Madhya Pradesh High Court
Pepu Bai vs The State Of Madhya Pradesh on 22 January, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:2684
1 SA-591-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 22nd OF JANUARY, 2025
SECOND APPEAL No. 591 of 2016
PEPU BAI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prasanna Bhatnagar - Advocate for the appellant.
Shri Anirudh Malpani - Govt. Advocate for respondents/State.
ORDER
1 . Learned counsel for the appellant is heard on the question of
admission.
2. This appeal under Section 100 of the CPC has been preferred by the
plaintiff / appellant being aggrieved by the judgment and decree passed by
the Courts below whereby her claim for declaration of title to the suit plot
and for permanent injunction restraining the defendants from interfering with
her possession over the same has been dismissed.
3. As per the plaintiff, she had purchased plot/house No.37/1, situated
behind Utarmukhi Hanuman Mandir, Mangalnath road, Ujjain by a
registered sale deed dated 14/2/2006 from its previous owner Thakurdas. She
has constructed a house thereupon and is residing therein. Mutation has also
been effected in the Municipal Corporation, Ujjain and tax is being paid for
the same. The defendants are however contending that plaintiff is an
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2 SA-591-2016
encroacher over the suit house and have instituted proceedings for her
dispossession under Section 248 of M.P. Land Revenue Code, 1959 in which
an order has been passed for her dispossession. The defendants are bent upon
dispossessing her.
4 . The defence of defendant No.3 was that the suit land is a part of
survey No.950 area 0.251 hectare owned by the State Government which is
land of a graveyard. The Collector is the recorded manager of the same.
Plaintiff has encroached over the suit land hence proceedings were instituted
against her in which order has been passed. Vendor of the plaintiff had no
right to execute any sale deed in her favour which does not confer any title
upon her.
5. The Courts below have dismissed the plaintiff's claim holding that
she has not been able to prove her title to the suit house. She has also not
proved that her vendor was the owner thereof whereas the defendants have
proved that the suit land is comprised in survey No.950 area 0.251 hectare
and plaintiff has encroached thereupon.
6. Learned counsel for the plaintiff has submitted that defendants have
not proved that survey No.950 area 0.251 hectare is a part of cemetery. They
have admitted that no demarcation has been done. The identity of the suit
house has not been established. The encroachment of plaintiff over survey
No.950 has also not been proved. Before the appellate Court application
under Order 41 Rule 27 of the CPC was preferred which has been illegally
rejected. Thakurdas had purchased survey No.950 area 0.251 from
Karimanbi on the basis of a sale agreement which has been proved but which
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3 SA-591-2016
was denied by the defendants. It is hence submitted that judgment and decree
passed by the Courts below be set aside.
7 . I have considered the submissions of the learned counsel for the
plaintiff and have perused the record.
8 . The claim of plaintiff is based upon a registered sale deed dated
14/2/2006 executed in her favour by one Thakurdas. The defendant No.3 in
his written statement has specifically denied that Thakurdas had title to the
suit land/house. The burden was hence squarely upon the plaintiff not only to
prove her own title but to prove title of Thakurdas. However there is no
document whatsoever on record to show that Thakurdas was the owner of the
suit house or the land over which the same has been constructed. Once title
of Thakurdas had been specifically challenged in terms of Section 54/55 of
the Transfer of Property Act it was imperative for plaintiff to prove his title
which she has totally failed to do. Not even in a single document on record
has it been stated that Thakurdas was the owner. No revenue document
showing him to be recorded has been produced. Even in the sale deed dated
14/2/2006 Exhibit P/1 it has not been stated as to in what manner Thakurdas
acquired title. Plaintiff has also admitted that she never saw any document as
regards title of Thakurdas prior to execution of the sale deed in her favour.
9 . It is well settled that a seller cannot confer a title better than what
he has. Pertinently it was tried to be contended before the trial Court itself
and has been further contended in this appeal that Thakurdas had purchased
survey No.950 area 0.251 hectare from Karimanbi on the basis of a sale
agreement. No such sale agreement has been brought on record and in any
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4 SA-591-2016
case title cannot be conferred merely on the basis of agreement to sale but
can be transferred only under a registered document. This plea of plaintiff
itself points out to the fact that Thakurdas had no title since he himself was
claiming title under an agreement to sale. Even if the agreement is upheld
then also Thakurdas had no title to the suit property which could not have
been conveyed by him in favour of plaintiff. Thus the finding of the Courts
below that plaintiff has failed to prove her title to the suit property cannot be
faulted with.
10. Though it has been contended that defendants have not proved that
the suit property is a part of survey No.950 area 0.251 hectare and have not
proved that the said survey number is owned by the State Government, but it
is well settled that it is for the plaintiff to prove her own case and cannot rely
upon weakness of the defendants. From the documents which have been
brought on record it does appear on the basis of preponderance of probability
that the suit property is a part of survey No.950 area 0.251 hectare.
11. In the application under Order 41 Rule 27 of the CPC preferred
before the appellate Court it was tried to be contended by plaintiff that the
suit property is in the name of Sitaram Mahajan. Even assuming that Sitaram
Mahajan was the owner then there is no plea as to in what manner Thakurdas
acquired title from him. There was hence no justification for the application
under Order 41 Rule 27 of the CPC to have been allowed by the appellate
Court which has hence rightly rejected the same. The trial Court had also
rightly rejected the application under Order 6 Rule 17 of the CPC filed by
the plaintiff for amendment of the plaint. The suit is for declaration of title
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5 SA-591-2016
which has been failed to be proved by the plaintiff hence the legality of the
proceedings under Section 248 of the Code, 1959 are not required to be
adjudicated upon in this suit.
12. Thus in view of the aforesaid discussion, I do not find any error
having been committed by the Courts below in negativing the title of
plaintiff to the suit property and in consequence dismissing her claim. Their
findings are based upon evidence brought on record by the parties and no
illegality or perversity in the same has been shown. Consequently, the
judgment and decree passed by the Courts below are hereby affirmed. No
substantial question of law arises for determination in this appeal which is
consequently dismissed in limine.
(PRANAY VERMA)
JUDGE
SS/-
