The Consultants Cooperative Housing Construction Society Limited Vs Smt Ram Sakhi Devi

IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.120 of 2020

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(Against the judgment dated 11.02.2020 passed by the learned Addl. Judicial Commissioner-XIII, Ranchi in Civil Appeal No.24 of 2018)

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The Consultants Cooperative Housing Construction Society Limited, having its office at Mecon Building, P.O. & P.S.- Doranda, District- Ranchi.

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Neel Kamal, aged about 48 Years, son of Late I.B. Sahay, resident of House No. H-31, Argora Housing Colony, Ranchi-13, Secretary, Consultants Cooperative Housing Construction Society Limited, having its office at Mecon Building, P.O. & P.S.- Doranda, DistrictRanchi.

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.... .... …. Defendants/Appellants/Appellants

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Versus

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Smt. Ram Sakhi Devi, wife of Ram Prasad Sahu.

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Shivjee Sahu, son of Ram Prasad Sahu.

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Ram Sagar Sahu, son of Ram Prasad Sahu.

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Raj Kumar Sahu, son of Ram Prasad Sahu.

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Simna Sharma, son of Late Mishri Sharma.

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Gauri Shankar Sharma, son of Late J.N. Sharma.

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Ram Brij Shau, son of Rameshwar Sahu.

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Parmeshwar Sahu, son of Padam Sahu.

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Kali Hazam, son of Mangal Hazam.

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All residents of Kadru, P.O. & P.S.- Argora, District- Ranchi.

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.... .... …. Plaintiffs/Respondents/ Respondents

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Ram Kumar Singh, son of Balroop Singh, resident of L-3 Shymali Colony, P.O. & P.S. – Doranda, District- Ranchi, The Chairman, the Consultants Cooperative Housing Construction

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Society Limited, havints its office at Mecon Building, P.O. & P.S.Doranda, District- Ranchi.

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Md. Afsar Hussain @ Athar Hussain, son of Syed Zaffar Shah, resident of Paharitola, P.S.- Sukhdeonagar, District- Ranchi.

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Sabdar Khan @ Safdar Khan, son of Fakhruddin Khan, resident of Indra Prasta Colony, Jora Talab, P.O. & P.S.- Bariatu, DistrictRanchi.

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.... .... …. Defendants/Appellants/Proforma Respondents

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For the Appellants : Mr. Ayush Aditya, Advocate Mr. Akashdeep, Advocate For the Respondents : Mr. Kaushik Sarkhel, Advocate

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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 parties.

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This Second Appeal, under Section 100 of Code of Civil Procedure, has been preferred against the judgment of affirmance dated 11.02.2020 passed by the learned Addl. Judicial Commissioner-XIII, Ranchi in Civil Appeal No.24 of 2018 whereby and where under the learned first appellate court dismissed the appeal.

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The brief facts of the case is that the plaintiffs filed Title Suit No.132 of 2004 for declaration of right, title and interest over the suit property described in schedule of the plaint and also restraining the defendants by a perpetual injunction from going over the suit land or interfering with the plaintiffs’ possession over the suit property, cost of the suit and other reliefs.

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The case of the plaintiffs in brief is that the ancestor of the vendors of the plaintiffs namely Syed Sikander Sah got 1.37 acres of land as share in partition suit No.91 of 1948, after his death his son namely Syed Md. Rauf and daughter namely Most. Haliman jointly inherited the same. Both Syed Md. Rauf and Most. Haliman transferred 68 decimals of land in favour of Jubaida Khatton by virtue of registered sale-deed dated 16.04.1981 and put her in possession and on the same day also executed another sale-deed and transferred the remaining 69 decimals of land inherited by them from their father Syed Sikender Sah in favour Bibi Anisha Khatoon. Both the purchasers- Anisha Khatoon and Jubaida Khatoon transferred 10 decimals of land in favour of Ram Prasad Sahu by registered sale-deed dated 19.04.1984. After death of Ram Prasad Sahu, the plaintiff Nos.1 to 4 inherited the same. Similarly, Bibi Anisha Khatoon and Jubaida Khatoon executed a registered sale-deed on the same day for another 10 decimals of land in favour of Mishir Sharma and further 10 decimals to Gauri Sharma, 38 1/2 decimals to Ram Brij Sahu, 25 decimals to Parmeshwar Sahu and 10 decimals to Ram Chandra Pillai from Khata No.353, Plot No.3293 and put them in possession. As the plaintiffs came to know that the defendants are contemplating to forcibly dispossess them. Hence, they filed the suit.

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The defendants in their joint written statement challenged the maintainability of suit on various technical grounds and further pleaded that Syed Md. Rauf and Most. Haliman were not the son and daughter of Syed Sikander Sah. Hence, they have not transferred any valid right in favour of Jubaida Khatoon or Bibi Anisha Khatoon and consequentially the purchasers

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from Jubaida Khatoon and Bibi Anisha Khatoon did not acquire any right, title or interest by way of sale-deeds executed in their favour.

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The defendants pleaded that Syed Sikander Sah married one Sakina Bano but prior to marrying with Syed Sikander Sah, Sakina Bano had only one son namely Syed Md. Rauf through her previous husband and as per Hanafi School of Mohammadan Law, Md. Rauf is not entitled to inherit any property of Syed Sikander Sah. After death of Syed Sikander Sah, his daughters namely Halima Khatoon and Noor Jahan jointly inherited the property left by their deceased father and came into the possession.

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The defendant Nos.4 and 5 who were impleaded party later on, filed their written statement claiming that Syed Sikander Sah was their maternal grandfather. Syed Sikander Sah died leaving behind two daughters namely Halima Khatoon and Noor Jahan Begam who inherited his property. A suit for partition was filed being partition suit No.120 of 2000 and the vendors of the plaintiffs had no right, to transfer the suit land in their favour.

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On the basis of rival pleadings of the parties, the learned trial court settled the following 13 issues:-

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(I) Is the suit maintainable in its present form?

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(II) Is there any valid cause of action for the suit?

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(III) Is the suit barred by Limitation, the principles of waiver, estoppels and acquiescence?

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(IV) Is the suit under valued as the market value of the suit property is not less than Rs.10,00,000/-?

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(V) Is the suit bad for non joinder of necessary parties?

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(VI) Is the suit barred by Sec 34, 38 to 41 of the Specific Relief Act?

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(VII) As to whether the plaintiffs are entitled for declaration of their right, title, interest and possession over the suit property?

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(VIII) As to whether the plaintiffs are entitled for a decree of perpetual injunction against the defendant as prayed for?

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(IX) Whether Abdul Rauf falsely claiming to be the son of Syed Sikander Shah has any right to sell and transfer the property in suit to the plaintiff’s vendor?

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(X) Whether Halima Khatoon daughter of Syed Sikander Shah had executed any sale deed to the plaintiff’s vendor or such sale deed was executed by fake person?

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(XI) Whether the sale deed of the vendors of the plaintiffs as well as the plaintiff’s sale deeds are illegal, null and void ab initio and same are not binding upon these defendants under the law?

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(XII) Whether the mother of these defendants namely Halima Khatoon and Noor Jahan Begam being the daughters of Syed Sikander Shah partitioned the suit lands by filing partition suit No.120 of 2000 and after death of their mothers these defendants and other co sharers are in peaceful possession over the said allotted Takhta?

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(XIII) To what relief or reliefs the plaintiff entitled to?

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In support of their case, the plaintiffs examined ten witnesses and proved

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the documents which have been marked as Ext.1 to 9 whereas the defendants also examined six witnesses and proved the documents which have been marked as Ext.A to C. The learned trial court first took up issue Nos.VII, VIII,

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IX, X and XI together and after considering the evidence in the record that the plaintiffs succeeded to prove that Md. Rauf was the son of Syed Sikander Sah and the sale-deeds of the plaintiffs were in existence at the time of filing of the partition suit No.120 of 2000. The defendants failed to prove any illegality in the sale-deeds, hence, the plaintiffs are entitled for declaration of right, title, interest and possession over the suit property as also for perpetual injunction and decided the said issues accordingly.

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The learned trial court disposed of issue Nos. IV, V and VI as not pressed. In respect of issue No.III, the learned trial court held that the suit is not barred by limitation and in respect of issue No. XIII, the learned trial court came to the conclusion that the defendants have failed to prove their possession over the suit land and lastly the learned trial court took up issue Nos.I, II and IX and came to the conclusion that the plaintiffs have valid cause of action for their suit and they are entitled for reliefs as sought for and the suit is maintainable in its present form and decreed the suit.

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Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Civil Appeal No.24 of 2018 which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment.

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Learned first appellate court upon considering the materials in the record and the submissions made before it formulated the following sole point for determination:-

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“Whether the Syed Md. Rauf was the son of Syed Sikander Sah?”

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The first appellate court made independent appreciation of the evidence in the record and also relied upon Ext.9 which is held to be a genuine document; which is the death certificate issued by Anjuman Islamia wherein it was mentioned that Syed Md. Rauf was the son of Syed Sikander Sah and came to the conclusion that Syed Md. Rauf was the son of Syed Sikander Sah and there is no cogent evidence put forth on behalf of the defendants that someone impersonated as Haliman in execution of the sale-deed and dismissed the appeal.

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Learned counsel for the appellants submits that the judgment and decree of the court below is a perverse one as the finding has been arrived at by relying upon Ext.9 which cannot be relevant evidence under Section 35 of the Evidence Act. It is next submitted that both the courts below have failed to take into consideration Ext.B which is the documents relating to partition suit No.120 of 2000. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be dismissed after formulating appropriate substantial questions of law.

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Learned counsel for the respondents on the other hand defends the impugned judgment and decree and submits that Section 35 of the Evidence Act deals with relevancy of entry in public record made in performance of duty but that does not debar other forms of evidence coming under other provisions relating to relevant evidence. It is next submitted that the Ext.9 is a death certificate issued by Anjuman Islamia. There is no dispute regarding the same. The same has been admitted in evidence without objection. It is not the

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contention of the appellants that the same has not been duly proved. Hence, it is submitted that no perversity has been committed by the courts below. It is lastly submitted that 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 pertinent to mention here that the dispute between the parties was whether Syed Md. Rauf was the son of Syed Sikander Sah. So, the document issued by a privately maintained register cannot be termed as irrelevant. The evidentiary value of the same could have been questioned by the defendants. It is not the case of the defendants that Ext.9 was not duly proved by the plaintiffs nor the same was objected to by the defendants at the time of the same being admitted to evidence and marked exhibit.

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The learned trial court and the first appellate court have also considered other evidence including the oral evidence adduced by the parties in arriving at the conclusion that Syed Md. Rauf was the son of Syed Sikander Sah. The said concurrent finding of facts is in the considered opinion of this court, keeping in view the evidence in the record, cannot be termed as perverse.

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So far as the contention of the appellants regarding non-consideration of the documents relating to partition suit property No.120 of 2000 is concerned, it is pertinent to mention here that the plaintiffs and their ancestors were not party to the said suit; though by the time, the suit was filed, the sale-deeds executed in favour of the ancestors of the plaintiffs was very much in existence.

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Under such circumstance, obviously the judgment if any in partition suit No.120 of 2000 was not binding upon the plaintiffs. So, non-consideration of the same by the courts below in arriving at the conclusion that Md. Rauf is not the son of Syed Sikander Sah, cannot be termed as perverse either.

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