Madhya Pradesh High Court
Vanita Mandal (Registered Society) ... vs The State Of Madhya Pradesh on 9 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 9 th OF FEBRUARY, 2024
SECOND APPEAL No. 162 of 2023
BETWEEN:-
VANITA MANDAL (REGISTERED SOCIETY) DEWAS
THROUGH PRESIDENT SMT. LATA TURKANE W/O
RAJSHEKHAR TURKANE, AGED ABOUT 40 YEARS,
OCCUPATION: PRESIDENT 19 BHAGATSINGH MARG,
DISTRICT DEWAS (MADHYA PRADESH)
.....APPELLANT
(SHRI AKASH RATHI - ADVOCATE FOR THE APPELLANT)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR DISTRICT DEWAS. .. (MADHYA
PRADESH)
2. C O M M I S S I O N E R DEWAS MUNICIPAL
C O R P O R A T I O N DEWAS MUNICIPAL
CORPORATION, AB ROAD, DEWAS (MADHYA
PRADESH)
3. NAZUL OFFICER STATE OF M.P. THROUGH NAZUL
D E P A R T M E N T COLLECTORATE CAMPUS,
(MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI MAYANK MISHRA - PANEL LAWYER FOR THE RESPONDENTS
STATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal by plaintiffs' under section 100 CPC has been filed being
aggrieved with the judgment and decree passed in Regular Civil Appeal No. 11
of 2022 by III District Judge, Dewas, District Dewas dated 02.11.2022, by
which the appeal of the plaintiff challenging the judgment and decree dated
24.03.2021 passed in RCS No. 158-A/2018 passed by learned Civil Judge
Class-I, Dewas, District Dewas was dismissed and the order of the trial Court
was affirmed.
2. Brief facts of the case before the trial Court are that the plaintiff is a
registered society and working for the social up-liftment, educational upliftment
and upliftment and lifesyle of old women, widows and children. Indumati
Turkane was the Founder President of the society and after her death Smt Lata
Turkane had taken the charge of President of the society and by the resolution
of society she has been authorized to file the suit regarding the disputed land
admeasuring 16740 sqft was transferred by Municipal Corporation, Dewas in
consideration of Rs. 1046.25 and the amount of consideration was deposited
by Receipt No. 18/24.06.1959 and Receipt No. 6/13.11.1959 and the
possession was handed over to the plaintiff society and the plaintiff society was
in the possession of the suit land. The plaintiff applied for the construction on
the disputed land on 08.01.1998 that was granted by Municipal Corporation,
Dewas and the sanction to construct the shopping complex was granted by
Nagar thatha Gram Nivesh Vibhag. On 20.10.2009 Tehsildar Dewas published
a Press Release to allot the part of the disputed land to Press Club and
objections were invited and the plaintiff filed the reply and clearly stated that the
land belongs to the Institution and it is not a Government land or the land of the
Nazul. On 18.09.2009 further notice were invited and the plaintiff society has
submitted objection in writing. In 'Agnibaan' Newspaper dated 03.08.2018 a
news published that the defendants without obtaining the consent of the plaintiff
Institution started the construction of the building of Medical Department and
when the plaintiff visited the site on 01.10.2018 the laborers were working and
digging the field. The Secretary of the Institution has orally filed the objections
to the officers of the defendants and filed the suit for permanent injunction.
3. The respondents defendants No. 1 to 3 has submitted that the
disputed land since 1941-1942 belongs to Government being Nazul land and
land was never allotted to the plaintiff Institution and the Municipal Corporation
has no authority to transfer the land as the land belongs to Government.
Disputed land bearing survey No. 97 area 0.312 hectare is a land of Gottan
Abadhi and as per the order of Government as well as as per the order of
Collector, Dewas No. 33/A-20(1) 2013-2014 Block No. 2, Sheet No. 41-A plot
No.11 admeasuring 1399 sq.ft in which the part of the land 929.37 sq.ft was
allotted to Medical Department and, therefore, the plaintiff has no ownership
over the disputed property.
4. On the above facts, the trial Court framed the issues and after
recording the evidence of the parties dismissed the suit, being aggrieved with
that an appeal No. 11 of 2022 was filed, which was dismissed by the first
appellate Court.
5. Learned counsel for the appellant has submitted that the trial Court
as well as the first appellate Court has committed an error for not considering
the documents Exhibit -P-1 i.e the certified copy of possession and entry in the
Municipal record and in that it has been clearly mentioned that land was allotted
to Vanita Mandal Dewas in the year 1959 and on the oral statement of the
defendant the trial Court as well as first appellate Court has inferred that the
document is forged one and no document was produced before the trial Court
that land is a Nazul land and not belonging to Municipal Corporation, inspite of
that trial Court as well as first appellate Court has dismissed the suit. The
appellants were in possession from the date of purchase i.e from the year 1959.
The defendants were barred by the provision of Section 41 of Transfer of
Property Act as Ostensible Owner of immovable property had transferred the
same for consideration and such transfer shall not be voidable on the ground
that the transferor was not authorized to make it. The seller was the ostensible
owner and the appellant had purchased the disputed property with
consideration after taking reasonable care and in good faith. The trial Court as
well as the appellate Court has erred in considering the evidence of plaintiff's
witnesses just because plaintiff admitted that the land is allotted to the Medical
Department, this does not create any presumption that the appellant has no right
over the disputed property. Material on record that suit of the plaintiff was
proved, but the trial Court has dismissed, without considering the fact that the
defendant have failed to discharge their burden. Hence, the appeal be allowed
and the decree passed by the trial Court as well as the appellate Court be
quashed.
6. Heard the parties and perused the case record.
7 In this case, the basic ground of the appellant before the trial Court
as well as appellate Court was that the land was transferred to the plaintiff
Institution by the Municipal Corporation, Dewas, but except the document
Exhibit-P-1 nothing has been brought on record. Exhibit-P-1 is the certified
copy written as Pratilipi Dhakala. In this document Exhibit-P-1 it is written
that Dhakhala Bavat Jamin Bikari Va Kabja . From this it appears that the
land was sold by Municipal Corporation, but no sale deed has been produced
by the plaintiff before the Court and the plaintiff has also not tried to obtain the
certified copy of Sale Deed or of the proceedings in which this land was
allotted /sold to the plaintiff society.
8. The plaintiff has also relied upon stating that the Municipal
Corporation, Dewas has granted sanction of construction but that letter has not
been proved as per the provisions of Evidence Act, only the receipt Exhibit-P-
2 has been produced. As per Exhibit-P-3, the Commissioner, Municipal
Corporation by issuing notice sought the document of possession to plaintiff,
but no document was provided to concerned authority and in reply to that only
letter of Exhibit-P-5 was submitted and Exhibit-P-4 was written to Nazul
Officer, Dewas. Thus, to prove its case the society has not produced any
document of title by which it can be inferred that the land was sold to the
plaintiff society.
9. Further more, the land as per Exhibit-P-1 was transferred for the
consideration of Rs. 1046.25 i.e more than Rs.100/- and as per the provision
of Section 54 of Transfer of Property Act and Section 17 of the Registration
Act the written and registered sale deed was required to sought the title, but no
sale deed has been produced by the plaintiff and on the pretext that the
documents were misplaced or lost, no inference can be drawn against the
plaintiff as the burden to prove the ownership was on the plaintiff.
10. Not only this, the plaintiff has filed the suit on the basis that the
society was registered under the Madhya Pradesh Society Registration Act,
1973, but no Registration Certificate of the Society has been produced. The
plaintiff has herself admitted in paragraph-17 of her cross examination that the
disputed land is in the Revenue records is entered in the name of Government
and she has also admitted that she has not filed any document that land was in
the ownership of Municipal Corporation, Dewas. She has also not filed any
receipt of Property Tax. She has also admitted that in the year 2009 she came
to know that the Government is allotting the disputed land to others, but she has
not initiated any proceedings. She has stated that she has protested only in
writing.
11. From the above discussions, it is clear that the plaintiff has failed
to prove that the land was originally of the ownership of Municipal
Corporation, Dewas and the Municipal Corporation, Dewas transferred the land
to the plaintiff society and the plaintiff society was the owner of the property
and having the possession over the disputed land.
12. Thus, this Court has reached to the conclusion that the trial Court as
well as appellate Court has rightly dismissed the suit. The judgment and decree
passed by the Courts below are based upon a proper and thorough
appreciation of the evidence available on record. The reasoning and findings
recorded by them cannot be said to be illegal or perverse in any manner. No
substantial question of law arises for determination in this appeal which is
consequently dismissed in limine.
No order as to costs.
(DEVNARAYAN MISHRA)
JUDGE
rashmi
