Govind vs Deenanath
2023 Latest Caselaw 2596 MP

                             1                   S.A. No.821/2018


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 13th OF FEBRUARY, 2023
              SECOND APPEAL No. 821 of 2018
BETWEEN:-

GOVIND S/O LATE RAMPRASAD PATEL,
AGED ABOUT 50 YEARS, R/O VILLAGE TILI
BAGHRAG WARD SAGAR, DISTRICT
SAGAR (MADHYA PRADESH)


                                                  .....APPELLANT
(BY SHRI VIJYENDRA SINGH COUDHARY - ADVOCATE )

AND

1.   DEENANATH     S/O  RAMSHANKAR
     TIWARI, AGED ABOUT 71 YEARS, R/O
     HOUSE NO. 46 PURVYAAU TOURI,
     DISTRICT     SAGAR     (MADHYA
     PRADESH)



2.   SIYARAM S/O RAMSHANKAR TIWARI,
     AGED ABOUT 61 YEARS, R/O HOUSE
     NO. 46 PURVYAAU TOURI, DISTRICT
     SAGAR (MADHYA PRADESH)



3.   DINESH S/O RAMSHANKAR TIWARI,
     AGED ABOUT 56 YEARS, R/O HOUSE
     NO. 46 PURVYAAU TOURI, DISTRICT
     SAGAR (MADHYA PRADESH)



4.   RAGHUVEER S/O LAXMAN PATEL,
     AGED ABOUT 61 YEARS, R/O MAUJI
     TILI BAGHRAJ WARD, DISTRICT
     SAGAR (MADHYA PRADESH)
                                    2                     S.A. No.821/2018


                                                        .....RESPONDENTS
(MS. ANKITA KHARE - ADVOCATE FOR RESPONDENTS NO.1 TO 3)
.........................................................................................................

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

following:

                              JUDGMENT

This Second Appeal under Section 100 of Code of Civil Procedure has been filed against the judgment and decree dated 20.02.2018 passed by 5th Additional District Judge, Sagar in Regular Civil Appeal No.75/2017 arising out of judgment and decree dated 27.09.2017 passed by 2nd Civil Judge, Class-1 Sagar in Civil Suit No.132-A/2016, by which the suit filed by the appellant for declaration of title and permanent injunction has been dismissed.

2. According to the plaintiff, the family tree is as under:

Halkai

Ramprasad Lakshman Shankarlal Babulal (Issueless) Raghuveer

Premnarayan Prabhudayal Balmukund Kamtaprasad Ramesh Munna Govind Kanchedi Heeralal

3. Govind is one of the descendants of Ramprasad. The defendants No.1 to 3/respondents No.1 to 3 are the purchasers, who have purchased the land in dispute i.e. Khasra No.45/1 from the defendant No.4/Raghuveer by a registered sale deed dated 16.12.2003. The plaintiff Govind filed a suit on the ground that he is the owner and in possession of Khasra No.45/1 area 0.06 decimal. The said land was given to him on 02.07.2015 by the other descendants of Ramprasad by executing an unregistered consent letter. It was the further case of the appellant that on 20.08.2015, the defendant No.1 picked up a quarrel with him and started claiming that he is the owner of the said plot and accordingly, a report was lodged in the Police Station Gopalganj. On 27.08.2018, the defendant No.1 started causing damage to the house of the appellant and accordingly, the report was also lodged in Police Station Gopalganj on 27.08.2015. Again on 01.09.2015, the defendant No.1 came on the spot and demolished the house as well as boundary wall resulting in causing damage to the belongings of the appellant. Again a report was lodged where compromise took place and the plaintiff was given Rs.50,000/- by the defendant No.1 by way of compensation for damages. It was claimed that the defendants No.1 to 3 have got a registered sale deed executed in respect of disputed property on 15.12.2003 (registered on 18.12.2003), which was not in the notice and knowledge of the plaintiff. The defendants were never in possession of the land in dispute. After getting information about the sale deed, the plaintiff obtained a certified copy of the sale deed dated 15.12.2003/ 18.12.2003. It was alleged that the defendant No.4 has alienated the property in dispute to defendants No.1 to 3 without any right or title. It was claimed that under the garb of the sale deed, the defendants No.1 to 3 are trying to grab the property of the plaintiff and accordingly, the suit

was filed for declaration of title and permanent injunction.

4. The defendants No.1 to 3 filed their written statement and denied the plaint averments. They specifically claimed that the plaintiff is not the owner of Khasra No.45/1 area 0.06 decimal. The defendants No.1 to 3 have purchased the property in dispute by a registered sale deed dated 15.12.2003 executed by the defendant No.4/Raghuveer S/o Lakshman. The allegation of threatening the plaintiff was denied. On the contrary, it was claimed that immediately after the execution of sale deed, the defendants No.1 to 3 were placed in continuous possession of the land in dispute. It was also claimed that in Khasra Panchshala, the names of various persons including the plaintiff is recorded in respect of Khasra No.45/1 area 0.421 hectare but the plaintiff has not clarified that which specific part of land belongs to him. In fact, the plaintiff has no right in Khasra No.45/1 and his brother Prem Narayan has already alienated his share but since the names of the purchasers were not recorded in the revenue record, therefore, the name of the plaintiff is also recorded in the revenue record. Accordingly, it was claimed that the plaintiff has filed a false suit on incorrect facts.

5. The defendant No.4 filed his separate written statement and he virtually admitted the claim of the plaintiff. It is admitted that on 02.07.2015, the brothers of the plaintiff in the presence of the Panchas had given a consent letter thereby giving 0.06 decimal of land to the plaintiff. They had signed the consent letter voluntarily. It was also admitted that on 20.08.2015, 27.08.2015 and 01.09.2015, the defendants No.1 to 3 alongwith other family members and companions had demolished the house of the plaintiff. It was claimed that on 16.12.2003, the defendant No.4 was called in the office of Sub-Registrar. He was neither allowed to read the sale deed nor it was read to him and

accordingly, it was claimed that the sale deed dated 15.12.2003 is a sham document, which was obtained by fraud. In the sale deed, the consideration amount of Rs.1,00,000/- has been wrongly mentioned, but the actual consideration amount agreed upon between the parties was Rs.32,500/- out of which only Rs.24,000/- were paid and accordingly, objection was raised by defendant No.4. When the defendant No.4 came to know about the said sale deed, he filed a suit before the Court of 8th Civil Judge, Sagar, which was registered as Civil Suit No.158- A/2015, which was dismissed by judgment and decree dated 16.10.2015 against which an appeal is pending. However, after seeking instructions from the defendant No.4, it is submitted by the counsel for the appellant that the said appeal has also been dismissed.

6. The trial Court after framing issues and recording evidence, dismissed the suit filed by the appellant/plaintiff.

7. Being aggrieved by the judgment and decree passed by the trial Court, the appellant preferred an appeal, which too has been dismissed by the impugned judgment and decree passed by 5th Additional District Judge, Sagar.

8. Challenging the judgments and decrees passed by the Courts below, it is submitted by the counsel for the appellant that even assuming that no right or title had passed on to the appellant by virtue of an unregistered consent letter, Exhibit P/3, still it is undisputed fact that the land in question had fallen to the share of Ramprasad. Therefore, the appellant and other descendants of Ramprasad have equal share in the said property. The defendant No.4 is not the descendant of Ramprasad, whereas he is the descendant of Lakshman and therefore, the defendant No.4 had no right or title to alienate the property in favour of defendants No.1 to 3 and proposed the following substantial questions of law:

"i. Whether, the findings recorded by the courts below are contrary to the evidence on record and therefore the same are perverse?

ii. Whether, in view of the admission regarding letter of consent (Ex-P-3) question of insufficient stamp and registration cannot be raised subsequently?

iii. Whether, in view of the findings of courts below that name of plaintiff is recorded as co-owner in khasra, learned courts below are justified in dismissing the suit?

iv. Whether, the courts below have completely ignored the settled law that a purchaser of the property through co-

owner vendor, is not entitled for possession of the purchased property until and unless the property is partitioned or after decree of partition?

V. Any other substantial question of law, which this Hon'ble Court deem fit and proper looking to the facts and circumstances the case be framed in the interest of justice?"

9. Heard the learned counsel for the appellant.

10. The defendant No.4 has specifically stated in his written statement that after the so called sale deed was executed in favour of the defendants No.1 to 3, he had filed a Civil Suit No.158-A/2015 against the defendants No.1 to 3, which was dismissed by judgment and decree dated 16.10.2015. Although, on the date of filing of the written statement, an appeal filed against the said judgment and decree was pending but during the course of arguments, it was fairly conceded by the counsel for the appellant that the appeal filed by the respondent No.4 against the respondents No.1 to 3 was also dismissed. The copy of the

judgment and decree passed by the Civil Court in Civil Suit No.158- A/2015 and a copy of judgment and decree passed by the Appellate Court have not been placed on record but one thing is clear that the sale deed executed in favour of defendants No.1 to 3 was challenged by defendant No.4 and the suit filed by the defendant No.4 has been dismissed, which clearly establishes that the sale deed in favour of defendants No. 1 to 3 was upheld.

11. Now the next question for consideration is as to whether the appellant is also bound by the judgment and decree passed in the suit instituted by defendant No.4 against the defendants No.1 to 3? It is not known as to whether the appellant was a party to the aforesaid suit or not? Thus, it is necessary to find out as to whether the plaintiff has successfully proved that the land in question had fallen to the share of Ramprasad or not? Undisputedly, Halkai had four sons, namely; Ramprasad, Lakshman, Shankarlal and Babulal. According to the appellant, Babulal died issueless therefore, the land belonging to Halkai was succeeded by Ramprasad, Lakshman and Shankarlal jointly and each of them had 1/3rd share. The plaintiff is one of the descendants of Ramprasad, whereas Raghuveer/defendant No.4 is the descendant of Lakshman. The appellant has failed to prove that the land in question had fallen to the share of Ramprasad. Since Lakshman is the brother of Ramprasad having 1/3rd share in the property and therefore, unless and until it is proved by leading cogent evidence that after the partition, the land in dispute had fallen to the share of Ramprasad and not Lakshman, it cannot be said that Raghuveer/defendant No.4 was stranger to the property. Therefore, even if it is presumed that the appellant was not a party to the suit instituted by defendant No.4 against the defendants No.1 to 3, still in absence of any proof that the property in dispute had

fallen in the share of Ramprasad, this Court is of the considered opinion that the appellant has failed to prove that the property in dispute had fallen to the share of Ramprasad. Under these circumstances, once, the sale deed dated 15.12.2003 (registered on 18.12.2003) in favour of the defendants No.1 to 3 has already been upheld in the suit instituted by defendant No.4, no substantial question of law arises in the present case.

12. Ex-consequenti, the judgment and decree dated 20.02.2018 passed by 5th Additional District Judge, Sagar in Regular Civil Appeal No.75/2017 as well as judgment and decree dated 27.09.2017 passed by 2nd Civil Judge, Class-1 Sagar in Civil Suit No.132-A/2016 are hereby affirmed.

13. The Appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.02.14 17:45:17 +05'30'