(Deleted) Shivnarayan Gole (Died) Through Lrs. Vs Chief Executive Officer

1.1 - (A) Smt. Tanulata Banafar Father Of Late Shivnarayan Gole Aged About 55 Years R/o Infront Of Career Point, Dayalband Bilaspur Police Station City Kotwali, Tahsil And District - Bilaspur Chhattisgarh.

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1.2 - (B) Smt. Snehlata Sonkar Father Of Late Shivnarayan Gole Aged About 53 Years R/o Infront Of Career Point, Dayalband Bilaspur Police Station City Kotwali, Tahsil And District - Bilaspur Chhattisgarh.

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1.3 - (C) Smt. Priyalata Sharan Father Of Late Shivnarayan Gole Aged About 49 Years R/o Infront Of Career Point, Dayalband Bilaspur Police Station - City Kotwali, Tahsil And District - Bilaspur Chhattisgarh.

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1.4 - (D) Sidha Narayan Gole Father Of Late Shivnarayan Gole Aged About 47 Years R/o Infront Of Career Point, Dayalband Bilaspur Police Station - City Kotwali, Tahsil And District - Bilaspur Chhattisgarh.

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1.5 - (E) Smt. Swarnlata Sonkar Father Of Late Shivnarayan Gole Aged About 44 Years R/o Infront Of Career Point, Dayalband Bilaspur Police Station - City Kotwali, Tahsil And District - Bilaspur Chhattisgarh.

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1.6 - (F) Shrinarayan Gole Father Of Late Shivnarayan Gole Aged About 42 Years R/o Infront Of Career Point, Dayalband Bilaspur Police Station - City Kotwali, Tahsil And District - Bilaspur Chhattisgarh.

Appellant(s)

Versus

2

1 - Chief Executive Officer Chhattisgarh State Waqf Board C-12, Sector-3, Devendra Nagar Raipur, Police Station- Devendra Nagar, Tahsil And DistrictRaipur, C.G., Civil And Revenue District- Raipur, Chhattisgarh

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2 - Mohammad Israil S/o Mohammad Ismile Aged About 55 Years Chairman Managing Committee Of Makant And Arahman, Karbala Road Bilaspur, Police Station-City Kotwali, Tahsil And District- Bilaspur, C.G., Civil And Revenue District- Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh

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3 - Land Acquisition Officer Sub- Divisional Officer Revnue Bilaspur, Police Station Civil Lines, Tahsil And District- Bilaspur, C.G., Civil 7 Revenyue District- Bilaspur, Chhattisgqrh, District : Bilaspur, Chhattisgarh

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4 - State Of Chhattisgarh Through Collector, Bilaspur, Police Station Civil Lines Bilaspur, Tahsil And Distirct Bilaspur, C.G., Civil And Revenue DistrictBilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh

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Respondent(s)

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(Cause-title taken from Case Information System)

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For Appellant(s)	: Mr. Ratnesh Kumar Agrawal and Mr. Sourav Agrawal, Advocate.
For Resp. No.1	: Ms. Shraddha Mishra, learned counsel appearing on behalf of Mr. Prateek Sharma, learned counsel for respondent No.1.
For Resp No. 2 For Resp. No.4	: Mr. Kshitij Sharma, learned counsel for respondent No. 2. : Mr. Lekhram Dhruw, learned Panel lawyer for the State.

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Hon'ble Shri Bibhu Datta Guru, J

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C A V Judgment

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By the present appeal under Section 100 of the CPC, the appellant/plaintiff is challenging the impugned judgment and decree dated 09/04/2015 passed by the learned II Additional District Judge,

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Bilaspur (C.G.) in Civil Appeal No. 157 A/2014 (Shivnarayan v. Chief Executive Officers & Others) arising out of the judgment and decree dated 08/09/2014 passed by the learned III Civil Judge Class-I, Bilaspur C.G. in Civil Suit No. 29A/2011 (Shivnarayan v. Chief Executive Officers & Others) whereby the learned Appellate Court dismissed the appeal filed by the plaintiff and affirmed the judgment and decree passed by the trial Court.

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For the sake of convenience, the parties would be referred as per their status before the learned trial Court.

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The instant Second appeal was admitted for hearing on the following substantial question of law?

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“Whether the learned Courts were justified in law in holding that the land in dispute was not in the title and ownership of Abdul Wahid Khan, the vendor of land in dispute, having held that the disputed property is not proved to be part of waqf property?”

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(a) Facts of the case are that the plaintiff instituted the suit for declaration of his title over the suit property bearing Khasra No. 111, admeasuring 560 sq.ft., for permanent injunction restraining the defendants from interfering with his peaceful possession and from disbursing the compensation amount to any person other than the plaintiff, and for a direction to defendants No. 3 and 4 to pay the compensation arising out of the acquisition of a portion of the suit land to him. It was pleaded that the plaintiff had purchased the suit property on 25/02/1992 from Abdul Wahid Khan by way of a registered sale deed and has since been in peaceful possession thereof. A portion of the suit

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land, measuring 0.01, ¼ acre, was sought to be acquired by defendant No. 3 for construction of a public access road, and intimation to that effect was given to the plaintiff. Upon approaching the office of defendant No. 3 on 30/03/2008 to claim compensation for the acquired land, the plaintiff came to know that a decision had been taken to disburse the compensation amount in favour of defendant No. 1. Defendant No. 1 was claiming ownership over a part of the suit property on the ground that the land had allegedly been dedicated to the Waqf Board by late Abdul Rahman Khan through a Waqf deed dated 19/09/1932. The plaintiff clarified that the Waqf property of defendants No. 1 and 2, known as Lal Aath Kholi, measuring 87 × 30 sq.ft., is distinct from the suit land. Since defendants No. 3 and 4 were inclined to release the compensation in favour of defendants No. 1 and 2, the plaintiff issued a registered notice under Section 80 of the Code of Civil Procedure, but no action was taken thereon. Hence, the present suit was filed.

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(b) Defendant No. 2 contested the suit by filing a written statement denying the plaint allegations and contending that the registered sale deed dated 25/02/1992 executed by Abdul Wahid Khan in favour of the plaintiff is void and inoperative, as he had no authority to alienate the property. It was pleaded that, in view of the Waqf deed dated 19/09/1932 executed by late Abdul Rahman Khan, neither the Waqf nor the Mutawalli had any right to transfer the Waqf property and that, under Section 50 of the Waqf Act, 1995, any transfer without prior sanction of the Board is void. It was further contended that the suit land is Waqf

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property under the ownership and possession of defendant No. 2 and that the plaintiff has no right, title, or interest therein. It was also pleaded that under Sections 5, 6 and 9 of the Land Acquisition Act, 1894, the plaintiff ought to have sought a reference under Section 18 before the Land Acquisition Officer for adjudication of title and apportionment of compensation, which he failed to do, and therefore the suit is liable to be dismissed.

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(c) Defendants No. 3 and 4 also filed their written statement, admitting only such facts as were specifically acknowledged and denying the rest. It was stated that about five and a half decimals of land out of Khasra No. 111 situated at Village Junabilaspur were being acquired for public purpose and that a dispute regarding compensation existed between the plaintiff and the Waqf Committee in respect of a portion thereof; however, no final order had been passed in favour of defendant No. 1 for payment of compensation. It was further contended that disputes arising under the Land Acquisition Act, 1894 fall within the jurisdiction of the Court of First Additional District Judge, Bilaspur, as per allocation made by the District Judge, Bilaspur, and therefore the present suit was not filed before a competent court. It was also pleaded that the suit was not properly valued and that, since the land had already been acquired for public purpose, the plaintiff could not maintain a suit for declaration over the acquired land. Accordingly, dismissal of the suit with costs was prayed for. Defendant No. 1 remained ex parte and did not file any written statement.

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(d) After appreciating the oral and documentary evidence and considering the pleadings of the parties, the Trial Court dismissed the suit holding that the plaintiff had failed to establish his lawful title over the suit property. The Court observed that although the plaintiff relied upon the registered sale deed dated 25/02/1992 (Ex.P-1), he did not produce any material to show that the vendor, Abdul Wahid Khan, had exclusive and transferable title over the suit land prior to its execution. From the revenue record (Ex.P-7), it was found that the land in question was recorded as abadi nazul land and that the name of “Mohammad Izrail Waqf” was reflected as owner, and not the name of the plaintiff or his vendor. The plaintiff, in his cross-examination, admitted that neither his name nor the name of his vendor was recorded as owner in the khasra entries and further admitted that he was residing in Lal Aath Kholi, which is Waqf property. The Trial Court also noted that the Waqf deed dated 19/09/1932, though pleaded, was not produced by defendant No. 2; however, in the absence of proof of valid title in favour of the plaintiff’s vendor, the plaintiff could not succeed. It was further held that the plaintiff had not established any lawful right to receive the compensation awarded in the land acquisition proceedings and, therefore, was not entitled to declaration of title, permanent injunction, or payment of compensation. Accordingly, Issues No. 1, 2 and 6 were decided against the plaintiff. On the question of jurisdiction, the Trial Court held that since the suit was essentially one for declaration of title and permanent injunction, the Civil Court had jurisdiction to try the same and that the provisions of the Land Acquisition Act, 1894 did not

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bar such adjudication. The Court further held that the suit was properly valued and sufficient court fee had been paid, as the principal relief claimed was declaration and injunction. However, on merits, the plaintiff having failed to prove his lawful title and interference by the defendants, the suit was dismissed.

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Aggrieved by the said judgment and decree, the plaintiff preferred a first appeal before the Appellate Court, which, upon re-appreciation of the evidence on record, affirmed the findings of the Trial Court and dismissed the appeal. Hence, the present Second Appeal has been preferred by the appellant, giving rise to substantial questions of law for consideration.

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Learned counsel for the appellant/plaintiff submits that the learned Trial Court and the learned First Appellate Court have erred in holding that the appellant failed to prove his case. It is contended that the appellant duly proved the registered sale deed dated 25/02/1992 (Ex.P-1) executed by Abdul Wahid Khan in his favour, and in absence of any challenge to its execution or validity, the same could not have been discarded. The finding that the vendor lacked authority to transfer the suit land is legally unsustainable, particularly when the respondents/defendants failed to establish any superior title. It is further submitted that though reliance was placed upon an alleged Waqf deed dated 19/09/1932, the same was not produced, nor was any documentary evidence adduced to show that the suit land formed part of “Lal Aath Kholi” Waqf property. In absence of proof that the land was Waqf property, the appellant’s title arising from a registered instrument could not have been negatived merely on

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the basis of revenue entries, which do not confer title. The reasoning adopted is self-contradictory, as it was observed that the property was not proved to be Waqf property, yet the appellant’s title was not recognized. The burden to establish that the property was inalienable Waqf property lay upon the defendants, therefore, the present Second Appeal be allowed.

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Countering the aforesaid submissions, learned counsel for the respondents/defendants submits that the present Second Appeal is devoid of merit and does not give rise to any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908. It is contended that both the learned Trial Court and the learned First Appellate Court, upon proper appreciation of oral and documentary evidence, have concurrently held that the appellant failed to establish lawful title over the suit property. It is argued that mere production of a registered sale deed dated 25/02/1992 (Ex.P-1) does not by itself confer title unless the vendor is shown to have valid and transferable ownership. The appellant failed to prove that Abdul Wahid Khan had exclusive title over the suit land. The revenue records clearly reflected that the land was recorded as abadi nazul land and not in the name of the appellant or his vendor. In cross-examination, the appellant himself admitted that neither his name nor that of his vendor was recorded as owner in the revenue entries. Learned counsel further submits that the burden of proving title squarely lay upon the appellant, which he failed to discharge. In a suit for declaration of title, the plaintiff must succeed on the strength of his own case and not on the weakness of

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the defence. The findings recorded are pure findings of fact based on appreciation of evidence and do not suffer from perversity or misapplication of law. It is thus contended that no substantial question of law arises for consideration in the present appeal, and the same deserves to be dismissed with costs.

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I have heard learned counsel for the appellant at length and have carefully perused the pleadings, oral and documentary evidence as well as the judgments and decrees passed by the Courts.

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The present Second Appeal has been preferred under Section 100 of the Code of Civil Procedure, 1908, which circumscribes the jurisdiction of this Court only to substantial questions of law. The First Appellate Court, upon due re-appreciation of the material available on record, dismissed the appeal and affirmed the judgment and decree passed by the learned Trial Court. Interference in Second Appeal is, therefore, permissible only if the findings recorded by the Courts below are shown to be perverse, contrary to law, based on misreading or non-consideration of material evidence, or recorded in violation of settled legal principles.

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The substantial question of law framed at the time of admission pertains to whether the Courts were justified in holding that the land in dispute was not in the title and ownership of Abdul Wahid Khan, the vendor of the suit land, particularly when the property was not proved to be Waqf property.

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It is a trite law that in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants

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would not be a ground to grant relief to the plaintiff. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against them, in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited.

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The Supreme Court in the matter of Union of India & Others v. Vasavi Cooperative Housing Society Limited & Others, (2014) 2 SCC 269 held thus at para 15 & 17 as under:-

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“15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff..

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XXX XXX XXX XXX

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17. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31 observed that:

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20…...in a suit for declaration if the plaintiffs are to succeed they must do son on the strength of their own title.

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In the present case, the plaintiff bases his claim solely upon the registered sale deed dated 25/02/1992 (Ex.P/1) executed by Abdul Wahid Khan. However, mere production of a sale deed is not sufficient in a suit

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for declaration of title. The plaintiff was required to establish that his vendor had lawful and transferable ownership over the suit property.

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Upon perusal of the record, it emerges from documents Ex.P/3 and Ex.P/4 i.e. land revenue records that the suit land stood recorded in the name of the Government. The revenue record (Ex.P/7) further reflects that the land was recorded as Abadi Nazul land and the name of “Mohammad Izrail Waqf” was shown as owner. Significantly, neither the name of the plaintiff nor that of his vendor was recorded as owner. In cross-examination, the plaintiff admitted that his name was not entered as owner in the revenue records and that he was residing in Lal Aath Kholi, stated to be Waqf property. No documentary evidence was produced to demonstrate that prior to execution of the sale deed, Abdul Wahid Khan had exclusive ownership or transferable title over the suit land.

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Though it is suggested that Abdul Wahid Khan was in possession of the land, mere possession does not confer ownership nor does it authorize transfer of title. Further, although the plaintiff contended that the acquired land was open land, the award (Ex.P/8) passed by the concerned Land Acquisition Officer indicates that compensation was assessed only in respect of structural construction existing over the land. The plaintiff has thus failed to prove that his vendor had valid title and authority to transfer the suit property. Consequently, the sale deed (Ex.P/1) cannot be treated as conferring valid title.

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It is true that the alleged Waqf deed dated 19/09/1932 was not produced by defendant No. 2 and no specific issue was framed by the Trial Court

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regarding the Waqf character of the property. However, even in absence of proof of Waqf character by the defendants, the burden to prove valid title squarely remained upon the plaintiff. The weakness of the defence cannot strengthen the plaintiff’s case.

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The concurrent finding recorded by both the Courts is that the plaintiff failed to establish that his vendor had lawful authority to transfer the suit land. These findings are based upon proper appreciation of oral and documentary evidence and cannot be termed perverse.

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The First Appellate Court, being the final Court of facts, re-appreciated the entire evidence and affirmed the findings of the learned Trial Court. No material has been shown to demonstrate misreading of evidence, non-consideration of material documents, or application of an incorrect legal principle.

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The Supreme Court in State of Rajasthan & Others v. Shiv Dayal & Another, (2019) 8 SCC 637 , has held that when concurrent findings of fact are assailed in a Second Appeal, interference is permissible only if such findings are vitiated in law, recorded de hors the pleadings, based on misreading of material evidence, or are such that no reasonable judicial mind could have arrived at.

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The arguments advanced by the learned counsel for the appellant essentially seek re-appreciation of evidence. The issues raised are purely factual in nature and have already been concurrently decided by both the Courts below upon due appreciation of evidence.

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Upon careful examination of the impugned judgments, this Court finds that the findings recorded are pure findings of fact and do not give rise to

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any substantial question of law within the meaning of Section 100 of the Code of Civil Procedure, 1908. Accordingly, the substantial question of law framed in this Second Appeal is answered in favour of the defendants/respondents and against the plaintiff/appellant.

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Consequently, the appeal filed by the plaintiff/appellant, being devoid of merit, is hereby dismissed . The judgment and decree dated 08/09/2014 passed by the learned Trial Court, as affirmed by the First Appellate Court, are upheld.

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A decree be drawn accordingly.

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Sd/(Bibhu Datta Guru) Judge

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Rahul/Gowri

(Deleted) Shivnarayan Gole (Died) Through Lrs. v. Chief Executive Officer

Case brief

What is this about?

What did the court decide?

(Deleted) Shivnarayan Gole (Died) Through Lrs. v. Chief Executive Officer

Case brief

What is this about?

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What the court decided

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