Geeta Singh vs Smt. Kamla Devi
2021 Latest Caselaw 347 MP

     HIGH COURT OF MADHYA PRADESH AT JABALPUR


                               S.A No. 1260/2020

                                   Geeta Singh
                                         Vs.
                            Smt. Kamla Devi & Ors.


         [Single Bench : Hon'ble Smt. Justice Anjuli Palo]
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       Shri Pranay Verma, counsel for the appellant.
       Shri Hanmant Rao Naidu, counsel for the respondents No. 1 to 3.
       Shri Anand Shukla, Panel Lawyer for the respondent No.4/State
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                                   JUDGMENT

(01/03/2021)

This second appeal has been filed by the appellant/plaintiff

being aggrieved by the judgment and decree dated 30.07.2020, passed

by the First Addl. District Judge, Mauganj District Rewa (MP) in

Regular Civil Appeals No. 44A/2017 and 40A/2017 arising out of the

judgment and decree dated 19.05.2017, passed by the Second Civil

Judge, Class II, Mauganj, District Rewa in Civil Suit No. 44A/2013.

2. The appellant/plaintiff's case is that she belongs to the

family of Baramdeen Singh and Trilok Singh who are real brothers.

In the year 1980, the suit property was mutually partitioned between

them including property bearing Khasra No. 464/1 admeasuring 0.12

acre land. 0.06 acre of land was received by both Trilok Singh and S.A.No. 1260/2020

Baramdeen Singh individually. Appellant/plaintiff is the daughter of

Baramdeen. Trilok Singh had no children therefore, appellant/plaintiff

resided with him as his daughter and received his share in the suit

property by Batwara Pulli dated 05.02.2006. She contended that

since 1982, appellant/plaintiff was in possession of the suit lands and

resided in the house situated on Khasra No. 464/1. In the year 2009,

Trilok Singh ousted her from the said house and locked the premises.

He lodged a complaint against her in the police station. As the suit

property was recorded in the name of Trilok Singh, he sold the suit

land No.2 through registered sale deed in favour of respondents No. 2

to 4. Appellant/plaintiff has alleged that she is in possession of the

disputed lands, therefore, Trilok Singh has no right to transfer the suit

property. Hence, the appellant/plaintiff claimed that the aforesaid

sale deeds and mutation of names of respondent No. 2 to 4 over the

suit lands be declared null and void. She also prayed for declaration

of title over the disputed lands situated at village Sarai Sengar, Tehsil

Mauganj, District Rewa bearing Khasra Nos. 447/2, 464/1, 563, 425,

429, 430, 240, 237, 248, 448, 465 total area admeasuring 5.36 acres.

She further prayed to declare the mutation order dated 30.09.2010

null and void and issue permanent injunction restraining the

interference of the respondents over the aforesaid lands.

3. Respondents denied the appellant's contentions and

submitted that, suit property was under the joint possession of

Baramdeen Singh and Trilok Singh. Bhaiyyalal Singh was the son of S.A.No. 1260/2020

Baramdeen Singh who died in the year 2008 and Baramdeen Singh

died in the year 2012. Dharmendra Singh is the son of Bhaiyyalal.

The entire property was partitioned between Dharmendra Singh and

Trilok Singh on 04.05.2010. Consequently, Trilok Singh received his

share in the suit property, therefore, he has the right to transfer his

share. Accordingly, he sold his properties to respondents No. 2 to 4.

They also contended that appellant has no right in the properties,

hence, the appellant is not entitled for any of the relief claimed by

her.

4. The suit filed by the appellants has been dismissed by the

trial Court holding that the appellant has not proved that any partition

has been effected between her and Trilok Singh nor the Batwara Pulli

dated 05.02.2006 has been produced by her. Thus, she has no right

over the suit properties.

5. A counter claim was filed by the respondents for

declaration of exclusive title over the suit lands and for permanent

injunction, restraining the plaintiff from interfering with their

possession over the same. The counter claim was dismissed by the

learned trial Court holding that neither it was proved that Trilok

Singh's has any title over the suit land No.2 nor it was proved that the

present appellant created any interference in the possession of

respondent Nos.1 to 4.

S.A.No. 1260/2020

6. Aforesaid decree has been challenged by

appellant/plaintiff as well as Trilok Singh and respondent Nos.1 to 3

in the first appeal. Learned first Appellate Court passed a common

judgment in Civil Appeal No.40A/2017 and 44A/2017 dismissing the

appeal filed by the appellant/plaintiff and a decree was passed in

favour of the respondents setting aside the findings of the trial Court.

The following decree was passed by the first Appellate Court :

^^1- vihykFkhZ xhrk fla g dh vihy Ø0&44,@17 vLohdkj djrs gq , vkyks P ; fu.kZ ; o vkKfIr dh iq f "V dh tkrh gS A 2- vihykFkhZ x .k Jherh deyk fla g o vU; dh iz f rnkok fujLrh ds la c a / k es a iz L rq r vihy Ø040,@17 Lohdkj djrs gq , iz f rnkok fujLrh ds la c a / k es a vkyks P ; fu.kZ ; dks vikLr fd;k x;kA fo}ku fopkj.k U;k;ky; ds }kjk ?kks f "kr fu.kZ ; vkS j t;i= fnuka d 19-05-2017 iz f rnkos ds la c a / k es a fujLr fd;k tkrk gS A vihy Ø040,@17 dh vihykFkhZ Ø0&01 dks xz k e ljbZ ls a x j rglhy emxa t fLFkr Hkw f e los Z Ø0&425 jdok 0-279,0] 429 jdok 0- 089,0] 430 jdok 0-113,0] 883 jdok 0-0570,0] 827 jdok 0-012,0] 884 jdok 0-648,0 es a ls 0-040 ,oa Ø0&02 dks xz k e ljbZ dk Hkw f e los Z Ø0&246 jdok 0-304,0] 433 jdok 0-89,0] [email protected] jdok 0-202,0] 563 jdok 0-636,0] ,oa vihykFkhZ Ø0&3 dks xz k e ljbZ ls a x j dh Hkw f e los Z Ø0&240 jdok 0-231,0] 237 jdok 0-138,0] [email protected]@2 jdok 0-142,0] 884 jdok 0-648,0 es a ls 0-016] 432 jdok 0-069 es a ls 0-061,0 ,oa vihykFkhZ Ø0&04 dks xz k e ljbZ ls a x j dh Hkw f e los Z Ø0& 587 jdok 0-045,0] [email protected] jdok 0-045,0] 884 jdok 0-592,0] 432 jdok 0-008,0] [email protected] jdok 0-048,0] 465 jdok 0-105,0] dk Hkw f eLokeh LoRo dk vkf/kiR;/kkjh ?kks f "kr fd;k tkrk gS ,oa ukeka r j.k ia t h Ø0&22 fnuka d 10-04-2007 dk uk;c rglhynkj ns o rkykc }kjk ikfjr ukeka r j.k vkns ' k fof/k fo:) gks u s ls 'kw U ; gS A iz f rnkos dh iz R ;FkhZ oknxz L r Hkw f e ij iz f rnkos ds vihykFkhZ x .k ds LoRo vkS j vkf/kiR; es a Lo;a ;k vius vfHkdrkZ v ks a ds ek/;e ls dks b Z voS / k gLr{ks i u djs a A 3- iz d j.k dh ifjfLFkfr;ks a es a iz f rnkos dh iz R ;FkhZ @ iz f roknh Lo;a dk rFkk iz f rnkos ds vihykFkhZ x [email protected] dk okn ogu djs a x hA 4- vf/koDrk 'kq Y d iz e kf.kr gks u s ij vFkok fue;kuq l kj ns ;

gks x kA** S.A.No. 1260/2020

7. In the present appeal, the impugned judgments and decree

passed by both the Courts below have been challenged by the

appellant on the grounds that Courts below have erred in holding that

the appellant has failed to proved any partition which have been

effected between the appellant and Trilok Singh merely for non

production of Batwara Pulli dated 05.02.2006. The suit land was

given to her voluntarily by Trilok Singh, thus, he had no right to sell

the suit lands in favour of respondents/defendants Nos. 2 to 4.

Therefore, the sale deed executed by him do not confer any title to the

respondents/defendants No. 2 to 4 over the suit land nor it is also

submitted by the appellant that there is no material on record to show

that the suit land No.2 has also been given to Trilok Singh in the

partition. Therefore, all these sale deeds are liable to be declared null

and void. Lower Appellate Court illegally reversed the findings of

the trial Court holding that sale deeds which were executed in respect

of suit lands No.2 are legal. Appellant/plaintiff's contention is that

respondents/defendants Nos.2 to 4 were never in actual possession of

the suit property. Thus, the impugned judgments passed by the Courts

below are liable to be set aside.

8. Learned counsel for the appellant/plaintiff has proposed

the following substantial question of law :-

A. Whether from the entire oral as well as the documentary evidence available on record plaintiff has legally proved that the suit lands had been allotted to her by Trilok Singh in a partition effected S.A.No. 1260/2020

between them which evidence has however failed to be appreciated in proper perspective by the Courts below?

B. Whether in view of the partition having been effected by Trilok Singh voluntarily between himself and plaintiff, the right to plaintiff to be allotted the suit lands in such partition can be denied to her only on the ground of her not being his blood relative?

C. Whether in view of the suit lands having already been allotted by Trilok Singh to plaintiff in a partition effected between them, the sale deeds executed by Trilok Singh in favour of defendants 2 to 4 are null and void and without any authority?

D. Whether the Lower Appellate Court had committed an error of law in reversing the finding of the trial Court in holding that the sale deeds executed by Trilok Singh favor of defendants 2 to 4 with respect to suit lands No. 2 are also legal?

E. Whether from the entire material available on record plaintiff has legally proved that she is in possession of the entire suit lands whereas defendants 2 to 4 have not led any evidence to prove that they have ever been in possession of the same?

9. Heard learned counsel for the parties. Perused the impugned

judgments and record.

10. Appellant/plaintiff claimed her title over the suit property on

the basis of one 'Batwara Pulli' dated 05.02.2006 contending that the

properties were partitioned between appellant and Trilok Singh.

However, the Batwara Pulli dated 05.02.2006 which is the material

evidence has not been produced before the trial Court. Suit property was S.A.No. 1260/2020

allotted to Trilok Singh vide partition deed dated 05.04.2010. Exhibit D-

03, 05, 16, 17, 24, 25 and 39 prove that Trilok Singh was the owner and

possession holder of the aforesaid properties. Admittedly,

appellant/plaintiff is the niece of Trilok Singh who has no legal right in

the property as a 'successor'. It is not the appellant's case that she was

adopted by Trilok Singh. Trilok Singh had filed written submission in the

suit wherein he has denied the execution of so called Batwara Pulli. He

also denied that appellant was residing with him as his daughter. The

trial Court has held that the appellant has no right in the suit property as a

'successor' which belongs to Trilok Singh. The lower Appellate Court

rightly held that under Section 178(A) of the MP Land Revenue Code,

she has no right to claim any share in the suit property and gave its

finding with regard to the same in paragraph 27 of the impugned

judgment. It also held that Namantaran Panji (mutation register) does not

confer any title of the appellant and same was declared null and void by

the lower Appellate Court below. She also failed to prove her possession

over the suit properties. Thus, the appeal was rightly dismissed by the

lower Appellate Court.

11. Learned counsel for the appellant also submitted that during

the pendency of the appeal before the lower Appellate Court, appellant

filed an application on Order 41 Rule 27 of CPC for taking additional

documents on record in which the Batwara Pulli dated 05.02.2006 was

produced by the appellant but the lower Appellate Court dismissed the

aforesaid application. Paragraphs 16 to 18 of the impugned judgment S.A.No. 1260/2020

passed by the lower Appellate Court show that the appellant failed to give

any explanation for non-production of the document at appropriate stage

before the trial Court. Therefore, the prayer was right dismissed by the

lower Appellate Court.

12. In case of Sopanrao and Anr. vs. Syed Mehmood and Ors.

reported in (2019) 7 SCC 76, the Supreme Court has held as under:

"13. At this stage, it would be pertinent to point out that the appellants/defendants, during the course of this appeal, have filed a number of applications to place on record certain documents which were not on the record of the trial court. No explanation has been given in any of these applications as to why these documents were not filed in the trial court. These documents cannot be looked into and entertained at this stage. The defendants did not file these documents before the trial court. No application was filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 for leading additional evidence before the first appellate court or even before the High Court. Even the applications filed before us do not set out any reasons for not filing these documents earlier and do not meet the requirements of Order XLI Rule 27 of the Code of Civil Procedure. Hence, the applications are rejected and the documents cannot be taken into consideration."

13. In case of Kastur Chand Jain vs. Keshri Singh, reported in

2020 (3) MPLJ 414, while dealing with similar situation, the Coordinate

Bench of this Court has observed as under :

"22. So far as application under Order XLI, Rule 27, Civil Procedure Code is concerned, it is imperative for the appellant to show the due diligence. In absence of due diligence, application under Order XLI, Rule 27 cannot be accepted. Here the appellant/plaintiff has placed S.A.No. 1260/2020

the documents received by him under Right to Information Act, 2005 but they are being filed at a belated stage and since this Court has already decided the controversy on legal question in which the present documents have no material bearing, therefore, acceptance of application and thereafter following the consequential follow up action under Order XLI, Rule 28, Civil Procedure Code would give a fresh lease of litigation for some more years or decades, which would not be in the interest of justice. Accordingly, I.A.No. 11386/2010 is hereby rejected."

14. From the evidence on record, it is proved that suit property shown

in the schedule as suit property No. 2 was received by Trilok Singh vide

partition deed dated 04.05.2010 and the same was mutated in his name.

He legally acquired title over the suit land No.2. Thereafter, he has

executed sale deeds Ex. D/8, 15 and 22 in favour of respondents No. 2 to

4 and their names have rightly been mutated and registered in the revenue

records. Now they are in possession of the suit lands. Thus, the lower

Appellate Court rightly allowed the counter claim in their favour.

15. In case of Motilal Daulatram Bora & Ors. vs. Muralidhar

Ramchandra Bhutabe (since deceased) by his LR & Ors. 1996 (3) Civil

LJ 872 (SC), the Apex Court held that, the interference by the High Court in

second appeal is very much limited. The High Court cannot reverse the

concurrent findings taken by the trial and first Appellate Court without any

basis. High Court should not overlook the aspects that the inference of

concurrent findings have been drawn after considering the oral as well as

documentary evidence.

S.A.No. 1260/2020

16. In case Syeda Rahimunnisa Vs. Malan Bi & Anr. [(2016) 10

SCC 315], Hon'ble Apex Court has held that under Section 100 of CPC 1908,

in second appeal if there have been concurrent findings of fact by trial court

and lower Appellate Court, it cannot be reopened in second appeal in absence

of perversity. The Apex Court has discussed about substantial question of law

and held as under :

"to constitute substantial question of law there must be pleading regarding question of law involved in the matter and such legal question should emerge from sustainable findings of fact recorded by courts of fact recorded by courts below. Substantial question of law means question of law having substance, essential, real, of sound worth or considerable. Fairly arguable question of law, where there is room for difference of opinion on it or where court thought is necessary to deal with that question at some length and discuss alternative views then such question would be substantial question of law."

17. This Court finds that both the Courts below have

considered all the issues in detail. The impugned judgments have

been passed by the learned Courts below after proper appreciation of

the entire evidence on record. There is no illegality or perversity in

the impugned judgments passed by the Courts below. No substantial

question has been found by this Court.

18. Hence, this appeal is hereby dismissed.

(Smt. Anjuli Palo) Judge

vidya

Digitally signed by SREEVIDYA Date: 2021.03.01 17:09:30 +05'30'