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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4816  OF 2016 [Arising out of SLP (Civil) No. 13076 of 2007]

Muddasani Venkata Narsaiah (D) Th. Lrs. .. Appellants

Versus

Muddasani Sarojana .. Respondent

J U D G M E N T

Arun Mishra, J.

1. 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 Appeal and restoring the  

judgment and decree of the trial Court dismissing the suit filed by the plaintiff.    

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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  of  late  Rajaiah.   Both the sons  predeceased their  father  Rajaiah.  

Plaintiff is son of Veeraiah and Yashoda is wife of the said late Balaiah.   After the death   

of Rajaiah, 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.  Gandla  Buchamma,  surviving  sister  of  late  Balaiah  

succeeded  to  the  property  and  sold  it  to  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 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 of Yashoda.   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 of Yashoda as her daughter.   Thus,  

Buchamma did not  succeed to  the property.   The adopted  daughter  defendant  no.  3  

succeeded to property by inheritance.  Defendants had no knowledge of the registered  

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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 of Yashoda 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 of Yashoda.  A specific issue was also  

framed by the trial Court on the question whether on death of Yashoda, Buchamma, who  

is the surviving sister of Yashoda’s late husband Balaiah, became heir and owner of the  

said property and whether the plaintiff had acquired the title to the suit property vide  

registered sale deed dated 25.4.1981executed by Buchamma in favour of the plaintiff.   

6. The  trial  Court  while  dismissing  the  suit  inter  alia found  that  passing  of  

consideration  has  not  been  proved  under  the  sale  deed  and  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  of  Yashoda  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  

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 sister of late Balaiah.

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7. On first  appeal  being preferred into the Court of  1st Additional  District  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 II heir being the only surviving sister 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  Balaiah/Yashoda.    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  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 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  

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title as Buchamma acquired the suit property by way of inheritance from the absolute  

owner and 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 Buchamma and in the circumstances it was necessary for the plaintiff to file a suit for  

declaration of title.  The High Court observed that the suit for possession and mesne  

profits  thus could not  have been filed and allowed the second appeal.     Aggrieved  

thereby, the plaintiff has come up in the appeal before us.   

9. It was submitted on behalf of the appellant that the High Court 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 question the passing  

of consideration under the sale deed.  Buchamma was the sole Class II heir left.  

10. Per  contra,  the  learned  counsel  for  the  respondents  urged  that  no  case  of  

interference was made out.   It was necessary for plaintiff to seek relief for declaration of  

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title.  The suit has rightly been dismissed.   The defendant no. 3 was in possession even  

in the lifetime of Yashoda.  It is submitted that even if her case of adoption has not been  

found to be established, the plaintiff has not been able to establish his entitlement to  

recover the possession.

11. In the instant case, as per concurrent findings of all the courts, 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 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 favour.   

12 In the aforesaid background of facts,  we come to the question whether it  was  

necessary to seek relief or declaration of title.  In our opinion, the plaintiff has filed the  

suit for possession on the strength for title and not only on the basis of prior possession.  

It was not a summary suit for ejectment filed 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 well as on the  

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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 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.

13. We are fortified in our aforesaid conclusion by a decision in Kurella 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 Anathula Sudhakar  

v. P. Buchi Reddy (2008) 4 SCC 594, wherein the plaintiff had purchased the suit land  

under registered sale deed dated 10.4.1957 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 that the said plea did not  prima facie put any cloud over the  

plaintiff’s title calling him to file suit for declaration of title.  Unless there is serious  

cloud over the title of the plaintiff there is no need to file suit for declaration of title. The  

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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 reference to any  document but claimed to have perfected title by adverse possession. A mere  claim by the defendant that he had perfected his title by adverse possession,  does  not  mean  that  a  cloud  is  raised  over  plaintiff's  title  and  that  the  plaintiff who is the owner, should file a suit for declaration of title. Unless  the defendant 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  Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594:

“14. We may however clarify that a prayer for declaration will  be 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, is  the remedy to remove the cloud on the title to the property. On the  other  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. ...."

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 which establishes that sale deed  

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had 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 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  

of Yashoda.   

15. It  is  settled  law that  denial  for  want  of  knowledge  is  no  denial  at  all.   The  

execution of the sale deed was not specifically denied 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  5  require  pleadings  to  be  

answered specifically in written statement.  This Court in Jahuri Sah & Ors. v. Dwarika   

Prasad  Jhunjhunwala  AIR 1967  SC 109  has  laid  down that  if  a  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 D/o Late Shri Cowash v. State of M.P. & Ors. 1978 MPLJ 717.  

The High Court of Madhya Pradesh in Samrathmal & Anr. v. Union of India, Ministry of   

Railway & Ors. AIR 1959 MP 305 relying on P.L.N.K.L. Chettyar Firm v. Ko Lu Doke  

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AIR 1934 Rang 278 and Lakhmi Chand v. Ram Lal AIR 1931 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 denial of the fact and has not even the effect of putting the fact in issue.   

16. Moreover,  there  was  no  effective  cross-examination  made  on  the  plaintiff’s  

witnesses with respect to factum of execution of sale deed, PW.1 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-

examination of opponent.  The effect of non cross-examination is that the statement of  

witness has not been disputed. The effect of not cross-examining the witnesses has been  

considered by this Court in Bhoju Mandal & Ors. v. Debnath Bhagat & Ors. AIR 1963  

SC 1906. This Court repelled a  submission  on  the  ground  that  same  was  not  put   

either  to  the       witnesses or suggested before the courts below.  Party is required to  

put his version to the witness. If no such questions are put the court would presume that  

the  witness  account  has  been  accepted  as  held  in  M/s.  Chuni  Lal  Dwarka  Nath  v.   

Hartford Fire Insurance Co. Ltd. & Anr. AIR 1958 Punjab 440.   In Maroti Bansi Teli v.   

Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down 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 1961 Cal. 359 has laid down that  

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the party is obliged to put his case in cross-examination of witnesses of opposite party.  

The rule of putting one’s version in cross-examination is one of essential justice and not  

merely technical one.  A Division Bench of Nagpur 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 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 of administration of  

justice  allows of  cross-examination  of  opposite  party’s  witnesses  for  the  purpose  of  

testing their evidence, and it must be assumed that when the witnesses 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 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  

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passing of  consideration  as  rightly  laid down by the  High Court  of  M.P.  in  Pandit   

Ramjilal Tiwari v. Vijai Kumar & Ors. 1970 MPLJ 50. The High Court of Patna has also  

held that passing of consideration can be questioned by a party or his representative in  

Mt. Akli v. Mt. Daho  AIR 1928 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.    

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 adopted daughter of Yashoda 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 IInd heir, as such she had the right to sell the  

property to  plaintiff.    Even if  Buchamma had not  placed plaintiff  in  possession of  

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.

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19. In the circumstances, appeal is allowed, the impugned judgment and 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.   The parties to bear their own costs.   

…………………………J. (V. Gopala Gowda)  

New Delhi; ………………………..J. May   5, 2016. (Arun Mishra)

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ITEM NO.1A-For Judgment       COURT NO.9               SECTION XIIA                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Civil Appeal  No(s).4816/2016 @ SLP(C)No.13076/2007   MUDDASANI VENKATA NARSAIAH(D)TR.LRS.   Appellant(s)                                 VERSUS MUDDASANI SAROJANA                                 Respondent(s) Date : 05/05/2016 This appeal was called on for pronouncement of  JUDGMENT today. For Appellant(s)                      Mr. K. Shivraj Choudhuri,Adv.                       For Respondent(s)                      Mr. Sridhar Potaraju,Adv.                       

Hon'ble  Mr.  Justice  Arun  Mishra  pronounced  the  judgment of the Bench comprising Hon'ble Mr. Justice  V.Gopala Gowda and His Lordship.

Leave granted. The  appeal  is  allowed  in  terms  of  the  signed  

reportable Judgment.  Pending application(s), if any, stand(s) disposed  

of.

      (VINOD KUMAR JHA)        (MALA KUMARI SHARMA)       COURT MASTER       COURT MASTER

  (Signed Reportable judgment is placed on the file)

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