PETITIONER: SMT. ISHWARI DEVI Vs. RESPONDENT: SMT. SARLA DEVI & ORS. DATE OF JUDGMENT14/12/1994 BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) SINGH N.P. (J) CITATION: 1995 SCC Supl. (2) 86 JT 1995 (1) 175 1994 SCALE (5)291 ACT: HEADNOTE: JUDGMENT:
R.M. SAHAI, J.:
1. The dispute in this appeal relates to interpretation
of a sale deed. It is not disputed that one Churu Ram was
the owner of the property in dispute. He executed a sale
deed on 28th December 1976 in favour of the appellant the
relevant portions of which are extracted below:
“And whereas the Vendor is the owner and
in possession of a two storey building called
‘Anand Bhawan’ built in four sets which are
old and in dilapidated conditions over a land
Khewat 1qo.32, Khatauni No.48, Khasra No.613
admeasuring 4 Biswas, Gair Mumkin, situated in
Kethu No.7, Teh. & Distt. Shimla and entered
into revenue records as per Jamabandi for the
year 1970-71;
NOW THIS SALE DEED WITNESSETH AS UNDER:
That the Vendor, as per the above sale
agreement, has transferred his land
admeasuring 4 Biswas, Khewat No.32, Khatauni
No.48, Khasra No.613 over which a two storey
building called ‘Anand Bhawan’ is built,
situated in Village Kethu, Tehsil & Distt.
Shimla for Rs. 13,000/- (Rupees Thirteen
Thousand only) with all its title, ownership,
road water, airlight, including other
amenities, fittings, fixtures, drains and
other rights whatsoever the Vendor has in
respect of the said land and the house, in
favour of the Vendee completely and
permanently.
The possession of the property and the
land sold has been handed over to the vendee
today. The possession of one set is with the
husband of the vendee and the possession of
rest of the property is given through the
tenants. The tenants living in the above
property are – (1) Sant Ram, (2) Salig Ram,
(3) Bali Ram and (4) Amogh Chand.”
Prior to construing the sale deed and finding out whether
what was transferred was entire Anand Bhawan owned by Churu
Ram or only 4 biswas of Khasra no.613 it is necessary to
mention few facts not with a view to decide title of
appellant but to emphasise that things were not as they have
been made out by the District Judge which has resulted in
not only in grave error of law but even gross miscarriage of
justice. The appellant is the wife of Amogh Chand who was
tenant of one of the sets and was mentioned in the sale
deed at no.4. The respondent is the daughter-in-law of Sant
Ram who was also tenant of one set and was mentioned as
no.l. In’ 1979 the appellant filed a petition for eviction
of Sant Ram. It was contested by him. He denied ownership of
the appellant. Therefore, the appellant to prove her title
filed the sale deed and jamabandi, that is the revenue
extract of 1970-71. The entry in it is as under:
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“Khewat Khautani Name of Name of Khasra Posse- Revenue
No. No. owner culti- No. ssion
with vator
address with
address
32 48 Chum Self in 613 0- 4 0- 5
Ram s/o possession
Ramdinu with the
Mall permission Lehri
s/o of owner. Bhawan
In O- 1
posse- Bungalow
ssion 0 – 3
owner
Ganga Ram
Manderja
Khewat
No.29
Successor
Shyamlal Deh.”
On this entry Sant Ram claimed that the area of Anand Bhawan
was 7 biswas out of which 4 biswas was transferred in favour
of the appellant. The Rent Control Officer held that the
claim was based on misapprehension as the details of 4
hiswas mentioned in the Khasra was added up to submit that
total area was 7 biswas. What is necessary to be mentioned
that Sant Ram never claimed that only a part of Anand Bhawan
was sold and the portion in his occupation continued to be
with Churu Ram or his successor. In 1981 the application for
eviction was allowed, only, to the extent that Sant Ram was
found in arrears from 28.12.1976 to 31.8.1979 at the rate of
Rs.86 p.m. But Sant Ram was probably aware that the total
area over which the building was standing was 7 biswas.
Therefore in the same year, that is 1980-81 something
unexplainable happened. Apart from one extract repeating the
entry of Jamabandi as it was in 197071 another entry was
made in name of Churu Ram over Khasra no.491. The exact
entry is reproduced below:
“Khautani Name of Name of Khasra Posse- Revenue Remarks
No. owner culti- No. ssion
with vator
address with
address
239 Churu Owner 491 0 – 3 468
Ram in Unauthorised
s/o posse- Bungalow
Ram ssion.
Ritu Mal
Wasi Deh”
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If Churu Ram was owner how could he be in unauthorised
occupation. The two do not go together. That is why to put
at the mildest the entry was purposive. It is surprising
that conscience of none of the courts below was stirred by
such entry and the District Judge or the High Court did not
care to ascertain as to how such entries came to be made in
the revenue record and did not consider it appropriate to
take action against the officials concerned. All this is
being said not because anything tums on it so far title of
the appellant is concerned but only to emphasise that the
courts below should have been more vigilant.
2. Reverting to the narration of facts Sant Ram being
armed with entry of 198081, procured probably at his
instance, obtained power of attorney from the two sons of
Churu Ram who of course had nothing to loose and within one
month as holder of power of attorney he sold 3 biswas in
favour of his daughter-in-law, the respondent. In 1987 the
appellant filed another eviction petition against Sant Ram
which was contested and now ownership of the flat was
claimed with respondent. The Rent Control Officer allowed
the application and commented adversely against Sant Ram.
Then the respondent filed the present suit for declaration
that the two orders passed by Rent Control Officer were null
and void and sought an injunction restraining appellant from
interferring in her possession. The suit was dismissed by
the Trial Court. It was held that the sale deed in favour of
respondent was invalid. The oral and documentary evidence
was rejected and recitals in sale deed of 1976 were held to
be conclusive. The Trial Court further noticed that when
eviction proceedings were started by the appellant against
another tenant he went to the length of denying title of
appellant and claimed that entire right and title of Anand
Bhawan vested in respondent. In appeal the District Judge
relying on evidence of Kanungo who had gone to demarcate the
area on spot, tax receipts and report. of Commissioner
allowed the appeal. It was held that since Churu Ram sold
only four biswas of Khasra No.613 and no corrigendum was
issued the sale of remaining area of three biswas or Anand
Bhawan which had separate Khasra No.491 by his sons in
favour of respondent was valid. The order was maintained by
the High Court.
3. If the revenue extracts, particularly, of 1980-81
recording Churu Ram as owner in unauthorised occupation of
the bungalow over 0.3 in Khasra no.491 would have inspired
any confidence or there would have been some doubt if it was
a correct and true depiction of the state of affairs as it
existed on spot we would have sent the case back to the
District Judge. But the circumstances and above all the sale
deed executed in 1976 arc so transparent that it leaves no
doubt that the order of the two courts below are manifestly
erroneous. No amount of evidence, oral or documentary, could
demolish the sanctity of the sale deed executed by Churu
Ram. The vendor after disclosing his title mentioned not
only the details of property. but gave out in detail the
extent which he was transferring. It was mentioned that
Anand Bhawan with four flats which were in occupation of(l)
Sant Ram, (2) Salig Ram, (3) Bali Ram and (4) Amogh Chand
were being sold and possession was delivered. The recital is
clear and unambiguous. The identity was established by
giving Khasra numbers, name of village and area as mentioned
in ‘ jamabandi. Since entire Anand Bhawan
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with two storeyed building and four flats was sold and
handed over to the appellant the description of four biswas
was an error which crept in due to its wrong recording in
jamabandi. When the Anand Bhawan was situated in seven
biswas as it now transpires to be the mention of four biswas
in jamabandi and its repetition in sale deed ‘was obviously
mistake which could not recoil against appellant. It is not
the claim of respondent that Churu Ram was possessed of any
other property.
4. In construing a sale deed the words used by the
vendor cannot be ignored on any supposition or presumption.
Where the property has been specifically identified in a
deed any ambiguity or inconsistency arising out of it has to
be disregarded. As explained earlier the recital in the sale
deed is clear and unequivocal. The vendor who was the owner
of Anand Bhawan intended without any reservations to
transfer the two storeyed building called Anand Bhawan in
favour of the appellant. This could not be diluted merely
because the area was mentioned as four biswas. The appellant
became owner of the entire Anand Bhawan and the entire area
stood vested in her. The erroneous recital in the sale deed
that Anant Bhawan was situated in 4 biswas would not in any
manner affect the title of the appellant. The learned
counsel for respondent attempted to sup-‘ port the order by
placing reliance on the report of the Commissioner and the
undertaking given by the appellant before District Judge
that if the building was found situated in any other Khasra
than Khasra No.613 then she would not claim any right over
it. But what was lost sight of was that the appellant was
so sure due to description of the area in the jamabandi that
it must not have crossed her mind that there was a mistake
or error in it. Nor she could have been aware of the
planning of Sant Ram who after advancing a preposterous
argument on the description of property in jamabandi of
1970-71 in column no. 5 proceeded to give it shape by
getting 3 biswas entered in name of Churu Ram in the same
year and then got an ex-parte report from the Kanungo that
Anand Bhawan was situated in two plots. The appellant was
not aware of all this and, therefore, she appears to have
agreed for the appointment of a commissioner who when went
to the spot and having found that the area being 7 biswas
and 4 being entered in Khasra no. 613 and 3 in Khasra no.491
had no option except to submit the report in favour of the
respondeat. But it was the duty of the court to have
attempted to find out the truth by sending the original
revenue records and find out if actually there was any
Khasra no. 491 before 1980-81. Same was with the ex-parte
report of Kanungo. The tax receipts too mentioned
appellant as owner of entire Anand Bhawan. In any case even
assuming that 3 biswas of Anand Bhawan fell in Khasra No.
491 Churu Ram who undisputedly was the owner of entire
Anand Bhawan having transferred the entire property in
favour of the appellant the title passed to her over the
entire area whether it fell under Khasra No. 613 or 491.
The submission of the respondent, therefore, is liable to be
rejected.
5. In the result this appeal succeeds and is allowed.
The orders passed by the High Court and the First Appellate
Court arc set aside. The plaintiff suit filed for
declaration and injunction is dismissed. The appellant shall
be entitled to her costs throughout.
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