Yunus Khan vs Farman Khan
2023 Latest Caselaw 5836 MP

1                                                       S.A. No.296 of 2018

     IN THE HIGH COURT OF MADHYA PRADESH
                  AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                 ON THE 11th OF APRIL, 2023

              SECOND APPEAL NO.296 of 2018

     BETWEEN:-
1.   YUNUS KHAN S/O SULAMAN KHAN, AGED
     ABOUT 47 YEARS, R/O CHHINDI, TEH.
     TAMIYA, (MADHYA PRADESH

2.   SMT. URMILA W/O PRABHUDEEN SAHANI,
     AGED ABOUT 35 YEARS, MINA SHARMA,
     AGED ABOUT 71 YEARS R/O CHHINDI, TEH.
     TAMIYA, (MADHYA PRADESH)

                                              .....APPELLANTS

     (SHRI MOHD. AADILUSMANI, ADVOCATE)


     AND

1.   FARMAN KHAN S/O LATE SULEMAN KHAN,
     AGED ABOUT 39 YEARS, CHHINDI, TEH.
     TAMIYA, (MADHYA PRADESH)

2.   AARIF KHAN S/O LATE SULEMAN KHAN,
     AGED ABOUT 45 YEARS, VILLAGE CHHINDI,
     TEH. TAMIYA, (MADHYA PRADESH)

3.   AAYUB KHAN S/O LATE SULEMAN KHAN,
     AGED ABOUT 45 YEARS, VILLAGE CHHINDI,
     TEH. TAMIYA, (MADHYA PRADESH)

4.   SMT. SAHARA BEE D/O LATE SULEMAN
     KHAN, W/O SAYED KHAN, AGED ABOUT 63
     YEARS, VILLAGE WARD NO. 12 KUMHARI
     MOHALLA, TEH. AMARWADA (MADHYA
     PRADESH)
 2                                                                S.A. No.296 of 2018


5.    SITARABI D/O SULEMAN, W/O MOHD. HANIF
      AGED ABOUT 60 YEARS, VILLAGE DURGA
      MANDIR      NEAR    DHODAVADI    TEH.
      JUNNARADEV DISTT. (MADHYA PRADESH)

6.    SMT. SAYJAN BEE D/O SULEMAN, W/O NASIR
      KHAN, AGED ABOUT 35 YEARS, VILLAGE
      BHAVARI   POST   SAVARI  BAZAR    TEH.
      MOHAKHED (MADHYA PRADESH)

7.    YUSUF KHA S/O SULEMAN, AGED ABOUT 51
      YEARS, VILLAGE CHHINDI, TEH. TAMIYA,
      (MADHYA PRADESH)

8.    STATE OF M.P THROUGH COLLECTOR DISTT.
      CHHINDWARA (M.P.) (MADHYA PRADESH)
                                                    .....RESPONDENTS

      (SHRI GAJENDRA PARASHAR, PANEL LAWYER
      FOR RESPONDENT-STATE)


...................................................................................................................................................................

      This appeal coming on for admission this day, Court passed the
following:
                             ORDER

This second appeal has been preferred by the defendants 1 & 8 (Yunus Khan and Smt. Urmila) challenging the judgment and decree dtd. 13.12.2017 passed by 3 rd Addl. District Judge, Chhindwara in Civil Appeal No.11-A/2015 affirming the judgment and decree dtd. 28.02.2015 passed by Civil Judge Class-1, Junnardev, Distt. Chhindwara in Civil Suit No. 5-A/2014 whereby learned Courts below have decreed the suit for declaration of title and permanent injunction filed by respondent 1-Farman Khan in respect of agricultural land khasra no.189/1 area 0.365 hectare situated in Patwari halka no.13 Village Chhindi, Tahsil Tamia, Distt. Chhindwara.

2. Learned counsel for the appellants/defendants 1 & 8 submits that the property in question was not owned by Suleman but it belonged to ancestors of the parties, therefore, Suleman had no right to execute sale deed in favour of one of his sons namely Farman Khan (plaintiff). He further submits that even after purchase of the suit land vide registered sale deed dtd.29.09.2008 (Ex.P/12), the plaintiff-Farman Khan's name was not mutated in the revenue record and after death of Suleman Khan, the land was recorded in the name of legal heirs of Suleman Khan, therefore, upon filing application for partition, the same was partitioned and on that basis, the land received by defendant 1 (Yunus Khan) in the partition, was sold to the defendant 8 vide registered sale deed dtd.30.04.2013 (Ex. P/17). He further submits that the learned Courts below have erred in holding the plaintiff to be owner/bhoomiswami and in possession of the suit land and further erred in declaring the order dtd. 31.08.2012 (Ex.P/15) passed by Tahsildar as well as sale deed dtd. 30.04.2013, null and void and ineffective, as against the plaintiff. Accordingly, he prays for admission of the second appeal.

3. Heard learned counsel for the appellants and perused the record.

4. On the basis of sale deed dtd. 29.09.2008 (Ex.P/12) executed by father Suleman Khan in favour of the plaintiff Farman Khan, the learned Courts below have held the plaintiff to be owner/bhoomiswami and in possession of the suit land Survey No.189/1 area 0.365 hectare.

5. As against the aforesaid title/ownership of the plaintiff, the defendant 1 has relied upon the order dtd. 31.08.2012 (Ex.P15) passed by Tahsildar in the case of partition and on that basis, he executed sale deed on 30.04.2013 (Ex.P/17) in favour of the defendant 8-Smt. Urmila in respect of an area 800 sq.ft., which after due consideration of

the material available on the record has been held to be void and ineffective by learned Courts below, as against the rights of the plaintiff-Farman Khan.

6. It is also apparent from the record that except the defendant 1- Yunus Khan, all other defendants have either supported the execution of sale deed in favour of the plaintiff or have not challenged the same. Even the defendant No.1 has not challenged the sale deed by filing any counter claim. Further there is no documentary evidence available on record to show that Suleman Khan was not owner/bhoomiswami of the land in question.

7. As such, in view of the aforesaid discussion and in view of the concurrent findings of facts recorded by learned Courts below, no substantial question of law appears to be involved in the second appeal.

8. Resultantly, the second appeal fails and is hereby dismissed in limine under Order 41 Rule 11 CPC.

9. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE

Pallavi Digitally signed by KUMARI PALLAVI SINHA Date: 2023.04.12 12:46:14 +05'30'