Madhya Pradesh High Court
Sukhdeep Singh Sikh vs Shashikant Pandey on 6 February, 2024
Author: Sunita Yadav
Bench: Sunita Yadav
1 SECOND APPEAL No. 1507 of 2021
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 6th OF FEBRUARY, 2024
SECOND APPEAL No. 1507 of 2021
BETWEEN:-
SUKHDEEP SINGH SIKH S/O LATE SHRI
CHANDAN SINGH SIKH, AGED ABOUT 61
YEARS, OCCUPATION: FARMING, R/O
VILLAGE GHASARAI TAHSIL AND DISTRICT
SHIVPURI (MADHYA PRADESH)
.....APPELLANT/DEFENDANT NO.1
(MR. RAM KRISHNA SONI - ADVOCATE FOR APPELLANT)
AND
SHASHIKANT PANDEY S/O SHRI RAM
KUMAR PANDEY, AGED ABOUT 40 YEARS,
1.
OCCUPATION: BUSINESS, R/O JHANSI
ROAD SHIVPURI (MADHYA PRADESH)
MAHILA JOGINDAR KAUR W/O LT. SHRI
MUKHVINDAR SINGH SIKH, AGED ABOUT
30 YEARS, R/O SAKET APARTMENT BLOCK-
2.
B AKSHAY VAT PLOT NO. U-407
MAGARPADA ROAD KORVA BILASPUR
(CHHATTISGARH)
3. SUKHPAL SINGH S/O LATE SHRI
MUKHVINDAR SINGH SIKH, AGED ABOUT
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 2/9/2024
4:56:09 PM
2 SECOND APPEAL No. 1507 of 2021
30 YEARS, R/O SAKET APARTMENT BLOCK-
B AKSHAY VAT PLOT NO. U-407
MAGARPADA ROAD KORVA BILASPUR
(CHHATTISGARH)
MAHILA NEELAM KAUR D/O LATE SHRI
MUKHVINDAR SINGH SIKH, AGED ABOUT
32 YEARS, R/O SAKET APARTMENT
4.
BLOCK-B AKSHAY VAT PLOT NO. U-407
MAGARPADA ROAD KORVA BILASPUR
(CHHATTISGARH)
COLLECTOR/DISTRICT MAGISTRATE
5. COLLECTOR DISTRICT SHIVPURI
(MADHYA PRADESH)
.....RESPONDENTS
(BY MR. SANJEEV TIWARI - 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 17/09/2021
passed by the Principal District Judge, Shivpuri, District Shivpuri in
Regular Civil Appeal No.72/2018 whereby the judgment and decree
dated 30/07/2018 passed by the 3rd Civil Judge Class-II, Shivpuri
in Civil Suit No.2500096-A/2015 has been reversed.
2. Factual matrix of the case are in brief are that respondent
no.1/plaintiff had instituted a suit for declaration of title and
restoration of possession mainly against the appellant/defendant
no.1 impleading the respondents 2-5/defendants 2-5, with regard to
agriculture land survey nos. 44/2 area 0.590 hectare, 46 area 1.680
hectare, 46/1 area 0.660 hectare total area 2.830 hectare situated in
Village Ghasarai, Tahsil & District Shivpuri.
3. It is alleged that the disputed land was owned by late
Mukhvindar Singh and after his death the respondents/defendants 2
to 4 became bhumiswami who vide registered sale deed dated
10.02.2012 sold the disputed land to the plaintiff/respondent No.1
and since after purchase the plaintiff became bhumiswami of the
disputed land. It is alleged that the defendant no. 1/appellant being
younger brother of Mukhvindar Singh had been cultivating the land
and due to ill will, the defendant no. 1 had instituted a civil suit on
12.10.2011 before trial Court, Shivpuri against present defendant
nos.2 to 4 claiming title on the basis of adverse possession which
was decided on 20.12.2013 (Ex.P/8) with the direction that the
defendants shall not interfere in possession of the
plaintiff/respondent No.1 without following due process of law,
which was affirmed in appeal vide judgement and decree
08.12.2014.
4. It is further alleged that on the basis of purchase of land, the
plaintiff/respondent No.1 has become bhumiswami, therefore is
entitled to get possession from defendant no. 1. Alleging the cause
of action to have accrued on 10.02.2012, the plaintiff instituted the
suit on 23.02.2015 in the court of 3rd Civil Judge Class-II, Shivpuri
and prayed for decree in his favour.
5. The defendant no.1/appellant appeared and filed written
statement denying the plaint allegations and contended that the
disputed land belonged to father Chandan Singh. After his death,
the land came in the name of Mukhvindar Singh and after him was
recorded in the name of defendant no.2 to 4 but they never
remained in possession and only the defendant no.1 has been in
possession of the disputed land from the time Mukhvindar Singh
and even they never resided in Village Ghasarai. The land has been
sold by defendants 2-4 without prior notice to the defendant no.1
and without delivery of possession and on that basis the plaintiff is
not bhumiswami of the disputed land.
6. The defendant no.1 also contended that he previously
instituted a civil suit on 12.10.2011 against the defendants No. 2 to
4 bearing Civil Suit no.31-A/2011 which was in the knowledge of
defendants No. 2 to 4 but during pendency of this civil suit, the
plaintiff got executed sale deed on 10.02.2012 and but on that basis
the plaintiff does not get any right in the disputed land. It is also
contended that Mukhvindar Singh went leaving the disputed land
and the defendant no.1 got it made cultivable and got raised
construction of a house over it and he is cultivating the land for 30
years and is residing in the house alongwith family members.
Neither the defendants No. 2 to 4 were in possession nor the
plaintiff received possession on the disputed land, therefore, the
plaintiff is not entitled for possession from the defendant no.1. The
suit is barred by limitation and deserved to be dismissed.
7. On the basis of the aforesaid pleadings, the learned Trial
Court framed as many as five 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 plaintiff vide its
judgment and decree dated 30.07.2018.
8. Being aggrieved against the judgment and decree passed by
the Trial Court, plaintiff 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 plaintiff 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.
9. Learned counsel for the appellant/defendant No.1 argued that
learned first appellate court failed to discharge its duty properly as
the impugned judgment lacks to reflect conscious application of
mind on the findings recorded by the learned trial court which are
supported by reasons, while reversing the judgment of trial court.
Learned first appellate court also committed error while interpreting
the provision of Transfer of Property Act. Therefore, the impugned
judgment and decree be set aside.
10. On the other hand, learned counsel for the respondent No.
1/plaintiff 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.
11. Heard learned counsel for the parties and perused the record.
12. On the basis of pleadings and the oral as well documentary
evidence it is apparent that it is not disputed between the parties that
the property in dispute belonged to one late Mukhvinder Singh and
after his death, defendants No. 2 to 4 became the owner of the said
property. It is also not disputed that defendants No. 2 to 4 executed
the sale deed on 10.02.2012 (Ex. P/2) in favour of plaintiff.
13. Appellant/defendant No. 1 in his cross-examination admitted
that earlier disputed land was recorded in the name of Mukhvinder
and thereafter, name of his wife and children were recorded in the
Revenue Record. He has further admitted that he had filed a civil
suit against the defendants Sukhdeep Singh, Jogender Kaur,
Shukhpal Singh, Neelam Kaur and in that suit he was not declared
as the owner of the disputed land which is the same land in both the
civil suits. Appellant/defendant No. 1 has also admitted in his
evidence that in the earlier suit, while passing the judgment and
decree (Ex. P/8), the Court was of the opinion that he was not the
owner of the disputed land on the basis of his claim of alleged
adverse possession, however, his permissive possession was found
to be proved and therefore, the decree was granted to the effect that
he (Appellant/defendant No. 1) can not be dis-possessed without
following due course of law.
14. In view of above undisputed facts, learned first appellate
Court has rightly held that the appellant/plaintiff is not the owner of
disputed property on the basis of adverse possession and was only
in permissive possession over the property. On the basis of oral as
well as document sale deed learned first appellate Court has also
rightly held that the disputed property was sold to respondent No. 1
for a consideration of Rs. 40,000,00/-. In light of the case of M.D
Abdul Latif Vs. Laloimiya, reported in (2020) AIR Guwahati 33
and in the judgment passed by the Apex Court in Civil Appeal 4816
of 2016 arising out of SLP (Civil) No. 13076 of 2007
(Muddasani Venkata Narsaiah (D) Th. Lrs. Vs. Muddasani
Sarojana) dated 05.05.2016 learned First appellate Court has not
erred in holding that under Section 54 of Transfer and Property Act
for selling the disputed land handing over of possession is not
mandatory and on the basis of registered sale deed dated
10/02/2012, plaintiff is entitled to get the possession of disputed
land.
15. As discussed above, in this case a definite finding has been
arrived at by the first appellate court after proper appreciation of
evidence on record and learned counsel for the appellant has failed
to show that the vital evidence was omitted or inadmissible
evidence is relied upon by the first appellate court, so also, the
impugned judgment reflects conscious application of mind on the
findings recorded, supported by reasons, on all issues dealt with;
therefore, no substantial question of law arose.
16. Resultantly, the judgment and decree dated 17.09.2021
passed by Principal and District Judge, Shivpuri District Shivpuri in
Civil Appeal No.72/2018 is hereby affirmed and this second appeal
is hereby dismissed in limine.
(Sunita Yadav)
Judge
LJ*
