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Case Analysis: Bondar Singh v/s Nihal Singh (2003) 4 SCC 161

Material facts The following facts were relied upon by the court to reach the conclusion in the present case of Bondar Singh v. Nihal Singh[1]:
  • The plaintiffs (respondent herein) (hereinafter referred to as R) claim title to the land in suit on the basis of the plea that they had become its owners by adverse possession
  • The concerned land was sold by the predecessor of appellants(hereinafter referred to as A) to the predecessors of respondents through a unstamped and unregistered sale deed on 9th May 1951
  • Appellants mother had given the land to respondents father for cultivation and survival
  • The appellants here have come to the court with the argument that the deed is fictitious and without consideration. While the respondents
  • Since then R is in the possession of the land and A has tried to dispossess R

Issues Raised
  1. What is the value of unstamped and unregistered sale deed under the section 17 Registration Act
  2. Can the decree of the trial court be upturned in first appeal but be upheld in the second appeal under Article 65 of the Limitation Act?
  3. What happens to the findings of the lower court if the higher court finds it perverse and contrary to the evidence on record?
  4. Should the evidence in relation of which a plea has not been raised of any value in the eyes of law?
  5. Whether the Respondents are in the hostile and continuous possession of the concerned land?

Arguments Advanced
Following contentions are presented by the parties to the case before the supreme court:

Arguments On Behalf Of The Appellant:
  1. The father of the respondents had held the property only for a brief period as sikhmi ie sub tenants
  2. The father of respondents were holding the land without any consideration.
  3. The appellants have plainly refused the presence of any sale deed and called it has false,fictitious and without any consideration.
  4. Mother of appellants had given the land to father of appellants for cultivation and had regained its possession in the year 1957.
  5. The possession of land is a question of fact and thus thus the high court has no right to upset the findings of the lower court under section 100 C.P.C [2]can only be applied in question of law.
  6. Exhibit 6 which is a notice which was issued on behalf of the appellants which is asking them to handover the land to them in the year 1956,
  7. The notice was followed by an application dated 8th May, 1956 (Exhibit P.3) filed by the defendants under Section 58 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 [3]before the revenue authorities. In the said application the defendants admit that the land in question was in possession of the plaintiffs since the lifetime of their father. It is further admitted that the land was being cultivated by the plaintiffs.
  8. It was prayed in the said application that the plaintiffs be declared trespassers over the suit land and possession of the land be given to the defendants.
  9. the land had been mutated in their names in the revenue records to the knowledge of the plaintiff.

Arguments On Behalf Of The Respondent:
  1. The father of the appellants had sold the land to the father of respondents through a sale deed dated 9.5.1931
  2. The plea of sub-tenancy was as such not raised in the written statement nor any issue was framed by the trial Court in this connection. No particulars of alleged sub-lease were given. Not even date of creation of alleged sub-lease was stated. The defendants have tried to build an argument based on plea of sub tenancy (shikmi) at appellate stage
  3. If the findings of the subordinate courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under Section 100 C.P.C
  4. Document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized. It is significant to note that the sale deed is dated 9.5.1931 and Fakir Chand died somewhere in the year 1949-50. During his lifetime Fakir Chand never disputed plaintiffs' title or possession of the suit land. There is other reliable evidence on record which establishes that the plaintiffs have been in continuous possession of the land in question.
  5. The revenue officer had dismissed the petition of the appellants relatives stating that the respondents were in possession of the said land for the past 25-27 years

Decision
The Supreme Court after hearing the issues raised , arguments advanced and authorities cited stated that the following points dealing with all the questions of law as well of the fact.
  1. The Court in this case held that under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes, thus here the unregistered deed has a legal value as an evidence thus this deed will be evident of the fact that their initial possession on the land is not illegal and unauthorized
  2. If the find­ings of the subordinate courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in ap­peal under Section 100, C.P.C. A High Court cannot shut its eyes to per­verse findings of the courts below. In the present case, the findings of fact arrived at by the lower appellate court were contrary to the evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit be­ing decreed.
  3. If the findings of the lower court is diff and perverse from the evidence on record of the higher court than the Hight court can consider the evidence on record to be of a value and discard the pre verse findings of the courts below thus the High court is fully justified in setting aside the the lower courts considerations and thus the appeal is being allowed
  4. The plea of shikhmi was never done in a written statement and the written statement is vague and lacks material aspects must for its validness, Therefore, in the absence of a clear plea regarding sub tenancy (shikmi) the defendants cannot be allowed to build up a case of sub tenancy (shikmi). Had the defendants taken such a plea it would have found place as an issue in the suit. We have perused the issues framed in the suit. There is no issue on the point.
  5. The appellants could not prove that they had the possession of the land and as far as the matter of the revenue entries is concerned the appellants failed to get proper evidence as the best evidence could have been their mother but they made a drama of her being deaf and dumb thus they could not prove their possession from 1931 to 1957
  6. The Supreme Court came to a definite finding that Tola Singh predecessor in interest of the plaintiffs came in possession of the suit land in the year 1931 and continued to be in possession thereof till the date the present suit was filed in 1972.

Rationale
The hon’ble Supreme Court interpreted various questions of law in this case these are:
  1. Unregistered and unstamped sale deed has value in the eyes of law
    It is a settled law that the deed should be properly registered under the given law but here this deed has been considered for collateral purposes and prima facie is proving the fact that the respondents had the initial possession peaceful and uninterrupted.[4]
     
  2. An appeal under Section 100 C.P.C. can be entertained by the High Court only on a substantial question of law.
    If the findings of the subordinate courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under Section 100 C.P.C. [5]A High Court cannot shut its eyes to perverse findings of the courts below. In the present case the findings of fact arrived at by the lower appellate court were contrary to evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed.
     
  3. The respondents had continuous and uninterrupted possession for many years.
    • The initial possession of the respondents has been uninterrupted this is proven by the unregistered sale deeds which is having collateral value in law.[6]
    • The court has not considered the shikmi issue of any value as it has not been included in the issues framed by the trial court.
    • The court opined that the best evidences were kept away from the court for example appellants mother and brother and irrational excuses were given to do so proving the malice on the part of the appellants.

Critical Analysis of the case
Under the law, a sale deed is required to be properly stamped and registered be­fore it can convey title to the vendee. However, legal position is clear that a document like the sale deed in the present case, even though not admissible in evidence on account of not being stamped and registered can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land.

The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorised.But as per the researchers interpretation this ratio of the court is a bit flawed as in past the deeds made were mostly unregistered and not uniform thus considering the fact that court has taken the deed to be true ,is as per my analysis wrong as the deed presented before the court might be a fake and forged one and thus it should not be considered even for collateral purposes.[7]

Secondly the researcher would like to appreciate the fact that the court has properly interpreted Section 100 of CPC .If the find­ings of the subordinate courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under Section 100, C.P.C. A High Court cannot shut its eyes to per­verse findings of the courts below. In the present case, the findings of fact arrived at by the lower appellate court were contrary to the evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed.[8]

Thirdly the researcher would also agree to the courts view on the issue of absence of plea as It is settled law that in the absence of a plea, no amount of evidence led in relation thereto can be looked into. Therefore, in the absence of a clear plea regarding sub-tenancy (shikmi), the defendants cannot be allowed to build up a case of sub-tenancy (shikmi).[9] Had the defendants taken such a plea, it would have found place as an issue in the suit. We have perused the issues framed in the suit.

Conclusion
The concept of adverse possession relates to the process of acquisition of title by the person in possession of the property despite not being the owner. If the possessor remains in continuous possession of the property for 12 years with the knowledge but without the permission or interference of the owner, the title of the property vests in the possessor.

Adverse possession was defined by the Supreme Court in Amarendra Pratap Singh v Tej Bahadur Prajapati as:
A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter’s title.”

Bibliography
Books
  • Mulla, The Transfer of Property Act, 9th Ed., LexisNexis Butterworths, 2004
  • Nandi, N., The Transfer of Property Act, 1882, 2nd Ed., Dwivedi Law Agency, Allahabad, 2010.
  • Row, Sanjiva, The Transfer of Property Act, 4th Ed., Vol. 1, The Law Book Company (P) Ltd., Allahabad, 1989.
  • Sinha, Dr.R.K., The Transfer of Property Act, 11th Ed., Central Law Agency, Allahabad, 2010
End-Notes:
  1. Bondar Singh and Ors. vs. Nihal Singh and Ors. (04.03.2003 - SC) : MANU/SC/0193/2003
  2. Section 10 The Code of Civil Procedure, 1908
  3. http://www.boardofrevenue.mp.gov.in/acts/Act_MPLRC_1959_0020_Pdf_F95_English.pdf
  4. Deena v. Bharat Singh, MANU/SC/0612/2002: AIR 2002 SC 2768.
  5. Hafazat Hussain v. Abdul Majeed, MANU/SC/0435/2001: AIR 2001 SC 3201
  6. Samsuddin Rahman v. Bihari Das, MANU/SC/0640/1996: AIR 1996 SC 2535.
  7. Ramanuja Naidu v. Kanniah Naidu, MANU/SC/0790/1996: AIR 1996 SC 3021.
  8. Vishnu Prakash v. Smt. Sheela Devi, MANU/SC/0236/2001: AIR 2001 SC 1862.
  9. Har Narain Daga v. Heeralal, AIR 2001 SC 341.

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