Mian (Dead) Through LRS. & Ors Vs. Dokal Mian & Ors.  INSC 449 (6
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2576 OF
2003 Nazir Ali Mian (Dead) Through LRs. & Ors. ...Appellants VERSUS Dokal
Mian & Ors. ...Respondents
This appeal arises from a suit for declaration of title and
confirmation/recovery of possession instituted by one Sukhi Mian, the ancestor
and predecessor in interest of the present appellants. The claim of the
plaintiff was based on two sada Hukumnamas, allegedly granted by the erstwhile
landlord in favour of his father, Bhualdi Mian. In addition to the Hukumnamas,
the plaintiff claimed to have perfected his title over the suit lands by
adverse possession. The Second Additional Sub-Judge, Giridih, upheld his claim
and decreed the suit by judgment and decree dated July 7, 1979 passed in Title
Suit No.35 of 71/28 of 79. On appeal by the defendants, however, the Second
Additional District Judge, Giridih, reversed that decree and dismissed the
plaintiff's suit by a detailed judgment and order dated July 2 6, 1987 in Title
Appeal No.22/79. The plaintiff's second appeal was dismissed by the High Court
In the SLP filed against the High Court judgment, the following
question of law was framed on behalf of the appellants:
the unregistered Hukumnama and the payment of rent against the valid rent
receipts is not sufficient enough to establish the raiyati right of the
petitioners over the suit land in the light of Section 117 of Transfer of
Having regard to the question of law, this Court while granting
leave made the following order:
legal question formulated depends on the construction of Section 117 of the
Transfer of Property Act. It requires consideration."
We have heard counsel for the appellant at some length and we have
also carefully examined the judgments of the trial court and the appellate
court. We find that the appellate court was fully conscious of the provisions
of section 117 of the Transfer of Property Act and has correctly considered the
plaintiff's claim based on the two unregistered Hukumnamas. In paragraph 13 of
the judgment, the appellate court observed as follows:
two Hukumnamas are unregistered document.
admittedly by virtue of these two Hukumnamas only no title could have been
conferred upon the alleged settlees.
to the section 117 of Transfer of Property Act lease of agricultural lands can
be made orally accompanied with putting the lessee in possession of the land
and realizing the rent for the lands."
The court then proceeded to examine whether at the time of
execution of the Hukumnama the settlee was put in possession of the suit lands.
On a detailed consideration of the evidences adduced by the two sides, it came
to hold that there was no evidence that any settlement was made in favour of
the plaintiff's father by putting him in possession of the suit lands. The
appellate court has given several reasons for holding that the plaintiff (or
his father) never came in possession of the suit lands and for not relying on
the sada Hukumnamas. The Court pointed out that the first Hukumnama was
purported to be made in the year 1318 Fasli that corresponded with the year
1911 of the Christian era. From exhibit B, it was evident that the final
publication of the khatian (the record of rights) of village Pratappur, Giridih
(where the suit lands are situated) was made on April 4, 1913. The appellate
court observed that should the settlee have come in possession over the suit
lands by virtue of the Hukumnama, his name would have appeared in the survey
records showing him in possession of plot nos.137 and 140. But that was not the
position. The Court posed the question, if the settlement of the suit lands was
made in favour of Bhualdi Mian by means of the Hukumnama and by putting him in
possession of the settled lands, as to why his name did not appear in the
khatian. There was no answer to the question from the side of the plaintiff.
The court further observed that in case of oral settlement of 4 agricultural
land as contemplated under section 117 of the Transfer of Property Act, it was
essential to put the settlee in possession of the land.
not a single witness adduced by the plaintiff on this point who could say that
on the alleged date of settlement Bhualdi Mian was put in possession. There was
not a single rent receipt to show that on the date of settlement any rent was
paid by Bhualdi Mian. Therefore, the requirements of law for an oral settlement
of agricultural land were not satisfied and the plaintiff could not derive any
benefit from section 117 of the Transfer of Property Act.
The appellate court then considered the plaintiff's case based on
adverse possession and after a detailed examination, returned a negative
finding on his claim.
The appeal stands concluded by findings of fact. We find no merit
in the appeal. It is accordingly dismissed, but with no costs.