Madhya Pradesh High Court
Smt.S.N.Bakshi vs Majiduddin on 1 April, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 01 st OF APRIL 2024
FIRST APPEAL No. 172 of 2008
BETWEEN:-
SMT.S.N.BAKSHI W/O DR.A.N.BAKSHI, AGED ADULT,
R / O 32, ZONE-I, M.P. NAGAR, BHOPAL (MADHYA
PRADESH)
.....APPELLANT
DEFENDANT NO.8
(BY SHRI V.S.MISHRA - ADVOCATE)
AND
1. MAJIDUDDIN S/O LATE AMINUDDIN, AGED
ABOUT 60 YEARS, R/O AMIN MARKET, 301, BIDI
KARKHANA, JINSI CHOURAHA, JAHANGIRABAD,
BHOPAL (MADHYA PRADESH)
2. JAMIRUDDIN, S/O MAJIDUDDIN, AGED ABOUT 26
YEARS, R/O AMIN MARKET 301, BIDI KARKHANA,
JINSI CHOURAHA, JAHANGIRABAD, BHOPAL
( M A D H YA P R A D E S H )
[RESPONDENTS/PLAINTIFFS]
3. ALIMUDDIN S/O LATE JAHIRUDDIN, AGED
ADULT, R/O A TO Z STEEL & HARDWARE STORE
STATION ROAD, KARELI, DISTRICT
NARSINGHPUR (MADHYA PRADESH)
4. SMT.HAMIDA BEGUM, LATE SHRI JAHIRUDDIN,
AGED ADULT, R/O A TO Z STEEL & HARDWARE
STORE, STATION ROAD, KARELI, DISTRICT
NARSINGHPUR (MADHYA PRADESH)
5. RUBINA SULTANA, D/O LATE SHRI JAHIRUDDIN,
AGED ADULT, R/O A TO Z STEEL & HARDWARE
STORE, STATION ROAD, KARELI, DISTRICT
NARSINGHPUR (MADHYA PRADESH)
6. NAJAHAT SULTANA, D/O LATE SHRI
JAHIRUDDIN, AGED ADULT, R/O A TO Z STEEL &
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 01-04-2024
20:11:07
2
HARDWARE STORE STATION ROAD, KARELI,
DISTRICT NARSINGHPUR (MADHYA PRADESH)
7. JAKIUDDIN, S/O LATE SHRI JAHIRUDDIN AGED
ADULT, R/O A TO Z STEEL & HARDWARE STORE,
STATION ROAD, KARELI DISTRICT
NARSINGHPUR (MADHYA PRADESH)
8. EJAJUDDIN, S/O LATE SHRI JAHIRUDDIN AGED
ADULT, R/O A TO Z STEEL & HARDWARE STORE
STATION ROAD, KARELI, DISTRICT
NARSINGHPUR (MADHYA PRADESH)
9. JABIN SULTANA, LATE SHRI JAHIRUDDIN, AGED
ADULT, R/O A TO Z STEEL & HARDWARE STORE
STATION ROAD, KARELI, DISTRICT
NARSINGHPUR (MADHYA PRADESH)
10. THE STATE OF M.P. THROUGH COLLECTOR,
BHOPAL (MADHYA PRADESH)
11. MUNICIPAL CORPORATION, SADAR MANZIL
B H O PA L (MADHYA PRADESH) THROUGH
COMMISSIONER
.....RESPONDENTS
DEFENDANTS NO.1 TO 7, 9 & 10
(RESPONDENTS NO.1 & 2 BY SHRI DINESH KAUSHAL - ADVOCATE)
(RESPONDENTS NO.4, 5, 6 & 9 BY SHRI K.S.RAJPOOT - ADVOCATE)
Reserved on : 29.1.2024
Pronounced on: 01.4.2024
--------------------------------------------------------------------------------
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, JUSTICE AVANINDRA KUMAR SINGH
passed the following:-
JUDGMENT
This appeal under section 96 of the Code of Civil Procedure has been
filed by the appellant/Defendant No.8 against impugned judgment and decree
dated 12.11.2007 passed by Vth Additional District Judge, Bhopal in Civil Suit
No.24-A/2004 [Majid Uddin and another Vs. Aleem Uddin and others] whereby
the suit of the respondents/plaintiffs for declaration and injunction has been
allowed.
2. The respondents no.1 & 2/plaintiffs filed a civil suit seeking relief
to declare that the registered sale deed dated 11.10.2000 (Exhibit-P-
12C/Exhibit-D-9C) executed by Defendants No.1 to 5 in favour of Defendant
No.8 in respect of land area 32 decimal which is a part of suit property
admeasuring 8.32 acres situate over Khasra No.8, Patwari Halka No.20,
Bagsewania, Tahsil Huzur, District Bhopal, as null and void on the basis that
predecessor of Defendants No.1 to 7, namely, Late Jahiruddin did not have
right and title to sale the same and the appellant/Defendant No.8 be restrained
from further transferring the suit property and permanent injunction be granted
to the effect that respondents/Defendants No.9 & 10 (Government Bodies) be
restrained from granting building permission.
3. Admitted facts in the suit are that originally the suit land alongwith
other lands totalling 8.32 acres situated in Bagsewania, Tahsil Huzur, District
Bhopal belong to one Aminuddin (father of plaintiffs no.1 & 2) and he was
owner and in possession of the suit property. Aminuddin expired on 06.2.1998
but during his life-time he had 8.32 acres of land, of which 32 decimal suit land
is a part of land that was diverted through order dated 29.4.1974 passed by Sub
Divisional Officer, Tahsil Huzur, District Bhopal in Case No.14/A/21/64-65 &
Case No.14/A/21/67-68. He further obtained permission from Town & Country
Planning, Bhopal by order dated 17.1.1973. As per permission 8.32 acres of
law was divided into 07 portions and out of which 65 plots were carved out. It
is also an admitted position that Defendants No.1 to 7 are the legal heirs of
deceased-Jahiruddin. It is also not in dispute that Defendants No.1 to 5
executed sale-deed for 32 Decimal = 13,939 sq.ft. to Defendant No.8. Prior to
that the Defendants No.1 to 5 got their names mutated in the revenue record but
respondents/plaintiffs filed an appeal and mutation in their favour was cancelled.
4. It is the case of the respondents/plaintiffs that 32 Decimal of suit
land was reserved for road, park and green area. Out of 8.32 acres of land, Late
Aminuddin sold some property and made 'Hiba' regarding other properties. But
a forged 'Hibanama' was prepared and on that basis the Defendants No.1 to 5
got the land 0.32 decimal mutated in their names. The suit property was never in
possession of the Defendants No.1 to 7, therefore, the sale deed is void. Hence,
prayer was made for declaration and injunction, as referred to above in
paragraph 2 of this judgment.
5 . The Defendants No.1 to 7 before the trial Court filed written
statement stating that suit property of 32 decimal was not marked for road etc.
and they have sold the suit property to Defendant No.8. In fact, permission
was obtained by Aminuddin for 8 acres of land. The suit is time barred. No
proper court fee has been paid. Therefore, prayed that suit of the
respondents/plaintiffs be dismissed.
6 . The appellant/Defendant No.8 filed written statement and
submitted that she has purchase the suit property from land owners i.e.
Defendants No.1 to 7 and the Defendants No.1 to 5 have properly sold the suit
property to her. In respect of cancellation of mutation by the order of Sub
Divisional Officer it is stated that an appeal is pending before the Additional
Commissioner, Bhopal and, therefore, sought dismissal of the suit.
7. The respondents/Defendants No.8 & 9 remained ex parte before
the trial Court.
8 . The respondents/plaintiffs examined Majinuddin as PW.1,
Sahabuddin as PW.2 & PW.3- N.Uddin, and exhibited documents (Exhibits-
P/1 to P/24). The defendants examined Alim Uddin (DW.1), Sirazuddin
(DW.2), Yunus Khan (DW.3), appellant (Smt.S.N.Bakshi) as DW.4 and Sugna
Bose as DW.5 and filed documents Exhibit-D/1 to D/15
9. The trial Court framed following issues and after appreciation of
evidence recorded findings as mentioned in the coloumn against the issues,
which are reproduced below:-
okn iz'u
1- D;k oknxzLr Hkwfe ds laca/k esa Lo- vehum}hu Lo- tghjm}hu ds i{k esa
fnukad 1-12-74;k 4-12-74;k 24-12-74 dks dksbZ fgckukek cuk;k Fkk \
fu"d"kZ & ughaA fgck fd;k tkuk fl) ughaA
2- D;k izfroknh dz- 1 ls 5 }kjk izfroknh dz-8 ds i{k esa fd;k x;k fodz; i=
fn- 11-10-2000 'kwU; gS \
fu"d"kZ & gkWaA fl) A
3- D;k oknh us okn dk lgh ewY;kadu dj mfpr U;k;'kqYd vnk fd;k gS \
fu"d"kZ & gkWaA
4- D;k ;g okn vof/k esa gSa \
fu"d"kZ & ughaA
5- oknhx.k fdlh lgk;rk ds ik= gSa \
fu"d"kZ & ?kks"k.kk ,oa fu"ks/kkKkA
6- lgk;rk ,oa O;; \
fu"d"kZ & okn lO;; Lohd`rA
It appears that in respect of issue No.4 though finding is given by the trial
Court in "negative" due to typographical error, however, in paragraph 25 of the
judgment of the trial Court finding is given that suit is within time.
T hus , the trial Court allowed the suit of the respondents no.1 &
2/plaintiffs.
10. Being aggrieved by the impugned judgment and decree of the trial
Court the appellant/Defendant No.8 preferred this appeal by raising grounds
that pleadings and evidence have not been properly valued. No proper finding
has been recorded in respect of 'Hibanama' executed on 04.12.1974, The sale
deed dated 11.10.2000 is not void. The suit is time barred and proper court fee
has not been paid. Hence, appellant prayed for allowing the appeal and
dismissing the suit of the respondents/plaintiffs.
11 . Learned counsel for the respondents No.1 & 2/plaintiffs has
supported the judgment of the trial Court. Whereas the respondents No.3 to
9/Defendants have supported appeal preferred by appellant/Defendant No.8.
12. Heard learned counsel for the parties and perused the record and
impugned judgement and decree passed by the trial Court.
13. The question for consideration before this Court is whether the
judgment and decree of the trial Court is illegal, perverse or erroneous.
1 4 . The fore-most important question is whether the suit is time
barred. On perusal of the record and evidence on record it is seen that learned
trial Court in paragraph 25 of the judgment has correctly held that on the basis
of disputed 'Hibanama' dated 01.12.1974 mutation was obtained by Defendants
No.1 to 5 in their favour on 08.6.2000. From record it is seen that when the
plaintiffs came to know, they filed an appeal before the Sub Divisional Officer
and vide order dated 19.8.2002 in Appeal No.63/2001-02 the order of mutation
was cancelled. The civil suit has been filed on 28.1.2003, therefore, it has been
filed within 03 years from the date of when cause of action arose viz the
knowledge to the plaintiffs that alleged 'Hibanama' has been prepared and land
has been mutated and sold to appellant. Thus, it cannot be said that the suit is
time barred. There is nothing on record on examination of documents (Exhibits-
P/1 to P/24) filed by the respondents/plaintiffs and documents (Exhibits-D/1 to
D/15) filed by defendants on the basis of which some other finding can be
given. Further, on perusal of statements of statements of PW.1, PW.2 & PW.3
and on going through the statements of DW.1 to DW.4 no other finding can be
arrived. Accordingly, the finding of the trial Court on this issue is affirmed.
15. As far as Issue No.3 framed by trial Court regarding whether
p r o p e r court fee is paid or not is concerned, it is seen that
respondents/plaintiffs are not party to the sale deed dated 11.10.2000. In fact,
on the basis of forged 'Hibanama' if mutation proceedings have been carried out
and sale deed has been executed in respect of 32 decimal of land then by no
stretch of imagination the plaintiffs would be required to pay ad valorem court
fee under section 7(iv)(c) of the Suit Valuation Act. In fact they have paid
prescribed court fee as provided under Schedule-II of Article 17. Accordingly,
on this ground also the appeal fails and finding of the trial Court is affirmed.
1 6 . So far as Issues No.1 & 2 framed by the trial Court are
concerned, it is observed that finding of Issue No.2 would depend upon finding
recorded in respect to Issue No.1. The learned trial Court in paragraphs 10 to
23 of the impugned judgment has evaluated the pleadings of the parties,
evidence adduced and documents filed, very minutely. But this Court being the
first appellate Court has also to see whether the findings arrived by the trial
Court are correct and as per law. Therefore, on perusal of pleadings and
appreciation of evidence on record there remains no doubt that out of 8.32
acres (3,62,419 sq.ft.) of land, 1,80,819 sq.ft (correct is 13941 sq.ft. = 32
decimal) of land was kept for road, park and green area etc. when the original
owner of the property, namely, Aminuddin got the land diverted, which is
supported by diversion orders (Exhibits-P/2 & P/3) and lay out (Exhibit-P/1)
and rest of the land was transferred by sale or by 'Hibanama' and this has been
specifically detailed out in paragraph 10 of the judgment of the trial Court. This
paragraph gives details of land sold and what was given under 'Hiba'. Whereas
the pleadings of the plaintiffs have not been specifically denied by the
Defendants No.1 to 7. In paragraph 4 of their written statement they have simply
mentioned that reply to this pleading is based on documents, but it is submitted
that there was compromise between the parties but there is no specific details
of compromise in written statement. The defendants No.1 to 7 in reply to
paragraph 4 have not denied the contents of paragraph 4(2 to 20) of the plaint.
In fact in paragraph 4 of the written statement of Defendant No.8 it is stated that
land which was subject of 'Hiba' to other, the defendant is not concerned with
that but 32 decimal of land was transferred by 'Hiba' to Late Jahiruddin.
Therefore, the pleadings have not been specifically and clearly denied and
hence, same be deemed to be admitted.
17. Further, 'Yaddast Hiba' (Exhibit-P/5), which was in favour of
Plaintiff No.1-Majiuddin and Yaddast Hiba (Exhibit-P/4) which is in favour of
plaintiff No.2-Jamiruddin have not been specifically challenged by the
Defendants. Similarly, it is to be seen that before the competent authority
Exhibit-D/2 (an affidavit by Aminuddin) was filed, which was not challenged by
the Defendants on any ground. The PW.1-Majinuddin and PW.2-Shahabuddin
have stated that there was no 'Hiba' in favour of Late Jahiruddin.
18. A very important aspect of this appeal is that 'Yaddast Hiba'
dated 04.12.1974 is not filed in original by Defendants No.1 to 7 or by
plaintiffs. Only Exhibit-D/6 true copy is filed therefore, it can be said that
execution of document (Exhibit-D/6) is not proved.
19. Further, on joint reading of orders dated 29.4.1974 (Exhibit-P/2),
06.6.1977 (Exhibit-P/3) and dt.19.8.2002 (Exhibit-P/9) it is seen that an area of
1,81,610 sq.ft. of land was kept reserved for park, road, etc. and was not
available with Aminuddin for 'Hiba' or sale etc. On this issue the Defendant
Witness No.2 (Sirazuddin) in his cross-examination has admitted that in
document (Exhibit-P/4) which is Yaddast Hiba the name of Jahiruddin is not
there. Defendant Witness No.3 (Yunus Khan) also admitted in paragraph 15 of
cross-examination that 1,80,819 sq. ft. of land was for road, park and green
area etc. but admits that in Ceiling Case wherein Aminuddin had filed affidavit
(Exhibit-D/2), there is no name of Jahiruddin. In this regard in Exhibit-D/4 it is
mentioned that 32 Decimal of land was given to Jahiruddin but in this aspect
the learned trial Court in paragraph 20 of the judgment has very aptly recorded
clear finding
ÞvfHkys[k ds lw{e voyksdu ls ;g Li"V gS fd 'kCnkoyh Þ,oa 0-32 Hkwfe tghjm}hu dks
nhß izFkd ls tksMh xbZ gSßA
2 0 . It is to be noted that Plaintiff Witenss No.2-Shahbuddin had
prepared Exhibit-P/4 ('Yaaddast Hibanama'). In cross-examination this witness
has denied that entries are not in his handwriting.
2 1 . From the evidence available on record the possession of
Defendants No.1 to 7 is also not proved. On one hand the Defendants No.1 to
7 in written statement stated that they had fenced the suit property but
Defendant No.8 in his written statement stated that she had fenced the suit
property whereas Plaintiff-Majiuddin stated that he has fenced the suit property.
The Defendant Witness No.1-Alim Uddin has stated that he had asked Yunus
Khan to fence the suit property. But Defendant Witness No.3-Yunus Khan has
stated nothing about fencing. In fact, Defendant Witness No.1-Amil Uddin in
his cross-examination has stated that in paragraphs 16 and 22 he is not aware
whether Aminuddin had given possession of the suit property to his father or
not and his father had taken possession of the suit property or not.
2 2 . The appellant/Defendant No.8 is not witness to disputed
document ('Hibanama') dated 01-12-1974/04-12-1974/24-12-1974. He is hearsay
evidence. Hence, it is not proved that Aminuddin had given 32 decimal of land
by Hiba to Jahiruddin. Therefore, legal heirs of Jahiruddin would not get any
right and title over the suit land. Therefore, the sale made by Defendants No.1
to 5 in favour of appellant/Defendant No.8 vide sale deed dated 11.10.2000
(Exhibit-P-12C/Exhibit-D-9C) is without any right and, therefore, the
appellant/Defendant No.8 would get not right under the sale deed.
2 3 . Accordingly, for the reasons stated hereinabove, this appeal
cannot be allowed, hence the judgment of the trial Court is affirmed and appeal
is dismissed.
(AVANINDRA KUMAR SINGH)
JUDGE
RM
