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SUPREME COURT OF INDIA
V. Gopala Gowda, Arun Mishra, JJ.
Muddasani Venkata Narsaiah (D) Th. Lrs. – Appellant
Versus
Muddasani Sarojana – Respondent
Civil Appeal No. 4816 of 2016 [Arising out of SLP (Civil) No. 13076 of 2007]
Decided On : 05-05-2016
(2008) 15 SCC 150 – Relied upon
(2008) 4 SCC 594 – Referred
(b) Code of Civil Procedure, 1908 – Order VIII, Rule 5 – Denial for want of knowledge is no denial at all – Sale deed not disputed – Defendants only stating they had no knowledge about it – Pleadings of the parties and evidence established execution of sale deed – It was not necessary for plaintiff to examine Buchamma, the seller, to prove the sale deed. (Para 14, 15)
AIR 1967 SC 109 – Relied upon
1978 MPLJ 717; AIR 1959 MP 305; AIR 1934 Rang 278; AIR 1931 All. 423 – Cited with approval
(c) Practice and Procedure – Cross examination – Not only a matter of procedure but that of substance – Non cross-examination of a witness – Effect – Not disputing statement of the witness – If a witness is not cross-examined his statement will be deemed to have been accepted. (Para 16)
AIR 1963 SC 1906 – Relied upon
AIR 1958 Punjab 440; AIR 1945 Nagpur 60; AIR 1961 Cal. 359; AIR 1950 Nagpur 83; AIR 1940 Patna 683 – Cited with approval
(d) Property law – Sale deed – Passing of consideration – Cannot be questioned by a third party – Instantly Defendant no. 3 could establish that she is adopted daughter of Yashoda – Thus she is a third party – Could not have questioned the execution of the sale deed by Buchamma on the ground of passing of consideration. (Para 17)
1970 MPLJ 50; AIR 1928 Patna 44 – Cited with approval
(e) Property law – Possession of plaintiff – Yashoda enjoying the property – Defendant no. 3 residing with Yashoda but her adoption not established – Defendant no. 3 not claiming adverse possession – Entry of possession in some revenue records immaterial – Property on death of Yashoda passing to Buchamma being class IInd heir – She had the right to sell the property to plaintiff – Plaintiff had right to recover possession. (Para 18)
Facts of the case:
The plaintiff filed a suit for possession of disputed property and mesne profits based upon the title. It was averred in the plaint that Veeraiah and Balaiah were sons of late Rajaiah. Both the sons predeceased their father Rajaiah. Plaintiff is son of Veeraiah and Yashoda is wife of the said late Balaiah. After the death of Rajaiah, the property was given as widow’s estate to Yashoda. It was to be reverted to the plaintiff after the death of Yashoda. Yashoda enjoyed the property in her lifetime. However, after her death, Smt. Gandla Buchamma, surviving sister of late Balaiah succeeded to the property and sold it to plaintiff vide registered sale deed dated 25.4.1981 and also delivered the possession. Thereafter on 12.6.1981 the defendants forcibly evicted the plaintiff from the property.
The trial Court while dismissing the suit found that passing of consideration has not been proved under the sale deed and that it was a nominal document. The plaintiff ought to have filed suit for declaration of title. Defendant no. 3 was cultivating the suit land from the date of the death of Yashoda since 1981. However, it has not been proved that defendant no. 3 was adopted daughter of late Yashoda. The factum of adoption has not been established. The possession had not been delivered by Buchamma to the plaintiff on the date of the execution of the sale deed i.e. 25.4.1981. The trial Court also found that it was not established that Buchamma was the sole surviving sister of late Balaiah.
The first appellate court allowed the appeal.
The High Court in the second appeal has not disturbed the concurrent findings that the adoption of defendant no.3 Sarojana by Yashoda has not been established. However, the High Court has held that the sale deed has not been proved for want of examination of Buchamma and in the circumstances it was necessary for the plaintiff to file a suit for declaration of title. The High Court observed that the suit for possession and mesne profits thus could not have been filed. The High Court allowed the second appeal.
Finding of the Court:
Plaintiff is entitled to recovery of possession on the strength of his title derived from the sale deed.
Result: Appeal allowed.
The facts of the case revolve around a dispute over the ownership and possession of a property following the death of Yashoda, who was the owner during her lifetime. The plaintiff claimed that he had purchased the property through a sale deed executed by the surviving heir, Buchamma, and sought recovery of possession based on his title. The defendants contended that Yashoda was the absolute owner and that the plaintiff's sale deed was not valid, asserting that the defendant no. 3 was an adopted daughter of Yashoda and thus had inheritance rights, and that the sale deed was not properly proved.
The lower courts examined the evidence and found that the adoption of defendant no. 3 by Yashoda had not been established, and that the sale deed had been executed by Buchamma, who was the sole surviving heir of the deceased Balaiah, the original owner. The trial court dismissed the suit due to the lack of proof of passing consideration and the failure to establish the sale deed's validity. The first appellate court reversed this decision, holding that the sale deed was valid and that the plaintiff was entitled to possession based on his title, as the sale deed was duly executed by the heir with authority to sell.
The High Court, in second appeal, upheld the findings that the adoption was not proven but questioned the validity of the sale deed due to the absence of examination of Buchamma. It concluded that the plaintiff should have sought a declaration of title, and since there was no serious cloud on his title, the suit for possession was not maintainable without such declaration. Consequently, the High Court set aside the first appellate judgment and dismissed the suit.
The Supreme Court, however, reversed the High Court's decision, emphasizing that the suit was based on title and not merely possession. It held that the execution of the sale deed was sufficiently established through pleadings and evidence, even in the absence of examination of Buchamma, as non-denial for want of knowledge is not a denial. The Court further clarified that passing of consideration cannot be questioned by a third party and that the defendant no. 3, being a third party, had no authority to challenge the sale deed on this ground. The Court concluded that there was no serious cloud on the plaintiff’s title, and the sale deed executed by Buchamma was valid and binding. Therefore, the plaintiff was entitled to recover possession on the basis of his title, and the appeal was allowed.
JUDGMENT :
Arun Mishra, J.
1. Leave granted.
2. The plaintiff is in appeal before us aggrieved by reversal of the judgment and decree of first appellate Court by the High Court in Second Appeal and restoring the judgment and decree of the trial Court dismissing the suit filed by the plaintiff.
3. The plaintiff filed a suit before the trial Court for possession of disputed property and mesne profits based upon the title. It was averred in the plaint that Veeraiah and Balaiah were sons of late Rajaiah. Both the sons predeceased their father Rajaiah. Plaintiff is son of Veeraiah and Yashoda is wife of the said late Balaiah. After the death of Rajaiah, the property was given as widow’s estate to Yashoda. It was to be reverted to the plaintiff after the death of Yashoda. Yashoda enjoyed the property in her lifetime. However, after her death, Smt. Gandla Buchamma, surviving sister of late Balaiah succeeded to the property and sold it to plaintiff vide registered sale deed dated 25.4.1981 and also delivered the possession. Thereafter on 12.6.1981 the defendants forcibly evicted the plaintiff from the property.
4. The defendants in their written statements contended that Ballaiah was the absolute owner of the property and after his death Yashoda became the absolute owner of the property. She was in possession of the property. It was not to be reverted back to the plaintiff after the death of Yashoda. Yashoda after death of her husband, as per authority given by her late husband, had adopted defendant no. 3 Sarojana when she was aged 12 years and thereafter she resided in the house of Yashoda as her daughter. Thus, Buchamma did not succeed to the property. The adopted daughter defendant no. 3 succeeded to property by inheritance. Defendants had no knowledge of the registered sale deed. Buchamma was not in possession and had no authority to sell the property to the plaintiff.
5. The trial Court framed the issue as to the ownership of Yashoda and also on the question of factum of adoption of defendant no. 3 on 18.2.1959 and whether she became the owner by virtue of adoption after the death of Yashoda. A specific issue was also framed by the trial Court on the question whether on death of Yashoda, Buchamma, who is the surviving sister of Yashoda’s late husband Balaiah, became heir and owner of the said property and whether the plaintiff had acquired the title to the suit property vide registered sale deed dated 25.4.1981executed by Buchamma in favour of the plaintiff.
6. The trial Court while dismissing the suit inter alia found that passing of consideration has not been proved under the sale deed and that it was a nominal document. The plaintiff ought to have filed suit for declaration of title. Defendant no. 3 was cultivating the suit land from the date of the death of Yashoda since 1981. However, it has not been proved that defendant no. 3 was adopted daughter of late Yashoda. The factum of adoption has not been established. The possession had not been delivered by Buchamma to the plaintiff on the date of the execution of the sale deed i.e. 25.4.1981. The plaintiff must succeed on the strength of his own case, not on the weaknesses of the defendants. The trial Court also found that it was not established that Buchamma was the sole surviving sister of late Balaiah.
7. On first appeal being preferred into the Court of 1st Additional District Judge, Karimnagar, it allowed the appeal and the suit of the plaintiff had been decreed. It found that the execution of the sale deed has been established. Yashoda was the absolute owner in possession of the property in her lifetime. There was no Class I heir of deceased Balaiah. Buchamma was a Class II heir being the only surviving sister of Yashoda’s late husband Balaiah as such succeeded to the property. Since it was not denied in written statement that Buchamma is the only surviving sister of Balaiah, she was entitled to succeed to the property of late Balaiah/Yashoda. The adoption of defendant no. 3 has
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