Madhya Pradesh High Court
Lakshya Grah Nirman Sahkari Samiti ... vs Shri Shailendra Bahadur on 27 February, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 27th OF FEBUARY, 2024
SECOND APPEAL No. 1311 of 2022
BETWEEN:-
LAKSHYA GRAH NIRMAN SAHKARI
SAMITI MARYADIT REGD .NO. DRB547 1991
THROUGH THE PRESIDENT PAKSH
KUMAR KHAMBRA SON OF SHRI
NARAYAN DAS AGE ABOUT 58 YEARS
RESIDENT OF MIG B-17, B SECTOR
INDRAPURI BHOPAL (MADHYA PRADESH)
.....APPELLANT
(BY SHRI N.S. RUPRAH - ADVCOATE )
AND
1. SHRI SHAILENDRA BAHADUR S/O SHRI
SHER BAHADUR R/O MUKHTYAR GANJ
DISTRICT SATNA (MADHYA PRADESH)
2. SHRI SHER BAHADUR S/O SHRI LAL
SHIV PRASAD SINGH R/O MUKHTYAR
GANJ DISTRICT SATNA (MADHYA
PRADESH)
3. DISTRICT COLLECTOR (SHRIMAN
JILADISH MAHODAYA), MADHYA
PRADESH SHASAN, OLD SECRETARIAT
2
BHOPAL (MADHYA PRADESH)
4. SMT. HEMKUMAR PRAJAPATI W/O
SHRI NARENDRA PRAJAPATI, AGE ADULT
R/O 1 MLA QUARTERS, TT NAGAR,
BHOPAL (MADHYA PRADESH)
5. ANIL BOOLCHANDANI S/O SHRI
SUKHDEV BOOLCHANDANI AGE ADULT
R/O MANSAROVAR COMPLEX, NEAR
HABIBGANJ RAILWAY STATION BHOPAL
(MADHYA PRADESH)
6. PUNJAB NATIONAL BANK, THROUGH
BRANCH MANAGER MARWADI ROAD,
BHOPAL (MADHYA PRADESH)
..... RESPONDENTS
(BY SHRI TEEKARAM KURMI - PANEL LAWYER FOR THE STATE )
________________________________________________________________
Reserved on :- 22/1/2024
Pronounced on :- 27.2.2024
________________________________________________________________
This Second appeal having been heard and reserved for Judgment,
coming for pronouncement this day, the court passed the following:
JUDGMENT
1. The Appellant/plaintiff has filed this Second Appeal against the Judgment
and Decree dated 21st February, 2022 passed by the learned Vth District Judge,
Bhopal in R.C.A.No.55-A/2019 (Lakshya Grih Nirman Sahkari Samiti Vs. Shri
Shailendra Bahadur and others), whereby the appeal was dismissed and Decree
of the trial court in C.S.No.512-A/2009 Judgment dated 28.8.2018 was
confirmed, whereby the suit of the plaintiff was dismissed.
2. In brief, the case of the plaintiff was that they have filed a suit for
declaration and injunction regarding Khasra No.23/294 Village Amaravat
Khurd, Tehsil Huzur Area measuring 1.95 Acre, which was purchased by them
by registered Sale Deed dated 10th August, 1992. The Sale Deed was executed
by the Power of Attorney Holder of Laljiram i.e. Ram Narayan Parmar. It was
also prayed in the Civil Suit that two Sale Deeds dated 22nd April, 1995, which
were executed by Laljiram to respondent No.2 Sher Bahadur and Smt. Savitri
Bai, total area of both Sale Deeds, measuring 82 Decimal, which was part of the
land purchased by the appellant, be declared null and void along with mutation
order of the same.
3. It is submitted that by notice dated 06.10.2009, Respondent Nos.1 and 2
were trying to sell 82 decimal land of suit property claiming to be owner on the
basis of sale deed dated 22.04.1995 executed by Laljiram for 41 decimal each to
respondent No.2 and 4 i.e. Sher Bahadur and Smt. Savitri Devi W/o Respondent
No.2. In Para 4 of appeal memo, it is mentioned that 41 acres land belonging to
Respondent No.2 was sold to Respondent No.4 on 08.02.2010 which needs to
be cancelled and declared null and void.
4. It is submitted that Appellant produced P.W.-1 (Paksh Khambra) , P.W.-2
Bhaskar Rao, P.W.-3 Chandesh Kumar, who supported the Suit of the plaintiff
and no rebuttal evidence was produced by other party. It was further submitted
by the appellant that the trial court held that Khasra No.23/294 measuring 1.95
Acre, Village Amravat Khurd was of plaintiff's ownership and possession, but
it did not hold that Sale Deeds dated 22.4.1995 were void. Respondent Nos.1
and 2 had also filed a counter claim, by which they challenged the Sale Deed
dated 10th August, 1992, but on 2nd August, 2010 counter claim was withdrawn.
5. In appeal proceedings, appellant filed application under Order 41, Rule
27 CPC dated 22.11.2021 and filed a Sale Deed dated 22.04.1995 praying that
in the Sale Deed suit property is involved and further requested by filing
application under Order 1 Rule 10 CPC dated 21.9.2021 that Ashish Saxena be
made a party, along with a second application dated 10.11.2021 under Order 41,
Rule 27 which was also filed with a prayer to take Sale Deed dated 31.5.2021
on record, submitting that Sale Deeds were not previously in possession of the
plaintiff.
6. The First appellate Court dismissed both the applications under order 41
Rule 27 C.P.C. and order 1 Rule 10 C.P.C. holding that it is not shown that land
in sale deeds are part of the suit property measuring 1.95 Acre of sale deed
dated 10.8.1992 and no proper reason of delay is shown and there was
additional land available with seller after execution of sale deed dated
10.8.1992.
7. In the facts and circumstances of the case, the question arises as
submitted by learned appellant counsel that in spite of holding by both the
learned Courts that regarding suit property measuring 1.95 Acre plaintiff is
owner but in spite of that did not grant him a Decree for declaration, permanent
injunction and possession and in spite of no rebuttal evidence to hold that 82
Decimal land was not part of sale deed dated 22nd April, 1995 and ultimately
therefore part of sale deed dated 10.8.1992 in ownership of plaintiff, still then
sale deeds dated 22.04.1995 were not declared as void.
8. This Court has heard the learned counsel for the appellant-Society Shri
N.S. Ruprah whether there are any substantial questions of law on which appeal
can be admitted.
9. On perusal of the record of the trial court, it is seen that in the Judgment
dated 28.8.2018, Defendant Nos.3 and 4 are ex-parte, and name of the
Defendant No.5 has been deleted from the case vide Order Sheet dated
16.9.2015 on the ground that that no relief is claimed from Defendant No.5 Anil
Boolchandani. Civil Suit was filed on 12th October, 2009, seeking relief against
defendant Nos.1, 2 and 4.
10. In the plaint before the trial court Plaintiff Society pleaded that they had
purchased Khasra No. 23/294 area 1.95 Acre on 10.8.1992 by registered sale
deed, in the relief clause sought declaration and injunction but subsequently
they have pleaded for cancellation of sale deed dated 22.04.1995 whereas in the
Suit there was no such specific pleading.
11. On perusal of the plaint, it is seen that in Village Amaravat Khurd in
Khasra No.23/294 total area 4.02 Acre, only 1.95 Acre land was purchased. It
is further mentioned in the Sale Deed that land is in Municipal Corporation
limit, but 10 kilometers away from Bhopal city, and from the main road 4
kilometers inside. On the second page of the Sale Deed it is mentioned that on
the east side of the land sold there is a land of other farmers, on western side
there is a government road, in the north land of the seller and in south land of
other farmers.
12. Plaintiff in cross-examination had admitted that he has filed the suit as
President of the Society, but on the date of filing the Suit i.e. 12th October, 2009,
he was the President of the Society and authorized to file suit is not proved in
absence of relevant documents as held by Trial Court in Para 13 of Judgment.
He further admitted in Para 12 that when the Sale Deed was executed, Laljiram
was alive, in fact he was alive till year 2006, but in the Civil Suit his Legal
Representatives have not been made a party, plaintiff further admitted that out
of Khasra No.23/294 land, he himself has purchased land measuring 0.38 Acre,
further in Para 13 has admitted that in the year 1992, mutation proceedings were
not started. It was decided that when the land is declared as residential land
after diversion, then they would apply for the mutation proceeding. They did
not get the land demarcated. They did not get the land of the Defendant Nos.1
and 2 demarcated, further admitted in Para 18 that he did not implead the Legal
Representatives of Seller and Power of Attorney Holder of the Suit land as party
in the Suit.
13. Plaintiff Witness No.2 Bhaskar Rao Vankhede has produced electoral roll
and in Para 9 had admitted as below:-
^^;g dguk lgh gS fd eSus o"kZ 1993 esa lgdkjh vf/kfu;e ,oa 'kkldh;
lsok fu;eksa ds fo:) viuk 'kiFki= y{; x`g fuekZ.k lgdkjh laLFkk esa nsrs gq,
laLFkk dh lnL;rk izkIr dh FkhA^ dafMdk ^ & 11 esa Lohdkj fd;k fd eq[;
ijh{k.k dk 'kiFki= [kkEcjk }kjk rS;kj fd;k x;kA^^
14. Plaintiff witness No.3 Chandesh Kumar in Para 9 of cross-examination
has stated that he does not know that who is defendant in this case, he does not
know the disputed Khasra Number and area.
15. In the trial court, plaintiff failed to produce the Sale Deed in favour of
defendant. The learned trial court in Para 13 has mentioned that no proper
document has been filed by the plaintiff to show that he can prosecute the Civil
Suit and on this ground and on the ground of lack of necessary party in the Suit,
has dismissed the suit.
16. In the first appellate court along with the application under order 41 rule
27 CPC application, copy of Sale Deed dated 22nd April, 1995 has been filed.
On perusal of the Sale Deed it does not seem that land mentioned in Sale Deed
dated 22.4.1995 is part of the property, which was purchased by the plaintiff
Society, because there is no Patwari map and no demarcation report. Similarly,
the land which has been sold by Sher Bahadur to Ashish Saxena, in that it is
mentioned that out of the area 4.02 Acre, only 0.4075 Acre has been sold.
Therefore, due to indefinite boundaries it cannot be said that this land is part of
the land sold to the plaintiff. Similarly, Sale Deed dated 31st May, 2021 from
Khasra No.23/294/M-, 0.1650 Hectare land has been sold by Sher Bahadur -
respondent No.2 to Ashish Saxena. Again the boundaries mentioned of this sale
deed do not match with the boundaries of Ex.P/2 Sale Deed.
17. The learned first appellate court in Appeal No.55-A/2019 has considered
all aspects by raising issue Nos.1 and 5 and has held that since Ashish Saxena is
not a party and Sale Deed was not on record and boundaries do not match,
therefore has assigned reasons regarding sale deeds for not taking them on
record, Court has given proper reasons in Para 12 to 19 which need not be
repeated here and in considered view of this Court also due to lack of proper
and necessary parties and demarcation report and patwari map suit could not
have been allowed especially when right to file the suit by the plaintiff as
President of plaintiff Society in the trial Court was also not proved. Therefore,
in the facts and circumstances of the case, there is no substantial question of
law, which arise in this case, on which this appeal can be admitted, in fact suit
for partition as main relief could have been if so advised filed and not
simpliciter Suit for declaration and injunction. Therefore, this second appeal is
dismissed having no substantial question of law.
(AVANINDRA KUMAR SINGH)
JUDGE
Nd
NIDHI DAVE
2024.02.28 14:20:05 +05'30'
