Madhya Pradesh High Court
Nanda vs Balu (Since Deceased) Now Lrs. ... on 30 June, 2023
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
SECOND APPEAL No. 21 of 2022
BETWEEN:-
NANDA S/O RAMAJI, AGED ABOUT 50 YEARS,
OCCUPATION: AGRICULTURIST, R/O: VILLAGE
ATLAWADA, TEHSIL NAGDA, DISTRICT: UJJAIN
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI NITIN PHADKE, ADVOCATE FOR THE APPELLANT)
AND
1. BALU (SINCE DECEASED) NOW LRS. GANGA
(SINCE DECEASED) NOW LRS CHAINSINGH S/O
KHEEMA GURJAR, AGED ABOUT 40 YEARS, R/O:
VILLAGE ATLAWADA, TEHSIL NAGDA DISTRICT
UJJAIN (MADHYA PRADESH)
2. BALU (SINCE DECEASED) NOW LRS. GANGA
(SINCE DECEASED) NOW LRS GEETA W/O BALU
GURJAR, AGED ABOUT 50 YEARS, R/O: VILLAGE
PARMARKHEDI, TEHSIL NAGDA DIST UJJAIN
(MADHYA PRADESH)
3. BALU (SINCE DECEASED) NOW LRS. GANGA
(SINCE DECEASED) NOW LRS RAMKUNWAR W/O
RAMSINGH GURJAR, AGED ABOUT 45 YEARS,
R/O: VILLAGE ATLAWADA, TEHSIL NAGDA, DIST
UJJAIN (MADHYA PRADESH)
4. BALU S/O SALAM (SINCE DECEASED) NOW LRS.
GANGA W/O KHEEMA GURJAR (SINCE
DECEASED) NOW LRS. MOHAN W/O SHANKAR
GURJAR GURJAR, AGED ABOUT 40 YEARS, R/O:
MADHOPUR, TEH. ALOT, RATLAM (MADHYA
PRADESH)
5. BALU S/O SALAM (SINCE DECEASED) NOW LRS.
GANGA W/O KHEEMA GURJAR (SINCE
DECEASED) NOW LRS. RUKMANI W/O RAMSINGH
GURJAR, AGED ABOUT 35 YEARS, R/O:
MOMPURA, TEH. NAGDA, UJJAIN (MADHYA
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 30-06-2023
18:18:51
2
PRADESH)
6. THE STATE OF MADHYA PRADESH THRU.
COLLECTOR UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
Reserved on :- 28.04.2023
Pronounced on :- 30.06.2023
.......................................................................................................
This appeal having been heard and reserved for orders coming on for
pronouncement this day, HON'BLE JUSTICE PRANAY VERMA
pronounced the following:-
ORDER
This appeal under Section 100 of the CPC has been preferred by
defendant No.1/appellant being aggrieved by the judgment and decree dated
29.01.2020 passed in RCA No.08/2018 by the Additional District Judge,
Nagda, District Ujjain reversing the judgment and decree dated 25.04.2015
passed in CS No.17-A/2012 by the Civil Judge Class - I, Nagda, District Ujjain
and decreeing the claim of plaintiff/respondent No.1.
02. As per plaintiff, he is the owner of the suit land bearing survey
No.710 area 0.880 hectare, Gram Atlawada, Tehsil Nagda, District Ujjain.
Defendant No.1 made an application before the Additional Tehsildar, Nagda for
recording of his possession over the suit land in the year 1996 in which he
stated to have purchased the suit land from plaintiff under an agreement to sale
dated 30.05.1991. No such agreement was ever executed by plaintiff in his
favour. The application preferred by defendant No.1 was allowed by the
Tehsildar, which order was set aside by the Sub Divisional Officer, Khachrod
which order was maintained in appeal by the Commissioner, District Ujjain.
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 30-06-2023
18:18:51
Defendant No.1 had instituted an action before the Civil Judge Class II,
Khachrod for declaration of his title to the suit land and for permanent
injunction with respect thereto. The same was returned to him by order dated
04.01.2002 but the plaint was not represented by defendant No.1 and instead he
instituted proceedings before the Revenue Courts which have been dismissed.
On 30.06.2007, defendant No.1 interfered with his possession over the suit land
and claimed title thereto.
03. On aforesaid contentions, the plaintiff instituted an action on
30.11.2007 for declaration of his title to the suit land, declaration that the
agreement to sale dated 30.05.1991 is void and not binding upon him and does
not confer any title upon defendant No.1 over the suit land and for permanent
injunction restraining defendant No.1 from interfering with his possession over
the suit land.
04. Defendant No.1 contested the claim by filing his written statement
submitting that plaintiff had sold the suit land in his favour under the agreement
to sale dated 30.05.1991 and had delivered possession of the same to him.
Plaintiff is not the owner of the suit land and instead it is defendant No.1 who is
the owner thereof. Defendant No.1 had paid the entire amount of sale
construction of Rs.50,000/- to plaintiff. In the revenue proceedings also
possession of defendant No.1 over the suit land has been found and plaintiff is
not in possession. The claim has falsely been instituted by the plaintiff which
deserves to be dismissed.
05. The trial Court held that the agreement to sale dated 30.05.1991 has
been impounded by the Collector of Stamps hence is admissible in evidence.
Defendant No.1 has shown his willingness for registration of the said agreement
which has been proved by way of the evidence adduced by him. Under the
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 30-06-2023
18:18:51
agreement possession of the suit land was delivered by plaintiff to defendant
No.1 and he is in possession thereof and has performed his part of the contract.
The report of the local Commissioner appointed by the Court also shows that
defendant No.1 is in possession of the suit land. Under the agreement to sale
title has been transferred by plaintiff in favour of defendant No.1. On such
findings, plaintiff's claim was dismissed.
06. In appeal by plaintiff, the lower appellate Court has held that the
agreement to sale dated 30.05.1991 was executed by plaintiff in favour of
defendant No.1 but the same is ineffective against him since claim of defendant
No.1 for specific performance of contract has already been rejected on
04.01.2002 and no steps thereafter have been taken by him in furtherance of the
contract. The agreement to sale does not confer any title upon defendant No.1
in absence of execution of any registered document transferring title in his
favour. From the evidence available on record, it is apparent that plaintiff is in
possession of the suit land and not defendant No.1. The report of the Local
Commissioner appointed by the trial Court was not reliable and has wrongly
been accepted by it. In consequences, the plaintiff's claim has been decreed.
07. Learned counsel for the appellant has submitted that the judgment and
decree passed by the lower appellate Court is illegal and contrary to law. It has
erred in holding that the agreement Exhibit-D/2 has been rendered ineffective.
The documents on record including the agreement have been mis-interpreted.
The finding recorded by it to discreted the report of the Local Commissioner
and in observing that a fresh commission ought to have been issued is perverse.
From the record, it is evident that it is defendant No.1 and not plaintiff who is in
possession of the suit land. The claim was hence squarely hit by the proviso to
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 30-06-2023
18:18:51
Section 34 of the Specific Relief Act and ought to have been dismissed on that
ground alone. The lower appellate Court has failed to discharge its duty as the
final Court of fact. The agreement Exhibit-D/2 had been found proved yet has
illegally been declined to be given due effect to. In the agreement, there was a
specific recital of possession being handed over by plaintiff to defendant No.1
and there is no material to prove that possession was redelivered by defendant
No.1 to plaintiff in view of which the only legal presumption to be drawn was of
possession of defendant No.1. The documentary evidence ought to have been
given more weightage to. It is hence submitted that the judgment and decree
passed by the lower appellate Court be set aside.
08. I have heard the learned counsel for the appellant and have perused
the record.
09. The appellant/defendant No.1 has claimed title to the suit land by
virtue of an agreement to sale dated 30.05.1991 Exhibit-D/2 executed in his
favour by plaintiff. Thus to begin with he has admitted title of plaintiff. Though,
the agreement to sale has been found proved by the lower appellate Court also
but merely by way of an agreement to sale title is not transferred in favour of the
intending purchaser as provided under Section 54 of the Transfer of Property
Act which stipulates that a mere agreement to sale by itself is wholly incapable
of conferring any interest. The lower appellate Court has hence rightly held that
merely by execution of agreement to sale in favour of defendant No.1, he does
not acquire any title to the suit land.
10. Defendant No.1 had instituted an action for specific performance of
contract dated 30-05-1991 against plaintiff. The plaint was however rejected by
the trial Court by judgment and decree dated 04.01.2002 in exercise of powers
under Order 7 Rule 11 of the CPC. Admittedly, no proceedings thereafter were
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 30-06-2023
18:18:51
instituted by defendant No.1 for execution of sale-deed in his favour. Since
claim of defendant No.1 was rejected at the threshold and no other proceedings
have been instituted by him it cannot be said that he has taken any steps in
furtherance of contract dated 30.05.1991 for execution of sale-deed in his
favour. Thus, not only his remedy for bringing a suit for specific performance
has been lost but he is also not in any manner entitled to protect his alleged
possession over the suit land under Section 53-A of the Transfer of Property
Act. It cannot be held that he has fulfilled the necessary ingredients necessary
for him to take the benefit of doctrine of part performance embodied
thereunder.
11. Though, in the agreement to sale dated 30.05.1991 Exhibit-D/2 it was
stated that possession of the suit land has been delivered by plaintiff to
defendant No.1, but by that averment alone, it cannot be inferred that defendant
No.1 still continues to be in possession of the suit land. The documents
available on record of the period subsequent thereto as well as the oral evidence
adduced by both the parties also has to be considered. By mere mentioning of
factom of delivery of possession in 1991, possession on the date of suit i.e.
2007 cannot be legally presumed. The revenue documents available on record
which are of period subsequent to execution of the agreement clearly
demonstrate that plaintiff is recorded to be in possession of the suit land. The
order whereby defendant No.1 was recorded to be in possession of the suit
land has been set aside. Thus, such recording has lost all significance. It also
appears that proceedings at the instance of defendant No.1 before the Revenue
Court for recording of his possession are pending. No final and conclusive
determination has been made as regards possession therein. In any case, the
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Signed by: SHILPA
NAGDEVE
Signing time: 30-06-2023
18:18:51
documents which are available on record unmistakably demonstrate possession
of plaintiff over the suit land.
12. The oral evidence adduced by both the parties has been dealt with in
extenso by the lower appellate Court and on that basis also it has held that
plaintiff is in possession and not defendant No.1. There does not appear to be
any error committed by it in appreciation of the documentary as well as the oral
evidence brought on record by both the parties and in thereafter recording a
finding to the effect that plaintiff is in possession of the suit land. The said
finding is a pure finding of fact and is not liable to be interfered with in exercise
of second appellate jurisdiction. Moreover it is a well settled principle of law
that possession follows title. Since title of plaintiff to the suit land has been duly
proved, it has to be legally presumed that he is in possession of the suit land.
13. The Local Commissioner which had been appointed by the trial
Court was only for the purpose of ascertaining as to what crops had been sown
over the suit land. He was not directed, nor could have been directed, to
ascertain as to who is in possession of the suit land. The report submitted by
him to the effect that defendant No.1 has been in possession of the suit land
ought to have been rejected by the trial Court which illegally did not do so but
the lower appellate Court has rightly discarded the said report in which no error
can be found. The lower appellate Court has considered the entire evidence on
record and has recorded specific findings and has also given reasons as to why
the findings recorded by the trial Court are incorrect. It hence cannot be said
that it has in any manner failed to exercise its jurisdiction as the first appellate
Court.
14. Thus, in view of the aforesaid discussion, I do not find that the lower
appellate Court has committed any error in setting aside the judgment and
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 30-06-2023
18:18:51
decree passed by the trial Court and decreeing the claim of plaintiff. The
judgment and decree passed by it are based upon a thorough and a proper
marshalling of the entire evidence available on record and no fault can be found
with the same. The findings have not been shown to be illegal or perverse in any
manner. No case for interference has been made out. Thus, affirming the
judgment and decree passed by the lower appellate Court, the appeal stands
dismissed in limini.
(PRANAY VERMA)
JUDGE
Shilpa
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 30-06-2023
18:18:51
