence of the defendant. It is a wellsettled principle of law that evidence beyond pleading is not admissible.

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