Rajnarayan Sharma vs Sirnam Sharma

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7444 OF 2009

RAJNARAYAN SHARMA ..APPELLANT

VERSUS

SIRNAM SHARMA AND OTHERS ..RESPONDENTS

JUDGMENT

MOHAN M. SHANTANAGOUDAR

1. This appeal arises out of the impugned judgment

dated 12.12.2005 passed by the High Court of Madhya Pradesh,

Bench at Indore in Second Appeal No. 189/1999, setting aside

the judgment passed by the Additional District Judge, Gohad in

C.F.A No. 65/98, consequently confirming the judgment and

decree passed by the Civil Judge, Class-I, Gohad in Civil Suit Signature Not Verified Digitally signed by SARITA PUROHIT Date: 2017.09.13 11:08:22 IST

No. 8-A/87. In effect, the High Court, by the impugned Reason:

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judgment, has restored the judgment of the trial Court,

decreeing the suit, filed by the plaintiffs. Order of review dated

04.12.2006 passed by the High Court has also been challenged

in this appeal.

2. The plaintiffs (respondent nos. 1 and 2 herein) filed

Civil Suit No. 8-A/87 for declaration of title and injunction, and

for cancellation of the sale deed dated 16.7.1984 (exhibit D-2),

executed by Bansi(Banshi) in favour of defendant

no.1-Raghunath, as well as, sale deed dated 21.9.1989(exhibit

D-1), executed by defendant 1-Raghunath in favour of

Rajnarayan Sharma (appellant herein) in respect of the land

bearing survey(new) numbers 123, 322, 426, 863, 1375 and

1413, admeasuring 7 Bighas 17 Biswas, situated in the village

Chandhara, Tehsil Gohad, District Bhind, Madhya Pradesh

(hereinafter referred to as the ‘suit land’).

The plaintiffs claimed that they were in possession of

the suit land as sub-lessee of Bansi(Banshi) after paying

Rs.5,000/- to Bansi(Banshi) in Samvat 2030 and since then

they continued to be in possession of the suit land; they 3

acquired rights of occupancy tenants; Bansi(Banshi)/holder of

the suit land could not have executed the sale deed in favour of

the first defendant, firstly, because Bansi(Banshi) was not in

possession of the suit property, and that the plaintiffs were in

continued possession of the property, and secondly, because

Bansi(Banshi) was mentally ill.

The case of the defendants is, that Raghunath

(original defendant no.1) purchased the suit land from

Bansi(Banshi) through a registered sale deed (exhibit D-2) dated

16.7.1984, and in turn, Raghunath sold the suit property to

Rajnarayan Sharma (appellant herein) through registered sale

deed (exhibit D-1) dated 21.09.1989.

3. The trial Court, after framing the issues, recording

the evidence and hearing the parties, decreed the suit filed by

the plaintiffs. As mentioned supra, the first appellate Court

reversed the judgment and decree passed by the trial Court and

dismissed the suit filed by the plaintiffs, concluding that the

plaintiffs have neither proved their ownership nor possession

over the suit land. The High Court, while allowing the appeal 4

filed by the plaintiffs in part, concluded that the plaintiffs have

got no right, title or interest whatsoever over the suit land, but

are in possession of the property and therefore they cannot be

dispossessed, except in accordance with law. The plaintiffs

have not assailed the impugned judgment of the High Court

holding that they do not have any right, title or interest

whatsoever over the suit land and therefore the said finding of

the High Court has attained finality and is binding on the

parties.

4. The only question to be decided in this appeal is with

regard to the possession over the suit property. The first

appellate Court, as well as, the High Court have categorically

recorded a finding on due consideration of the entire material

on the record in proper perspective, that there is nothing on

record to show that the plaintiffs were sub-lessees of

Bansi(Banshi) at any point of time. The alleged payment of

Rs.5,000/- by the plaintiffs to Bansi(Banshi) is also not proved,

inasmuch as, there is no documentary evidence to support

such case of the plaintiffs. Neither lease deed executed 5

between the plaintiffs and Bansi(Banshi), nor any rent receipt is

forthcoming on the record. Even the alleged rate of rent was

not fixed between the plaintiffs and Bansi(Banshi). Therefore,

though the High Court was justified in concluding that the

plaintiffs have not proved any right, title or interest over the

suit land, the High Court has erred in concluding that the

plaintiffs are in possession of the suit land since last few years

and they cannot be dispossessed, except in accordance with

law.

5. The plaintiffs solely rely upon khasra entries filed by

the defendants before the first appellate Court as an additional

evidence, which came to be accepted for the years Samvat

2036-2040 and 2041-2045, i.e., 1974-1979 and 1980-1985, to

show that they are in possession of the suit property. As

mentioned supra, the plaintiffs claimed that they were in

possession of the suit land from Samvat 2030, but there is

nothing on record to show that they entered into the

possession of the suit land in Samvat 2030. It is no doubt

true, that the names of the plaintiffs were forthcoming in the 6

certified copies of khasra entries for Samvat 2036-2040 and

2041-2045 in the column of particulars, however, the

Sub-Divisional Officer, Gohad has passed an order cancelling

the names of the plaintiffs in respect of those years, inasmuch

as, the khasra entries in the revenue record were found to be

incorrect. Except those khasra entries, no other documentary

material is forthcoming to prove the possession of the plaintiffs

over the suit property at any point of time.

6. Per contra, the sale deed dated 16.7.1984 (exhibit

D-2), executed by Bansi(Banshi) in favour of Raghunath

(original first defendant), and the sale deed dated 21.9.1989

(exhibit D-1), executed by the first defendant in favour of the

appellant herein are not questioned by anybody including the

plaintiffs till date. The sale deed dated 16.7.1984 (exhibit D-2)

depicts that the possession of the suit land was handed over by

Bansi(Banshi) to Raghunath, i.e., the predecessor-in-interest of

respondent nos. 3 to 5 herein. On receiving consideration of

Rs.15,000/-, the possession of the suit land was handed over to

Raghunath on the spot. On 13.5.1985, by the order of 7

Sub-Divisional Officer, Gohad, the revenue records were

mutated on the application of original vendor Bansi(Banshi).

Subsequently thereafter the names of defendant no.1-

Raghunath on the basis of sale deed dated 16.7.1984 (exhibit

D-2) and subsequent purchaser Rajnarayan Sharma (the

appellant herein) on the basis of sale deed dated 21.9.1989

(exhibit D-1) were mutated in the revenue records. Even after

the second sale deed dated 21.9.1989, the name of Rajnarayan

Sharma was entered into the revenue records as in possession

over the suit land and he is cultivating the land in question.

7. Having regard to the position narrated above, it is

clear that there is no documentary evidence to show that the

plaintiffs are in possession of the suit property and their case

is only based on oral evidence, which is controverted by the

defendants in their oral evidence, in our considered opinion,

the High Court was not justified in holding that the plaintiffs

are in possession of the property. The High Court has fully

relied on the revenue entries of Samvat 2036-2040 and

2041-2045 to conclude that the plaintiffs are in possession of 8

the property. While, doing so the High Court had erred in

overlooking the important factor that such entries were

cancelled by the superior revenue officer, as mentioned supra.

In view of the same the High Court fell into error in coming to

wrong conclusion. Hence, the said part of the impugned

judgment needs to be modified.

8. Accordingly, the instant appeal is allowed, the finding

recorded by the High Court that the plaintiffs are in possession

of the suit property and they cannot be dispossessed except in

accordance with law stands set aside, and the suit No. 8-A/87

is dismissed in toto. No order as to costs.

…...………………………………….J. [ARUN MISHRA]

……..……………………………..……J. [MOHAN M. SHANTANAGOUDAR] NEW DELHI;

SEPTEMBER 12 , 2017.

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ITEM NO.1501 COURT NO.10 SECTION IV-A (For Judgment)

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).7444/2009

RAJNARAYAN SHARMA Appellant(s) VERSUS

SIRNAM SHARMA AND OTHERS Respondent(s)

Date : 12-09-2017 This appeal was called on for pronouncement of judgment today.

For Appellant(s) Mr. Niraj Sharma,AOR

For Respondent(s) Ms. Sharmila Upadhyay,AOR

UPON hearing the counsel the Court made the following O R D E R Hon'ble Mr. Justice Mohan M. Shantanagoudar pronounced the Non-Reportable judgment of the Bench comprising Hon'ble Mr. Justice Arun Mishra and His Lordship.

The appeal is allowed with no order as to costs, in terms of the signed Non-Reportable judgment.

Pending application, if any, stands disposed of.

(Sarita Purohit) (Tapan Kumar Chakraborty) Court Master Branch Officer

(Signed Non-Reportable judgment is placed on the file)