Satyendra Singh vs Rajendra Singh
2024 Latest Caselaw 16163 MP

Madhya Pradesh High Court

Satyendra Singh vs Rajendra Singh on 30 May, 2024

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

       IN THE HIGH COURT OF MADHYA PRADESH
                       AT JABALPUR

                          BEFORE
           HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                     ON THE 30th OF MAY, 2024

                   SECOND APPEAL No.2106 of 2022

BETWEEN:-

1.    SATYENDRA SINGH S/O SHRI BHAN SINGH
      THAKUR,   AGED    ABOUT    33    YEARS,
      OCCUPATION: AGRICULTURIST, R/O VILLAGE
      JER,  TEHSIL   PRITHVIPUR     DISTRICT
      TIKAMGARH (MADHYA PRADESH)

2.    RAVINDRA SINGH S/O BHANSINGH THAKUR,
      AGED ABOUT 40 YEARS, OCCUPATION:
      AGRICULTURIST R/O VILLAGE JER, TEHSIL
      PRITHVIPUR    DISTRICT    TIKAMGARH
      (MADHYA PRADESH)

                                            .........APPELLANTS

(BY SHRI SANJAY SARWATE - ADVOCATE)

AND

1.    RAJENDRA SINGH S/O SHRI BHAGWAT
      SINGH THAKUR, AGED ABOUT 40 YEARS,
      VILLAGE  JER   TEHSIL  PRITHVIPUR
      DISTRICT   TIKAMGARH      (MADHYA
      PRADESH)

2.    VEER SINGH S/O BHAGWAT SINGH
      THAKUR, AGED ABOUT 38 YEARS, R/O
      VILLAGE  JER,  TEHSIL PRITHVIPUR
      DISTRICT   TIKAMGARH    (MADHYA
      PRADESH)


1
 3.     VIJAYBHAN SINGH S/O BHAGWAT SINGH
       THAKUR, AGED ABOUT 35 YEARS, R/O
       VILLAGE  JER,   TEHSIL PRITHVIPUR
       DISTRICT    TIKAMGARH    (MADHYA
       PRADESH)

4.     HABALDAR SINGH THAKUR S/O BIRBAL
       SINGH THAKUR, AGED ABOUT 50 YEARS,
       R/O VILLAGE JER, TEHSIL PRITHVIPUR
       DISTRICT    TIKAMGARH     (MADHYA
       PRADESH)

5.     PADAM    SINGH   S/O  BIRBAL  SINGH
       THAKUR, AGED ABOUT 41 YEARS, R/O
       VILLAGE    JER,  TEHSIL  PRITHVIPUR
       DISTRICT     TIKAMGARH      (MADHYA
       PRADESH)

6.     SMT. SASHI W/O BHAGWAT SINGH
       THAKUR, AGED ABOUT 65 YEARS, R/O
       VILLAGE  JER,  TEHSIL PRITHVIPUR
       DISTRICT   TIKAMGARH    (MADHYA
       PRADESH)

7.     STATE OF MADHYA PRADESH THROUGH
       COLLECTOR   TIKAMGARH    DISTRICT
       TIKAMGARH (MADHYA PRADESH)

                                                                      ..... RESPONDENTS

(SHRI AISHWARYA SAHU - ADVOCATE FOR RESPONDENTS 1-3
AND SHRI O.P. PATEL - PANEL LAWYER FOR RESPONDENT
7/STATE )

------------------------------------------------------------------------------------------------
       This appeal coming on for admission this day, the court passed the
following:

                                          ORDER

       This      second      appeal       has      been       preferred       by      the
appellants/defendants       3-4     challenging     the    judgment      and      decree
dtd.13.05.2022     passed    by First       District      Judge,   Niwari, District

Tikamgarh in RCA No.100007/2016 reversing the judgment and decree dtd.29.01.2016 passed by Civil Judge Class-I, Niwari, District Tikamgarh in civil suit No.174-A/2004 whereby trial court despite deciding issue no.2&3 in favour of the plaintiffs, dismissed the suit, which in appeal filed by the plaintiffs has been decreed to the extent of 3/4 share in the suit land, total area 3.165 hectare situated in village Jer, Tahsil Prithvipur, District Tikamgarh.

2. Facts in short are that the agricultural land having an area 3.165 hectare belonged to plaintiffs' father-Bhagwat Singh, who after his death was survived by wife Smt. Shashi Bai and three sons namely Rajendra, Veersingh and Vijaybhan (Plaintiffs). In the minority of plaintiffs, mother Smt. Shashi Bai vide registered sale deed dtd.30.11.1992 (Ex.P/1 and D/6) sold entire area of the land to defendants 1-2 and thereafter the defendants 1-2 sold the suit land in favour of defendants 3-4/appellants vide registered sale deed dtd.24.05.1995 and 28.06.1995 (Ex.D/1 and D/2). As such the plaintiffs through guardian and mother Smt. Shashi Bai instituted suit on 19.08.1994 seeking relief to the effect that the sale deed executed on 30.11.1992 is null and ineffective as against 3/4 share of the plaintiffs. It is also prayed that the sale deed executed by defendants 1-2 on 24.05.1995 and 28.06.1995 in favour of defendants 3-4 are also ineffective and as the defendants 3-4 have taken possession during pendency of suit, therefore, possession be restored. Despite holding the plaintiffs to be owner of 3/4 share in the suit land, trial court dismissed the suit, which has been decreed by first appellate court.

3. Learned counsel for the appellants/defendants 3-4 submits that although courts below have concurrently held that the sale deed dtd.30.11.1992 (Ex.P/1 and D/6) is void to the extent of 3/4 share of the plaintiffs, but in view of the fact that on the date of filing of suit the plaintiffs were not in possession and they also did not seek any relief of possession, therefore, first appellate court has committed illegality in passing decree in their favour regarding declaration of title and restoration of possession, that too without taking into consideration the findings recorded by trial court in respect of delivery of possession to the defendants 1-2 and thereafter by defendants 1-2 to the defendants 3-4. Learned counsel submits that as the plaintiffs were not in possession on the date of suit and in absence of relief of possession, as well as upon failure of proving the plea of dispossession during pendency of suit, the judgment and decree passed by first appellate court is not sustainable. With these submissions, he prays for admission of second appeal.

4. Learned counsel appearing for respondents 1-3/plaintiffs supports the impugned judgment and decree passed by first appellate court and prays for dismissal of second appeal.

5. Heard learned counsel for the parties and perused the record.

6. While deciding issue Nos.2 & 3 trial court has categorically held that the sale deed executed by mother of plaintiffs namely Smt. Shashi Bai is invalid to the extent of plaintiffs' 3/4 share in the suit land and consequently the sale deeds executed by defendants 1-2 in favour of defendants 3-4 (dtd. 24.05.1995 and 28.06.1995) are also null and ineffective as against 3/4 share of plaintiffs.

7. It is also undisputed fact on record that before execution of sale deed dtd.30.11.1992 by plaintiffs' mother Smt. Shashi Bai no permission of the District Judge, required under Section 8 of the Hindu Minority and

Guardianship Act, 1956 was taken. The findings recorded by trial court have been affirmed by first appellate court by the impugned judgment and decree. So there is concurrent finding of fact of the courts below regarding title of the plaintiffs over 3/4 share in the suit land.

8. So far as the question of legality of decree of possession passed by first appellate court is concerned, the plaintiffs have taken plea that the defendants have taken possession during pendency of suit and with these pleadings they prayed for restoration of possession.

9. Trial court while deciding issue No.4 has come to conclusion that the defendants 1-2 were delivered possession on the date of execution of sale deed itself and the plea of dispossession taken by plaintiffs in the plaint is not proved, hence dismissed the suit.

10. In my considered opinion, when the mother of plaintiffs namely Shashi Bai was not having any right over the entire suit property and the sale deed has been found to be invalid to the extent of 3/4 share of the plaintiffs, therefore, in any case the defendants are not entitled to remain in possession of the land without having any title.

11. Although first appellate court has not dealt with the effect of findings recorded by trial court in paragraphs 24 to 26 of its judgment, but in the light of decision of Hon'ble Supreme Court in the case of Smt. Gitarani Paul vs. Dibyendra Kundu @ Dibyendra Kumar Kundu AIR 1991 SC 395 (para 8), even if the plaintiffs have not been able to prove the plea of dispossession during pendency of suit, in the suit for possession based on title, which has been found proved by courts below, it cannot be said that the suit is liable to be dismissed. Para 8 of said decision is reproduced as under :

"8. In the face of clear pleadings and the evidence on record the High Court was wrong in reaching the conclusion that there was no pleadings and evidence regarding dispossession. Even otherwise in the face of the finding of the courts below that the appellant-plaintiff had proved her title it was not necessary for the High Court to go into the question of ascertaining the date of dispossession. We, therefore, do not agree with the reasoning of the High Court and set aside the same. "

12. In view of the aforesaid discussion, in my considered opinion first appellate court does not appear to have committed any illegality in decreeing the suit for possession also.

13. Resultantly for want of any substantial question of law, this second appeal fails and is hereby dismissed.

14. Misc. application(s), pending if any, shall stand closed.

(DWARKA DHISH BANSAL) JUDGE

ss