Madhya Pradesh High Court
Chhote Singh vs Shibbu on 27 February, 2024
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 27 th OF FEBRUARY, 2024
SECOND APPEAL No. 129 of 2016
BETWEEN:-
CHHOTE SINGH S/O GAJRAJ SINGH THAKUR, AGED
ABOUT 70 YEARS, TUDARI TEH. DEORI DISTT. SAGAR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI A.R.S CHOUHAN - ADVOCATE)
AND
1. SHIBBU S/O BHADAI CHAMAR, AGED ABOUT 55
YE A R S , GRAM TUDARI TEH. DEORI DISTT.
SAGAR (MADHYA PRADESH)
2. HEERALAL S/O SHIBBU HARIJAN OCCUPATION:
NONE GRAM TUDARI, TEH. DEORI, (MADHYA
PRADESH)
3. LAXMIBAI D/O BHADAI W/O NANNAI
OCCUPATION: NONE GAURJHAMAR, TEH. DEORI,
(MADHYA PRADESH)
4. KASHIRAM S/O KHUMAN, AGED ABOUT 27
YE A R S , OCCUPATION: NONE BIJAURA, TEH.
DEORI, SAGAR (MADHYA PRADESH)
5. LALJU @ RAMU S/O KHUMAN HARIJAN, AGED
ABOUT 26 YEARS, OCCUPATION: NONE BIJAURA,
TEH. DEORI, SAGAR (MADHYA PRADESH)
6. BABULAL @ KRISHNA S/O KHUMAN HARIJAN,
AGED ABOUT 25 YEARS, OCCUPATION: NONE
BIJAURA, TEH. DEORI, SAGAR (MADHYA
PRADESH)
7. JAGRANI W/O KHUMAN, AGED ABOUT 70 YEARS,
OCCUPATION: NONE BIJAURA, TEH. DEORI,
SAGAR (MADHYA PRADESH)
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 2/28/2024
7:55:24 PM
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8. MEERABAI D/O KHUMAN W/O RADHE HARIJAN,
AGED ABOUT 40 YEARS, OCCUPATION: NONE
RAJVAS, TEH. RAHLI, SAGAR (MADHYA
PRADESH)
9. BABULAL S/O DAMRU HARIJAN, AGED ABOUT 70
YE A R S , OCCUPATION: NONE BIJAURA, TEH.
DEORI, SAGAR (MADHYA PRADESH)
10. BALIRAM S/O DAMRU HARIJAN, AGED ABOUT 65
YE A R S , OCCUPATION: NONE BIJOURA, TEH.
DEORI, SAGAR (MADHYA PRADESH)
11. MANMOHAN S/O DAMRU HARIJAN, AGED ABOUT
55 YEARS, OCCUPATION: NONE BIJOURA, TEH.
DEORI, SAGAR (MADHYA PRADESH)
12. CHANDOKWARI W/O TANDU, AGED ABOUT 40
YE A R S , OCCUPATION: NONE BIJAURA, TEH.
DEORI, SAGAR (MADHYA PRADESH)
13. SANTOSH S/O CHANDOKWARI, AGED ABOUT 15
YEAR S , OCCUPATION: MINOR THR. MOTHER
RESP. NO. 12 CHANDOKWARI BIJAURA, TEH.
DEORI, SAGAR (MADHYA PRADESH)
14. VIRENDRA S/O CHANDOKWIRI, AGED ABOUT 6
YEAR S , OCCUPATION: MINOR, THR. MOTHER
RESP. NO. 12 CHANDOKWARI BIJAURA, TEH.
DEORI, SAGAR (MADHYA PRADESH)
15. BENIBAI D/O DAMRU, AGED ABOUT 70 YEARS,
OCCUPATION: NONE BIJAURA, TEH. DEORI,
SAGAR (MADHYA PRADESH)
16. RAJJIBAI D/O DAMRU W/O CHHOTE, AGED
ABOUT 50 YEARS, OCCUPATION: NONE PIPARIYA
PATHAK, TEH. DEORI, (MADHYA PRADESH)
17. STATE OF M.P., THR. COLLECTOR, DIST. SAGAR,
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRAMOD SINGH TOMAR- ADVOCATE FOR RESPONDENT NO. 1 )
(BY SHRI OM PRAKASH PATEL - PANEL LAWYER FOR RESPONDENT NO.
17/STATE.
------------------------------------------------------------------------------------------------
RESERVED ON : 15-02-2024
PRONOUNCED ON : 27-02-2024
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 2/28/2024
7:55:24 PM
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This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
JUDGMENT
This Second Appeal is preferred feeling aggrieved by the judgment dated
16-11-2015 in Civil Appeal No. 33-A/2015 by the First Additional District
Judge, Sagar at Camp Deori District Sagar arising out of judgment and decree
dated 21-10-2011 in Civil Suit No. 4-A/2008 by the Civil Judge, Class-II, Deori
District Sagar.
2. The facts in brief are that the plaintiffs/respondent Nos.1 to 3 filed suit
regarding agricultural land comprising Survey No. 92/1 area 1.11 hectare, Suvey
No. 76/1 of area 1.260 hectare situated at village Todri patwari halka No. 55/30
Settlement No. 204 District Sagar for declaration of title and cancellation of sale
deed dated 08-12-2005 in favour of the appellant/defendant No. 6 and
permanent injunction on the ground that the plaintiffs/respondent Nos. 1 to 3
and defendant Nos. 1 to 5/ respondent Nos. 4 to 8 were the members of joint
family and they have joint family property. There was partition between the
family members of the joint family and they were occupying separate lands. It is
said that the father of respondent No. 4 to 6 Khuman has sold the agricultural
lands of his share much earlier and the successors of Khuman have also sold
their lands earlier. They had no properties but by a registered sale deed dated
08-12-2005, the respondent Nos. 4 to 7 have illegally sold the disputed
agricultural lands to the appellant/defendant no.6. They say that as the vendors
i.e. respondent Nos. 4 to 7 were not in possession, therefore, the possession
has not been delivered to the appellant. They further say that the appellant was
trying to forcibly take possession, therefore, filed suit.
3. The appellant/defendant No.6 submitted written statement saying that
he is bonafide purchaser and he is still in possession and therefore, the suit for
declaration and injunction without seeking possession is not maintainable. The
respondent Nos. 4 to 8 also submitted their written statement denying the plaint
allegations. The defendant Nos. 7, 8, 10 to 13 could not file the written
statement therefore, their right to file the written statement was closed by the
trial court. The defendant No.14 admitted the plaint allegations. The defendant
Nos. 9 and 15 did not appear before trial Court therefore, were proceeded ex
parte.
4 . Trial Court framed the four issues and recorded the evidence of
plaintiff/respondent no.1 Halle @ Kashiram (PW-1), Rampi (PW-2), Sibbu
(PW-3) and admitted the documents Ex.P-1 to P-19 on behalf of plaintiffs and
evidence of defendant/appellant Chhote Singh (DW-1), Prahlad Singh (DW-2),
Badri Prasad (DW-3) and admitted the documents Ex.D-1 to D-4.
5. Appreciating the evidence of both parties, Trial Court concluded that
survey No.76 and survey no.92 was in the ownership of Bhawani. Bhawani had
to two sons Damru and Badhai. Sibbu and Khuman are the sons of Badhai and
Laxmi Bai is the daughter of Badhai. All his legal heirs will get 1/6th of share in
the property inherited through Bhawani and also concluded that Sibbu, Khuman
and Laxmi each inherited 1/6th share in the survey no.76 and 92 that comes to
0.26 hectare in survey no.76 and 0.29 hectare in survey no.92. Khuman has
already sold 0.3 hectare area of survey no.92 and 0.3 hectare of area of survey
no.76 by sale deed dated 01.08.2001 (Ex.P-1). The area sold by Khuman is in
excess of his share in the property inherited from Bhawani. It is also concluded
that vide sale deed date 08.09.2005 (Ex.P-2/Ex.D-4), the legal heirs of Khuman
also sold the 0.32 hectare land of survey no.92/1 and thus this sale is without
competence and the sale deed is null and void.
6 . Trial Court also concluded that sale deed (Ex.P-2/Ex.D-4) was
executed without concurrence of co-owners on the ground that the sale is
invalid. Trial Court also concluded in para-25 that land of survey no.76 and 92
is undivided ancestral property of joint Hindu family, so possession of other
co-parcener will be presumed and evidence of Sibbu (PW-3) and Halle (PW-1),
Rampi (PW-3) have no significance that they admitted the possession of
Chhote Singh defendant no.6 and decided the 1/6th share of each plaintiff in the
disputed land and consequently declared the sale deed dated 08.12.2005 as null
and void and also passed decree for partition of the disputed property by metes
and bounds and ordered to send to Collector as per Section 54 of CPC and
also granted decree of permanent injunction. Apex Court affirmed the decree of
Trial Court and dismissed the appeal.
7. This second appeal is preferred proposing substantial questions of
law:-
"(i) Whether when the plaintiffs admit that the appellant
is in possession, the suit only for declaration and
injunction is maintainable?
(ii) Whether when the plaintiffs have not pleaded and
not prayed for determination of the shares of the parties
and for partition whether the courts below can set up a
new case and give a decree for declaration of shares and
partition?
(iii) Whether the findings are perverse?"
8. Perused the record.
9. Plaintiffs in prayer clause sought the relief of setting aside the sale deed
dated 08.12.2005, declaration of title holder of survey no.92/1 area 1.11 hectare
and survey no.76/1 area 1.260 hectare and also prayed for permanent injunction,
cost of the suit and other relief for which the plaintiffs are entitled.
10. Trial Court has cancelled the sale deed date 08-09-2005 executed in
favour of appellant/defendant No.6 Chhote Singh, exeucted by defendant
no.1/respondent no.4 Kashiram, Defendant no.4/respondent no.7 Jagrani,
defendant no.2/respondent no.5 Lalju @ Ramu, defendant no.3/respondent
no.6 Babulal @ Krishna as they have no remaining interest in the ancestral
property of the joint Hindu family property.
11. The calculation of share by Trial Court decided the capacity to
transfer the land by sale deed executed in favour of appellant/respondent no.6.
So, it is not in the nature of setting up a new case by determination of the share
of members of joint Hindu family in the joint family property and in Baboolal
(since ded ) through his LRs Krishnabai wd/o Babulal Sharma and others Vs.
Kalooram s/o Badrilal and others 2012(1) MPLJ 158 in paragraph-18 and
paragraph-15 of the case of Babulal s/o Nandramji Gupta Vs. Hiralala s/o
Roopnarayanji 2012(1) MPLJ 168 does not help the appellant.
1 2 . Counsel for the appellant also referred to Parshavanath Charitable
Trust and Ors. Vs. All India Council for Technical Education and Ano.
2013(3) MPLJ 291 ie. upto page No. 310 and and page referred to paragraph-
33 is on page-304 but, that does not help the appellant.
13. If it is held that they have already sold the property in excess of their
share then further alienation of the property by them is without capacity and on
that point concurrent findings of the Trial Court and First Appellate Court are
based on proper appreciation of oral evidence and interpretation of documents.
If transfer of sale deed (Ex.P-2/D-6) lacks the capacity to transfer then
transferee does not have the right to challenge the relief granted by Trial Court
regarding the share of plaintiffs inter-se and if appellant/defedant no.6 has no
right on the strength of Ex.P-2/D-6 then he has no right to question further relief
granted by Trial Court because those reliefs are covered under 'any other relief
clause'.
14. No substantial question of law as proposed is made out. Hence this
Second Appeal is not fit to be admitted for final hearing and hence, it is
dismissed in limine.
(GAJENDRA SINGH)
JUDGE
PG
