Madhya Pradesh High Court

Rajendra Prasad Kasera (Deceased) ... vs Dhapubai W/O Late Shri Ramvilas Kasera ... on 2 May, 2024

Author: Vivek Rusia

Bench: Vivek Rusia

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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA

SECOND APPEAL No. 2000 of 2023

BETWEEN:-
RAJENDRA PRASAD KASERA (DECEASED) THROUGH LRS. SMT.
SHANTA BAI W/O RAJENDRA PRASAD KASERA, AGED ABOUT 78
1.
YEARS, OCCUPATION: HOUSEWIFE R/O 53, AKHADA ROAD DISTT.
DEWAS (MADHYA PRADESH)
RAJENDRA PRASAD KASERA (DECEASED) THROUGH LRS. SANJAY
S/O RAJENDRA PRASAD KASERA, AGED ABOUT 49 YEARS,
2.
OCCUPATION: AGRICULTURE R/O 53, AKHADA ROAD DISTT. DEWAS
(MADHYA PRADESH)
RAJENDRA PRASAD KASERA (DECEASED) THROUGH LRS. ANIL S/O
RAJENDRA PRASAD KASERA, AGED ABOUT 45 YEARS, OCCUPATION:
3.
AGRICULTURE R/O 53, AKHADA ROAD DISTT. DEWAS (MADHYA
PRADESH)
RAJENDRA PRASAD KASERA (DECEASED) THROUGH LRS. ANITA
W/O LATE SATYANARAYAN KASERA, AGED ABOUT 52 YEARS,
4.
OCCUPATION: HOUSEWIFE R/O 53, AKHADA ROAD DISTT. DEWAS
(MADHYA PRADESH)
RAJENDRA PRASAD KASERA (DECEASED) THROUGH LRS. HARSH
S/O LATE SATYANARAYAN KASERA, AGED ABOUT 25 YEARS,
5.
OCCUPATION: SERVICE R/O 53, AKHADA ROAD DISTT. DEWAS
(MADHYA PRADESH)
RAJENDRA PRASAD KASERA (DECEASED) THROUGH LRS. DISHA D/O
LATE SATYANARAYAN KASERA, AGED ABOUT 21 YEARS,
6.
OCCUPATION: STUDENT R/O 53, AKHADA ROAD DISTT. DEWAS
(MADHYA PRADESH)
RAJENDRA PRASAD KASERA (DECEASED) THROUGH LRS. MAMTA
W/O MAHENDRA KASERA, AGED ABOUT 55 YEARS, OCCUPATION:
7.
HOUSEWIFE R/O 53, AKHADA ROAD DISTT. DEWAS (MADHYA
PRADESH)
RAJENDRA PRASAD KASERA (DECEASED) THROUGH LRS. RANI W/O
MANISH KASERA, AGED ABOUT 48 YEARS, OCCUPATION:
8.
HOUSEWIFE R/O 53, AKHADA ROAD DISTT. DEWAS (MADHYA
PRADESH)

Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 02-05-2024
16:39:38
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.....APPELLANT
(BY SHRI RAVINDRA SINGH CHHABRA, SENIOR ADVOCATE ASSISTED BY
SHRI SHREYANSH JAIN, ADVOCATE)

AND
KUSUM KASERA W/O SHRI JAGDISH KASERA, AGED ABOUT 63
1. YEARS, OCCUPATION: HOUSEWIFE R/O SADAR BAZAR DISTT. GUNA
(MADHYA PRADESH)
MANJU DEVI W/O DINESH KASERA, AGED ABOUT 63 YEARS,
2. OCCUPATION: HOUSEWIFE JANTA COLONY BEHIND TRIPATHI
SCHOOL BADA GANPATI INDORE (MADHYA PRADESH)
ANITA KASERA W/O RAJENDRA KASERA, AGED ABOUT 55 YEARS,
3. OCCUPATION: HOUSEWIFE JINSI HAT MAIDAN INDORE (MADHYA
PRADESH)
SATYANARAYAN S/O LATE SHRI RAMVILAS KASERA, AGED ABOUT
4. 67 YEARS, OCCUPATION: AGRICULTURE 52 KASERA BAZAR RATLAM
(MADHYA PRADESH)
VIJAY S/O LATE SHRI RAMVILAS KASERA, AGED ABOUT 55 YEARS,
5. OCCUPATION: AGRICULTURE 52 KASERA BAZAR RATLAM (MADHYA
PRADESH)
GOPAL S/O LATE SHRI RAMVILAS KASERA, AGED ABOUT 44 YEARS,
6. OCCUPATION: BUSINESS 52 KASERA BAZAR RATLAM (MADHYA
PRADESH)
NARAYANIBAI SINCE DECD. THR LRS RAJENDRA KUMAR S/O LATE
7. NANDRAM KASERA, AGED ABOUT 59 YEARS, OCCUPATION:
BUSINESS 16/17 KASERA BAZAR RATLAM (MADHYA PRADESH)
NARAYANIBAI SINCE DECD. THR LRS MOHAN S/O LATE NANDRAM
8. KASERA, AGED ABOUT 57 YEARS, OCCUPATION: BUSINESS 16/17
KASERA BAZAR RATLAM (MADHYA PRADESH)
NARAYANIBAI SINCE DECD. THR LRS SHIV PRAKASH S/O LATE
9. NANDRAM KASERA, AGED ABOUT 55 YEARS, OCCUPATION:
BUSINESS 16/17 KASERA BAZAR RATLAM (MADHYA PRADESH)
NARAYANIBAI SINCE DECD. THR LRS SHIV PRAKASH S/O LATE
10. NANDRAM KASERA, AGED ABOUT 55 YEARS, OCCUPATION:
BUSINESS 16/17 KASERA BAZAR RATLAM (MADHYA PRADESH)
NARAYANIBAI SINCE DECD. THR LRS SANJAY S/O LATE NANDRAM
11. KASERA, AGED ABOUT 53 YEARS, OCCUPATION: BUSINESS 16/17
KASERA BAZAR RATLAM (MADHYA PRADESH)
12. NARAYANIBAI SINCE DECD. THR LRS RAJESH S/O LATE NANDRAM
KASERA, AGED ABOUT 50 YEARS, OCCUPATION: BUSINESS 16/17

Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 02-05-2024
16:39:38
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KASERA BAZAR RATLAM (MADHYA PRADESH)
NARAYANIBAI SINCE DECD. THR LRS SHEETAL S/O LATE
13. NANDRAM KASERA, AGED ABOUT 47 YEARS, OCCUPATION:
BUSINESS 16/17 KASERA BAZAR RATLAM (MADHYA PRADESH)
NARAYANIBAI SINCE DECD. THR LRS SHAKUNTALA DEVI W/O
14. LATE PAWAN KASERA, AGED ABOUT 67 YEARS, OCCUPATION:
HOUSEWIFE 16/17 KASERA BAZAR RATLAM (MADHYA PRADESH)
NARAYANIBAI SINCE DECD. THR LRS SUNITA W/O
RAMESHCHANDRA KASERA, AGED ABOUT 55 YEARS, OCCUPATION:
15.
HOUSEWIFE MG ROAD MALHARGANJ CHACHA CHOWK INDORE
(MADHYA PRADESH)
STATE OF M.P. THROUGH COLLECTOR DEWAS (MADHYA
16.
PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1 TO 3 BY SHRI AMIT TATKE, ADVOCATE)

SECOND APPEAL No. 2001 of 2023

Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 02-05-2024
16:39:38
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LATE SATYARANAYAN KASERA, AGED ABOUT 21 YEARS,
OCCUPATION: STUDENT R/O 53, AKHADA ROAD DISTT. DEWAS
(MADHYA PRADESH)
RAJENDRA PRASAD KASERA (DECEASED) THROUGH LRS. MAMTA
W/O MAHENDRA KASERA, AGED ABOUT 55 YEARS, OCCUPATION:
7.
HOUSEWIFE R/O 53, AKHADA ROAD DISTT. DEWAS (MADHYA
PRADESH)
RAJENDRA PRASAD KASERA (DECEASED) THROUGH LRS. RANI W/O
MANISH KASERA, AGED ABOUT 48 YEARS, OCCUPATION:
8.
HOUSEWIFE R/O 53, AKHADA ROAD DISTT. DEWAS (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI RAVINDRA SINGH CHHABRA, SENIOR ADVOCATE ASSISTED BY
SHRI SHREYANSH JAIN, ADVOCATE)

AND
DHAPUBAI W/O LATE SHRI RAMVILAS KASERA (DECEASED)
THROUGH HER LRS. SATYANARAYAN S/O SHRI RAMVILAS KASERA,
1.
AGED ABOUT 67 YEARS, OCCUPATION: AGRICULTURE R/O 52
KASREA BAZAR RATLAM (MADHYA PRADESH)
DHAPUBAI W/O LATE SHRI RAMVILAS KASERA (DECEASED)
THROUGH HER LRS. VIJAY S/O LATE SHRI RAMVILAS KASERA,
2.
AGED ABOUT 55 YEARS, OCCUPATION: AGRICULTURE 52 KASERA
BAZAR RATLAM (MADHYA PRADESH)
DHAPUBAI W/O LATE SHRI RAMVILAS KASERA (DECEASED)
THROUGH HER LRS. GOPAL S/O LATE SHRI RAMVILAS KASERA,
3.
AGED ABOUT 44 YEARS, OCCUPATION: BUSINESS 52 KASERA
BAZAR RATLAM (MADHYA PRADESH)
KUSUM KASERA W/O JAGDISH KASERA, AGED ABOUT 63 YEARS,
4. OCCUPATION: HOUSEWIFE SADAR BAZAR GUNA (MADHYA
PRADESH)
MANJU DEVI W/O DINESH KASERA, AGED ABOUT 63 YEARS,
5. OCCUPATION: HOUSEWIFE JANTA COLONY BEHIND TRIPATHI
SCHOOL BADA GANPATI INDORE (MADHYA PRADESH)
ANITA KASERA W/O RAJENDRA KASERA, AGED ABOUT 55 YEARS,
6. OCCUPATION: HOUSEWIFE JINSI HAT MAIDAN INDORE (MADHYA
PRADESH)
NARAYANIBAI SINCE DECD. THR LRS. RAJENDRA KUMAR S/O LATE
7. NANDRAM KASERA, AGED ABOUT 59 YEARS, OCCUPATION:
BUSINESS 16/17 KASERA BAZAR RATLAM (MADHYA PRADESH)
8. NARAYANIBAI SINCE DECD. THR LRS. MOHAN S/O LATE NANDRAM
KASERA, AGED ABOUT 57 YEARS, OCCUPATION: BUSINESS 16/17

Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 02-05-2024
16:39:38
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KASERA BAZAR RATLAM (MADHYA PRADESH)
NARAYANIBAI SINCE DECD. THR LRS. SHIV PRAKASH S/O LATE
9. NANDRAM KASERA, AGED ABOUT 55 YEARS, OCCUPATION:
BUSINESS 16/17 KASERA BAZAR RATLAM (MADHYA PRADESH)
NARAYANIBAI SINCE DECD. THR LRS. SANJAY S/O LATE NANDRAM
10. KASERA, AGED ABOUT 53 YEARS, OCCUPATION: BUSINESS 16/17
KASERA BAZAR RATLAM (MADHYA PRADESH)
NARAYANIBAI SINCE DECD. THR LRS. RAJESH S/O LATE NANDRAM
11. KASERA, AGED ABOUT 50 YEARS, OCCUPATION: BUSINESS 16/17
KASERA BAZAR RATLAM (MADHYA PRADESH)
NARAYANIBAI SINCE DECD. THR LRS. SHEETAL S/O LATE
12. NANDRAM KASERA, AGED ABOUT 47 YEARS, OCCUPATION:
BUSINESS 16/17 KASERA BAZAR RATLAM (MADHYA PRADESH)
NARAYANIBAI SINCE DECD. THR LRS. SHAKUNTALA DEVI W/O
13. LATE PAWAN KASERA, AGED ABOUT 67 YEARS, OCCUPATION:
HOUSEWIFE 16/17 KASERA BAZAR RATLAM (MADHYA PRADESH)
SUNITA W/O RAMESHCHANDRA KASERA, AGED ABOUT 55 YEARS,
14. OCCUPATION: HOUSEWIFE MG ROAD MALHARGANJ CHACHA
CHOWK INDORE (MADHYA PRADESH)
15. STATE OF MP THROUGH COLLECTOR DEWAS (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.4 TO 6 BY SHRI AMIT TATKE, ADVOCATE)
Reserved on : 23rd April, 2024
Delivered on : 02nd May, 2024
These appeals having been heard and reserved for order coming
on for pronouncement this day, the court pronounced the following:
ORDER

Regard being had to the similitude in the controversy involved in the present case, with the joint request of the parties, these Second Appeals are finally heard and decided by this common order. Facts of Second Appeal No.2000 of 2023 are narrated hereunder.

01. The appellants/plaintiffs have filed the present appeal under Section 100 of the Code of Civil Procedure, 1908 challenging the judgment dated 31.07.2023 passed by the First District Judge, Dewas,

whereby the judgment and decree dated 12.10.2021 passed by the VII Civil Judge, Class - I, Junior Divison, Dewas in favour of the plaintiffs has been reversed.

02. Facts of the case in short are as under:-

2.1. Plaintiff - Rajendra Prasad (now dead represented through legal heirs) filed a suit against Dhapu Bai (now dead) and others for declaration, partition and possession of 75% of the share in the land bearing Survey Nos.174 area 2.330 hectares, 177 area 0.200 hectare, 175 area 0.080 hectare, total area 2.610 hectare, situated at Village -

Nagukhedi, Tehsil & District - Dewas (hereinafter referred as suit land). 2.2. According to the plaintiff, he entered into an agreement to purchase 10 bighas of land of Survey No.18, area 13.29 acres from Gendalal & Bhagirath in Rs.60,000/- on 11.05.1981. His brother-in-law (wife's brother) namely late Ramvilas and late Nandram came to know about the said deal, approached the plaintiff and showed a willingness to purchase the land jointly with the plaintiff. Because of this close relationship and faith in them, the plaintiff purchased the land with the contribution of Rs.45,000/- and reaming 25% i.e. Rs.15,000/- was paid was Ramvilas & Nandram. Accordingly, two sale deeds were executed for 4.37 acres and 1.87 acres in total 10 bighas in the name of Ramvilas & Nandram.

2.3. After measurement, 21 dismal of land was found shot and accordingly, the seller Gendalal & Bhagirath also sold 21 dismal lands from land bearing Survey No.18 by executing an additional sale deed in the name late Ramvilas & Nandram. Therefore, on the basis of these three sale deeds dated 17.08.1981, 21.07.1981 & 30.09.1982, the name of Ramvilas & Nandram were mutated in the revenue record as owners of the land.

2.4. According to the plaintiff, though the sale deeds were executed in the name of Ramvilas & Nandram, but he remained in possession of the suit land and doing the cultivation. Ramvilas & Nandram took the original sale deed from him for the purpose of submitting an income tax return but did not return the same, thereafter, both died. 2.5. The plaintiff requested the legal heirs of Ramvilas & Nandram to submit a joint application for partition, but they denied it. On 15.03.2014, the defendants submitted an application for mutation of their name in the revenue record and denied the share of the plaintiff in the suit land due to which a cause of action arose to the plaintiff to file the civil suit for partition of the suit land, possession and 75 % share in the suit land.

2.6. The defendants filed a written statement by submitting that the plaintiff filed the suit after 36 years of execution of the sale deeds which is hopelessly time barred . By way of three sale deeds, the suit land was purchased by late Ramvilas & Nandram. The plaintiff's suit is liable to be dismissed under the provisions of the Benami Transactions ( Prohibition )Act. It is further submitted that the suit is also not maintainable under Section 9 of the CPC as well as under Section 34 of the Specific Relief Act. It is further submitted that in order to grab the land earlier also, the plaintiff filed Civil Suit No.380011/2015 on 27.01.2015 which was dismissed on 27.01.2017. Thereafter, the son of the plaintiff namely Satyanarayan filed a suit i.e. Civil Suit No.42A/2014 for the same suit land on the basis of adverse possession which was dismissed on 06.01.2017. The plaintiff filed another suit i.e. Civil Suit No.1A/2015 for the land bearing Survey Nos.55 and 37and the same was dismissed vide judgment dated 27.01.2017. Hence, the present suit is not maintainable.

2.7. Based on the above pleadings learned Civil judge framed seven issues for adjudication and vide judgment dated 12.10.2021 by placing reliance upon the judgment passed by the Apex Court in the case of Marcel Martins v/s M. Printer & Others reported in (2012) 5 SCC 342 decreed the suit by granting 75% share in the suit land with entitlement to get the partition through Collector, Dewas along with permanent injunction to the plaintiff.

2.8. Being aggrieved by the aforesaid judgment and decree, the legal heirs of Dhapu Bai filed Civil Appeal No.19/2021 and Kusumlata & others filed Civil Appeal No.20/2021. Vide common judgment dated 31.07.2023, the learned First District Judge has reversed the findings by distinguishing the judgment passed in the case of Marcel Martins (supra) and set aside the impugned Judgment & Decree. Hence, present two Second Appeals are filed before this Court.

03. Shri R S Chhabra, learned Senior Counsel for the appellants/ the plaintiff submits that the plaintiff was rightly held entitled to get 75% of share in the suit land by virtue of Section 45 of the Transfer of Property Act and in view of the law laid down by the Apex Court in the case of Marcel Martins (supra) because he paid the sale consideration to the sellers. Learned Senior Counsel proposed following substantial questions of law:-

1. Whether the learned lower appellate court erred in law in construing the provisions of S. 45 of the Transfer of Property Act, 1872 and upsetting the judgment of the learned trial Court which was based on the judgment of the Hon'ble Apex Copurt in the matter of (2012) 5 SCC 342 Marcel Martins v/s Smt. M. Printer & Others upholding the judgment of Smt. M. Printer & Others v/s Marcel Martines reported in AIR 2002 Kar 191

while allowing the appeal preferred by the respondents / defendants ?

2. Whether the judgment and decree passed by the learned lower appellate court in reversing the findings of the trial court despite there being clear evidence w.r.t. payment of 75% of the sale consideration ?

3. Whether the learned appellate court erred in law in not appreciating that S. 45 of the Transfer of Property Act, 1882 was the principle of law lays down goo conscience and the evidence ought to have been appreciated in the light of the said principal of law ?

4. Whether the learned lower appellate court erred in not appreciating S. 45 of the Transfer of Property Act, 1882, which only deals with the quantum of interest and its determination where there are several joint purchasers of immovable properties ?

5. Whether the learned lower appellate court erred in upsetting the findings of the judgment of the learned trial court which was based on the appreciation of evidence and correct construction of S. 45 of the Transfer of Property Act, 1882 ?

04. I have heard learned Senior Counsel for the appellants / plaintiff at length and perused the record.

05. According to the plaintiff, the suit land was purchased in Rs.60,000/-, out of which, he paid Rs.45,000/- and remaining amount of Rs.15,000/- was paid by his brother-in-laws namely Ramvilas & Nandlal but there is no evidence to establish this fact. It is pleaded that out of love and affection and relationship, the sale deeds were executed in the name of Ramvilas & Nandram on 7.08.1981, 21.07.1981 & 30.09.1982, thereafter, both Ramvilas & Nandram expired. The plaintiff

filed a suit in the year 2016 i.e. after 36 years of execution of the sale deed. During the pendency of the plaint, the plaintiff could not be cross- examined. The suit is hopelessly time barred.

06. Three sale deeds are exhibited as Ex-P/3, P/4 & P/5 but these sale deeds are in the name of purchaser Ramvilas & Nandram not in the name of the plaintiff. The entire suit of the plaintiff is based on provisions of Section 45 of the Transfer of Property Act. Admittedly, the name of the plaintiff is not mentioned in the sale deeds, therefore, it cannot be held that the plaintiff purchased the suit land along with Ramvilas & Nandram and got the status of co-owners.

07. Section 45 of the Transfer of Property Act, 1882 is reproduced below:-

"5. Joint transfer for consideration.-- Where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.

In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property."

08. Section 45 of the Transfer of Property Act applies to the transaction whereby an immovable property is jointly purchased by two or more persons out of a common fund and shares of each of those persons would be the same as their interest in the common fund. The first part of Section 45 contemplates the case where the property is transferred for consideration paid out of a fund belonging to them in

common and their respective entitlement. The other part applies to the cases where the consideration is paid out of the separate fund in which the buyers will be entitled to the properties in proportion to the share out of the consideration paid. The provisions of Section 45 only decide the inter se share between the several joint purchasers of a common property but the mandatory part is that the sale deed should be executed jointly in the name of all the purchasers who shared the sale transaction, then only their inter se share in the properties will be decided as per their contribution in the common fund or their share of consideration paid as the case may be.

09. In the present case, admittedly, the name of the plaintiff is not in the array of purchases in any of the sale deeds. He is claiming a share of 75% because he paid part sale consideration but has not been established by cogent evidence, therefore, he is not entitled to share by relying on Section 45 of the Transfer Property Act. Since the name of the plaintiff is not in their sale deeds, therefore, he cannot be treated as a co- purchaser or co-owner of the suit land.

10. In the case of Marcel Martins (supra), several legal representatives became entitled to get the lease deed in their name, but the corporation insisted on execution of the deed in the name of one person therefore, out of all several legal heirs, the deed was executed in favour of one but share of others in the leased property was not in dispute, therefore, it was treated to be out of mischievous of Section 4 of the Benami Transaction (Prohibition) Act, 1988. Therefore, I do not find any substantial question of law, as proposed by the appellants.

11. Apart from that, the plaintiff had earlier filed the suit for the same suit land which was dismissed, thereafter plaintiff's son also filed a suit in respect of the same suit land claiming title on the basis of adverse

possession and the same was also dismissed. Admittedly, the sale deeds were found in the possession of the defendant, therefore, the plaintiff has been saved from the rigour of Section 4 of the Benami Transaction (Prohibition) Act.

12. In Civil Suit No.380011/2015, the plaintiff claimed the title for the suit land from Ramvilas & Nandram on the ground that they orally transferred the suit land to him. The suit was dismissed vide judgment dated 27.01.2017. Thereafter, the suit filed by the son of the plaintiff i.e. Civil Suit No.42A/2015 was dismissed vide judgment dated 06.01.2017 Ex-D/1 & D/2 respectively. The First Appellate Court although held that this is not barred under Order II Rule 2 of the CPC, but some how the plaintiff was trying to get the suit land by filing three different suits which is nothing but misuse of the process of law. He ought to have claimed all reliefs in one suit. The present suit is also barred by limitation, hence, I do not find any reason to interfere with the judgment passed by the learned District Judge.

13. In view of the above, I do not find reason to admit these Second Appeals on any of the substantial questions of law, hence, dismissed. The order passed by this Court in the present case shall govern the connected case also, therefore, Second Appeal No.2001 of 2023 also stands dismissed.

Let a copy of this order be kept in the connected appeal also.

(VIVEK RUSIA) JUDGE Ravi