Dismissed

Deo Narayan Sahani v. Kalawati Devi and Anr.

Patna HC5 Jul 2013SA/477/2010

Case brief

AI extract

What is this about?

The Patna High Court dismissed an appeal challenging the affirmation of a trial court judgment in a title suit. The court held that a non-framed issue regarding a rival gift document did not invalidate the judgment, as it was effectively dealt with under the framing of title and possession issues.

What did the court decide?

The appeal was dismissed, affirming the concurrent findings of the lower courts regarding the title and possession of the respondent.

Deo Narayan Sahani Vs Kalawati Devi and Anr. — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.477 of 2010

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====================================================== Deo Narayan Sahani, son of Nathuni Sahani, resident of villageRaghunathpur, P.S.- Turkauwalia, District- East Champaran. .... Defendant…Appellant .... Appellant/s Versus 1. Kalawati Devi, W/o Kanaiya Bhagat, resident of villageRaghunathpur, P.S.- Turkaulia, District- East Champaran. 2. Satyanarayan Sahani, son of Nathuni Sahani, resident of villageRaghunathpur, P.S. Turkaulia, District- East Champaran. ....Plaintiffs….Respondents .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Binod Kumar Singh, Advocate Mr. Dhananjay Kumar No.2, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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10 05-07-2013 This appeal is directed against the judgment and decree dated 19.4.2010 passed in Title Appeal No.61 of 2004, whereby the learned Additional District Judge, F.T.C.-IV, East Champaran at Motihari while dismissing appeal of the defendant, has affirmed the judgment and decree dated 30.6.2004 passed in Title Suit No.66 of 1991 by the learned 4^th Additional Munsif, Sadar Motihari, district-East Champaran. This appeal is thus directed against a judgment and decree of affirmation.

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For the sake of convenience I shall be referring to the

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status of the parties as occurring before the trial court.

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The plaintiff had brought the suit in question bearing Title Suit No.66 of 1991, seeking a declaration of title and

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confirmation of possession over the suit land. It is the case of the plaintiff that she has purchased the land described in Schedule-I to the plaint through a registered sale deed dated 21.10.1986 from defendant no.2 (Satya Narayan Sahani) who happens to be the brother of defendant no.1after payment of consideration amount of Rs.5,000/-. It is the further case of the plaintiff that since after the execution of the sale-deed dated 21.10.1986 she is in possession over the suit property. It is further the case of the plaintiff that in the year 1991 when the defendant no.2, i.e. vendor started to disturb her possession that she gathered information that the vendor had executed another sale deed in favour of his brother, the defendant no.1 on 21.11.1986. According to the plaintiff, the said transaction was without payment of any consideration. It is in the aforementioned background that the suit in question was filed alleging interference by the defendants who had colluded in the matter. It is the case of the plaintiff that the land stands mutated in her name and that the cause of action arose to her on 15.1.1991.

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Pursuant to the notice issued although defendant no.1, Deo Narayan Sahani appeared and contested the matter but the vendor defendant no.2, Satya Narayan Sahani did not choose to appear. A written statement was filed on behalf of the

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defendant no.1 in which apart from raising ornamental objections regarding the suit being barred by limitation, estoppel, waiver, acquiescence and based on incorrect pleading, it was further stated that the suit property had been transferred by the defendant no.2 in favour of defendant no.1 under an agreement to sell dated 28.5.1986 and since whereafter the defendant no.1 is having possession over the suit property. It is further the case of the defendant no.1, who is the contesting defendant that the sale-deed dated 21.10.1986 is a forged document not conferring any title on the plaintiff. It is further the case of the defendant that the plaintiff never came over the possession of the suit property at any stage. The case set up by defendant no.1 was that defendant no.2 vide an agreement to sell dated 28.5.1986 had agreed to sell an area of 13 kathas 15 dhurs of land in favour of defendant no.1 for a consideration amount of Rs.9,000/- of which Rs.4,000/- was already paid to the defendant no.2 by way of advance and whereupon the possession of the land was given to the defendant no.1. It is stated that subsequently by a registered sale-deed dated 21.11.1986 the land which was subject-matter of the Mahdanama dated 28.5.1986, was transferred in favour of defendant no.1 by the defendant no.2 after obtaining the balance

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amount of Rs.5,000/- . It was also the case of the defendant that the plaintiff was having full knowledge of the Mahdanama dated 28.5.1986 and despite knowledge she entered into a transaction with defendant no.2, which single instance by itself would render her sale-deed void in view of the execution of the registered sale-deed by the defendant no.2 in favour of defendant no.1 dated 21.11.1986 in furtherance of the Mahdanama dated 28.5.1986.

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The learned trial court upon completion of the pleadings framed five issues of which the issue no.3 relatable to title and possession of the plaintiff over the suit property, is the most relevant issue for consideration of the matter raised in this appeal. Whereas the plaintiff led four witnesses in support of her contention while adducing documentary evidence, 19 witnesses were led by the defendants apart from the documentary evidences led by the parties. The Trial court upon consideration of the rival contention, the oral evidence and the documentary evidence led during the course of trial, upheld the claim of the plaintiff for declaration of title and possession based upon the sale-deed dated 21.10.1986 and thus decreed the suit.

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Being aggrieved, the defendant no.1 preferred Title Appeal No.61 of 2004 and which was dismissed by the learned

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Additional District Judge, F.T.C.-IV, East Champaran at Motihari vide judgment and decree dated 19.4.2010 thus affirming the judgment and decree passed by the trial court and hence this appeal.

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Mr. Binod Kumar Singh has appeared on behalf of the appellant and has questioned the concurrent findings by the court(s) below, inter alia, on grounds of non-appreciation of relevant evidence led by the defendants to question the claim of the plaintiff. It is the contention of learned counsel that the suit itself was barred by limitation in terms of Article 59 of the Limitation Act inasmuch as though the title suit purportedly questions the sale-deed executed by defendant no.2 in favour of defendant no.1 dated 21.11.1986 but neither any prayer to set it aside has been made by the plaintiff nor the suit has been filed within the prescribed period of three years from the date of execution of the sale deed. He thus submits that the suit in question is hopelessly barred by limitation for the reason that the plaintiff had full knowledge of the Mahdanama dated 28.5.1986 and the sale deed in favour of the defendant no.1 was executed on 21.11.1986 but the suit was filed five years thereafter in the year 1991.

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Mr. Singh further tried to question the judgment and

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decree passed by the court(s) below on grounds that the courts have failed to appreciate that the plaintiff had not disclosed the date on which she got information about the existence of the sale-deed executed in favour of defendant no.1 by the defendant no.2 dated 21.11.1986. He thus submits that in absence of any statement on this account the plaintiff had in fact no cause of action and the suit was barred on this account. It is further the case of the defendant no.1 who is the appellant before this Court that although the entire defence of the defendant was based upon the Mahdanama dated 28.5.1986 but the trial court committed a serious illegality in not framing any issue to this effect and which aspect was also overlooked by the appellate court below. It is the contention of learned counsel that the very existence of the Mahdanama dated 28.5.1986 executed by defendant no.2 in favour of defendant no.1 followed by the registered sale-deed dated 21.11.1986 in favour of defendant no.1 puts an end to all speculations raised by the plaintiff in the suit. It is the contention of learned counsel that the trial court having failed to frame an issue in relation to Mahdanama dated 28.5.1986 has prejudicially affected the case of the defendants rendering the judgment and decree bad in law. It is the contention of learned counsel that despite material proposition being averred by the

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defendants to nullify the effect of sale-deed dated 21.10.1986, the trial court had failed to decide the same after framing an issue to that effect especially in view of the evidence available on record. It is further the submission of learned counsel that the lower appellate court has not considered the oral evidence led by the defendants rather the judgments passed by the court(s) below are merely taking note of the submission of the plaintiff. Learned counsel has further submitted that the court(s) below have failed to appreciate the import of the provisions underlying sections 19 and 34 of the Specific Relief Act (hereinafter referred to as ‘the Act’).

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Learned counsel has endeavoured to question the judgment and decree passed by the court(s) below on the following substantial questions of law as raised by him during the course of hearing of this appeal:

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Whether or not the lower appellate court has completely failed to consider the overwhelming oral evidences (DW1 to DW-16) while delivering judgment?

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Whether or not the lower appellate Court has failed to consider that the case of Mahdanama dated 28.5.1986 (Exhibit-C) was a material proposition in defence pleaded by the appellant in his written statement and proved by oral and

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Patna High Court SA No.477 of 2010 (10) dt.05-07-2013

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documentary evidences but both the courts below neither framed issues nor gave categorical findings as to the genuineness of Mahdanama and its legal effect on the sale deed dated 21.10.1986 (exhibit-1) in favour of respondent no.1, Kalawati Devi in view of section 19 of the Specific Relief Act?

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Whether or not the lower appellate court has failed to consider that the plaintiff/respondent no.1 has not sought relief against the sale deed dated 21.11.1986 (Exhibit-B) which was necessary in view of Mahdanama executed by her vendor prior to her sale deed and thus the suit is barred under section 34 of the Specific Relief Act?

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Whether or not the lower appellate court has failed to consider that there is no specific averment in respect of date of knowledge of sale deed of the appellant executed by her vendor and the suit was filed in the year 1991 although the sale deed is of the year 1986 and thus the suit was barred by law of limitation?

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Whether or not the lower appellate court has failed to consider that the plaintiff by not examining herself and the finding on the Mahdanama is based on deposition of the vendor-Satya Narain Sahni in a criminal case cannot be made basis of giving finding on Mahdanama that too without considering material oral evidences adduced in the case by the appellant?

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I have heard Mr. Singh, learned counsel appearing for the defendant no.1-appellant and have perused the judgment and decree passed by the court(s) below. The sum and substance of the argument led by Mr. Singh is based upon the Mahdanama dated 28.5.1986. It is not in dispute that the land in question belonged to defendant no.2. While the plaintiff claims title and possession over the suit land pursuant to the registered sale-deed dated 21.10.1986, the claim had been confronted by the defendant no.1 on the ground of execution of Mahdanama dated 28.5.1986 by the defendant no.2 in his favour which was followed by a registered sale-deed dated 21.11.1986. According to the learned counsel, if a registered sale-deed follows an agreement to sell executed between the same parties that would nullify any other deed that may have been executed in the meanwhile.

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As already observed the sheet anchor of defendant is the M ahdanama dated 28.5.1986. It is thus to be seen as to what evidence was led by the defendant in support of the Mahdanama dated 28.5.1986 or by the plaintiff in opposition thereto and what has been findings of the court(s) below on this aspect.

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According to the plaintiff, the Mahdanama is a

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manufactured document which was not in existence on the date defendant no.2 executed the sale-deed in her favour on 21.10.1986. The trial court has noted that after registering appearance, the defendant no.1 filed his written statement making reference to the Mahdanama dated 28.5.1986 though no copy thereof was filed at that stage and which was only filed in the year 2001. The finding relatable to Mahdanama by the trial court finds mention in the discussion relatable to issue no.3 at paragraph 11 of the judgment. The trial court has held the Mahdanama to be of suspicious character for the reason that it was not filed along with the written statement on 18.9.1992 rather was filed only on 19.4.2001, i.e. after almost nine years thereafter. The trial court also noted that the seal appearing at page 1, 2 and 3 of the Mahdanama mentioned the date 6.4.2001 and that the licence no. of the deed-writer was not present on the Mahdanama. Taking note of the said circumstances, the trial court held that the defendant no.1 in fact was never in possession over the suit property prior to the execution of the sale-deed by the defendant no.2 in favour of the plaintiff on 21.10.1986. The opinion expressed by the trial court to reject the Mahdanama on grounds of its genuineness is a finding of fact which is supported with reasons and has been approved by the

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lower appellate court while dismissing the appeal.

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In view of the said position it is to be seen whether the question of law raised by learned counsel warrants any consideration. The substantial question of law present at serial no.1 does not merit consideration for the reasons that the oral evidence cannot justify the finding on a documentary evidence on the issue of genuineness.

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The substantial question of law present at serial no.2 questions the judgment and decree passed by the court below on ground of non-framing of issue with respect to Mahdanama dated 28.5.1986. It is by now well settled that the object of framing of an issue is primarily to identify the questions that arise from the rival pleadings thus enabling the parties to lead evidence in support thereof. Thus framing of issues no doubt is an integral part but if an issue without being appropriately framed has been duly considered by the trial court on the basis of evidence led by the parties, a mere non-framing of issue on the said question would not render the judgment and decree invalid. Reference in this regard is made to a judgment of the Supreme Court reported in AIR 2009 SC 1103 (Bachhaj Nahar vs. Nilima Mandal) paragraphs 10 and 11 .

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In so far as the present case is concerned, Issue no.3

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relating to title and possession of the plaintiff over the suit property is a comprehensive issue dealing with the entire aspect of the matter including the issue of Mahdanama as raised by the defendants and which has been appropriately dealt by the trial court at paragraph 11 and has also been taken note of and affirmed by the lower appellate court. In that view of the matter the judgment and decree impugned cannot be questioned on this ground also.

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In so far as the scope of sections 19 and 34 of the Specific Relief Act is concerned, since the suit in question has been filed by the plaintiff for declaration of title and possession in the light of the registered sale deed dated 21.10.1986, the reliance upon sections 19 and 34 of the Act is completely misplaced. My conclusions are sufficient to negate the question of law raised at item no.3. Once the title and possession of a party is upheld in the light of the sale-deed executed there is no necessity for a court to pass any declaration relating to other sale-deed which by operation of law becomes void.

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In so far as the substantial question of law present at item no.4 regarding the date of knowledge is concerned, the statement of the plaintiff that the cause of action arose on 15.1.1991 impliedly means the date on which the defendant no.2

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started to disturb her possession.

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In so far as substantial question of law present at item no.5 is concerned, the non-examination of the plaintiff in a matter requiring adjudication on the basis of documentary evidence would not make any difference to the conclusion drawn by the court(s) below in absence of any such instance being shown by the appellant to demonstrate that the conclusion drawn by the court(s) below hinges on perversity.

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A cursory glance to the findings of the trial court as affirmed by the lower appellate court for rendering the Mahdanama dated 28.5.1986 suspicious and not worthy of reliance is a concurrent findings of fact and is supported with reasons. Besides, though it is well settled that records pertaining to a criminal case are not binding on a civil dispute but the fact remains that neither did the defendant no.2, i.e. the vendor said anything about the Mahadanama during the course of his deposition in the proceeding under section 144 of the Code of Criminal Procedure nor has he come forward to support the case of the defendant no.1 in the suit.

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It is more than manifest that the very foundation of the case of the defendant no.1 rested on the Mahadanama dated 28.5.1986 and the same having been held to be unreliable and

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suspicious by the courts below for the reasons emanating and reflecting from the Mahadanama itself and the other evidences, there could be no other conclusion than as drawn by the courts below in the judgment and decree impugned.

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For the reasons aforesaid, this Court is satisfied that this appeal does raise any substantial question of law meriting consideration.

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This appeal is dismissed.

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(Jyoti Saran, J)

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SKPathak/-

Deo Narayan Sahani v. Kalawati Devi and Anr.

Case brief

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Deo Narayan Sahani v. Kalawati Devi and Anr.

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