Dr. Ram Gopal Singh vs Prabhakar Singh & Anr.
2023 Latest Caselaw 15314 MP

          IN THE HIGH COURT OF MADHYA PRADESH
                          AT JABALPUR

                           BEFORE
            HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                      FIRST APPEAL No. 209 of 1998

BETWEEN:-

          DR. RAM GOPAL SINGH (DEAD) THR. LRS:

1(A)      SMT. SHAIL SINGH W/O LATE (DR.)
          RAMGOPAL SINGH, AGED ABOUT 65
          YEARS, R/O HOUSE NO.18/441, TATA HOUSE
          COMPOUND,    REWA,   DISTRICT     REWA
          (MADHYA PRADESH)

1(B)      DR. ATUL KUMAR SINGH S/O LATE (DR.)
          RAMGOPAL SINGH, AGED ABOUT 42
          YEARS, R/O HOUSE NO.18/441, TATA HOUSE
          COMPOUND,    REWA,   DISTRICT     REWA
          (MADHYA PRADESH)

1(C)      AADARSH SINGH (DEAD) THR LRS:

1(C-i)    SMT. MAMTA SINGH, AGED ABOUT 48
          YEARS, W/O LATE SHRI ADARSH SINGH,
          R/O HOUSE NO.18/144, TALA HOUSE
          CAMPUS, REWA (MADHYA PRADESH)


1(C-ii)   AVITA SINGH, AGED ABOUT 21 YEARS, D/O
          LATE SHRI ADARSH SINGH, R/O HOUSE
          NO.18/144, TALA HOUSE CAMPUS, REWA
          (MADHYA PRADESH)



1
 1(C-iii)   AYUSHI SINGH, AGED ABOUT 15 YEARS,
           D/O LATE SHRI ADARSH SINGH, R/O
           HOUSE NO.18/144, TALA HOUSE CAMPUS,
           REWA (MADHYA PRADESH)

1(D)       MRS. ALPANA SINGH D/O LATE (DR.)
           RAMGOPAL SINGH, W/O DR. A.P. SINGH
           GOHARWAR, AGED ABOUT 41 YEARS, R/O
           HOUSE     NO.18/441,  TATA    HOUSE
           COMPOUND,    REWA,   DISTRICT  REWA
           (MADHYA PRADESH)

                                                                        .....APPELLANTS

(BY SHRI R.K. VERMA-SENIOR ADVOCATE WITH SHRI
RAMMURTI TIWARI-ADVOCATE)

AND

1.         PRABHAKAR SINGH S/O SHRI RAM PRATAP
           SINGH, AGED ABOUT 45 YEARS, R/O GRAM
           ITMA, TAHSIL NAGOD DISTT. SATNA
           (MADHYA PRADESH)

2.         STATE OF MADHYA PRADESH THROUGH
           COLLECTOR, SATNA (MADHYA PRADESH)

                                                                      .....RESPONDENTS

(SHRI D.N. SHUKLA-ADVOCATE FOR RESPODENT 1)
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        Reserved on           :       14.09.2023
       Pronounced on          :       19.09.2023
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2
      This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the Court passed the following:

                            JUDGMENT

This first appeal has been preferred by the plaintiff/appellant challenging the judgment and decree dtd. 19.03.1998 passed by 3 rd Additional District Judge, Satna in civil suit No.57-A/1993 whereby dismissing plaintiff's suit filed for declaring the sale seed dtd. 04.06.1993 (Ex.P/3) executed by defendant 1-Smt. Jairaj Kumari in favour of defendant 2- Prabhakar Singh as well as consequent mutation to be illegal and ineffective so also for permanent injunction.

2. In short the facts are that the plaintiff claiming himself to be owner of the suit property bearing in survey no. 39/4 area 9 biswa, filed a suit with the allegations that the suit property was purchased by him (vide registered sale deed dtd. 22.01.1962- Ex.P/1) in the name of his uncle-Sant Pratap Singh and remained in possession but after his death, the defendant 2- Prabhakar Singh fraudulently got executed sale deed of the land from defendant 1-Jairaj Kumari even without making payment of consideration, which is null and void and ineffective. With the aforesaid allegations, the suit was filed on 05.07.1993 and

after death of defendant 1-Smt. Jairaj Kumari, the defendant 2- Prabhakar Singh was renumbered as defendant 1.

3. Upon service of summons the defendant 1-Smt. Jairaj Kumari appeared and filed written statement admitting the plaint allegations and prayed for passing decree in favour of the plaintiff, however because of her death on 19.02.1994, she could not appear in the witness box.

4. Defendant 2-Prabhakar Singh also appeared and filed written statement denying the plaint allegations and claimed himself to be exclusive owner/bhoomiswami and in possession of the land on the basis of regd. sale deed dtd. 04.06.1993 (Ex. D/3) and prayed for dismissal of the suit. However, after filing written statement and at the stage of evidence he did not appear and was proceeded exparte.

5. On the basis of pleadings of the parties, learned trial court framed as many as five issues and recorded exparte evidence of the plaintiff, who examined Gyan Prasad Jaiswal (PW-1), Ram Gopal Singh (PW-2), Shambhu Singh (PW-3), Rajbahadur Singh (PW-4) and Indra Pal Singh (PW-5) and produced documentary evidence (Ex. P/1 to P/25). Thereafter, learned trial court heard arguments and upon due consideration of the material available on record dismissed the suit in its entirety holding the claim of

the plaintiff to be not proved and barred by provision contained in section 4 of the Benami Transactions (Prohibition) Act, 1988 vide impugned judgment and decree dtd. 19.03.1998, against which the instant first appeal is filed.

6. Learned counsel for the appellants/plaintiff submits that the plaintiff himself purchased the suit land in the name of Sant Pratap Singh from his self earnings and the plaintiff himself executed power of attorney (Ex.P/2) in favour of his uncle Sant Pratap Singh for taking care of the land in question along with other property. Placing reliance on the documentary evidence, learned counsel submits that in fact no sale deed was executed by Jairaj Kumari in favour of defendant 2 and no payment of consideration was made to her. He submits that because the plaintiff himself was owner of the property, therefore, Jairaj Kumari was not having any right to execute sale deed. Alternatively he submits that even if the case of purchase of the property by the plaintiff in the name of Sant Pratap Singh is not found proved then the plaintiff being nephew of Sant Pratap Singh and Jairaj Kumari, is owner, as the sale deed dtd. 04.06.1993 is void. Learned counsel further submits that the sale deed dtd. 04.06.1993 was challenged on the ground of fraud and the case of fraud is specifically pleaded and proved by adducing evidence, but learned court below has neither framed

any/requisite issue nor recorded any finding in that regard. He further submits that in absence of any cross-examination of the plaintiff's witnesses and there being no rebuttal evidence, the case pleaded and proved by the plaintiff should be accepted to be true. He also submits that Sant Pratap Singh had already given sufficient property to the defendant-Prabhakar Singh vide regd. Gift deed (Ex.P/22). With the aforesaid submissions he prays for allowing the first appeal.

7. In support of his submissions, learned senior counsel placed reliance on the decisions in the case of Ram Sarup Gupta (Dead) by LRs vs. Bishun Narain Inter College and Ors. (1987) 2 SCC 555; Krishna Mohan Kul @ Nani Charan Kul and Anr. vs. Pratima Maity and Ors. (2004) 9 SCC 468; Chacko and Another vs. Mahadevan (2007) 7 SCC 363; and Vipin Kumar and Ors. vs. Sarojani 2013 (1) MPLJ 480.

8. Learned counsel appearing for the respondent 1/defendant submits that the plaintiff has come with the case that he is owner of the suit land due to purchase of land by him in the name of Sant Pratap Singh vide registered sale deed dtd. 22.01.1962 (Ex.P/1) but in absence of proof of the aforesaid fact the plaintiff has no right to file the suit in the life time of defendant 1- Smt. Jairaj Kumari, who executed registered sale

deed on 04.06.1993 in favour of respondent/defendant 2- Prabhakar Singh. He further submits that the plaintiff neither sought any declaration of his rights nor is entitled to seek any relief in respect of sale deed dtd. 04.06.1993 being stranger to the sale deed. With the aforesaid submissions he submits that learned trial court has not committed any illegality in dismissing the suit.

9. Heard learned counsel for the parties and perused the record.

10. In the first appeal following points for determination are arising for consideration of this Court :

i. Whether the suit filed by the plaintiff is barred by provision contained in section 4 of the Benami Transactions (Prohibition) Act, 1988 ?

ii. Whether without seeking any declaration of his rights, the plaintiff could maintain the suit for cancellation of sale deed dtd. 04.06.1993 executed by defendant 1-Jairaj Kumari in favour of defendant 2-Prabhakar Singh ?

11. From perusal of sale deed dtd. 22.01.1962 (Ex.P/1) it is clear that it was executed by Gyan Prasad in favour of Sant Pratap Singh, husband of defendant 1-Smt. Jairaj Kumari, however there is no documentary evidence available on record

to the effect that before filing of instant suit on 05.07.1993 the plaintiff ever claimed himself to be owner of the land in question.

12. Perusal of power of attorney (Ex.P/2) executed by plaintiff in favour of Sant Pratap Singh shows that it was not executed in respect of the land in question. Consent deed dtd. 25.09.1986 (Ex.P/4) shows that as per sale deed dtd. 22.01.1962 the name of Sant Pratap Singh was mutated and in absence of any challenge to the sale deed dtd. 22.01.1962, the property covered by it was rightly devolved upon his wife Smt. Jairaj Kumari- defendant 1 and her name was also mutated being the sole surviving successor of Sant Pratap Singh.

13. In view of the aforesaid background, the defendant 1-Smt. Jairaj Kumari was competent to execute sale deed dtd. 04.06.1993 in favour of defendant 2. It is well settled that third party who has no vested right in the property cannot challenge the regd. sale deed on the ground of non-payment of consideration or otherwise that too in the life time of vendor.

14. It is very much surprising that if fraud was committed by defendant 2 on defendant 1-Jairaj Kumari and she remained alive for sufficient time then why the sale deed dtd. 04.06.1993 (Ex.P/3) was not challenged by her. Merely because the

defendant 1-Smt. Jairaj Kumari was an old lady of 90 years age, cannot be a ground to file the suit by the plaintiff, who had no right in the suit property in the life time of defendant 1-Smt. Jairaj Kumari.

15. It is well settled that after parting with interest in the suit property, admissions made by vendor are of no value, as such the plaintiff does not get any benefit on the basis of alleged admissions made by defendant 1-Smt. Jairaj Kumari in her written statement.

16. Admittedly no cross-examination has been done on the plaintiff's witnesses and no evidence in rebuttal has been adduced by defendant 2-Prabhakar Singh, but that itself makes no difference because firstly the claim of purchase of land by the plaintiff in the name of his uncle-Sant Pratap Singh has not been found proved by learned court below, moreover upon perusal of entire record, it is also not established. Further such claim was clearly barred by provision of Section 4 of the Benami Transactions (Prohibition) Act, 1988 which has rightly been held by learned trial court.

17. The plaintiff himself has relied upon the document of unregd. consent deed dtd. 25.09.1986 (Ex.P/4) which mentions that the property was purchased by Sant Pratap Singh for benefit

of plaintiff, therefore, case of plaintiff regarding purchase of the property in the name of Sant Pratap Singh becomes false.

18. In my considered opinion, when the plaintiff was claiming himself to be owner/bhoomiswami of the land in question, therefore, in presence of two registered sale deeds dtd. 22.01.1962 (Ex.P/1) and 04.06.1993 (Ex.D/3) coupled with the mutation entries creating clouds over his rights, he was required to seek declaration of his rights, which he has not claimed in the suit, which is sufficient to hold that the suit as filed is not maintainable.

19. As the plaintiff has not claimed any right in the suit property and in the suit property he has no vested right through succession or otherwise, therefore, he cannot pray for declaration of sale deed to be null and void executed by defendant 1-Jairaj Kumari in favour of defendant 2-Prabhakar Singh.

20. In view of aforesaid discussion, the decisions relied upon by learned senior counsel for the appellants do not give any help to the appellants and in my considered opinion, learned court below after due consideration of the material available on record, has rightly dismissed the suit and the findings recorded

in the impugned judgment do not appear to be perverse on facts or contrary to law.

21. Resultantly, the first appeal fails and is hereby dismissed, however, no order as to costs.

22. Interim pending application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE ss Digitally signed by SWETA SAHU Date: 2023.09.21 13:53:00 +05'30'