Kamlesh Saran vs Nityanand
2022 Latest Caselaw 2812 MP

        1                                                                           M.A. No. 1128/2021


                  HIGH COURT OF MADHYA PRADESH
                         BENCH AT INDORE
            (SINGLE BENCH: HON. MR. JUSTICE ANIL VERMA)

                             Misc. Appeal No.1128/2021


     KAMLESH SARAN S/O NARMADAPRASAD SARAN , AGED ABOUT 42
1.
     YEARS, VILAGE-SANDALPUR, TEHSIL KATEGAON (MADHYA PRADESH)
     RAMNIWAS S/O SHRI GOVINDPRASAD VISHNOI , AGED ABOUT 42 YEARS,
2.
     ABGAON KALA, TEH. HANDIYA, DISTT. HARDA (MADHYA PRADESH)
     RAMBHAROS S/O SHRI SUKHDEV RAWDIYA , AGED ABOUT 38 YEARS,
3.
     KHATEGAON, DISTT. DEWAS (MADHYA PRADESH)
     AJAY S/O SURESHCHANDRA AGRAWAL , AGED ABOUT 46 YEARS, VEER
4.
     SAWARKAR MARG, KHATEGAON, DISTT. DEWAS (MADHYA PRADESH)
     CHIRONJILAL S/O GOVIND VISHNOI , AGED ABOUT 40 YEARS,
5.
     ABGAONKALA, TEH. HANDIA (MADHYA PRADESH)
     AKHILESH S/O SHRI NARMADAPRASAD SARAN , AGED ABOUT 42 YEARS,
6.
     SANDALPUR, TEH. KHATEGAON, DISTT. DEWAS (MADHYA PRADESH)
                                                                              .....APPELLANTS


                                              VERSUS

     NITYANAND S/O KAILASHCHANDRA UPADHYAY , AGED ABOUT 39
1.
     YEARS, SANDALPUR, TEH. KHATEGAON (MADHYA PRADESH)
     KAILASHCHANDRA S/O SHRI HABULAL UPADHYAY , AGED ABOUT 59
2.   YEARS, SANDALPUR TEH. KHATEGAON, DISTT. DEWAS (MADHYA
     PRADESH)
     SMT. KRISHNABAI W/O SHRI SURENDRA JOSHI , AGED ABOUT 64 YEARS,
3.
     VILL. LOHARDA, TEH. SATWAS DISTT. DEWAS (MADHYA PRADESH)
     SMT. PAPPI @ PUSHPA BAI W/O SHRI OMPRAKASH JOSHI , AGED ABOUT
4.   57 YEARS, HAMIDGANJ TEH. NARSULLAGANJ, DIST. SIHORE (MADHYA
     PRADESH)
     SMT. GAYTRI BAI W/O SHRI RAMESHCHANDRA TIWARI , AGED ABOUT
5.   55 YEARS, VILL. GANORA TEH. KHATEGON, DISTT. DEWAS (MADHYA
     PRADESH)
     THE SUB REGISTRAR, DEWAS THROUGH THE SUB REGISTRAR SHRI
6.
     CHAKRAPANI MISHRA DEWAS (MADHYA PRADESH)
7.   STATE OF M.P. THROUGH THE COLLECTOR DEWAS (MADHYA PRADESH)
                                                                           .....RESPONDENTS


------------------------------------------------------------------------------------------------------
     Shri V.K. Jain learned senior counsel with Shri Vaibhav Jain, learned
counsel for the appellants.
     Shri A.S. Garg, learned senior counsel with Shri H. Wadnerkar, learned
counsel for respondent no.1.
        Shri Prateek Patwardhan, learned counsel for respondents no. 4 & 5.


----------------------------------------------------------------------------------------------
Whether approved for reporting :
       2                                                           M.A. No. 1128/2021




                                   ORDER

(Passed on 28th February, 2022) 1/ The appellants/defendants have filed this Misc. Appeal under Section 104 read with Order 43 Rule 1 of the Code of Civil Procedure, 1908 (in short CPC) being aggrieved by the order dated 25.3.2021 passed by Additional District Judge Khategaon District Dewas in COS No. 65A/2020, whereby the application under Order 39 Rules 1 & 2 of CPC filed by respondent no.1/plaintiff has been allowed.

2/ The facts of the case in brief are that late Shri Habulal was the owner of suit land bearing survey No. 373/3, area 5.059 hectare situated at village Sandalpur. Out of the aforesaid land, a piece of land admeasuring 0.300 hectare was acquired by National Highway Authority of India for construction of road. The remaining 4.759 hectares of land was recorded in the name of respondent no.2. Respondent no.2 vide two registered sale deeds had sold the said land to the appellants. In the year 2015 an application under Section 178 of Madhya Pradesh Land Revenue Code (in short MPLRC) has been filed for partition before the Tehsildar who passed an order of partition vide order dated 27.7.2015. After a long lapse of time, late Habulal had filed an appeal against the said order of partition in the year 2019-20 before Sub Divisional Officer Khategaon and the same was allowed on 20.12.2019. Thereafter respondent no.1 filed a suit challenging the sale deeds and for permanent injunction against the dispossession alongwith an application under Order 39 Rules 1 & 2 CPC on the ground that sale deeds were executed without any sale consideration. The respondent no. 2 filed reply and respondent no. 3 to 5 orally supported the respondent no.1. After hearing both the parties the learned trial court had allowed the same application filed under Order 39 Rules 1 & 2 CPC vide order dated 25.3.2021. Hence this Misc. appeal has been filed before this court.

3/ Learned counsel for the appellants contended that the impugned order is contrary to law, facts, circumstances and evidence on record. The learned trial court has failed to consider that the fact of partition between Habulal, Ganpatbai and respondent no. 2 in the year 2015 has been upheld in second appeal by the Additional Commissioner and order of Additional

Commissioner has attained finality, therefore, suit land was duly mutated in the name of respondent no.2. The trial court has also failed to consider that respondent no.2 having title to the suit land and had sold the suit land to the appellants for a valuable consideration paid to him by account payee cheques and execution of sale deeds in favour of appellants is an undisputed fact. The trial court has failed to consider that there is an apparent collusion between the respondents no. 1 to 5 and a will which is a private and unilateral document is not a proof of title. He also submits that when Habulal was not having any right and title over the suit property whatever is written in the will shall neither create any title in favour of the respondent no. 1 nor is binding on respondent no. 2 and present appellants. He further submits that at the stage of deciding an application for temporary injunction, the question of validity of acquiring title, validity of the will and concluded proceedings of the partition may not be decided finally but the same has to be considered to find out prima facie case. The trial court has also failed to consider that respondent no. 2 was legally not entitled to challenge the sale deed executed by him. The trial court has also failed to consider the dishonest, collusive and fraudulent conduct of respondents no. 1 and 2 who are father and son. The appellants are bonafide purchasers and they are in possession of the suit property. The impugned order is illegal, perverse and contrary to law and the same deserves to be set aside. 4/ Per contra, learned counsel for respondents oppose the prayer and pray for its rejection by supporting the impugned order passed by the learned trial court.

5/ I have heard learned counsel for the parties at length and perused all the relevant documents and citations filed by them.

6/ After perusal of the relevant documents filed by the parties, it appears that admittedly two registered sale deeds have been executed by respondent no. 2 in favour of appellants regarding suit property but contention of respondents is that physical possession of the suit land was not delivered to appellants despite of executing of the sale deeds, and respondents are still in possession of the suit land whereas learned counsel for the appellants contended that appellants are bonafide purchasers and they are in possession of the suit property since execution of the registered sale deeds therefore, it is

a material point for determination as to who was in possession of the suit property at the time of filing of the suit.

7/ Counsel for the appellants in support of his contention placed reliance upon judgments of this Court in the matter of Siya Govind Vs. Rampal reported in 1985 MPWN Note 469 wherein it has been held that in a suit for permanent injunction the title holder is presumed to be in possession over vacant land. In case of Koushalbai Vs. Nathulal reported in 1978(I) MPWN 12 and Jagannath Singh Vs. Shivnarayan reported in1978(II) MPWN Note 185 the Coordinate Bench has held that if recital in sale deed indicated that full consideration is paid to the seller and possession was handed over to the purchaser, the sale deed should be accepted unless fraud is established. 8/ In case of Rajendra Prasad Tiwari Vs. Atul Kumar Dwivedi reported in 2005(5) MPHT 383 the Coordinate Bench has held as under:-

" 10. Admittedly, the defendant No. 2 executed the registered sale deed in favour of defendant No. 1. The sale deed contains recital of payment of Rs. 2,60,000/- as consideration and also that possession has been given to the appellant/defendant No. 1. Prima facie there is no material to show that the sale deed was executed by defendant No. 2 in the state of intoxication without understanding or without receiving consideration. Thus, I am of the view that the appellant was prima facie in possession of the suit land since he was having a registered sale deed in his favour containing recital of possession being handed over to him and of payment of the consideration. In case of Nonitram Vs. Hira [1980 (I) MPWN 148] this Court has observed:-

"In the sale-deed dated 5-2-74, purported to be executed by Laltobai and Halkibai, predecessors-in-title of the plaintiff- non-applicants there is a statement that the executants had delivered possession to the purchasers, viz, defendant- applicants. Undoubtedly this statement shows prima facie that possession was given to the purchasers."

In yet another case decided by this Court in case of Jambowati and others vs. Mohitram and another (1991 RN 186), while dealing with the case of similar nature this Court has held:-

"Accordingly, prima facie , there appeared to be no reason to doubt that pursuant to the sale deeds dated 5-2-1990 executed by defendant No. 1 in their favour the defendant No. 2 to 13 were put in possession of the suit lands on the execution of the sale deeds. "

It is a settled law that registration of sale deed is prima facie

evidence of its execution. In this context judgment of this Court in case of Geetabai Vs. State of M. P. and others (1981 RN 220) may be seen.

(11.) SO far as the contentions about the non-payment of the consideration, suffice is to say, that passing of the consideration cannot be challenged by a third party as held by Division Bench of this Court in case of Ramjilal Tiwari vs. Vijay Kumar and others (1970 JLJ 20). As per Section 114 of the Indian evidence Act, there is presumption that judicial and official acts have been regularly performed and therefore, if the sale deed is registered by a Sub- Registrar under Indian Registration Act in his official capacity it would deem that it is duly executed unless and until it is refuted by some cogent evidence. In the present case prima facie the plaintiffs suit appears to be collusive. The plaintiffs No. 1 and 2 are sons and plaintiff No. 3 is wife of defendant No. 2. The plaintiffs made allegations against the defendant No. 2 that he is a drunkard. The defendant No. 2 readily accepted the allegations in his reply. The defendant no. 2 has not taken any action, alleging the defendant No. 1 has not paid consideration to him. In the aforesaid premises at this stage the contentions of the plaintiffs' cannot be accepted, being contrary to the registered sale deed.

(12.) The appellant who has paid the valuable consideration and to whom the possession has been delivered cannot be deprived of enjoyment of the property and if he is deprived from it, he would certainly suffer irreparable injury.

9/ Learned counsel for the respondents placed reliance upon judgments of Full Bench of this Court in the matter of Diwan Singh Vs. Bhaiyalal reported in 1997(2) JLJ 167, judgment of the Apex Court in the matter of Dhariwal Industries Ltd Vs. M/s M.S.S. Food Products reported in AIR 2005 SC 1999, Ajit Kaur alias Surjit Kaur Vs. Darshan Singh (Dead) through LRS and others reported in AIR 2019 SC 2122, Shyam Narayan Prasad Vs Krishna Prasad and others reported in (2018) 7 SCC 646, Bhimabai Mahadeo Kambekar (dead) through Legal Representative Vs. Arthur Import And Export Company reported in (2019) 3 SCC 191; Jamila Begum (Dead) through LRs Vs. Shami Mohd (Dead) Through LRs reported in (2019) 2 SCC 727.

10/ In case of Bhimabai Mahadeo (supra) the Hon'ble Apex court has held that mutation entries in the revenue records does not have any presumptive value on the title and it only enables person in whose favour mutation is ordered to pay the land revenue.

11/ So far as the contention of non payment of sale consideration amount, suffice is to say, that payment of the consideration cannot be challenged by a third party as held by the Division Bench of this court in case of Ramjilal Tiwari Vs. Vijay Kumar and others (1970 JLJ 20). As per Section 114 of Indian Evidence Act, there is presumption that judicial and official acts have been regularly performed and therefore, if the sale deed is registered by a Sub Registrar under Indian Registration Act in his official capacity it would deem that it is duly executed unless and until it is refuted by some cogent evidence. 12/ In the present case it is noteworthy to mention that there is recital in the first sale deed dated 5.9.2020 that whole consideration amount of Rs. 22 lakhs has been paid through cheque and in another sale deed there is also recital that the entire sale amount of Rs. 98 lakhs has been paid through different cheques. Therefore, prima facie it can be presumed that sale consideration has been paid to the seller.

13/ Respondent no. 1 Nityanand has made an allegation in his plaint that his father Kailash was drunkard but Kailash admits in the appeal memo which was filed before Additional Commissioner Ujjain that he has sold the suit property to respondents Ajay Kumar, Chironjilal and Akhilesh. In the aforesaid position at this stage, the such contention of plaintiff cannot be accepted being contrary to the registered sale deed.

14/ Prima facie, it appears that the appellants who had paid consideration amount and possession of suit land had been delivered to them, therefore, they cannot be deprived of enjoyment of the property, if they are deprived from it, in that condition definitely they would suffer irreparable injury. 15/ It is true fact that grant of temporary injunction is a discretionary power of the Court and discretion vests in the court before whom an application is submitted. Prima facie, the appellants are registered owner of the suit land, they are also in possession of the suit land, but the Court below has ignored the important legal aspect of above registered sale deeds and has relied upon conjectures and surmises. Therefore, this Court is of the considered view that no prima facie case is found in favour of plaintiff/respondent. Hence prima facie his possession is not found. On the contrary after execution of the sale deed, possession of appellants are also established, therefore, factum of balance of convenience and irreparable injury is also in favour of appellants

and in absence of other essentials such as prima facie case, balance of convenience and irreparable loss, the plaintiffs are not deserve for temporary injunction as granted by the court below. The learned trial court has not applied correct principle of law while dealing with the matter within its discretion. The trial court has adopted an erroneous approach which is against the principle of temporary injunction. Therefore, this Court is bound to interfere by exercising power conferred under Order 43 Rule 1 of CPC.

Resultantly this Misc. Appeal is allowed and impugned order dated 25/3/2021 passed by Additional District Judge Khategaon District Dewas in COS No. 65A/2020 is hereby set aside and application for grant of temporary injunction under Order 39 Rules 1 & 2 read with section 151 of CPC filed by respondent no.1/plaintiff before the trial court is hereby rejected.

No order as to costs.

C.C. as per rules.

(Anil Verma) Judge

BDJ

Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2022.02.28 17:38:43 +05'30'