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Sheikh Minzar HussaIn and ors. Vs. Mohd. Asghar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1579 of 1968
Judge
Reported inAIR1978All413
ActsCode of Civil Procedure (CPC) , 1908 - Sections 7 - Order 21, Rule 94; ;Evidence Act, 1872 - Sections 114
AppellantSheikh Minzar HussaIn and ors.
RespondentMohd. Asghar and anr.
Appellant AdvocateK.C. Saksena, Adv.
Respondent AdvocateVinod Swaroop, Adv.
DispositionAppeal allowed
Excerpt:
property - sale of immovable property - order 21 section 7 of code of civil procedure, 1908 - sale furthering execution of a decree passed by a small cause court - cannot be invalid when sale certificate purported to be issued by the court of munsif - sale certificate issued by the court is a conclusive evidence that sale has been effected by the court of munsif. - - , 1944 and is a solemn document which clearly purports on its face to have been issued by the court of the munsif, sambhal at sambhal, district moradabad in suit no. in fact it correctly described the presiding officer's designation as a presiding officer who was not only the munsif, sambhal, but also enjoyed the powers of a judge, small cause court......these two documents had no clear conception of the two distinct jurisdictions exercised by munsif sambhal, as such in his capacity as judge, small cause court, and absolutely no reliance can be placed on these documents for inferring that the sale was ordered by the munsif, sambhal and not by him as a judge, small cause court. i regret my inability to agree with the above finding of the learned additional civil judge. the sale-certificate (ext. 1) is dated 11th nov., 1944 and is a solemn document which clearly purports on its face to have been issued by the court of the munsif, sambhal at sambhal, district moradabad in suit no. 46 of 1940 and execution case no. 146 of 1943. the mere fact that below the signatures, the presiding officer has been described as munsif and judge,.....
Judgment:

Deoki Nandan, J.

1. This is a plaintiff's second appeal arising from a suit for cancellation of a sale-deed executed by the second defendant in favour of the first defendant in respect of certain land described at the toot of the plaint to the extent of 1/5th share and for partition of the plaintiff's share in the land in suit.

2. The plaintiffs' case was that Karim Bux, father of the second defendant was the owner of the house in dispute. Karim Bux died leaving behind him his son, defendant No. 2 and three daughters, Smt. Mehtabi, Smt. Sughra and Smt. Sayyedan. The share of Smt. Mehtabi in the house was one fifth. Smt. Mehtabi owed a debt to Sheikh Mohammed Yusuf, the father of the plaintiffs, in respect of which Sheikh Mohd. Yusuf filed a suit in the Small Cause Court. Sambhal, being Suit No. 46 of 1940. The suit was decreed against the assets of Smt. Mehtabi and in execution of the said decree Sheikh Mohd. Yusuf purchased Smt. Mehtabi's l/5th share in the house in suit on Dec. 1. 1943 and obtained possession over it. Sheikh Mohd. Yusuf then became co-sharer in the house in suit to the extent of l/5th share. He died leaving the plaintiffs as his heirs. It was further alleged that during his lifetime Sheikh Mohd, Yusuf had gifted his entire property in favour of the first plaintiff and accordingly the whole of the l/5th share in the house in suit came to belong to the first plaintiff. The second defendant removed and misappropriated materials of the house on March 6, 1963, and sold the entire land pertaining to the house to the first defendant and during the plaintiffs' absence the defendant No. 2 converted the land into an ahata hence the suit.

3. In defence it was pleaded by the first defendant that Karim Bux and his brother Rahim Bux were the owners of the land; that there were two Kotharis and Khaprail which previously stood thereon; that Rahim Bux transferred his one half share in the land and the said Kotharis and Khaprail to the second defendant by means of a sale-deed dated September 10, 1945; Karim Bux died leaving a widow, a son and three daughters; that later on the widow also died and was survived by the son and the daughters. The two daughters gifted their shares to the son, namely, the second defendant who in this way held 1460 sehans out of 1600 sehans in the property. The remaining 140 sehans having gone to the share of Smt. Mehtabi, his sister. It was claimed that the second defendant had a right to sell the land in suit to the contesting defendants who raised constructions on the land at a cost of Rs. 200/- in the knowledge of the plaintiffs; that the suit was barred by estoppel and acquiescence; that the plaintiffs had never been in possession and the suit was barred by limitation. The last but not the least plea was that immovable property could not be sold in execution of the decree by a Small Cause Court, hence the sale of the property in suit by that Court was invalid. It was alleged that thus the plaintiffs had no share in the land in suit.

4. The trial court framed three issues:

(i) Whether the plaintiff has l/5th share in the property in suit? If, so whether the sale deed is valid to the extent of the plaintiffs' share?

(ii) Whether the suit is barred by estoppel and acquiescence?

(iii) To what relief, if any, is the plaintiff entitled?

5. The trial court found on issue No. 1 that the plaintiff No. 1 had no share in the land in suit; and on issue No. 2 it found that the suit was burred by estoppel and acquiescence. In the result, the trial court found that the plaintiff's were not entitled to any relief and dismissed the suit.

6. On appeal the main point urged before the lower appellate court was that the sale of the properly was made not by the Small Cause Court, Sambhal hut by the Court of the Munsif, Sambhal. The courts were presided over by the same officer and the lower appellate court found that there was no order transferring the execution proceedings in which the property was sold by the Small Cause Court to the Munsif's Court, and that the sale must be held to have been made by the Small Cause Court which had no jurisdiction to execute a decree in respect of an immoveable property. The lower appellate court also confirmed the learned Munsif's finding that the suit was barred by estoppel and acquiescence. The learned Additional Civil Judge has found on the basis of the sale-certificate (Ex. 1) and the dakhalnama (Ex. 2) that the clerical staff which prepared these two documents had no clear conception of the two distinct jurisdictions exercised by Munsif Sambhal, as such in his capacity as Judge, Small Cause Court, and absolutely no reliance can be placed on these documents for inferring that the sale was ordered by the Munsif, Sambhal and not by him as a Judge, Small Cause Court. I regret my inability to agree with the above finding of the learned Additional Civil Judge. The sale-certificate (Ext. 1) is dated 11th Nov., 1944 and is a solemn document which clearly purports on its face to have been issued by the Court of the Munsif, Sambhal at Sambhal, District Moradabad in Suit No. 46 of 1940 and Execution case No. 146 of 1943. The mere fact that below the signatures, the Presiding Officer has been described as Munsif and Judge, Small Cause Court, does not detract from the validity or correctness of the sale certificate. In fact it correctly described the Presiding Officer's designation as a Presiding Officer who was not only the Munsif, Sambhal, but also enjoyed the powers of a Judge, Small Cause Court. The reliance placed by the learned Additional Civil Judge on the dakhalnama is neither here nor there. The validity of the sale could not have been determined by reference to the dakhalnama (Ex. 2) which was obviously a subsequent document.

7. As to the point raised by the learned Additional Civil Judge that the burden of proving the fact that the decree passed by the Court of the Judge, Small Causes had been transferred to the Court of Munsif, Sambhal and the sale was ordered by the Munsif, Sambhal was on the Plaintiff-appellants, is again not correct. The sale certificate issued by the Court was conclusive of the tact stated therein that the sale had been effected by the Court of the Munsif, Sambhal, and unless that fact was disproved by cogent evidence it was not open to the defendants to contend that it was made by the Court of the Judge, Small Cause and it cannot be said that the Court of Munsif, Sambhal had no jurisdiction to sell the property. In the face of the sale-certificate it was not necessary for the Plaintiffs to establish that the decree had in fact been transferred for execution by the Court of the Judge, Small Causes to the Court of the Munsif as official acts must be presumed to have been performed regularly. In this view of the matter the sale of the property in the plaintiffs' favour was valid and the subsequent sale of the same property by the second defendant in favour of the first defendant would be invalid.

8. The courts below have also held that the suit was barred by estoppel and acquiescence. It is clear that they have not appreciated the true legal concept of acquiescence and estoppel, and the point need not be discussed further.

9. In the result, the appeal succeeds and is allowed. The plaintiffs' suit is decreed for cancellation of the l/5th share in the sale-deed dated March 6, 1963 executed by the second defendant in favour of defendant No. 1 in respect of the property in suit. The sale-deed to that extent is declared to be invalid and a preliminary decree for partition declaring the plaintiffs' share as l/5th in the property in suit shall be prepared. The trial court will take steps and prepare a final decree of partition in accordance with law. The plaintiffs will be entitled to recover their costs from the defendants throughout.


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