SONA DEVI Vs. NAGINA SINGH

JUDGEMENT

(1.) Whether the suit of the plaintiff-respondent was within time and whether sections 91 and 92 of the Transfer of Property Act, 1882 (compendiously the Act) have been correctly interpreted and whether the judgment of the lower appellate court was consistent with the statutory requirements of Order XLI, Rule 31 of the Code of Civil Procedure (for short the Code) , if not, its effect, are the substantial questions of law involved in the present Second Appeal preferred by the defendant-Appellant, under Section 100 of the Code of Civil Procedure, 1908 (compendiously the Code) in a suit for declaration of title and confirmation of possession.

(2.) The averments in the plaint were that the plaintiff-respondent was the owner of plot No. 4312 area 2 decimals, with house thereon pertaining to khata No. 1339 in Village Digha bujurg, P. S. Digha, Patna. The property was usufructuarily mortgaged to Hussaini (P. W. 3) who came in possession but created a sub-mortgage in favour of sheo Pujan Rai (D. W. 1) , who assigned his interest to Harbansh Rai by a registered deed dated 10-4-1974. Nagina Singh (Plaintiff No. 1) had been in need of money. He negotiated to sell the house to defendant No. 1 Smt. Sona Devi and executed an agreement for sale on 23-8-1973 for a sum of Rs. 9500/-, out of which an amount of Rs. 500/- was paid, whereas the balance was to be paid at the time of execution of the sale deed. But the plaintiff did not execute the sale deed even after notice being served. Ultimately a suit for specific performance of contract was filed and the same was decreed. She was directed to make payment of Rs. 7000/- within three months from the date of decree but she failed to carry out the direction of the court even after extended time and ultimately her prayer for extension of time to permit her to make the deposit of the sale consideration was rejected and even the civil Revision by her in the High Court also met the same fate. But she continued in possession and the plaintiff-respondent has to file the present suit with the averments that Smt. Sona devi, defendant, had not been the purchaser. Her status was not more than a mortgagee. She did not accept the mortgage money nor vacated the possession. Consequently the plaintiff has no option but to file the present suit for declaration of title and confirmation of possession. But as the plaintiff was not in possession he must have brought the suit for possession.

(3.) Defendant No. 1 Smt. Sona devi filed written statement with the averment that there was an agreement for sale of the suit property with nagina Singh, the plaintiff and defendant paid a sum of Rs. 500/- to the plaintiff, Nagina Singh. A sum of Rs. 2000 was paid to Sheo Pujan Rai who was mortgagee at that time. Though she filed suit for specific performance of contract, but the sale deed could not be executed even after decretal of the suit as she failed to deposit the amount of sale consideration and the legal effect was that her suit for specific performance of contract stood rejected. But she continued in possession, otherwise than in accordance with law and till the suit was filed she remained in continuous adverse possession beyond the period of 12 years. Consequently the suit of the plaintiff was time-barred. In pursuance of the agreement for sale her name was entered in the revenue papers including the State Serista and she has been paying rent and was granted rent receipts. In this way she matured her right by adverse possession. The suit was liable to. be dismissed.