Madhya Pradesh High Court
Ashok Pal vs Kaushal Kishor Dubey on 1 September, 2025
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:20286
1 MP-417-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 1 st OF SEPTEMBER, 2025
MISC. PETITION No. 417 of 2024
ASHOK PAL AND OTHERS
Versus
KAUSHAL KISHOR DUBEY
Appearance:
Shri Sumant Mishra - learned Counsel for petitioners- defendants.
Shri Maroof Ullah Sidddiqui- learned Counsel for respondent No.1-
plaintiff.
ORDER
This misc. petition under Article 227 of the Constitution of India has been
filed at the instance of petitioners- defendants challenging the order dated 26th of
December, 2023 passed by Tenth District Judge, Gwalior in Misc. Civil Appeal
No.206 of 2023, confirming the order dated 19th of September, 2023 passed by
Tenth Civil Judge, Senior Division, Gwalior in RCSA No. 621 of 2023, whereby
the application filed by respondent No.1- plaintiff under 39 Rule 1 and 2 of CPC
has been allowed.
2. A few facts necessary for adjudication of this petition in short are that
plaintiff- respondent No.1 herein filed a civil suit along with application under
Order 39 Rule 1 and 2 of CPC pleading that he is the owner and in possession of
survey no.184/1 area 1.108 hectare of land situated in Village Chandpura, District
Gwalior (hereinafter it would be referred to as '' the land in dispute'') and the land
in dispute was purchased by him vide sale deed dated 22nd of March, 2016 for a
consideration of Rs.35,16,000/- from the vendor and his name was entered in the
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revenue record vide order dated 6th of April, 2016 and since then, he has been
cultivating the the land in dispute. Due to mental and physical illness, he had taken
loan Rs. 20 lac from defendants No.1 and 2 on the security of land in dispute but
defendants no.1 and 2 with mala fide intention got sale deed executed in place of
mortgaged deed. He has no knowledge about the sale deed dated 19th of
December, 2019, therefore, the same is null and void as the same has been got
executed in good faith in place of mortgaged deed. In support of plaint, documents
along with medical documents were filed.
3. Defendants no. 1 to 3 jointly filed their written statement and reply to
application under Order 39 Rule 1 and 2 of CPC and pleaded that plaintiff has
validly executed sale deed dated 18th of December, 2019 in their favour after
receipt of full consideration amount and their names have been validly mutated in
the land in dispute in place of plaintiff vide order dated 16th of March, 2020 and
possession has been handed over on the basis of sale deed to them. Defendants no.
1 and 2 have rightly executed the sale deed dated 16th of February, 2023 in favour
of defendant No.3 by which name of defendant no.3 has been mutated in the land
in dispute. In support of contention, documents along with bank statement were
filed.
4. The Trial Court vide impugned order dated 19th of September, 2023 after
hearing the arguments of learned counsel for the parties, allowed the application of
plaintiff under Order 39 Rule 1 and 2 of CPC with a direction to the defendants
not to interfere in the peaceful possession of plaintiff. Against which, the
defendants filed a misc. civil appeal before the first appellate Court and the first
appellate Court vide order dated 26-12-2023 dismissed the misc. civil appeal by
affirming the order dated 19th of September, 2023 passed by the Trial Court.
5. Challenging the impugned orders passed by trial Court, it is contended on
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behalf of petitioners that the impugned orders passed without any evidence
regarding possession of plaintiff on the land in dispute. The plaintiff has not filed
any evidence in respect of his possession on the disputed land from the evidence
placed on record, it is clear that defendants were possession holder after
purchasing the the land in dispute. As per provisions of Section 114 of the
Evidence Act, if sale deed is registered by a Sub-Registrar under Indian
Registration Act in his official capacity, it would have been that it is duly
executed unless and until it is refuted by some cogent evidence. As per provisions
of Section 58(c) of TP Act, for an ostensible sale deed to be construed as a
mortgage by conditional sale, the condition that on payment of consideration by
the seller, the buyer shall transfer the property to the seller is embodied in the
document which affects or purports to effect the same. The sale deed was executed
in favour of defendants no.1 and 2 is outright sale deed because no condition is
mentioned for resale in the embodied of the sale deed. The trial Court has acted
with a grave dereliction of duty and flagrant abuse of mandatory provisions of law.
In support of his contentions, learned Counsel for petitioners has relied on the
judgment of Pandit Chunchun Jha vs. Sheikh Ebadat Ali and Another reported in
AIR 1954 SC 345, Satish Kumar Gupta vs. State of Haryana (2017) AIR (SCW)
1072 and Ashotosh Pawar vs. High Court of Madhya Pradesh (2018) 1 CTC 353.
Hence, prayed for setting aside the impugned orders.
6. On the other hand, learned Counsel for the respondent No.1- plaintiff by
supporting the impugned orders, opposed the contentions of the petitioners and it
is submitted that due to mental and physical illness, plaintiff was in need of some
money that is why he had taken loan of Rs. 20 lac from defendants No.1 and 2
and the land in dispute was purchased by him vide sale deed dated 22nd of March,
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2016 for a consideration of Rs.35,16,000/- from the vendor and his name was
entered in the revenue record vide order dated 6th of April, 2016 but defendants
got one document prepared in the shape of security of loan amount in respect of
land in dispute and with mala fide intention got the sale deed executed in place of
mortgage deed and plaintiff had no knowledge about sale deed executed on 19th of
December, 2019 and thereafter, defendant No.1 and 2 executed the sale deed dated
16th of February, 2023 in favour of defendant No.3 and got the name mutated in
the land in dispute. In support of his contentions, he has relied on the judgment of
this Court in the case of Murari Lal Jain vs. Rukhasan and Others 2006(3) MPLJ
562 and judgments of Apex Court in the case of Sita Ram Bhau Patil vs.
Ramchandra Nago Patil AIR 1977 SC 1712, and B. L. Bapuswami vs. N. Pattay
Gounder AIR 1966 SC 902 and submitted that if a person sells the property after
some years for the same amount for which the property was purchased, then such
transaction should be considered as a transaction of mortgage and if the property is
being sold for an amount less than the purchase amount, then the transaction
amounts to a loan transaction. Hence, prayed for dismissal of this petition.
7. Heard learned Counsel for the parties. Perused the record.
8. On perusal of impugned order, this Court finds that as per the plaintiff, he
has purchased the land in dispute for a consideration of Rs.35,16,000/- which is
shown from the sale deed dated executed in favour of plaintiff whereas the alleged
sale deed executed by plaintiff in favour of defendants no.1 and 2 shows that land
in dispute purchased for a consideration of Rs.26,00,000/- which is less than the
amount purchased by plaintiff. The medical treatment papers produced by plaintiff
also show that because of illness, the sale deed dated 19th of December, 2019
executed in favour of defendants no. 1 and 2 prima facie appears to be a loan
transaction. It is settled principle of law that if any person whose name is entered
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in the record of rights is in possession of suit land but the same can be rebutted by
adducing documentary as well as oral evidence. The revenue record dated 16th of
March, 2020 produced by defendants shows that without informing plaintiff,
defendants got their names mutated. In such a situation, if plaintiff is evicted from
the land in dispute by defendants, plaintiff will suffer irreparable loss and
therefore, balance of convenience is in favour of plaintiff. Accordingly, both the
Courts below have not committed any error in granting temporary injunction in
favour of plaintiff. No illegality or irregularity is found in the impugned orders.
Petition fails and is hereby dismissed.
(HIRDESH)
JUDGE
MKB
