Ramkali Vs. Harshnarayan

S.A. No.1136 of 2011 25.07.2012: Shri Akhil Singh, Advocate for the appellants.

Heard on the question of admission. This appeal has been filed challenging the judgment dated 19.09.2011, passed by the Additional District Judge, Maihar, District Satna in Civil Appeal No.19­A/2007 whereby the finding with respect to execution of sale deed in favour of the plaintiffs has been affirmed while on the point of possession finding has been recorded that they are entitled to get possession on the disputed land by Supurdgi. 2.

Plaintiff's case in brief was that plaintiffs no.1 and 2 are the real brothers and the suit has been filed by the Rameshwar Prasad, who is the father of plaintiffs no.1 and 2 as power of attorney holder. It is said that the father of defendant no.3 Ram Pratap as well as defendants no.1 and 2 were real brothers. In the disputed land of Survey No.166/1, 167/2, 184/1, 185/1, 186/1, 187/1, 188/1, 189/1, 190/1, 191/1, 192/1, 193/1, 194/1, 195/2 and 2019 defendants no.1 and 2 were the owner of half of the land while the father of defendant no.3 was the owner of remaining half of the land. The father of defendant no.3 has executed a sale­deed on 09.12.1975 in favour of the plaintiffs and delivered the possession. On the said sale­ deed Ramvishal, defendant no.1 has signed as a witness. On the same date another sale­deed was executed by defendants no.1 and 2 but it was registered on 16.12.1975 with respect to land of Araji No.2019 for half of the share. At the time of execution of sale­deed the plaintiffs were minor and the entire transaction was made through their father.

In view of the aforesaid, it is urged that the defendants no.1 and 2 were not having any right in the disputed land but having a collusion with the Patwari have recorded their names in the revenue papeRs. however, plaintiffs be declared as owner of the disputed land and the defendants be restrained to interfere in their possession. It be also declared that the orders passed by the Naib Tahsildar and other revenue authorities dated 23.12.1991, 03.03.1994 and 31.05.2003 declared as void ab initio. 3.

The defendants no.1 and 2 by filing their written statement have denied the plaint allegations and it is said that the plaintiffs no.1 and 2 were residing out of city for studies and/or ailment is No. in the knowledge of defendants. It is said that Rameshwar Prasad has filed this suit without the permission of the original plaintiffs no.1 and 2. In the suit it has not been mentioned that on which part of the land they are in possession. It is further said that with respect to the land the valid partition has not taken place, it is still of the joint ownership.

In such a circumstance, the sale­deed executed by Rameshwar Prasad in favour of the plaintiffs is without receiving the amount of consideration, therefore, mutation has not been applied by the plaintiffs. It is also stated that the disputed land was sold by defendants no.1 and 2 in favour of Bhuraiya Aheer with respect to the other Survey numbers, while for Survey No.2019 they have not executed any sale­ deed in favour of the plaintiffs. It is said that the plaintiffs by playing fraud has obtained the signature on the sale­ deed, however, permission is not genuine. It is further said that there is no partition between the defendants no.1 and 2 and Rampratap and the suit is time barred. In view of the foregoing, prayer is made to dismiss the suit. 4.

Learned trial Court after appreciating the evidence, recorded the finding that the sale­deed executed by Ram Pratap in favour of the plaintiffs is valid sale­deed but because the prayer for possession was not made in suit, however, the decree seeking declaration was refused. On filing an appeal by the plaintiffs before the learned Lower Appellate Court the finding with respect to the execution of sale­deed by the defendant no.3 and defendants no. 1 and 2 with respect to the Survey No.2019 has been affirmed, on the point of delivery of possession.

After discussion in detail and on the basis of the documents so available on record, decreed the suit and directed that the possession of the land is on Supurdgidari, however, it be delivered. 5.

Learned counsel for the appellants Shri Akhil Singh, has strenuously urged that the land in question was not partitioned, however, the sale­deed executed by Ram Pratap as well as defendants no.1 and 2 with respect to Survey No.2019 in favour of the plaintiffs is void.

It is further said that no amount of consideration was paid by the father of the plaintiffs to Ram Pratap, therefore, mutation proceedings were No. applied against the defendant no.3. In view of the aforesaid fact it is clear that the sale­deed so executed by Ram Pratap of a land which was not partitioned is void. It is further said that without payment of the consideration, the said sale­deed cannot be enforced declaring the right of the plaintiffs.

It is also stated that without making a prayer for possession the suit filed by the plaintiffs is not maintainable.”

6. After hearing Shri Singh, learned counsel for the appellant and on perusal of the record it is apparent that on the sale­deed executed by Ramvishal defendant no.1 has signed on the sale­deed as a witness.

It is further apparent that the defendants no.1 and 2 has executed the sale­deed on the same date on one of Survey number i.e. 2019 for half piece of the land. It is simultaneously clear that defendants no.1 and 2 have also executed the sale­ deed in the name of one Bhuraiya Aheer with respect to their right and title in the remaining piece of land. However, the entire land has been sold out by the defendants, part thereof in favour of one Bhuraiya Aheer. In such a circumstance after execution of the sale­deed taking a plea of not having partition of the land cannot be sustained in law in absence of the cogent evidence brought on record.

The learned two Courts below on appreciating the evidence, on record has rightly recorded a finding that the sale­deed was executed by Ram Pratap and whereupon defendants no.1 and 2 have signed as witnesses. It is further been observed that at the relevant point of time the plaintiffs were the minor and it is the father of the plaintiffs i.e. Rameshwar Prasad, who filed a suit has made a transaction.

However, all these circumstances apparently indicate that after getting the consideration by Ram Pratap the sale­deed was executed. In such a circumstance, the finding to declare the right by virtue of sale­deed dated 09.12.1975 cannot be said to be illegal or perverse.

Learned Lower Appellate Court after due appreciation of evidence found that as the dispute arise on the said land the order under Section 146 of Cr.P.C. was passed and possession was delivered on Supurdgi. In such a circumstance, merely taking a plea by the defendants because the mutation was not made in the name of the plaintiffs it canNo. be presumed that the plaintiffs are not having the possession on the land, which was purchased by them and in the recital of the sale­deed it was specifically mentioned that possession delivered to purchaser.

In such a circumstance, direction has rightly been issued to deliver the possession from Supurdgidar to plaintiff by Lower Appellate Court.

In the considered opinion of this Court the finding of fact so recorded by the two Courts below with respect to execution of the sale­ deed in favour of the plaintiffs do No. warrant any interference.

Simultaneously, the finding with respect to delivery of possession from Supurdgidar in view of the order passed under Section 146 of Cr.P.C. by the Lower Appellate Court appears to be correct particularly looking to the fact that while executing the sale­deed in the recital itself the fact regarding delivery of possession has been specified therein, which has not been rebutted though the burden was on defendant.

In such a circumstance, the Lower Appellate Court has No. committed any error to decree the suit filed by the plaintiffs.

In the facts and circumstances of the case in the opinion of this Court no substantial question of law arises for consideration before this Court.

Accordingly, this appeal stand dismissed at admission stage. (J.K. Maheshwari) Judge taj.