Madhya Pradesh High Court
Lt.Karnel Chandra Kumar Kichlu ... vs Municipal Corporation Gwalior on 20 May, 2025
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
SECOND APPEAL No. 91 of 2008
LT.KARNEL CHANDRA KUMAR KICHLU (DELETED) AND OTHERS
Versus
MUNICIPAL CORPORATION GWALIOR
Appearance:
Mr. P.C. Chandil and Mr. Dinesh Baghel - Advocate for the appellants.
Mr. Sameer Kumar Shrivastava - Advocate for respondent no.1.
ORDER
Reserved on : 01.05.2025
Delivered on : 20.05.2025
JUDGMENT
This appeal under Section 100 of Code of Civil Procedure has been filed by
the appellants challenging the judgment and decree, dated 23.01.2008, passed by
Fourth Additional District Judge, Gwalior, in Civil Appeal No.19-A of 2007
whereby the learned appellate court has affirmed the judgment and decree, dated
28.09.2007, passed by Fifth Civil Judge, Class-I, Gwalior, in Civil Suit No.181-A
of 2007 whereby their suit for declaration and permanent injunction was
dismissed and the counter claim filed by respondent was decreed.
2. For purposes of convenience, the appellants are referred as plaintiffs and
respondents are referred as defendants as per their respective status in civil suit.
The suit property in this judgment would mean land and building situated over
Survey No.3117 to 3129 admeasuring 6 beegha 5 viswa situated at Kalpi Bridge,
Maalroad, Morar, Gwalior.
PLAINTIFFS' CASE
3. The plaintiffs' case as pleaded in plaint is that the suit property was given
on lease for 99 years to Col. Gauri Prasad Kichlu by Municipality of Gwalior City
of the then Gwalior State. The lease deed was executed on 29.07.1932. It was
pleaded by them that one building known as 'Gendghar' was existing over the
land when the lease was created and the lessee constructed a bungalow in the year
1940 which spread over 7000 sq. ft. of land and is known as 'Laxmi Niwas'. It is
their case that Col. Kichlu alongwith his family resided in the said house and after
his death, his legal heirs have been occupying the suit property. It is further
pleaded that the name of legal heirs of original lessee has been recorded in
municipal records and that they have been paying lease rent to the defendant
Municipal Corporation. The plaintiff no.1 is the eldest son of late Gauri Prasad
Kichlu and, being the karta of the family, is taking care of and managing the suit
property. He is stated to be the power of attorney holder of other legal heirs.
3.1 It is further pleaded in the plaint that as per the terms of lease, the lessee is
entitled to transfer the property by creating sub-lease and that on expiry of 99
years of lease period, if the Municipality intends to further give the property on
lease or wants to sell it, the lessee will have the first claim over the suit property.
It is pleaded by them that exercising the right given in the lease deed, plaintiff
no.1 has given part of suit property on sub-lease to plaintiff no.2 to 10 on various
dates ranging from the year 1993 to 1995 by executing registered sub-lease
agreements and has accordingly delivered possession to them. It is further pleaded
in plaint that before creating sub-lease, permission was obtained by plaintiff no.1
from the Competent Authority under Urban Land (Ceiling & Regulation) Act,
1976, with due notice to defendant Corporation.
3.2 The plaintiffs further case is that, with some malafide intention, the officers/
employees of defendant Corporation tried to remove the boundary wall of sub-
lease property of plaintiff no.2 to 10 so that they may leave their possession from
suit land. The plaintiff no.2 & 3, therefore, filed a Civil Suit (C.S. No.64-A/98)
against the defendant Corporation for permanent injunction. The suit was decreed
by Trial Court vide judgment and decree, dated 29.09.1999, thereby a specific
issue was framed and answered by the Trial Court holding that the lessee was
competent to create sub-lease in favour of plaintiffs therein. A decree of
permanent injunction was accordingly passed restraining the defendant
Corporation from disturbing plaintiffs' (therein) possession over the suit property.
It is the plaintiffs' case that the defendant Corporation is bound by the aforesaid
finding recorded in judgment, dated 29.09.1999. It is pleaded in the plaint that the
Commissioner of defendant Corporation issued notice, dated 03.11.2001, from
which it is evident that the defendant intends to cancel the lease/sub-lease and to
dispossess the plaintiffs from suit property. The plaintiffs then served a notice,
dated 13.11.2001, to defendant Corporation under Section 401 of Municipal
Corporation Act, 1956. They thereafter filed the present suit for declaration that
they are occupying the suit property pursuant to lease deed created in the year
1932 by Gwalior Municipality of the then Gwalior State and the defendant
Corporation has no right to disturb their possession or dispossess them from the
suit property. The plaintiffs' also prayed for a decree of permanent injunction
seeking protection of their possession over the suit property till expiry of lease
period.
DEFENDANT'S CASE
4. The defendant Corporation filed its written statement whereby the
execution of lease deed in favour of Col. Gauri Prasad Kichlu was accepted. The
mutation of name of legal heirs of Col. Kichlu was also accepted and it was also
accepted that the plaintiffs paid lease rent for some time, however, have not paid
lease rent from 01.04.1996. The factum of construction made by Col. Kichlu was
denied and it was stated that no permission for raising construction was taken
from defendant. The defendant pleaded that after death of Gauri Prasad Kichlu, no
agreement was executed with his legal heirs and in absence of such agreement, the
plaintiffs does not have any right over the suit property and lease automatically
came to an end on death of Gauri Prasad Kichlu.
4.1 The defendant further denied the right of plaintiff no.1 to create sub-lease in
favour of plaintiff no.2 to 10. It is its case that the documents filed by plaintiffs
shows that the same are infact sale and not sub-lease. The defendant alleged
violation of terms of lease deed on the part of plaintiffs. The factum of obtaining
permission under Urban Land (Ceiling & Regulation) Act, 1976, was also denied
on the ground that the provisions of the said Act are not applicable on suit
property and it is pleaded that the defendant is not bound by any such permission.
It is also pleaded that the judgment and decree passed in C.S. No.64-A/98 does
not have any effect in the present case and that the plaintiffs are not entitled to
protect their possession on said decree. Rest of the adverse allegations made in the
plaint were also denied by defendant Corporation.
COUNTER CLAIM FILED BY DEFENDANT AND ITS WRITTEN
STATEMENT FILED BY PLAINTIFF
5. The defendant Corporation also filed its counter claim seeking a declaration
that the plaintiffs are not entitled to continue in possession of suit property and the
possession be delivered to it. It sought a declaration that the sub-leases which are
infact sale deeds executed by plaintiff no.1 are ineffective and plaintiff no.2 to 10
does not derive any right or title from such sale deeds. It also sought declaration
that the plaintiff no.1 is not entitled to retain the sale consideration paid by
plaintiff no.2 to 10 and the defendant is entitled to get the same as compensation.
5.1 It is noteworthy that the defendant again admitted execution of lease deed,
dated 12.10.1932, and the terms of lease were also accepted and reproduced in the
counter claim. The defendant alleged violation of terms of lease on the ground
that the plaintiff no.1 did not have any right to sell the suit land to plaintiff no.2 to
10. It is also pleaded that the possession of plaintiff no.2 to 10 over the suit
property is illegal and unauthorized. Pertinently, the defendant Corporation in
para 2 of its counter claim, more than once, has termed the suit land as "krishi
bhoomi" (agriculture land).
5.2 The plaintiffs filed written statement to the counter claim and denied the
allegations made therein. Most of the pleadings in written statement by plaintiffs
are the repetition of submissions already made in the plaint. However, in para 15
thereof, the plaintiff has made averments with regard to property being agriculture
land and the land being used for agriculture purposes; that the name of Gauri
Prasad Kichlu was recorded as mamuli mourisi in the revenue records for the
period from samvat 1997 (year 1940) and, therefore, by virtue of provisions of
Madhya Bharat Land Revenue Tenancy Act, 1950, and thereafter under the
provisions of M.P. Land Revenue Code, 1959, the defendant ceased to have any
right over the suit property.
TRIAL COURT & FIRST APPELLATE COURT JUDGMENTS
6. Before the learned Trial Court, the plaintiffs and defendant led oral and
documentary evidence. The learned Trial Court held that even though the
execution of lease deed, dated 12.10.1932, (Ex. P/1) is not disputed between the
parties, however, for want of registration of the lease deed, no rights, much less
the lease hold rights, were acquired by Col. Gauri Prasad Kichlu. It referred to
provisions of Section 107 of Transfer of Property Act, 1882 and Section 17 read
with Section 49 of Registration Act, 1908, and held that the registration of lease
deed was compulsory and for want of registration, the same is ineffective and
inconsequential. Having held so, the learned Trial Court relied upon Section 6 of
Transfer of Property Act and held that at best the month to month tenancy or
tenancy for less than one year can be presumed in plaintiff's favour.
6.1 The learned Trial Court further held that on account of death of original
lessee viz. Gauri Prasad Kichlu, the lease came to end at the end of the month in
which he expired and, thereafter it cannot be accepted that the plaintiffs are
occupying the suit property under the terms of lease.
6.2 On the issue of res-judicata, the learned Trial Court held that the earlier
Civil Suit No.64-A/98 was filed by plaintiff no.2 & 3 only claiming relief of
permanent injunction restraining the defendant Corporation from damaging their
boundary wall whereas in the present suit, the defendant Corporation has claimed
restoration of possession of suit property on account of cancellation of lease deed
for violation of its terms and conditions. The Trial Court was of the view that
since the averments made and relief claimed in both the suits is different, the
principle of res-judicata is not applicable.
6.3 The learned Trial Court then examined the issue with regard to non-
payment of lease rent by the plaintiffs. It is held that the plaintiffs have not paid
lease rent after 01.04.1996 and, therefore, by virtue of Section 111(g) of Transfer
of Property Act, 1882, the lease deed got cancelled at the end of month for which
lease rent was lastly paid.
6.4 Thereafter, the learned Trial Court held that during the pendency of suit, the
Corporation cancelled the lease vide order, dated 25.08.2004. It is held that since
the lease has been cancelled, the defendant Corporation is entitled to get the
possession of suit property from the plaintiffs. In view of order, dated 25.08.2004,
it is held that the defendant Corporation is taking steps for obtaining possession of
suit property from plaintiffs in accordance with law.
6.5 After having held as above, the learned Trial Court held that the sub-lease
granted by plaintiff no.1 to plaintiff no.2 to 10 cannot be termed as sale deeds. It
is then held that since the plaintiff no.1 did not acquire any right in the property in
view of aforesaid findings, the plaintiff no.2 to 10 also do not get any right in the
property by virtue of sub-lease agreements executed in their favour.
6.6 After having recorded aforesaid findings, the learned Trial Court dismissed
the plaintiffs' suit and decreed the defendant's counter claim. The plaintiffs have
been directed to deliver possession of suit property to defendant Corporation
within two months and the sub-lease agreements executed in favour of plaintiff
no.2 to 10 are held to be ineffective as against the right and interest of defendant
Corporation.
6.7 The plaintiff thereafter filed the appeal under Section 96 of the CPC which
has also suffered dismissal by way of impugned judgment & decree, dated
23.01.2008. The present appeal has been filed by plaintiffs challenging the
aforesaid judgment & decree passed by both the courts. This appeal was admitted
by this Court on 06.08.2008 on five substantial questions of law which are being
answered hereunder.
7. Before answering the substantial questions of law framed in this appeal, it
is profitable to deal with the preliminary objection raised by learned counsel for
defendant with regard to maintainability of this appeal so far as challenge to
judgment and decree passed in respect of defendant's counter claim is concerned.
7.1 The suit for declaration and permanent injunction was filed by plaintiff and
the suit was valued at Rs.14,800/- on which court fee of Rs.140/- was paid before
the learned Trial Court. Further, the counter claim for declaration and possession
was valued by defendant at Rs.14,700/- and court fee of Rs.110/- was paid before
the Trial Court.
7.2 When the first appeal was filed by plaintiffs, the appeal was valued at
Rs.14,800/- only and court fee of Rs.140/- was paid. Similarly, the valuation of
this appeal has been made. It is the objection of defendant's counsel that the first/
second appeal having not been valued for purposes of counter claim, the plaintiff
cannot be allowed to challenge the findings recorded by learned Trial Court
relating to its counter claim. He thus submits that for want of challenge to counter
claim even in first appeal, this appeal is liable to be dismissed as the answer to
substantial questions of law would not upset the decree passed against the plaintiff
in counter claim. He further submitted that since the judgment relating to counter
claim was not challenged before first appellate court, the defect cannot be
rectified now in this second appeal.
7.3 In response, the plaintiffs' counsel submitted that the defect of valuation
and non-payment of court fee is a curable defect and the appeal cannot be
dismissed merely because of the improper valuation and payment of deficit court
fee. He submits that the findings regarding counter claim were challenged before
the first appellate court and also before this court and merely non-valuation of
first/second appeal would not entail dismissal of the appeal. He submitted that the
plaintiffs are ready to rectify the defect as may be directed by this Court.
7.4 Considered the arguments of counsel for parties on preliminary objection
and perused the records. From reading prayer clause of memo of first appeal, it is
seen that a specific prayer was made seeking dismissal of counter claim. In this
appeal also, prayer has been made to set aside the judgment and decree passed by
both the courts which, by default, would include decree passed in respect of
counter claim also. Now the question arises as to whether this appeal is liable to
be dismissed on the ground of non-valuation and non-payment of court fee in
respect of counter claim?
7.5 The provisions of Order 7 Rule 11(b) CPC provide for rejection of plaint
"where the relief claimed is undervalued, and the plaintiff, on being required by
the Court to correct the valuation within a time to be fixed by the Court, fails to
do so". The appeal being continuation of suit, the provisions of Order 7 Rule 11
CPC are applicable at appellate stage also. It is worth mentioning here that no
objection was raised by defendant in this regard before the first appellate court as
also before this court. It is only during course of final hearing of this appeal, the
objection has been raised. Had it been raised at first appellate stage, the plaintiffs
could have rectified the defect. Therefore, in the considered opinion of this court,
the appeal is not liable to be dismissed on this ground and the plaintiffs deserve an
opportunity to rectify the defect of valuation of first/second appeal and to pay
court fee accordingly.
SUBSTANTIAL QUESTION OF LAW NO.1:
8. The substantial question of law no.1 framed by this court is:
"Whether in an earlier suit for permanent injunction, the finding
that the legal heirs of the lessee had right to create sub-lease in
favour of plaintiffs, recorded in para 7 of the judgment and
decree dated 29.09.1999 passed in Civil Suit No.64-A/98 vide
Ex. P/30 is binding and would operate res judicata, the Courts
below committed error in holding that the decision of the earlier
case does not operate as res judicata in the subsequent case?"
8.1 The learned counsel for the appellants submits that in view of the judgment
and decree passed on 29.09.1999 in Civil Suit No.64-A/1998 (Ex. P-30), it is not
open to defendants to raise the objection with regard to non-registration of lease
deed in question. He further submits that the defendant is further estopped from
raising an objection with regard to competence of plaintiff no.1 to execute sub-
lease in favour of plaintiff no.2 to 10. Further, the objection regarding violation of
terms of lease on the part of the plaintiffs cannot be raised in this suit. It his
submission that all these objections are barred by principle of res-judicata under
Section 11 CPC as also by constructive res-judicata by virtue of Explanation IV
thereof.
8.2 The learned counsel submitted that the Trial Court has rejected the plea of
res-judicata on the ground that relief in the earlier suit was only with regard to
permanent injunction while in the present case the relief is that of declaration and
permanent injunction and in the counter-claim also different relief is prayed. It is
his submission that merely because the reliefs in both suits are different, it cannot
be said that the principle of res-judicata is not applicable and it has to be seen that
the issue in this regard was heard and finally decided or not?
8.3 The plaintiffs' counsel further submitted that the appellate Court has
rejected the plea of res-judicata on the ground that the issues in the earlier suit
were different than the one involved in the present case. Referring to judgment &
decree, dated 29.09.1999, (Ex. P/30) he submits that in the earlier suit the specific
issue, with regard to the competence of the lessee to execute the sub-lease under
the original lease, was framed and it was specifically decided in plaintiffs'
(therein) favour after taking evidence of both the parties. Referring to paragraph -
7 of the said judgment, he submitted that there is a specific finding recorded by
the Trial Court that the lessee was granted authority to transfer the property by
way of sub-lease. He further submitted that upholding authority to execute sub-
lease presupposes valid execution of lease deed and, therefore, findings recorded
in earlier suit operates as res-judicata in the present suit.
8.4 The learned counsel also submitted that all these objections were available
to the defendant in earlier suit, therefore, even if the validity of lease is not
decided in earlier suit, the defendant is debarred from raising these objections on
principle of constructive res-judicata. The argument of plaintiffs' counsel is thus
twofold:
i. the defendant is debarred from questioning lease holder's
right to create sub-lease;
ii. the defendant is debarred from questioning legality &
validity of lease deed on the ground of its non-registration.
8.5 In support of his submission, the learned counsel relied upon the judgment
rendered by Allahabad High Court in the case of Trilok Singh Vs. Smt. Savitri
Devi, reported in AIR 1972 Allahabad 52, wherein it is held as under :
"8. The learned counsel was not able to satisfy me that in the
earlier suit for restitution of conjugal rights it was not necessary
for the court to record a finding on the disputed question of fact
as to what had happened on 30-7-1960 when the wife left her
husband's house. That issue clearly arose on the nature of the
defence raised in that suit. As a suit under Section 9 of the
Hindu Marriage Act afforded a relief for restitution of conjugal
rights, if the suit is by the husband, on proof of the fact that the
wife without reasonable excuse withdrew herself from the
society of her husband, it was necessary for the court in that suit
to find out whether the wife left her husband's house without
reasonable excuse thus depriving the husband of her society. In
that connection an inquiry into the happenings on 30-7-1960
became necessary. In the latter suit for judicial separation based
on desertion the husband had to establish that the wife left his
house without reasonable cause, the defence set up being that
the wife left the house of her husband having been beaten and
turned out in order to demolish the case of the husband that she
left of her own accord without the permission of her husband
and without any reasonable cause. I have no doubt in my mind
that the courts below were right in holding that the finding on
the crucial question of fact recorded in the former suit for
restitution of conjugal rights will have the effect of res judicata
and it was not open to the husband as a petitioner to re-agitate
the same question of fact again in the latter suit. Thus there
being a concurrent finding to the effect that the wife left her
husband's house on 30-7-1960 for a reasonable cause which had
not been shown to be vitiated by any error of law or procedure,
would be binding in second appeal."
8.6 He also relied upon the judgment of Apex Court in the case of Jai Kishan
Das and others vs. Smt. Nirmala Devi & others, reported in AIR 1984 SC 589. He
further relied upon another judgment in the case of Gorie Gouri Naidu (Minor)
and another Vs. Thandrothu Bodemma and others, reported in AIR 1997 SC 808,
Hope Plantations Ltd. Vs. Taluk Land Board, Peermade & another, reported in
(1999)5 SCC 590, Shramjeevi Co-operative Housing Society Ltd. Vs. Dinesh
Joshi and others, reported in AIR 2023 SC 1558, Sajjadanashin Sayed Md. B.E.
Edr.(D) Vs. Musa Dadabhai Ummer and others, reported in AIR 2000 SC 1238,
State of U.P. Vs. Nawab Hussain, reported in (1977)2 SCC 806, Securities and
Exchange Board of India Vs. Ram Kishori Gupta and anr, reported in 2025
Livelaw SC 401, Randhir Singh Vs. Satish Kumar and other, reported in AIR
Online 2018 Delhi 672.
8.7 On the other hand, the learned counsel for defendant submitted that there
was no issue raised/framed in the earlier suit as to whether the lease deed required
registration or not? Referring to para 4 & 6 of the plaint in earlier suit (Ex. P/28),
he submitted that the plaintiff no.2 & 3 alone filed earlier suit being aggrieved by
intended action of defendant to demolish the boundary wall considering it to be an
encroachment. As per his submission the issue in earlier suit was only with regard
to validity of boundary wall and the issue with regard to legality and validity of
lease deed executed in favour of Col. Gauri Prasad Kichlu was not directly and
substantially involved. He further submitted that the Trial Court in earlier suit has
not considered the provisions of Transfer of Property Act and Registration Act.
Therefore, the principle of res-judicata and/or constructive res-judicata is not
attracted in the facts of the present case. He also submitted that the plea of res-
judicata is not available to plaintiffs on question of law. In support of his
submissions, he relied upon judgment of Apex Court in the case of Harayana
State Electricity Board Vs. Hanuman Rice Mills Dhanauri & others, reported in
(2010)9 SCC 145, Gram Panchyat of Village Naulakha Vs. Ujagar Singh and
others, reported in (2000)7 SCC 543, V. Rajeshwari Vs. T.C. Saravanabava,
reported in 2004(2) MPLJ 392 (SC), Sheodan Singh Vs. Daryao Kunwar, reported
in AIR 1966 SC 1332, Canara Bank Vs. N.G. Subbaraya Setty and anr, reported in
AIR 2018 SC 3395, Madhvi Amma Bhawani Amma & others Vs. Kunjikutty Pillai
Meenakshi Pillai & others reported in AIR 2000 SC 2301, Jamia Masjid Vs. Sri
K.V. Rudrappa, reported in (2022)9 SCC 225 and judgment of this court in the
case of Hameeda Begum (Smt) and anr. Vs. Smt. Champa Bai Jain & others
reported in ILR 2009 MP 2328 (DB) and Bhawarsingh & others Vs. Kishanlal
reported in 2000 RN 255.
8.8 Regarding the first submission of plaintiffs' counsel, there is no difficulty in
accepting that the defendant is debarred from raising issue of authority of lease
holder to create sub-lease as the specific issue was framed and answered by Trial
Court in earlier suit. If the Trial Court's finding in para 12 and Appellate Courts'
finding in para 15, in this case are seen, it is revealed that the finding in this
regard is recorded in plaintiffs' favour. The courts below have, however, held that
the earlier judgment cannot operate as res-judicata for the issue of validity of
lease deed for want of registration.
8.9 Further, for attracting principle of res-judicata, there has to be a specific
plea in subsequent suit with regard to the fact for which res-judicata is invoked.
This has been so held by Apex Court in the case of V. Rajeshwari (supra) and by
this court in the case of Gafoor & others Vs. Gulabbai & others reported in
2005(2) MPLJ 254. In the instant case, the only pleading made in para 6 of plaint
relate to plaintiffs' objection of res-judicata. From reading para 6, the defendant is
stated to be debarred from raising issue with regard to lease holder's authority to
grant sub-lease to plaintiff no.2 to 10. The plaintiffs have not invoked res-judicata
to say that the issue of registration of lease deed or for that matter issue of legality
& validity of lease deed is heard and decided in the earlier suit. Thus, for want of
necessary pleading in plaint, the plaintiffs cannot be allowed to say in this suit that
the earlier judgment is res-judicata for the issue of legality & validity of lease
deed also for want of registration.
8.10 For the sake of arguments, if the aforesaid aspect is overlooked, from
reading of judgment passed in earlier suit, it is gathered that there is no specific
issue raised/framed regarding validity of lease deed. The learned counsel for
respondent is correct in his submission that there was no occasion to raise any
such issue inasmuch as the lease holder i.e. plaintiff no.1 was not even party in
that suit. The only issue raised and decided in the suit is with regard to
defendant's right to remove the boundary wall and while deciding the same the
Trial Court also considered and decided the authority of lease holder to create
sub-lease. Thus, even if any observation regarding lease deed being executed for
99 years is made in the earlier judgment, the same has to be treated to be
incidental and would not stop defendant from raising issue of validity of lease
deed in this suit as has been held by Apex Court in the case of Madhvi Amma
Bhawani (supra) and also in Jamia Masjid (supra). Thus, the earlier judgment
(Ex. P/32) cannot be said to be a judgment on issue of legality & validity of lease
deed for want of its registration.
8.11 As far as the plaintiffs' counsel's argument regarding constructive res-
judicata is concerned, the principle is also not attracted in this case inasmuch as
firstly, the lease holder i.e. plaintiff no.1 was not party in the earlier suit and
secondly, there was no occasion with the defendant to have raised this issue as the
issue was only with regard to construction of boundary wall and nothing more.
8.12 It is also seen that the first substantial question of law is framed only with
regard to applicability of principle of res-judicata on the issue of authority of
lease holder to create sub-lease and not with regard to issue of validity of lease
deed. Further, the principle that the res-judicata is not applicable on question of
law, is a well settled legal proposition as has been held by Division Bench of this
Court in the case of Hameeda Begum (Smt) and anr. (supra).
8.13 Thus, in the facts and circumstances of the case in hand, it is held that the
principle of res-judicata is attracted only for the issue of authority of lease holder
to create sub-lease but is not attracted for the issue of legality & validity of lease
deed for want of its registration. It is further held that the courts below did not
commit any mistake in answering this issue against plaintiffs and in favour of
defendant. The substantial question of law no.1 is answered accordingly.
SUBSTANTIAL QUESTION OF LAW NO.3:
9. The substantial question of law no.3 framed by this court is:
"Whether in view of the fact that after the death of lessee, the
appellants, who are legal heirs of deceased Gori Prasad Kichlu
and whose names have been mutated by the Municipal
Corporation on 31.01.1992, the Courts below committed error in
holding that the appellant no.1 violated Clause 8 of the lease
deed dated 12.01.32 in transferring the property in question in
favour of the appellants no.2 to 10?"
9.1 As read from lease deed, dated 12.10.1932, (Ex. P/1) there is no clause 8
therein. Even otherwise, firstly, it is to be noted that the suit has not been
dismissed by learned courts below on the ground of sub-lease executed by
plaintiff no.1 in favour of plaintiff no.2 to 10. Further, from the findings recorded
in respect of substantial question of law no.1, particularly in para 8.7 above, it is
held that the judgment, dated 29.09.1999, (Ex. P/30) would operate as res-
judicata for the issue of authority of plaintiff no.1 to have create sub-lease in
favour of plaintiff no.2 to 10 and the defendant Corporation is debarred from
raising this plea in view of specific finding recorded in this regard in judgment
dated 29.09.1999, (Ex. P/30). The substantial question of law no.3 is accordingly
answered.
SUBSTANTIAL QUESTION OF LAW NO.2 & 4:
10. The substantial question of law no.2 & 4 framed by this court are:
"2. Whether when the lease was granted by resolution dated
29.7.1932 and lease deed was executed on 12.10.32 by the
Gwalior State which was the United State (Madhya Bharat)
became a Part B State of the Union of India and at the time of
execution of lease deed the provisions of Gwalior State, i.e.,
Qanoon Registry Samvat 1971 was applicable, as per Madhya
Pradesh Extension of Laws and Act, the law relating to Transfer
of Property Act, 1882, and Registration Act, 1908, was adopted
in Madhya Bharat and applicable to the Gwalior State w.e.f.
25.10.1952, the Courts below committed error in holding that
under Sections 17 and 49 of the Registration Act, registration of
the lease deed was compulsory and non-registration renders it
inadmissible in evidence and the Courts below committed an
error in dismissing the suit of the appellants and decreeing the
counter claim of the Municipal Corporation?
4. Whether under Section 107 of the Transfer of Property Act,
1882, the lease deed is inadmissible in evidence for non-
registration, the terms are inadmissible and appellant no.1
violated the terms in executing sub-lease in favour of appellants
no.2 to 10?"
10.1 These two questions of law have been framed by this court in view of
findings of both the courts with regard to effectiveness and enforceability of lease
deed, dated 29.07.1932, (Ex. P/1) for want of its registration in view of Section
107 of Transfer of Property Act, 1882, (in short 'TP Act') and Section 17 & 49 of
Registration Act, 1908. It may be observed here that neither in its written
statement nor in counter claim, any such objection is raised by the defendant. The
relevancy of "no pleading of this fact" is discussed in later part of this judgment.
10.2 The learned counsel for the plaintiffs submitted that the lease was executed
by the then Municipality of Gwalior State on 29.07.1932 (Ex. P/1) and the suit
property is situated in Gwalior State which was a Princely State and was primarily
governed by its own laws & rules. It is his submission that TP Act and the
Registration Act, 1908, were British Laws and they were not applicable on
Princely State of Gwalior.
10.3 The learned counsel further submitted that during the process of gaining
independence, the State of Gwalior, Indore and Malwa were joined and a new
state known as Madhya Bharat was constituted on 28.05.1947. On coming into
force of State Re-organization Act, 1956 with effect from 01.11.1956, the Madhya
Bharat State stood merged with new State of Madhya Pradesh. It is his submission
that Constitution of India divided the country in for categories viz. Part A, B, C &
D states. The Madhya Bharat State or for that matter the Gwalior State fell into
Part B State. Referring to Section 1 of TP Act, the learned counsel submitted that
the TP Act was not applicable in the Gwalior State.
10.4 The learned plaintiffs' counsel then referred to Section 2 & 3 of State Laws
Act, 1951, and submitted that the provisions of TP Act and Registration Act were
made applicable in Gwalior region w.e.f. 1951 by virtue of Part-2, Section 3 of
Gazette of India, 1951. He thus submitted that since the provisions of TP Act and
Registration Act were not applicable in Gwalior State on the date when the lease
in question was executed in the year 1932, the findings of learned courts below
that the lease deed is ineffective and unenforceable for want of registration, is
illegal and perverse. He also submitted that the TP Act came into force in Madhya
Bharat region with effect from 01.01.1953 vide notification issued by Madhya
Bharat Government in Gazette, dated 25.12.1952.
10.5 Regarding applicability of provisions of Registration Act, 1908, the learned
plaintiffs' counsel submitted that provisions of Kanoon Registry Riyasat Gwalior,
Samvat 1971, were applicable in the Gwalior State. Dafa 9 (Section 9) of this Act,
provides list of compulsorily registrable documents which does not include
document of lease as was included in Section 17 of Registration Act, 1908.
Therefore, it is his submission that the registration of lease deed in the year 1932
was not compulsory and, therefore, the findings of both the courts in this regard is
illegal and perverse as the same are based upon Section 17 & 49 of Registration
Act which were not applicable in the facts of this case.
11. On the other hand, learned counsel for defendant Corporation submitted
that even though the provisions of TP Act and Registration Act were not
applicable in the Gwalior State in the year 1932, this field was occupied by एक
इतक ल ज यद द (Act Intqual Jaidad) which was an Act pare mateira with TP Act.
He submitted that under the Act Intqual Jaidad, similar provisions like Section
107 of TP Act were applicable in the Gwalior State. He thus submits that, even if
the TP Act was not applicable, similar provisions under Act Intqual Jaidad were
applicable and, therefore, the findings of both the courts with regard to Section
107 of TP Act cannot be said to be illegal or perverse.
11.1 In relation to applicability of provisions of Registration Act, the learned
counsel submits that Registry Riyasat Gwalior, Samvat 1971 was applicable in
Gwalior State. He submitted that even if specific provision pare materia to
Section 17(1)(d) of Registration Act was not there, still registration of lease was
compulsory by virtue of Dafa (Section) 9(b) of Registry Riyasat Gwalior, Samvat
1971. For ready reference Dafa 9 is reproduced hereunder:
"दफ ९¼1½ दसवज त मनज जल क ] ज ब त र ख क नन ह ज य म ब द
दसवज त जजनक रजज- तकल प य" रजजस$ ह न ल जम ह] य न & स$ ल जजम
ह-
¼v½ वस कज त जहब ज यद द गर मन] और
¼c½ वस कज त जबल वजसयत जजनस यह व जह ह त ह य जजनक यह त स र ह
जक ब जम न ह ल य vk;Unk क ई इसहक क य हक+यत य खह वह म-जद
ह य शजत/य य न जकस व क वकअ पर जमलन] म जलयत एक स- रपय और
उसस ज यद व क ज यद द गर मनल पद ह त ह य कर र जदय ज त ह य
मनजकल य महदद य स जकत ह त ह-
¼l½ द गर olhdtkr जबल वजसयत जजनम" इकर र वसल य अद ह ज न जकस
मआवज क ब सबब पद ह न य कर र जदय ज न य मनजकल य esgnwn य
स जकयत ह न जकस इसहक क य हक+यत य ह+ मनज कलम ¼c½ क दज/
ह-
¼n½ दसवज त ¼ म जसव य वजसयत न मज ½ जजनक र स क ई ज यद द आम
मजहब य खर त गरज क जलय oDQ क tkos] य जजनक र स जकस ऐस xjt
क जलग ज यद द क जनसत ट$स ¼ अम नत ½ क यम क ज व-
न ट9 & ऐस दसवज त म" वक य ट$स क मतअक;क'kjk;r व इकर र त स फ
दज/ करन च जहय-
¼;½ इक=य रन म तबजनयत अगर वह इक=य र बजररय वजसयत न जदय गय
ह -"""
11.2 The defendant's counsel submit that even in absence of specific provision
like Section 17(1)(d) of Registration Act, 1908, the registration of lease is covered
by abovequoted Dafa 9¼c½. In support of his submission, the learned counsel relied
upon judgments passed by the then highest judicial authority of the State known
as Huzur Darbar in the case of:
i. Bhanwarlal & Keshri Mal vs. Kastoorchand & Gulab Chand reported in 9
Resala Kannoni 312;
ii. Sardar Vyankat Rao vs. Gulab Chaubey reported in 12 Resala Kanoon 154;
11.3 He also relied upon judgment rendered by the then High Court in the case
of:
i. Ram Narayan Khemchand vs. Cheetarmal reported in 18 Resala Kanooni
91;
ii. Man Singh vs. Suraj Singh reported in 19 Resala Kanooni 310;
iii. Seth Nanumal vs. Nathu Singh reported in 16 Resala Kanooni 365;
iv. Kamal Singh vs. Rana Kanchana reported in 2000 Gwalior Law, Reported
94.
11.4 Before referring to aforesaid authorities, it is profitable to understand the
precedential value of these authorities. In the Gwalior State, High Court Manual,
Samvat 1980, defined the departmental powers of the Judges of High Court and
empowers them to exercise civil & criminal jurisdiction and provides for filing of
appeal/revision against the orders passed by High Court. Part-B, Section 12 & 13
of High Court Manual empowered the High Court to exercise civil jurisdiction in
suits and proceedings of civil nature of value exceeding Rs.50,000/-. Further,
Section 29 of High Court Manual provided for filing an appeal before the Huzur
Darbar against any judgment, order or decree made by High Court. Likewise,
Section 30 provided for filing of revision before Huzur Darbar where the appeal
does not lie under Section 29. It is thus seen that Huzur Darbar was the highest
judicial authority and its judgments were binding within the Gwalior State. In
other words, the authorities cited by learned counsel for defendant have binding
precedential value in Gwalior State and they can be relied upon for purposes of
deciding the issue involved in this appeal.
11.5 Bhanwarlal (supra) judgment was delivered on 19.01.1933 dealing with an
instrument executed on 02.09.1925. The High Court held that the provisions of TP
Act & Registration Act are not applicable and the documents which require
registration under aforesaid Acts are not compulsorily registrable in the Gwalior
State. In appeal, Huzur Darbar reversed the High Court judgment and upheld the
applicability of TP Act/Registration Act in the Gwalior State. Huzur Darbar held
as under:
"vc eqíkeysnqe uEcj १ o २ nj[okLr fuxzkuh is'k djrs gSa
pqukaps ekeyk njckj esa is'k gksus ij is'kh njckj ls rjh[k १७ tuojh lu १९३३
dks bj'kkn ykfnj हआ जक इस जनग न म" बहल बकल य फर dS न o फसलज त
म तहत पर ग-र जकय गय त ज फसल प त अद लत स जकय गय ह वह
मन जसब म लम ह त ह ह ईक ट/ क फसल स दरब र क इतफ क नह gS pqafd
ररय सत ह ज म" अभ तक क ई क uw न इनजतक ल ज यद द बन नह gS।
इसजलय वक जररत जFजटश इनजGय क क uw न इनजनक ल ज यद द क m सल
क eísutj रखकर उस पर अमल करन pkfg;s tSlk जक अब तक अद लत म"
vey ह त रह ह य न उसल क नन इनक ल ज यद द क प बन ह त रह ह
जलह ज nj[okLr fuxzkuh मजर ह कर फसल ह ईक ट eUlw[k और फसल प त
vnkyr बह ल जकय ज त gS खच / श क क egDes ह ज व ह ईक ट/ क बजजम
Qjhd स न आयद जकय ज त हA"
The Huzur Darbar reversed the High Court judgment and held that the
British Law with regard to transfer of property and registration of documents is
applicable in Gwalior state. Similar is the ratio of other judgments relied upon by
the counsel for defendant.
11.6 It is thus seen that the provisions of Registration Act, 1908 and TP Act or
for that matter Registry Riyasat Gwalior, Samvat 1971 and Act Intqual Jaidad
were applicable in Gwalior State on the date of execution of lease deed in
question (year 1932). Thus, the lease in question was required registration. The
findings of both the courts in this regard are therefore, legal & valid.
11.7 Now, the argument of plaintiffs' counsel that by virtue of Section 117 of TP
Act, the lease being for agriculture land, the provisions of Section 107 of TP Act
and for that matter Section 17 & 49 of Registration Act, 1908 would not be
attracted. The important issue involved in this case would have been the nature of
suit land being agriculture land or not?
11.8 The recital of clause 2 of lease deed, dated 29.07.1932, is relevant and
reproduced hereunder:
"2. bl tekus esa bl vkjkth ij edku cukus dh btktr gksxh ysfdu ekStwnk
bekjr dks rksMh u tkdj mlesa t:jh rjehe ds lkFk nq:Lrh dh tk ldrh gSA"
11.9 The term 'araazi' is defined in Section 2(2) Kanoon Maal Gwalior, Samwat
1983, as under:
"(२) आर ज - स मर द वह जम न ह ज क शक र क गरज स द ज य य कब
म" रख ज य य ब ग य चर ग ह क क म म" इसम ल क ज य.
तशर ह १- 'आर ज ' म" वह जम न भ श जमल ह:-
*** *** ***
11.10 Reading clause 2 of lease deed alongwith definition of term araazi, prima
facie it is gathered that the lease deed was given in respect of agriculture land.
The learned counsel for defendant however, refuted the argument of plaintiffs'
counsel and submitted that the term araazi is loosely used in clause 2 of lease
deed and since there is a construction (Gendghar) already existing on land, it
cannot be termed as agriculture land. He further submitted that the land is situated
in municipal area and, therefore, also it cannot be said to be agriculture land.
11.11 In this regard, it is to be seen that the total area of land under lease was 6
beegha 5 biswa out of which over a small portion of land, the construction was
made which was known as Gendghar. Therefore, merely because a small piece of
construction existed over the land, it cannot be said that the land was not given for
agriculture purposes. Further, the learned counsel for respondent could not point
out any law prevalent at the relevant point of time to show that agriculture land
could not situate in municipal area.
11.12 Now the pleading of defendant Corporation in its counter claim is relevant
wherein in para 2, the defendant has pleaded as under:
"2. यह जक पजतव द नगर जनगम ग जलयर क सत व सजमत क कOजP भजम
सव कम क 3117, 3118, 3119, 3120, 3121, 3122, 3123, 3124, 3125, 3126,
3127, 3128 एव 3129 रकब 6 ब घ 5 जवस मर र म" कSत ह। इस कOजP भजम पर
एक भवन ह ज 'ग"दघर क न म स ज न ज त ह ।"
11.13 Thus, as per averments made in para 2 of counter claim, twice the defendant
has mentioned suit property as krishi bhumi. Further, in para 1 of his statement,
Lt. Col. Chandra Kumar Kichlu (PW-1) has stated that "उक व द गस अचल समजत म"
एक इम रत ह एव खल पगण व ब ग-बग च तथ कOजP क क य/ ह त ह।" In para 2 again, he
stated that work of agriculture is being done in remaining land. From para 13 of
his cross-examination, it is evident that a specific question was put to this witness
that suit property is not an agriculture land to which he denied and stated that the
land is for agriculture, horticulture etc.
11.14 Similarly, Mr. Rakesh Soni (PW-2) was also put a specific question that
suit property is not agriculture land to which he denied and stated that according
to him it is agriculture land.
11.15 The factum of suit property being agriculture property has been denied by
Mr. Surendra Kumar Bhadoriya, Deputy Commissioner of defendant Corporation
(DW-1) in para 3 & 6 in his statement.
11.16 Thus, both the sides have made contrary statement with regard to nature
property being agriculture property. Therefore, the issue of absence of pleading
with regard to non-registration of lease deed in written statement and/or counter
claim assumes importance. Section 117 of TP Act exempts leases for agriculture
purposes from applicability of provision of Chapter V of TP Act, which also
includes Section 107 thereof which has been relied upon by learned both the
courts. Thus, the issue as to whether the lease in question was required to be
registered or not, ceases to be a pure question of law. The decision of said issue
would depend upon the factual issue as to whether the lease was for agriculture
purpose or not? This issue, therefore, could not have been decided by learned both
the courts in absence of pleading in this regard by defendant Corporation in its
written statement and/or counter claim. At this stage, it is profitable to refer to
Apex Court judgment rendered in the case of Bondar Singh vs. Nihal Singh
reported in (2003)4 SCC 161 wherein it is held that no amount of evidence can be
looked into in absence of pleadings. The Apex Court held in para 7 as under:
"7. As regards the plea of sub-tenancy (shikmi) argued on behalf of
the defendants by their learned counsel, first we may note that this
plea was never taken in the written statement the way it has been put
forth now. The written statement is totally vague and lacking in
material particulars on this aspect. There is nothing to support this
plea except some alleged revenue entries. It is settled law that in
the absence of a plea no amount of evidence led in relation
thereto can be looked into. Therefore, in the absence of a clear
plea regarding sub-tenancy (shikmi), the defendants cannot be
allowed to build up a case of sub-tenancy (shikmi). Had the
defendants taken such a plea it would have found place as an issue
in the suit. We have perused the issues framed in the suit. There is
no issue on the point.
11.17 Thus, without there being a finding as to whether the lease was given for
agriculture purpose of not, the issue as to whether the lease in question requires
registration or not, cannot be decided. Therefore, in absence of necessary pleading
by defendant Corporation in its written statement and/or counter claim regarding
enforceability of lease deed for want of registration, no finding could have been
given by both the courts in this regard. The findings so recorded by courts below
are therefore, perverse and are accordingly set aside. The substantial questions of
law no.2 & 4, are answered accordingly.
SUBSTANTIAL QUESTION OF LAW NO.5:
12. The substantial question of law no.5 framed by this court is:
"5. Whether the counter-claim of the respondent was barred by time
and Courts below committed error in decreeing the same?"
12.1 The answer to this question does not required elaborate discussion. It is
sufficient to mention here that in para 11 of its counter claim, the defendant
Corporation has pleaded as under:
"11. यह जक] okndkj.k व द दर यह जनPध ज क द व पसत करन स उतन ह ।"
12.2 Thus, the cause of action, as per the pleadings, arose on the date when the
suit for declaration and permanent injunction was filed by plaintiffs i.e. on
27.11.2001. The counter claim was filed by defendant Corporation on or about
02.12.2002 which is apparently within the period of limitation of three years.
12.3 It is pertinent to mention here that the plaintiffs have not raised any
objection with regard to counter claim being barred by limitation in written
statement to the counter claim, filed by them. On the contrary, it is stated in para
11 that no cause of action could arise for filing counter claim before expiry of 99
years of lease period. Further, this issue is not even raised before both the courts
below. Therefore, the learned counsel for defendant Corporation is right in his
submission that the plea of limitation, being mixed question of facts and law,
cannot be entertained at the second appellate stage, without their being any
foundation in the pleading in this regard.
12.4 Thus, going strictly with the pleadings with regard to cause of action as
pleaded, the counter claim is held to be filed within period of limitation. The
substantial question of law is accordingly answered in favour of defendant
Corporation.
13. Before concluding this judgment, it is necessary to answer the argument of
learned counsel for the defendant Corporation that during the pendency of the
suit, Corporation terminated the lease deed vide order, dated 25.08.2004 (Ex.
P/32). It is his submission that the plaintiffs have not challenged the said order of
termination of lease and, therefore, no relief can be granted to them in the instant
appeal.
14. In this regard, it is sufficient to state here that even though the order, dated
25.08.2004 is placed on record, there is no pleading made with regard to the same
either in plaint or in written statement/counter claim. Thus, in absence of
necessary pleading, no finding could have been given by both the courts with
regard to order, dated 25.08.2004, and/or alleged violation of terms of lease by
plaintiffs which are not pleaded by either of the parties. Needless to mention that
while adjudicating validity of order, dated 25.08.2004, the court is required to take
into account various aspects viz. competence of authority to issue the order, giving
of notice to plaintiffs' prior to issuance of said order, permissibility of cancellation
of lease on the ground of non-payment of lease rent without affording opportunity
to plaintiffs to pay the arrears thereof etc. Therefore, in absence of pleading of
necessary facts, no finding could have been recorded by both the courts.
15. In view of the discussion made above, the substantial question of law no.1
is answered against the plaintiffs and in favour of defendant corporation. The
substantial questions of law no.2 & 4 are answered in favour of plaintiffs and
against the defendant. The substantial question of law no.3 is answered in favour
of plaintiffs and against the defendant and the substantial question of law no.5 is
answered against the plaintiffs and in favour of defendant.
16. In view of the aforesaid, the judgment and decree passed by both the courts
are set aside and it is ordered as under:
i. The appellants/plaintiffs are permitted to amend the cause title of
memo of first appeal and second appeal with regard to valuation and to
pay requisite court fees on the counter claim within a period of 15 days.
ii. It is declared that the plaintiffs are occupying the suit property
pursuant to lease deed created on 29.07.1932 (Ex. P/1) by Gwalior
Municipality of the then Gwalior State;
iii. the defendant Corporation is restrained from interfering with
plaintiffs possession over the suit property upto expiry of 99 years of
lease period. However, the defendant Corporation is at liberty to take
steps including action of termination of lease in accordance with lease
even before expiry of aforesaid lease period.
iv. the counter claim filed by defendant Corporation is dismissed.
v. in the peculiar facts of the case, the parties shall bear their
respective expenses.
17. The office is directed to draw the decree in the case in aforesaid terms.
(ASHISH SHROTI)
JUDGE
BARKHA
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH COURT
OF MADHYA PRADESH BENCH GWALIOR,
2.5.4.20=3e36b1b2d6eed9536d1b38ba570a4
bj/-
828b594cc6ef332778d1c7ede28eab061c3,
SHARMA
postalCode=474001, st=Madhya Pradesh,
serialNumber=A299B1E2B57EB3E79D641AE7
355F675DC1134B3CA8912AA7A3F8AABDF66
804A6, cn=BARKHA SHARMA
Date: 2025.05.28 15:44:43 +05'30'
