Madhya Pradesh High Court

Noorjaha Bee vs Bahav Kha on 4 May, 2023

Author: Pranay Verma

1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 4 th OF MAY, 2023
SECOND APPEAL No. 1213 of 2022

BETWEEN:-
1. NOORJAHA BEE W/O RAIS UDDIN, AGED ABOUT
26 YEARS, OCCUPATION: HOUSEWIFE BADODA
TEHSIL BADODA, (MADHYA PRADESH)

2. NYAJ MOHAMMAD @ A. SATTAR KHA S/O ABDUL
RAJAAK KHAN, AGED ABOUT 41 YEARS,
OCCUPATION: KRISHI BARODE TEHSIL BARODE,
DISTRICT AGAR MALWA (MADHYA PRADESH)

.....APPELLANTS
(BY SHRI ASHISH GUPTA - ADVOCATE)

AND
1. BAHAV KHA S/O BAHID KHA, AGED ABOUT 66
YE A R S , BADOD TEHSIL BADOD, (MADHYA
PRADESH)

2. RASHID KHA S/O BAHEED KHA, AGED ABOUT 51
YEAR S , BARODE TEHSIL BARODE, DISTRICT
AGAR MALWA (MADHYA PRADESH)

3. ABRAR KHA S/O IKBAAL KHA, AGED ABOUT 32
YEAR S , BARODE TEHSIL BARODE, DISTRICT
AGAR MALWA (MADHYA PRADESH)

4. IKRAR KHA S/O IKBAAL KHA, AGED ABOUT 31
YEAR S , BARODE TEHSIL BARODE, DISTRICT
AGAR MALWA (MADHYA PRADESH)

5. MUNAVAR BEE W/O IKBAAL KHA, AGED ABOUT
58 YEARS, BARODE TEHSIL BARODE, DISTRICT
AGAR MALWA (MADHYA PRADESH)

6. SEHROON BEE W/O MAKBUL KHA, AGED ABOUT
58 YEARS, BARODE TEHSIL BARODE, DISTRICT
AGAR MALWA (MADHYA PRADESH)
Signature Not Verified
Signed by: RASHMI
PRASHANT
Signing time: 08-May-23
6:23:42 PM
2
7. JEEMAL S/O MAKBUL KHA, AGED ABOUT 46
YEAR S , BARODE TEHSIL BARODE, DISTRICT
AGAR MALWA (MADHYA PRADESH)

8. SHAKEEL KHA S/O MAKBUL KHA, AGED ABOUT
41 YEARS, BARODE TEHSIL BARODE, DISTRICT
AGAR MALWA (MADHYA PRADESH)

9. MOHSEEN S/O MAKBUL KHA, AGED ABOUT 26
YEAR S , BARODE TEHSIL BARODE, DISTRICT
AGAR MALWA (MADHYA PRADESH)

10. RAMJAAN KHA S/O MEHMOOD KHA DECEASED
THR. LRS. KULSUM BEE W/O RAMJAAN KHA,
AGED ABOUT 75 YEARS, LIPDE MOHALLA
PIDAWA TEHSIL PIDAWA (RAJASTHAN)

11. RAMJAAN KHA S/O MEHMOOD KHA DECEASED
THR. LRS. AYYUB KHA S/O RAMJAAN KHA, AGED
ABOUT 55 YEARS, LIPDE MOHALLA PIDAWA
TEHSIL PIDAWA (RAJASTHAN)

12. RAMJAAN KHA S/O MEHMOOD KHA DECEASED
THR. LRS. KAYYUB KHA S/O RAMJAAN KHA,
AGED ABOUT 52 YEARS, LIPDE MOHALLA
PIDAWA TEHSIL PIDAWA (RAJASTHAN)

13. RAMJAAN KHA S/O MEHMOOD KHA DECEASED
THR. LRS. YUSUF KHA S/O RAMJAAN KHA, AGED
ABOUT 48 YEARS, LIPDE MOHALLA PIDAWA
TEHSIL PIDAWA (RAJASTHAN)

14. RAMJAAN KHA S/O MEHMOOD KHA DECEASED
THR. LRS. YUNUS KHA S/O RAMJAAN KHA, AGED
ABOUT 42 YEARS, LIPDE MOHALLA PIDAWA
TEHSIL PIDAWA (RAJASTHAN)

15. RAMJAAN KHA S/O MEHMOOD KHA DECEASED
THR. LRS. SALMA BEE D/O RAMJAAN KHA W/O
SHADI KHA, AGED ABOUT 45 YEARS, JHALAWAR
(RAJASTHAN)

16. USMAAN KHA S/O MEHMOOD KHA DECEASED
THR. LRS. AKIL KHA DECEASED THR. LRS. AASIF
KHA S/O AKIL KHA RAMLAXMAN BAZAR
BARODE, DISTRICT AGAR MALWA (MADHYA
PRADESH)

17. USMAAN KHA S/O MEHMOOD KHA DECEASED
THR. LRS. AKIL KHA DECEASED THR. LRS.
Signature Not Verified
Signed by: RASHMI
PRASHANT
Signing time: 08-May-23
6:23:42 PM
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SHAHRUK KHA S/O AKIL KHA RAMLAXMAN
BAZAR BARODE, DISTRICT AGAR MALWA
(MADHYA PRADESH)

18. USMAAN KHA S/O MEHMOOD KHA DECEASED
THR. LRS. AKIL KHA DECEASED THR. LRS.
SHAHNAZ BEE D/O AKIL KHA RAMLAXMAN
BAZAR BARODE, DISTRICT AGAR MALWA
(MADHYA PRADESH)

19. USMAAN KHA S/O MEHMOOD KHA DECEASED
THR. LRS. AKIL KHA DECEASED THR. LRS.
AAFREEN BEE D/O AKIL KHA RAMLAXMAN
BAZAR BARODE, DISTRICT AGAR MALWA
(MADHYA PRADESH)

20. USMAAN KHA S/O MEHMOOD KHA DECEASED
THR. LRS. AKIL KHA DECEASED THR. LRS.
SIDDIQUI BEE W/O AKIL KHA RAMLAXMAN
BAZAR BARODE, DISTRICT AGAR MALWA
(MADHYA PRADESH)

21. SURAIYA BEE D/O NATTHE KHA W/O
MASLEUDDIN, AGED ABOUT 71 YEARS, BARODE
TEHSIL BARODE, DISTRICT AGAR MALWA
(MADHYA PRADESH)

22. BINNO BEE S/O NATTHE KHA W/O MASLEUDDIN,
AGED ABOUT 61 YEARS, SUSNER TEHSIL SUSNER
DISTRICT AGAR MALWA (MADHYA PRADESH)

23. JAFAR KHA S/O NATTHE, AGED ABOUT 56 YEARS,
SUSNER TEHSIL SUSNER DISTRICT AGAR
MALWA (MADHYA PRADESH)

24. FARMUDALI S/O MOHAMMAD ALI, AGED ABOUT
54 YEARS, NOT MENTION (MADHYA PRADESH)

25. SHAMEM BEE D/O SALIMUDDIN, AGED ABOUT 36
YEAR S , BARODE TEHSIL BARODE, DISTRICT
AGAR MALWA (MADHYA PRADESH)

26. STATE OF M.P. THROUGH COLLECTOR AGAR
MALWA (MADHYA PRADESH)

.....RESPONDENTS

This appeal coming on for admission. this day, th e court passed the
Signature Not Verified
Signed by: RASHMI
PRASHANT
Signing time: 08-May-23
6:23:42 PM
4
following:
ORDER

Learned counsel for the appellants is heard on the question of admission.

2. This appeal has been preferred by defendant No.4 and 7 against the judgment and decree dated 27.01.2022 passed in Civil Appeal No. 100053/2014 by the Second District Judge, District Agar Malwa affirming the judgment and decree dated 15.11.2014 passed in Civil Suit No. 21-A/2013 by the Civil Judge, Class-I, Agar, District Shajapur, whereby the claim of plaintiffs had been partly decreed.

3. The plaintiffs had instituted an action before the Trial Court for declaration of their title to the suit lands, declaration that the sale deeds executed by defendant No.1 in favour of defendants 4 and 5, by defendant No.5 in favour of defendant No.7 and by defendant No.2 in favour of defendant No.4 are null and void as against their interest in the suit lands and for permanent injunction restraining the defendants from interfering with their possession over the suit lands.

4. The claim of plaintiffs was based upon plea that they and defendants 1 to 2 are members of the same family and are descendants of a common ancestors. They have shares in the suit lands as detailed by them in the plaint but defendant No.3 has got himself mutated over the same illegally and defendant No. 1 has sold part of the suit lands in favour of defendants 4 and 5. During pendency of the suit, the sale deeds executed by defendant No.5 and defendant No.2 in favour of defendant No.7 and 4 respectively were also challenged on the same ground. The claim was contested by the defendants submitting that plaintiffs do not have any title to the suit lands and defendant No.1 is the sole owner thereof and that the sale deeds executed by some of the Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 08-May-23 6:23:42 PM

defendants 1, 4 and 5 in favor of the other defendants are perfectly just and legal. It was also submitted that the claim is bad for non-joinder of necessary parties.

5. The trial Court held that plaintiffs have not been able to prove their title to the suit lands as contended by them and that the suit suffers from non- joinder of necessary parties. However, it further recorded a finding to the effect that plaintiffs 12 and 13 and defendants 1 and 2 are children of Nathu Khan, who had 1/4th share i.e 0.372 hectare share in the suit lands which devolved equally upon them and they have 0.074 hectare share each therein whereas sale deeds have been executed by them in excess of their shares in the suit lands hence they are void to the extent of share of plaintiffs 12 and 13 therein. The aforesaid judgment and decree has been maintained by the lower appellate Court in appeal having been preferred by defendants 4 and 7 by the impugned judgment and decree.

6. Learned counsel for the appellants submits that the Courts below have erred in passing their decree. They have themselves recorded a finding that plaintiffs have failed to prove their title to the suit lands yet have declared the sale deeds executed in favour of defendants 4 and 7 as null and void. As title of plaintiffs itself had been negatived, the only option available was to dismiss the claim of the plaintiffs in its entirety and the sale deeds could not have been held to be null and void. It was also recorded that the suit is bad for non- joinder of necessary parties yet has illegally been decreed. It is hence submitted that the judgment and decree passed by the Courts below be set aside.

7. I have heard the learned counsel for the appellants and have perused the records.

8. Though the Courts below have held that plaintiffs have failed to prove Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 08-May-23 6:23:42 PM

their title to the suit lands but a careful perusal of the plaint particularly with respect to the reliefs sought therein and the findings recorded by the Courts below shows that it is the title to the suit lands as contended by plaintiffs which has been negatived hence decree of declaration of title has rightly not been granted. However, that does not mean that the plaintiffs have not been held to be having any share whatsoever in the suit lands. On the contrary, it has been specifically held that Natthu Khan had 1/4th share in the suit lands which equally devolved upon his sons and daughters, i.e. plaintiff No.12, 13 and defendants 1 and 2 hence they acquired 1/4th share each therein upon his death. Each of them had the right to execute sale deed only to the extent of their share but not in excess thereof. A perusal of the judgments of both the Courts below clearly reveals that finding has been recorded as regards title of Natthu Khan and its devolution upon plaintiffs 12 and 13 along with defendants No. 1 and 2. Thus, it cannot be said that the Courts below have held that plaintiffs particularly plaintiffs 12 and 3 do not have any title to the suit lands when it has specifically

been held that they have a share therein though not as contended by them. The finding of title of plaintiffs 12 and 13 as recorded is perfectly just and legal and is based upon the facts of the case and cannot be faulted with in any manner.

9. The finding of the Courts below as regards the suit being bad for non- joinder of necessary parties is also in relation to the claim of declaration of title as laid by plaintiffs and the said claim has been dismissed. Thus, finding of non-joinder of necessary parties is only relatable to claim of plaintiffs for declaration of title and not to the relief of declaration of the sale deeds being null and void. The decree passed by the Courts below despite such a finding hence cannot be faulted with. Sale deeds have been executed in excess of share of the

Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 08-May-23 6:23:42 PM

sellers in the suit lands in which plaintiffs 12 and 13 also have a share. They have been declared null and void only to the extent of their share and not in entirety which is perfectly justified.

10. Thus in view of the aforesaid discussion, I do not find that the Courts below have committed any error of law in partly decreeing the claim of plaintiffs. The judgments and decree passed by them are upon due appreciation of the facts of the case and application of relevant legal principles applicable thereto. No fault can be found with the reasoning or findings recorded by the Courts below. Thus, the appeal is found to be devoid of any merits and is hereby dismissed in limine.

No order as to costs.

Certified copy as per rules.

(PRANAY VERMA) JUDGE rashmi

Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 08-May-23 6:23:42 PM