Chaturbhuj Vishwakarma vs Ramprakash
2023 Latest Caselaw 7126 MP

                                  1
 IN      THE     HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                          BEFORE
         HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                       ON THE 2 nd OF MAY, 2023
                   SECOND APPEAL No. 1809 of 2021

BETWEEN:-
CHATURBHUJ     VISHWAKARMA    S/O    BADALI
VISHWAKARMA,     AGED  ABOUT    53   YEARS,
OCCUPATION:   FARMER    VILLAGE    GHOOGSI,
TEH.NIWARI  DISTRICT  TIKAMGARH    (MADHYA
PRADESH)

                                                              .....APPELLANT
(BY SHRI SOURABH SINGH THAKUR - ADVOCATE)

AND
1.    RAMPRAKASH S/O SIYARAM SHARMA, AGED
      ABOUT 40 YEARS, R/O GHOGSI, TEH.NIWARI,
      DISTRICT TIKAMGARH (MADHYA PRADESH)

2.    SIYARAM S/O KISHUNLAL SHARMA, AGED
      ABOUT 76 YEARS, R/O VILLAGE GHOOGSI TEHSIL
      NIWARI DISTRICT TIKAMGARH (MADHYA
      PRADESH)

3.    STATE OF MADHYA PRADESH THROUGH
      COLLECTOR DISTT. TIKAMGARH (MADHYA
      PRADESH)

                                                           .....RESPONDENTS
(NONE)

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

This second appeal has been preferred by the plaintiff challenging the judgment & decree dated 05.10.2021 passed by 2nd District Judge, Niwari, District Tikamgarh in Civil Appeal no. 21/2020 affirming the judgment & decree dated 03.02.2020 passed by 1st Civil Judge Class-II, Niwari, District Tikamgarh

in Civil Suit no. 300043-A/2016 whereby learned Courts below have dismissed the plaintiff's suit filed only for declaration of title.

2 . In short the facts are that the plaintiff claiming himself to be owner/bhoomiswami and in possession of the land bearing Survey No.786 area 0.158 hectare situated in Village Ghughsi, Tehsil Niwari, District Tikamgarh instituted the suit on 11.05.2016 only for declaration of title to the effect that he is owner and in possession of the land and the sale deed dtd. 13.12.2001 (Ex.P/4) executed by plaintiff in favour of defendant 1 being a sham and unreal transaction of sale is void. However, no relief of cancellation of sale deed or for permanent injunction or restoration of possession has been sought. The plaintiff has also not valued the suit on the basis of sale consideration of Rs.29,000/- and has also not paid ad valorem court fee on the said amount.

3 . Learned counsel for the appellant submits that even after execution of sale deed on 13.12.2001, the plaintiff remained in possession of land and even the defendant 1 did not get his name mutated till the year 2016. He further submits that the sale deed dated 13.12.2001 (Ex.P/4 or D/2) is not a real transaction of sale but it was executed as a security of loan amount with the further agreement to reconvey the property by defendant 1 in favour of the plaintiff.

4. He further submits that learned Courts below have also erred in dismissing the application under Order 6 Rule 17 of C.P.C whereby the plaintiff sought relief of possession. With the aforesaid submissions, learned counsel for the appellant prays for admission of Second Appeal.

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

6 . Undisputedly, the plaintiff had by executing regd. sale deed on 13.12.2001 sold the land in question in favour of defendant 1/ Ramprakash for consideration of Rs.29,000/- with clear recital of handing over possession on the same date. But the present suit only for declaration, has been instituted on 11.05.2016 without seeking relief of cancellation of sale deed or for consequential relief of permanent injunction or restoration of possession.

7. It is well settled that upon execution and registration of sale deed, title passes in favour of the vendee, therefore, even if the name of plaintiff remained in khasra till the year 2016, it does not affect title of the defendant 1. Even otherwise, it is well settled that mutation neither confers nor extinguishes the title of real owner.

8 . For the reasons best known to the plaintiff, he also did not file suit for cancellation of sale deed valuing at Rs.29,000/- on which plaintiff was required

to pay ad valorem court fee. As such the suit filed after a lapse of about 15 years that too only for declaring the sale deed as void, was not maintainable.

9. Learned Courts below after having considered and appreciated oral as well as documentary evidence available on record, held that the plaintiff on the date of execution of sale deed itself handed over possession of the property to the defendant 1 and upon perusal of the oral evidence by this Court, the findings recorded by learned Courts below in respect of possession do not appear to be illegal or perverse. Even otherwise the finding in respect of possession, is a pure finding of fact.

10. It is also well settled that when plaintiff is in a position to seek consequential relief and does not seek the same, then such suit is hit by the provision of Section 34 of the Specific Relief Act also.

1 1 . Resultantly, the second appeal having no involvement of substantial question of law, fails and is hereby dismissed in limine under Order 41 Rule 11 CPC.

12. Interim application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE Prar

Digitally signed by PRARTHANA SURYAVANSHI Date: 2023.05.09 11:26:12 +05'30'