Smt. Rupabai vs Rakesh Kumar Raikwar
2021 Latest Caselaw 8767 MP

1 SA-325-2021 The High Court Of Madhya Pradesh SA No. 325 of 2021 (SMT. RUPABAI Vs RAKESH KUMAR RAIKWAR)

Jabalpur, Dated : 14-12-2021 Shri Ankit Saxena, learned counsel for the appellant.

This second appeal has been filed by the defendant/appellant being aggrieved of judgment dated 29.01.2021 passed in Civil Appeal No.78-

A/2019 passed by 14th Additional District Judge, Bhopal reversing the judgment and decree dated 25.02.2009 passed in Regular Civil Suit No.256-

A/2011 by the Civil Judge, Class-I, Bhopal.

Brief facts of the present case are that plaintiff had purchased plot No.54 contained in survey No.51, 52/2 measuring 20x30=600 sq.ft. vide registered sale-deed dated 26.06.2009. This sale-deed was executed in favour of the plaintiff wherein boundaries of Plot No.54 are mentioned as in East Plot No.53, in West Plot No.55, in North Plot No.39 and road on South. This sale-deed was executed by Badam Singh who had purchased plot No.54 vide sale-deed in 28.01.2009 (Ex.D-2) from Power of Attorney Holder of Khuman Singh S/o Omkar namely Ramswaroop.

Appellant's contention is that appellant too had purchased a plot vide registered sale-deed dated 03.07.2009 (Ex.D-1) which was also executed in favour of the appellant by the same person.

Appellant's contention is that in the first round of litigation since plaintiff had not claimed relief for possession therefore, suit was dismissed. On filing Civil Appeal matter was remanded to the trial Court with liberty to the plaintiff to amend the plaint. Thereafter, plaintiff had filed an application for amendment that was allowed and he valued suit for possession at Rs.1000/- and had paid court fees accordingly.

It is contention of learned counsel for the appellant that suit was not properly valued. It is submitted that learned Trial Court has dismissed the suit and being aggrieved of said dismissal plaintiff had filed regular appeal in Signature Not Verified SAN which impugned judgment has been passed on 29.01.2021.

Digitally signed by MOHD TABISH KHAN Date: 2021.12.16 17:43:16 IST 2 SA-325-2021 Shri Ankit Saxena, learned counsel for the appellant submits that firstly, suit was not properly valued for seeking possession and adequate court fees was not paid. Secondly, without seeking relief of cancellation of subsequent sale-deed executed in favour of the present appellant on 03.07.2009 no effective relief could have been granted by the First Appellate Court.

After hearing Shri Ankit Saxena and going through the record, it is evident that issue in regard to payment of court fees was framed by the learned Trial Court as issue no.6.

Trial Court had framed an issue as to whether the suit is properly valued and adequate court fees has been paid or not? This issue has been decided in favour of the plaintiff. It is evident that this aspect was not challenged by the present appellant by filing any appeal or miscellaneous proceedings. Therefore, as far as, this issue of payment of court fees and valuation of the suit are concern they have attained finality.

Therefore, the only issue which remains to be adjudicated in the factual backdrop of the case is as to whether without seeking cancellation of sale- deed dated 03.07.2009 which was executed in favour of the present appellant, whether the First Appellate Court granted adequate relief in favour of the plaintiff.

It has come on record that in fact in sale-deed dated 03.07.2009 originally seller had mentioned plot no.53. Though appellant herein submits that mistake was corrected vide correction deed dated 10.03.2011 (Ex.D-2) but this aspect has been overlooked by the learned First Appellate Court.

However, a perusal of the impugned judgment reveals that learned First Appellate Court has minutely discussed this aspect and has mentioned that the boundaries which are mentioned in the sale-deed (Ex.D-1) which was allegedly executed in favour of the present appellant on 03.07.2009 reflects that in East boundary of the purchased plot has been shown to be plot No.52, property of Vishnu Kumar, in West plot No.54 property of Badamilal, in

Signature Not Verified SAN North plot No.38 property of Nayan Devi and road on South. These

Digitally signed by MOHD TABISH KHAN Date: 2021.12.16 17:43:16 IST 3 SA-325-2021 boundaries too have been amended vide amendment-deed dated 10.03.2011 (Ex.D-2) but on the said document as it is not registered, defendant counsel had expressed that he does not wish to impound it. Ramswaroop had knowledge of selling plot no.54 to Badam Singh, thus in sale-deed (Ex D-1) there is mention of plot of Badam Singh on North. DW-2 could not prove that plot No.53 is his property and not of the defendant as Court had refused to mark it as an exhibit.

Secondly, it has come on record and has been discussed by the first Appellate Court that present appellant claimed that he was in possession of plot No.54 since 1993 when he was put into possession by Lalji Ram on the basis of an agreement to sale but neither that agreement to sale was produced

on record nor any explanation was given that when defendant/appellant had entered into an agreement to sale with said Lalji Ram then under what circumstances sale-deed was executed in his favour by Ramswaroop. Ramswaroop acting as Power of Attorney Holder of Khuman Singh. There is no proof that DW-2 Shyamlal is registered owner of plot No.53. In fact, Ramswaroop Power of Attorney Holder of Khuman Singh had knowledge of earlier sale of plot No.54 in favour of Badam Singh and had therefore sold plot No.53 in favour of the defendant, but later on for the unknown reasons or in collusion with Shyamlal changed not only the plot number but also its boundaries, which is per-se an illegal transaction, as both could not have been amended as it changed the nature of earlier document.

Thus, appreciation of facts and evidence as has been made by learned First Appellate Court leaves no iota of doubt that this second appeal does not give rise to any substantial questions of law, therefore, appeal fails and is dismissed.

Record of the trial Court and the first appellate Court be transmitted back to the court concerned immediately.

Signature Not Verified SAN

(VIVEK AGARWAL) Digitally signed by MOHD TABISH KHAN Date: 2021.12.16 17:43:16 IST 4 SA-325-2021 JUDGE Tabish

Signature Not Verified SAN

Digitally signed by MOHD TABISH KHAN Date: 2021.12.16 17:43:16 IST