Allahabad High Court
Uma Shanker Sharma And Another vs Mihilal Sharma And 3 Others on 8 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:74757 Reserved on 01.05.2025 Delivered on 08.05.2025 AFR In Chamber Case :- CIVIL MISC REVIEW APPLICATION No. - 27 of 2025 Applicant :- Uma Shanker Sharma And Another Opposite Party :- Mihilal Sharma And 3 Others Counsel for Applicant :- Arpit Agarwal Counsel for Opposite Party :- Bhanu Bhushan Jauhari Hon'ble Kshitij Shailendra,J.
1. Heard Shri Arpit Agarwal, learned counsel for the applicants in review and defendant-appellants in decided second appeal and Shri Bhanu Bhushan Jauhari, learned counsel for the opposite parties in review and plaintiff/ respondents decided second appeal.
THE JUDGMENT/ORDER UNDER REVIEW
2. The instant application has been filed by defendant-appellants under Order 47 Rule 1 read with Section 114 CPC seeking review of my final judgment and order dated 16.12.2024, whereby I had dismissed Second Appeal No. 2565 of 1984 (Premwati and others Vs. Mihilal Sharma and another) on merits.
SUBMISSIONS OF APPLICANTS IN REVIEW
3. Learned counsel for the applicants submits that there is an error apparent on the face of record inasmuch as this Court, in 6th paragraph of the judgment dated 16.12.2024, though referred 5 substantial questions of law contained in the admission order dated 19.10.1984, being question Nos. (a) to (e), while this Court answered questions No. (a), (b), (c) and (d), it omitted to answer question No. (e) which relates to possession aspect and, therefore, the judgment is required to be reviewed. Elaborate submissions have been made by both sides with reference to the said question No. (e) and it is also urged by the applicants’ counsel that arguments were advanced during the course of hearing of the appeal also, however, this Court has not noted the same in the judgment.
4. From perusal of the judgment under review, this Court finds substance in the submissions made and finds an error apparent on the face of the record to the effect that question No. (e) was omitted from being answered by me. Therefore, this Court is inclined to review its judgment by answering the left out question No. (e). For the sake of convenience, the said question is reproduced as under:-
“(e) Whether in view of the defendants’ undisputed possession and the plaintiff’s failure to prove the sale deed and prior agreement to sell in his favour the suit could be decreed in his favour ?”
5. Learned counsel for the applicants submits that once the defendant-appellants were in possession over the disputed property and their names were also recorded at the time of institution of the suit, the suit for cancellation of sale deed without claiming relief of possession was not maintainable. Submission is that even in execution application, the decree holder has prayed for delivery of possession and, therefore, the decree holder, being out of possession since beginning, mere cancellation of sale deed would not suffice and, hence, the suit was bound to fail on this ground alone. It is further urged that when the suit was initially dismissed and civil appeal was filed by the plaintiffs before the District Court, the finding recorded by the trial court in favour of the defendants as regards actual and physical possession, was not challenged nor was the said finding set aside by the first appellate court and, therefore, the said finding stands against the respondents even today and, hence, the suit is bound to fail. It is further urged that subsequent suit claiming possession would be barred by Order 2 Rule 2 CPC and, therefore, neither in the present proceedings nor in any subsequent proceedings the respondents can get a relief of possession. Further submission is that though this Court took note of the judgment of Hon’ble Supreme Court in Deccan Paper Mills Co. Ltd. Vs. Regency Mahavir Properties and others: (2021) 4 SCC 786, the same was not dealt with and, hence, omission to consider the ratio laid down in the said authority also falls within the meaning and import of “an error apparent on the face of the record” and, when applied, the said judgment would be read in favour of the appellants and, consequently, the appeal would be liable to be allowed and not dismissed.
SUBMISSIONS OF OPPOSITE PARTIES IN REVIEW
6. Per contra, learned counsel for the respondents submits that inter se dispute between the parties had arisen out of two sale deeds, both executed and registered in different points of time and possession aspect is dependent upon the rights conferred under the sale deeds and, once this Court has found that the sale deed by Shyam Deo Sharma in favour of the respondents was validly executed and the one in favour of the appellants was without title, all consequences will follow and one of which is that the respondents would be entitled to get, secure and protect their possession. With regard to the execution application, it is urged that in 7th paragraph of the same, specific averment of the decree holder is that on 05.07.1998, the appellants illegally took forcible possession over the agricultural field and threatened the respondents to life. It is, therefore, urged that illegal possession obtained by the appellants would not confer premium on them and once sale deed in favour of the appellants has been found to be without any right, the respondents are entitled for possession and to maintain the same. As regards challenge to the finding on possession, it is urged that though the trial court, while deciding issue No. 2, found the defendants in possession over the property, the entire judgment and decree of the trial court was challenged by way of appeal before the District Court with specific averment that the findings were perverse and when the first appellate court set aside all the findings of the trial court, the same would imply that finding on possession has also been set aside and, consequently, there is no force in the submission made by the applicants.
DISCUSSION AND ANALYSIS
7. Having heard learned counsel for the parties, I find that both the contesting parties to the lis had claimed inter-se rights, title and possession at the strength of respective sale deeds executed by same vendor Shyam Deo Sharma in their favour. The trial court dismissed the suit, however, the first appellate court allowed the civil appeal and decreed the suit. The said decree has been upheld by this Court by interpreting Section 47 of the Registration Act, 1908 and discussing all other relevant aspects of the matter and the sale deed dated 23.11.1981 executed in favour of the respondents, being prior in point of time, has been found to be proved as duly executed.
8. As far as the challenge to the findings of the trial court is concerned, the first appellate court has, at internal page 6 of its judgment, recorded as under:-
“On being aggrieved with the decision of the learned Munsif, the present appeal is filed by the plaintiff on the grounds that the judgment and decree of the lower court is against the law and facts on record and the findings of the learned Munsif are perverse and against the evidence on record …….”
9. It is, therefore, clear that the plaintiffs raised a specific challenge to the entire judgment and decree before the first appellate court and also to the findings recorded by the learned Munsif terming the same to be perverse. Therefore, it cannot be said that the finding on possession was not or would not be deemed to have been challenged by them. A first appeal is an appeal against the decree that follows the judgment and in view of the language incorporated in sections 2(2), 2(9) and 96 C.P.C., the argument advanced by the applicants in this regard is found to be hyper-technical and not sound.
10. Further, the concluding part of the first appellate court’s judgment, at internal page 18 thereof, records as under:-
“The witness Shri Krishna is also a witness of the above two documents has been the close neighbour of the defendant Prem Shanker Sharma. Such statements have been revealed that Shyam Deo being closely related to the defendant-respondents no. 2 to 4 obliged them by executing such documents and that his non-appearance has become of much importance and compels me to conclude that he has no courage to face the plaintiff and that he executed the documents in favour of the defendant-respondents illegally which cannot be given any effect. In view of the above discussion, I find that the findings of the learned Munsif are not sustainable as such the appeal deserves to be allowed and the suit be decreed.”
11. The above-referred portion of the first appellate court’s judgment reflects that the sale deed executed in favour of the defendants was found to be without any effect and the findings recorded by learned Munsif as not sustainable. Therefore, this Court is not inclined to accept the submission of appellants that finding on possession was not challenged or that was not set aside.
NATURE OF SUIT:
12. Now coming to the reliefs claimed in the suit, it was filed claiming a decree for cancellation of registered sale deed as well as for permanent prohibitory injunction on the allegation that the defendants were trying to cause interference in the possession of the plaintiff-respondents. The title at the strength of sale deed dated 23.11.1981 was alleged by the plaintiff in himself.
13. Notably, it was not a suit under Section 34 of the Specific Relief Act, 1963 (for short ‘the Act, 1963) claiming a declaratory decree and, therefore, the proviso attached to Section 34 providing that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so, has no application in the present case. That is to say, that the plaintiff was not obliged to claim either a declaration or any further relief of possession as the cause of action for filing suit had arisen on account of execution of an invalid sale deed in favour of the defendants and interference caused by them in the possession of the plaintiff. The suit was filed under Section 31 of the Act, 1963 which, unlike Section 34, does not contain any such proviso requiring claim of any further relief. Meaning thereby, once a sale deed is adjudged to be void or voidable or is cancelled by the civil court, no further reliefs would be required to be claimed and necessary consequences from such adjudication/cancellation would ensue. As far as the submission of applicants that a non-executant to a deed shall have to file a suit for declaration, the Court may observe that Section 31 applies for “any person” against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, to apply to get it adjudged void or voidable. Section 31 does not speak of executant only.
CONSEQUENCES OF CANCELLATION OF A SALE DEED:
14. The consequences of cancellation stand reflected from sub-section (2) of Section 31 of the Act, 1963 where an intimation regarding cancellation is sent by the court concerned by sending a copy of the decree to the officer in whose office the instrument has been registered. It, therefore, follows that cancellation made by the court qua a sale deed or any other instrument is not only made but is also “given effect to” and recorded in the public records and the same would nullify any rights conferred or entitlement made under the void/voidable instrument. Therefore, once a sale deed is cancelled/adjudged as null and void or ineffective, possession, either obtained by the said vendee at the strength of the sale deed or retained by him or even an attempt to take possession on that basis, would be of no legal sanctity and has to be ignored and set at naught by a court of law. There can neither be a logical justification nor does it appeal to reason that an instrument stands cancelled by a court of law but beneficiary of the instrument would continue to enjoy benefits flowing therefrom teasing the courts of law by making a mockery of the system that is designed and made for delivering justice and not to leave a justice-seeker in a situation where he would always remain a loser despite winning the legal battle.
QUA DECCAN PAPER MILLS (SUPRA):
15. As far as the judgment in Deccan Paper Mills (supra) is concerned, the same, alongwith other judgments, was referred in paragraph no. 22 of my judgment dated 16.12.2024 with reference to maintainability of suit under Section 31 of the Act, 1963 and the plaintiff not being executants to the sale deed. In paragraph no. 23 of my judgment, I declined to accept the submission as regards non- maintainability of the suit for multiple reasons stated therein. For a ready reference, paragraph no. 23 of my judgment is reproduced herein under:-
“23. The Court is not inclined to accept the said arguments for multiple reasons. First, that no substantial question of law was framed in this regard and even if an oral prayer was made to frame a question of law to this effect, by virtue of provisions of Rule 2 of Order 42 read with proviso attached to sub-section (5) of Section 100 CPC, it is not open to the appellant to urge any other ground in the appeal without leave of the Court given in accordance with the provisions of Section 100 and such a leave can be granted for reasons to be recorded provided the Court is satisfied that the case involves such question. In the instant case, non-maintainability of the suit was never an issue or point for determination before the two courts below nor has such ground or question been raised in the memo of appeal or by any application. Therefore, the Court cannot hear the appeal on this new question which does not emerge from the record and is not satisfied that the case involves such question. Even otherwise, Section 31 applies for any person against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, to apply to get it adjudged void or voidable. Section 31 does not speak of executant only and declaration under Section 34 in absence of a suit for getting the sale deed cancelled or adjudged void, would not lie. As far as the judgment in Suhrid Singh (supra) is concerned, the same had arisen out of State of Punjab dealing with the court fees issue and, with due regards, the same is not applicable in the facts of the case, particularly when no foundation is there to entertain the challenge made to the suit. Similarly, judgment in Anathula Sudhakar (supra) deals with a situation where claim for injunction as a consequential relief in a suit for declaration and/or possession was examined. The authority is not on the point of Section 31 of the Specific Relief Act. The judgment in Shri Ram (supra) is on the issue as to whether a non-recorded tenure holder can sue for cancellation of a sale deed on the ground of fraud or impersonation. The same is clearly distinguishable in the facts of the present case where the question involved is regarding preference to be given to one of two sale deeds. As regards proof of sale deed, oral testimony of PW-1 is sufficient to hold that the sale deed was duly executed and no infirmity is found in the statement.”
16. The Court has carefully gone through the judgment in Deccan Paper Mills (supra) and it finds that the observations in paragraph no. 25 of the judgment to the effect that an executant to the document can approach the court under Section 31 but a non-executant must approach under Section 34 of the Act, 1963 were made referring an earlier decision of Hon’ble Supreme Court in Suhrid Singh Vs. Randhir Singh: (2010) 12 SCC 112 giving illustration of two real brothers being owners but one executing the sale deed and then both of them seeking to avoid the same. Suhrid Singh (supra) had arisen out of a dispute regarding payment of court fees and the discussion was in relation to the law applicable in the State of Punjab. The observations made in paragraph no. 25 in Deccan Paper Mills (supra) were in relation to ratio laid down in Suhrid Singh (supra) discussing Article 17 (iii) of the Second Schedule of the Court Fees Act and other requirements of payment or non-payment of ad valorem court fees. Further, the illustration given did not deal with a case where transferee from a lawful title holder had filed the suit. Entire discussion was made in a different context not arising from a situation where the same person with valid and undisputed title had executed two sale deeds, one after another in quick succession in time what has been done in the present case by the vendor Shyam Deo Sharma in favour of two purchasers. Therefore, the judgment in Deccan Paper Mills (supra), with due respect, has no direct application in the given facts of the present case, inasmuch as the plaintiffs had sought to establish voidness of the sale deed against the executant as well as the second transferee (appellants) terming the sale as having been made without any right after 1st execution made by the same vendor in plaintiff’s favour and, therefore, the suit for cancellation of sale deed was maintainable.
CONCLUSION
17. In view of above discussion, the question No. (e) is answered in the manner that even if the plaintiff could not establish any prior agreement to sell in his favour, there was certainly a sale deed executed in his favour prior in point of time, i.e. on 23.11.1981 as against the sale deed executed in favour of the appellants subsequent in point of time, i.e. on 25.11.1981. The first sale deed having been found to be validly executed and duly proved, finding on possession recorded by the trial court would be held to be contrary to evidence on record and perverse and even if some statement might have been made by any witness as regards defendant’s possession, the same would be inconsequential as per law and also looking at the nature of suit that included a prayer for decree for permanent prohibitory injunction and cause of action arising from the situation where interference in possession was being made based upon a sale deed that has ultimately been found ineffective. The record reflects that, on the one hand, sale deed in favour of respondents contained a recital regarding delivery of possession to them, on the other hand revenue entries read in one way or the other. Further, witness speaks something as regards possession, whereas execution application filed in the year 1999 talks of forcible possession taken by the appellants on 05.07.1998 though suit was filed in 1982 alleging cause of action arising out of interference in plaintiff’s possession. In these circumstances, non-suiting the plaintiff on the ground that relief of possession was not claimed, though it was neither factual nor a legal necessity, would be wholly unjust and unfair to a plaintiff who succeeded to establish title in his favour arising out of cancellation of sale deed of defendants. Therefore, the question No. (e) is answered in favour of the respondents and against the applicants.
18. Consequently, while allowing the review application in part to the extent of earlier omission to answer question No. (e), now having been answered in favour of the respondents, there would be no change in the final decision rendered by this Court, i.e., dismissal of Second Appeal No. 2565 of 1984 shall remain intact.
19. Since, despite dismissal of Second Appeal in December 2024, the execution proceedings have not been concluded for about five months, may be on account of pendency of this review application without there being any interim order and, considering the fact that the suit was instituted 43 years ago in the year 1982, it is directed that execution proceedings will be finalized by the court concerned positively on or before 15.07.2025 and without issuing any further notices to any party, as both sides have hotly contested the Second Appeal as well as this review application by referring to execution proceedings too and have full knowledge of the same and due representation therein.
Order Date :- 8.5.2025
AKShukla/-