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Patna High Court

Dhirendra Kumar SinghversusAruna Devi

Decided
Disposal
DISMISSED

Holding

The appeal is dismissed and the decree granting redemption and possession to the plaintiff is affirmed.

Summary

The plaintiff Aruna Devi filed a title suit seeking redemption of a mortgage and possession of land mortgaged by Kaushalya Singh to Ram Briksh Singh. The land was later sold by Kaushalya's son Surendra Singh to Aruna Devi, who deposited the mortgage amount under Section 83 of the Transfer of Property Act, leading to an ex‑parte decree in her favour. Defendants Dhirendra Kumar Singh and Ram Briksh Singh contested the decree, alleging a partition and a later sale deed in their favour, but failed to prove the alleged agreement to sale. The trial court upheld Aruna Devi's right to redemption and possession, a decision affirmed by the Fast Track Court. The High Court found no error of law, noted the lack of proof for the later sale, and dismissed the second appeal under Order XLI Rule 11 of the CPC.

Issues considered

  • Whether the plaintiff is entitled to redemption and possession of the mortgaged land under Section 83 of the Transfer of Property Act.
  • Whether the subsequent sale deed to Dhirendra Kumar Singh can override the earlier sale deed to Aruna Devi.
  • Whether the alleged Mahadnama (agreement to sale) dated 06‑12‑1988 is proved and can affect title.
  • Whether the lower courts erred in law or fact in granting the decree to the plaintiff.
  • Whether the appeal should be dismissed under Order XLI Rule 11 of the CPC.

Legislation cited

Subjects

  • mortgage redemption
  • possession
  • sale deed
  • partition
  • ex parte decree
  • title suit
  • Transfer of Property Act
  • Civil Procedure Code
  • Mahadnama

Judgment

                       IN THE HIGH COURT OF JUDICATURE AT PATNA
                                      SECOND APPEAL No.126 of 2018
                  ======================================================
            1.     Dhirendra Kumar Singh, son of Late Bed Narayan Singh, resident of village
                   Wajitpur, Gokulpur, P.S. Bidupur, District Vaishali.
            2.    Ram Briksh Singh, son of Late Hazari Singh, resident of village Wajitpur,
                  Gokulpur, P.S. Bidupur, District Vaishali.

                                                                            ... ... Appellant/s
                                                      Versus
                  Aruna Devi, wife of Shir Baidya Nath Singh, resident of village Wajitpur,
                  Gokulpur, P.S. Bidupur, District Vaishali.

                                                            ... ... Respondent/s
                  ======================================================
                  Appearance :
                  For the Appellant/s    :     Mr. Braj Kishore Singh Chouhan, Adv.
                                               Mr. Kumar Harsh, Adv.
                  For the Respondent/s   :     Mr. J.S. Arora, Sr. Adv. With
                                               Mr. Pratik Kumar Sinha, Adv.
                                               Mr. Lalitesh Mani, Adv.
                  ======================================================
                  CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
                                         CAV ORDER

19   05-05-2026                     Heard Mr. Braj Kishore Singh Chouhan, learned

                    counsel for the appellants as well as Mr. J.S. Arora, learned

                    senior counsel assisted by Pratik Kumar Sinha, learned counsel

                    for the respondent.

                                 2. This Second Appeal has been preferred by the

                    defendants/appellants/appellants against the judgment and

                    decree of affirmance dated 25.01.2018 passed by the learned

                    Fast Track Court, Vaishali at Hajipur in Title Appeal No. 12 of

                    2002 whereby the learned Appellate Court has upheld the

                    judgment and decree dated 05.02.2002 passed in Title Suit No.

                    128 of 1994 by the learned Munsif-I, Vaishali at Hajipur

                    whereby the learned Trial Court has decreed the suit on contest
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          with cost.

                       3. The plaintiff/respondent filed Title Suit No. 128 of

          1994 for redemption of mortgage and recovery of possession.

                       4. The case of the plaintiff/respondent is that the land

          under mortgage is of R.S. Khata No. 14, Plot No. 280, Area 57

          decimals from east. Total area of Plot No. 280 was 1 bigha 5

          katha 5 dhur, which was recorded in Revisional Survey

          Khatiyan in the name of Kaushalya Singh, who sold 12 katha of

          land from west to the plaintiff vide registered sale deed dated

          02.05.1986 for consideration of Rs. 4000/- since then, she came

          in possession of the said land and remaining area of that plot i.e.

          57 decimals was mortgaged by Kaushalya Singh through

          registered mortgage deed dated 27.07.1988 for Rs. 2000/- to

          Ram Briksh Singh (defendant no. 1), who came in possession as

          mortgagee. Kaushalya Singh died leaving behind a son Surendra

          Singh. It is further pleaded that there was mutual partition

          between Kaushalya Singh and Surendra Singh of the entire

          property and both of them came in possession of their respective

          share. The said partition happened sometime after the mortgage

          and the disputed land was allotted to Surendra Singh in his

          share. Surendra Singh announced to sale that land under

          mortgage and he agreed to sale the land for consideration of Rs.
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          5000/- and accordingly, a sale deed was executed on 09.01.1989

          in favour of Aruna Devi (plaintiff) and out of consideration

          money of Rs. 5000/-, Rs. 2000/- remained with the plaintiff

          Aruna Devi for payment of mortgage money to Ram Briksh

          Singh and remaining Rs. 3000/- was paid to Surendra Singh at

          the time of exchange of receipt of the sale deed and he endorsed

          on the receipt. The plaintiff obtained the sale deed, got her name

          mutated and paid the rent to the State of Bihar. It is further

          submitted that period of mortgage was Baishakh 1399 Fasli

          (1992). After the execution of sale deed Aruna Devi through her

          husband tendered Rs. 2000/- to Ram Briksh Singh for return of

          mortgage deed and to leave possession over the land which was

          refused by Ram Briksh Singh. Therefore, the plaintiff filed

          Miscellaneous Case No. 22 of 1993 under Section 83 of the

          Transfer of Property Act and deposited Rs. 2000/- and cost of

          Registry Rs. 50/- through Challan No. 81 of 24.09.1993. In the

          said Miscellaneous Case, the notice was issued, which was

          served upon Ram Briksh Singh. Despite valid service of notice,

          he did not appear in the said case. Neither he received the

          deposited amount nor he vacated the land in suit though the

          plaintiff is legally entitled to get the possession. Further, it has

          been pleaded that Ram Briksh Singh wrongly stated that the
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          amount of mortgage was paid to him and possession was

          delivered to Dhirendra Kumar Singh, who is own nephew of

          Ram Briksh Singh, as such, both might have committed

          mischief.

                       5. On summons, written statement was filed on behalf

          of defendant-Ist set, Ram Briksh Singh stating therein that he

          had received the mortgage amount on 31.05.1993 from

          Dhirendra Kumar Singh and made endorsement on the original

          deed and gave the document to Dhirendra Kumar Singh and also

          handed over the possession of the land to him. It is further

          submitted that there was no partition between Kaushalya Singh

          and his son Surendra Singh. Kaushalya Singh was the Karta of

          the joint family and he dealt with the property for the benefit of

          the joint family. He admitted that Kaushalya Singh sold the

          western part of the disputed plot to the plaintiff. Kaushalya

          Singh and his son also sold the eastern part to Dhirendra Kumar

          Singh (nephew of defendant no. 1) through registered sale deed

          executed on 10.11.1989. He denied the fact that the plaintiff

          either herself or through her husband had made request to

          receive the mortgage money and to leave possession over the

          land in suit. It has been pleaded that there was no reason for

          filing Miscellaneous Case No. 22 of 1993 under Section 83 of
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          the Transfer of Property Act and defendant no. 1 had not

          received any notice and the judgment dated 02.04.1994 passed

          in Miscellaneous Case No. 22 of 1993 have been obtained by

          playing fraud. Dhirendra Singh had shown the sale deed dated

          10.11.1989 in the court in which there was statement about the

          mortgage money and he tendered the mortgage money, which

          was received by defendant no. 1, who handed over the

          possession to Dhirendra Kumar Singh.

                       6. A separate written statement has also been filed by

          Dhirendra Kr. Singh admitting the statement of Ram Briksh

          Singh (defendant no. 1) and denying the story of partition.

          Kaushalya Singh and Surendra Singh both remained joint and

          Kaushalya Singh died leaving behind his son Surendra Singh in

          the state of jointness. The husband of Aruna Devi wrongly

          obtained the sale deed on 09.01.1988 in the name of his wife.

          The sale deed was executed without consideration money. It is

          further pleaded that both Kaushalya Singh and his son Surendra

          Singh have agreed to sale disputed land to defendant no. 2 for

          consideration mentioned in agreement to sale dated 06.12.1988.

          The order passed in Miscellaneous Case No. 22 of 1993 is not

          binding upon defendant no. 2 and no notice was served to him.

          The mortgage money was paid to Ram Briksh Singh and he
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          obtained the original mortgage deed and came in possession of

          the land in question.

                       7. The learned Trial Court after considering the

          pleadings, the evidence adduced by the parties and materials on

          record observed that both the parties have accepted that

          Kaushalya Singh sold 12 katha of the land from western side of

          the plot vide registered sale deed dated 02.05.1986 over which

          the plaintiff is in possession and the remaining 13 katha 5 dhur

          land equivalent to 57 decimals was mortgaged with Ram Briksh

          Singh, who came in possession over the land as mortgagee, and

          when the son of Kaushalya Singh, namely, Surendra Singh

          became major before 1989 then he executed a registered sale

          deed on 09.01.1989 in favour of the plaintiff/respondent for

          consideration of Rs. 5000/-, in which it was mentioned that

          amount of mortgage of Rs. 2000/- was left with the plaintiff to

          pay to Ram Briksh Singh for redemption of mortgage and to

          obtain possession over the land. The defendant has pleaded that

          Kaushalya        Singh      and     Surendra   Singh   have   executed

          Mahadnama (agreement to sale) in favour of Dhirendra Kr.

          Singh (defendant-2nd set) on 06.12.1988 and accordingly, they

          executed the sale deed in his favour on 10.11.1989, as such, has

          got lawful title and he has redeemed the mortgage. It is further
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          held by the learned Trial Court that it is admitted fact that

          Miscellaneous Case No. 22 of 1993 was filed by the plaintiff in

          which summons and notice was issued upon defendant no. 1 but

          he did not appear in the said case. Therefore, ex parte order was

          passed in favour of the plaintiff. The plaintiff Aruna Devi got

          right of redemption for which amount of Rs. 2000/- was

          deposited in the court vide Challan No. 81 dated 24.09.1993.

          Hence, the plaintiff is entitled to get the relief and all issues

          were decided in her favour and decreed the suit.

                       8. Being aggrieved by the judgment and decree dated

          18.02.2002 passed in Title Suit No. 128 of 1994 by the learned

          Munsif-I, Vaishali           at   Hajipur, the   defendants/appellants

          preferred Title Appeal No. 12 of 2002. After hearing the parties

          and considering the materials on record, the learned Fast Track

          Court, affirmed the judgment and decree of the learned Trial

          Court and dismissed the appeal vide judgment and decree dated

          25.01.2018.

                       9. The learned lower Appellate Court has held that

          admittedly the land in dispute is of Plot No. 280, Area 57

          decimals and total area of the disputed plot is 1 bigha 5 katha

          and 5 dhur recorded in the Survey Khatiyan in the name of

          Kaushalya Singh. It is admitted fact that Kaushalya Singh had
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          already sold 12 katha land from west to the plaintiff vide

          registered sale deed dated 02.05.1986 and remaining 57

          decimals was mortgaged to Ram Briksh Singh on 27.07.1988

          for mortgage money of Rs. 2000/-. Both Kaushalya Singh and

          Surendra Singh are father and son and they got the partition

          between them and the disputed land was allotted to the share of

          Surendra Singh, who sold the land to the plaintiff on

          09.01.1989. Kaushalya Singh had no share in the said plot. DW-

          2 is Ram Naresh Singh, who stated that both Kaushalya Singh

          and Surendra Singh have executed Mahadnama (agreement to

          sale) for consideration of Rs. 19000/- out of which Rs. 8000/-

          was paid in advance. DW-17 is Dhirendra Kr. Singh, who has

          stated that Kushalya Singh and Surendra Singh are father and

          son and they remained joint. The said witness has stated that

          Plot No. 280 has 1 bigha 5 katha land and he concealed the fact

          that earlier Kaushalya Singh had already sold the land to Aruna

          Devi and thereafter, he has also not stated that when Kaushalya

          Singh had earlier sold his share, then how he subsequently sold

          the remaining land. In his cross-examination, he denied his

          knowledge that Kaushalya Singh had already sold 12 katha land

          to the plaintiff in the year 1986, so evidence of the witnesses is

          not true. It appears from Exhibit 1 that Kaushalya Singh has
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          mortgaged the land to Ram Briksh Singh for Rs. 2000/- by

          registered deed of mortgage on 27.07.1988 and it appears that

          Surendra Singh has sold the land to the plaintiff Aruna Devi on

          09.01.1989 for consideration of Rs. 5000/-. It has been

          mentioned in the sale deed that out of consideration money,

          purchaser will pay Rs. 2000/- for redemption of the mortgage.

          This fact has not been challenged. In the recital of the sale deed,

          it has been mentioned that the land was allotted to him as his

          share of the ancestral land. The sale deed was executed by

          Surendra Singh and at that time Kaushalya Singh was alive and

          this is admission of Surendra Singh about partition. So, it is

          binding upon him. It appears from Exhibit-4 that Aruna Devi

          had deposited Rs. 2050/- in Miscellaneous Case No. 22 of 1993

          and despite notice, Ram Briksh Singh did not appear to contest

          the miscellaneous case and consequently, the order was passed

          ex parte. The said Ram Briksh Singh did not file petition to set

          aside the ex parte decree against him. Therefore, the judgment

          and decree is binding upon him. There was no apparent error

          found in the judgment and decree passed by the learned Trial

          Court. Accordingly, the first appellate court affirmed the

          judgment and decree of the Trial Court and dismissed the appeal

          as having no merit in it.
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                       10. Having regard to the facts and circumstances of

          the case, as discussed above, it is quite apparent that the sale

          deed executed by Surendra Singh, son of Kaushalya Singh on

          09.01.1989 was neither challenged by the father of Surendra

          Singh nor by the defendants. The sale deed executed in favour

          of defendant no. 2 Dhirendra Singh was much after execution of

          sale deed dated 09.01.1989. However, the mortgage money has

          been deposited in Miscellaneous Case No. 22 of 1993 through

          Challan No. 81 dated 24.09.1993 which was decreed on

          02.04.1994 and was never challenged by defendant no. 1.

          Moreover, the defendants have not proved the Mahadnama

          (agreement to sale) dated 06.12.1988 (Exhibit B), on that basis,

          the sale deed dated 10.11.1989 claimed to have been executed.

          The subsequent sale deed in respect of the same land has no

          force to prevail upon the earlier sale deed dated 09.01.1989

          executed in favour of the plaintiff which was never challenged

          by the defendants.

                       11. Considering the facts and circumstances of the

          case as well as findings of the both the courts below, I am not

          inclined to interfere with the concurrent findings of the courts

          below. There is no question of law inasmuch as no substantial

          question of law is involved in this case.
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                                   12. Accordingly, this Second Appeal is dismissed at

                      the stage of hearing under Order XLI Rule 11 C.P.C..

                                   13. Pending interlocutory applications, if any, shall

                      stand disposed of.



                                                   (Khatim Reza, J)
prabhat/-

U


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