Smt. Anjira Bai vs Smt. Nirmala Bai
2023 Latest Caselaw 5530 MP

                                 1


IN THE        HIGH COURT OF MADHYA PRADESH
                   AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 5th OF APRIL, 2023
              SECOND APPEAL No.170 of 2020
BETWEEN:-
1.   SMT. ANJIRA BAI WIDOW OF LATE
     SUMARLAL GOND, AGED ABOUT 55
     YEARS,              OCCUPATION:
     AGRICULTURIST    R/O   VILLAGE
     DUNGARIA,   CHHAPARA,    TEHSIL
     CHHAPARA,     DISTRICT    SEONI
     (MADHYA PRADESH)
2.   RAJENDRA S/O LATE SUMARLAL
     GOND, AGED ABOUT 32 YEARS,
     OCCUPATION: AGRICULTURIST R/O
     VILLAGE DUNGARIA, CHHAPARA,
     TEHSIL CHHAPARA, DISTRICT SEONI
     (MADHYA PRADESH)
3.   JITENDRA S/O LATE SUMARLAL
     GOND, AGED ABOUT 29 YEARS,
     OCCUPATION: AGRICULTURIST R/O
     VILLAGE DUNGARIA, CHHAPARA,
     TEHSIL CHHAPARA, DISTRICT SEONI
     (MADHYA PRADESH)
4.   PRIYANKA D/O LATE SUMARLAL
     GOND, AGED ABOUT 19 YEARS,
     OCCUPATION: AGRICULTURIST R/O
     VILLAGE DUNGARIA, CHHAPARA,
     TEHSIL CHHAPARA, DISTRICT SEONI
     (MADHYA PRADESH)
5.   AMARLAL S/O LATE KALIRAM GOND,
     AGED     ABOUT     40    YEARS,
     OCCUPATION: AGRICULTURIST R/O
     VILLAGE DUNGARIA, CHHAPARA,
     TEHSIL CHHAPARA, DISTRICT SEONI
     (MADHYA PRADESH)
                                       .....APPELLANTS
(BY SHRI JANAKLAL SONI - ADVOCATE)
AND
1.   SMT. NIRMALA BAI W/O SHYAMLAL
     GOND, AGED ABOUT 50 YEARS, R/O
     VILLAGE TELANKHEDI, TEHSIL AND
     DISTRICT NAGPUR (MAHARASHTRA)
                                     2


2.   BHARATLAL S/O SHIVAJI KUMRE,
     AGED ABOUT 50 YEARS, R/O KATANGI
     NAKA,  TEHSIL    AND     DISTRICT
     (MADHYA PRADESH)
3.   PHOOLMATI     BAI   WIDOW    OF
     KALIRAM GOND, AGED ABOUT 65
     YEARS, R/O LALMATIA, DUNGARIA
     CHHAPARA,    TEHSIL   CHHAPARA
     DISTRICT SEONI (MADHYA PRADESH)
4.   SOMTI BAI W/O CHOKHELAL UIKEY
     AGED   ABOUT   47  YEARS   R/O
     LALMATIA, DUNGARIA CHHAPARA,
     TEHSIL CHHAPARA DISTRICT SEONI
     (MADHYA PRADESH)
5.   GOMTI BAI W/O CHOKHELAL UIKEY,
     AGED   ABOUT   45  YEARS,  R/O
     LALMATIA, DUNGARIA CHHAPARA,
     TEHSIL CHHAPARA DISTRICT SEONI
     (MADHYA PRADESH)
6.   ITTU D/O KALIRAM GOND, AGED
     ABOUT 35 YEARS, R/O LALMATIA,
     DUNGARIA   CHHAPARA,   TEHSIL
     CHHAPARA     DISTRICT   SEONI
     (MADHYA PRADESH)
7.   LAKHANLAL S/O KALIRAM GOND,
     AGED   ABOUT   38  YEARS,  R/O
     LALMATIA, DUNGARIA CHHAPARA,
     TEHSIL CHHAPARA DISTRICT SEONI
     (MADHYA PRADESH)
8.   STATE    OF   M.P.    THROUGH
     COLLECTOR DISTT. SEONI (MADHYA
     PRADESH)
                                              .....RESPONDENTS
(RESPONDENT NO.8/STATE BY MS. SHANTI TIWARI - PANEL LAWYER)

       This appeal coming on for admission this day, the court passed the
following:
                             JUDGMENT

This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 30/11/2019 passed by Second Additional District Judge, Lakhnadon, District Seoni in Regular Civil Appeal No.100037/2015 arising out of judgment and decree dated

29/09/2015 passed by First Civil Judge Class-2 Lakhnadon, District Seoni in Civil Suit No.147A/2014.

2. The appellants No.1 to 4 are the legal representatives of original plaintiff No.1 - Sumarlal whereas the appellant No.5 is plaintiff No.2. The plaintiffs have lost their case from both the Courts below.

3. The plaintiffs filed a suit for declaration of title, partition, separate possession and permanent injunction by pleading inter-alia that the plaintiffs and the defendants No.3 to 7 are real brothers, sister and mother who were the legal representatives of Late Kaliram. The defendant No.3 - Phoolmati Bai is the widow of Kaliram whereas the defendants No.5 to 7 are the daughter and sons of Kaliram whereas the plaintiffs are sons of Kaliram. The ancestral property of Kaliram was situated in village Du Chhapara, Tehsil Chhapara bearing khasra No.89/4 (New No.113) area 1.287 hectare and khasra No.89/1-2 (New No.106) area 0.008 total 4.30 hectares. The said land was the ancestral property of the plaintiffs and the defendants No.3 to 7, which has not been partitioned so far. The plaintiffs and the defendants No.3 to 7 are the Aadiwasis belonging to Scheduled Tribes and accordingly they are governed by their customs with an option that they may be governed by Hindu Succession Act. As per the customary law as well as Hindu Succession Act, each of the party has 1/7th share in the property and accordingly, it was mentioned that the khasra No.89/4 and 89/1-2 is the land in dispute. Kaliram had already expired prior to 1984-85. After the death of Kaliram, the defendant No.3 was the karta of the family. About 27-28 years back, a piece of the disputed property was given on contract to the defendant No.1 who had come to village Du, Tehsil Chhapara as her some of the relatives are the resident of the said

village. Since the defendant No.1 was the resident of Nagpur (Maharashtra), therefore after some time she went back to Nagpur. Certain writing work was done by the defendant No.3 in respect of contract which was not in the knowledge of the other legal representatives of Kaliram and still they are not aware of the same. The defendant No.2 by claiming him to be the brother of the defendant No.1 got a general power of attorney executed on 17/02/1994 and he tried to illegally take possession of 0.405 hectares of land forming part of khasra No.89/4 but he could not succeed. Since the defendants No.1 and 2 were regularly creating ruckus, therefore the plaintiffs verified from the revenue record and then on 02/09/2011 they came to know that by taking advantage of illiteracy of the defendant No.3, a sale-deed in respect of khasra No.89/4 area 0.405 hectares out of 1.285 aare has been registered in favour of defendant No.1 under the garb of registered contract. However, the defendants No.3 to 7 as well as the plaintiffs continued to be in possession of the same. Although the names of the other defendants are also mentioned as a seller in the sale- deed dated 12/02/1985 but it bears the thumb impression of defendant No.3 only and it does not contain the thumb impression or signature of any other legal representatives of Kaliram. Even otherwise, no sale- deed was executed but it is a fraudulent document which was got executed by defendants No.1 and 2. Even otherwise, the property is an undivided property and in absence of any partition, no co-sharer can alienate any specific piece of land and if the defendant who claims herself to be the purchaser wants to take possession, then she has to insist for partition and thus it was claimed that the sale-deed dated 12/02/1985 is not binding on the legal representatives of Kaliram. The cause of action arose on 05-06th of September, 2011 and 12th of

September, 2011 when the plaintiffs got the copy of the sale-deed and accordingly, the suit was filed for partition and declaration that the plaintiffs and defendants No.3 to 7 have 1/7th share in the property as well as for separate possession.

4. The defendants No.1 and 2 filed their separate written statement along with counter-claim. It was admitted that the plaintiff and defendants No.3 to 7 are real brother, sister and mother but it was denied that they are the legal representatives of Late Kaliram. It was denied that Kaliram had ancestral properties bearing khasra No.89/4 and 89/1-2. It was denied that the said ancestral properties have not been partitioned so far. It was admitted that the plaintiffs and the defendants No.3 to 7 are the Aadiwasis belonging to Scheduled Tribes and are governed by their customary laws. However, it was denied that in the alternative, the plaintiffs and defendants No.3 to 7 had accepted the Hindu law and are governed by Hindu Succession Act. It was denied that the plaintiffs and defendants No.3 to 7 have 1/7th share each. It was denied that the land in dispute was given on contract to defendant No.1. It was denied that the defendant No.2 by showing the power of attorney had tried to illegally take possession of khasra No.89/4 area 0.405 hectares. It was denied that only thereafter the plaintiff collected the information and they came to know about the sale-deed. It was admitted that the sale-deed bears the thumb impression of defendant No.3 and it does not bear the signatures or thumb impression of any other person. However, it was denied that the sale-deed was got executed by playing fraud and it was also denied that same is not binding on the plaintiffs.

5. In an additional pleadings as well as counter-claim it was

pleaded that the defendant No.1 and 2 are real brother and sister and they are not related to the plaintiffs and other defendants. Khasra No.89/4 area 1.287 hectares was in the joint ownership of defendants No.3 to 7. Earlier the land was recorded in the name of Kaliram and Kaliram in order to dig a Well had taken agricultural loan from the State Bank of India, Branch Chhapara. Phoolmati Bai widow of Kaliram was in need of repayment of loan as well as for meeting out the other necessary domestic expenses, therefore the defendant No.3 alienated 0.405 hectares of land out of 1.287 hectares forming part of khasra No.89/4 to the defendant No.1 for consideration amount of Rs.4,000/- and from the said consideration amount, the defendant No.3 had also repaid the agricultural loan to the State Bank of India, Branch Chhapara. After about one year of the sale-deed, the State Government has also granted Bhumiswami right of khasra No.89/1-2 which has been renumbered as khasra No.106 and accordingly, the defendant No.1 has constructed a house which is also recorded in the name of defendant No.1 in the records of Gram Panchayat Chhapara. On the basis of the registered sale-deed dated 12/02/1985, the name of the defendant No.1 has been mutated in the revenue records. Since the husband of the defendant No.1 was serving at Nagpur, therefore she was also residing at Nagpur and used to give the land on adhiya, whereas the actual possession of the land and the house remained with the defendant No.1. Later on, on account of steep escalation in the prices of property, the intention of the plaintiff became dishonest and accordingly, on the basis of forged documents they filed an application on 27/05/2011 in the Court of Nayab Tehsildar Chhapara in which a statement was made that khasra No.113/2 was recorded in the name of Smt. Nirmala Bai w/o Shyamlal/ defendant No.1, who has expired on 18/12/2008. It was

claimed that Nirmala Bai/ defendant No.1 is the elder mother of the plaintiffs and she was issueless and accordingly, it was prayed that the name of Sumarlal @ Surendra be recorded in place of Nirmala Bai/ defendant No.1 in respect of khasra No.113/2. When the defendant No.1 came to know about the misdeed of the plaintiff No.1 Sumarlal, then she appeared before the Tahsildar on 19/09/2011 and filed her objection and accordingly, his application was rejected. The Tahsildar Chhapara by its order dated 28/02/2012 came to a conclusion that Sumarlal @ Surendra has prepared forged and false death certificate and accordingly, had also directed for criminal as well as legal action against Sumarlal @ Surendra. It was further pleaded that the plaintiffs had tried to grab the property of defendant No.1 on the basis of forged and concocted document which is a serious criminal act and defendants No.1 and 2 are taking criminal action against them. The plaintiffs are the near relatives of defendants No.3 to 7 and accordingly, they have impleaded them so that defendant No.3 to 7 may create confusion. The disputed property bearing khasra No.113/2 is an un-irrigated land. It was further pleaded that the plaintiffs in an unauthorized manner have taken possession of the disputed property as well as the house, accordingly, it was claimed that the defendant No.1 is entitled for vacant possession of the land in dispute as well as vacant possession of unauthorized construction raised by the plaintiffs on khasra No.106. Accordingly, a counter-claim was also filed for possession of the land in dispute as well as for demolition of illegally raised construction over khasra No.106 as well as mesne profit at the rate of Rs.2,000/- per annum till the possession is given.

6. The plaintiffs also filed their written statement to the counter-

claim filed by the defendants No.1 & 2.

7. The Trial Court after framing issues and recording evidence dismissed the suit filed by the appellants and allowed the counter- claim. The suit filed by the appellants was dismissed as barred by time.

8. Being aggrieved by the judgment and decree passed by the Trial Court, the appellants preferred an appeal which too has been dismissed.

9. Challenging the judgments and decrees passed by the Courts below, it is submitted by the counsel for the appellants that the Courts below have wrongly held that the suit filed by the plaintiffs was barred by time. Phoolwati had executed a sale-deed on behalf of the minor without obtaining permission from District Judge which is illegal and void ab initio and proposed the following substantial questions of law:-

"(i) Whether the learned Courts below wrongly held that the transfer of the suit land by Phoolmati for & on behalf of the minor without obtaining the permission of the District Judge, is illegal and ab- inito void?

(ii) Whether the learned Courts below wrongly held that the suit of the plaintiffs/appellants is barred by time when plaintiffs/ appellants specifically asserted that they came to know for the first time of the execution of the sale deed on 12.09.2011?

(iii) Whether the Courts below wrongly held that Phoolmati has legally transferred the suit land to protect the interest of the minor sons and daughters while the whole suit land has been transferred by Phoolmati, therefore, it cannot be said to be a legal necessity when nothing has been remained to protect the interest of the minors?

(iv) Whether the findings of the learned Courts below is illegal and perverse?"

10. Heard the learned counsel for the appellants.

11. Ex.D-4 is the sale-deed executed by defendant No.3 in favour of defendant No.1. This sale-deed was executed on 12/02/1985. In the sale-deed itself it was mentioned that the vendors are in need of money for repayment of loan amount and accordingly 0.405 hectares of land out of 1.287 hectares of land forming part of khasra No.89/4 was alienated for a consideration amount of Rs.4,000/-. Immediately on the next date, the defendant No.3 deposited a cash amount of Rs.1,454.95 towards the repayment of outstanding agricultural loan for constructing a Well taken by Kaliram which is evident from the receipt dated 24/04/1995 issued by the State Bank of India, Ex.D-5. Even Phoolmati, DW-2/ defendant No.3, who had allegedly alienated the land in dispute to defendant No.1 by sale-deed, Ex.D-4, has admitted in paragraph 8 of her cross-examination that after the death of her husband she had become widow and her 6 minor children were dependent on her and she had no independent source of income. It was further admitted that for repayment of agricultural loan taken by Kaliram, the Bank had initiated proceedings and accordingly, the loan was repaid. It was also admitted that the loan was repaid on the next date of execution of the sale-deed. She further admitted that Sumarlal and Amarlal have filed a suit for recovery of possession and she wants that the disputed property may be saved and the defendant No.1 may not take the possession.

12. Both the Courts below have given a concurrent finding of fact that Phoolmati (DW-2) had executed a sale-deed Ex.D-1/D-4 in favour of defendant No.1. So far as the fact that the sale-deed Ex.D-1/D-4 dated 12/02/1985 does not contain the signatures of the children of Phoolmati is concerned, the same is not of very importance because

Amarlal (PW-1) has specifically admitted in paragraph 11 of his cross- examination that on the date of execution of sale-deed dated i.e. 12/02/1985, he and all his siblings were minor and at that time, only their mother Phoolmati Bai was looking after them and she was the guardian. He further admitted that as per the sale-deed, Ex.D-1, her mother had alienated the property on behalf of herself as well as her minor children for repayment of loan amount. It was further admitted that on the basis of the sale-deed, Ex.D-1, the name of Nirmala Bai / defendant No.1 was recorded in the revenue records. He further admitted that his mother Phoolmati Bai never raised any objection with regard to the sale-deed, Ex.D-1. She never filed any suit for declaration of sale-deed as null and void. He further admitted that no suit was filed within 3 years of attaining majority either by him or by his siblings. He further admitted that one Well was got dug by his father Kaliram but he expressed his ignorance for want of knowledge that whether Kaliram had taken loan for said purposes or not. However, he on his own stated that the loan from Bank was taken and the same has been repaid. He admitted that on 13/02/1985, his mother repaid the outstanding loan amount of the loan taken by his father. He denied for want of knowledge that after purchasing the land in dispute, the defendant No.1 had demanded another land which was allotted to her by the State. He further admitted that on the allotted land, one house is constructed but claimed that the said house belongs to him. However, he admitted that he has not filed any document to show that the land in question belongs to them and could not point out any reason for non-filing of the said document. He admitted that the house in question is situated within the territorial jurisdiction of Gram Panchayat Chhapara and as per the record of the Gram Panchayat Chhapara the name of defendant No.1 is

recorded in respect of the house. He admitted that the husband of the defendant No.1 was working in Nagpur and defendant No.1 was also staying in Nagpur. He further admitted that the prices of the lands have escalated by multiple times. He further admitted that he had moved an application before the Tehsildar Chhapara for mutation of his name which is Ex.D-2 but he expressed his ignorance about the contents of the same. He also admitted that the application filed by him for mutation was rejected by the Tehsildar Chhapara. He denied that by disclosing the defendant No.1 as dead and issueless he had tried to get the land and house mutated in his name which was rejected. He denied for want of knowledge that Tehsildar Chhapara had directed the police to initiate criminal proceedings for filing forged documents. He admitted that he never challenged the order passed by the Tehsildar Chhapara by filing an appeal before SDO. He admitted that his mother and siblings want that the plaintiffs may get their land.

13. Thus, it is clear that the deceased Kaliram had taken bank loan for digging Well. The loan amount was outstanding and the bank had initiated proceedings against legal representatives of Kaliram for repayment of loan amount and for the repayment of the same, the defendant No.3 had alienated a part of khasra No.89/4 by sale-deed Ex.D-4. Amarlal (PW-1) has also admitted that after the death of their father, the defendant No.3 was the karta of the family. Thus, it is clear that undisputedly the property in dispute was sold in discharge of liability of late Kaliram. Thus, the sale of the land was for legal necessity.

14. It is well settled principle of law that the High Court in exercise of power under Section 100 of CPC cannot interfere with the

concurrent findings of fact unless and until they are found to be perverse or contrary to the record.

15. No perversity could be pointed out by the counsel for the appellants. The suit has been rightly held to be barred by time because the appellants were aware of the execution of the sale-deed and only because of that the appellant No.2 had filed an application for mutation of his name in place of defendant No.1 by projecting her to be a dead and issueless person.

16. Under these circumstances, no substantial question of law arises in the present appeal.

17. As a consequence thereof, the judgment and decree dated 30/11/2019 passed by Second Additional District Judge, Lakhnadon, District Seoni in Regular Civil Appeal No.100037/2015 arising out of judgment and decree dated 29/09/2015 passed by First Civil Judge Class-2 Lakhnadon, District Seoni in Civil Suit No.147A/2014, are hereby affirmed.

18. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE shubhankar Digitally signed by SHUBHANKAR MISHRA Date: 2023.04.11 16:51:16 +05'30'