Back
IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashutosh Kumar, J.
Sarv Narayan Yadav Son of Late Ayodhi Yadav and ors. - Appellants
Versus
Ram Phal Yadav Son of Bishun Yadav - Respondent
Second Appeal No.154 of 1985
Decided On : 16-12-2021
Specific Relief Act, 1963 – Section 34 – Suit for declaration of title and confirmation of possession with respect to suit land – Rejection of plea of Benami purchase – There was no reason for appellants/plaintiffs to have purchased a land in name of Benamidar from defendant third party, when they were in possession of suit land from before by virtue of sale deeds executed by mother of defendant third party – If at all appellants/plaintiffs had managed to get those lands sold to Benamidar, it only raised a presumption that appellants/plaintiffs were not in possession of land and defendant third party was actually in possession of land by virtue of deed of gift now – Plea of appellants/plaintiffs that deed of gift was a forged document cannot succeed as no party can be allowed to blow hot and cold in same breath – Plea taken by appellants/plaintiffs is contradictory and acceptance of one excludes possibility of other and vice-versa – With respect to possession of appellants/plaintiffs over suit land, appellate court has partly agreed with findings of trial Court but has found the findings about possession of appellants/plaintiffs over part of land, to be erroneous – Findings of fact by appellate Court is based on evidence on record – Lower appellate Court rightly set aside part decree by trial court on the ground of same having been based on evidence which was beyond pleadings – Since appellants were not found to be in continuous long possession of suit land, merely because of a report of Survey Knowing Pleader Commissioner that land stood amalgamated and therefore, it would be presumed that appellants/plaintiffs were in possession of land, was incorrect – Merely because there was no contest on part of defendant second party, part findings arrived at by trial court and judgment and decree of appellate Court cannot be faulted with – Second Appeal dismissed. (Paras 32, 33, 35, 36, 41, 43, 45 and 46
JUDGMENT :
1. Heard Mr. Vishwanath Prasad Singh, learned Senior Advocate for the appellant/plaintiffs and Mr. Hemendra Prasad Singh for the respondent first set.
2. The suit was not contested by defendant second and third party.
3. This appeal is directed against the judgment and decree dated 31.08.1978 and 16.09.1978 respectively passed by the learned Munsif, Darbhanga in Title Suit No. 21 of 1971, whereby the suit of the appellants/plaintiffs was decreed in part as well as against the judgment and decree passed by the learned 2nd Additional Sub-Judge, Darbhanga in Title Appeal No. 89 of 1978/9 of 1984 dated 12th of January, 1984, whereby the appeal against the judgment and decree referred to above has been dismissed and the cross appeal by respondent-defendant-first set has been allowed.
4. The short question involved in this case is whether the appellants/plaintiffs were successful in establishing that the suit land was purchased by them in the name of their Benamidar/defendant second party from defendant third party, viz. Mst. Sarobati Devi and whether they were in possession of the lands which they had acquired on the basis of sale deeds of 1940, 1945, 1957 and 1958.
5. The learned trial court framed the following issues:
(b) Is the suit barred by law of limitation or the principles of waiver, estoppel and acquiescence?
(c) Has the suit property been under valued and the court-fee paid thereon is insufficient?
(d) Whether the suit is bad for non-joinder of parties?
(e) Whether the defendant second party is the Benamidar of the plaintiff no. 1?
(f) Whether the plaintiffs have got subsisting right, title and interest in the suit land on the basis of the four kebalas dated 28.03.1945, 19.10.1958, 12.11.1957 and 26.12.1940 as well as the sale deed dated 30.04.65?
(g) Whether the suit lands are in possession of the plaintiffs or the contesting defendants?
(h) Whether the plaintiffs are entitled to any relief or reliefs?
6. It has been held that the plaintiff/appellants could not prove that the defendant second party is a Benamidar of the appellants/plaintiffs and that the appellants had no subsisting right, title and interest in the suit land on the basis of four sale deeds dated 28.03.1945, 19.10.1958, 12.11.1957 and 26.12.1940 as also of the sale deed dated 30.04.1965. The appellants/plaintiffs were but found to be in possession of 1 katha, 10 decimals and 12 kanmas in plot no. 164 and an area of 11 decimals of plot no. 528 and 1 kattha, 14 dhurs of plot no. 326. The possession of the appellants/plaintiffs over these plots were confirmed.
7. Hence, the suit which was filed for declaration of title and confirmation of possession with respect to the suit land mentioned in Schedule 1 and 2 of the plaint and permanent injunction restraining the respondent first party from interfering in their possession and in the alternative, recovery of possession if the appellants/plaintiffs are thrown out of possession during the pendency of the suit, was only decreed in part with issue having been decided in the manner referred to above.
8. As against the aforesaid judgment and decree of the trial court, the appellants and the respondent first party preferred appeal and cross-appeal respectively.
9. The Appellate Court vide its judgement and decree dated 12.01.1985 and 28.01.1985 respectively agreed with the findings of the trial court over all the issues except issue no. 7 and held that the trial court had wrongly decreed the suit in part by holding the possession of the appellants over certain plots of land.
10. Hence, this second appeal.
11. The substantial questions of law framed in this appeal are as hereunder:
The court held that the plaintiffs proved ownership through valid Sale Deed; defendants failed to substantiate adverse possession claims due to contradictions in evidence.
where a cloud is raised over the plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction is the remedy. Where the plaintiff....
The non-delivery of possession does not affect the transfer of title, and lack of mutation in revenue records does not extinguish the title of the lawful purchaser.
The admissibility of evidence, proper legal procedures in mutation proceedings, burden of proof in ownership disputes, and the binding nature of concurrent findings of fact in appellate courts.
The judgment emphasizes the importance of historical records, legal proceedings, and possession in determining right, title, and interest over properties.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
