Madhya Pradesh High Court

Smt. Swarna Devi (Since Deceased ) ... vs Shri Avinash Chandra Chopra on 17 May, 2024

Author: Vivek Agarwal

Bench: Vivek Agarwal

IN THE HIGH COURT OF MADHYAPRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
FIRST APPEAL No. 371 of 2017

BETWEEN:-

SMT. SWARNA DEVI (SINCE DECEASED ) THROUGH LRS.
1.
RAKESH CHOPRA S/O SHRI H.R. CHOPRA, AGED ABOUT 60
YEARS, 8A/59 W.E.A. KAROLE BAGH NEW DELHI (DELHI)

2. DINESH CHOPRA S/O SHRI H.R CHOPRA, AGED ABOUT 57
YEARS, 8A/59 W.E.A KAROLEBAGH BEW DELHI (DELHI)

3. SMT. ANJANA DHAWAN D/O SHRI H.R CHOPRA, AGED ABOUT 62
YEARS, 8A/59 W.E.A KAROLEBAGH BEW DELHI (DELHI)

4. SMT. ALKAMEHRA S/O SHRI H.R CHOPRA, AGED ABOUT 50
YEARS, 8A/59 W.E.A KAROLEBAGH BEW DELHI (DELHI)

.....APPELLANTS

(BY SHRI K. K. SHARMA - ADVOCATE)

AND
2

SHRI AVINASH CHANDRA CHOPRA S/O SHRI S.N. CHOPRA,
AGED ABOUT 72 YEARS, OCCUPATION: PROPRIETOR -
1. DIAMOND GLASS HOUSE IN FRONT OF HITKARINI MAHILA
MAHAVIDYALAYA OLD NO. - 714-715 RASHIDGANJ JABALPUR
NEW H NO 839 JAI PRASASH WARD (MADHYA PRADESH)

SHRI NARESH CHANDRA CHOPRA S/O SHRI S.N CHOPRA, AGED
2.
ABOUT 60 YEARS, OLD NO. 714-715 RASHIDGANJ JABALUR NEW
H.NO. 839 JAI PRAKASH WARD (MADHYA PRADESH)

SMT. RITA CHOPRA W/O NARESH CHANDRA CHOPRA, AGED
3.
ABOUT 55 YEARS, OLD NO. 714-715 RASHIDGANJ JABALUR NEW
H.NO. 839 JAI PRAKASH WARD (MADHYA PRADESH)
4.
SUB REGISTAR JABALPUR JABALPUR (MADHYA PRADESH)

.....RESPONDENTS

(SHRI R. P . KHARE - ADVOCATE FOR RESPONDENT NO. 2)

------------------------------------------------------------------------------------------------

Reserved : 02.05.2024

Pronounced on : 17.05.2024

-----------------------------------------------------------------------------------
3

This appeal having been heard and reserved for orders,

coming on for pronouncement this day, the court passed the

following:

ORDER

This appeal is filed by the plaintiffs under Section 96 of the

Code of Civil Procedure being aggrieved of judgment and decree

dated 28/02/2017 passed by the XI th Additional District Judge,

Jabalpur in RCS No. 77-A/2014 whereby an application filed by the

present appellants was dismissed.

2. Brief facts of the present case are that Smt. Swarna Devi is the

wife of Shri H.R. Chopra. Other plaintiffs are sons and daughters of

Shri H.R. Chopra.

3. Respondent/defendants are nephew and nephew-in-law of Shri

H.R. Chopra and Smt. Swarna Devi. Thus, by implication, they are

cousins to the remaining plaintiffs.

4. The suit was filed by the plaintiffs seeking declaration that sale

deed dated 24/08/1959 and the Will dated 23/10/1999 is null and void

and after issuing such declaration, they be given possession of the

house nos. 714, 715, new no. 839 situated at Rashidganj, Jaiprakash

ward, Jabalpur and a relief of permanent injunction was also sought.

This property will be referred as suit property.

5. Brief facts leading to the present case are that on 25/11/1956,

Shri H.R. Chopra had entered into an agreement with one Sardar

Begum to purchase suit property for a total sale consideration of Rs.

10,000/-. Shri Chopra had paid an advance of Rs. 1,250/- to Sardar

Begum but when Sardar Begum refused to honour agreement to sale,

then a civil suit was filed in the court of Additional District Judge,

Jabalpur which was decreed on 22/07/1959. This compromise decree

passed by the court of learned II nd Additional District Judge, Jabalpur

in Civil Suit No. 30-A/58 is available on record and this document is

not disputed between the parties.

In the judgment and decree, it is mentioned as under :-

"It is ordered and decreed in terms of compromise that :-

(i). The defendants admit plaintiff's claim for specific

performance of the house in suit for Rs. 10,000/- less Rs.

1250/- received. The defendant shall execute the deed of

sale at petitioner's expenses within a month from today on

receipt of Rs. 7,750/-, balance of consideration less

expenses of the suit excluding the lawyer's fee which the

plaintiff waives.

(ii). If the defendant fail to execute and get the sale deed

registered, the court should do the same for them and on

their behalf as per conditions enumerated in para 1 above.

(iii). The plaintiff gives her claim for Rs. 2,000/-.

(iv). Defendants shall vacate the house in suit and put the

plaintiff or his assigns in vacant possession thereof within

four months from today.

(v). In the event of defendants failing to vacate the suit

house per term no. 4, the plaintiffs shall be entitled to evict

them by executing the decree.

(vi). If the plaintiff defaults in getting the sale deed

executed and registered on or by 30 th August 1959, he will

forfeit all rights to the same.

(vii). Defendants shall bear their own cost and pay plaintiffs

full cost amounting to Rs. 1,000/- (One thousand only).

This will be deducted from the consideration payable to the

defendant vide Clause-I above.

6. Now, the grievance of the plaintiffs herein is that Shri S.N.

Chopra father of the defendants were given permission to reside in

the said property and was permitted to get the sale deed executed in

favour of Shri H.R. Chopra but fraudulently Shri S.N. Chopra get the

sale deed executed in his own name and this fact came to the

knowledge of the plaintiffs only upon death of Shri S.N. Chopra who

died on 24th March, 2000 and, therefore, they had filed the suit in

2001.

7. Learned counsel for the plaintiffs/appellant submits that the

trial court had framed as many as 12 issues but having failed to

appreciate the evidence on record in the correct perspective erred in

passing an appropriate decree in favour of the plaintiffs and on a

cryptic appreciation of the facts, dismissed the suit. Hence, this first

appeal.

8. It is pointed out that Smt. Swarna Devi w/o Shri H.R. Chopra

died on 19/03/2017 and her legal heirs have been substituted.

9. Shri K.K. Sharma, learned Advocate for the appellants submits

that the learned District Judge, Jabalpur has failed to do justice while

deciding the suit no. 77-A/14, (C.S. No. 33 A/2001) (old number)

and, therefore, the judgment and decree passed by the trial court be

set aside and the suit be decreed in favour of the plaintiff/present

appellants.

10. It is submitted that Shri S.N. Chopra was working as an Excise

Inspector in the Government and was not having sufficient means to

purchase said property in the year 1959 when he had meager

resources of income. It is submitted that Shri H.R. Chopra had paid

the balance amount of Rs. 7750/-, as per the terms of the decree and

had authorized his brother Shri S.N. Chopra to get the sale deed

executed according to the compromise decree and he had gone to

Delhi along with his immediate family. Thereafter, a sale deed was

fraudulently executed by Shri S.N. Chopra in his own name instead of

getting it executed in the name of brother Shri H.R. Chopra who was

also known as H.N. Chopra.

11. Shri K.K. Sharma submits that since Shri H.R. Chopra had

permitted his brother as a licensee to stay in the said house till his

lifetime and had instructed his wife Smt. Swarna Devi to not disturb

the possession of Shri S.N. Chopra during his lifetime as he used to

respect Shri S.N. Chopra as much as he had respected his father.

Therefore, plaintiffs family did not raise any objection or demand

possession of suit property during the lifetime of Shri S.N. Chopra

and inturn Shri S.N. Chopra promised that as and when the plaintiffs

will require the said property, they will vacate the suit property.

12. It is submitted that Shri S.N. Chopra had a family of nine

persons, six sons and one daughter and a wife besides himself and,

therefore, in his capacity as an Inspector in Excise Department, he

had no resources to purchase that property and this is an important

aspect which has been overlooked by the trial court.

13. Shri K.K. Sharma submits that written statement was filed by

the defendants belatedly in the year 2012 and they are trying to linger

on their matter for their narrow interest.

14. It is further submitted that when one of the parties to the suit

started claiming property in question on the basis of Will of Shri S.N.

Chopra dated 13/10/1999, then one of his brother had written a letter

to the plaintiff when they had came to know of the fact that their

property is being sought to be misappropriated.

15. On that ground, they had filed the suit in 2001 for eviction,

possession and declaration for declaring the sale deed dated

24/08/1959 and Will dated 13/10/1999 as null and void and also for

mesne profits.

16. It is submitted that infact, the first litigation was between

Naresh Chopra and Rita Chopra who are son and daughter-in-law of

Shri S.N. Chopra with Shri Avinash Chandra Chopra which was filed

as civil suit no. 81-A/2008 before the court of III rd Civil Judge Class-

I, Jabalpur wherein a suit was filed for eviction and mesne profits in

relation to the suit property on the basis of a Will of Shri S.N.

Chopra. The suit was filed under the provisions of Section 12 (1) (a)

& (f) of the Madhya Accommodation Control Act 1961 on the

strength of Will of Shri S.N. Chopra saying that Avinash Chopra was

a tenant of Shri S.N. Chopra who had authorized him to use one

portion of the property for commercial purpose i.e. to run a shop and

vide Will dated 13/10/1999, the property was willed in favour of

Naresh Chandra Chopra and his wife Rita Chopra. Therefore, they

had a right to get it effected. In that suit, the trial court had framed as

many as seven issues namely :-

(i). Whether the suit house no. 839, Jaiprakash ward was

property of sole title of Late Shri S.N. Chopra ?

(ii). Whether Late Shri S.N. Chopra had properly executed

Will dated 13/10/1999 ?

(iii). Whether relationship of Landlord and Tenant was

established between the complainant and the defendant ?

(iv).(a) Whether plaintiff no. 2 require the suit property to

start a restaurant business on bonafide basis ?

(iv).(b) Whether plaintiffs are not having any alternate

accommodation in the city of Jabalpur to fulfil that

requirement ?

(v). Whether rent of Rs. 1,000/- per month is due since

1/08/1998 which has not been paid within two months of

receipt of the notice ?

(vi). Whether plaintiffs are entitled to relief of eviction ?

(vii) Relief and cause ?

17. Shri K.K. Sharma submits that first three issues are found to be

not proved and that is sufficient to prove that when Shri S.N.

Chopra's title over the property and right to execute Will could not be

proved, then it is evident that the property in question belongs to Shri

H.R. Chopra in as much as, the sale deed in question contains name

of Shri H.R. Chopra on several occasions and 'N' was manipulated to

add 'S' in place of 'H' so to misappropriate the property in question in

favour of Shri S.N. Chopra who was treated as a fatherly figure by

Shri H.R. Chopra.

18. It is submitted that Shri H.R. Chopra died in the year 1967. It

is submitted that legal heirs of Shri S.N. Chopra have taken a defence

that Shri S.N. Chopra had purchased the suit property from Sardar

Begum on oral consent of Shri H.R. Chopra. Shri H.R. Chopra was

legally entitled to assign the benefits of the compromise decree in

favour of anyone and Shri H.R. Chopra was always having the

knowledge about the sale deed being registered in the name of Shri

S.N. Chopra till his death in the year 1967 and he had never objected

to said sale deed, else Shri H.R. Chopra would have taken action

against Shri S.N. Chopra during his lifetime.

19. It is pointed out that Shri H.R. Chopra was a Forest Contractor

and was residing in Civil Lines in his own house whereas their father

was working in the Central Excise Department.

20. Shri H.R. Chopra was visiting Jabalpur again and again till his

death in 1967 and, therefore, the contention of the plaintiffs that there

are several references of Shri H.R. Chopra in the sale deed and only at

one place, name of Shri S.N. Chopra is mentioned. That proves that

the property of Shri H.R. Chopra has been squandered and cornered

by Shri S.N. Chopra and his wards in a fraudulent manner and now

they are trying to take benefit of a forged and fictitious Will.

21. Heavy reliance is placed on the judgment and decree dated

31/01/2009 in RCS No. 81-A /2008 i.e. the eviction suit filed by

Naresh Chopra and another against their brother Shri Avinash

Chandra Chopra to point out that the property in question is infact

that of Shri H.R. Chopra and plaintiffs being the legal heirs of Shri

H.R. Chopra are entitled to estate of Shri H.R. Chopra.

22. In support, Shri K.K. Sharma submits that Ex. P-1 and P-1A is

a compromise decree dated 22/07/1959 in the name of Shri H.R.

Chopra and Sardar Begum. Sardar Begum had since agreed to

execute a sale deed in favour of Shri H.R. Chopra, in the absence of

any written consent, it cannot be accepted that Shri H.R. Chopra had

assigned the property or a right to get it registered in favour of his

brother Shri S.N. Chopra.

23. Thus, placing reliance on Ex. P-1, it is pointed out that Sardar

Begum i.e. the seller had intention of selling it to Shri H.R. Chopra

and to nobody else.

24. It is pointed out that since Shri H.R. Chopra was also known as

Shri H.N. Chopra and taking advantage of this fact, prior to alphabet

'N', 'S' was inserted so to take undue benefit, as is evident from

Registered sale deed. Ex. P-2.

25. It is further submitted that in para 8 of the written statement,

respondent no. 1 has admitted that the financial condition of Shri S.N.

Chopra was not good as he was having responsibility of six sons and

one daughter.

26. Thus, it is pointed out that in the registered sale deed with

manipulation of word 'S' prior to alphabet 'N', Shri S.N. Chopra

fraudulently cornered the property for which no issue was raised as

per the desire and dictates of Shri H.R. Chopra from whom the

plaintiffs are claiming. It is further submitted that since the

defendants failed to prove their ownership and title over the said

property, they cannot claim themselves to be the rightful successors

to the suit property on the strength of the Will written by Shri S.N.

Chopra.

27. It is pointed out that infact defendant in suit No. 81-A/2008

who is the real elder brother of Naresh Chandra Chopra admitted that

Will was forged and fabricated and, therefore, it is submitted that

since property in question was never belonging to Shri S.N. Chopra,

the Will was termed to be fraud and fabricated.

28. Reliance is also placed to Ex. D-1 to D-21 and in para 43 of

cross-examination of DW-1, there is an admission by Naresh Chopra

that he has no knowledge of any payment being made by Shri S.N.

Chopra to Sardar Begum and on such premise, it is submitted that

change of name in the records of the municipality etc. will not give

any cause of action in favour of the defendants.

29. It is also pointed out that as per Ex. D-9 to D-11, tax receipts of

Municipal Corporation were changed from H.N. Chopra to S.N.

Chopra. It is further submitted that Ex. D-9 is a document created on

8/03/2009 which happened to be Sunday and on that day, all

Government offices remains closed. It is further submitted that

though defendants are trying to rely that Ex. D-12, a letter written by

Shri S.N. Chopra to the Branch Manager of State Bank of India

mortgaging the suit property to take a loan but that document cannot

be relied on as defendants had not examined any Bank officer to

prove his letter/mortgage deed.

30. It is submitted that Ex. D-14 to D-17 proved the case of the

appellant that their father was known by two names i.e. H.R. Chopra

and H.N. Chopra and, therefore, name of Shri H.N. Chopra has

appeared in the record of the Municipal corporation and that fortifies

the case of the plaintiffs/appellants that their property was squandered

by Shri S.N. Chopra.

31. Reliance is placed on the judgment of the Supreme Court in

F.M. Devaru Ganapathi Bhat Vs. Prabhakar Ganapathi Bhat

AIR 2004 SC 2665 to submit that exhibited document is to be read in

full and not in part.

32. Thus, reading the sale deed executed in favour of Shri S.N.

Chopra, it is pointed that it has several references to Shri H.R.

Chopra. The Supreme Court has held that "The rule of

construction is well settled that the intention of the executor of a

document is to be ascertained after considering all the words in

their ordinary natural sense. The document is required to be read

as a full to ascertain the intention of the executant."

33. Similarly, reliance is placed on the judgment of the

Supreme court in Kaliaperumal Vs. Rajagopal and another

AIR 2009 SC 2122 wherein in para 8, it is held that apart from

seeing the registered sale deed, the court is also required to see

the conduct and intent of the parties.

34. Similarly, reliance is placed on Bhaurao Dagdu Paralkar

Vs. State of Maharashtra and others AIR 2005 SC 3330 to

point out that all solemn proceedings are vitiated on account of

fraud and, therefore, no title could be claimed on the basis of

fictitious sale deed obtained by playing fraud.

35. Reliance is also placed on the judgment of the Supreme

Court in Tamil Nadu Electricity Board and another Vs. N.

Raju Redier and another, AIR 1996 SC 2025, wherein it is

held that once a contract is reduced to writing by operation of

Section 91 of the Evidence Act, it is not open to any of the parties

to seek to prove terms of the contract with reference to some oral

or other documentary evidence to find out the intention of the

parties.

36. Section 92 of the Evidence Act provides that when the

written instrument contains whole terms of the contract, then

parties to the contract are not entitled to lead any oral evidence to

ascertain the terms of the contract.

37. It is further submitted that plaintiff/appellant never sought

ownership of the property, therefore, the trial court erred in

dismissing the suit on the issue of limitation holding that

declaration could not have been sought after gap of many years.

38. It is further submitted that in Balwant Singh and another

Vs. Daulat Singh (Dead) By Lrs. and others (1997) 7 SCC

137, the Supreme Court has held that mutation of property in

revenue records neither creates nor extinguishes title to the

property nor it has any presumptive value on title. Such entries

in the revenue records are only for fiscal purpose. Therefore, it is

submitted that the appeal be allowed and the suit be decreed,

overlooking entries in the receipts issued by the Municipal

Corporation and mutation entries.

39. Shri R.P. Khare, learned counsel for respondent nos. 2 and

3 submits that the judgment and decree, Ex. P-1 authorize the

parties to assign the property in favour of any person.

40. Thus, reading Clause-IV of the decree, it is pointed out that

there is a specific direction to put the plaintiff or his assigns in

vacant possession and, therefore, the sale deed was executed in

favour of Shri S.N. Chopra, father of defendant/respondent nos. 1

to 3 on 24/08/1959. Reading from the document that is the sale

deed, it is pointed out that in the margin, there is a specific note

of the Sub Registrar showing that it was executed in favour of

Shri S.N. Chopra.

41. It is submitted that in those deeds, sale deeds were written

in handwriting and then their copies are made in handwriting and,

therefore, an error in not recording Shri S.N. Chopra but only

mentioning name as N. Chopra will not help the plaintiffs to

claim the title and possession over the suit property.

42. Shri Khare submits that infact, plaintiff had not paid the

court fees for the relief of declaration of the sale deed to be null

and void. The defendants had filed an application under Order 7

Rule 11 C.P.C. On consideration of the said application, suit was

dismissed on 7/07/2009 and, thereafter, appellants herein had

preferred first appeal F.A. No. 434/2010 when the High Court

had set aside the order of the trial court dated 7/07/2009 giving

opportunity to the plaintiffs to pay the court fees.

43. Thereafter, on 8/11/2012, defendant nos. 2 and 3 had filed

their written statement. In their written statement, they had

opposed the suit whereas defendant no. 1 filed his written

statement on 23/01/2013 supporting the claims of the

plaintiffs/appellants asserting that defendant no. 1 was occupying

part of the suit house in which defendant nos. 2 and 3 have no

right.

44. The issues were framed. The evidence was led, then on

19/11/2014, further issues were framed. Then evidence of

Dinesh Chopra was recorded on 1/12/2014. He was cross-

examined and pointing from the cross-examination, it is

submitted that Shri Dinesh Chopra in his cross-examination in

para 42 admitted that his birth had taken place at Jabalpur in

January, 1960. His elder brother Rakesh Chopra and elder sister

Anjana Dhawan were born at Jabalpur in 1956 and 1957

respectively whereas his youngest sister Alka Mehra was born at

Delhi in 1966.

45. In para 44, he admitted that at Delhi, he and his brothers

had purchased immovable property which was purchased through

registered sale deeds and he had obtained those documents and

registered sale deed from the office of Sub Registrar.

46. In para 45, he has admitted that he had never obtained copy

of original copy of the Registry from Shri S.N. Chopra and then

explained that he had asked for that copy but it was not given by

Shri S.N. Chopra. Then, he admitted that this was narrated by

him to his mother and he had never sought copy of the Registry.

Then he further deposed that his father had also sought copy of

the disputed registry from Shri S.N. Chopra but he cannot give its

date etc.

47. In para 48, Shri Dinesh Chopra has admitted that though

Shri Avinash Chopra admitted him to be his Landlord but he has

not paid any rent to him nor plaintiffs have demanded from

Avinash Chopra. He had also not obtained any written rent note

from Shri Avinash Chopra. He further admits that he came to

know of the dispute between the defendants in October,

November 2000.

48. In para 56, it is admitted that Shri S.N. Chopra had

obtained the electricity connection in his name in the year 1960.

In para 57, he admits that he has no information that his father

had ever raised any objection before Sardar Begum as to why she

has registered the sale deed in the name of his brother Shri S.N.

Chopra. In para 58, it is admitted that Shri H.R. Chopra was

visiting Jabalpur from 1959 to 1967 and was residing in the

house of Amritlal at Civil Lines. Dinesh was born in the house

of Amritlal at Civil Lines, Jabalpur.

49. Thus, it is pointed out that even Shri Avinash Chandra

Chopra in his affidavit under Order 18 Rule 4 has denied the

claim of the plaintiffs.

50. Reading from document Ex. D-2, it is pointed out that

house was mutated in the name of Shri S.N. Chopra in 1965. For

this, permission was given by seller Sardar Begum. Thus, before

his death in the year 1967, Shri H.R. Chopra had complete

knowledge of the fact that he had voluntarily and wilfully

allowed registration of sale deed in favour of his brother Shri

S.N. Chopra and, therefore, now no objection can be taken to

deny the benefits which had accrued 41 years prior to filing of

the suit.

51. It is further submitted that reliance of the plaintiffs on the

judgment and decree between Shri Naresh Chandra Chopra and

Shri Avinash Chandra Chopra cannot be considered in this suit

because that suit was not decreed in favour of Shri Naresh

Chandra Chopra as he could not establish the Will in his favour

but the matter is subjudice between the parties and, therefore no

undue advantage can be taken in this behalf.

52. It is further submitted that Shri H.R. Chopra was never

known as Shri H.N. Chopra and there is an endorsement of the

Sub-Registrar mentioning name of Shri S.N. Chopra in whose

favour, sale deed was registered. From 1959 to 2000, they did

not seek any mutation nor challenged the sale deed.

53. It is submitted that suit was clearly barred in terms of

Section 17 of the Limitation Act read with Article 65. Attention

is also drawn to Sections 57 and 58 of the Registration Act, 1908.

54. After hearing learned counsel for the parties, the trial Court

had framed as many as 12 issues namely :-

                           Issues                           Conclusion
      (i). Whether the Will executed on 13.10.1999 by     Not proved

Shri S.N. Chopra in relation to disputed property is null and void ?

(ii). Whether the sale deed executed in favour of Not proved Shri S.N. Chopra on 24/08/1959 is null and void ?

(iii). Whether the possession of the defendants is Not proved against the law ?

(iv). Whether plaintiffs are entitled to receive No mesne profit @ Rs. 200/- per day from defendant nos. 2 and 3 ?

(v). Whether plaintiffs are entitled for mesne No profit for Rs. 50/- per day from defendant no. 1

(vi). Whether plaintiff is entitled to receive No possession of the suit property from the defendants ?

(vii). Whether plaintiff is entitled against the Not proved defendants to obtain a decree of permanent injunction in relation to other transitional transactions ?

(viii). Whether plaintiff is entitled to the decree of Not proved permanent injunction against the defendants in relation to transfer of said property in favour of others ?

      (ix). What should be the relief and cost ?           As per para 30
                                                           of the judgment,
                                                           the    suit   is
                                                           dismissed

(x). Whether plaintiff has properly valued the suit No and has paid the proper court fees?

(xi). Whether plaintiff suit is within the pecuniary Yes jurisdiction of the court?

(xii) Whether the suit is barred by limitation ? Not proved

55. Section 57 and 58 of the Registration Act deals with

Registering Officers to allow inspection of certain books and indexes,

and to give certified copies of entries.

56. Similarly, Section 58 provides that particulars to be endorsed

on documents admitted to registration.

57. When these two sections are read together, then first plea raised

by learned counsel for the appellants that 'N' was manipulated to add

'S' as prefix is not made out in terms of Ex. P-2 in which there is an

endorsement of the concerned Sub-Registrar showing that the

property was purchased by Shri S.N. Chopra S/o Devidayal Chopra.

58. Moreover, there is no evidence on record to show that Shri

H.R. Chopra was also known as Shri H.N. Chopra, except some

Municipal receipts which according to the plaintiffs are not a proof of

any title.

59. Therefore, it is evident that submission of the

plaintiff/appellants that instead of Shri H.N. Chopra, registry was

obtained in the name of S.N. Chopra is prima facie not made out. The

plaintiffs' always had an opportunity to obtain a copy of the registered

document in terms of Section 57 of the Registration Act, 1908.

60. It is not the case of the plaintiffs that they ever inspected the

records of the Registering Officers and tried to discover that whether

Registry was actually executed in favour of Shri H.R. Chopra or not ?

61. Mere reference of Shri H.R. Chopra in the document Ex. P-2

and P-3 will not be a sufficient circumstance especially when the sale

deed is executed in favour of father of the defendants namely Shri

S.N. Chopra. Further, apart from not obtaining the registered

documents, there is no evidence on record to show that Shri H.R.

Chopra ever wrote to the authorities to obtain mutation of the said

property in his name.

62. Therefore, contention of the plaintiffs that Shri H.R. Chopra

had allowed the said property to be used on license and given it to

Shri S.N. Chopra as a licensee, in as much as, he was respecting him

like father is not made out from the record.

63. There is a specific evidence of Shri Dinesh Chopra that his

father was visiting Jabalpur till 1967 regularly. This fact is

corroborated from para 58 of his cross-examination wherein Shri

Dinesh Chopra, one of the plaintiff has admitted that whenever his

father used to visit Jabalpur from 1959 to 1967, he used to stay in the

house of Amritlal at Civil Lines. He has also admitted in his evidence

that his birth took place at 1960 at Jabalpur. Therefore, it is true that

his father was residing at Jabalpur atleast in 1960 and had not shifted

to Delhi as tried to be made out by the plaintiff. This establishes that

when deed was registered in favour of S.N. Chopra, that time Shri

H.R. Chopra was in Jabalpur and never objected to said registration

of the sale deed.

64. Shri H.R. Chopra had several occasion to inspect and obtain

copy of the registered documents to find out as to whether his brother

has executed the sale deed in his name or not !

65. In para 45, this plaintiff witness, Shri Dinesh Chopra has

admitted that it is true that he had never obtained copy of the original

registry from Shri S.N. Chopra but then clarified that he had sought

copy of the Registry but it was not given to him. Thereafter, he has

further improvised the statement saying that he is giving this

statement of demanding registry as per the statements of his mother

and admitted that he had never asked for any copy of registration

from Shri S.N. Chopra.

66. In view of such facts, it is evident that theory of licensee and

permissive occupation by Shri S.N. Chopra is not proved by the

plaintiffs, onus of which was on the plaintiffs.

67. Thus issue no. 2 that whether the sale deed dated 24/08/1959

executed in favour of Shri S.N. Chopra is null and void is not proved.

68. It has also come on record that Shri S.N. Chopra had given one

of the shops in the suit property on rent to one Modern Glass House

in 1962. Thereafter, a suit for eviction was filed against Modern

Glass House and had obtained vacant possession. Thus, atleast in the

year 1962, plaintiffs' father Shri H.R. Chopra who was visiting

Jabalpur of and on as per admission of their own witness Shri Dinesh

Chopra had knowledge of property being rented out. Further, Ex. D-

20 is the judgment and decree passed by the learned Vth Additional

District Judge, Jabalpur in Civil Appeal No. 40-A of 1980 dated

21/09/1981(Narayan Das Chawla Vs. S.N. Chopra) challenging the

judgment and decree in C.S. No. 139A/80 passed by the XVI Civil

Judge Class-II Jabalpur dismissing the appeal against eviction

accepting S.N. Chopra as Landlord. This also causes dent to the

credibility of the story of Shri S.N. Chopra being a licensee.

69. It has also come on record and as is admitted by Shri Dinesh

Chopra that Shri H.R. Chopra died in 1967 at Jabalpur. It has also

come on record that when his father died, he had head injury and

there was curfew at Jabalpur. Communal riots were being faced at

Jabalpur at that point of time.

70. In view of such facts, it is evident that if there being a

substance in the story of the plaintiffs, that Shri S.N. Chopra,

fraudulently obtained sale deed in his name, then there was sufficient

time available to Shri H.R. Chopra from 24/04/1959 till June 1967

when he died in unfortunate circumstances to question the said

document and file a suit for declaration seeking that said sale deed be

declared as null and void.

71. Thus, in terms of issue no. 2 which from the evidence has been

decided against the plaintiffs, issue no. 3 becomes automatically

decided that possession of the defendants on the suit property cannot

be said to be against the law, in as much as, it is on the basis of the

sale deed which was executed in favour of their father on 24/08/1959.

72. The issue nos. 4 and 5 also gets settled that once plaintiffs have

failed to prove their title over the suit property, then they are not

entitled to mesne profit either from the defendant nos. 2 and 3 or from

the defendant no. 1.

73. Similarly, in absence of proof of title over the suit property and

the consequent declaration that the sale deed executed in favour of

Shri S.N. Chopra on 24/08/1959 being null and void, issue no. 6 gets

automatically settled that plaintiffs are not entitled to and legally

competent to obtain possession of the suit property from the

defendants.

74. Thus, it is evident that in the absence of prima facie case,

balance of convenience or irreparable injury being shown and the

answers which have been given by the trial court to issue nos. 2, 3

and 6, it has come on record that plaintiff could neither prove that

they are owner of the property nor they could prove their possession

and, therefore, they are not entitled to claim permanent injunction

against the defendants at any cost.

75. Therefore, as far as issue no. 10 is concerned, on the date of

filing of the suit, though defendants had taken an objection that as per

the Collector guidelines, the market valuation of the property was Rs.

2,55,60,000/- on which appropriate court fees should have been paid

but the learned trial court held that even if the valuation of the

property is taken to be at Rs. 30,00,000/-, then also filing of a suit by

valuing at Rs. 1,16,800/- and paying the court fees on the said

valuation, it cannot be said that the suit has been properly valued and

proper court fees has been paid on it. Thus, this issue too is decided

correctly.

76. However, in view of the fact that the valuation was above Rs.

1,00,000/-, the issue of jurisdiction has been rightly decided by the

learned trial court.

77. As far as last issue, issue no. 12 is concerned, as per the

provisions contained in Section 17 of the Limitation Act which

provides that where in the case of any suit or application for which a

period of limitation is prescribed by the Limitation Act, the period of

limitation shall not begin to run until plaintiff or the applicant has

discovered the fraud or the mistake or could, with reasonable

deligence have discovered it; or in the case of a concealed document,

until the plaintiff or the applicant first had the means of producing

concealed document or compelling its production.

78. Thus, it is evident that limitation would have commenced when

the plaintiff would have discovered the fraud or the mistake.

However, there is a further qualification i.e. in regard to reasonable

deligence.

79. In the present case, Shri H.R. Chopra was party to the decree

which was passed by the trial court i.e. IV th Additional District Judge

on 22/07/1959. He had knowledge that the sale deed is to be

executed and that too within the prescribed time limit which was

fixed by the trial court on or by 30 th August, 1959. Therefore, when

Dinesh Chopra was born in 1960 and there is an admission that Shri

H.R. Chopra was visiting Jabalpur of and on between 1959 to 1967

and infact, died at Jabalpur in 1967, he had sufficient time to exercise

due diligence to discover whether any fraud or mistake was

committed.

80. Thus, failure to exercise due diligence could defeat the suit of

the plaintiffs on the ground of limitation alone as it is admittedly filed

after 2000.

81. Normal period of limitation as per Article 65 of the Limitation

Act, 1963 which provides for the possession of immovable property

or any interest therein based on title is provided as 12 years. This

period of 12 years came to an end in 1971.

82. Thus, if Shri H.R. Chopra or his legal heirs were required to

exercise their right, they could have done so within the prescribed

period of time. Their failure to do so clearly leaves no iota of doubt

that suit is barred by limitation.

83. Therefore, when examined cumulatively, then judgment in the

case of F.M. Devaru Ganapathi Bhat (supra) on which reliance is

placed by the plaintiffs, drawing the attention of this court on para 6

and 8 where the ratio of law is that rule of construction is well settled

that the intention of executor of a document is to be ascertained after

considering all the words in their ordinary natural sense. The

document is required to be read as a whole to ascertain the intention

of the executant.

84. It is also necessary to take into account the circumstances under

which any particular words may have been used and then in para 8, it

is mentioned that intention of the donor is to be seen in the matter of

execution of gift deed and again it is emphasized that the document is

to be read as a whole has no application to the facts of the present

case because Ex. P-2 and P-3 only narrates the history of the past

transaction which culminated in filing of the suit no. 30-A/58 decided

on 30/08/1959 and only clarifies that there was an agreement to sale

with Shri H.R. Chopra for a sum of Rs. 10,000/-, he had paid an

advance of Rs. 1,250/-. The suit was decreed in favour of Shri H.R.

Chopra on 22/07/1959.

85. According to the judgment, registry was to be executed in

favour of Shri H.R. Chopra upto 30/08/1959 and seller to vacate the

suit premises within a period of three months and hand over

possession to Shri H.R. Chopra. It is also mentioned that except for

the said agreement, the seller had not mortgaged, gifted or alienated

the property in any other manner in favour of anybody else.

86. This reference when read in light of the specific use of name of

Shri S.N. Chopra purchaser, then there is no doubt that reference to

the history of the transaction will not be sufficient to declare the sale

deed as null and void especially when the challenge is specifically

time barred.

87. In the case of Kaliaperumal (supra), the ratio of law is that the

issue was whether the title to the suit properties passed to the

appellant upon execution and registration of the sale deed despite non

payment of balance consideration. The Supreme Court held that

registration is prima facie proof of an intention to transfer the

property, but it is not a proof of operative transfer if payment of

consideration is a condition precedent for passing of the property.

88. In this backdrop, the case was decided by the Supreme Court.

In the present case, there is no dispute in regard to payment of sale

consideration. This issue of non-payment of sale consideration could

have been raised only by seller Smt. Sardar Begum and Ahmad

Hussain and not by the present plaintiffs.

89. Therefore, this judgment has no application to the facts and

circumstances of the case.

90. As far as the judgment of the Supreme Court in Bhaurao

Dagdu Paralkar (supra) is concerned, it deals with Section 17 of the

Contract Act and points out that what is the meaning of fraud and

what are the ingredients of fraud and it is thereafter held that

collusion vitiate even most solemn proceedings in any civilized

system of jurisprudence but as Sardar Begum is not a party to the

present suit, neither the finding of collusion can be arrived at, nor any

material is there to support this allegation of fraud.

91. In the case of Tamil Nadu Electricity Board (supra), the

interpretation of Section 91 and 92 of the Evidence Act is given.

92. In para 7 of the judgment, it is held that once a contract is

reduced to writing, by operation of Section 91 of the Evidence Act, it

is not open to any of the parties to seek to prove the terms of the

contract with reference to some oral or other documentary evidence to

find out the intention of the parties. Under Section 92 of the

Evidence Act, where the written instrument appears to contain the

whole terms of the contract, then parties to the contract are not

entitled to lead by oral evidence to ascertain the terms of the contract.

93. In the present case, there is an executed sale deed and that sale

deed being available on record with a clear stipulation that property

was registered in the name of Shri S.N. Chopra, in the absence of any

cogent material of commission of fraud, for which no evidence has

been led by the plaintiffs, this judgment will also be of no assistance

to the plaintiffs/appellant.

94. In the case of Suraj Bhan and others Vs. Financial

Commissioner and others AIR 2007 SC 2481, the issue was

whether the validity and genuineness of the Will can only be decided

by the competent Civil Court under those facts and circumstances ? It

is held that validity and genuineness of the Will can only be decided

by the competent Civil Court.

95. In the present case, since the issue of Will of Shri S.N. Chopra

is already subjudice, this court would like to refrain itself from

passing any judgment on because that will prejudice the rights of the

parties who are contesting their case on the basis of said Will or

opposing, challenging the validity of the said Will.

96. In the case of Balwant Singh (supra), the ratio of law is that

mutation entries do not confer any title on the parties.

97. There is no dispute in regard to this and in the light of Section

35 of the Evidence Act, it is held that entries in revenue records do

not convey or extinguish any title but fact of the matter is that in the

present case, title has been decided on the basis of the sale deed and

not on the basis of revenue records alone and when overall conduct of

the parties is taken into consideration, then that becomes an important

factor, in as much as, as discussed above, neither registration of sale

deed was questioned within time despite having knowledge of the

judgment and decree in the hands of Shri H.R. Chopra nor any steps

have been taken to either stop Shri S.N. Chopra from renting out the

property in 1962 during the lifetime of Shri H.R. Chopra in favour of

one Modern Glass House nor there was any attempt to stop Shri S.N.

Chopra from mortgaging his property in favour of Bank to obtain a

loan.

98. Thus, their conduct reveals that Shri H.R. Chopra was having

knowledge of the fact that property was registered in the name of Shri

S.N. Chopra with his permission and he has executed the agreement

on behalf of Shri S.N. Chopra as Shri S.N. Chopra was posted out of

Jabalpur as has been deposed by Shri Naresh Chandra Chopra and,

therefore, when ratio of judgment of coordinate Bench of this Court

in Ravindra Kumar Vs. State of M.P. 2021 SCC Online MP 5522

is applied, the ratio is that unless and until a person is unable to

discover the mistake despite of due diligence, he cannot take

advantage of Section 17 of the Limitation Act.

99. In Bipin Vadilal Mehta Vs. Ramesh B. Desai 1996 SCC

online Gujarat 309, the Gujarat High Court has held that as per the

provisions contained under Article 137 of the Limitation Act 1963, it

is provided that an application for which no period of limitation is

provided elsewhere, the period of limitation would be three years and

the period of limitation would start to run from the date when the

right to apply accrues.

100. The Supreme Court in the case of Yashwant Deo Rao Vs.

Balchandra Ramchandra AIR 1959 SC 16 has held that

"Concealing from a person the knowledge of his right to apply for

execution of a decree is undoubtedly different from preventing him

from exercising his right, of which he has knowledge."

101. The Madras High Court in In re Marappa Goundar AIR

1959 Mad 26 has held in relation to Section 18 of the Limitation Act,

1908 equivalent to Section 17 of the Limitation Act, 1963 that "a

person desiring to invoke the aid of this section must establish three

things namely viz :-

(i) That there has been fraud ;

(ii) That by means of such fraud, he was kept from the

knowledge of his right to sue or apply or of the title on

which such right is founded ;

(iii) Time will be extended under the Section only as

against the person guilty of fraud, or who is accessory

thereto or who claims through the person guilty of fraud,

otherwise then in good faith and for, valuable

consideration.

102. Thus, plaintiffs/appellants herein were required to establish that

there was a fraud and that, by means of such fraud, they were kept

away from the knowledge of their right to sue or apply before this

court.

103. It is not enough to say that the action of the other side was a

fraudulent one.

104. In the present case, none of these ingredients are available to

attract Section 17 of the Limitation Act.

105. Thus, on the basis of the above discussions and findings

recorded, there is no error in the judgment and decree passed by the

learned 11th Additional District Judge, Jabalpur, in RCS No. 77-A/14.

All evidence on record has been appreciated properly and all the 12