Dismissed¶95

Anandpal Sahu v. Arjun Puri And Ors.

Jharkhand HC9 Dec 2024SA/63/2006

Case brief

AI extract

What is this about?

Second appeal S.100 CPC; substantial questions of law; mortgage redemption; usufructuary/Jarpesgi mortgage; fixed-period mortgage (17 years); perversity of concurrent findings; sale deed by vendor without title passes no title; non-examination of executant of sale deed when genuineness challenged; suit for declaration of right and title; Title Suit No.01 of 1982; Title Appeal No.01 of 1990; khata No.255 village Chharda district Gumla; Singh Ram v. Sheo Ram (2014) AIR SCW 4854; Bihar Land Reforms Act S.6 rent receipts; khatian/khewat evidence; appeal dismissed without cost.

What did the court decide?

None; the Second Appeal was dismissed without any cost. ¶95

Anandpal Sahu Vs Arjun Puri And Ors. — Jharkhand HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

None; the Second Appeal was dismissed without any cost.

¶95

Issue for consideration

Whether the Courts below have committed error in law in disbelieving the redemption of the land when the mortgage was for a fixed period? +1 more

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Court's answer

Absent perversity in the first appellate court's finding of fact, the second appellate court cannot interfere under Section 100 CPC merely because a different view was possible on the materials on record.

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Ratio / Principle

The finding that the plaintiff failed to establish redemption of the mortgage is not perverse: Chawan Kuer and Chhit Kuer remained in possession of the suit land till 1981, which is inconsistent with any redemption having occurred.

¶89

Key takeaways

First substantial question of law answered in the negative: the courts below committed no error of law in disbelieving redemption of the land although the mortgage was for a fixed period.ratio¶90
Even assuming the sale deeds were genuine, since the vendors had no right or title on the date of execution (the mortgage not having been redeemed), the sale deed could not confer title on the plaintiff.ratio¶94
Second substantial question of law answered in the negative: no illegality was committed by the courts below in questioning the genuineness of the sale deeds for non-examination of the vendors when their genuineness was seriously challenged.

Detailed headnote1 paragraphs

Second Appeal under Section 100 CPC (S.A. No.63 of 2006, decided 09.12.2024) dismissed. Concurrent findings of the courts below — that the fixed-period (17-year) Jarpesgi mortgage over the suit land of khata No.255, village Chharda (Gumla) was never redeemed by the mortgagors' ancestors, and that Chawan Kuer and Chhit Kuer remained in possession till 1981 — are findings of fact, not perverse, and not open to interference in a second appeal merely because another view was possible. Held: (i) no error of law in disbelieving redemption despite the mortgage being for a fixed period — first substantial question answered in the negative; (ii) even assuming the sale deeds (Ext.2 and 2/A) were genuine, the vendors having no right or title on the date of execution, the deeds conferred no title on the plaintiff; and the courts below committed no illegality in doubting genuineness for non-examination of the vendors when it was seriously challenged — second substantial question answered in the negative. Appeal dismissed without cost.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.63 of 2006

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------

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(Against the judgment dated 24.12.2005 passed by the Additional District Judge-I, Gumla in Title Appeal No.01 of 1990)

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Anandpal Sahu, son of Sri Lachuman Sahu, resident of Village Chharda, Post Office & Police Station Sisai, District Gumla

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.... .... …. Plaintiff/ Appellant/ Appellant

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Versus

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Arjun Puri

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Nanku Puri

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Both sons of Raghu Puri

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Most. Kosala Kuer, wife of Raghu Puri.

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Vim Puri, son of Alkhu Puri.

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(Deleted)

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Gobardhan Bharti, son of Jaidhar Bharti.

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Ramakant Bharti.

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Devendra Bharti.

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(Rejected)

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All sons of Maru Bharti.

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(Deleted)

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Kamal Bharti.

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Both sons of Bhukhu Bharthi.

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All resident of Village Chharda, Post Office & Police Station Sisai, District Gumla.

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.... .... …. Defendants/Respondents/ Respondents

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------

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For the Appellant : Mr. Birendra Kumar, Advocate Mr. Sudhir Kr. Sharma, Advocate For the Respondents : Mr. Manjul Prasad, Sr. Advocate Mr. Baban Prasad, Advocate Mr. Akhouri P. Sinha, Advocate Mr. Aniket Rohan, Advocate ------ P R E S E N T

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S.A. No.63 of 2006

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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 concurrence dated 24.12.2005 passed by the Additional District Judge-I, Gumla in Title Appeal No.01 of 1990 whereby and where under the learned first appellate court dismissed the appeal filed against the judgment dated 27.11.1989 passed in Title Suit No.01 of 1982 whereby and where under the learned Sub-Judge III, Gumla dismissed the suit on contest.

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The brief fact of the case is that the plaintiff/appellant filed Title Suit No.01 of 1982 in the Court of Sub Judge, Gumla with a prayer for declaration of right and title of the plaintiff over the suit property besides the cost of the suit.

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The case of the plaintiff in brief is that the suit land was mortgaged by the owners thereof namely Ram Bharti and others to one Deo Nath Bharti. Deo Nath Bharti died leaving behind his widow Chawan Kuer as his only heir and successor of his property. During the Revisional Survey, the mortgaged land was recorded in the name of Chawan Kuer as Jarpasgi Khewat No.4 . The mortgagor Ram Bharti died leaving behind his son Jaidhar Bharti and Bishun Bharti. Bishun Bharti died leaving behind his two sons namely Prabal Bharti and Bhukhu Bharti. Jaidhar Bharti died leaving behind his two sons Maru Bharti and Gobardhan Bharti. It is the case of the plaintiff that the mortgaged lands of khata No.255 were redeemed by the four brothers together and the vendors of the plaintiff are the descendant of the mortgagor. The plaintiff asserted that the Jarpasgidar Chawan Kuer has no right, title or interest over the suit land to alienate or transfer the same to anyone. Land receipts were

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S.A. No.63 of 2006

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issued under Section 6 of the Bihar Land Reforms Act in favour of Maru Dayal Bharti after due publication of the notice and they sold plots to the appellant/plaintiff through the registered sale deed dated 09.04.1981 for Rs.5,000/- and the plaintiff, after such purchase, came in possession of the suit land. Respondent No.7 sold plot No.2736 of khata No.255 to the appellant through a registered sale deed, since then, the appellant-plaintiff has been in possession of the suit land and paying land revenue to the State of Bihar. The dispute arose after the defendant Nos.1 and 2 filed a case; being a proceeding under Section 144 of the Code of Criminal Procedure which was decided in favour of the defendant Nos.1 and 2.

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In their joint written statement, the defendant Nos.1 and 2 challenged the maintainability of the suit on various technical grounds and pleaded that the suit land was settled by Maharaja Dhiraj Jagranath Sahdeo Ratu Garh in favour of Bandhu Bharti and Jainarain Bharti by a registered settlement. Bandhu Bharti died issueless and Jainarain Bharti died leaving behind his only son Deo Narain Bharti. Deo Narain Bharti had only one daughter Chawan Kuer. Deo Narain Bharti gave 9.30 acres of land to his daughter Chawan Kuer and rest of the land was cultivated by him. After death of Deo Narain Bharti, the Maharaja took over the land except which was in possession of Deo Narain Bharti in 1901. Ram Bharti, Kham Bharti and Bishun Bharti were made khewatdar of the resumed land of village Chhadra by the Maharaja. The Maharaja did not settle the land which was in possession of Chawan Kuer and advised them to settle the matter amicably. Ram Bharti, Kham Bharti and Bishun Bharti went to Chawan Kuer with a request to take a loan of Rs.2,204/- and in return, they would execute a Jarpesgi deed in favour of her husband Deo Narain Bharti on 25.04.1904 for 17 years. Prior to the Revisional Survey, Deo Narain Bharti died

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S.A. No.63 of 2006

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leaving behind his wife Chawan Kuer who was recorded as Khewatdar of the land. The land was never redeemed by Ram Bharti, Kham Bharti and Bishun Bharti or their heirs and Chawan Kuer remained in possession of the suit land. Chawan Kuer gave 3.45 acres of land to her maternal daughter-in-law Chhit Kuer. After Revisional Survey, Banda Purcha was prepared in the name of defendant Nos.1 and 2 in respect of the suit land. They have been in possession over the same and the same was never challenged by the plaintiff. Hence, the suit is barred by the law of limitation.

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On the basis of the rival pleadings of the parties, the learned trial court

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settled the following nine issues: -

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i) Is the suit as framed maintainable?

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ii) Has the plaintiff got any valid cause of action for the institution of the suit?

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iii) Is the suit barred on law of limitation?

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iv) Whether the contesting defendants have acquired their right, title and interest over the suit land by virtue of adverse possession?

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v) Whether the plaintiff has acquired his title over the suit land on the strength of two sale deeds one dated 17.2.80 and other dt. 9.4.81?

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vi) Whether the sale deed dated 17.2.80 alleged to have been executed by defendant Nos.7 and 8 namely Gudlu Bharti and Kamal Bharti and other sale deed dated 9.4.81 alleged to have been executed by the defendant Nos. 3 to 6 namely, Goberdhan Bharti, Ramakant Bharti, Devendra Bharti and Srikant Bharti in favour of the plaintiff are genuine, valid, operative and with consideration?

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S.A. No.63 of 2006

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vii) Whether alleged Jarpesgi had been redeemed by the ancestors of defendants No. 3 to 8 and have the mortgagor came into khas possession over the mortgaged land?

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viii) Is the plaintiff entitled to a decree as claimed for?

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ix) To what other relief or reliefs if any is the plaintiff entitled?

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Learned trial court first took up issue No.(vi) and after considering the evidence in the record, came to the conclusion that the plaintiff entered into the witness box in support of his case to the effect that they have redeemed the mortgage and found and held that the mortgage has not been redeemed by the ancestor of the defendant Nos.3 and 8 and the mortgagor could not come into possession over the land mortgaged and decided the issue against the plaintiff and in favour of the defendants.

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The learned trial court next took up issue Nos.(iv), (v) and (vii) together and after considering the evidence in the record, came to the conclusion and held that the plaintiff could not establish his case. Hence, the plaintiff was not entitled to the relief.

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The learned trial court disposed of issue No.(iii) as not pressed.

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The learned trial court next took up issue Nos.(i), (ii) and (viii) together

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and found and held that the plaintiff has no cause of action for the suit, hence, the suit is not maintainable 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 Title Appeal No.01 of 1990 in the court of Principal District Judge, Gumla which was ultimately heard and disposed of by the learned first appellate court as already indicated above.

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S.A. No.63 of 2006

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The learned first appellate court first took up issue No.(vi) and considered the admitted case of the plaintiff that the suit land was mortgaged by Ram Bharti, Kham Bharti and Bishun Bharti to Deo Nath Bharti before Revisional Survey Operation. The learned first appellate court considered that the plaintiff could not come out with any definite material as to the date and time of resumption and the fact that the suit land was recorded in the name of Chawan Kuer Jarpesgidar Khewatdar No.4 as is evident from Ext.5 and Ext.8 and even admitted by the plaintiff in para-3 of his plaint, thus, the corollary is that there was never resumption and Chawan Kuer remained in possession of the suit land and after abolition of zamindari, Chawan Kuer was declared as raiyat by the State and the lands were vested with her by Bihar Government and she paid rent to the Government by the rent receipts which have been marked Ext.A/1, A/2 and A/7. The learned first appellate court considered that the land revenue receipts, marked Ext.G and Ext.A1 to A7, are sufficient to establish that the lands were in possession of Chhit Kuer from 1936-1981. So, right and interest in the land were created on the basis of the adverse possession of more than 40 years in favour of Chhit Kuer. The Ext.1 and 1/A to 1/E were the rent receipts issued in favor of Anand Pal Sahu but they were of the year 1982-1986 i.e. after filing of the suit and the same cannot be used to prove the fact that the executor of the sale deed of the lands in dispute had right to sell the land in favour of the appellant.

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The learned first appellate court then took up issue Nos.(iv), (v) and (vii) together and considered Ext.5 i.e. the certified copy of khatian of village Chharda, according to which, Chawan Kuer wife of Deo Nath Bharti has been recorded as the owner of the land in dispute. The learned first appellate court also considered Ext.8, which is the certified copy of khewat No.4 which is also

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S.A. No.63 of 2006

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in the name of Chawan Kuer. Ext.4, is a hukumnama which has been proved by the respondent and went on to hold that these documents are sufficient to prove that right, title and interest of the disputed land are vested with the respondent which confirms that the respondent was in possession of the disputed land. The first appellate court also considered that the vendor of the sale deed was not examined to prove the sale deeds without assigning any reason and the D.W.3 and D.W.5 have admitted possession of the respondents over the disputed land and thus considering, confirmed the finding of the learned first appellate court and dismissed the appeal.

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At the time of admission of this appeal vide order dated 24.03.2009, the predecessor Judge in the roster settled the following two substantial questions of law:-

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(i) Whether the Courts below have committed error in law in disbelieving the redemption of the land when the mortgage was for a fixed period?

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(ii) Whether the finding of the Courts below are perverse in law for not relying on the sale deeds merely for non-examination of the vendor?

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Learned counsel for the appellant relies upon the judgment of the Hon’ble Supreme Court of India in the case of Singh Ram (D) Thr. L.Rs. vs. Sheo Ram reported in 2014 AIR SCW 4854 and submits that wherein the Hon’ble Supreme Court of India held as under in para-14 and 15:-

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“14. We need not multiply reference to other judgments. Reference to above judgments clearly spell out the reasons for conflicting views. In cases where distinction in usufructuary mortgagor's right under Section 62 of the T.P. Act has been noted, right to redeem has been held to continue till the mortgage money is paid for which there is no time limit while in other cases right to redeem has been held to accrue on the date of mortgage resulting in extinguishment of right of redemption after 30 years. 15. We, thus, hold that special right of usufructuary mortgagor under Section 62 of the T.P. Act to recover possession commences in the manner specified therein, i.e., when mortgage money is paid out

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S.A. No.63 of 2006

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of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor. Until then, limitation does not start for purposes of Article 61 of the Schedule to the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage. We answer the question accordingly.” (Emphasis supplied)

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and submits that the usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage.

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Learned counsel for the appellant next submits that since the mortgage was for 17 years, both the courts below have committed a grave illegality by holding that the mortgage has not been redeeming for over 40 years. It is next submitted by the learned counsel for the appellant by referring to Section 69 of the Transfer of Property Act, 1882 that a mortgagee or any person acting on his behalf subject to the provisions of the Transfer of Property Act has power to sale or concur selling the mortgage property or any part thereof in default of payment of mortgage money without intervention of court inter alia a power of sale without intervention of the court is expressly conferred on the mortgagee by the mortgage deed and the mortgagee is not the Government. Hence, it is submitted that Chawan Kuer has committed an illegality by giving the property to her maternal daughter-in-law.

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It is next submitted by the learned counsel for the appellant that both the courts below have committed perversity by not relying upon the sale deed because of non-examination of the vendors. Hence, it is submitted that both the substantial questions of law be answered in favour of appellant and this appeal, be allowed.

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Learned senior counsel for the respondents vehemently opposes the prayer of the appellant and submits that both the courts below have cogent

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S.A. No.63 of 2006

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reason as the materials available in the record suggested that the suit property remained in possession of the defendants and their ancestor particularly Chawan Kuer even after expiry of 17 years from the date of creation of the mortgage. So, such concurrent finding of fact having been arrived at by both the courts below based on the appreciation of the evidence in the record, such a finding of fact is not open to be challenged in this Second Appeal, for the first time in exercise of the power under Section 100 of the Code of Civil Procedure. It is, therefore, submitted that no error having been committed by the learned courts below in disbelieving the redemption of the land when the mortgage was for a fixed period; hence, the first substantial question of law is to be answered in the negative.

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So far as the second substantial question of law regarding the sale deeds executed by the vendors of the plaintiff in favour of the plaintiff being not relied upon by the courts below is concerned, it is submitted by the learned senior counsel for the respondents that the plaintiff filed the suit for declaration of right and title to the suit land. It being a settled principle of law that the plaintiff has to stand on its own leg and cannot take the advantage of the witness of the defendants, the plaintiff has to establish his title in order to succeed in a suit for declaration of title. The sale deed, which is executed by the vendors of the plaintiff, will confer title upon the plaintiff; if at all that vendors were having title in respect of the suit land. It is then submitted that it is the admitted case of the plaintiffs that the vendors of the plaintiff mortgaged the suit land to the ancestor of the defendants, though the plaintiff took the plea of redemption but the same could not be established. Both the courts below have come to the concurrent findings of fact that the plaintiff failed to establish his title. It is then submitted that by no stretch of imagination, it can be said that

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S.A. No.63 of 2006

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such finding of facts returned by both the courts below are perverse. So, once the finding that the plaintiff could not redeem the suit land holds the field and found to be true, obviously even if the execution of the sale deed in respect of the suit land by the vendors of the plaintiff is considered to be valid, still the same cannot confer any right or title upon the plaintiff, in the absence of any such right and title in respect of the suit land being with the vendors of the plaintiff, on the date of execution of the sale deed as unless and until the mortgage is redeemed, vendors of the plaintiff were not conferred any title to transfer the same by such sale deed executed. It is next submitted that certainly the vendors were the competent witnesses to prove the sale deed and they having not been examined as witness in the court, to prove the genuineness of the sale deed when the genuineness of them are challenged, no illegality has been committed by the learned courts below in this respect as well.

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It is lastly submitted by the learned senior counsel for the respondents that thus both the substantial questions of law be answered in the negative and 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 first substantial question of law as to ‘Whether the Courts below have committed error in law in disbelieving the redemption of the land when the mortgage was for a fixed period’ is concerned, it is pertinent to mention here that unless there is a perversity in finding of facts by the learned first appellate court, the same cannot be interfered with by the second appellate court in exercise of its power under Section 100 of the Code of Civil Procedure, merely because a different view was possible on the materials available in the record.

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S.A. No.63 of 2006

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Now coming to the facts of the case, the undisputed fact remains that there was a mortgage by the ancestors of the vendors of the plaintiff to the ancestors of the defendants. Though the plaintiff pleaded redemption of the said mortgage before the suit land being sold to the plaintiff by their vendors but the document put forth by the defendants as has been discussed in detail in the judgment by both the trial court as well as the first appellate court, goes to show that Chawan Kuer and Chhit Kuer have been in possession of the suit land till 1981. Had there been any redemption, the possession of the suit land ought not to have been continued in the name of Chawan Kuer and Chhit Kuer. So, in this respect of the finding of fact by the trial court that the plaintiff failed to establish that there was a redemption of the mortgage as claimed by the plaintiff before the vendors of the plaintiff executed the sale deed in favour of the plaintiff was not arrived at by excluding any admissible evidence or considering any inadmissible evidence nor such finding of facts can be termed so outrageously defying any logic, as to incur the blame of being perverse.

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Under such circumstances, this Court answers the first substantial question of law in the negative by holding that the courts below have not committed any error in law in disbelieving the redemption of the land that the mortgage was for a fixed period in view of the contrary overwhelming evidence in the record as discussed in their judgments by both the courts below.

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So far as the second substantial question of law as to ‘Whether the finding of the Courts below are perverse in law for not relying on the sale deeds merely for nonexamination of the vendor’ is concerned, true it is that the courts below have questioned the genuineness of the sale deed marked Ext.2 and 2/A as the vendors of the sale deed were not examined without any plausible reason and

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S.A. No.63 of 2006

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when the genuineness of the same was seriously challenged by the defendants. Otherwise also, assuming for the sake of arguments that the sale deeds are genuine, still as the vendors of the plaintiff were not having any right or title on the date of the execution of the sale deed in favour of the plaintiff, so the sale deed could not have conferred any title upon the plaintiff. Hence, by this sale deed alone without any evidence in the record to show that the vendors of the plaintiff were having right and title on the date of execution of the sale deed to transfer the same to the plaintiff, the plaintiff cannot establish his right or title over the suit land. Therefore, under such circumstances, the second substantial question of law is also answered in the negative.

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In view of the discussions made above, since both the substantial questions of law are answered in the negative, hence, this Second Appeal, being without any merit, is dismissed but under the circumstances without any cost.

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Let the copy of this judgment along with the lower court records be sent to the courts concerned forthwith.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 09^th of December, 2024 AFR/ Saroj

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S.A. No.63 of 2006

Anandpal Sahu v. Arjun Puri And Ors.

Case brief

What is this about?

What did the court decide?

Anandpal Sahu v. Arjun Puri And Ors.

Case brief

What is this about?

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What the court decided

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