Madhya Pradesh High Court
Sundarlal vs Smt. Gangabai W/O Late Rameshwarlal ... on 15 January, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 15th OF JANUARY, 2025
SECOND APPEAL No. 3209 of 2019
SUNDARLAL AND OTHERS
Versus
SMT. GANGABAI W/O LATE RAMESHWARLAL TRIVEDI (DECD.)
THR. LRS ADITYA KUMAR AND OTHERS
Appearance:
Shri Vimal Kumar Gangwal - advocate for the appellants.
JUDGMENT
This second appeal under Section 100 of Code of Civil Procedure is
preferred being aggrieved by the judgment and decree dated 21.08.2019
passed in Regular Civil Appeal No. 17 of 2018 by III Additional District
Judge, Ratlam arising out of judgment and decree dated 19.12.2017 in
Regular Civil Suit No. 34-A/2015 by Additional Judge to the Court of Civil
Judge Class-I, Selana District, Ratlam.
2. The facts in brief are that appellants herein filed a Civil suit
seeking relief of declaration of title, partition setting aside the sale deed
dated 27.03.2012 executed by Smt Gangabai in collusion with Adhitya
Kumar Trivedi in favour of Smt Sunita on the ground that suit house situated
at Shastri Marg, Selana, Ratlam was purchased on 12.04.1975 by
Rameshwarlal Trivedi, who was the father of appellants and Aditya Kumar
and husband of Gangabai in the name of Gangabai from the income of Joint
Hindu Family Property. Rameshwarlal Trivedi died on 18.08.2011. The
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house is in possession of appellants/plaintiffs and they are depositing the
concerned taxes in Municipal Council, Selana, District Ratlam. The House
was constructed from the same proceeds of agricultural land sold on
26.04.1979. Appellant/plaintiff No.2 Mohanlal is physically challenged
person. Appellants have equal right on the suit property and Gangabai had
no right to execute the sale deed of the suit property. Gangabai was residing
with her son Adhitya Kumar since 25-30 years and taking the un-due
advantage of this situation a sale deed was executed by Gangabi in favour of
her daughter-in-law on 27.03.2012. The sale deed is without authority and
does not confirms any right. All the appellants/plaintiffs are entitled for one
fourth share.
3. The suit was contested and written statement was filed in which it
was stated that Gangabai was in Government service and from the income of
her earnings as Government servant she paid the whole consideration and got
executed the sale deed and thereafter Gangabai executed sale deed in favour
of Sunita. The suit is time barred.
4. Trial Court framed total nine issues and recorded the evidence of
Sunderlal Trivedi as PW-1, Premnarayan Upadhyay as PW-2, Shivnarayan
Rathore as PW-3, Kalulal Kasera as PW-4, Rakesh Sharma as PW-5,
Shankarlal Lakara as PW-6, Ramesh Chandra Sharma as PW-7 and admitted
the documents Exhibit-P-1 to P-21 filed on behalf of plaintiffs/appellants.
No evidence was adduced by the defendants/respondents.
5. Trial Court found proved that appellants/plaintiffs are in
possession of the suit house, but did not found proved that suit house was
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purchased by Gangabai from income of joint family property and further did
not found proved that the suit house was purchased by Rameshwarlal in the
name of Gangabai and granted the relief to the extent that
defendants/respondents shall not interfere in the possession of the
plaintiffs/appellants, without following the due process of law, but dismissed
the suit of the plaintiffs regarding rest of the reliefs.
6. The appeal filed by the appellants/plaintiffs was also dismissed
and this second appeal is preferred proposing following substantial questions
of law and relying on Moolchand Vs Radha Sharan and another, 2006(II)
MPWN 139 :-
"1. Whether the lower appellate Court committed
illegality in not decreeing the suit of plaintiff - in view
of the fact and circumstances of the case.
2. Whether the Court below is justified in
disallowing the appeal filed by the appellant ignoring
the material evidence on record.
3. Whether the finding arrived by the appellate
Court below that Gangabi has right to sell the house is
perverse and unsustainable in law.
4. Whether non transfer of possession sale deed
is invalid.
5. Whether the plaintiff proves that the suit
schedule properties are the ancestral properties of
plaintiff and defendant.
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6. Whether the Courts below erred in shifting
the burden on plaintiff to prove that Gangabai has no
self income."
7. Heard and perused the record.
8. The main grievance of the appellants is to the effect that trial
Court committed error in recording the findings that it is not proved that suit
house was purchased by Rameshwarlal Trivedi in the name of Gangabai
from the income of Joint Hindu Property. It is also argued that first appellate
Court recorded the findings, without any proof, that Gangabi was serving as
Government servant.
9. Perusal of Exhibit-P-21 discloses that suit house was purchased
for a consideration of Rs. 2,500/- and purchaser is Gangabai. Paragraph-5
of the plaint mentions that the information regarding family has been
obtained from Ayurvedic Department, District Ratlam, Madhya Pradesh.
This affirms that Gangabai was working in Ayurvedic Department in District
Ratlam. So there is no case that Gangabai has no source of income at the
relevant period when Exhibit-P-21 was executed. Exhbit-P-21 no where
mentions that suit land was purchased by Rameshwarlal Trivedi in the name
of his wife. Even Rameshwarlal Trivedi is not a witness in the document.
Exhibits-P-18, P-20 and Exhibit-P-4 to P-17 and Exhibit-P-19 also does not
discloses that they have been misinterpreted by the trial Court and first
appellate Court when the suit property was purchased through Exhibit-P-21
then the nature of that property cannot be termed as an 'ancestral property'.
10. Merely because trial Court proceeded against
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defendants/respondents as ex-parte at the stage of plaintiffs' evidence in itself
does not entitles the plaintiffs to decree the suit. The decree has to be based
on evidence and trial Court has recorded the findings after appreciation of
plaintiffs' evidence and interpreting the documents filed by the plaintiffs. It
is not a case where evidence has been examined beyond the pleadings. It is
also not a case where any benefit of weakness of his opponent have been
availed. Plaintiffs does not succeed on the strength of Moolchand Vs Radha
Sharan (supra), Hence, no substantial questions of law arises for
consideration in this appeal. Accordingly, the appeal being devoid of merit is
hereby dismissed
No order as to costs.
(GAJENDRA SINGH)
JUDGE
rashmi
