Dismissed

Saroj Devi v. Smt Shushila Devi

Jharkhand HC11 Dec 2024SA/189/2019

Case brief

AI extract

What is this about?

This Second Appeal challenges a lower court judgment that set aside a sale deed and decreed the plaintiff's suit for possession. The court held that the sale of raiyati land without Deputy Commissioner sanction under the Chota Nagpur Tenancy Act was invalid and dismissed the appeal.

What did the court decide?

The Second Appeal is dismissed; the judgment of the first appellate court is affirmed; the void sale deed stands cancelled.

Saroj Devi Vs Smt Shushila Devi — Property and Title | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.189 of 2019

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(Against the judgment dated 22.04.2019 passed by the District Judge-IV, Giridih in Civil Appeal No.14 of 2018)

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Saroj Devi aged around 65 years wife of Sri Pradeep Sao, resident of village Kharagdiha, P.O. Kharagdiha, P.S. Jamua, District Giridih.

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.... .... …. Defendant/Respondent/ Appellant

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Versus

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Smt. Shushila Devi wife of Sri Laldeo Sharma and Daughter of Jagdish Hazam, aged around 56 years old, resident of village and P.O. Kharagdiha, P.S. Jamua, District Giridih at present Jhumritelaiya, P.O. Tilaiya, P.S. Jurkritelaiya, District Koderma

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For the Appellant : Mr. Manjul Prasad, Sr. Advocate Mr. Baban Prasad, Advocate For the Respondent : Mr. Ram Nivas Roy, Advocate Mr. Ram Prakash Singh, 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 reversal dated 22.04.2019 passed by the District Judge-IV, Giridih in Civil Appeal No.14 of 2018 whereby and where under the learned first appellate court allowed the appeal and set aside the judgment and decree passed by the learned trial court being the Civil Judge (Senior Division)-III, Giridih in Title Suit No.104 of 2003 dated 30.01.2018; whereby and where under the learned trial court dismissed the suit of the plaintiff. The learned first appellate court further decreed the suit of the plaintiff on contest and cancelled the sale deed No.9430 dated 22.09.2003 and

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directed the defendant to hand over the khas possession of the suit house with suit lands to the plaintiff within 60 days from the date of the judgement.

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The brief fact of the case is that the respondent of this Second Appeal who was the plaintiff filed Title Suit No.104 of 2003 against the defendant who is the appellant of the Second Appeal with a prayer for decree of the cancellation of the sale deed No.9430 dated 22.09.2003 executed by the plaintiff in favour of the defendant and for restoration of khas possession of the plaintiff of the suit land by dispossessing the defendant through the process of the court.

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The case of the plaintiff in brief is that the suit land was allotted to the share of Bhatu Hazam- the predecessor in interest of the plaintiff in the partition between his co-sharers. The defendant along with her husband requested the plaintiff to sell the suit land for Rs.1,10,000/-. The plaintiff became ready for the same. Taking advantage of the simplicity and illiteracy of the plaintiff, the defendant promised to pay the consideration amount to the plaintiff and made her execute the sale deed and registered the same in favour of the defendant in the office of Sub-Registrar, Giridih. The defendant also told the plaintiff to keep the registration receipt known as chirkut with her and to sign the registration receipt after receiving the full consideration amount. On believing the assurance of the defendant; the plaintiff executed the sale deed and accepted execution of the sale deed before the District Sub-Registrar, Giridih and thus the sale deed No.9430 dated 22.09.2003 was registered. The Munshi (clerk) concerned kept the registration slip with them with the assurance that the same will be filed by the plaintiff after receiving the full consideration amount. The plaintiff in good faith left the registration slip with the Munshi but the defendant thereafter avoided to pay the consideration

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amount. The sale deed was executed by the plaintiff without delivery of possession and without receiving any consideration amount by the plaintiff. Hence, the plaintiff prayed that the said sale deed be cancelled and be declared not binding upon the plaintiff. During the pendency of the suit; the defendant forcibly dispossesses the plaintiff from the suit land and this fact has been introduced in the plaint by way of amendment of the plaint by the plaintiff during the pendency of the case.

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The defendant in her written statement challenged the maintainability of the suit on various technical grounds and pleaded that the consideration amount of sale deed was made before registration of the sale deed in presence of witnesses and after receiving full consideration amount, the plaintiff executed the sale deed in favour of the defendant and put the defendant in possession of the suit land. The mutation of the land in the name of the defendant has already been allowed. The defendant pleaded that the plaintiff is a literate and cleaver lady. The sale deed No.9430 dated 22.09.2003 is binding upon the plaintiff and the deed of cancellation of sale deed dated 20.10.2003 executed by the plaintiff has no value in the eye of law.

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

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(i) Whether the suit is maintainable in its present form?

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

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(iii) Whether the suit is bad for non-joinder of necessary parties?

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(iv) Whether the suit is barred u/s 34 of Specific Relief Act?

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(v) Whether the sale deed No. 9430 dated 22.09.2003 is fit to be cancelled, being void and not binding upon the plaintiff?

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(vi) Whether the plaintiff has been coming in possession over the same and whether entitled for recovery of possession if dispossessed during pendency of the suit through process of the court?

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(vii) To what other relief or relieves plaintiff is entitled for?

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In support of their case, the plaintiff examined five witnesses and proved the documents which have been marked Ext.1 and 2 whereas from the side of the defendant also, five witnesses were examined and the defendant also proved the documents which have been marked Ext.A.

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Learned trial court first took up issue Nos.(v) and (vi) and after appreciating the evidence in the record, relied upon the judgment of the Hon’ble Supreme Court of India in the case of Janak Dulari Devi & Another vs. Kapildeo Rai & Another reported in (2011) 6 SCC 555 wherein the Hon’ble Supreme Court of India recognized the practice of ‘ta khubzul badlain’ prevalent in Bihar and considering that, the vendor has admittedly handed over the registration slip to the Munshi of the vendee, on the date of registration of the document itself and the land has been mutated in the name of the defendant, held that the defendant has paid the consideration amount to the plaintiff. Though it was not pleaded in the plaint but the learned trial court took up for consideration that the sale deed was not legally executed being in violation of Section 46 of the Chota Nagpur Tenancy Act, 1908 and decided the issue Nos.(v) and (vi) in favour of the defendant and against the plaintiff.

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The learned trial court next took up issue Nos.(iii) and (iv) and held that these issues are non-issues in the suit and did not take up the same for disposal.

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Lastly, the learned trial court took up issue Nos.(i), (ii) and (vii) and went on to hold that there is no cause of action for the suit. Hence, the suit is not

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maintainable in its present form for the relief as claimed and the plaintiff is not entitled to any relief and dismissed the suit.

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Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff filed Civil Appeal No.14 of 2018 in the court of Principal District Judge, Giridih which was ultimately heard and disposed of by the learned first appellate court as already indicated above.

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The learned first appellate court, on the basis of the materials available in the record and the submission made before it, formulated the following points for determination :-

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(i) Whether registered sale deed no. 9430 dated 22.09.2003 has been executed in contravention of section 46 of the C.N.T. Act and fit to be cancelled being void document.

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(ii) Whether the sale deed no. 9430 dated 22.09.2003 is without consideration and liable to be cancelled.

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(iii) Whether plaintiff is entitled for recovery of possession on the suit land and house.

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(iv) Whether plaintiff’s suit is fit to be decreed and impugned judgment is fit to be set aside.

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The learned first appellate court first took up point for determination No.(i) and considering paragraph-3 of additional evidence/affidavit of the plaintiff wherein the plaintiff has stated that her caste is Hindu “Nai” which comes under the category Backward Class and the defendant has not made any cross-examination on the statement of paragraph-3 of the affidavit of the plaintiff; hence, the learned first appellate court came to the conclusion that the plaintiff is Hazam/Nai by caste which caste has been included in the list of Backward Class under Section 46(b) of the Chota Nagpur Tenancy Act, 1908

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vide Bihar Gazette Notification dated 18.07.1962. Therefore, the sale deed having been executed by the plaintiff without the sanction accorded by the Deputy Commissioner as required under Section 46 of the Chota Nagpur Tenancy Act, 1908. The learned first appellate court held that the registered sale deed No.9430 dated 22.09.2003 has been made in contravention of the Section 46 of the Chota Nagpur Tenancy Act, 1908. Hence, the same is void and liable to be cancelled.

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The learned first appellate court next took up the point for determination No.(ii) and considering the fact that in the deposition in paragraph-8 of the cross-examination of D.W.3 -who is the scribe and a witness examined on behalf of the defendant, has stated that he handed over the registration receipt known as chirkut to the defendant without the consent of the plaintiff and the said chirkut was not signed by the plaintiff, as mentioned in paragraphs-5 and 6 of the cross-examination of the D.W.3; the learned first appellate court relied

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upon paragraph-15 of the judgment of Janak Dulari Devi & Another vs. Kapildeo Rai & Another reported in (2011) 6 SCC 555, paragraph-15 of which reads as under:-

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“15. The prevalence of this practice in Bihar is noticed and recognised in several reported decisions—the decision of this Court in BishundeoNarain Rai [(1998) 7 SCC 498] and the decisions of the Patna High Court in Sarjug Saran Singh v. Ramcharitar Singh [1968 BLJR 74 (Pat)] , Shiva Narayan Sah v. Baidya Nath Prasad Tiwary [AIR 1973 Pat 386] and Baldeo Singh v. Dwarika Singh [AIR 1978 Pat 97] , which explain the practice of ta khubzulbadlain, after relying upon the principles laid down in the earlier decisions of that Court in Mohd. Murtaza Hussain v. Abdul Rahman [AIR 1949 Pat 364] , Motilal Sahu v. UgrahNarainSahu [AIR 1950 Pat 288] and PanchooSahu v. Janki Mandar [AIR 1952 Pat 263]”

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and held that as the plaintiff did not hand over the registration slip to the

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defendant so as per the practice prevalent in Bihar known as ‘ta khubzul badlain’ i.e. title to the property passes to the purchaser only when there is

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“exchange of equivalents” and went on to hold that the plaintiff having not signed the registration slip known as chirkut and not handing over the same to the defendant voluntarily; is an additional proof of non-payment of consideration money. The learned first appellate court also considered that:

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(i) the statement regarding payment of consideration amount has not been mentioned in the sale deed.

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(ii) There is no endorsement regarding payment of consideration amount by the Sub Registrar at the time of registration of the deed.

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(iii) There is no receipt of payment of consideration money.

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(iv) The plaintiff cancelled the sale deed on 20.10.2003.

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and arrived at the conclusion that the defendant could not prove the payment of consideration amount to the plaintiff. Hence, the sale deed No.9430 dated 22.09.2003 is without consideration and decided the point for determination No.(ii) against the defendant-respondent.

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The learned first appellate court next took up the point for determination No.(iii) and considering the evidence in the record, came to the conclusion that the defendant has come in possession over the suit land and house during the pendency of the suit. Hence, the plaintiff is entitled to get the recovery of possession because the sale deed executed by the plaintiff in favour of the defendant bearing No.9430 is void document and answered the point for determination No.(iii) in affirmative and in favour of the plaintiff.

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The learned first appellate court lastly took up point for determination No.(iv) and went on to hold that the judgment and decree passed by the trial court is not sustainable in law and fit to be set aside. Accordingly, the learned trial court set aside the judgment and decree passed by the trial court and decreed the suit of the plaintiff by allowing the appeal.

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Vide order dated 05.03.2020, the predecessor judge in roster has admitted the Second Appeal on the following substantial question of law.

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“The appellate court below inspite of the fact that the property in question is land as well as the building was justified in coming to the conclusion that Section 46 of the C.N.T. Act has not been complied with and that is why the judgment and decree has been reversed or not?”

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Learned senior counsel for the appellant relies upon the judgment of this Court in the case of Ajay Singh & Others vs. Nathuni Ram & Others passed in Second Appeal No.248 of 2002, dated 21.08.2024 paragraph-19 and 20 of

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which reads as under:-

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“ 19. Having heard the submissions made at the Bar and after going through the materials available in the record, it will be appropriate to take up the substantial questions of law Nos.1 and 2 together; as they are intertwined together. Section 46 of C.N.T. Act, 1908 is relevant to the facts of this case reads as under: -

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“ [46. Restrictions on transfer of their right by Raiyat. (1) No transfer by a Raiyat of his right in his holding or any portion thereof,-

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(a) by mortgagte or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or

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(b) by sale, gift or any other contract or agreement, shall be valid to any extent:

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Provided that a Raiyat may enter into a 'bhugut bundha' mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the 'Bihar and Orissa Co-operative

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Societies Act, 1935 (B&O Act VI of 1935) for any period not exceeding fifteen years:] Provided further that,-

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(a)X x x x x x x x x x x x x ;

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(b) an occupancy-Raiyat, who is a member of the [Scheduled Castes or Backward Classes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person, who is a member of the [Scheduled Castes or, as the case may be, Backward Classes] and who is a resident within the local limits of the district within which the holding is situate [* * *];

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X x x x x x x x x x (emphasis supplied)

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makes it crystal clear that the restriction imposed in the said Section for transfer to be made by an occupancy raiyat who is a member of inter alia Scheduled Caste, the previous sanction of Deputy Commissioner is required in respect of raiyati land not in respect of house or homestead land. In this respect, it is appropriate to refer to two judgments placed by the learned senior counsel for the appellants. The first one being in the case of Anupama Roy vs. State of Bihar reported in (2004) AIR Jhar HCR 450 and the second one being in the case of Kamal Khess & Another vs. State of Jharkhand & Others reported in (2011) 4 AIR Jhar R 138.

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20. Section 6 of the C.N.T. Act, 1908 defines raiyat which reads as under:- “ 6. Meaning of "Raiyat" - (1) "Raiyat" means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family, or by hired servants or with the aid of partners; and includes the successor-in-interest of persons who have acquired such a right, but does not include a Mundari-khunt-kattidar. Explanation. - Where a tenant of land has the right to bring it under cultivation, he shall be deemed to have acquired a right to hold it for the purpose of cultivation, notwithstanding that he uses it for the purpose of gathering the produce of it or of grazing cattle on it.

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(2) A person shall not be deemed to be a Raiyat unless he holds land either

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immediately under a proprietor or immediately under a tenureholder or immediately under a Mundari-khunt-kattidar.

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(3) In determining whether a tenant is a tenure-holder or Raiyat, the Court shall have regard to,-

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(a) local custom, and

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(b) the purpose for which the right of tenancy was originally acquired.” (Emphasis supplied)

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from the plain reading of the definition of “Raiyat”, itself it is abundantly clear that the raiyat means primarily a person who has acquired right to hold for the purpose of cultivating it by himself or members of his family. Thus, this court has no hesitation in holding that the learned first appellate court has committed illegality in overlooking the nature of land involved in the sale-deed marked as Ext.2 being house and homestead land and the learned first appellate court also committed illegality by holding that the Ext.2 was executed in violation of Section 46 of C.N.T. Act, 1908 and more so, when it was not even the case of the defendant that the Ext.2 sale-deed is in violation of Section 46 of C.N.T. Act, 1908. The substantial question of law Nos.1 and 2 are answered accordingly.”

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and submits that therein this Court has hold that the requirement of

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sanction by the Deputy Commissioner for transfer of the land, as envisaged under Section 46 of the Chota Nagpur Tenancy Act, 1908 is in respect of raiyati land only and not in respect of homestead land and also submits that in the

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sale deed marked Ext.2, it has been categorically mentioned in the description of the property that a property sold is 2 and ½ decimals consisting of land and house and its malkiyat is Raiyati, Kaymi, Dakhli which means that the right accrued to the vendor over the land on being settled as a raiyati land.

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Learned senior counsel for the appellant next submits that an area of 2 and ½ decimals which admittedly consists of a house cannot be a raiyati land and it has to be a homestead land. Therefore, the learned first appellate court has committed a grave illegality by holding that the sale deed executed by the plaintiff in favour of the defendant bearing No.9430 is void having been made in contravention of the provision of Section 46 of the Chota Nagpur Tenancy Act, 1908, is perverse. So far as the finding of the learned first appellate court that the said sale deed bearing No.9430 being without consideration as the registration slip which is known as chirkut has not been handed over to the defendant by the plaintiff voluntarily is concerned, the learned senior counsel for the appellant relies upon the judgment of the Hon’ble Supreme Court of India in the case of Damodhar Narayan Sawale (D) through LRs. vs. Tejrao Bajirao Mhaske reported in AIR 2023 SC 3319, paragraph-32 of which reads as

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under:-

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“32. Having held as above, we will now proceed to consider the question whether the upturning of the judgment and decree of the First Appellate Court, which held the sale deed dated 21.04.1979 (Ext.128) as one transferring ownership of the suit land by the plaintiff, by the High Court can be sustained. There can be no doubt with respect to the position that where a deed of sale had been duly executed and registered, its delivery and payment of consideration have been endorsed thereon it would amount to a full transfer of ownership so as to entitle its purchaser to maintain a suit for possession of the property sold. The very object of the mandate for registration of transfer of an immovable property worth more than Rs. 100/- under Section 54 of the Transfer of Property Act, 1882, read with Section 17 of the Indian Registration Act, is primarily to give certainty to title. When execution is challenged, registration by itself is no proof of execution and proof of complying with Section 67 of the Evidence Act is necessary. There can be no reason to disbelieve a recital

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contained in a registered sale deed regarding payment of consideration, executed by the vendor. Hence, if it is said to have already been paid, going by the registered sale deed, certainly it is for the vendor asserting nonpassing of consideration to prove the said asserted fact. Bearing in mind the aforesaid aspects the aforesaid question has to be approached.”

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and submits that therein the Hon’ble Supreme Court of India has observed that where a sale deed has duly been executed and registered, its delivery and payment of consideration have been endorsed thereon, it would amount to a full transfer of ownership so as to entitle its purchaser to maintain a suit for possession of the property sold. Hence, the learned first appellate court in the facts of the case has erred by relying upon the ratio of the judgment of the Hon’ble Supreme Court of India in the case of Janak Dulari Devi & Another vs. Kapildeo Rai & Another (supra) and as the sale deed has been duly executed and registered, hence, it is submitted that the said finding of the learned first appellate court be set aside and the sole substantial question of law be answered in the negative in favour of the appellant by holding that the learned first appellate court was not justified in coming to the conclusion that the provision of Section 46 of the Chota Nagpur Tenancy Act, 1908 has not been complied with and the judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court in Title Suit No.104 of 2003 be restored.

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Learned counsel for the respondent on the other hand vehemently opposes the prayer made by the learned senior counsel for the appellant and submits that the facts of Ajay Singh & Others vs. Nathuni Ram & Others (supra) are entirely different from the facts of this case as in that case, the property in respect of which the sale deed was executed was a house and the land was a homestead land but here undisputedly in the Ext.2- the sale deed concerned itself, it has been categorically mentioned that the right accrued to

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the vendor over the land on being settled as a raiyati land. So, undisputedly the land is a raiyati land and hence, the provision of Section 46 of the Chota Nagpur Tenancy Act, 1908 is attracted to the facts of the case. Hence, the ratio of the judgment of Ajay Singh & Others vs. Nathuni Ram & Others (supra) has no application to the facts of the case.

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Learned counsel for the respondent next submits that the observation

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made in the case of Damodhar Narayan Sawale (D) through LRs. vs. Tejrao Bajirao Mhaske (supra) is also not applicable to the facts of the case; as in this case, there is no endorsement of the payment of consideration amount by the Sub-Registrar nor there is any statement regarding payment of consideration amount having been mentioned in the recital of the sale deed. So, the ratio of the judgment of Janak Dulari Devi & Another vs. Kapildeo Rai & Another (supra) having been settled particularly in respect of the practice prevalent in Bihar and the State of Jharkhand being carved out of the State of Bihar, the same practice is prevalent in the State of Jharkhand also; therefore, no illegality has been committed by the learned first appellate court by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Janak Dulari Devi & Another vs. Kapildeo Rai & Another (supra). Hence, it is submitted that there is no illegality having been committed by the learned first appellate court. The sole substantial question of law is to be answered in the affirmative by holding that the learned first appellate court was justified in coming to the conclusion that the provision of Section 46 of the Chota Nagpur Tenancy Act, 1908 has not been complied with and the consideration amount has also not having been paid by the defendant to the plaintiff. So, the sale deed is void. Hence, this Second Appeal, being without any merit, be dismissed.

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Having heard the submission made at the Bar and after carefully going through the materials available in the record, so far as the ratio of the judgment of this Court in the case of Ajay Singh & Others vs. Nathuni Ram & Others (supra) is concerned, there is no quarrel that the provision of Section 46 of the Chota Nagpur Tenancy Act, 1908 requires sanction of the Deputy Commissioner for effecting transfer of land belonging to the Scheduled Castes & Scheduled Tribes and the Members of the Backward Caste is not applicable so far as the homestead lands are concerned but coming to the facts of the case as already indicated above in the sale deed, which has been marked Ext.2 itself, the nature of the land has been described as the land the right of which accrued to the vendor on being settled as a raiyati land. So, merely because a house was constructed over the raiyati land obviously illegally without changing the nature of the land in the revenue records, it cannot be treated that the nature of the land for the purpose of applicability of the provision of Section 46 of the Chota Nagpur Tenancy Act, 1908 has changed; because if such an interpretation is allowed, the same will frustrate the very purpose of enactment of the provision of Section 46 of the Chota Nagpur Tenancy Act, 1908; as to do away with the said a requirement of sanction of the Deputy Commissioner, a house, how so small, the same may be, will be constructed on a large chunk of rayati land. Therefore, in the considered opinion of this Court and in view of the description of the land, the raiyati land sold by the registered sale deed No.9430 being a land the right of which accrued to the vendor on being settled as a raiyati land, this Court is of the considered view that the ratio of Ajay Singh & Others vs. Nathuni Ram & Others (supra) is not applicable to the facts of the case. Therefore, even though there is a description of the property sold is land as well as building and even though the land as well as the

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building consists of only 2 and ½ decimals of land but as already indicated above the nature of the land being admittedly a raiyati land, certainly, the provisions of Section 46 of the Chota Nagpur Tenancy Act, 1908 is applicable to the sale deed; which has been marked Ext.2 and as no sanction of the Deputy Commissioner, has admittedly not been obtained; therefore, the sale deed marked Ext.2 cannot be recognized as valid by any court including the Civil Court, in terms of the provision of Section 46(3) of the Chota Nagpur Tenancy Act, 1908. So, the sole substantial question of law is answered in the affirmative by holding that the learned first appellate court is justified in coming to the conclusion that the provisions of Section 46 of the Chota Nagpur Tenancy Act, 1908 has not been complied with.

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Before parting, it is pertinent to mention here that even though there is no substantial question of law formulated regarding the finding of facts arrived at by the learned first appellate court regarding the defendant having failed to establish that she paid the consideration amount of sale deed marked Ext.2 to the plaintiff concerned, it is made clear that as has rightly been submitted by the learned counsel for the respondent and as has categorically been observed by the learned first appellate court in paragraph-37 of the impugned judgment that there has not been any endorsement on the sale deed by the Sub-Registrar at the time of registration of the sale deed regarding payment of consideration amount nor any statement regarding payment of consideration amount has been mentioned in the recital of the sale deed. So, in view of the same, the ratio of Damodhar Narayan Sawale (D) through LRs. vs. Tejrao Bajirao Mhaske (supra) is not applicable to the facts of the case and the recognition of the practice prevalent known as ‘ta khubzul badlain’ as has been referred to in the judgment of Janak Dulari Devi & Another vs. Kapildeo Rai & Another

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(supra) being specifically in respect of Bihar and the State of Jharkhand was carved out from Bihar only in the year 2000 and the sale deed was executed in the year 2003. So, in the considered opinion of this Court, the learned first appellate court has not committed any illegality in complying with the ratio of

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the judgment of Janak Dulari Devi & Another vs. Kapildeo Rai & Another (supra) to the facts of the case.

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In view of the discussion made above, this Second Appeal, being without any merit, is dismissed on contest but under the circumstances without any cost.

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