Madhya Pradesh High Court
Harnarayan Awasthi vs Shri Digamber Jain Atishayay ... on 3 March, 2022
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 3rd OF MARCH, 2022
SECOND APPEAL No. 3551 of 2019
Between:-
HARNARAYAN AWASTHI S/O BABULAL AWASTHI ,
AGED ABOUT 69 YEARS, R/o-KHAJURAHO TEH.
RAJNAGAR DISTT. CHHATARPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI Siddharth Gulatee, learned counsel for the appellant.)
AND
1. SHRI DIGAMBER JAIN ATISHAYAY SHETRA
KHAJURAHO THR. PRABANDH SAMITI
ADHYAKSH SHIKHAR CHAND JAIN S/O MOTILAL
JAINA/A 65 YEARS R/o- GRAM AHINSA BHAWAN
GAADIKHANA CHHATARPUR TEH. AND DISTT.
CHHATARPUR (MADHYA PRADESH)
2. CHATUR SINGH (DEAD) THR LRS SHIV ASHISH
SINGH S/O CHANDRAPAL SINGH , AGED ABOUT 30
YEAR S , R/O KHAJURAHO, TEHSIL RAJNAGAR
(MADHYA PRADESH)
2(a). SHIV ASHISH SINGH
S/O- CHANDRAPAL SINGH AGED ABOUT 30 YEARS
R/O KHAJURAHO, TEHSIL RAJNAGAR (MADHYA
PRADESH)
2(b).KHUSHI SINGH S/O CHANDRAPAL SINGH ,
AGED ABOUT 27 YEARS, R/O KHAJURAHO, TEHSIL
RAJNAGAR (MADHYA PRADESH)
2(c). GYAN SINGH S/O SHIVPAL SINGH AGED
ABOUT 33 YEARS, R/O KHAJURAHO, TEHSIL
RAJNAGAR (MADHYA PRADESH)
2(d). GUDDE SINGH S/O SHIVPAL SINGH AGED
ABOUT 25 YEARS, R/O KHAJURAHO, TEHSIL
RAJNAGAR (MADHYA PRADESH)
3. RAMKUNWAR BEWA (DEAD) THR. LRS SHIV
KUMAR D/O GOVIND SINGH THAKUR R/O
KHAJURAHO, TEHSIL RAJNAGAR (MADHYA
PRADESH)
3(a). SHIV KUMAR D/O GOVIND SINGH THAKUR
R/O KHAJURAHO, TEHSIL RAJNAGAR (MADHYA
PRADESH)
Signature Not Verified
SAN
3(b). DEV KUNWAR D/O GOVIND SINGH THAKUR
R/O KHAJURAHO, TEHSIL RAJNAGAR (MADHYA
Digitally signed by PARMESHWAR GOPE
Date: 2022.03.09 10:34:20 IST PRADESH)
2
3(c). CHANDRA JUNWAR D/O GOVIND SINGH
THAKUR R/O KHAJURAHO, TEHSIL RAJNAGAR
(MADHYA PRADESH)
4. COLLECTOR,DISTT-CHHATARPUR (MADHYA
PRADESH)
5. TEHSILDAR RAJNAGAR TAHSIL RAJNAGAR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI Sourav Soni, learned Pl for the respondent/State.)
T h is appeal coming on for admission this day, the court passed the
following:
ORDER
This Second Appeal has been filed by the appellant/defendant No. 1
challenging the judgment and decree dated 19-11-2019 passed by the 5th
Additional District Judge, Chhatarpur in Civil Appeal No. 52-A/19 confirming the
judgment and decree dated 10-03-2014 passed by the Civil Judge, Class-II
Rajnagar, District-Chhatarpur in Civil Suit No. 81-A/2010 whereby the suit filed by
the plaintiff/ respondent No. 1 was decreed.
2. The plaintiff/respondent No. 1 instituted suit for declaration of title
and permanent injunction and for declaring demarcation proceedings illegal as well
as for declaring the sale deed dated 08-10-1987 null and void which was got
executed by the defendant No. 1 Harnarayan Awasthi from defendant No.2 Chatur
Singh. The plaintiff claimed himself to be Bhumiswami and in possession of the
land Survey No. 844/2 area 0.50 dismil i.e. 0.202 Are which was purchased by the
plaintiff vide registered sale deed dated 08-12-1964 from predecessor Govind
Singh and Chatur Singh. It is also alleged that the total area of Survey No. 844 was
0.70 dismil i.e. 0.283 Are, out of which 0.50 dismil i.e. 0.202 Are was sold to the
plaintiff and the rest area 0.20 dismil i.e. 0.081 Are, went in construction of road.
Accordingly, it is alleged that the defendants have no right over the land in
question.
3. The defendant No. 1 claimed himself to be owner and in possession
of land area 0.041 Are on the basis of registered sale deed dated 8-10-1987
Signature Not Verified
SAN executed by Chatur Singh out of rest of the land area 0.20 dismil (i.e. 0.081 Are) of
Digitally signed by PARMESHWAR GOPE
Date: 2022.03.09 10:34:20 IST
Survey No. 844 ( which was renumbered as 844/1) and prayed for dismissal of the
suit. The defendant No. 2- Chatur Singh and defendant No. 3-Govind Singh
supported the case pleaded by defendant No.1. The defendant Nos. 4 and 5 i.e.
Collector and Tahsildar contended that the land area 0.50 dismil is in the name of
the plaintiff and rest land area 0.20 dismil is recorded as land of road and prayed
for dismissal of the suit.
4. On the basis of the pleadings of the parties, learned Trial Court
framed as many as six issues and recorded evidence and after making critical
analysis of the evidence available on record, found the plaintiff to be owner/
Bhumiswami of Survey No. 844/2 area 0.50 dismil and injuncted the defendants
from making any interference in title and possession of the plaintiff. Upon filing
Civil Appeal by the defendant No.1, the same has been dismissed by lower
Appellate Court after due consideration of material available on record.
5. The counsel for the appellant submits that learned Courts below have
recorded findings and passed judgment and decree without considering the real
dispute involved in the matter and infact there is dispute of boundaries of Survey
numbers and before passing the impugned judgment and decree the learned Courts
below ought to have appointed Commissioner to demarcate the land in question
and failure to do so has vitiated the judgment and decree passed by learned Courts
below.
6. Heard the learned counsel for the appellant and perused the record.
7. Counsel for the appellant has proposed four substantial questions of
law in the memo of appeal and he during the course of arguments fairly submits
that he does not wish to press the proposed substantial questions of law 6. B,C
and D but is pressing substantial question of law at 6.A only. It is clear from the
record that the predecessor in title of the plaintiff and defendant were Govind
Singh and Chatur Singh and they owned and possessed the land Survey No. 844
area 0.70 dismil, out of which, the land Survey No. 844/2 area 0.50 dismil, was
sold to the plaintiff vide registered sale deed dated 08-12-1964 and only an area
0.20 dismil i.e. 0.081 Are remained in the ownership of predecessor in title Govind
Signature Not Verified
Singh and Chatur Singh, which went in the construction of road and was recorded
SAN
Digitally signed by PARMESHWAR GOPE
as such. It has come on record that the area 0.20 dismil land of Survey No. 844/1
Date: 2022.03.09 10:34:20 IST
was got recorded in the name of private persons illegally whereas after sale of the
land in favour of the plaintiff and after construction of road on rest of the land,
there was no further land remained in the ownership of predecessor in title namely
Chatur Singh and Govind Singh.
8. As such, it is clear that any land from Survey No. 844 sold by Chatur
Singh or Govind Singh, by way of sale deed in question (i.e. dated 08.10.1987),
which is certainly of later point of time i.e. after 08-12-1964, could not confer any
right to the defendant No. 1 or any other person because as per settled law, upon
execution of two sale deeds of same land, the previous sale deed will prevail over
the later sale deed, as has been held by Hon'ble the Apex Court in the case of Atla
Sidda Reddy Vs. Busi Subba Reddy and others 2010 (4) MPLJ 304 and by
this Court in the case of Mohd. Ashraf and another Vs. M.P. Housing Board
and others 2011 (1) MPLJ 444.
9. In view of the aforesaid facts and legal position, as the defendant No.
1 or any other defendant had no ownership over the land in question, therefore,
there was no necessity to appoint the Commissioner to demarcate the land in
question hence the proposed substantial question No. 6.A does not arise in the
present Second Appeal.
10. Hence, there being no involvement of substantial question of law in
the present Second Appeal, the same is hereby dismissed in limine under Order
41 Rule11 Civil Procedure Code without any order as to costs.
(DWARKA DHISH BANSAL)
JUDGE
PG
Signature Not Verified
SAN
Digitally signed by PARMESHWAR GOPE
Date: 2022.03.09 10:34:20 IST
