[Cites 4, Cited by 0]
Madhya Pradesh High Court
Ramkishan vs Om Prakash Sharma (Dead) Th Lrs Smt. ... on 1 December, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:31013
1 SA-322-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 1 st OF DECEMBER, 2025
SECOND APPEAL No. 322 of 2012
RAMKISHAN
Versus
OM PRAKASH SHARMA (DEAD) TH LRS SMT. RAJNI
SHARMA(DELETED) AND OTHERS
Appearance:
Shri Rohit Bansal - Advocate for the appellant.
Shri M.L.Bansal- Advocate for the respondents.
WITH
CIVIL REVISION No. 97 of 2012
SMT. RAJNI SHARMA (DELETED) AND OTHERS
Versus
RAMKISHAN AGRAWAL
Appearance:
Shri M.L.Bansal - Advocate for the applicants.
Shri P.D.Agrawal-Advocatefor the respondent.
JUDGMENT
By this common judgment Civil Revision No. 97/2012 shall also be
disposed of.
2. This Second Appeal under Section 100 CPC has been filed against
the judgment and decree dated 13.04.2012 passed by Seventh Additional
District Judge, Gwalior in Civil Appeal No. 5A/2012 whereas Civil Revision
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under Section 115 of CPC has been filed against the same judgment and
decree passed in Civil Appeal No. 52A/2011. Second Appeal has been filed
against dismissal of the suit whereas Civil Revision has been filed against
dismissal of the claim of the defendant to the effect that defendant is the
owner of the property in dispute.
3. Since Civil Revision has been filed against rejection of claim made
by respondent/applicant and not against any finding, therefore, the question
of maintainability of Civil Revision shall also be considered.
4. Facts necessary for disposal of present appeal as well as Civil
Revision in short are that plaintiff Ramkishan/appellant filed a suit for
possession, mesne profits, eviction as well as declaration of sale deed dated
6.11.1984 as null and void and not binding on the plaintiff. It is not out of
place to mention here that the defendant who is the applicant in Civil
Revision had claimed that Yashwant Rao had executed a Will in favour of
Babu Rao and Babu Rao in his turn had executed a sale deed dated
6.11.1984 in favour of the defendant.
5. It was the case of the plaintiff/appellant Ramkishan that he is the
owner and in possession of a house situated in Shekh Ki Bagiya, Janakganj,
Lshkar Gwalior. The said house was purchased by him by a registered sale
deed dated 21.7.1981 for a consideration amount of Rs.5000/. The old
Municipal Number of the building was 4/284/1 and the new Number is
22/349. It was the case of the appellant that at the time of purchase of the
property one Babu Rao S/o Shankar Rao Kolte was the tenant on monthly
tenancy of Rs. 50/- and after purchasing the property Babu Rao became the
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tenant of the plaintiff. The tenancy was monthly starting from first of every
English calendar month.
6. Babu Rao Kolte had paid the rent to the plaintiff up to 1989. Babu
Rao Kolte died without leaving any legal representative. After the death of
Babu Rao Kolte, when the plaintiff went to the disputed property, then he
found that original defendant Omprakash was in possession of the property
in dispute. He informed that he was inducted by Babu Rao Kolte. When the
plaintiff directed the defendant to vacate the premises, then he avoided to do
the same. In the month of June, 1996, the defendant refused to vacate the
premises and started denying the title of the plaintiff. Accordingly, a
registered notice dated 01.07.1996 was sent by the plaintiff by directing the
defendant to vacate the premises. However, the said notice was neither
replied nor any mesne profit was paid. Accordingly, it was claimed that the
property in dispute is in the sole ownership and possession of the plaintiff
and the induction of the defendant as a subtenant by Babu Rao is contrary to
law and accordingly, it was prayed that the plaintiff is entitled for vacant
possession of the property in dispute and mesne profits to the tune of Rs.
11,500/- were also claimed.
7. The defendant filed his written statement and claimed that the
registered sale deed dated 21.07.1981 as claimed by the plaintiff is forged
document. Babu Rao Kolte was never the tenant of plaintiff. In fact, the
defendant has purchased the property in dispute by a registered sale deed
dated 06.11.1984 executed by Babu Rao Kolte. A Will was executed by
Yashwant Rao on 25.08.1978 in favour of Babu Rao Kolte. Yashwant Rao
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expired on 13.11.1979.
8. After written statement was filed, the plaintiff amended the plaint
and denied that any will was executed in favor of Baburao Kolte. The sale
deed dated 6-11-1984 purportedly executed by Baburao Kolte in favor of
defendant was also challenged. It was denied that the plaintiff had obtained
the sale dated 21-07-1981, (Ex. P-1) by impersonating someone else as
Yashwant Rao. Accordingly, by amendment, the sale deed executed in favor
of the defendant by Baburao Kolte was also challenged.
9. The trial Court, after framing issues and recording evidence, decreed
the suit so far as declaration of title is concerned. However, the prayer for
possession was denied.
10. Being aggrieved by judgment and decree passed by the trial Court,
the appellant Ramkishan preferred an appeal against the rejection of his
claim for possession, whereas the defendant filed separate appeal against the
declaration of plaintiff as owner. By a common judgment, the appellate court
has allowed the appeal filed by the defendant so far as it relates to the title of
the plaintiff. However, the counterclaim of the defendant with regard to
declaration of his title was rejected.
S.A. No. 322/2012.
11. Challenging the judgment and decree passed by the appellate court,
it is submitted by counsel for appellant that it is correct that in the sale deed
dated 21-07-1981, the name of the seller was mentioned as Yashwant
Shewale. But in fact the sale deed was executed by Jaywant Rao, S/o late
Shri Yashwant Rao. Accordingly, the plaintiff had filed a Civil Suit No.
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5 SA-322-2012
2A/1988 against Jaywant Rao for a declaration that the sale deed was
executed by Jaywant Rao. The said suit was registered as Civil Suit No.
2A/1988 and the Sixth Civil Judge Class II, Gwalior by judgement dated
28.7.1993 passed a decree on the basis of admission made by Jaywant Rao.
Thus, it is submitted that although in the sale deed dated 21.07.1981, the
name of the seller was mentioned as Yashwant Rao Shewale but in fact the
sale deed was executed by Jaywant Rao which is evident from judgement
and decree dated 28.7.1993 (Ex. P/3).
12. Considered the aforesaid submissions made by counsel for
appellant.
13. The Second Appeal was admitted on the following substantial
question of law:-
"Whether both the Courts below have erred
in dismissing the suit of plaintiff/appellant
despite the finding that the plaintiff/appellant
is owner of the suit property and also by
ignoring the judgment and decree Ex.P/3 and
Ex.P/4 passed by the Competent Civil Court
in favour of plaintiff/appellant?"
14. The moot question for consideration is as to whether the sale deed
dated 21.07.1981 was executed by Yashwant Rao or his son Jaywant Rao.
According to the plaintiff, Yashwant Rao had expired on 13.11.1979,
therefore it is clear that on the date of execution of sale deed dated 21.7.1981
(Ex.P/1) Yashwant Rao was no more. It is the case of plaintiff that the Court
of competent jurisdiction by a judgement and decree dated 28.07.1993
passed in Civil Suit No. 2A/1988 had declared that the sale deed was
executed by Jaywant Rao and not by Yashwant Rao and thus it is claimed
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that the sale deed dated 21.07.1981 (Ex. P/1) should have been treated as a
sale deed executed by Jaywant Rao and the plaintiff should have been
declared the owner of the property in dispute.
15. Now the only question for consideration is as to whether
judgement and decree dated 28.7.1993 passed by Sixth Civil Judge, Class-II,
Gwalior in Civil Suit No. 2A/1988 is a judgement in rem or judgment in
personam. It is contended by counsel for the appellant that since by
judgement and decree dated 28.7.1993 (Ex. P/3) it was declared by
the Court of competent jurisdiction that sale deed dated 21.7.1981 (Ex. P/1)
was in fact executed by Jaywant Rao, therefore, any other interpretation with
regard to sale deed 21.7.1981 is not permissible. However, the counsel for
the appellant could not give any answer with authority that the judgment and
decree dated 28.7.1993 (Ex. P/3) was a judgment in rem .
16. Per contra, it is the case of respondent that in fact judgment and
decree dated 28.7.1993 (Ex. P/3) is a collusive decree and since the
defendant or any other person was not a party to the said decree, therefore, at
the most it can be said to be a judgment in personam and is not binding on
any other person who was not a party to the said decree.
17. Considered the submissions made by counsel for the parties.
Judgment in rem means as under:-
"Judgment in rem ", operates on a thing or status rather than against the
person and binds all persons to the extent of their interest in the thing,
whether or not they were parties to the proceedings.
Judgment in personam means as under:-
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"Judgment in personam", signified the judgements which are good
only against the individuals who are parties to them and their privies.
18. Therefore, when the suit was filed by one individual against
another individual claiming sale deed dated 21.7.1981 (Ex. P/1) was in fact
executed by Jaywant Rao and not by Yashwant Rao, then the said decree
cannot be said to be a judgment in rem specifically when the suit was never
contested by Jaywant Rao and he admitted the claim of the plaintiff. Thus, it
is held that judgment and decree dated 28.07.1993 passed in Civil Suit No.
2A/1988 is a judgment in personam and would bind the parties to the said
suit only.
19. Even if the sale deed dated 21.7.1981 (Ex.P/1) is seen
independently since it would not be possible for this Court to hold that in
fact the name of Yashwant Rao as a seller was wrongly mentioned because
of some typographical error. The reasons for this conclusion are as under:-
(i) It is clear from the sale deed dated 21.7.1981 (Ex.P/1), that the
stamp paper was purchased on 20.7.1981 in the name of Yashwant Rao, who
had already died on 13.11.1979.
(ii) In the body of the sale deed, it is mentioned that the seller had got
this property by virtue of registered Will dated 25.10.1966 and the name of
vendor is also recorded in the house tax register of Municipal Corporation,
Gwalior. It is not the case of the plaintiff that he had got this property by
virtue of registered Will. The mother of Yashwant Rao had already died
prior to the death of Yashwant Rao. Even otherwise, the copy of house tax
register of Municipal Corporation, Gwalior has also not been filed to show
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that after the death of Yashwant Rao i.e. on 13.11.1979, name of plaintiff
was ever recorded on the basis of Will executed by somebody. Although
counsel for appellant tried to project that in fact the Will was executed by his
mother and not the mother of late Shri Yashwant Rao but there is no
averment in the plaint that the property in dispute was bequeathed by mother
of Jaywant Rao.
(iii) As per endorsement made on the reverse side of first page of sale
deed, (Ex. P/1) it is clear that even the Sub-Registrar had mentioned the
name of Executant as Yashwant Rao Shewale and not Jaywant Rao.
20. Thus, it is clear that not only the stamp paper was purchased in the
name of dead person but in the body of the sale deed also source of title of
the dead person was disclosed and even the Sub-Registrar had made an
endorsement that Yashwant Rao Shewale (who had already died on
13.11.1979) has executed the sale deed.
21. Under these circumstances, this Court is of considered opinion that
the appellate Court did not commit any mistake by holding that the plaintiff
has failed to prove that he had acquired any right or title in the property by
virtue of sale deed dated 21.7.1981 (Ex. P/1). Accordingly, the substantial
question of law is answered in negative.
Civil Revision No. 97/2012.
22. By referring to paragraph-37 of the impugned judgment, it is
submitted by counsel for applicant/defendant that the defendant had never
filed any counter claim seeking declaration of his title, and therefore, the
appellate Court was wrong in observing that since counter claim filed by the
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defendant is being rejected, therefore, appeal filed by the defendant in
respect of rejection of his counter-claim is dismissed.
23. It appears that the record of the Civil Appeal No. 52A/2012 has
not been received whereas the records of Civil Appeal No. 5A/2012 as well
of the trial Court has been received. Accordingly, the counsel for appellant
provided the copy of memo of appeal filed by the applicant/defendant. The
prayer clause of the memo of appeal reads as under:-
"अत: िनवेदन है क अपीलॉट क अपील वीकार कर अिधन थ यायालय ारा
पा रत िनणय व जय प म से वाद मांक 1,4,5,9 के स बंध म िनकाला गया
िन कष िनर त करते हुए वाद का वाद िनर त कया जावे तथा उसके हत म
स पा दत बयनामा दनांक 20/7/1981 अपीला स के मुकाबले यथ एवं
भावशू य घो षत कया जाकर ाथ गण के हत म स पा दत बयनामा
06/11/1984 मा य कया जाकर ाथ गण को वाद त भवन का वामी घो षत
कया जावे। अ य सहायता जो वाद गण/ अपीला स के हत म दलायी जावे।"
24. Thus, it is clear that the applicant had sought declaration of his title
in respect of property in dispute. Undisputedly, the applicant did not file any
counter-claim for seeking declaration of his title. After reading out the prayer
clause, the counsel for the applicant was requested to explain that what legal
word could be used by First Appellate Court except counter-claim ? It was
fairly conceded by Shri M.L. Bansal-Advocate that the prayer clause of
memo of appeal filed by the applicant was not proper. Furthermore, it was
the case of applicant that Yashwant Rao had executed a Will in favour of
Babu Rao and Babu Rao in his turn executed a sale deed dated 06.11.1984.
The Will allegedly executed by Yashwant Rao has not been placed on
record. No attesting witness of the said Will has been examined by the
defendant.
25. Although, the counsel for the applicant/defendant submitted that an
application under Section 65 of the Evidence Act was filed seeking
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permission to lead secondary evidence but the said application was rejected
by order dated 15.09.2011 and within a month thereafter the decree was
passed. The aforesaid submission made by the counsel for
applicant/defendant is shocking. How a party to the litigation can complaint
that the trial Court had proceeded at a swift speed ?
26. Be that whatever it may be.
27. This Court would not like to embark upon the aforesaid
submission made by Counsel for the applicant/defendant except by saying
that the suits are not meant to be adjourned as per the pleasure of the parties
but the suit should be decided at the earliest. Even otherwise, it is clear that
on 07.09.2011 the applicant/defendant filed an application under Section 65
and 66 of Evidence Act and by order dated 15.09.2011, the said application
was rejected. Thereafter, the evidence of the defendant witnesses were
recorded and by judgment and decree dated 19.10.2011 the suit was decided.
Furthermore, it is the case of the applicant/defendnat that Babu Rao Kolte in
his turn had executed a sale deed in his favour. Even no attesting witness of
the sale deed was examined. Even the applicant/defendant had failed to prove
the sale deed purportedly executed by Babu Rao Kolte in his favour. Under
these circumstances, this Court is of considered opinion that the findings
recorded by the Court below with regard to the fact that the
applicant/defendant has failed to prove his ownership by virtue of sale deed
executed by Babu Rao Polte (Ex. D-1) is in accordance with law.
28. So far as the criticism of the appellate Court by the Counsel for
applicant/defendnat that no counter-claim was filed in spite of that the
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appellate Court has used the word "counter claim" in paragraph-37 of the
impugned judgment is concerned, it is suffice to mention here that once the
defendant/applicant himself has claimed declaration of his title, then the only
appropriate word for adjudication of his claim was "counter claim" and the
appellate Court did not commit any mistake by projecting the claim of
applicant as a counter-claim. However, it is made clear that no counter-claim
was ever filed by the applicant and therefore, he was also not entitled for any
declaration in his favour. However, it is suffice to mention here that since the
applicant/defendant had also claimed that he is the owner but he has failed to
prove his ownership.
29. Under these circumstances, it is held that in fact Civil Revision has
not been filed against any finding but has been filed for declaration of his
title, therefore, Civil Revision is not maintainable.
30. Accordingly, this Court is of considered opinion that the judgment
and decree dated 13.04.2012 passed by the Seventh Additional District
Judge, Gwalior does not require any interference.
31. Accordingly, the judgement and decree dated 13.04.2012 passed
by the Seventh Additional District Judge, Gwalior is hereby affirmed.
32. Accordingly, Second Appeal as well as Civil Revision are hereby
dismissed.
(G. S. AHLUWALIA)
JUDGE
ar
