advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, May 13, 2016

Order 8 Rule 5= whether execution of sale deed in favour of plaintiff has been proved, the High Court has held that the sale deed has not been proved for want of examination of Buchamma. - It is settled law that denial for want of knowledge is no denial at all. The execution of the sale deed was not specifically denied in the written statement. Once the execution of the sale deed was not disputed it was not necessary to examine Buchamma to prove it. The provisions contained in Order 8 Rule 5 require pleadings to be answered specifically in written statement.= Effect of non - effective cross examination = there was no effective cross-examination made on the plaintiff’s witnesses with respect to factum of execution of sale deed, PW.1 and PW-2 have not been cross examined as to factum of execution of sale deed. The cross-examination is a matter of substance not of procedure one is required to put one’s own version in cross-examination of opponent. The effect of non cross-examination is that the statement of witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal & Ors. v. Debnath Bhagat & Ors. AIR 1963 SC 1906. This Court repelled a submission on the ground that same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put the court would presume that the witness account has been accepted as held in M/s. Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. & Anr. AIR 1958 Punjab 440. ; when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. ; It is also settled law that passing of consideration under a sale deed cannot be questioned by third party. Defendant no. 3 has not been able to establish her case that she is an adopted daughter of the deceased Yashoda and thus, she being the third party, could not have questioned the execution of the sale deed by Buchamma on the ground of passing of consideration ;whether the plaintiff was placed in possession by Buchamma, in our opinion, it is apparent that Yashoda was enjoying the property in her lifetime, though it appears that defendant no. 3 was residing with Yashoda, but she has not claimed any derogatory title to Yashoda nor has claimed adverse possession. Her claim of an adopted daughter of Yashoda has not been found established. The entry of possession in some revenue records simplicitor does not confer any right to defendant no. 3 to retain the possession of the property. The property on the death of Yashoda had been passed on to Buchamma being class IInd heir, as such she had the right to sell the property to plaintiff. Even if Buchamma had not placed plaintiff in possession of property on strength of his title conferred by way of sale deed in question he had right to recover possession. The first appellate Court was thus right in decreeing the suit. The High Court has erred in allowing appeal.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO. 4816  OF 2016
               [Arising out of SLP (Civil) No. 13076 of 2007]

Muddasani Venkata Narsaiah (D) Th. Lrs.                      .. Appellants
                                   Versus
Muddasani Sarojana                                      .. Respondent

                               J U D G M E N T

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   not   been
established.  The case set up by defendant no.3 that Yashoda cultivated  the
suit land during her lifetime has not been found to be  established  in  the
absence of any document to that effect.   Defendant no.3  had  no  title  to
the  property,  as  such   she  had  no  right  to  retain  its  possession.
Defendant no. 3 being third party could  not  question  the  sale  deed  and
passing of consideration.  The sale deed is  valid  and  binding.   Even  if
Buchamma has not delivered the possession to the plaintiff  that  would  not
affect his right to claim possession on the strength of his title  conferred
upon him under the sale deed.  It was not necessary to examine  Buchamma  as
she had never objected to  the  execution  of  sale  deed.  In  the  written
statement only her authority to sell the property was  questioned.   It  was
not necessary to file a suit for declaration of title as  Buchamma  acquired
the suit property  by  way  of  inheritance  from  the  absolute  owner  and
thereafter sold it to the plaintiff.

8.    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  and  allowed  the  second
appeal.    Aggrieved thereby, the  plaintiff  has  come  up  in  the  appeal
before us.

9.    It was submitted on behalf of the appellant that the  High  Court  has
erred in law in reversing the  judgment  and  decree  passed  by  the  first
Appellate Court.  It was not necessary to seek the  relief  for  declaration
of title as there was no serious cloud on the title of the  plaintiff.   The
authority of Buchamma to execute the sale deed had been  put  into  question
not factum of execution of  sale  deed.    Thus  it  was  not  necessary  to
examine Buchamma and defendant No.3 being a third party cannot question  the
passing of consideration under the sale deed.  Buchamma was the  sole  Class
II heir left.

10.   Per contra, the learned counsel for  the  respondents  urged  that  no
case of interference was made out.   It was necessary for plaintiff to  seek
relief for declaration of title.   The  suit  has  rightly  been  dismissed.
The defendant no. 3 was in possession even in the lifetime of  Yashoda.   It
is submitted that even if her case of adoption has  not  been  found  to  be
established, the plaintiff has not been able to  establish  his  entitlement
to recover the possession.

11.   In the instant case, as per concurrent findings  of  all  the  courts,
defendant no. 3 has failed to prove the factum of her adoption  by  deceased
Yashoda in the year 1959.  There was no corresponding document  of  adoption
and other documentary evidence showing that defendant no. 3  had  ever  been
adopted by the deceased Yashoda.  True it is that in  some  of  the  revenue
entries the name of defendant no. 3 has been shown as person in  possession,
but not in the capacity of adopted daughter.   Yashoda  was  admittedly  the
owner of the  property.   The  plaintiff  has  based  his  case  to  recover
possession on the strength of the sale deed  executed  by  Buchamma  in  his
favour.

12    In the aforesaid background of facts, we come to the question  whether
it was necessary to seek relief or declaration of title.   In  our  opinion,
the plaintiff has filed the suit for possession on the  strength  for  title
and not only on the basis of prior possession.  It was not  a  summary  suit
for ejectment filed under Section  6  of  the  Specific  Relief  Act,  1963.
Thus, plaintiff could succeed in suit for possession on the strength of  the
title.  The issue had been framed on the question of title of the  plaintiff
as well as on the question of adoption of defendant no.3.  On the  basis  of
title claimed in the suit, both the parties have adduced their  evidence  in
support of their respective cases.  The main plea of defendant  no.  3  that
she was an adopted daughter of Yashoda has not been found to be  established
by the trial Court, the first Appellate Court or by the High Court.    Thus,
in our opinion, there was no serious cloud on the title of the plaintiff  so
as to force him to seek the relief for declaration of title in  the  instant
case which was in fact based on the strength of the sale  deed  executed  by
Buchamma, who was the sole surviving heir of Balaiah as  such  succeeded  to
the property and had the right to execute the sale deed  in  favour  of  the
plaintiff.

13.   We are fortified in our aforesaid conclusion by a decision in  Kurella
Naga Druva Yudaya Bhaskara Rao v.  Galla  Jani  Kamma  (2008)  15  SCC  150,
wherein this Court has examined the question of maintainability of suit  for
possession without  prayer  for  declaration  of  title.    This  Court  has
referred to its earlier decision in Anathula  Sudhakar  v.  P.  Buchi  Reddy
(2008) 4 SCC 594, wherein the plaintiff had purchased the  suit  land  under
registered sale deed dated 10.4.1957 and the defendant  did  not  claim  the
title with reference to any document but claimed to have perfected title  by
adverse possession.  It was held by this Court that the said  plea  did  not
prima facie put any cloud over the plaintiff’s title  calling  him  to  file
suit for declaration of title.  Unless  there  is  serious  cloud  over  the
title of the plaintiff there is no need to  file  suit  for  declaration  of
title. The suit for possession was maintainable.  This Court  laid  down  as
follows:

“16. The plaintiff had purchased the suit land under  registered  sale  deed
dated 10.4.1957. Defendant  did  not  claim  title  with  reference  to  any
document but claimed to have perfected title by adverse possession.  A  mere
claim  by  the  defendant  that  he  had  perfected  his  title  by  adverse
possession, does not mean that a cloud is raised over plaintiff's title  and
that the plaintiff who is the owner, should file a suit for  declaration  of
title. Unless the defendant raises a serious cloud over  the  title  of  the
plaintiff, there is no need to file a suit for  declaration.  The  plaintiff
had  title  and  she  only  wanted  possession  and  therefore  a  suit  for
possession was maintainable. We are fortified in this view by the  following
observations of this Court in Anathula Sudhakar v. P. Buchi Reddy  (2008)  4
SCC 594:

“14. We may however clarify that a prayer for declaration will be  necessary
only if the denial of title by the defendant  or  challenge  to  plaintiff's
title raises a cloud on the title of plaintiff to the property. A  cloud  is
said to raise over a person's title, when some apparent defect in his  title
to a property, or when some prima facie right of a third party over  it,  is
made out or shown. An action for declaration, is the remedy  to  remove  the
cloud on the title to the property. On the other hand, where  the  plaintiff
has clear title supported by documents, if a trespasser  without  any  claim
to title or an interloper without any  apparent  title,  merely  denies  the
plaintiff's title, it does not amount to raising a cloud over the  title  of
the plaintiff and it will not be necessary for  the  plaintiff  to  sue  for
declaration. ...."


14.   Coming to the question whether execution of sale  deed  in  favour  of
plaintiff has been proved, the High Court has held that the  sale  deed  has
not been proved for want of examination of Buchamma.   The  High  Court  has
ignored the pleadings of the parties and the evidence  on  the  question  of
execution of sale deed which establishes that sale deed  had  been  executed
by Buchamma in favour of the plaintiff.   In the written statement filed  on
behalf of the defendants, the sale deed was denied for  want  of  knowledge.
A perusal of same indicates that the authority of Buchamma  to  execute  the
sale deed in favour of the plaintiff was put into question.   Defendant  no.
3 Sarojana in her deposition in court did not deny the fact that  sale  deed
was executed by Buchamma in favour of the plaintiff.   She has  stated  that
she was not aware whether Buchamma has executed any sale deed in  favour  of
the plaintiff.  She only asserted that  she  was  the  adopted  daughter  of
Yashoda.

15.   It is settled law that denial for want of knowledge is  no  denial  at
all.  The execution of the sale deed was  not  specifically  denied  in  the
written statement.  Once the execution of the sale deed was not disputed  it
was  not  necessary  to  examine  Buchamma  to  prove  it.   The  provisions
contained in Order 8 Rule 5 require pleadings to  be  answered  specifically
in written statement.  This Court in Jahuri Sah &  Ors.  v.  Dwarika  Prasad
Jhunjhunwala AIR 1967 SC 109 has laid  down  that  if  a  defendant  has  no
knowledge of a fact pleaded by the plaintiff is not tantamount to  a  denial
of existence of fact, not even an implied denial.  Same  decision  has  been
followed by Madhya Pradesh High Court in Dhanbai D/o  Late  Shri  Cowash  v.
State of M.P. & Ors. 1978 MPLJ 717.   The High Court of  Madhya  Pradesh  in
Samrathmal & Anr. v. Union of India, Ministry of Railway & Ors. AIR 1959  MP
305 relying on P.L.N.K.L. Chettyar Firm v. Ko Lu Doke AIR 1934 Rang 278  and
Lakhmi Chand v. Ram Lal AIR 1931 All. 423,  had  also  opined  that  if  the
defendant did not know of a fact, denial of the knowledge  of  a  particular
fact is not a denial of the fact and has not even the effect of putting  the
fact in issue.

16.   Moreover,  there  was  no  effective  cross-examination  made  on  the
plaintiff’s witnesses with respect to factum  of  execution  of  sale  deed,
PW.1 and PW-2 have not been cross examined as  to  factum  of  execution  of
sale deed.  The cross-examination is a matter of substance not of  procedure
one is required to put one’s own version in cross-examination  of  opponent.
The effect of non cross-examination is that the  statement  of  witness  has
not been disputed. The effect of not cross-examining the witnesses has  been
considered by this Court in Bhoju Mandal & Ors. v.  Debnath  Bhagat  &  Ors.
AIR 1963 SC 1906. This Court repelled a  submission  on  the   ground   that
same  was  not  put  either  to  the        witnesses  or  suggested  before
the courts below.  Party is required to put his version to the  witness.  If
no such questions are put the court would presume that the  witness  account
has been accepted as held in M/s. Chuni Lal Dwarka  Nath  v.  Hartford  Fire
Insurance Co. Ltd. & Anr. AIR 1958 Punjab 440.   In  Maroti  Bansi  Teli  v.
Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid  down
that the matters sworn to by one  party  in  the  pleadings  not  challenged
either in pleadings or cross-examination by other party must be accepted  as
fully established.  The High Court of Calcutta in A.E.G.  Carapiet  v.  A.Y.
Derderian AIR 1961 Cal. 359 has laid down that the party is obliged  to  put
his case in cross-examination of witnesses of opposite party.  The  rule  of
putting one’s version in cross-examination is one of essential  justice  and
not merely technical  one.   A  Division  Bench  of  Nagpur  High  Court  in
Kuwarlal Amritlal v. Rekhlal Koduram & Ors. AIR  1950  Nagpur  83  has  laid
down that when attestation is not specifically  challenged  and  witness  is
not cross-examined regarding details of attestation, it  is  sufficient  for
him to say that the document was  attested.  If  the  other  side  wants  to
challenge that statement, it is their duty, quite apart from raising  it  in
the pleadings, to cross-examine the witness along those lines.   A  Division
Bench of Patna High Court in Karnidan Sarda & Anr. v.  Sailaja  Kanta  Mitra
AIR 1940 Patna 683 has laid down that it cannot be too  strongly  emphasized
that the system of administration of justice allows of cross-examination  of
opposite party’s witnesses for the purpose of testing  their  evidence,  and
it must be assumed that when the witnesses were  not  tested  in  that  way,
their  evidence  is  to  be  ordinarily   accepted.     In   the   aforesaid
circumstances, the High Court has gravely erred  in  law  in  reversing  the
findings of the first Appellate Court as to the factum of execution  of  the
sale deed in favour of the plaintiff.

17.   It is also settled law that passing  of  consideration  under  a  sale
deed cannot be questioned by third party.  Defendant  no.  3  has  not  been
able to establish her case that she is an adopted daughter of  the  deceased
Yashoda and thus, she being the third party, could not have  questioned  the
execution of the  sale  deed  by  Buchamma  on  the  ground  of  passing  of
consideration as rightly laid down by the  High  Court  of  M.P.  in  Pandit
Ramjilal Tiwari v. Vijai Kumar & Ors. 1970 MPLJ 50. The High Court of  Patna
has also held that passing of consideration can be questioned by a party  or
his representative in Mt. Akli v. Mt. Daho AIR 1928 Patna  44.   Similar  is
the view of the High Court of Nagpur in Maroti  Bansi  Teli  (supra).  Thus,
the High Court has erred in law on this ground also in dismissing the  suit.


18.   Coming to the question whether the plaintiff was placed in  possession
by Buchamma, in our opinion, it is apparent that Yashoda  was  enjoying  the
property in her lifetime,  though  it  appears  that  defendant  no.  3  was
residing with Yashoda, but she has  not  claimed  any  derogatory  title  to
Yashoda nor has  claimed  adverse  possession.   Her  claim  of  an  adopted
daughter  of  Yashoda  has  not  been  found  established.    The  entry  of
possession in some revenue records simplicitor does not confer any right  to
defendant no. 3 to retain the possession of the property.  The  property  on
the death of Yashoda had been passed on to Buchamma being class  IInd  heir,
as such she had the right to sell  the  property  to  plaintiff.    Even  if
Buchamma had not placed plaintiff in possession of property on  strength  of
his title conferred by way of sale deed in question he had right to  recover
possession.  The first appellate Court  was  thus  right  in  decreeing  the
suit.   The High Court has erred in allowing appeal.

19.   In the circumstances, appeal is allowed,  the  impugned  judgment  and
order passed by the High Court dismissing the suit  is  set  aside  and  the
judgment and decree passed by the first Appellate Court is  restored.    The
parties to bear their own costs.




                                             …………………………J.
                                             (V. Gopala Gowda)



New Delhi;                                   ………………………..J.
May   5, 2016.                               (Arun Mishra)









ITEM NO.1A-For Judgment       COURT NO.9               SECTION XIIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Civil Appeal  No(s).4816/2016 @ SLP(C)No.13076/2007

MUDDASANI VENKATA NARSAIAH(D)TR.LRS.                Appellant(s)

                                VERSUS

MUDDASANI SAROJANA                                 Respondent(s)

Date : 05/05/2016 This appeal was called on for pronouncement of JUDGMENT
today.

For Appellant(s)
                     Mr. K. Shivraj Choudhuri,Adv.

For Respondent(s)
                     Mr. Sridhar Potaraju,Adv.


      Hon'ble Mr. Justice Arun Mishra pronounced the judgment of  the  Bench
comprising  Hon'ble  Mr.  Justice   V.Gopala   Gowda   and   His   Lordship.

      Leave granted.
      The appeal is allowed in terms of the signed reportable Judgment.
      Pending application(s), if any, stand(s) disposed of.


        (VINOD KUMAR JHA)                     (MALA KUMARI SHARMA)
                COURT MASTER                            COURT MASTER
   (Signed Reportable judgment is placed on the file)

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.