Patna High Court
Dhirendra Kumar SinghversusAruna Devi
- Decided
- Disposal
- DISMISSED
- Bench
- KHATIM REZA
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
- Code of Civil Procedure, 1908 — s. Order XLI Rule 11
- Transfer of Property Act, 1882 — s. 83
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
Patna High Court SA No.126 of 2018(19) dt.05-05-2026
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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
Patna High Court SA No.126 of 2018(19) dt.05-05-2026
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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/-
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