NON REPORTABLE

IN THE 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  

JUDGMENT

AFTAB ALAM, J.

1. 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

6,  1987  in  Title  Appeal  No.22/79.  The  plaintiff’s  second  appeal  was  

dismissed by the High Court in limine.  

2. In  the  SLP  filed  against  the  High  Court  judgment,  the  following  

question of law was framed on behalf of the appellants:

“Whether  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 Property Act?”

3. Having regard to the question of law, this Court while granting leave  

made the following order:  

“The legal question formulated depends on the construction of  Section  117  of  the  Transfer  of  Property  Act.  It  requires  consideration.”

4. 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:

“These  two  Hukumnamas  are  unregistered  document.  Therefore, admittedly by virtue of these two Hukumnamas only  no title  could have been conferred upon the alleged settlees.  According 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.”

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5. 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  

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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.  

There was 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.

6. 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.

7. The appeal stands concluded by findings of fact. We find no merit in  

the appeal. It is accordingly dismissed, but with no costs.  

……………………………….J   ( AFTAB ALAM )

……………………………….J  ( T.S. THAKUR )

New Delhi, July 6, 2010

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