In the case at hand, the appellants have sought for
protection under Section 53A of the Transfer of Property Act and,
accordingly, substantial question of law to this effect has also
been framed. Protection contained under Section 53A of the
Transfer of Property Act deals with mixed question of facts as well
as law. So far 'fact' part is concerned, the appellants have clearly
pleaded that they have been enjoying peaceful possession over the
suit property after they acquired the same from the year 1975 i.e.
the date of execution of Sale Deed by Firangi Mahto in favour of
Chandrakant Singh (father of defendant no. 1). If possession of
the appellants is not considered from the year 1975, the admitted
facts available on record is that possession of defendants have
well been recognized since the year 1979 by Sitaram Agarwall and
Bajrang Agarwalla, the two brothers (both sons of Ram Kumar
Das Agarwalla). Acknowledging possession of defendants,
Agreement for Sale dated 13.02.1979 was executed by aforesaid
two brothers - Sitaram Agarwalla and Bajrang Agarwalla in
favour of defendant no. 1, it was contended by counsel for the
plaintiffs that aforesaid Agreement dated 13.02.1979 lost its legal
value when no suit for specific performance of contract was filed
within the period of limitation.
15. I have gone through the findings of Courts below and both
the Courts have considered the issue in favour of plaintiffs. It is
true that no suit for specific performance of contract to implement
Agreement dated 13.02.1979 was filed by the defendant but then
the document is the proof that they acquired possession by way of
part performance of the contract. In this context, Judgment in the
case of Shrimant Shamrao Suryavanshi V. Pralhad Bhairoba
Suryavanshi reported in (2002) 3 SCC 676 which has been
followed by the Apex Court in the Judgment in the case of
Mahadeva and others Vs. Tanabai reported in (2004) 5 SCC 88
is relevant and it is relevant to quote Para-8 of the Judgment in
the case of Mahadeva (Supra).
“8. The Judgment of the High Court is based on a
question framed during the course of writing of the
judgment which is in departure from the two questions
of law on which the appeal was admitted for hearing.
The whole emphasis shifted from the core issues. Then,
the High Court has not discussed any law and has also
not assigned any reason, much less a satisfactory one,
for taking a view different from the one concurrently
taken by the two courts below. The singular reason
assigned by the High Court for denying the benefit of
Section 53-A of the TP Act is not a sound reason by itself
in view of the decision of this Court in Shrimant
Shamrao Suryavanshi v. Pralhad Bhairoba
Suryavanshi. This Court has held that merely because
the suit for specific performance at the instance of the
vendee has become barred by limitation that by itself is
not enough to deny the benefit of the plea of partperformance
of agreement of sale to the person in
possession.”
The possession of the appellants over the suit property thus
stood admitted from the date of first agreement dated 13.02.1979.
The Courts below have disbelieved Exhibits – F and G only
because the same were issued and sworn prior to the date of
Agreement to Sale dated 03.11.1983. But it is clear that Sitaram
Agarwalla and his brothers had issued money receipt, sworn
affidavit acknowledging payment and sale on 12.09.1983 and
then executed General Power of Attorney in favour of defendant
no. 2 empowering him to do all acts regarding schedule property.
Thereafter, on the basis of Exhibit-H, the defendant no. 2 had
executed an Agreement for Sale in favour of defendant no. 1 with
respect to suit property on 03.11.1983 and further referred earlier
agreement dated 13.02.1979. Reference of earlier agreement in
the subsequent Agreement for Sale executed by the Attorney does
not mean that earlier agreement was renewed. Even assuming it
to be correct, the fresh Agreement was executed in favour of
defendant no. 1 on 03.11.1983. It is not an incriminating
circumstance to disbelieve Exhibits-H, F and G if the same were
issued and sworn on the date on which the four brothers –
Sitaram Agarwalla and defendant nos. 5 to 7 had executed Power
of Attorney with respect to suit property in favour of defendant no.
2.
16. In view of the discussions made above, on the one hand
possession of appellants/ defendants over the suit property stood
confirmed whereas Gajanand Agarwalla and subsequent
purchasers i.e. Gurmukh Singh and plaintiffs have never come in
possession over the suit property and that is also apparent from
the evidence of P.W.-4. Under such circumstances, the appellants
are entitled for the protection contained under Section 53A of the
Transfer of Property Act and they cannot be evicted therefrom. JHARKHAND HIGH COURT
SECOND APPEAL NO. 61 of 2004
Smt. Gita Devi
V
Mrs. Sobha Agarwalla,
PRESENT
MR. JUSTICE D.N. UPADHYAY
PRONOUNCED ON 05/08/2016.
Citation: AIR 2017 Jharkhand 24
D.N. Upadhyay, J This Second Appeal has been preferred by
defendants/appellants against the Judgement dated 24.11.2003,
Decree dated 15.12.2003, passed and signed by 1st Additional
District District Judge, Singhbhum East at Jamshedpur in Title
Appeal No. 4 of 2000 whereby Judgement dated 14.10.1999 and
Decree dated 27.11.1999, passed and signed by learned Munsif in
connection with Title Suit No. 56 of 1996 has been affirmed.
2. This Appeal has been admitted on 12.08.2004 after
formulating following substantial questions of law:-
(i) Whether the Courts below have committed errors of record in
arriving at the finding particularly in dealing with Ext. H, Ext. 3 and
Ext. 3/A and some other documents on the record?
(ii) Whether the appellants' possession over the suit land should
have been dealt with and decided in view of the provisions of
Section 53A of the Transfer of Property Act?
3. Mrs. Sobha Agarwalla, wife of Milchand Agarwalla and Mrs.
Sarita Agarwalla, wife of Sri Satyanarayan Agarwalla (Respondent
Nos. 1 and 2) were the plaintiffs in the Trial Court whereas3 S.A. No. 61 of 2004
proforma respondent nos. 3 to 9 here in this Second Appeal were
arrayed as proforma defendants. The appellant no. 1 was
defendant no. 1 and her husband Late Lall Dhari Prasad (then
alive) was impleaded as defendant no. 2. Since Lall Dhari Prasad
(defendant no. 2) has died, the legal heirs and successors have
been substituted and they are appellant nos. 2 to 6. For better
understanding the appellants will be referred as defendants
whereas respondent nos. 1 and 2 shall be addressed as plaintiffs.
4. That the plaintiffs namely Mrs. Sobha Agarwalla and Mrs.
Sarita Agarwalla filed Title Suit No. 56/1996 in the Court of
Munsif at Jamshedpur for declaration of their title and also for
recovery of possession over the suit property described in
Schedule-A of the plaint after evicting the defendant nos. 1 and 2
from the suit premises and also to declare the unregistered
Agreement dated 03.11.1983 and the registered Sale Deed dated
11.10.1984 false and manufactured document.
The case of the plaintiffs, in short, is that a piece of land
measuring more or less 48’ x 12’ alongwith a Khapraposh house
standing on Holding No. 520 being portion of R.S. Plot No. 1333
under R.S. Khata No. 401, Mauza – Jugsalai, corresponding to
present Survey Plot No. 151 and present Survey Khata No. 413,
previously belonged to Ram Kumar Das Agarwalla and after his
death, it devolved upon his sons Sitaram Agarwalla, Sagarmal
Agarwalla, Bajrang Lal Agarwalla and Ram Awtar Agarwalla. The
land was recorded in the name of Ram Kumar Das Agarwalla in
the Revisional Survey of the year 1937 and in the present Survey,
the possession over the said land has been recorded in the name
of his four sons since 1938.
On 13.02.1979, Sitaram Agarwalla and his brother Bajrang
Lal Agarwalla only, in place of their four brothers, entered into an
Agreement to Sale a piece of land measuring 48’ x 12’ with Pucca
khapraposh House and all other structures thereon being New
Plot No. 151, Mauza – Jugsalai, described in Schedule – A of the
plaint with defendant no. 1 for a consideration of Rs.3,500/- out4 S.A. No. 61 of 2004
of which the defendant no. 1 paid an advance of Rs.2,500/- on
the same day of the said Agreement to Sale. It was agreed between
defendant no. 1 and defendant no. 6 and his brother Sitaram
Agarwalla (since deceased) that they would execute and register
the Sale Deed with respect to Schedule-A properties in favour of
defendant no. 1 within a fortnight from the date of obtaining
permission. It was further agreed that the Sale is to be
completed within five months from the date of Agreement dated
13.02.1979. It was further agreed that in case the permission is
not obtained then the defendant no. 6 and his brother Sitaram
Agarwalla will refund the advance amount to the defendant no. 1
failing which the defendant no. 1 shall be at liberty to realize the
same through process of the Court. As a matter of fact it has
subsequently been held by the Hon’ble Supreme Court that for
Homestead Land, no permission under the Urban Land (Ceiling
and Regulation) Act is necessary. In spite of repeated demands by
the defendant no. 6and his brother Sitaram Agarwalla, the
defendant no. 1 did not pay the balance amount nor she got the
Sale Deed executed with respect to Schedule-A land. As the Sale
deed was not executed within the period of limitation of the
Agreement for Sale dated 13.02.1979, the defendant nos. 5 to 7
and their brother Sitaram Agarwalla executed a registered Sale
Deed on 12.07.1984 in favour of Gajanand Agarwalla (defendant
no. 3) with respect to land and structure standing thereon
pertaining to present Survey Plot Nos. 151, 152 and 153, under
the Present Survey Khata No. 413, Mauza – Jugsalai on receipt of
full consideration amount of Rs.9,500/-.
The further case of the plaintiff is that possession of Plot No.
153 was recorded in the name of Purni Devi in the Settlement
Record. Accordingly, she had sold the land of Plot No. 153 to
defendant No. 3 – Gajanand Agarwalla and delivered the
possession of the same. The said Plot was the subject matter of
C.W.J.C. No. 484 of 1973. The said Plot was included in the Sale
Deed dated 12.07.1984 and the purchaser Gajanand Agarwalla5 S.A. No. 61 of 2004
was put in possession of the entire demised land. On 11.10.1984,
the defendant no. 2 knowing full well that the defendantnos. 5 to
7 and his brother Sitaram Agarwalla had already sold and
executed a registered Sale Deed in favour of defendant no. 3 with
respect to Plot Nos. 151, 152 and 153 under Khata No. 413,
Mauza- Jugsalai, fraudulently executed and got a Sale Deed
registered in favour of his wife Gita Devi (defendant no. 1) with
respect to Plot No. 151 under Khata No. 413, Mauza – Jugsalai,
measuring an area of 0.00.52 Hec. (approximately – one katha) for
a consideration of Rs.3,500/- falsely stating therein that in
pursuance of an agreement dated 13.02.1979, the consideration
of Rs.3,500/- as agreed between the parties, the purchaser paid
on 11.10.1984 to the vendor a sum of Rs.3,500/-and the receipt
whereof is acknowledged by the Vendors.
On 12.09.1983 the defendant no. 2 was appointed as
Attorney on behalf of the defendant nos. 5 to 7 and their brother
Sitaram Agarwalla by registered Deed of General Power of
Attorney to look after and manage the properties in Ward No. 10,
Holding No. 520, B/78, Kutchery Mohalla, Jugsalai, Jamshedpur
and to sell to anybody as he things just and proper. This does not
show that which of the property is to be managed by the Attorney.
After the lapse of four years and eight months of the alleged
Agreement to Sale, dated 13.02.1979, the defendant no. 2 had
executed Deed of Agreement to Sale against the Schedule – A
properties in favour of his wife Gita Devi (defendant no. 1) on
03.11.1983 wherein it is stated that the defendant no. 1 has paid
the entire consideration amount of Rs.3,500/- and that it was
paid to the defendant no. 2. An affidavit to that effect was sworn
on 12.09.1983. The Agreement to Sale dated 03.11.1983, Affidavit
dated 12.09.1983 and the Sale Deed dated 11.10.1984 are forged
and manufactured documents. There is every reason to believe
that after the Sale Deed dated 12.07.1984, the defendant no. 2
has managed to manufacture the above referred documents. It
will be found from the documents referred to above as that the
Agreement was executed on 03.11.1983 while the affidavit was
alleged to have been sworn to this effect on 12.09.1983 and
ridiculously the Sale Deed dated 11.10.1984 recites that the
payment was made on 11.10.1984. While in possession Gajanand
Agarwalla (defendant no. 3) sold the aforesaid land in Plot Nos.
151, 152 and 153 under Present Survey Khata No. 413 in mauza
– Jugsalai bearing Municipal Holding Nos. 78 and 79, Municipal
Ward No. 10 to Gurmukh Singh (defendant No. 4) on receipt of
payment of Rs.49,000/- by means of a registered Sale Deed dated
09.10.1991 and delivered possession of the same. While in such
possession, said Gurumukh Singh sold the said land to the
plaintiffs jointly through a registered Sale Deed dated 31.01.1995
on receipt of full consideration money of Rs.50,000/- and
delivered possession of the same. The name of the plaintiffs have
been mutated and they are paying rents to the State of Bihar and
Tax to the Jugsalai Municipality. Defendant no. 1 – Gita Devi was
previously a monthly tenant under Sitaram Agarwalla and his
brothers with respect to Schedule-A property and in spite of
repeated demands by the plaintiffs, the defendant no. 1 has not
vacated the same and on the contrary she is now claiming
ownership on the suit property by virtue of Sale Deed dated
11.10.1984.
5. The case of the defendant nos. 1 and 2, in short, is that the
suit is not maintainable and is bad for non-joinder of necessary
parties. The State of Bihar is the necessary party to the suit. In
the present Survey, the suit land has been recorded in Khata of
Anabad Bihar Sarkar and Awaidh Dakhal of the four sons of Late
Ram Kumar Das has been recorded in the present Khatian. In fact
these defendants and father of defendant no. 1 – Chandra Kant
Singh have been in possession of the suit land since 1975 and
prior to that it was in possession of Firangi Mahto. These
defendants had purchased the same from Firangi Mahto through
registered Deed of Sale dated 11.02.1975 executed in the name of
Chandra Kant Singh, who was the father of defendant no. 1.7
Therefore, the entry showing possession of Sitaram Agarwalla and
others in the Khatian was wrong and incorrect. It could have only
been due to the simplicity and ignorance of Firangi Mahto, who
had constructed the house. The further constructions were made
by these defendants. Firangi Mahto contested the right and title of
Sitaram Das and others in the Tanaja Case No. 26/1970. Firangi
mahto has also paid Municipal Tax and Water Charges in the
jugslai Municipality. After purchase, the defendant no. 2 had also
paid water charge and Municipal Taxes in the name of Firangi
Mahto. In Mauza - Jugsalai, a place is being known as Firangi
Chowk. Defendant no. 1 had also submitted applications before
the Deputy Commissioner and Special Officer, Jugsalai
Municipality. After about four years of execution of Sale Deed
dated 11.02.1975, Sitaram Agarwalla came to the defendants and
represented to them that the land concerned belonged to them
and so they should get a Sale Deed executed through him and his
brothers failing which he would put them in trouble. The
defendants, who are the teachers, came to know that Sitaram
Agarwalla and his brothers are great litigant and so agreed to the
said proposal. After some negotiations, the agreement for Sale
dated 13.02.1979 was executed by Sitaram Agarwall and Bajrang
lal Khirwal as the other two brothers were not available on that
date. It was agreed that Sitaram Agarwall and his brothers would
execute a registered Sale Deed in respect of Homestead Land
measuring 48’ x 12’ alongwith Khapraposh House and other
structures at Holding No. 520, Ward No. 10, Old Plot No. 1333,
New Plot No. 151, Kutchery Mohalla, jugsalai, Jamshedpur within
fortnight from the date of obtaining permission. A tentative period
of five months was also mentioned. These defendants were given
liberty to realize the earnest money of Rs.2,500/- if Sale Deed is
not executed within time stipulated. These defendants were not
aware of any ruling of the Supreme Court. It is wrong to say that
demands were made by defendant no. 6 and Sitaram Agarwalla,
but defendant no. 1 failed to pay the balance amount of
Rs.1,000/- and so the Sale Deed was not executed with respect to
Schedule-A land. On the contrary, Sitaram Agarwalla was always
assuring these defendants that he would be able to obtain the
necessary permission sooner or later. The Sale Deed dated
12.07.1984 executed in favour of Gajanand Agarwalla was a
collusive one. It was also possible that the figure of 151 (Plot No.)
was introduced into the said Sale Deed without the knowledge of
the executants and they did not pay heed to it while signing the
documents. Practically these defendants as well as defendant no.
3 – Gajanand Agarwalla were sailing in the same boat with respect
to registered Sale Deed dated 11.02.1975 and 29.05.1973. The
Sale Deed dated 29.05.1973 was executed by Purni Devi with
respect to Homestead Land with country tiled Pucca House in Plot
No. 153, Kutchery Mohalla, jugsalai, Jamshedpur for a sum of
Rs.7,500/-. Through the said Sale Deed, the sold property was
delivered by the vendor and the landlord was State of Bihar where
the purchaser would have his land mutated. Similarly, in the Sale
Deed dated 11.02.1975, possession was delivered by the vendor to
the purchaser and the purchaser would get his name mutated in
the office of the State of Bihar and pay rent for the same. The
defendant no. 3 was never put in possession of the entire demised
land as Sitaram Agarwalla and his brothers, themselves were not
in possession over plot no. 151, Holding No. 520. They could not
have and did not put Gajanand Agarwalla in possession. Sitaram
Agarwalla and his brothers had executed a General Power of
Attorney in favour of defendant no. 3 – Lall Dhari Prasad on
12.09.1983 and also issued Money Receipt and sworn affidavit by
which they acknowledged the receipt of consideration
amount.Since Sitaram Agarwalla and his three brothers
(defendant nos. 5 to 7) had received the full consideration amount
against sale of Plot No. 151 with house and structure, the General
Power of Attorney Holder Laldhari Prasad had right to sale the
property in question to anybody to whom he thought fit and
proper on their behalf. In view of the said Power of Attorney, an
Agreement for Sale dated 03.11.1983 was executed by defendant
no. 2 in favour of defendant no. 1. According to the said
Agreement, the sale was to be completed within a year and the
parties were to obtain the necessary permission under the Urban
Land (Ceiling and Regulation) Act, 1976. The defendant no. 1 had
been put in complete physical possession of the said property. All
these developments were fully known to the defendant no. 3 –
Gajanand Agarwalla as he was a neighbor of the defendant nos. 1
and 2 and had always discussions with them about the progress
of the purchased property. Permission for sale was obtained from
competent authority by letter no. 319, dated 29.05.1984 and so
the Sale Deed was executed and registered on 11.10.1984. The
registered Sale Deed dated 11.10.1984, Agreement for Sale dated
03.11.1983, registered General Power of Attorney, Money Receipt
and Affidavit dated 12.09.1983 are not manufactured documents
rather they are genuine and valid documents.
On the other hand, the Sale Deed dated 09.10.1991 and
11.01.1995 are all collusive and manufactured documents in
order to deprive these defendants of their house. The further case
of the defendant is that State of Bihar which has obtained a
Decree dated 08.06.1995 in Revision Case No. 01/1994 – 95 in
the Court of learned Reform Deputy Collector, Jamshedpur in
respect of all such so called lands of Late Ram Kumar Das and his
sons Sitaram Agarwalla. Hence, the State of Bihar is a necessary
party to the suit. These defendants have applied for settlement
and mutation of their names by virtue of long possession and on
the basis of their documents which is pending uptil now. The
mutation in favour of the plaintiffs is wrong and inoperative in
view of the said order dated 08.06.1995 passed in Revision Case
No. 01/1994 – 95. The defendant no. 1 was not a monthly tenant
under Sitaram Agarwalla and his brothers with respect to
Schedule-A property. There was no question of vacating the suit
property on anybody’s demand nor ay such demand was made.
These defendants have also perfected their right, title and interest
to the suit land by adverse possession by remaining in continuous
possession since at least 1975 against all and sundry including
plaintiff and his predecessors-in-interest. The plaintiffs have no
right, title over the suit land and, accordingly, they are not
entitled to have a declaration that the Agreement for Sale dated
03.11.1983 and the Sale Deed dated 11.10.1984 are
manufactured documents. All the proforma defendants are in
collusion with each other. It is false to say that the plaintiffs
acquired knowledge about the said documents after 31.01.1995.
They have not disclosed the source of their knowledge and as
such, the suit is liable to be dismissed.
6. The learned Trial Court proceeded with the trial after
framing issues on the basis of pleadings. The plaintiffs as well as
defendants adduced oral and documentary evidence and after
considering the same the Suit filed by the plaintiffs was decreed.
The appellants then preferred Title Appeal No. 4 of 2000 which
stood dismissed from the Court of learned 1st Additinal District
Judge, Singhbhum East at Jamshedpur on 24.11.2003 and the
Judgment and Decree passed by the Trial Court have been
confirmed and hence this Second Appeal to decide the substantial
question of law formulated above.
7. It was submitted by counsel for the appellants that duty of
Court is to impart justice and it is to be ensured that no injustice
should occur by giving incorrect findings by misappreciating the
facts and law as well as procedure. The scope in the Second
Appeal is limited and the general rule is that the High Court will
not interfere with the concurrent findings of the Court below but
it is not an absolute rule. Some of the well recognised exceptions
are placed hereunder:-
(i) the courts below has ignored material evidence or acted on no
evidence;
(ii) the courts have drawn wrong inference from true facts by
applying the law erroneously.
(iii) the courts have wrongly cast the burden of proof or the courts
have transgressed jurisdiction by deciding the issues which
are neither framed nor evidence to the effect was induced.
Often it is seen that the courts became enthusiastic and grant
reliefs which were not even sought for.
It was submitted, if the concurrent findings of the Courts
below suffers with great infirmity, gross illegality and with
perverse findings, the High Court in the Second Appeal shall not
remain silent to promote injustice. The evidence and facts
appearing in the case at hand were not considered by the Courts
below in its true perspective and both the Courts have committed
gross error in considering the documents brought on record by
the parties. That is the reason that aforesaid two substantial
questions of law have been framed to decide the appeal.
The first question has been framed on the point “how the
courts below have committed errors of record in arriving at the
finding particularly in dealing with Ext. H, Ext. 3 & Ext. 3/A and
some other documents on record?”
Ext.-3 is the copy of assessment register of Jugsalai
Municipality pertaining to portion of new Holding No. 79 (Old
Holding No. 520-B). The name of occupier is Gajanand Agarwalla
(defendant no. 3) son of Matadin Agarwalla. The Certificate given
by the Municipal authority indicates that it was an assessment of
Holding No. 79 Ward No. 10 for the period 1976 – 77. Exhibit –
3/A is again copy of assessment register of Jugsalai Municipality
pertaining to Holding No. - New 78, Old 520B, name of occupier –
Gajanand Agarwalla, son of Matadin Agarwalla (Defendant No. 3).
According to Certificate it was an assessment of Holding No. 78,
Ward No. 10, Jugsalai Municipality for the periods 1976 – 77.
8. It is an admitted case of the plaintiffs that Gajanand
Agarwalla purchased the schedule property along with Plot Nos.
152 – 153 on 12.07.1984 from Sita Ram Agarwalla and his three
brothers (Defendant Nos. 5 to Defendant No. 7) but the
assessment of aforesaid holding were made in the name of
Gajanand Agarwalla much prior to the date of purchase i.e. for
the year 1976 – 77. Exhibits – 3 and 3/A have been proved by
Ram Tahal Rai (P.W.-4), the Tax Collector,, Jugsalay Nagar Palika.
In his cross examination, this witness has admitted that aforesaid
holding were never assessed in the name of Gurmukh Singh
(Defendant No. 4). In paragraph-14 he says that he had no
knowledge as to who was occupying Holding No. 78 prior to
Gajanand Agarwalla. In the next sentence he says that Gajanand
Agarwalla had never occupied Holding No. 78 because he was
having his separate place of residence. This witness has also
disclosed the Holding Number of Gajanand as 131.
Further deposition of this witness is that he had been seeing
Gita Devi (defendant no. 1) occupying and residing in Holding No.
78. How these two documents have been considered illegally
without being supported by the facts entered in those documents
by the trial court in paragraph-10 of the Judgment for holding
that the appellants were tenant under Gajanand Agarwalla is
nothing but an error of record and absolutely a wrong finding.
Admittedly, prior to July, 1984, Gajanand Agarwalla was not
having right, title, interest and possession over the New Holding
No. 78 and 79 but it is indicated that owner of the Holding was
Gajanand Agarwalla and he was having four tenants in those two
Holdings. Needless to mention that name of appellants are not
appearing in Exhibit-3 or 3/A as that of tenant. The illegality
committed by the Trial Court has been affirmed by the first
appellate court and the first appellate court being the last court of
facts, did not bother to examine the evidence and documents
available on record. Thus, it is clear as to how both the Courts
have erred in considering Exhibits-3 and 3/A.
Exhibit-H is the registered Power of Attorney executed by
Sita Ram Agarwalla and his three brothers (Defendant Nos. 5 to 7)
on 12.09.1983 in favour of Lall Dhari Prasad (original defendant
no. 2) for looking after property in Ward No. 10, Holding No. 520-13 S.A. No. 61 of 2004
B/78, Kutchery Mohalla, Jugsalai, Jamshedpur. In paragraph-3
of the said Power of Attorney, the power to execute Sale Deed,
Agreement for Purchase or other documents necessary for the
aforesaid properties and register the Sale Deed as he deems fit,
have been given. The Trial Court in its Judgment has wrongly
considered that property for which General Power of Attorney was
given, was not described in the said document-H. As a matter of
fact, in Paragraph-1 of the Power of Attorney, it is well indicated
regarding which of the property, Power of Attorney was given to
defendant no. 2. The first appellate court in paragraph-10 of his
Judgment without appreciating the recital of Exhibit-H, has held
that the defendant no. 2 was not authorized to sale the property
and no such power was given to him. It is held “this goes to show
that Power of Attorney (Exhibit-H) given to defendant no. 2 by Sita
Ram Agarwalla and his brothers does not empower defendant no.
2 to enter into an agreement for sale or to execute a Sale Deed in
favour of any person (Para-10, Page-7).
It was submitted as to how negligently and carelessly both
the Courts dealt with Exhibits- 3, 3/A and H which led to great
injustice to the appellants and caused prejudice and loss. By
referring aforesaid evidence, documents and findings of both the
Courts, it was submitted that findings of both the Courts are
perverse and, therefore, the Judgments of both the Courts are
required to be viewed by this Court in the Second Appeal, both on
facts and also in law.
In this context the counsel for the appellants has referred
Judgment reported in (2008) 12 SCC 796 in which reference of
Judgment rendered in the case of Chunilal V. Mehta and Sons
Ltd. Vs. Century Spg. & Mfg. Co. Ltd. has been given in
paragraph-3. It was submitted that under first substantial
question of law, besides documents Exhibits-3, 3/A and H error
committed in appreciating other documents has also been
mentioned. The other documents are Exhibit-E, Agreement for
Sale dated 13.02.1979 executed by Sita Ram Agarwalla and14 S.A. No. 61 of 2004
Bajrang Agarwalla in favour of defendant no. 1 with respect to
Schedule property – Exhibit-E/1, Agreement dated 03.11.1983
executed by lawful Attorney Lall Dhari Prasad on behalf of Sita
Ram Agarwalla and his three borthers with respect to schedule
property, Exhibit-F – the money receipt for Rs.3,500/- issued by
Sita Ram Agarwalla and his three brothers (defendant nos. 5 to 7)
dated 12.09.1983, the affidavit – Exhibit-G sworn by Sita Ram
Agarwalla and his three brothers (defendant nos. 5 to 7) declaring
therein sale of holding no. 520-B/78 of Jugsalai Ward No. 10 in
favour of Smt. Gita Devi (defendant no. 1) and further
acknowledged receipt of Rs.3,500/- as consideration amount
against sale of said property and possession of Gita Devi was also
admitted.
10. The plaintiffs though averred in the plaint that aforesaid
documents are forged and manufactured but they have led no
evidence to this effect. The executant - Sita Ram Agarwalla and
his three brothers (defendant nos. 5 to 7) never stepped in witness
box nor filed written statement to support the contention of the
plaintiffs but the Courts below have suo motu held that the
aforesaid documents – Exhibits - F, G and H are forged and
manufactured documents. The plaintiffs have not sought for relief
for declaring aforesaid documents – Exhibits-F, G and H as forged
and fabricated and not binding on the plaintiffs or on their
predecessor-in-interest. Both the Courts below suo motu declared
Sale Deed (Exhibit-D) executed by Firangi Mahto in favour of
Chandrakant Singh (father of defendant no. 1) for a piece of
homestead land measuring 0-1-3 Katha and 3 Dhurs more or less
being portion of old survey plot no. 1333 corresponding to current
Survey Plot No. 151 in Mauja – Jugsalai, Thana No. 1161, P.S. -
Jugsalai, Pargana – Dhalbhum null and void ab initio.
By referring the findings of the Courts below and the
documents and evidence available on record, it was submitted
that in such circumstances it can well be held that findings of
both the Courts are perverse and for the ends of justice and also15 S.A. No. 61 of 2004
for arriving to a correct conclusion, even in the Second Appeal
this Court has jurisdiction to consider the fact. It is further
contended that interference with concurrent findings of trial court
and first appellate court by High Court in Second Appeal is
justified where there is perverse finding of fact. Reference has
been made to the Judgment in the case of Sebastiao Luis
Fernandes (Dead) Through LRS and others Vs. K.V.P. Shastri
(Dead) through LRS and others reported in (2013) 15 SCC 161.
11. In the context of second substantial question of law, it was
submitted that provisions contained under Section 53A of the
Transfer of Property Act deals with mixed question of fact as well
as law. The possession of the appellants over the suit property
has been admitted, if not from the year 1975, must be from the
year 1979 when Sita Ram Agarwalla and Bajrang Agarwalla
executed an agreement for sale in favour of defendant no. 1 for
the suit property. The evidence brought on record by the plaintiffs
(P.W.-4) further confirmed possession of appellants over the suit
premises. The evidence adduced by the plaintiffs conclusively
suggests that neither Gajanand Agarwalla nor his vendee
Gurmukh Singh nor plaintiffs had ever acquired possession over
the suit property. As per the evidence of P.W.-4, Gajanand
Agarwalla is having his house in Plot No. 131, Gurmukh Singh
(defendant no. 4) is also having separate accommodation in
different plots of course adjacent to these plots 151, 152 and 153.
The plaintiffs namely Mrs. Sobha Agarwalla and Mrs. Sarita
Agarwalla at no point of time acquired possession over the suit
property. Even if the defendant no. 1 did not file any suit for
specific performance against agreement dated 13.02.1979
(Exhibit-E), her possession in the suit property by way of part
performance, cannot be denied. By executing Exhibits – F and G,
Sitaram Agarwalla and his three brothers (Defendant nos. 5 to 7)
had again confirmed possession of the appellants over the suit
property. It is true that protection available to the appellants
under Section 53A of the Transfer of Property Act has not been16 S.A. No. 61 of 2004
specifically indicated in the written statement but then facts
brought on record, the documents and evidence, clearly suggests
that protection of Section 53A of Transfer of Property Act was
always available to the defendants/ appellants. In this context
learned counsel has relied upon the Judgment reported in
(i) (2002) 3 SCC 676;
(ii) (2004) 5 SCC 88;
(iii) (1969) 3 SCC 120;
(iv) (2004) 8 SCC 614;
(v) (2005) 12 SCC 164.
The appellants have further submitted that Sale Deed
executed by Sitaram Agarwalla and his three brothers (defendant
nos. 5 to 7) in favour of Gajanand Agarwalla in the month of July,
1984, the Sale Deed executed by Gajanand Agarwalla in favour of
Gurmukh Singh, Sale Deed executed by Gurmukh Singh in
favour of plaintiff in the year 1995 were nothing but paper
transaction and none of them ever came in possession over the
suit land. The Courts below ignoring the evidence available on
this aspect has considered the recital made in the aforesaid Sale
Deeds. The evidence led by plaintiffs do not indicate that the
appellants or their predecessor-in-interest had ever acquired
possession over the suit property. The learned counsel has further
referred Section 3 (Explanation – II) of the Transfer of Property Act
and submitted that plaintiffs and their predecessor-in-interest are
the resident of the same locality, even close to the suit land but
they never bothered to make enquiry as to in what capacity or
with what authority the appellants are enjoying their possession
over the suit property. The learned Courts below have not dealt
with this point in right perspective. The Trial Court as well as
lower appellate court have further ignored and misconstrued the
documents proved by the contesting respondents (plaintiffs). The
Khatian relating to suit property indicates that the property
mentioned in the Sale Deed of plaintiffs are Anabad Bihar Sarkar
and Awaidh Dakhal of Sitaram Agarwal and his brothers has been
mentioned.
A copy of Khatian proved by plaintiffs is sufficient to
suggests that the State of Bihar (Now Jharkhand) was the
necessary party and in absence of impleading necessary party, the
suit was liable to be dismissed.
12. Learned counsel appearing for contesting respondents/
plaintiffs has vehemently opposed the arguments advanced by
counsel for the appellants. He has submitted that there should be
no third trial in Second Appeal and such practice if done has been
depricated by the Apex Court in catena of Judgment.
In course of arguments learned counsel for the plaintiffs has
not given much stress on Exhibits – 3 and 3/A and more or less
admitted that aforesaid two documents were the copies of
assessment register by which the Tax Collector of Jugsalai
Municipality had assessed the Holding Tax of Holding Nos. 78 and
79. It was contended that Gajanand Agarwalla had purchased
portion of land pertaining to R.S. Plot No. 1333 and after that he
was in possession of those lands and, therefore, his name is
appearing in column of owner/ occupier in Exhibits – 3 and 3/A.
The learned counsel has tried to make it clear that Exhibit-D-3
relates to portion of R.S. Plot No. 1333 purchased by Gajanand
Agarwalla from Purni Devi in the year 1973 and, therefore, name
of Gajanand Agarwalla is appearing in Exhibits – 3 and 3/A. In
para-9 of the Judgment of the Trial Court aforesaid fact is
mentioned. The learned counsel has fairly conceded that Exhibits-
3 and 3/A do not confer any right, title or interest on either of the
parties for the purpose of deciding the suit.
So far Exhibit-H is concerned, it was contended that ExhibitH
– said Power of Attorney does not empower defendant no. 2 to
enter into agreement for sale or execute Sale Deed, which is
apparent from paragraph-11 of the Judgment of the lower
appellate court and it can easily be gathered that lower appellate
court has considered that even if by virtue of Power of Attorney
i.e. Exhibit-H, defendant no. 2 has sold the property in favour of
his wife (defendant no. 1) by registered Sale Deed dated
11.10.1984 (Exhibit – D/1) would not confer a good title. It was
pointed out that prior to alleged Sale Deed dated 11.10.1984 the
original owners have already executed and registered Sale Deed in
favour of Gajanand Agarwalla on 12.07.1984 vide Exhibit 2/b. It
was contended that the defendants never filed suit for specific
performance making the original landlords Sitaram Agarwalla and
his three brothers and also the transferee Gajanand Agarwalla
party. Instead of taking recourse to the provisions contained
under Specific Relief Act, the defendant no. 2 had created a Sale
Deed in favour of his wife – Defendant no. 1 on 11.10.1984.
The defendant no. 2 was not given power through Exhibit –
H to renew the earlier Agreement alleged to have been executed by
Sita Ram Agarwalla and Bajrang Agarwalla in favour of defendant
no. 1 – Gita Devi in the year 1979. It was submitted that
Agreement for Sale cannot automatically create any right, title
and interest of the party over the property in question. It only
gives a right to file suit for specific performance of agreement
which admittedly was not done by defendant nos. 1 and 2. Since
the deed of conveyance in favour of Gajanand Agarwalla
(predecessor-in-interest of the Plaintiffs) was executed on
12.07.1984, the right, title and interest transferred by that
document shall prevail against another Sale Deed executed by
defendant no. 2 in favour of defendant no. 1 on 11.10.1984. It
was submitted that execution of Sale Deed on 12.07.1984 by
Sitaram Agarwalla and his three brothers in favour of Gajanand
Agarwalla was sufficient to draw inference that the Power of
Attorney, if any, executed for the suit property in favour of
defendant no. 2 by Sitaram Agarwalla and his three brothers
stood revoked. On the date of execution of Sale Deed by defendant
no. 2 in favour of defendant no. 1 i.e. 11.10.1984, the disputed
property owned and possessed by executants of Power of Attorney19 S.A. No. 61 of 2004
was ceased to be possessed by them because they have
transferred their right, title and interest by executing Deed of
Conveyance in favour of Gajanand Agarwalla. In this context
learned counsel has placed reliance on the Judgment in the case
of Deb Ratan Biswas and others V. Most. Anand Moyi Devi and
others reported in AIR 2011 SC 1653.
Learned counsel has further argued that in view of Section
207 of the Indian Contract Act, 1872, it could easily be
ascertained that Power of Attorney has impliedly been revoked by
the conduct of original owners.
The plaintiffs have further contended that after considering
the documentary and oral evidence the Courts below have
recorded a finding in paragraph-27 of the trial court Judgment
that defendant nos. 1 and 2 did not able to prove that the
plaintiffs or their predecessor-in-interest had or have any
knowledge about the agreement of sale. Admitted case of the
defendant is that they did not file any suit for specific
performance of contract against the agreement so executed in
favour of defendant no. 1 and, therefore, the plaintiffs have
acquired the suit property in good faith and without having any
knowledge of prior agreement, if any and, therefore, they are the
bonafide purchaser of the suit property. So far as Explanation-II
of Sub Section (3) of Transfer of Property Act is concerned, it is
also dealt with in that paragraph-27 of the Judgment of the Trial
Court and plaintiffs have placed reliance on the Judgments in the
cases of Md. Mustafa Vs. Haji Md. Isa and others [AIR 1987
Pat. 5], Kesharmull Agarwala Vs. Rajendra Prasad and others
[1968(16) BLJR 28], Hari Charan Kuar and others Vs. Kaula
Rai and others [AIR 1917 Patna 478].
To answer the second substantial question of law, it was
vehemently argued that the appellants are debarred from claiming
benefits of Section 53A of the Transfer of Property Act because no
such plea was taken by them in their written statement and it
was never appearing in their pleading. It can be easily gathered
that there was no pleading so far as readiness and willingness is
concerned in pursuant to the agreement for sale rather
defendants are raising their claim on the basis of purchase and
she has been claiming to be owners of the property.
By referring Judgment in the case of Sham Lal Vs. Smt.
Mathi [AIR 2002 HP 66] (Relevant Paragraphs 18 and 19),
Ram Kumar Agarwal and another Vs. Thawar Das (Dead)
through Lrs. [(1999) 7 SCC 303] (relevant para-8) it was
submitted that Hon’ble Supreme Court has held that the plea of
Section 53A of the Transfer of Property Act raises a mixed
question of law and fact and, therefore, cannot be permitted to be
urged for the first time at the stage of second appeal that part
performance or willingness to perform is part of the contract and
it is one of the essential ingredients required to be taken while
plea of part performance is taken. In absence of such pleading in
written statement, the appellants are not entitled to have benefits
of protection of Section 53A of the Transfer of Property act at the
stage of second appeal.
The contesting respondents have further referred the
Judgment in the case of D.S. Parvathamma Vs. A. Srinivasan
[(2003) 4 SCC 705] (relevant para-6) and submitted that one of
the essential feature of Section 53A of the Transfer of Property Act
is that the plea of part performance is not available to be raised
against a transferee for a consideration who has no notice of
contract or of the part performance thereof. In the present case,
the plaintiffs or their predecessor-in-interest had or have no
notice of any prior agreement of sale which is finding of fact
recorded by the Trial Court at paragraph-27 of the judgment.
The learned counsel has further referred paragraph-14 of
the Judgment in the case of Shrimant Shamrao Suryavanshi
and another Vs. Pralhad Bhairoba Suryavanshi (dead) by LRs.
and others reported in AIR 2002 SC 960 and submitted that
there are certain conditions which are required to be fulfilled if a
transferee wants to defend or protect his possession under21 S.A. No. 61 of 2004
Section 53A of the Transfer of Property Act. The necessary
conditions are:-
(i) There must be a contract to transfer for consideration ay
immovable property;
(ii) The contract must be in writing, signed by the transferor, or
by someone on his behalf;
(iii) The writing must be in such words from which the terms
necessary to construe the transfer can be ascertained;
(iv) The transferee must in part performance of the contract take
possession of the property, or of any part thereof;
(v) The transferee must have done some act in furtherance of the
contract;
(vi) The transferee must have performed or be willing to perform
his part of the contract.
It was submitted that the conditions indicated in clauses – 5
and 6 had never been complied with by the appellants/
defendants and, therefore, protection available under Section 53-A
of the Transfer of Property Act is not available to them.
The learned counsel has argued that scope of Section 100
CPC is very limited after 1976 amendment and it is only confined
to cases where substantial questions of law are involved. The
contesting respondents have relied upon the Judgment in the case
of Narayanan Rajendran and another Vs. Lekshmy Sarojini and
others reported in (2009) SCCR 944 (Relevant Paragraphs – 62
to 69). It was submitted that in the second appeal concurrent
finding of fact are not liable to be discussed and the same is
beyond the purview of Section 100 CPC. On this score alone
arguments extended by counsel for the appellants are liable to be
rejected.
13. Heard both sides and perused evidence, documents and
Judgments available in the case record. Admittedly Section 100
Code of Civil Procedure has introduced a definite restriction on to
the exercise of jurisdiction in Second Appeal so far as the High22 S.A. No. 61 of 2004
Court is concerned. Needless to record the Code of Civil Procedure
(Amendment) Act, 1976 introduced such an embargo for such
definite objectives but where it is found that the findings stand
vitiated on wrong test on the basis of assumptions and conjecture
and resultantly there is an element of perversity involved therein,
jurisdiction available under Section 100 Code of Civil Procedure
can be extended to deal with the issue to avoid miscarriage of
justice. There is no prohibition of entertaining a Second Appeal
even on a question of fact provided the Court is satisfied with the
findings of fact recorded by the Courts below stood vitiated by
non-consideration of relevant evidence or by showing an
erroneous approach to the matter i.e. that the findings of fact are
found to be perverse. What I mean to say is in a Second Appeal
the Court should not interfere with findings of the Court below
given on facts but then if the findings are based on misreading of
evidence or based on non-evidence resulting in injustice, the High
Court can enter into the mixed question of fact and law both. The
Law is not static, it has to change with changing time and it
should be dynamic because the purpose of law is to serve needs of
life. The recent of law is that hyper technicalities shall not stand
in the way of Court administering justice. The procedural
technicalities of law, if needed, should be diluted in the interest of
justice to avoid miscarriage of justice.
The concurrent findings of Courts below based on wrong
assumption of fact, non-appreciation of pleadings and evidence on
record can be looked into in a Second Appeal as has been held in
the Judgment rendered in the case of Sebastiao Luis Fernandes
(Dead) through LRS. and others Vs. K.V.P. Shastri (Dead)
through LRS and others reported in (2013) 15 SCC 161.
The substantial question of law framed and the arguments
advanced from both sides, persuaded this Court to consider the
facts and evidence in its true perspective. Since the Courts below
have committed errors of record in arriving at the finding while
dealing with particularly Exhibits-H, 3, 3/A and other documents.23 S.A. No. 61 of 2004
Exhibit-3 and 3/A are the copies of assessment register of
Jugsalai Municipality and that indicates assessment of Holding
Nos. (New) - 78 and 79 which admittedly connect the suit
property. The learned Munsif, relying on those documents has
held that defendants were the tenant under Sitaram Agarwalla
and defendant nos. 5 to 7. On perusal of aforesaid two documents
I do not find that the same are indicative of facts that defendants
were tenant under Sitaram Agarwalla or they were enjoying
permissive possession over the suit property. This finding of the
Courts below is based on no evidence because the plaintiffs have
not brought on record a chit of paper to show that at any point of
time the appellants/ defendants were inducted either as a tenant
or enjoying the suit property having permissive possession. The
plaintiffs have been claiming their title which they acquired from
their predecessor-in-interest which generated from Sitaram
Agarwalla and his three brothers. Neither Sitaram Agarwalla nor
his three brothers (defendant nos. 5 to 7) appeared to depose that
defendants were inducted as tenant or were allowed to enjoy
permissive possession over the suit property. Therefore, finding of
both the Courts on this count which is based on no evidence, is
perverse and the same is hereby set aside. The plaintiffs have not
prayed to declare Exhibit-D, Sale Deed executed on 11.02.1975 by
Firangi Mahto in favour of Chandrakant Singh (father of
defendant no. 1) as null and void but the Courts below, without
evidence declared Exhibit-D as null and void-ab-initio.
Likewise the plaintiffs have challenged that Exhibit-F (Money
Receipt) executed by Sitaram Agarwall and his three brothers on
12.09.1983 and affidavit (Exhibit-G) sworn by them
acknowledging receipt of consideration amount of Rs.3,500/-
against sale of said property have been declared forged but no
evidence on record is available for arriving such conclusion.
The Courts below while discussing Exhibit-H have stated
that defendant no. 2 was not empowered by the executants –
Sitaram Agarwalla and his three brothers to execute a Sale Deed24 S.A. No. 61 of 2004
or Agreement for purchase or other documents necessary for the
aforesaid property. But then para-3 of Exhibit-H is clear on this
point that defendant no. 2 was authorized and given power even
to sale the property for which he was appointed Attorney. It was
also held that Schedule of the property for which General Power of
Attorney was given to defendant no. 2, does not find place in
Exhibit-H but paragraphs-1 and 2, if read together, it would
reveal that the Schedule property for which General Power of
Attorney was given, is indicated. The evidence of P.W.-4 – the Tax
collector of Jugsalai Municipality was referred by counsel for the
appellant and, therefore, I have also examined the same to verify
the truth. From the testimony of P.W.-4 it is evident that
Gajanand Agarwalla was not enjoying possession over the suit
property and his place of residence was situated at Plot No. 131.
According to plaintiffs, the schedule property along with property
pertaining to Plot Nos. 152 and 153 were purchased by Gajanand
Agarwalla through registered Deed of Sale executed on
12.07.1984 (Exhibit-2/b). Thereafter, it was sold to Gurmukh
Singh (defendant no. 4) in the year 1991 and Gurmukh Singh
sold the property to plaintiffs on 31.01.1995. Neither Gajanand
Agarwalla nor Gurmukh Singh ever realized rent from the
appellants for the suit premises. No notice was ever served upon
the defendants by Gajanand Agarwalla or Gurmukh Singh asking
them to vacate the suit premises or to pay rent till they were
having Title Deed in their possession.
Again the finding of the Courts below on the point that
possession of defendants in the suit premises was that of a
tenant, is not based either on evidence or on documents. Sitaram
Agarwalla and his three brothers (defendant nos. 5 to 7) never
disown Exhibits – F, G and H and, therefore, adverse opinion
against aforesaid documents cannot be formed.
In view of the discussions made above, I am of the opinion
that the Courts below have committed error of record in arriving
at the findings, particularly in dealing with Exhibits-H, 3, 3/A and25 S.A. No. 61 of 2004
other documents and, therefore, erroneous finding given by
Courts below cannot be sustained.
14. Learned counsel for the plaintiffs has vehemently argued
that the defendants have not taken specific plea for seeking
benefits provided under Section 53A of the Transfer of Property
act and, therefore, the said plea cannot be taken at the stage of
Second Appeal. Learned counsel for the appellants have placed
reliance on the Judgment in the case of Ram Sarup Gupta (Dead)
by LRS Vs. Bishun Narain Inter College and others reported in
(1987) 2 SCC 555, relevant at para-6, which is quoted
hereunder:-
“6. The question which falls for consideration is whether
the respondents in their written statement have raised the
necessary pleading that the licence was irrevocable as
contemplated by Section 60(b) of the Act and, if so, is there
any evidence on record to support that plea. It is well settled
that in the absence of pleading, evidence, if any, produced
by the parties cannot be considered. It is also equally settled
that no party should be permitted to travel beyond its
pleading and that all necessary and material facts should be
pleaded by the party in support of the case set up by it. The
object and purpose of pleading is to enable the adversary
party to know the case it has to meet. In order to have a fair
trial, it is imperative that the party should settle the essential
material facts so that other party may not be taken by
surprise. The pleadings however should receive a liberal
construction; no pedantic approach should be adopted to
defeat justice on hair splitting technicalities. Sometimes,
pleadings are expressed in words which may not expressly
make out a case in accordance with strict interpretation of
law. In such a case it is the duty of the court to ascertain the
substance of the pleadings to determine the question. It is
not desirable to place undue emphasis on form, instead the
substance of the pleadings should be considered. Whenever
the question about lack of pleading is raised the enquiry
should not be so much about the form of the pleadings;
instead the Court must find out whether in substance the
parties knew the case and the issues upon which they went
to trial. Once it is found that in spite of deficiency in the
pleadings parties knew the case and they proceeded to trial
on those issues by producing evidence, in that event it would
not be open to a party to raise the question of absence of
pleadings in appeal. In Bhagwati Prasad v. Chandramauli, a
Constitution Bench of this Court considering this question
observed: 26 S.A. No. 61 of 2004
“If a plea is not specifically made and yet it is covered
by an issue by implication, and the parties knew that
the said plea was involved in the trial, then the mere
fact that the plea was not expressly taken in the
pleadings, would not necessarily disentitle a party
from relying upon it if it is satisfactorily proved by
evidence. The general rule no doubt is that the relief
should be founded on pleadings made by the parties.
But where the substantial matters relating to the title
of both parties to the suit are touched, though
indirectly or even obscurely in the issues, and
evidence has been led about them, then the argument
that a particular matter was not expressly taken in the
pleadings would be purely formal and technical and
cannot succeed in every case. What the court has to
consider in dealing with such an objection is: did the
parties know that the matter in question was involved
in the trial, and did they lead evidence about it? If it
appears that the parties did not know that the matter
was in issue at the trial and one of them has had no
opportunity to lead evidence in respect of it, that
undoubtedly would be a different matter. To allow one
party to rely upon a matter in respect of which the
other party did not lead evidence and has had no
opportunity to lead evidence, would introduce
considerations of prejudice, and in doing justice to one
party, the court cannot do injustice to another.”
Thus, the view taken by Their Lordships clearly suggest that
if the substance of the pleadings is sufficient to indicate the issue
involve and the adversary knew the cause and issue involved and
proceeded with the trial and adduced evidence to contradict the
stand that can well be raised in the appeal.
In the case at hand, the appellants have sought for
protection under Section 53A of the Transfer of Property Act and,
accordingly, substantial question of law to this effect has also
been framed. Protection contained under Section 53A of the
Transfer of Property Act deals with mixed question of facts as well
as law. So far 'fact' part is concerned, the appellants have clearly
pleaded that they have been enjoying peaceful possession over the
suit property after they acquired the same from the year 1975 i.e.
the date of execution of Sale Deed by Firangi Mahto in favour of
Chandrakant Singh (father of defendant no. 1). If possession of
the appellants is not considered from the year 1975, the admitted
facts available on record is that possession of defendants have
well been recognized since the year 1979 by Sitaram Agarwall and
Bajrang Agarwalla, the two brothers (both sons of Ram Kumar
Das Agarwalla). Acknowledging possession of defendants,
Agreement for Sale dated 13.02.1979 was executed by aforesaid
two brothers - Sitaram Agarwalla and Bajrang Agarwalla in
favour of defendant no. 1, it was contended by counsel for the
plaintiffs that aforesaid Agreement dated 13.02.1979 lost its legal
value when no suit for specific performance of contract was filed
within the period of limitation.
15. I have gone through the findings of Courts below and both
the Courts have considered the issue in favour of plaintiffs. It is
true that no suit for specific performance of contract to implement
Agreement dated 13.02.1979 was filed by the defendant but then
the document is the proof that they acquired possession by way of
part performance of the contract. In this context, Judgment in the
case of Shrimant Shamrao Suryavanshi V. Pralhad Bhairoba
Suryavanshi reported in (2002) 3 SCC 676 which has been
followed by the Apex Court in the Judgment in the case of
Mahadeva and others Vs. Tanabai reported in (2004) 5 SCC 88
is relevant and it is relevant to quote Para-8 of the Judgment in
the case of Mahadeva (Supra).
“8. The Judgment of the High Court is based on a
question framed during the course of writing of the
judgment which is in departure from the two questions
of law on which the appeal was admitted for hearing.
The whole emphasis shifted from the core issues. Then,
the High Court has not discussed any law and has also
not assigned any reason, much less a satisfactory one,
for taking a view different from the one concurrently
taken by the two courts below. The singular reason
assigned by the High Court for denying the benefit of
Section 53-A of the TP Act is not a sound reason by itself
in view of the decision of this Court in Shrimant
Shamrao Suryavanshi v. Pralhad Bhairoba
Suryavanshi. This Court has held that merely because
the suit for specific performance at the instance of the
vendee has become barred by limitation that by itself is
not enough to deny the benefit of the plea of partperformance
of agreement of sale to the person in
possession.”
The possession of the appellants over the suit property thus
stood admitted from the date of first agreement dated 13.02.1979.
The Courts below have disbelieved Exhibits – F and G only
because the same were issued and sworn prior to the date of
Agreement to Sale dated 03.11.1983. But it is clear that Sitaram
Agarwalla and his brothers had issued money receipt, sworn
affidavit acknowledging payment and sale on 12.09.1983 and
then executed General Power of Attorney in favour of defendant
no. 2 empowering him to do all acts regarding schedule property.
Thereafter, on the basis of Exhibit-H, the defendant no. 2 had
executed an Agreement for Sale in favour of defendant no. 1 with
respect to suit property on 03.11.1983 and further referred earlier
agreement dated 13.02.1979. Reference of earlier agreement in
the subsequent Agreement for Sale executed by the Attorney does
not mean that earlier agreement was renewed. Even assuming it
to be correct, the fresh Agreement was executed in favour of
defendant no. 1 on 03.11.1983. It is not an incriminating
circumstance to disbelieve Exhibits-H, F and G if the same were
issued and sworn on the date on which the four brothers –
Sitaram Agarwalla and defendant nos. 5 to 7 had executed Power
of Attorney with respect to suit property in favour of defendant no.
2.
16. In view of the discussions made above, on the one hand
possession of appellants/ defendants over the suit property stood
confirmed whereas Gajanand Agarwalla and subsequent
purchasers i.e. Gurmukh Singh and plaintiffs have never come in
possession over the suit property and that is also apparent from
the evidence of P.W.-4. Under such circumstances, the appellants
are entitled for the protection contained under Section 53A of the
Transfer of Property Act and they cannot be evicted therefrom.
The appellants have also taken a plea of constructive notice
as given under Explanation – II of Section 3 of the Transfer of
Property Act. There should not be straight jacket formula that the
Deed of Conveyance which were earlier in time, shall prevail over
the Deed of Conveyance executed later. The Court has to look into
the facts and evidence available on record to decide as to who had
acquired a better title if two Title Deeds are available. The Courts
below have decided that the Sale Deed dated 11.10.1984 is later
in time and hence that will not prevail against the Sale Deed
executed in favour of the predecessor-in-interest of the plaintiffs
i.e. 12.07.1984. The documents and evidence available on record
indicates that Sitaram Agarwalla and his brothers, Gajanand
Agarwalla Gurmukh Singh and even the plaintiffs are resident of
same vicinity and they all are having their residence nearby to the
disputed property. They have not inquired from the defendants at
any point of time before the transaction made in their favour from
the defendants as to under what capacity or authority they are
occupying the suit premises.
17. Learned counsel for the plaintiffs in this regard has relied
upon the Judgment reported in AIR 1987 Patna, Page-5 but the
facts in the case at hand are different. The appellants were not
occupying smaller portion of the property rather they were in
occupation and possession of Plot No. 151. Sitaram Agarwalla and
his three brothers had executed single Sale Deed pertaining to
Plot Nos. 151, 152 and 153 in favour of Gajanand Agarwalla. All
the three plots were having their different identity which also
reveal from the fact that Plot No. 153 was recorded in the name of
Purni Devi and, therefore, Gajanand Agarwalla got the Sale Deed
executed by Purni Devi in his favour pertaining to Plot No. 153.
Since the plaintiffs did not make enquiry about the authority
under which the appellants were occupying their possession over
the suit property, they cannot be considered bonafide purchaser.
For reference, Explanation-II of Section 3 of the Transfer of
Property Act is being given hereunder:-30 S.A. No. 61 of 2004
“Explanation – III. – A person shall be deemed to have
had notice of any fact if his agent acquires notice
thereof whilst acting on his behalf in the course of
business to which that fact is material:
Provided that, if the agent fraudulently conceals the
fact, the principal shall not be charged with notice
thereof as against any person who was a party to or
otherwise cognizant of the fraud.”
The plaintiffs themselves have proved Khatian (Exhibits-9,
9/A and 9/B. In Exhibit-9, under Khata No. 413, the land is
recorded in the name of Anabad Bihar Sarkar but against the Plot
Nos. 151 and 152, illegal possession of Sitaram and against plot
no. 153, possession of Purni Devi has been recorded but the
plaintiffs did not make State of Bihar a party to the suit.
Again it is observed that the documents brought on record
by parties concerned have not properly been appreciated and both
the courts misconstrued the documents in arriving at the
conclusion.
18. In the result, in view of the submissions advanced by the
appellants and discussion made above, this Second Appeal is
allowed and Judgement dated 24.11.2003, Decree dated
15.12.2003, passed and signed by 1st Additional District District
Judge, Singhbhum East at Jamshedpur in Title Appeal No. 4 of
2000 and the Judgement dated 14.10.1999 and Decree dated
27.11.1999, passed and signed by learned Munsif in connection
with Title Suit No. 56 of 1996 are hereby set aside and the Title
Suit No. 56 of 1996 brought by the plaintiffs is considered to be
dismissed with costs.
(D.N. Upadhyay, J.)
Jharkhand High Court
Ranchi. Dated 05 /08/2016
protection under Section 53A of the Transfer of Property Act and,
accordingly, substantial question of law to this effect has also
been framed. Protection contained under Section 53A of the
Transfer of Property Act deals with mixed question of facts as well
as law. So far 'fact' part is concerned, the appellants have clearly
pleaded that they have been enjoying peaceful possession over the
suit property after they acquired the same from the year 1975 i.e.
the date of execution of Sale Deed by Firangi Mahto in favour of
Chandrakant Singh (father of defendant no. 1). If possession of
the appellants is not considered from the year 1975, the admitted
facts available on record is that possession of defendants have
well been recognized since the year 1979 by Sitaram Agarwall and
Bajrang Agarwalla, the two brothers (both sons of Ram Kumar
Das Agarwalla). Acknowledging possession of defendants,
Agreement for Sale dated 13.02.1979 was executed by aforesaid
two brothers - Sitaram Agarwalla and Bajrang Agarwalla in
favour of defendant no. 1, it was contended by counsel for the
plaintiffs that aforesaid Agreement dated 13.02.1979 lost its legal
value when no suit for specific performance of contract was filed
within the period of limitation.
15. I have gone through the findings of Courts below and both
the Courts have considered the issue in favour of plaintiffs. It is
true that no suit for specific performance of contract to implement
Agreement dated 13.02.1979 was filed by the defendant but then
the document is the proof that they acquired possession by way of
part performance of the contract. In this context, Judgment in the
case of Shrimant Shamrao Suryavanshi V. Pralhad Bhairoba
Suryavanshi reported in (2002) 3 SCC 676 which has been
followed by the Apex Court in the Judgment in the case of
Mahadeva and others Vs. Tanabai reported in (2004) 5 SCC 88
is relevant and it is relevant to quote Para-8 of the Judgment in
the case of Mahadeva (Supra).
“8. The Judgment of the High Court is based on a
question framed during the course of writing of the
judgment which is in departure from the two questions
of law on which the appeal was admitted for hearing.
The whole emphasis shifted from the core issues. Then,
the High Court has not discussed any law and has also
not assigned any reason, much less a satisfactory one,
for taking a view different from the one concurrently
taken by the two courts below. The singular reason
assigned by the High Court for denying the benefit of
Section 53-A of the TP Act is not a sound reason by itself
in view of the decision of this Court in Shrimant
Shamrao Suryavanshi v. Pralhad Bhairoba
Suryavanshi. This Court has held that merely because
the suit for specific performance at the instance of the
vendee has become barred by limitation that by itself is
not enough to deny the benefit of the plea of partperformance
of agreement of sale to the person in
possession.”
The possession of the appellants over the suit property thus
stood admitted from the date of first agreement dated 13.02.1979.
The Courts below have disbelieved Exhibits – F and G only
because the same were issued and sworn prior to the date of
Agreement to Sale dated 03.11.1983. But it is clear that Sitaram
Agarwalla and his brothers had issued money receipt, sworn
affidavit acknowledging payment and sale on 12.09.1983 and
then executed General Power of Attorney in favour of defendant
no. 2 empowering him to do all acts regarding schedule property.
Thereafter, on the basis of Exhibit-H, the defendant no. 2 had
executed an Agreement for Sale in favour of defendant no. 1 with
respect to suit property on 03.11.1983 and further referred earlier
agreement dated 13.02.1979. Reference of earlier agreement in
the subsequent Agreement for Sale executed by the Attorney does
not mean that earlier agreement was renewed. Even assuming it
to be correct, the fresh Agreement was executed in favour of
defendant no. 1 on 03.11.1983. It is not an incriminating
circumstance to disbelieve Exhibits-H, F and G if the same were
issued and sworn on the date on which the four brothers –
Sitaram Agarwalla and defendant nos. 5 to 7 had executed Power
of Attorney with respect to suit property in favour of defendant no.
2.
16. In view of the discussions made above, on the one hand
possession of appellants/ defendants over the suit property stood
confirmed whereas Gajanand Agarwalla and subsequent
purchasers i.e. Gurmukh Singh and plaintiffs have never come in
possession over the suit property and that is also apparent from
the evidence of P.W.-4. Under such circumstances, the appellants
are entitled for the protection contained under Section 53A of the
Transfer of Property Act and they cannot be evicted therefrom. JHARKHAND HIGH COURT
SECOND APPEAL NO. 61 of 2004
Smt. Gita Devi
V
Mrs. Sobha Agarwalla,
PRESENT
MR. JUSTICE D.N. UPADHYAY
PRONOUNCED ON 05/08/2016.
Citation: AIR 2017 Jharkhand 24
D.N. Upadhyay, J This Second Appeal has been preferred by
defendants/appellants against the Judgement dated 24.11.2003,
Decree dated 15.12.2003, passed and signed by 1st Additional
District District Judge, Singhbhum East at Jamshedpur in Title
Appeal No. 4 of 2000 whereby Judgement dated 14.10.1999 and
Decree dated 27.11.1999, passed and signed by learned Munsif in
connection with Title Suit No. 56 of 1996 has been affirmed.
2. This Appeal has been admitted on 12.08.2004 after
formulating following substantial questions of law:-
(i) Whether the Courts below have committed errors of record in
arriving at the finding particularly in dealing with Ext. H, Ext. 3 and
Ext. 3/A and some other documents on the record?
(ii) Whether the appellants' possession over the suit land should
have been dealt with and decided in view of the provisions of
Section 53A of the Transfer of Property Act?
3. Mrs. Sobha Agarwalla, wife of Milchand Agarwalla and Mrs.
Sarita Agarwalla, wife of Sri Satyanarayan Agarwalla (Respondent
Nos. 1 and 2) were the plaintiffs in the Trial Court whereas3 S.A. No. 61 of 2004
proforma respondent nos. 3 to 9 here in this Second Appeal were
arrayed as proforma defendants. The appellant no. 1 was
defendant no. 1 and her husband Late Lall Dhari Prasad (then
alive) was impleaded as defendant no. 2. Since Lall Dhari Prasad
(defendant no. 2) has died, the legal heirs and successors have
been substituted and they are appellant nos. 2 to 6. For better
understanding the appellants will be referred as defendants
whereas respondent nos. 1 and 2 shall be addressed as plaintiffs.
4. That the plaintiffs namely Mrs. Sobha Agarwalla and Mrs.
Sarita Agarwalla filed Title Suit No. 56/1996 in the Court of
Munsif at Jamshedpur for declaration of their title and also for
recovery of possession over the suit property described in
Schedule-A of the plaint after evicting the defendant nos. 1 and 2
from the suit premises and also to declare the unregistered
Agreement dated 03.11.1983 and the registered Sale Deed dated
11.10.1984 false and manufactured document.
The case of the plaintiffs, in short, is that a piece of land
measuring more or less 48’ x 12’ alongwith a Khapraposh house
standing on Holding No. 520 being portion of R.S. Plot No. 1333
under R.S. Khata No. 401, Mauza – Jugsalai, corresponding to
present Survey Plot No. 151 and present Survey Khata No. 413,
previously belonged to Ram Kumar Das Agarwalla and after his
death, it devolved upon his sons Sitaram Agarwalla, Sagarmal
Agarwalla, Bajrang Lal Agarwalla and Ram Awtar Agarwalla. The
land was recorded in the name of Ram Kumar Das Agarwalla in
the Revisional Survey of the year 1937 and in the present Survey,
the possession over the said land has been recorded in the name
of his four sons since 1938.
On 13.02.1979, Sitaram Agarwalla and his brother Bajrang
Lal Agarwalla only, in place of their four brothers, entered into an
Agreement to Sale a piece of land measuring 48’ x 12’ with Pucca
khapraposh House and all other structures thereon being New
Plot No. 151, Mauza – Jugsalai, described in Schedule – A of the
plaint with defendant no. 1 for a consideration of Rs.3,500/- out4 S.A. No. 61 of 2004
of which the defendant no. 1 paid an advance of Rs.2,500/- on
the same day of the said Agreement to Sale. It was agreed between
defendant no. 1 and defendant no. 6 and his brother Sitaram
Agarwalla (since deceased) that they would execute and register
the Sale Deed with respect to Schedule-A properties in favour of
defendant no. 1 within a fortnight from the date of obtaining
permission. It was further agreed that the Sale is to be
completed within five months from the date of Agreement dated
13.02.1979. It was further agreed that in case the permission is
not obtained then the defendant no. 6 and his brother Sitaram
Agarwalla will refund the advance amount to the defendant no. 1
failing which the defendant no. 1 shall be at liberty to realize the
same through process of the Court. As a matter of fact it has
subsequently been held by the Hon’ble Supreme Court that for
Homestead Land, no permission under the Urban Land (Ceiling
and Regulation) Act is necessary. In spite of repeated demands by
the defendant no. 6and his brother Sitaram Agarwalla, the
defendant no. 1 did not pay the balance amount nor she got the
Sale Deed executed with respect to Schedule-A land. As the Sale
deed was not executed within the period of limitation of the
Agreement for Sale dated 13.02.1979, the defendant nos. 5 to 7
and their brother Sitaram Agarwalla executed a registered Sale
Deed on 12.07.1984 in favour of Gajanand Agarwalla (defendant
no. 3) with respect to land and structure standing thereon
pertaining to present Survey Plot Nos. 151, 152 and 153, under
the Present Survey Khata No. 413, Mauza – Jugsalai on receipt of
full consideration amount of Rs.9,500/-.
The further case of the plaintiff is that possession of Plot No.
153 was recorded in the name of Purni Devi in the Settlement
Record. Accordingly, she had sold the land of Plot No. 153 to
defendant No. 3 – Gajanand Agarwalla and delivered the
possession of the same. The said Plot was the subject matter of
C.W.J.C. No. 484 of 1973. The said Plot was included in the Sale
Deed dated 12.07.1984 and the purchaser Gajanand Agarwalla5 S.A. No. 61 of 2004
was put in possession of the entire demised land. On 11.10.1984,
the defendant no. 2 knowing full well that the defendantnos. 5 to
7 and his brother Sitaram Agarwalla had already sold and
executed a registered Sale Deed in favour of defendant no. 3 with
respect to Plot Nos. 151, 152 and 153 under Khata No. 413,
Mauza- Jugsalai, fraudulently executed and got a Sale Deed
registered in favour of his wife Gita Devi (defendant no. 1) with
respect to Plot No. 151 under Khata No. 413, Mauza – Jugsalai,
measuring an area of 0.00.52 Hec. (approximately – one katha) for
a consideration of Rs.3,500/- falsely stating therein that in
pursuance of an agreement dated 13.02.1979, the consideration
of Rs.3,500/- as agreed between the parties, the purchaser paid
on 11.10.1984 to the vendor a sum of Rs.3,500/-and the receipt
whereof is acknowledged by the Vendors.
On 12.09.1983 the defendant no. 2 was appointed as
Attorney on behalf of the defendant nos. 5 to 7 and their brother
Sitaram Agarwalla by registered Deed of General Power of
Attorney to look after and manage the properties in Ward No. 10,
Holding No. 520, B/78, Kutchery Mohalla, Jugsalai, Jamshedpur
and to sell to anybody as he things just and proper. This does not
show that which of the property is to be managed by the Attorney.
After the lapse of four years and eight months of the alleged
Agreement to Sale, dated 13.02.1979, the defendant no. 2 had
executed Deed of Agreement to Sale against the Schedule – A
properties in favour of his wife Gita Devi (defendant no. 1) on
03.11.1983 wherein it is stated that the defendant no. 1 has paid
the entire consideration amount of Rs.3,500/- and that it was
paid to the defendant no. 2. An affidavit to that effect was sworn
on 12.09.1983. The Agreement to Sale dated 03.11.1983, Affidavit
dated 12.09.1983 and the Sale Deed dated 11.10.1984 are forged
and manufactured documents. There is every reason to believe
that after the Sale Deed dated 12.07.1984, the defendant no. 2
has managed to manufacture the above referred documents. It
will be found from the documents referred to above as that the
Agreement was executed on 03.11.1983 while the affidavit was
alleged to have been sworn to this effect on 12.09.1983 and
ridiculously the Sale Deed dated 11.10.1984 recites that the
payment was made on 11.10.1984. While in possession Gajanand
Agarwalla (defendant no. 3) sold the aforesaid land in Plot Nos.
151, 152 and 153 under Present Survey Khata No. 413 in mauza
– Jugsalai bearing Municipal Holding Nos. 78 and 79, Municipal
Ward No. 10 to Gurmukh Singh (defendant No. 4) on receipt of
payment of Rs.49,000/- by means of a registered Sale Deed dated
09.10.1991 and delivered possession of the same. While in such
possession, said Gurumukh Singh sold the said land to the
plaintiffs jointly through a registered Sale Deed dated 31.01.1995
on receipt of full consideration money of Rs.50,000/- and
delivered possession of the same. The name of the plaintiffs have
been mutated and they are paying rents to the State of Bihar and
Tax to the Jugsalai Municipality. Defendant no. 1 – Gita Devi was
previously a monthly tenant under Sitaram Agarwalla and his
brothers with respect to Schedule-A property and in spite of
repeated demands by the plaintiffs, the defendant no. 1 has not
vacated the same and on the contrary she is now claiming
ownership on the suit property by virtue of Sale Deed dated
11.10.1984.
5. The case of the defendant nos. 1 and 2, in short, is that the
suit is not maintainable and is bad for non-joinder of necessary
parties. The State of Bihar is the necessary party to the suit. In
the present Survey, the suit land has been recorded in Khata of
Anabad Bihar Sarkar and Awaidh Dakhal of the four sons of Late
Ram Kumar Das has been recorded in the present Khatian. In fact
these defendants and father of defendant no. 1 – Chandra Kant
Singh have been in possession of the suit land since 1975 and
prior to that it was in possession of Firangi Mahto. These
defendants had purchased the same from Firangi Mahto through
registered Deed of Sale dated 11.02.1975 executed in the name of
Chandra Kant Singh, who was the father of defendant no. 1.7
Therefore, the entry showing possession of Sitaram Agarwalla and
others in the Khatian was wrong and incorrect. It could have only
been due to the simplicity and ignorance of Firangi Mahto, who
had constructed the house. The further constructions were made
by these defendants. Firangi Mahto contested the right and title of
Sitaram Das and others in the Tanaja Case No. 26/1970. Firangi
mahto has also paid Municipal Tax and Water Charges in the
jugslai Municipality. After purchase, the defendant no. 2 had also
paid water charge and Municipal Taxes in the name of Firangi
Mahto. In Mauza - Jugsalai, a place is being known as Firangi
Chowk. Defendant no. 1 had also submitted applications before
the Deputy Commissioner and Special Officer, Jugsalai
Municipality. After about four years of execution of Sale Deed
dated 11.02.1975, Sitaram Agarwalla came to the defendants and
represented to them that the land concerned belonged to them
and so they should get a Sale Deed executed through him and his
brothers failing which he would put them in trouble. The
defendants, who are the teachers, came to know that Sitaram
Agarwalla and his brothers are great litigant and so agreed to the
said proposal. After some negotiations, the agreement for Sale
dated 13.02.1979 was executed by Sitaram Agarwall and Bajrang
lal Khirwal as the other two brothers were not available on that
date. It was agreed that Sitaram Agarwall and his brothers would
execute a registered Sale Deed in respect of Homestead Land
measuring 48’ x 12’ alongwith Khapraposh House and other
structures at Holding No. 520, Ward No. 10, Old Plot No. 1333,
New Plot No. 151, Kutchery Mohalla, jugsalai, Jamshedpur within
fortnight from the date of obtaining permission. A tentative period
of five months was also mentioned. These defendants were given
liberty to realize the earnest money of Rs.2,500/- if Sale Deed is
not executed within time stipulated. These defendants were not
aware of any ruling of the Supreme Court. It is wrong to say that
demands were made by defendant no. 6 and Sitaram Agarwalla,
but defendant no. 1 failed to pay the balance amount of
Rs.1,000/- and so the Sale Deed was not executed with respect to
Schedule-A land. On the contrary, Sitaram Agarwalla was always
assuring these defendants that he would be able to obtain the
necessary permission sooner or later. The Sale Deed dated
12.07.1984 executed in favour of Gajanand Agarwalla was a
collusive one. It was also possible that the figure of 151 (Plot No.)
was introduced into the said Sale Deed without the knowledge of
the executants and they did not pay heed to it while signing the
documents. Practically these defendants as well as defendant no.
3 – Gajanand Agarwalla were sailing in the same boat with respect
to registered Sale Deed dated 11.02.1975 and 29.05.1973. The
Sale Deed dated 29.05.1973 was executed by Purni Devi with
respect to Homestead Land with country tiled Pucca House in Plot
No. 153, Kutchery Mohalla, jugsalai, Jamshedpur for a sum of
Rs.7,500/-. Through the said Sale Deed, the sold property was
delivered by the vendor and the landlord was State of Bihar where
the purchaser would have his land mutated. Similarly, in the Sale
Deed dated 11.02.1975, possession was delivered by the vendor to
the purchaser and the purchaser would get his name mutated in
the office of the State of Bihar and pay rent for the same. The
defendant no. 3 was never put in possession of the entire demised
land as Sitaram Agarwalla and his brothers, themselves were not
in possession over plot no. 151, Holding No. 520. They could not
have and did not put Gajanand Agarwalla in possession. Sitaram
Agarwalla and his brothers had executed a General Power of
Attorney in favour of defendant no. 3 – Lall Dhari Prasad on
12.09.1983 and also issued Money Receipt and sworn affidavit by
which they acknowledged the receipt of consideration
amount.Since Sitaram Agarwalla and his three brothers
(defendant nos. 5 to 7) had received the full consideration amount
against sale of Plot No. 151 with house and structure, the General
Power of Attorney Holder Laldhari Prasad had right to sale the
property in question to anybody to whom he thought fit and
proper on their behalf. In view of the said Power of Attorney, an
Agreement for Sale dated 03.11.1983 was executed by defendant
no. 2 in favour of defendant no. 1. According to the said
Agreement, the sale was to be completed within a year and the
parties were to obtain the necessary permission under the Urban
Land (Ceiling and Regulation) Act, 1976. The defendant no. 1 had
been put in complete physical possession of the said property. All
these developments were fully known to the defendant no. 3 –
Gajanand Agarwalla as he was a neighbor of the defendant nos. 1
and 2 and had always discussions with them about the progress
of the purchased property. Permission for sale was obtained from
competent authority by letter no. 319, dated 29.05.1984 and so
the Sale Deed was executed and registered on 11.10.1984. The
registered Sale Deed dated 11.10.1984, Agreement for Sale dated
03.11.1983, registered General Power of Attorney, Money Receipt
and Affidavit dated 12.09.1983 are not manufactured documents
rather they are genuine and valid documents.
On the other hand, the Sale Deed dated 09.10.1991 and
11.01.1995 are all collusive and manufactured documents in
order to deprive these defendants of their house. The further case
of the defendant is that State of Bihar which has obtained a
Decree dated 08.06.1995 in Revision Case No. 01/1994 – 95 in
the Court of learned Reform Deputy Collector, Jamshedpur in
respect of all such so called lands of Late Ram Kumar Das and his
sons Sitaram Agarwalla. Hence, the State of Bihar is a necessary
party to the suit. These defendants have applied for settlement
and mutation of their names by virtue of long possession and on
the basis of their documents which is pending uptil now. The
mutation in favour of the plaintiffs is wrong and inoperative in
view of the said order dated 08.06.1995 passed in Revision Case
No. 01/1994 – 95. The defendant no. 1 was not a monthly tenant
under Sitaram Agarwalla and his brothers with respect to
Schedule-A property. There was no question of vacating the suit
property on anybody’s demand nor ay such demand was made.
These defendants have also perfected their right, title and interest
to the suit land by adverse possession by remaining in continuous
possession since at least 1975 against all and sundry including
plaintiff and his predecessors-in-interest. The plaintiffs have no
right, title over the suit land and, accordingly, they are not
entitled to have a declaration that the Agreement for Sale dated
03.11.1983 and the Sale Deed dated 11.10.1984 are
manufactured documents. All the proforma defendants are in
collusion with each other. It is false to say that the plaintiffs
acquired knowledge about the said documents after 31.01.1995.
They have not disclosed the source of their knowledge and as
such, the suit is liable to be dismissed.
6. The learned Trial Court proceeded with the trial after
framing issues on the basis of pleadings. The plaintiffs as well as
defendants adduced oral and documentary evidence and after
considering the same the Suit filed by the plaintiffs was decreed.
The appellants then preferred Title Appeal No. 4 of 2000 which
stood dismissed from the Court of learned 1st Additinal District
Judge, Singhbhum East at Jamshedpur on 24.11.2003 and the
Judgment and Decree passed by the Trial Court have been
confirmed and hence this Second Appeal to decide the substantial
question of law formulated above.
7. It was submitted by counsel for the appellants that duty of
Court is to impart justice and it is to be ensured that no injustice
should occur by giving incorrect findings by misappreciating the
facts and law as well as procedure. The scope in the Second
Appeal is limited and the general rule is that the High Court will
not interfere with the concurrent findings of the Court below but
it is not an absolute rule. Some of the well recognised exceptions
are placed hereunder:-
(i) the courts below has ignored material evidence or acted on no
evidence;
(ii) the courts have drawn wrong inference from true facts by
applying the law erroneously.
(iii) the courts have wrongly cast the burden of proof or the courts
have transgressed jurisdiction by deciding the issues which
are neither framed nor evidence to the effect was induced.
Often it is seen that the courts became enthusiastic and grant
reliefs which were not even sought for.
It was submitted, if the concurrent findings of the Courts
below suffers with great infirmity, gross illegality and with
perverse findings, the High Court in the Second Appeal shall not
remain silent to promote injustice. The evidence and facts
appearing in the case at hand were not considered by the Courts
below in its true perspective and both the Courts have committed
gross error in considering the documents brought on record by
the parties. That is the reason that aforesaid two substantial
questions of law have been framed to decide the appeal.
The first question has been framed on the point “how the
courts below have committed errors of record in arriving at the
finding particularly in dealing with Ext. H, Ext. 3 & Ext. 3/A and
some other documents on record?”
Ext.-3 is the copy of assessment register of Jugsalai
Municipality pertaining to portion of new Holding No. 79 (Old
Holding No. 520-B). The name of occupier is Gajanand Agarwalla
(defendant no. 3) son of Matadin Agarwalla. The Certificate given
by the Municipal authority indicates that it was an assessment of
Holding No. 79 Ward No. 10 for the period 1976 – 77. Exhibit –
3/A is again copy of assessment register of Jugsalai Municipality
pertaining to Holding No. - New 78, Old 520B, name of occupier –
Gajanand Agarwalla, son of Matadin Agarwalla (Defendant No. 3).
According to Certificate it was an assessment of Holding No. 78,
Ward No. 10, Jugsalai Municipality for the periods 1976 – 77.
8. It is an admitted case of the plaintiffs that Gajanand
Agarwalla purchased the schedule property along with Plot Nos.
152 – 153 on 12.07.1984 from Sita Ram Agarwalla and his three
brothers (Defendant Nos. 5 to Defendant No. 7) but the
assessment of aforesaid holding were made in the name of
Gajanand Agarwalla much prior to the date of purchase i.e. for
the year 1976 – 77. Exhibits – 3 and 3/A have been proved by
Ram Tahal Rai (P.W.-4), the Tax Collector,, Jugsalay Nagar Palika.
In his cross examination, this witness has admitted that aforesaid
holding were never assessed in the name of Gurmukh Singh
(Defendant No. 4). In paragraph-14 he says that he had no
knowledge as to who was occupying Holding No. 78 prior to
Gajanand Agarwalla. In the next sentence he says that Gajanand
Agarwalla had never occupied Holding No. 78 because he was
having his separate place of residence. This witness has also
disclosed the Holding Number of Gajanand as 131.
Further deposition of this witness is that he had been seeing
Gita Devi (defendant no. 1) occupying and residing in Holding No.
78. How these two documents have been considered illegally
without being supported by the facts entered in those documents
by the trial court in paragraph-10 of the Judgment for holding
that the appellants were tenant under Gajanand Agarwalla is
nothing but an error of record and absolutely a wrong finding.
Admittedly, prior to July, 1984, Gajanand Agarwalla was not
having right, title, interest and possession over the New Holding
No. 78 and 79 but it is indicated that owner of the Holding was
Gajanand Agarwalla and he was having four tenants in those two
Holdings. Needless to mention that name of appellants are not
appearing in Exhibit-3 or 3/A as that of tenant. The illegality
committed by the Trial Court has been affirmed by the first
appellate court and the first appellate court being the last court of
facts, did not bother to examine the evidence and documents
available on record. Thus, it is clear as to how both the Courts
have erred in considering Exhibits-3 and 3/A.
Exhibit-H is the registered Power of Attorney executed by
Sita Ram Agarwalla and his three brothers (Defendant Nos. 5 to 7)
on 12.09.1983 in favour of Lall Dhari Prasad (original defendant
no. 2) for looking after property in Ward No. 10, Holding No. 520-13 S.A. No. 61 of 2004
B/78, Kutchery Mohalla, Jugsalai, Jamshedpur. In paragraph-3
of the said Power of Attorney, the power to execute Sale Deed,
Agreement for Purchase or other documents necessary for the
aforesaid properties and register the Sale Deed as he deems fit,
have been given. The Trial Court in its Judgment has wrongly
considered that property for which General Power of Attorney was
given, was not described in the said document-H. As a matter of
fact, in Paragraph-1 of the Power of Attorney, it is well indicated
regarding which of the property, Power of Attorney was given to
defendant no. 2. The first appellate court in paragraph-10 of his
Judgment without appreciating the recital of Exhibit-H, has held
that the defendant no. 2 was not authorized to sale the property
and no such power was given to him. It is held “this goes to show
that Power of Attorney (Exhibit-H) given to defendant no. 2 by Sita
Ram Agarwalla and his brothers does not empower defendant no.
2 to enter into an agreement for sale or to execute a Sale Deed in
favour of any person (Para-10, Page-7).
It was submitted as to how negligently and carelessly both
the Courts dealt with Exhibits- 3, 3/A and H which led to great
injustice to the appellants and caused prejudice and loss. By
referring aforesaid evidence, documents and findings of both the
Courts, it was submitted that findings of both the Courts are
perverse and, therefore, the Judgments of both the Courts are
required to be viewed by this Court in the Second Appeal, both on
facts and also in law.
In this context the counsel for the appellants has referred
Judgment reported in (2008) 12 SCC 796 in which reference of
Judgment rendered in the case of Chunilal V. Mehta and Sons
Ltd. Vs. Century Spg. & Mfg. Co. Ltd. has been given in
paragraph-3. It was submitted that under first substantial
question of law, besides documents Exhibits-3, 3/A and H error
committed in appreciating other documents has also been
mentioned. The other documents are Exhibit-E, Agreement for
Sale dated 13.02.1979 executed by Sita Ram Agarwalla and14 S.A. No. 61 of 2004
Bajrang Agarwalla in favour of defendant no. 1 with respect to
Schedule property – Exhibit-E/1, Agreement dated 03.11.1983
executed by lawful Attorney Lall Dhari Prasad on behalf of Sita
Ram Agarwalla and his three borthers with respect to schedule
property, Exhibit-F – the money receipt for Rs.3,500/- issued by
Sita Ram Agarwalla and his three brothers (defendant nos. 5 to 7)
dated 12.09.1983, the affidavit – Exhibit-G sworn by Sita Ram
Agarwalla and his three brothers (defendant nos. 5 to 7) declaring
therein sale of holding no. 520-B/78 of Jugsalai Ward No. 10 in
favour of Smt. Gita Devi (defendant no. 1) and further
acknowledged receipt of Rs.3,500/- as consideration amount
against sale of said property and possession of Gita Devi was also
admitted.
10. The plaintiffs though averred in the plaint that aforesaid
documents are forged and manufactured but they have led no
evidence to this effect. The executant - Sita Ram Agarwalla and
his three brothers (defendant nos. 5 to 7) never stepped in witness
box nor filed written statement to support the contention of the
plaintiffs but the Courts below have suo motu held that the
aforesaid documents – Exhibits - F, G and H are forged and
manufactured documents. The plaintiffs have not sought for relief
for declaring aforesaid documents – Exhibits-F, G and H as forged
and fabricated and not binding on the plaintiffs or on their
predecessor-in-interest. Both the Courts below suo motu declared
Sale Deed (Exhibit-D) executed by Firangi Mahto in favour of
Chandrakant Singh (father of defendant no. 1) for a piece of
homestead land measuring 0-1-3 Katha and 3 Dhurs more or less
being portion of old survey plot no. 1333 corresponding to current
Survey Plot No. 151 in Mauja – Jugsalai, Thana No. 1161, P.S. -
Jugsalai, Pargana – Dhalbhum null and void ab initio.
By referring the findings of the Courts below and the
documents and evidence available on record, it was submitted
that in such circumstances it can well be held that findings of
both the Courts are perverse and for the ends of justice and also15 S.A. No. 61 of 2004
for arriving to a correct conclusion, even in the Second Appeal
this Court has jurisdiction to consider the fact. It is further
contended that interference with concurrent findings of trial court
and first appellate court by High Court in Second Appeal is
justified where there is perverse finding of fact. Reference has
been made to the Judgment in the case of Sebastiao Luis
Fernandes (Dead) Through LRS and others Vs. K.V.P. Shastri
(Dead) through LRS and others reported in (2013) 15 SCC 161.
11. In the context of second substantial question of law, it was
submitted that provisions contained under Section 53A of the
Transfer of Property Act deals with mixed question of fact as well
as law. The possession of the appellants over the suit property
has been admitted, if not from the year 1975, must be from the
year 1979 when Sita Ram Agarwalla and Bajrang Agarwalla
executed an agreement for sale in favour of defendant no. 1 for
the suit property. The evidence brought on record by the plaintiffs
(P.W.-4) further confirmed possession of appellants over the suit
premises. The evidence adduced by the plaintiffs conclusively
suggests that neither Gajanand Agarwalla nor his vendee
Gurmukh Singh nor plaintiffs had ever acquired possession over
the suit property. As per the evidence of P.W.-4, Gajanand
Agarwalla is having his house in Plot No. 131, Gurmukh Singh
(defendant no. 4) is also having separate accommodation in
different plots of course adjacent to these plots 151, 152 and 153.
The plaintiffs namely Mrs. Sobha Agarwalla and Mrs. Sarita
Agarwalla at no point of time acquired possession over the suit
property. Even if the defendant no. 1 did not file any suit for
specific performance against agreement dated 13.02.1979
(Exhibit-E), her possession in the suit property by way of part
performance, cannot be denied. By executing Exhibits – F and G,
Sitaram Agarwalla and his three brothers (Defendant nos. 5 to 7)
had again confirmed possession of the appellants over the suit
property. It is true that protection available to the appellants
under Section 53A of the Transfer of Property Act has not been16 S.A. No. 61 of 2004
specifically indicated in the written statement but then facts
brought on record, the documents and evidence, clearly suggests
that protection of Section 53A of Transfer of Property Act was
always available to the defendants/ appellants. In this context
learned counsel has relied upon the Judgment reported in
(i) (2002) 3 SCC 676;
(ii) (2004) 5 SCC 88;
(iii) (1969) 3 SCC 120;
(iv) (2004) 8 SCC 614;
(v) (2005) 12 SCC 164.
The appellants have further submitted that Sale Deed
executed by Sitaram Agarwalla and his three brothers (defendant
nos. 5 to 7) in favour of Gajanand Agarwalla in the month of July,
1984, the Sale Deed executed by Gajanand Agarwalla in favour of
Gurmukh Singh, Sale Deed executed by Gurmukh Singh in
favour of plaintiff in the year 1995 were nothing but paper
transaction and none of them ever came in possession over the
suit land. The Courts below ignoring the evidence available on
this aspect has considered the recital made in the aforesaid Sale
Deeds. The evidence led by plaintiffs do not indicate that the
appellants or their predecessor-in-interest had ever acquired
possession over the suit property. The learned counsel has further
referred Section 3 (Explanation – II) of the Transfer of Property Act
and submitted that plaintiffs and their predecessor-in-interest are
the resident of the same locality, even close to the suit land but
they never bothered to make enquiry as to in what capacity or
with what authority the appellants are enjoying their possession
over the suit property. The learned Courts below have not dealt
with this point in right perspective. The Trial Court as well as
lower appellate court have further ignored and misconstrued the
documents proved by the contesting respondents (plaintiffs). The
Khatian relating to suit property indicates that the property
mentioned in the Sale Deed of plaintiffs are Anabad Bihar Sarkar
and Awaidh Dakhal of Sitaram Agarwal and his brothers has been
mentioned.
A copy of Khatian proved by plaintiffs is sufficient to
suggests that the State of Bihar (Now Jharkhand) was the
necessary party and in absence of impleading necessary party, the
suit was liable to be dismissed.
12. Learned counsel appearing for contesting respondents/
plaintiffs has vehemently opposed the arguments advanced by
counsel for the appellants. He has submitted that there should be
no third trial in Second Appeal and such practice if done has been
depricated by the Apex Court in catena of Judgment.
In course of arguments learned counsel for the plaintiffs has
not given much stress on Exhibits – 3 and 3/A and more or less
admitted that aforesaid two documents were the copies of
assessment register by which the Tax Collector of Jugsalai
Municipality had assessed the Holding Tax of Holding Nos. 78 and
79. It was contended that Gajanand Agarwalla had purchased
portion of land pertaining to R.S. Plot No. 1333 and after that he
was in possession of those lands and, therefore, his name is
appearing in column of owner/ occupier in Exhibits – 3 and 3/A.
The learned counsel has tried to make it clear that Exhibit-D-3
relates to portion of R.S. Plot No. 1333 purchased by Gajanand
Agarwalla from Purni Devi in the year 1973 and, therefore, name
of Gajanand Agarwalla is appearing in Exhibits – 3 and 3/A. In
para-9 of the Judgment of the Trial Court aforesaid fact is
mentioned. The learned counsel has fairly conceded that Exhibits-
3 and 3/A do not confer any right, title or interest on either of the
parties for the purpose of deciding the suit.
So far Exhibit-H is concerned, it was contended that ExhibitH
– said Power of Attorney does not empower defendant no. 2 to
enter into agreement for sale or execute Sale Deed, which is
apparent from paragraph-11 of the Judgment of the lower
appellate court and it can easily be gathered that lower appellate
court has considered that even if by virtue of Power of Attorney
i.e. Exhibit-H, defendant no. 2 has sold the property in favour of
his wife (defendant no. 1) by registered Sale Deed dated
11.10.1984 (Exhibit – D/1) would not confer a good title. It was
pointed out that prior to alleged Sale Deed dated 11.10.1984 the
original owners have already executed and registered Sale Deed in
favour of Gajanand Agarwalla on 12.07.1984 vide Exhibit 2/b. It
was contended that the defendants never filed suit for specific
performance making the original landlords Sitaram Agarwalla and
his three brothers and also the transferee Gajanand Agarwalla
party. Instead of taking recourse to the provisions contained
under Specific Relief Act, the defendant no. 2 had created a Sale
Deed in favour of his wife – Defendant no. 1 on 11.10.1984.
The defendant no. 2 was not given power through Exhibit –
H to renew the earlier Agreement alleged to have been executed by
Sita Ram Agarwalla and Bajrang Agarwalla in favour of defendant
no. 1 – Gita Devi in the year 1979. It was submitted that
Agreement for Sale cannot automatically create any right, title
and interest of the party over the property in question. It only
gives a right to file suit for specific performance of agreement
which admittedly was not done by defendant nos. 1 and 2. Since
the deed of conveyance in favour of Gajanand Agarwalla
(predecessor-in-interest of the Plaintiffs) was executed on
12.07.1984, the right, title and interest transferred by that
document shall prevail against another Sale Deed executed by
defendant no. 2 in favour of defendant no. 1 on 11.10.1984. It
was submitted that execution of Sale Deed on 12.07.1984 by
Sitaram Agarwalla and his three brothers in favour of Gajanand
Agarwalla was sufficient to draw inference that the Power of
Attorney, if any, executed for the suit property in favour of
defendant no. 2 by Sitaram Agarwalla and his three brothers
stood revoked. On the date of execution of Sale Deed by defendant
no. 2 in favour of defendant no. 1 i.e. 11.10.1984, the disputed
property owned and possessed by executants of Power of Attorney19 S.A. No. 61 of 2004
was ceased to be possessed by them because they have
transferred their right, title and interest by executing Deed of
Conveyance in favour of Gajanand Agarwalla. In this context
learned counsel has placed reliance on the Judgment in the case
of Deb Ratan Biswas and others V. Most. Anand Moyi Devi and
others reported in AIR 2011 SC 1653.
Learned counsel has further argued that in view of Section
207 of the Indian Contract Act, 1872, it could easily be
ascertained that Power of Attorney has impliedly been revoked by
the conduct of original owners.
The plaintiffs have further contended that after considering
the documentary and oral evidence the Courts below have
recorded a finding in paragraph-27 of the trial court Judgment
that defendant nos. 1 and 2 did not able to prove that the
plaintiffs or their predecessor-in-interest had or have any
knowledge about the agreement of sale. Admitted case of the
defendant is that they did not file any suit for specific
performance of contract against the agreement so executed in
favour of defendant no. 1 and, therefore, the plaintiffs have
acquired the suit property in good faith and without having any
knowledge of prior agreement, if any and, therefore, they are the
bonafide purchaser of the suit property. So far as Explanation-II
of Sub Section (3) of Transfer of Property Act is concerned, it is
also dealt with in that paragraph-27 of the Judgment of the Trial
Court and plaintiffs have placed reliance on the Judgments in the
cases of Md. Mustafa Vs. Haji Md. Isa and others [AIR 1987
Pat. 5], Kesharmull Agarwala Vs. Rajendra Prasad and others
[1968(16) BLJR 28], Hari Charan Kuar and others Vs. Kaula
Rai and others [AIR 1917 Patna 478].
To answer the second substantial question of law, it was
vehemently argued that the appellants are debarred from claiming
benefits of Section 53A of the Transfer of Property Act because no
such plea was taken by them in their written statement and it
was never appearing in their pleading. It can be easily gathered
that there was no pleading so far as readiness and willingness is
concerned in pursuant to the agreement for sale rather
defendants are raising their claim on the basis of purchase and
she has been claiming to be owners of the property.
By referring Judgment in the case of Sham Lal Vs. Smt.
Mathi [AIR 2002 HP 66] (Relevant Paragraphs 18 and 19),
Ram Kumar Agarwal and another Vs. Thawar Das (Dead)
through Lrs. [(1999) 7 SCC 303] (relevant para-8) it was
submitted that Hon’ble Supreme Court has held that the plea of
Section 53A of the Transfer of Property Act raises a mixed
question of law and fact and, therefore, cannot be permitted to be
urged for the first time at the stage of second appeal that part
performance or willingness to perform is part of the contract and
it is one of the essential ingredients required to be taken while
plea of part performance is taken. In absence of such pleading in
written statement, the appellants are not entitled to have benefits
of protection of Section 53A of the Transfer of Property act at the
stage of second appeal.
The contesting respondents have further referred the
Judgment in the case of D.S. Parvathamma Vs. A. Srinivasan
[(2003) 4 SCC 705] (relevant para-6) and submitted that one of
the essential feature of Section 53A of the Transfer of Property Act
is that the plea of part performance is not available to be raised
against a transferee for a consideration who has no notice of
contract or of the part performance thereof. In the present case,
the plaintiffs or their predecessor-in-interest had or have no
notice of any prior agreement of sale which is finding of fact
recorded by the Trial Court at paragraph-27 of the judgment.
The learned counsel has further referred paragraph-14 of
the Judgment in the case of Shrimant Shamrao Suryavanshi
and another Vs. Pralhad Bhairoba Suryavanshi (dead) by LRs.
and others reported in AIR 2002 SC 960 and submitted that
there are certain conditions which are required to be fulfilled if a
transferee wants to defend or protect his possession under21 S.A. No. 61 of 2004
Section 53A of the Transfer of Property Act. The necessary
conditions are:-
(i) There must be a contract to transfer for consideration ay
immovable property;
(ii) The contract must be in writing, signed by the transferor, or
by someone on his behalf;
(iii) The writing must be in such words from which the terms
necessary to construe the transfer can be ascertained;
(iv) The transferee must in part performance of the contract take
possession of the property, or of any part thereof;
(v) The transferee must have done some act in furtherance of the
contract;
(vi) The transferee must have performed or be willing to perform
his part of the contract.
It was submitted that the conditions indicated in clauses – 5
and 6 had never been complied with by the appellants/
defendants and, therefore, protection available under Section 53-A
of the Transfer of Property Act is not available to them.
The learned counsel has argued that scope of Section 100
CPC is very limited after 1976 amendment and it is only confined
to cases where substantial questions of law are involved. The
contesting respondents have relied upon the Judgment in the case
of Narayanan Rajendran and another Vs. Lekshmy Sarojini and
others reported in (2009) SCCR 944 (Relevant Paragraphs – 62
to 69). It was submitted that in the second appeal concurrent
finding of fact are not liable to be discussed and the same is
beyond the purview of Section 100 CPC. On this score alone
arguments extended by counsel for the appellants are liable to be
rejected.
13. Heard both sides and perused evidence, documents and
Judgments available in the case record. Admittedly Section 100
Code of Civil Procedure has introduced a definite restriction on to
the exercise of jurisdiction in Second Appeal so far as the High22 S.A. No. 61 of 2004
Court is concerned. Needless to record the Code of Civil Procedure
(Amendment) Act, 1976 introduced such an embargo for such
definite objectives but where it is found that the findings stand
vitiated on wrong test on the basis of assumptions and conjecture
and resultantly there is an element of perversity involved therein,
jurisdiction available under Section 100 Code of Civil Procedure
can be extended to deal with the issue to avoid miscarriage of
justice. There is no prohibition of entertaining a Second Appeal
even on a question of fact provided the Court is satisfied with the
findings of fact recorded by the Courts below stood vitiated by
non-consideration of relevant evidence or by showing an
erroneous approach to the matter i.e. that the findings of fact are
found to be perverse. What I mean to say is in a Second Appeal
the Court should not interfere with findings of the Court below
given on facts but then if the findings are based on misreading of
evidence or based on non-evidence resulting in injustice, the High
Court can enter into the mixed question of fact and law both. The
Law is not static, it has to change with changing time and it
should be dynamic because the purpose of law is to serve needs of
life. The recent of law is that hyper technicalities shall not stand
in the way of Court administering justice. The procedural
technicalities of law, if needed, should be diluted in the interest of
justice to avoid miscarriage of justice.
The concurrent findings of Courts below based on wrong
assumption of fact, non-appreciation of pleadings and evidence on
record can be looked into in a Second Appeal as has been held in
the Judgment rendered in the case of Sebastiao Luis Fernandes
(Dead) through LRS. and others Vs. K.V.P. Shastri (Dead)
through LRS and others reported in (2013) 15 SCC 161.
The substantial question of law framed and the arguments
advanced from both sides, persuaded this Court to consider the
facts and evidence in its true perspective. Since the Courts below
have committed errors of record in arriving at the finding while
dealing with particularly Exhibits-H, 3, 3/A and other documents.23 S.A. No. 61 of 2004
Exhibit-3 and 3/A are the copies of assessment register of
Jugsalai Municipality and that indicates assessment of Holding
Nos. (New) - 78 and 79 which admittedly connect the suit
property. The learned Munsif, relying on those documents has
held that defendants were the tenant under Sitaram Agarwalla
and defendant nos. 5 to 7. On perusal of aforesaid two documents
I do not find that the same are indicative of facts that defendants
were tenant under Sitaram Agarwalla or they were enjoying
permissive possession over the suit property. This finding of the
Courts below is based on no evidence because the plaintiffs have
not brought on record a chit of paper to show that at any point of
time the appellants/ defendants were inducted either as a tenant
or enjoying the suit property having permissive possession. The
plaintiffs have been claiming their title which they acquired from
their predecessor-in-interest which generated from Sitaram
Agarwalla and his three brothers. Neither Sitaram Agarwalla nor
his three brothers (defendant nos. 5 to 7) appeared to depose that
defendants were inducted as tenant or were allowed to enjoy
permissive possession over the suit property. Therefore, finding of
both the Courts on this count which is based on no evidence, is
perverse and the same is hereby set aside. The plaintiffs have not
prayed to declare Exhibit-D, Sale Deed executed on 11.02.1975 by
Firangi Mahto in favour of Chandrakant Singh (father of
defendant no. 1) as null and void but the Courts below, without
evidence declared Exhibit-D as null and void-ab-initio.
Likewise the plaintiffs have challenged that Exhibit-F (Money
Receipt) executed by Sitaram Agarwall and his three brothers on
12.09.1983 and affidavit (Exhibit-G) sworn by them
acknowledging receipt of consideration amount of Rs.3,500/-
against sale of said property have been declared forged but no
evidence on record is available for arriving such conclusion.
The Courts below while discussing Exhibit-H have stated
that defendant no. 2 was not empowered by the executants –
Sitaram Agarwalla and his three brothers to execute a Sale Deed24 S.A. No. 61 of 2004
or Agreement for purchase or other documents necessary for the
aforesaid property. But then para-3 of Exhibit-H is clear on this
point that defendant no. 2 was authorized and given power even
to sale the property for which he was appointed Attorney. It was
also held that Schedule of the property for which General Power of
Attorney was given to defendant no. 2, does not find place in
Exhibit-H but paragraphs-1 and 2, if read together, it would
reveal that the Schedule property for which General Power of
Attorney was given, is indicated. The evidence of P.W.-4 – the Tax
collector of Jugsalai Municipality was referred by counsel for the
appellant and, therefore, I have also examined the same to verify
the truth. From the testimony of P.W.-4 it is evident that
Gajanand Agarwalla was not enjoying possession over the suit
property and his place of residence was situated at Plot No. 131.
According to plaintiffs, the schedule property along with property
pertaining to Plot Nos. 152 and 153 were purchased by Gajanand
Agarwalla through registered Deed of Sale executed on
12.07.1984 (Exhibit-2/b). Thereafter, it was sold to Gurmukh
Singh (defendant no. 4) in the year 1991 and Gurmukh Singh
sold the property to plaintiffs on 31.01.1995. Neither Gajanand
Agarwalla nor Gurmukh Singh ever realized rent from the
appellants for the suit premises. No notice was ever served upon
the defendants by Gajanand Agarwalla or Gurmukh Singh asking
them to vacate the suit premises or to pay rent till they were
having Title Deed in their possession.
Again the finding of the Courts below on the point that
possession of defendants in the suit premises was that of a
tenant, is not based either on evidence or on documents. Sitaram
Agarwalla and his three brothers (defendant nos. 5 to 7) never
disown Exhibits – F, G and H and, therefore, adverse opinion
against aforesaid documents cannot be formed.
In view of the discussions made above, I am of the opinion
that the Courts below have committed error of record in arriving
at the findings, particularly in dealing with Exhibits-H, 3, 3/A and25 S.A. No. 61 of 2004
other documents and, therefore, erroneous finding given by
Courts below cannot be sustained.
14. Learned counsel for the plaintiffs has vehemently argued
that the defendants have not taken specific plea for seeking
benefits provided under Section 53A of the Transfer of Property
act and, therefore, the said plea cannot be taken at the stage of
Second Appeal. Learned counsel for the appellants have placed
reliance on the Judgment in the case of Ram Sarup Gupta (Dead)
by LRS Vs. Bishun Narain Inter College and others reported in
(1987) 2 SCC 555, relevant at para-6, which is quoted
hereunder:-
“6. The question which falls for consideration is whether
the respondents in their written statement have raised the
necessary pleading that the licence was irrevocable as
contemplated by Section 60(b) of the Act and, if so, is there
any evidence on record to support that plea. It is well settled
that in the absence of pleading, evidence, if any, produced
by the parties cannot be considered. It is also equally settled
that no party should be permitted to travel beyond its
pleading and that all necessary and material facts should be
pleaded by the party in support of the case set up by it. The
object and purpose of pleading is to enable the adversary
party to know the case it has to meet. In order to have a fair
trial, it is imperative that the party should settle the essential
material facts so that other party may not be taken by
surprise. The pleadings however should receive a liberal
construction; no pedantic approach should be adopted to
defeat justice on hair splitting technicalities. Sometimes,
pleadings are expressed in words which may not expressly
make out a case in accordance with strict interpretation of
law. In such a case it is the duty of the court to ascertain the
substance of the pleadings to determine the question. It is
not desirable to place undue emphasis on form, instead the
substance of the pleadings should be considered. Whenever
the question about lack of pleading is raised the enquiry
should not be so much about the form of the pleadings;
instead the Court must find out whether in substance the
parties knew the case and the issues upon which they went
to trial. Once it is found that in spite of deficiency in the
pleadings parties knew the case and they proceeded to trial
on those issues by producing evidence, in that event it would
not be open to a party to raise the question of absence of
pleadings in appeal. In Bhagwati Prasad v. Chandramauli, a
Constitution Bench of this Court considering this question
observed: 26 S.A. No. 61 of 2004
“If a plea is not specifically made and yet it is covered
by an issue by implication, and the parties knew that
the said plea was involved in the trial, then the mere
fact that the plea was not expressly taken in the
pleadings, would not necessarily disentitle a party
from relying upon it if it is satisfactorily proved by
evidence. The general rule no doubt is that the relief
should be founded on pleadings made by the parties.
But where the substantial matters relating to the title
of both parties to the suit are touched, though
indirectly or even obscurely in the issues, and
evidence has been led about them, then the argument
that a particular matter was not expressly taken in the
pleadings would be purely formal and technical and
cannot succeed in every case. What the court has to
consider in dealing with such an objection is: did the
parties know that the matter in question was involved
in the trial, and did they lead evidence about it? If it
appears that the parties did not know that the matter
was in issue at the trial and one of them has had no
opportunity to lead evidence in respect of it, that
undoubtedly would be a different matter. To allow one
party to rely upon a matter in respect of which the
other party did not lead evidence and has had no
opportunity to lead evidence, would introduce
considerations of prejudice, and in doing justice to one
party, the court cannot do injustice to another.”
Thus, the view taken by Their Lordships clearly suggest that
if the substance of the pleadings is sufficient to indicate the issue
involve and the adversary knew the cause and issue involved and
proceeded with the trial and adduced evidence to contradict the
stand that can well be raised in the appeal.
In the case at hand, the appellants have sought for
protection under Section 53A of the Transfer of Property Act and,
accordingly, substantial question of law to this effect has also
been framed. Protection contained under Section 53A of the
Transfer of Property Act deals with mixed question of facts as well
as law. So far 'fact' part is concerned, the appellants have clearly
pleaded that they have been enjoying peaceful possession over the
suit property after they acquired the same from the year 1975 i.e.
the date of execution of Sale Deed by Firangi Mahto in favour of
Chandrakant Singh (father of defendant no. 1). If possession of
the appellants is not considered from the year 1975, the admitted
facts available on record is that possession of defendants have
well been recognized since the year 1979 by Sitaram Agarwall and
Bajrang Agarwalla, the two brothers (both sons of Ram Kumar
Das Agarwalla). Acknowledging possession of defendants,
Agreement for Sale dated 13.02.1979 was executed by aforesaid
two brothers - Sitaram Agarwalla and Bajrang Agarwalla in
favour of defendant no. 1, it was contended by counsel for the
plaintiffs that aforesaid Agreement dated 13.02.1979 lost its legal
value when no suit for specific performance of contract was filed
within the period of limitation.
15. I have gone through the findings of Courts below and both
the Courts have considered the issue in favour of plaintiffs. It is
true that no suit for specific performance of contract to implement
Agreement dated 13.02.1979 was filed by the defendant but then
the document is the proof that they acquired possession by way of
part performance of the contract. In this context, Judgment in the
case of Shrimant Shamrao Suryavanshi V. Pralhad Bhairoba
Suryavanshi reported in (2002) 3 SCC 676 which has been
followed by the Apex Court in the Judgment in the case of
Mahadeva and others Vs. Tanabai reported in (2004) 5 SCC 88
is relevant and it is relevant to quote Para-8 of the Judgment in
the case of Mahadeva (Supra).
“8. The Judgment of the High Court is based on a
question framed during the course of writing of the
judgment which is in departure from the two questions
of law on which the appeal was admitted for hearing.
The whole emphasis shifted from the core issues. Then,
the High Court has not discussed any law and has also
not assigned any reason, much less a satisfactory one,
for taking a view different from the one concurrently
taken by the two courts below. The singular reason
assigned by the High Court for denying the benefit of
Section 53-A of the TP Act is not a sound reason by itself
in view of the decision of this Court in Shrimant
Shamrao Suryavanshi v. Pralhad Bhairoba
Suryavanshi. This Court has held that merely because
the suit for specific performance at the instance of the
vendee has become barred by limitation that by itself is
not enough to deny the benefit of the plea of partperformance
of agreement of sale to the person in
possession.”
The possession of the appellants over the suit property thus
stood admitted from the date of first agreement dated 13.02.1979.
The Courts below have disbelieved Exhibits – F and G only
because the same were issued and sworn prior to the date of
Agreement to Sale dated 03.11.1983. But it is clear that Sitaram
Agarwalla and his brothers had issued money receipt, sworn
affidavit acknowledging payment and sale on 12.09.1983 and
then executed General Power of Attorney in favour of defendant
no. 2 empowering him to do all acts regarding schedule property.
Thereafter, on the basis of Exhibit-H, the defendant no. 2 had
executed an Agreement for Sale in favour of defendant no. 1 with
respect to suit property on 03.11.1983 and further referred earlier
agreement dated 13.02.1979. Reference of earlier agreement in
the subsequent Agreement for Sale executed by the Attorney does
not mean that earlier agreement was renewed. Even assuming it
to be correct, the fresh Agreement was executed in favour of
defendant no. 1 on 03.11.1983. It is not an incriminating
circumstance to disbelieve Exhibits-H, F and G if the same were
issued and sworn on the date on which the four brothers –
Sitaram Agarwalla and defendant nos. 5 to 7 had executed Power
of Attorney with respect to suit property in favour of defendant no.
2.
16. In view of the discussions made above, on the one hand
possession of appellants/ defendants over the suit property stood
confirmed whereas Gajanand Agarwalla and subsequent
purchasers i.e. Gurmukh Singh and plaintiffs have never come in
possession over the suit property and that is also apparent from
the evidence of P.W.-4. Under such circumstances, the appellants
are entitled for the protection contained under Section 53A of the
Transfer of Property Act and they cannot be evicted therefrom.
The appellants have also taken a plea of constructive notice
as given under Explanation – II of Section 3 of the Transfer of
Property Act. There should not be straight jacket formula that the
Deed of Conveyance which were earlier in time, shall prevail over
the Deed of Conveyance executed later. The Court has to look into
the facts and evidence available on record to decide as to who had
acquired a better title if two Title Deeds are available. The Courts
below have decided that the Sale Deed dated 11.10.1984 is later
in time and hence that will not prevail against the Sale Deed
executed in favour of the predecessor-in-interest of the plaintiffs
i.e. 12.07.1984. The documents and evidence available on record
indicates that Sitaram Agarwalla and his brothers, Gajanand
Agarwalla Gurmukh Singh and even the plaintiffs are resident of
same vicinity and they all are having their residence nearby to the
disputed property. They have not inquired from the defendants at
any point of time before the transaction made in their favour from
the defendants as to under what capacity or authority they are
occupying the suit premises.
17. Learned counsel for the plaintiffs in this regard has relied
upon the Judgment reported in AIR 1987 Patna, Page-5 but the
facts in the case at hand are different. The appellants were not
occupying smaller portion of the property rather they were in
occupation and possession of Plot No. 151. Sitaram Agarwalla and
his three brothers had executed single Sale Deed pertaining to
Plot Nos. 151, 152 and 153 in favour of Gajanand Agarwalla. All
the three plots were having their different identity which also
reveal from the fact that Plot No. 153 was recorded in the name of
Purni Devi and, therefore, Gajanand Agarwalla got the Sale Deed
executed by Purni Devi in his favour pertaining to Plot No. 153.
Since the plaintiffs did not make enquiry about the authority
under which the appellants were occupying their possession over
the suit property, they cannot be considered bonafide purchaser.
For reference, Explanation-II of Section 3 of the Transfer of
Property Act is being given hereunder:-30 S.A. No. 61 of 2004
“Explanation – III. – A person shall be deemed to have
had notice of any fact if his agent acquires notice
thereof whilst acting on his behalf in the course of
business to which that fact is material:
Provided that, if the agent fraudulently conceals the
fact, the principal shall not be charged with notice
thereof as against any person who was a party to or
otherwise cognizant of the fraud.”
The plaintiffs themselves have proved Khatian (Exhibits-9,
9/A and 9/B. In Exhibit-9, under Khata No. 413, the land is
recorded in the name of Anabad Bihar Sarkar but against the Plot
Nos. 151 and 152, illegal possession of Sitaram and against plot
no. 153, possession of Purni Devi has been recorded but the
plaintiffs did not make State of Bihar a party to the suit.
Again it is observed that the documents brought on record
by parties concerned have not properly been appreciated and both
the courts misconstrued the documents in arriving at the
conclusion.
18. In the result, in view of the submissions advanced by the
appellants and discussion made above, this Second Appeal is
allowed and Judgement dated 24.11.2003, Decree dated
15.12.2003, passed and signed by 1st Additional District District
Judge, Singhbhum East at Jamshedpur in Title Appeal No. 4 of
2000 and the Judgement dated 14.10.1999 and Decree dated
27.11.1999, passed and signed by learned Munsif in connection
with Title Suit No. 56 of 1996 are hereby set aside and the Title
Suit No. 56 of 1996 brought by the plaintiffs is considered to be
dismissed with costs.
(D.N. Upadhyay, J.)
Jharkhand High Court
Ranchi. Dated 05 /08/2016
No comments:
Post a Comment