Bheekamchand vs Smt. Gyarsi Bai
2024 Latest Caselaw 13331 MP

Madhya Pradesh High Court

Bheekamchand vs Smt. Gyarsi Bai on 9 May, 2024

Author: Anil Verma

Bench: Anil Verma

                                    1



       IN THE HIGH COURT OF MADHYA PRADESH

                             AT INDORE
                                 BEFORE
              HON'BLE SHRI JUSTICE ANIL VERMA

                   FIRST APPEAL No. 326 of 2004

     BETWEEN:-
     BHIKAMCHAND SON OF GANESHMAL SONI,
     AGED   35 YEARS,   OCCUPATION    PRESS
     PHOTOGRAPHER, R/O 9/3, TAMBOLI BAKHAL,
     INDORE
                                                     .....APPELLANT
     (BY SHRI JAGDISH CHANDRA DANGI -ADVOCATE)

     AND
      SMT. GYARSIBAI WIFE OF GANESHMAL SONI,
1    AGED 60 YEARS, OCCUPATION HOUSEWIFE, R/O
     652, KALANINAGAR INDORE
     SHRI VINOD SONI SON OF GANESHMAL SONI,
2    AGED 28 YEARS, OCCUPATION NOT KNOWN,
     R/O 5 NAGIN NAGAR INDORE
     PAVAN SONI SON OF GANESHMAL SONI R/O 5
3
     NAGIN NAGAR INDORE
     DHARMENDRA SONI SON OF GANESHMAL SONI
4
     R/O 5 NAGIN NAGAR INDORE
                                                    ...RESPONDENTS
     (BY SHRI SHAILENDRA SHRIVASTAVA -ADVOCATE)


     Reserved on             :    29/4/2024
     Pronounced on           :     9/5/2024
        This appeal having been heard and reserved for orders, coming
     on for pronouncement this day, the JUSTICE ANIL VERMA
     pronounced the following:
                               JUDGMENT

Heard on admission.

1. The appellant/plaintiff has preferred the present first appeal

under section 96 of Code of Civil Procedure (in short CPC) against the impugned judgment and decree dated 31.3.2004 passed by 18 th Additional District Judge (Fast Track) Indore in civil suit No. 63- A/2002 whereby the suit filed by appellant/plaintiff for declaration of title and permanent injunction has been dismissed.

2 Brief facts of the case are that on 1.2.1992 the appellant has entered into agreement to sale with Chintabai and he had paid full consideration amount and as per final agreement Chintabai has handed over possession of the disputed plot to appellant. Then appellant constructed two rooms on the land in question by his own income. Till then appellant is continuously living in the said house alongwith his family members. Respondents no. 2 to 4 are the brothers of appellant. Appellant permitted respondent no. 1 for using the disputed house for her residence, but thereafter respondent no. 1 denied to vacate the suit premises. Then appellant lodged an FIR against them. On 7.1.1998 when appellant returned from Shirdi he came to know that respondents no. 1 to 4 have encroached upon his one room. He again lodged FIR against them. The appellant has cancelled the power of attorney dated 30.7.1997 which has been executed by him in favour of respondent no.

1. But despite cancellation of power of attorney respondent no. 1 has illegally sold out the suit premises to respondents no. 2 to 4 through registered sale deed dated 22.12.1997. Therefore appellant has preferred civil suit for cancellation of aforesaid sale deed and also seeking permanent injunction thereby restraining the respondents from alienating the suit property.

3/ Respondent/defendants has filed written statement denied plaint

averments and stated that Chintabai during her lifetime never executed any sale agreement. The appellant neither paid any amount nor any agreement was ever executed. Respondent no.1 has sold out the suit property, plaintiff did not file any suit for specific performance against Chintabai. Defendants were in possession of the suit premises. Hence suit filed by plaintiff deserves to be dismissed.

4/ The trial court on the basis of aforesaid pleadings framed issues and permitted the parties to lead evidence and thereafter on scrutinizing the evidence available on record, dismissed the suit filed by appellant by the impugned judgment and decree. Being aggrieved by the same, the appellant has preferred this first appeal.

5/ Learned counsel for appellant submits that the impugned judgment and decree passed by the trial court is against law and facts. The trial court has committed grave error in ignoring the pleadings and evidence adduced by the appellant. The appellant has duly proved power of attorney Ex. P-7 in his evidence. After cancellation of power of attorney,respondent no. 1 has no right to sell out suit property on the basis of power of attorney. All these legal aspects have not been duly considered by the trial court. Therefore, it is prayed that the appeal be allowed and impugned judgment and decree passed by the trial court be set aside.

6/ Per contra learned counsel for respondent submits that the impugned judgment and decree passed by the trial court is based upon cogent evidence and does not deserve for any interference.

7/ Heard learned counsel for the parties and perused the record with due care.

8/ The appellant/plaintiff is claiming title over the suit land only on the basis of agreement to sale. Although respondents have denied that no such agreement to sale has been executed between appellant and Chintabai, Chintabai may be best witness to prove the said fact, but unfortunately appellant neither impleaded Chintabai as respondent nor examined her as a witness. Apart from the above, appellant did not produce any relevant document for payment of consideration amount. Agreements (Ex.P-1 and P-2) are unregistered documents, no cheque, bank draft or transaction of cash amount was duly proved by appellant.

9/ Per contra respondents no.2 to 4 have successfully proved that they had purchased the suit house by registered sale deed dated 27.12.1997 (Ex.P-3) which has been duly proved by respondent No. 1 Gyarsibai (DW-1). Respondent no.1 is the mother of appellant and she is residing with respondents 2 to 4. The appellant is claiming title over the suit land on the basis of agreement to sale. He himself admits in his cross examination that no registered sale deed has been executed in his favour. The appellant/plaintiff prayed for relief of declaration of title and permanent injunction without seeking consequential relief of specific performance of contract. Therefore, as per provisions of Specific Relief Act the appellant's suit is not maintainable.

10/ In view of the aforesaid oral and documentary evidence available on record, this Court is of the considered opinion that the judgment and decree passed by the trial Court is well-reasoned and is based upon

proper appreciation of oral as well as documentary evidence available on record. The appellant has failed to establish as to how the finding and fact recorded by the trial Court is illegal, perverse and based upon no evidence.

11/ In light of the aforesaid, this First Appeal, sans merit and substance is hereby dismissed.

(ANIL VERMA) JUDGE BDJ

BHUNESHWAR DATT 2024.05.10 19:16:22 +05'30'