Mirza Ashraf Ali Vs Kashi Nath Sharma

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IN THE HIGH COURT OF JUDICATURE AT PATNA SECOND APPEAL No.51 of 2003

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1.1. Zareena Khatoon Son of Late Mirza Ashraf Ali, Resident of Village - Madhopur, Pargana- Bara, P.S. - Berharia, P.O. - Madhopur, District- Siwan.

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1.2. Mirza Shoib Ashraf Son of Late Ashraf Ali, Resident of Village - Madhopur, Pargana- Bara, P.S. - Berharia, P.O. - Madhopur, District- Siwan.

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1.3. Mirza Amir Ashraf Son of Late Mirza Ashraf Ali, Resident of Village - Madhopur, Pargana- Bara, P.S. - Berharia, P.O. - Madhopur, District- Siwan.

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1.4. Mirza Shahab Ashraf Son of Late Mirza Ashraf Ali, Resident of Village - Madhopur, Pargana- Bara, P.S. - Berharia, P.O. - Madhopur, District- Siwan.

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1.5. Mirza Jamshed Ashraf Son of Late Mirza Ashraf Ali, Resident of Village - Madhopur, Pargana- Bara, P.S. - Berharia, P.O. - Madhopur, District- Siwan.

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1.6. Bushra Khatoon Wife of Md. Athar Siddique and D/o Late Mirza Ashraf Ali, Resident of Mohalla - Basantpur Takia, P.O. and P.S. Ghantaghar, DistrictGorakhpur (U.P.)

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1.7. Khursheeda Bilquis Wife of Enamul Haque @ Guddu and D/o Late Mirza Ashraf Ali, Resident of Mohalla - Purani Qila, P.O. and P.S. - Town, DistrictSiwan.

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1.8. Sumbul Ashraf D/o Late Mirza Ashraf Ali Resident of Village Madhopur, Pargana - Bara, P.S. - Berharia, P.O. - Madhopur, District- Siwan.

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1.9. Kahkashan Ashraf D/o Late Mirza Ashraf Ali, Resident of Village Madhopur, Pargana - Bara, P.S. - Berharia, P.O. - Madhopur, District- Siwan.

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1.1 Zeba Ashraf D/o Late Mirza Ashraf Ali, Resident of Village Madhopur,

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Pargana - Bara, P.S. - Berharia, P.O. - Madhopur, District- Siwan.

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Mirza Hanif Ali alias Becha Son of Late Mirza Mokhtar Ashraf, Resident of Village - Madhopur, Pargana- bara, P.S. Berharia, P.O. Madhopur, DistrictSiwan.

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Mirza Saffadar Ali Son of Late Mirza Mokhtar Ashraf, Resident of Village - Madhopur, Pargana- bara, P.S. Berharia, P.O. Madhopur, District- Siwan.

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Aphsana Khatoon D/o late Mirza Mokhtar Ashraf, Resident of Village - Madhopur, Pargana- bara, P.S. Berharia, P.O. Madhopur, District- Siwan.

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Ram Sahodar Mahto Son of Late Sheo Bachan Mahto, Resident of Village Barharia, pargana bara, P.O. Barharia, P.S. barharia, District- Siwan.

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Babu Lal Mhato Son of late Sheo Bachan Mahto, Resident of Village Barharia, pargana bara, P.O. Barharia, P.S. barharia, District- Siwan.

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Jay Kumar Mahto Son of Late Sheo bachan Mahto, Resident of Village Barharia, Pargana Bara, P.O. Barharia, P.S. Barharia, District- Siwan.

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Butan Mahto Son of Late Sheo Bachan Mahto, Resident of Village Barharia, Pargana Bara, P.O. Barharia, P.S. Barharia, District- Siwan.

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Ram Parvesh Mahto Son of Late Sheo Bachan Mahto, Resident of Village Barharia, Pargana Bara, P.O. Barharia, P.S. Barharia, District- Siwan.

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Surajpati Devi D/o Late Sheo Bachan Mahto, Resident of Village Barharia, Pargana Bara, P.O. Barharia, P.S. Barharia, District- Siwan.

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Patna High Court SA No.51 of 2003(13) dt.01-09-2025 2/16

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Sheo Nath Yadav Son of Late Kripali Yadav, Resident of Village Barharia, Pargana Bara, P.O. Barharia, P.S. Barharia, District- Siwan.

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Bishwanath Yadav Son of Late Kripali Yadav, Resident of Village Barharia, Pargana Bara, P.O. Barharia, P.S. Barharia, District- Siwan.

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Jagarnath Yadav Son of Late Kripali Yadav, Resident of Village Barharia, Pargana Bara, P.O. Barharia, P.S. Barharia, District- Siwan.

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Laxaman Yadav, S/o Late Raghu Nath Yadav, Resident of Village Barharia, Pargana Bara, P.O. Barharia, P.S. Barharia, District- Siwan.

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Ramayan Yadav Son of Late Haripal Yadav, Resident of Village Barharia, Pargana Bara, P.O. Barharia, P.S. Barharia, District- Siwan.

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Ram Chandra Yadav Son of Late Haripal Yadav, Resident of Village Barharia, Pargana Bara, P.O. Barharia, P.S. Barharia, District- Siwan.

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Phulena Yadav S/o Deoraj Yadav, Resident of Village Barharia, Pargana Bara, P.O. Barharia, P.S. Barharia, District- Siwan. ... ... Appellant/s

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Versus

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Kashi Nath Sharma S/o Late Rupchand Sharma, Resident of Village Bodhariya, Pargana Bara, P.S. and Post - Bodhariya, District- Siwan.

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Sanjay Kumar Sharma S/o kashi Nath Sharma, Resident of Village Bodhariya, Pargana Bara, P.S. and Post - Bodhariya, District- Siwan.

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3.1. Mangal Sharma Son of Late Banarsi Sharma, Resident of Village Barharia Pachhim Tola, P.S. - Barharia, District- Siwan.

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3.2. Rameshwar Sharma Son of Late Banarsi Sharma, Resident of Village Barharia Pachhim Tola, P.S. - Barharia, District- Siwan.

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3.3. Bigan Devi Wife of Sri Ram Sharma, Resident of Village Barharia Pachhim Tola, P.S. - Barharia, District- Siwan.

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... ... Respondent/s

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====================================================== Appearance : For the Appellant/s : Mr. Bishwanath Choudhary, Advocate Mr. Arif Daula Siddiqui, Advocate Mr. Noumaan Ahmad, Advocate For the Respondent/s : None ====================================================== CORAM: HONOURABLE MR. JUSTICE KHATIM REZA ORAL ORDER

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13 01-09-2025 Heard Mr. Bishwanath Choudhary, learned counsel

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for the appellants.

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2. The present Second Appeal has been preferred

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against the judgment and decree dated 02.12.2002 passed by the

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learned 7th Additional District Judge, Siwan in Title Appeal No. 24 of 1999, whereby the judgment and decree dated 19.03.1999 passed by the learned Additional Munsif-I, Siwan in Title Suit No. 69 of 1994/193 of 1997 has been reversed.

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3. The defendants are the appellants in the instant Second Appeal.

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4. The plaintiffs filed Title Suit No. 69 of 1994/193 of 1997 for declaration that the sale deed dated 28.12.1992, executed by Shivbachan Mahto (defendant no. 2) in favour of Mirza Mokhtar Asharaf (defendant no. 1), is forged and fabricated, and also for a decree of injunction.

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5. The case of the plaintiffs, in short, is that one Bhikshuk Noniya had two sons, namely Jiut Noniya and Sahay Noniya. Sahay Noniya had only one daughter, namely Longi. Longi had a son, Narayan Noniya, who was married to Butani. The said Narayan Noniya died issueless, leaving behind his widow, Mosmat Butani. After the death of Narayan Noniya, Mosmat Butani remarried to Bhola Noniya. By virtue of her remarriage, Mosmat Butani became stranger to the family of Narayan Noniya, having no interest in his property. The second son of Jiut Noniya had two sons, namely Ramdhani and Sheo Dayal Noniya. Sheo Dayal Noniya died leaving behind one son,

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Devi Noniya, who also died unmarried. Thus, after the death of Bhikshu Noniya due to the second marriage of Mosmat Butani, and the death of Devi Noniya, the entire property of the family came into the possession of Ramdhan Noniya. It is further pleaded that Ramdhan Noniya, as guardian of his nephew Devi Noniya, along with Mosmat Butani, executed a mortgage deed on 01-09-1913 in favour of Gopal Sah for Rs. 512/- and 12 annas, and accordingly, Gopal Sah as mortgagee came into possession and remained in possession. It is further contended that Ramdhan Noniya executed another mortgage deed in favour of Fulchand Lohar, Thang Lohar, and Banke Khan on 06.02.1928 (Ext- 2/a) for Rs. 1200/-, in which the mortgage amount of Gopal Sah was kept secured, but that mortgage deed could not be obtained from the Registry office. Consequently, Fulchand Lohar and others, as mortgagees, filed Title Suit No. 259/1928 in the Court of Munsif, Siwan, which was decreed, and joint possession of the mortgagees was declared. Against that judgment, another Title Suit No. 100/1928 was filed, in which the plaintiffs obtained a decree on 23.02.1931 and secured khas possession. On the basis of that decree, the decreeholders (mortgagees) deposited the mortgage money in the Court, which was kept secured in the mortgage deed dated

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06.02.1928. However, in Execution proceedings the mortgagees obtained delivery of possession. Thereafter, Ramdhan Noniya sold the property described in Schedule I of the plaint measuring 4 Bighas, 16 Kathas and 13 Dhurs to Rup Chand Sharma, father of Plaintiff No. 1 and grandfather of Plaintiff No. 2, by registered sale deed dated 01.09.1936 and possession of the said property was delivered to the purchasers and the original mortgage deed dated 06.02.1928 (Exhibit 2/a), mortgage deed dated 30-06-1931 (Ramdhan Mahto vs. Fulchand Lohar) were handed over to Rup Chand Sharma. After his death, the plaintiffs, including the grandfather of Plaintiff No. 2 got the possession of the property and the related document and finally, all such documents came into the possession of Plaintiff No. 1.

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6. Further case of the plaintiffs is that Ramdhan Noniya sold his land in the year 1945 and 1947, keeping only a small portion of homestead land. It is further pleaded that Rupchand Sharma, in his lifetime, partitioned the property including ancestral property among his three sons namely, Banarasi Sharma, Kashi Nath Sharma and Prabha Shankar Sharma, vide deed dated 28.07.1970 and all the sons came in possession of their respective share separately. Further case of the plaintiffs is that Prabha Shankar Sharma executed a deed of

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gift of the land of his share on 03.10.1986 to plaintiff No. 2. The said gift was accepted by plaintiff No. 2 and since then he has been coming in possession of the said land. Defendant No. 2 was given the responsibility of looking after the cultivation work of Banarasi Sharma (Defendant No. 3). Taking advantage of this, Banarasi Sharma got a sale deed executed in favour of Defendant No. 1 on 28.12.1992. The further case of the plaintiffs is that the ex-landlord was on inimical terms with Rupchand Sharma. Therefore, the ex-landlord with ulterior motive did not create jamabandi in the name of Rupchand Sharma, rather created it in the name of Ramdhan Noniya. However, even after the abolition of Zamindari, Rupchand Sharma, and after partition, his sons, kept paying rent to the State of Bihar. Plaintiff No. 2, on the basis of the deed of gift, got mutation done in his favour on 03.10.1986 and started paying rent to the State of Bihar. Further case of the plaintiffs is that Banarasi Sharma was not pleased with the partition dated 03.10.1986 and after the death of Prabha Shankar Sharma, he wanted to take some land out of the land mentioned in the deed of gift, to which the plaintiffs did not agree. Since then, Banarasi Sharma started causing mischief to harass the plaintiffs. It is further pleaded that defendant No. 2 looks after

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the cultivation work of Banarasi Sharma. Therefore, defendant No. 3, in collusion with his relative (defendant No. 1), executed a sale deed on 28.12.1992 in favour of defendant No. 1, which is without consideration, forged and fabricated, conferring no title on defendant No. 1.

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7. Further case of the plaintiffs is that some land of defendant No. 3 has also been mentioned in Schedule III of the plaint. The land described in Schedule II of the plaint or any portion of it never came in possession of Ramdhan Noniya nor did he ever get possession. The plaintiffs came in possession of the land mentioned in Schedule III of the plaint by virtue of partition and the deed of gift. Plot No. 590, an area of 5 Katha 18 dhur, came in possession of the wife of Ramjeet Chamar, namely Buna Devi, on 04.09.1990, over which she built her thatched house, adjacent south of plaintiff No. 2. She sold 10 dhurs to Ramjee Pasi on 30.04.1991 and delivered possession over which the purchaser built a pucca building and has been living there, adjacent south to Ramjee Pasi, both the plaintiffs sold 1 katha 10 dhur to Prabhu Pasi and delivered possession, which is being cultivated by him and is adjacent to his land.Out of the remaining land, 1 katha 8 dhur is in the plaintiffs’ possession and under their cultivation. Further case of the

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plaintiffs is that in respect of survey plot No. 605/4331, area 8 katha 11 dhur, Banarasi Sharma has got only 1 katha from the west in his possession and the remaining 7 katha 11 dhur is in one block. There is no plot of 2 katha towards the east block of this survey plot. The next survey plot is No. 572, measuring 4 katha 1 dhur and it is in a single block. No piece of land measuring 2 katha 14 dhur towards the south exists as claimed, since the land was used for construction of a Rasta . Thus, there is no separate piece of 2 katha 14 dhur in the said plot. The plaintiffs further claimed that they have title over plot No. 572, and the defendants have no concern with the said land. The sale deed dated 28.12.1992 is fraudulently obtained and without consideration. The plaintiffs requested Defendant No. 1 to execute a ladavi deed with respect to the Schedule III land, but the defendants did not agree. Therefore, due to the execution of the sale deed dated 28.12.1992, a cloud was cast on the title of the plaintiffs with respect to the above-mentioned Schedule III land, hence the necessity of the suit.

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8. The further case of the plaintiffs is that Defendant No.1, in collusion with other defendants, obtained mutation of the land in his favour and the said mutation proceedings were initiated without knowledge of the plaintiffs.

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9. On summons, written statement was filed by Defendant No. 1 denying the claim of the plaintiffs. Apart from ornamental objections, the defendants disputed the genealogy table given by the plaintiffs with regard to the heirs of Sheo Dayal Noniya. The defendants vehemently pleaded that Sheo Dayal Noniya died unmarried before the revisional survey. It is admitted by the defendants that the property of Bhikshu Noniya came in possession of Jiut Noniya and Sheo Dayal Noniya and after their death, Ramdhan Noniya came in possession of the said property. It is further denied that Ramdhan Noniya ever executed any sale deed with respect to property measuring 4 bigha 16 katha 13 dhur, or any portion of it, in favour of Rupchand Sharma on 01.09.1936. The said deed never became operative and on the basis of that sale deed Rupchand Sharma never came in possession; rather, the entire disputed land along with homestead land remained in possession of Ramdhan Noniya, and the entire homestead land including building, sehan and other materials remained in possession of Sundar and Mundar Noniya after the death of Ramdhan Noniya. The plea of partition dated 28.07.1970 among Ramdhan Noniya and his sons has also been denied. On the basis of the alleged partition, the sons of Rupchand Sharma never came in possession over the

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land of Ramdhan Noniya. The deed of gift dated 03.10.1986 in favour of Defendant No. 2 by Ramdhan Noniya has also been denied.

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10. Further case of defendant no.1 is that no Return was submitted by the ex-landlord in the name of Rupchand Sharma as raiyat. In fact, the whole property of Ramdhan Noniya remained in his possession and the Return was submitted in his name. Jamabandi was created in his favour and, accordingly, Register II was prepared in his name, and since then rent was being paid by him.

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11. It is further contended that Ramdhan Noniya died leaving behind two sons, Sundar Noniya and Mundar Noniya. Devi Noniya died issueless, leaving behind cousins Sundar Noniya and Mundar Noniya. Mundar Noniya also died in a state of jointness and the property came in possession of Sundar Noniya. Sundar Noniya died leaving behind two sons, Sheobachan and Ganpat Mahto, who came in possession. Sheobachan sold the land to the defendants. He executed a sale deed on 28.12.1992 for consideration of Rs. 49,000/- in favour of the defendants and put them in possession over the suit land. It is further denied that any sale deed was executed by Ramdhan Noniya in favour of Rupchand Sharma on 01.09.1936 or that

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Rupchand Sharma ever got possession on the basis of the said sale deed over the disputed land. The heirs of Ramdhan Noniya are still living there and Register II and Jamabandi are still running in the name of Ramdhan Noniya and his heirs. The name of Rupchand Sharma was never mutated in the Government revenue records. It is further contended that on the basis of the sale deed, Prabha Shankar Sharma had no right to execute a deed of gift in favour of Sanjay Sharma and he never came in possession over the said gifted land. The defendants also claimed adverse possession over the disputed land and lastly stated that the plaintiffs have no title over the disputed land.

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12. The second written statement has also been filed on behalf of Defendant Nos. 2 to 5, supporting the claim of defendant No. 1. One additional written statement has also been filed by defendant Bibi Aisha, wife of Mirza Mokhtar, and Mirza Sarfuddin and others. The additional written statement also supported the written statement filed by Defendant No. 1 (contesting defendant). Intervenor Sikmidar Vishwanath Yadav and others also filed their written statement.

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13. On the basis of the pleadings of the parties, the learned Trial Court framed issues for determination of the suit

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and after hearing the parties and considering the evidence adduced and materials on record, dismissed the suit on contest.

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14. Aggrieved by the judgment and decree of the learned Trial Court, the plaintiffs filed Title Appeal No. 24 of 1999 which was heard by the Court of the learned 7th Additional District Judge, Siwan. After hearing the parties and examining the materials on record along with the Trial Court’s judgment, the appeal was allowed and consequently the suit was decreed in favour of the plaintiffs-respondents which is challenged in the instant second appeal.

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15 . Having considered the submissions made on behalf of the parties and after perusal of the materials on record, including the judgments of the learned Courts below, this Court finds that the learned Court of appeal below, which is the final Court of facts, after considering the pleadings of the parties and the evidence adduced by them came to a clear finding that in order to pay off the previous mortgage deed, Ramdhan Noniya, as guardian of Devi Noniya, his nephew, and himself with Mosmat Butani, executed a mortgage deed dated 01-09-1913 to secure a loan of Rs. 572 and 12 annas in favour of Gopal Sah and others. In the year 1928, Ramdhan Noniya executed a mortgage deed in favor of Fulchand Lohar, Thag Lohar, and

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Banke Khan on 06.02.1928 for Rs. 1,200/- leaving part of the mortgage money as security for redemption of the former mortgage deed of 01-09-1913. When the mortgage was to be redeemed, the mortgagees declined to accept the money from the mortgagors. Thag Lohar and others filed a Title Suit in the year 1930 against Gopal Kalawar, Ramdhan and others, and ultimately in the year 1931, the mortgage money of 1913 was redeemed by Ramdhan Noniya by depositing Rs. 572 and 12 annas. Thereafter, Ramdhan Noniya sold his entire property along with some portion of homestead land in favour of Rupchand Mistry, having an area of 4 bigha 16 katha and 13 dhur. Thus, the mortgage money of 1913 and 1928 were kept as security in the sale deed of the year 1936. It further appears from the order sheet (Ext. 9) passed by the Court of learned Munsif, Siwan, in respect of Plot No. 1516 in the year 1939, that this document is connected with Ramdhan Noniya, in which he admitted that he had sold his land to the intervenor defendants. From this Exhibit, it appears that the ex-landlord had instituted a rent suit involving the disputed land against Ramdhan Noniya as mentioned in the sale deed dated 01.09.1936. It is pertinent to mention here that Ramdhan Noniya was himself a party to the rent suit who had admitted the execution and operation of the

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sale deed. The learned Court of appeal below further observed that Ramdhan Noniya sold his entire land in the year 1936 and delivered possession to the purchaser, and hence the grandson of Ramdhan Noniya had no right to execute a sale deed with respect to the suit land which had already been sold in the year 1936. Therefore, the sale deed dated 28.12.1992 is void. It is further observed that from perusal of the mortgage bonds dated 06.02.1928 and 30.06.1931 coupled with the sale deed dated 01.09.1936, some properties were made free from encumbrance by Ramdhan Noniya after sale of a portion thereof. In the year 1938, Rupchand Mistri intervened in the rent suit in which Ramdhan was himself a party and admitted the execution and operation of the sale deed of the year 1936. The Court had passed the decree to the effect that prior to execution, Ruchand Lohar was held responsible to pay rent to the ex-landlord and, for transfer of raiyati interest, the land included in the sale deed passed through several hands. The learned Court of appeal below further observed that the lands mentioned in the sale deed of the year 1936 find place in many of the documents on record. It is further held that the learned Trial Court failed to consider some of the documents available on record and ought to have discussed their relevance. It is further observed that the history

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of the land in dispute is since the year 1913 up to 1992 when the dispute cropped up as well as the provision made in Hindu Law, Article 256 also support the transaction made by Ramdhan Noniya in the year 1936. From perusal of the Trial Court judgment, it would appear that the relevant documents/exhibits were not considered by the Trial Court, though they were material evidence. The defendants were under a duty to enquire into the title and status of the land before purchasing it. However, they purchased litigation and nothing more, having acquired the land from a vendor with no valid title. Accordingly, the sale deed dated 28.12.1992 executed in favour of the defendants was held to be void, inoperative, and liable to be cancelled. Consequently, the suit was decreed, and the defendants were restrained by permanent injunction from interfering with the possession of the appellants-plaintiffs over the suit property.

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16 . Considering the aforesaid facts and circumstances as well as the materials on record, it is quite apparent that the registered sale deed dated 01-09-1936 was executed by Ramdhan Noniya in favour of Rupchand Sharma, father of plaintiff No.1 and grand father of plaintiff No.2 and delivery of possession of the land in- question was handed over as well as

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both the mortgage deeds dated 06.02.1928 and 30-06-1931 was given to Rupchand Sharma. The sale deed dated 01-09-1936 was never challenged by Ramdhan Noniya or his successor- ininterest, and, therefore, it remained operative and the contesting defendants have no valid title over the property.

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17 . Therefore, the judgment and decree of the learned Court of appeal below are covered by findings of fact, and no question of law, much less substantial question of law, arises for consideration in the instant second appeal.

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18 . This Court does not find any illegality in the impugned judgment and decree of the learned Court of appeal below.

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19. Accordingly, the present Second Appeal is dismissed at the stage of hearing under Order XLI Rule 11 CPC.

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(Khatim Reza, J)

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Premchand/Shyambihari/-

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U

Mirza Ashraf Ali v. Kashi Nath Sharma

Case brief

What is this about?

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Mirza Ashraf Ali v. Kashi Nath Sharma

Case brief

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