Madhya Pradesh High Court
Rakesh Kumar vs Manoharlal on 28 May, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 28 th OF MAY, 2024
SECOND APPEAL No. 1186 of 2021
BETWEEN:-
RAKESH KUMAR S/O MUNNALAL GUPTA, AGED ABOUT
50 YEARS, OCCUPATION: BUSINESSMAN R/O TEHSIL
AND DISTRICT NIWARI (MADHYA PRADESH)
.....APPELLANT
(BY SHRI PRATEEK RUSIA - ADVOCATE)
AND
1. MANOHARLAL S/O RAGHUVAR DAYAL DUBEY,
AGED ABOUT 74 YEARS, R/O MOHALLA
KANCHANPURA, TEHSIL AND DISTRICT NIWARI
(MADHYA PRADESH)
2. BUDDHIPRAKASH S/O KHARE RAIKWAR, AGED
ABOUT 38 YEARS, R/O MOHALLA KANCHANPURA
TEHSIL AND DISTRICT NIWARI (MADHYA
PRADESH)
3. STATE OF MADHYA PRADESH THROUGH
C O L L E C T O R DISTRICT NIWARI (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENT NO.3-STATE BY SHRI AMIT GARG - PANEL LAWYER)
Reserved on : 01.05.2024
Pronounced on:28.05.2024
This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
ORDER
The civil suit filed by appellant (hereinafter referred to as "plaintiff") was
decided on 20.12.2019 by Second Civil Judge, Class I, district Niwadi, civil
district Tikamgarh, as RCS No.5-A/2012 against which first appeal was
preferred before First Additional District Judge, Niwadi, district Tikamgarh, as
RCA No.15/2020 and it was decided and dismissed on 9.6.2021, therefore this
second appeal has been preferred by plaintiff against respondents (hereinafter
referred to as "defendants analogous to their numbers").
2. The facts admitted here are that a civil suit was fought between defendants
no.1 and 2 which was registered as 9-A/2011 and was decided on 23.1.2012 by
the concerned court. Admittedly, that suit was also for the disputed property of
this case which is of Survey No.1918/1.
3. The plaintiff had pleaded before the trial court that this property measuring
40 X 40 sq.ft. and referred to as Plot No.2 of Ward No.11 was sold through
auction on 31.5.1974 in which the highest bid was made by Radhamohan Savita
at Rs.1575/-; this bid was finalized and Radhamohan Savita became the owner
of suit property; his name was recorded in the record of Nagar Panchayat; on
13.10.2009, plaintiff purchased this property from Radhamohan Savita upon
which a kachha house in the area of 18 X 12 sq.ft. was constructed and rest of
the plot was left as an open land; since the date of purchase, plaintiff was in
possession of suit property; defendant no.1 fraudulently got this property
recorded in the name of his family members and also of himself; he then
contested a collusive suit with defendant no.2 in which they arrived at a
compromise and a fraudulent decree was obtained; on 2.5.2012 when plaintiff
tried to start construction work on the suit property he was obstructed by the
defendants, therefore the suit was filed and during its pendency, defendant no.1
encroached upon the suit property.
4. Defendants contested the suit and claimed that Radhamohan Savita was
never the owner or the possession holder of suit property; a house was
constructed on this land by defendant no.1 and no right, title or interest was
accrued to plaintiff in the suit property as the seller himself was having no such
right, title or interest therein; the suit property was purchased by the wife of
defendant no.1 and the house on this property was existing since the year 1973.
It was, therefore, prayed that the suit should be dismissed.
5. The trial court framed issues and both the parties tendered evidence in
support of their claim. After appreciating the evidence, the trial court dismissed
the suit and the first appellate court affirmed that decree.
6. The grounds raised in this second appeal are that both the courts below
committed error in failing to appreciate the ownership of Radhamohan Savita
over the disputed land; there were revenue record entries, tax receipts and all
other incidental documents of ownership available in favour of plaintiff; the first
appellate court rightly held that the decree obtained on the basis of Rajinama
by defendants was not binding upon the plaintiff, still his appeal was dismissed;
defendants failed to prove any document of title; in the light of the facts of the
case, the first appellate court should have remanded the matter to the trial court
but it failed to adopt proper course; judgment of learned appellate court is
erroneous and is therefore liable to be set aside. Accordingly, it was requested
that the appeal should be admitted on the substantial questions of law as
proposed in the appeal memo.
7. Arguments of learned counsel for plaintiff have been heard on admission
and the records of the courts below have been perused.
8. It is a case where the plaintiff is claiming ownership on the basis of a sale-
deed executed on 13.10.2009 in his favour by one Radhamohan Savita. That
sale-deed is Ex.P-9. Further, plaintiff has relied upon the other documents as
well to establish his ownership over the property and they are Exs.P-1 to P-7
and P-10 to P-19 and also Exs.P-35 to P-40. These documents relate to the
sanctions obtained by the plaintiff, the tax paid by him, the Government record
entries, etc. but they alone cannot bestow title on the plaintiff. Further, it is not a
case of possessory title, therefore it cannot be claimed that on the basis of his
possession of three years, plaintiff acquired any title in the suit property.
9. Ex.P-9 is a registered sale-deed executed in favour of plaintiff but despite
this important document executed in favour of plaintiff, the courts below did
not find him to be the owner of suit property and the reason assigned for this
finding is that the seller himself did not have any ownership in the suit property,
therefore plaintiff acquired none. According to plaintiff, the suit property was
purchased by his predecessor-in-title Radhamohan Savita in an auction in which
he made the highest bid at Rs.1575/- but plaintiff could not file any document
which would show that the bid amount was paid by Radhamohan Savita within
the prescribed period. Ex.P-4 is the document through which Radhamohan
Savita paid the balance amount of Rs.1050/- in the year 2007 while the auction
was held in the year 1974. Ex.P-1 is the document which was given to
Radhamohan Savita asking him to pay the balance amount against the total bid
of Rs.1575/- expeditiously but to deposit this amount, Radhamohan Savita took
almost 33 years which cannot be considered as an expeditious step.
10. The courts below have considered this aspect and have observed that this
balance amount was deposited almost 33 years after the auction without seeking
any permission for condonation of delay and it was also not explained on
whose directions or under whose order, this balance amount was paid by
Radhamohan Savita under Ex.P-4. Furthermore, the auction by sale is not
complete unless the sale certificate is issued and admittedly there was no sale
certificate issued in favour of Radhamohan Savita. In the light of these facts, the
courts below did not commit any error in holding that Radhamohan Savita did
not acquire any ownership in the suit property, hence he could not transfer any
right, title or interest in the suit property to the plaintiff.
11. From the judgments of the courts below, it is evident that at both the
stages the evidence on possession was meticulously assessed and examined by
the courts below and both of them came to the finding that the plaintiff was not
in possession of suit property even on the date of filing the suit. Admittedly, an
amendment was incorporated by the plaintiff in the plaint that he was
dispossessed during the pendency of suit but both the courts below observed
otherwise and held on the basis of admissions made by the plaintiff's witnesses
that the suit property was never in possession of plaintiff. The counsel for
plaintiff has heavily relied upon the finding given by the learned first appellate
court that the collusive decree passed in Civil Suit No.9-A/2011 was not binding
on the plaintiff but here the rights of the parties were not being decided on the
basis of that decree. In the present case, the fact of ownership as well as
possession was discussed at length and it has already been mentioned above
that the plaintiff has failed to prove the ownership as well as possession over
the suit property.
12. Section 110 of Indian Evidence Act lays down the rule of burden of proof
and it says that when the question is whether any person is owner of anything of
which he is shown to be in possession, the burden of proving that he is not the
owner is on the person who affirms that he is not the owner. Here also, the
defendant no.1 has been shown to be in possession of suit property as on the
date of filing of suit and to prove that he is not the owner thereof is on the
plaintiff but he has failed in not only proving his ownership but also in
demolishing the title of defendants. No burden would shift upon the defendants
unless the initial burden enjoined by law is discharged by the plaintiff. Since
plaintiff has failed to discharge the said burden in the present case, therefore it is
held that he cannot claim any relief against the defendants and both the courts
below committed no error in dismissing his suit/appeal.
13. On the basis of foregoing discussion, this second appeal is dismissed in
limine for the reason of absence of any substantial question of law involved
herein.
14. The second appeal is accordingly dismissed and disposed of.
15. Let a copy of this judgment along with its records be sent to the trial court
for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
ps
Date: 2024.05.29 10:33:08 +05'30'
