Dismissed

Saba Tarrannum v. Afsari Khatoon

Jharkhand HC13 Apr 2023SA/117/2020

Case brief

AI extract

What is this about?

In this second appeal, the High Court dismissed the appellants' challenge to a decree for possession and title. The court held that minor discrepancies in the southern boundary description did not invalidate the suit, as the property was sufficiently identifiable through plot numbers and attached maps, particularly where the defendants failed to raise the plea earlier.

What did the court decide?

The Second Appeal was dismissed on contest without any cost, and the lower courts' decrees were upheld.

Saba Tarrannum Vs Afsari Khatoon — Specific Performance | Jharkhand HC (2023)

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S.A. 117 of 2020

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 117 of 2020

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(Against judgment and decree dated 10.02.2020 passed by the learned Additional Judicial Commissioner, VI, Ranchi in Civil Appeal no. 22 of 2019)

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Saba Tarrannum, aged about 34 years,

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Neha Tarrannum, aged about 32 years, Appellant nos. 1 and 2 are both daughters of late Nesar Khan, residents of Kalisthan Road, Gudri Chowk, P.O. & GPO, P.S.Lower Bazar, District- Ranchi

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Md. Aamir, aged about 29 years, son of Late Nesar Khan

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Shakil Khan, aged about 60 years, son of Late Rahman Kah Appellant nos. 3 and 4 are residents of Kalisthan Road, Gudri Chowk, P.O. & GPO, P.S.- Lower Bazar, District- Ranchi ... Defendants / Appellants / Appellants

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Versus

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Afsari Khatoon

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Kaushar Khatoon

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Both wife of Asgar Hussain, resident of Pandra, P.O. Hehal, P.S.Sukhdeonagar, District- Ranchi

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….. Plaintiffs / Respondents/ Respondents

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For the Appellants : Mr. Rohitashya Roy @ Rohit Roy , Adv. For the Respondents : Mr. Birendra Kumar, Adv. Mr. Raj Kishore Sahu, Adv.

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court :- Heard the learned counsel for the appellant.

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This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment and decree of concurrence dated 10.02.2020 passed by the learned Additional Judicial Commissioner, VI, Ranchi in Civil Appeal no. 22 of 2019 by which, learned First Appellate Court dismissed the appeal against the judgment and decree dated 21.12.2018 in Title Suit No. 177 of 2018 passed by learned Civil Judge (Junior Division) Ranchi.

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S.A. 117 of 2020

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The case of the plaintiffs in brief is that the plaintiffs purchased the land of Khata no. 59, M.S. plot no. 583 of area of 620 sq. feet being the suit land on 07.12.2000 and became absolute owner of the suit land and house situated thereon. The defendants were residing in the said house. They became ready to vacate the house and executed an agreement on 14.06.2008 and admitted the ownership of the plaintiffs and assured to vacate the suit property. The plaintiffs further pleaded that the name of the plaintiffs have been mutated and the plaintiffs are paying the rent. As per the said agreement dated 14.06.2008, if the defendants will not fulfill the conditions of the agreement, the plaintiffs will get the house vacated through the help of court. It is then the case of the plaintiffs that the plaintiffs requested the defendants to comply with the conditions of the agreement on 05.07.2008 but the defendants assured the plaintiffs that they will vacate the suit land within a month but they did not do so and again on 15.08.2008, the plaintiffs approached the defendants with a request to vacate the house but they refused to do the same, hence, the plaintiffs filed the suit for declaration of right, title and interest and possession over the suit land, decree for recovery of possession against the defendants, cost of the suit and any other relief or reliefs.

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The defendants challenged the maintainability of the suit on the various technical grounds and further pleaded that the suit land has been in possession of the defendants since long. The entire case of the plaintiffs including execution of the agreement dated 14.06.2008 by them is false and baseless. It is pertinent to mention here that in their written statement, the defendants have not pleaded about any discrepancy in the boundary of the land in respect of which, the sale deed No. 11089 dated 07.12.2000 was executed vis a vis the boundary of the land mentioned in the plaint.

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On the basis of the rival pleadings of the parties, learned trial court settled the following seven issues :-

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1. Is the suit maintainable in its present form?

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S.A. 117 of 2020

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2. Have the plaintiffs any cause of action for the suit?

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3. Is the suit barred by limitation and adverse possession?

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4. Whether the plaintiff has acquired any right, title, interest under the sale deed dated 23.10.2000/7.12.2000 executed by Md.Isrile Khan and others?

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5. Whether the defendants has acquired any right, title, interest on the basis of the agreement dated 14.06.2008 executed by defendant himself?

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6. Whether the plaintiff is entitled to a decree of recovery of possession of the suit property?

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7. Are the Plaintiffs entitled for relief(s) as claimed?

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Learned trial court considered the oral testimony of the five witnesses examined on behalf of the plaintiffs and documents marked as Exhibit 1 to 6 as well as the fourteen witnesses examined on behalf of the defendant no. 1 and the document which has been marked as Exhibit A.

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Learned trial court first took up issue nos. 4, 5 and 6 together and on the basis of Exhibit 4, which is the registered sale deed no. 11089 dated 07.12.2000, found that the plaintiffs have successfully established their right, title and interest over the suit property. The contention of the defendants that the defendants have perfected their title over the suit property by way of adverse possession, did not find favour as there is absolutely no pleading of the defendants that when they came in possession over the suit land and in what manner. Learned trial court believed Exhibit 6 which is the agreement entered into between the plaintiffs and the defendants. Learned trial court considered the said agreement to be a document of declaration in which, the defendants have admitted the ownership of the plaintiffs over the suit property and which they assured to vacate. Learned trial court considered that merely because there is minor difference in the description of boundary of the suit land vis a vis the land described in the plaint, the whole claim of the plaintiffs cannot be thrown out and decided the issue nos. 4, 5 and 6 in favour of the plaintiffs and against the defendants. Thereafter, learned trial court took up issue nos. 1, 2, 3 and 7 together and held that the plaintiffs are entitled to recovery of possession from the defendants, suit

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S.A. 117 of 2020

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of the plaintiffs is maintainable, the plaintiffs have valid cause of action and the suit is not barred by law of limitation or adverse possession and decreed the suit, by directing the defendants to hand over peaceful possession of the suit property, mentioned in the schedule of the plaint within 60 days from the date of the judgment.

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Being aggrieved by the judgment and decree passed by learned trial court, the defendants preferred Civil Appeal No. 22 of 2019 in the court of Judicial Commissioner, Ranchi which was ultimately, heard and disposed of by the learned First Appellate Court on 10.02.2020 by the impugned judgment.

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Learned First Appellate Court made independent appreciation of the evidence in the record and also considered the testimony of DW2, wherein in his crossexamination, he has stated that he never filed any application in Municipal Corporation for the holding and he was residing in the suit property as per the permission of Khatiyani Raiyat . Learned First Appellate Court considered the testimony of the other witnesses where they have stated that the defendants were residing over the suit land for construction of a house over the suit land but none of the witnesses disclosed that how the defendants came in possession and became owner of the suit property. Learned First Appellate Court also considered that the defendants themselves admitted that they were residing on the suit land as per permission of the Khatiyani Raiyat , meaning thereby, the defendants are not the owners of the suit property rather they are in permissive possession of the suit land. Learned First Appellate Court also considered that though in the sale deed, ‘towards south Khalistan road’ has been mentioned and in the plaint ‘towards south plot no. 584’ has been mentioned, the boundaries of the other side are same in both the plaint and sale deed. On the map attached to the sale deed, it appeared to learned trial court that in the south, there is Khalistan Road, which is the adjacent to plot no. 584

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S.A. 117 of 2020

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so, the discrepancy is minor one and is not of such a nature that only on the basis of the same, it can be said that different boundaries have been mentioned by the plaintiffs in the plaint, more so, in Exhibit 4, i.e., the sale deed dated 07.12.2000, the area from north to south and east to west, has clearly been mentioned, hence, the contention of the defendants in this respect did not find any favor by the learned First Appellate Court and Learned First Appellate Court dismissed the appeal, as indicated above.

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At the time of admission, vide order dated 06.10.2021, the predecessor Judge in the roster, formulated the following substantial questions of law:

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i. Whether the variance in the description of the suit property, i.e. the boundary of the southern side will have any impact on both the impugned judgments or not and if yes to what extent?

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ii. Any other point of law, which would be framed prior to final hearing of this appeal.

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Mr. Rohitashya Roy, learned counsel for the appellants by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Arsad Sheikh and Anr. Vs. Bani Prosanna Kundu & Ors. reported in ( 2014) 15 SCC 405 submits that in the said judgment it has been mentioned in the submissions of learned counsel before the Hon’ble Supreme Court of India in para 6 that High Court in that case, observed that where there was a dispute between the area of transferred land as indicated in the deed and boundary mentioned in the deed, the boundary mentioned in the conveyance deed, shall prevail and the Hon’ble Supreme Court of India did not interfere with the said finding of the high court.

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Learned counsel for the appellants next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Smriti Debbarma (Dead) through Legal representative vs. Prabha Ranjan Debbarma and Others reported in 2023 SCC Online SC 9, in para 35 of which, the Hon’ble Supreme Court of India has interalia reiterated the principle that the weakness of the defendant, cannot be the justification to

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S.A. 117 of 2020

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decree the suit by observing thus in para 35, which reads as under :

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“35. The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief. This is mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act. Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed. Thus, the impugned judgment by the High Court had rightly allowed the appeal and set aside the judgment and decree of the trial court. We, therefore, uphold the findings of the High Court that the suit should be dismissed. We clarify that we have not interfered or set aside any observations of the High Court in re the Tripura Land Revenue and Land Reforms Act, or defendants' claim etc. Notably, M/s. Hotel Khosh Mahal Limited is not a party to the present proceedings.”

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Mr. Roy next relies upon the judgment of Hon’ble Patna High Court in the case of M/s Bhondu Sao Ramdas vs. Doma Sao & Ors. reported in 1960 SCC Online Pat 8 , para 7 of which reads as under:-

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7. On the question of merits also, I find that the order of the executing court is correct. The description of the property sold has got to be gathered from the boundaries, and it is well settled that any mistake in regard to holding numbers or plot numbers is of no consequence.

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wherein it was interalia , has been held by the Hon’ble Patna High Court that it is well settled that any mistake in regard to holding number or plot number is of no consequence. It is next submitted by Mr. Roy that title document filed by the plaintiffs in this case, being not in respect of the land which has been described in schedule A of the plaint, hence, the Exhibit 4 certainly cannot accrue any right, title and interest of the plaintiff over the suit land, hence, it is submitted by

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S.A. 117 of 2020

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Mr. Roy that both the courts below ought to have held that the plaintiffs have failed to establish their title over the suit land and ought to have dismissed the suit, hence, it is submitted by learned counsel for the appellants that the impugned judgment and decree, passed by both the courts below be set aside and the suit of the plaintiffs be dismissed.

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Mr. Birendra Kumar, learned counsel for the respondents on the other hand, relies upon the judgment of the Hon’ble Supreme Court of India in the case of the Pratibha Singh & Anr. vs. Shanti Devi Prasad & Anr. reported in (2003) 2 SCC 330 , para 17 of which reads as under:

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“17. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case — which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 CPC by the court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 CPC.”

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and submits that it is a settled principle of law that if an immovable property involved in a suit has been decreed, even though the property is not identified, such defect is capable of being cured and the same being an inadvertent error, not affecting the merits of the case, may be corrected under Section 152 of CPC by the court which passed the decree by supplying the omission.

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Mr. Birendra Kumar, next relies upon the judgment of Hon’ble Karnataka High Court, in the case of Nagaraj vs. Kalluramma reported in ( 1995) 0 Supreme (Kar) 132 , para 9 of which , reads as under:

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“9. SIMILARLY a Division Bench of the Patna High Court in the case of THE STATE OF BIHAR and ANR. v. RANCHI GOSHALA SOCIETY AND ANR, AIR 1981 NUC 179 (Patna ). has taken a view that if from the description of the property the parties understanding as to which property forms the subject matter of the suit go to the trial and fail to show any prejudice

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S.A. 117 of 2020

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caused to them by vagueness of the description, the suit is not liable to be dismissed on the said ground.”

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and submits that it is a settled principle of law that if from the description of the property, the parties understand as to which property form the subject matter of the suit, go to the trial and fail to show any prejudice caused to them by the vagueness of the description, the suit is not liable to be dismissed on the said terms.

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It is next submitted by Mr. Birendra Kumar that in the written statement, the defendant has not taken any plea that there is any discrepancy in the boundary of the suit land, as mentioned in the description of the sale deed marked as Exhibit 4 and the schedule of the plaint. It is next submitted by learned counsel for the respondents that there is no discrepancy about the plot number in respect of which, the suit has been filed. Further plot no. 583 as well as the Khata number and other descriptions of the property as described in the sale deed and the schedule of the plaint are the same. It is next submitted that the defendants have no case at all as the defendants have failed to come forward with the exact manner how they came over the suit land. Under such circumstances, the minor discrepancies in the southern side boundary of the plot of land, as mentioned in the sale deed in the schedule of the plaint certainly cannot have any impact on both the judgments. Hence, it is submitted that the substantial questions of the law be answered in the negative and this appeal being without any merit be dismissed.

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Having heard the submissions made at the Bar and after going through the materials available in the record, it is relevant to refer to Rule 3 of Order VII of CPC, which reads as under :-

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“3. Where the subject-matter of the suit is immovable property.— Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.”

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S.A. 117 of 2020

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The bare perusal of the Rule 3 of the CPC reveals that the Rule 3 envisages that a property can be described by either its number in a record of settlement or survey or by boundaries. Of course, it can also contain other sufficient description to identify. In other words, if the suit property is described by its numbers and a record of settlement or survey alone still such a description will suffice. It is not necessary that both the number in the record of settlement or survey and the boundaries must be provided for a description of the suit property.

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So far as the contention of the appellants that in case of any dispute , between the area of the transferred land indicated in the deed and the boundaries mentioned in the deed, the boundaries mentioned in the conveyance deed shall prevail, is no doubt a settled principle of law, but the same is not applicable in this case, as in this case, besides description of the boundary, the sale deed is annexed with the map of land and in the map is a sufficient description to identify the suit land. Further the suit property is described by the number of the plot as mentioned in the record of survey settlement; which; as already indicated above, by itself is a sufficient to describe the suit property.

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So far as the contention of the appellants regarding the settled principle of the law that the weakness of the defendants cannot be a justification, to decree a suit is concerned, the said principle is not applicable in this case because the plaintiffs are claiming title on the basis of the registered sale deed executed by the vendor in their favour in which, besides the number of survey and settlement, the boundary as well as the map has been attached. Whereas the defendants have no case at all. The defendants have failed to disclose as to when did they first come over the suit land and the defendants have also taken the plea that they are not in possession of the suit land, hence, in the considered opinion of this court, this is not a case, where the suit of the plaintiffs has been decreed merely because of the weakness

S.A. 117 of 2020

of the defendants.

So far as the judgment of the Hon’ble Patna High Court in the case of M/s Bhondu Sao Ramdas vs. Doma Sao & Ors. (Supra) is concerned, certainly the boundary and map plays an important role in identification of the land where the land is described by the boundaries alone; but here besides the number of such settlement and additional survey, boundaries have also been mentioned and three out of four sides of the boundary is same as mentioned in the sale deed and the schedule of the plaint and plot number is also same. Besides, the sale deed is accompanied by a map and as observed by learned First Appellate court, from the map attached to the sale deed, it appears that in the south, there is Khalistan road, which is adjacent to plot no. 584. So in between the suit plot and Khalistan road, comes plot no. 584 or in other words, starting from the suit land, if one goes towards the south, first comes the plot no. 584 in a portion of the southern part of the boundary and thereafter, the Khalistan road. Therefore, the description of the southern side of the boundary, under the facts and circumstances of this case, cannot be termed as a mis-description.

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Under such circumstances, in the considered opinion of this court, the finding of facts, returned by both the courts below, is not by ignoring or excluding relevant materials or taking into consideration neither the irrelevant materials nor such finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse.

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It is a settled principle of law, that the suit cannot be dismissed for insufficient description of the boundary and the court has to give an opportunity to the plaintiffs to set right, the discrepancies by furnishing sufficient information to make the suit plot identifiable. Moreover, in this case, there is absolutely no pleading in the written statement of the defendants as to there being any variance between the description of the southern side of the boundary as mentioned in the sale deed, marked as Exhibit 4 and the

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S.A. 117 of 2020

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plaint and the defendants have contested the suit without demur, regarding the variance of the description of the southern boundary of the suit plot. Under such circumstances, certainly for the first time, it was not open for the plaintiffs to raise such ground at the time of hearing of the argument of the suit or for that matter; before learned First Appellate court, as there is no material in the record to suggest that the any prejudice has been caused to the defendants regarding the vagueness in the description of the suit property. Hence, certainly, the same is not a ground to dismiss the suit.

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In view of the facts and circumstances as discussed above, this court is of the considered opinion, that the variance in the description of the southern boundary of the suit property, shall not have any impact on the impugned judgment passed by learned First Appellate Court or learned trial court, hence, the first substantial question of law as to “ Whether the variance in the description of the suit property, i.e. the boundary of the southern side will have any impact on both the impugned judgments or not and if yes to what extent” is answered in the negative.

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In view of the answer to the first substantial question of law, the second substantial question of law does not arise.

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Thus, in the considered opinion of this Court, there is absolutely no merit in this appeal, accordingly, the same is dismissed on contest but in the circumstances, without any cost.

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Let a copy of this Judgment along with the Lower Court Records be sent back to the Court concerned forthwith.

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In view of the dismissal of the Second Appeal, the interim order, if any, passed in this appeal, stands vacated.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated, the 13^th April, 2023. Smita /AFR

Saba Tarrannum v. Afsari Khatoon

Case brief

What is this about?

What did the court decide?

Saba Tarrannum v. Afsari Khatoon

Case brief

What is this about?

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