Girija Shankar Sharma vs Bhagirath Singh
2021 Latest Caselaw 7621 MP

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         THE HIGH COURT OF MADHYA PRADESH
              Miscellaneous Petition No.3545/2021
     Girija Shankar Sharma Vs. Bhagirath Singh and others

Gwalior, Dated:22-11-2021

      Shri Ravi Shankar Bansal, Advocate for petitioner.

      This Miscellaneous Petition under Article 227 of the

Constitution of India has been filed against the order dated 4/9/2021

passed by Fourth District Judge, Bhind in Miscellaneous Civil

Appeal No.21/2019, thereby affirming the order dated 26/2/2019

passed by First Civil Judge, Class-I, Bhind in case No.81A/2018

(A.E.D.), by which the application filed by the plaintiffs under Order

XXXIX Rule 1 and 2 CPC has been allowed and the petitioner and

other defendants have been restrained from interfering with the

peaceful possession of the plaintiffs in respect of the property in

dispute and have also been restrained from alienating the property in

dispute.

      Challenging the orders passed by the Courts below, it is

submitted by the counsel for the petitioner that the respondents no.1

to 4/plaintiffs have filed a suit for declaration of title, permanent

injunction and for declaration of sale deed dated 28/5/1990 and

28/7/2016 as null and void. It is the case of the plaintiffs that survey

no.464 area 0.502 hectare, survey no.479 area 0.627 hectare, survey

no.482 area 0.617 hectare and survey no.468 area 0.334 hectare, total

area 2.080 hectare is situated in Bhind and the father of the plaintiffs

as well as the father of defendant no.4-Sudama and no.5-Rammohan,

THE HIGH COURT OF MADHYA PRADESH Miscellaneous Petition No.3545/2021 Girija Shankar Sharma Vs. Bhagirath Singh and others

namely, Tej Singh Kushwaha as well as the father of defendant no.3-

Shrikrishna, namely, Deenu were having equal share. It was alleged

that the property in dispute was partitioned between the father of the

plaintiffs, namely, Tej Singh and Deenu (father of defendant no.3).

However, no entry was made in the revenue records. As per the

partition, survey no.486 and survey no.479 went to the share of

Deenu, whereas survey nos.464 and 482 went to the share of father of

the plaintiffs as well as defendants no.4 and 5. It was further

mentioned that in a sale deed executed by Deenu on 11/5/1964 the

fact of family partition was also mentioned. Deenu alienated survey

no.486 for a consideration of Rs.2,200/- to 16 persons who have

constructed their houses, whereas the father of the

plaintiffs/defendants no.4 and 5, namely, Tejsingh has dug a tube-

well in survey no.464 and the plaintiff no.1 has constructed his

house. It was further submitted that Tejsingh and Deenu were

cultivating the land separately for the last 20 years. With the passage

of time, there was an escalation in the price of the land and, therefore,

the intention of Deenu became dishonest and he started demanding

survey no.482 in place of survey no.479 and accordingly, in the sale

deed dated 4/6/1983, which was executed by Deenu in favour of

Harishchandra and Bhagchandra, the aforesaid fact is mentioned.

Thereafter, again on 21/9/1989 Deenu executed a sale deed in favour

THE HIGH COURT OF MADHYA PRADESH Miscellaneous Petition No.3545/2021 Girija Shankar Sharma Vs. Bhagirath Singh and others

of his son Shrikrishna-defendant no.3 by claiming that he has a half

share in survey nos.464, 479, 482 and 486 and accordingly, Deenu

has alienated the entire survey no.482. Since Deenu had already

alienated his entire survey no.482, therefore, the sale deed executed

in favour of defendant no.3 was a sham document, as Deenu had

already executed three sale deeds dated 11/5/1964, 4/6/1983 and

21/9/1989 in respect of survey nos.486 and 482. Thereafter, it was

pleaded that the defendant no.1, i.e.Rammurti Kushwah without any

title, ownership and possession executed a sale deed dated 28/7/2016

in favour of defendant no.2/petitioner, i.e. Girija Shankar in respect

of survey no.464 area 0.502 hectare. In fact it is a sham document

because defendant no.1 had never purchased survey no.464 area

0.118 hectare and thus, the sale deed executed in favour of defendant

no.2/petitioner by defendant no.1 is null and void qua the plaintiffs.

Thereafter, the petitioner/defendant no.2 moved an application for

demarcation and, therefore, the plaintiffs came to know about the sale

deed. Even from the date of demarcation, the plaintiffs are in

possession of the property in dispute. It was claimed that the

plaintiffs are the exclusive owner of survey Nos.464, 479 and and

sale deed executed in favour of petitioner/defendant No.2 is null and

void.

The defendant No.2/petitioner filed his written statement. In

THE HIGH COURT OF MADHYA PRADESH Miscellaneous Petition No.3545/2021 Girija Shankar Sharma Vs. Bhagirath Singh and others

the written statement it was not disputed that survey Nos.464, 479,

482 and 486 were the joint property of late Tej Singh and late Deenu.

The petitioner filed his written statement, but it was filed in

most vague and misleading manner. In paragraph 2 it was mentioned

that the plaintiffs have not explained that how many area of which

survey number was given to whom. It was further denied that survey

No.486 area 1 Beegha 12 Vishwa and survey No.479 area 3 Beegha

was ever in possession of Deenu. Similarly, it was denied that survey

No.464 area 2.8 Beegha and survey No.482 area 2.19 Beegha was in

possession of Tej Singh. It was further denied that Deenu had

alienated survey No.486 to 16 different persons who have

constructed their houses. It was further alleged that the plaintiffs have

not disclosed the date on which the family settlement had taken

place. All other plaint pleadings were also denied.

The plaintiffs also filed an application under Order 39 Rule 1

and 2 of CPC for grant of temporary injunction. The

petitioner/defendant No.2 filed his reply to the said application.

The Trial Court by order dated 26.2.2019 passed in Civil Suit

No.81-A/2018 allowed the application and restrained the petitioner

from interfering in the peaceful possession of the plaintiffs as well as

from alienating the property in dispute during pendency of the civil

suit.

THE HIGH COURT OF MADHYA PRADESH Miscellaneous Petition No.3545/2021 Girija Shankar Sharma Vs. Bhagirath Singh and others

Being aggrieved by the said order, the petitioner preferred a

miscellaneous Civil Appeal No.21/2019 which too has been

dismissed by order dated 4.9.2021.

Challenging the orders passed by the Courts below, it is

submitted by the counsel for the petitioner that the plaintiffs have

miserably failed to disclose the date on which the partition had taken

place between Tej Singh and Deenu. However, when the counsel for

the petitioner was directed to point out from the written statement as

to whether the petitioner/defendant No.2 had denied the averment

that survey Nos.464, 479, 482 and 486 were joint property of Tej

Singh and Deenu, then it was submitted by the counsel for the

petitioner that the burden is on the plaintiff to prove that the partition

had taken place and since the plaintiffs have failed to prima facie

prove the family settlement, therefore, the Court below have

committed material illegality by granting temporary injunction

against the petitioner.

To substantiate his contention, the counsel for the petitioner

has relied upon the judgment passed by the Supreme Court in the

case of Narendra Kante vs. Anuradha Kante & Ors. reported in

(2010) 2 SCC 77 as well as the judgment passed by the Co-ordinate

Bench of this Court in the case of Kamal Singh vs. Narayan J.

THE HIGH COURT OF MADHYA PRADESH Miscellaneous Petition No.3545/2021 Girija Shankar Sharma Vs. Bhagirath Singh and others

Acharya & Ors. reported in 2020 (2) MPLJ 54. It is further

submitted that there is nothing on record to show that the family

arrangement was got registered.

Heard the learned counsel for the petitioner.

So far as the registration of family partition is concerned, the

same is not necessary if it is merely an acknowledgment of the prior

partition. Thus the joint property can be partitioned amongst the co-

sharer even by oral partition and the registration of the said family

settlement is not necessary. Only if the partition is effected by

executing a document, then its registration is required. It is not the

case of the plaintiffs that family settlement had taken place by

executing any written document. Furthermore, plaint averment that

survey numbers were initially the joint property has not been

challenged. Furthermore, even if the said property has not been

partitioned so far, still no specific piece of land can be sold by any

co-sharer. Furthermore, both the Courts below by appreciating the

pleadings of the parties have come to a prima facie opinion that not

only the balance of convenience is in favour of the plaintiffs but they

would also suffer irreparable loss in case if the temporary injunction

is not granted. As already held that since the petitioner has not

disputed that survey Nos.464, 479, 482 and 486 were the joint

THE HIGH COURT OF MADHYA PRADESH Miscellaneous Petition No.3545/2021 Girija Shankar Sharma Vs. Bhagirath Singh and others

property, therefore, the prima facie case is also in favour of the

plaintiffs. The petitioner could not point out any jurisdictional error

allegedly committed by the Courts below. This Court in exercise of

powers under Article 227 of the Constitution of India cannot interfere

with the concurrent findings of fact unless and until they are perverse

or contrary to record. As already held that in absence of any

challenge to the averment that initially the property in dispute was a

joint property, this Court is of the considered opinion that no case is

made out warranting interference in the orders passed by the Courts

below.

Accordingly, order dated 4.9.2021 passed by Fourth District

Judge, Bhind in Miscellaneous Civil Appeal No.21/2019 and order

dated 26.2.2019 passed by First Civil Judge, Class-I, Bhind in Case

No.81-A/2018 are hereby affirmed.

The petition fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.11.25 15:44:53 +05'30'