Madhya Pradesh High Court
Nanhu Singh (Dead) Through Lrs ... vs Smt Kiranbai on 27 July, 2023
Author: Arun Kumar Sharma
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
FIRST APPEAL No.50 of 2011
BETWEEN:-
1. NANHU SINGH (DEAD) THROUGH LEGAL
REPRESENTATIVES SMT. SAGAR BAI,
AGED ABOUT 58 YEARS, W/O. NANHU
SINGH YADUWANSHI, R/O. BY-PASS ROAD,
OPPOSITE JILA JANPAD HARDA, DISTRICT
HARDA (MADHYA PRADESH).
2. NEERAJ, AGED ABOUT 30 YEARS, NANHU
SINGH YADUWANSHI, R/O. BY-PASS ROAD,
OPPOSITE JILA JANPAD HARDA, DISTRICT
HARDA (MADHYA PRADESH).
3. NARENDRA KUMAR, AGED 28 YEARS, S/O.
NANHU SINGH YADUWANSHI, R/O. BY-
PASS ROAD, OPPOSITE JILA JANPAD
HARDA, DISTRICT HARDA (MADHYA
PRADESH)
4. SMT. CHHAYA D/O. NANHU SINGH
YADUWANSHI, AGED 35 YEARS, W/O.
ASHOK KUMAR YADAV, R/O. PIPARIYA,
TAHSIL PIPARIYA, DISTRICT
HOSHANGABAD (MADHYA PRADESH).
.....APPELLANTS
(BY SHRI VIKRAM JOHRI - ADVOCATE )
AND
1. SMT. KIRANBAI W/O. RAVENDRA KUMAR
GARG, AGED 40 YEARS, OCCUPATION -
HOUSEWIFE, R/O. SUBHASH WARD,
TAHSIL AND DISTRICT - HARDA (MADHYA
PRADESH).
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/27/2023
4:24:40 PM
2. HARIHAR S/O. BADRILAL MITTAL
VISHWAKARMA, AGED 50 YEARS, R/O.
CHAWANI AAGAR, TAHSIL - AAGAR,
DISTRICT- SHAJAPUR (MADHYA
PRADESH).
3 REWARAM S/O. TULSIRAM JAT, AGED 40
YEARS, R/O. HARDA KHURD, TAHSIL &
DISTRICT - HARDA (MADHYA PRADESH)
4 STATE OF MADHYA PRADESH, THROUGH
COLLECTOR, HARDA, TAHSIL & DISTRICT
HARDA (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI MANIKANT SHARMA - ADVOCATE)
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Reserved on : 19-07-2023
Pronounced on : 27-07-2023
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This appeal having been heard and reserved for order, coming
on for pronouncement this day, the court pronounced the following:
JUDGMENT
With the consent of the parties, the matter is finally heard.
1. This first appeal under Section 96 of the Civil Procedure Code
has been preferred by the appellant / plaintiff being aggrieved and
dissatisfied by the impugned judgment and decree dated 10.11.2010
passed by learned First Additional District Judge, Harda in Civil Suit
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/27/2023
4:24:40 PM
No.13-A/2010, whereby the suit for partition claiming his share and also
the sale deed executed by his father Khuman Singh in favour of the
defendants no. 1, 2 and 3 be declared void as it is not binding on him and
also for mesne profit at the rate of Rs.15,000/- per year till realization of
possession has been dismissed.
2. Briefly stated facts of the case are that on 12.12.2002 the
plaintiff / appellant filed a suit alleging that there was a dispute between
his father and his fathers' brothers and sisters in respect of suit property,
which is ancestral being civil suit No. 40-A/2001 (Old No. 13-A/1194).
During pendency of that suit, defendant Nos. 1 to 3 purchased an
undivided property from his father Khuman Singh by a registered sale
deed. Thus, in the entire sold property the plaintiff was entitled for 1.91
acres and repossession of this portion. Apart from this, he also claimed
Rs. 15,000/- per year by way of mesne profit. It was further alleged by
the plaintiff that the entire suit property being ancestral and there was no
partition and his father was only entitle to alienate his 1/4th share only;
whereas he has transferred the entire land of survey No. 21/2. The sale
deed was executed without the consent of the plaintiff and others. The
plaintiff also asserted that earlier the plaintiff & his family members had
instituted a suit against defendant Rewaram being Civil Suit No. 65-
A/1990 before Additional Civil Judge Class II, Harda and by judgment
and decree dated 18/03/1992, it was decided that in the suit land the
plaintiff has a 1/3rd share, subsequently after death of Khuman Singh,
Vimlabai and Shyam Singh. Civil Suit No. 40-A/2001 was decreed on
28/07/2001. The plaintiff's title was established in respect of the suit
property & it was also held that the plaintiff was entitled for possession.
The plaintiff also asserted that in the aforesaid Civil Suit the Additional
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/27/2023
4:24:40 PM
District Judge, Harda decided the matter after the plantiff's father and
other family members were impleaded as parties. Thus, on the basis of
aforesaid factual matrix the present suit was instituted.
3. After summoning of the notice, the defendants / respondents
appeared and filed their written statement denying the plaint averments. It
was contended by the defendants that Khuman Singh was the absolute
owner of the entire suit property and it was his self-acquired property and
the sale deed was executed on account of legal necessity.
4. The trial Court framed as many as 9 issues and after
appreciating the evidence and record of the case, has dismissed the suit.
5. Before this Court, learned counsel for the appellants has argued
that the judgment and decree passed by learned trial Court is perverse,
erroneous and bad in the eyes of law. The issues decided are contrary to
record. The learned trial Judge fell in error in not appreciating that the
sale-deed executed by Khuman Singh during pendency of the earlier suit
hit by the principle of lis pendens and the defendants does not deprive
any title. The learned trial Judge out to have seen that in the light of the
earlier decision declaring plaintiff's title over the suit property were
binding and operate as Res-Judicata in the present suit and learned trial
Judge was not competent to come to a different conclusion in the present
suit. The learned trial Judge failed to consider that in the absence of any
partition Khuman Singh was not entitled to alienate the entire suit
property & the remedy of the purchaser was to institute a suit for
declaration of their share after the partition between co-owners. The
learned trial judge ought to have seen that the defendants & Khuman
Singh were aware of the pendency of suit and on the stand taken by them
an inference ought to have been drawn against the defendants and the suit
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/27/2023
4:24:40 PM
ought to have been decreed. The learned trial Judge fell in substantial
error of law in ignoring the earlier decisions & proceedings independently
ignoring the material on record and the evidence led by the plaintiff and
in not appreciating in the right perspective. Hence, prayed that the appeal
be allowed by setting aside the impugned judgment and decree passed by
the trial court.
6. Per contra, learned counsel for the respondents / defendants no.
1 to 3 has submitted that the impugned judgment and decree passed by
the court below is within the four corners of law and no error has been
committed by the court below. The defendants had purchased the
property in question from Khuman Singh through registered sale deed. At
the time of execution of sale deed, Khuman Singh was sole owner and in
possession of the suit property. It has also been contended that the
property sold by Khuman Singh was his self acquired property. It has
been further contended that none of his sons had given financial
assistance for purchasing the aforesaid property to Khuman Singh.
Khuman Singh was in financial need; therefore, he sold the property to
the defendants. Further contended that ex-parte judgment and decree was
passed in Civil Suit No.65A/90 vide dated 18.03.1992 against the
defendants which was later-on challenged by filing civil appeal
no.21A/90 and the same was allowed by judgment dated 17.12.1992.
The suit filed by the plaintiff is based on surmises and conjectures.
Hence, prayer is made to dismiss the appeal.
7. I have heard learned counsel for both the rival parties at great
length and perused the impugned judgment and the record.
8. Counsel for the appellant besides taking grounds which have
been raised in the memo of appeal has re-appreciated and reiterated that
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/27/2023
4:24:40 PM
the father of the plaintiff was not the sole owner of the suit property;
therefore, he had no absolute right to execute the sale deed in favour of
respondents. It has further been contended that the entire suit property
being ancestral and was not having partitioned the father late Khuman
Singh was only title to have 1/4th share. Counsel for the appellant has
further submitted that the learned trial Court committed error in not
appreciating the fact that the sale deed executed by Khuman Singh during
pendency of the earlier suit, therefore, it was hit by principle of lis
pendence. It has further been argued that in the earlier round the lis
between the parties so far as it relates plaintiffs title over the suit
property, therefore, now contrary stand taken by the defendants and the
decision rendered by the trial Court is hit by principle of res judicata, no
other point has been raised by counsel for the appellant.
9. Arguments of counsel for the appellant so far it relates to lis
pendence as according to appellant the sale deed was executed by
Khuman Singh during the pendency of earlier suit. This point has been
elaborately dealt by the trial Court in issue Nos. 3 and 4. The trial Court
after appreciating the evidence in detail and going through evidence as
well as exhibits has held that the father of the plaintiff late Shri Khuman
Singh had right to sale the suit property, therefore, it does not null and
void. The trial Court in its para No. 18 has categorically held that earlier
suit pending between the parties has not come to an end, therefore, in the
ex-parte decision passed by the court in that case was set aside and the
matter was remanded back.
10. So far as the point of res judicata is concerned, the counsel has
raised misconceived arguments. To have res judicata it is much necessary
that the parties must file that the suit was filed between the same parties
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Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/27/2023
4:24:40 PM
on same issue and same property. Here in the present case, except stating
that the present suit was filed regarding sale of the property, nothing was
pleaded; therefore, the same was hit by principle of res judicata. Nothing
was brought on record. It was incumbent to the plaintiff to bring on
record the copy of plaint and plaintiff evidence etc. adduced by the
parties in that case. This court therefore cannot appreciate and different
the same on transfer so far as point of res judicata is concerned. As there
is no pleading and evidence brought on record in this regard. That while
going through judgment of the trial Court, I find that as many as 8 issues
have been framed by the trial Court. Surprisingly, issue No.7, which
relates to limitation. Once suit was not filed within limitation and this
point has neither been argued by counsel for the appellant nor has been
taken in appeal. Trial Court has discussed this issue in para no.18 of its
judgment and has given finding that the suit was filed by the plaintiff,
was barred by limitation and in absence of challenge of this issue before
this Court, same findings have become final. It is well settled law that
once the suit was found dismissed as barred by limitation and then there
is no need to look into the merits or demerits of the matter.
11. So far as the judgment relied by learned counsel for the
appellant in the case of Pop Singh & Ors. Vs. Ram Singh & Ors.
Reported in [ 2013(1) MPLJ 16 for the points that the written statement
has not been signed by the defendant Nos. 2 and 3, therefore, the suit
ought to have been decreed against defendant Nos. 2 and 3 is miss-
conceived. A Division Bench of this Court in the case of Babulal
Agrawal Vs. Jyoti Shrivastava and Others, 2000(1) MPLJ 102
observed that without verification of the pleadings in written statement, it
is not found a written statement in the eye of law. However, plaintiff is
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Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/27/2023
4:24:40 PM
required to stand on his own feet; he cannot take advantage of arguments
of defendants, even if the written statement is not signed by the
defendants. Hence, the plaintiff has failed to establish his case.
12. In view of the aforesaid discussion, this court is of the
considered view that the learned trial Court has not committed any
illegality in passing the impugned judgment. The finding given by the
trial court is based on sound reasoning and proper appreciation of the
evidence. Resultantly, this appeal fails and is hereby dismissed. The
impugned judgment and decree dated 10.11.2010 passed by learned First
Additional District Judge, Harda in Civil Suit No.13-A/2010 is hereby
affirmed. Decree be drawn accordingly. Needless to say that interim
order, if any passed earlier, stands vacated.
13. A copy of this judgment along with record be sent back to the
trial court for information and its compliance.
(ARUN KUMAR SHARMA)
JUDGE
JP /-
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/27/2023
4:24:40 PM
