Smt. Kesharbai vs Lakhan Lal
2022 Latest Caselaw 4159 MP

                                    1

            HIGH COURT OF MADHYA PRADESH
                   BENCH AT INDORE

         SINGLE BENCH: PRANAY VERMA, JUDGE

                SECOND APPEAL NO. 566 of 2020

Between:-

1. SMT. KESHARBAI W/O LATE CHHOTELAL,
   AGED ABOUT 72 YEARS,
   OCCUPATION: HOUSEWIFE, R/O GRAM PIPLIYA NAGAR,
   TEHSIL KALAPIPAL (MADHYA PRADESH)

2. DINESH S/O LATE CHHOTELAL ,
   AGED ABOUT 47 YEARS,
   OCCUPATION: AGRICULTURIST,
   R/O GRAM PIPLIYA NAGAR, TEHSIL KALAPIPAL (MADHYA PRADESH)
3. RAMPRASAD S/O LATE CHHOTELAL
   AGED ABOUT 37 YEARS,
   OCCUPATION: AGRICULTURIST,
   R/O GRAM PIPLIYA NAGAR, TEHSIL KALAPIPAL (MADHYA PRADESH)
4. RAJKUMAR S/O LATE CHHOTELAL,
   AGED ABOUT 35 YEARS,
   OCCUPATION: AGRICULTURIST.
   R/O GRAM PIPLIYA NAGAR, TEHSIL KALAPIPAL (MADHYA PRADESH)
5. SMT. REKHA BAI D/O LATE CHHOTELAL,
   AGED ABOUT 43 YEARS,
   OCCUPATION: HOUSEWIFE,
   R/OGRAM PIPLIYA NAGAR, TEHSIL KALAPIPAL (MADHYA PRADESH)
6. SMT. RUKMA BAI D/O LATE CHHOTELAL,
   AGED ABOUT 43 YEARS,
   OCCUPATION: HOUSEWIFE,
   R/O GRAM PIPLIYA NAGAR, TEHSIL KALAPIPAL (MADHYA PRADESH)
7. SMT. GAYTRI BAI D/O LATE CHHOTELAL,
   AGED ABOUT 39 YEARS,
   OCCUPATION: HOUSEWIFE,
  R/O GRAM PIPLIYA NAGAR, TEHSIL KALAPIPAL (MADHYA PRADESH)

(BY SHRI HARISH JOSHI, ADVOCATE )            ....... APPELLANTS

AND
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1. LAKHAN LAL S/O BAPULAL,
   AGED ABOUT 57 YEARS, OCCUPATION: HAIR CUTTING,
   R/O GRAM PIPLIYA NAGAR, TEHSIL KALAPIPAL (MADHYA PRADESH)
2. STATE OF M.P. THROUGH COLLECTOR,
   DISTRICT SHAJAPUR (MADHYA PRADESH)
                                               .....RESPONDENTS
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Reserved on:14.01.2022


                                JUDGMENT

Passed on (25.03.2022)

The learned counsel for the appellants is heard on the question of

admission.

This appeal under Section 100 of the CPC has been preferred by the

appellants/plaintiffs against the judgment and decree dated 20.12.2019

passed in Regular Civil Appeal 20-A/2017 and 21-A/2017 by the IInd

Additional District Judge, Shujalpur, District Shujalpur arising out of the

judgment and decree dated 10.08.2017 passed in Civil Suit No.136-

A/2017 by the Ist Civil Judge, Class-II, District Shujalpur whereby their

claim for specific performance of contract dated 18.04.1989 and for

permanent injunction has been dismissed and the counter claim of

defendant No.1/appellants has been decreed.

02. As per plaintiffs, Lakhanlal Nai, defendant No.1, was the owner of

the suit land bearing survey No.454/3 area 0.418 hectare Gram Pipliya

Nagar, Tehsil Kalapipal, District Shajapur. On 18.04.1989 he entered into

an agreement with Chhotelal, husband of plaintiff No.1 and father of

plaintiffs 2 to 7 for sale of the suit land in his favour at the rate of 2000/-

per bigha. An agreement was also executed between them in that regard

on 18.04.1989 upon payment of an amount of Rs.4000/- by Chhotelal to

defendant No.1 followed by delivery of possession. Chhotelal remained in

possession of suit land during his lifetime and after him the plaintiffs have

been in possession thereof. Chhotelal requested defendant No.1 for

execution of the sale deed in his favour on a number of occasions but he

refused to do so on some pretext or of the other. Upon death of Chhotelal,

plaintiffs requested defendant No.1 for execution of the sale deed but he

did not do so and in the year 2011 specifically stated that he shall not

execute the sale deed leading to institution of the instant suit.

03. The defendant No.1 contested the plaintiffs' claim by filing his

written statement submitting inter alia that no agreement to sale was

executed between him and Chhotelal, that the agreement set up by

plaintiffs is forged and fabricated, that he had purchased the suit land on

29.04.1981 by way of a registered sale deed and has been in possession

thereof ever since then, that plaintiffs have forcibly taken possession of

the suit land from him in 2009 and have illegally got their possession

recorded over the suit land in the revenue records. The defendant No.1

also laid a counter claim for declaration of his title to the suit land, for

possession of the same from plaintiffs and for mesne profit. The plaintiffs

filed their written statement to the counter claim of defendant No.1.

04. The trial Court held that plaintiffs have not been able to prove that

defendant No.1 had entered into an agreement to sale with Chhotelal on

18.04.1989, that they have also failed to prove that they have always been

ready and willing to perform their part of the contract, that defendant

No.1 has also failed to prove that he is the owner of the suit land and that

he is not entitled for possession of the same from plaintiffs though his

counter claim is within time. In consequence, plaintiffs claim as well as

counter claim of defendant No.1 both were dismissed.

05. Being aggrieved by the judgment and decree aforesaid, the

plaintiffs as well as defendant No.1 preferred separate appeals before the

Lower Appellate Court which have been heard and decided together by

the impugned judgment. While plaintiffs' appeal has been dismissed, the

appeal preferred by defendant No.1 has been partly allowed and he has

been declared to be the owner of the suit land and has been held entitled

for obtaining possession of the same from plaintiffs.

06. Learned counsel for the appellants submits that the Courts below

have committed a gross error of law in holding that plaintiffs have failed

to prove the execution of the agreement dated 18.04.1989 by defendant

No.1 in favour of Chhotelal. The evidence adduced by plaintiffs in that

regard has totally been misread and mis-appreciated by them. The counter

claim filed by defendant No.1 was barred by time whereas the Lower

Appellate Court has erred in allowing the same. No issue was framed by

the trial Court as regards the counter claim being barred by time. The

plaintiffs have been in possession of the suit land ever since the date of

execution of agreement to sale in favour of Chhotelal hence were entitled

for protection of their possession under the provisions of Section 53-A of

the Transfer of Property Act. The title of defendant No.1 to the suit land

has not been proved by him but has illegally been upheld by the lower

Appellate Court. It is also submitted that as plaintiffs have been in

possession of the suit land ever since the date of execution of agreement

in favour of Chhotelal, they have acquired title to the suit land by virtue

of adverse possession. Reliance has been placed on the decisions of the

Hon'ble Supreme Court in Bonder Singh and others vs. Nihal Singh

and others [AIR 2003 SC 1905], Syed Dastagir vs. T.T. Gopalakrishna

Setty [AIR 1999 SC 3029], Ram Awadh (dead) by L.Rs. and others vs.

Achhaibar Dubey and another [AIR 2000 SC 860] and Ashwinkumar

Manilal Shah and others vs. Chhotabhai Jethabhai patel and

others[AIR 2001 Gujrat 90].

07. I have heard the learned counsel for the appellant and have perused

the record. Both the Courts below have extensively considered the oral as

well as the documentary evidence adduced by plaintiffs and have arrived

at a finding that they have not been able to prove that on 18.04.1989

defendant No.1 had executed any agreement to sale in favour of

Chhotelal. This finding has particularly been arrived at for the reason that

no attesting witness to the agreement has been examined. The defendant

No.1 had specifically denied the execution of the agreement by him in

favour of Chhotelal hence, it was incumbent upon plaintiffs to prove the

execution of the said agreement which they have failed to do. In the

agreement there are no signature of Chhotelal. It is not clarified by

plaintiffs as to where the document was executed. The evidence of

plaintiff No.1 Kesharbai as PW.1 has been considered in observing that

there are several discrepancies in her statement. Thus the finding that

plaintiffs have failed to prove the execution of the agreement to sale being

a finding of fact arrived at on the basis of the material available on record

is not liable to be interfered with at the second appellate stage.

08. The Courts below have also recorded a categoric finding that

plaintiffs have failed to prove that Chhotelal, and after his death, they

have always been ready and willing to perform their part of the contract.

The agreement was admittedly executed in the year 1989 whereas the suit

was filed in the year 2012 i.e. after a period of 23 years. There is no plea

or proof as to what concrete steps were taken during this period for

seeking execution of the sale deed from defendant No.1. The explanation

offered by plaintiffs for the delay and latches in filing the suit of

defendant No.1 avoiding to execute the sale deed is not acceptable.

09. As plaintiffs have failed to prove the execution of the agreement to

sale itself, the question of their entitlement to protect their possession

under Section 53-A of the Transfer of Property Act does not arise at all.

Likewise, in absence of proof of their possession ever since 1989, their

claim for declaration of title on the ground of having acquired the same

by virtue of adverse possession is also not liable to be entertained. The

judgments relied upon by the learned counsel for the appellants hence

have no applicability in view of facts of the case.

10. The plaintiffs had themselves claimed specific performance of

contract from defendant No.1 meaning thereby that they have themselves

admitted title of defendant No.1 to the suit land and have sought

conveyance of the same in their favour. Since plaintiffs have themselves

admitted title of defendant No.1. There was hence no requirement of

proof of title of defendant No.1 as it is well settled that admitted facts are

not required to be proved. In any case defendant No.1 has produced the

sale deed dated 29.04.1981 Exhibit D/1 in his favour from which his title

has been categorically proved. The Lower Appellate Court has hence not

committed any error in reversing the finding recorded by the trial Court in

that regard and declaring defendant No.1 to be the owner of the suit land.

11. The plaintiffs have failed to prove their possession over the suit

land under the arrangement of sale. However, defendant No.1 has

categorically pleaded and proved from his documents that plaintiffs have

forcibly dispossessed him from the suit land in the year 2009. Prior to

2009 there is no document available on record to show that plaintiffs were

ever in possession of the suit land. The title of defendant No.1 has been

validly proved by him hence he is entitled to recover possession from the

plaintiffs. In absence of any proof of possession of plaintiffs prior to

2009, there is no reason to disbelieve the averment of defendant No.1 that

he was forcibly dispossessed by plaintiffs in 2009. His counter claim for

possession is based upon title and was filed by him on 06.01.2015. The

same was hence well within time as has been rightly held by the Lower

Appellate Court.

12. Thus the Lower Appellate Court has not committed any error of

law in dismissing plaintiffs' appeal and affirming dismissal of their claim

by the trial Court and in allowing the appeal of defendant No.1 and

decreeing their claim for defalcation of title and possession. The finding

recorded by Lower Appellate Court are perfectly just and proper and are

supported by the evidence available on record. No illegality or perversity

is found in the same. No substantial question of law arises for

determination in the appeal. Thus affirming the judgment and decree

passed by the Lower Appellate Court, the appeal is dismissed in limine.

(PRANAY VERMA) JUDGE jyoti Digitally signed by JYOTI CHOURASIA Date: 2022.03.25 16:22:24 +05'30'