Sabir Hussain (Dead) Thr. Lrs. vs Syed Mohammad Hassan (Dead) Th. Lrs

2023 INSC 980 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5049 OF 2009

SABIR HUSSAIN (DEAD) THR. LRS. AND ORS. … Appellant(s)

VERSUS

SYED MOHAMMAD HASSAN (DEAD) THR. LRS. AND ANR. … Respondent(s)

JUDGMENT

RAJESH BINDAL, J.

1. Aggrieved against the judgment dated 11.11.2008 passed

by the High Court1 in Civil First Appeal2, the respondents are before

this Court.

2. The trial court3 had decreed the suit4 filed by the

predecessor-in-interest of the appellants, whereas the High Court had

Signature Not Verified Digitally signed by Neetu Khajuria Date: 2023.11.07 14:48:38 IST Reason: 1 High Court of Madhya Pradesh Bench at Indore 2 Appeal No. 128 of 1995 3 15th Additional Judge, Indore to the District Judge, Indore, (MP) 4 Civil Suit No. 2A/1993

1 reversed the judgment and decree of the trial court, i.e., the judgment

impugned in the present appeal.

3. The brief facts to be noticed are that Kallu Bhai purchased

the property in dispute5 from Amanat Ali in the name of Mohd. Jafar vide

registered sale deed dated 03.04.1913. Mohd. Jafar was the son of

brother of Late Kallu Bhai. At that time, Mohd. Jafar was stated to be

three years old. Kallu Bhai died issueless on 25.10.1952. His first wife

had pre-deceased him. On 27.08.1970, Bashirun Nisha, the second wife

of Late Kallu Bhai, died. The defendant-respondent-Syed Mohd. Hasan

was 7-8 years old when his mother died. He was brought by Late Kallu

Bhai to live with him. Late Mohd. Jafar was not keeping good health. On

05.11.1975, Late Mohd. Jafar entered into an agreement to sell the

property in favour of Raza Hussain, which was purchased by Late Kallu

Bhai in his name in the year 1913. The sale deed was got registered on

20.11.1975 in favour of Raza Hussain. On 17.01.1977, Raza Hussain filed

suit against Syed Mohd. Hasan praying for restoration of possession of

the property in dispute and claiming damages from 26.10.1976

onwards. The trial Court decreed the suit on 24.04.1995, whereas the

5 House No. 24, Chhatripura Main Road, Indore City.

2 High Court in first appeal filed by Syed Mohd. Hasan reversed the

judgment and decree of the Trial Court.

4. In the aforesaid undisputed factual matrix, learned senior

counsel for the appellants submitted that well-reasoned judgment of

the trial court has been reversed by the High Court in first appeal

without discussing the entire evidence on record, which it was duty-

bound to. By passing a short order, the findings have been reversed

without giving any reason. In the written statement filed by the

respondent-defendant, no plea of adverse possession was taken. It is

not a matter of dispute that the property in dispute, which was sold by

Late Mohd. Jafar to Raza Hussain, was duly registered in his name as the

same was purchased in his name by Late Kallu Bhai way back on

03.04.1913. The agreement to sell and the sale deed executed by Late

Mohd. Jafar being registered documents, the genuineness thereof

could not be doubted. Clear title of the property having been

transferred in favour of the predecessor-in-interest of the appellants,

the respondent-defendant could not possibly claim any title thereof.

5. After the property in dispute was purchased by

predecessor-in-interest of the appellants, a notice was issued to the

respondent-defendant on 01.01.1976 clearly mentioning that he had

been in occupation of the part of the premises as a licensee of Mohd.

3 Jafar. Because the respondent-defendant Syed Mohd. Hasan had

stopped taking care of Mohd. Jafar, at the old age, he had to shift to live

with his brother-Nakki Hussain. Thereafter, another notice was got

issued on 21.10.1976. In the aforesaid notice, one correction was made

regarding identity of the property. The respondent-defendant was

called upon to stop recovering rent from Mohd. Ismail, the tenant in the

property in dispute and he was called upon to deliver possession of the

property in dispute to the predecessor-in-interest of the appellants.

The needful was to be done within a period of one week, failing which

the predecessor-in-interest of the appellants may have to file a civil suit.

In the sale-deed, it was specifically mentioned in para-No. 6 thereof

‘Bashirun Nisha Bai wife of Kallu Bhai who happened to be elder mother

of seller had been staying in the property with the permission of seller

along with Hasan, son of brother of first wife of Kallu Bhai, who used to

take care of her. Hasan continued to stay there even after the death of

Bashirun Bai’. It was also mentioned therein that it shall be the

responsibility of the buyer to take the possession thereof. There being

error apparent on the record of the judgment of the High Court, the

same deserves to be set aside and that of the trial court be restored.

6. On the other hand, learned counsel for the respondent-

defendant submitted that the admitted fact on record is that the

4 agreement to sell and the sale deed were got registered from Late

Mohd. Jafar within a period of fifteen days. At that time, he was not

keeping good health. He was never in possession of the property in

question as it always remained with the predecessor-in-interest of the

respondent-defendant, who had been living with Late Kallu Bhai, after

the death of his mother. The argument raised by learned counsel for the

appellants that no plea of adverse possession was taken in the written

statement is wrong as there was specific plea raised to that effect in the

form of additional plea in the written statement, to which no reply was

given by the appellants. He further submitted that the respondent-

defendant was never in possession of the property as a licensee rather

it was in his own right. His possession was hostile to the knowledge of

the owners, who had sold the property. As the owners had lost title in

the property, the same could not have been passed on to the

predecessor-in-interest of the appellants.

7. Heard learned counsel for the parties and perused the

relevant record.

8. The primary argument raised by learned senior counsel for

the appellants was that well-reasoned judgment of the trial court had

been reversed by the High Court in first appeal without discussing the

evidence produced on record. The sale deed has been doubted. The

5 findings recorded by the trial court regarding validity of the sale deed

dated 20.11.1975 has been reversed without giving any reason. The

High Court lost sight of the fact that the agreement to purchase dated

05.11.1975 and sale deed dated 20.11.1975 were registered

documents.

9. There is an opinion of the Handwriting Expert who

examined three signatures on three documents, namely, Ex. P1 and Ex.

D8 (sale deed and photocopy thereof) and Ex.P5 (agreement to

purchase) and came to the following conclusion:

“Thus, three different persons have written the above

mentioned signatures. The signatures marked A to A, B to

B, C to C and D to D on Ex. P-5 dated 05.11.1975 have been

written by one person. The signatures marked B to B, on

page-6 of Ex.P-1 and the signature marked B to B on Ex. D-

8 have been written by another person, and the signatures

marked E to E on the reverse of page-2 on Ex.P-1 dated

20.11.1975 have been written by yet another person.”

10. Masrur Hussain appeared as PW3. He identified his

signatures on the sale deed (Ex. P1) and also stated that Mohd. Jafar

6 (now deceased) had appended his signatures on the sale deed in his

presence.

11. There is statement of Dr. Badrul Hasan Naqvi son of

Dr. Maznafar Ali, who appeared as PW6. He is one of the witness on the

sale deed dated 20.11.1975. He stated that when the sale deed was

registered, Mohd. Jafar was admitted in the hospital, where Registrar

had come to get the sale deed registered. He had signed the sale deed

as a witness in the presence of the Registrar.

12. The High Court has seen the sale deed with suspicion only

because it was noticed that there was some difference in the signatures

of the vendor on the agreement to sell and the sale deed, however,

failed to take notice of the evidence of the witness to the sale deed who

was present in the hospital where the Registrar had gone to register the

document.

13. Immediately after purchase of the property, the

predecessor-in-interest of the appellants had initiated the process to

evict the respondent-defendant by issuing notice on 01.01.1976

followed by another notice dated 21.10.1976. From the record, it was

not pointed out that any reply was given to the aforesaid notice.

Thereafter, civil suit was filed on 17.01.1977 seeking restoration of

7 possession and also claiming damages for use and occupation of the

premises from 26.10.1976, onwards after issuance of the second notice

for eviction.

14. We have briefly noticed the material which has not been

considered by the High Court while appreciating the evidence

produced on record by the parties, especially in the first appeal where

it is the duty of the court to address all the issues and decide the case

by giving reasons. The First Appellate Court is required to record its

findings dealing with all the issues of law as well as fact and with the

evidence, oral as well as documentary, led by the parties. The

judgment of the First Appellate Court must show conscious application

of mind. The findings should be supported by reasons on all the issues

and contentions.

15. In the case in hand, the High Court being the First Appellate

Court had not referred to the evidence produced on record by the

parties on various issues for re-appreciation and has recorded the

finding referring to the evidence in part. The judgment and decree of

the Trial Court was reversed. In that situation, the onus was more on the

First Appellate Court to have discussed the entire evidence in detail.

8

16. For the reasons mentioned above, the impugned judgment

of the High Court is set aside, and the matter is remitted back to the

High Court for fresh consideration. The matter being quite old, we

request the High Court to give it priority in disposal.

17. The appeal is accordingly disposed of.

18. We make it clear that this Court has not recorded any

finding on any of the issues on appreciation of evidence. The High

Court will decide the matter afresh, without being prejudiced by any of

the observations made in the order, strictly considering the

documentary as well as oral evidence produced on record by the

parties.

…..……………….J (VIKRAM NATH)

…………………..J (RAJESH BINDAL) New Delhi November 06, 2023.

9