Holding

A suit for possession based on a valid title is maintainable without a declaration suit unless a serious cloud over the title exists; the plaintiff's title via the sale deed was valid and the adoption claim of the defendant was unproven.

Summary

The plaintiff purchased a property from Buchamma, the sole surviving sister of the deceased Balaiah, under a registered sale deed dated 25‑04‑1981. After the widow Yashoda's death, the plaintiff took possession, but Defendant No.3 (Sarojana) evicted him, claiming to be Yashoda's adopted daughter and thus an heir. The plaintiff filed a suit for possession based on his title, which the trial court dismissed; the first appellate court decreed in his favour, but the High Court reversed, holding the sale deed unproved and directing a suit for declaration of title. The Supreme Court held that a suit for possession is maintainable when the plaintiff's title is clear and not clouded, that the adoption claim was not established, and that a third party cannot challenge the consideration in a sale deed. Consequently, the appeal was allowed, the High Court order set aside, and the first appellate decree restored.

Issues considered

The plaintiff's suit for possession can be maintained without a separate suit for declaration of title when his title is not clouded.
Whether Defendant No.3 successfully proved adoption by Yashoda, thereby acquiring inheritance rights.
Whether the execution of the sale deed and passage of consideration were duly proved and can be contested by a third party.
Whether the plaintiff needed to prove that Buchamma delivered possession at the time of sale.

Legislation cited

Code of Civil Procedure, 1908s. Order 8 Rule 5
Specific Relief Act, 1963s. 6

Subjects

possession suittitlesale deedadoptioninheritanceheirshipdeclaration of titleCivil Procedure CodeSpecific Relief Actproperty law

Judgment

[2016] 2 S.C.R. 655

MUDDASANI VENKATA NARSAJAH (D) TH. LRS. A
., v ..

MUDDASANI SAROJANA
(Civil Appeal No. 4816 of2016)
MAY05,2016 B

[V. GOPALA GOWDA AND ARUN MISHRA, JJ.)
Title - Suit for possession of property based npon the title. -
Property enjoyed by widow as widows estate during life time -
After widows death, widows late husbands sister succeeded to the C
property and sold it to the plaintiff - Thereafter. forcible eviction of
plaintiff by defendant - Suit for possession by plaintiff based upon
title - Case of defendants that defendant no. 3 was adopted
daughter of the widow and succeeded to. the property by inheritance
- Trial court dismissed the suit - First appellate court decreed the
suit - However, High Court held that the sale deed was not proved D
for want of examination of the surviving sister and thus, it was
necessary for th~ plaintiff to file a suit for declaration of title, thus,
suit for possession could not have been filed - On appeal held:
Widow was enjoying the property in her lifetime, though it appears
that defendant no. 3 was residing with the widow, but she did not
E
claim any derogatory title to . the widow nor claimed adverse
possession - Her claim of adopted daughter of the widow not
established - Entry ofpossession in some revenue records simp/icitor
does not confer any right to defendant no . 3 lq retain the possession
of the property - Property on the death o/ the widow passed on to
widow :S late husbands sister being class !Ind heir, as such she had F
the right to sell the property to plaintiff - Plaintiff could succeed in
suit for possession on the strength of ifie title - Even if the sister
had not placed plaintiff in possession of property on strength of his
title conferred by way of sale deed,· he had right to recover
possession - Order passed by High Court dismissing the suit set
G
aside and the judgment and decree passed by the first 'appellate
court restored.
Allowing the appeal, the Court
HE,LD: 1.1 As per concurrent findings of all the courts,
defendant no. 3 has failed to prove the factum of her adoption by H
655
656 SUPREME COURT REPORTS [2016] 2 S.C.R.

A deceased 'Y' in the year 1959. There was no corresponding
document of adoption and other documentary evidence showing
t.hat defendant no. 3 had ever been adopted by 'Y'. In some of
the revenue entries' the name of defendant no. 3 has been shown
as person in possession, but not in the capacity of adopted
daughter. 'Y' was admittedly the owner of the property. The
B
plaintiff has based his case to recover possession on the strength
of the sale deed executed by 'B' in his favour. [Para 11] [661-E-
F]
1.2 The plaintiff filed the suit for possession on the strength
for title and not only on the basis of prior possession. It was not
C a summary suit for ejectment. Thus, plaintiff could succeed in
suit for possession on the strength· of the title. The issue had
been framed on the question of title of the plaintiff as well as on
the question of adoption of defendant no.3. On the basis of title
claimed in the suit, both the parties have adduced their evidence
D. in support of their respective cases. The main plea of defendant
no. 3 that she was an adopted daughter of 'Y' has not been found
to be established by the trial court, the first appellate court or by
the High Court. Tb us, there was no serious cloud on the title of
the plaintiff so as to force him to seek the relief for declaration of
title in the instant case which was in fact based on the strength of
E. the sale deed executed by 'B' who was the sole surviving heir of
BL as such succeeded to the property and had the right to execute
the sale deed in favour of the plaintiff. [Para 12) [661-H; 662-A-
C)
1.3 Denial for want of knowledge is no denial at all. The
execution of the sale deed was not specifically denied in the
F
written statement. Once the execution of the sale deed was not
disputed it was not necessary to examine B to prove it. The
provisions contained in Order 8 Rule 5 CPC require pleadings
to be answered specifically in written statement. [Para 15] [663-
F-G]
G 1.4 There was no effective cross-examination made on the
plaintiff's witnesses with respect to factum of execution of sale
deed. The High Court gravely erred hi law in reversing the
findings of the first appellate court as to the factum of execution
of the sale deed in favour of the plaintiff. Passing of consideration
under a sale deed cannot be questioned by third party. Defendant
H

. I
MUDDASANI VENKATA NARSAIAH (D) TH. LRS. v. · 657
MUDDASAN! SAROJANA

no. 3 has not been able to establish her case that she is an adopted A
daughter of the deceased 'Y' and thus, she being the third party,
could not have questioned the execution of the sale deed by 'B'
on the ground of passing of consideration. [Para 16, 17) (664-B;
665-A-C)
1.5 It is apparent that 'Y' was enjoying the property in her B
lifetime, though it appears that defendant no. 3 was residing with
'Y', bot she has not claimed any derogatory title to 'Y' nor has
claimed adverse possession. Her claim of an adopted daughter
of 'Y' has not been found established. The entry of possession in
some revenue records simplicitor does not confer any right to
defendant .no. 3 to retain the possession of the property. The c
property on the death of 'Y' had been passed on to 'B' being
class Ilnd heir, as such she had· the right to sell the property to
plaintiff. Even if 'B' had not placed plaintiff in possession of
property on strength of his title conferred by way'of sale deed, he
had right to recover possession. The first appellate court was D
thus, right in decreeing the suit. The order passed by the High '
Court dismissing the suit is set aside and the judgment and decree
passed by the first Appellate Court is restored. [Para 18) [665-
D-F]
Pandit Ramjilal Tiwari v. Vijai Kumar & Ors. 1970
MPLJ 50 - approved. E

Kure/la Naga Druva Yudaya Bhaskara Rao v. Galla
Jani Kamma 2008 (11) SCR 849:(2008) 15 SCC 150;
Anathula Sudhakar v. P. Buchi Reddy 2008 (5) SCR
331:(2008) 4 SCC 594; Jahuri Sah & Ors. v. Dwarika
Prasad Jhunjhunwala AIR 1967_ SC 109 :1966 SCR F
280; Dhanbai D/o Late Shri Cowash v. State of MP. &
Ors. 1978 MPLJ 717; Samrathmal & Anr. v. Union of
. India, Ministry ~f Railway & Ors. AIR 1959 MP 305;
P.L.NK.L. Chettyar Firm v. Ko Lu Doke Affi 1934 Rang.
278; Lakhmi Chandv. Ram Lal AIR 1931All.423; Bhoju
G
Manda/ & Ors. v. Debnath Bhagat & Ors. AIR 1963
SC 1906 : 1963 Suppl. SCR 82; Mis. Chuni Lal Dwarka
Nath v. Hartford Fire Insurance Co. Ltd. & Anr. AIR
!958 Punjab 440; Maroti'Bansi Te/i v. Radhabai w!o
Tukaram Kunbi & Ors. AIR 1945 Na1wur 60; A.E.G
Carapiet v.. A. Y. Derderian AIR 1961Cal.359; K1nvar/al H
658 SUPREME COURT REPORTS [20 l 6] 2 S.C.R.

A Amritlal v. Rekhlal Koduram & Ors. AIR 1950 Nagpur
83; Karnidan Sarda & Anr. v. Sailaja Kanta Mitra AIR
1940 Patua 683; Mt. Akli v. Mt. Daho AIR 1928 Patua
44 - referred to.
Case Law Reference
B 2008 (11) SCR 849 referred to Para 13
2008 (5) SCR 331 referred to Para 13
1966 SCR 280 referred to Para 15
1978 MPLJ 717 referred to Para 15
AIR 1959 MP 305 referred to Para 15
c
AIR 1934 Rang 278 referred to Para 15
AIR 1931 All. 423 referred to Para 15
1963 Suppl. SCR 82 referred to Para 16
AIR 1958 Punjab 440 referred to Para 16
D AIR 1945 Nagpur 60 referred to Para 16
AIR 1961 Cal. 359 referred to Para 16
AIR 1950 Nagpur 83 referred to Para 16
AIR 1940 Patna 683 referred to Para 16
1970 MPLJ 50 approved Para 17
E
AIR 1928 Patna 44 referred to Para 17
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 48 l 6 of.
2016.
·From the Judgment and Order dated 12.07.2006 of the High Court
F of Judicature of Andhra Pradesh at Hyderabad in Second Appeal No.
72of1994.
P. Vishwanatha Shetty, Sr. Adv., G. V. R. Choudary, K. Shivraj
Choudhuri, A. Chandra Sekhar for the Appellants.
Subramonium Prasad, Sr. Adv., Sridhar Potaraju, Gaichangpou
G Gangmei, Arjun Singh forthe Respondent.
The•Judgment of the Court was delivered by
ARUN MISHRA, J. l. Leave granted .
. 2. The plaintiff is in appeal before us aggrieved by reversal of the
judgment and decree of first appellate Court by the High Court in Second
H
MUDDASANI VENKATA NARSAIAH (D) TH. LRS. v. 659
MUDDASANI SAROJANA [ARUN MISHRA, J.]

Appeal and restoring the judgment and decree of the trial Court dismissing A
the suit filed by the plaintiff.
3. The plaintiff filed a suit before the trial Court for possession of
disputed property and mesne profits based upon the title. It was averred
in the plaint that Veeraiah and Balaiah were sons oflate Rajaiah. Both
the sons predeceased their father Rajaiah. Plaintiff is son ofVeeraiah B
and Yashoda is wife of the said late Balaiah. Afterthe death ofRajaiah,
the property was given as widow's estate to Yashoda. .It was to be
reverted to the plaintiff after the death of Yashoda. Yashoda enjoyed
the property in her lifetime. However, after her death, Smt. Gandia
Buchamma, surviving sister of late Balaiah succeeded to the property c
and sold itto plaintiff vide registered sale deed dated 25.4.1981 and also
delivered the possession. Thereafter on 12.6.1981 the defendants forcibly
evicted the plaintiff from the property.
4. The defendants in their written statements contended that Ballaiah
was the absolute owner of the property and after his death Yashoda D
became the absolute owner of the property. She was in possession of
the property. It was not to be reverted back to the plaintiff after the
death ofYashoda. Yashoda after death of her husband, as per authority
given by her late husband, had adopted defendant no. 3 Sarojana when
she was aged 12 years and thereafter she resided in the house ofYashoda
as her daughter. Thus, Buchamma did not succeed to the property. E
The adopted daughter defendant no. 3 succeeded to property by
inheritance. Defendants had no knowledge of the registered sale deed.
Buchamma was not in possession and had no authority to sell the property
to the plaintiff.
5. The trial Court framed the issue as to the ownership ofYashoda F
and also on the question of factum of adoption of defendant no. 3 on
18.2.1959 and whether she became the owner by virtue of adoption
after the death ofYashoda. A specific issue was also framed by the trial
Court on the question whether on death ofYashoda, Buchamma, who is
the surviving sister ofYashoda's late husband Balaiah, became heir and
G
owner of the said property and whether the plaintiff had acquired the
title to the suit property vi de registered sale deed dated 25 .4 .1981 executed
by Buchamma in favour of the plaintiff.
6. The tria.l Court while dismissing the suit inter alia found that
passing of consideration has not been proved under the sale deed and
H
660 SUPREME COURT REPORTS (2016] 2 S.C.R. ·

A that it was a nominal document. The plaintiff ought to have filed suit for
declaration of title. Defendant no. 3 was cultivating the suit land from
the date of the death ofYashoda since 1981. However, it has not been
proved that defendant no. 3 was adopted daughter of late Yashoda. The
factum of adoption has not been established. The possession had not
B . been delivered by Buchamma to the plaintiff on the date of the execution
of the sale deed i.e. 25 .4.1981 . The plaintiff must succeed on the strength
of his own case, not on the weaknesses of the defendants. The trial
Court also found that it was not established that Buchamma was the
sole surviving sisteroflate Balaiah.
7. On first appeal being preferred into the Court of I" Additional
cDistrict Judge, Karimnagar, it allowed the appeal and the suit of the
plaintiff had been decreed. It found that the execution of the sale deed
has been established. Yashoda was the absolute owner in possession of
the property in her lifetime. There was no Class I heir of deceased
Balaiah. Buchamma was a Class 11 heir being the only surviving sister
D of Yashoda 's late. husband Balaiah as such succeeded to the property..
Since it was not denied in written statement that Buchamma is the only
surviving sister of Balaiah, she was entitled to succeed to the property
of late BalaiahNashoda. The adoption of defendant no. 3 has not been
established. The case set up by defendant no.3 that Yashoda cultivated
the suit land during her lifetime has not been found to be established in
E the absence of any document to that effect. Defendant no.3 had no title
to the property, as such she had no right to retain its possession.
Defendant no. 3 being third party could not question the sale deed and
passing of consideration. The sale deed is valid and binding. Even if
Buchamma has not delivered the possession to the plaintiff that would
F not affect his right to claim possession on the strength of his title conferred
upon him under the sale deed. It was not necessary to examine Buchamma
as she had never objected to the execution of sale deed. In the written
statement only her authority to sell the property was questioned. It was
not necessary to file a suit for declaration of title as Buchamma acquired
the suit property by way of inheritance from the absolute owner and
G thereafter sold it to the plaintiff.
8. The High Court in the second appeal has not disturbed the
concurrent findings that the adoption of defendant no.3 Sarojana by
Yashoda has not been established. However, the High Court has held
that the sale deed has not been proved for want of examination of
H
MUDDASANI VENKATA NARSAIAH (D) TH. LRS. v. 661
MUDDASANJ SAROJANA [ARUN MISHRA, J.l

Buchamma and in the circumstances it" was necessary for the plaintiff A
to file a suit for declaration of title. The High Court observed that the
suit for possession and meshe profits thus could not have \>~en filed and
allowed the second appeal. Aggrieved thereby, the plaintiff has come up
in the appeal before us. ·
., .
9. It was submitted on behalfofthe appellant that the High Court B
has erred in law in reversing.the judgment and decree passed by the first
Appellate Court. It was not necessary to seek the relief for declaration
of title as there was no serious cloud on the title of the plaintiff. The
authority of Buchamma to execute the sale deed had been put into
question not factum of execution of sale deed. Thus it was not necessary
to examine Buchamma and defendant No.3 being a·third party cannot c
question the passing of consideration under the sale deed. Buchamma
was the sole Class II heir left. '
I 0. Per contra, the learned counsel for the respondents urged that
no ca§e of interference was made out. It was necessary for plaintiff to
seek relief for declaration of title. The suit has rightly been dismissed. D
The defendant no. 3 was in posses~ion even in the lifetime ofYashoda.
It is submitted that even ifher case ofadoption has not been found to be
established, the plaintiff has not been able to establish his entitlement to
recover the possession.
11. In the iC>Stanf case, as per concurrent findings of all ihe courts, E
defendant no. 3 has failed to prove the factum of her adoption by deceased
Yashoda in the year 1959. There was no corresponding document of
adoption and other documentary evidence showing that'defendant no. 3
had ever been adopted by the deceased Yashoda. True it is that in some
of the revenue entries the name of defendant no. 3 has been shown as F
person in possession, but not in the capacity of adopted daughter. Yashoda
was admittedly the owner of the property. The plaintiff has based his
case to recover possession on the strength of the sale deed executed by
Buchamma in his fa<>our.
12. In the.aforesaid background of facts, we come to the question
G
whet'1er it.was ne,Cessary to seek i;elief or declaration of title. In our
opinion, the plaintiff has filed the suit for possession on the strength for
title and not on,ly on the basis of prior possession. It was not a summary
suit for ejectmenffiled under Section 6 of the Specific Relief Act, 1963.
'Thus, plaintiff could succeed in suit for possession on the strength of the
title. The issue had been framed on the question of title of the plaintiff as H
662 SUPREME COURT REPORTS [2016] 2 S.C.R.

A well as on the question of adoption of defendant no.3. On the basis of .
title claimed in the suit, both the parties have adduced their evidence in
support of their respective cases. The main plea of defendant no. 3 that
she was an adopted daughter of Yashoda has not been found to be
established by the trial Court, the first Appellate Court or by the High
Court. Thus, in our opinion, there was no serious cloud on the title of the
B
plaintiff so as to force him to seek the relief for declaration of title in the
instant case which was in fact based on the strength of the sale deed
executed by Buchamma, who was the sole surviving heir of Balaiah as
such succeeded to the property and had the right to execute the sale
deed in favour of the plaintiff.
c 13. We are fortified in our aforesaid conclusion by a decision in
Kure/la Naga Druva Yudaya Bhaskara Rao v. Galla Jani Kamma
(2008) 15 SCC 150, wherein this Court has examined the question of
maintainability of suit for possession without prayer for declaration of
title. This Court has referred to its earlier decision in Anathuja Sudhakar
D v. P. Buchi Reddy (2008) 4 SCC 594, wherein the plaintiff had purchased
the suit land under registered sale deed dated l 0.4.1957 and the defendant
did not claim the title with reference to any document but claimed to
have perfected title by adverse possession. It was held by this Court
tlrnt the said plea did not primafacie put any cloud over the plaintiff's
title calling him to file suit for declaration of title. Unless there is serious
E cloud over the title of the plaintiff there is no need to file suit for
declaration of title. The suit for possession was maintainable. This Court
laid down as follows
"16. The plaintiff had purchased the suit land under registered
sale deed dated 10.4.1957. Defendant did not claim title with
F reference to any document but claimed to have perfected title by
· adverse possession. A mere claim by the defendant that he- had
p.erfected his title by adverse possession, does not mean that a
cloud is raised over plaintiff's title and thatthe plaintiff who is the
owner, should file a suit for declaration of title. Unless the defendant
G raises a serious cloud over the title of the plaintiff, there is no
need to file a suit for declaration. The plaintiff had title and she
only wanted possession and therefore a suit for possession was
maintainable. We are fortified in this view by the following
observations of this Court in Anathu/a Sudhakar v. P. Buchi
Reddy (2008) 4 sec 594:
H
!MUDDASANJ VENKATA NARSAIAH (D) TH. LRS. v. 663
MUDDASANI SAROJANA [ARUN MISHRA, J.]

"14. We may however clarify that a prayer for declaration will be A
necessary only if the denial of title by the defendant or challenge
· to plaintiff's title raises a cloud on the title of plaintiff to the property.
A cloud is said to raise over a person's title, when some apparent
defect in his title to a property, or when some prima facie right of
a third party over it, is made out or shown. An action for declaration,
B
is the remedy to remove the cloud on the title to the property. On
the ~ther hand, where the plaintiff has clear title supported by
documents, if a trespasser without any claim to title or an interloper
without any apparent title, merely denies the plaintiff's title, it does
not amount to raising a cloud over the title of the plaintiff and it
will not be necessary for the plaintiff to sue for declaration ....." c
14. Coming to the question whether execution of sale deed in favour
of plaintiff has been proved, the High Court has held that the sale deed
has not been proved for want of examination of Buchamma. The High
Court has ignored the pleadings of the parties and the evidence on the
question of execution of sale deed whichestablishes that sale deed had D
been executed by Buchamma in favour of the plaintiff. In the written
statement filed on behalf of the defendants, the sale deed was denied
for want of knowledge. A perusal of same indicates that the authority of
Buchamma to execute the sale deed in favour of the plaintiff was put
into question. Defendant no. 3 Sarojana in her deposition in court did not
E
deny the fact that sale deed was executed by Buchamma in favour of
the plaintiff. She has stated that she was not aware whether Buchamma
has executed any sale deed in favour of the plaintiff. She only asserted
that she was the adopted daughter ofYashoda.
· IS. It is settled Jaw that denial for want of knowledge is no denial at
F
all. The execution of the sale deed was not specifically dei1ied in the
written statement. Once the execution of the sale deed was not disputed
it was not necessary to examine Buchamma to prove it. The provisions
contained in Order 8 Rule S require pleadings to be answered specifically
in written statement. This Court in Jahuri Sah & Ors. v. Dwarika
Prasad Jhunjhunwala AIR 1967 SC I 09 has laid down that if a G
defendant has no knowledge of a fact pleaded by the plaintiff is not
tantamount to a denial of existence of fact, not even an implied denial.
Same decision has been followed by Madhya Pradesh High Court in
Dhanbai Dlo J,ate Shri Cowash v. State of MP & Ors.. ) 978 MPLJ
717. The High Court of Madhya Pradesh in Sa111rath111al & Anr. v.
H
664 SUPREME COURT REPORTS [2016] 2 S.C.R.

A Union ofIndia, Ministry ofRailway & Ors. AIR 1959 MP 305 relying
on P.L.NK.L. Chettyar Firm v. Ko Lu Doke AIR 1934 Rang 278 and
Lakhmi Chand v. Ram Lal AIR 193 l All. 423, had also opined that if
the defendant did not know of a fact, denial of the knowledge of a
particular fact is not a derrial of the fact and has not even the effect of
putting the fact in issue.
B
16. Moreover, there was no effective cross-examination made on
the plaintiff's witnesses with respect to factum of execution of sale
deed, PW. I and PW-2 have not been cross examined as to factum of
execution of sale deed. The cross-examination is a matter of substance
not of procedure one is required to put one's own version in cross-
c examination of opponent. The effect of non cross-examination is that
the statement of witness has not been disputed. The effect ofnot cross-
examining the witnesses has been considered by this Court in Bhoju
Manda! & Ors. v. Debnath Bhagat & Ors. AIR 1963 SC 1906. This
Court repelled a submission on .the ground that same was not put either
•
D to the witnesses or suggested before the courts below. Party is required
to put his-version to the witness. ILno such questions are put the court
would presume that the witness account has been accepted as held in
Mis. Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd &
Anr. AIR 1958 Punjab 440. In Maroti Bansi Teti v. Radhabai w/o
Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down
E
that the matters sworn to by one party in the pleadings not challenged
either in pleadings or cross-examination by other party must be accepted
as fully established. The High Court of Calcutta in A.E.G Carapiet v.
A. Y. Derderian AIR 196 l Cal. 359 has laid down that the party is obliged
to put his case in cross-examination of witnesses of opposite party. The
F rule of putting one's version in cross-examination is one of essential
justice and not merely technical one. A Division Bench ofNagpur High
Court in Kuwarlal Amritlal v. Rekhlal Koduram & Ors. AIR 1950
Nagpur 83 has laid down that when attestation is not specifically challenged
and witness is not cross-examined regarding details of attestation, it is
sufficient for him to say that the document was attested. If the other
G side wants to challenge that statement, it is their duty, quite apart from
raising it in the pleadings, to cross-examine the witness along those lines.
A Division Bench of Patna High Court in Karnidan Sarda & Anr. v.
Sailaja Kanta Mitra AIR 1940 Patna 683 has laid down that it cannot
be too strongly emphasized that the system ofadministration ofjustice
H allows of cross-examination of opposite party's witnesses for the purpose
MUDDASANI VENKATA NARSAIAH (D) TH. LRS. v. 665
MUDDASANI SAROJANA [ARUN MISHRA, J.l

of testing their evidence, and it must be assumed that when the witnesses A
were not tested in that way, their evidence is to be ordinarily accepted.
In the aforesaid circumstances, the High Court has gravely erred in law
in reversing the findings of the first Appellate Court as to the factum of
execution of the sale deed in favour of the plaintiff.
17. It is also settled law that passing of consideration under a sale B
deed cannot be questioned by third party. Defendant no. 3 has not been
able to establish her case that she is an adopted daughter of the deceased
Yashoda and thus, she being the third party, could not have questioned
the execution of the sale deed by Buchamma on the ground of passing
of consideration as rightly laid down by the High Court ofM.P. in Pandit
Ramjilal Tiwari v. Vijai Kumar & Ors. 1970 MPLJ 50. The High Court c
of Patna has also held that passing of consideration can be questioned
by a party or his representative in Mt. Akli 1( Mt. Daho AIR I 928
Patna 44. Similar is the view of the High Court of Nagpur in Maroti
Bansi Teli (supra). Thus, the High Court has erred in law on this ground
also in dismissing the suit. D
18. Coming to the question whether the plaintiff was placed in
possession by Buchamma, in our opinion, it is apparent that Yashoda
was enjoying the property in her lifetime, though it appears that defendant
no. 3 was residing with Yashoda, but she has not claimed any derogatory
title to Yashoda nor has claimed adverse possession. Her claim of an E
adopted daughter ofYashoda has not been found established. The entry
of possession in some revenue records simplicitor does not confer any
right to defendant no. 3 to retain the possession of the property. The
property on the death of Yashoda had been passed on to Buchamma
being class Ilnd heir, as such she had the right to sell the property to
plaintiff. Even if Buchamma had not placed plaintiff in possession of F
property on strength of his title conferred by way of sale deed in question
he had right to recover possession. The first appellate Court was thus
right in decreeing the suit. The High Court has erred in allowing appeal.
19. In the circumstances, appeal is allowed, the impugned judgment
and order passed by the High Court dismissing the suit is set aside and G
the judgment and decree passed by the first Appellate Court is restored.
The parties to bear their own costs.
Nidhi Jain Appeal allowed.

H