JHARKHAND HIGH COURT
Gautam Kumar Choudhary, J.
M/s Sahara India Commercial Corporation Ltd. And Anr. – Appellants
Versus
Uday Shankar Paul & Ors. – Respondents
First Appeal No. 43 of 2012 with Contempt Case (Civil) No.700 of 2012 WITH Civil Revision No.30 of 2014
Decided on 30.6.2022

IMPORTANT POINTS
(1) Sale deeds and mutation orders or compensation paid in pursuant to illegal order passed in rent fixation case, cannot be accepted as evidence of title or possession.
(2) After compromise decree in a suit for specific performance of agreement, Executing Court does not become functus officio.

Headnote:

(A) Civil Procedure Code, 1908 – Order 6 Rule 15(4) – Indian Evidence Act, 1872 – Section 101 – Acquisition of title and possession of suit land in Court auction sale in execution proceeding arising out of mortgage suits – Plaintiffs have brought declaratory suit for title and burden of proof is on them to plead and proof their title by leading evidence on the point – In any claim for declaration of title source of title and mode of devolution of title need to be established – Pleadings must state complete facts in a chronological order – Similarly, defendant must respond to each averment separately and also state his version – There should be neither misrepresentation, nor concealment in pleadings – Need to maintain integrity of process is fundamental to ensure inviolability of result – Section 101 of Evidence Act casts burden of proof on party who desires Court to give judgment as to any legal right or liability dependent on existence of facts which he asserts must prove existence of those facts – Once Plaintiff has discharged burden, onus shifts on other side to dispute facts so proved. (Paras 37, 38 and 39)

(B) Property Law – Acquisition of title and possession of suit land in Court auction sale in execution proceeding arising out of mortgage suits – Plaintiff’s claim of title is based on Court auction purchase and subsequent delivery of possession which is proved beyond any shade of doubt – Sale deeds and mutation orders or compensation paid in pursuant to illegal order passed in rent fixation case, cannot be accepted as evidence of title or possession in favour of defendants/respondents or any party claiming title from them – Plaintiffs have led incontrovertible evidence of Judicial orders passed by Civil and Revenue Courts, on the point of transfer of title and possession pursuant to mortgage suit and execution proceeding therefrom – These evidences include judgments and orders passed in mortgage suits and execution proceedings, certificates of court auction sale and delivery of possession – Claim of title and lawful possession by defendants is not tenable either in fact or in law – There are unimpeachable documentary evidence of possession – Against these documentary evidence adduced on behalf of plaintiffs, in mass of evidence adduced on behalf of defendants not a chit of paper has been filed as evidence of possession immediately after auction sale or after vesting – Contesting defendants are either heirs and descendants of tenure holders who had lost title and possession in Court auction sale or those who claim to derive title from them – Order of Revenue Court whereby Jamabandi was opened in favour of Defendants did not confer to them any title and sale by them without having any title was a wrong committed by them. (Paras 47, 56, 61, 62 and 63)

(C) Transfer of Property Act, 1882 – Sections 5 and 7 – Specific Relief Act, 1963 – Section 34 – Civil Procedure Code, 1908 – Section 80 – Acquisition of title and possession of suit land in Court auction sale in execution proceeding arising out of mortgage suits – Plaintiffs have succeeded to establish their title as purchaser in Court auction against contesting defendants/appellant – Once defendants have failed to establish survival of title after 1941 Court auction sales and to prove their title or lawful possession over suit property, question of suit being hit by Section 34 of Specific Relief Act does not arise for not seeking consequential relief of possession over the property – Plaintiff has clearly established his right title and interest as well as possession over suit property and any contrary entries recorded in recent survey and that too during pendency of instant suit would have no effect on plaintiff’s right title interest as well as possession over suit property – Mandate for notice under Section 80 CPC is with respect to suit and will not apply in present case as at the time of filing of suit right of plaintiff over these plots was not under challenge by State – Judgment and decree of Court below affirmed with modification – Appeal dismissed with cost. (Paras 67, 68, 69, 73, 82, 90 and 91)

(D) Civil Procedure Code, 1908 – Order 41 Rule 27 – Production of additional evidence – Wherever additional evidence is allowed court shall record reason for its admission – Party seeking to adduce additional evidence establishes that notwithstanding exercise of due diligence, evidence was not within his knowledge or it could not be produced by him at the time when decree appealed against was passed. (Para 94)

(E) Civil Procedure Code, 1908 – Order 23 Rule 3 and Order 21 Rule 10 – Compromise decree – After compromise decree in a suit for specific performance of agreement, Executing Court does not become functus officio – Decree passed is in nature of preliminary decree and suit is deemed to be pending even after that and it can look into trial Court record after passing of decree. (Para 94)

Result: Appeal dismissed with costs.