Madhya Pradesh High Court
Dilip Mehta vs Decd.Manakchand Thru.Lrs.Motilal on 17 January, 2025
NEUTRAL CITATION NO.2024:MPHC-IND:34870 1 FA No. 444/2017
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
FIRST APPEAL No.444 of 2017
DILIP MEHTA
...Appellant/Plaintiff
and
DECD. MANAKCHAND THROUGH LRS.
MOTILAL AND OTHERS
...Respondents/Defendants
Reserved on 13.12.2024
Pronounced on 17.01.2025
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Appearance:
Shri V.K. Jain, learned Senior Advocate assisted with Shri Rohit
Upadhyaya, learned counsel for the appellant.
Shri Vinay Gandhi, learned counsel for respondents No.23 and 24.
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JUDGMENT
Invoking jurisdiction of this Court under Section 96 of CPC, the
appellant / plaintiff has filed this first appeal calling in question the validity,
legality, propriety and correctness of the judgment and decree dated
31.08.2017 passed by VII Additional District Judge, Indore (M.P.) in Civil
Suit No.76-A/2012 (old suit No.51-A/2008) dismissing the appellant's /
plaintiff's suit filed for declaration and permanent injunction.
02. The necessary facts and legal contentions urged on behalf of the
parties are stated herein with a view to find out as to whether the impugned
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judgment and decree in dismissing the relief of declaration and permanent
injunction of suit schedule property requires to be examined by following
this appeal.
03. In this judgment for the sake of brevity, I would like to refer to the
ranking of the parties as assigned in the plaint presented before the Court.
Since there is congruence in mentioning exhibits in judgment of the trial
Court, I will refer to the documents as per annexures presented along with
this appeal.
04. (i) The facts leading to the present appeal in a nutshell are as
under: appellant herein / plaintiff filed a suit for declaration declaring that
sale deed executed by defendant No.1 dated 07.05.2008 (12.05.2008) in
favour of defendants No.23 and 24 is not binding on the plaintiff and
defendants No.20 and 21 and permanent injunction restraining the
defendant No.1 and defendants No.23 and 24 not to evict the plaintiff and
defendants No.20 and 21 from the disputed land. Further averred that
plaintiff and defendants No.20 and 21 (Sushil and Praveen) have jointly
purchased the suit land from defendants No.2 to 9, defendants No.20 and 21
do not want to file a suit along with the plaintiff as such they were shown
them as defendants No.20 and 21 in Patwari Halka No.13 survey Nos.35,
40 and 41 total area 3.113 hectares. Originally, disputed suit land belonged
to two brothers namely Ramzan Khan and Safdar Khan. The said lands
were registered in revenue records under their respective names in year
1967-68. The Ramzan Khan sold of his half share i.e. 1.556 hectares (3.85
acres) to defendant No.1 (Manakchand) under agreement of sale dated
23.08.1967. Safdar Khan sold the entire land including the share of Ramzan
Khan to late Sitaram's father Bhavan Khati through a registered sale deed
dated 27.05.1968 to the extent of 3.113 hectares (7.69 acres). The said
Sitaram got the land transferred in his name in revenue records as per law in
NEUTRAL CITATION NO.2024:MPHC-IND:34870 3 FA No. 444/2017
due course, a case No.2-A/6/67-68 order dated 30.08.1968, the said
disputed land was not in possession of Sitaram it was being occupied by
Rajaram, Laxminarayan and Balwant, they have been previous beneficiaries
of defendant No.1 (Manakchand).
(ii). Defendant No.1 (Manakchand) filed a suit for specific performance
of contract to the extent of half share of Ramzan Khan in the disputed land
in Civil Suit No.22-A/1972 against Sitaram, Ramzan Khan, Safdar Khan,
Shabbir Khan and Ayyub Khan and praying for cancellation of registered
sale deed dated 27.05.1968 executed by Safdar Khan, Shabbir Khan and
Ayyub Khan in favour of Sitaram. After adjudication, the learned trial Court
decreed the suit partly vide judgment dated 29.11.1978 the plaintiff
succeeded in the suit for specific performance, further observed in para 47
clause 3 of the judgment that "after execution of sale deed in favour of the
plaintiff, the defendants No.1 i.e. Sitaram and defendants No.3 to 5 namely
Safdar Khan, Shabbir Khan and Ayyub Khan shall have no claim over half
of the area of the suit land which has been ordered to be transferred to the
plaintiff." The said sale deed dated 27.05.1968 has not been declared to be
void by the trial Court. In the light of the above judgment and decree dated
29.11.1978 holding that Ramzan Khan was the joint owner of the disputed
land and he was entitled to only half of the land i.e. 3.85 acres and decree
for specific performance of contract of selling half area of the land was
decreed in favour of plaintiff in the above suit. The plaintiff filed appeal
bearing FA No.105/1978 (Manakchand vs. Sitaram and ors.) against the
decree and judgment in Civil Suit No.22-A/1972 dated 29.11.1978, the said
appeal was dismissed on 03.05.1999 and affirmed the judgment and decree
of the trial Court for specific performance.
(iii). The defendant No.1 did not deposit the balance consideration within
stipulated time and deposited the balance amount after 21 years through a
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receipt dated 05.05.1999 as such a sale deed executed by executing Court in
favour of defendant No.1 on 01.03.2007 is not binding on the plaintiff,
further averred that the prescribed period of 12 years to get implemented
the judgment and decree dated 29.11.1978 as per Article 136 of the
Limitation Act, further averred that considering the former beneficiaries of
defendants No.2 to 9 are occupants of the said land as the land owners, the
Patwari mutated their names in the revenue records. The action was taken
by defendant No.1 against the defendants No.2 to 9, but defendants No.2 to
9 were declared as land owners by Revenue Board, Gwalior. Thereafter,
plaintiff (Dilip Mehta) and defendants No.20 and 21 (Sushil and Praveen)
obtained possession from them through a registered sale deeds
No.1-A/5891 dated 06.03.2006 and 1-A/5981 dated 08.03.2006 and their
names were also mutated in the revenue record, thus the plaintiff and
defendants No.20 and 21 are the sole land owners and occupiers of the said
land.
(iv). On the basis of judgment and decree in Civil Suit No.22-A/1972
dated 29.11.1978, defendant No.1 (Manakchand) got the sale deed
registered through executing Court on false grounds and his name was
mutated in the revenue record. Defendant No.1 executed a sale deed in
favour of defendants No.23 and 24 (Smt. Ravinder Kaur and Paramjeet
Singh) on 12.05.2008 (07.05.2008). The defendant No.1 is not a bond fide
purchaser of the disputed land. The defendant has not complied the
mandatory provisions and he has not a bona fide purchaser and the sale
deed is not binding on the plaintiff. On the basis of the said sale deed, the
defendants No.1, 23 and 24 tried to evict the plaintiff from the disputed
land, the sale deed executed in favour of the plaintiff become effective, the
sale deed dated 12.05.2008 executed by defendant No.1 in favour of
defendants No.23 and 24 is void for which the plaintiff filed a suit seeking
NEUTRAL CITATION NO.2024:MPHC-IND:34870 5 FA No. 444/2017
relief for declaration that the sale deed dated 12.05.2008 is not binding on
the plaintiff and defendants No.20 and 21 and liable to be cancelled and
permanent injunction not to evict the plaintiff and defendants No.20 and 21
from the suit land.
05. (i) Defendant No.1 filed a written statement, the averments made
in the plaint are not true and correct and further averred that plaintiff did not
get any title on the basis of sale deed dated 06.03.2006 in respect of the
disputed suit land. Further averred that the plaintiff purchasing the said land
in year 2006 is only indicative of fraud without any title and plaintiff does
not acquire any title through the sale deed. Further averred that disputed
land is recorded in the name of Ramzan Khan and Safdar Khan in the
revenue records in year 1967-68. Ramzan Khan had sold his half share of
the disputed land to defendant No.1 under agreement of sale dated
23.08.1967 and thereafter, Safdar Khan had sold the entire disputed land i.e.
3.113 hectares (7.69 acres) to late Sitaram and ors. through a registered sale
deed dated 27.05.1968. The said property inherited to Ramzan and Safdar
Khan and their names were recorded jointly in the revenue records,
therefore, Ramzan Khan had sold his half share i.e. 1.556 hectares (3.85
acres) in favour of defendant No.1 executed an agreement to sale dated
23.08.1967. Knowing fully well about this agreement of sale, Safdar Khan
illegally sold the entire property to Sitaram's father Bhavan Ji without any
right under registered sale deed dated 27.05.1968. Since the said disputed
land was jointly owned by Ramzan Khan and Safdar Khan, the findings of
VI Additional District Judge, Indore in Civil Suit No.22-A/1972 dated
29.11.1978 is binding on the parties, the sale deed executed by Safdar Khan
in favour of Sitaram was declared void, therefore, defendant No.1 Sitaram's
father Bhavan Ji and heirs of Safdar Khan, Shabbir Khan and Ayyub Khan
have no right to sell the entire disputed land, Ramzan Khan has got half of
NEUTRAL CITATION NO.2024:MPHC-IND:34870 6 FA No. 444/2017
the share in the disputed land, who transferred it through an agreement of
sale in favour of plaintiff (Manakchand) and said Manakchand filed FA
No.105/1978 and Sitaram filed FA No.17/1979 before the Hon'ble High
Court against judgment and decree in Civil Suit No.22-A/1972 dated
29.11.1978, both the appeals were dismissed by this Court on 03.05.1999
and thereafter, LPAs preferred bearing LPA No.217/1999 (Manakchand
Vs. Sitaram and Ors.) and another LPA No.208/1999 (Sitaram Vs.
Manakchand and Ors.), both LPAs were dismissed vide order dated
07.09.2005.
(ii). Therefore, plaintiff and defendants No.20 and 21 have neither
acquired nor had any rights over the disputed land. The sale deed executed
by Safdar Khan is void ab initio and transfer of names done by him in
revenue records is illegal and late Sitaram did not acquire any legal right on
the entire disputed land. The possession of former beneficiaries of
defendants No.2 to 9 are denied and names of beneficiaries owners were
illegally substituted as land owners and jurisdiction of ownership i.e. title
cannot be decided by Revenue Court on the basis of adverse possession.
The appropriate forum in this regard is only Civil Court to decide the title
and the ownership, therefore, the orders passed by revenue authorities are
not binding on defendant No.1.
(iii). Further averred that present defendant filed an appeal before this
Court against the order passed by Board of Revenue dated 07.12.2005 in
W.P. No.472/2006 vide order dated 21.07.2009 that "order of mutation
passed by board of revenue, with regard to mutation proceedings, as well as
the order of Tehsildar dated 26.04.2008 shall abide by the final judgment
and decree to be rendered by Civil Court in Civil Suit No.51-A/2008 (suit
No.76-A/2012) stated to be pending between the parties." Therefore, the
orders passed by revenue courts is void, ineffective and has no legal
NEUTRAL CITATION NO.2024:MPHC-IND:34870 7 FA No. 444/2017
significance, plaintiff cannot acquire any title over the property. The
property claimed by defendants No.2 to 9 is illegal, the complete transfer
proceedings taken in favour of defendants No.20 and 21 in relation to
disputed suit lands are void and ineffective. The plaintiff and defendants
No.20 and 21 did not acquire any rights through a registered sale deed dated
06.03.2006 vide document No.1-A/8591. As per the revenue Khasra records
and other documentary evidence, the possession of the said land belongs to
defendant No.1 and registered sale deed dated 12.05.2008 executed in
favour of Rajender Kaur and Paramjeet Singh by defendant No.1 is valid,
therefore, plaintiff and defendants No.20 and 21 are not entitled to claim
any declaratory relief. The suit of plaintiff is liable to be dismissed and
registration of sale deed in favour of defendant No.1 by executing Court
dated 01.03.2007 is valid and proceedings of transfer of mutation in the
revenue records is valid, therefore, suit of the plaintiff is not maintainable
and is liable to be dismissed.
06. Defendants No.23 and 24 filed written statement stated that
averments made in the plaint are false. Ramzan Khan and Safdar Khan are
the joint owners of the disputed land i.e. 3.113 hectares (7.69 acres).
Ramzan Khan sold his half share to defendant No.1 (Manakchand) as per
agreement of sale dated 23.08.1967. Safdar Khan sold the entire land to
Sitaram through a registered sale deed dated 27.05.1968, after coming to
know about the sale made by Safdar Khan, defendant No.1 (Manakchand)
had filed a suit for specific performance and the said suit was decreed on
29.11.1978, which was upheld by Hon'ble High Court in FA No.105/78
dated 03.05.1999 so far as the specific performance of decree is concerned
and sale deed has been duly executed by executing Court in favour of
defendant No.1 (Manakchand) on 01.03.2007, the previous beneficiaries of
defendants No.2 to 9 did not get right over the suit land and Sitaram did not
NEUTRAL CITATION NO.2024:MPHC-IND:34870 8 FA No. 444/2017
have any right or possession over the said land as he is neither owner over
the suit land nor has any right over it. Plaintiff and defendants No.20 and 21
have not acquired any title over the disputed land nor have any statutory
right, hence, claim of plaintiff is liable to be rejected. The defendant No.1
(Manakchand) got sale deed executed by executing Court dated 01.03.2007
in compliance to the judgment and decree in Civil Suit No.22-A/1972 dated
29.11.1978 and later the defendant No.1 sold to defendants No.23 and 24
under sale deed dated 07.05.2008 (12.05.2008). After purchase, these
defendants are in free possession of the property, therefore, suit of the
plaintiff is not maintainable and is liable to be dismissed.
07. No written statement submitted by other defendants in the present
case.
08. Basing on the pleadings, the trial Court framed the followings
issues:-
"1. Whether, the plaintiff purchased the land in question
from the legal owners?
2. Whether, the judgment and decree dated 29.11.1978
passed by VI Additional District Judge, Indore in relation to
the said land is final and binding on the plaintiff?
3. Whether, the subsequent actions taken by defendant in
accordance with the law in the light of said judgment and
decree?
4. Whether, the sale deed dated 01.03.2007 executed in
favour of defendant No.1 by VI Additional District Judge,
Indore is binding on plaintiff?
5. Whether, the sale deed executed in favour of plaintiff in
respect of the said land binding on defendants No.1, 23 and
24?
6. Whether, defendant No.1 legal owner and possessor of
area 1.556 hectares i.e. 3.85 acres of Khasra Nos.35, 40 and
41 of Village Mundala Nayata, Patwari Halka No.13?
7. Whether, the suit filed by the plaintiff has paid requisite
court fees?
8. Whether, the plaintiff's case comes under jurisdiction of
this Court?
9. Reliefs and costs.
Additional issues:-
10.Whether, all the action taken in related case void as it is
against the law and has been submitted after period of 12
years for the implementation of decision passed in favour of
defendant No.1 in decision dated 29.11.1978?
NEUTRAL CITATION NO.2024:MPHC-IND:34870 9 FA No. 444/2017
11.Whether, the land in dispute sold to Sitaram by former
owners Ramzan Khan, Safdar Khan and Shabbir Khan
through registered sale deed dated 27.05.1968? If yes, then
its effect."
09. During the course of trial, PW-1 and 2 were examined and Exs.P-1 to
P-44 were got marked on behalf of plaintiff. DW-1 and DW-2 were
examined and Exs.D-1 to D-9 were got marked on behalf of defendants.
10. The trial Court answered the issue No.1 not certified / not proved,
issues No.2, 4 and 6 yes / certified / proved. Issues No.3 and 10 according
to Para 63. Issues No.5, 7 and 8 NO. Issue No.9 according to Para 66. Issue
No.11 according to Para 61. Resultantly, the trial Court on an analysis of
the entire evidence on record both oral and documentary, held that the
plaintiff has not purchased the disputed land from its legal owners, further
observed that judgment and decree of VII Additional District Judge, Indore
in Civil Suit No.22-A/1972 in favour of defendant No.1 (Manakchand) has
become final and the said judgment is binding on the plaintiff herein and
executing Court executed a sale deed in favour of defendant No.1 dated
01.03.2007 is also binding on the plaintiff, further observed that sale deed
executed in favour of plaintiff and ors. was not executed by legitimate title
owners, hence, it is not binding on defendants No.23 and 24 and further
observed that competent civil Court has executed a sale deed in favour of
defendant No.1 (Manakchand) on the basis of judgment and decree for
specific performance is valid. Further observed that sale deed is executed
by Safdar Khan in favour of Sitaram is ineffective. Defendant No.1 has got
the legal title over the disputed land, thereafter, defendant No.1 has sold the
said land to defendants No.23 and 24 through registered sale deed dated
07.05.2008 on the basis of which defendants No.23 and 24 have acquired
title over the disputed land, further observed that plaintiff has not raised any
objections sale deed was executed by the Executing Court in favour of
defendant No.1 in such situation, the plaintiff has no right to challenge the
NEUTRAL CITATION NO.2024:MPHC-IND:34870 10 FA No. 444/2017
proceedings, finally observed that the plaintiff has not been able to prove
his case and therefore, the suit of the plaintiff is dismissed.
11. Feeling aggrieved by and dis-satisfied with the impugned judgment
and decree dated 31.08.2017 passed by learned trial Court dismissing the
suit for declaration and permanent injunction, the appellant / plaintiff has
preferred the present appeal.
12. The appellant filed a present suit for declaration and permanent
injunction. The learned trial Court observed that the sale deed executed in
favour of appellant on 06.03.2006 did not confer any title to the appellant.
The impugned judgment and decree dated 31.08.2017 is illegal and
inoperative and filed the present appeal on the following grounds:-
The learned trial Court committed grave error of law and facts in holding
that the appellant was required to prove the adverse possession of his
predecessor in title. Further contended that learned trial Court in not
considering that the order of mutation passed by Board of Revenue has
attained finality and that the appellant was a bona fide purchaser of the suit
land from Bhumiswami, whose names were continuously recorded in the
revenue records in Bhumiswami rights. The learned trial Court failed to
consider that the execution proceedings were not commenced by the
defendant No.1 within prescribed period of limitation and execution
proceedings were clearly barred by limitation provided in Article 136 of
Schedule to the Indian Limitation Act. Further contended that the learned
trial Court failed to consider that the appellant was not a party to the
execution proceedings and was entitled to raise the objections in respect of
validity of execution proceedings. The learned trial Court in relying upon
the sale deed executed in favour of defendants No.23 and 24, which was
admittedly executed during the pendency of the present suit and the learned
trial Court in holding that the sale deed executed in favour of appellant was
NEUTRAL CITATION NO.2024:MPHC-IND:34870 11 FA No. 444/2017
not binding on defendants No.23 and 24 and learned trial Court in holding
that the defendant No.1 was the lawful owner of the suit land and had
validly transferred its ownership to defendants No.23 and 24. Further
contended that the impugned judgment and decree of learned trial Court
dated 31.08.2017 is illegal and against the provisions of law and not being
in conformity of principles of law by higher Court and therefore, appellant
seeks to set aside the judgment and decree of the trial court dated
31.08.2017 and prays to allow the appeal.
13. Shri V.K. Jain, learned Senior Counsel assisted by Shri Rohit
Upadhyaya, learned counsel for appellant / plaintiff submitted the same
facts as stated in the plaint (supra). Further submitted that from inception,
Rajaram, Laxminarayan and Balwant were in possession of the aforesaid
property, which is evident from the revenue records. Further submitted that
Civil Suit No.22-A/1972 was decreed in part on 29.11.1978 for specific
performance directing the legal heirs of Ramzan Khan to execute sale deed
of half share of aforesaid property and no decree for delivery of possession
was sought, therefore, the judgment and decree of the trial Court dated
27.11.1978 was not enforceable against the appellant, defendants No.20 and
21 and their predecessors in title. Further submitted that the plaintiff was
required to deposit balance amount within 30 days, which he deposited after
21 years, therefore, execution filed by the plaintiff is not maintainable
barred under Article 136 of Limitation Act. Further submitted that
defendant No.1 (Manakchand) preferred first appeal bearing FA
No.105/1978 (Manakchand vs. Sitaram deceased thru. LRs. and ors.)
and another First Appeal No.17/1979 (Sitaram deceased thru. LRs. vs.
Manakchand and ors.) were filed before this Court and both the appeals
were dismissed on 03.05.1999 and affirmed the judgment and decree dated
29.11.1978 in Civil Suit No.22-A/1972. Further submitted that Tehsildar
NEUTRAL CITATION NO.2024:MPHC-IND:34870 12 FA No. 444/2017
conferred Bhumiswami rights to predecessors in title defendants No.2 to 9
i.e. Rajaram, Laxminarayan and Balwant as they being occupancy tenants
and the said application was allowed by Tehsildar on 06.10.1998, hence,
Rajaram and ors. became Bhumiswami by virtue of law under the provision
of Sections 190 and 110 of MPLRC. Further submitted that against the such
order, defendant No.1 filed an appeal before SDO, which was dismissed
vide order dated 10.05.1999 and against the order of SDO, defendant No.1
preferred the appeal before the Additional Commissioner, which was
allowed vide order dated 09.09.1999 and against the orders of Additional
Commissioner, the occupancy tenants i.e. Rajaram, Laxminayaran and
Balwant filed revision before the Board of Revenue and set aside the order
of Additional Commissioner dated 09.09.1999 and affirmed the order of
Tehsildar holding that Rajaram and ors. on account of being occupancy
tenants had acquired Bhumiswami rights by virtue of law. Further
submitted that against the order of Board of Revenue dated 07.12.2005,
defendant No.1 never challenged the order of Board of Revenue by way of
counter claim, hence, the order of board of revenue attained finality. Further
submitted that appellant and defendants No.20 and 21 had purchased entire
land from defendants No.2 to 9, who are the LRs. of Rajaram,
Laxminayaran and Balwant vide sale deeds dated 06.03.2006 and
08.03.2006 and their names were mutated in the revenue records. Further
submitted that defendant No.1 filed an execution of judgment and decree
dated 29.11.1978 in Execution Case No.22-A/72/2006 after 28 years of
decree passed in the year 1978 without complying the conditions of
depositing balance amount within 30 days from the date of trial Court
judgment and decree dated 29.11.1978, therefore, the judgment and decree
is not binding on the appellant / plaintiff, further submitted that while
dismissing the appeal, appellate Court did not extend the time limit
NEUTRAL CITATION NO.2024:MPHC-IND:34870 13 FA No. 444/2017
prescribed by trial Court to deposit balance consideration, therefore, the
sale deed dated 01.03.2007 executed by executing Court in favour of
defendant No.1 (Manakchand) in execution proceedings with regard to the
half share in the suit land without delivery of possession, decree could not
have been executed and the execution petition filed by defendant No.1
(Manakchand) is liable to be dismissed, which is barred by limitation.
Further submitted that executing Court in Execution Case No.22-A/72/2006
denied the delivery of possession and also give any separate direction to
revenue authorities to carry out the partition and to deliver the possession
half share of the disputed land is not maintainable. The Executing Court in
execution case denied to give separate directions to the revenue authority
and the present civil suit filed by appellant vide suit No.51-A/2008 (Suit
No.76-A-2012) against the defendants for claiming declaration and
permanent injunction. Admittedly, the appellant is in possession of land and
defendant No.1 was challenging the appellant's title, threatening and
possible to take possession, therefore, when the party is in possession of the
suit land has been protected by court by granting permanent injunction.
Further submitted that during the pendency of suit filed by appellant,
defendant No.1 executed a sale deed dated 12.05.2008 in favour of
defendants No.23 and 24 with regard to the half share of the land, wherein
there is no recital of delivery of possession, therefore, the defendants No.23
and 24 though they being purchasers, they are not entitled to claim delivery
of possession of property. In view of the orders passed by Board of
Revenue, appellant, defendants No.20 and 21 and their predecessors namely
Rajaram and ors. are in possession of the property and they are occupancy
tenants and recorded as Bhumiswami, therefore, the executing Court while
executing sale deed in favour of defendant No.1 never delivered possession
to him rather the prayer for delivering the possession was refused, further
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submitted that though defendants No.23 and 24 got registered sale deed in
their favour without the settled possession except due process of law as the
prescribed the limitation has been expired, therefore, the judgment and
decree in Civil Suit No.76-A/2012 are liable to be set aside and allowed the
appeal.
14. Shri Vinay Gandhi, learned counsel for respondents No.23 and 24
submitted that disputed land belonged to two brothers Ramzan Khan and
Safdar Khan. Defendant No.1 holds an agreement to sale from Ramzan
Khan dated 23/08/1967, while Safdar Khan executed a registered sale deed
in favour of Sitaram dated 27/05/1968. Sitaram is one of the predecessors
of defendants No.2 to 9. Further submitted that defendant No.1
(Manakchand) filed a suit in Civil Suit No.22-A/1972 for specific
performance and cancellation of registered sale deed dated 27.05.1968
executed by defendants No.3 to 5 namely Safdar Khan, Shabbir Khan and
Ayyub Khan in favour of defendant No.1 (Sitaram) for entire disputed land.
During the pendency of the suit for specific performance, an agreement of
sale was allegedly executed by Sitaram in favour of predecessors of
defendants No.2 to 9 on 02.06.1971 temporary injunction on alienation was
granted against Sitaram on 03.06.1971 and the said fact was reflected in
order dated 09.09.1999 (Ex.P-9). Further submitted that the plaintiff
contested the defendant's claim of title, which is based on an order from the
Tehsildar, granting occupancy tenant status and Bhumiswami rights. This
order was challenged before Additional Commissioner in appeal, which was
allowed and later a revision was filed before Board of Revenue, Gwalior,
the order of Additional Commissioner was set aside and order of Tehsildar
and SDO was confirmed, further submitted that the plaintiff filed WP
No.472/2006 challenging the order of Board of Revenue dated 07.12.2005
the Hon'ble High Court passed an order dated 21.07.2009 "that the order of
NEUTRAL CITATION NO.2024:MPHC-IND:34870 15 FA No. 444/2017
mutation passed by Revenue board with regard to the mutation proceedings
as well as the order dated 26.04.2008 passed by Tehsildar shall abide by the
final judgment and decree in the civil suit No.51-A/2008 (suit
No.76-A/2012) stated to be pending between the parties." Further submitted
that in light of the order of Hon'ble High Court, the order passed by
Tehsildar and Board of Revenue is ineffective since the above suit filed by
plaintiff is dismissed by trial Court on 31.08.2017. Further submitted that
decree for specific performance was passed in favour of defendant No.1 on
29.11.1978, directing execution of sale deed of half share of aforesaid
property and payment of balance amount within 30 days and plaintiff and
defendants in the above suit preferred First Appeal No.105/1978
(Manakchand vs. Sitaram and ors.) on 01.12.1987 and another FA
No.17/1979 (Sitraram vs. Manakchand and ors.) on 26.02.1999, both the
appeals were dismissed on merits and defendant No.1 deposited the money
required under the decree on 05.05.1999, thereafter, Letters Patent appeals
were filed bearing LPA No.217/1999 (Manakchand vs. Ramchandra and
ors.) on 03.07.1999 and another LPA No.208/1999 filed by (Sitaram vs.
Manakchand and ors.) on 02.07.1999, both the LPAs were dismissed on
07.09.2005. Therefore, the judgment and decree in Civil Suit No.22-A/1972
dated 29.11.1978 have become final and judgment debtor did not comply
the decree, a registered sale deed dated 01.03.2007 was executed by learned
executing Court in favour of defendant No.1 (Manackchand) in respect of
1.556 hectares (3.85 acres) of the disputed land. Upon execution of the
registered sale deed, the name of defendant No.1 got mutated in the revenue
records. Therefore, the plaintiff is not entitled to any reliefs and learned trial
Court rightly dismissed the suit, further submitted that appeal filed by
appellant / plaintiff lack of merits and trial Court justified in dismissing the
suit and therefore, the judgment and decree passed by learned trial Court is
NEUTRAL CITATION NO.2024:MPHC-IND:34870 16 FA No. 444/2017
perfectly sustainable under law and it requires no interference. With the
aforesaid submissions, thus, prayed for dismissing the appeal by
maintaining the judgment and decree dated 31.08.2017 in Civil Suit No.76-
A/2012 (old No.51-A/2008) passed by the trial Court.
15. After hearing elaborate arguments advanced on behalf of parties and
on perusal of the record, I am of the view that the following points arise for
consideration in this appeal :
"1. Whether, the execution application filed by defendant
No.1 (Manakchand) in 2006 is barred under Article 136 of
Limitation Act?
2. Whether, the order of Board of Revenue dated 07.12.2005
confers the title of disputed land in favour of defendants
No.2 to 9, who in turn sold it to the plaintiff and defendants
No.20 and 21?
3. Whether, the judgment and decree of Civil Suit No.22-A/
1972 filed by defendant No.1 (Manakchand) seeks specific
performance without claiming any relief of possession is
valid?
4. Whether, the judgment and decree of learned trial Court in
Civil Suit No.22-A/1972 filed by defendant No.1
(Manakchand) for specific performance and upheld by first
appellate Court (High Court) in First Appeal No.105/1978
(Manakchand vs. Sitaram and ors.) is binding on the
plaintiff?
5. Whether, the trial court is justified in dismissing the suit
and the judgment and decree passed by trial Court needs any
interference?
16. Since all the above points are interrelated to each other they are dealt
together.
17. Plaintiff and his witnesses and defendants and their witnesses were
examined and they have reiterated the contents of plaint and written
statement and perused their evidence and the documents filed by them and
coming to the appreciation of evidence, it is no doubt from experience and
knowledge of human affairs depending upon facts and circumstances of
each case and regard must be held to the credibility of witnesses, probative
NEUTRAL CITATION NO.2024:MPHC-IND:34870 17 FA No. 444/2017
value of documents, relationship of the parties in actions and inactions,
lapse of time, if any, in proof of events and occurrences, from consistency
to the material on record to drawn wherever required the necessary
inferences and conclusions from the broad probabilities and
preponderances, from the overall view of entire case to judge as to any fact
is proved or not proved or disproved and the conclusions arrived by the trial
Court are sustainable or not. Since all the above points are interrelated to
each other they are dealt together.
18. Undisputed facts as per the pleadings or evidence are that disputed
land was initially jointly recorded in the names of Ramzan Khan and Safdar
Khan as Bhumiswami in year 1967-68. Ramzan Khan executed an
agreement to sale on 23.08.1967 in favour of defendant No.1 (Manakchand)
to the extent of his share i.e. 1.556 hectares (3.85 acres) of land. Thereafter,
on 27.05.1968, Safdar Khan, Shabbir Khan, and Ayyub Khan executed a
sale deed for the entire land i.e 3.113 hectares (7.69 acres) in favour of
Sitaram. After coming to know about the sale deed dated 27.05.1968, the
defendant No.1 (Manakchand) filed a suit in Civil Suit No.22-A/1972 for
specific performance and cancellation of sale deed executed by defendants
No.3 to 5 i.e. Safdar Khan, Shabbir Khan and Ayyub Khan in favour of
defendant No.1 (Sitaram). Resultantly, the plaintiff partially succeeds for
specific performance, further observed in the judgment in Para 47 of clause
(iii) that after execution of sale deed in favour of plaintiff, the defendants
No.1 or defendants No.3 to 5 shall have no claim over half of the area of
suit land, which has been ordered to be transferred to plaintiff. Further
undisputed fact that two first appeals bearing FA No.105/1978
(Manakchand vs. Sitaram deceased thru. LRs. and ors.) another FA
No.17/1979 (Sitaram deceased thru. LRs. and ors. vs. Manakchand)
were preferred against the judgment and decree of the trial Court dated
NEUTRAL CITATION NO.2024:MPHC-IND:34870 18 FA No. 444/2017
29.11.1978, both the appeals were dismissed by this Court on 03.05.1999
and the decree of specific performance is upheld, further undisputed fact
that defendant No.1 deposited balance consideration in terms of decree of
the appellate Court on 05.05.1999. It is also undisputed fact that two LPAs
were preferred bearing LPA No.217/1999 (Manakchand vs. Ramchandra
and ors.) LPA No.208/1999 (Sitaram vs. Manakchand and ors.), both the
LPAs were dismissed on 07.09.2005 and no further appeals preferred by
either of the parties, therefore, it is undisputed fact that judgment and
decree in Civil Suit No.22-A/1972 dated 29.11.1978 are final and binding
on the parties, it is also undisputed fact that the judgment debtor did not
comply the decree a registered sale deed dated 01.03.2007 (Ex.P-37) was
executed by learned executing Court in favour of defendant No.1
(Manakchand) in respect of 1.556 hectares (3.85 acres) of the disputed land.
It is also undisputed fact that after the sale deed dated 01.03.2007,
defendant No.1 (Manakchand) sold the disputed land covered under the sale
deed dated 01.03.2007 (Ex.P-37) to defendants No.23 and 24 under
registered sale deed dated 07.05.2008 (Ex.P-38) and they are the exclusive
owners of the property. It is also undisputed fact that learned trial Court
considering all the above aspects from analysis of the evidence and from
the documentary evidence, dismissed the suit of the appellant / plaintiff
herein vide judgment and decree dated 31.08.2017 in Civil Suit
No.76-A/2012. It is also undisputed fact that Writ Petition filed by the
defendant No.1 (Manakchand) challenging the order of Board of Revenue
dated 07.12.2005 (Ex.P-11), the said Writ Petition was disposed off on
21.07.2009 with observation that the "orders of mutation passed by Board
of Revenue with regard to the mutation proceedings, as well as the order
dated 26.04.2008 passed by Tehsildar shall abide by final judgment and
decree to be rendered by the Civil Court in Civil Suit No.51-A/2008 (suit
NEUTRAL CITATION NO.2024:MPHC-IND:34870 19 FA No. 444/2017
No.76-A/2012) stated to be pending between the parties." It is also
undisputed fact that present suit filed by plaintiff is dismissed, therefore, the
order of Board of Revenue is ineffective, the impugned order passed by
Board of Revenue dated 07.12.2005 has become ineffective and
inoperative. Considering from the analysis and documentary evidence, trial
Court dismissed the suit.
19. In view of the undisputed facts referred supra, the scope should
consider whether the appellant / plaintiff have proved the claim of
declaration of the suit property by way of adverse possession by occupancy
tenants and for permanent injunction. Before discussing the above aspects
since the appeal is under Section 96 of Code of Civil Procedure Code, the
scope of Section 96 of the CPC is to be considered.
20. While dealing with the scope of the first appeal, three Judges Bench
of Hon'ble Apex Court in case of Santosh Hazari Vs. Purushottam
Tiwari (Dead) By LRs1 held as follows:
"15.........the appellate court has jurisdiction to reverse or
affirm the findings of the trial court. First appeal is a
valuable right of the parties and unless restricted by law, the
whole case is therein open for rehearing both on questions of
fact and law. The judgment of the appellate court must,
therefore, reflect its conscious application of mind and
record findings supported by reasons, on all the issues
arising along with the contentions put forth, and pressed by
the parties for decision of the appellate court. The task of an
appellate court affirming the findings of the trial court is an
easier one. The appellate court agreeing with the view of the
trial court need not restate the effect of the evidence or
reiterate the reasons given by the trial court; expression of
general agreement with reasons given by the court, decision
of which is under appeal, would ordinarily suffice (See
Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967
SC 1124]). We would, however, like to sound a note of
caution. Expression of general agreement with the findings
recorded in the judgment under appeal should not be a
device or camouflage adopted by the appellate court for
shirking the duty cast on it........"
1. (2001) 3 SCC 179
NEUTRAL CITATION NO.2024:MPHC-IND:34870 20 FA No. 444/2017
21. In case of H.K.N. Swami v. Irshad Basith2, Hon'ble Apex Court
ruled that:
"3. The first appeal has to be decided on facts as well as on
law. In the first appeal parties have the right to be heard both
on questions of law as also on facts and the first appellate
court is required to address itself to all issues and decide the
case by giving reasons. Unfortunately, the High Court, in the
present case has not recorded any finding either on facts or
on law. Sitting as the first appellate court it was the duty of
the High Court to deal with all the issues and the evidence
led by the parties before recording the finding regarding title.
The order of the High Court is cryptic and the same is
without assigning any reason."
22. On the basis of these two judgments, the first appeal has to be
decided on the basis of issues and evidence led by both the parties before
recording the findings regarding the declaration of title and permanent
injunction.
23. Since all the above points stated supra are interrelated to each other
they are dealt together. The Court should consider whether the execution
filed by defendant No.1 (Manakchand) in 2006 is barred under Article 136
of Limitation Act, 1963. It is contended that judgment and decree dated
29.11.1978 and the application for execution is filed in year 2006 much
after 12 years commencing from 29.11.1978. Consequently, the entire
execution petition including execution of registered sale deed by executing
Court in favour defendant No.1 is nullity and not binding on the plaintiff.
24. The law laid down by Hon'ble Apex Court time and again that period
of limitation under Article 136 of Limitation Act commences not from the
original decree but from the decree of judgment by appellate Court on
merits, wherein the original decree has been assailed. The principles is
based on "doctrine of merger" wherein only one enforceable decree in
respect of lis can exist at a time. The aforesaid position of law is discussed
2. (2005) 10 SCC 243
NEUTRAL CITATION NO.2024:MPHC-IND:34870 21 FA No. 444/2017
in case of Surinder Pal Soni vs. Sohanlal (D) thru. LRs.3. Para 17 reads
as follows:-
"17. ----- The doctrine of merger operates as a principle
upon a judgment being rendered by the appellate court. In
the present case, once the appellate court confirmed the
judgment and decree of the trial court, there was evidently a
merger of the judgment of the trial court with the decision of
the appellate court. Once the appellate court renders its
judgment, it is the decree of the appellate court which
becomes executable. Hence, the entitlement of the decree-
holder to execute the decree of the appellate court cannot be
defeated."
25. Another decision reported in case of Shanthi vs. T.D. Vishwanathan
and ors.4. Para 7 reads as follows:-
"7. The aforementioned question raised by the learned
advocate for the appellant is no more res integra, inasmuch
as the very question is decided by a three-Judge Bench of
this Court, in Chandi Prasad v. Jagdish Prasad [Chandi
Prasad v. Jagdish Prasad, (2004) 8 SCC 724] , wherein it
was observed that in terms of Article 136, Limitation Act,
1963, a decree can be executed when it becomes enforceable.
A decree is defined in Section 2(2) CPC, 1908 to mean the
formal expression of an adjudication which, so far as regards
the court expressing it, conclusively determines the rights of
the parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or
final. A decree within the meaning of Section 2(2) CPC
would be enforceable irrespective of whether it is passed by
the trial court, the first appellate court or the second appellate
court. When an appeal is prescribed under a statute and the
appellate forum is invoked and entertained, for all intents
and purposes, the suit continues. When a higher forum
entertains an appeal and passes an order on merit, the
doctrine of merger would apply. The doctrine of merger is
based on the principles of the propriety in the hierarchy of
the justice delivery system. The doctrine of merger does not
make a distinction between an order of reversal, modification
or an order of confirmation passed by the appellate authority.
The said doctrine postulates that there cannot be more than
one operative decree governing the same subject-matter at a
given point of time."
3. 2020 (3) SCC 176
4. 2019 (11) SCC 149
NEUTRAL CITATION NO.2024:MPHC-IND:34870 22 FA No. 444/2017
26. Another decision reported in case of Chandi Prasad and ors. v.
Jagdish Prasad and ors.5. Para 21 reads as follows:
"21. It is axiomatic true that when a judgment is pronounced
by a High Court in exercise of its appellate power upon
entertaining the appeal and a full hearing in the presence of
both parties, the same would replace the judgment of the
lower court and only the judgment of the High Court would
be treated as final. (See U.J.S. Chopra v. State of Bombay
[AIR 1955 SC 633 : (1955) 2 SCR 94 : 1955 Cri LJ 1410] .)"
27. Another decision reported in case of Shyama Pada Choudhury v.
Saha Choudhury and Co.6 Para 9 and 10 reads as follows:-
"9. As has already been stated after the passing of the decree
by the Appeal Court it is that decree alone which can be
executed. In State of U.P. v. Mohammad Nooh, AIR 1958 SC
86 it was pointed out by the Supreme Court that when a
decree of the court of first instance is merged in the decree
passed on appeal therefrom the date of the appellate decree
has to be taken into consideration for purposes of computing
the period of limitation for execution of the decree. An
identical point as is involved in the present case came up for
consideration by a Division Bench of this Court in S.M.A.
Nos. 11 to 13 of 1968 (Cal), (Balaram Sahoo alias Sow v.
Santosh Kumar Naik). The Division Bench after considering
a number of authorities cited before it observed as follows:
--
"Let us now try to apply the principles laid down in the
above cases to the facts in the instant appeals. Here the
original decrees were passed on the 26th July, 1952.
Thereafter there were various proceedings right upto 14th
September, 1964 when Second Appeals Nos. 364, 347 and
348 of 1962 were dismissed under Order XLI, Rule 11 of the
CPC. By this order of dismissal, the trial court's decrees
were confirmed. A dismissal of an appeal under O. XLI, R.
11 of the Code has the same effect as a dismissal of an
appeal upon hearing (vide ILR (1897) 24 Cal 759). On these
facts, the starting point of limitation for application for
execution under Article 136 of the Limitation Act, 1963
appears to be not the 26th July, 1952 but the 14th September,
1964 when the Second Appeals were dismissed under Order
XLI, Rule 11 and since the application for execution was
made on the 17th February, 1965, the application is not
barred by limitation."
10. The facts relating to the instant appeal are similar to
those in the appeals before the said Division Bench and the
observations of the said Division Bench apply here with
5. (2004) 8 SCC 724 : 2004 SCC OnLine SC 1244
6. 1975 SCC OnLine Cal 104
NEUTRAL CITATION NO.2024:MPHC-IND:34870 23 FA No. 444/2017
equal force, and we see no reason to differ from the view
taken by the said Division Bench. The appellants' objection
to the execution of the decree on the ground of limitation is
accordingly overruled."
28. In view of the aforesaid judgments referred above, the trial Court
does not lose its jurisdiction nor it becomes functus officio on the grant of
decree of specific performance under Section 28 of Specific relief Act, the
very fact that Section 28 of the Act itself gives power to enlarge the time to
pay the purchase money clearly shows that trial Court does not become
functus officio after passing of the decree of specific performance. The
aforesaid position of law can be deduced from the judgment passed by the
Hon'ble Apex Court in the case of Surendra Pal Soni (supra), therefore, it
can be safely concluded that the execution proceedings were initiated by
defendant No.1 well within the time and registered sale deed executed in
favour of defendant No.1 by executing Court subsequent to dispose of First
Appeal No.105/1978 by this Court on 03.05.1999 is legal and sustainable
and in turn the sale deed executed by defendant No.1 in favour of
defendants No.23 and 24 is also valid in the eye of law, therefore, execution
filed by defendant No.1 is not barred under Article 136 of Limitation Act.
The appellant objection to the execution of the decree on the ground of
limitation is accordingly overruled / rejected. It is not time barred and the
execution of judgment and decree of trial Court is maintainable the doctrine
of merger applies to the present case and immediately after disposal of the
appeal by this Court, defendant No.1 deposited balance sale consideration
and the judgment debtor did not comply the decree and the registered sale
deed dated 01.03.2007 was executed by learned Executing Court in favour
of defendant No.1 is valid.
29. Learned counsel for the appellant contended that revenue Court has
exclusive jurisdiction to declare defendants No.2 to 9 as Bhumiswami of
NEUTRAL CITATION NO.2024:MPHC-IND:34870 24 FA No. 444/2017
the disputed land on the basis of status of occupancy tenants under Section
190 of MPLRC, therefore, defendants No.2 to 9 acquired the valid title
under Section 190 of MPLRC by order of Tehsildar dated 06.10.1998
confirmed by order of Board of Revenue dated 07.12.2005, therefore,
registered sale deed executed by them in favour of plaintiff confers the
valid title on the plaintiff over the disputed land. It is pertinent to mention
that mutation entries are only physical purpose does not confer any title,
further more, the revenue courts have no jurisdiction to confer the title on
the basis of adverse possession. Revenue Court cannot adjudicate on the
question of confer the title on the basis of adverse possession and the
possession of law can be deduced from the following judgment of this
Court in the case of Venishankar Upadhyaya vs. Jitendra Soni and Ors7.
Para 20 reads as follows:-
"20. Thus, the question in that writ petition was not related
to the title acquired on the basis of adverse possession. It is
also observed in that order that Siyarani has not claimed
adverse possession and no pleading in her application was
made in that regard. In this case, the suit is filed for the
declaration and injunction on the basis of the title acquired
on the principle of adverse possession and the revenue
authority was not competent to decide the question of
adverse possession and acquiring title thereon. Revenue
authority was not authorized and entitle to decide such
question which is raised in the suit by the legal
representatives of Siyarani. The suit is therefore, not barred
by the principles of res judicata."
30. In view of the judgment of Venishankar (supra), the mutation entry
does not confer any right, title or interest in favour of the person and
mutation entry in the revenue record is only for physical purpose. If there is
any dispute with respect to the title arises, the party has to approach the
civil Courts to get his right crystalised, therefore, revenue authority was not
competent to decide the question of adverse possession and acquiring the
title in favour of defendants No.2 to 9 as occupancy tenants and order of
7. MANU/MP/0982/2024
NEUTRAL CITATION NO.2024:MPHC-IND:34870 25 FA No. 444/2017
Revenue Court below included Board of Revenue are without jurisdiction.
Learned counsel for the appellant argued that the Tehsildar mutated the
names of defendants No.2 to 9 on the basis of occupancy tenants and
thereby acquired the Bhumiswami right under Section 190 of the MPLRC.
At the settled law that the revenue Court has the power to confer the
Bhumiswami rights only if the status of occupancy tenants is not disputed.
In the present case, the status of occupancy tenants of appellant is disputed.
The only course open to the revenue court is to relegate the parties to avail
the remedy of civil suit, therefore, the Tehsilar has no jurisdiction to go into
and record the finding about the status of occupancy tenants. The aforesaid
possession of law can be deduced from the following judgment in a case of
Vimlabai Choudhary vs. Board of Revenue and Ors.8 reads as follows:-
"Thus, it can be safely held that determination of question of
Bhumiswami rights lies within the province of the Civil
Court except in cases falling under section 257 of the Code.
Section 257 (O) gives limited jurisdiction to revenue
authorities to decide the claims of occupancy tenant for
conferral of Bhumiswami rights, therefore, in cases where
status of claimant as occupancy tenant is in dispute, section
190 of the Code cannot be invoked."
31. In the instant case, it can be safely deduced that the status of
defendants No.2 to 9 as occupancy tenants was not admitted by the
defendants. The orders of Revenue Court constantly challenged by
defendant No.1 carrying matter to the High Court. It is crystal clear that the
order of the Tehsildar dated 06.10.1998 confirmed by Board of Revenue
vide order dated 07.12.2005 (Ex.P-11) is without the jurisdiction and
irrespective of facts whether it confers mutation on the basis of adverse
possession or on the basis of occupancy tenants. It is settled principles of
law that the plaintiff can only succeed the suit for declaration of title and
possession on the basis of his own strength not on the weakness of
8. 2009 (1) MPJR 321
NEUTRAL CITATION NO.2024:MPHC-IND:34870 26 FA No. 444/2017
defendant's case. The order of Board of Revenue dated 07.12.2005
challenged by defendant No.1 by filing Writ Petition No.472/2006 and the
said writ petition was disposed of with observation that "before parting with
this order, it is further directed that order of mutation passed by Board of
Revenue, with regard to mutation proceedings, as well as the order dated
26.04.2008 passed by Tehsildar shall abide by the final judgment and
decree to be rendered by Civil Court in Civil suit No.51-A/2008 (new suit
No.76-A/2012) stated to be pending between the parties", the said suit filed
by plaintiff is dismissed on 31.08.2017, therefore, the impugned order
passed by Board of Revenue dated 07.12.2005 has become ineffective and
inoperative, in view of the aforesaid, it is crystal clear that order of Tehsilar
confirmed by the Board of Revenue is without any jurisdiction confers the
mutation on the basis of adverse possession or on the basis of occupancy
tenants, since the suit filed by plaintiff is dismissed, therefore, defendants
No.2 to 9 and their predecessors have no title and no document is filed to
that effect and the order of Board of Revenue dated 07.12.2005 has become
ineffective and inoperative and the judgment and decree dated 29.11.1978
in Civil Suit No.22-A/1972 upheld by High Court in FA No.105/1978 so far
as relief of specific performance is concerned is binding on the parties.
32. Learned counsel for the appellant contended that defendant No.1
filed a suit for specific performance and cancellation of sale deed executed
by defendants No.3 to 5 in favour of defendant No.1 without relief of
delivery of possession, judgment and decree in Civil Suit No.22-A/1972 is
not binding on the plaintiff, which is not enforceable, since the seller
Ramzan Khan was admitted not in possession of the suit property, specific
performance of contract of sale could not have legally delivered the
possession of the property to defendant No.1, suit filed by defendant No.1
was itself is ineffective and the judgment and decree in the above suit dated
NEUTRAL CITATION NO.2024:MPHC-IND:34870 27 FA No. 444/2017
29.11.1978 was not enforceable against the appellant, therefore, the
judgment and decree dated 29.11.1978 in Civil Suit No.22-A/1972 is not
binding on the plaintiff herein. To strengthen his contention, learned
counsel for the appellant placed reliance on judgment in a case of Babulal
vs. M/s Hazarilal Kishorilal and Ors.9. Para 13 and 14 reads as follows:-
"13. ----- A mere relief for specific performance of the
contract of sale may not entitle the plaintiff to obtain
possession as against the party in actual possession of the
property. As against him, a decree for possession must be
specifically claimed or such a person is not bound by the
contract sought to be enforced. In a case where exclusive
possession is with the contracting party, a decree for specific
performance of the contract of sale simpliciter, without
specifically providing for delivery of possession, may give
complete relief to the decree-holder. In order to satisfy the
decree against him completely he is bound not only to
execute the sale deed but also to put the property in
possession of the decree-holder. This is in consonance with
the provisions of Section 55(1) of the Transfer of Property
Act which provides that the seller is bound to give, on being
so required, the buyer or such person as he directs, such
possession of the property as its nature admits.
14. There may be circumstances in which a relief for
possession cannot be effectively granted to the decree-holder
without specifically claiming relief for possession viz. where
the property agreed to be conveyed is jointly held by the
defendant with other persons. In such a case the plaintiff in
order to obtain complete and effective relief must claim
partition of the property and possession over the share of the
defendant. It is in such cases that a relief for possession must
be specifically pleaded."
33. The above said decision relied by the appellant is not much use of the
appellant's case.
34. When a suit for specific performance is decreed without relief of
delivery of possession same can be enforced.The judgment and decree in
Para 47 of clause (iii) observed "after execution of sale deed in favour of
the plaintiff, the defendants No.1 or 3 to 5 shall have no claim over half of
the area of the suit land, which has been ordered to be transferred to the
plaintiff" and affirmed by appellate Court. In a case of Rohit Kochhar vs.
9. 1982 (1) SCC 525
NEUTRAL CITATION NO.2024:MPHC-IND:34870 28 FA No. 444/2017
Vipul Infrastructure Developers and Ors.10. Para 33 and 34 reads as
follows:-
"33. Thus, it is clear from the terms of the alleged contract
between the parties that the transfer of possession of the suit
property is implicit in the said contract and absence of a
specific prayer seeking transfer of possession would not
have any bearing on the character of the suit, which is one
covered by Section 16(d) of the CPC.
34. If we were to hold otherwise, then it would give rise to a
situation where a plaintiff would be allowed to file a suit for
specific performance simplicter and having obtained a
decree therein, the plaintiff would pray for the transfer of the
execution proceedings to the court within whose territorial
jurisdiction the suit property lies and thereafter seek
amendment of the plaint to include a prayer for transfer of
possession, which has been expressly held to be permissible
in Babu Lal (supra). An interpretation which gives rise to the
possibility of such misuse of law cannot be allowed."
35. In the light of above judgment (supra), decree for specific
performance of contract of sale was silent as to the relief of delivery of
possession even though such relief was claimed. The executing Court was
still competent to deliver the possession. It was not necessary in a suit for
specific performance either to separately claim possession nor was it
necessary for the Court to pass decree for possession, the liability to deliver
of possession for specific performance was necessary implied in a decree
for specific performance directing the defendant to execute a sale deed on
the principles of clause (f) sub Section (1) of Section 55 of Transfer of
Property Act, according to which, the liability to deliver possession arises
immediately upon execution of sale deed, therefore, in a suit for specific
performance, separate relief for possession not required when a transfer of
possession is implicit in Agreement to sell, therefore, judgment and decree
in Civil Suit No.22-A/1972 dated 29.11.1978 was enforceable and
therefore, defendants No.1, 23 and 24 entitled to recovery of possession of
the property. Since the sale deed was executed by learned executing Court
10. 2024 LiveLaw (SC) 591
NEUTRAL CITATION NO.2024:MPHC-IND:34870 29 FA No. 444/2017
in favour of defendant No.1 on 01.03.2007 and defendant No.1 entitled to
recover in respect of 1.556 hectares (3.85 acres) of disputed land to the
extent of share of Ramzan Khan in the suit land as his name got mutated in
the revenue records, which was observed by this Court in first appeal
bearing FA No.105/1978 dated 03.05.1999.
36. The learned counsel for the appellant contended that the judgment
and decree of trial Court in Civil Suit No.22-A/1972 dated 29.11.1978 is
not binding on the plaintiff that the executing Court executed the sale
deed in favour of defendant No.1 on 01.03.2007 never delivered the
possession of the subject property and defendants No.1, 23 and 24 had
never applied or prayed to the Collector for granting / delivering of the
suit land when they were not in possession they cannot interfere the
settled position of the appellant except by due process of law. Having
regard the pleadings in the suit and the findings recorded by trial Court
have given clear finding in clause (iii) after execution of sale deed in
favour of plaintiff, defendants No.1 and 3 to 5 i.e. Safdar Khan, Shabbir
Khan and Ayyub Khan shall have no claim over half of the area of suit
land, which has ordered to be transferred to the plaintiff, challenging the
judgment and decree of trial court, two first appeals were filed bearing
FA No.105/1978 (Manakchand vs. Sitaram and ors.) and FA
No.17/1979 (Sitaram vs. Manakchand and ors.), both the appeals were
dismissed on merits vide judgment dated 03.05.1999, thereafter,
defendant No.1 deposited the balance consideration on 05.05.1999, the
judgment debtor did not comply the decree, a registered sale deed dated
01.03.2007 was executed by learned executing Court in favour of
defendant No.1 (Manakchand) in respect of 1.556 hectares (3.85 acres)
of the disputed land. Two Letters Patent Appeals were preferred bearing
LPA No.217/1999 (Manakchand vs. Ramchandra and ors.) and
NEUTRAL CITATION NO.2024:MPHC-IND:34870 30 FA No. 444/2017
another LPA No.208/1999 (Sitaram vs. Manakchand and ors.) and
both LPAs were dismissed on 07.09.2005, therefore, the judgment and
decree dated 29.11.1978 of trial Court in Civil Suit No.22-A/1972 is
binding on the plaintiff, subsequently on 06.05.2006 defendant No.1 filed
execution application bearing case No.22-A/72/2006 since the judgment
debtor did not comply to the decree, a registered sale deed dated
01.03.2007 was executed by executing Court in favour of defendant No.1
in respect of 1.556 hectares (3.85 acres) of the disputed land upon
execution of sale deed the name of defendant No.1 got mutated in the
revenue records.
37. Defendant No.1 sold the disputed land, which was acquired under the
sale deed dated 01.03.2007 executed by learned executing Court in his
favour and thereafter, defendant No.1 (Manakchand) sold the land covered
under the sale deed to defendants No.23 and 24 namely Ravinder Kaur and
Paramjeet Singh under a registered sale deed dated 07.05.2008 and their
names were reflected in the revenue records, therefore, defendants No.23
and 24 are the exclusive owners of the disputed land. While disposing the
first appeal bearing FA No.105/1978 and FA No.17/1979 dated 03.05.1999,
this Court observed in Para 16 that "Safdar Khan acquired no rights or
interests in the suit lands so far as share of Ramzan Khan in the lands was
concerned. He could not, therefore, by the sale deed dated 27.05.1968
transfer of any valid title to the defendant Sitaram in respect of Ramzan
Khan's share in the lands. The sale deed was valid only to the extent of
Safdar Khan's own share in the lands. Further obsesrved that sale deed
dated 27.05.1968 executed by Safdar Khan in favour of Sitram as held
rightly by Court below was valid only to the extent of Safdar Khan's share
in the lands and did not embrace share of Ramzan Khan," therefore, the
judgment and decree of trial Court dated 29.11.1978 and affirmed by High
NEUTRAL CITATION NO.2024:MPHC-IND:34870 31 FA No. 444/2017
Court dated 03.05.1999 and LPAs dismissed on 07.09.2005, therefore, the
judgment and decree in Civil Suit No.22-A/1972 is become final.
38. In view of the material based on record, the sale deed executed by
Executing Court in favour of defendant No.1 on 01.03.2007 to the extent of
half share of the Ramzan Khan i.e. 1.556 hectares (3.85 acres) and in turn
defendant No.1 executed a sale deed in favour of defendants No.23 and 24
dated 07.05.2008 (12.05.2008) is also valid in the eye of law.
39. I am of the view that learned trial Court had applied his mind
consciously and correctly to the admitted facts and on proper analysis and
appreciation of evidence presented by both the parties conceded the
preponderance of evidence is more in favour of defendants and observed
that the judgment and decree of trial Court dated 29.11.1978 in Civil Suit
No.22-A/1972 in favour of plaintiff has become final and binding on
plaintiff herein, on the basis of which execution proceedings initiated by
plaintiff (Manakchand) and sale deed was executed by learned executing
Court dated 01.03.2007. Taking all the considerations, the learned trial
Court opined the plaintiff has not been able to prove his case and therefore,
the plaintiff's suit is dismissed.
40. The findings of fact recorded by the Court below while dismissing
the suit are not perverse and is based on pleadings and evidence. The
judgment under the appeal does not call for interference of this Court under
Section 96 CPC.
41. I am of the considered view that the judgment and decree passed by
the trial Court is perfectly sustainable under law and trial Court is justified
in dismissing the suit. Therefore, there is no need to interfere with the
findings given by trial Court in Civil Suit No.76-A/2012 dated 31.08.2017
on the file of VII Additional District Judge, Indore.
NEUTRAL CITATION NO.2024:MPHC-IND:34870 32 FA No. 444/2017
42. In view of forgoing discussion, I find no material illegality or
irregularity in the judgment and decree dated 31.08.2017 passed by learned
trial Court and therefore, the appeal is dismissed and the findings of trial
Court are affirmed. Accordingly, the present appeal stands dismissed.
43. Having regard to the facts of this case, it is directed that the parties
shall bear their own costs.
44. All the pending applications, if any, stand disposed off.
(DUPPALA VENKATA RAMANA)
JUDGE
Anushree
