1. Appellant-plaintiffs have preferred this first appeal arising out of a civil suit No.69/1970 filed by appellant-plaintiff way back on 8-8-1970 seeking declaration of ownership and permanent injunction in respect of land detailed in para 7 of the plaint, which has been dismissed vide impugned judgment dated 19-8-1980, by the Additional District Judge, No.1, Jaipur City.
2. The relevant facts as culled out from the record are that the appellant plaintiff instituted the present civil suit inter alia claiming that he is a property dealer and in the month of May-June, 1965, Rao Bhagwat Singh, the erstwhile Jagirdar Thikana Dooni, made a proposal to him that his house and land situated in Chaukri Modikhana Jaipur has been acquired by the Jaipur State and according to the award of the Land Acquisition Officer passed in the year 1944, in lieu of acquisition, some amount in cash has already been paid but land measuring 7133 yards in Jaipur within vicinity of 10 miles was yet to be allotted, therefore, Rao Bhagwat Singh proposed to the plaintiff to purchase such land. Plaintiff averred that after such proposal between him and Rao Bhagwat Singh, an agreement was entered into to sell the proposed land for a consideration of Rs.16,000/-, and plaintiff paid Rs.8000/- at the time of executing the agreement and remaining amount Rs.8000/-was agreed to be paid after issuing order for allotment of land in favour of Rao Bhagwat Singh. Plaintiff averred that one power of attorney was executed in favour of plaintiff to pursue the issue of allotment of land and thereafter the State government decided to allot the land to Rao Bhagwat Singh. Plaintiff stated that he paid remaining amount of Rs.8000/- to Rao Bhagwat Singh, and he wrote an application dated 29-8-1966 to Tehsildar Jaipur to issue patta of land in the name of plaintiff. In pursuance thereof, under instructions of the Tehsildar Jaipur, possession of land was delivered to plaintiff on 11-10-1966 and patta was issued on 31-10-1966 in the name of plaintiff.
It has been averred in the plaint that defendants 1,2 and 3 are widows of Rao Bhagwat Singh and defendant No.4 is his daughter. The defendant No.5 is the person who deals with and takes care of properties of Thikana Dooni. It was stated that Rao Bhagwat Singh passed away on 25-11-1967, and that after death of Rao Bhagwat Singh, disputes arose amongst surviving natural heirs defendants No.1, 2, 3 and 4. The defendant No.5, who was dealing and taking care of properties of Thikana Dooni, made a complaint to the Collector Jaipur in respect of land in question of Thikana Dooni that patta dated 31-10-1966 has wrongly been allotted in favour of plaintiff and that property belongs to Thikana. On such complaint, the Collector vide order dated 27-5-1969 cancelled the patta dated 31-10-1966 issued in favour of plaintiff and directed to issue fresh patta in the name of legal heirs of Rao Bhagwat Singh. Plaintiff challenged the said order dated 27-5- 1969 by way of filing review petition, but the same was dismissed on 30-4-1970. Thereafter the plaintiff instituted the present civil suit on 8-8-1970 stating therein that the land in question is in possession of plaintiff and plaintiff be declared owner of the land and defendants be restrained not to dispossess the plaintiff from the land in question.
The suit was amended from time to time and plaintiffs No.2 to 10, being subsequent purchasers were added, but it may be noted here that the plaintiffs no where sought any relief to quash the order dated 27-5-1969 passed by Collector cancelling the patta issued in favour of plaintiff and for issuing patta in favour of Thikana Dooni and the order dated 30-4-1970 on review petition affirming the order dated 27-5-1969.
3. The suit was contested by defendant No.5. He filed written statement. The agreement to sell alleged to be made by Rao Bhagwat Singh in favour of plaintiff, in respect of land which was proposed to be allotted to him in lieu of acquisition of property of Thikana was categorically denied. He denied that Rao Bhagwat Singh ever wrote any letter dated 29-8-1966 to the Tehsildar Jaipur to issue patta in favour of plaintiff. It was admitted that Rao Bhagwat Singh died on 25-11-1967, but it was stated that before his death he withdrew the power of attorney in favour of plaintiff, cancelled the agreement and instructed the defendant No.5 to get possession of land in question. In pursuance thereof, the defendant No.5 moved an application before the Tehsildar. Such application came before the Collector, and on such application the order was passed to issue patta in favour of Thikana Dooni, but since thereafter Rao Bhagwat Singh passed away and the plaintiff having connivance with few persons, got issue patta on 31-10- 1966 in his own name from the Tehsildar. The defendant contended that in order to cancel the patta issued in the name of plaintiff, he persuaded the matter before the Collector Jaipur, and there upon an enquiry was ordered. During enquiry, the Tehsildar Jaipur recorded statement of plaintiff and submitted his report. Thereafter, the collector passed the order dated 27-5-1969 cancelling the patta dated 31-10-1966 issued by the Tehsildar in the name of plaintiff and to issue patta in the name of Thikana Dooni. Plaintiff challenged the said order by way of review petition, but the same was dismissed on 30-4-1970. The patta has been issued by the Collector in favour of defendants, being heirs widows and daughter of Rao Bhagwat Singh and they have transferred the property to defendant No.5.
It was contended that plaintiff obtained patta 31-10-1966 with collusion from the Tehsildar Jaipur, who had no authority to issue patta in respect of property of Thikana Dooni and on the basis of such patta, plaintiff executed sale-deed in favour of several persons detailed out in para 19 of the written statement. It was contended that neither the plaintiff has any possession nor has any right, title or interest in the suit property on the date of filing the suit, and therefore, the suit is liable to be dismissed.
After filing written statement, the plaintiff impleaded the subsequent purchasers of land in question as party, plaintiffs No.2 to 10, and amended plaint was filed.
4. On the basis of pleadings of parties the trial court framed issues:
"First, Whether plaintiff No.1 and Rao Bhagwat Singh entered into an agreement that pursuant to award of 1944 the land was to be awarded was to be sold to plaintiff No.1 for a consideration of Rs.16000
Second, Whether if issue No.1 is decided in favour of plaintiff, the plaintiff No.1 has paid Rs.8000/- on the date of agreement and remaining Rs.8000/- on different dates
Third, Whether Rao Bhagwat Singh moved an application on 29-8-1966 before Tehsildar Jaipur that since he has agreed to sell the land to be allotted him to plaintiff No.1, therefore, the land to be allotted to Rai Bhagwat Singh be allotted to plaintiff No.1, patta be issued and possession of the same be handed over to plaintiff No.1
Fourth, Whether Tehsildar Jaipur had no authority to issue patta dated 31-10-1966 in favour of plaintiff No.1 and to hand over the possession on 11-10-1966
Fifth, Whether Collector Jaipur had no authority to issue order dated 27-5-1969 for cancelling the patta issued by Tehsildar Jaipur, and if Collector had done so, what would be the legal effect
Sixth, Whether plaintiff No.1 on the date of filing the suit was owner of the land in issue and was in possession of the same, and if so, what would be the effect
Tenth, Whether Rao Bhagwat Singh legally transferred his rights in favour of plaintiff, if so, what would be the effect o suit
Twelth, whether due to selling the land to different persons in plot before filing the suit, those persons can file the suit jointly
Thirteenth, whether on date of filing the suit value of the land was not below Rs.75,000/-, therefore the court fee paid by plaintiff is short, and the suit is not maintainable
Fifteenth, Whether without quashing orders of Collector dated 27-5-1969 and 30-4-1970, the suit is maintainable Sixteenth, Relief"
5. Plaintiff examined twelve witnesses and exhibited ten documents. Defendants examined seven witnesses and exhibited 16 documents.
During course of arguments on request of counsel for parties, issues No.7,8,9,11 and 14 were dropped vide order dated 5-8-1980, being unwarranted.
6. The trial court considered oral and documentary evidence led by both parties and dismissed the suit vide judgment impugned.
6.1 Issues No.1,2 and 3, regarding agreement between plaintiff Sanwarmal and Rao Bhagwat singh, payment of consideration and moving application for allotment of land before Tehsildar, were considered conjointly and considering oral and documentary evidence of both parties decided three issues in favour of plaintiff and against defendants.
6.2 Issue No.4 regarding authority of thesildar to issue patta (Ex.6) and handing over possession of land, considering oral and documentary evidence it was concluded that patta could be issued to Sanwarmal being power of attorney of Rao Bhagwat Singh and not in personal capacity of Sanwarmal. As also possession of the land could not be handed over to Sanwarmal in his personal capacity. Accordingly the issue was decided against plaintiff.
6.3 Issue No.5 regarding authority of Collector to pass the order dated 27-5-1969 cancelling the patta, the trial court considering the fact that the matter of issuing the patta in the name of Sanwarmal on complaint by Ganga Sahai was enquired into by the Collector and it was found that order of the Government was to issue patta in favour of Rao Sahab Duni and not in the name of Sanwarmal, therefore, the Collector has not committed illegality in cancelling the patta vide order dated 27-5- 1969 and decided the issue against plaintiff.
6.4 Issue No.6 regarding the plaintiff Sanwarmal was owner and in possession of the land on the date of filing the suit, the trial court considering the fact that the document of assigning rights by Rao Bhagwat Singh to plaintiff Sanwarmal was not a registered document, therefore the plaintiff Sanwarmal was not owner of the land. According to admission of plaintiff Sanwarmal himself he was not in possession of land as he had already sold the land. As such the issue was decided against plaintiffs.
6.5 Issue No.10 regarding transferring of rights by Rao Bhagwat Singh to plaintiff, the trial court held that although there was an agreement between Rao Bhagwat Singh and plaintiff, but the documents were not registered as such rights were not transferred legally. As such the issue was decided against plaintiff. 6.6 Issue No.12 regarding filing the suit by plaintiffs jointly, the trial court concluded that since the land was sold to them by plaintiff No.1, therefore they were entitled to file the suit. 6.7 Issue No.13 regarding valuation of the suit, the plaintiffs deposited the due court fees.
6.8 Issue No.15 regarding maintainability of the suit without quashing orders dated 27-5-1969 and 30-4-1970, the trial court concluded that orders passed have been held legal and thereafter vide vide order dated 6-5-1971 land has also been allotted to legal heirs of Rao Bhagwat Singh (defendants No.1 to 4) and patta (Ex.A-14) has been issued. As such the suit was held not maintainable.
Consequently, the suit filed by plaintiffs was dismissed vide impugned judgment and decree dated 19-8-1980.
7. Hence the first appeal challenging the judgment and decree.
8. Heard learned counsel for parties and perused the impugned judgment and decree as also other material available on record.
Issues No.1,2 and3:
9. This court is deciding issues No.1,2 and 3 afresh, as per evidence on record exercising its powers under Order 41 Rule 31 CPC, as findings recorded by the trial court have been noticed to be based merely on basis of surmises and conjectures and without there being any cogent and convincing evidence to decide all three issues in favour of plaintiff.
10. Having heard counsel for appellants and perusing the material available on record, this court finds that the learned trial court has decided issues No.1,2 and 3 conjointly and has concluded that an agreement was executed between plaintiff and Rao Bhagwat Singh in respect of land in question and plaintiff paid Rs.16,000/- in instalments on various dates. Rao Bhagwat Singh thereafter wrote an application on 29-8-1966 to Tehsildar Jaipur to allot patta of land in question, which was to be allotted to Thikana Dooni in lieu of acquiring properties of Thikana Dooni in the name of plaintiff. Such fact finding recorded by the trial court has been on the basis of oral statements of plaintiff Pw.5 Sanwar Mal, Pw.6 Vishvendra Pal Singh, Pw.7 Indra Singh, Pw.8 Jagdish Bihari and Pw.9 Jai Bihari Lal and also placing reliance on application dated 29-8-1966 (Ex.2) and few other documents Possession letter 11- 10-1966 (Ex.3), Patta 31-10-1966 (Ex.6) and written statements of defendants No.1,3 and 4 in civil suit for partition filed by defendant No.2 (Ex.7,8, 9 and 10) have also been considered.
11. This is not in dispute that as per pleadings of plaint a written agreement is said to be arrived at between plaintiff and Rao Bhagwat Singh, but neither any date of such agreement is indicated in plaint, nor any such agreement has been placed on record. It is not the case of plaintiff that such agreement has been lost and contents of the agreement would be proved by adducing secondary evidence that too by way of oral evidence. The issue in respect of contents of agreement for sell of the land which could have been allotted to Thikana Dooni in lieu of acquired properties of Thikana Dooni for a consideration of Rs.16,000/- could have been proved only by way of producing the original document of agreement on record, or at least copy of agreement as secondary evidence. In absence of production of the document of agreementto sell on record, oral evidence to prove execution of agreement; contents of agreement is not admissible in law. Learned trial court has committed illegality in not adverting to Sections 91 and 92 of the Evidence Act, which read thus:
"91. Evidence of terms of contracts, grants and other disposition of property reduced to form of documents.-- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1.--when a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2.-- Wills (admitted to probate in India may be proved by the probate.
Explanation 1. This section applies equally to cases in which the contracts grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.
Explanation 2.-- Where there are more originals than one, one original only need be proved.
Explanation 3.- The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
92. Exclusion of evidence of oral agreement. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law:
Proviso (2) The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:
Proviso (3) The existence of any separate oral agreement, constituting a condition to the attaching of any obligation under any such contract, grant or disposition of property, may be proved:
Proviso (4) The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents;
Proviso (5) Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:
Proviso (6) Any fact may be proved which shows in what manner the language of a document is related to existing facts."
12. Therefore, without producing the document of agreement to sell, such agreement cannot be held proved. Further, it is settled proposition of law that in respect of immovable property, the issue of money transaction for property having value more than Rs.100/- could be evidenced only by way of registered instrument. In the present case, the plaintiff claims to have purchased property by way of an agreement for sale consideration of Rs.16,000/-, but neither such agreement has been placed on record nor such agreement was a registered document. Therefore, there is no evidence to decide the issue No.1 in favour of plaintiff and the learned trial court has erred in deciding the issue No.1 in favour plaintiff.
13. As far as the payment of Rs.16,000/- is concerned, there is no written receipt to prove such money transaction. The trial court has placed reliance on application form dated 29-8-1966 (Ex.2) alleged to be written by Rao Bhagwat Singh to the Tehsildar Jaipur. On basis of such application it has been assumed by the trial court that entire sale consideration would have been received by Rao Bhagwat Singh and thereafter he wrote such an application. Firstly, this application itself is disputed and has been denied by defendant No.5, and secondly, signatures of Rao Bhagwat Singh on this application are also in dispute. Trial court has relied upon statements of Notary Public (Pw.8) and Advocate Jai Bihari Lal (Pw.9) to assume signatures on the application to be of Rao Bhagwat Singh. The persons are in collusion with plaintiff. Such fact finding by the trial court is erroneous and based on surmises and conjectures, as merely on basis of application dated 29-8-1966, no such presumption should have been drawn for execution of the agreement to sell by Rao Bhagwat Singh in favour of plaintiff and accepting the full sale amount Rs.16000/- in cash. Reliance by the trial court on written statements (Ex.8, 9 and 10) inter se between defendant No.2 and 1,3&4 is least helpful to prove the transaction of money between plaintiff and Rao Bhagwat Singh. Therefore, findings on issue No.2 are erroneous and in absence of sufficient evidence, issue No.2 is decided against plaintiff.
14. As far as issue No.3 is concerned, this court finds that application dated 29-8-1966 alleged to be written by Rao Bhagwat Singh is not proved by any cogent and convincing evidence, the signatures of Rao Bhagwat Singh on this application are disputed, however, it is undisputed fact that the Tehsildar Jaipur issued patta dated 31-10-1966 (Ex.6) in favour of plaintiff, therefore, issue No.3 is decided in this manner.
Issues No.4,5 and 6:
15. All three issues (No.1,2,&3) have already been decided against plaintiff as discussed herein above that agreement to sale has neither been placed on record nor such agreement was registered document, therefore, on the basis of such agreement to sale, no title stands transferred to the plaintiff. It has come on record that Tehsildar Jaipur was not authorised to issue patta dated 31-10-1966 in favour of the plaintiff, and therefore, on the complaint by defendant No.5 the Collector held an enquiry and in that enquiry statements of the plaintiff were also recorded. Thereafter, the Collector vide its order dated 27-5-1969 has cancelled the Patta dated 31-10-1966 and directed to issue fresh Patta in the name of Thikana Dooni. As far as delivery of possession to plaintiff is concerned, from possession letter dated 11-10-1966 (Ex.3) itself it is clear that possession was delivered to the plaintiff being power of attorney of Rao Bhagwat Singh. After cancellation of patta of plaintiff, possession has been taken from the plaintiff, and possession has been delivered to defendants. Defendants in turn have transferred title and possession to defendant No.5 through four sale-deeds dated 6-11- 1969 (Ex.A-3) & (Ex.A-4), 9-12-1969 (Ex.A-1) and 10-12-1969 (Ex.A-2). The order of the Collector dated 27-5-1969 cancelling the patta of plaintiff has attained finality and has not been challenged by plaintiffs in the present suit. The plaintiff could not show having his title, legal right and interest in the suit property at the time of institution of the present suit. Further, the plaintiff has miserably failed to prove his possession over the suit property, therefore, the trial court has not committed any illegality of perversity in deciding issues No.4,5 and 6 against the plaintiff and this court affirms such findings. Accordingly, all these three issues stand decided against the plaintiff.
Issue No.10
16. In view of findings on issues already decided, as discussed herein above, that in absence of producing agreement to sale, the factum of sale of land in question by Rao bhagwat Singh has not been proved and in view of undisputed and admitted fact that such an agreement to sale was unregistered, no title/ rights stand transferred in favour of the plaintiff in respect of the suit property on the basis of such an agreement. Therefore, this court has no hesitation to reiterate that no right, title or interest in suit property came to be transferred to plaintiff, and thus, issue No.10 is decided against the plaintiff.
Issues No.12 and 13
17. Both these issues loose their significance in view of findings of issues which have already been decided against the plaintiff.
Issue No.15
18. This is an admitted and undisputed fact that the Collector passed the order dated 27-5-1969, which was challenged by way of filing Review application, but the same was dismissed vide order dated 30-4-1970. The plaintiff has not challenged the said orders of the Collector dated 27-5-1969 and 30-4-1970. Under orders of the Collector the patta of the plaintiff dated 31-10-1966 has been cancelled. It has been observed that patta in favour of plaintiff was issued by the Tehsildar, without authority and mere issuance of such patta does not confer any title to the plaintiff. The plaintiff miserably failed to show any other evidence, by which he acquired any right, title or interest in the suit property, moreover, he has not challenged the order dated 27-5-1969 and 30-4-1970 nor the patta issued in favour of defendants, therefore, without challenging these orders and patta of defendants, the plaintiff could not claim to acquire any ownership rights in the suit property in himself. The patta issued in favour plaintiff, by the Tehsildar was without authority and has already been cancelled by the Collector after holding enquiry. It is clear from the record that plaintiff through various sale deeds transferred suit land in favour of plaintiffs No.2 to 11, but plaintiffs could not prove their possession over the suit property. Therefore, in absence of any evidence of plaintiff acquiring any title/ ownership as well as possession, the suit filed by plaintiff seeking declaration of ownership has rightly been dismissed and further the issue No.15 has rightly been decided against the plaintiff. Therefore, this court is not inclined to interfere with such findings.
19. As a result, this court is not inclined to interfere with the impugned judgment and same is hereby affirmed. There is no force in the first appeal and the same is hereby dismissed. No order as to costs. Decree be framed accordingly.
20. Any other pending application(s), if any, also stand(s) disposed of.
21. Record of the court below be sent back forthwith.
