Madhya Pradesh High Court
Sushila Sharma vs Manak Chandra Ruthia & Ors on 10 July, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 S.A. No.475/2004 & S.A. No. 473/2004
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 10th OF JULY, 2025
SECOND APPEAL NO.475 OF 2004
KAMAL KISHORE
Versus
MANAKCHAND RUTHIA (DEAD) THROUGH LRS AND OTHERS
Appearance:
Shri Vikram Johri, Advocate for appellant.
Shri Imtiaz Hussain Senior Advocate with Shri Mohd. Sazid Khan, Advocates for
respondents.
..............................................................................................................................................................
SECOND APPEAL NO. 473 OF 2004
SUSHILA SHARMA
Versus
MANAKCHAND RUTHIA (DEAD) THROUGH LRS AND OTHERS
Appearance:
Shri Vikram Johri, Advocate for appellant.
Shri Imtiaz Hussain Senior Advocate with Shri Mohd. Sazid Khan, Advocates for
respondents.
..............................................................................................................................................................
JUDGMENT
As both the second appeals have been filed by two co-defendants
and are arising out of single/common judgment and decree dtd.
31.03.2004 passed by Second Additional District Judge, Sehore in
Regular Civil Appeal No. 46-A/2003; 44-A/2003; and 45-A/2003
affirming the judgment and decree dtd.27.02.2003 passed by First Civil
Judge Class I, Sehore in Civil Suit No. 8A/2001, therefore, are being
decided by this common judgment.
2. Facts in short are that original plaintiff-Manakchand Ruthia (now
dead, through LRs) instituted a suit on 21.02.2000 for declaration of title
and permanent injunction originally against the defendant-Kamal Kishore
Agarwal with the allegations that the plaintiff is owner of the house
bearing municipal No.166 (old), of which new no. is 154, situated in
Khazanchi Line, in which Late Jangulal Ji was his tenant and after his
death, his wife Achrajbai became tenant on rent of Rs.22.25/- paise per
month and after her death her son Kamal Kishore, the defendant 1 is his
tenant.
3. It is alleged that in a newspaper dtd. 30.01.2000 named
'Rashtrawadi Hindi Dainik' "Fursat me Fursat" a news was published to
the effect that the defendant-Kamal Kishore Agarwal has entered into an
agreement of sale with Radheyshyam Sharma and intends to sell the
house, then he obtained certified copies of the municipal record relating
to house and came to know that the defendant has got his name mutated
in the property tax register as owner, whereas the plaintiff has never
transferred it to him and he also got published a notice claiming himself
to be owner and alleged that the defendant on the basis of false entries,
wants to alienate the suit property. As during pendency of the suit, the
defendant alienated the house in favour of the defendants 2 & 3 (Smt.
Sushila Sharma and Smt. Anju Paliwal), therefore, by amendment, the
plaintiff also challenged the sale deeds dtd.03.05.2000 and 21.08.2000
executed in favour of the defendants 2-3 and claimed relief to the effect
that the plaintiff be declared owner and in possession and defendants be
restrained from alienating the suit house and that the sale deeds dtd.
03.05.2000 and 21.08.2000 (Ex.P/25 and P/26) are not binding on the
plaintiffs and that the defendant 1 is tenant of plaintiff and is not owner of
the house.
4. By filing written statement, the defendant 1 denied the averments
made in the plaint and contended that the plaintiff is neither owner nor in
possession of the house and he himself has seen the defendant 1-Kamal
Kishore to be in possession as owner for a long period, hence, he never
demanded any rent and is now estopped from claiming himself to be
owner. It is contended that as the defendant 1 was in possession for last
more than 50 years i.e. since the time of his ancestors, therefore, he
rightly alienated the suit house. As Achrajbai adopted the defendant, vide
regd. adoption deed dtd. 06.10.1960 (Ex.D/1), therefore, the property
vested in him. Taking other objections regarding Court fees and
limitation, the suit was prayed to be dismissed.
5. The defendants 2-3 (Smt. Sushila Sharma and Smt. Anju Paliwal)
also filed joint written statement denying the plaint averments and
claimed themselves to be bonafide purchasers with the further contention
that they have validly purchased the house and received possession. It is
also contended that the suit without seeking relief of possession, is not
maintainable and the plaintiff is not entitled to the relief claimed by him
in the suit which is also barred by limitation. On inter alia contentions,
the suit was prayed to be dismissed.
6. On the basis of pleadings of the parties, trial Court framed issues
and recorded evidence of the parties. In support of his case, the plaintiff
examined himself-Manakchand Ruthia (PW/1), Anand Verma (PW/2) and
produced documentary evidence (Ex.P/1 to P/28). The defendant also
examined himself-Kamal Kishore Agarwal (DW/1), Chanda Bai (DW/2),
Amarchand (DW/3), Balkrishna Namdeo (DW/4), Lokendra Mewada
(DW/5) and produced documentary evidence (Ex.D/1 to D/18). The
defendant 2 also examined herself-Shushila Sharma (D-2W/1) and the
defendant 3 examined her husband-Mahendra Kumar Paliwal (D-3W/1).
7. After hearing the parties trial Court vide its judgment and decree
dtd. 27.02.2003, mainly on the basis of municipal entries made of the
name of plaintiff in house tax register of the year 1968-69 (Ex.P/7 &
P/27) held him to be owner of the house and at the same time, declared
the sale deeds dtd. 03.05.2000 & 21.08.2000 to be null and void and not
binding on the plaintiff that too while deciding the issue nos. 1 and 2
framed in respect of alleged tenancy of defendant 1's father Jangulal.
8. Against the judgment and decree of trial Court dtd. 27.02.2003,
each of the defendants 1-3 filed three separate civil appeals No. 46A/2003
(Kamal Kishore Agarwal vs. Manak Chand Ruthia); 44A/03 (Sushila
Sharma vs. Manakchand Ruthia and others); and 45A/03 (Smt. Anju
Paliwal vs, Manakchand Ruthia and others). After hearing the parties,
first appellate Court also affirmed the judgment and decree passed by trial
Court and dismissed all the three civil appeals vide impugned judgment
and decree dtd. 31.03.2004.
9. Against the judgment and decree passed by Courts below, S.A.
No.473/2004 was preferred by Sushila Sharma (defendant 2) and S.A.
No.475/2004 was preferred by Kamal Kishore whereas the S.A.
No.474/2004 was filed by Smt. Anju Paliwal, which was dismissed in
default. The second appeal came in hearing and was admitted for final
hearing by this Court on 02.08.2005 on the following substantial
questions of law:-
"(1) In the absence of pleadings about the ancestral nature of
property, whether the municipal entries may form basis for
decreeing the suit about the declaration of title?
(2) Whether the suit without seeking possession is maintainable in
the facts and circumstances of the case?"
10. Learned counsel for the appellant submits that undisputedly the
plaintiff is out of possession for last so many years i.e. more than 60 years
who filed the suit merely for declaration of title that too without seeking
relief of possession and also did not claim the relief of permanent
injunction relating to possession. He submits that entire case of the
plaintiff is based on municipal entries made in house tax register and both
the Courts below have committed illegality in considering those stray
entries for holding the plaintiff to be owner and the defendant 1 to be
tenant, which being contrary to law, the judgment and decree passed by
Courts below are not sustainable. He submits that in absence of relief of
possession, the suit itself was not maintainable and without taking into
consideration this aspect of the matter, Courts below have committed
illegality in decreeing the suit and in declaring the sale deeds in question
to be null and void. In support of his submissions, he placed reliance on
the decisions of Hon'ble Courts in the case of Malkhan Singh vs. Sohan
Singh and others, AIR 1986 SC 500; Municipal Corporation, Gwalior
and another vs. Anil Sharma and others, 2002 (2) MPLJ 595 (para 21);
Jitendra Singh vs. The State of Madhya Pradesh & Ors, 2021
Supreme(SC) 487; Prem Nath Khanna and others vs. Narinder Nath
Kapoor (Dead) Through L.Rs and others, 2016 Supreme (SC) 439; State
of Himachal Pradesh vs. Keshav Ram & Ors., 1996 Supreme (SC) 1648;
Shri Bhaguji Bayaji Pokale & others vs. Shri Kantilal Baban Gunjawate
& others, 1997 Supreme (Bom) 591; and Vinay Krishna vs. Keshav
Chandra and another, (1993) Supp(3) SCC 129. With these submissions,
he prays for allowing the second appeals.
11. Learned counsel appearing for the original respondent 1-
Manakchand Ruthia/plaintiff (now dead, through LRs) supports the
judgment and decree passed by Courts below and prays for dismissal of
the second appeals with the submissions that both the Courts below have
rightly held that defendant 1's father-Jangulal was tenant in the house and
as such the defendant 1 has been held to be tenant in the house and Courts
below have not committed any illegality in placing reliance on the
revenue entries to hold the plaintiff to be owner and landlord. He submits
that the findings in relation to ownership/landlordship of the plaintiff and
the defendant to be tenant of the plaintiff, are pure findings of facts and
are not liable to be interfered with within the limited scope of second
appeal provided under Section 100 CPC. In support of his submissions,
he placed reliance on the decisions in the case of Damodar Lal vs. Sohan
Devi and Others, (2016) 3 SCC 78; Roop Singh (Dead) Through LRs vs.
Ram Singh (Dead) Through LRs, (2000) 3 SCC 708; Kaluram vs.
Shrinathdas and others, (2000) 3 SCC 576; Kashibai w/o Lachiram and
another vs. Parwatibai w/o Lachiram and others, (1995) 6 SCC 213;
Khemchand and ors. vs. Baliram & Anr., 2007 (II) MPJR 448; Ratanbai
d/o Chena Mali and another vs. Basantibai d/o Chena and others, 2008(1)
MPLJ 649; Rajendra Prasad vs. Hitendra Kumar Jain, 2017(4) MPLJ
323; Balammal and others vs. M. Lakshmana Naicker, AIR 1972
Madras 333; Shanti Sarup vs. Radhaswami Satsang Sabha, Dayalbagh
Agra and other, AIR 1969 Allahabad 248; Dule Singh vs. Jhujhar Singh,
1995(II) MPWN 170; Sagarmal and another vs. Kamlesh, through Power
of Attorney Holder Dinesh, 2024 SCC OnLine MP 362; Yashodabai
(Smt.) vs. Kumari Rukman, 1993(1) MPWN 88; and Laxmidevamma
and others vs. Ranganath and others, (2015) 4 SCC 264. With these
submissions, he prays for dismissal of the second appeals.
12. Heard learned counsel for the parties and perused the record.
13. In the present case the plaintiff has instituted the suit for
declaration of title and permanent injunction to the effect that plaintiff be
declared owner and defendant to be his tenant and he be restrained from
alienating the suit property. As during pendency of suit, the defendant 1
sold the suit property to the defendants 2 & 3, therefore, relief of
declaring the sale deeds to be null and void, was also claimed. It is also
an undisputed fact that the plaintiff was not in possession of the suit
property even on the date of suit.
14. Apparently, and for the reasons best known to trial Court, in the
suit for declaration of title of ownership and despite contest being made
by defendants, it did not frame any issue regarding ownership of the
plaintiff and from the impugned judgment it is clear that trial Court has
assumed the defendant to be tenant and plaintiff to be owner of the house,
which has been affirmed by first appellate Court as a matter of grace
without exercising the jurisdiction available to it under Order 41 Rule 31
of the CPC.
15. Although while passing the judgment and decree, trial Court has on
the basis of mutation entry in house tax register, declared the plaintiff to
be owner of the house, but while deciding the issue no. 1 & 2, nowhere
said that the plaintiff is owner of the house. Admittedly the name of
defendant 1-Kamal Kishore is also recorded in the municipal record
(Ex.P/8 & P/9), but on the one hand trial Court has held that the
municipal entries do not confer any title and on the other hand has taken
into consideration the municipal entries of the name of plaintiff as a proof
of title and on that basis held the defendant to be tenant of the plaintiff
and the plaintiff to be owner even without framing an issue in that regard.
It is apparent from the record that the plaintiff has not produced any rent
receipt of the monthly rent allegedly paid by defendant 1's mother-Achraj
Bai, who along with defendant was found in possession since prior to
02.11.1933 and was declared sthai pattedar vide documents (Ex.D/2 to
D/5) and they have also paid requisite tax vide receipts (Ex.D/6 to D/16).
16. As has been held by Hon'ble Supreme Court in the case of
Malkhan Singh (supra); Jitendra Singh (supra); Prem Nath Khanna and
others (supra); State of Himachal Pradesh (supra); as well as by a
Division Bench of this Court in the case of Municipal Corporation,
Gwalior and another (supra), mere revenue/municipal entries without
any basis do not confer any title and they are made only for fiscal
purposes. With regard to non-seeking relief of possession, Hon'ble
Supreme Court has in the case of Vinay Krishna (supra), held that
without seeking relief of possession, the suit for declaration is not
maintainable.
17. A close scrutiny of the decisions relied upon by learned Counsel
for the respondents makes it clear that they are on the scope of
interference in second appeal, re-appreciation of oral evidence and on the
question of proof of better title, but in the present case both the parties
have not been able to place on record any document of title and as on
today possession of the defendant(s) over the suit property is for more
than last 90 years, therefore, the decisions relied upon by learned counsel
for the respondents are distinguishable on facts and do not provide any
help to them. At the same time it is pertinent to mention here that
undoubtedly in the second appeal concurrent findings of facts cannot be
interfered with but if the findings of facts are based on no evidence or
based on inadmissible evidence, the same can be interfered with and this
proposition of law does not require any authority.
18. Perusal of entire oral and documentary evidence shows that both
the Courts below in pick and choose manner considered evidence
adduced by the plaintiff and mainly on the basis of municipal entry made
in house tax register showing Achrajbai as tenant, Courts below have held
that there is relationship of landlord and tenant in between the plaintiff
and defendant and that the plaintiff is owner. Certified photocopy of
house tax register (Ex.P/7) clearly depicts that in column no. 5 of the
register, name of Achrajbai is written in different ink and different sized
letters, which is creating doubt also about this single entry. Both the
Courts below have also not considered this aspect of the matter, while
taking it to be a document of title.
19. In view of the aforesaid and in my considered opinion both the
Courts below have committed illegality in treating the plaintiff to be
owner and committed illegality in decreeing the suit on the basis of two
stray municipal entries (Ex.P/7 & P/27).
20. It is also an undisputed fact on record that the plaintiff is not in
possession for more than last 60 years and even after treating the
defendant as a tenant, did not file any suit for eviction prior to instant suit,
however, a suit for eviction on the basis of relationship of landlord and
tenant, was filed by him after filing of the instant suit, which was decreed
in the light of findings recorded by trial Court in the instant suit about
ownership of the plaintiff and tenancy of defendant 1 and after
confirmation of the same, another S.A. No.461/2004 was also filed by
Kamal Kishore, which is also heard and decided today, in which
judgments and decrees impugned therein have also been set aside.
21. In view of the aforesaid factual scenario, as the plaintiff despite
being in position to seek the relief of possession, did not pray for any
relief of possession or of permanent injunction in relation to possession,
therefore, the suit as filed was not maintainable and in such suit no relief
could have been granted to the plaintiff, especially in view of the fact that
the plaintiff has not been found owner of the suit property.
22. Consequently, both the substantial questions of law framed by this
Court are decided in negative i.e. in favour of the appellants/defendants
and against the respondents/plaintiffs and impugned judgments and
decrees passed by Courts below being not sustainable are hereby set
aside.
23. Resultantly, both the second appeals stand allowed and the suit
filed by the respondent(s) stands dismissed. However, no order as to the
costs.
24. Pending application(s), if any, shall also stand closed.
(DWARKA DHISH BANSAL)
JUDGE
KPS
Date: 2025.07.14 13:34:34 +05'30'
