Madhya Pradesh High Court
Rakesh Kumar vs Ashok Kumar on 9 June, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 9 th OF JUNE, 2025
SECOND APPEAL No. 2136 of 2024
RAKESH KUMAR AND OTHERS
Versus
ASHOK KUMAR
Appearance:
Shri Praveen Dubey - Advocate for the appellants.
Shri K.S. Jha - Advocate for the respondent.
JUDGMENT
The present Second appeal has been filed by the appellants -
defendant nos. 1 and 2 under Section 100 of Civil Procedure Code against
the concurrent findings against them by both the courts.
2. At the time of arguments it was submitted that learned First
Appellate Court in RCA/07/2023, vide judgment dated 13.5.2024 has
wrongly relied on unregistered document Yaddast Batwara Pheharist
(Memorandum of partition) dated 16.06.1983, which was not admissible in
evidence under Section 49 (b) of the Registration Act, 1908. Burden was
wrongly shifted on the defendants to prove that the disputed house was not a
joint Hindu Hindu Property and wrongly held that the suit property was not
obtained on account of self income by late Gulab Chand Saraf.
3. Perused the records, judgments of courts below and the arguments
advanced by learned counsel for both the parties.
4. In Civil Suit No. 300090 of 2013 (Ashok Kumar Vs. Rakesh Kumar
and another), vide judgment and decree 21.12.2022, the suit of the plaintiff
for declaration of half share for the suit property mentioned in detail in Para-
1 of the judgment of the trial court situated in Beena, district Sagar for
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declaration of title and vacant possession was decreed.
5. On an appeal learned First Appellate Court in Regular Civil Appeal
No.07 of 2023 (Rakesh Kumar and another Vs. Ashok Kumar) vide
judgment and decree dated 13.05.2024 dismissed the same.
6. In the case of Kanhaiya Readymade Stores and others Vs.
Rameshchand, s/o Dugdulal Shah reported in 2012 (1) M.P.L.J. 443 Hon'ble
Coordinate Bench of this court has held that findings of facts how so far
erroneous it may be cannot be interfered in second appeal. Co-landlord/co-
owner can file a suit against tenant for eviction.
7. In Korukonda Chalapathi Rao and another Vs. Korukond
Annapurna Sampath Kumar reported in (2022) 15 SCC 475 in which in
Para-14 to 23 Hon'ble Supreme Court has held that new rights are not
created on memorandum of earlier partition which is already affected
between the parties. Therefore, it does not require registration. Paragraphs
37 and 38 are relevant. The same are reproduced as under :-
37. As far as Section 49( c) of the Registration Act is concerned, it
provides for the other consequence of a compulsorily registrable
document not being so registered. That is, under Section 49(a), a
compulsorily registrable document, which is not registered, cannot
produce any effect on the rights in immovable property by way of
creation, declaration, assignment, limiting or extinguishment. Section
49(c) in effect, reinforces and safeguards against the dilution of the
mandate of Section 49(a). Thus, it prevents an unregistered document
being used "as" evidence of the transaction, which "affects" immovable
property. If the Khararunama by itself, does not "affect" immovable
property, as already explained, being a record of the alleged past
transaction, though relating to immovable property, there would be no
breach of Section 49(c), as it is not being used as evidence of a transaction
effecting such property. However, being let in evidence, being different
from being used as evidence of the transaction is pertinent [See Murdga
Mudaliar [Murdga Mudaliar v. Subba Reddiar, 1950 SCC OnLine Mad
136 : AIR 1951 Mad 12] ]. Thus, the transaction or the past transactions
cannot be proved by using the Khararunama as evidence of the
transaction. That is, it is to be noted that, merely admitting the
Khararunama containing record of the alleged past transaction, is not to
be, however, understood as meaning that if those past transactions require
registration, then, the mere admission, in evidence of the Khararunama
and the receipt would produce any legal effect on the immovable
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properties in question.
38. As far as stamp duty goes, on our finding regarding the nature
of the document viz. Khararunama, being record of the alleged
transactions, it may not require to be stamped. We notice the following
conclusion of the Division Bench of the Madras High Court in A.C.
Lakshmipathy v. A.M. Chakrapani Reddiar [A.C. Lakshmipathy v. A.M.
Chakrapani Reddiar, 2000 SCC OnLine Mad 773 : AIR 2001 Mad 135] :
(SCC OnLine Mad para 42)
"42. To sum up the legal position
***
(V ) However, a document in the nature of a Memorandum,
evidencing a family arrangement already entered into and had
been prepared as a record of what had been agreed upon, in order
that there are no hazy notions in future, it need not be stamped or
registered."
8. In the case of Appasaheb Peerappa Chamdgade Vs. Devendra
Peerappa Chamdgade and others reported in (2007) 1 SCC 521 in which
from 17 to 20 it has been held that once it is admitted by the defendants that
family had remained joint and jointly purchased other properties before
burden was upon the defendants to prove that the suit property was not
purchased from joint family fund and same was purchased out of its own
income. Para 17 is relevant. The same is reproduced as under :-
17. Therefore, on survey of the aforesaid decisions what emerges
is that there is no presumption of a joint Hindu family but on the evidence
if it is established that the property was joint Hindu family property and
the other properties were acquired out of that nucleus, if the initial burden
is discharged by the person who claims joint Hindu family, then the
burden shifts to the party alleging self-acquisition to establish
affirmatively that the property was acquired without the aid of the joint
family property by cogent and necessary evidence.
9. It is seen that both the courts have considered the pleadings of both
the parties, oral and documentary evidence and delivered the judgment which
are under challenge. No substantial question of law arises for determination
in this appeal.
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10. Even otherwise, the jurisdiction of this Court to interfere with the
findings of fact under Section 100 of the Code of Civil Procedure is well
defined by catena of decisions of the Supreme Court. This Court cannot
interfere with the finding of fact until or unless the same is perverse or
contrary to material on record. [See: Narayan Rajendran and Anr. v.
Lekshmy Sarojini and Others, (2009) 5 SCC 264, Hafazat Hussain v. Abdul
Majeed and Others, (2001) 7 SCC 189, Union of India v. Ibrahim Uddin and
Antoher, (2012) 8 SCC 148, D.R. Rathna Murthy v. Ramappa, (2011) 1 SCC
158 Vishwanath Agrawal v. Sarla Vishnath Agrawal, (2012) 7 SCC 288,
Vanchala Bai Raghunath Ithape v. Shankar Rao Babu Rao Bhilare, (2013) 7
SCC 173 and Laxmidevamma and Others v. Ranganath and Others, (2015) 4
SCC 264] The concurrent findings of fact recorded by the courts below are
based on meticulous appreciation of evidence on record which by no stretch
of imagination can be said either to be perverse or based on no evidence.
11. For the reasons discussed above, this appeal has no merit and is
accordingly dismissed.
(AVANINDRA KUMAR SINGH)
V. JUDGE
bks
