Udai Singh vs Smt. Maduraja Pandit
2023 Latest Caselaw 7537 MP

1                                                                 S.A. No.825 of 2020

      IN THE HIGH COURT OF MADHYA PRADESH
                   AT JABALPUR
                               BEFORE
      HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                      ON THE 9th OF MAY, 2023

                  SECOND APPEAL No.825 of 2020

      BETWEEN:-
1.    UDAI SINGH, SON OF LATE DASHRATH SINGH,
      AGED ABOUT 65 YEARS, OCCUPATION
      FARMER, RESIDENT OF VILLAGE KHAPARIA,
      TAHSIL    SEONI      MALVA,    DISTRICT
      HOSHANGABAD (M.P.)

                                                       .....APPELLANT
      (BY ABHIJEET AWASTHI, ADVOCATE)


      AND

1.    SMT. MADHURAJA PANDIT, D/O LATE MUNSHI
      LAL PANDIT, AGED ABOUT 52, RESIDENT OF
      SUDAMA NAGAR, VYABARA, DISTRICT
      RAJGARH (MADHYA PRADESH)

                                                    .....RESPONDENT


...................................................................................................................................................................

      This appeal coming on for admission this day, Court passed the
following:
                                ORDER

This second appeal has been preferred by the appellant/defendant challenging the judgment & decree dtd. 28.01.2020 passed by 2 nd Addl. Judge to the Court of 1st Additional District Judge, Hoshangabad in Civil

Appeal No.89/2017 reversing the judgment & decree dtd. 04.10.2017 passed by Civil Judge Class-II, Seoni Malwa, Distt. Hoshangabad in RCS-A/100091/2014 whereby learned trial Court dismissed the suit of the respondent/plaintiff filed for declaration of title and restoration of possession in respect of land khasra No.132/3 area 0.810 hectare (2.00 acre) situated in Village Khapariya, Tahsil Seoni Malwa which upon filing appeal by the plaintiff, has been decreed by first appellate Court vide impugned judgment & decree dtd. 28.01.2020.

2. Learned counsel for the appellant/defendant submits that the defendant is in possession of the land in question on the basis of agreement of sale executed by Yogendra Kumar and is entitled to protect his possession against the plaintiff, whose suit was rightly dismissed by learned trial Court. He further submits that on the basis of said agreement of sale, the name of defendant was mutated in the revenue record on 09.05.2007 regarding which the plaintiff acquired knowledge timely but she instituted the suit on 17.12.2014, after more than seven years. With the aforesaid submissions, he prays for admission of the second appeal.

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

4. Apparently, no agreement of sale allegedly executed by Yogendra Kumar in favour of the appellant/defendant has been placed on record. It has come on record that one Munshilal was owner/bhoomiswami of the land in question, who died leaving behind him three legal heirs namely Smt. Sarladevi (wife), Smt. Madhuraja (daughter) and Yogendra Kumar (son).

5. It is a fact on record that Yogendra Kumar has died. As such, after his death, the only successor is his sister i.e. the plaintiff Smt. Madhuraja Pandit and is entitled to succeed his property. Learned counsel for the

appellant has failed to point out any material from the record to show that there is no relationship of brother and sister in between Yogendra Kumar and the plaintiff.

6. It is well settled that mere mutation without any legal right, neither confers title nor extinguishes title of the real owner. It is also well settled that agreement of sale in itself does not confer any title in favour of the person having such agreement. Further, Article 65 of the Limitation Act provides that the suit for possession based on title can be filed within 12 years. As such, the suit filed by the plaintiff is also within limitation.

7. In view of the aforesaid discussion, in my considered opinion, the learned first appellate Court does not appear to have committed any illegality in decreeing the suit.

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

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

(DWARKA DHISH BANSAL) JUDGE

Pallavi Digitally signed by KUMARI PALLAVI SINHA Date: 2023.05.12 16:22:16 +05'30'