Omkar Gupta vs Dulare Rajak
2023 Latest Caselaw 128 MP

                                                           1
                          IN     THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                                ON THE 3 rd OF JANUARY, 2023
                                             SECOND APPEAL No. 3016 of 2019

                         BETWEEN:-
                         OMKAR GUPTA S/O LATE DARBARI GUPTA, AGED
                         ABOUT 65 YEARS, OCCUPATION: LABOUR R/O VILLAGE
                         ROHANIYA, TEHSIL BADWARA, DISTRICT KATNI
                         (MADHYA PRADESH)

                                                                                        .....APPELLANT
                         (BY SHRI DINESH UPADHYAY - ADVOCATE )

                         AND
                         DULARE RAJAK S/O LATE SHRI BALDEV RAJAK, AGED
                         ABOUT 65 YEARS, R/OVILLAGE ROHANIYA, TEHSIL
                         AND P.S. BADWARA, DISTRICT KATNI, M.P. (MADHYA
                         PRADESH)

                                                                                      .....RESPONDENT
                         (BY SHRI SHARAD GUPTA - ADVOCATE)

                               This appeal coming on for admission this day, th e court passed the
                         following:
                                                            ORDER

This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 09.09.2019 passed by Fourth Additional District Judge, Katni in Regular Civil Appeal No.31/2017 arising out of judgment and decree dated 16.01.2017 passed by Fifth Civil Judge Class-2, Katni in Civil Suit No.4-A/2014, by which, the decree for possession has been passed against the appellant/defendant.

2. The appellant has filed this appeal on the following proposed substantial questions of law:-

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" I. Whether the learned Court below justify decree in the suit of the plaintiff without framing the issue in respect of limitation ?

II. Whether the suit of the plaintiff is barred by time. In view of the fact that tenancy was started in January 2007 and was terminated on 04.04.2008 and suit was filed in March, 2014 ?

III. Whether the Court below justify in decreeing the suit accepting the question of possession and tenancy on the basis of oral evidence of the real evidence of the real relative of the plaintiff who are not residing in the same village. In spite of the fact that no

witness is neighbor or same villagers has not been examine even though defendant examine the neighbor ?

IV. Whether the finding of the court below is perverse particularly in view of the fact that admission of the plaintiff in cross- examination in respect of construction of the house and fact that he has not know to the Aadiwasi ?

V. Whether the permission obtain by the plaintiff from the Collector is just and proper. Inspite of the fact that same has been obtained by fraud ?"

3. The facts necessary for disposal of the present appeal in short are that the respondent filed a suit for declaration of title, possession and for recovery of arrears of rent on the ground that the plaintiff/respondent has purchased the land in dispute by a registered sale deed dated 01.07.2002 and is in possession thereof. The land was purchased after obtaining due permission from Collector Katni under Section 165(6) of MPLRC. After purchasing the land, the

Signature Not Verified plaintiff/respondent constructed a house. He is in possession of part of the Signed by: SANTOSH KUMAR TIWARI Signing time: 1/7/2023 11:26:58 AM

house which is shown as EBFC in the map attached to the plaint. Whereas the defendant is in possession of the remaining part of the house (in the capacity of a tenant) which is shown as AEDF in the map attached to the plaint. The defendant/appellant was inducted as a tenant on a monthly rent of Rs.100/-. Since the appellant/defendant was not regularly making payment of rent and was in habit of picking up quarrel with the plaintiff, therefore, the plaintiff/respondent sent a notice on 04.04.2008 for arrears of rent as well as for delivery of possession. However, the defendant/appellant did not vacate the premises and on the contrary started claiming that he is the owner of the property and would not vacate the same and thus, the rights of the plaintiff/respondent have come under a cloud and accordingly, the suit was filed for the above mentioned purposes.

4. During the pendency of the civil suit, an application for amendment in the plaint was filed and it was also claimed that the unregistered sale deed dated 13.02.1998 relied upon by the appellant/defendant is illegal document and has no legal sanctity and since the original sharer is a member of an original tribe therefore, the property can not be alienated to a non-Aadiwasi person without due permission from the Collector Katni. However, it appears that the relief clause was not amended and the plaintiff/respondent did not claim for declaration of the unregistered sale deed dated 13.02.1998 as null and void.

5. The appellant/defendant filed his written statement and submitted that the plaintiff/respondent has obtained permission from the Collector in a clandestine manner. It was denied that the plaintiff/respondent is in possession of entire disputed land i.e. 0.02 hectare of khasra number 450. On the contrary, it was claimed that the appellant/defendant is in possession of half of the said Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 1/7/2023 11:26:58 AM

land as he has constructed a house. It was claimed that since the land was recorded in the name of an adiwasi, therefore, Ramkumar Gupta purchased the property in the name of Visheshwar Gond. Thereafter, Ramkumar Gupta constructed a house and half portion of the said house was given to his one son Jagdish and another half was given to his another son Arvind. After sometime, the plaintiff Dulare Rajak purchased the share of Jagdish Gupta; whereas the defendant purchased share of Arvind Gupta. The said unregistered sale deed was executed on 13.02.1998 on a stamp paper of Rs.10/-.

6. It is submitted that after the mutation of his name, now the plaintiff wants to dispossess the appellant/defendant from the property belonging to him.

7. The trial Court after framing issues and recording evidence decreed the suit by the judgment and decree dated 16.01.2017 passed in Civil Suit No.4- A/2014. It was specifically held by the trial Court that the provisions of MP Accommodation Control Act are not applicable and therefore, the provisions of Section 106 of Transfer of Property Act would apply. The trial Court has also come to a conclusion that the plaintiff/respondent is in possession of half part of the property and further held that the appellant/defendant was inducted as a tenant on a monthly rent of Rs.100/-. It was further held that the tenancy was terminated and therefore, the plaintiff/respondent was granted a decree for possession of property shown as AEDF in a map attached to the plaint.

8. Being aggrieved by the said judgment and decree passed by the trial Court, the appellant preferred an appeal which too has been dismissed by the Fourth Additional District Judge, Katni by judgment and decree dated 09.09.2019 passed in RCA No.31/2017.

9. Challenging the judgment and decree passed by the Courts below it is Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 1/7/2023 11:26:58 AM

submitted by the counsel for the appellant that the Courts below failed to see that the suit was barred by limitation as the same was not filed within a period of three years from the date of termination of tenancy. To buttress his contention the counsel for the appellant has relied upon Article 65 of the Limitation Act. It is further submitted that the trial Court has rejected the evidence on flimsy ground and should not have passed a decree for possession.

10. Heard the learned counsel for the appellant.

11. It was submitted by the counsel for the appellant that whether the question of limitation is raised or not, but still the trial Court is under obligation to frame an issue and decide the said question and in this case, no issue with regard to limitation was ever framed and therefore, the trial Court has committed a material illegality giving rise to the second substantial question of law proposed by him.

12. Considered the submissions made by the counsel for the appellant.

13. Article 65 of the Limitation Act provides that a period of limitation for filing a suit for recovery of possession is 12 years. It is the case of the plaintiff/respondent that the suit property was purchased by him in the year 2002 by a registered sale deed dated 01.07.2002. Since the original seller was an Aadiwasi therefore the sale deed was executed after taking due permission from the Collector Katni as provided under Section 165 (6) of MPLRC.

14. On the contrary, it is the case of the appellant/defendant that he has purchased the property by an unregistered sale deed. Undisputedly, the valuation of the property in dispute is more than Rs.100/- therefore, the sale can take place only on execution of registered sale deed. Thus, it is clear that the unregistered sale deed relied upon by the defendant/appellant Exhibit-P/2 would

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not confer any right or title on the appellant. Thus, the appellant has failed to prove that he was in possession of the property in dispute in the capacity of owner. It is the case of the appellant that by playing fraud the respondent/plaintiff got the sale deed executed in respect of the entire land. Thus, the execution of sale deed in favour of the respondent/plaintiff in respect of the entire land is undisputed. Both the Courts below have come to a conclusion that respondent/plaintiff is the owner of the land in dispute and the tenancy was terminated by issuing notice on 04/04/2008.

15. So far as the question of limitation is concerned, it is suffice to mention that the appellant/defendant has not claimed his title on the basis of adverse possession. Even otherwise the limitation for the purposes of adverse possession would start from the date when the tenancy was terminated i.e. on 04/04/2008. The suit was filed on 13/03/2014, thus it was filed within a period of 12 years as provided under article 65 of the Limitation Act. Therefore, this Court is of the considered opinion that the question of limitation does not arise

in the present case. Accordingly, the trial Court did not commit any mistake by not framing the issue with regard to limitation or adverse possession by the appellant/defendant.

16. So far as the question of rejection of suit on the flimsy ground is concerned, learned counsel for the appellant could not point out any perversity for the simple reason that the appellant has failed to prove his title over the land in dispute, and the plaintiff has purchased the land by registered sale deed after obtaining due permission from the Collector as required under Section 165 of MPLR Code.

17. Under these circumstances, this Court is of the considered opinion that concurrent findings of facts recorded by the courts below do not require Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 1/7/2023 11:26:58 AM

any interference. Even otherwise, Supreme Court in the case of Pakeerappa Rai Vs. Seethamma Hengsu (Dead) by LRs and Others reported in (2001) 9 SCC 521 has held that in exercise of power under Section 100 of CPC, the High Court cannot interfere with the findings of facts until and unless they are found to be perverse or based on inadmissible evidence.

18. Under these circumstances, this Court is of the considered opinion that no substantial question of law arises in the present appeal. Accordingly, all the proposed substantial questions of law are answered in negative. As a result thereof, the judgment and decree dated 09/09/2019 passed by Fourth Additional District Judge, Katni in Civil Appeal No. 31/2017 and judgment and decree dated 16/01/2017 passed by Fifth Civil Judge Class-II, Katni, are hereby affirmed.

19. Accordingly, the appeal fails and is hereby dismissed in limine.

(G.S. AHLUWALIA) JUDGE skt

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 1/7/2023 11:26:58 AM