Smt. Anju vs Hemant
2024 Latest Caselaw 14264 MP

Madhya Pradesh High Court

Smt. Anju vs Hemant on 15 May, 2024

Author: Hirdesh

Bench: Hirdesh

                                                        1

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

                                           ON THE 15th OF MAY, 2024

                                       SECOND APPEAL No. 3251 of 2019

                         BETWEEN:-
                            SMT. ANJU W/O MANOHARLALJI, AGED ABOUT 42 YEARS,
                         1. KATJU MARG JAORA TEHSIL JAORA, DISTRICT RATLAM
                            (MADHYA PRADESH)
                            SMT. TEENA W/O SURENDRA JAIN, AGED ABOUT 33 YEARS,
                         2. R/O: KATJU MARG, JAORA TEHSIL JAORA, DISTRICT
                            RATLAM (MADHYA PRADESH)
                            SMT. INDU W/O SANJAY JAIN, AGED ABOUT 43 YEARS, R/O:
                         3. KATJU MARG, JAORA TEHSIL JAORA, DISTRICT RATLAM
                            (MADHYA PRADESH)
                                                         .....APPELLANTS/PLAINTIFFS
                         (SHRI AS KUTUMBALE, SENIOR COUNSEL WITH SHRI RAJENDRA
                         KUMAR SAMDANI, COUNSEL FOR APPELLANTS)

                         AND
                            HEMANT S/O MOTISINGH CHOUHAN 3/2, VINOBA BHAVE
                         1. PATH NAGDA TEHSIL NAGDA, DISTRICT UJJAIN (MADHYA
                            PRADESH)
                            JAKIR SAH S/O RAHMAT SAH FAKIR R/O: TALAB VALI
                         2. MASJID KE SAMNE DHOBHI MOHALLA, UNHEL TEHSIL
                            NAGDA, DISTRICT UJJAIN (MADHYA PRADESH)
                            THE STATE OF MADHYA PRADESH THROUGH COLLECTOR
                         3. CUM DISTRICT MAGISTRATE, KOTHI PALACE, DISTRICT
                            UJJAIN (MADHYA PRADESH)
                                                     .....RESPONDENTS/DEFENDANTS
                         (NONE FOR THE RESPONDENTS)
                               This appeal coming on for orders this day, the court passed
                         the following:-



Signature Not Verified
Signed by: ARUN NAIR
Signing time: 25-05-
2024 10:27:16
                                                           2

                                                    ORDER

Appellants/Plaintiffs have preferred this second appeal under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 28.08.2019 passed by Additional District Judge, Nagda, District Ujjain (MP) in Regular Civil Appeal No.28A/2018 arising out of the judgment and decree dated 10.03.2017 passed in Regular Civil Suit No.3A/2016 by Civil Judge, Class-I, Nagda, District Ujjain (MP).

(2) The brief facts of the case are that the appellants/plaintiffs have filed the civil suit for declaration of title, permanent injunction and nullification of sale deed dated 10.09.2014 in favour of the plaintiffs against the respondents/defendants No.1 and 2 in relation to the agricultural land bearing survey no.691 rakba 069 hectares situated at Gram Pipliya Molu, Tehsil Nagda, District Ujjain (MP) and has stated that she is the owner and possession holder of land in question and that she has purchased the land from one Urmila on 13.01.2010 by registered sale deed and Urmila had purchased the land from Rugnath through registered sale deed dated 14.01.2009. This land was mutated in the name of Rugnath in the revenue record and after Rugnath it was mutated in the name of Urmila and now it was in the name of Plaintiffs. The appellants/plaintiffs pleaded that defendant No.2 Jakir had filed the civil suit before the Civil Judge, Nagda, which was dismissed on 17.08.2013. Thereafter, Jakir executed the sale deed in favour of defendant No.1 on 10.09.2014 which is Ex.P/17 without having any right and the defendant No.1 got mutated the record in the revenue record, without giving any opportunity of

hearing to the plaintiffs. The plaintiffs further pleaded that the original owner Hasmat Khan had executed the agreement to sell in favour of Rugnath on 31.05.1984 and thereafter the Hasmat Khan has no legal right in respect of the same, so the plaintiffs have the right or title by way of registered sale deed. The defendants are interfering her ownership in the suit land so prays for declaration and injunction against the defendants and nullification executed in favour of defendant No.1 and 2.

(3) The appellants filed their written statement before the trial court and has denied the averments made in the plaint.

(4) The trial court has framed the issue and after recording the evidence of both the parties has dismissed the suit filed by the plaintiffs.

(5) Being aggrieved from the aforesaid judgment and decree, the appellants/plaintiffs has filed the first appeal before the first appellate court and the first appellate has affirmed the judgment and decree passed by the trial court and has dismissed the appeal filed by the appellants/plaintiffs. He further submits that both the courts below have committed grave error in dismissing the suit and appeal filed by the appellants/plaintiffs. Thus, on the basis of above grounds, substantial question of law arises for consideration in second appeal and prays that appeal be admitted for final hearing.

(6) I have heard counsel for the appellants/plaintiffs and have perused the records of the case with due care.

(7) From the perusal of records of both the courts below, it is

apparent that it is a case of concurrent findings of facts i.e. both the Courts below have dismissed the suit/appeal filed by the appellants/plaintiffs.

(8) On going through the trial court record, it appears that the plaintiffs had filed the civil suit for declaration of title, permanent injunction and nullification of sale deed executed by defendant No.2 in favour of defendant No.1, therefore the burden lies upon the appellants/plaintiffs to prove that she was the owner of land in question by way of registered sale deed. The plaintiffs pleaded in his pleadings that original owner of the suit land is Hasmat Khan who executed agreement to sell in favour of Rugnath on 31.05.1984 by way of agreement to sell and after the death of Hasmat Khan, Rugnath was the title holder of the suit land and his name was mutated in the revenue records.

(9) It appears from the pleadings that original owner Hasmat Khan had executed the agreement to sell in favour of plaintiffs so Rugnath accrues his title by way of agreement. Section 54 of the Transfer of Property Act defines the sale which reads as under:-

"54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made.-- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.--A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property.

(10) In the case of Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana reported in JT 2011 (12) SCC 654 the Apex Court held that transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law) no right, title or interest in an immovable property can be transferred.

(11) Hence, in view of above provision and verdict of the Apex Court that by way of this agreement, plaintiff has not accrued any title in regard to the disputed property.

(12) In view of aforesaid, it was found that Rugnath has not accrued the title over the suit land by way of agreement to sell. So the subsequent sale deed was executed by Rugnath in favour of Urmila, he has not given any right to Urmila because Rugnath was not a valid title holder of the suit land, so by way of sale deed which was executed by Rugnath to Urmila. Urmila has not accrued any title over the suit land and thereafter Urmila executed the sale deed without having any title over the suit land. So by way of sale deed Ex.P/1 which was executed by Urmila in favour of plaintiff,

plaintiff has not accrued any valid or legal title over the suit land.

Therefore on the basis of aforesaid documents and evidence adduced on record before the trial court, the plaintiffs have failed to prove their valid title over the suit land.

(13) Thus, in view of aforesaid discussion, this Court is of the considered opinion that the impugned judgments passed by trial court and first appellate court are well reasoned and based upon the due appreciation of oral as well as documentary evidence available on record. The findings recorded by trial court and first appellate court are concurrent findings of facts. The appellants/plaintiffs have failed to show that how the findings of facts recorded by trial court and first appellate court are illegal, perverse and based on no evidence. Thus, no substantial question of law arises for consideration in the present second appeal. (14) Accordingly, the present second appeal sans merit and is hereby dismissed.

(15) Certified copy, as per Rules.

                                                                                       (HIRDESH)
                         Arun/-                                                          JUDGE