Madhya Pradesh High Court
Mahesh Chandra Gupta vs Smt. Rajni Gupta on 6 May, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 6 th OF MAY, 2025
SECOND APPEAL No. 240 of 2025
MAHESH CHANDRA GUPTA
Versus
SMT. RAJNI GUPTA AND OTHERS
Appearance:
Shri Prashant Sharma - learned counsel for the appellant.
Shri Anmol Khedkar- learned counsel for respondent no.1 and 2.
Shri M.P. Sharma- learned counsel for respondent no.11.
ORDER
1. The appellant/defendant No.1 has filed this appeal under Section 100 of
the Code of Civil Procedure, 1908 challenging judgment and decree dated
06/11/2024 passed by the Sixth District Judge, District- Gwalior in RCA
No.40/2023, whereby learned Appellate Court has has affirmed the judgment and
decree dated 20/12/2022 passed by the Fifth Civil Judge, Senior Division,
Gwalior in RCSA No.2400012A/2015.
2. The facts which are not in dispute between the parties are that one
Baijnath Sharma and Smt. Kasturi Bai had nine children (since 6 sons and 3
daughters). The defendant no.1 to 9 are the children of Baijnath Sharma and Smt.
Kasturi Bai while plaintiff no.1 is the wife of defendant no.8 and plaintiff no.2 is
the son of defendant no.4. It is also not in dispute that Baijnath Sharma has
expired on 16/05/2005 while Smt. Kasturi Bai has expired on 16/03/2006.
3. The plaintiffs filed the suit for declaration of their title over suit
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property, possession and damages against the defendants inter-alia on the ground
that the suit house consists of two parts viz. House No.290 & 291. It is their case
that House No.290 was purchased by plaintiffs vide registered sale deed dated
30/03/1998 from its earlier owner Mohan Kumar Khatri. It is further pleaded that
House No.291 was purchased by Smt. Kasturi Bai vide registered sale deed dated
12/03/1976 and was later on bequeathed by her in favour of plaintiff no.1 on
20/09/2005. It is also pleaded by the plaintiffs that the defendants- Ashok,
Mahesh and Arvind were allowed to occupy the portion of the suit house,
however, when they started disputing plaintiffs' ownership, they were asked to
vacate the premises by serving notice to them. The plaintiffs have alleged that
defendants are encroachers in the suit house. When they failed to hand over the
possession, therefore, the present suit was filed.
4. The defendants no.1 & 2 filed separate written statement denying the
plaint allegations. In substance, they pleaded that the suit property was purchased
out of earnings of Joint Hindu Family property and neither Smt. Kasturi Bai nor
the plaintiff- Smt. Rajni had any source of income to purchase the suit property.
They asserted that they are the co-owner of the property and are in joint
possession with all other co-sharers. They also pleaded that Mohan Kumar Khatri
had no title over the suit property and the sale deed dated 30/03/1998 executed in
favour of the plaintiff is ineffective. The defendants also disputed the will
executed by Kasturi Bai in favour of Plaintiff Rajni.
5. The defendant no.3 to 5 & 8 filed their written statements and accepted
the plaintiffs' claim. The defendant no.9 filed his written statement and also
lodged a counter claim claiming 1/9 share in the suit property. The learned Trial
Court as well as Appellate Court has decreed the plaintiffs' suit and passed the
decree of declaration and possession in favour of the plaintiffs. The counter claim
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filed by defendant no.9 is dismissed by both the courts. Being aggrieved by
judgment and decree passed by both the courts, the defendant no.1 has, filed the
present appeal.
6. In order to challenge the judgment & decree passed by both the courts,
the learned counsel for the appellant raised a singular ground that Smt. Kasturi
Bai and plaintiff no.1- Smt. Rajni had no source of income and the suit property
was purchased out of joint family property fund. Therefore, plaintiffs cannot
claim the title on the basis of sale deed dated 30/03/1998 and 20/09/2005. He thus
submitted that the property since belong to Baijnath Sharma, he is the co-owner
of the suit property and plaintiffs are not having exclusively title over the same.
The learned counsel for the appellant further submitted that Courts below have
failed to adjudicate this issue and, therefore, the judgment and decree suffers from
patent illegality.
7. Considered the arguments of counsel for appellant and perused the
record.
8. So far as the title of Smt. Kasturi Bai over House No.291 is concerned,
admittedly sale deed dated 12/03/1976 was executed in her favour. The plaintiffs'
case is that the suit property was purchased by Smt. Kasturi Bai out of her own
earnings and Stridhan. The recitals made in the registered instrument are required
to be accepted unless the party asserting otherwise, proves that such recitals are
incorrect. This has been so held by Apex Court in the case of Pawan Kumar
Gupta vs. Rochiram Nagdeo reported in (1999)4 SCC 243 . The Apex Court held
in para 23 & 24 as under:
"23. All the above three premises adverted to by
the High Court are unsupportable. The clear
pleading of the plaintiff is that he purchased the
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suit property as per Ext. P-11 sale deed. The
burden of proof cannot be cast on the plaintiff to
prove that the transaction was consistent with
the apparent tenor of the document. Ext. P-11
sale deed contains the recital that the sale
consideration was paid by the plaintiff to Narain
Prasad, the transferor. Why should there be a
further burden of proof to substantiate that the
recitals in the document are true? The party who
wants to prove that the recitals are untrue must
bear the burden to prove it.
24. In this context reference to Sections 91 and
92 of the Evidence Act, 1872 will be useful. As
per the former, in all cases in which any matter
is required by law to be reduced to the form of a
document no evidence shall be given in proof of
the terms of such matter except the document
itself. Section 92 forbids admission of any
evidence for the purpose of contradicting,
varying, adding to, or subtracting from the terms
of such a document. One of the exceptions to the
said rule is that any fact which would invalidate
the instrument can be proved by adducing other
evidence."
9. In view of aforesaid legal position, the submission of learned counsel for
appellant that the plaintiff failed to prove their and Kasturi Bai's source of income
for purchasing the suit property, is not acceptable. In fact, it was the burden of
defendants to have proven otherwise.
10. The defendants have came up with specific stand that their father
Baijnath Sharma sold the joint family house situated at Pachchipada in the year
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1976 and from the proceed of the aforesaid sale, the suit House No.291 was
purchased on 12/03/1976 in the name of Smt. Kasturi Bai. In this regard, Trial
Court has appreciated the defendant's plea about jointness of the family and
proceed after the sale of house of Pachchipada in paragraph 61 to 66 and has
recorded a finding of fact that the house situated at Pachchipada was sold for a
sum of Rs.6000/- out of which Rs.2700/- was liquidated towards loan of Baijnath
Sharma. It has come in the defendant's statement that on account of satisfying the
loan the house of Pachchipada was sold by Baijnath. Further, the, House No.291
was purchased after 10 years on 12/03/1976 for a sum of Rs.15,000/- which
cannot be said to be purchased out of the joint family fund received after sale of
said house in 1966. Thus, the defendants' claim that the House No.291 was
purchased out of joint family fund is rightly not accepted by learned courts
below.
11. So far as House No.290 is concerned, sale deed dated 30/03/1998 has
been executed in plaintiffs' favour by the earlier owner of the house- Mohan
Kumar Khatri. Thus, as per recital of the sale deed plaintiffs are presumed to be
the owner of this portion of the house in view of law laid down by Apex Court in
the case of Pawan Kumar Gupta (supra) unless the contrary is proved by
defendants. The defendants have disputed the plaintiffs' title on the ground that
the earlier vendor Mr. Mohan Kumar Khatri had no title over the property and
was, therefore, not competent to sell the same to plaintiffs. In this regard, learned
Trial Court has examined the documents placed on record and has held that
Ramesh Chand had sold the suit house to Mohan Khatri vide registered sale deed
dated 17/07/1998 and, therefore, Mohan Kumar Khatri has title over the suit
property. The said Mohan Kumar Khatri thereafter sold the suit property to the
plaintiffs vide registered sale deed 30/03/1998 (Ex. P/4). Thus, it has been rightly
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held that the suit property viz. House No.290 is owned by the plaintiffs.
12. It is further worth noticing here that the defendants' plea that the suit
property was purchased in the name of plaintiffs out of the joint Hindu Family
fund, is not available to them by virtue of provision of Section 3(2) of the Benami
Transactions (Prohibition) Act, 1988 as it stood prior to amendment of 2024.
13. The aforesaid findings of facts recorded by learned Trial Court after
appreciation of evidence have been affirmed by the learned Appellate Court.
Thus, defendant no.1 is suffering concurrent finding of fact with regard to the title
of Smt. Kasturi Bai and Smt. Rajni over the suit house. The appellant has failed to
point out any perversity in the aforesaid findings of fact. The scope of
interference by this court under Section 100 of CPC is very limited and is well
defined. The scope of interference by High Court under Section 100 CPC is
considered by Apex Court in the case of Nazir Mohamed vs. J. Kamala reported
in (2020)19 SCC 57 wherein the Apex Court held thus:
"22. A second appeal, or for that matter, any appeal is not a
matter of right. The right of appeal is conferred by statute.
A second appeal only lies on a substantial question of law.
If statute confers a limited right of appeal, the court cannot
expand the scope of the appeal. It was not open to the
respondent-plaintiff to reagitate facts or to call upon the
High Court to re-analysis or reappreciate evidence in a
second appeal.
23. Section 100 CPC, as amended, restricts the right of
second appeal, to only those cases, where a substantial
question of law is involved. The existence of a "substantial
question of law" is the sine qua non for the exercise of
jurisdiction under Section 100 CPC.
*** *** ***
32. In a second appeal, the jurisdiction of the High Court
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being confined to substantial question of law, a finding of
fact is not open to challenge in second appeal, even if the
appreciation of evidence is palpably erroneous and the
finding of fact incorrect as held in V. Ramachandra
Ayyar v. Ramalingam Chettiar [V. Ramachandra
Ayyar v. Ramalingam Chettiar , AIR 1963 SC 302] . An
entirely new point, raised for the first time, before the High
Court, is not a question involved in the case, unless it goes
to the root of the matter."
14. Thus, findings of fact recorded by the Court below in this case are not
found to be perverse and/or based on misappreciation of evidence. The findings
of fact so recorded by the Courts below are not open to interference in exercise of
limited scope of jurisdiction under Section 100 of CPC. Therefore, the appeal
does not involve any substantial question of law and the same is, accordingly,
dismissed.
(ASHISH SHROTI)
JUDGE
rahul
