Madhya Pradesh High Court
Mahendra Jain vs Bhooriyabai on 27 February, 2021
Author: Rajeev Kumar Shrivastava
-( 1 )- SA No. 08/2021
Mahendra Jain vs. Bhooriyabai and others
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(Single Bench)
SECOND APPEAL NO. 08 OF 2021
Mahendra Jain ..... APPELLANT
Versus
Bhooriyabai and others .....RESPONDENTS
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CORAM
Hon. Shri Justice Rajeev Kumar Shrivastava
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Appearance
Shri N.K.Gupta, learned senior counsel with Shri
S.D.Singh, Advocate for the appellant.
Shri Nitin Goyal, learned Panel Lawyer for the respondent
No.4/State.
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Whether approved for Reporting : No
Reserved on : 24/02/2021
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JUDGMENT
(Passed on 27th February, 2021)
This second appeal has been filed under
Section 100 of CPC against the impugned judgment and
decree dated 27/11/2020 passed by First Additional District Judge,
Ganj Basoda, District Guna in Civil Appeal No.04/2020, whereby
appeal filed by the respondents No.1 to 3/plaintiffs has been
allowed and the judgment and decree dated 17.12.2019 passed by
-( 2 )- SA No. 08/2021
Mahendra Jain vs. Bhooriyabai and others
First Civil Judge Class-2, Guna in Civil Suit No.80A/2018 has
been set aside and the plaintiffs' suit has been decreed and counter
claim filed by the defendants has been rejected.
2. The facts of the case in brief are that the respondents No.1
to 3/plaintiffs had filed suit for declaration of right and permanent
injunction with regard to the land bearing survey No. 331/1 area
3.021 hectare situated in village Bamooriya, Tehsil Aaron, District
Guna, with the pleading that the land in dispute belonged to
Sardar Singh, who was grandfather of the plaintiffs No.2 & 3,
namely, Patram Singh and Dinesh Singh, and father-in-law of
plaintiff No.1-Bhooriyabai. After death of Sardar Singh, the land
was recorded in the name of deceased's son Amar Singh and after
death of Amar Singh, the land is recorded in the name of plaintiffs
No.1 to 3, hence the respondents/plaintiffs are owner in possession
and cultivating the land in dispute. It is further pleaded in the
plaint that in mutation proceeding no objection was raised by the
defendant No.1-Mahendra Jain (appellant herein). It is alleged that
appellant-Mahendra Singh had purchased the land from deceased
Amar Singh vide registered sale deed dated 13.10.1995 but the
mutation was not got done by Mahendra Singh on the basis of
aforesaid sale deed during the lifetime of Amar Singh, therefore,
the alleged sale deed is a forged document and no right is accrued
in favour of appellant-Mahendra Singh as the disputed land was
ancestral property of the plaintiffs.
3. Written statement was filed by defendant No.1-Mahendra
Singh and it was pleaded that the land in dispute had been
purchased by the defendant No.1 from Late Amar Singh after
payment of full consideration. The plaintiffs are neither owner nor
in possession and the defendant No.1 is in possession, cultivating
-( 3 )- SA No. 08/2021
Mahendra Jain vs. Bhooriyabai and others
the land in dispute. Counter-claim was also filed by the appellant-
defendant No.1 against the respondents No.1 to 3-plaintiffs as they
were interfering in possession of the defendant No.1.
4. On the basis of aforesaid pleadings of the parties issues
were framed and trial Court after hearing the parties and
appreciating the evidence available on record, dismissed the civil
suit of the respondents No.1 to 3/plaintiffs and allowed the
counter-claim filed by the appellant/defendant Mahendra Jain and
the plaintiffs were directed to hand over vacant possession of the
suit land to the appellant/defendant. Against which, first appeal
under Section 96 of CPC was filed. The First Appellate Court
allowed the appeal of respondents No.1 to 3/plaintiffs and decreed
the suit filed by the plaintiffs and counter-claim filed by
appellant/defendant No.1-Mahendra Jain was dismissed. Hence,
this second appeal.
5. Learned counsel for the appellant-defendant No.1 has
submitted that the trial Court considering the counter claim had
granted decree in favour of appellant as under :-
v- ;g ?kksf"kr fd;k tkrk gS fd izfroknh dzekad 1 oknxzLr Hkwfe
fLFkr xzke cewfj;k rglhy vkjksu ftyk xquk losZ dzekad
[email protected] jdck 3-021 gSDVs;j dk fodz; i= fnukad 13-10-1995
ds vk/kkj ij Hkwfe Lokeh gSA
c- izfroknh dzekad 1 oknxzLr Hkwfe fLFkr xzke cewfj;k rglhy
vkjksu ftyk xquk losZ dzekad [email protected] jdck 3-021 gSDVs;j dk
fjDr vkf/kiR; oknhx.k ls izkIr djus dk vf/kdkjh gSA
l- izfroknh dzekad 1 ds i{k esa ,oa oknhx.k ds fo:) bl vk'k;
dh LFkkbZ fu"ks/kkKk tkjh dh tkrh gS fd oknhx.k] izfroknh
dzekad 1 ds LokfeRo] dh oknxzLr Hkwfe fLFkr xzke cewfj;k
rglhy vkjksu ftyk xquk losZ dzekad [email protected] jdck 3-021
gSDVs;j ij izfroknh dzekad 1 ds }kjk vkf/kiR; izkfIr ds
mijkar oknxzLr Hkwfe ij izfroknh dzekad 1 ds }kjk vkf/kiR;
esa u rks Lo;a gLr{ksi djs u fdlh vU; ls gLr{ksi djkosA
-( 4 )- SA No. 08/2021
Mahendra Jain vs. Bhooriyabai and others
Thereafter, First Appellate Court reversed the finding given by the
trial Court and set aside the decree holding as under :-
30- vr% fopkj.k U;k;ky; }kjk
[email protected] dz- 1 ds i{k esa ikfjr
t;i= dks vikLr djrs gq, [email protected] dk
okn izekf.kr ikrs gq, fuEukuqlkj t;if=r fd;k
tkrk gS %&
v& [email protected] dz-1 fookfnr
d`f"k Hkwfe losZ ua- [email protected]] jdck 3-021 gsDVs;j xze
cewfj;k] rglhy vkjksu] ftyk xquk esa rks Lo;a
gLr{ksi djsxk u fdlh ls djkosxkA
c& [email protected] fookfnr Hkwfe ds
iSid laifRr gksus ds dkj.k Lokeh vkSj vkf/kiR;/kkjh
gksuk ?kksf"kr fd;s tkrs gSaA
l& iz-Mh-1 dk iathd`r fodz;i=
[email protected] ds LoRoksa ds eqdkcys 'kwU; ,oa
fu"izHkkoh ?kksf"kr fd;k tkrk gSA
rn~uqlkj vkKkfIr cukbZ tkosA
6. Learned counsel for the appellant/defendant No.1 has
submitted that the transfer of ownership was done by deceased
Amar Singh vide registered sale deed dated 13.10.1995 and from
the date of execution of sale deed present appellant, whose counter
claim was decreed by the trial Court, became owner of the land in
dispute. Merely non-mutation of appellant's name in the revenue
record cannot adversely affect the ownership of the present
appellant. Since the registered sale deed executed by deceased
Amar Singh in favour of appellant had not been challenged
anywhere, therefore the aforesaid registered sale deed became
absolute and the First Appellate Court has travelled beyond the
record and has considered the facts which are not even pleaded in
the plaint and wrongly decreed the suit in favour of the
respondents No.1 to 3/plaintiffs. Appellant-purchaser had applied
for mutation immediately after purchase of the aforesaid land but
no action was taken by the concerning authorities with regard to
-( 5 )- SA No. 08/2021
Mahendra Jain vs. Bhooriyabai and others
mutation, therefore, the present appellant is bonafide. Hence,
prayed to admit the present second appeal.
7. Per Contra, learned State counsel has submitted that the
First Appellate Court has found that the trial Court has committed
error in allowing the counter claim of the appellant/defendant,
hence the present second appeal has no substance and deserves to
be dismissed.
8. Heard learned counsel for the rival parties and perused the
available record.
9. On perusal of record it is apparent that before the trial Court
it was an admitted position that despite execution of sale deed till
filing of civil suit no mutation was got done by the appellant-
purchaser and after 22 years of execution of sale deed first time
objection was raised, therefore, the trial Court has rightly
considered that considering the aforesaid transaction factual
matrix of the case is required to be seen. It is apparent that
purchaser Mahendra Jain had not proceeded for mutation
proceeding till 22 years of execution of sale deed. The appellant/
defendant No.1 is not residing in the same village rather he is a
businessman . In para 10 of cross-examination appellant
Mahendra Jain has admitted that he often used to come to Aron in
relation to his clothes business. Deputy Registrar Premnarayan
(PW-3) in para 2 of his cross-examination has admitted that in Ex.
D-1 it is not mentioned that the consideration amount was given in
front of this witness. Further this witness has stated that in the
record produced by him there is no thumb impression of the
witness to the sale deed nor there is any signature of Advocate
Chandraprakash Shrivastava, draft-maker of the deed.
10. The document execution witness Omprakash (PW-2) has
-( 6 )- SA No. 08/2021
Mahendra Jain vs. Bhooriyabai and others
admitted in para 6 of his cross-examination that no consideration
amount was given in his presence. Suresh (Document Execution
Witness No.4) has admitted that he is residing in Suresh Nagar
since last 16 years and during that period he never visited Aron.
11. Furthermore, it is apparent from the record that the disputed
property was inherited property, therefore, until the death of
Sardar Singh, Amar Singh was not having independent right over
the disputed property and as the property was of Joint Hindu
Family, therefore, Amar Singh was not having any right to transfer
the said property. Registration of sale deed took place in the year
1995 and Amar Singh died in the year 2003. The appellant-
defendant No.1 was not successful in establishing before the trial
Court that after death of Sardar Singh only Amar Singh inherited
the Joint Hindu Family property. Therefore, in para 19 of the
judgment the First Appellate Court has rightly observed as under :-
19- fopkj.k U;k;ky; us vius fu.kZ; pj.k&14
esa mHk;i{k ds chp eq[; fookn bl fcUnq ij
fofuf'pr fd;k gS fd fookfnr laifRr iS=d
laifRr gksdj vejflag ds gd esa lgnkf;dh dh
laifRr Fkh vkSj ljnkjflag dh e`R;q ds ckn
vejflag dks mRrjkf/kdkj esa izkIr gksdj i`Fk~d
laifRr FkhA fopkj.k U;k;ky; us bl laca/k esa
fu.kZ; pj.k&15 yxk;r 19 esa fgUnw fof/k dh
ferk{kjk 'kk[kk fgUnw mRRkjkf/kdkj vf/kfu;e 1956
ds izorZu ds iwoZ dh fLFkfr rFkk fgUnw
mRrjkf/kdkj vf/kfu;e 1956 ds izorZu ds mijkar
lgnkf;dh laifRr gksus ds laca/k esa ekuuh;
loksZPp U;k;ky; ds U;k; n`"Vkarksa dk m)gj.k
ys[k fd;k gSA fu.kZ; pj.k&19 esa v'kZuwjflag okys
ekuuh; loksZPp U;k;ky; ds U;k; n`"Vkar dk
mYys[k djrs gq, ;g Hkh fofu.khZRk fd;k gS fd
iS+=d iq:"k ls fojklr esa izkIr laifRr uhps dh
rhu ihf<+;ksa ds fgUnw iq:"kksa ds laca/k esa
lgnkf;dh laifRr jgsxh rFkk ,slh laifRr dh
izd`fr fgUnw mRrjkf/kdkj vf/kfu;e 1956 ds
izorZu ds mijkar lgnkf;dh laifRr gh jgsxhA
-( 7 )- SA No. 08/2021
Mahendra Jain vs. Bhooriyabai and others
12. There is no pleading of appellant/defendant No.1 that the
disputed property was self-acquired property by Amar Singh.
Therefore, in the light of the judgment in Ass Kaur (Smt.)
(Deceased) by LRs vs. Kartar Singh (Dead) by LRs and others
[(2007) 5 SCC 561], all the successors are co-parceners.
13. In second appeal under Section 100 of CPC, the
scope of exercise of the jurisdiction by the High Court is
limited to the substantial question of law. Substantial
question of law must be debatable, not previously settled
by law of the land or a binding precedent and answer to
the same will have a material bearing as to the rights of
parties before the Court. Existence of a substantial
question of law is sine-qua-non for the exercise of
jurisdiction under the provisions of Section 100 of CPC.
The second appeal does not lie on the ground of
erroneous findings of facts based on appreciation of the
relevant evidence.
14. In view of the foregoing discussion, this Court is of the
considered view that the First Appellate Court has rightly reversed
the decree passed by the trial Court by holding that the disputed
property was not self-acquired property rather Amar Singh was co-
parcener and this finding does not call for any interference by this
Court. There is no substantial question of law involved in relation
to the findings given by the First Appellate Court. Consequently,
present second appeal is hereby dismissed being devoid of merits.
(Rajeev Kumar Shrivastava)
(yog) Judge.
YOGESH VERMA
2021.02.27
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'
15:46:31 +05'30'
