Madhya Pradesh High Court
Smt.Satiya Bai vs Chamra & Ors. on 15 December, 2022
Author: Dwarka Dhish Bansal
SA NO.1083/1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 15th OF DECEMBER, 2022
SECOND APPEAL No. 1083 of 1998
BETWEEN:-
SMT. SATIYA BAI, WIDOW OF
KISHANLAL KACHHI, AGED ABOUT 62
YEARS, CULTIVATOR, R/O VILLAGE
RAMBAGH, TAHSIL AND DISTRICT
MANDLA, M.P.
.....PETITIONER
(BY SHRI UMESH TRIVEDI-ADVOCATE)
AND
1. CHAMRA S/O BHADDU, AGED ABOUT 72
YEARS, OCCUPATION CULTIVATOR, R/O
VILLAGE SURAJKUND, RAMBAGH,
TAHSIL AND DISTRICT MANDLA, M.P.
2. MALLU S/O DUMRA, AGED ABOUT 27
YEARS, OCCUPATION CULTIVATOR, R/O
VILLAGE SURAJKUND, RAMBAGH,
TAHSIL AND DISTRICT MANDLA, M.P.
3. BHIMMA S/O CHIRONJI, AGED ABOUT 32
YEARS, OCCUPATION CULTIVATOR, R/O
VILLAGE SURAJKUND, RAMBAGH,
TAHSIL AND DISTRICT MANDLA, M.P.
Signature Not Verified
1
Signed by: SWETA SAHU
Signing time: 12/16/2022
5:32:51 PM
SA NO.1083/1998
4. RAMCHARAN S/O BHUTTU KACHHI,
AGED ABOUT 47 YEARS, OCCUPATION
CULTIVATOR, R/O VILLAGE
SURAJKUND, RAMBAGH, TAHSIL AND
DISTRICT MANDLA, M.P.
5. STATE OF MADHYA PRADESH, THROUGH
THE COLLECTOR, MANDLA, M.P.
.....RESPONDENTS
-------------------------------------------------------------------------------------------------
This appeal coming on for final hearing this day, the court
passed the following:
JUDGMENT
This second appeal has been preferred by the plaintiff challenging the
judgment and decree dated 17.07.1998 passed by Additional District Judge,
Dindori, Link Court Mandla in Civil Appeal no.12-A/98 affirming the
judgment and decree dated 29.02.1996 passed by II Civil Judge Class II,
Mandla in Civil Suit No.66-A/1993, whereby suit filed for declaration of title
and recovery of possession by the appellant/plaintiff was dismissed.
2. In short the facts are that the plaintiff instituted the suit with the
allegations that her husband purchased the disputed land khasra No.112 area
0.66 acre and 135/2 area 0.06 acre situated in Rambagh vide registered sale
deed dated 27.09.1965 (Ex.P/1) from Dumra, who and his three brothers
handed over possession to the plaintiff, thereafter husband of the plaintiff and
after his death the plaintiff remained in possession of the land, but in the year
1987 the defendants tried to take possession and ultimately in the year 1990
the defendants took forcible possession over the land in question. With these
allegations the suit was filed.
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 12/16/2022
5:32:51 PM
SA NO.1083/1998
3. The defendant 1 appeared and filed written statement denying the plaint
allegations and contended that the land has been recorded in the joint name of
all the four brothers, therefore, the sale made by Dumra is illegal. The plaintiff
has instituted the suit just with a view to harass the defendants. Previous suit
of injunction filed by the plaintiff was dismissed, therefore, present suit is
barred by res judicata. It is also contended that the defendants being in
possession of the land for more than 12 years, have acquired title by adverse
possession. As the plaintiff has not made all the persons party to the suit,
therefore, the suit is liable to be dismissed.
4. The defendants 2-4 did not appear and were proceeded ex parte.
5. On the basis of pleadings, learned trial court framed as many as nine
issues and recorded evidence of the parties and vide judgment and decree
dated 29.02.1996 held that the land was sold by Dumra vide registered sale
deed 27.09.1965 (Ex. P/1) to husband of plaintiff, but it was joint land of the
defendants. Since the possession was not handed over, therefore, and in
absence of consent of all the brothers to the sale made by Dumra, the same is
not legal. However, it was held that the present suit is not barred by res
judicata and the defendants have not acquired title by adverse possession.
Upon appeal filed by plaintiff, the same was dismissed by learned first
appellate court vide judgment and decree dated 17.07.1998.
6. Vide order dated 24.02.1999 this court admitted the second appeal on
the following substantial question of law :
"Whether the learned courts below have erred in law in holding
that the sale deed (Ex.P/1) dt.27.09.65, does not confer any title
in favour of plaintiff/appellant in the face of the fact that Dumra
had 1/4th share in the suit property"
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 12/16/2022
5:32:51 PM
SA NO.1083/1998
7. Learned counsel for the appellant submits that without considering the
law applicable to the property situated in Mandla, the learned courts below
have on the basis of presumptions and on wrong assumptions held that the
sale deed (Ex.P/1) is not legal for want of consent of all the brothers. He
submits that Mandla comes under Central Provinces and Berar, where one of
the coparceners can sell his undivided interest/share even without consent of
other coparceners. Accordingly, he submits that if the suit land is held to be
belonging to all the four brothers, then the sale made by Dumra should have
been held valid to the extent of his 1/4th share and accordingly the plaintiff
ought to have been held to be entitled for possession of the land after partition
through the revenue authorities.
8. Heard learned counsel for the appellant and perused the record.
9. While deciding the issue no.1 & 2 learned trial court has categorically
held that Dumra had sold the disputed land to husband of plaintiff vide
registered sale deed dated 27.09.1965 (Ex.P/1) but he was not handed over
possession of the land in question. Further, vide para 14 of its judgment
learned trial court held that Dumra had no right to sell the land without
consent of other brothers/coparceners, consequently, on this premise learned
trial court dismissed the suit. Findings of learned trial court have been
affirmed by the impugned judgment and decree passed by learned first
appellate court.
10. On the ground of dismissal of previous suit of permanent injunction
filed by plaintiff, the defendants took plea of res judicata, which by deciding
issue no.4 has been negatived by learned courts below and the plea of adverse
possession taken by the defendants has also been negatived concurrently.
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 12/16/2022
5:32:51 PM
SA NO.1083/1998
11. In view of the aforesaid findings recorded by learned courts below it is
clear that the sale of the land in question was made by Dumra by way of
registered sale deed (Ex.P/1) which in the light of decision of this Court in the
case of Ramdayal vs. Manaklal 1973 MPLJ 650 (FB) cannot be said to be
invalid in its entirety because Dumra was having 1/4th share in the suit
property and was competent to sell his undivided share in the suit property
even without consent of other brothers i.e. the defendants. Learned trial court
has by placing reliance on the decision in the case of Peerbux vs. Tulsiya 1991
(II) MPWN 85 dismissed the suit, which is not applicable to the facts of the
present case.
12. In view of the aforesaid, the substantial question of law formulated by
this Court on 24.02.1999 is decided in favour of appellant/plaintiff and by
setting aside the judgment and decree of courts below, it is held that Dumra
was having right to sell his undivided 1/4th share in the suit property.
Resultantly, the sale deed 27.9.1965 (Ex.P/1) is held to be valid to the extent
of 1/4th share only. As the disputed property is agricultural land and the
plaintiff has been held to be entitled to 1/4 th share in the suit property,
therefore, she is also entitled to get her name mutated and to get possession
after its partition as per section 54 of the Code of Civil Procedure.
13. In view of the aforesaid, the second appeal succeeds and is allowed to
the extent indicated above.
14. Interim application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
ss
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 12/16/2022
5:32:51 PM
