Madhya Pradesh High Court
Kanhaiyalal Patwa vs Smt. Silchaa Lodhi on 4 May, 2022
Author: Rajeev Kumar Dubey
1 S.A.No.1799 of 2021
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Single Bench : Hon'ble Shri Rajeev Kumar Dubey, J.
Second Appeal No.1799 of 2021
Kanhaiyalal Patwa & Anr.
vs.
Smt. Silcha Lodhi & Ors.
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Shri Dharmendra Soni, counsel for the appellants.
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JUDGMENT
Reserved on : 25.04.2022
Delivered on : 04.05.2022
This second appeal has been filed under Section 100 of CPC
against the judgment and decree dated 23.10.2021 passed by First
Additional District Judge, Gadarwara, District Narsinghpur in Civil
Appeal No.2/2021 whereby learned ADJ affirmed the judgment and
decree dated 25.02.2020 passed by First Additional Civil Judge Class II
to the Court of First Civil Judge Class II, Gadarwara, District
Narsinghpur in Civil Suit No.74-A/2018 whereby learned Civil Judge
decreed the suit of the respondents No.1 to 3 (plaintiffs of the suit) and
declared them owner of the land area 40x25=1000 square feet part of the
land bearing Khasra No.146/1 area 0.613 Hectare located at Mouja Babai
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Kala, Tahsil Gadarwara, District Narsinghpur (hereinafter referred to as
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the suit land) and directed the appellants (Defendants No.1 & 2 of the
suit) to give possession of the suit land within six months to the
respondent No.1 to 3 and not to interfere in the possession of the
respondent No.1 to 3 over suit land after giving its possession to them.
2. Brief facts of the case which are relevant to the disposal of this
appeal are that the respondents No.1 to 3 filed a Civil Suit No.74A/2018
before the Additional First Civil Judge Class II to the Court of First Civil
Judge Class II, Gadarwara, District Narsinghpur for declaration,
possession and permanent injunction regarding suit land averring that
earlier suit land was owned by late Gopi Kishan Lodhi and his mother
Smt. Fulia Bai. Gopi Kishan Lodhi died on 21.04.2009 thereafter the
name of the plaintiffs was entered in the revenue record over the suit land
with Smt. Fulia Bai as owner of the land. Smt. Fulia Bai also died on
17.02.2017 thereafter plaintiffs became sole owner of the suit land. It is
further averred that on 25.12.2016 appellant No.1 wrongly encroached
the suit land and also put the construction material for constructing a
house on the suit land and they started construction on the suit land so,
respondents No.1 to 3 be declared owner of the suit land and possession
of respondents No.1 to 3 be restored on suit land.
3. The appellants/defendants no.1 & 2 in the written statement denied
all the averments of the plaintiffs and averred that appellant no.1 had
contacted to purchased the suit land from Gopi Kishan Lodhi for
Rs.22,100/-. On 02/03/2007 after getting Rs.20,000/- Gopi Kishan Lodhi
had executed agreement to sale of suit land in favour of appellant no.1
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and also gave the possession of suit land to him. Since then, the
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appellants have been in possession of suit land. It was also agreed that
remaining amount i.e.Rs.2,100 be given at the time of execution of
registered sale deed. After getting possession of suit land, appellants
constructed the house on the suit land with the consent of Gopi Kishan
Lodhi and from March 2007 they have been residing in that house in the
knowledge of the respondent No.1 to 3. Because Gopi Kishan Lodhi died
so appellants could not get the sale deed of suit land executed from him.
Appellant No.1 many times told to respondents no.1 to 3 to execute the
registered sale deed of the suit land in his favour but they did not execute
the sale deed of suit land in his favour and respondents No.1 to 3 filed
false suit to harass the appellants. So suit be dismissed.
4. Learned Trial Court after giving the opportunity to both the parties
to adduce the evidence held that the respondents no.1 to 3 are the owner
of the suit land and only on the basis of agreement to sale no right accrues
to appellants in the suit land and they are the encroacher and their
possession over the suit land is illegal. Respondents No.1 to 3 are entitled
to get possession of suit land from the appellants. Learned trial court also
directed to the appellants to give possession of suit land to the plaintiffs
within six months. Being aggrieved from that judgement, the appellants
filed First Appeal No.2/2021 before First Additional District Judge,
Gadarwara, District Narsinghpur which was also dismissed by the
Additional District Judge vide judgement and decree dated 23.10.2021.
Being aggrieved from that judgement, the appellants have filed this
second appeal.
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5. Learned counsel for the appellants submitted that respondents No.1
to 3 filed suit averring that they are the owner of the suit land but they did
not file any document to prove their ownership over suit land. Learned
trial court as well as the first appellate court only on the basis of revenue
entries, held that the respondents no.1 to 3 are the owner of the suit land
while revenue entries is not the evidence of ownership. Learned trial
court as well as first appellate court without appreciating this facts
wrongly held that the respondents No.1 to 3 are owner of the suit land
and entitled to get possession of suit land from the appellants. In this
regard, he also placed reliance upon the Apex Court's judgements passed
in Balwant Singh and another v. Daulat Singh (Dead) by LRs and
others reported in (1997) 7 SCC 137 and Suraj Bhan and others v.
Financial Commissioner and others reported in (2007) 6 SCC 186.
6. This Court has gone through the record and arguments put forth by
the learned counsel for the appellants. The facts of the cases of Balwant
Singh (supra) and Suraj Bhan (supra) relied upon by the learned
counsel of the appellants do not match with the present case. In the first
case, the disputed land belonged to deceased Durga Devi and they
adopted Balwant Singh and Kartar Singh, after the death of her husband
and accordingly land was mutated in their name. Thereafter Chet Singh
filed Civil Suit No.194/1955. In that suit, the validity of the adoption of
Balwant Singh and Kartar Singh was one of the issue and the trial court
found that the alleged adoption was not proved and the mutation would
not bind the reversionary rights of the plaintiff after the death of the
widow Durga Devi. In these circumstances, Hon'ble Apex Court held that
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the mutation of the property in the revenue record will not extinguish the
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title nor has it any presumptive value on the title. In the second case, the
mutation has been effected in the revenue record by the Tahsildar on the
basis of the application made by the respondents and his name was
entered in the record of right on the basis of the will. While in this case it
is stated that in the revenue record earlier disputed land was recorded in
the name of late Gopi Kishan Lodhi and after his death, suit land was
mutated in the name of respondents no.1 to 3. Even the appellants
themselves pleaded in their written statement that they had contacted to
purchase the suit land from Gopi Kishan Lodhi and he executed an
agreement to sale (Ex.D-1) of the suit land in favour of appellant no.1.
So, these judgments do not assist the appellants.
7. The mutation entries are relevant for ascertaining the title but are
not the sole deciding factor to determine legal ownership. Where title is
disputed the mutation entries in such cases will not be conclusive proof of
the ownership. Apex Court in case of Vishwa Vijai Bharti v. Fakhrul
Hasan & Ors. (1976) 3 SCC 642 has held that "the entries in the
revenue record ought to be generally accepted at their face value and
courts should not embark upon an appellate inquiry into their
correctness." In this case, in the revenue record suit land is recorded in
the name of respondents no.1 to 3. Appellants did not plead that Gopi
Kishan Lodhi was not the owner of the suit land. On the contrary, they
pleaded in their written statement that they had contracted to purchase the
suit land from Gopi Kishan Lodhi and he executed an agreement to sale
of the suit land (Ex.D-1) in their favour. Appellant No.1 many times told
to respondents No.1 to 3 to execute the sale deed of the suit land in his
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favour, which clearly shows that appellants themselves admitted that the
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respondents no.1 to 3 are the owner of the suit land. So, in the considered
opinion of this Court, learned Trial Court, as well as the appellate court,
did not commit any mistake in holding that the respondents No.1 to 3 are
the owner of the suit land.
8. The only contention of the appellants is that they are in the
possession of suit land on the basis of an agreement to sale (Ex.D-1)
which was executed by Gopi Kishan Lodhi in their favor and they
construct the house over the suit land with the permission of Gopi Kishan
Lodhi. But The agreement to sell does not create any right to the
appellants in the suit property. Hon'ble the Supreme Court in Rambhau
Namdeo Gajre V Narayan Bapuji Dhotra, 2004 (8) SCC 614, para 13
held as under:
"13. The agreement to sell does not create an interest of the
proposed vendee in the suit property. As per Section 54 of
the Act, the title in immovable property valued at more than
Rs 100 can be conveyed only by executing a registered sale
deed. Section 54 specifically provides that a contract for sale
of immovable property is a contract evidencing the fact that
the sale of such property shall take place on the terms settled
between the parties, but does not, of itself create any interest
in or charge on such property. It is not disputed before us
that the suit land sought to be conveyed is of the value of
more than Rs 100. Therefore, unless there was a registered
document of sale in favour of Pishorrilal (the proposed
transferee) the title of the suit land continued to vest in
Narayan Bapuji Dhotra (original plaintiff) and remain in his
ownership."
9. The Apex Court in the case of Dharma Naika vs Rama Naika &
Anr, AIR 2008 SC 1276 also held that:-
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"Although an agreement for sale under the Transfer of
Property Act is not a transfer and the right, title or interest in
the land does not pass until the sale deed is executed and
registered. "Sale" has been defined in Section 54 of the
Transfer of Property Act which means transfer of ownership
in exchange for a price paid or promised or part-paid and
part- promised. As noted herein earlier, an agreement to sell
does not by itself create any interest of the proposed vendee
in the immovable property but only creates an enforceable
right in the parties.".
So the agreement to sell does not create any interest to the
appellants in the suit land.
10. The document Ex.D-1 produced by the appellants is not a
registered document. So according to the provisions of Section 17(1A) of
the Indian Registration Act, on the basis of that agreement to sale, the
appellants are not entitled to protect their possession over the suit land
under the provisions of Section 53A of Transfer of Property Act. Hence,
learned trial court did not commit any mistake in allowing the
respondents suit.
11. The Apex court in the case of Ram Prasad Rajak Vs. Nand
Kumar & Bros. & Anr., reported in AIR 1998 SC 2730, held that the
existence of substantial question of law is a sine-qua-non for the exercise
of jurisdiction under Section 100 of the Code. Although Apex court in the
case of Dinesh Kumar Vs Yusuf Ali reported in AIR 2010 SC 2679 after
considering their previous judgements held that the law on the subject
emerges to the effect that Second Appeal under Section 100 of C.P.C. is
maintainable basically on a substantial question of law and not on facts.
However, if the High Court comes to the conclusion that the findings of
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fact recorded by the courts below are perverse being based on no
evidence or based on irrelevant material, the appeal can be entertained
and it is permissible for the Court to re-appreciate the evidence.
12. While in this case, the trial Court, as well as the appellate court, did
not consider any irrelevant material, considered all the relevant evidence
produced by both the parties and held that the respondents no.1 to 3 are
the owner of the suit land and entitled to get possession of suit land from
appellants. Those findings are the findings of the fact and there is no need
to interfere in the findings in the second appeal. In light of the above
discussion, this Court is of the view that no substantial question of law
arises for consideration in the present appeal.
13. Hence, appeal is dismissed at the motion stage and judgement and
decree passed by the trial Court as well as the appellate Court is hereby
affirmed. Consequently, I.A. No.9636/2021 an application for stay is also
dismissed.
No order as to the costs.
(Rajeev Kumar Dubey)
Judge
as(ra)
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