Premwati Yadav vs Guruvachan Singh Arora
2023 Latest Caselaw 5325 MP

                           1




            AIN THE HIGH COURT OF MADHYA PRADESH
                         AT JABALPUR
                               BEFORE
             HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                     ON THE 31st OF MARCH, 2023

                 SECOND APPEAL NO.2480 OF 2022

Between:-

      PREMWATI YADAV W/O BUDDHA
      YADAV, AGED ABOUT 79 YEARS, R/O
      VILLAGE     GHURWAR,    TAHSIL
      SHAOHAGPUR,    DISTT. SHAHDOL
      (MADHYA PRADESH)


                                                  ..............APPELLANT
(BY SHRI PRAKASH GUPTA, ADVOCATE)

AND
1.    GURUVACHAN SINGH ARORA W/O
      LATE HARPAL SINGH ARORA, AGED
      ABOUT 60 YEARS,
2.    AMIT SINGH ARORA S/O LATE
      HARPAL SINGH ARORA, AGED ABOUT
      30 YEARS,
      BOTH RESPONDENTS 1 & 2 ARE R/O
      SINGPUR    ROAD,    TAHSIL
      SHAOHAGPUR, DISTRICT SHAHDOL
      (MADHYA PRADESH)
3.    SMT. ASHA PANDEY W/O RAJENDRA
      KUMAR PANDEY, AGED ABOUT 27
      YEARS, R/O NEW HOUSING BOARD
      COLONY, BALPURWA, WARD NO. 32,
      TAHSIL SHAOHAGPUR, DISTRICT
      SHAHDOL (MADHYA PRADESH)
4.    MANOHARA YADAV S/O LATE
      BHIMSEN YADAV, AGED ABOUT 60
      YEARS, R/O VILLAGE GHURWAR,
      TAHSIL SHAOHAGPUR, DISTRICT
      SHAHDOL (MADHYA PRADESH)
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5.     DWARIKA  YADAV    S/O  LATE
       JAGMOHAN YADAV, AGED ABOUT 38
       YEARS,
6.     RAMSWAROOP YADAV S/O LATE
       JAGMOHAN YADAV, AGED ABOUT 30
       YEARS,
       BOTH RESPONDENTS 5 & 6 ARE R/O
       VILLAGE   GHURWAR,    TAHSIL
       SHAOHAGPUR, DISTRICT SHAHDOL
       (MADHYA PRADESH)
7.     BALDEVNA YADAV S/O NAIKA YADAV
8.     DURGA YADAV S/O NAIKA YADAV
       BOTH MOTHER PARWATIYA YADAV
       R/O PONGRI, TAHSIL SHAOHAGPUR,
       DISTRICT SHAHDOL (MADHYA
       PRADESH)
9.     BATASIYA BAI W/O RAMAVTAR YADAV,
       AGED ABOUT 62 YEARS, R/O PONGRI,
       TAHSIL SHAOHAGPUR, DISTRICT
       SHAHDOL (MADHYA PRADESH)
10.    STATE OF MADHYA PRADESH
       THROUGH COLLECTOR DISTRICT
       SHAHDOL (MADHYA PRADESH)
                                                                   ............RESPONDENTS
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        This appeal coming on for admission this day, the Court passed the
following:
                               ORDER

This second appeal has been preferred by plaintiff challenging the judgment and decree dated 27/08/2022 passed by 3 rd District Judge, Shahdol, in Civil Appeal No.9/2016 and 300036/2015, affirming/modifying the judgment and decree dated 30/10/2015 passed by 1 st Civil Judge Class-II, Shahdol in Civil Suit No.167-A/2014, whereby learned Courts below holding the plaintiff to be out of possession, dismissed the suit filed for declaration of title and permanent injunction in respect of land Khasra No.568 area 0.947 hectare situated in village Dhurwar, Tahsil Sohagpur, District Shahdol.

2. Learned counsel for the appellant/plaintiff submits that the sale deed dated 03/12/1992 (Ex.P/1) was got executed by Sardar Harpal Singh Arora fraudulently in the name of plaintiff- Premwati without payment of consideration and without delivery of possession, which in fact was not executed by the plaintiff in favour of Sardar Harpal Singh Arora. He further submits that after the sale deed dated 03/12/1992, son and wife of Sardar Harpal Singh Arora have further sold the land to Smt. Asha Pandey vide registered sale deed dated 16/10/2006 (Ex.P/4). He submits that even after execution of the aforesaid two sale deeds, the plaintiff was in possession of the land and when the defendant(s) tried to dispossess the plaintiff, the suit was instituted within limitation. He further submits that upon examination of thumb impression of plaintiff, the handwriting expert opined that the thumb impression affixed on the sale deed is not of the plaintiff and the learned trial Court rightly held that the sale deed was not executed by the plaintiff, however, he submits that learned trial Court dismissed the suit holding the plaintiff to be out of possession and learned first appellate Court has also erred in allowing the appeal of defendant 3 and in reversing the findings in respect of execution of sale deed by plaintiff and erred in dismissing the suit in toto by dismissing the appeal of the plaintiff. He also submits that Rajendra Pandey (DW/1) himself has admitted that first time he went on the spot in the year 2006, therefore, it cannot be said that the defendant 3 is in possession. Accordingly, he prays for admission of the second appeal.

3. Heard learned counsel for the appellant and perused the record.

4. Sale deed dated 03/12/1992 (Ex.P/1) shows that it has been executed by 7 persons namely Jagmohan, Butaiya, Sukhmanti, Manohara, Parwatiya, Batasiya and plaintiff- Premwati but the suit has been filed only by Premwati and other vendors who are party to the sale deed, have not supported the case

of plaintiff except Manohara. Apparently, the suit has been filed on 18/12/2007 and the sale deed in question had been executed on 03/12/1992. In view of the fact that the sale deed has not been challenged by other 6 persons named in the sale deed, learned first appellate Court has reversed the judgment and decree passed by the learned trial Court in respect of execution of sale deed.

5. So far as the question of physical possession on the suit land is concerned, learned trial Court as well as learned first appellate Court, have considered the oral testimony of Premwati (PW/1), who has categorically admitted that she is not in possession of the land but the defendant 3 is in possession of it. Other witness Manohara (PW/2), who is one of the executants of the sale deed, has also admitted that plaintiff is not in possession but defendant 3 is in possession.

6. It is well settled that a person who is not in possession of the suit property is not entitled for the relief of permanent injunction. Despite availability of opportunity before the trial Court as well as before the first appellate Court, the plaintiff has not taken any action to amend the relief clause seeking relief of possession.

7. As such, in my considered opinion, learned Courts below have not committed any illegality in holding the plaintiff to be out of possession and further in dismissing the suit for want of ownership and relief of possession.

8. Resultantly, the second appeal fails and is hereby dismissed in limine under Order 41 Rule 11 CPC.

9. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) RS JUDGE RASHMI RONAL Digitally signed by RASHMI RONALD VICTOR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=dcca7715f3f684c24752dbb505e5b186c02289 cadaa753ee20545e7ad1b52d64,

D pseudonym=625746E87FF4AC3C6DB695A8AAC47B69 FE61026F, serialNumber=9EBC5CA1D2C50306E16173EA7E3552F5 4DAFD50DD81AA3585D181CA58585377A, cn=RASHMI RONALD VICTOR Date: 2023.04.03 15:10:45 +05'30'

VICTOR