Madhya Pradesh High Court
Parmal Singh vs Santok Singh on 22 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:15276
1 SA-351-2007
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 22 nd OF JULY, 2025
SECOND APPEAL No. 351 of 2007
PARMAL SINGH AND OTHERS
Versus
SANTOK SINGH AND OTHERS
Appearance:
Shri Rajiv Jain - Advocate for appellants.
Shri Shiv Kumar Yadav - Advocate for respondents.
ORDER
This second appeal under Section 100 of CPC has been filed against the
judgment and decree dated 27.02.2007 passed by II Additional District Judge
(Fast Track Court), Pichhore, District Shivpuri in Regular Civil Appeal No.42-
A/2005 as well as judgment and decree dated 10.01.2005 passed by Civil Judge,
Class II, Khaniyadhana, District Shivpuri in Civil Suit No.39-A/2003.
2. Appellants are the plaintiff who have lost their case from both the Courts
below.
3 . Mathura Bai widow of Murli Yadav is the original plaintiff who died
during the pendency of civil suit and appellants were substituted in her place.
4 . According to the plaintiff, plaintiff had 1 ½ share in the property
mentioned in paragraph 1 of the plaint. 1/6 share is undisputed but the dispute is
in respect of 1/3 share of plaintiff which was alienated to the defendants No.1 and
2 by registered sale deed.
5. It is the case of plaintiff that after the death of her husband, plaintiff was
not interested to reside with her daughter in view of social rituals and accordingly,
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2 SA-351-2007
she kept the defendants No.1 and 2 who are the sons of her sisters with her so that
they may take care of her. It was agreed upon between the plaintiff and defendants
No.1 and 2 that in case if they continue to take care of her, then she would execute
the Will in favour of defendants No.1 and 2 in respect of certain pieces of land.
Accordingly, with an intention to execute a Will, original plaintiff went to
Pichhore alongwith defendants No.1 and 2. Son-in-law of original plaintiff namely
Tofan Singh was also accompanying the original plaintiff and went to the office of
sub-registrar. It is the case of plaintiff that by playing fraud on the plaintiff,
defendants No.1 and 2 got the sale deed executed in respect of 1/3 share of
plaintiff in Survey Nos.38, 42, 88, 148, 152, 156. It is submitted that in fact no
sale deed was executed by her. Later on, she came to know about the fact
that defendants No.1 and 2 have got the sale deed executed on 26.04.1985,
therefore, on 24.07.1988 there was a hot talk between plaintiff and defendants
No.1 and 2. Although plaintiff was intending to lodge the FIR, but under
the advice of members of the society, she did not lodge the FIR and an assurance
was also given by defendants No.1 and 2 that within a period of one month, they
would get the sale deed cancelled and would execute the sale deed in the name of
original plaintiff. However, defendants No.1 and 2 neither executed the deed of
cancellation nor talked to the plaintiff. For about one year, they were always
trying to avoid the execution of cancellation deed and accordingly, defendants
No.1 and 2 denied the title of plaintiff on 24.07.1989. Thus, suit was filed for
declaration that registered sale deed executed by original plaintiff in favour
of defendants No.1 and 2 on 26.04.1985 be declared as null and void. It appears
that subsequently suit was also amended and after the death of Mathura Bai, it was
claimed by present appellants that Mathura Bai had executed the Will in their
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3 SA-351-2007
favour on 20.03.1991 and after the death of Mathura Bai on 03.09.1996 appellants
have become owner of entire share of their maternal grand mother Mathura Bai
and thus, it was claimed that appellants are the owner and in possession of land in
dispute.
6. Defendants No.1 and 2 filed their written statement and denied the plaint
averments. It was claimed that after making payment of entire consideration
amount, registered sale deed was executed on 26.04.1985 in respect of share of
original plaintiff which is to the extent of 1.821 hectare of land. It was denied that
defendants No.1 and 2 had played fraud on the original plaintiff. It was also
claimed that suit was barred by time. It was further claimed that since plaintiff is
not in possession of the property in dispute, therefore, suit in absence of prayer for
decree for possession is barred by law.
7. Defendants No.6 and 7 have also filed their written statements. It is not
out of place to mention here that defendants No.6 and 7 namely Parmal Singh and
Raghuvir Singh who were subsequently transformed as plaintiffs being legal
representatives of Mathura Bai. Therefore, whatever written statement was filed
by defendants No.6 and 7 loses its effect.
8. Trial Court after framing issues and recording evidence held that Mathura
Bai had executed the sale deed in favour of defendants No.1 and 2 and dismissed
the suit.
9 . Being aggrieved by judgment and decree passed by Court below,
appellants had preferred an appeal which too has been dismissed by Appellate
Court.
10. Challenging the judgment and decree passed by Courts below, it is
submitted by counsel for appellants that Courts below failed to see that Mathura
Bai had never intended to execute the sale deed but she had gone to execute the
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4 SA-351-2007
Will in favour of defendants No.1 and 2 and by playing fraud on Mathura
Bai, defendants No.1 and 2 have got the sale deed executed in place of Will. It is
further submitted that sale deed was executed without payment of any
consideration amount and proposed following substantial questions of law:-
"(1) Whether the judgment and decree passed by the courts below being
perverse and contrary to law is sustainable in the eyes of law?
(2) Whether the courts below have erred in law in dismissing the suit
when no proper issue in respect of possession was framed by the courts
below to determine the fact as to who is at present in actual possession
over the suit land?
(3) Whether the courts below were justified in holding that the
possession was delivered at the time of forged sale deed when the fact
of initiation of proceedings in the revenue court was admitted by DW-
1?
(4) Whether the courts below have erred in holding the sale deed to be
valid and legal when the fact of consideration was never pleaded nor
proved by the respondent No.1 and 2 nor it is mentioned anywhere as
to how and in what manner the amount of consideration was paid to
Mathura and in absence of consideration being proved, the sale deed
cannot be said to be valid and legal and the purchaser can acquire the
title?
(5) Whether the courts below have erred in ignoring the fact of
possession when Tofan Singh was in cultivating possession over the
suit land and this fact was duly corroborated by the revenue record?
(6) Whether the courts below have erred in believing the forged sale
deed executed on the basis of fraud and concocted evidence to be valid
and genuine?
(7) Whether the courts below have erred in law in not shifting the
burden to prove the sale deed on the defendants?
(8) Whether the courts below were justified in not considering the fact
that the will could not be challenged by any person whose rights were
not affected and when the will was duly proved, the courts below have
erred in not decreeing the suit?
(9) Whether the courts below have erred in law in not considering the
presentation of the suit as proper and to be within limitation from the
date of knowledge when the sale deed was got executed in a forged
manner taking advantage of ignorance and illiteracy of Mathura?
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(10) Whether the courts below have erred in law in holding that the suit
was not properly valued when the sale deed itself was forged and it was
got executed fraudulently and without knowledge of Mathura?"
1 1 . From the record, it appears that Mathura Bai had expired on
03.09.1996, therefore, her evidence could not be recorded. However, Tofan Singh
(PW-1) who is the father of appellants and is vitally interested in property
appeared as PW-1. In paragraph 5 of his cross-examination in chief, he admitted
that he had signed the sale deed (Ex.D/1), but it was his claim that he had signed
the sale deed as attesting witness under an understanding that Will is being
executed.
12. It appears that father of appellants Tofan Singh was trying to play
smart. During the course of arguments, it was argued by Shri Jain that Tofan
Singh was an illiterate person and used to put his thumb impression and sale deed
does not contain the thumb impression of Tofan Singh but it contains his
signatures. From the sale deed (Ex.D/1), it is clear that it bears the signature of
Tofan Singh whereas affidavit filed under Order 18 Rule 4 of CPC bears the
thumb impression of Tofan Singh. Whether conduct of Tofan Singh in putting
thumb impression on his affidavit filed under Order 18 Rule 4 of CPC was with
an intention to show that he cannot sign or it was a bonafide act on the part of
Tofan Singh.
13. After service of notices, parties are required to submit their registered
address. The registered address of Tofan Singh which is in the prescribed format
bears the signature of Tofan Singh. Similarly, Vakalatnama which was filed
before the Trial Court also bears the signature of Tofan Singh. Furthermore, Tofan
Singh was partially cross-examined on 01.07.2004 and at the end of deposition
sheet, thump impression as well as signature of Tofan Singh are available. Thus, it
is clear that Tofan Singh used to put his signature but with an intention to claim
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6 SA-351-2007
himself to be an illiterate person he was making every attempt to put his thumb
impression.
14. Be that whatever it may be.
15. Since Mathura Bai had already expired, therefore, there is nothing on
record to suggest the contention that no consideration amount was ever paid by
defendants No.1 and 2 to Mathura Bai. Tofan Singh (PW-1) is one of the attesting
witnesses of the sale deed. At a later stage, it was claimed by appellants that
Mathura Bai has executed Will in their favour on 20.03.1991. Since appellants are
the sons of Tofan Singh, therefore, it is clear that Tofan Singh is vitally interested
in getting the sale deed set aside so that his sons can get the property by virtue of
Will. Under these circumstances, he went to the extent of claiming that he had also
signed the draft of sale deed under an impression that it is a Will. How a person
who is able to understand the things and is close relative of executor of the
document can claim that he could not understand the contents of documents? It is
true that the duty of attesting witness may not be to prove the contents of
document but being son-in-law of the executor/original plaintiff, Tofan Singh
could have pointed out to Mathura Bai that instead of Will, defendants No.1 and 2
are trying to get the sale deed executed in their favour. Even that was not done.
16. Furthermore, both the Courts below have given concurrent findings of
fact that in fact Mathura Bai had executed registered sale deed in favour of
defendants No.1 and 2. It is well established principle of law that this Court in
exercise of power under Section 100 of CPC cannot interfere with the concurrent
findings of the fact unless and until perversity is pointed out. This Court has also
considered the conduct of the parties and evidence led by them. Even otherwise,
no perversity could be pointed out by the counsel for appellants.
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17. Accordingly, it is held that no substantial question of law arises in the
present second appeal. Judgment and decree dated 27.02.2007 passed by II
Additional District Judge (Fast Track Court), Pichhore, District Shivpuri in
Regular Civil Appeal No.42-A/2005 as well as judgment and decree dated
10.01.2005 passed by Civil Judge, Class II, Khaniyadhana, District Shivpuri in
Civil Suit No.39-A/2003 are hereby affirmed. Second appeal fails and is hereby
dismissed.
(G. S. AHLUWALIA)
JUDGE
Rashid
