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Patna High Court

Sharda DeviversusSaukhilal Sah and Ors

Decided
Disposal
DISMISSED

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

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/-

U


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