Heard Sri Salil Kumar Rai, learned counsel for the appellant and Sri Vidya Bhushan Srivastava, learned counsel appearing on behalf of the respondent.
The appellant is challenging the order dated 29.03.2007 passed by Additional District Judge, Agra in Appeal No.36 of 2003 arising from the suit no.185 of 2002.
The brief facts of the case are that a sale deed was executed by Phool Singh in favour of the appellant on 03.12.2001 and in pursuance thereof the possession has been given. The plaintiff/respondent filed a suit being suit no.185 of 2002 for the cancellation of the sale deed dated 03.12.2001 and sought further relief for the possession and damages. The trial court decreed the suit and cancelled the sale deed dated 03.12.2001 and directed the defendant to hand over the possession. Against the order of the trial court, the appeal has been dismissed. Hence the present second appeal.
The case of the plaintiff was that he had purchased the suit property from Smt. Sarvati Devi against the registered sale deed dated 21.11.1987. After the sale deed, his name has been mutated in the record of Nagar Mahapalika and has paid the taxes. Phool Singh was residing in the premises as licencee/caretaker and had no title over the property and, therefore, had no right to execute the sale deed of the suit property in favour of the defendant/appellant. The defendant contended that he had purchased the property from Phool Singh as Phool Singh was residing in the house as bonafide purchaser and was not aware about the sale deed dated 21.11.1987. Further the ownership of plaintiff has been doubted. The trial court has recorded a categorical finding that on the basis of the evidence on record that the plaintiff had purchased the property from Smt. Sarvati Devi vide registered sale deed dated 21.11.1987 and Phool Singh was only the licencee and had no title to execute the sale deed in favour of the defendant. It has also been held that it is not necessary to establish the title of Smt. Sarvati Devi, though has stated that Smt. Sarvati Devi has obtained the property from her husband. The view of the trial court has been upheld by the appellate authority.
Sri S.K.Rai, learned counsel for the appellant submitted that admittedly the defendant/appellant was in possession of the suit property by virtue of sale deed executed in his favour and before that Phool Singh was in possession. Therefore, in case if the plaintiff denies the ownership of the person, who is in possession, the burden lies upon the plaintiff to prove as provided under Section 110 of Indian Evidence Act. Therefore, the plaintiff has to prove his own title and title of Smt. Sarvati Devi. He further submitted that the suit is barred on account of non-joinder of Phool Singh as party.
I do not find any substance in the argument of learned counsel for the appellent. The plaintiff has discharged his burden by placing the registered sale deed dated 21.11.1987 executed by Smt. Sarvati Devi in his favour. The necessary documents have also been adduced to show that the name of plaintiff was recorded in Nagar Mahapalika record and tax has been paid. This establishes the title of the plaintiff and proved that Phool Singh was not owner. The defendant fails to prove by adducing any evidence that Phool Singh was owner and had title over the suit property. Therefore, the plaintiff has discharged the burden under Section 110 of the Indian Evidence Act in proving that Phool Singh and defendant, who were in possession of the suit property, are not the owners of the suit property. In case, if the defendant intended to dispute the title of Smt. Sarvati Devi and genuineness of the sale deed dated 21.12.1987 burden lies upon the defendant to prove the same in view of section 101 of the Indian Evidence Act. No evidence to this effect has been adduced.
The sale deed was executed in favour of the defendant. The defendant was admittedly in possession of the suit property. The possession has been sought from the defendant and not from Phool Singh and, therefore, the suit is not barred in case if Phool Singh has not been made as party.
In the circumstances, I do not find any error in the impugned order. The findings recorded by the both the courts below are findings of fact. No substantial question of law is involved in the present appeal. The appeal fails and is accordingly, dismissed.
Dt.22.03.2012.
R./