Ananda And Others vs Natthuram And Another

The appellants/plaintiffs have filed the present appeal being aggrieved by the judgement dated 29.08.2000, passed by the Additional District Judge, Sendhwa, East Neemar in Civil Appeal No.13-A/2019 whereby the judgement and decree dated 17.02.1999, passed by the Civil Judge, Class-I, Sendhwa, East Neemar in their favour has been set aside and the suit has been dismissed.

Facts of the case, in short, are as under:

The plaintiffs filed the suit for possession of the mortgage land bearing Survey No.205/1 area 18.95 hectare situated in Gram-Bordi, Tehsil-Pansemal (hereinafter referred as "suit land") from the possession of the defendant. The boundaries of said land is mentioned in para 1 of the plaint. According to the plaintiff his father Late Waman being a owner of the suit land had mortgaged the same to the defendant for the loan of Rs.1,000/-, with the condition that he will return the possession of said land after repayment of Rs.1,000/-. Later on shri Waman was intending to repay the amount of Rs.1,000/- to obtain possession back but the defendant was reluctant to accept such offer. In the year 1975 the plaintiffs filed an application under 20 Point Program before the Naib Tehsildar, Sendhwa but the said application remained pending. Thereafter, Waman expired on 31.03.1978 & the plaintiffs being legal heirs served a legal notice dated 28.10.1985 through advocate to the defendants for calling upon him to accept Rs.1,000/- and return the suit land. On the basis of cause of action accrued on 30.12.1975 and 28.10.1985 ,the plaintiffs filed the civil suit on 24.08.1985.

After receipt of summons the defendant No.1 filed the written statement denying the averments made in the plaint by submitting that on 27.12.1967 Late Waman had sold the suit land to him in Rs.2,000/-. He paid Rs.1,500/-and obtained the possession. The sale deed was executed on 27.12.1967 (Exhibit D/1). He is in possession over the suit land since the date of sale. He is not having any knowledge about the proceedings pending before the Tehsildar. He has specifically denied that the suit land was ever mortgaged to him in Rs.1,000/-. By way of alternate pleading he submitted that since he is in peaceful and continuous possession over the suit land from 27.12.1967, which is in the knowledge of the plaintiffs, therefore, he has acquired the title by way of adverse possession. The suit filed after 12 years from 1967 is time barred and liable to be dismissed.

On the basis of pleadings, the trial Court framed 9 issues for adjudication which are as under:

क्या वादीगण के पिता ने प्रतिवादी क्रमांक 01 के पास दाविया भुमि 1000/- रु मे गिरवी रखी थी?

क्या प्रतिवादी क्रमांक 01 ने वादी के पिता से दाविया भुमि 2000/- रु मे क्रय की थी?

क्या वादी का वाद अवधि बाह््य है?

क्या वादी ने उचित न्याय शुल्क नही दिया है?

अनुतोष एवं वाद व्यय?

क्या कथित गिरवी का व्यवहार भोग बंधक होने से 6 वर्ष से अधिक समय तक प्रतिवादी का वादग्रस्त भुमि पर आधिपत्य रहा, इसलिए क्या वादी बिना गिरवी धन चुकाए दाविया भुमि का आधिपत्य पाने का पात्र है?

क्या वादी प्रतिवादी क्रमांक 01 से रु 2000/- प्रतिवर्ष अन्र्तवर्ती लाभ पाने का पात्र है?

क्या वादी के पिता वामन ने दिनांक 27/12/67 को वादग्रस्त भुमि का विक्रय का सौदा कर प्रतिवादी क्रमांक 01 को भुमि का आधिपत्य दे दिया था?

क्या वादी क्रमांक 01 विरोधी आधिपत्य के आधार पर भी वादग्रस्त भुमि का स्वामी हो गया है?

The plaintiffs examined Basand as PW1 and Bansilal as PW2 and got exhibited Khasra Khatoni B1 1984-85 (Exhibit P/1), Khasra Pansala as P/2, notice dated 28.10.1985 as Exhibit P/3 and Power of Attorney as Exhibit P/4. In rebuttal, the defendant No.1 examined himself as DW1 and Ghanshyam as DW2 and got exhibited deed dated 17.12.1967 as Exhibit D/1.

After appreciating the evidence came on record, learned Civil Judge, Class-I has held that the deed dated 17.12.1967 is mortgage deed and the plaintiffs have filed the suit within limitation. That vide judgement and decree dated 17.02.1999 learned Civil Judge has decreed the suit directing the defendant to hand over the vacant possession of the suit land to the plaintiffs and pay the mesne profit from the date of filing the suit till handing over the possession @ Rs.2,000/- per year.

Being aggrieved by the judgement and decree dated 17.02.1999, the defendant No.1 filed the first appeal.

Vide judgement dated 29.08.2000, learned Additional District Judge, Sendhwa, East Neemar has set aside the judement and decree and dismissed the suit. Learned ADJ has held that Exhibit D/1 is not a mortgage deed but an unregistered sale deed executed by Late Waman in favour of defendant No.1 and the plaintiffs have failed to prove that the suit land was mortgaged to the defendant No.1 in the year 1967. Secondly, the defendant has acquired the title by way of adverse possession and the the plaintiffs filed the suit beyond the period of 12 years hence same is time barred.

Being aggrieved by the reversal of judgement and decree passed in their favour, the plaintiffs have filed the present appeal before this Court. Vide order dated 11.11.2002 this Court has admitted the appeal on following substantial questions of law:

"1. Whether lower appellate Court was justified in reversing the decree passed by the trial Court which had decreed the suit?

Whether lower appellate Court was justified in holding that Ex.D/1 is infact a sale deed and not an agreement to sale?

When Ex.D/1 on the face of it looks to be an agreement of sale executed by late Waman - father of plaintiff in favour of defendant Natthu, could title be conferred upon the defendant No.1 merely on the strength of Ex.P/1?

In the absence of of any suit for specific performance having been filed by the defendant against the plaintiff on the strength of Ex.P/1 whether lower appellate Court was justified in holding that defendant No.1 has acquired a title in the suit land?"

I have heard Shri T.N.Singh, learned senior counsel appearing on behalf of the appellants.

Shri T.N. Singh, learned senior counsel submitted that learned first appellate Court has erred in reversing the judgement and decree passed in favour of the plaintiffs. Learned Civil Court has rightly held that Exhibit D/1 is a mortgage deed by which Late Waman had mortgaged the land to the defendant and the plaintiffs being legal heir are entitled to take back the land after repayment of loan amount. The first appellate Court has wrongly held that Exhibit D/1 is not mortgage deed but an unregistered sale deed. The defendant did not file any counter claim for the decree of title by way of adverse possession, then learned ADJ has wrongly held that the defendant No.1 has acquired the title in the suit land by way of adverse possession. At the most from the wording of Exhibit D/1 it can be held that its an agreement to sale and without filing the suit for specific performance of contract the defendant No.1 did not acquire any title, hence the Judge passed by the first appeal Court be set aside and judgement and decree dated 17.02.1999 be restored.

I have heard learned senior counsel at length and perused the record.

Appreciation and conclusion...

The plaintiffs have approached the civil Court with the plea that their father had mortgaged the suit land to the defendant in Rs.1,000/-. In the plaint, he did not disclosed the date of the mortgaged. He has only pleaded about the condition of mortgage that in event of return of Rs.1,000/- the defendant will return the suit land. Again, he has failed to given any date and time when late Waman offered Rs.1,000/- to the defendant for taking back his land. According to the plaintiff, in 1975 they made a complaint to the Naib Tehsildar under 20 Points Program. Thereafter, Waman died on 31.03.1978 and the defendant served a legal notice dated 28.10.1985. The learned trial Court came to the conclusion that Ex.D/1 is a mortgage deed. The plaintiffs made an amendment in the plaint and only when the defendant came up with the plea of execution of the deed dated 27.12.1967 by which the land said to have been sold to him. In evidence, the plaintiffs' witness have stated that vide Ex.D/1 the land was mortgaged to the defendant. However, they denied the signature of Waman in the deed. The plaintiffs did not filed any application seeking examination of signature of Waman through hand writing expert, therefore, merely denying the signature will not lead to conclusion that Waman did not signed the deed. The first appellate Court after examining the contents of Ex.D/1 came to the conclusion that its a sale deed but the defendant did not acquire any title because the same is unregistered. The learned District Judge has dismissed the suit that they had knowledge about the possession of the defendant since 1967 and they did not filed the suit within 12 years under Section 27 of the Indian Evidence Act, hence, the suit is time barred.

This Court has admitted the appeal on substantial question of law whether the first appellate Court was justified in holding that Ex.D/1 is a sale deed and not an agreement to sale.

Answer to Question of Law No.2:

(Whether lower appellate Court was justified in holding that Ex.D/1 is infact a sale deed and not an agreement to sale?)

As per the recital of Ex.D/1 on 27.12.1967 Waman had agreed to sale the land to the defendant in Rs.2,000/- and out of which he paid Rs.1,500/- and handed over the possession in receipt of payment of balance consideration he agreed that he will pay the remaining the amount on "Chaitrasudi 15th Purnima Samwad 2025" and would execute the registered sale deed. From the contents of aforesaid deed the intention of the parties is specifically clear that Waman had entered into an agreement with the defendant for sale the suit land in Rs.2,000/-. Although, the defendant did not file any suit for specific performance of a contract. The first appellate Court has wrongly held that its an unregistered sale deed.

Section 54 of the Transfer of Properties Act defines the term "Sale" and according to which sale is a transfer of ownership in exchange for price paid or promised or part paid and part promise. Such sale in case of tangible immovable property of value of Rs.100/- and upward can be made only by a registered instrument. The 'contract for sale' means a contract for sale of immovable property is a contract and that sale of such property shall take place on terms settled between the parties. The transfer of immovable property by way of sale can only be by a deed of convince i.e. sale deed and in absence of deed of convince i.e. duly stamped and registered as required by law no right title or interest in the immovable property can be transferred. If there is no transfer of a property by way of sale and there is only contract for sale of immovable property then a sale of such property shall take place in future on terms settled between the parties. An agreement for sale is merely a document creating a right to obtain another document of sale on fulfillment of terms and conditions specified therein. In the present case, Late Waman entered into an agreement to sale with the defendant for sale of his suit land in Rs.2,000/- and out of the aforesaid sale consideration he paid Rs.1,500/- and agreed to pay remaining amount on the date agreed between them, therefore, from the contents of Ex.D/1 it can safely be held that the Ex.D/1 is not a sale deed but an agreement to sale, therefore, the question of Law no. 2 is answered in favour of appellant. The findings recorded by the trial Court that Ex.D/1 is a sale deed is liable to be set aside.

Finding on Question of law No.3:

(When Ex.D/1 on the face of it looks to be an agreement of sale executed by late Waman - father of plaintiff in favour of defendant Natthu, could title be conferred upon the defendant No.1 merely on the strength of Ex.P/1?)

As held above, Exhibit D/1 is only an agreement to sale and an agreement for sale is merely a document creating a right to obtain a document of sale on fulfillment of terms and conditions specified therein. The ownership remains with the seller. It will be transferred to a buyer only on execution of a sale deed by a seller. The buyer obtains only a right to get the sale deed executed in his favour. The Ex.D/1 is not a registered sale deed and the total sale consideration was also not paid and it was agreed to be paid on "Chaitrasudi 15th Purnima Samwad 2025" and on payment of such amount the sale deed would be executed. Hence, by virtue of Ex.D/1 the defendant Nathu did not acquire the title, hence, Question of Law No.3 is answered accordingly.

Finding of Question of Law No.4:

(In the absence of of any suit for specific performance having been filed by the defendant against the plaintiff on the strength of Ex.P/1 whether lower appellate Court was justified in holding that defendant No.1 has acquired a title in the suit land?)

It is correct that in absence of any suit for specific performance of a contract having being filed by the defendant against the plaintiff on a strength of Ex.D/1 the defendant No.1 has not acquire any title in the suit land. By way of counter claim, he did not seek any relief in respect of declaration of title or decree of specific performance of a contract. Hence in the absence of of any suit for specific performance having been filed by the defendant against the plaintiff on the strength of Ex.P/1 he has acquired a title in the suit land. This question of law is also answered in favour of the appellant.

Finding of Question of Law No.1:

(Whether lower appellate Court was justified in reversing the decree passed by the trial Court which had decreed the suit?)

The first appellate Court has not granted the decree of ownership of the suit land to the defendant No.1 on the basis of Ex.D/1. Though, it has been held that its a sale deed but the decree of title has been granted by virtue of adverse possession. It has rightly been held that the defendant is in possession over the suit property since 1967 and his possession was very much in the knowledge of Late Waman and after his death in the knowledge of the plaintiffs. According to the plaintiffs application was made to the Tehsildar under 20 Points Program in the year 1975 and the suit was filed on 24.12.1995 i.e. after the period of 20 years, hence, admittedly, the suit filed after the period of 12 years even after the date of knowledge of the possession of the defendant.

Even otherwise, the plaintiffs came up with the plea that the defendant is in possession over the suit property on the basis of mortgage deed. Later on, they came up with the plea that Ex.D/1 is a mortgage deed, hence, the suit filed in the year 1995 is admittedly time barred. Learned first appellate Court has rightly granted the decree of title to the defendant on the basis of adverse possession and the suit appears to be time barred. No question of law has been framed by this Court on the plea of limitation. The Civil Court has held that the suit is within limitation but the first appellate Court has reversed the finding and held that the suit is time barred by virtue of Section 27 of the Limitation Act. In view of the above, question of No.1 is answered against the appellant. The first appellate Court was justified in reversing the decree passed by the trial Court in favour of the plaintiffs.

Resultantly, the present second appeal filed by the appellants/plaintiffs fails and same is hereby dismissed. The judgement dated 29.08.2000, passed by the Additional District Judge, Sendhwa, East Neemar in Civil Appeal No.13-A/2019 is hereby affirmed .