Madhya Pradesh High Court
Khalid Khan vs Jagdish on 21 February, 2023
Author: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 21st OF FEBRUARY, 2023
MISC. PETITION No. 4723 of 2021
BETWEEN:-
KHALID KHAN S/O KHALEEL BADAR,
AGED ABOUT 67 YEARS, OCCUPATION:
AGRICULTURE M.P.12 PEER NEAR
ABBAS KI MASZID, BHOPAL (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ANIL LALA- ADVOCATE FOR PETITIONER)
AND
1.
JAGDISH S/O LATE NATHURAM VILLAGE SARVAR,TEH.HUZUR
(MADHYA PRADESH)
JAMNA PRASAD S/O LATE NATHURAM VILLAGE SARVAR TEHSIL
2.
HUZUR (MADHYA PRADESH)
SHRAVAN KUMAR S/O LATE NATHURAM VILLAGE SARVAR TEHSIL
3.
HUZUR (MADHYA PRADESH)
KRISHN DAS S/O LATE NATHURAM VILLAGE SARVAR TEHSIL
4.
HUZUR (MADHYA PRADESH)
PREM BAI W/O LATE NATHURAM VILLAGE SARVAR TEHSIL HUZUR
5.
(MADHYA PRADESH)
RAJESH BAI W/O RAMCHARN D/O LATE NATHURAM VILLAGE
6.
SARVAR TEHSIL HUZUR (MADHYA PRADESH)
HARWATI W/O PHOOL SINGH D/O LATE NATHURAM VILLAGE
7.
HINOTIYA TEHSIL HUZUR (MADHYA PRADESH)
KALAWATI W/O GORELAL D/O LATE NATHURAM VILLAGE
8.
BAMARO TEHSIL HUZUR (MADHYA PRADESH)
.....RESPONDENTS
(BY MS BHARATHI B. KAR. - ADVOCATE FOR RESPONDENT No.1-8
-----------------------------------------------------------------------------------------------
Signature Not Verified
Signed by: VIBHA PACHORI
Signing time: 2/23/2023
10:45:17 AM
2
This petition coming on for order this day, the court passed the
following:
ORDER
This miscellaneous petition has been preferred by Khalid Khan
challenging order dated 07.09.2021 passed by Additional Commissioner,
Bhopal Division, Bhopal in Case No.102/Appeal/2017-2018 affirming
the order dated 26.02.2018 passed by SDO, Tehsil Huzur, Distt. Bhopal in
case No.28/Appeal/14-15 who also dismissed the appeal filed by the
petitioner affirming the order dated 15.01.2014 passed by Tahsildar in
Case No.48/A-6/13-14, whereby Tahsildar dismissed the application for
mutation filed by the petitioner- Khalid Khan on the basis of regd. sale
deed dated 30.08.2006 executed by Saiyad Sarvar Hussain in favour of
Khalid Khan on the basis of unregistered power of attorney dated
31.03.1997 allegedly executed by Nathuram (ancestor of respondents 1-8)
in favour of Saiyad Sarvar Hussain.
2. Learned counsel for the petitioner submits that all the three revenue
Courts have erred in rejecting the application for mutation filed on basis
of registered sale deed dated 30.08.2006 and if the respondents had any
objection in respect of registered sale deed, they could have filed civil
suit challenging sale deed dated 30.08.2006 and till now no civil suit has
been filed by the respondents, as such learned revenue Courts have erred
in dismissing the application of mutation. Learned counsel further
Signature Not Verified
Signed by: VIBHA PACHORI
Signing time: 2/23/2023
10:45:17 AM
submits that learned revenue Courts have on the basis of change of khasra
numbers, dismissed the application, whereas there is no change of khasra
numbers, which can be verified from the sale deed and the documents
filed by respondents 1-8.
3. Learned counsel appearing on behalf of respondents 1-8 submits
that learned revenue Courts have not committed any illegality in passing
the impugned orders. She further submits that without going into merits
and demerits of the documents of sale deed and power of attorney, it is
clear that the power of attorney is an unregistered document and on that
basis, no sale deed could have been executed by Saiyad Sarvar Hussain in
favour of Khalid Khan. She also submits that power of attorney does not
bear signature of Saiyad Sarvar Hussain and there is mis-description of
suit land/khasra numbers, therefore, learned Courts below have not
committed any illegality in passing the impugned orders and she prays for
dismissal of this petition.
4. Heard learned counsel for the parties and perused the record.
5. Learned Courts below after taking into consideration the objection
raised by the respondents 1-8, especially unregistered power of attorney
and mis-description of disputed property, have refused to pass order of
mutation in favour of the petitioner.
Signature Not Verified
Signed by: VIBHA PACHORI
Signing time: 2/23/2023
10:45:17 AM
6. For the proposition that on the basis of unregistered power of
attorney, the power of attorney holder is not competent to execute the sale
deed, the Division Bench of this Court has in the case of Leeladhar Yadav
Vs. Siddhartha Housing Cooperative Society Ltd., Garha 2006(3) JLJ
424, relied upon the judgment of Supreme Court in the case of Manjunath
Anandappa Urf Shivappa Hansi Vs. Tammanasa & Ors (2003)10 SCC
390. Relevant para 15 of Manjunath's case is quoted as under :-
"15. Forms 47 and 48 of the Appendix A of the Code of Civil Procedure prescribe the
manner in which such averments are required to be made by the plaintiff. Indis-
putedly, the plaintiff has not made any averment to that effect. He, as noticed herein-
before, merely contended that he called upon defendant No. 2 to bring defendant No.
1 to execute a registered sale deed. Apart from the fact that the date of the purported
demand has not been disclosed, admittedly no such demand was made upon defend-
ant No. 1. We may notice, at this juncture, that the plaintiff in his evidence admitted
that defendant No. 1 had revoked the power of attorney granted in favour of defend-
ant No. 2. In his deposition, he merely stated that such revocation took place after the
agreement for sale was executed. If he was aware of the fact that the power of attor -
ney executed in favour of defendant No. 2 was revoked, the question of any demand
by him upon the defendant No. 2 to bring the defendant No. 1 for execution of the
agreement for sale would not arise at all. Furthermore, indisputably the said power
of attorney was not a registered one. Defendant No. 2, therefore, could not ex -
ecute a registered deed of sale in his favour. The demand, if any for execution of
the deed of sale in terms of the agreement of sale could have been, thus, made only
upon the Defendant No. 1, the owner of the property. The balance consideration of
Rs. 10,000/- also could have tendered only to Defendant No. 1. As indicated herein-
before, the purported notice was issued only on 8-8-1984, that is, much after the ex-
piry of period of three years, within which the agreement of sale was required to be
acted upon.
7. Similar position is existing in the present case, where Saiyad
Sarvar Hussain, alleged power of attorney holder, on the basis of
unregistered power of attorney dated 31.03.1997 had executed registered
sale deed in favour of petitioner - Khalid Khan, which prima facie does
not create any right or title in favour of the petitioner, therefore, declining
interference in the impugned orders passed by learned revenue Courts,
Signature Not Verified
Signed by: VIBHA PACHORI
Signing time: 2/23/2023
10:45:17 AM
this miscellaneous petition deserves to be and is hereby dismissed with
cost of Rs.5000/- payable by the petitioner to the respondents 1-8.
8. Interim application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
vibha
Signature Not Verified
Signed by: VIBHA PACHORI
Signing time: 2/23/2023
10:45:17 AM
