Case Note & Summary
The present First Appeal under Section 96 of the Code of Civil Procedure, 1908, was filed by the appellants-original plaintiffs challenging the judgment and decree dated 05.09.2017 passed by the learned Additional Senior Civil Judge, Kalol, Gandhinagar, in Special Civil Suit No.47 of 2016, which dismissed the plaintiffs' suit for declaration of title and possession. The brief facts are that the suit land, a sub-plot admeasuring 330 sq. yards, was originally owned by Kahalia and Amthabhai Kahlia, who obtained non-agricultural permission in 1990. The land was sold to Jayantibhai Prahladbhai Patel in 1992, who then sold it to defendant No.1 in 1994. The plaintiffs purchased the suit property from defendant No.1 by a registered sale deed dated 24.10.1997 for Rs.14,000/- and claimed to be in possession. However, defendant No.1 subsequently executed another registered sale deed in favour of defendant No.2 on 30.06.1999, and defendant No.2 mortgaged the property to defendant No.4 (a financial institution), which took possession under Section 29 of the State Financial Corporations Act, 1951, and proposed to sell it by public auction. The plaintiffs issued a legal notice in 2007 and filed the suit in 2016 seeking declaration of title and possession. The trial court dismissed the suit, holding that the plaintiffs failed to prove their title and possession. The legal issues before the High Court were whether the trial court erred in not drawing an adverse inference under Section 114(g) of the Indian Evidence Act, 1872, for the non-examination of defendant No.1, who was the common vendor, and whether the plaintiffs had proved their title. The appellants argued that they had proved their registered sale deed and that the trial court wrongly placed the burden on them to disprove the subsequent sale deed. The respondents argued that the plaintiffs failed to prove possession and that the subsequent sale deed was valid. The High Court analyzed that defendant No.1, who executed both sale deeds, was the best witness to clarify the transactions, but he was not examined by the defendants. The court held that an adverse inference must be drawn under Section 114(g) of the Evidence Act that his evidence would have been unfavourable to the defendants. The court also noted that the plaintiffs had proved their registered sale deed, and the defendants failed to prove the validity of the subsequent sale deed. The High Court allowed the appeal, set aside the trial court's judgment, and decreed the suit in favour of the plaintiffs, declaring their title and directing possession to be handed over to them.
Headnote
A) Civil Procedure - First Appeal under Section 96 CPC - Challenge to dismissal of suit - Appeal against judgment and decree dated 05.09.2017 in Special Civil Suit No.47 of 2016 - Plaintiffs challenged dismissal of suit for declaration of title and possession - Held that trial court erred in not drawing adverse inference under Section 114(g) of Evidence Act for non-examination of defendant No.1 (vendor) who executed both sale deeds (Paras 1, 10-12). B) Evidence Act - Section 114(g) - Adverse Inference - Non-examination of key witness - Defendant No.1, who executed sale deeds in favour of plaintiffs and subsequently in favour of defendant No.2, was not examined - Held that adverse inference must be drawn that his evidence would have been unfavourable to defendants (Paras 10-12). C) Property Law - Title and Possession - Registered Sale Deed - Plaintiffs proved their registered sale deed dated 24.10.1997 from defendant No.1 - Defendants failed to prove subsequent sale deed dated 30.06.1999 from same vendor - Held that plaintiffs' title is valid and subsequent transfer by vendor after losing title is void (Paras 3.1-3.3, 10-12).
Issue of Consideration
Whether the trial court erred in dismissing the suit for declaration of title and possession when the plaintiffs had proved their registered sale deed and the defendants failed to examine the vendor to prove the subsequent sale deed?
Final Decision
The High Court allowed the appeal, set aside the judgment and decree dated 05.09.2017 passed by the learned Additional Senior Civil Judge, Kalol, in Special Civil Suit No.47 of 2016, and decreed the suit in favour of the plaintiffs, declaring their title and directing possession to be handed over to them.
Law Points
- Adverse inference under Section 114(g) of Indian Evidence Act
- 1872 for non-examination of key witness
- Burden of proof on party claiming title through subsequent sale
- Validity of registered sale deed
- Section 96 of Code of Civil Procedure
- 1908
