Madhya Pradesh High Court
Mohammed Shafi vs Chand Khan on 9 May, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 9 th OF MAY, 2023
MISC. PETITION No. 300 of 2023
BETWEEN:-
1. MOHAMMED SHAFI S/O MOHAMMED KHAN,
AGED ABOUT 59 YEARS, OCCUPATION:
AGRICULTURE R/O LAL IMLI NEAR JAMA
MASJID UJJAIN (MADHYA PRADESH)
2. MOHAMMAD ZAKIR S/O MOHAMMED KHAN,
AGED ABOUT 44 YEARS, OCCUPATION:
AGRICULTURIST R/O LAL IMLI NEAR JAMA
MASJID UJJAIN (MADHYA PRADESH)
3. MOHAMMED SHAKIR S/O MOHAMMED KHAN,
AGED ABOUT 42 YEARS, OCCUPATION:
AGRICULTURIST R/O LAL IMLI NEAR JAMA
MASJID UJJAIN (MADHYA PRADESH)
.....PETITIONER
( BY SHRI MANISH KUMAR JOSHI-ADVOCATE)
AND
1. CHAND KHAN S/O KARIM KHAN, AGED ABOUT 80
YEARS, OCCUPATION: AGRICULTURIST R/O H.NO.
9 KHUDIRAM BOSS ROAD UJJAIN (MADHYA
PRADESH)
2. BHAYYU S/O KARIM KHAN, AGED ABOUT 60
YEAR S, OCCUPATION: AGRICULTURIST HOUSE
NO. 9, KHUDIRAM BOSS ROAD UJJAIN (MADHYA
PRADESH)
3. AGNIPATH REAL ESTATE PVT. LTD. THROUGH
AUTHORISED SIGNATORY YASHPALSINGH
THAKUR S/O VIJAY SINGH THAKUR, AGED ABOUT
27 YEARS, OCCUPATION: BUSINESS VILLAGE
MANGROLA TEHSIL AND DISTRICT UJJAIN
(MADHYA PRADESH)
4. COLLECTOR DISTRICT UJJAIN COLLECTORATE
2
DISTRICT UJJAIN IIIRD FLOOR PRASHASNIK
SANKUL BHAWAN NEAR KOTHI PALACE UJJAIN
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VEER KUMAR JAIN SENIOR ADVOCATE ALONGWITH VAIBHAV
JAIN,-ADVOCATE)
(BY SHRI YOGESH SAXENA, LEARNED COUNSEL FOR THE
RESPONDENT [R-1 & R-2].
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
(1) Petitioners/defendants have filed this petition under Article 227 of the
Constitution of India challenging the validity of order dated 10.01.2023 passed
in R.C.S.A/2/2014 whereby application filed under order 6 Rule 17 of C.P.C.
seeking amendment in the written statement and application under order 8 Rule
1 of C.P.C. seeking permission to file document has been rejected.
Facts of the case in short are as under:-
(2) Respondent Nos. 1 and 2 being plaintiff filed suit for declaration and
permanent injunction for the land survey No.641 area 3.20 hectare and 643/1
area 2.06 situated at Village Matanakala, Tehsil & District Ujjain in order to
challenge the validity of sale deed dated 13.01.2014 executed by defendant
Nos.1 to 3 (petitioners) in favour of defendant No.4 ( respondent No.3). The
Civil Suit is pending since 2014. According to the plaintiff, the suit land was
purchased by Kareem Khan who died in the year 1980. His wife Jawa Bai had
no issue. Father of the plaintiff used to live in Kareem Khan's house. The
mother of plaintiff Faizanbai and Jawa Bai were real sister. After the death of
Kareem Khan, the name of Jawa Bai was mutated in the revenue record as
owner who died in the year 1996. During her life time, she declared the plaintiffs
her legal heirs and executed a oral Hiba in their favour. After the death of Jawa
Bai, the plaintiff moved an application for mutating their name and case was
registered by the Naib Tehsildar and after recording the evidence, the order was
passed on 07.08.1996 in favour of the plaintiff. Thereafter, the plaintiffs sold the
land survey No.643 area 0.13 RA to Shantabai on 26.06.2000. The plaintiffs
also received compensation for Gas Pipeline for the said land. According to the
plaintiff in the month of January 2014, some miscreants tried to take possession
of the land. They disclosed that the defendant No.4 has purchased the land
from the defendant No.1 to 3. They further enquired and found that the
defendant No.1 to 3 filed an appeal before the SDO against the order dated
07.08.1996 and on the basis of forge service report the order of mutation got
set aside and got recorded their name in the revenue record vide order dated
19.08.2013. Thereafter, they filed an appeal before the SDO, where stay has
been granted. Therefore, sale deed dated 13.01.2014 is void and not binding on
the plaintiffs.
(3) The defendant No.1 to 3 i.e. petitioners appeared and filed the written
statement admitting the execution of sale deed 13.01.2014 in favour of
defendant No.4. According to the defendants their grand father Nathu Kha was
real brother of Kareem Khan who died without issue and they are the son of
Mohhamad Khan therefore, they had inherited the property of Kareem Khan
after the death of Jawa Bai. They have denied the execution of oral Hiba. The
defendant No.4 also filed written statement and prayed for dismissal of suit.
They also filed cross appeal seeking declaration that they have become owner
of the suit and the plaintiffs be restrained not to interfere in their peaceful
possession.
(4) Thereafter issues were framed and plaintiffs gave evidence and
witnesses were cross examined.
(5) On 09.01.2023, the defendant No.1 to 3 moved an application under
Order 6 Rule 17 of C.P.C. proposing the amendment to the effect that on the
basis of sale deed dated 13.01.2014, the defendant No.4 has illegally got
mutated its name in the revenue record and against which an appeal has been
filed. The defendants are also seeking amendment in the written statement to the
effect that the defendant No.1 to 3 executed the sale deed without any sale
consideration and forgery was committed with them, therefore, the sale deed is
not binding on them. They also filed an application under Order 8 Rule 1 of
CPC for taking the documents on record specially the an order dated
14.07.2022 passed by Sub Divisional Officer (Rural) under provision of
Madhya Pradesh Kuchakra of Parigraha and Mukti Adhiniyam.
(6) However, by the aforesaid order dated 14.07.2022, the Sub
Divisional Officer did not find any ground to interfere with the sale deed and
dismissed as not maintainable. The defendants have failed to prove that the
amount given by defendant No.4 was not as a loan and the sale deed was
executed as security. The application was opposed by the petitioner as well as
defendant No.4. The learned District Judge vide impugned order dated
10.01.2023 has dismissed the application, hence, this petition before this Court.
I have heard learned counsel for the parties.
(7) The plaintiffs filed the suit in the year 2014 challenging the sale deed
executed by defendant No.1 to 3 in favour of respondent No.4 on the basis of
oral Hiba. The defendant No.1 to 3 filed written statement specifically admitting
the sale of land to the defendant No.4 by way of registered sale deed and
receipt of Rs.3,43,73,000/-. The written statement was filed in the year 2014-15.
Thereafter, the issues were framed, the plaintiffs have examined their witnesses
and they were cross examined. At the stage of defendants' evidence, now the
present application under Order 6 Rule 17 of CPC has been filed virtually
withdrawing the admission of execution of sale deed and receipt of sale
consideration. The learned Civil Court has rightly placed reliance upon the
judgment passed by Apex Court in case of Modi Spinning & Weaving Mills
Co vs Ladha Ram & Co (1976) 4 SCC 320 that the provision Order 6 Rule
17 of CPC prohibits for bringing a new case by way of amendment and written
statement. The learned Court has also rightly placed reliance upon the judgment
Shiromani Gurdwara Prabhandak vs Jaswant Singh (1991) 11 SCC 690
that at the belated stage the defendant cannot be permitted for inconsisting and
contrary averment.
(8) Shri Jain, learned Senior counsel appearing for the respondent No.3
submits that now by way of amendment, the present petitioners are trying to
create controversy with defendant No.4 and virtually a counter claim against the
defendant No.4 in suit filed by the respondent No.1 and 2 plaintiffs. The Apex
Court in its recent judgment passed in case of Damodhar Narayan Sawale (d)
through LRs Vs. Tejrao Bajirao Mhaske reported 2023 SCC Online SC
566 has held that the defendant could not be permitted to raise counter-claim
against the co-defendant because by virtue of Order VIII Rule 6A, it could be
raised by defendant against the claim of the plaintiff. Relevant portion of the
judgment is reproduced below:
31 Thus, a careful scanning of the impugned judgment would reveal
that virtually, the High Court considered the validity of the sale deed dated
04.07.1978 executed by the second defendant in favour of the first
defendant Civil Appeal No.930 of 2023 under ‘the Fragmentation
Act’, without directly framing an issue precisely on the same and
then, decided the validity of the sale deed dated 21.04.1979 executed by the
second defendant in favour of the plaintiff. We have already taken note of
the decision of this Court in Rohit Singh’s case (supra), wherein it
is observed that a defendant could not be permitted to raise counter-claim
against co-defendant because by virtue of Order VIII Rule 6A, CPC it could
be raised by a defendant against the claim of the plaintiff. Be that as it may,
in the instant case, no such counter-claim, which can be treated as a plaint in
terms of the said provision and thereby, enabling the court to pronounce a
final judgment in the same suit, both on the original claim and on the
counter- claim, was filed by the second defendant. That apart, indisputably,
the second defendant did not dispute the execution of the registered sale
deed dated 04.07.1978 by him in favour of the first defendant and in his
written statement the second defendant had only stated that according to the
provisions of the Fragmentation Act the plaintiff was not entitled to any
relief. When that be so, legally how can the High Court hold the sale deed
dated 04.07.1978 executed by the second defendant in favour of the first
defendant, void under the provisions of the Civil Appeal No.930 of 2023
Fragmentation Act without precisely framing an issue and then, based on it,
going on to consider the validity of Ext. 128 sale deed dated 21.04.1979
executed by the second defendant in favour of the plaintiff, even-after
noting the finding of the First Appellate Court that as relates the sale of one
acre of land under Ext.128 sale deed the second defendant did not have any
grievance and then, observing, in tune with the same, that the second
defendant did not dispute that he sold one acre of land to the plaintiff as per
Ext.128 sale deed for the consideration of Rs. 3000/- and had shown
readiness and willingness to deliver the possession of it to the plaintiff. To
make matters worse, the High Court has failed to consider the crucial issue
whether the plaintiff is entitled to possession of the suit land on the
strength of the registered Ext.128 sale deed executed by the defendants.
32. The long and short of this long discussion is that for all the
reasons mentioned above, the decision of the High Court on the validity of
the sale transaction covered under the sale deed dated 04.07.1978 executed
by the second defendant in favour of the first defendant, in terms of the
provisions under the Fragmentation Act (when that question was not legally
available to be Civil Appeal No.930 of 2023 considered in the subject suit)
and the virtual declaration of the said sale as void, are absolutely
unsustainable. It is the product of erroneous assumption of jurisdiction and
also erroneous and perverse appreciation of evidence. It being the
foundation for holding the registered sale deed dated 21.04.1979 (Ext.128)
as void under Sub-section (1) of Section 9 of the Fragmentation Act, it is
unsustainable. The various reasons mentioned above would support our
conclusion as above.
36.Now, what remains to be looked into is the grievance of the
second respondent with respect to the balance extent of 2 acres and 20
guntas involved in the transaction. In the context of the contentions raised
by the second defendant viz., the first respondent in this appeal, what is
relevant and crucial is not only the factum of registration of Ext.128 and its
execution by the second defendant but also the admission of execution of
sale deed dated 04.07.1978 by him in favour of the first defendant. True
that the second defendant contended that it was executed as a collateral
security for a money lending transaction. We have noted earlier, by
referring to the decision in Rohit Singh’s Case (supra) that a
defendant could not be permitted to raise counter-claim against a co-
defendant as by virtue of Order VIII Rule 6A, CPC, it could be raised by a
defendant only against the claim of the plaintiff. Evidently, the High Court
did not frame the validity of the sale deed dated 04.07.1978 executed by the
second defendant in favour of the first defendant as a question of law
though the trial Court also arrived at a finding on this issue without framing
it as a Civil Appeal No.930 of 2023 specific issue. The indisputable fact is
that the said sale deed dated 04.07.1978 was admittedly, executed and
registered about nine (9) months prior to the execution and registration of
Ext. 128 sale deed. Ext. 128 would reveal that it involves the entire extent
of 3 acres 20 guntas in Survey No. 20/2 of Gangalgaon village and the first
defendant is also an executant of the same. The observation and finding of
the High Court in the first limb of paragraph 24 of the impugned judgment
that the second defendant did not dispute the sale of one acre of land to the
plaintiff as per Ext. 128 for the consideration of Rs. 3000/- would indicate
that the balance amount of Rs. 7000/- was the consideration for the balance
extent of land covered under Ext. 128. Since the validity of the sale deed
dated 04.07.1978 was not an issue/question that could be raised by the
second defendant against the first defendant in the subject suit and was
rightly, not raised as an issue, the first defendant not only did not dispute
the sale of such extent to the plaintiff but admitted the joint execution of
Ext. 128 and receipt of sale consideration, as incorporated in Ext. 128 and
since the second defendant got no case that he had assailed the validity of
the sale deed dated 04.07.1978 either before any competent authority or
competent Civil Court Civil Appeal No.930 of 2023 this question needs no
further elaboration. An inter-se dispute on the validity of the sale deed
dated 04.07.1978, if at all between the second and first defendants, could
not have been considered in the subject-suit, for the reasons already
mentioned as it would amount to adjudication of right or a claim, by way of
counter-claim by one defendant against his co-defendant. Finding on its
voidness under the Fragmentation Act was already held as unsustainable by
us.''
(9) Thus, Shri Jain, learned Senior counsel has rightly submitted that by
way of amendment now the defendant No.1 to 3 have submitted a counter claim
against the defendant No.4 by disputing the execution of sale deed and receipt
of sale consideration. Such amendment cannot be permitted to be brought on
record. The document filed alongwith an application under Order 8 Rule 1 of
CPC to support the propose amendment. Since the proposed amendment have
been declined, therefore, said documents are also not liable to be taken on
record.
In view of above, Misc. Petition is dismissed with cost of Rs. 5000/- to
be deposited Legal Service Authority, Ujjain.
(VIVEK RUSIA)
JUDGE
Praveen
Digitally signed by PRAVEEN
Date: 2023.05.12 17:41:51
+05'30'
