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IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAJESH KUMAR, J.
Gulam Mustafa and ors. - Appellants
Versus
Md. Yusuf Ansari S/o Late Sk. Pachu - Respondent
Second Appeal No.45 of 2016 With I.A. Nos.2926, 2894 & 6676 of 2016
Decided On : 15-05-2018
Specific Relief Act – Section 34 – Code of Criminal Procedure, 1973 – Section 144 – Law of limitation – Declaration of title and recovery of possession – Whether in a suit for declaration of title and recovery of possession, the plaintiff has to prove his case. – He cannot take advantage of defendant’s weakness – Whether both the courts below have seriously erred in not considering Exhibit-E evidence of Jumauddin Ansari in Case otherwise the suit was barred by law of limitation – Held, Suit land can be ousted from inheritance of the plaintiff by means of any transfer. – The defence has been taken by the defendants that the said land belongs to their family members by means of Sada Hukumnama, as the same has been settled by way of Sada Hukumnama in favour of Sk. Hayat but the said Sada Hukumnama and rent receipt, as demanded by both the courts below, have never been produced. – It is also relevant to consider that Ext.A, which is 1st sale deed executed by Sk. Hayat, there is no mention of Sada Hukumnama and this document is exhibited as Ext.A. In Exhibit-B, there is mention of Sada Hukumnama which is in continuation of Ext.A and subsequent transfer, this also creates doubt regarding existence of Sada Hukumnama. – Be that as it may, both the courts below have given concurrent finding, rejecting the defence of the respondents regarding carving out suit property from the line of inheritance through Sada Hukumnama. – Further the plaintiff has proved his right, title and interest over the said land on the basis of inheritance and his genealogy has also not been disputed. – Court do not find any merit in the 2nd substantial question of law as framed and accordingly, the same is answered against the appellants and in favour of the plaintiff. – Legal position, which emerges is that if a sale deed is void ab-initio, there is no requirement to challenge the same. In the present case, the fact which stands settled, is that the so called Sada Hukumnama has not conveyed any title to Sk. Hayat and as such, any subsequent transaction made by the persons, who were claiming right, title and interest through the said Sada Hukumnama is nullity and there is no requirement of law to challenge the same. – Trial court has returned the finding that the plaintiff was in possession of the suit land since 1939 and this fact has been confirmed by both the courts below. – Second Appeal Dismissed
I.A. No.2926 of 2018
1. This interlocutory application has been filed by the appellants, proposing further substantial questions of law, copy of which has already been served to the counsel for the respondents and replied through Rejoinder, to be considered by this Court, which are as under:-
“(i) Whether in a suit for declaration of title and recovery of possession, the plaintiff has to prove his case. He cannot take advantage of defendant’s weakness?
(ii) Whether both the courts below have seriously erred in not considering Exhibit-E evidence of Jumauddin Ansari in Case No. C 780 of 2001, otherwise the suit was barred by law of limitation?”
2. Considering the submission advanced on behalf of the appellants and respondents, the interlocutory application being I.A. No.2926 of 2018 is allowed and the substantial questions of law framed by the appellants is accepted by this Court.
I.A. No.2894 of 2018
3. By way of filing this interlocutory application being I.A. No.2894 of 2018, prayer has been made by the appellants to adduce additional evidence viz. to bring on record the alleged Sada Hukumnama and rent receipt, which are mentioned in their written statement as well as in sale deed i.e. Ext-B which could not brought on record either before the trial court or before the Appellate Court.
4. After considering the argument advanced on behalf of the appellants, this Court is of the view that additional evidence cannot be allowed to be led, at this stage, in order to fill the gap or lacuna of any party and this piece of evidence neither can change result of the case nor required for pronouncing Judgment.
5. Accordingly. I.A. No. 2894 of 2018 is dismissed.
6. Heard learned counsel for the parties.
7. The present appeal has been filed by the defendants-appellants, who lost in both the court below.
8. A suit being Title Suit No.42 of 2000 has been filed by the plaintiff against the defendants on 25.03.2000 for declaration of right, title and interest over the suit land, recorded in the name of one Sk. Pachu (ex-landlord), pertaining to Khata No.143, Plot No.300, Khewat No.3/2 measuring 49 decimals, situated at Village-Nagri, Thana-No.53, P.S.-Kanke, District-Ranchi and also for recovery of possession.
9. The case of the plaintiff is that his predecessor, namely, Sk. Pachu was the ex-landlord, who was in need of money and, therefore, he gave the suit property to one Hasan Ali for four years on receipt of Rs. 12/- (Rupees Twelve) as oral Zarpeshgi. Further claim of the plaintiff is that the suit land was resumed after expiry of four years and thereafter the predecessor, namely, Sk. Pachu was continuously in possession till 1969 i.e. till the date of death.
10. The name of Sk. Pachu was recorded in revisional survey record of right prepared in the year 1935. Plaintiff being the only son inherited the said property and was continuing in peaceful possession of the same, till he was illegally dispossessed by the defendants on 04.11.2001. Aggrieved with the disturbing act/attitude of the defendants, the plaintiff preferred Title Suit No. 42 of 2000 for declaration of his right, title and interest. However, after filing the suit the plaintiff having been dispossessed from the suit property on 04.11.2001, further prayer for recovery of possession was also made, by way of amendment.
11. The defendants appeared in the suit and filed written statement, taking defence that the suit land was settled to one Sk. Hayat in the year 1939 vide Sada Hukumnama and said Sk. Hayat sold the said land jointly in favour of four brothers, namely, Sk. Khushmuddin, Sk. Hasmuddin, Sk. Karimuddin and Sk. Naimuddin all sons of Sk. Sobrati, through registered sale deed dated 28.02.1974 (Ext-A). Thereafter, vide sale deed dated 10.06.1975 (Ext-B), the said four brothers sold the suit land to one Sk. Alimuddin, who is father of the present defendants-appellants.
12. It has further been claimed that Sk. Alimuddin died on 11.01.1997, leaving behind the defendants, who being legal
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