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Judgment
Hon. Shri. Justice S.N. Aggarwal
This is First Appeal u/s 96 of the Code of Civil Procedure, 1908 seeking to challenge the impugned judgment and decree dated 11th October, 2002 passed by the Trial Court in Civil Suit No. 33A/97 whereby the suit of the appellant for declaration and permanent injunction has been dismissed. Briefly stated the facts of the case giving rise to this appeal are that the appellant claiming himself to be the owner and in possession of the suit land had filed a civil suit for declaration and permanent injunction against the respondents for declaration that he be declared owner of the suit land and the respondents be restrained from interfering in his possession over the suit land. Respondent No. 1 is the Forest Department of the State Government and respondent No. 2 is the State Government itself. The suit land forms part of several survey numbers mentioned in para 1 of the plaint and its total area is 198 bigha in village Bara, Patwari Halka No. 37, District Gwalior. The suit land was purchased by the appellant by way of six sale deeds executed by the predecessor-in-title in his favour on 23rd March, 1996, 24th June 1996, 6th July 1996, 17th June 1996, 27th June 1996 and 7th July 1996 respectively. The possession of the suit land was delivered by the vendor to the appellant at the time of execution of the sale deeds (Ex.P-9 to Ex.P-14). The appellant had to file a civil suit for declaration and permanent injunction against the respondents as they were threatening him with dispossession from the suit land claiming the land belonging to the Forest Department. The suit filed by the appellant was registered as Civil Suit No. 33-A/97. The foundation of the claim of the appellant was based on the registered sale deeds of the suit land executed by its predecessor-in-title in his favour in 1996. The respondents had filed their written statement in the suit in which they have vaguely denied the title and possession of the appellant over the suit land. It was stated by the respondents in para 2 of their written statement that in case the appellant had purchased the suit land from someone claiming himself to be the owner/predecessor-in-title of the said land, the same would not bind the respondents as the land in question, according to them, belongs to the Forest Department. Paras 1 and 2 of the written statement which deal with their defence to the claim of the appellant are material and the same are reproduced below :
From the pleadings of the parties, following issues were framed by the Trial Court :
Four witnesses were examined on behalf of the appellant and two on behalf of the respondents. The witnesses examined on behalf of the appellant are P.W.1 Manohar Lal, P.W.2 Shyam Sundar, P.W.3 Kishan Lal and P.W.4 Madan Lal Arora. The two witnesses examined on behalf of the respondents are D.W.1 Kamlesh Kumar Khare, Forest Officer and D.W.2 Jafar Ali, Draftsman.
The sale deed in favour of the predecessor-in-title of the appellant is of the year 1964 and the same is Ex.P-15. Ex.P-4 is a copy of the revenue record showing mutation of the suit land in favour of the predecessor-in-title namely Fayazuddin who is shown the owner of the suit land in the revenue record in the year Samvat 1997. The suit land was sold in 1964 by a duly registered sale deed executed by Yusuf Faiyaz and Masood Anwar in favour of Chhatrapal and Bhagirath in their joint names. The appellant filed and proved on record of the Trial Court a notice Ex.P-8 issued by the State Government to invite objections from public against mutation of the suit land in the joint names of the vendees Chhatrapal and Bhagirath mentioned in the sale deed of 1964. All the four witnesses of the appellant have testified on oath regarding the title and possession of the appellant over the suit land. On the other hand, the respondents'' witness No. 1 D.W.1 Kamlesh Kumar Khare, Forest Officer has though stated in para 1 of his evidence in chief that the suit land belongs to the Forest Department, but he has not substantiated his said testimony by any documentary evidence. The entires in the revenue record to show the suit land in the name of the Forest Department were neither filed nor proved by the respondents. Rather, this witness D.W.1 Kamlesh Kumar Khare has admitted in para 8 of his cross examination that they had mutated the suit land in the name of the predecessor-in-title of the appellant after verifying the genuineness of their title. D.W.2 Zafar Ali, is the Draftsman and he was examined to prove the maps of the suit land and the same were marked as Ex.D-2,D-3 and D-4 in his statement.
The Trial Court has returned its findings on all the issues framed in the suit against the appellant and in favour of the respondents mainly for the following three reasons :
(i) Masood Anwar who had executed the sale deed of 1964 ( Ex.P-15) in favour of predecessor-in-title was not, in any manner, related to the original owner of the suit land Faiyazuddin and he, therefore, was not competent to execute the sale deed Ex.P-15 either as a power of attorney of Yusuf Faiyaz or for himself.
(ii) The sale deed Ex.P-15 even otherwise could not have been executed by Masood Anwar on the basis of unregistered power of attorney of Yusuf Faiyaz son of Faiyazuddin.
(iii)There was a wide gap in the amount of sale consideration shown in the sale deed Ex.P-15 in favour of predecessor-in-title and that shown in the sale deeds Ex.P-9 to P-14 in favour of the appellant.
In substance, it was held by the Trial Court that the sale deed Ex.P-15 in favour of the predecessor-in-title being the vendor from whom the appellant had purchased the suit land by virtue of six sale deeds Ex.P-9 to Ex.P-14 was not genuine and appeared to be doubtful.
The findings of the Trial Court on all the issues have been assailed by the appellant on several grounds. The learned counsel appearing on behalf of the appellant has placed reliance on the provisions of Section 90 of the Evidence Act, 1872 to contend that the sale deed Ex.P-15 which was a document of title of the suit land in favour of the predecessor-in-title of the appellant was a document more than thirty years old as the said sale deed was of the year 1964 and could not have been called in question by the respondents on the ground of competence of the person from whom the predecessor-in-title had purchased the said land. It was submitted that the respondents in their written statement have not questioned the genuineness of the sale deeds Ex.P-9 to P-14 executed by predecessor-in-title in favour of the appellant in the year 1996. The submission of the learned counsel was that the appellant had purchased the suit land in the year 1996 for a valuable consideration after proper investigation of the title and it was not open to the respondents to question his title on flimsy and untenable grounds. The learned counsel has further argued that the respondents have not placed even a single document on record of the Trial Court to show that the suit land was owned by the Forest Department of the State Government or that it was ever mutated in the name of the Forest Department in the revenue records. According to the learned counsel, the appellant being the plaintiff in the suit has produced ample evidence to prove his title over the suit land and the respondents are estopped from challenging his title on the alleged ground of want of competency of the person from whom the predecessor-in-title of the appellant had purchased the suit land in 1964 because the respondents have not led any evidence to rebut the notice Ex.P-8 which shows that the respondents had mutated the suit land in 1965 in the name of predecessor-in-title of the appellant.
Per contra, the learned Government Advocate appearing on behalf of the respondents has relied upon the provisions of section 20-A of the Indian Forest Act, 1927 and section 4 (2) of the Madhya Bharat Zamindari Abolition Act, 1951. The contention of the learned Government Advocate is that the onus of proof to prove his title over the suit land was on the appellant and according to the learned Government Advocate, since the appellant has failed to prove the competence of the person who had sold the land in question to the predecessor-in-title of the appellant in 1964, the title of the appellant over the suit land cannot be treated as proved. The submission of the learned Government Advocate was that the suit land belongs to the Forest Department and is protected as Reserved Forest by virtue of the provisions of section 20-A of the Indian Forest Act, incorporated in the Forest Act, 1927 by way of amendment in 1965. The further argument of the learned Government Advocate is that since the land in question is not a cultivating land, the appellant cannot be deemed to be in cultivating possession of the said land. It was alleged that since the nature of the land is ''pahadi land'', the said land, according to the learned Government Advocate, vests in the State Government by virtue of the provisions contained in section 4 (2) of the Madhya Bharat Zamindari Abolition Act,1951. The learned Government Advocate has also placed reliance on two judgments of Bombay High Court reported as Chandulal Asharam Travadi Vs. Bai Kashi, and Ramaji Batanji Vs. Manohar Chintaman and Others, in support of his contention that benefit of section 90 of the Evidence Act, 1872 cannot be extended to the appellant to presume the genuineness of the sale deed Ex.P-15 in favour of the predecessor-in-title of the appellant as the contents of the said sale deed cannot be taken as proved unless the appellant proves competence of the vendor of the said sale deed to execute the sale deed Ex.P-15.
An application under Order XLI Rule 27 C.P.C. for adducing additional evidence was moved on behalf of the respondents. This application was moved on their behalf during final arguments on the present appeal. The respondents were heard through their counsel on the said application. The additional evidence sought to be adduced by the respondents was regarding the nature of the suit land that it is not a cultivating land. It may be noted that the respondents have not taken any defence in their written statement regarding the nature of the suit land or its consequence on the relief claimed by the appellant in the suit. The application filed for adducing additional evidence is without any substance and is, therefore, rejected.
This Court has bestowed its thoughtful consideration to the above rival arguments advanced by the learned counsels for the parties, but I am sorry I could not persuade myself to agree with the contentions urged on behalf of the respondents. In order to examine the correctness or otherwise of the findings of the Trial Court on the issues in the suit framed by it, this Court has carefully scanned the entire oral and documentary evidence on record of the Trial Court. The fundamental question that arises for consideration in the present appeal is whether the plea of the respondents questioning the competence of the person from whom the predecessor-in-title of the appellant had purchased the suit land in 1964, more than thirty years before the suit land was purchased by the appellant is legally tenable ? Section 90 of the Evidence Act provides a complete answer to this question. According to section 90 the genuineness of thirty years old document cannot be called in question unless contrary is proved. In the present case, sale deed Ex.P-15 in favour of the predecessor-in-title of the appellant is of the year 1964 and the appellant had purchased the suit land after more than thirty years thereof in 1996 by six different sale deeds Ex.P-9 to Ex.P-14. It shall be significant to mention that the appellant has proved the revenue entries showing mutation of the suit land in favour of predecessor-in-title Faiyazuddin of the year Samvat 1997 and the same is Ex.P-4. The appellant has also proved the notice issued by the State Government in 1965 for inviting objections from public against mutation of the suit land in favour of predecessor-in-title of the appellant on the basis of sale deed Ex.P-15. This notice proved by the appellant is Ex.P-8 and there is no evidence produced by the respondents to doubt the genuineness of the said notice. Once the respondents themselves have mutated the suit land in favour of the predecessor-in-title of the appellant in 1965 itself, then in the opinion of this Court, they are estopped from questioning the title of the vendor of the sale deed Ex.P-15, executed in 1964. It shall further be significant to mention here that the respondents'' own witness D.W.1 Kamlesh Kumar Khare in para 8 of his cross examination says that mutation of the land in the revenue record is done by the revenue people after making investigation of the title of the person in whose favour the land is mutated. This Court fails to understand how the Trial Court could have doubted the thirty years old sale deed, Ex.P-15 which was of the year 1964 merely on the basis of assumptions and presumptions without there being any evidence to support the said conclusion on record. In the opinion of this Court, the Trial Court further went wrong in doubting the genuineness of the sale deed Ex.P-15 in favour of the predecessor-in-title of the appellant on the basis of the alleged gap in the amount of sale consideration shown in sale deed Ex.P-15 and that shown in sale deeds Ex.P-9 to Ex.P-14. The sale consideration shown in the sale deed Ex.P-15 in favour of predecessor-in-title of the appellant is Rs. 1,000/-whereas the aggregate sale consideration shown in the six sale deeds all executed in the year 1996 in favour of the appellant is Rs. eleven lakhs and this gap in the two sets of sale deeds appears to be on account of high inflation in the value of land over the years. All the witnesses of the appellant have specifically testified about the possession of the appellant over the suit land, whereas respondents have not led any evidence to show their possession on the said land at any point of time. There is ample evidence on record to prove the title and possession of the appellant over the suit land. This Court is further of the view that neither the provisions of Section 20-A of Indian Forest Act nor the provisions of section 4 (2) of the Madhya Bharat Zamindari Abolition Act, 1951 apply to the facts of the present case. None of the two judgments on which reliance was placed on behalf of the respondents has any application to the facts of the present case. In the opinion of this Court, the appellant has proved his title and possession over the suit land on the date the suit was filed and, therefore, he was entitled to the reliefs that he had prayed in his suit. For the foregoing reasons, the findings of the Trial Court on the issues framed in the suit are not sustainable either on facts or in law and the same are hereby set aside. The appeal succeeds and is allowed with costs. The impugned judgment and decree of the Trial Court is hereby set aside. The appellant is declared owner of the suit land, description of which is given in para 1 of the plaint. Decree of permanent injunction is passed in favour of the appellant and against the respondents restraining them from interfering in the peaceful possession of the suit land, except with due process of law. Decree sheet be prepared and the appeal is disposed of accordingly.