Madhya Pradesh High Court
Devendra Kumar And Anr. vs Harikishan And Anr. on 19 June, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 S.A. No. 147 of 2005
N THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 19th OF JUNE, 2025
SECOND APPEAL No. 147 of 2005
DEVENDRA KUMAR AND ANR.
Versus
HARIKISHAN AND ANR.
Appearance:
Shri Sanjay Dwivedi, Advocate for the appellants.
Shri Alok Katare, Advocate for respondent Nos. 1(a) to 1(e) and 1(g).
Shri A.K. Nirankari, Government Advocate for respondent No.2/State.
JUDGMENT
This second appeal, under Section 100 of CPC, has been filed against the
judgment and decree dated 20.10.2004 passed by I Additional Judge to the
Court of First Additional District Judge, Guna in Civil Appeal No. 26A of
2003, as well as, judgment and decree dated 06.07.2000 passed by Civil Judge
Class I, Raghogarh, District Guna in Civil Suit No. 12A of 1998.
2. Respondent No. 1 / original plaintiff has expired during the pendency of
this appeal and he is being represented by his legal representatives.
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3. The facts necessary for disposal of present appeal, in short, are that the
original plaintiff Harikishan, who is being represented by his legal
representative, filed a suit for declaration of title and permanent injunction,
alleging inter alia that he is the owner of Survey No. 310 area 0.272 hectare
and Survey No. 313 area 8.601 hectare, total area 8.873 hectare situated in
Village Madhusudangarh. For the marriage of his daughters namely Manisha
and Amrita, plaintiff was in need of money. In the month of January, 1997, he
was not medically fit, therefore he entered into an agreement to sell with
defendant Nos. 1 and 2 to sell 20 bigha of land forming part of Survey No. 313
and got only ₹10,000 by way of advance. As soon as the sons of plaintiff
namely Krishna Vallabh and Girraj came to know about the agreement to sell
executed by plaintiff in favour of defendant Nos. 1 and 2 in respect of Survey
No. 313, they filed a civil suit for declaration of title and permanent injunction.
An application under Order 39 Rule 1 & 2 was filed seeking stay on alienation
of Survey No. 313 as well as 309 area 5.550 hectares (Khasra No.309 recorded
in the name of Kamlabai, wife of plaintiff). As the medical condition of
plaintiff was deteriorating, therefore he could not appear before the Court and
was hospitalized in Choithram Hospital in Indore. As plaintiff and his family
were in need of money, therefore wife of plaintiff demanded further amount
from defendant Nos. 1 and 2 towards agreement to sell, but defendant Nos. 1
and 2 refused to give further money in view of pendency of suit and assured
that after the stay application is decided, they would get the sale deed executed
after making payment of the entire amount. However, the trial Court by order
dated 02.03.1997 granted temporary injunction thereby restraining plaintiff
from alienating one-third part of Survey No. 313 and dismissed the application
in respect of 309 which was owned by wife of plaintiff.
Since the plaintiff and his wife were in need of money, therefore she once again
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approached defendant Nos. 1 and 2 who insisted that wife of plaintiff should
alienate Survey No. 309 area 4.180 hectare out of 5.550 hectare. Since the wife
of plaintiff was in need of money and she could not understand the trap laid
down by defendant Nos. 1 and 2, therefore at the instance of defendant Nos. 1
and 2, a sale deed in respect of Survey No. 309 was executed in favour of
Matadeen. After execution of sale deed, defendant Nos. 1 and 2 removed their
possession from Survey No. 313, but later on forcibly cultivated 8 bighas of
Survey No. 313 and harvested the standing crop on the remaining 5 bighas of
land. Accordingly, plaintiff suffered monetary loss of ₹10,000. When plaintiff
objected to it, then it was assured by defendants that although they have sown
the crop, but the plaintiff must treat it to be his own. Defendant No. 1 and 2
assured that they would give half of the harvested crop by keeping half with
them and would also leave the possession. After soybean and grass was cut,
plaintiff insisted that Defendant No. 1 and 2 should give half share in the crop
and should remove their possession. Then, defendants refused to give half of
soybean crop and also threatened that they would not leave the possession of
the land and accordingly plaintiff approached the police who refused to take
action with the direction to the plaintiff to approach the civil court. On
03.11.1997, defendants, in spite of objection from the plaintiff, have sown the
crop of gram and also started denying the title of plaintiff and accordingly suit
was filed for declaration of title and permanent injunction as well as for
recovery of possession.
Defendant Nos.1 and 2 filed their written statement and pleaded that
plaintiff himself has given possession of 4.180 hectare of land forming part of
Survey No. 313. It was pleaded that an agreement to sell dated 27.02.1997 was
executed by the plaintiff in favour of defendant Nos. 1 and 2 on receiving an
amount of ₹10,000 by way of advance. Thereafter, defendant Nos. 1 and 2 gave
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₹5,000 in cash to plaintiff on 22.04.1997. A cheque of ₹30,000 was given on
30.07.1997 and a cheque of ₹8,000 was given on 14.09.1997. A cheque of
₹40,000 was given on 18.12.1997 and a cheque of ₹25,000 was given on
25.12.1997 and accordingly an amount of Rs.1,18,000/- was paid to the
plaintiff towards the consideration amount of the land. It was further pleaded
that plaintiff had got a collusive suit filed through his sons. Since the plaintiff
was in need of money, therefore by registered sale deed dated 12.05.1997,
Kamlabai who is the wife of plaintiff, alienated 4.180 hectare of land forming
part of Survey No. 309 in favour of defendant Nos. 1 and 2 and Bala Prasad.
Defendant Nos. 1 and 2 and Bala Prasad had paid ₹1,42,500 to Kamlabai. The
other pleadings were denied. It was pleaded that in view of temporary
injunction order passed by trial court, sale deed in respect of Survey No. 313
was not executed. It was denied that defendant Nos. 1 and 2 have forcibly taken
possession of Survey No. 313.
4. The trial court after framing issues and recording evidence held that the
plaintiff is the owner of property i.e. 13 bigha of Survey No. 313, but held that
defendant Nos. 1 and 2 are in possession of the aforesaid property by virtue of
agreement to sell. Although the suit was partially decreed in favour of plaintiff
and it was partially dismissed in respect of possession, but the
appellant/defendant Nos. 1 and 2 did not prefer any appeal or cross objection to
the decree passed by trial court to the effect that plaintiff is owner of 13 bigha
of Survey No. 313. Thus, it is clear that the findings with regard to ownership
of plaintiff over 13 bigha of Survey No. 313 have attained finality.
5. The plaintiff being aggrieved by refusal to grant decree for possession
preferred an appeal which was registered as Civil Appeal No. 26A of 2003 and
by the impugned judgment and decree dated 20.10.2024, the judgment and
decree passed by the trial Court dated 6/7/2000 refusing to grant decree for
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possession was set aside and decree for possession has been awarded in favour
of plaintiff. Being aggrieved by the judgment and decree passed by the
appellate court, defendant Nos. 1 and 2 have preferred this appeal.
6. It is submitted by counsel for appellants that the Court below failed to
see that the entire consideration amount was paid in respect of Survey No. 313.
Therefore, the finding recorded by the trial Court to the effect that plaintiff was
the owner of 13 bigha of Survey No. 313 is erroneous and since defendant Nos.
1 and 2 were handed over possession in the light of agreement to sell, therefore
they are entitled to protect their possession and proposed the following
substantial questions of law:
"I. Whether non-production of agreement to sale dated 27th
February, 1997 was fatal in spite of the admission by the plaintiff
in para 2 of his pleadings in plaint and written statement ?
II. Whether the possession handed over and taken over by the
plaintiff and defendants respectively in accordance with the
agreement deed to sell 27.2.1997 would amount to encroachment
or illegal possession ?
III. Whether the principles laid down in 1990 Rajasav Niryan 188
Balaji Vs. Narhari are applicable in the facts and circumstances of
this case ?
IV. Whether the impugned judgment and decree are contrary to
the evidence and pleadings placed on records ?"
7. Per contra, counsel for respondents vehemently submitted that as the
decree relating to declaration of title of plaintiff passed by the trial court was
not challenged by defendant Nos. 1 and 2, therefore the finding recorded by the
trial court in respect of title of plaintiff has attained finality and now defendants
cannot assail the said decree in second appeal. It is further submitted that in
order to attract the provisions of Section 53A of the Transfer of Property Act,
the defendants were under an obligation to show that they were ready and
willing to perform their part of contract but as the defendants have not paid
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even a single penny in respect of Survey No. 313 except an amount of
₹10,000/- by way of advance, therefore even otherwise they are not entitled to
protect their possession over 8 bigha of Survey No. 313 and prayed for
dismissal of appeal.
8. Heard learned counsel for the parties.
9. The controversy in the present case is as to whether full consideration
amount in respect of Survey No.313 was paid or not. Wife of plaintiff was
owner of Survey No.309 which was sold to defendant Nos. 1 and 2.
10. So far as the submission made by counsel for appellant that defendant
Nos. 1 and 2/appellants had paid the entire consideration amount as mentioned
in the agreement to sell is concerned, it is suffice to mention here that the
appellants cannot be allowed to raise that ground in this second appeal. The
civil suit filed by plaintiff for declaration of title and permanent injunction was
partially allowed by the trial Court. The trial court had held that the plaintiff is
owner of 13 bigha of land forming part of Survey No. 313 but also held that
defendant Nos. 1 and 2 are in possession by virtue of agreement to sell.
11. Now the only question for consideration is as to whether the defendants
can be permitted to dispute the title of plaintiff in the present appeal or not,
specifically when they had not assailed the decree passed by the trial court. ?
12. As already pointed out, the trial court had decreed that plaintiff is owner
of 13 bigha of Survey No. 313. The said decree was never challenged by
defendant Nos. 1 and 2 either by filing separate appeal or by filing their cross
objection. Therefore, the decree granted by the trial Court in respect of
declaration of title of plaintiff over 13 bigha of Survey No. 313 has attained
finality and accordingly this court cannot allow the defendants to assail the
findings recorded by the trial court for passing the decree of declaration of title
in favour of plaintiff. Furthermore, defendants have not filed any document to
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show that an amount of ₹1,18,000 was paid to plaintiff by way of consideration
amount of 13 bigha of Survey No. 313. Defendant Nos. 1 and 2 could have
filed their bank statement to show that the amount was paid to plaintiff by
cheque and the cheque had also got encashed. No receipt of payment of ₹5,000
was ever filed by defendant Nos. 1 and 2. Under these circumstances, this
Court is of considered opinion that no case is made out warranting interference
with the decree of trial court which is to the extent of declaration of title of
plaintiff in respect of 13 bigha of Survey No. 313.
13. Now the next question for consideration is as to whether defendant Nos.
1 and 2 are entitled to protect their possession over 13 bigha of Survey No. 313
in the light of Section 53A of the Transfer of Property Act?
14. In order to take advantage of Section 53A of the Transfer of Property
Act, apart from other ingredients, defendants must prove that they have
performed some part of their contract and are willing and ready to perform the
remaining part of their contract. The Supreme Court in the case of Rambhau
Namdeo Gajre vs Narayan Bapuji Dhotra (Dead) reported in AIR 2004 SC
4342 has held as under:-
"8. It is seen that many a times a transferee takes possession of the
property in part performance of the contract and he is willing to
perform his part of the contract. However, the transferor some how
or the other does not complete the transaction by executing a
registered deed in favour of the transferee, which is required under
the law. At times, he tries to get back the possession of the property.
In equity the Courts in England held that it would be unfair to allow
the transferor to take advantage of his own fault and evict the
transferee from the property. The doctrine of part performance aims
at protecting the possession of such transferee provided certain
conditions contemplated by Section 53-A are fulfilled. The essential
conditions which are required to be fulfilled if a transferee wants to
defend or protect his possession under Section 53-A of the Act have
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been culled out of this Court in Shrimant Shamrao Suryavanshi &
Anr. Vs. Pralhad Bhairoba Suryavanshi, 2002 (3) SCC 676, are:
"(1) There must be a contract to transfer for consideration of any
immovable property;
(2) the contract must be in writing, signed by the transferor, or by
someone on his behalf;
(3) the writing must be in such words from which the terms
necessary to construe the transfer can be ascertained;
(4) the transferee must in part performance of the contract take
possession of the property, or of any part thereof;
(5) the transferee must have done some act in furtherance of the
contract; and (6) the transferee must have performed or be
willing to perform his part of the contract."
9. If these conditions are fulfilled then in a given case there is
an equity in favour of the proposed transferee who can protect his
possession against the proposed transferor even though a registered
deed conveying the title is not executed by the proposed transferor.
In such a situation equitable doctrine of part performance provided
under Section 53-A comes into play and provides that "the transferor
or any person claiming under him shall be debarred from enforcing
against the transferee and persons claming under him any right in
respect of the property of which the transferee has taken or
continued in possession, other than a right expressly provided by the
terms of the contract."
10. Protection provided under Section 53-A of the Act to the
proposed transferee is a shield only against the transferor. It
disentitles the transferor from disturbing the possession of the
proposed transferee who is put in possession in pursuance to such an
agreement. It has nothing to do with the ownership of the proposed
transferor who remains full owner of the property till it is legally
conveyed by executing a registered sale deed in favour of the
transferee. Such a right to protect possession against the proposed
vendor cannot be pressed in service against a third party."
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15. If the facts and circumstances of the case are considered, then it is clear
that defendant Nos. 1 and 2 have failed to prove that they had paid the
remaining consideration amount as agreed upon between the parties in respect
of 13 bigha of Survey No. 313. Even it is not the case of defendant Nos. 1 and 2
that they had taken any action for execution of sale deed. So far as the
temporary injunction order is concerned, it was not absolute and stay was only
on 1/3 of Survey No. 313. Although the plaintiff could not have alienated any
specific piece of Survey No. 313 but could have alienated to the extent of his
share and if so required, could have obtained leave of the court, but no attempt
was made by defendant Nos. 1 and 2 in that regard. Furthermore, it is the case
of plaintiff that possession was returned back by defendant Nos. 1 and 2 after
sale deed in respect of Survey No. 309 was executed by wife of plaintiff.
16. It is well established principle of law that this court in exercise of power
under Section 100 of CPC cannot interfere with concurrent findings of fact
even if they are found to be erroneous. The findings of fact can be interfered
with only if they are found to be perverse. No perversity could be pointed out
by counsel for the appellant. The Supreme Court in the case of Dinesh Kumar
v. Yusuf Ali reported in (2010) 12 SCC 740 has held as under:-
13. A second appeal does not lie on the ground of erroneous
findings of facts based on appreciation of the relevant evidence.
The High Court should not entertain a second appeal unless it
raises a substantial question of law. It is the obligation on the court
of law to further the clear intendment of the legislature and not to
frustrate it by ignoring the same.
14. In Ram Prasad Rajak v. Nand Kumar & Bros. [(1998) 6 SCC
748 : AIR 1998 SC 2730] , this Court held that existence of the
substantial question of law is a sine qua non for the exercise of
jurisdiction under Section 100 of the Code and entering into the
question as to whether the need of the landlord was bona fide or
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not, was beyond the jurisdiction of the High Court as the issue can
be decided only by appreciating the evidence on record.
15. There may be a question, which may be a "question of fact",
"question of law", "mixed question of fact and law" and
"substantial question of law". Question means anything inquired;
an issue to be decided. The "question of fact" is whether a
particular factual situation exists or not. A question of fact, in the
realm of jurisprudence, has been explained as under:
"A question of fact is one capable of being answered by
way of demonstration--a question of opinion is one that
cannot be so answered. The answer to it is a matter of
speculation which cannot be proved by any available
evidence to be right or wrong."
(Vide Salmond on Jurisprudence, 12th Edn., p. 69,
cited in Gadakh Yashwantrao Kankarrao v. Balasaheb
Vikhe Patil [(1994) 1 SCC 682] , at SCC p. 705, para 34.)
16. In RBI v. Ramakrishna Govind Morey [(1976) 1 SCC 803 :
AIR 1976 SC 830] this Court held that whether the trial court
should not have exercised its jurisdiction differently, is not a
question of law or a substantial question of law and, therefore, the
second appeal cannot be entertained by the High Court on this
ground.
17. In Kulwant Kaur v. Gurdial Singh Mann [(2001) 4 SCC 262]
this Court held that the question whether the lower court's finding
is perverse may come within the ambit of substantial question of
law. However, there must be a clear finding in the judgment of the
High Court as to perversity in order to show compliance with the
provisions of Section 100 CPC. Thus, this Court rejected the
proposition that scrutiny of evidence is totally prohibited in the
second appeal.
18. In Sheel Chand v. Prakash Chand [(1998) 6 SCC 683 : AIR
1998 SC 3063] , this Court held that question of reappreciation of
evidence and framing the substantial question as to whether the
findings relating to the factual matrix by the court below could
vitiate due to irrelevant consideration and not under law, being
question of fact cannot be framed.
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19. In Rajappa Hanamantha Ranoji v. Mahadev Channabasappa
[(2000) 6 SCC 120] this Court held that it is not permissible for the
High Court to decide the second appeal by reappreciating the
evidence as if it was deciding the first appeal unless it comes to the
conclusion that the findings recorded by the court below were
perverse.
20. In Jai Singh v. Shakuntala [(2002) 3 SCC 634 : AIR 2002 SC
1428] this Court held that it is permissible to interfere even on
question of fact but it has to be done only in exceptional
circumstances. The Court observed as under : (SCC pp. 637-38,
para 6)
"6. ... While scrutiny of evidence does not stand out to
be totally prohibited in the matter of exercise of jurisdiction
in the second appeal and that would in our view be too
broad a proposition and too rigid an interpretation of law
not worthy of acceptance but that does not also clothe the
superior courts within jurisdiction to intervene and interfere
in any and every matter--it is only in very exceptional
cases and on extreme perversity that the authority to
examine the same in extenso stands permissible--it is a
rarity rather than a regularity and thus in fine it can be
safely concluded that while there is no prohibition as such,
but the power to scrutiny can only be had in very
exceptional circumstances and upon proper
circumspection."
21. In P. Chandrasekharan v. S. Kanakarajan [(2007) 5 SCC 669]
this Court reiterated the principle that interference in the second
appeal is permissible only when the findings are based on
misreading of evidence or are so perverse that no person of
ordinary prudence could take the said view. More so, the Court
must be conscious that intervention is permissible provided the
case involves a substantial question of law which is altogether
different from the question of law. Interpretation of a document
which goes to the root of title of a party may give rise to a
substantial question of law.
22. In Shakuntala Chandrakant Shreshti v. Prabhakar Maruti
Garvali [(2007) 11 SCC 668 : (2008) 1 SCC (L&S) 964] this Court
considered the scope of appeal under Section 30 of the Workmen's
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Compensation Act, 1923 and held as under : (SCC pp. 679-80,
paras 39-40 & 42)
"39. Section 30 of the said Act postulates an appeal
directly to the High Court if a substantial question of law is
involved in the appeal.
40. A jurisdictional question will involve a substantial
question of law. A finding of fact arrived at without there
being any evidence would also give rise to a substantial
question of law. ...
***
42. A question of law would arise when the same is not
dependent upon examination of evidence, which may not
require any fresh investigation of fact. A question of law
would, however, arise when the finding is perverse in the
sense that no legal evidence was brought on record or
jurisdictional facts were not brought on record."
Similar view has been reiterated by this Court in Anathula
Sudhakar v. P. Buchi Reddy [(2008) 4 SCC 594] .
23. In Rishi Kumar Govil v. Maqsoodan [(2007) 4 SCC 465] this
Court while dealing with the provisions of Section 21(1)(a) of the
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)
Act, 1972 and Rule 16 of the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Rules, 1972, held that the bona fide
personal need of the landlord is a question of fact and should not
be normally interfered with.
24. There is no prohibition to entertain a second appeal even on
question of fact provided the Court is satisfied that the findings of
the courts below were vitiated by non-consideration of relevant
evidence or by showing erroneous approach to the matter.
[Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR
1992 SC 1604] , Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353]
, Satya Gupta v. Brijesh Kumar [(1998) 6 SCC 423] , Ragavendra
Kumar v. Prem Machinery & Co. [(2000) 1 SCC 679 : AIR 2000
SC 534] and Molar Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC
285] ]25 [Ed. : Para 25 corrected vide Official Corrigendum
No. F.3/Ed.B.J./68/2010 dated 9-7-2010.] . Thus, the law on the
subject emerges to the effect that second appeal under Section 100
CPC is maintainable basically on a substantial question of law and
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not on facts. However, if the High Court comes to the conclusion
that the findings of fact recorded by the courts below are perverse
being based on no evidence or based on irrelevant material, the
appeal can be entertained and it is permissible for the Court to
reappreciate the evidence. The landlord is the best judge of his
need, however, it should be real, genuine and the need may not be
a pretext to evict the tenant only for increasing the rent."
Accordingly, no substantial question of law arises in the present
appeal. As a consequence thereof, judgment and decree passed by
First Additional District Judge, Guna dated 20.10.2024 passed in
Civil Appeal No. 26A of 2003 and part of judgment dated
06.07.2000 passed by Civil Judge Class I, District so and so, Guna
in Civil Suit No. 12A of 2010, so far as it relates to declaration of
title of plaintiff, are hereby affirmed. Appeal fails and is hereby
dismissed.
17. Accordingly, no substantial question of law arises in the present appeal.
As a consequence thereof, judgment and decree dated 20.10.2004 passed by I
Additional Judge to the Court of First Additional District Judge, Guna in Civil
Appeal No. 26A of 2003 is affirmed and judgment and decree dated 06.07.2000
passed by Civil Judge Class I, Raghogarh, District Guna in Civil Suit No. 12A
of 1998, so far as it relates to declaration of title of plaintiff, is also hereby
affirmed.
18. The appeal fails and is hereby dismissed. The interim order dated
20/04/2005 is hereby vacated.
(G.S. Ahluwalia)
Judge
(and)
