Patna High Court
Sharda DeviversusSaukhilal Sah and Ors
- Decided
- Disposal
- DISMISSED
- Bench
- KHATIM REZA
Holding
The 1986 sale deeds executed by Yasoda Devi are void under Section 32 of the Bihar Consolidation Act and the benami defence is barred, entitling the plaintiff to vacant possession of the land.
Summary
The original plaintiff, Ram Prasad Sah, filed a title suit seeking declaration that three sale deeds dated 20‑08‑1986, executed by Yasoda Devi in favour of Sharda Devi, were forged and illegal, and also sought possession of the disputed land. The defendants contended that earlier sale deeds of 1959 were benami transactions and that the 1986 deeds were void for lacking consolidation authority permission. The trial court and the first appellate court held that the 1959 deeds were valid, the 1986 deeds were void under Section 32 of the Bihar Consolidation Act, and that the benami defence was barred by Section 4 of the Benami Transactions (Prohibition) Act, 1988. Both courts affirmed the decree granting vacant possession to the plaintiff. The second appeal filed by Sharda Devi was dismissed, with the court finding no substantial question of law to interfere with the lower courts' findings.
Issues considered
- Whether the sale deeds dated 20‑08‑1986 executed by Yasoda Devi are forged, illegal, and void.
- Whether the earlier sale deeds of 1959 constitute a benami transaction punishable under the Benami Transactions (Prohibition) Act, 1988.
- Whether the 1986 sale deeds are void for lack of permission under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956.
- Whether the appellant is entitled to possession of the disputed land.
Legislation cited
- Benami Transactions (Prohibition) Act, 1988 — s. 4
- Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 — s. 32, 6(1)
- Code of Civil Procedure — s. Order XLI Rule 11
Subjects
- title suit
- sale deed
- forgery
- benami transaction
- consolidation act
- void deed
- possession
- civil appeal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.294 of 2017
======================================================
Sharda Devi, Wife of Radhey Shyam Chaudhary Resident of Mauza-
Madapur Chapra, P.S. Tajpur at Present pusa, District Samastipur.
... ... Appellant/s
Versus
1. Saukhilal Sah Son of late Ram Prasad Sah
2. Ram Sakhi Devi Wife of Bishwanath Sah and Daughger of Ram Prasad Sah
Both Resident of Village- Saidpur, P.S. Chakmehsi, District Samastipur.
3. Fakira Sah Son of Lakshman Sah
4. Ram Lalit Sah Son of Fakira Sah
5. Ram Ekbal Sah Son of Fakira Sah
6. Ram Balak Sah Son of Fakira Sah
7. Ram Basar Sah Son of Fakira Sah All residents of Village- Rampur Bhasaun,
P.S. Sakra, District Muzaffarpur.
8. Rekha Devi Wife of Ramesh Sah Resident of Village- Sehan, P.S. Mahua,
District Vaishali.
9. Bhauti Devi Wife of Mahanth Sah and Daughter of Ram Prasad Sah
Resident of Village- Saidpur, P.S. Chakmehsi, District Samastipur.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. J. S. Arora, Sr. Adv. with
Mr. Manoj Kumar, Adv.
For the Respondent/s :
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV ORDER
8 14-05-2026 Heard Mr. J. S. Arora, learned senior counsel assisted
by Mr. Manoj Kumar, learned counsel for the appellant.
2. This Second Appeal has been preferred against the
judgment and decree of affirmance dated 31.03.2017 passed in
Title Appeal No. 19 of 2000 / 53 of 2017 by the learned Fast
Track, Court No. 1, Samastipur, whereby, the learned First
Appellate Court has upheld the judgment and decree dated
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23.02.2000 passed in Title Suit No. 96 of 1989 by the learned
Sub-Judge-III, Samastipur.
3. The defendant is the appellant in the instant Second
Appeal.
4. The original plaintiff filed Title Suit No. 96 of 1989
for declaration and setting aside 3 sale deeds dated 20.08.1986
executed by the defendant Most. Yasoda Devi in favour of
defendant Sharda Devi (appellant) on the ground of being
forged, fabricated and illegal and also for recovery of possession
of the land mentioned in Schedule-II of the plaint.
5. The case of the plaintiffs/respondents is that the
plaintiffs acquired the land mentioned in Schedule-I of the plaint
through a registered sale deed dated 06.08.1959 executed by
Amir Mian in favour of original plaintiff, Ram Prasad Sah and
he came in possession of the same as title holder since the date
of the purchase of the land mentioned in Schedule-I. It is
pleaded that the original plaintiff further acquired 3 katha 12
dhurs land of C.S. Plot No. 242 and 245 through sale deed dated
28.10.1959 executed by Shah Azizul Ramham in his favour and
he came in possession over the same as title holder since the
date of purchase. The original plaintiff has paid the
consideration money of both the sale deeds from his earning and
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also obtained original sale deeds and kept the same in his
custody. Unfortunately, fire broke in the house of the plaintiff in
which both the sale deeds along with other papers were burnt to
ashes. It is further pleaded that during the revisional survey
operation, the survey khata was recorded as revisional survey
Plot Nos. 311, 312, 314 & 316 in the name of the original
plaintiff, but as the land was near river of Budhi Gandak, his
name was not mutated in the Anchal. He came to know by the
rumour that the defendant 2nd party has executed a sale deed in
respect of the disputed land and the husband of the defendant
2nd party got entered his name in the revisional survey. He
obtained the certified copy of the 3 sale deeds dated 20.08.1986
and the certified copy of the Badar No. 28 from the Revisional
Survey Office on 05.04.1989 and he came to know that husband
of the defendant 2nd party has fraudulently got entered his name
and he had no knowledge about this said forged, so, he could
not take any steps against the said order of Badar No. 28. He has
not put his thumb impression in the margin of the said order and
order has been fraudulently obtained. It is further contended that
all the three sale deeds dated 20.08.1986 with regard to the
disputed land mentioned in the Schedule-I of the plaint are
without permission from the consolidation authority and as
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such, they are void. He has also filed a revision case bearing
Revision No. 1613 of 1986 before the Director, Patna against
the aforesaid alleged Badar No. 28 which is still pending. The
plaintiffs, by way of amendment, has also pleaded that he has
been dispossessed from Schedule-II land of the plaint by
constructing six rooms / shops by the defendant 1st party and
also prayed for recovery of possession of the same.
6. On summon, the defendant 1st party appeared and
filed his written statement stating therein that the sale deeds
dated 06.08.1959 and 28.10.1959 executed in favour of original
plaintiff Ram Prasad Sah are Benami Transaction. In fact,
Ramcharitar Sah purchased the said land in the Benami name of
Ram Prasad Sah, who was his brother-in-law (Bahnoi) and the
consideration money of these sale deeds were paid by
Ramcharitar Sah from his own funds and aforesaid Ramcharitar
Sah came in possession over the land of the aforesaid sale deeds
and he also obtained both the sale deeds from the officer and
kept the same in his custody. It is vehemently denied that the
consideration money of the aforesaid sale deeds were paid by
Ram Prasad Sah (Original plaintiff) and he came in possession
of the same or he received the aforesaid sale deeds from the
registered office.
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7. Further case of the defendant is that after the death
of Ramcharitar Sah, his wife Most. Yasoda Devi (defendant 2nd
party) came in possession of the aforesaid land under the sale
deeds and documents too. It is false to say that the aforesaid sale
deeds were burnt to ashes in the fire broke. The original plaintiff
has also admitted that the aforesaid lands were purchased in his
name by Ramcharitar Sah, husband of defendant no. 2 Yasoda
Devi after paying the consideration money before the
Consolidation Officer and he has also put his thumb impression
in presence of Upendra Choudhary in the margin of the order
sheet before the Consolidation Officer. Accordingly, the name of
the Ramcharitar Sah was mutated over the aforesaid lands of the
both sale deeds. The original plaintiff did not admit the payment
of consideration money by Ramcharitar Sah before
Consolidation Officer and put his thumb impression in the
margin of order sheet in presence of witness, namely, Upendra
Choudhary. Most. Yasoda Devi, defendant 2nd party was in
need of some money and executed three sale deeds dated
20.08.1986 in favour of defendant 1st party Sharda Devi for Rs.
31,000/- in respect of the land measuring 7 katha 2 dhurs of plot
nos. 242, 244, 245, 246. The details of the land has been
mentioned in Schedule-1 of the written statement and also
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handed over the aforesaid original sale deeds dated 06.08.1959
and 28.10.1959 executed in the name of Ram Prasad Sah. She
has further pleaded that the transaction of the land purchased by
her is not properly written in the aforesaid three sale deeds and
as such, on her request, three sale deeds of rectification dated
12.04.1989 were executed by Yasado Devi, defendant 2nd set,
upon which she has been coming in possession of the purchased
land and constructed a house and shops in the said purchased
land and the shops are being let out to the tenants.
8. On the other hand, the defendant 2nd set (vendor of
the defendant 1st set) neither appeared before the trial court nor
filed any written statement.
9. The learned trial court after considering the
pleadings, the evidence adduced by the parties and materials on
record has held that from the sale deed dated 06.08.1959
executed by Amir Miya in favour of Ram Prasad Sah (original
plaintiff) and sale deed dated 28.10.1959 executed by Sah
Azizul Ramham in favour of Ram Prasad Sah (Ext.-3 and Ext.
3/a respectively) it is clear that after paying consideration
money by Ram Prasad Sah, the aforesaid two sale deeds were
executed in favour of Ram Prasad Sah and possession was given
over the said lands. Therefore, the plea of Benami Transaction
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(Prohibition) Act, 1988 (In short, the Act of 1988) will not be
available to challenge the sale deed on the basis of Benami
Transaction after 09.05.1988. The present suit has been filed in
the year 1989 by the original plaintiff, Ram Prasad Sah much
after coming into force of the Act of 1988. Hence, the plea of
defence regarding Benami Transaction by the
defendant/appellant is hit by Section 4 of the Act of 1988. It is
further pleaded that Chakbandi Khatiyan (Ext.-1) and Ext.- C &
C/1, the raiyati Khatiyan of Khata No. 466/257, 465/246
respectively show that initially, the name of Ram Prasad Sah
(original plaintiff) was written and after the cutting, the name of
the Ramcharitar Sah was entered in both the Khatiyan entry. It is
also mentioned that Ext.-H is notice Form-10 issued against
Ramcharitar Sah for inviting objection in respect of the Plot
Nos. 316, 312, 311 and 314. It is apparent from the record that
initial stage of Chakbandi proceeding before publishing the draft
khatiyan is only for the purpose of preliminary preparation for
publishing records of right and the entry in draft khatiyan cannot
be admissible, as such, entry has got no finality and even final
records of right cannot be published if a suit becomes pending
between the parties regarding the rights and in that way, there
remain no scope to hold the same an admissible for the entry
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given as a relevant to the entry in the public record. After
considering the facts and circumstances of the case, it was held
that the sale deed dated 06.08.1959 and 28.10.1959 were
executed by Amir Mian and Sah Azizul Rahman respectively in
favour of original plaintiff, Ram Prasad Sah and on that basis,
he was in possession of the said purchased land. On that basis,
Ramcharitar Sah has no right, title or possession over the suit
land. After the death of Ramcharitar Sah, his wife has no right,
title of the suit land and the widow of Ramcharitar Sah has no
right to execute three sale deeds dated 20.08.1986. Moreover,
the sale deed executed on 20.08.1986, during consolidation
proceeding, is void under Section 32 of the The Bihar
Consolidation of Holdings and Prevention of Fragmentation
Act, 1956 (In short, 'the Act of 1956') and further held that
during the pendency of the suit, the defendant constructed 6
rooms and 4 rooms without roof and declared that all three sale
deeds dated 20.08.1986 executed by Yasoda Devi in favour of
Sharda Devi is illegal and void and the plaintiff is entitled for
recovery of possession.
10. Being aggrieved by the judgment and decree dated
23.02.2000 passed in Title Suit No. 96 of 1989 by the learned
Sub Judge-III, Samastipur, the defendant/appellant preferred
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Title Appeal No. 19 of 2000 / 53 of 2017.
11. After hearing of the parties and considering the
materials on record, the learned First Appellate Court affirmed
the judgment and decree of the learned trial court and dismissed
the appeal vide judgment and decree dated 31.03.2017. Against
the aforesaid judgment and decree of the learned First Appellate
Court, the instant Second Appeal has been filed.
12. From the submission of the learned counsel for the
appellant and upon perusal of materials on record including the
judgment of the learned courts below, it appears that the learned
court of appeal below, which is final court of facts, after
considering the pleadings of the parties and the evidence
adduced by them, came to clear findings that it is admitted fact
that the sale deed dated 06.08.1959 (Ext.-3) was executed by
Amir Mian in favour of Ram Prasad Sah in respect of 8 katha 5
dhurs land, in respect of Plot No. 244, 245 under Khata No. 256
and Plot No. 246 under Khata No. 268, out of aforesaid
amalgamated plots. Ext. 3/a, the sale deed dated 28.10.1959 was
executed by Sah Azizul Rahman in favour of Ram Prasad Sah in
respect of 3 Kahta 12 Dhurs land. The recital in the both sale
deeds show that consideration money of the aforesaid sale deeds
for the aforesaid land was paid by vendee Ram Prasad Sah and
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he was put in possession over the aforesaid purchased land.
Most. Yasoda Devi, was widow of Ramcharitar Sah, who was
defendant 2nd party in the aforesaid Title Suit. Her name was
deleted on 21.05.1993 due to his death. The aforesaid suit was
filed in the year 1989, but she did not turn up before the court
nor filed any written statement, stating therein that her husband
was purchaser of the aforesaid land under the sale deeds Ext. 3
& Ext. 3/a and he paid the consideration money of the aforesaid
deed and he was put in possession of the same. On the contrary,
the name of the Ram Prasad Sah was written as purchaser
(vendee) who paid consideration money and he was put in
possession of the land as title holder. It is further observed that
there is no recital in the alleged sale deed executed by Most.
Yasoda Devi in favour of defendant/appellant Sharda Devi on
20.08.1986 (Ext. A/1, A/2 & A/3) that Ramcharitar Sah paid
consideration money of the aforesaid deeds (Ext. 3 & 3/a) and
came in possession of the land purchased in the name of Ram
Prasad Sah as Benamidar. D.W. 16, Sharda Devi (Defendant No.
1) in her cross-examination stated that the sale deed dated
06.08.1959 (Ext. 3) and sale deed dated 28.10.1959 (Ext. 3/a)
were not in her knowledge. She has also stated in her cross-
examination that she has no knowledge about the aforesaid land
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being ploughed by Yasoda Devi or not because she is a domestic
lady and she did not know that her villagers are in possession of
what land. The plaintiffs in their evidence supported the case
and denied the alleged thumb impression of his father, Ram
Prasad Sah in the margin of order sheet (Ext. B) before the
Consolidation Officer. It is also stated that Sharda Devi
constructed aforesaid three rooms in the year 1990 in one
month. After considering the materials and evidence adduced by
the parties, the learned First Appellate Court held that vendor of
the defendant Sharda Devi did not file any written statement nor
she or her husband's relations came to depose in the case saying
that Ram Prasad Sah (original plaintiff) was Benamidar of
Ramcharitar Sah and it was Ramcharitar Sah, who paid the
consideration money of the aforesaid sale deeds (Ext. 3 & Ext.
3/a). It is also held that there is clear recital in the aforesaid sale
deed (Ext.3 & 3/a) that vendee Ram Prasad Sah paid
consideration money to the aforesaid vendors and vendee Ram
Prasad Sah was put in possession of the land sold in the name of
original plaintiff, Ram Prasad Sah and accordingly, held that
Ram Prasad Sah was the real purchaser of the disputed land
covered by sale deed (Ext. 3 & 3/a) and not Ramcharitar Sah,
husband of defendant 2nd party, namely, Yasoda Devi. Hence,
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the aforesaid transaction was not Benami Transaction.
13. So far question as to whether the suit is hit by the
Act of 1988 is concerned, the learned First Appellate Court held
that there is no statement of Ramcharitar Sah or his wife before
the trial court in connection with Benami Transaction. The plea
of Benami Transaction is with regard to two sale deeds dated
06.08.1959 & 28.10.1959 which were purchased by
Ramcharitar Sah in the name of his brother-in-law (Bahnoi),
Ram Prasad Sah and the consideration money of both sale deeds
(Ext. 3 & 3/a) was paid by him and he came in possession of the
land purchased. There is no recital regarding the aforesaid
Benami Transaction in the aforesaid sale deeds executed in the
name of defendant/appellant. The suit was filed after coming
into force of the Act of 1988. Therefore, the plea of Benami
Transaction is hit by Section 4 of the Act of 1988. It is apparent
from the record that the Yasoda Devi died issueless and
defendant no. 1/ appellant, transferee of the Yasoda Devi of
aforesaid sale deeds of the disputed land executed without
permission of consolidation authority which is illegal and void.
Ext. D does not bear the signature of any officer whereas, Ext. 4
shows that the learned Collector, Samastipur passed an order
declaring the aforesaid sale deed void in violence of Section 32
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of the Act of 1956 for want of permission under the Act of 1956.
It has been held that the plaintiff, Ram Prasad Sah was real
purchaser of the disputed land in whose name, the sale deed Ext.
3 & 3/a stands and present plaintiff/respondents are the heirs of
the said Ram Prasad Sah. Therefore, the plaintiff/respondents
are entitled to decree of the vacant possession of the suit land
detailed in Schedule-II. The claim of adverse possession of the
defendant/appellant is by virtue of sale deed executed in the
year 1986. The suit was filed in the year 1989. Therefore, no
question of adverse possession of the defendant/appellant arises
in the present case. Consequently, the judgment and decree of
the trial court has been affirmed by the leaned First Appellate
Court.
14. Both the courts below concurrently held that the
sale deeds were executed by Amir Mian and Sah Azizul Rahman
(Ext. 3 & 3/a) in favour of the original plaintiff, Ram Prasad
Sah. In the recital of both the sale deeds it is mentioned that
consideration money of the aforesaid sale deeds was paid by the
vendee Ram Prasad Sah, who was put in possession of the
aforesaid purchased land and three sale deeds executed by the
wife of Ramcharitar Sah during the pendency of Consolidation
proceeding without permission of the consolidation authority as
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provided under Section 6(1) of the Act of 1956 and the
Collector under Section 32 of the Act of 1956 has declared the
sale deed as void under Section 32 of the Act of 1956.
15. Considering the aforesaid facts and circumstances
of the case and findings of both the courts below, I am not
inclined to interfere with the concurrent findings of the court
below. There is no question of law inasmuch as no substantial
questions of law involved in this case.
16. Thus, the instant Second Appeal is dismissed at
the stage of hearing under Order XLI Rule 11 of the Code of
Civil Procedure.
17. Pending interlocutory application(s), if any, shall
stand disposed of.
(Khatim Reza, J)
premchand/-
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