Madhya Pradesh High Court
Naresh Singh Tomar (Dead) vs Dinesh Singh Tomar on 5 February, 2024
Author: Sunita Yadav
Bench: Sunita Yadav
1
SA.NO.579 OF 2009
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
SECOND APPEAL No. 579 of 2009
BETWEEN:-
NARESH SINGH TOMAR (DEAD) THROUGH
1.
LRS.
SMT. ANITA, AGE 48 YEARS W/O LATE SHRI
NARESH SINGH TOMAR: OCCUPATION HOUSE
1(A)
WIFE R/O GOHAD CHAURAHA TAHSIL GOHAD
DISTRICT BHIND (MADHYA PRADESH)
SMT. NEETU PAMAR W/O SHRI PRADEEP
PAMAR AGE 32 D/O LATE SHRI NARESH SINGH
1(B) TOMAR OCCUPATION: HOUSE WIFE R/O
NIMMA JI KI KHO LASHAKR GWALIOR
(MADHYA PRADESH)
PINKY TOMOR AGE 30 YEARS S/O LATE SHRI
NARESH SINGH TOMAR OCCUPATION: TRUCK
1(C)
DRIVER R/O GOHAD CHAURAHA TAHSIL
GOHAD DISTRICT BHIND (MADHYA PRADESH)
RINKU TOMAR AGE 28 YEARS S/O LATE SHRI
NARESH SINGH TOMAR OCCUPATION:
1(D)
SHOPKEEPER R/O GOHAD CHAURAHA TAHSIL
GOHAD DISTRICT BHIND (MADHYA PRADESH)
.....APPELLANTS
(MR. SANTOSH AGRAWAL - ADVOCATE FOR APPELLANTS)
AND
DINESH SINGH TOMAR S/O LAKHAN SINGH, AGED
ABOUT 42 YEARS, OCCUPATION: R/O VILLAGE
1. CHHIMAK AT PRESENT GOHAD CHAURAHA TAHSIL
GOHAD DISTRICT BHIND (MADHYA PRADESH)
DEFENDANT/RESPONDENT
MANAGER CHAMBAL CHHETRIYA GRAMIN BANK
2. MORENA BRANCH GOHAD GANJ BAZAR, GOHAD,
DISTRICT BHIND.
3. SMT. ANITA W/O LATE NARESH SINGH TOMAR,
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 2/6/2024
10:41:40 AM
2
SA.NO.579 OF 2009
AGED ABOUT 40 YEARS, OCCUPATION: R/O VILLAGE
CHHIMAK PRESENT GOHAD CHAURAHA TAHSIL
GOHAD, DISTRICT BHIND (MADHYA PRADESH)
RINKU S/O LATE NARESH SINGH TOMAR , AGED
ABOUT 20 YEARS, OCCUPATION: R/O VILLAGE
4.
CHHIMAK PRESENT GOHAD CHAURAHA TAHSIL
GOHAD, DISTRICT BHIND (MADHYA PRADESH)
UPDESH @ PINKI S/O LATE NARESH SINGH TOMAR ,
AGED ABOUT 23 YEARS, OCCUPATION: R/O VILLAGE
5.
CHHIMAK PRESENT GOHAD CHAURAHA TAHSIL
GOHAD, DISTRICT BHIND (MADHYA PRADESH)
.....PROFORMA RESPONDENTS
(MR. ANAND VINOD BHARDWAJ - ADVOCATE FOR DEFENDANT
RESPONDENT NO.1)
-----------------------------------------------------------------------------------------------------------
RESERVED ON 11.01.2024
-----------------------------------------------------------------------------------------------------------
WHETHER APPROVED FOR REPORTING:
_______________________________________________________________________
This appeal coming on for Hearing this day, the court passed the
following:
JUDGMENT
(05.02.2024)
The present second appeal under Section 100 of CPC has been
preferred by the plaintiff/appellant against the judgment and decree dated
29.09.2009 passed by Additional District Judge, Gohad, District Bhind in
Regular Civil Appeal No. 06/2009 confirming the Judgment and decree dated
19.12.2008 passed by Civil Judge, Class-II, Gohad in Civil Suit No. 44-
A/2008.
2. The original plaintiff/appellant - Ramesh Singh Tomar (since dead and
SA.NO.579 OF 2009
represented by LRs.) had filed this civil suit for permanent injunction,
cancellation of sale deed dated 21.01.1987 and for declaration of judgment
and decree dated 20.02.2003 passed in Civil Suit No. 91-A/95 in respect to
the property admeasuring area 15x75=1125sqft situated at Gohad bearing
Survey No.1144/2 (herein after referred as disputed property) as null and
void.
3. For the sake of convenience Naresh (since dead and represented by Lrs)
will be addressed as plaintiff, respondent no.-1 Dinesh will be addressed as
defendant no.-1 hereinafter. As per the plaint pleadings the plaintiff is the
owner of the said disputed property. The property was purchased after selling
the ancestral property by the plaintiff as well as defendant No.1 on 26.04.1980
from one Lakhpat Singh S/o Bhagwan Singh. Hence, both plaintiff and
defendant No.1 became co-owner of equal shares in that property. It is further
pleaded that when the property was purchased, defendant No. 1 was minor
and plaintiff was working as a driver. Thereafter, plaintiff constructed the
house on the same plot. After construction, oral partition was taken place
between plaintiff and defendant No.1 and plaintiff got 15x75 square feet in
southern side and defendant No. 1 got 15x75 square feet in northern side. The
plaintiff has been in peaceful possession of his portion since 1980. The further
pleading is that the plaintiff is illiterate and addicted to consume opium for
which he has valid license. Defendant No. 1 took the advantage of this habit
SA.NO.579 OF 2009
and got executed the sale deed dated 21.01.1987 in his favour by fraud in
shadow of registration of partition deed after feeding a lot of liquor to
plaintiff. Plaintiff knew about this fact only in the year 1995 when the earlier
civil suit was filed. The cause of action arose in the year 2003 when he came
to know about the execution proceedings started in earlier civil suit.
Thereafter, the present civil suit is filed for the aforesaid relief as referred
above.
4. Respondent No.1/defendant No. 1 filed written statement denying the
averments of plaint and pleaded that he is the owner of disputed property on
the basis of sale deed dated 21.08.1987 executed in his favour by the
plaintiff. It is further pleaded that the wife and children of the plaintiff had
filed a civil suit bearing No. 91-A/95 and in that suit defendant No. 1 filed
cross objection for recovery of possession. The Civil Suit No. 91-A/95
decreed in favour of defendant No. 1 by judgement and decree dated
20.02.2003, thereafter, the plaintiff of that civil suit, filed appeal, however, the
appeal was also dismissed. The judgement and decree passed in Civil Suit
No. 91-A/95 was affirmed in second appeal by the High Court. On
07.04.1996 plaintiff and his wife forcefully encroached upon the disputed
property. The execution of decree passed in civil suit No. 91-A/95 is still
pending. Plaintiff has no cause of action, this suit is malafidely filed,
therefore, the same be dismissed with costs.
SA.NO.579 OF 2009
5. On the basis of the aforesaid pleadings, the learned Trial Court framed
as many as eight issues in the matter and parties lead evidence to prove the
said issues in their favour. The learned Trial Court after appreciation of the
evidence made available on record, vide its judgment and decree dated
19.12.2008 dismissed the suit filed by the appellant/plaintiff.
6. Being aggrieved by the aforesaid judgment of the trial court, the
appellants/plaintiffs preferred First Civil Appeal No.06/2009 before the
Additional District Judge, Gohad, District Bhind who also dismissed the First
appeal by affirming the judgment and decree passed by the Trial Court,
therefore, appellant/plaintiff has occasion to file this second appeal under
Section 100 of C.P.C.
7. Assailing the findings recorded by the learned courts below, learned
counsel for the appellants submits that the learned courts below have
committed grave error in disbelieving the the evidence led by the plaintiff. It
was duty of the courts below to appreciate the evidence properly which has
not been done. The plaintiff specifically pleaded in his plaint para no.8 that
after feeding a lot of liquor to plaintiff defendant No. 1 got executed the sale
in shadow of the partition deed, there is no rebuttal in the written statement on
this count hence suit of the plaintiff should have been decreed being execution
of sale deed obtained by playing fraud by intoxication without will and free
consent.
SA.NO.579 OF 2009
8. Counsel for the appellants further submits that both the courts below
have ignored the fact that P-W-3 categorically stated that he has been
watching the plaintiff in possession on the suit house since 1980 hence no
possession was handed over to defendant no.1 at the time of execution of sale
deed. The judgement and decree passed by both the courts below suffer
illegality and deserve to be set aside.
9. On the other hand, learned counsel for the respondent/defendant No.1
supported the impugned judgment and decree passed by both the courts below
and prayed for dismissal of the instant appeal being bereft of merit and
substance.
10. Heard learned counsel for parties and perused the record.
11. The present second appeal has been admitted by the Court on
following substantial questions of law:-
"(i) Whether learned two Courts below erred in
substantial error of law by misconstructing and
misinterpreting the material document i.e. the judgment
Ex. D.5 which has been passed in earlier Civil Suit No.
91-A/95 (Smt. Anita @ Lalla Beti, Rinku and Updesh Vs.
Dinesh Singh and Naresh Singh) in the Court of Civil
Judge, Class I, Gohad decided on 20.02.2003 holding that
defendant No.1-Dinesh Singh who is also defendant in the
present suit is entitled to recover the possession of suit
property from plaintiff of that suit only?
(ii) What would be the impact of the judgment and decree
Ex. D/5 on the present suit when the defendant- Dinesh
Singh in his counter claim Ex. D.3 although, claimed
decree of possession against present plaintiff who was
defendant No.2 in that suit and which was not granted to
SA.NO.579 OF 2009
him vide judgment Ex.D.5?
(iii) Whether, in the facts and circumstances the plaintiff
who is in possession of the suit property is entitled for the
decree of injunction?
(iv) Whether the averments made in the plaint para 8
specifically pleaded by plaintiff that after consuming the
liquor when he was in the stage of intoxication, the
defendant got the sale deed executed from plaintiff, which
has not been denied specifically, would it amount to
admission under Order 8 Rule 3 CPC? If yes, whether
learned two Courts below erred in substantial error of law
in not holding so?"
12. The appellant-plaintiff has filed this civil suit for cancellation of sale
deed dated 21.01.1987, for declaration of judgment and decree dated
20.02.2003 passed in Civil Suit No. 91-A/95 as null and void and permanent
injunction.
13. It is the trite law that the burden of proving its case lies on the plaintiff
and any weakness on the part of the defendant can not be a ground for
decreeing the plaint. In this case, learned trial Court has appreciated the
evidence of plaintiff-Naresh Singh and his witnesses Jagannath as well as
Omprakash in detail so also the defendant No.1 and his witness and after due
appreciation found that the plaintiff has failed to prove that the defendant has
got the sale deed dated 21.01.1987 executed by playing fraud. The plaintiff
has failed to prove that he was drunk at the time of execution of sale deed and
also failed to prove that it was defendant who made him drink liquor. Learned
first appellate Court has also after due appreciation, confirmed the above
findings in this regard.
SA.NO.579 OF 2009
14. The learned counsel for the appellant argued that the trial court has
wrongly held that the Registrar must have enquired from the appellant about
the document which was to be registered while registering the sale deed under
challenge. In this regard the provision of Section 34(3) of Registration Act is
relevant which is reproduced below:-
(3) The registering officer shall thereupon--
(a) enquire whether or not such document was
executed by the persons by whom it purports to have
been executed;
(b) satisfy himself as to the identity of the persons
appearing before him and alleging that they have
executed the document; and
(c) in the case of any person appearing as a
representative, assign or agent, satisfy himself of the
right of such person so to appear.
15. In the light of above provision and the case of Dharmendra and
another Vs Indore Municipal Corp. and another 1999 -1- JLJ 119 in
which it is held that it is not expected from the Registrar that he he would
register a forged document if it is duly registered, the learned trial Court has
rightly discarded the evidence of the plaintiff that the sale deed dated
21.01.1987 was executed by fraud because the fact of plaintiff being appeared
before the Registrar for registration of the document is undisputed and the
signature of the plaintiff on sale deed dated 21.01.1987 is also not in dispute.
As discussed above, learned courts below on the basis of due appreciation of
evidence rightly held that the appellant/plaintiff has failed to prove that the
SA.NO.579 OF 2009
plaintiff was drunk at the time of execution of sale deed; therefore, the
appellant does not get any benefit from the cases of Maharani Vs. Krishna
Kumar 2008-2-JLJ 340, AIR 2016 SC 2250, Maddasani Vs Muddasani
Sarojana, Jaspal Kaur Chima Vs Industrial Trade Link 2018-1-MPLJ
282, Sirmul Vs Annapurna Devi, 2001-2-MPLJ, 339.
16. As per argument of learned counsel for appellant, there is no specific
denial by the respondent/defendant No.1 about the facts mentioned in para 8
of the plaint in respect to execution of the sale deed by the plaintiff-appellant
after making him consume liquor; therefore, this fact deemed to be proved.
However, above argument is not acceptable because at para 8 of the written
statement the respondent-defendant No.1 has replied in detail with respect to
the facts narrated in plaint para 8 by pleadings that in earlier case bearing
Civil Suit No. 91-A/95 the same averments were made and the case has
already been decided passing decree in favour of the plaintiff. Therefore, it
cannot be said that the facts narrated in para 8 of the plaint are admitted in
view of having not denied. Moreover, the defendant in its written statement
has pleaded about the execution proceeding which is pending to execute the
judgment and decree passed in civil suit No.91-A/95 and during his cross
examination, the plaintiff appellant also admitted at para 5 that he has filed an
application in that execution proceedings. Thus, it is evident that plaintiff had
knowledge that the plea or ground in respect to execution of sale deed by
SA.NO.579 OF 2009
playing fraud by the respondent- defendant had already been decided by the
competent court and the said decree was affirmed until the High Court and he
also knew about the execution proceeding of the said judgment and decree
passed in civil suit No. 91-A/95. The perusal of the exhibit D/3 reveals that
written statement was also filed by the appellant-plaintiff in that civil suit No.
91-A/95. All these facts indicate that he is fully aware about the fact about the
earlier decree in favour of respondent and that his plea taken in written
statement in earlier suit in respect to playing fraud by the respondent has been
finally adjudicated and rejected by the competent courts; however, on the
basis of same ground which has been finally adjudicated he again filed this
suit which is a sheer abuse of process of law. Appellant is participating in the
execution proceedings in respect to the same property as per his statement at
para 5. In view of the above he is not entitled to get relief of injunction in this
case.
17. In the light of the above it is found that the learned courts below have
rightly dismissed the suit of appellant-plaintiff filed for cancellation of sale
deed dated 21.01.1987, declaration of judgment and decree dated 20.02.2003
passed in Civil Suit No. 91-A/95 as null and void and for permanent
injunction after proper appreciation of evidence. It is well settled that,
findings of facts based on proper appreciation of evidence and law can not be
interfered in second appeal.
SA.NO.579 OF 2009
18. On the basis of above discussion it is also apparent that the learned
courts below have not erred in rejecting the plaint by misconstruing and
misinterpreting the material document i.e. the judgment Ex. D.5, on the
contrary, on the basis of proper appreciation of evidence and law the suit was
dismissed because it is apparent from the above discussion that the appellant-
plaintiff has utterly failed to prove his case in respect to cancellation of sale
deed dated 21.01.87 on the basis of having executed by playing fraud, he has
also failed to prove as to why the decree passed in civil suit no. 91A/95 is null
and void which was filed by his own wife and children residing in the same
disputed property and the execution proceedings are going on for recovery of
possession. In view of above substantial questions of law Nos. 1,3 and 4 are
answered in negative. In the light of above discussion there would be no
impact of Ex. D-5 on this case because if the practice adopted by the
appellant-plaintiff is approved where with malafide intention this suit is filed
by the husband/plaintiff for the same property on the same grounds which
have been finally adjudicated and the case of wife and children has been
dismissed, then it would be a sheer abuse of process of law.
19. Consequently, this appeal sans merits and dismissed hereby.
(SUNITA YADAV)
JUDGE
LJ*
