Tuesday, 12 July 2016

When suit for possession is maintainable without claiming declaration?

 In the aforesaid background of facts, we come to the question whether it was
necessary to seek relief or declaration of title. In our opinion, the plaintiff has filed the
suit for possession on the strength for title and not only on the basis of prior possession.
It was not a summary suit for ejectment filed under Section 6 of the Specific Relief Act,
1963. Thus, plaintiff could succeed in suit for possession on the strength of the title.
The issue had been framed on the question of title of the plaintiff as well as on the
question of adoption of defendant no.3. On the basis of title claimed in the suit, both the
parties have adduced their evidence in support of their respective cases. The main plea
of defendant no. 3 that she was an adopted daughter of Yashoda has not been found to be
established by the trial Court, the first Appellate Court or by the High Court. Thus, in
our opinion, there was no serious cloud on the title of the plaintiff so as to force him to
seek the relief for declaration of title in the instant case which was in fact based on the
strength of the sale deed executed by Buchamma, who was the sole surviving heir of
Balaiah as such succeeded to the property and had the right to execute the sale deed in
favour of the plaintiff.
13. We are fortified in our aforesaid conclusion by a decision in Kurella Naga Druva
Yudaya Bhaskara Rao v. Galla Jani Kamma (2008) 15 SCC 150, wherein this Court has
examined the question of maintainability of suit for possession without prayer for
declaration of title. This Court has referred to its earlier decision in Anathula Sudhakar
v. P. Buchi Reddy (2008) 4 SCC 594, wherein the plaintiff had purchased the suit land
under registered sale deed dated 10.4.1957 and the defendant did not claim the title with
reference to any document but claimed to have perfected title by adverse possession. It
was held by this Court that the said plea did not prima facie put any cloud over the
plaintiff’s title calling him to file suit for declaration of title. Unless there is serious
cloud over the title of the plaintiff there is no need to file suit for declaration of title. The

suit for possession was maintainable. This Court laid down as follows:
“16. The plaintiff had purchased the suit land under registered sale
deed dated 10.4.1957. Defendant did not claim title with reference to any
document but claimed to have perfected title by adverse possession. A mere
claim by the defendant that he had perfected his title by adverse possession,
does not mean that a cloud is raised over plaintiff's title and that the
plaintiff who is the owner, should file a suit for declaration of title. Unless
the defendant raises a serious cloud over the title of the plaintiff, there is no
need to file a suit for declaration. The plaintiff had title and she only wanted
possession and therefore a suit for possession was maintainable. We are
fortified in this view by the following observations of this Court in
Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594:
“14. We may however clarify that a prayer for declaration will
be necessary only if the denial of title by the defendant or challenge
to plaintiff's title raises a cloud on the title of plaintiff to the property.
A cloud is said to raise over a person's title, when some apparent
defect in his title to a property, or when some prima facie right of a
third party over it, is made out or shown. An action for declaration, is
the remedy to remove the cloud on the title to the property. On the
other hand, where the plaintiff has clear title supported by
documents, if a trespasser without any claim to title or an interloper
without any apparent title, merely denies the plaintiff's title, it does
not amount to raising a cloud over the title of the plaintiff and it will

not be necessary for the plaintiff to sue for declaration. ...."
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4816 OF 2016
[Arising out of SLP (Civil) No. 13076 of 2007]
Muddasani Venkata Narsaiah (D) Th. Lrs. .. Appellants
Versus
Muddasani Sarojana .. Respondent
Dated:May 5, 2016.
Arun Mishra, J.
Citation:AIR 2016 SC 2250


1. Leave granted.
2. The plaintiff is in appeal before us aggrieved by reversal of the judgment and
decree of first appellate Court by the High Court in Second Appeal and restoring the
judgment and decree of the trial Court dismissing the suit filed by the plaintiff.

3. The plaintiff filed a suit before the trial Court for possession of disputed property
and mesne profits based upon the title. It was averred in the plaint that Veeraiah and
Balaiah were sons of late Rajaiah. Both the sons predeceased their father Rajaiah.
Plaintiff is son of Veeraiah and Yashoda is wife of the said late Balaiah. After the death
of Rajaiah, the property was given as widow’s estate to Yashoda. It was to be reverted to
the plaintiff after the death of Yashoda. Yashoda enjoyed the property in her lifetime.
However, after her death, Smt. Gandla Buchamma, surviving sister of late Balaiah
succeeded to the property and sold it to plaintiff vide registered sale deed dated
25.4.1981 and also delivered the possession. Thereafter on 12.6.1981 the defendants
forcibly evicted the plaintiff from the property.
4. The defendants in their written statements contended that Ballaiah was the
absolute owner of the property and after his death Yashoda became the absolute owner
of the property. She was in possession of the property. It was not to be reverted back to
the plaintiff after the death of Yashoda. Yashoda after death of her husband, as per
authority given by her late husband, had adopted defendant no. 3 Sarojana when she was
aged 12 years and thereafter she resided in the house of Yashoda as her daughter. Thus,
Buchamma did not succeed to the property. The adopted daughter defendant no. 3
succeeded to property by inheritance. Defendants had no knowledge of the registered
sale deed. Buchamma was not in possession and had no authority to sell the property to
the plaintiff.
5. The trial Court framed the issue as to the ownership of Yashoda and also on the
question of factum of adoption of defendant no. 3 on 18.2.1959 and whether she became
the owner by virtue of adoption after the death of Yashoda. A specific issue was also
framed by the trial Court on the question whether on death of Yashoda, Buchamma, who
is the surviving sister of Yashoda’s late husband Balaiah, became heir and owner of the
said property and whether the plaintiff had acquired the title to the suit property vide
registered sale deed dated 25.4.1981executed by Buchamma in favour of the plaintiff.
6. The trial Court while dismissing the suit inter alia found that passing of
consideration has not been proved under the sale deed and that it was a nominal
document. The plaintiff ought to have filed suit for declaration of title. Defendant no. 3
was cultivating the suit land from the date of the death of Yashoda since 1981.
However, it has not been proved that defendant no. 3 was adopted daughter of late
Yashoda. The factum of adoption has not been established. The possession had not
been delivered by Buchamma to the plaintiff on the date of the execution of the sale
deed i.e. 25.4.1981. The plaintiff must succeed on the strength of his own case, not on
the weaknesses of the defendants. The trial Court also found that it was not established
that Buchamma was the sole surviving sister of late Balaiah.
7. On first appeal being preferred into the Court of 1st Additional District Judge,
Karimnagar, it allowed the appeal and the suit of the plaintiff had been decreed. It found
that the execution of the sale deed has been established. Yashoda was the absolute
owner in possession of the property in her lifetime. There was no Class I heir of
deceased Balaiah. Buchamma was a Class II heir being the only surviving sister of
Yashoda’s late husband Balaiah as such succeeded to the property. Since it was not
denied in written statement that Buchamma is the only surviving sister of Balaiah, she
was entitled to succeed to the property of late Balaiah/Yashoda. The adoption of
defendant no. 3 has not been established. The case set up by defendant no.3 that
Yashoda cultivated the suit land during her lifetime has not been found to be established
in the absence of any document to that effect. Defendant no.3 had no title to the
property, as such she had no right to retain its possession. Defendant no. 3 being third
party could not question the sale deed and passing of consideration. The sale deed is
valid and binding. Even if Buchamma has not delivered the possession to the plaintiff
that would not affect his right to claim possession on the strength of his title conferred
upon him under the sale deed. It was not necessary to examine Buchamma as she had
never objected to the execution of sale deed. In the written statement only her authority
to sell the property was questioned. It was not necessary to file a suit for declaration of
title as Buchamma acquired the suit property by way of inheritance from the absolute
owner and thereafter sold it to the plaintiff.
8. The High Court in the second appeal has not disturbed the concurrent findings that
the adoption of defendant no.3 Sarojana by Yashoda has not been established. However,
the High Court has held that the sale deed has not been proved for want of examination
of Buchamma and in the circumstances it was necessary for the plaintiff to file a suit for
declaration of title. The High Court observed that the suit for possession and mesne
profits thus could not have been filed and allowed the second appeal. Aggrieved
thereby, the plaintiff has come up in the appeal before us.
9. It was submitted on behalf of the appellant that the High Court has erred in law in
reversing the judgment and decree passed by the first Appellate Court. It was not
necessary to seek the relief for declaration of title as there was no serious cloud on the
title of the plaintiff. The authority of Buchamma to execute the sale deed had been put
into question not factum of execution of sale deed. Thus it was not necessary to
examine Buchamma and defendant No.3 being a third party cannot question the passing
of consideration under the sale deed. Buchamma was the sole Class II heir left.
10. Per contra, the learned counsel for the respondents urged that no case of
interference was made out. It was necessary for plaintiff to seek relief for declaration of
title. The suit has rightly been dismissed. The defendant no. 3 was in possession even
in the lifetime of Yashoda. It is submitted that even if her case of adoption has not been
found to be established, the plaintiff has not been able to establish his entitlement to
recover the possession.
11. In the instant case, as per concurrent findings of all the courts, defendant no. 3 has
failed to prove the factum of her adoption by deceased Yashoda in the year 1959. There
was no corresponding document of adoption and other documentary evidence showing
that defendant no. 3 had ever been adopted by the deceased Yashoda. True it is that in
some of the revenue entries the name of defendant no. 3 has been shown as person in
possession, but not in the capacity of adopted daughter. Yashoda was admittedly the
owner of the property. The plaintiff has based his case to recover possession on the
strength of the sale deed executed by Buchamma in his favour.
12 In the aforesaid background of facts, we come to the question whether it was
necessary to seek relief or declaration of title. In our opinion, the plaintiff has filed the
suit for possession on the strength for title and not only on the basis of prior possession.
It was not a summary suit for ejectment filed under Section 6 of the Specific Relief Act,
1963. Thus, plaintiff could succeed in suit for possession on the strength of the title.
The issue had been framed on the question of title of the plaintiff as well as on the
question of adoption of defendant no.3. On the basis of title claimed in the suit, both the
parties have adduced their evidence in support of their respective cases. The main plea
of defendant no. 3 that she was an adopted daughter of Yashoda has not been found to be
established by the trial Court, the first Appellate Court or by the High Court. Thus, in
our opinion, there was no serious cloud on the title of the plaintiff so as to force him to
seek the relief for declaration of title in the instant case which was in fact based on the
strength of the sale deed executed by Buchamma, who was the sole surviving heir of
Balaiah as such succeeded to the property and had the right to execute the sale deed in
favour of the plaintiff.
13. We are fortified in our aforesaid conclusion by a decision in Kurella Naga Druva
Yudaya Bhaskara Rao v. Galla Jani Kamma (2008) 15 SCC 150, wherein this Court has
examined the question of maintainability of suit for possession without prayer for
declaration of title. This Court has referred to its earlier decision in Anathula Sudhakar
v. P. Buchi Reddy (2008) 4 SCC 594, wherein the plaintiff had purchased the suit land
under registered sale deed dated 10.4.1957 and the defendant did not claim the title with
reference to any document but claimed to have perfected title by adverse possession. It
was held by this Court that the said plea did not prima facie put any cloud over the
plaintiff’s title calling him to file suit for declaration of title. Unless there is serious
cloud over the title of the plaintiff there is no need to file suit for declaration of title. The
suit for possession was maintainable. This Court laid down as follows:
“16. The plaintiff had purchased the suit land under registered sale
deed dated 10.4.1957. Defendant did not claim title with reference to any
document but claimed to have perfected title by adverse possession. A mere
claim by the defendant that he had perfected his title by adverse possession,
does not mean that a cloud is raised over plaintiff's title and that the
plaintiff who is the owner, should file a suit for declaration of title. Unless
the defendant raises a serious cloud over the title of the plaintiff, there is no
need to file a suit for declaration. The plaintiff had title and she only wanted
possession and therefore a suit for possession was maintainable. We are
fortified in this view by the following observations of this Court in
Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594:
“14. We may however clarify that a prayer for declaration will
be necessary only if the denial of title by the defendant or challenge
to plaintiff's title raises a cloud on the title of plaintiff to the property.
A cloud is said to raise over a person's title, when some apparent
defect in his title to a property, or when some prima facie right of a
third party over it, is made out or shown. An action for declaration, is
the remedy to remove the cloud on the title to the property. On the
other hand, where the plaintiff has clear title supported by
documents, if a trespasser without any claim to title or an interloper
without any apparent title, merely denies the plaintiff's title, it does
not amount to raising a cloud over the title of the plaintiff and it will
not be necessary for the plaintiff to sue for declaration. ...."
14. Coming to the question whether execution of sale deed in favour of plaintiff has
been proved, the High Court has held that the sale deed has not been proved for want of
examination of Buchamma. The High Court has ignored the pleadings of the parties and
the evidence on the question of execution of sale deed which establishes that sale deed
had been executed by Buchamma in favour of the plaintiff. In the written statement
filed on behalf of the defendants, the sale deed was denied for want of knowledge. A
perusal of same indicates that the authority of Buchamma to execute the sale deed in
favour of the plaintiff was put into question. Defendant no. 3 Sarojana in her deposition
in court did not deny the fact that sale deed was executed by Buchamma in favour of the
plaintiff. She has stated that she was not aware whether Buchamma has executed any
sale deed in favour of the plaintiff. She only asserted that she was the adopted daughter
of Yashoda.
15. It is settled law that denial for want of knowledge is no denial at all. The
execution of the sale deed was not specifically denied in the written statement. Once the
execution of the sale deed was not disputed it was not necessary to examine Buchamma
to prove it. The provisions contained in Order 8 Rule 5 require pleadings to be
answered specifically in written statement. This Court in Jahuri Sah & Ors. v. Dwarika
Prasad Jhunjhunwala AIR 1967 SC 109 has laid down that if a defendant has no
knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of existence of
fact, not even an implied denial. Same decision has been followed by Madhya Pradesh
High Court in Dhanbai D/o Late Shri Cowash v. State of M.P. & Ors. 1978 MPLJ 717.
The High Court of Madhya Pradesh in Samrathmal & Anr. v. Union of India, Ministry of
Railway & Ors. AIR 1959 MP 305 relying on P.L.N.K.L. Chettyar Firm v. Ko Lu Doke
AIR 1934 Rang 278 and Lakhmi Chand v. Ram Lal AIR 1931 All. 423, had also opined
that if the defendant did not know of a fact, denial of the knowledge of a particular fact
is not a denial of the fact and has not even the effect of putting the fact in issue.
16. Moreover, there was no effective cross-examination made on the plaintiff’s
witnesses with respect to factum of execution of sale deed, PW.1 and PW-2 have not
been cross examined as to factum of execution of sale deed. The cross-examination is a
matter of substance not of procedure one is required to put one’s own version in crossexamination
of opponent. The effect of non cross-examination is that the statement of
witness has not been disputed. The effect of not cross-examining the witnesses has been
considered by this Court in Bhoju Mandal & Ors. v. Debnath Bhagat & Ors. AIR 1963
SC 1906. This Court repelled a submission on the ground that same was not put
either to the witnesses or suggested before the courts below. Party is required to
put his version to the witness. If no such questions are put the court would presume that
the witness account has been accepted as held in M/s. Chuni Lal Dwarka Nath v.
Hartford Fire Insurance Co. Ltd. & Anr. AIR 1958 Punjab 440. In Maroti Bansi Teli v.
Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down that
the matters sworn to by one party in the pleadings not challenged either in pleadings or
cross-examination by other party must be accepted as fully established. The High Court
of Calcutta in A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that
the party is obliged to put his case in cross-examination of witnesses of opposite party.
The rule of putting one’s version in cross-examination is one of essential justice and not
merely technical one. A Division Bench of Nagpur High Court in Kuwarlal Amritlal v.
Rekhlal Koduram & Ors. AIR 1950 Nagpur 83 has laid down that when attestation is not
specifically challenged and witness is not cross-examined regarding details of
attestation, it is sufficient for him to say that the document was attested. If the other side
wants to challenge that statement, it is their duty, quite apart from raising it in the
pleadings, to cross-examine the witness along those lines. A Division Bench of Patna
High Court in Karnidan Sarda & Anr. v. Sailaja Kanta Mitra AIR 1940 Patna 683 has
laid down that it cannot be too strongly emphasized that the system of administration of
justice allows of cross-examination of opposite party’s witnesses for the purpose of
testing their evidence, and it must be assumed that when the witnesses were not tested in
that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the
High Court has gravely erred in law in reversing the findings of the first Appellate Court
as to the factum of execution of the sale deed in favour of the plaintiff.
17. It is also settled law that passing of consideration under a sale deed cannot be
questioned by third party. Defendant no. 3 has not been able to establish her case that
she is an adopted daughter of the deceased Yashoda and thus, she being the third party,
could not have questioned the execution of the sale deed by Buchamma on the ground of
passing of consideration as rightly laid down by the High Court of M.P. in Pandit
Ramjilal Tiwari v. Vijai Kumar & Ors. 1970 MPLJ 50. The High Court of Patna has also
held that passing of consideration can be questioned by a party or his representative in
Mt. Akli v. Mt. Daho AIR 1928 Patna 44. Similar is the view of the High Court of
Nagpur in Maroti Bansi Teli (supra). Thus, the High Court has erred in law on this
ground also in dismissing the suit.
18. Coming to the question whether the plaintiff was placed in possession by
Buchamma, in our opinion, it is apparent that Yashoda was enjoying the property in her
lifetime, though it appears that defendant no. 3 was residing with Yashoda, but she has
not claimed any derogatory title to Yashoda nor has claimed adverse possession. Her
claim of an adopted daughter of Yashoda has not been found established. The entry of
possession in some revenue records simplicitor does not confer any right to defendant
no. 3 to retain the possession of the property. The property on the death of Yashoda had
been passed on to Buchamma being class IInd heir, as such she had the right to sell the
property to plaintiff. Even if Buchamma had not placed plaintiff in possession of
property on strength of his title conferred by way of sale deed in question he had right to
recover possession. The first appellate Court was thus right in decreeing the suit. The
High Court has erred in allowing appeal.
19. In the circumstances, appeal is allowed, the impugned judgment and order passed
by the High Court dismissing the suit is set aside and the judgment and decree passed by
the first Appellate Court is restored. The parties to bear their own costs.
…………………………J.
(V. Gopala Gowda)
New Delhi; ………………………..J.
May 5, 2016. (Arun Mishra)

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