Gram Panchayat, Veerpur vs Harishankar & Ors.

Appellants have filed this appeal under Section 100 of CPC challenging the judgment and decree dated 3/9/2004 passed by Second Additional District Judge (Fast Track Court), Sabalgarh, District Morena in Civil Appeal No.20-A/2004, whereby, the judgment and decree dated 6/2/1995 passed by Civil Judge, Class I, Sabalgarh, in Civil Suit No.251-A/1986 has been affirmed and the suit for declaration and permanent injunction filed by respondent no.1 & 2 has been decreed.

For the purpose of convenience, respondent no.1 & 2 shall be referred to as ‘plaintiffs’ while appellant and respondent no.3 to 5 shall be referred to as ‘defendants’ in this order as per their respective status in the civil suit. Further the suit property in this order would mean a plot ad-measuring 22x18 sq. ft. of Survey No.686 situated at Mauja and Kasba Veerpur, Tehsil Sabalgarh, District Morena.

Plaintiffs filed the present suit inter-alia on the ground that the suit plot was purchased by their grandfather Shri Ramratan from Zamindar Murli Singh on 14/12/1937 for a sale consideration of Rs.70/- by delivery of possession. It is their case that from the date of purchase, their grandfather and after him plaintiffs are owner-in-possession of the suit plot continuously. They have constructed two shops and a Ghumati (small hutment) over the land. Plaintiffs averred that the Gram Panchayat Veerpur earlier instituted a case against plaintiffs in respect of the suit plot before Naib Tehsildar, Veerpur, which was subject matter of Case No.106/83-A/68. Naib Tehsildar dismissed the case vide order dated 3/8/1983. The revision filed against the order of Naib Tehsildar was also dismissed by Additional Collector vide order dated 21/8/1985 in Revison No.16/84-85.

Plaintiffs also averred that Naib Tehsildar, Veerpur had registered a case under Section 248 of MPLRC, which is subject matter of Case No.875/84-85/A/68 and the same was stated to be pending. Yet another case under Section 145 of Cr.P.C. was instituted before the Sub-Divisional Magistrate, Veerpur having Case No.72/1985. The SDM vide order dated 28/6/1985 found plaintiffs in possession and held that they are entitled to continue in possession so long as they are dispossessed by the order of any competent authority. It is their case that no order has been passed for their dispossession by any competent authority.

Plaintiffs in para 5 of the plaint also pleaded acquisition of title by adverse possession as an alternate submission.

Plaintiffs further averred that the Public Works Department started illegally claiming to be the owner of the property and thus denied the plaintiffs’ title over the suit plot. Plaintiffs averred that the PWD was not even in existence when their grandfather purchased the suit plot in year 1937. It was alleged that on 20/8/1986, defendant no.2 & 3 denied their title and orally asked for removal of plaintiffs shops and Ghumati from the suit land. Plaintiffs explained their title to the defendants however, they threatened to demolish their constructions.

With the aforesaid pleadings, the plaintiffs filed the present suit on 21/8/1986 seeking decree of declaration that they are owner of the suit land and are in possession since year 1937 and the defendants are not entitled to interfere with their possession. They also sought for a decree of permanent injunction restraining defendants from interfering with their possession over the suit land.

Defendant no.1 & 2 filed their written statement denying the plaint averments. In substance, it was their case that the land bearing Survey No.686/2 having area of 2 biswa belongs to PWD and is thus a Govt. land. It is their case the plaintiffs encroached upon the 20x20 sq. ft. plot without having any right in the year 1984 and constructed a Ghumati and also constructed boundary wall. The case of encroachment under Section 248 of MPLRC was pending against the plaintiffs, however, on 20/8/1986, the SDO and Tehsildar have already removed the encroachment and thus, the defendants averred that the plaintiffs are no more in possession of the suit land.

Defendants contended that the sale deed dated 14/12/1937 produced by plaintiffs is forged and fabricated. They further averred that the Panchayat had instituted a case against plaintiffs showing a club-house existed on the suit plot, which was rejected and therefore, Panchayat is not having any right. Plaintiffs’ continuous possession and title over the suit plot was thus denied by the defendants and they asserted that the title of plot vested in PWD and its name is correctly recorded in revenue records.

Defendant no.4- Gram Panchayat, Veerpur filed its separate written statement denying the plaint averments. As per its case, a club-house was constructed over the suit land in year 1942. It was let out to one Badri Prasad Rayaju 1/5/1957 by the Panchayat. After the club-house was vacated by Badri Prasad, a public notice was issued by Panchayat on 23/11/1959 for purposes of giving the club-house on rent. It was given on rent at Rs. 21/- per month to one Bankelal.

Defendant no.4 further averred that in the year 1978, the club-house collapsed. Its material was thus sold by Panchayat pursuant to resolution no.5 dated 30/11/1978. It is the case of Panchayat that plaintiff no.1- Harishankar was elected Punch in Panchayat at that time and has consented to the resolution no.5 dated 30/11/1978. Defendant no.4 further averred that the Panchayat obtained loan from State Govt. of Rs.2,000/- for constructing two shops. The tenders were invited and the tender submitted by one Munnalal, brother of plaintiff no.1, since lowest, was accepted. It is averred that Munnalal has been jointly residing with plaintiff no.1. Munnalal laid foundation for construction of two shops, however, than left the work incomplete. Notice to complete the work was given by Panchayat, which he refused to accept.

It is the case of Panchayat that plaintiff no.1 was Punch in the Gram Panchayat and in the year 1981, he illegally constructed a wooden Ghumati on the land. Notice to remove the Ghumati was given to him by Panchayat on 15/3/1981 and 24/8/1981. Plaintiff refused to accept notices. It is further averred by defendant no.4 that on 7/3/1985, which was a court holiday, plaintiff tried to raise construction, which was stopped by Panchayat with the help of Administration.

Defendant no.4 further averred that the plaintiffs have no concern with the suit plot and their grandfather did not purchase the same. However, in collusion with Patwari, plaintiffs got the wrong number recorded in encroachment report as a result of which, the case under Section 248 of MPLRC was rejected.

The Panchayat also denied the title of PWD over the suit land and asserted that the Panchayat is the actual owner of the land.

After taking oral and documentary evidence of both the sides, learned Trial Court decreed the suit vide judgment and decree dated 6/2/1995. After appreciating the statement of Radhacharan (PW/2), Harishankar (PW/3), Prabhudayal (PW/4) and Chimanlal (PW/6), the Court held that the plaintiffs have successfully established their title over the suit plot since year 1937. Radhacharan is the son of attesting witness of sale deed, who has duly identified signature of his father over sale deed dated 14/12/1937. Learned Trial Court in para 9 of its judgment recorded a finding that Zamindar Murli Singh was the earlier owner of the suit land who sold the suit plot to Ramratan in year 1937 by delivery of possession. Plaintiffs and their grandfather’s possession was upheld since the date of purchase.

Learned Trial Court further held that the sale deed dated 14/12/1937 (Ex. P/1) is a 30 years old document, which has been produced from legal custody and is therefore, acceptable in evidence under Section 90 of the Evidence Act. Learned Trial Court also held that the defendants failed to prove that the suit land does not belong to Zamindar. The record submitted by defendant no.4 also could not establish that there was any club-house on the suit land. Relying upon the documents marked as Ex. P/2 to P/4, learned Trial Court upheld the plaintiffs’ possession for a long period of time over the suit plot.

Trial Court also accepted the plaintiffs alternate claim of acquisition of title by adverse possession in para 17 of its judgment against the defendant no.1 & 2.

Learned Trial Court further appreciated the provisions of Section 5(a) & (b) of Zamindari Abolition Act, 1951 to hold that the plaintiffs otherwise also acquired title over the suit plot.

Defendant no.1 & 2 accepted the judgment passed by Trial Court and did not challenge the same. The judgment and decree passed of Trial Court was however, challenged by the defendant no.4- Gram Panchayat, Veerpur by filing an appeal, which has been dismissed vide impugned judgment and decree dated 3/9/2004. Learned First Appellate Court upheld the findings recorded by Trial Court. In addition, it also held that the Panchayats have been constituted in year 1950, whereas, the plaintiffs’ title relates back to the year 1937. Panchayat also failed to establish by documentary evidence as to how it acquired title over the suit plot.

This appeal was admitted by this Court vide order dated 10/03/2006 on the following substantial questions of law:-

Learned senior counsel for the appellant/defendant submitted that even though the sale consideration of suit plot was less than Rs.70/-, however, since the plaintiffs relied upon the sale deed dated 14/12/1937 (Ex. P/1), under Section 54 of the Act, same was compulsorily registrable. It is his submission that, once the plaintiffs rely upon a written sale deed, they cannot assert acquisition of title by delivery of possession. In support of his submissions, he placed reliance upon the Coordinate Bench decision of this court in S.A. No.1941/2023 (Smt. Yashoda Chaudhary & ors. vs. Lallu Prasad Chaudhary & ors).

Learned senior counsel further argued that the possession of plaintiffs is also not established and the Courts below grossly erred in holding that plaintiffs are in possession. It is his submission that the appellant- Gram Panchayat has established by way of documentary evidence that the club-house was existing on the suit plot and the same was let out by the Gram Panchayat to the tenants. In the year 1978, the club-house collapsed and thereafter, the Panchayat constructed two shops, which are now being claimed by the plaintiffs. Learned counsel thus submitted that the judgment and decree passed by both the courts are illegal and based upon misreading of the evidence available on record and therefore, deserves to be set aside.

He further argued that the plaintiffs have also failed to establish the title of their predecessors i.e. Murli Singh and therefore, even if the sale deed dated 14/12/1937 is accepted, the same does not convey any title in plaintiffs’ favour.

On the other hand, learned counsel appearing for respondent no.1 & 2/plaintiffs supported the impugned judgment and decree. As per his submission, plaintiffs have pleaded sale of suit land by delivery of possession. Delivery of possession on 14/12/1937 has been duly established after the concurrent findings of both the Courts below. It is his submission that even if the plaintiffs have relied upon the unregistered sale deed dated 14/12/1937, plaintiffs have independently established the delivery of possession of suit plot and therefore, since the sale consideration was less than Rs.100/-, the title of suit plot was conveyed in plaintiffs favour. Learned counsel also referred to the statement of plaintiffs’ witnesses as also the statement of defendant’s witness Badri Prasad, who accepted during his cross-examination that the land initially belongs to Zamindar Murli Singh. He thus, submitted that no ground is made out for interference in the concurrent findings of both the Courts. The appeal, therefore, deserves to be dismissed.

Considered the submissions and perused the record.

Both the Courts have upheld the plaintiffs’ possession over the suit plot after appreciating the oral evidence of plaintiffs’ witnesses as also the orders passed by revenue courts, which are marked as Ex. P/2 to P/4. These are the thus concurrent findings of fact recorded by both the Courts and are binding on this court. Even otherwise, no substantial question of law has been framed in this appeal on this issue of plaintiffs’ possession over suit land. Therefore, this Court has to proceed accepting the plaintiffs’ possession over the suit plot.

The first question of law framed is regarding validity of sale in favour of plaintiffs’ grandfather- Ramratan based upon sale deed dated 14/12/1937. Learned senior counsel submitted that the sale of immovable property of value less than Rs.100/- is permissible by delivery of possession, however, if the transaction is reduced in writing, then the same is required to be registered compulsorily. It is his submission that since the plaintiffs have relied upon the unregistered sale deed dated 14/12/1937, same do not confer any title on the plaintiffs. Therefore, very basis of plaintiffs’ claim over the suit plot is not acceptable and therefore, the judgment and decree passed by both the Courts below deserve to be set aside.

On the other hand, learned counsel for the plaintiffs submitted that the plaintiffs have pleaded the sale by delivery of possession only and have not referred to the unregistered sale deed dated 14/12/1937 in plaint, though it is produced in evidence. It is his submission that independent of unregistered sale deed, if the plaintiffs succeeded in establishing the sale by delivery of possession, mere execution of the document would not frustrate their claim over the suit plot.

29 In order to appreciate the rival submissions made by learned counsel for the parties, provisions of Section 54 of Transfer of Property Act, need to be considered. Section 54 of the Transfer of Property Act provides as under:-

It is thus seen that the sale of immovable property worth less than Rs.100/-is permissible either by delivery of possession of property or by way of registered instrument. The provisions of Section 54 were considered by Apex Court in the case of Brijvasilal v. Abdul Haji reported in (2001)9 SCC 367, wherein, the Court held in para 5 as under:-

Thus, reading Section 54 and the law laid down by Apex Court, it is evident that the sale of immovable property of less than Rs.100/- is permissible by way of delivery of possession also. The delivery of possession however has to be actual physical possession.

Learned senior counsel for the appellant/defendant relied upon this Court decision in the case of Smt. Yashoda Chaudhary (supra) to say that if there is a document executed, then the party cannot rely upon the sale by delivery of possession. This Court held in this case as under:

In the case of Smt. Yashoda (supra), the Coordinate Bench of this Court relied upon another decision of this Court in the case of Gopal Das Chaubey vs. Hari Prasad Chaubey (S.A. No.351/2001). In this case also, the Court held as under:

It is thus seen that in both the cases i.e. in Smt. Yashoda and Gopal Das Chaubey (supra), the cases were based upon written unregistered instrument and delivery of possession was not established. In the context of facts of these cases, this Court held that the registration of sale deed was compulsory. The ratio of the cases cannot be disputed. However, these cases do not deal with the situation where, apart from written instrument, the party successfully demonstrates delivery of possession of property also.

Section 54 of TP Act, prescribes two mode of acquiring title of immovable property worth less than Rs.100/-. It can be either by delivery of possession or by unregistered instrument. However, it nowhere prescribe that if the sale is reduced in writing, the party is precluded from establishing sale by delivery of possession. In the considered opinion of this Court, if a party claims sale of property of less than Rs.100/- only on the basis of written document without establishing delivery of possession, then sale is complete only when the document is registered. However, in a case where independent of unregistered document, a party also establishes sale by delivery of possession of property, than in such case, the title cannot be denied to such a party based upon delivery of possession only because the document was not registered.

Thus, the submission of learned senior counsel that if there is a document of sale executed, the party cannot rely upon the sale by delivery of possession is actually not the ratio of Smt. Yashoda Chaudhary & Gopal Das Chaubey (surpa).

Learned counsel for the plaintiffs relied upon the decision of Allahabad High Court in the case of Raj Bahadur v. Babu Lal, 2011 SCC OnLine All 2189 (=AIR 2011 All 48). In the aforesaid case, Allahabad High Court dealt with similar issue and held as under:-

This Court is in complete agreement with the aforesaid view of Allahabad High Court. It is thus held that if a party successfully establishes delivery of possession, independent of execution of an instrument, it cannot be said that the party is not entitled to claim sale by delivery of possession only because of existence of an unregistered document of sale. Thus, the first substantial question of law is answered holding that the suit has rightly been decreed by both the Courts by accepting sale by delivery of possession.

Even otherwise, in the case in hand, learned Trial Court has also upheld plaintiffs’ title over the suit plot by virtue of Section 5(a) and (b) of Madhya Bharat Zamindari Abolition, Samvat 2008 (Act 13 of 1951). Section 5 (a) & (b) reads as under:-

It has been concurrently held by both the Courts that Zamindar Murli Singh had sold the land to plaintiffs’ grandfather- Ramratan. He was thus in possession of the suit land since 1937 and if that be so, upon abolition of Zamnindari by virtue of Section 5(a) & (b) of the Act, Ramratan becomes the holder of the land.

Aforesaid findings of learned Trial Court have not been challenged by the appellant. No substantial question of law is framed on this aspect. Consequently, even if the sale of 14/12/1937 is not established, plaintiffs’ grandfather acquired title by virtue of his possession for more than 12 years under Section 5(a) & (b) of Madhya Bharat Zamindari Abolition Act, 1951.

So far as the second substantial question of law is concerned, the same does not need much deliberation. It has been held concurrently by both the courts, after appreciating the oral and documentary evidence that the land initially belongs to Zamindar- Murli Singh, who sold it to the plaintiffs’ grandfather-Ramratan. The substantial question of law farmed by this Court presupposes that the title of Murli Singh is not established, which is in fact not borne out from record. The title of Murli Singh has been held established by Courts below on the basis of oral statement of defendant witness himself.

Both the courts have held that the appellant- Gram Panchayat has failed to bring on record any evidence showing acquisition of its title. Plaintiffs’ title relates back to year 1937, whereas, as per defendant witness Badriprasad, the Panchayats were constituted after year 1950. Therefore, it was incumbent upon the appellant- Gram Panchayat to have given source of its title over the suit plot. Further, the Panchayat has already lost its case before Tehsildar and the same has been upheld upto Board of Revenue, as is evident from documents marked as Ex. P/2 to P/4.

Thus, weighing the evidence led by plaintiffs and appellant- Gram Panchayat, the evidence led by plaintiffs have been found trustworthy and both the Courts have therefore, rightly accepted the plaintiffs’ title over the suit land.

Consequently, second substantial question of law is answered holding that Murli Singh was the title holder of the land and was competent to sale the suit plot to plaintiffs’ grandfather.

Consequently, the judgment and decree passed by both the Courts are found to be just and proper based upon proper appreciation of evidence led by both the parties. Same are accordingly upheld.

The appeal fails and is hereby dismissed.