Madhya Pradesh High Court
Kailashnarayan vs Shivkanya 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. 298 of 2019
BETWEEN:-
1. KAILASHNARAYAN S/O RANCHHOD, AGED
ABOUT 51 YEARS, POLAYKALA, TEH. POLAYKALA,
DISTT. SHAJAPUR (MADHYA PRADESH)
2. BABULAL S/O RANCHHODSINGH, AGED ABOUT 43
YE A R S , POLAY KALA, TEH. POLAY KALA
(MADHYA PRADESH)
3. BIHARILAL S/O RANCHHODSINGH, AGED ABOUT
38 YEARS, POLAY KALA, TEH. POLAY KALA
(MADHYA PRADESH)
.....APPELLANTS
(SHRI AVINASH KUMAR KHARE - ADVOCATE)
AND
1. SHIVKANYA W/O PRAHLADSINGH, AGED ABOUT
46 YEARS, GRAM POLAYKALA, TEH. SHUJALPUR,
DISTT. SHAJAPUR (MADHYA PRADESH)
2. KRISHNABAI W/O VRINDAVAN, AGED ABOUT 55
YEAR S, GRAM POLAYKALA, TEH. SHUJALPUR,
DISTT. SHAJAPUR (MADHYA PRADESH)
3. THROUGH COLLECTOR THE STATE OF MADHYA
PRADESH DISTT. SHAJAPUR. (MADHYA PRADESH)
.....RESPONDENTS
(SHRI DEVDEEP SINGH - PANEL LAWYER)
This appeal coming on for admission this day, th e court passed the
following:
JUDGMENT
This second appeal has been filed being aggrieved with the judgment and
decree passed by Second District Judge, Shujalpur dated 24.10.2018 in civil
appeal No.70/2017 by which the judgment and decree of the First Civil Judge,
Class-II passed in civil suit No. 107-A/2017 judgment dated 07.11.2017 was
affirmed by which the counter claim of the appellant was dismissed.
2. The facts before the trial Court was that the respondent No.1 and 2
Shivkanya and Krishnabai respectively have filed the suit against the
appellants/defendants stating that agricultural land survey No.3529/1
admeasuring 0.105 hectare and survey No.3529/04 admeasuring 0.073 was
purchased by the plaintiff No.1 from Umrao s/o Kashiram. On 04.06.2009 by
registered sale-deed and her name was mutated and he is the owner of the land.
Plaintiff No.2 Krishnabai the owner of survey No.3530 admeasuring 0.153
hectare, these lands were adjacent to the land of defendants and they are
encroaching upon the land. So, they have filed the suit for declaration of
possession and for permanent injunction.
3. In that suit the appellants/defendants have filed a counter claim that the
disputed land is a co-ownership of the defendants and they all are entitled for
1/3 share. The seller was not having exclusive ownership of the property and
in the revenue record, property entered into joint holding. So, the sale-deed is
void and they have filed counter claim to the effect that in the sale-deed seller
has sold the land more than his share and without their consent. Hence, the sale-
deed be declared null and void and permanent injunction may be granted in their
favour regarding the disputed land. On that pleadings the trial Court after
recording the evidence have dismissed the suit as well as the counter claim.
4. The original plaintiffs have not filed any appeal but the defendants have
filed first appeal which was dismissed as stated above hence, this second
appeal.
5. Learned counsel for the appellant has submitted that both the Courts
below has committed an error in not recognizing the fact that in joint family
property the each co-sharer has owner and possession over each inch of the
land and as per the revenue records Ex.D-1 and D-2 in year 2008-09 the land
was entered in the joint names of the appellant and the respondents. This fact
was not agitated by the plaintiffs.
6. The trial Court has not considered the fact that no notice was issued
regarding the mutation proceedings to the appellant and the transfer of the land
in the favour of daughter-in-law was without consideration hence, the transfer
being without consideration cannot be said to be bonafide. The seller were not
made parties in the suit and the plaintiff has not examined the adducing
witnesses of the sale-deed, they have also not proved the fact that the transfer
was delivered to purchaser/ plaintiffs. The trial Court as well as appellate Court
has ignored the fact that as per the mutual partition the parties are in possession
for 35 years in such condition the trial Court erred in not declaring the void the
sham sale-deed and further argued that appeal be allowed on the substantial
question be heard finally.
I have heard on motion and perused the record.
7. From the case record it is clear that the said matter of the suit property
originally belong to Kashiram & Ganpat, Umrao and Ranchod were legal heirs
of Kashiram and Ganpat has died and Ramprasad Sukhliya and Vrindavan are
his legal heirs.
8. As per the document Ex.d-12 Kishband Khatoni 1983-84 in the name
of Ganpat, Umrao and Ranchod are entered into joint ownership land of total
survey numbers 16 area 8.825 hectare. Thus, it is clear that the disputed
property is ancestral property.
9. In this case the disputed land survey No.3529/01 and 3529/04 is
included in the above land and total area 0.178 hectare was sold by Umarao s/o
Kashiram in favor of Shivanya w/o Prabhulal Singh and as per the Ex.D-2 the
Umrao has 1/3 share in the whole ancestral property.
10. The defendant in their written statement and counter claim has stated
that the Bahami Batwara (mutual partition) was made and on that basis the
parties are having the possession over the part of land that came in their share in
the cross-examination Babulal (DW-1) has admitted in para 08 of his statement
that the Bahami Batwara was done among his father Ranchodd, Umrao Singh,
Ganpat Singh 40 years prior and in that partition the land.
11. He has also admitted that on 06.11.1987 his father also sold a piece
of land. He has also admitted that plaintiff Shivkanya has purchased the part of
the land survey No.3529/1 admeasuring area only 0.105 out of 146 hectare and
survey No.3529/4 its total area 0.178 out of that 0.073 hectare.
12. He has also admitted that he has not filed any suit for declaring the
sale-deed null and void. His father has previously filed any suit that was
dismissed or withdrawn.
13. Thus, it is clear that the physical partition before the parties have
already been taken place 40 years prior to filing the sale-deed and as per the
partition the parties were in possession and defendant/appellant failed to prove
that the land which was sold to plaintiff No.1 was in the possession of the
defendants as excess to sellers share.
14. Thus, only on the basis that the land was not partitioned by revenue
Court it cannot be admitted that the defendants were in possession of the
disputed land and when the physical partition has taken place this cannot be
allowed that each co-owner has ownership and possession on each part of the
land.
15. The defendant Babulal (DW-1) has admitted that his father has filed a
suit to declare the sale-deed null and void and in the written statement the
defendants have pleaded that deceased Ranchodd has filed a civil suit
No.35/2010 that was withdrawn on 15.12.2012 from the Court but, on what
conditions this suit was withdrawn has not been stated hence, the appellate
Court has rightly held that the counter claim suit is barred by Order 2 Rule 2 of
the CPC. Thus, from the above discussion no substance is found in the appeal
hence, the appeal is summarily dismissed in limine.
16. With the copy of this judgment the record of the trial Court as well as
of the appellate Court be returned back.
17. No order as to costs.
(DEVNARAYAN MISHRA)
JUDGE
akanksha
