Smt.Anjum Mazid Khan vs State Of M.P. Thru. Collector Bhopal
2024 Latest Caselaw 12283 MP

Madhya Pradesh High Court

Smt.Anjum Mazid Khan vs State Of M.P. Thru. Collector Bhopal on 2 May, 2024

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

       IN THE HIGH COURT OF MADHYA PRADESH
                       AT JABALPUR

                          BEFORE
           HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                     ON THE 2nd OF MAY, 2024

                     FIRST APPEAL No. 2 of 1998

BETWEEN:-

1.    SMT. ANJUM MAZID KHAN (DIED) THR LRS.

1A.   ABDUL MAJID, AGED ABOUT 77 YEARS, S/O
      SHRI ABDUL BASIT.

1B.   MUNIR MAJID, AGED ABOUT 38 YEARS, S/O
      SHRI ABDUL MAJID.

1C.   SALMA SALEEM, AGED ABOUT 41 YEARS, W/O
      SALEEM D/O SHRI ABDUL MAID.

      [No. 2 and 3 THROUGH GENERAL POWER
      ATTORNEY HOLDER OF THEIR FATHER SHRI
      ABDUL MAJID, S/O SHRI ABDUL BASIT]

      (ALL R/O 162, ASHOK VIHAR COLONY, NEW
      HORIZON     PUBLIC    SCHOOL, ASHOKA
      GARDEN, BHOPAL (M.P.)

                                              .........APPELLANTS

(BY SHRI ISHTEYAQ HUSSAIN - ADVOCATE)

AND

      STATE OF MADHYA PRADESH THROUGH
      COLLECTOR,    BHOPAL     (MADHYA
      PRADESH)

                                                  ..... RESPONDENT

1
 (BY SHRI MUKUND AGRAWAL - GOVERNMENT ADVOCATE)

------------------------------------------------------------------------------------------------
       This first appeal coming on for hearing this day, the court passed
the following:

                                       JUDGMENT

This first appeal is filed by the original plaintiff/appellant-Smt. Anjum Mazid Khan (now dead, through LRs) challenging judgment and decree dtd.25.09.1997 passed by 8 th Additional District Judge, Bhopal in RCS No.22-A/1996 whereby plaintiff's suit for declaration of title, permanent injunction and compensation has been dismissed.

2. Facts in short are that plaintiff instituted the suit with the allegations that plaintiff is owner and in possession of the plot (admeasuring 1168 sq.ft.) purchased by her vide registered sale deed dtd. 29.08.1983 (Ex.P/2) from Shri Tajwar Mohd. Khan S/o Rashid Mohd. Khan. It is alleged in the plaint that Rashid Mohd. Khan received some property including the plot in question from Nawab Rafiqullah by way of gift deed dtd.13.01.1947 (registered on 20.01.1947). It is also alleged that in the registered sale deed dtd.29.08.1983 Khasra number of the plot in question was mentioned as 1873/1382 which was corrected later on vide correction deed dtd. 03.08.1987 (Ex.P/3). It is alleged that State Government has no nexus with the land of Khasra No.1873/1383, which is private property. It is alleged that despite granting permission by Municipal Corporation for raising construction, the defendant restrained the plaintiff from raising construction alleging the disputed land to be Government land, which

constrained the plaintiff to institute the suit. With these allegations the suit was filed.

3. By filing written statement the defendant-State denied the plaint allegations and contended that defendant/State is owner and in possession of the suit plot and Tajwar Mohd. had no right to execute the sale deed. It is also contended that no survey number is mentioned in the gift deed dtd.20.01.1947, which is also a forged and fabricated document. It is also contended that Rashid Mohd. Khan or Tajwar Mohd. never remained in possession of the land. On inter alia contentions the suit was prayed to be dismissed.

4. On the basis of pleadings, trial court framed as many as 12 issues and recorded evidence of the parties. In support of her case, the plaintiff examined her husband Abdul Mazid (PW-1) and produced documentary evidence (Ex.P/1 to P/14) including the registered sale deed dtd.29.08.1983 (Ex.P/2). In rebuttal the defendant examined Daryab Singh Solanki (DW-1) and produced documentary evidence Ex.D/1 and D/2.

5. Trial court on the basis of material available on record held that the plaintiff has not been able to prove her title over the plot in question and dismissed the suit vide impugned judgment and decree dtd. 25.09.1997, against which instant first appeal has been preferred by the plaintiff.

6. During pendency of first appeal, the appellants (LRs of original plaintiff) filed two applications under Order 41 Rule 27 CPC (IA No.9024/2007 and IA No.9580/2010). As original documents were not filed along with these two applications, therefore, the appellants filed

another application under Order 41 Rule 27 CPC (IA No.15005/2023). All these three applications have been replied by the respondent/defendant taking several objections. At the outset, learned counsel in view of filing of third application under Order 41 Rule 27 CPC (IA No.15005/2023) prayed for withdrawal of previous two applications (IA No.9024/2007 and IA No.9580/2010). As such both these applications are permitted to be withdrawn and dismissed as withdrawn.

7. Learned counsel for the appellants/plaintiff submits that the disputed plot is a part of land Khasra No.1873/1383, which is clear from documents (Ex.P/2 and P/3) and in the light of averments made in written statement as well as in the light of Khasra (Ex.D/2) filed by defendant-State, it is also clear that State Government is claiming right over the land of Khasra No.1382. Meaning thereby the defendant/State has no nexus with the land of Khasra No. 1873/1383. Learned counsel submits that although registered sale deed dtd. 29.08.1983 and correction deed dtd.03.08.1987 (Ex.P/2 and Ex.P/3) have been filed with a view to prove title over the land in question, but in absence of proof of title of plaintiff's predecessors and for want of gift deed dtd.20.01.1947, trial court has dismissed the suit.

8. By placing reliance on the judgment and decree dtd. 24.01.2009 passed by 3rd Additional Judge to the court of 1st Additional District Judge, Bhopal in civil suit No.467-A/2008 (Smt. Dr. Shalini Agrawal and anr. vs. State of Madhya Pradesh and anr.) learned counsel submits that in this case also land of survey No.1873/1383 was involved, which on the basis of gift deed dtd. 13.01.1947 (20.01.1947)

was found belonging to Rashid Mohd. He also relied upon certified copy of letter dtd. 24.06.2009 of SDO, Tahsil Huzur, Distt. Bhopal and order dtd. 09.07.2009 of Collector, Distt. Bhopal filed along with the application under Order 41 Rule 27 CPC to contend that the land of Khasra No.1873/1383 belonged to Nawab Rafiqullah and Rashid Mohd. and the plaintiff of suit bearing RCS No.467-A/2008 (Dr. Shalini Agrawal and anr.) received the property from Rashid Mohd. Khan himself. With these submissions learned counsel submits that although previously the aforesaid documents were not filed, but the same being relevant and necessary for deciding real controversy involved in the matter and being related to public record, their veracity is not doubtful and if these documents are taken into consideration, there is every possibility of decreeing the suit of the plaintiff. With these submissions learned counsel submits that application under Order 41 Rule 27 CPC (IA No.15005/2023) be allowed and matter may be remanded for decision of civil suit afresh in the light of aforesaid documents.

9. Learned counsel appearing for respondent/State supports the impugned judgment and decree passed by trial court and prays for dismissal of first appeal. He submits that the plaintiff/appellants have not given any sufficient reason for not filing the additional documents before trial court or immediately after filing of the appeal. He submits that appeal was filed in the year 1998 whereas first and second applications under Order 41 Rule 27 CPC were filed in the year 2007 and 2010 and now after withdrawing said two applications, another application under Order 41 Rule 27 CPC (IA No.15005/2023) has

been filed in the year 2023. Learned counsel further submits that with a view to fill up the lacuna in the case, application under Order 41 Rule 27 CPC cannot be allowed. Learned counsel further submits that the documents filed along with the application are not relevant/related to the dispute involved in the present case. In support of his submissions, learned counsel placed reliance on the decisions in the case of Haryana State Industrial Development Corporation vs. M/s. Cork Manufacturing Co. AIR 2008 SC 56 and Pramod Kumar Jain and Ors. vs. Kushum Lashkari and Ors. 2020 (2) MPLJ 357 and prays for dismissal of first appeal.

10. Heard learned counsel for the parties and perused the record.

11. Following points for determination are arising in the present appeal :

(i) Whether there being no dispute of title in respect of land survey no. 1873/1383, trial Court has erred in recording finding of title against the plaintiff ?

(ii) Whether the dispute of survey numbers could have been decided without appointing commissioner to demarcate the land ?

(iii) Whether on the facts and in the circumstances of the case, application under order 41 Rule 27 CPC (IA 15005/2023) for producing additional evidence in respect of certified copies of public record, can be allowed ?

12. The plaintiff has come with the case that she is owner and in possession of the plot admeasuring 1168 sq.ft. purchased by her vide

registered sale deed dtd. 29.08.1983 (Ex.P/2) from Tajwar Mohd. Khan s/o Rashid Mohd. Khan. It is also contended that in the sale deed Khasra number was wrongly mentioned as 1873/1382, therefore, by way of correction deed dtd. 03.08.1987 (Ex.P/3) the same was corrected as 1873/1383, which does not belong to the State Government. With a view to prove acquisition of title over disputed plot, the plaintiff has filed original deeds (Ex.P/2 and Ex.P/3) but did not file the document of title of her predecessor-in-title i.e. Rashid Khan, who is said to have received property from Nawab Rafiqullah by way of gift deed dtd. 13.01.1947 (registered on 20.01.1947). While deciding issue in respect of ownership of plaintiff, trial court has observed that the plaintiff has not filed any document in respect of title of Tajwar Mohd. Khan or Rashid Mohd. Khan and dismissed the suit.

13. Aforesaid document relating to title of Tajwar Mohd. Khan/Rashid Mohd. Khan i.e. the gift deed dtd.13.01.1947 has been placed before this Court by way of application under Order 41 Rule 27 CPC. Along with registered gift deed, the plaintiff has also filed other documents i.e. copy of plaint and judgment dtd. 24.01.2009 passed thereon, which mentions about gift deed dtd.13.01.1947 and Khasra No.1873/1383. Other documents filed before this Court are relating to proceedings, remained pending before SDO and Collector, Bhopal. Some documents relating to grant of permission of construction given by Municipal Corporation, Bhopal have also been filed along with application under Order 41 Rule 27 CPC. All these documents are certified copies/true copies of the public record of the

possession of respondent-State, veracity of which has not been disputed by filing reply and only technical objections including the objection of delay, have been taken.

14. In the present case the State Government is not claiming any right in respect of land of Khasra No.1873/1383 but is claiming right over the land of Khasra No.1382. As such in the present case, in addition to dispute of title of plaintiff over the land of Khasra no.1873/1383, there is dispute about location of the land also and nothing is there on record to show that such dispute of survey numbers was ever decided by trial Court or any other revenue authority. As has been held by Hon'ble Supreme Court in the case of Shreepat Vs. Rajendra Prasad and others 2000(6) Supreme 389, dispute of survey numbers cannot be decided without appointment of commissioner.

15. In view of the aforesaid discussion and in the light of findings recorded by trial Court, in my considered opinion the documents filed before this Court along with application under Order 41 Rule 27 CPC (IA 15005/2023) having material bearing over the matter, deserve to be considered in additional evidence. As such the application under Order 41 Rule 27 CPC stands allowed. Needless to mention here that the defendant/State shall be at liberty to file documentary evidence in rebuttal before trial court within reasonable time i.e. without inordinate delay.

16. At the same time it is pertinent to mention here that in the light of aforesaid factual scenario, the decisions relied upon by learned counsel for the State, being distinguishable are not being followed.

17. With the aforesaid, instant first appeal is allowed and disposed off and matter is remanded to trial court for decision of civil suit afresh in accordance with law and procedure after giving due opportunity of hearing including adducing of oral evidence to the parties.

18. Registry is directed to remit the matter to concerning trial court along with the documents filed before this Court by way of application under Order 41 Rule 27 CPC (IA 15005/2023) for adjudication of the civil suit afresh.

19. Misc. application(s), pending if any, shall stand closed.

(DWARKA DHISH BANSAL) JUDGE

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