2025:JHHC:26468 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 425 of 2018 Shankar Prasad Yadav, age about 62 years, son of Late Nunulal Prasad Yadav @ Nunulal Mahto, resident of Village- Loharibaran, P.O. & P.S.- Mohanpur, District- Deoghar, presently residing at Jalsar Road, Jay Shankar Hotel, Deoghar, P.O., P.S. & District- Deoghar … … Defendant/Respondent/Appellant Versus Meena Devi, D/o, Janki Mahto, wife of Babulal Yadav, resident of Loharibaran, P.O. & P.S.- Mohanpur, District- Deoghar … … Plaintiff/Appellant/Respondent --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant : Mr. Kundan Kr. Ambastha, Advocate : Mr. Anurag Chandra, Advocate : Mr. Md. Abdul Wahab, Advocate For the Respondent : Mr. Ankit Kumar, Advocate --- 18/01.09.2025 Heard the learned counsels appearing on behalf of the parties. 2. This appeal has been filed against the judgment dated 06.08.2018 passed by the Court of learned Principal District Judge, Deoghar in Civil Appeal No. 5 of 2017 (decree signed on 20.08.2018) whereby the judgment and decree passed by the learned trial court has been set-aside. The trial court judgment was passed on 24.01.2017 in Title Suit No. 132 of 2001 (decree signed on 06.02.2017) whereby the suit was dismissed on contest. The suit was dismissed, the appeal was allowed and consequently, the defendant is the appellant before this Court. 3. This appeal was admitted for final hearing vide order dated 20.12.2023 on the following substantial questions of law: (i) Whether the findings of the learned court of appeal below are vitiated due to not drawing an adverse inference on account of non-examination of the plaintiff in the suit? (ii) Whether the findings of the learned court of appeal below are vitiated due to not meeting the reasonings of the trial court while reversing the judgment on extraneous consideration? 2025:JHHC:26468 2 4. The records of the case reveal that the suit was filed for a declaration that the plaintiff is the owner of the property described in Schedule -B of the plaint. A permanent injunction restraining the defendant from interfering with the possession of the plaintiff over the schedule -B property was also prayed for. The plaintiff also prayed for mandatory injunction directing the defendant from removing the obstruction, if any, found over the schedule-B property. 5. As per the plaint the husband of the plaintiff and defendant are full brothers. The father-in-law of the plaintiff and father of the defendant namely, Nunulal Yadav owned and possessed the property described in Schedule-A of the plaint. There was an amicable family settlement amongst Nunulal Yadav and his two sons which was done through a registered deed of settlement no. 568 dated 05.03.1987 and subsequent to the settlement, the parties came in possession of their respective share along with schedule- A property which belonged to Nunulal Yadav. In the northern side of schedule-A property, there is share of the defendant to the extent of 1927 sq. ft. and the share allocated to the husband of the plaintiff was to the extent of 1925 sq. ft. of land and house. 6. It is the case of the plaintiff that in the year 1991 Nunulal Yadav was in need of some money and he decided to sell the property and he expressed this to both the sons and it was conveyed to both the sons. Ultimately, it was the plaintiff who agreed to purchase the property and the plaintiff purchased the schedule-A property from Nunulal Yadav vide registered sale-deed no. 1598 dated 18.06.1991 and came in physical possession of the same. 7. It is the further case of the plaintiff that she got the plan sanctioned from Deoghar Municipality and constructed the house in the northern part of the land and also constructed staircase. The defendant also constructed in his part of land, but there was no staircase to go on his upper floor of the building and consequently, the plaintiff had given temporary permission to the defendant to use the staircase. However, since 1999 the defendant intended to grab the 2025:JHHC:26468 3 property and started obstructing the plaintiff from using the staircase and ultimately, the suit was filed. 8. The defendant had filed the written statement and denied the averments of the plaintiff and admitted that there was a registered family partition but according to the defendant, the parties of the case were enjoying the property separately in all terms and as per convenience since before the family arrangement. It was the further case of the defendant that both the sons had orally agreed to maintain their father Nunulal Yadav, but the husband of the plaintiff did not maintain Nunulal Yadav. It was the case of the defendant that Nunulal Yadav had no need of money and therefore, he never expressed his desire to sell the properties which fell in his share. The notice in that connection said to have been sent by Nunulal Yadav was not served upon this defendant. It was alleged that if there is any sale-deed executed in favour of the plaintiff, the same is fake and fraud. The plaintiff did not have any earning and it was also asserted that the property was sold to the defendant vide sale deed no. 342/359 dated 26.01.1994 executed by Nunulal Yadav and the staircase was constructed by him. 9. Thus, both the parties were claiming the property by virtue of registered sale-deeds. The plaintiff was claiming it by way of registered sale-deed no. 1598 dated 18.06.1991 and the defendant was claiming it by virtue of sale deed no. 342/359 dated 26.01.1994. 10. On behalf of the plaintiff, altogether five witnesses were examined and 10 witnesses were examined on behalf of the defendant. Documentary evidences were also exhibited on behalf of the parties. 11. Admittedly, the plaintiff did not depose before the Court in- person, but she deposed through a power of attorney who was none other than her husband. The following issues were framed by the learned trial court: “(i) Whether the suit as framed is maintainable? (ii) Whether the suit is barred by any civil law ? (iii) Whether the plaintiff has valid cause of action for the suit? 2025:JHHC:26468 4 (iv) Whether there is right of preemption to the parties of the suit? (v) Whether there is consent of the parties in executing sale deed as alleged by the plaintiff and as per deed of family settlement dated 05.03.1987? (vi) Whether Nunulal Prasad Yadav was the owner of the disputed property and has sold the property to Smt. Meena Devi wife of Babulal Yadav on 18.06.1991? (vii) Whether the sale-deed no. 1598 dated 18.06.1991 of plaintiff and sale-deed no. 342/359 dt. 26.01.1994 of defendant are valid and genuine documents ? (viii) Whether the disputed stair case has been constructed by the defendant over his own land ? (ix) Whether the plaintiff has constructed triple storyed house over Schedule A property along with stair case? (x) Whether the plaintiff has permitted the defendant to use the stair case temporarily for one year and in the meantime the defendant made his own construction? (xi) Whether the plaintiff is entitled to get any other relief or reliefs?” 12. Issue nos. I, II, IV, V and VII were taken up together and the suit was held to be maintainable. The learned trial court posed a question as to whether the suit was barred by any civil law and whether there was right of pre-emption in favour of both the parties of the suit before alleged execution of both the sale deed executed by same person namely, Nunulal Yadav on different dates. 13. While considering the oral evidences, the learned trial court recorded that out of 5 witnesses, four were formal witnesses and only P.W. 4 – Babulal Yadav who is the husband of the plaintiff was the material witness who had deposed before the court on the basis of General Power of Attorney. He had asserted that Nunulal Yadav was in need of money and he sent notice to both the sons and lastly executed the sale-deed in favour of the plaintiff and the plaintiff had paid the consideration money to late Nunulal Yadav. The court was of 2025:JHHC:26468 5 the view that all these facts were within the personal knowledge of the plaintiff and also observed that Babulal Yadav had come before the Court on the basis of general power of attorney which was not registered. Ultimately, the learned trial court held that P.W. 4 - Babulal Yadav being the power of attorney holder, his evidence did not have any legal sanctity and it could not be accepted to prove the case of the plaintiff. 14. The learned trial court further recorded that the parties have not followed mandatory provision of right of pre-emption. The learned trial court ultimately held that there was no evidence at all on both the sides regarding compliance of right to pre-emption and as such, both the deeds i.e., registered deed dated 18.06.1991 in favour of the plaintiff and the registered deed dated 26.01.1994 in favour of the defendant cannot be said to be legal document. The learned court was of the view that since the plaintiff had not come herself and proved her case and P.W. 4 was examined who was her husband being the power of attorney holder, technically there was no evidence on the part of the plaintiff and accordingly, the learned trial court decide issue no. II against the plaintiff and held that as there is right of pre-emption in favour of both the parties. Issue nos. V and VII were decided against both the plaintiff and the defendant. The suit was ultimately dismissed. 15. So far as learned 1st appellate court is concerned, the learned 1st appellate court framed the following points for determination: “(I) Whether the appellant/plaintiff has got right, title and interest over the suit property described in Schedule B of the plaint on the basis of sale-deed allegedly executed by Nunulal Prasad Yadav in favour of appellant/plaintiff in the year 1991? (II) Whether non-examination of appellant/plaintiff before the learned trial court rendered the claim of appellant/plaintiff unproved ? (III) Whether the terms and conditions of alleged settlement deed were violated by the appellant/plaintiff in getting the share of Nunulal Prasad Yadav in the year 1991 by virtue of registered deed of sale ?” 2025:JHHC:26468 6 16. The learned 1st appellate court firstly took the point of determination no. III and after considering the materials on record, held that ample opportunity was given by Nunulal Yadav to his sons to purchase the property but they did not respond whereafter, he exercised his rights to dispose off the property and sold the said property to the plaintiff. Thus, Nunulal Yadav did not violate any of the conditions enshrined in exhibit-3 -family settlement deed. The learned 1st appellate court also observed that the learned trial court held in paragraph 10 of the judgment that the transfer of the property described in schedule – A of the plaint by Nunulal Yadav in favour of the plaintiff was in violation of the terms and conditions of the family settlement deed and held that the plaintiff had no right, title or interest over the suit property. The learned 1st appellate court recorded that the finding of the learned trial court in paragraph 10 of the judgment is perverse and erroneous finding and held that Nunulal Yadav had completely adhered to the terms and conditions of the family settlement. 17. The learned 1st appellate court proceeded to discuss with the findings of the learned trial court and observed that any condition imposing absolute restraint on the power of the owner to transfer any immovable property is not a valid condition and in such cases, the sale deed is valid and the condition is void, but the learned trial court ignored these aspects and illegally and erroneously came to a finding that the sale-deed executed in favour of the plaintiff was executed in violation of the terms and conditions of the family settlement and held that the exhibit-1 i.e., sale-deed executed in favour of the plaintiff by Nunulal Yadav in the year 1991 was not a legal document. 18. Ultimately, the learned 1st appellate court after discussing all the materials on record also observed that the sale-deed executed in favour of the defendant by Nunulal Yadav of the year 1994 with respect to the same property was previously sold by him in favour of the plaintiff in the year 1991 vide exhibit- 1 and that Nunulal Yadav had no right, title or interest over 71 sq. ft. of land mentioned in exhibit-A on 27.01.1994 and therefore, he was not entitled to transfer 2025:JHHC:26468 7 the property in favour of the defendant. The learned 1st appellate court ultimately held as follows: “12…Thus, it is clear that appellant/plaintiff has got the suit property transferred in her favour by abiding terms and conditions of alleged family settlement deed (Ext. 3) in the year 1991 and accordingly no condition of family settlement deed was ever violated by her. Thus, the learned trial court erroneously came to the finding that the sale-deed executed in favour of appellant/plaintiff was not a legal document. Thus, this point for determination is decided in favour of appellant/ plaintiff and against the respondent/defendant.” 19. While deciding the point of determination no. II, the learned 1st appellate court noted that the defendant pleaded in paragraph 6 of his written statement that no consideration money was paid by the plaintiff to Nunulal Yadav and fraud was alleged. The learned 1st appellate court has discussed the findings of the learned trial court and observed that exhibit- 1 is a registered document and there is presumption that any document which is registered in accordance with law is genuine and legitimate document unless and until it is proved and established that the said document is not genuine and legitimate. It further noted that exhibit- 1 contains the fact that sum of Rs. 5000/- was advanced by the vendee to Nunulal Yadav out of her ‘Stridhan’ and merely the pleading and statement of defendant that no consideration money was paid could not be relied upon in view of the legal presumption regarding the registered document, unless otherwise is proved. The learned 1st appellate court also recorded that there was no subject matter for the defendant to cross-examination which could cause any prejudice to the defendant and accordingly, the examination of power of attorney of the plaintiff before the learned trial court was not in contravention of any law laid down by the Courts. The learned 1st appellate court ultimately held as follows: “13…Thus, the finding of learned trial court that appellant/plaintiff did not examine herself before the court and accordingly her case was not proved is a perverse finding and cannot be allowed to exist. Ext. 4, the power of attorney, executed by Meena Devi in favour of her husband Babulal Yadav clearly shows that he was specifically authorized to take 2025:JHHC:26468 8 every step in regard with Title Suit No. 132 of 2001, the judgment and decree of which has been appealed against. Thus, it is clear that non-examination of appellant/plaintiff before the learned trial court has not affected her case and the case of the appellant/plaintiff was well proved and established by the documents. Thus, this point for determination is also answered in favour of appellant/plaintiff and against the respondent/defendant.” 20. While deciding the point of determination no. (I), the learned 1st appellate court held that the plaintiff has got right, title, interest and possession over the suit property and the defendant is liable to be permanently injuncted from interfering with the possession of the suit property and it was also held that the learned trial court erroneously came to a finding that the plaintiff could not prove her case while dismissing the suit. The learned 1st appellate court has discussed the materials on record while coming to the aforesaid finding and holding that the learned trial court had come to erroneous findings. 21. Learned counsel for the appellant has relied upon the judgment passed by the Hon'ble Supreme Court reported in (1999) 3 SCC 573 (Vidhyadhar Vs. Manikikrao and Another) (paragraph 15) which is quoted as under: “15. Even while the plaintiff was in the witness-box, Defendant 2 declined to cross-examine the plaintiff which shows that Defendant 2 after admitting the case of the plaintiff, had no interest in the litigation particularly as he had already transferred the property in favour of the plaintiff.” 22. This Court finds that the learned 1st appellate court has rightly considered that the learned trial court had erred in drawing adverse inference on account of non-examination of the plaintiff in the suit and examination of her power of attorney holder who was none other than her husband. The learned 1st appellate court has considered the presumption attached in connection with the registered sale-deed and also the case of the defendant that the deed was fraudulent and was of the view that it was for the defendant to prove the allegation of fraud. 2025:JHHC:26468 9 23. This Court is of the view that the learned 1st appellate court has rightly scrutinized the materials on record and has come to a finding that no adverse inference could have been drawn on account of non- examination of the plaintiff. The learned 1st appellate court has rightly recorded that nothing was required to be cross-examined from the plaintiff with respect to her personal knowledge once the deed was registered and the consideration amount was shown to have been paid. The learned counsel for the appellant has failed to show as to how the appellant was prejudiced by non-examination of the plaintiff in person and examination of her power of attorney who was her husband. 24. In view of the aforesaid findings, this Court is of the view that the 1st substantial question of law is fit to be answered against the appellant and in favour of the respondent. Accordingly, it is held that the findings of the learned 1st appellate court are not vitiated and the learned 1st appellate court was justified in not drawing an adverse inference on account of non-examination of the plaintiff in the suit. 25. In view of the aforesaid findings , the 1st Substantial question of law is decided against the appellant and in favour of the respondent. 26. So far as the substantial question of law no. (ii) is concerned, this Court finds that the learned 1st appellate court has framed the points of determination and while considering each point of determination, the learned 1st appellate court has thoroughly discussed the findings recorded by the learned trial court and the reasons given by the learned trial court. Accordingly, it is held that the findings of the learned 1st appellate court are justified which have been passed after taking into consideration every aspect of the matter and after due meeting of the reasons cited by the learned trial court. The substantial question of law no. (ii) accordingly decided against the appellant and in favour of the respondent. 27. In view of the fact that both the substantial questions of law stand answered in favour of the respondent and against the appellant, this 2nd appeal is hereby dismissed. 28. Pending interlocutory application, if any, is closed. 2025:JHHC:26468 10 29. Let this judgment be communicated to the learned court concerned through ‘FAX/email’. (Anubha Rawat Choudhary, J.) Pankaj