Madhya Pradesh High Court
Harpal Singh Chandoria vs Dharmendra Kumar Jain on 20 November, 2023
Author: Sunita Yadav
1 SECOND APPEAL 2255 OF 2022
IN THE HIGH COURTOF MADHYA PRADESH
A T G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 20th OF NOVEMBER, 2023
SECOND APPEAL No. 2255 of 2022
BETWEEN:-
HARPAL SINGH CHANDORIA S/O LATE SHRI
GHASIRAM, AGED ABOUT 75 YEARS,
OCCUPATION: CARPENTER, R/O INFRONT OF
GANESH BHOJNALAYA SHIVPURI (MADHYA
PRADESH)
.....APPELLANT
(BY MR. SOORAJ BHAN LODHI - ADVOCATE)
AND
DHARMENDRA KUMAR JAIN, AGED ABOUT 45
YEARS, OCCUPATION: BUSINESS, R/O NEAR
1.
OLD BUS STAND SHIVPURI (MADHYA
PRADESH)
RAJ KUMAR JAIN, AGED ABOUT 56 YEARS, R/O
2. NEAR GANESH BHOJNALAYA SHIVPURI
(MADHYA PRADESH)
SMT SAROJ AGRAWAL W/O SHRI VISHNU
3. PRASAD AGRAWAL BIAORA, DISTRICT
RAJGARH (MADHYA PRADESH)
SMT MANOJ KUMARI W/O SHRI LAXMI
NARAYAN AGRAWAL, AGED ABOUT 51 YEARS,
4.
NEAR GANDHI PARK SHEOPUR KALA
(MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 11/22/2023
4:36:29 PM
2 SECOND APPEAL 2255 OF 2022
(BY MR. AKSHAT KUMAR JAIN - ADVOCATE FOR CAVEATOR)
This appeal coming on for Admission this day, the court
passed the following:
JUDGMENT
The present appeal has been preferred by the
appellant/defendant No.1 under Section 100 of the Code of Civil
Procedure, 1908 against the judgment and decree dated 14/07/2022
passed by the Ist District Judge, Shivpuri in Civil Appeal
No.74/2018 whereby the judgment and decree dated 14/08/2018
passed by the Additional Judge to the Court of Ist Civil Judge
Class-I, Shivpuri in Civil Suit RCSA No.19/2017 has been reversed.
2. Factual matrix of the case are in brief are that
plaintiffs/respondent No. 1,3 and 4 have filed a civil suit No. 19-
A/2017 for declaration of title, recovery of possession and also
declaring the sale-deed dated 10.02.1986 in favour of present
appellant as null and void. The said civil suit was mainly brought
against the present appellant/defendant No. 1 with respect to the
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Signed by: LOKENDRA JAIN
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3 SECOND APPEAL 2255 OF 2022
shop whose description has been given in para No. 1 of the
judgment of the trial Court. It is further pleaded that the disputed
property initially owned by late Shri Keshri Chand jain who was
father of respondents No. 1 to 4 and his name was recorded in the
property tax register bearing House No. 43/4 of Ward No. 6 in the
year 1996. Keshri Chand has sold the disputed house to one Smt.
Urmila Devi vide registered sale-deed dated 25.03.1981. The
Respondents/plaintiffs further averred that they had filed a Civil-
Suit (No. 6A/96) Ex.D-1 for cancellation of sale-deed 25.03.1981
which was decreed on 14.05.1999 (ExP-5) in favour of present
respondents and against Smt. Urmial Devi. The said decree dated
14.05.1999 was challenged by Smt. Urmial Devi by filing first
appeal which was registered as F.A. No. 94/99 before this court
which was dismissed in "non- prosecution vide order dated
02.11.2015.
3. The present plaintiffs/respondents have also pleaded that on
the basis of judgment decree dated 14.05.1999 and the sale-deed
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4 SECOND APPEAL 2255 OF 2022
dated 25.03.1981, the right and title of Smt. Urmila Devi which
acquired on the basis of sale-deed dated 25.03.1981 with regard to
disputed property have already been come to an end as well as the
present appellant/defendant No.1 who is the subsequent purchaser
of the disputed property through sale-deed dated 10.12.1986 (ExP-
3) has also no longer valid.
4. The present appellant/defendant No. 1 in his written-
statement has denied the plaint averments stating that the
respondents are not the owner and title-holder of the property in
dispute because appellant-Harpal has purchased the same from
Urmila Devi vide registered sale-deed dated 10.12.1986. The
present appellant has further pleaded that initially the property in
dispute was owned by one alam Chand Jain and after his death, the
same has been devolved to the sons of Alam Chand i.e. Keshri
Chand and Mahavir Prasad which subsequently partitioned between
them equally. After partitioned, Mahavir has sold his half share of
the property completely in the year 1976 and rest half share was
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5 SECOND APPEAL 2255 OF 2022
sold by Keshri Chand (Father of the plaintiffs) to Smt. Urmila Devi
vide registered sale-deed dated 25.03.1981 which subsequently sold
by Urmila Devi to present appellant on 10.12.1986. Hence both the
deeds of sale are valid and bonafide. The present
appellant/defendant No. 1 further pleaded in his written-statement
that he was not impleaded/joined in Civil Suit No.6/96 as necessary
party by the respondents/plaintiffs, Hence, the respondents having
no "right to sue" against the present appellant/defendant No.1. The
present appellant/defendant No.1 further took the defense through
the pleading that appellant was not a party in Civil-Suit No. 6/96
neither before this Court in F.A. No.94/99. Even he had no
knowledge about the dismissal of First Appeal in non-pursuing by
appellant Urmila Devi. Hence the order of learned trial Court
passed in Civil-Suit No. 6/96 as well as order of this court in First
Appeal dated 02.11.2015 are not binding upon present
appellant/defendant No. 1 and the suit as filed by the present
respondents/plaintiffs is barred by limitation, hence liable to be
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6 SECOND APPEAL 2255 OF 2022
dismissed.
5. On the basis of the aforesaid pleadings, the learned Trial
Court framed as many as seven issues in the case and directed the
parties to lead evidence to prove the said issues in their favour. The
learned Trial Court after recording of the evidence and hearing the
parties on merits, dismissed the suit filed by the plaintiffs vide its
judgment and decree dated 14.08.2018 as barred by limitation.
6. Being aggrieved against the judgment and decree passed by
the Trial Court, plaintiffs preferred first appeal before first Appellate
Court. The first appellate Court after considering the submissions of
the parties has allowed the appeal preferred by the plaintiffs and set
aside the judgment and decree passed by learned trial Court,
therefore, defendant No. 1 has occasion to file this second appeal
under Section 100 of C.P.C.
7. Learned counsel for the appellant/defendant No.1 argued that
learned first appellate court has failed to discharge its duty properly
as the impugned judgment lacks to reflect conscious application of
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7 SECOND APPEAL 2255 OF 2022
mind on the findings recorded by the learned trial court which are
supported by reasons, while reversing the judgment of trial court.
8. The learned 1st Appellate Court has ignored the fact that the
suit house was purchased by present appellant from Smt. Urmila
Devi vide registered sale-deed dated 10.12.1986 and the earlier civil
suit (C.S. No. 06/1996) was filed by present respondents/plaintiffs
only against Urmila Devi with regard to setting aside of sale deed
dated 25.03.1981 in favour of Urmila Devi executed by Keshri
Chand Jain and in such a previous suit neither the present appellant
was impleaded as party nor any relief for cancellation of sale deed
dated 10.12.1986 was sought. The learned trial Court rightly held
the suit as time barred. In such circumstance, order passed by first
Appellate Court deserves to be dismissed.
9. On the other hand, learned counsel for the
respondent/plaintiffs supported the impugned judgment and decree
passed by First Appellate Court and prayed for dismissal of the
instant appeal being bereft of merit and substance.
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Signed by: LOKENDRA JAIN
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8 SECOND APPEAL 2255 OF 2022
10. Heard learned counsel for the parties and perused the record.
11. Learned first appellate Court after appreciating the evidence
on record rightly held that since the sale deed executed by Keshri
Chand Jain in favour of Smt. Urmila Devi was declared as null and
void vide judgment and decree dated 14.05.1999 in Civil Suit No.
6-A/1996 and thereafter, the appeal preferred by Urmila Devi (since
dead) which was dismissed on 02.11.2015. Therefore, the sale deed
executed on 25.03.1981 by Smt. Urmila Devi does not give any
right to the appellant/defendant No. 1 in the light of case of
Rajaram Vs. Mahila Batto Devi and others reported in 1999 RN
12. It is a tried law that limitation is a mixed question of fact and
law. In this case learned first appellate Court has discussed the
evidence of appellant/defendant No. 1 in respect to the question of
limitation and his alleged adverse possession in detail and rightly
concluded that cause of action arose on 02.11.2015 for filing the
civil suit when the defendant No. 1 refused to give the possession of
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9 SECOND APPEAL 2255 OF 2022
the disputed property and claimed the title over it because
appellant/defendant No.1 has failed to prove when his permissive
possession became adverse. Since the civil suit has been filed on
17.02.2017, therefore, in light of Article 65 of Limitation Act the
suit is filed within limitation. Learned first appellate Court has also
discussed the case of Rama Pujari and Ors. Vs. Gori Devi and
Ors. reported in AIR 2006 Udisa 129 in which it is held that "Even
if a document is sought to be declared as void and that is barred by
Law of Limitation, then also the pre-dominant plea being for
recovery of possession, the suit was held maintainable under
Article 65 of Limitation Act and Article 58 does not put a bar of
granting just relief."
13. In this case as discussed above sale deed executed by the
appellant had already been declared as null and void by the
competent court, therefore, learned first appellate Court has not
erred in reversing the finding of learned trial Court on the issue of
limitation.
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 11/22/2023
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10 SECOND APPEAL 2255 OF 2022
14. In view of the above discussion, no question of law much less
substantial question of law arises warranting interference under
Section 100 of CPC. Consequently, this second appeal sans merit.
15. Resultantly, the judgment and decree dated 14.07.2022
passed by 17th Additional District Judge, District Gwalior in Civil
Appeal No.15/2018 is hereby affirmed and this second appeal is
hereby dismissed in limine.
(Sunita Yadav)
Judge
LJ*
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 11/22/2023
4:36:29 PM
