Madhya Pradesh High Court
Gulab vs Radheshayam on 2 September, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
1 S.A. No.1182/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE JAI KUMAR PILLAI
SECOND APPEAL No. 1182 of 2023
GULAB AND OTHERS
Versus
RADHESHAYAM AND OTHERS
Appearance:
Shri Abhinav Malhotra - Advocate with Shri Vikas Singh
Parihar - Advocate for the appellants/defendants.
Shri Rishiraj Trivedi - Advocate for the respondent
No.1/plaintiff.
Reserved on : 28/08/2025
Delivered on : 02/09/2025
==================================================
Signature Not Verified
Signed by: JAGADISHAN
AIYER
Signing time: 03-09-2025
12:06:44
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
2 S.A. No.1182/2023
Heard on the question of admission.
JUDGMENT
The appellants/defendants/Gulab and others have filed this
Second Appeal against the judgment and decree dated 10/02/2023
passed in RCA No.73-A/2018 by the Vth District Judge, Dr.
Ambedkar Nagar, Mhow, District-Indore whereby the learned first
appellate Court has dismissed the appeal, challenging the judgment
and decree dated 19/11/2018 passed by Vth Civil Judge, Class-II,
Dr. Ambedkar Nagar, Mhow, District-Indore in Civil Suit No.26-
A/2015 whereby the learned trial Court decreed the suit filed by the
respondent No.1/plaintiff/Radheyshyam.
Facts of the case, in short are as under :-
2. The plaintiff/respondent No.1 filed a suit for possession,
declaration, injunction and mesne profit with respect to suit
property i.e. agricultural land bearing survey No.119/1, 119/2,
119/3 having total area of 1.16 Acre i.e. 0.470 hectare, situated at
Village-Awalipura, Tehsil-Mhow, District - Indore (M.P.)
3. It is admitted fact in the present case that the suit land has
been recorded in the name of appellant No. 1 to 3 after the demise
of their father Shri Thawar Singh. It is also admitted fact that
plaintiff moved an application before Nayab Tehsildar on 10-11-
2006 for correction of entries in revenue record, which was
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
dismissed and thereafter an application on 08-01-2013 was also
preferred regarding interference by defendants in the possession of
plaintiff at suit land, which was also dismissed, against which an
appeal was preferred by plaintiff before learned Sub Divisional
Officer, Mhow which was registered as Case No.52/Appeal/2013-
14 and the same was also dismissed vide order dated 26-06-2014.
Thereafter suit land has been parted amongst appellant No.1 to 3 by
the Revenue Officer and their name is mutated on their respective
share and they are in the actual possession of the suit land.
4. The plaintiff pleaded in his plaint that, suit land is the
ancestral land of plaintiff. The name of his father is Babulal and the
name of his grandfather is Nanuram Sharma. Suit land was
recorded in the name of his grandfather in the revenue record of the
year 1958-59 to 1963-64. Thereafter, without any right, name of
Thawar S/o Somu Bheel is mutated in the revenue record. Father
and grandfather of plaintiff has died and he was not aware about
the revenue records and therefore he never obtained the copies of
revenue record from the department. Plaintiffs forefathers were
having possession over the suit property. In the year 2006, when a
high-way was taking shape near the suit land, then he obtained the
revenue record and found that the name of Thawar is recorded
against the suit land in the revenue record. It is alleged by the
plaintiff that during the proceedings before learned revenue courts,
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
defendants took the possession over suit land by force, illegally in
the year 2013. Therefore, it was essential to file the present suit
before learned trial Court. Plaintiff also alleged that defendants are
eager to sale the suit land to other purchaser.
5. Appellants/Defendants filed their written statement and
contested the suit. Defendants denied the pleadings of plaintiff in
toto and further pleaded that plaintiff has himself pleaded before
revenue authorities that suit land was donated by his grandfather
Nanuram on 15/07/1953 and he does not have any document to
show that such donation was ever revoked. The defendant further
pleaded that suit land was given to Thawar under Bhu Daan Yagna
Act, 1968 as he was landless person and thereafter his name was
mutated in revenue records. It is further pleaded by the defendant
that merely name of Nanuram recorded in revenue records till 1966
i.e. even after donation of such land in the year 1953, does not
create any right in favour of plaintiff or Nanuram. Suit land is in
the exclusive possession and ownership of Thawar since 1953. Suit
has been filed on frivolous grounds by the plaintiff. Suit land is
purchased by Thawar and at the relevant point of time they were
illiterate and were not having any knowledge of law, so no
document was executed but his name was mutated in the revenue
record as owner and possessor.
6. It was further contended by the appellants/defendents that
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
admittedly the name of Thawar is recorded in revenue record
without any hindrance since 1966 and thus as per Section 117 of
M.P. Land Revenue Code, 1959 the possession of Thawar and
defendants can only be presumed over suit land and no evidence in
contradiction has been lead by plaintiff thereof. Father or
grandfather of plaintiff have never initiated any proceedings
against defendants. Whereas, Father of plaintiff Babulal has
himself admitted the possession of defendants on suit land, since
long in his statement before revenue authorities in the year 2006-07
and in such case, the story of snatching of possession in 2013 by
defendants from plaintiff itself is proved to be false, which shows
that plaintiff has not came with clean hands and the suit filed by
plaintiff is barred by limitation and in alternate the defendant has
acquired the title by the virtue of adverse possession.
7. It has been further contended that the plaintiff could not
plead or establish that why mutation of his father was not carried
after the death of his grandfather and who all are the legal heirs of
his grandfather or father, which also attracts the bar of non-joinder
of parties. The plaintiff has sought possession of the suit land but
he has not valued his suit as per the market value of the land and
thereby he has under valued the suit and has not paid proper Court-
fees thereof. The suit of plaintiff could not be decreed by the
learned trial Court on account of principle of estoppel as well as
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
adverse possession. Plaintiff has to prove his own case and he has
not rendered just and proper explanation of being silent since 1966
to 2013. Inspite of the fact that possession of defendants was in the
knowledge of plaintiff and his father too, and the name of
defendants were recorded in revenue record as Bhumiswami since
1966.
8. It has been further contended that the plaintiff admits that
suit land was given in donation by his grandfather in the year 1953
and most probably he died in the year 1954, and he does not have
any knowledge that when and how suit land came back in their
possession or ownership and he do not have any evidence in
support thereof. Plaintiff also admits that he is ignorant of the fact
that whether the land once donated can be revoked or not. Whereas
it is a settled principle of law that once the donation is done then
the donor cannot revoke it. As the price of suit land has been
inflated so plaintiff has filed the present suit against defendants due
to greediness.
9. Thereafter, 8 (eight) issues were framed by the learned trial
Court, which are as follows :-
क्र. वाद-प्रश्न ननष्कषष
01 क्या वादी पैतृक नववाददत भूनम सवे नं. 119 रकबा "सानबत"
1.16 एकड़ अथाषत 0.470 हे. का एकमात्र भूनमस्वामी
है?
02. क्या वादी, प्रनतवादी क्र. 1 लगायत 4 से नववाददत भूनम "हॉं"
का आनधपत्य प्राप्त करने का पात्र है?
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
03. क्या वादी, प्रनतवादीगण से 100 रूपये प्रनतददन की दर "सानबत नहीं"
से अंत्तवती लाभ प्राप्त करने का पात्र है?
04. क्या प्रनतवादी क्र. 1 लगायत 4 वादी के स्वानमत्व व "हॉं"
आनधपत्य की नववाददत भूनम को नवक्रय व अंतरण करने
के नलये प्रयासरत् है?
05. क्या वाद नमयाद अवनध में प्रस्तुरत दकया गयाहै? "हॉं"
06. क्या वादी ने वाद का उनित मूलयांकन कर पयाषप्त "हॉं"
न्यायालय शुलक अदा दकया है?
07. क्या वाद इस न्यायालय के सुनवाई के क्षेत्रानधकार का "हॉं"
है?
08. सहायता एवं व्यय? ननणषय ई ि (0) 27 अनुमाद
दावा आतप्त ।
10. Thus, the evidence was led by both the parties. Plaintiff
examined himself (PW/1) and Banshidhar (PW/2) in support of
plaint, whereas defendants has examined himself Gulab (DW/1),
Radheshyam (DW/2) and Ghudiya (DW/3) as witnesses in support
of his defence, before the learned trial Court. Thereafter hearing
both the parties learned trial Court has decreed the suit filed by the
plaintiff/respondent No.1. Being aggrieved by the aforesaid
judgment and decree Civil Regular Appeal was preferred by the
appellants/defendants, before learned first appellate Court which
was registered as Civil Regular Appeal No.73-A/2018 and the same
has been dismissed, by the learned Vth District Judge, Dr.
Ambedkar Nagar, Mhow, Dist. Indore vide impugned judgment
and decree dated 10-02-2023. Being aggrieved by which, the
present appellants/defendants preferred the present appeal on the
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
following substantial questions of law :-
"1. Whether the learned first appellate Court was
justified in affirming the decree passed by the learned
trial Court which had allowed the suit filed by the
respondent/plaintiff for possession, declaration and
injunction ? |
2. Whether the learned trial Court and first appellate
Court were justified in not considering that as the
possession of defendants has been admitted by father of
plaintiff as well as his witnesses then no any decree can
be passed in his favour ?
3. Whether the learned trial Court and first appellate
Court were justified in not considering that pleadings
and evidence contrary to the admission done by him and
his father in revenue proceedings barred by virtue of
principle of estoppel ?
4. Whether the learned trial Court and first appellate
Court were justified in not considering that plaintiff
exclaimed suit land as his ancestral property and he has
not pleaded about the legal heirs of his forefathers and
thereby no any decree can be passed in his favour ?
5. Whether the learned trial Court and first appellate
Court were justified in not considering that plaintiff has
pleaded and admitted that the suit land was donated by
his father under Bhu Dan Yagna Act, 1968 and thus once
the land is donated then the same cannot be revoked ?
6. Whether the learned trial Court and first appellate
Court were justified in not considering that the
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
defendants has occupied suit land since 1953 and in the
year 1966 they have declared themselves as
Bhumiswami to the plaintiff as well as world by getting
their name mutated in the revenue record and hence they
have acquired the title over suit land by virtue of adverse
possession ?
7. Whether the learned trial Court and first appellate
Court were justified in not considering that when the
plaintiff is not in the possession of the suit land then no
any injunction can be granted in his favour ?
8. Whether the learned trial Court and first appellate
Court were justified in not considering that the plaintiff
has neither came with the clean hands before the court
nor the best available evidence has been adduced by
him?
9. Whether the judgment and decree passed by both the
Courts suffer from infirmity and perversity on account
of mis-appreciation and non-appreciation of material
pieces of evidence, thus liable to be set-aside ?"
11. Learned counsel for the appellants argued that the learned
first appellate Court and trial Court have erred in not considering
the legal and factual position of the case and further erred in
decreeing the suit filed by the plaintiff. The learned first appellate
Court and trial Court have erred in not considering the fact that
plaintiff has himself pleaded before revenue authorities that suit
land was donated by his grandfather - Nanuram on 15/07/1953 and
he does not have any document to show that such donation was
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
ever revoked. It is further argued by learned counsel for the
appellants that the learned first appellate Court and trial Court have
erred in not considering the fact that defendant further pleaded that
suit land was given to Thawar under Bhu Daan Yagna Act, 1968 as
he was a landless person and thereafter his name was mutated in
revenue records.
12. Counsel appearing on behalf of the appellants contended that
the learned first appellate Court and trial Court have erred in not
considering the fact that defendants has proved his possession on
the suit land since immemorable time.
13. It has been argued by learned counsel for the appellants that
as per Section 19 of Madhya Pradesh Bhudan Yagna Act, 1953, the
donation granted to the appellants i.e. Bhudhan(Gift) is irrevocable.
It has also been argued by learned counsel for the appellants that
view of Section 33 of Madhya Pradesh Bhoodan Yagna Adhiniyam,
1968 (as amended) conferred Bhumiswami rights to the appellant's
predecessors after continuation of possession of more than 10 years
since 1953 and thus no case is made out in favour of the respondent
No.1/plaintiff.
14. The learned first appellate Court and trial Court has erred in
not considering the fact that plaintiff has to prove its own case and
he cannot take advantage of weakness of defendant. Whereas,
plaintiff has not proved vital facts alleged by him in his plaint.
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
Contrary to that the defendants have proved the existence of his
possession prior to 2013. That both the Courts below have erred in
not considering the fact that merely name of Nanuram in revenue
record till 1966 i.e. even after donation of such land in the year
1953, does not create any right in favour of plaintiff or
Nanuram. The Courts below have erred in not considering the
fact that the burden of proof levied over plaintiff cannot be
shifted over defendant, even then both the learned Courts have
done the same inspite of the fact that plaintiff has not
discharged his burden of proof. Suit land is in the exclusive
possession and ownership of Thawar since 1953. Suit has been
filed on frivolous grounds by the plaintiff. Plaintiff could not plead
or establish that why mutation of his father was not carried after the
death of his grandfather and who all are the legal heirs of his
grandfather or father, which also attracts the bar of non-joinder of
parties.
15. It is submitted by learned counsel for the appellants that the
judgment and decree passed by the learned first appellate Court and
trial Court suffer from infirmity and perversity on account of mis-
appreciation and non-appreciation of material pieces of evidence,
thus liable to be set-aside, which are contrary to law and facts
available on record and the suit filed by the respondent
No.1/plaintiff be dismissed.
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
16. On the other hand, learned counsel for the respondent
No.1/plaintiff has supported the impugned judgment and decree
passed by both the Courts below, hence, the said finding of facts
has attained finality.
17. It is, thus prayed by the respondent No.1/plaintiff that in the
facts and circumstances of the case, in hand and the fact that
respondent No.1/plaintiff has sufficiently and successfully proved
his case and therefore, no question of substantial question of law
arises in the present appeal for determination, hence, deserves to be
dismissed in limine.
18. Heard learned counsel for both the parties at length and
perused the entire record.
19. It is settled law that the scope of interference by the High
Court under Section 100 of the CPC in Second Appeal is very
limited. Both the Courts below have concurrently recorded the
findings in favour of the respondent No.1/plaintiff and decreed the
suit in his favour (Radheyshyam). Hon'ble the Apex Court in the
catena of judgments has decided the scope of interference by the
High Court in Second Appeal with the concurrent findings
recorded by both the Courts below.
20. In order to consider the arguments advanced by the learned
counsel for the appellants, so far as application of Section 19 of the
Madhya Pradesh Bhudan Yagna Act, 1953 is concerned, the same
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
cannot be considered in isolation as application of Section 19 of the
Madhya Pradesh Bhudan Yagna Act, 1953, the compliance of
Section 17 and 18 of the said Act, 1953 has to be appreciated first.
21. To appreciate the assertions of the appellants/defendants it
would be relevant to consider Section 17, 18 and 19 of Madhya
Pradesh Bhudan Yagna Adhiniyam, 1953 which reads as follows:-
17. Procedure for making donation of land.
(1) Any person owning a transferable interest in land and
desiring to make a gift thereof to the Board may submit [a
declaration making the offer] [Substituted for the words 'and
application' by Madhya Pradesh Act 21 of 1954, Section 10(i).] in
the prescribed form to the Board.
(2) The Board shall, if it considers the gift acceptable, forward
the [declaration] [Substituted for the word 'application, by Madhya
Pradesh Act 21 of 1954, Section 10(ii).] to the Revenue Officer
having jurisdictions in the tahsil or taluka where the land is situate.
(3) On receipt of the [declaration] [Substituted for the word
'application, by Madhya Pradesh Act 21 of 1954, Section
10(ii).] mentioned in sub-section (1), the Revenue Officer shall, if
satisfied, after such summary inquiry as he thinks necessary, that
the donor is competent to make the gift and has valid title in the
land, issue a notice in the prescribed form to all such persons as he
may consider interested in the property calling upon them, before a
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
date specified in the notice, to show cause why the gift should not
be accepted.
(4) The Revenue Officer shall also affix a copy of the notice
referred to in sub-section (3) on the notice-board of his court and
shall cause it to be published by beat of drum in the village where
the land is situate.
(5) Any person interested in the property may, before the date
specified in the notice, file an objection before the Revenue Officer
showing cause why the gift should not be accepted.
(6) All such objections shall be inquired into and decided by the
Revenue Officer.
(7) If no objection is filed before the specified date, or if all the
objections filed have been rejected by the Revenue Officer, he shall
pass an order accepting the gift on behalf of the Board.
(8) On the acceptance of the gift, all title and interest of the
donor in the land shall be extinguished and the land shall, subject to
the provisions of section 18, vest in the Board in the same rights in
which it was held by the donor.
(9) The order made under sub-section (7) shall be got registered
under the xvl of Indian Registration Act, 1908, by the Revenue
Officer in such manner as may be prescribed and it shall then take
effect from the date of the order, as if it were a deed of gift.
(10) No fee for registration of the order shall be chargeable.
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
(11) The Revenue Officer may at any stage of the proceedings
reject the [offer] [Substituted for the word 'application' by Madhya
Pradesh Act 21 of 1954, Section 10(iii)(a).] of the donor on any of
the following grounds, namely :-
(i) that the donor is incompetent to make the gift ;
(ii) that the title of the donor is defective ;
(iii) that there are encumbrances on the land ;
(iv) [ * * *] [Item (iv) was omitted, by Madhya Pradesh Act 21 of
1954, Section 10(iii)(b).]
(v) such other grounds as may be prescribed.
18. Order of Revenue Officer subject of civil suit.
The order of the Revenue Officer, rejecting an objection
passed under sub-section (7) of section 17, shall not be subject to
appeal or revision but any party aggrieved by the order or any other
person interested in the land who had no notice of the proceedings
under section 17 may, within six months from the date of such
order, institute a suit in the Civil Court having jurisdiction to have
the order set aside and the decision of such Court shall be binding
on the Board, and subject to the result of such suit, if any, the order
of the Revenue Officer shall be conclusive.
19. Gifts to be irrevocable.
Every gift of land in respect of which an order has
been passed under section 17 shall, after the date of the order,
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
be irrevocable.
Thus a plain reading of Section 17 and 18 on co-joint
reading would manifest that only if there is compliance
of Section 17 and 18, Section 19 would come into play
and thus the argument of the appellant/defendant that as
per Section 19 of the Adhiniyam of 1953, the alleged
Bhoodan by the grandfather of the respondent/plaintiff
in 1953, is irrevocable is misconceived and misplaced as
in the case in hand in absence of compliance of Section
17 & 18 of the Adhiniyam of 1953, the alleged Boodan
in favour of the appellants/defendants is a nullity and
even otherwise the appellants/defendants could not
prove the same in both the Courts below the alleged
Bhudan is not in accordance with the requirements spelt
out under Section 17 & 18 of the Adhiniyam 1953.
22. So far as second arguments of learned counsel for the
appellants is concerned, it is relevant to quote Section 33 of
Madhya Pradesh Bhoodan Yagna Adhiniyam, 1968 (as amended),
which reads as under :-
"Section 33 - Bhoodan holders to acquire
Bhoomiswami rights.
Any person holding land as a Bhoodan holder for ten
years continuously in accordance with the provisions of
this Act shall, at the expiry of the said period, acquire
the rights of Bhumiswami under the Madhya Pradesh
Land Revenue Code, 1959 (No.20 of 1959) and the title
and interest of the Board in the said land shall cease."
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
23. So far as effect of Section 33 of the Madhya Pradesh
Bhoodan Yagna Adhiniyam, 1968 (as amended) is concerned, in
view of non-compliance of Section 17 and 18 of the Madhya
Pradesh Bhudan Yagna Act, 1953, the effect of Section 33 of
Madhya Pradesh Bhoodan Yagna Adhiniyam, 1968 (as amended) is
ineffective and cannot be considered in isolation.
24. That in the case in hand the other ground raised by the
appellants/defendants was that the said land in dispute has been
purchased by his grandfather from the grandfather of the
respondent/plaintiff. In order to appreciate the said assertions it
would be relevant to consider :-
Section 54 of Transfer of Property Act, 1882 reads as
under:-
"54. "Sale" defined.--"Sale" is a transfer of ownership
in exchange for a price paid or promised or part-paid
and part-promised.
Sale how made.--Such transfer, in the case of tangible
immoveable property of the value of one hundred rupees
and upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered
instrument.
In the case of tangible immoveable property of a
value less than one hundred rupees, such transfer may be
made either by a registered instrument or by delivery of
the property.
Delivery of tangible immoveable property takes
place when the seller places the buyer, or such person as
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
he directs, in possession of the property.
Contract for sale.--A contract for the sale of
immoveable property is a contract that a sale of such
property shall take place on terms settled between the
parties.
It does not, of itself, create any interest in or
charge on such property."
25. On appreciating the said assertion it has been examined that
both the Courts below has found that the appellant/defendants has
failed to prove the said assertion to prove the sale and even
otherwise the said assertion is not in line with the requirements
spelt out under Section 54 of the Transfer of Property Act, 1882.
26. It was further the case of the appellants/defendants that in
alternate the land in dispute has vested in them by virtue of adverse
possession. The said fact and assertion of the appellants/defendants
is also misplaced as he has not proved the same by qualifying the
necessary ingredients of principles of "adverse possession".
27. In the matter of B. Leelavathi vs. Honnamma and another
(2005) 11 SCC 115 wherein it has been held that adverse
possession is a question of fact, which has to be specifically
pleaded and proved. Also in the case of Krishnamurthy S. Setlur
(dead) by L.Rs. vs. O.V. Narasimha Setty and others 2007 (3)
MPLJ 15 wherein it has been held that adverse possession is a
question whether possession is adverse or not is a mixed question
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
of law and fact.
28. In Second Appeal this Court cannot re-appreciate the
evidence and interference with the finding of fact of the First
Appellate Court, where the First Appellate Court have exercised
the discretion judiciously. This Court cannot substantiate its own
opinion unless the finding of the First Appellate Court are
manifestly perverse and contrary to the evidence on record. The
interference with the findings of First Appellate Court by this Court
under Section 100 of CPC cannot be made unless warranted by
compelling reasons. Even assuming that another view is possible
on re-appreciation of the same evidence, that should not have been
done by this Court as it cannot be said that the view taken by the
First Appellate Court based on no material evidence and the First
Appellate Court set aside the judgment of trial Court based on the
sound reasons and allowed the appeal.
29. Thus, the findings of fact cannot be interfered in the second
appeal. The finding of fact recorded by First Appellate Court while
allowing the appeal are not perverse and in fact based on the
pleadings and evaluation of evidence on record, the judgment
under the appeal does not call for any interference of this Court
under Section 100 CPC.
30. In these circumstances upon consideration of the decree and
judgment of the First Appellate Court, this Court is satisfied that
NEUTRAL CITATION NO. 2025:MPHC-IND:24688
the there is no substantial question of law requiring consideration
and to interfere with the findings recorded by First Appellate Court,
therefore, this Second Appeal must necessarily fail.
31. In view of the above discussion, this Court finds no ground
to interfere with the findings fact recorded by the First Appellate
Court and there is absolutely no perversity or illegality in the
findings of First Appellate Court warranting interference.
32. Resultantly, the admission of this appeal is declined and is
liable to be dismissed and accordingly dismissed, consequently, the
decree and judgment of the First Appellate Court dated 10/02/2023
stand confirmed.
33. All the pending applications, if any, stand disposed off.
(Jai Kumar Pillai)
Judge
Aiyer*
