Madhya Pradesh High Court
Devdutt Sharma vs Smt. Anita on 17 November, 2022
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
SECOND APPEAL NO.2986 OF 2018
Between:-
1. DEVDUTT SHARMA S/O
RAMGOPAL SHARMA, AGED
ABOUT 54 YEARS, OCCUPATION:
AGRI. R/O GRAM RAJORA PS
INGORIYA (MADHYA PRADESH)
2. POORANLAL S/O BHAGWAN DAS R/O
PORSA CHOURAHA
AMBAH DISTT MORENA
(MADHYA PRADESH)
........APPELLANTS
(BY SHRI N.K. GUPTA, LEARNED SENIOR COUNSEL WITH
SHRI S.D.S. BHADORIA, LEARND COUNSEL FOR
APPELLANTS)
AND
1. SMT. ANITA W/O SHISHUPAL,
AGED ABOUT 45 YEARS, VILLAGE
ALAPUR, JORA, DISTRICT
MORENA (MADHYA PRADESH)
2. SMT. MAMTA W/O SUBHASH
CHANDRA, AGED ABOUT 41
YEARS, VILLAGE ALAPUR TEHSIL
JORA DISTT MORENA (MADHYA
PRADESH)
3. SARWATI (DEAD) THROUGH LR'S 3 (I)
SAHAB SINGH D/O S/O LATE SHRI
BHOGIRAM,, AGED ABOUT 60 YEARS,
2
OCCUPATION: AGRICULTURIST R/O
BAJHER, TEHSIL JORA DIST. MORENA
(M.P.), AT PRESENT PACHASA LINE,
NEAR KOTESHWAR MANDIR, GWALIOR
(MADHYA PRADESH)
4. SARWATI (DEAD) THROUGH LR'S 3 (II)
VIJAY SINGH S/O LATE SHRI
BHOGIRAM DECEASED THROUGH LR'S
II(A) SMT. SHRIMATI W/O LATE SHRI
VIJAY SINGH, AGE 55 YEARS RESIDENT
OF BAJHERA, TEHSIL JORA DISTRICT
MORENA (M.P.) (MADHYA PRADESH)
5. VIJAY SINGH S/O LATE SHRI
BHOGIRAM DECEASED THROUGH LR'S
II(B) PAWAN AGE 35 YEARS S/O LATE
SHRI VIJAY SINGH RESIDENT OF
BAJHERA, TEHSIL JORA DISTRICT
MORENA (M.P.) (MADHYA PRADESH)
6. VIJAY SINGH S/O LATE SHRI
BHOGIRAM DECEASED THROUGH LR'S
II(C) PRADEEP AGE 32 YEARS S/O
LATE SHRI VIJAY SINGH RESIDENT OF
BAJHERA, TEHSIL JORA DISTRICT
MORENA (M.P.) (MADHYA PRADESH)
7. VIJAY SINGH S/O LATE SHRI
BHOGIRAM DECEASED THROUGH LR'S
II(D) VISHNU AGE 30 YEARS S/O LATE
SHRI VIJAY SINGH RESIDENT OF
BAJHERA, TEHSIL JORA DISTRICT
MORENA (M.P.) (MADHYA PRADESH)
8. VIJAY SINGH S/O LATE SHRI
BHOGIRAM DECEASED THROUGH LR'S
II(E) SAPNA AGE 28 YEARS D/O LATE
SHEI VIJAY SINGH RESIDENT OF
BAJHERA, TEHSIL JORA DISTRICT
MORENA (M.P.) (MADHYA PRADESH)
9. SARWATI (DEAD) THROUGH LR'S 3 (III)
RAJENDRA SINGH ALIAS REMAVTAR
SINGH AGE 55 YEARS S/O LATE
SHRI BHOGIRAM R/O BAJHERA, TEHSIL
3
JORA, DISTRICT MORENA (MADHYA
PRADESH)
10. SARWATI (DEAD) THROUGH LR'S 3 (IV)
SMT. RAMKALI W/O SHRI HETAM
SINGH AGE 65 YEARS) D/O LATE SHRI
BHOGIRAM R/O VILLAGE MUGAWALI,
TEHSIL AND DISTRICT MORENA (M.P.)
(MADHYA PRADESH)
11. SARWATI (DEAD) THROUGH LR'S 3 (V)
SMT. RAMVATI W/O SHRI HUKUM
SINGH AGE 63 YEARS) D/O LATE SHRI
BHOGIRAM R/O VILLAGE JAURASI,
THANA BILLAUA, DISTRICT GWALIOR
(MADHYA PRADESH)
12. KALAWATI (DEAD) THROUGH LR'S 4 (I)
RAJKUMAR AGE 47 YEARS S/O SHRI
BABU SINGH R/O VILLAGE CHHERA,
TEHSIL JORA, DISTRICT MORENA (M.P.)
AT PRESENT OM PURA, DISTRICT
MORENA (M.P.) (MADHYA PRADESH)
13. KALAWATI (DEAD) THROUGH LR'S 4 (II)
SMT. PUSHPA DEVI W/O SHRI SULTAN
SINGH, AGE 60 YEARS D/O SHRI BABU
SINGH, R/O HANUMAN NAGAR, GOLE
KA MANDIR, GWALIOR (M.P.) (MADHYA
PRADESH)
14. KALAWATI (DEAD) THROUGH LR'S 4
(III) SMT. SAROJ DEVI W/O SHRI SAJJAN
SINGH AGE 45 YEARS D/O SHRI BABU
SINGH R/O HANUMAN NAGAR, GOLE
KA MANDIR, GWALIOR (M.P.) (MADHYA
PRADESH)
15. PRADEEP AGED 29 YEARS S/O S/O SHRI
VIJAY SINGH R/O BAJHERA,
PRESENTLY RESIDING AT
MAHARAJPURA ROAD, MORENA
TEHSIL JORA, DISTRICT MORENA (M.P.)
(MADHYA PRADESH)
16. PAWAN AGED 26 YEARS S/O SHRI
4
VIJAY SINGH R/O BAJHERA,
PRESENTLY RESIDING AT
MAHARAJPURA ROAD, MORENA
TEHSIL JORA, DISTRICT MORENA (M.P.)
(MADHYA PRADESH)
17. RAMLAKHAN S/O SHRI LAXMAN
PRASAD UPADHYAY R/O NEW HOUSING
BOARD COLONY, A.B. ROAD, MORENA
(M.P.)
18. THE STATE OF MADHYA PRADESH
THROUGH COLLECTOR MORENA
(MADHYA PRADESH)
........RESPONDENTS
(SHRI P.C. CHANDIL, LEARNED COUNSEL FOR
RESPONDENT NO.1 AND SHRI ANKUR MAHESHWARI,
LEARNED COUNSEL FOR RESPONDENT NO.2)
----------------------------------------------------------------------------------------
Reserved on : 10.11.2022
Delivered on : 17.11.2022
This appeal coming on for hearing this day, the Court passed the
following:
ORDER
This Second Appeal has been preferred under Section 100 of Civil
Procedure Code, 1908 by the appellants-defendant No.6 and 7 against the
judgment and decree dated 10/11/2014 passed in Regular Civil Appeal
No.07/2016 by IInd Additional District Judge Joura District Morena
(M.P.), whereby judgment & decree dated 26.02.2016 passed in Civil
Suit No.95-A/2012 by Ist Civil Judge Class-II, Joura Disrict Morena, has
been affirmed.
In brief facts of the case are that respondent No.1 and 2-plaintiff
filed a civil suit against Saraswati, Kalawati both are daughters of Hiralal
and subsequent purchaser Pradeep, Pawan, Rambaran and present
appellant Pooranlal and Devdutt Sharma for declaration of title and
permanent injunction in respect of land situated in survey No.1151/1 at
village Alapur admeasuring Rakwa 2 Bigha 18 Viswa. As per plaint
averments, aforesaid land was the ancestral property of plaintiff. After
the death of forefather Hiralal, the said land was inherited by his son
Babu Singh, Ramjilal and daughters Saraswati and Kalawati and their
names were mutated in the revenue records. In Samvat 2044 family
partition had taken place in which disputed land falls to the share of
defendant No.1 and 2 Saraswati and Kalawati. Defendant No.1 and 2 by
registered saledeed dated 16.12.2002 sold Rakwa 1 Bigha 4 Viswa out of
Rakwa 2 Bigha 18 Viswa in favour of respondent No. 1 and 2 i.e.
plaintiff Anita and Mamta for consideration of Rs. 1,02,000/- and by
creation of muddi, possession of said land was handed over to them.
After purchasing the said land by registered saledeed, respondent No.1
and 2-plaintiff constructed boundary wall on the spot and since then they
being owner and possession holder of the said land cultivating the same.
Defendant No.1 and 2 are Bua Saas of plaintiff. A dispute arose between
them due to which defendant No.1 and 2 sold the said land to Pradeep by
registered sale deed dated 14.12.2011 area 44 x 46 ft and in favour of
Pawan open land area 20 x 43.75 ft was sold and possession was handed
over to them. Pradeep and Pawan on 08.06.2012 sold the said land to
Ramlakhan by sham and fraudulent saledeed. In Patwari Papers, earlier
the name of defendant No.3 and 4 and thereafter name of defendant No.5
was wrongly entered. Defendant No. 5 Ramlakhan on 12.12.2013
executed forged and illegal sale deed in favour of defendant No.6 and 7
since they were having no knowledge that the said disputed land is in
ownership and possession of appellants. Defendant No. 6 and 7 during
pendency of civil suit on the basis of sham and fraudulent saledeed
forcefully started raising construction over the said disputed land
evicting the plaintiff from the disputed land. On 25.09.2012 and
27.09.2012 appellants got copy of Khasra and sham and fraudulent
saledeed and thereafter they came to know about the said sham and
fraudulent sale deed due to which they were forced to file civil suit. On
receiving notice of plaint, appellants alongwith other respondents
appeared and submitted their reply denying the averments made in the
plaint. It has been admitted by them that the land situated in survey
No.1151/1 area 2 Bigha 18 Viswa was in the ownership of Hiralal and
after the death of Hiralal, names of his sons and daughters were mutated
in the revenue record After the death of forefather Hiralal, the said land
was inherited by his son Babu Singh, Ramjilal and daughters Saraswati
and Kalawati and their names were mutated in the revenue records. In
Samvat 2044 family partition had taken place in which disputed land
falls to the share of defendant No.1 and 2 Saraswati and Kalawati.
Defendant No.1 and 2 had neither executed sale-deed in favour of
plaintiffs nor possession had been handed over to them. Plaintiff are
claiming their possession illegally on the vacant land and not on the land
in regard to which saledeed had been executed in their favour. Plaintiffs
are neither in possession of disputed land nor they are cultivating the
same. Defendant No.1 and 2 have statutory right to use the land which is
in the ownership and possession of them. Defendant No.1 and 2 executed
registered sale-deed in favour of defendant No.3 and 4 and defendant
No.3 and 4 executed saledeed in favour of defendant No.5 and since then
defendant No.5 is in possession of the disputed land and his name has
been mutated in the revenue records in accordance with law. Hence, the
civil suit deserves to be dismissed.
Defendant No. 5 and appellants-defendant No.6 and 7 separately
filed their reply. Appellants-defendants No.6 and 7 in reply submitted
that they purchased the disputed land by registered saledeed from
Ramlakhan-defendant No.5 after paying consideration amount and since
then they are in possession of the disputed land and their names have
been mutated in the revenue records.
Learned trial court after framing issues and allowing liberty to the
parties to adduce evidence, decreed the suit in favour of plaintiffs and
directed defendant No.6 and 7 to vacate the disputed land within 15 days
and handed over the possession to the plaintiffs. Aggrieved by the
aforesaid judgment and decree, defendant No.6 and 7 preferred an appeal
before the Appellate Court which was dismissed.
Aggrieved by the judgment and decree passed by the courts below,
appellants preferred this appeal on the ground that respondent No.1 and
2-plaintiffs filed civil suit on the ground that they have purchased the
disputed land by registered saledeed dated 16.12.2002 but on perusal of
the saledeed, it is clear that there is no mention regarding boundaries of
the land neither any map was attached. Besides this, in the plaint they
have pleaded that the disputed land has fallen in their share but aforesaid
sale-deed shows that besides respondent No.1 and 2 one Ramjilal has
also executed a saledeed who is their father-in-law. As per saledeed,
besides share of Kalawati and Sarwati, Ramjilal has also sold his
complete share. Plaintiff Anita during cross-examination has admitted
that she has not paid any consideration amount to Ramjilal and
consideration amount of Rs.51,000/- was paid to Sarwati and remaining
Rs.51,000/- to Kalawati. Ramjilal and Babu Singh has not been made
party in the civil suit. They have not mentioned in the plaint, how land
was divided.
On behalf of respondents, it is submitted that respondents No.1 and
2 had purchased disputed land by registered sale-deed from Sarwati and
Kalawati and got possession. Their name has been mutated in the
revenue records. Thereafter Sarwati had not right to sell the disputed land
to Pawan and Pradeep. Similarly subsequent purchaser Ramlakhan and
appellants have no right to purchase the disputed land.
Learned counsel for the appellant has relied upon Bondar Singh
and others Vs. Nihal Singh and Others 2003 (4) SCC 161, Ishwar
Dass Jain Vs. Sohan Lal 2000 (1) SCC 434, Shyamlal and otehrs Vs.
Phuliya Bai and another 2005 (2) MPLJ SN10 and Vishnu Sharan
and Ors. Vs. Ajuddhibai and Ors. 2004 (3) MPLJ 25, Nazir
Mohamed Vs. J. Kamala and ors. 2021 (4) MPLJ 46.
Learned counsel for the respondents has relied upon Sajoo Prasad
Vs. Baijnath 1961 JLJ SN 94, Vidyabai and others Vs. Padmalatha
and another 2009 2 SCC 409, Gurdev Kaur and others Vs. Kaki and
others 2007 (1) SCC 546.
Respondent had filed civil suit on the basis that they had purchased
the disputed land by registered saledeed from Sarwati and Kalawati area
1 Bigha 4 Viswa out of 2 Bigha 18 Viswa and got possession but on
perusal of the aforesaid saledeed, it transpired that Ramjilal had sold
his complete share and Sarwati and Kalawati had sold some land out of
their share. In the aforesaid saledeed, it has been mentioned that sold
land is admeasuring 1 Bigha and 4 Viswa but it is not clear that out of
total 2 Bigha and 18 viswa land how much land Babu Singh, Ramjilal,
Sarwati and Kalawati got in family arrangement especially when
registered saledeed has been executed by Sarwati and Kalawati in favour
of Pradeep and Pawan. It is not the case of respondent No.1 and 2 that
Sarwati and Kalawati had sold full share to them. In these situation, it
cannot be ruled out that after aforesaid saledeed was executed, Sarwati
and Kalawati should have sold their remaining piece of land admeasuring
44 x 46 sq ft. and 20 x 43.75 sq ft to Pradeep and Pawan. As per plaint
only Sarwati and Kalawati had sold the disputed land to respondent No.1
and 2 but on perusing the aforesaid saledeed, their father-in-law Ramjilal
had also sold his complete share to respondent No.1 and 2. Learned Trial
Court and Appellate Court shifted liability on appellant to prove that they
have not purchased the disputed property which was liability of
respondent No.1 and 2 which they have not complied with. On going
through the saledeed executed on 16.12.2002, it is clear that Ramjilal had
sold his complete share and Kalawati and Sarbati had sold part of their
shares. They sold land admeasuring 44 x 46 sq ft. and 20 x 43.75 sq ft to
Pradeep and Pawan. From the original saledeed dated 16.12.2002, it is
not clear that how much area of their share Kalawati and Sarbati had sold
to Anita and Mamta. This fact has not been taken into consideration by
the Courts below which requires to be adjudicated. In this aforesaid
situation,this appeal being arguable is admitted on the following
substantial questions of law:-
"(A) Whether, learned Courts below erred in passing the
judgment and decree in favour of plaintiff without dealing with
the fact that how much land Kalawati and Sarbati got in their
share in family partition and how much land they have sold to
respondent No.1 and 2 ?"
Also heard I.A. No.5240/2018, an application under Order 41 rule
5 CPC.
On due consideration, the same is allowed.
The effect and operation of the judgment and decree dated
26.02.2016 passed by First Civil Judge Class 2 Jora, District Morena in
Civil Suit No.95A/2012 confirmed in F.A. No.7/2016 on 22.11.2018 by
Second Additional District Judge, Jora District Morena shall remain
stayed.
(DEEPAK KUMAR AGARWAL)
JUDGE
ojha
YOGENDRA OJHA
2022.11.17 17:54:58 +05'30'
