Shahjad Khan @ Shahjade vs Shakeena Bee
2021 Latest Caselaw 8374 MP

                                                         1                                 SA-1341-2021
                              The High Court Of Madhya Pradesh
                                        SA No. 1341 of 2021
                               (SHAHJAD KHAN @ SHAHJADE AND OTHERS Vs SHAKEENA BEE AND OTHERS)


                      Jabalpur, Dated : 07-12-2021
                            Shri Sourabh Singh Thakur, learned counsel for the appellants.

                            None present for the respondents.

Appellants were defendants and respondent nos. 1 and 2 are the plaintiffs before the trial Court (hereinafter parties are addressed to as plaintiffs and defendants as per their position in civil suit) who had filed a suit

for declaration of title, partition, possession and permanent injunction. Plaintiffs averred in the civil suit that plaintiffs namely Sakina Bi and Smt. Rabiya Bi are daughters of late Saiyad Khan. Defendants namely Shahzad Khan, Anees Khan and Rafiq Khan were brothers and Salika was daughter of Saiyad Khan. Rafiq Khan expired and all others defendants are legal heirs of Rafiq Khan. Saiyad Khan was owner of land bearing Khasra Nos. 31, 32 and 33 measuring total 15.33 acres situated in Village Doraha Tahsil Shyampur District Sehore. Plaintiffs had interest in the suit land. Defendants got name mutated in their names by order of Tahsildar on 12.8.2004. Defendants had

not informed the plaintiffs regarding mutation proceedings. No notice was issued by Tahsildar in respect of mutation proceeding. Defendant no.1 had assured plaintiffs that whenever they will demand share they will be given possession. Plaintiffs are said to have demanded their share in May, 2010, but defendants refused to give their share. Thereafter, appeal was filed challenging the said mutation order dated 12.8.2004, but appeal was dismissed as barred by limitation on 31.3.2015. Under the said circumstances, plaintiffs had filed a suit. Learned trial Court held that plaintiffs as per Muslim Law are owner of part of disputed property which fell in their share. Plaintiffs had not executed registered relinquishment deed and, therefore, documents filed by defendants in respect of mutation proceeding and no objection of plaintiffs were disbelieved and order dated 12.8.2004 was Signature SAN Verified Not declared to be not binding on plaintiffs. Suit filed by the plaintiffs was Digitally signed by ARVIND KUMAR DUBEY Date: 2021.12.09 11:13:03 IST 2 SA-1341-2021 decreed.

Defendants challenged the judgment and decree before the Appellate Court. Appellate Court affirmed the order passed by the trial Court. It had been held that relinquishment deed was not registered under Section 17 (1)(b) of Registration Act, and therefore, it cannot be said that plaintiffs had

relinquished their rights.

Appellants had filed this appeal challenging concurrent judgment and decree passed by the trial Court and appellate Court. Appellants had proposed two substantial questions of law before this Court:-

(i) Civil Suit filed by the plaintiffs was barred under Article 58 of the Limitation Act, 1963?

(ii) Trial Court as well as appellate Court committed an error in not taking into consideration documents Ex. D/26-C to Ex. 31-C before Tahsildar?

(iii) Whether plaintiffs were barred by principle of estoppel as they had given consent for partition and, therefore, they cannot file a suit for partition, possession and declaration of title? Heard learned counsel for the appellants.

Relinquishment deed is required to be registered and properly stamped in accordance with law. Ex. D/-26-C is affidavit of Shahjad Khan, Ex. D/27-C is affidavit of Anees Khan, Ex. 28-C is statement of Shalika Bi, Ex. D/29-C is statement of Shafika Bi, Ex. D/30-C is statement of Rabia Bi and Ex. D/31-C is statement of Nizad Bi. Trial Court as well as appellate Court rightly did not take into consideration affidavit and statements which were recorded by Tahsildar. No document was placed on record that plaintiffs were given an opportunity of cross examination in aforesaid proceedings. In revenue proceedings, strict law of evidence and civil procedure code are not followed. No relinquishment deed was filed by defendants before Court below.

Defendants had argued that suit was barred by limitation. It is admitted Signature SAN Not Verified

Digitally signed by ARVIND KUMAR DUBEY Date: 2021.12.09 11:13:03 IST 3 SA-1341-2021 fact that mutation order was passed by Tahsildar on 12.8.2004. As per Article 65 of the Limitation Act 1963, suit for possession of immovable property or any interest therein based on title is to be filed within a period of 12 years. If 12 years is taken from 12.8.2004, outer limit for filing suit will be 12.8.2016. In this case suit is filed on 19.8.2015, therefore, ex facie first substantial question of law proposed by the appellants does not arise. Second and third substantial questions of law also do not arise before this Court.

Accordingly, Second Appeal is dismissed.

(VISHAL DHAGAT) JUDGE

DUBEY/-

Signature
 SAN      Not
Verified

Digitally signed by
ARVIND KUMAR
DUBEY
Date: 2021.12.09
11:13:03 IST