Allowed

salim raza and Ors. v. Mohan Mistry And Ors.

Jharkhand HC23 Jul 2019SA/152/1989

Case brief

AI extract

What is this about?

The High Court allowed a second appeal, holding that possession taken under an agreement for sale without a subsequent registered deed is permissive and cannot mature into title by adverse possession, setting aside lower court decrees confirming the plaintiffs' title.

What did the court decide?

The judgments of the Trial Court and First Appellate Court confirming plaintiffs' title are set aside; plaintiffs declared not to have perfected any title nor claim by adverse possession.

salim raza and Ors. Vs Mohan Mistry And Ors. — Property and Title | Jharkhand HC (2019)

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SECOND APPEAL NO.152 OF 1989

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[arising out of judgment dated 17^th August, 1989 (decree signed on 31.08.1989) passed by 1^st Additional District Judge, Hazaribagh in Title Appeal No.63 of 1972 confirming the judgment dated 01.06.1972 (decree signed on 10.06.1972) passed by Additional Munsif, Hazaribagh in Title Suit No.2032 of 1968 / 91 of 1970]

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1(a) Salim Raza 1(b) Sane Ahmed 1(c) Sohail Anwar 1(d) Farhat Nasim … Appellants

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-versus-

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Mohan Mistry son of Khuni Mistry

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Dhanwa Devi d/o Khuni Mistry

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Chandra Mistry S/o late Khuni Mistry

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Deoki Mistry s/o Khuni Mistri

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Baswa Devi

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… Respondents

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For the Appellants : Mr. Ayush Aditya, Advocate For the Respondents : Mr. Amar Kumar Sinha, Advocate Mr. Sandeep Verma, Advocate Md. Zafar Alam, Advocate

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PRESENT

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HON’BLE MR. JUSTICE ANANDA SEN

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J U D G M E N T

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Reserved on 16.07.2019 Pronounced on 23.07.2019

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1. Heard the counsel for the appellants and the respondents. 2. This appeal has been filed by the appellants under Section 100 of the Code of Civil Procedure, challenging the judgment passed by the First Additional District Judge, Hazaribagh dated 17^th August, 1989 in Title Appeal No.63 of 1972, by which the appeal preferred by these appellants was dismissed. The appellants before the First Appellate Court were the defendants in the Trial Court in the suit, which was filed by the respondents herein as the plaintiffs. The Title Suit was decreed vide judgment dated 1^st June, 1972 in Title Suit No.2032 of 1968 / 91 of 1990.

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3. The plaintiffs had filed a title suit and prayed for permanent injunction to restrain the defendants from interfering with the possession of the Schedule ‘A’ land and also for a declaration of plaintiffs’ title, possession and its confirmation.

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4. As per the case of the plaintiffs, one Fagu Mistri had four sons, namely, Raghu, Bandhu, Chintaman and Bechu. The lands of Khata No.4 of Village Kolghatti, Khata No.11 of Village Nura and Khata No.29 of Village Okni, within Sadar Police Station, Hazaribagh were recorded in the name of Chaman, Budhan and Dubar, who were sons of Raghu Mistri – one share, Bandhu one share, Matan one share, and Most. Bilia one share. Nehal and Puni, who are the sons of Chaman are the plaintiffs in the case. It is the case of the plaintiffs that the lands were cultivated by the parties, separately after partition also. The plaintiffs claim that when Schedule ‘A’ property of the plaint was in possession of Dubar, who was in need of urgent money for construction of the house, had approached the plaintiff for some money in lieu of selling off the lands in Schedule ‘A’. Plaintiff agreed to purchase Schedule ‘A’ land from Dubar Mistri for a cash consideration of Rs.800/-. An agreement for sale was executed by the said Dubar Mistri in respect of Schedule ‘A’ land on 15.03.1940 and the plaintiffs were put in possession of the said lands on the same date. It is the case of the plaintiffs that by remaining in peaceful possession openly and adversely to the complete ouster of all the defendants, they have perfected their title and they cannot be disturbed. Dubar Mistri died within four months after execution of the agreement and, thus, the sale deed was not executed nor registered, but, the plaintiffs, in garb of the agreement remained in possession till the date of filing of the suit. It is the case of the plaintiffs that the defendants did not have any right, title or possession over the property, but, at the instance of some mischief mongers and enemies, started giving threats to the plaintiffs. It is alleged that they cut away paddy grown on the lands and also tried to remove the signs of separation of the portion purchased by the plaintiffs from the remaining area of the plots. It is pleaded that threats were given on 20.08.1968, which were renewed on 21.09.1968. Thus, the plaintiff was forced to file the suit for a declaration of right, title and interest and confirmation of possession and also for injuncting the defendants.

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5. The suit was initially filed against Most. Akli, the widow of Dubar Mistri, but, later on 8 defendants were added by virtue of an amendment dated 02.06.1970. The suit was contested only by Most. Akli and defendant No.4 Md. Rafique and against the others, the suit proceeded exparte.

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6. Both these two respondents filed separate written statements. Most. Akli pleaded that after the death of Dubar, she became owner of

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Schedule ‘A’ land and she remained in possession without any interruption for more than 30 years and thus, she perfected her title for remaining in possession for more than 12 years. The genealogical table is admitted. The records of right and entries are also admitted. It is her case that rent was not split up. It was recorded under one khata with different and distinct kabjewari. So far as Khata No.29 is concerned, all the four brothers had equal share and it was jointly cultivated by all of them and it was recorded in joint names of all the four branches with specific shares. It is the further case that so far as lands of Village Kolghatti is concerned, they were acquired by four brothers but Raghu contributed half and the other three brothers had contributed other half of money. Thus, the lands were recorded half in the names of Chaman, Budhan, Dubar, sons of Raghu and half in the joint name of Most. Bilia widow of Bandhu. It is the case that Bandhu died after the survey without any issue and Most. Bilia died about 45 years ago. On their death, their share devolved upon Chaman, Budhan, Dubar and Matan by inheritance. Subsequently, sometime in the year 1935, these four persons purchased their lands and the different branches are possessing the same separately and exclusively. Some of the lands in Khata No.29 have been sold to different persons by different co-sharers and respective purchasers are in possession. Plaintiffs with ulterior motive suppressed these facts and suppressed the possession of Hemia, daughter of Budhan over the khata referred to in the suit. It is the case that Dubar was neither in possession of all the lands mentioned in Schedule ‘A’ of the plaint nor the lands belonged to him. It is the case that Most. Akali sold her share in plot No.134 to Md. Rafique. It is the case that Dubar remained in possession over Schedule ‘A’ land till his life time and after his death, the defendant started possessing the same and was cultivating. Possession of the plaintiff was denied. Their right and title has also been denied. It is also denied that they acquired any right under any alleged agreement nor they had perfected their right by adverse possession. 7. Defendant No.4 filed a separate written statement. He stated that he purchased 64 acres of land within khata No.29, plot No.124 from Most. Akali and since its purchase he is in peaceful possession of the same and his name has been mutated. It is his claim that no agreement, by virtue of which the plaintiff is claiming right, title and possession, ever existed and if there is any, same is forged and fabricated. He denied that the plaintiff ever possessed the land in question. He submits that if at all plaintiff had right, title or possession at any point of time, the same has

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been lost by adverse possession of Most. Akli and thereafter by possession of this answering defendant. He submits that the plaintiff is not entitled to get any relief.

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8. On the pleadings of the parties, 7 issues were framed by the Trial Court. Out of which, issue Nos.3 and 4 were of utmost importance, which read as follows: -

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(3) Have the plaintiffs title to the suit land. Are

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the plaintiffs entitled for a decree of confirmation of possession?

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(4) Are the plaintiffs entitled for permanent injunction as prayed for?

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9. The Trial Court, after considering the evidence of the parties and going through the documents and on the materials on record, has held that the plaintiff has proved their case and they have perfected their title by remaining in possession for more than 12 years by virtue of the agreement to sale. The Court below has held that if Most. Akli had any title, the same had exhausted after 12 years. The Court held that the defendants had failed to show that Akli had any title and she was in possession of the land when Rafique, i.e., defendant No.4 had purchased the lands from her. The Court has held that as there are overwhelming evidence on record to prove the possession and title of the plaintiffs, thus, they are entitled for the permanent injunction against the defendants. The suit was thus decreed.

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10. Aggrieved by the aforesaid judgment, the defendants preferred an appeal before the First Appellate Court under Section 96 of the Code of Civil Procedure. The First Appellate Court formulated two points for determination, which are as follows: -

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(1) Whether the plaintiff has got right, title,

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interest and possession over the suit land?

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(2) Whether the suit is barred by law of limitation, adverse possession?

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11. The First Appellate Court decided the issues in favour of the defendants. The First Appellate Court held that unregistered deed of sale can be looked into to prove part performance, if possession is delivered. The First Appellate Court held that since in part performance of the contract, the plaintiffs were put in possession over the suit land on 15.03.1940 after the agreement for sale was executed and since they continued in possession peacefully over Schedule ‘A’ property openly and

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adversely to the knowledge of the whole world and against the defendants as owners to the complete ouster of the defendants, thus, they have perfected their title by adverse possession. The First Appellate Court upheld the findings of the Trial Court to the effect that the plaintiffs have perfected their title by adverse possession. The First Appellate Court held that the defendants have got no right, title, interest and plaintiffs’ possession is adverse to that of the defendants and thus, dismissed the appeal.

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12. This second appeal was admitted on 12.12.1989 after framing one substantial question of law. The substantial question of law, which has been framed, in this appeal, is quoted hereinbelow: -

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In view of the admitted position that Duber Mahto had executed the agreement in favour of the original plaintiffs (Khuni Mahto) on 15.3.1940 and in view of the fact that no step was taken by Khuni Mahto for inforcing that agreement by obtaining the sale deed either from Duber or his legal representatives, whether Khuni and thereafter on his death, his legal representatives could have claimed title to the property by adverse possession?

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13. I have heard the parties at length.

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14. To answer the above substantial question of law, it is to be seen what is the fact pleaded by the plaintiffs and the conclusion arrived by both the Courts below. In short, it is the case of the plaintiffs that Dubar Mistri had executed an agreement for sale in favour of the original plaintiff on 15.03.1940 and the plaintiff was put in possession of the land, which was covered by the said agreement. Dubar Mistri died, immediately, thereafter. Admittedly, neither the original plaintiff nor anyone else took any step for enforcing the agreement of sale either from Dubar Mistri or his legal representatives. Thus, there is no sale deed and title of any land has not passed on. Even after death of Dubar Mistri, the original plaintiff possessed the lands and continued in possession and after the death of the original plaintiff, the legal heirs of the original plaintiff continued in possession. On the basis of this continuous possession, the plaintiffs claimed title by adverse possession. Now the question, as framed, is whether plea of adverse possession can be taken on the aforesaid facts.

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15. No doubt, the agreement for sale was entered and possession was delivered to the plaintiffs and the plaintiffs came in possession of the

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lands in part performance of the contract and they remained in possession for long. Now the question is, will this long possession give a right to the plaintiffs to claim “adverse possession”? This issue is no more res integra . The Hon’ble Supreme Court in the case of Roop Singh (dead) through LRS versus Ram Singh (Dead) through LRS reported in (2000) 3 SCC 708 has held that the plea of adverse possession is inconsistent with the plea of right to possession on basis of part performance of contract. The Hon’ble Supreme Court has held that a permissive possession for long does not convert into an adverse possession. The claimant by cogent and convincing evidence must show hostile animus and possession adverse to the knowledge of the real owner. Plea of adverse possession and retaining possession by operation of Section 53-A of the Transfer of Properties Act are inconsistent with each other. Once it is admitted by implication that the plaintiff came into possession of the suit land under the agreement and continued to remain in possession till the date of filing of the suit, the plea of adverse possession would not be available, unless it has been asserted and pointed out hostile animus of retaining possession as an owner after getting in possession of the land.

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16. Similar view on the point of law was taken by the Hon’ble Supreme Court in the case of L.N. Aswathama and Another versus P. Prakash reported in (2009) 13 SCC 229 , wherein the Hon’ble Supreme Court, while dealing with Section 53A of the Transfer of Properties Act, has held as under: -

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“17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the

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title of the true owner, the period for prescription will not commence. (Vide P. Periasami v. P. Periathambi [(1995) 6 SCC 523], Md. Mohammad Ali v. Jagadish Kalia [(2004) 1 SCC 271] and P.T. Munichikkanna Reddy v. Revamma [(2007) 6 SCC 59]”.

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17. Thus, from the aforesaid two judgments, the law is well settled that the claim of perfection of title by adverse possession is not available to the plaintiffs of this case since it is the case of the plaintiffs that they came in possession over the land in question pursuant to an agreement for sale and admittedly, the sale did not take effect. Thus, the possession of the plaintiffs over the land in question cannot be said to be hostile to the true owner even if he has continued in possession for more than 12 years. The possession is nothing, but, permissive.

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18. Thus, in view of the settled law, the substantial question of law, which has been framed in this second appeal, is answered as follows:-

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“The plaintiff nor their legal representatives or successors can claim any title to the property which they are possessing pursuant to the execution of agreement to sale dated 15.03.1940 nor can they claim any title by adverse possession.”

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19. Once I answer the question of law, which is formulated in this case and find that the findings arrived by both the Courts below, i.e., Trial Court and the First Appellate Court, in favour of the plaintiffs, that the plaintiff has acquired title by adverse possession, is erroneous, and cannot be sustained in the eye of law, the issue of adverse possession and title, which has been answered in favour of the plaintiffs by both the Courts below is hereby set aside and I hold that plaintiff has not perfected any title nor can claim title by adverse possession and are not the owner/title holder of the suit land.

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20. So far as their possession is concerned, since both the Courts below have given a concurrent finding that the plaintiffs are in possession over the property in question, this finding being a finding of fact, which is concurrent, is not disturbed in this second appeal. I hold that this possession is merely permissive, which does not confer any title upon the plaintiffs by adverse possession.

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21. On the conclusion arrived above, the judgment dated 1^st June,

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1972 (decree signed on 10.06.1972) passed in Title Suit No.2032 of 1968 / 91 of 1970 and the judgment dated 17^th August, 1989 (decree signed on 31.08.1989) passed by 1^st Additional District Judge, Hazaribagh in Title Appeal No.63 of 1972, declaring the title of the plaintiffs are hereby set aside.

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This second appeal is, thus, allowed.

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(Ananda Sen, J.)

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Dated, the 23^rd July, 2019

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High Court of Jharkhand, Ranchi AFR

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Kumar/Cp-02

salim raza and Ors. v. Mohan Mistry And Ors.

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salim raza and Ors. v. Mohan Mistry And Ors.

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