Madhya Pradesh High Court
N. Kumar (Dead ) Through Lrs. Urmila Sahu vs Hargovind Sahu on 17 March, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:13091
1 SA-1215-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 17th OF MARCH, 2025
SECOND APPEAL No. 1215 of 2023
N. KUMAR (DEAD ) THROUGH LRS. URMILA SAHU AND OTHERS
Versus
HARGOVIND SAHU AND OTHERS
Appearance:
Shri Devendra Kumar Gangrade - Advocate for the appellants.
Shri Makbool Khan - Advocate for the respondent 1.
Shri Raji Mathai - Panel Lawyer for the respondent 2/State.
ORDER
This second appeal has been preferred by the appellants/defendants 1,
2 and 4 (or their L.Rs.) challenging the judgment and decree dated 10/3/2023
passed by First District Judge, Narmadapuram in Regular Civil Appeal
No.49A/2016 reversing the judgment and decree dated 29/7/2016 passed by
Second Civil Judge Senior Division, Hoshangabad in Civil Suit
No.12A/2013, whereby Trial Court dismissed respondent 1/plaintiff's civil
suit for restoration of possession, permanent injunction and mesne profits,
which has been reversed by First Appellate Court by decreeing the suit in
respect of land survey No.110/28 area 0.809 hectare and survey No.110/26
area 0.809 hectare situated in Village Bhatwadi, Tehsil Babai, District
Hoshangabad.
2. Learned counsel for the appellants submits that although registered
sale deeds dated 12/8/2005 and 18/8/2005 were executed by defendant 1-N.
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Kumar and defendant 4-Tejram Sahu in favour of the plaintiff, but the sale
deeds were without consideration and possession was also not handed over
by the defendants to the plaintiff and in fact the sale deeds were got executed
by the plaintiff under undue influence, because the daughter of defendant 1,
namely, Smt. Reena Sahu (defendant 2) was married to the son of plaintiff,
namely, Manoj Sahu, who died in a road accident in the year 2008. Learned
counsel submits that because the sale deeds were without consideration and
without possession, therefore, Trial Court after taking into consideration the
entire oral and documentary evidence available on record rightly dismissed
the suit, but First Appellate Court has committed illegality in decreeing the
suit presuming the factum of passing of consideration and delivery of
possession on the basis of recitals made in the sale deeds. Learned counsel
for the appellants further submits that there is no sufficient evidence
available on record to grant the decree of mesne profits. With these
submissions, he prays for admission of the second appeal.
3. Learned counsel appearing for respondent 1/plaintiff supports the
impugned judgment and decree passed by First Appellate Court and prays for
dismissal of second appeal. However, learned counsel for respondent 1
submits that he has no objection in setting aside the judgment and decree
granted in respect of mesne profits, as the plaintiff himself does not want
decree of mesne profits.
4. Heard learned counsel for the parties and perused the record.
5. In the present case, execution of sale deeds by defendant 1 and
defendant 4 on 12/8/2005 and 18/8/2005 in favour of plaintiff is not in
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dispute. The plaintiff by examination of himself-Hargovind (PW-1) and
attesting witness to the sale deeds, namely, Atar Singh Meena (PW-2) has
proved execution of sale deeds as well as passing of sale consideration and
delivery of physical possession. Upon due consideration of the same, First
Appellate Court has found the same to be proved especially in the light of
recitals made in the sale deeds (Ex.P/1 and P/2).
6. Execution of sale deeds by defendants 1 and 4 is not in dispute, but
it has been contended by learned counsel for the defendants that the sale
deeds were got executed by plaintiff under undue influence. It is an
undisputed fact available on record that the defendants 1 and 4 did not file
any suit for cancellation of sale deeds within prescribed limitation and even
in the present suit, no counter claim is filed for cancellation of sale deeds. It
is also an undisputed fact available on record that immediately after
execution of sale deeds in favour of plaintiff, his name was also mutated in
the revenue record. After taking into consideration this aspect of the matter,
in paragraphs 17 and 18 of the impugned judgment, First Appellate Court
has decreed the suit.
7. In view of the aforesaid discussion and upon due consideration of
the entire material available on record, this Court does not find any illegality
in the impugned judgment and decree passed by First Appellate Court.
8. Resultantly, for want of any substantial question of law this second
appeal fails and is hereby dismissed.
9. In so far as decree of mesne profits is concerned, in view of the
concession given by learned counsel for the respondent 1/plaintiff, it is
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observed that the respondent 1/plaintiff shall not be entitled for decree of
mesne profits.
10. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
Arun*
