Hansraj Kalar vs Smt. Tekeshwari Bisen
2023 Latest Caselaw 19 MP

                                                     1
                       IN    THE      HIGH COURT OF MADHYA PRADESH
                                           AT JABALPUR
                                               BEFORE
                            HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                         ON THE 2 nd OF JANUARY, 2023
                                       SECOND APPEAL No. 2503 of 2022

                      BETWEEN:-
                      HANSRAJ KALAR S/O SHRI RAM KALAR, AGED ABOUT
                      46 YEARS, R/O SARRAPIPAR, BHAGAT SINGH WARD P.S.
                      RANJHI TEHSIL AND DISTRICT JABALPUR (M.P.)
                      (MADHYA PRADESH)

                                                                                .....APPELLANT
                      (BY SHRI MUKESH KUMAR BIRAMGADE-ADVOCATE)

                      AND
                      1.    SMT. TEKESHWARI BISEN W/O LATE CHITRASEN
                            BISEN, AGED ABOUT 45 YEARS, R/O VILLAGE
                            UKWA,   TAH.   NAYE PARASWADA,     DISTT.
                            BALAGHAT (M.P.) (MADHYA PRADESH)

                      2.    AJESH BISEN S/O LATE CHITRASEN BISEN, AGED
                            ABOUT 19 YEARS, R/O BISEN ENGLISH MEDIUM
                            S C H O O L , VILLAGE UKWA,   TAH.    NAYE
                            PARASWADA, DISTT. BALAGHAT (M.P.) (MADHYA
                            PRADESH)

                      3.    PRAVEEN BISEN S/O LATE CHITRASEN BISEN,
                            AGED ABOUT 18 YEARS, R/O BISEN ENGLISH
                            MEDIUM SCHOOL, VILLAGE UKWA, TAH. NAYE
                            PARASWADA, DISTT. BALAGHAT (M.P.) (MADHYA
                            PRADESH)

                      4.    STATE     OF  MADHYA    PRADESH, THROUGH
                            COLLECTOR, BALAGHAT DISTRICT BALAGHAT
                            (M.P.) (MADHYA PRADESH)

                                                                             .....RESPONDENTS
                      (NONE FOR THE RESPONDENTS)
Signature Not
 SAN
Verified                    This appeal coming on for admission this day, th e court passed the
Digitally signed by
HEMANT SARAF          following:
Date: 2023.01.03
19:43:44 IST
                                     2
                                     ORDER

This second appeal under section 100 of CPC has been filed against the judgment and decree dated 01.10.2022 passed by District Judge, Baihar, district Balaghat in First Appeal No.20/2019, arising out of the judgment dated 13.08.2019 passed by the Civil Judge, Class-I, Baihar, District Balaghat in R.C.S.No.300078/2017 by which the suit filed by the appellant for declaration of title and permanent injunction has been rejected.

The present appeal has been filed on the following proposed substantial questions of law :-

"I. Whether, the learned court below committed

error in not issuing the notice to the Notary person namely Sanjeev Kanojia, Ranjhi, District- Jabalpur (MP), who have executed the sale deed?

II. Whether, the learned Appellate court below has not considering this fact on the basis bank statement which has already taken on record then why not direct to the respondents no. 1 to 3 to pay him the amount of land in lieu of not registering the sale deed?

III. Whether, the lower appellate court has erred in holding that the Appellant has failed to establish title of the suit property?

IV. Whether, the lower appellate court has erred in law on the question of title?

V. Whether, in the facts and circumstances of the present case the lower appellate court wrongly holding that the Appellant is not exclusive owner of the suit land,

by virtue of not registering the sale deed ?

VI. Whether, the previous counsel committed error on his part by filing wrong case before the learned court due to which appellant having lack of knowledge of law,. therefore he could suffer?

VII. Whether, in this case as per the court law the Notary is not entitled to notarized the sale deed, in this way appellant having no responsible because of lack of knowledge and paid full amount of property, inspite of this Respondent No.1 Husband well known about this fact?

VIII. Whether, the Judgment and Decree passed by the learned Court below are bad in law and perverse?"

The appellant filed a suit for permanent injunction on the ground that father of defendants no.2 and 3 and husband of defendant no.1 namely; late Shri Chitra Sen Bisen sold the property in dispute by a sale deed dated 03.12.2013, which was notarized by a Notary for a consideration of Rs.5,31,000/- and possession of the said land was also given to the appellant and since then the appellant is in possession of the land in dispute i.e. Khasra No.564/3/Kha/Ka, area 0.17 hectares, situated in Village Baihar Mal, P.H.No.1,

Tahsil Baihar, District Balaghat.

That Chitrasen Bisen died on 22.11.2014 and the defendants/respondents are the legal representatives of Chitrasen Bisen. After the death of Chitrasen Bisen, plaintiff/appellant sent a notice to the defendants on 16.08.2015 to the effect that they should not alienate the property and should not interfere with the

peaceful possession of the appellant. However, as the respondent/defendants are regularly interfering with the peaceful possession of the appellant, therefore, the present suit has been filed seeking declaration that the defendants be restrained from alienating the suit property as well as from interfering with the possession of the plaintiff either by themselves or through their agents and subsequently by amendment it was also prayed that a permanent decree be granted as the appellant has paid the entire amount and has obtained the possession by virtue of an agreement to sell dated 03.12.2013.

The defendants filed their written statement and denied that Chitrasen Bisen had ever executed any sale deed on 03.12.2013. The defendants are mother and sons and their predecessor namely Chitrasen Bisen is the owner and in possession of various lands including the land in dispute. The said land was purchased by Chitrasen Bisen from Smt. Aruna Choudhary by a registered sale deed dated 17.01.2011. Chitrasen Bisen expired on 22.11.2014 and after the death of Chitrasen Bisen the defendants are in possession and are owner of the land in dispute. They are not aware of any sale purportedly executed by Chitrasen Bisen and it was also claimed that Chitrasen Bisen had never executed any agreement to sell. It was further alleged that since the valuation of the property in dispute is more than Rs.100/-, therefore, no sale can take place without a registered sale deed. It was further pleaded that the plaintiff is not known to the defendants and late Chitrasen Bisen had never executed any sale deed in favour of the plaintiff. It is the case of the appellant that he had paid Rs.5,31,000/- in cash which is not permissible because any amount in excess of Rs.20,000/- cannot be given in cash and it can be paid through cheque or bank draft only. It was further claimed that the plaintiff had never taken any steps during the life time of Chitrasen Bisen. Earlier, the plaintiff had filed a civil suit

before the Court of III Civil Judge Class-II, Jabalpur which was registered as C.S. No. 1018-A/2016 and on an objection raised by the defendants with regard to territorial jurisdiction of the trial Court, the plaint was returned back. Now, fresh civil suit has been filed. Thus, in nutshell, the defendants denied the averments that Chitrasen Bisen had ever executed any agreement to sell or sale deed in favour of appellant in respect of land in dispute.

The trial Court after recording the evidence of the parties, dismissed the suit by judgment and decree dated 13.08.2019 on the ground that the plaintiff has failed to prove that he is in possession of the land in dispute. Further, the plaintiff has failed to prove that the defendants are trying to alienate the property and he has also failed to prove that the property was ever purchased by him from late Chitrasen Bisen.

Being aggrieved by the said judgement and decree passed by the Court below, the appellant preferred an appeal which too has been dismissed by the Court of Additional District Judge, Baihar, District Balaghat in RCA No.20/2019 by judgment and decree dated 01.10.2022.

Challenging the judgement and decree passed by the Courts below, it is submitted by counsel for the appellant that once the appellant has paid the entire consideration amount to Chitra Sen Bisen then dismissal of the suit is against equity and the courts below should have considered that the entire consideration amount was paid by the appellant and he is entitled for protection of his possession as well as for declaration of title.

Considered the submissions made by counsel for the appellant. It is well established principle of law that any property worth more than Rs.100/- cannot be alienated except by registered sale-deed. In the present

case, it was the case of the appellant that late Chitrasen Bisen had executed a notarised sale-deed on 3.12.2013. Counsel for the appellant fairly conceded that the rights cannot be alienated by execution of a notarised sale-deed. Further the property is situated in Balaghat whereas the notarised sale-deed was executed at Jabalpur. Both the courts below were right in holding that by a notarised sale-deed, no right would stand alienated to the appellant. Further, the appellant has failed to prove the source of Rs.5,31,000/- which according to him was paid in cash. Further, as per section 269SS of Income Tax Act, any amount in excess of Rs.20.000/- cannot be paid in cash and it has to be paid either by cheque or by draft or by electronic mode. Thus, it is clear that the appellant has failed to prove acquisition of rights by virtue of any registered document. Even the appellant has failed to prove that an amount of Rs.5,31,000/- was ever paid by the appellant. So far as question of possession is concerned, both the courts below have given concurrent finding of fact that the appellant is not in possession of the land in dispute. It is well established

principle of law that the concurrent findings of fact can be interfered with only if they are perverse or without record. Counsel for the appellant could not point out any perversity in the findings of fact recorded by the courts below.

Accordingly, no substantial question of law arises in the present appeal. Ex-consequentia, the judgment and decree dated 01.10.2022 passed by District Judge, Baihar, district Balaghat in First Appeal No.20/2019 and the judgment and decree dated dated 13.08.2019 passed by the Civil Judge, Class- I, Baihar, District Balaghat in R.C.S.No.300078/2017 are hereby affirmed.

The appeal fails and is hereby dismissed in limine.

(G.S. AHLUWALIA) JUDGE HS