REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4816 OF 2016
[Arising out of SLP (Civil) No. 13076 of 2007]
Muddasani Venkata Narsaiah (D) Th. Lrs. .. Appellants
Versus
Muddasani Sarojana .. Respondent
J U D G M E N T
Arun Mishra, J.
1. Leave granted.
2. The plaintiff is in appeal before us aggrieved by reversal of the
judgment and decree of first appellate Court by the High Court in Second
Appeal and restoring the judgment and decree of the trial Court dismissing
the suit filed by the plaintiff.
3. The plaintiff filed a suit before the trial Court for possession of
disputed property and mesne profits based upon the title. It was averred
in the plaint that Veeraiah and Balaiah were sons of late Rajaiah. Both
the sons predeceased their father Rajaiah. Plaintiff is son of Veeraiah
and Yashoda is wife of the said late Balaiah. After the death of Rajaiah,
the property was given as widow’s estate to Yashoda. It was to be reverted
to the plaintiff after the death of Yashoda. Yashoda enjoyed the property
in her lifetime. However, after her death, Smt. Gandla Buchamma, surviving
sister of late Balaiah succeeded to the property and sold it to plaintiff
vide registered sale deed dated 25.4.1981 and also delivered the
possession. Thereafter on 12.6.1981 the defendants forcibly evicted the
plaintiff from the property.
4. The defendants in their written statements contended that Ballaiah
was the absolute owner of the property and after his death Yashoda became
the absolute owner of the property. She was in possession of the
property. It was not to be reverted back to the plaintiff after the death
of Yashoda. Yashoda after death of her husband, as per authority given by
her late husband, had adopted defendant no. 3 Sarojana when she was aged 12
years and thereafter she resided in the house of Yashoda as her daughter.
Thus, Buchamma did not succeed to the property. The adopted daughter
defendant no. 3 succeeded to property by inheritance. Defendants had no
knowledge of the registered sale deed. Buchamma was not in possession and
had no authority to sell the property to the plaintiff.
5. The trial Court framed the issue as to the ownership of Yashoda and
also on the question of factum of adoption of defendant no. 3 on 18.2.1959
and whether she became the owner by virtue of adoption after the death of
Yashoda. A specific issue was also framed by the trial Court on the
question whether on death of Yashoda, Buchamma, who is the surviving sister
of Yashoda’s late husband Balaiah, became heir and owner of the said
property and whether the plaintiff had acquired the title to the suit
property vide registered sale deed dated 25.4.1981executed by Buchamma in
favour of the plaintiff.
6. The trial Court while dismissing the suit inter alia found that
passing of consideration has not been proved under the sale deed and that
it was a nominal document. The plaintiff ought to have filed suit for
declaration of title. Defendant no. 3 was cultivating the suit land from
the date of the death of Yashoda since 1981. However, it has not been
proved that defendant no. 3 was adopted daughter of late Yashoda. The
factum of adoption has not been established. The possession had not been
delivered by Buchamma to the plaintiff on the date of the execution of the
sale deed i.e. 25.4.1981. The plaintiff must succeed on the strength of
his own case, not on the weaknesses of the defendants. The trial Court
also found that it was not established that Buchamma was the sole surviving
sister of late Balaiah.
7. On first appeal being preferred into the Court of 1st Additional
District Judge, Karimnagar, it allowed the appeal and the suit of the
plaintiff had been decreed. It found that the execution of the sale deed
has been established. Yashoda was the absolute owner in possession of the
property in her lifetime. There was no Class I heir of deceased Balaiah.
Buchamma was a Class II heir being the only surviving sister of Yashoda’s
late husband Balaiah as such succeeded to the property. Since it was not
denied in written statement that Buchamma is the only surviving sister of
Balaiah, she was entitled to succeed to the property of late
Balaiah/Yashoda. The adoption of defendant no. 3 has not been
established. The case set up by defendant no.3 that Yashoda cultivated the
suit land during her lifetime has not been found to be established in the
absence of any document to that effect. Defendant no.3 had no title to
the property, as such she had no right to retain its possession.
Defendant no. 3 being third party could not question the sale deed and
passing of consideration. The sale deed is valid and binding. Even if
Buchamma has not delivered the possession to the plaintiff that would not
affect his right to claim possession on the strength of his title conferred
upon him under the sale deed. It was not necessary to examine Buchamma as
she had never objected to the execution of sale deed. In the written
statement only her authority to sell the property was questioned. It was
not necessary to file a suit for declaration of title as Buchamma acquired
the suit property by way of inheritance from the absolute owner and
thereafter sold it to the plaintiff.
8. The High Court in the second appeal has not disturbed the concurrent
findings that the adoption of defendant no.3 Sarojana by Yashoda has not
been established. However, the High Court has held that the sale deed has
not been proved for want of examination of Buchamma and in the
circumstances it was necessary for the plaintiff to file a suit for
declaration of title. The High Court observed that the suit for possession
and mesne profits thus could not have been filed and allowed the second
appeal. Aggrieved thereby, the plaintiff has come up in the appeal
before us.
9. It was submitted on behalf of the appellant that the High Court has
erred in law in reversing the judgment and decree passed by the first
Appellate Court. It was not necessary to seek the relief for declaration
of title as there was no serious cloud on the title of the plaintiff. The
authority of Buchamma to execute the sale deed had been put into question
not factum of execution of sale deed. Thus it was not necessary to
examine Buchamma and defendant No.3 being a third party cannot question the
passing of consideration under the sale deed. Buchamma was the sole Class
II heir left.
10. Per contra, the learned counsel for the respondents urged that no
case of interference was made out. It was necessary for plaintiff to seek
relief for declaration of title. The suit has rightly been dismissed.
The defendant no. 3 was in possession even in the lifetime of Yashoda. It
is submitted that even if her case of adoption has not been found to be
established, the plaintiff has not been able to establish his entitlement
to recover the possession.
11. In the instant case, as per concurrent findings of all the courts,
defendant no. 3 has failed to prove the factum of her adoption by deceased
Yashoda in the year 1959. There was no corresponding document of adoption
and other documentary evidence showing that defendant no. 3 had ever been
adopted by the deceased Yashoda. True it is that in some of the revenue
entries the name of defendant no. 3 has been shown as person in possession,
but not in the capacity of adopted daughter. Yashoda was admittedly the
owner of the property. The plaintiff has based his case to recover
possession on the strength of the sale deed executed by Buchamma in his
favour.
12 In the aforesaid background of facts, we come to the question whether
it was necessary to seek relief or declaration of title. In our opinion,
the plaintiff has filed the suit for possession on the strength for title
and not only on the basis of prior possession. It was not a summary suit
for ejectment filed under Section 6 of the Specific Relief Act, 1963.
Thus, plaintiff could succeed in suit for possession on the strength of the
title. The issue had been framed on the question of title of the plaintiff
as well as on the question of adoption of defendant no.3. On the basis of
title claimed in the suit, both the parties have adduced their evidence in
support of their respective cases. The main plea of defendant no. 3 that
she was an adopted daughter of Yashoda has not been found to be established
by the trial Court, the first Appellate Court or by the High Court. Thus,
in our opinion, there was no serious cloud on the title of the plaintiff so
as to force him to seek the relief for declaration of title in the instant
case which was in fact based on the strength of the sale deed executed by
Buchamma, who was the sole surviving heir of Balaiah as such succeeded to
the property and had the right to execute the sale deed in favour of the
plaintiff.
13. We are fortified in our aforesaid conclusion by a decision in Kurella
Naga Druva Yudaya Bhaskara Rao v. Galla Jani Kamma (2008) 15 SCC 150,
wherein this Court has examined the question of maintainability of suit for
possession without prayer for declaration of title. This Court has
referred to its earlier decision in Anathula Sudhakar v. P. Buchi Reddy
(2008) 4 SCC 594, wherein the plaintiff had purchased the suit land under
registered sale deed dated 10.4.1957 and the defendant did not claim the
title with reference to any document but claimed to have perfected title by
adverse possession. It was held by this Court that the said plea did not
prima facie put any cloud over the plaintiff’s title calling him to file
suit for declaration of title. Unless there is serious cloud over the
title of the plaintiff there is no need to file suit for declaration of
title. The suit for possession was maintainable. This Court laid down as
follows:
“16. The plaintiff had purchased the suit land under registered sale deed
dated 10.4.1957. Defendant did not claim title with reference to any
document but claimed to have perfected title by adverse possession. A mere
claim by the defendant that he had perfected his title by adverse
possession, does not mean that a cloud is raised over plaintiff’s title and
that the plaintiff who is the owner, should file a suit for declaration of
title. Unless the defendant raises a serious cloud over the title of the
plaintiff, there is no need to file a suit for declaration. The plaintiff
had title and she only wanted possession and therefore a suit for
possession was maintainable. We are fortified in this view by the following
observations of this Court in Anathula Sudhakar v. P. Buchi Reddy (2008) 4
SCC 594:
“14. We may however clarify that a prayer for declaration will be necessary
only if the denial of title by the defendant or challenge to plaintiff’s
title raises a cloud on the title of plaintiff to the property. A cloud is
said to raise over a person’s title, when some apparent defect in his title
to a property, or when some prima facie right of a third party over it, is
made out or shown. An action for declaration, is the remedy to remove the
cloud on the title to the property. On the other hand, where the plaintiff
has clear title supported by documents, if a trespasser without any claim
to title or an interloper without any apparent title, merely denies the
plaintiff’s title, it does not amount to raising a cloud over the title of
the plaintiff and it will not be necessary for the plaintiff to sue for
declaration. ….”
14. Coming to the question whether execution of sale deed in favour of
plaintiff has been proved, the High Court has held that the sale deed has
not been proved for want of examination of Buchamma. The High Court has
ignored the pleadings of the parties and the evidence on the question of
execution of sale deed which establishes that sale deed had been executed
by Buchamma in favour of the plaintiff. In the written statement filed on
behalf of the defendants, the sale deed was denied for want of knowledge.
A perusal of same indicates that the authority of Buchamma to execute the
sale deed in favour of the plaintiff was put into question. Defendant no.
3 Sarojana in her deposition in court did not deny the fact that sale deed
was executed by Buchamma in favour of the plaintiff. She has stated that
she was not aware whether Buchamma has executed any sale deed in favour of
the plaintiff. She only asserted that she was the adopted daughter of
Yashoda.
15. It is settled law that denial for want of knowledge is no denial at
all. The execution of the sale deed was not specifically denied in the
written statement. Once the execution of the sale deed was not disputed it
was not necessary to examine Buchamma to prove it. The provisions
contained in Order 8 Rule 5 require pleadings to be answered specifically
in written statement. This Court in Jahuri Sah & Ors. v. Dwarika Prasad
Jhunjhunwala AIR 1967 SC 109 has laid down that if a defendant has no
knowledge of a fact pleaded by the plaintiff is not tantamount to a denial
of existence of fact, not even an implied denial. Same decision has been
followed by Madhya Pradesh High Court in Dhanbai D/o Late Shri Cowash v.
State of M.P. & Ors. 1978 MPLJ 717. The High Court of Madhya Pradesh in
Samrathmal & Anr. v. Union of India, Ministry of Railway & Ors. AIR 1959 MP
305 relying on P.L.N.K.L. Chettyar Firm v. Ko Lu Doke AIR 1934 Rang 278 and
Lakhmi Chand v. Ram Lal AIR 1931 All. 423, had also opined that if the
defendant did not know of a fact, denial of the knowledge of a particular
fact is not a denial of the fact and has not even the effect of putting the
fact in issue.
16. Moreover, there was no effective cross-examination made on the
plaintiff’s witnesses with respect to factum of execution of sale deed,
PW.1 and PW-2 have not been cross examined as to factum of execution of
sale deed. The cross-examination is a matter of substance not of procedure
one is required to put one’s own version in cross-examination of opponent.
The effect of non cross-examination is that the statement of witness has
not been disputed. The effect of not cross-examining the witnesses has been
considered by this Court in Bhoju Mandal & Ors. v. Debnath Bhagat & Ors.
AIR 1963 SC 1906. This Court repelled a submission on the ground that
same was not put either to the witnesses or suggested before
the courts below. Party is required to put his version to the witness. If
no such questions are put the court would presume that the witness account
has been accepted as held in M/s. Chuni Lal Dwarka Nath v. Hartford Fire
Insurance Co. Ltd. & Anr. AIR 1958 Punjab 440. In Maroti Bansi Teli v.
Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down
that the matters sworn to by one party in the pleadings not challenged
either in pleadings or cross-examination by other party must be accepted as
fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y.
Derderian AIR 1961 Cal. 359 has laid down that the party is obliged to put
his case in cross-examination of witnesses of opposite party. The rule of
putting one’s version in cross-examination is one of essential justice and
not merely technical one. A Division Bench of Nagpur High Court in
Kuwarlal Amritlal v. Rekhlal Koduram & Ors. AIR 1950 Nagpur 83 has laid
down that when attestation is not specifically challenged and witness is
not cross-examined regarding details of attestation, it is sufficient for
him to say that the document was attested. If the other side wants to
challenge that statement, it is their duty, quite apart from raising it in
the pleadings, to cross-examine the witness along those lines. A Division
Bench of Patna High Court in Karnidan Sarda & Anr. v. Sailaja Kanta Mitra
AIR 1940 Patna 683 has laid down that it cannot be too strongly emphasized
that the system of administration of justice allows of cross-examination of
opposite party’s witnesses for the purpose of testing their evidence, and
it must be assumed that when the witnesses were not tested in that way,
their evidence is to be ordinarily accepted. In the aforesaid
circumstances, the High Court has gravely erred in law in reversing the
findings of the first Appellate Court as to the factum of execution of the
sale deed in favour of the plaintiff.
17. It is also settled law that passing of consideration under a sale
deed cannot be questioned by third party. Defendant no. 3 has not been
able to establish her case that she is an adopted daughter of the deceased
Yashoda and thus, she being the third party, could not have questioned the
execution of the sale deed by Buchamma on the ground of passing of
consideration as rightly laid down by the High Court of M.P. in Pandit
Ramjilal Tiwari v. Vijai Kumar & Ors. 1970 MPLJ 50. The High Court of Patna
has also held that passing of consideration can be questioned by a party or
his representative in Mt. Akli v. Mt. Daho AIR 1928 Patna 44. Similar is
the view of the High Court of Nagpur in Maroti Bansi Teli (supra). Thus,
the High Court has erred in law on this ground also in dismissing the suit.
18. Coming to the question whether the plaintiff was placed in possession
by Buchamma, in our opinion, it is apparent that Yashoda was enjoying the
property in her lifetime, though it appears that defendant no. 3 was
residing with Yashoda, but she has not claimed any derogatory title to
Yashoda nor has claimed adverse possession. Her claim of an adopted
daughter of Yashoda has not been found established. The entry of
possession in some revenue records simplicitor does not confer any right to
defendant no. 3 to retain the possession of the property. The property on
the death of Yashoda had been passed on to Buchamma being class IInd heir,
as such she had the right to sell the property to plaintiff. Even if
Buchamma had not placed plaintiff in possession of property on strength of
his title conferred by way of sale deed in question he had right to recover
possession. The first appellate Court was thus right in decreeing the
suit. The High Court has erred in allowing appeal.
19. In the circumstances, appeal is allowed, the impugned judgment and
order passed by the High Court dismissing the suit is set aside and the
judgment and decree passed by the first Appellate Court is restored. The
parties to bear their own costs.
…………………………J.(V. Gopala Gowda)
………………………..J. (Arun Mishra)
New Delhi;
May 5, 2016.
ITEM NO.1A-For Judgment COURT NO.9 SECTION XIIA
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).4816/2016 @ SLP(C)No.13076/2007
MUDDASANI VENKATA NARSAIAH(D)TR.LRS. Appellant(s)
VERSUS
MUDDASANI SAROJANA Respondent(s)
Date : 05/05/2016 This appeal was called on for pronouncement of JUDGMENT
today.
For Appellant(s)
Mr. K. Shivraj Choudhuri,Adv.
For Respondent(s)
Mr. Sridhar Potaraju,Adv.
Hon’ble Mr. Justice Arun Mishra pronounced the judgment of the Bench
comprising Hon’ble Mr. Justice V.Gopala Gowda and His Lordship.
Leave granted.
The appeal is allowed in terms of the signed reportable Judgment.
Pending application(s), if any, stand(s) disposed of.
(VINOD KUMAR JHA) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)
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