Madhya Pradesh High Court
Kailash Chandra Gupta vs Mahila Kesaria Bai on 18 June, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 SA. No. 463 of 2006
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 18th OF JUNE, 2025
SECOND APPEAL No. 463 of 2006
KAILASH CHANDRA GUPTA
Versus
MAHILA KESARIA BAI AND OTHERS
Appearance:
Shri Ashish Shrivastava- Advocate for appellant.
None for respondents.
JUDGMENT
This Second Appeal, under Section 100 of CPC, has been filed against the
judgment and decree dated 28.03.2006 passed by First Additional District Judge,
Mungaoli, District Guna (M.P.) in Regular Civil Appeal No.40-A/2003 by which
judgment and decree dated 18.09.2003 passed by Civil Judge Class II, Mungaoli
in Civil Suit No.370A/1998 was set aside.
2. Facts necessary for disposal of present appeal in short are that, Kesaria
Bai/respondent No.1 and Amola filed a suit for declaration of title and permanent
injunction. Amola expired during the pendency of appeal, therefore, respondents
No.2 to 5 were substituted as legal representatives of Amola. Thereafter, it
appears that Leela Bai who was one of the legal representatives also expired
during the pendency of suit and accordingly, Anita Bai and Pushpa Bai were
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substituted as her legal representatives through plaintiff No.1 Kesariya Bai as
they were five years and seven years of age respectively. It is the case of
plaintiffs that Halka was resident of village Berkheda who expired about 30 years
back. Halki Bai was the wife of Halka and Surjiya, Surjaniya, Kasturibai,
Karaiyabai and Keshariya Bai were his daughters. Halki Bai also expired 23
years back. Surjiya expired about eight years back and Kasturi Bai had expired
about 25 years back. Thus, it was claimed that plaintiff No.1 Kesariya Bai and
defendants No.1 and 2 Surjaniya and Karaiya Bai are the surviving daughters of
Halka. Kusum Bai is the daughter of Kasturi Bai. Plaintiff No.1 was married to
plaintiff No.2 about 40 years back whereas other daughters were already married
prior thereto. Halki Bai who was wife of Halka was ill, therefore, Halka and his
wife Halki Bai decided to marry plaintiff No.1 with plaintiff No.2 on the
condition that plaintiff No.2 would stay back as Ghar Jamai and would take care
of Halka and his wife Halki Bai and accordingly after marriage plaintiffs,
namely, Kesariya Bai and Amola resided with wife of Halka and accordingly
with the consent of all the daughters of Halka, the entire movable and immovable
property was given to plaintiffs and since then they are in possession thereof.
Since Halki Bai was seriously ill, therefore, all the daughters had specifically
stated that they do not want any share in the property and they do not have any
attachment with their mother because she is suffering from contagious disease, as
she was suffering from leprosy. After the death of Halki Bai her last rites were
performed by plaintiffs. On account of the disease with which Halki Bai was
suffering, the members of society had also severed their relationship with the
plaintiffs. Halka had joint property with his brother Ratna and after the death of
Ratna his share has been recorded in the name of legal representatives of Ratna.
Plaintiffs are illiterate. The revenue Authorities with the connivance of
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defendants No.1 to 3 recorded their names in the revenue records in a clandestine
manner without any information to the plaintiffs. Thus, it was claimed that the
names of defendants 1 to 3 were wrongly recorded in the revenue records. It was
claimed that Halka and Halki Bai had given property in dispute to the plaintiffs
during their life time and they are in possession for the last 40 years. Thus, they
have perfected their title by way of adverse possession. Accordingly, they are
entitled to get their title declared. Even during the pendency of suit the plaint was
amended and it was mentioned that defendants No.4, 5, and 6 had got their
names mutated in the revenue records without any authority and accordingly the
prayer clause was also amended and it was prayed that plaintiffs be declared as
owner and in possession of Khasra No.3:1, 3:3, 277:2, 304, 327:334 and 316
total area 8.487 hectares and it was also prayed that permanent injunction may be
issued against defendants No.1 to 6, thereby restraining them from interfering
with their peaceful possession.
3. Defendants No.1 and 2 filed their written statement and admitted all the
plaint averments and admitted that they do not have any objection if civil suit is
decreed. Similarly, defendant No.3 also filed written statement thereby admitting
the claim of plaintiffs.
4. Kailash Chand/Appellant filed his written statement and accepted the
family tree. It was claimed that after the death of Halka, the name of defendant
No.1, 2 and 3 were recorded in the revenue records which was in the knowledge
of plaintiffs. Similarly, defendant No.3 has alienated property to defendant No.4
by registered sale deed dated 18.07.1990 which was in the knowledge of
plaintiffs. It was further claimed that plaintiffs have sold 0.627 hectare of land
out 5.337 hectares forming part of Survey No.3/1 to Amantri Singh. Similarly,
defendant No.3 alienated 1.928 hectares of land forming part of her share out of
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Survey No.3/1 area 5.337 hectares and 3/3 area 3.344 hectares to defendant No.4
by registered sale deed dated 18.07.1990 for a consideration of Rs.36,700/-. It
was denied that Halka or his wife had ever given the property to plaintiffs. It was
also denied that plaintiffs are in continuous possession of the property in dispute.
It was also denied that they have perfected their title by way of adverse
possession. It was further claimed that plaintiffs were aware of mutation of
names of defendants. Counter claim was also filed by appellant/Kailash Chandra
and it was claimed that suit filed by plaintiffs against defendants be dismissed. It
was also claimed that he should be declared as owner of the land which was
purchased by him by registered sale deed in respect of Khasra No.3/1 Kha and
3/3 total area 0.732 hectares marked as v] c] l] n] bZ and d [k x ?k in the map and
permanent injunction was also sought against the plaintiffs and that they should
not interfere in his peaceful possession.
5. Defendant No.5 also filed his written statement and claimed that plaintiff
No.2 or his legal representatives were never in possession of the property in
dispute. In fact, plaintiff No.1 and her sister Kusumbai are in possession of
property in dispute. Kusum Bai had alienated her share by registered sale deed
dated 18.07.1990 to Kailashchand whereas Surjaniya had alienated her share by
registered sale deed dated 31.05.1991 to Hari Singh minor through his father
Tilak Singh and possession was also given. Plaintiff No.1 Keshariya, Phool
Singh and Gangaram had also given their consent to the said sale deed.
Thereafter, defendant Karaiya also alienated four beeghas of land forming part of
her share to defendant No.5 by registered sale deed dated 07.12.1989 and no
objection was raised in the mutation proceedings and had also accepted the
possession of respondents. It was claimed that Amantri Singh, Hari Singh and
Mahendra Singh are in possession of the property which was purchased by them
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by respective sale deeds. Similarly, Raghvendra Singh has purchased 0.627
hectare of land from Keshariya with the consent of Amola and Gangaram by
registered sale deed dated 13.02.1990. Similarly, Kailashchand had purchased
0.732 hectare of land from Kusum Bai and he is in possession of the property in
dispute. The mutation was done with the consent and knowledge of the plaintiffs.
It was denied that the property was ever given by Halka or Halki Bai to the
plaintiffs. It was further claimed that plaintiffs are not in possession of property
in dispute and in absence of any prayer for possession the suit is bad. Similarly,
defence was taken by defendant No.6 Hari Singh and Raghvendra Singh in their
written statements.
6. The Trial Court after framing the issues and recording the evidence
dismissed the suit filed by plaintiffs and decreed the counter-claim filed by
Kailashchand and declared that appellant-Kailashchand is the owner of 0.732
hectares of land forming part of Survey No.3/1 "kha" and 3/3 "ka". However,
decree for permanent injunction was not issued. It appears that during the
pendency of trial defendant No.4, 5 and 6 Raghvendra, Mahendra and Hari Singh
filed an application under Order 23 Rule 3 CPC. Their statements were also
recorded but thereafter the suit filed by plaintiffs was dismissed for want of
prosecution by order dated 13.07.2001. As counter claim was filed by
Kailashchandra/appellant, therefore, further proceedings were taken on the
counter claim filed by Kailashchandra/appellant. It appears that thereafter, an
application was filed for restoration of Civil Suit which too was dismissed by
order dated 10.09.2001 and thus only the counter claim was left to be decided.
However, the trial court held that since the relief for possession has not been
sought by Kailashchand therefore no relief for possession can be granted and
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accordingly simply held that appellant/Kailash Chandra is the owner of 0.732
hectare of land forming part of Survey No.3/1 "Kha" and 3/3 "Ka".
7. Being aggrieved by the judgment and decree passed by the Trial Court in
respect of counter-claim filed by Kailashchandra, plaintiffs preferred an appeal
which was registered as RCA 40A/2003. By the impugned judgment and decree,
the Appellate Court set aside the decree passed by the Trial Court in respect of
counter claim filed by Kailashchandra Gupta on the ground that it is not clear
that which specific piece of land was sold to Kailashchandra Gupta and in respect
of which specific piece of land his name was mutated in the revenue records and
it was held that since the property in dispute was joint property and unless and
until partition takes place he would not be entitled to take possession of any
specific piece of land.
8. It is not out of place to mention here that Kailaschand/appellant neither
filed any appeal under Section 96 of CPC nor any cross-objection in appeal filed
by plaintiffs and did not challenge the findings recorded by Trial Court that he is
not in possession of property in dispute. Thus, that finding was allowed to attain
finality.
9. Challenging the judgment and decree passed by the Court below, counsel
for appellant submitted that although the appellate court had found that appellant/
Kailashchandra Gupta has failed to prove his possession of the property in
dispute but should not have set aside the decree which was passed by the trial
court in respect of declaration of title and proposed the following substantial
question of law:-
"i) Whether learned appellate court has erred in law while
holding, that the present appellant is not having possessory right
over the disputed property without getting it partitioned in favour of
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his predecessor without considering partition deed, Ex.D/4 dt. 18-6-
1993?"
10. Heard learned counsel for appellant.
11. Admittedly, trial court had held that Kailashchandra Gupta is not in
possession of land sold to him and it was also observed that Kailashchandra
Gupta had not claimed the decree for possession and thus the counter claim was
simplicitor allowed thereby declaring the title of Kailashchandra Gupta.
Admittedly, Kailashchandra Gupta did not seek decree for possession and also
did not file any appeal/cross-objection against the findings recorded by first
appellate Court that he is not in possession of the property, which was purchased
by him.
12. Even otherwise, it is clear that the Court below has held that the property
was un-partitioned and therefore, anyone of the co-sharer could have sold the
property to the extent of their share only. No specific piece of land could have
been sold by any co-sharer. Under these circumstances, it was obligatory on the
part of Kailashchandra Gupta to file a suit for partition. Even that was not done.
13. Section 34 of the Specific Relief Act reads as under:-
"34. Discretion of court as to declaration of status or right.--
Any person entitled to any legal character, or to any right as to any
property, may institute a suit against any person denying, or interested
to deny, his title to such character or right, and the court may in its
discretion make therein a declaration that he is so entitled, and the
plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of
title, omits to do so."
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14. The Supreme Court in the case of Executive Officer, Arulmigu
Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and others
reported in (2017) 3 SCC 702 has held as under:
33. Section 34 of the Specific Relief Act, 1963 provides as follows:
"34. Discretion of court as to declaration of status or right.--
Any person entitled to any legal character, or to any right as to
any property, may institute a suit against any person denying
or interested to deny, his title to such character or right, and
the court may in its discretion make therein a declaration that
he is so entitled, and the plaintiff need not in such suit ask for
any further relief:
Provided that no court shall make any such declaration
where the plaintiff, being able to seek further relief than a
mere declaration of title, omits to do so."
34 [Ed. : Para 34 corrected vide Official Corrigendum No. F-
3/Ed.B.J./52/2017 dated 4-9-2017.]. In the present case, the plaintiff
having been found not to be in possession and having only sought for
declaratory reliefs, the suit was clearly not maintainable and has rightly
been dismissed by the trial court. In this context the reference is made to
the judgment of this Court in Ram Saran v. Ganga Devi [Ram
Saran v. Ganga Devi, (1973) 2 SCC 60 : AIR 1972 SC 2685] , wherein
in paras 1 and 4 following was stated : (SCC pp. 60-61)
"1. This is a plaintiffs' appeal by special leave. Ram Saran and
Raghubir Saran, the plaintiffs are brothers. They jointly owned
suit property with Chhabili Kuer, widow of Lalita Prasad.
After the death of Chhabili Kuer on 8-2-1971, Ganga Devi, the
defendant in the suit came forward as the legal representative
of Chhabili Kuer and got the mutation effected in her name in
the place of the deceased Chhabili Kuer. In 1958, the plaintiffs
brought this suit for a declaration that they are the sole owners
of the suit properties. They did not claim possession of either
the entire or even any portion of the suit properties.
***
4. We are in agreement with the High Court that the suit is hit
by Section 42 of the Specific Relief Act. As found by the fact-
finding courts, Ganga Devi is in possession of some of the suit
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properties. The plaintiffs have not sought possession of those
properties. They merely claimed a declaration that they are the
owners of the suit properties. Hence the suit is not
maintainable."
35. The plaintiff, who was not in possession, had in the suit claimed
only declaratory relief along with mandatory injunction. The plaintiff
being out of possession, the relief of recovery of possession was a
further relief which ought to have been claimed by the plaintiff. The suit
filed by the plaintiff for a mere declaration without relief of recovery of
possession was clearly not maintainable and the trial court has rightly
dismissed the suit. The High Court neither adverted to the above finding
of the trial court nor has set aside the above reasoning given by the trial
court for holding the suit as not maintainable. The High Court in
exercise of its jurisdiction under Section 100 CPC could not have
reversed the decree of the courts below without holding that the above
reasoning given by the courts below was legally unsustainable. We,
thus, are of the view that the High Court committed error in decreeing
the suit.
15. Similar view has been taken by the Supreme Court in the case of
Meharchand Das Vs. Lal Babu Siddique And others reported in (2007) 14
SCC 253 and Akkamma and others Vs. Vemavathi And Others reported in
(2021) 18 SCC 371.
16. Accordingly, this Court is of considered opinion that once the Trial Court
had found that the appellant is not possession of the land which was purchased
by him and had held that no relief of possession has been sought and even failed
to assail the said finding either by filing an appeal or cross-objection before the
District Court, this Court is of considered opinion that the counter-claim filed by
Kailashchandra Gupta/appellant was not maintainable in the light of Section 34
of Specific Relief Act. Furthermore, no relief for partition was sought in counter-
claim.
17. No other substantial question of law arises in the present appeal.
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18. Accordingly, judgment and decree dated 28.03.2006 passed by First
Additional District Judge, Mungaoli, District Guna (M.P.) in Regular Civil
Appeal No.40-A/2003 i.e. passed by the Appellate Court is hereby affirmed,
though on different grounds. Appeal fails and is hereby dismissed.
(G.S. Ahluwalia)
Judge
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