IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.10 of 1995 Against the Judgment and Decree dated 24.09.1994 passed by 5 th Addl. District Judge, Nalanda in Title Appeal No.58 of 1983 reversing the Judgment and Decree dated 22nd August, 1983 passed by Addl. Munsif, Biharsharif, Nalanda in Title Suit No.42 of 1977. ===================================================== Jai Prakash Lal & Ors ...........Plaintiffs-respondents-appellants Versus Fullo Devi & Ors .............Defendants-appellants-respondents ===================================================== Appearance : For the Appellant/s : Mr. Ishwari Singh, Advocate. Mr. Raghunath Singh, Advocate. Mr. Pawan Kumar Singh, Advocate. For the Respondent/s : Mr. Rajendra Kishore Prasad, Advocate. Mr. Visheanath Prasad, Advocate. Mr. Mohir Kishore, Advocate. ===================================================== Dated :
7. hday of August, 2013 PRESENT CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ORAL 1 JUDGMENT The plaintiffs respondents appellants have filed this Second Appeal against the Judgment and Decree dated 24.09.1994 passed by the learned 5th Addl. District Judge, Nalanda in Title Appeal No.58 of 1983 whereby the learned lower appellate Court allowed the appeal and thereby reversed the Judgment and Decree of the trial Court dated 22.08.1983 passed by the learned Addl. Munsif, Biharsharif, Nalanda in Title Suit No.42 of 1977.
2. The plaintiff appellant filed the aforesaid suit praying for declaration of title over the suit land and a decree for eviction of the defendant from the suit land being plot No.3360. 2 Patna High Court SA No.10 of 1995 dt.07-08-2013 2/6 3. The plaintiff claimed the aforesaid relief alleging that plot No.3360 belonged to Chamari Mahto. Subsequently by registered partition deed dated 9.12.1943, the suit plot No.3360 was allotted in the share of Somar Mahto. Somar Mahto sold the aforesaid plot No.3360 by registered sale deed dated 2.12.1967 measuring 8 decimals in favour of the plaintiffs. situated on the said plot No.3360. The house is The vendee came in possession of the purchase property. Since the house was in dilapidated condition, the plaintiff constructed two rooms in the northern side and two rooms in the southern side. The house of the defendants is on plot No.3356, 3359 and 3406. When the cowshed of the defendant felled down in the year 1976 because of flood, he requested the plaintiff to give the north west on plot No.3360 on monthly rent of Rs.40/-. The plaintiff inducted the defendant as tenant on monthly rent of Rs.40/-, he paid the rent upto Chaitra, 1977 and subsequently, he did not vacate.
4. A written statement was filed by the defendant denying the relationship of landlord and tenant between the party. The main contention of the defendant respondent is that Dalu Mahto exchanged the suit land with Somar Mahto. In lieu of plot No.3360, Dalu Mahto gave his plot No.4323 measuring 4 decimal to Somar Mahto and 6 ½ decimal of plot No.3360 was given by Somar Mahto to the defendants by ancestor. At the spot, there is only 6.5 decimal. The defendants have amalgamated the said exchange land. Subsequently a Sada Yadastha exchange deed was prepared. Since after exchange, the defendant are coming in possession of the property and they have constructed the house and not the plaintiff.
5. The trial Court decreed the plaintiff respondent’s suit recording a finding that the plaintiff has been able to prove his title on the basis of the Patna High Court SA No.10 of 1995 dt.07-08-201”
3. 6 sale deed dated 2.12.1967. The trial Court however, recorded the finding that the defendant are not tenant. On these findings, the trial Court decreed the plaintiff’s suit.
6. The lower appellate Court relying on the sada exchange deed held that the defendants have acquired title and they are in possession of the property and have provocated their title by adverse possession. The sale deed produced by the plaintiff is doubtful and the plaintiff had not acquired title on the basis of the sale deed. Accordingly, the lower appellate Court allowed the appeal and reversed the Judgment of the trial Court.
7. At the time of admission of the Second Appeal on 15.03.2000, the following two substantial question of law were formulated :(I) “Whether the Court of appeal below erred in law in holding that the sale deed, ext.5 to be a fraudulent deed?†(II) “Whether the defendants, who were inducted as tenant could subsequently claim title adverse to the plaintiff?†8. The learned counsel, Mr. Ishwari Singh appearing on behalf of the appellant submitted that the lower appellate Court on the basis of Sada exchange deed dated 11.2.1949 held that the defendants have acquired title and ext.5, the registered sale deed dated 2.12.1967 is fraudulent deed. So far the other facts are concerned, it is admitted fact. The defendants claimed title on the basis of exchange of land. It is settled principle of law that by Sada exchange deed, title will never be created on the basis of Sada exchange. In the present case, it is admitted that no registered document was executed. It is the specific case of the defendant that the 6.5 decimal of plot No.3360 was given by Somar Mahto to the defendant in lieu of the land of 4 Patna High Court SA No.10 of 1995 dt.07-08-2013 4/6 4 decimal comprised within plot No.4323. On the contrary, the plaintiffs have produced ext.5, the registered sale deed. This ext.5 is dated 2.12.1967.
9. On the contrary, the learned counsel for the respondent Mr. Rajkishroe Prasad submitted that there is no error in the Judgment of the lower appellate Court. Because the vendor of the plaintiff died just after execution of the sale deed, ext.5 became doubtful and the lower appellate Court has rightly held so. Further even if sada exchange deed is not reliable then the defendants have acquired title by adverse possession and, therefore, the lower appellate Court has rightly held that the defendants have acquired title by adverse possession.
10. In the case of Vimal Chand Ghevar Chand Jain and others vs. Ramakant Eknath Jadoo (2009) 5 SCC 713.the Hon’ble Supreme Court has held that a registered deed of sale carries presumption that the transaction was a genuine one. If execution of sale deed is proved, onus is on the defendant to prove that the deed was not executed and it was a sham transaction. It may be mentioned here that the deed was never challenged by the defendant by initiating appropriate proceeding. In the defence only it was contended that the sale deed was never executed in favour of the plaintiff with respect to the suit property.
11. It is settled principle of law that once a suit is filed for declaration that sale deed be adjudged at sham and inoperative document, 3 years of limitation as provided in Article 58 or Article 59 would become applicable. In the present case as stated above, the defendant never challenged the sale deed within the period prescribed by the Limitation Act. In the present case, except the statement made by the defendant that no sale deed was executed, no further evidence has been adduced to show that in fact the sale deed was 5 Patna High Court SA No.10 of 1995 dt.07-08-2013 5/6 fraudulent or it was forged and fabricated document. It appears that the lower appellate Court on the basis of a death certificate held that since vendor died just after some days after the execution of the sale deed, the sale deed itself is doubtful. In my opinion, therefore, the lower appellate Court without considering the settled principle by the Hon’ble Supreme Court wrongly held that the sale deed ext.5 is fraudulent sale deed without their being any evidence that too after 10 years of the execution of the sale deed. It is also settled law that if title is created in favour of a person by a document it must be registered otherwise title will never pass. Therefore, by sada exchange title never passed to the defendant. Moreover, the sada exchange is not admissible for establishing title.
12. In view of the above settled proposition of law, the substantial question No.1 is answered in favour of the plaintiff appellant.
13. So far second substantial question of law is concerned, it appears that the lower appellate Court has held that the defendants have acquired title by adverse possession. So far this substantial question of law is concerned, it may be mentioned here that there is neither pleading of the defendant nor any evidence to the effect that the defendants have acquired title by adverse possession. Only case of the defendant is that they have acquired title on the basis of exchange deed dated 11.2.1949.
14. In the case of Karnataka Wakf Board Vs. Govt. of India 2004 (3) P.L.J.R. 245, the Hon’ble Supreme Court held that a person pleading adverse possession has no equities in his favour. Please on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. In the present case unless the defendants renounced his claim that he has acquire title on the basis of Sada exchange 6 Patna High Court SA No.10 of 1995 dt.07-08-2013 6/6 deed dated 11.2.1949, he will never acquired title by adverse possession because for constituting adverse possession, there must be corpus possidendi and animus possidendi. Mere possession for a long period will never constitute adverse possession.
15. In the case of P. T. Munichikkanna Reddy Vs. Revamma 2007 (6) SCC 59.the Hon’ble Supreme Court has held that adverse possession in one sense is based on the theory of presumption that the owner has abandond the property to the adverse possessor. After amendment of the Limitation Act in the year 1963, legal position has underwent complete change in so far as the onus is concerned. Once a party proved its title, the onus of proofe would be on the other party to prove claim of title by adverse possession. In the present case without their being any claim and without their being any evidence, the lower appellate Court has held that the defendant have acquired title by adverse possession. Therefore, so far this finding of lower appellate Court is concerned, it is perverse, therefore, it is not sustainable. Accordingly, the substantial question not II is answered in favour of the appellant.
16. In the result, this Second Appeal is allowed and the impugned Judgment and Decree of the lower appellate Court is hereby set aside. Judgment and Decree of the trial Court is restored. In the facts and circumstances of the case, no order as to cost. (Mungeshwar Sahoo, J.) Sanjeev/- The