Jharkhand High Court
Harjit Singh vs Puran Chandra Putrty Son Of Arjun Purty on 6 May, 2026
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2026:JHHC:13786
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 111 of 2006
Harjit Singh, son of late Gurubachan Singh resident of Station
Road, Chaibasa, Ward No.1 of Chaibasa Municipality, P.O. and
P.S. Chaibasa, District Singhbhum (West)
... ... Defendant/Respondent no.1 1 (a)/Appellant
Versus
1. Puran Chandra Putrty son of Arjun Purty, by caste Ho,
(Scheduled Tribe), by occupation cultivation and Service,
Resident of Station Road, Chaibasa, Ward No.1 of Chaibasa
Municipality, P.O. and P.S. Cahibasa, District Singhbhum
(West)
... ... Plaintiff/Appellant/Respondent
2. Deputy Commissioner Singhbhum (West) at Chaibasa, P.S. and
P.O. Chaibasa, District West Singhbhum
... ... Defendant/respondent/respondent
3. Guru Tui, son of late Bania Tui, by caste Ho (Member of
Schedule Tribe), by occupation cultivation, resident of village
Dilimarcha, P.S. Chaibasa Muffasil, P.O. Chaibasa, District
West Singhbhum
...Proforma Defendant/Proforma respondent/Respondent
4. Baljit Singh son of late Gurubachan Singh resident of Station
Road, Chaibasa, Ward No.1 of Chaibasa Municipality, P.O. and
P.S. Chaibasa, District Singhbhum (West)
.. Defendant/Respondent nos.1 .1 (b)/Proforma Respondent
5. Kala Singh son of late Gurubachan Singh resident of station
road, Chaibasa, Ward No.1 of Chibasa Municipality, P.O. and
P.S. Chaibasa, District Singhbhum (West)
.....Defendant/Respondent no.1 1 (c) / Proforma Respondent
6. Dalbir Singh, son of late Gurubachan Singh resident of Station
Road, Chaibasa, Ward No.1 of Chaibasa Municipality, P.O. and
P.S. Chaibasa, District Singhbhum (West)
... Defendant/Respondent no.1 1 (d)/ proforma respondent
7. Jogendar daughter of late Gurubachan Singh resident of station
road, Chaibasa, Ward No.1 of Chaibasa Municipality, P.O. and
P.S. Chaibasa, District Singhbhum (West)
...Defendant / respondent no. 1 1(e) /proforma respondent
8. Dalbira, daughter of late Gurubachan Singh resident of Station
Road, Chaibasa, Ward No.1 of Chaibasa Municipality, P.O. and
P.S. Chaibasa, District Singhbhum (West)
... defendant/respondent no.1.1 /Proforma Respondent
---
CORAM :HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Appellant : Mr. Indrajit Sinha, Advocate
: Mr. Ankit Vishal, Advocate
: Ms. Ashwini Priya, Advocate
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For the Respondents : Mr. Zaid Imam, Advocate
: Mr. Zeeshan Ahmad Khan, Advocate
: Mr. Anjan Kumar, Advocate
---
CAV on 30.01.2026 Pronounced on 06.05.2026
This appeal has been filed against the judgment and decree
dated 08.03.2006 (decree signed on 28.03.2006) passed by the learned
Additional District Judge, Fast Track Court, V, Chaibasa, in Title
Appeal No. 29 of 1995/R. No. 12 of 2003 whereby the learned 1 st
appellate court has allowed the appeal preferred by the plaintiff and
has set aside the judgement and decree dated 17 June, 1995 (decree
signed on 12.07.1995) passed by learned Munsif Chaibasa in Title
Suit No. 6 of 1992. The Title Suit was dismissed by the learned
Munsif. The appeal was allowed and consequently the defendant no.1,
who is the contesting defendant, is the appellant before this court.
2. The suit was filed for declaration of plaintiff’s right, title,
interest over the Schedule A property and for confirmation of
plaintiff’s possession over the suit land and if the plaintiff was found
dispossessed from the suit land, a prayer was made for delivery of
possession to the plaintiff after evicting the defendant therefrom.
3. This appeal was admitted for final hearing vide order dated
05.03.2009 on the following substantial question of law: –
(i) Whether the court of appeal below has committed
error of law in reversing the findings recorded by the
trial court without complying the provisions under
Order 41 Rule 33 CPC?
(ii) Whether the findings recorded by the appellate court
suffers from serious perversity in as much as for non-
consideration of the evidence in its true perspective?
4. Submissions of the appellant (defendant no.1)
A. So far as the 2nd substantial question of law is concerned, the
same is very widely worded and there is no mention as to non-
consideration of which evidence in true perspective has made
the appellate court’s judgment perverse. Faced with this
situation, when the matter was taken up on 27.01.2026, the
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learned counsel for the appellant had submitted that for the 2 nd
substantial question of law only the evidence of two witnesses
would be relevant i.e. P.W. 3 and P.W.7 and he would be
referring to exhibit 1, exhibit 8, exhibit 8/a and exhibit-C.
Exhibit 1 is the sale deed executed by proforma defendant no.3
in the name of the plaintiff; Exhibit 8 is the Khatian of the year
1917 and Exhibit 8/a is the Khatian of the year 1964 and
exhibit-C is the sale deed relied upon by the defendant no.1 in
the light of the pleadings of the respective parties. The
submission of the learned counsel for the appellant as recorded
in order dated 27.01.2026 is quoted as under:
“Upon perusal of the second substantial question of
law, which is widely worded, the learned counsel for
the appellant has submitted that only evidences of two
witnesses would be relevant i.e. P.W.3 and P.W. 7 and
he shall also be placing Exhibit 1, which is the sale
deed relied upon by the plaintiffs. These three
evidences on record would be sufficient to dispose of
the substantial question of law no.2.
2. The learned counsel submits that he shall also rely
upon Exhibit C which is the sale deed of the
defendants, exhibits 8 and 8/A, which are the two
khatians exhibited by the plaintiffs. He also submits
that these evidences are to be considered in the light of
the pleadings of the respective parties.”
On the said date, the petition seeking early hearing of the appeal
was allowed and the matter was posted for hearing on
29.01.2026 and judgement was reserved on 30.01.2026.
B. The plaintiff had purchased the property from defendant no. 3
by registered sale deed dated 23.11.1990 after obtaining
permission from the Deputy Commissioner. The sale deed is
marked as Exhibit-1. Exhibit-4 is the order sheet granting
permission of the competent authority for executing the sale
deed dated 23.11.1990. The plaintiff and defendant no.3 are
tribals, therefore defendant no. 2, Deputy Commissioner being a
necessary party has been made party in the proceedings.
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C. It was the case of the plaintiff that recorded tenant with respect
to the suit property is Chhota Pandu Ho whose name was
recorded in the survey settlement of the year 1917 (exhibit-8/a)
and thereafter in the year 1964 survey settlement (exhibit-8) the
name of defendant no.3 and others appeared as co-sharer and
defendant no.3 claims to be the descendant of Chhota Pandu
Ho.
D. It was alleged that Bamia Ho and Sumi Kui, who were the
vendor and purchaser respectively with respect to the registered
sale deed of the year 1961, the sale deed was executed by
fictitious person.
E. The evidence of P.W. 3, namely Pandvir Tiu, reveals that at
paragraph 12, he deposed that the sale deed dated 13.10.1961
(exhibit C) was executed in his presence and he identified his
signature in the deed. He further deposed in paragraph 17 that
Bamia Ho, son of Ranku Ho executed the registered sale deed
in favour of Sumi Kui and thus acknowledged the sale deed
executed by Bamia Ho, son of Ranku Ho in favour of Sumi Kui.
F. Exhibit C was executed by Bamia Ho, son of Ranku Ho and
both their names have been recorded in survey settlement of the
year 1964, and therefore, they were heirs of Chota Pandu Ho.
Thus, the execution of sale deed by Bamia Ho, son of Ranku Ho
in favour of Sumi Kui was duly proved as P.W. 3 was the
person in whose presence the sale deed was executed and he has
identified his signature in the deed. Therefore, the argument of
the plaintiff that Sumi Kui and Bamia Ho, the purchaser and
seller of sale deed dated 13.10.1961 were fictitious persons,
does not hold good.
G. It is submitted that the genealogy was not proved; consequently,
the relationship of defendant no. 3 with Chhota Pandu Ho is not
proved, and therefore, the sale deed executed by defendant no.3
in favour of the plaintiff with respect to the property of Chhota
Pandu Ho is not proved. The learned court has not appreciated
this aspect of the matter.
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H. However, so far as the case of the appellant (defendant no. 1) is
concerned, the learned counsel submits that defendant no.1 was
in possession of the property since 1950. The specific case of
the defendant no.1 was that the 2nd wife of defendant no.1 was
Sumi Kui, who purchased the property from Bamia Ho, son of
Ranku Ho vide registered sale deed dated 13.10.1961 (Exhibit-
C) after taking permission from the competent authority in T.A.
Misc Case No.130 of 1961-62 (exhibit- G/8). However, the 2nd
wife expired on 12.01.1966. Consequently, defendant no.1
inherited the property, and accordingly, his name was also
entered in municipal survey published in the year 1972
(Exhibits-I and I/1).
I. The learned counsel for the appellant has placed the judgements
passed by learned trial court as well as the learned 1st appellate
court. He has submitted that though the defendant has not been
able to prove his title with respect to the property nor the
defendant could prove adverse possession over it, the burden
was on the plaintiff to prove his case, which the plaintiff failed
to do so.
J. The learned counsel submits that neither the plaintiff could
prove partition in the family of the recorded tenant nor the
plaintiff could prove title of the vendor of the sale deed
executed in favour of the plaintiff. He has also submitted that
the survey settlement of 1964 by itself is not a document of
title.
K. The learned counsel has also submitted that merely because the
2nd marriage of defendant no.1 was found to be void, the same
cannot be a reason to hold that the title of the vendor of Sumi
Kui was bad. He submits that once the title with respect to the
suit property had already passed, there was no occasion for a 2nd
sale deed with respect to the same property in favour of the
plaintiff by defendant no.3.
L. With respect to the 1st substantial question of law, the learned
counsel has referred to Order XLI Rule 33 of Code of Civil
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Procedure, 1908 to submit that relief beyond pleadings could
not have been granted. It is submitted that the relief granted by
the learned 1st appellate court that the plaintiff would have right,
title and interest over the suit land to the extent of 1/18 th of his
share and that he will be entitled to joint possession of the suit
land along with other co-sharers, is also beyond the frame of the
suit and pleadings of the parties, inasmuch as no such relief was
sought for by the plaintiff and also there was no pleading to that
effect. The case of the plaintiff was that after partition, the suit
land fell in the share of his vendor, who subsequently sold to
the plaintiff.
5. The learned counsel has relied upon the following judgements,
which are quoted as under:
(i) (2014) 2 SCC 269 (Union of India and Ors. Vs. Vasavi
Cooperative Housing Society Limited and Ors.)
Paragraphs 15 to 19
(ii) 2022 SCC OnLine SC 928 (Akella Lalitha Vs. Konda
Hanumantha Rao and Anr.) paragraph 16, 17 and 18
(iii) (1977) 3 SCC 532 (Siddu Venkappa Devadiga Vs. Smt.
Rangu S. Devadiga and Ors.) Paragraph 8
(iv) (2024) 13 SCC 553 (P. Kishore Kumar Vs. Vittal Kr.
Patkar) Paragraph 22, 31 to 33
(v) (2019) 10 SCC 259 (Prahlad Pradhan and Others Vs.
Sonu Kumhar and others) paragraph 5
6. Arguments of the Respondents
I. The learned counsel for the respondents has referred to the
schedule of the plaint and submitted that in the schedule, the
description of the property refers to old plot no.2188
corresponding to new khata no.29 and new plot no.2968 and
new municipal survey no.483 under Khata no.19 measuring an
area of only 0.06 decimal which was just a part of the property
which was recorded in the name of the recorded tenant way
back in the year 1917, whose title is not in dispute. He submits
that in the survey record of 1964, the share of the vendor of the
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plaintiff was recorded only to the extent of 1/18 and the name of
other co-sharers was also recorded.
II. That there was enough material on record to say that there was
partition and submitted that the plea of partition has been
rejected only on the ground that defendant no.3 had not deposed
before the court. On the point of partition in the family of the
recorded tenant, the evidences have not been properly
considered while recording the finding.
III. The learned counsel has submitted that 1/18 th share was already
recorded in the record of rights of 1964. He has referred to
Section 84 of the Chotanagpur Tenancy Act, 1908 to submit
that as per sub-section (3), every entry in the record of rights so
published shall be evidence of the matter referred to in such
entry and shall be presumed to be correct until it is proved by
evidence to be incorrect.
IV. The learned counsel has submitted that irrespective of the
aforesaid arguments, the plaintiff has been able to prove his title
to the extent of 1/18th share in old plot no.2188 corresponding to
new khata no.29 and new plot no.2968. The learned counsel has
submitted that the substantial question of law is widely worded
to cover any perversity which is found in the judgement and the
finding of the learned court that partition could not be proved is
perverse.
V. On the point of adverse possession as claimed by the defendant
no.1 and to oppose such a plea, the learned counsel for the
respondent has relied upon the judgement passed by Hon’ble
Supreme Court reported in (2020) 15 SCC 218 (Narasamma
and Ors. Vs. A. Krishnappa (dead) through Legal
representatives) paragraph 33, and the judgement passed by this
Court SA No.132 of 1985 [(Phoda Devi and Ors. Vs. Ganesh
Mahto (Yadav)] page 11 to submit that it was not open to the
defendant no. 1 to claim title as well as adverse possession
simultaneously.
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VI. The learned counsel has then referred to the judgement passed
by the Hon’ble Supreme Court reported in (2006) 5 SCC 353
(Prem Singh and Others Vs. Birbal and Others) paragraph 27
and also the judgement reported in (2021) 15 SCC 300 (Rattan
Singh and Ors. Vs. Nirmal Gill and others) paragraph 33, to
submit that there is presumption in connection with the
registered documents and the plaintiff is claiming title by virtue
of registered document executed by one of the legal heirs of the
recorded tenant and the name of legal heirs, as per the finding
of the learned court, is found in the record of right of 1964
showing the share of the vendor of the plaintiff to the extent of
1/18 of the property which stood recorded in the name of only
one ancestor Chhota Pandu Ho.
VII. It has been submitted that the name of the vendor of the
appellant, Bamia Ho as stated in exhibit -C, was not recorded in
the survey settlement (exhibit-8 and 8/1) and accordingly, he
had no right to sell the property. The Khaitan of the year 1964
does not reflect the name of Sumi Kui even though as per
exhibit C was executed in the year 1961.
7. Rejoinder arguments of the appellant
a. The learned counsel for the appellant, in response, has
submitted that even the contesting defendant was claiming title
in favour of Sumi Kui by virtue of registered sale deed and both
the plaintiff and the contesting defendant were referring to
registered sale deed and both were executed after permission of
the Deputy Commissioner.
b. The learned counsel submits that in spite of the provision of
Chotanagpur Tenancy Act, 1908, the revenue record are not
documents of title and revenue records cannot be the sole basis
to claim title and has referred to the judgements cited above and
relied by the appellant.
Findings of this Court.
8. Title Suit No.6 of 1992 was filed by Puran Chandra Purty, a
person belonging to Schedule Tribe “Ho” community against
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Gurubachan Singh (defendant no.1- Sikh by caste) and Deputy
Commissioner, West Singhbhum, Chaibasa. Defendant No.3 was Gura
Tiu, son of late Bamia Tiu, also belonging to Schedule Tribe.
9. The Schedule A of the plaint was as follows:
“Schedule of the land – ‘A’
The land is situated in Mouza – Deliamarcha, Thana No.108,
Estate No.163, Thana – Kolhan, Singhbhum, under Old Khata
no.29, bearing old plot no.2188, corresponding to New Khata
no.29, and New Plot No.2968, now Municipal Survey plot
no.483, under Khata No.19, measuring an area of 0.06 decimals
and bounded by: –
North – Road, South – Bamiya,
East – Mangta, West – Bhagwan Das Rungta & Niz.”
10. During the course of argument, it is not in dispute that the
property belonged to Chhota Pandu Ho, whose name was recorded in
the record of rights of the year 1917 (exhibit-8/a). The plaintiff
claimed that the suit property was sold by defendant no.3 (Gura Tiu,
son of Late Bamia Tiu claiming to be the descendant of Chhota Pandu
Ho-the recorded tenant) to the plaintiff by registered sale deed dated
23.11.1990. Defendant no.1 also claimed that the suit property was
sold by registered sale deed dated 13.10.1961 to Sumi Kui by the
alleged legal heir of the recorded tenant, namely, Bamia Ho, s/o
Ranku Ho. Both the sale deeds were executed by taking due
permission from the competent authority.
11. The case of the plaintiff was that the suit land was originally
recorded in the name of Chhota Pandu Ho, the grandfather of
proforma defendant no.3 in the finally published Survey Settlement
Operation Record of Rights of the year 1917. It was their further case
that the suit land was thereafter recorded in the name of proforma
defendant no.3 and his co-sharers in finally published Record of
Rights of the year 1964. It was also stated that at the time of filing of
the suit, the suit property was recorded in Town Chaibasa Municipal
Survey Settlement of 1970-71 in the name of defendant no.1.
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12. It was alleged that defendant no.1 managed a forged sale deed
to get the suit land recorded in his name under Khata no.19 bearing
new plot no.483 in Municipal Survey Settlement of 1970-71. It was
asserted that defendant no.1 allegedly purchased the suit land from
one Bamiya Ho, son of Ranku Ho in the name of a fictitious woman
named Sumi Kui, describing her as wife of defendant no.1, vide
registered sale deed dated 13.10.1961.
13. It was asserted that Sumi Kui was never the wife of defendant
no.1, and the defendant could not have acquired any title or interest or
possession over the suit land in the capacity of the husband of Sumi
Kui. It was asserted that after getting the sale deed and getting the
same recorded in Municipal Survey Settlement in the year 1970-1971,
the defendant showed Sumi Kui dead in 1966 and thereafter got the
land recorded in his name in Municipal Survey Settlement.
One Manjeet Kaur was the wife of defendant no.1 having sons and
daughters and Sumi Kui was not the wife of defendant no.1.
14. It was further asserted that Bamiya Ho, son of Ranku Ho, had
no right to sell the suit property in favour of Sumi Kui as the old plot
no.2188 was recorded in the name of Chhota Pandu Ho, the
grandfather of proforma defendant no.3 in Survey Settlement of 1917,
and Bamiya Ho was neither the owner of the land nor he had any right
to sell the property to Sumi Kui, and Bamiya Ho had no saleable
interest in the property and he was not the son of Chhota Pandu Ho,
rather he was the son of Ranku Ho.
15. It was asserted that the land was thereafter recorded in the name
of Gura Ho and his brothers and other co-sharers as plot no.2968
under khata no.29 in survey settlement of 1964 and the suit land fell in
the share of Gura Tiu, the proforma defendant, who was the rightful
owner of the suit land and was in exclusive possession over the same.
It was asserted that it was clear that both the vendor and purchaser i.e.
Bamia Ho and Sumi Kui were fictitious persons, and therefore, the
defendant could not have acquired any right, title or interest over the
suit land.
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A reference was also made to the necessary permission under Section
46 of the Chota Nagpur Tenancy Act in T.A. Miscellaneous Case
No.216 of 1990-91 by the Additional Deputy Commissioner, who
gave permission to sell the suit property after necessary local enquiries
about the right of the applicant-defendant no.3.
16. It was also asserted that the suit land was mutated in the name
of the plaintiff vide Mutation Case No.105 of 1990-91 vide order
dated 20.02.1990. Against this, the defendant had preferred an appeal,
which was registered as Mutation Appeal No.6 of 1990-91, and the
order of the Anchal Adhikari was set aside. Thereafter, the plaintiff
had preferred Revision which was registered as Mutation Revision
No.1 of 1991-92 and was pending for disposal.
17. A proceeding was also initiated under Section 144 Cr.P.C,
numbered as Miscellaneous Case No.41 of 1991 and another
Miscellaneous Case No.45 of 1991 was also initiated under Section
107 Cr.P.C, but both were dropped and the claim of defendant no.1
could not be sustained. Thereafter, the defendant had instituted a
proceeding under Section 144 Cr.P.C numbered as Miscellaneous
Case No.177 of 1991 against the plaintiff. The proceeding was
converted in a proceeding under Section 145 Cr.P.C and was pending
for disposal.
18. Defendant no.3 has filed a written statement supporting the
case of the plaintiff.
19. The contesting defendant no.1 filed a written statement
opposing the prayer and asserted that the sale deed executed by the
proforma defendant in favour of the plaintiff was fake, alleging that
the plaintiff and proforma defendant had entered into a clandestine
sale transaction. It was asserted that the plaintiff had not stated as to in
which survey settlement, the name of Chhota Pandu Ho, was
mentioned and it was also denied that proforma defendant no.3 was
the son of the alleged recorded tenant Chhota Pandu Ho.
20. It was also denied that subsequently the property was recorded
in the name of Gura Tiu and his co-sharer under Khata No.29, plot
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No.2968 in Hal survey settlement and the plaintiff was called upon to
strict proof of the facts.
21. It was admitted that the property was recorded in the name of
defendant no.1 in Chaibasa Municipal Survey Settlement Operation of
the year 1970-71 and the allegation in connection with the said
recording was denied. It was asserted that the plot number of the suit
property was originally numbered as 2188 and defendant no.1 claimed
that the same was legally purchased by his wife from the rightful
owner, namely Bamia Ho, by a registered sale deed dated 13.10.1961,
after obtaining due permission under Section 46 of the Chotanagpur
Tenancy Act from the Additional Deputy Commissioner, Chaibasa in
TA Miscellaneous Case No.130 of 1961-62, vide order dated
07.10.1961.
22. It was also asserted that the permission was granted after due
inquiry and identity of the proposed purchaser. Therefore, it was
incorrect to say that the purchaser, Sumi Kui, was a fictitious lady. It
was asserted that Sumi Kui, wife of defendant no.1 got her name
mutated in Anchal Case No. 37 of 1961-62 and thereafter has been
paying rent in her own name.
23. It was also asserted that it was significant to mention that
alleged vendor of the plaintiff, namely Gura Ho, admits and claims
himself to be son of Bamia Ho.
24. It was asserted that the land in question was in possession of
defendant no.1 since 1950 and the defendant had been running a
sawmill over the plot in question without any objection or obstruction
and his possession has been opened and overt and within the
knowledge of all concerned. While the defendant was in peaceful
possession of the plot, the defendant married Sumi Kui and plot in
question was acquired by her. Defendant no.1 claimed adverse
possession and asserted that the suit was barred by limitation and such
plea was taken by amending the written statement.
25. It was asserted that his wife Sumi Kui expired on 12.01.1966
and defendant no.1 became the successor in interest. It was also
asserted that Bamia Ho, vendor of the wife of the defendant had also
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expired in 1963. The suit plot was originally numbered as 2188 under
khata no.29, and was renumbered as plot no.483 under khata number
19, and the name of the defendant was shown after final publication of
the record of rights.
26. It was denied that the land in question fell in the share of Gura
Tiu and he acquired exclusive possession over the same. Rather, it was
defendant no.1 who was in possession since 1950. The defendant has
referred to the various procedures initiated under Sections 144,
145/107 of Cr.P.C and such proceedings were not disputed. A
reference was also made to proceeding under Section 71A of the
Chota Nagpur Tenancy Act and the defendant asserted that in the said
proceeding, the defendant was found in possession.
27. The learned trial court framed the following issues for
consideration:
1. Is the suit maintainable?
2. Is the suit barred under the law limitation?
3. Has the plaintiff acquired any right, title, interest in suit
property by virtue of deed of sale dated 23.11.1990?
4. Has the defendant No. 1 perfected right, title and interest
over the suit property by way of adverse possession?
5. Has the plaintiff any cause of action for the suit?
6. Is the plaintiff entitled to any relief or the relief as
claimed?
28. Both the parties led oral and documentary evidences.
Trial court’s judgement
29. Issue no.4 was taken up by the learned trial court vide
paragraph no. 28 onwards. The learned trial court recorded a finding
that defendant no.1 is a Sikh and governed by Hindu Marriage Act,
and he was married to Manjit Kaur in the year 1940 and claims to
have married another lady, namely Sumi Kui, in the year 1960, and
that during the lifetime of 1st wife, the 2nd marriage would be treated
as void, and recorded that in the present suit, Sumi Kui or her
illegitimate son or daughter were not claiming any right over the
property. The court recorded a finding that the plaintiff kept another
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lady, Sumi Kui, in the year 1960 and purchased the suit land in the
name of Sumi Kui through registered sale deed dated 13.10.1961
(Exhibit C). The court recorded that there was no bar according to the
provisions of law.
30. The court also recorded that the plaintiff’s witness P.W.3
clearly stated that Exhibit C, the sale deed dated 13.10.1961, was
executed by Bamiya Ho, son of Ranku Ho, and P.W.3 had identified
Bamiya Ho during the execution of the sale deed ‘Exhibit C’ in the
year 1961. P.W.3 had identified his signature as ‘Exhibit B’ on the
sale deed (Exhibit C).
31. The court then recorded that it was stated in the plaint that the
suit land had been recorded in the name of Gura Ho and his brothers
and other co-sharers as plot no. 2968 under khata no. 29, (according to
Survey Settlement of 1964 (Exhibit 8), in mouza Diliamarcha, and
that the suit land had fallen in the share of Gura Tiu, the proforma
defendant. P.W.3 also stated in paragraph 6 of his evidence that about
50 years back, the partition took place in the family members of
Chhota Pandu Ho. However, the khatian Exhibit 8, clarified that in the
year 1964, the property of Chhota Pandu Ho, son of Damu Ho,
devolved upon his heirs. The plaintiff did not prove the genealogical
table of the heirs of Chhota Pandu Ho.
32. The court further referred to Hal survey settlement of Mauza
Diliamarcha which was published in the year 1964 (exhibit-8), which
revealed that the property of Chhota Pandu Ho, son of Damu Ho,
bearing Khata no.29 were in possession of the aforesaid persons
mentioned therein, all members of Ho community. The court observed
that it is very common that there are two or three persons of the same
name in one family.
33. The court thereafter recorded that the sale deed (Exhibit C)
dated 13.10.1961 was executed by Bamiya Ho, son of Ranku Ho, and
none of them were recorded in Hal Survey Settlement of 1964. It was
held that Exhibit 8/a, being the survey settlement Khatian of the year
1917 clarified that the land under khata no.29 was recorded in the
name of Chhota Pandu Ho, son of Damu Ho. On the other hand, the
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survey settlement Khatian of the year 1964 [Exhibit 8] showed Damu
Ho as the son of Chhota Pandu Ho with respect to the same Khata
No.29. Exhibit 8 further clarified that another Damu Ho is son of
Bamiya Ho.
34. With the aforesaid discussion with respect to Exhibits 8 and
8/A, the court recorded that in absence of genealogical table of the
recorded tenant, Chhota Pandu Ho, son of Damu Ho, whose name was
recorded in the year 1917, it could not be believed that Bamiya Ho,
son of Ranku Ho was not the heir of Chhota Pandu Ho. The court
recorded a finding that Bamiya Ho, son of Ranku Ho, was also the
heir of Chhota Pandu Ho, son of Damu Ho.
35. The court further recorded that it is an admitted fact that Khata
No.29 bearing plot No. 2188, area 6 decimal land which was recorded
in the year 1917 Khatian Exhibit 8/a is the same land which has been
recorded in Hal Survey Settlement, 1964 (Exhibit 8) under Khata
No.29, plot No.2968, area 6 decimal, and it is the suit land. Further,
Exhibit 8 clarified that the suit land has been shown in the possession
of Bara Bamiya Ho. The court recorded a finding that Bara Bamiya
Ho is no one but he is son of Ranku Ho, and being old man, he has
been named as Bara Bamiya Ho.
36. Having held that Bara Bamiya Ho was son of Ranku Ho and
was called Bara Bamia Ho because he was an old man, the court
recorded that the sale deed dated 13.10.1961 (Exhibit C) was executed
by the right person, who is the heir of Chhota Pandu Ho. The court
further observed that this finding is strengthened because of the fact
that the plaintiff did not examine any witness, who are the heirs of
Chhota Pandu Ho, and non-examination of any family member of
Chhota Pandu Ho falsified all the claims of the plaintiff mentioned in
paragraphs 6, 15 and 16 of the plaint.
37. The court further recorded that during argument, the learned
counsel for the defendant had submitted that the name of Sumi Kui
could not find mention in Survey Settlement of 1964 because the
defendant could not get the registered sale deed and the error was
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rectified during municipal survey settlement which was published in
the year 1971-72.
38. The learned trial court thereafter observed that the aforesaid
fact that Bamiya Ho, son of Ranku Ho, had a right to execute the sale
deed (Exhibit C) in favour of Sumi Kui, as the certified copy of the
SAR Case No.3 of 1995 (Exhibit G/1), SAR Case No. 1 of 1986
(Exhibit G/2), and SAR Case No.2 of 1986-1987, were filed by
different scheduled tribe members to get back the property which was
in possession of defendant No.1. Those different tribe members never
raised the issue which has been raised by the present plaintiff that
Sumi Kui was a fictitious lady and Bamiya Ho, son of Ranku Ho, did
not have any right, title and interest over the property to execute the
sale deed Exhibit C.
39. The court ultimately held that in the light of the aforesaid
documents, the plaintiff was estopped under law to challenge the
genuineness of the sale deed dated 13.10.1961 executed by Bamiya
Ho, son of Ranku Ho, in favour of Sumi Kui.
40. The court observed that in absence of any evidence that Sumi
Kui was just a mistress of defendant No.1, the suit property could
easily be said to be succeeded by the occupier, defendant No. 1. The
court further held that the plaintiff could not succeed, as the property
had been purchased in the name of Sumi Kui vide registered sale deed
of the year 1961, Exhibit C, and this fact was corroborated by
defendant No. 1 in paragraph 14 of his cross-examination. The court
recorded that all the documents from 1961 to 1991 were favoring
defendant No. 1 and held that the aforesaid documents established
that defendant No. 1 was rightful owner of the suit property by virtue
of sale deed dated 13.10.1961 (Exhibit C) and decided issue No. 4 in
favour of defendant No. 1.
41. Having held that defendant No.1 was rightful owner of the suit
property by virtue of sale deed dated 13.10.1961 (Exhibit C) executed
by Bamiya Ho, son of Ranku Ho, the court took up the matter with
regard to issue nos. 5 and 2 on the point of adverse possession. The
court recorded that both the oral and documentary evidence clarified
16
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that defendant no.1 was the occupier of the suit land since 1960 and
his possession over the suit plot was also established through these
documents. The court held that the possession was open and
continuous and also hostile to the interest of Gura Ho also, who is the
vendor of the suit plot to the plaintiff. The court recorded that Exhibit
8, which is certified copy of Khatian published in the year 1964, also
clarified that said Gura Ho, son of Bamiya Ho, was not in possession
of the suit plot no.2968 of Khata no.29. The court declared that
defendant no.1 had perfected his title over the suit property by way
of adverse possession and the suit was barred by limitation, having
been filed in the year 1992, and decided the issue in favour of
defendant no.1.
42. Thereafter, the learned court took up issue no.3, title based on a
registered sale deed as claimed by the plaintiff being the property
purchased from Gura Ho, son of Bamiya Ho, through registered sale
deed dated 23.11.1990 after having obtained permission under Section
46 of the Chotanagpur Tenancy Act from the appropriate authority.
43. The court recorded that it was the specific case of the plaintiff
that the plaintiff had purchased the suit land from the rightful owner
namely Gura Tiu, who had exclusive possession of the suit land
according to Hal survey settlement published in the year 1964.
However, on perusal of the Khatian of the year 1964 (Exhibit 8), it
was clear that the suit land was in possession of Bara Bamiya Ho and
hence the aforesaid statement of the plaintiff stood falsified. The court
further recorded that Bamia Ho, son of Ranku Ho, had already sold
the suit land in the year 1961 vide sale deed dated 13.10.1961, who
was also the heir of Chhota Pandu Ho, and the vendor of the plaintiff
Gura Tiu is also the son of Bamiya Ho. The court recorded that in
tribe ‘Ho’, there are many persons of one name in one family. The
court recorded that this fact clarified that predecessor of Gura Ho had
already sold the suit land in the year 1961 to Sumi Kui, and therefore,
Gura Tiu did not have a right to sell the same property to the plaintiff.
Therefore, the court held that Gura Tiu, son of Bamiya Ho, was not
17
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the rightful owner to sell the suit property again in the name of the
plaintiff.
44. The court also recorded that the evidence of P.W.3 (Pandvir
Tiu) itself clarified that the present plaintiff never came in possession
of the suit land. The court recorded that the plaintiff has clarified that
he is literate person and employed in Punjab National Bank and he
must have knowledge that the suit land is under municipal area as
clarified by the Government notification dated 29.01.1961 and the suit
land came under the Chaibasa Municipality. The court further
recorded that the plaintiff ought to have been aware of the municipal
survey operations conducted in the year 1970-71, and it was for the
plaintiff to verify as to in whose name the property was recorded in
the said municipal survey before purchasing the property in the year
1990. The court also observed that Khatian (Exhibit I) which was
published in the year 1970 after Chaibasa municipal survey settlement
clarified that the name of defendant no.1 was recorded as ‘Basari Hak’
and the court recorded that defendant no.1 has already proved that he
was rightful owner of the property and has perfected his right, title and
interest over the suit property.
The learned trial court dismissed the suit.
1st Appellate court’s judgement
45. The plaintiff filed an appeal before the learned 1 st Appellate
Court, and the learned 1st Appellate Court also took up the same issues
as were framed by the learned trial court.
46. With respect to issue nos.2 and 4 relating to limitation and
adverse possession of defendant no.1, the learned 1st Appellate Court
discussed the same from paragraph 15 onwards and recorded that
Sumi Kui was not the legally wedded wife of defendant no.1, as
defendant no.1 was already having a wife, namely Manjit Kaur, and
defendant no.1, being governed by Hindu Marriage Act, was not
entitled for a 2nd marriage. The court found that defendant no.1
claimed to be the owner of the property by virtue of husband of Sumi
Kui, and since the alleged marriage with Sumi Kui was not valid and
she being not the legally wedded wife of defendant no. 1, therefore the
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possession of Sumi Kui over the suit land cannot be held to be in
possession of defendant no. 1 and that defendant no. 1 did not acquire
any right with respect to the property through Sumi Kui.
47. So far as the plea of adverse possession is concerned, the court
considered the documents and materials on record and observed that
even as per the case of the defendant, the property belonged to Sumi
Kui, who had died in the year 1966, and therefore, the question of
defendant No. 1 being in possession prior to 1966, and claiming
possession from any date prior to 1966 was not acceptable and if his
possession is taken from the year 1966, 30 years had not elapsed on
the date of filing the suit, i.e., 06.03.1992. The Court recorded that for
the purposes of property involved in this case, the period of limitation
under Section 65 of the Limitation Act is 30 years. This was
apparently on view of the amendment in Limitation Act so far as it is
applicable to the members of Scheduled Tribe.
48. The learned court rejected the claim of title of the defendant
through Sumi Kui and also rejected the claim of adverse possession
and decided issue nos. 2 and 4 against the defendant and in favour
of the plaintiff, who was the appellant and finding of the learned
trial court on the point of issue nos.2 and 4 was reversed by the
learned 1st appellate court.
49. Thereafter, the learned court took up issue no.3, i.e. as to
whether the plaintiff acquired right, title and interest with respect to
the suit property by virtue of sale deed dated 23.11.1990 (Exhibit 1),
which was executed by Gura Tiu, son of late Bamiya Tiu, and
observed that admittedly, the property was purchased after getting due
permission from the Deputy Commissioner in Miscellaneous Case
No.216 of 1990-1991 (Exhibit 4). The signature of Gura Tiu on the
sale deed was duly proved by PW9 (plaintiff) who had also stated that
the disputed property came in the share of Gura Tiu after partition and
that the suit land was recorded in the year 1913-1914 settlement in the
name of Chhota Pandu Ho, who was the grandfather of Gura Tiu and
also asserted that after purchase, the plaintiff came in possession of
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the property. There were also proceedings under Sections 144 Cr.P.C
and also 107 Cr.P.C but the cases were dropped.
50. The Court ultimately recorded that the Court had already held
while deciding issue nos. 2 and 4 that Exhibit C did not confer any
right, title and interest to defendant no. 1 since Sumi Kui was not the
legally wedded wife. The Court further recorded that Exhibit C
showed that Sumi Kui purchased the land of Khata no. 29 belonging
to Plot no. 2188 from Bamia Ho, son of Ranku Ho, but surprisingly
the plot no. 2188, Khata no. 29, was not recorded in the name of
Bamia Ho, son of Ranku Ho, in the survey settlement of 1917 nor any
other later survey settlement.
51. Therefore, the court held that it was doubtful that Bamia Ho,
son of Ranku Ho, had any right, title or interest in Plot No. 2188. The
court recorded that Exhibit 1, which was given a new no. 483 in
Survey Settlement of the year 1972, was wrongly recorded in the
name of defendant No. 1. The court thereafter observed that Exhibit 1
was duly proved and it was executed after taking permission from the
authority concerned. Therefore, transfer through this deed amounts to
transferring right, title and interest in the property to the extent of the
share of the vendor of Exhibit 1. The court was of the view that Gura
Tiu and any of his brothers or co-sharers of Khata No. 29 had not been
examined to prove the partition amongst them, and even Gura Tiu,
who was party to the suit, has not been examined. The court held that
the testimony of other witnesses at this point, including the plaintiff,
was not reliable on the point of partition between the co-sharers of
Khata No. 29, and thereafter went on to hold that each plot of Khata
No. 29 of the co-sharers had a right, title and interest as per share
mentioned in the Khatian and held that Gura Tiu had 1/18 share in plot
no.2968 which he could pass to the plaintiff vide sale deed (Exhibit 1).
The court recorded that the plaintiff had failed to prove his possession
over the suit land and that he had the right to possess the same jointly
with other co-sharers and the issue was decided accordingly.
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52. Consequently, the appeal was allowed and the decree passed by
the learned court in Title Suit No.6 of 1992 dated 17.06.1995 was set
aside and following relief was granted to the plaintiff:
“1. The plaintiff has the right, title and interest
over the suit land described in schedule A to the
extent of his share, i.e. 1/18.
2. The plaintiff is also entitled to jointly possess the
suit land along with other co-sharers.”
Findings on 1st substantial question of law.
Whether the court of appeal below has
committed error of law in reversing the
findings recorded by the trial court without
complying the provisions under Order 41 Rule
33 CPC?
53. Order 41 Rule 33 of the Code of Civil Procedure is quoted as
under:
“33. Power of Court of Appeal. – The Appellate Court shall have power
to pass any decree and make any order which ought to have been passed
or make and to pass or made such further or other decree or order as
the case may require, and this power may be exercised by the Court
notwithstanding that the appeal is as to part only of the decree and may
be exercised in favour of all or any of the respondents or parties,
although such respondents or parties may not have filed any appeal or
objection [any may, where there have been decrees in cross-suits or
where two or more decrees are passed in one suit, be exercised in
respect of all or any of the decrees, although an appeal may not have
been filed against such decrees]:
Provided that the Appellate Court shall not make any order under
Section 35-A, in pursuance of any objection on which the Court from
whose decree the appeal is preferred has omitted or refused to make
such order.”
54. It has been vehemently argued by the learned counsel for the
appellant that the relief granted to the plaintiff by the learned 1 st
appellate court is beyond the scope of the suit as it was never the case
of the plaintiff that the plaintiff had title over the suit property along
with the co-sharers. For this, the learned counsel has relied upon the
judgment reported in 2022 SCC Online 928 (Akella Lalitha Vs.
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Konda Hanumantha Rao and Anr.) paragraphs 16, 17 and 18 to
submit that the Court cannot grant relief for which no prayer or
pleading was made, depriving the respondents to an opportunity to
oppose or resist such relief and relief not found on pleadings should
not be granted.
55. For the same point, he has earlier relied upon the judgment
reported in (1977) 3 SCC 532 (Siddu Venkappa Devadiga Vs. Smt.
Rangu S. Devadiga and Ors.) paragraph 8 to submit that a case
cannot be based on grounds outside the plea of the parties, which is
the basic principle of law.
56. This Court finds that the plaintiff had taken a specific plea in
paragraph 7 of the plaint that the suit land was recorded in the name of
Gura Ho and his brothers and other co-sharers, and upon partition, the
suit land had fallen in the share of Gura Tiu, the proforma defendant
and consequently, Gura Tiu, the vendor of the plaintiff was the
exclusive and rightful owner of the suit land and was in exclusive
possession.
57. On the other hand, it was the case of the contesting defendant,
while responding with regard to paragraph 7 of the plaint that the
alleged recording of name of Gura Ho and others with respect to plot
no.2968 under khata no.29 in the survey settlement of 1964, even if
found to be correct, the same does not bestow the alleged recorded
tenants with any right, title, interest and possession over the suit
property as none of the alleged persons were rightful owner of the
property nor they ever enjoyed possession over the same at any point
of time, more particularly the fact that defendant no.1 was in
possession in or about 1950. It was also denied that the suit land had
fallen in the share of one Gura Tiu or that he was the rightful owner of
the plot and was in possession. The defendant in para 10 of the written
statement has stated that it was significant to note that the alleged
vendor of the plaintiff, Gura Ho, admitted and claimed himself to be
the son of Bamia Ho. The contesting defendant claimed that the
property was sold by Bamia Ho by a registered sale deed in favour of
the wife of defendant no.1, Sumi Kui.
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58. This Court finds that neither the suit was a partition suit nor any
such issue was framed as to whether the property was partitioned
amongst the descendants of Chotta Pandu Ho nor the other
descendants of Chotta Pandu Ho were made party in the suit except
defendant no.3, Gura Tiu son of Late Bamia Tiu, who filed a written
statement in support of the plaintiff, but never participated in the
proceedings.
59. In absence of any foundational plea as to the extent the vendor
of defendant no.1 had the title over the property, there was no scope
for the learned 1st appellate court to enter into the share of the co-
sharers including that of defendant no.3 to decree the suit. Further, in
absence of partition having been proved, the learned 1st appellate court
could at best declare that the plaintiff was the purchaser from one of
the co-sharers of the suit property but could not have determined his
share. It is important to note that the suit property was only one of the
properties which were recorded in the name of Chotta Pandu Ho in the
year 1917.
60. In view of the aforesaid, this Court is of the view that the
learned 1st appellate court has certainly travelled beyond the scope of
the suit while declaring the share of the vendor of the plaintiff over the
suit property and accordingly the relief granted to the plaintiff as per
the impugned judgement that the plaintiff would be entitled to 1/18th
share of the suit property cannot be sustained in the eyes of law.
61. While answering the 1st substantial question of law, this Court
is of the considered view that the learned 1st appellate court has gone
beyond the powers conferred under Order XLI Rule 33 of the Code of
Civil Procedure while holding the extent of share the vendor of the
plaintiff with respect to the suit property. After having held that the
plaintiff failed to prove partition amongst the descendants of recorded
tenant, Chhota Pandu Ho, as recorded in the Khaitan of 1917, (exhibit-
8/a), there was no scope for the 1st appellate court to declare the
undivided share of the vendor of the plaintiff, namely, Gura Tiu son of
Late Bamia Tiu, that too in the absence of other co-sharers of the
properties left by late Chotta Pandu Ho, including the suit property.
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62. The 1st substantial question of law is accordingly decided in
favour of the appellant (defendant no.1) and against the respondent
(plaintiff). So far as the conflicting claim of respective parties, each
based on registered sale deeds is concerned, the same will be
considered while answering the substantial question of law no.(ii).
Findings on 2nd substantial question of law.
Whether the findings recorded by the appellate
court suffers from serious perversity in as much as
for non-consideration of the evidence in its true
perspective?
63. The findings of the learned 1st appellate court rejecting the
claim of adverse possession of defendant no.1 and reversing the
finding of the learned trial court on this point is based on appreciation
of materials on record and no perversity with respect to such finding
has been pointed out by the learned counsel for the appellant
(defendant no.1). Further, defendant no.1 was claiming title by virtue
of the husband of Sumi Kui but it has been held that Sumi Kui was not
the legally wedded wife of defendant no.1 as he already had a wife.
This finding is also not in dispute. In such circumstances, the finding
of the learned 1st appellate court rejecting the plea of adverse
possession as claimed by defendant no. 1 does not call for any
interference even when seen in the light of 2nd substantial question of
law.
64. Thus, the finding of the learned court that defendant no.1
neither had any title through Sumi Kui the purchaser of the suit
property through exhibit C in the year 1961 nor had perfected his
title through adverse possession does not call for interference.
65. So far as the title of the suit property is concerned, the crux of
argument of the appellant (defendant no.1) is that the plaintiff ought to
have proved his title through exhibit-1 of the year 1990 to claim
recovery of possession from defendant no.1 as the suit property was
already sold vide registered sale deed of the year 1961(exhibit-C) to
Sumi Kui. It has been argued that merely because defendant no.1 has
failed to prove his title through Sumi Kui or through adverse
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possession, the same cannot be a reason to decree the suit in favour of
the plaintiff. It has also been argued that the plaintiff has to stand on
his own legs to prove his title through the vendor, defendant no.3
through registered sale deed of the year 1990 (exhibit-1).
66. It was the case of the plaintiff that the vendor of the plaintiff,
defendant no.3 was the co-sharer of the properties left by Chotta
Pandu Ho and defendant no.3 upon partition had sold his exclusive
share to the plaintiff. It was asserted that father of defendant no.3
[Gura Tiu son of Bamia Ho and grandson of Chotta Pandu Ho],
namely Bamia Ho, received the suit property upon partition and
defendant no.3 had exclusive right, title and interest over the suit
property which he sold to the plaintiff vide registered deed of the year
1990 (exhibit-1). It was asserted that the suit property (plot no. 2968)
was recorded in the year 1964 [exhibit-8], exclusively in the name of
Bara Bamia Ho. Since the plaintiff claimed that the suit property was
exclusive property of defendant no.3 pursuant to partition, the plaintiff
denied the title of Bamia Ho s/o Ranku Ho, the vendor of Sumi Kui
with respect to registered sale deed of the year 1961(exhibit-C). The
plaintiff further claimed that Sumi Kui was a fictitious lady. The
learned court has recorded that in ‘Ho community’ at times, persons in
different generation had the same name.
67. This Court also finds that the learned 1 st appellate court has
rejected the plea of the plaintiff regarding previous partition and has
also rejected the plea of the plaintiff that the suit property was the
exclusive property of defendant no.3 as a result of partition after
having recorded that defendant no.3, who was alive did not participate
in the suit. However, the learned 1st appellate court has recorded a
clear finding that defendant no.3 was the co-sharer of the property and
has held that defendant no.3 had sold the undivided interest in the
property to the plaintiff and his share was to the extent of 1/18th of the
suit property.
68. With respect to exhibit-C the findings of the learned 1st
appellate court are as under:-
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” I have already found that Ext.C does not confer any right,
title and interest to defendant since Sumi Kui was not legally
wedded wife and therefore he could not inherit any property
further Ext. C shows that Sumi purchased land of Khat no. 29
belonging to plot no. 2188 from Bamia Ho, s/o Rankua Ho
but surprisingly plot no. 2188 of was not khata no. 29 was
not recorded in the name of Bamia Ho son of Ranku in the
survey settlement of 1917 not any other later survey
settlement. Therefore, it becomes doubtful that Bamia son of
Ranku has right, title and interest in the plot no. 2188 of
khata no 29. I find that Ext 8 and 8/A shows that such plot
and khata no. was recorded in the name of Chotta Pandu Ho.
On this ground Ext.C does not confer any right, title and
interest in the suit land. But any how in Ext.I the said plot
which has been given a new no. 483 in the survey settlement
of the year 1972 has been wrongly recorded in the name of
Gura Bachan Singh.”
69. Thus, while considering exhibit-C, the learned 1st appellate
court held as follows: –
a. Exhibit-C does not confer any right, title and interest to
defendant since Sumi Kui was not legally wedded wife and
therefore the defendant could not inherit any property.
b. Exhibit-C shows that Sumi Kui purchased land of Khat no.
29 belonging to plot no. 2188 from Bamia Ho, s/o Rankua
Ho but surprisingly plot no. 2188 of khata no. 29 was not
recorded in the name of Bamia Ho son of Ranku in the
survey settlement of 1917 nor in any other later survey
settlement.
c. On the aforesaid basis it was held that therefore, it became
doubtful that Bamia son of Ranku had right, title and interest
in the plot no. 2188 of khata no 29.
d. Ext 8 and 8/A shows that such plot and khata no. was
recorded in the name of Chotta Pandu Ho.
e. On aforesaid ground Ext.C does not confer any right, title
and interest in the suit land.
70. In Union of India v. Vasavi Coop. Housing Society Ltd.
(2014) 2 SCC 269, it has been observed that it is trite law that, in a
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suit for declaration of title, the burden always lies on the plaintiff to
make out and establish a clear case for granting such a declaration and
the weakness, if any, of the case set up by the defendants would not be
a ground to grant relief to the plaintiff. A reference has been made to
earlier judgement wherein it was held that in a suit for declaration if
the plaintiffs are to succeed they must do so on the strength of their
own title and that in a suit for ejectment based on title, it was
incumbent on the part of the court of appeal first to record a finding on
the claim of title to the suit land made on behalf of the plaintiff. The
court is bound to enquire or investigate that question first before going
into any other question that may arise in a suit. The court observed the
legal position as under: –
“19. The legal position, therefore, is clear that the
plaintiff in a suit for declaration of title and possession
could succeed only on the strength of its own title and
that could be done only by adducing sufficient
evidence to discharge the onus on it, irrespective of the
question whether the defendants have proved their case
or not. We are of the view that even if the title set up
by the defendants is found against (sic them), in the
absence of establishment of the plaintiff’s own title, the
plaintiff must be non-suited.”
71. In P. Kishore Kumar v. Vittal K. Patkar, (2024) 13 SCC 553, it
has been held that in a dispute with respect to determination of title,
merely pointing out the lacunae in the defendant’s title would not
suffice. Having instituted the suit for declaration, the burden of proof
rested on the shoulders of the plaintiff to reasonably establish the
probability of better title.
72. It is not in dispute that 2188 is the old plot number with respect
to the suit property as recorded in the year 1917 (exhibit-8/a) and the
corresponding plot in survey record of 1964 (exhibit-8) is 2968. It is
also not in dispute during the course of arguments that the entire khata
no.29 including plot no. 2188 has been exclusively recorded in the
name of Chotta Pandu Ho and in the subsequent survey of the year
1964, the same is recorded in the name of descendants of Chotta
27
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Pandu Ho and the suit plot is numbered as 2968 and further exhibit- 8
reveals that the suit plot is recorded in possession of Bara Bamia Ho.
The entries in exhibit-8 have been discussed by the learned 1st
appellate court and upon perusal of the same, it is apparent that the
entries have been recorded with respect to Khata no.29 are as
follows:-
a. in the name of Pandu Ho, Singh Rai Ho, Ranku Ho, Gura,
Rajnara and Damu Ho, all sons of Bamia Ho one share each
and equal share;
b. Damu Ho s/o Chotta Pandu Ho one share;
c. Lakshman Ho s/o Ranku Ho one share.
Plot No.2968 has been mentioned in the exhibit 8 in
possession of Bara Bamia Ho.
73. The exhibit- 8 reveals that one of the recorded tenants in 1964
khaitan was Ranku Ho and exhibit-C was executed by Bamia Ho s/o
Ranku Ho. Further, there is no question of recording of name of
Ranku Ho in survey settlement of 1917 as the survey settlement of
1917 (exhibit-8/a) was exclusively recorded in the name of Chotta
Pandu Ho. Further, the suit plot no.2188 in Khaitan of 1917 (exhibit-
8/a) was recorded in the name of Chhota Pandu Ho and the
corresponding plot was plot no.2968 in Khaitan of the year 1964
(exhibit- 8) and was shown in the possession of Bara Bamia Ho.
74. In Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259, a
case arising out of partition suit, the contention raised by the
appellants that since as per the Survey Settlement of 1964 the suit
property was exclusively recorded in the name of a tenant, the suit
property was his self-acquired property, was rejected by observing
that the entries in the revenue records do not confer title to a property,
nor do they have any presumptive value on the title. They only enable
the person in whose favour mutation is recorded, to pay the land
revenue in respect of the land in question. As a consequence, it was
held that merely because name was recorded in the Survey Settlement
of 1964 as a recorded tenant in the suit property, it would not make
him the sole and exclusive owner of the suit property.
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75. Since the plea of previous partition amongst the descendants of
Chhota Pandu Ho has been rejected by the learned 1st appellate court,
therefore plot no.2968 in Khaitan of the year 1964 (exhibit- 8) shown
in the possession of Bara Bamia Ho was certainly a joint family
undivided property.
76. The finding of the learned 1st appellate court to hold that it
was doubtful that Bamia son of Ranku had right, title and interest in
the plot no. 2188 of khata no. 29 based on entries in the record of
rights is perverse and cannot be sustained in the eyes of law.
77. The case of the plaintiff was that there was partition amongst
the descendants of Chhota Pandu Ho and the suit property was
exclusively allotted to defendant no.3 and hence the vendor of Sumi
Kui namely, Bamia Ho s/o Ranku Ho had no saleable interest over the
suit property and it was their case that Sumi Kui was a fictitious lady.
However, the fact that the vendor of Sumi Kui i.e. Bamia Ho s/o
Ranku Ho was the descendant of Chhota Pandu Ho was not in dispute.
78. It is important to note that the plea of the plaintiff that Sumi Kui
was a fictitious lady was falsified by the cross examination of P.W-3.
P.W. 3 in his cross-examination at paragraph 12 has stated that the
sale deed dated 13.10.1961 was written by one Chandan and this
witness has put his signature on the sale deed as witness and exhibited
his signature as Exhibit B. Further, in paragraph 19, he has stated that
Bamia Ho is son of Ranku Ho and he had sold the property to Sumi
Kui after taking due permission and he had put his signature in the
sale deed as exhibit B after being duly satisfied. He has also stated that
in the registry office, he had identified Bamia Ho, son of Ranku Ho
and consideration amount was paid then and there.
79. From cross examination of P.W-3, it is clear that this witness
had identified the vendor of Sumi Kui, that is, Bamia Ho s/o Ranku
Ho. Thus, the witness of the plaintiff in cross-examination has
supported the due execution of exhibit- C, and therefore, the case of
the plaintiff that the sale deed (exhibit-C) was fictitious stood falsified
by non-less than the witness of the plaintiff, P.W-3.
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80. In Prem Singh v. Birbal, (2006) 5 SCC 353, it has been held
that there is a presumption that a registered document is validly
executed. Paragraph 27 of the said judgement is quoted as under: –
“27. There is a presumption that a registered
document is validly executed. A registered
document, therefore, prima facie would be valid in
law. The onus of proof, thus, would be on a person
who leads evidence to rebut the presumption. In
the instant case, Respondent 1 has not been able to
rebut the said presumption.”
81. In Rattan Singh v. Nirmal Gill, (2021) 15 SCC 300, the
Hon’ble Supreme Court observed that when the disputed documents
are registered, while examining as to upon whom the onus of proof
would lie, the courts would be guided by the settled legal principle
that a document is presumed to be genuine if the same is registered, as
held by this Court in Prem Singh v. Birbal (supra). The Hon’ble
Supreme court held that in view of aforesaid proposition, the initial
onus was on the plaintiff, who had challenged the registered
document.
82. Further, it was never the case of the plaintiff that Bamia Ho son
of Ranku Ho, vendor of exhibit-C was not one of the descendants of
Chotta Pandu Ho. Rather their case was that on account of partition,
the suit property fell in exclusive share of Defendant no.3 which was
rightfully sold by defendant no.3 to the plaintiff in the year 1990
(exhibit-1). The learned 1st appellate court rejected the plea of
partition and also held that the genealogy could not be proved as even
defendant no.3 was not examined although he was alive. In such
circumstances, the execution of exhibit- C having been proved by the
P.W-3, the right of Bamia Ho s/o Ranku Ho, one of the descendants of
Chhota Pandu Ho, could not have been completely discarded and the
suit property was a part of the undivided share of properties of Chotta
Pandu Ho which was sold by Bamia Ho s/o Ranku Ho in favour of the
Sumi Kui. Thus, the suit property having been sold in the year 1961
through exhibit-C could not have been sold again in the year 1990
(exhibit 1) by another co-sharer to the plaintiff.
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83. It is important to note that plaintiff never prayed for a
declaration that exhibit- C was illegal or otherwise null and void on
account of any other reason except that it was challenged in the plaint
that it was executed by fictitious persons which was falsified by the
evidence of P.W-3.
84. It is also important to note that neither previous partition
amongst the co-sharers of Chhota Pandu Ho nor the genealogy of
Chhota Pandu Ho was proved by the plaintiff. The plaintiff failed to
prove that exhibit-C was executed in favour of fictitious person or was
executed by person who had no title. The plaintiff miserably failed to
prove his title on the basis of registered sale deed of the year 1990
(exhibit-1) as the property was already sold vide exhibit- C to Sumi
Kui. Though defendant no.1 could not prove his title through Sumi
Kui or through adverse possession, but the same cannot be a ground to
decree the suit as the plaintiff has to prove his title through cogent
evidence, which the plaintiff has failed to prove.
85. While answering the 2nd substantial question of law, it is held
that –
a. The finding of the learned court that defendant no.1
neither had any title through Sumi Kui, the purchaser of
the suit property through exhibit C in the year 1961 nor
had perfected his title through adverse possession, does not
call for interference.
b. The finding of the learned 1st appellate court in holding
that it was doubtful that Bamia son of Ranku (vendor of
registered exhibit-C) had right, title and interest in the plot
no. 2188 of khata no 29 based on entries in the record of
rights, is perverse and cannot be sustained in the eyes of
law.
c. Consequently, the plaintiff has failed to prove his title
based on registered sale deed of the year 1990 (exhibit-1)
as the suit property was already sold by his co-sharer to
Sumi Kui vide exhibit- C of the year 1961.
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86. In view of the answers to both the substantial questions of law,
this appeal is allowed.
87. Pending interlocutory application, if any, is dismissed as not
pressed.
(Anubha Rawat Choudhary, J.)
Date of Pronouncement: 06.05.2026
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