TMI Blog2016 (5) TMI 1509X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary to examine Buchamma to prove it. The provisions contained in Order 8 Rule 5 require pleadings to be answered specifically in written statement. 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 passing of consideration. 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 - appeal allowed. - Civil Appeal No. 4816 of 2016 (Arising out of SLP (Civil) No. 13076 of 2007) - - - Dated:- 5-5-2016 - V. Gopala Gowda And Arun Mishra, JJ. For the Appellant : P. Vishwanatha Shetty, Sr. Adv., G.V.R. Choudar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 25.4.1981 executed 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. 7. On first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 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 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling 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 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 challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Shri Cowash v. State of M.P. and Ors. 1978 MPLJ 717. The High Court of Madhya Pradesh in Samrathmal and Anr. v. Union of India, Ministry of Railway and Ors. AIR 1959 MP 305 relying on P.L.N.K.L. Chettyar Firm v. Ko Lu Doke 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 and Ors. v. Debnath Bhagat and Ors. AIR 1963 SC 1906. This Court repelled a submission on the ground that same was not put either to the witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Pandit Ramjilal Tiwari v. Vijai Kumar and 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 confe ..... 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