[Cites 10, Cited by 0]

Madhya Pradesh High Court

Anand Murari Dubey (Dead) Through Lrs. ... vs Dr. Veneet Lal (Dead) Through Lrs. H.B ... on 16 March, 2026

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

NEUTRAL CITATION NO. 2026:MPHC-JBP:20042

1 S.A. No.455/1996

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

SECOND APPEAL No.455 of 1996

ANAND MURARI DUBEY (DEAD) THROUGH LRS SMT. KUMUD
DUBEY AND OTHERS
Versus
DR. VENEET LAL AND OTHERS
...................................................................................................................................................................
Appearance:
Shri Avinash Zargar, Advocate for appellants.
Shri Prakash Upadhyay, Senior Advocate with Shri Rohit Raghuwanshi, Advocate
for respondents.
..........................................................................................................................................................
Reserved on:-11.03.2026
Pronounced on:-16.03.2026
..........................................................................................................................................................

JUDGMENT

This second appeal has been preferred by the original

appellants/plaintiffs (Anand Murari Dubey and Savitri Devi,

who have died during second appeal and now represented by

LRs) challenging the judgment and decree dated 02.02.1996

passed by 3rd Additional Judge to the Court of District Judge,

Sagar in Civil Appeal No.9A/1993 reversing the judgment and

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decree dtd.09.05.1992 passed by 1st Civil Judge Class-I, Sagar

in Civil Suit No.55A/1989, whereby Trial Court decreed the

appellants/plaintiffs' suit for possession of disputed land, area

0.95 acre but in civil appeal filed by the defendants (LRs of

defendant 1-Dr. Benat Lal), First Appellate Court has dismissed

the suit.

2. In short, the facts are that original plaintiffs 1-2, namely

Anand Murari Dubey and Savitri Devi instituted a suit for

possession of land survey no. 483 area 0.95 acre situated in

Village Mudra with the allegations that the suit land was

purchased by the plaintiffs from its previous owner Smt.

R.Wal.D. vide registered sale deed dtd.11.04.1975 for

consideration of Rs.3,000/- but the defendant 1 has illegally

taken possession over the land. It is also alleged that R.Wal.D.

never executed any gift deed on 26.12.1965 in favour of

defendant 1, which being unregistered, is not admissible in

evidence and does not confer any title to the defendant 1. It is

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also alleged that the revenue officers have in the light of illegal

gift deed, illegally cancelled mutation of the plaintiffs. On inter

alia allegations, the suit was filed for possession on the basis of

sale deed dtd.11.04.1975.

3. The defendant 1 appeared and filed written statement

denying the plaint averments and contended that the suit land is

in possession of the defendant 1, which was given to him by

Smt. R.Wal.D. in the year 1965 for construction of the house.

Pursuant thereto, he got raised construction of house after

spending an amount of Rs.18,000/-. It is contended that on

26.12.1965 Smt. R.Wal.D. executed a gift deed in favour of

defendant 1 and thereafter, he is in possession and vide order

dtd.27.03.1979 passed by Consolidation Officer (during

chakbandi), the defendant 1 was given bhoomiswami rights over

the land and Additional Tahsildar rightly mutated the land in the

name of defendant 1 and the appeal filed by plaintiff-Anand

Murari was dismissed rightly. The plaintiffs have no right over

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the suit property and the sale deed allegedly executed in favour

of plaintiffs, is without consideration and illegal. On inter alia

contentions, the suit was prayed to be dismissed.

4. On the basis of pleadings of the parties, Trial Court framed

as many as 7 issues and recorded evidence of the parties. In

support of their case, the plaintiffs examined Anand Murari

Dubey (PW/1), Madhav Murari Dubey (PW/2) and produced

documentary evidence (Ex.P/1 to P/6). Similarly, the defendant

also examined Benat Lal (DW/1), Gaffur Khan (DW/2) and

Khilan (DW/3) and produced documentary evidence (Ex. D/1 to

D/24).

5. After hearing arguments of the parties, the Trial Court vide

its judgment and decree dtd.09.05.1992 decreed the suit. Against

which the LRs of defendant 1 preferred regular civil appeal,

which by the impugned judgment and decree, was allowed and

by setting aside the judgment and decree passed by the Trial

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Court, civil suit filed by the plaintiffs was dismissed vide

impugned judgment and decree dtd.02.02.1996.

6. Against the judgment and decree dtd.02.02.1996 passed by

the First Appellate Court, the original plaintiffs 1-2 (Anand

Murari Dubey and Savitri Devi) (now dead, by LRs) preferred

second appeal, which was admitted for final hearing on

08.08.1997 on the following substantial question of law:-

"Whether the finding recorded by the lower appellate Court that the sale-deed executed in favour of the plaintiff is invalid, is in accordance with law?"

7. Later on, vide order dtd.19.09.2019, following two more

substantial questions of law were framed:-

"1. Whether the respondents/defendants came into possession of the land as licencee and constructed house with the permission of the previous owner ?

2. Whether the appellants/plaintiffs have a right to revoke the licence granted by the previous owner of the land for construction of the house ?"

8. Learned counsel for the appellants submits that

undisputedly the land in question belonged to Smt. R.Wal.D.,

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who was owner/bhoomiswami of the land area 24.95 acres, out

of which, an area 24 acres of the land was sold by her to Kamal

Kishore, Ramakant, Deepak Kumar, Sandeep Kumar, Anand

Murari and Kaushal Kishore, vide registered sale deed dtd.

10.04.1975, a copy of which has been placed on record of this

Court by way of an application under Order 41 Rule 27 CPC

(I.A. No. 25158/2025) and remaining area i.e. the disputed area

0.95 acre of the land was sold in favour of the original plaintiffs-

Anand Murari Dubey and Smt. Savitri Devi vide registered sale

deed dtd.11.04.1975 (Ex.P/1). He submits that the defendant 1

had no right over the suit land and his case of execution of gift

deed by Smt. R.Wal.D. as well as of adverse possession, has

rightly been negatived by the Courts below.

- He submits that since the defendant 1 had no right over the

suit land and the plaintiffs being owner of the same, are entitled

to decree of possession against the defendant 1 and taking into

consideration this aspect of the matter, Trial Court rightly

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decreed the suit but the First Appellate Court has even in

absence of any challenge to the sale deed dtd.11.04.1975

(Ex.P/1), committed an illegality in discarding the same, raising

doubts on the sale deed on its own wrong assumptions, not

acceptable in the eyes of law. He submits that there is a

presumption of validity in respect of a registered document and

unless the same is challenged or cancelled by the competent

Court, the same cannot be discarded. He also submits that

capacity of the defendant 1 being that of only a licensee and the

plaintiffs being owners of the suit land, are entitled to decree of

possession. In support of his submissions, learned counsel

placed reliance on the decisions in the case of Nopany

Investments (P) Ltd. vs. Santokh Singh (HUF), (2008) 2 SCC

728; Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs and

others, (2008) 4SCC 594; Union of India vs. Ibrahim Uddin and

another, (2012) 8 SCC 148 and Thangam and another vs.

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Navamani Ammal, (2024) 4 SCC 247. With these submissions,

he prays for allowing the second appeal.

9. Per contra, learned counsel for the respondents/LRs of

defendant 1 supports the judgment and decree passed by the

First Appellate Court and submits that the defendant 1 was

caretaker/manager of previous owner namely Smt. R.Wal.D.

and she gave the suit land to him for raising construction of

house and consequently he got raised construction of house and

is residing therein since the year 1965 and with this intention,

the sale deed dtd.10.04.1975 must have been executed by Smt.

R.Wal.D. only in respect of an area 24 acres leaving aside a

small piece of the land of the defendant 1's possession i.e. an

area 0.95 acre. He submits that although the Trial Court decreed

the suit, filed simplicitor for possession of the land but the

recital made on first page of the sale deed to the effect that

"िव यमू य ३००० ० तीन हजार पया पाचुके बैनामा क रिज करा दे वगे मावजा

ता० २२-८-६५ को पाकर क जा भी जमीन पर करा दया था"creates many

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doubts on the sale deed allegedly executed on 11.04.1975

through power of attorney holder-Shyam Murari Dubey, who

executed sale deed in favour of his wife Smt. Savitri Devi

Dubey and minor nephew Anand Murari Dubey. He also

pointed out that when another sale deed was executed on

10.04.1975 by Shyam Murari Dubey himself as a POA of Smt.

R.Wal.D. in respect of an area 24 acres, then why another sale

deed was executed on 11.04.1975 only in respect of an area 0.95

acre in favour of the plaintiffs and there is no reasonable

explanation available on record in that regard.

- He also submits that since the entire sale consideration was

paid by the plaintiffs on 22.08.1965 and possession was also

handed over to them, then there was no valid reason not to get

executed regd. sale deed then and there, i.e. on 22.08.1965. He

submits that taking into consideration all these aspects of the

matter, the First Appellate Court rightly reversed the judgment

and decree passed by the Trial Court. He also submits that since

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beginning the defendant 1 has denied title of the plaintiffs and

even the sale deed dtd.11.04.1975 (Ex.P/1) itself creates

suspicion over title of the plaintiffs and in such circumstances

the suit simplicitor for possession without seeking relief of

declaration of title, was not maintainable in the light of decision

of Hon'ble Supreme Court in the case of Anathula Sudhakar

(supra). With these submissions he prays for dismissal of the

second appeal.

10. Heard learned counsel for the parties and perused the

record.

11. Undisputedly, Smt. R.Wal.D. was owner of the land total

area 25.95 acres, out of which an area 1 acre went in acquisition

and 24 acres was sold by Smt. R.Wal.D. through Power of

Attorney (POA)-Shyam Murari Dubey in favour of Kamal

Kishore, Ramakant, Deepak Kumar, Sandeep Kumar, Anand

Murari and Kaushal Kishore, vide registered sale deed

dtd.10.04.1975 and remaining area 0.95 acre is said to have been

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sold by Smt. R.Wal.D. through same POA to the plaintiffs by

way of registered sale deed dtd.11.04.1975 (Ex.P/1).

12. The aforementioned recital quoted in Hindi language in

paragraph 9 of this order, made on first page of the sale deed

regarding transfer of the disputed land on 22.08.1965 by making

payment of Rs.3,000/- by the plaintiffs and handing over of

possession to the plaintiffs, has been taken into consideration by

the First Appellate Court in paragraphs 11 to 22 of the

impugned judgment, and found that the same is creating doubts

about execution of sale deed by Smt. R.Wal.D. although through

POA.

13. It is observed that such type of recital is not made

generally in the registered sale deeds and upon due

consideration of the entire material available on record as well

as the sale deed (Ex.P/1), in my considered opinion the

aforementioned recital is creating doubt on the real transaction

of sale. Further the sale deed is said to have been executed by

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the POA-Shyam Murari Dubey in favour of his wife Smt.

Savitri Devi Dubey and minor nephew Anand Murari Dubey.

Although in the sale deed, age of Anand Murari Dubey is not

disclosed, but on the basis of age disclosed in the plaint (i.e. 26

years) the age of Anand Murari Dubey, comes to 16 years on the

date of sale transaction allegedly took place on 22.08.1965,

meaning thereby he was minor on the date of sale made in his

favour. It is also apparent that the sale was made without there

being any guardian of Anand Murari Dubey, who in his

deposition para 3, says that he had already paid the amount of

consideration of Rs.3,000/- to his uncle and he does not

remember, as to on which date the amount was paid. If his entire

testimony is seen, the same does not appear to be reliable.

14. Further, the sale deed does not recite anything more about

the sale transaction of the year 1965, as to whether it was made

by Smt. R.Wal.D. herself or through Power of Attorney-Shyam

Murari Dubey, but the evidence shows that the sale transaction

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took place on 22.08.1965 through POA-Shyam Murari Dubey. It

is an undisputed fact available on record that on the date when

the sale transaction took place on 22.08.1965, Shyam Murari

Dubey was not appointed as a Power of Attorney by Smt.

R.Wal.D. and he came in picture as a POA only after execution

of registered Power of Attorney dtd.04.07.1966 (Ex.P/2). So,

apparently Shyam Murari Dubey was not having any right to

effect sale on 22.08.1965 in favour of the plaintiffs.

15. In view of the aforesaid factual scenario, it can easily be

said that the plaintiffs did not acquire any title over the suit land

on the basis of sale deed (Ex.P/1) and in case of aforesaid

doubts/suspicions as well as in presence of challenge to the

title/sale deed of the plaintiffs, the suit simplicitor for possession

without seeking relief of declaration of title, was not

maintainable in the light of decision of Hon'ble Supreme Court

in the case of Anathula Sudhakar (supra).

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16. It is very much surprising that the plaintiff 2-Smt. Savitri

Devi, who was major on the date of sale transaction, allegedly

took place on 22.08.1965, has not come in the witness box

despite she was alive during trial, who appears to have died in

the year 1996 i.e. after filing of the second appeal, whose

examination was necessary in the light of decision of Hon'ble

Supreme Court in the case of Vidhyadhar vs. Manikrao and

another, (1999) 3 SCC 573, especially in the circumstances

where the plaintiff 1-Anand Murari Dubey was minor on the

date of alleged sale transaction of the year 1965. It is well

settled that for seeking decree of possession, the plaintiff is not

only required to prove his title, but also the title of his

predecessor.

17. Although in the present case title of Smt. R.Wal.D. is not

in dispute, but in the light of execution of sale deed of the land

area 24 acres on 10.04.1975 and in presence of the recital made

in sale deed dtd.11.04.1975 about sale of land to the plaintiffs in

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the year 1965 (when Shyam Murari Dubey was not appointed as

Power of Attorney), examination of Smt. R.Wal.D. was

necessary and for the reasons best known to the plaintiffs, they

have not taken care of the same, which was necessary with a

view to remove several doubts/suspicions about execution of

sale deed, which are being described in the next paragraph.

18. It is pertinent to mention here that the sale deed (Ex.P/1)

including annexed map, runs into three pages. First page is

typed stamp of Rs.200/-, purchased on 8.4.1975 in the name of

Anand Murari, which was presented before Sub-Registrar on

18.4.1975 and was registered on 18.4.1975 itself under the

signatures of attesting witnesses namely Virendra Singh and

Rajaram. Contrary to this, the second page of sale deed is a

typed stamp of Rs.25/-, purchased on 10.4.1975 in the name of

Anand Kumar from a different stamp vendor. From the naked

eyes it is clear that firstly, the second page of the sale deed was

prepared/executed on 11.4.1975 under the signatures of POA-

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Shyam Murari Dubey and witnesses namely Khoobchand

Rathore & Sunderlal and thereafter probably it was annexed

with the first page, however on the overleaf of second page

signatures of Virendra Singh and Rajaram were also taken. So, it

is a forged document.

19. Although POA-Shyam Murari has been examined on

commission and he has also proved execution of document of

POA (Ex.P/2) but neither he nor any other witness of the

plaintiffs, has proved execution of sale deed (Ex.P/1) which is

necessary in the light of decision of Division Bench of this

Court in the case of Smt. Rekha Rana and ors. v. Smt.

Ratnashree Jain, AIR 2006 MP 107. For the reasons best known

to the plaintiffs none of the four witnesses to sale deed, has

come in witness box to prove due execution of sale deed

(Ex.P/1), which being a private document was required to be

proved like any other document, in accordance with the

provisions of Section 47 and 67 of the Evidence Act, 1872.

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Relevant paragraphs of the said decision in the case of Smt.

Rekha Rana (supra) are quoted as under :

"18. Proving execution of a registered sale deed (or any other registered document which is not required by law to be attested) has two steps. The first step is production of the original sale deed or lay the foundation for letting in secondary evidence of the sale deed, by way of certified copy of the sale deed, by showing the existence of any of the circumstances mentioned in clauses (a),

(b) and (c) of Section 65. In other words, a certified copy can be offered as secondary evidence of the original sale deed under clause (a) of Section 65, by establishing that the original is in the possession or power of the person against whom the document is sought to be proved, or in the possession or power of any person out of reach of or not subject to the process of the Court, or in the possession of any person who is legally bound to produce it, and such person (of the three categories) does not produce it in spite of notice under Section 66 of the Act. A certified copy of the sale deed can also be offered as secondary evidence under clause (c) of Section 65, by showing that the original is destroyed or lost (or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time). Lastly a certified copy can be offered as second evidence under clause (b) of Section 65, where the existence, condition or contents of the (sic) has been admitted in writing by the person against whom it is proved or by his representative in interest, and such admission is proved.

18.1. The second step is to prove the execution of the deed (whether what is produced in the original or certified copy or other secondary evidence thereof given under clause (a), (b) or (c) of Section 65) as required by Section 67 of the Act, where the document is not one which is required by law to be attested or as required by Section 68 of the Act where the document is one which by law is required to be attested. This is because registration is not proof of execution. A private document cannot be used in evidence unless its execution is admitted by the party against whom it is intended to be used, or it is established by proof that it is duly executed. Due execution is proved by establishing that the signature (or mark) in token of execution was affixed to the document by the person who is stated to have executed the document. This is normally done either (i) by examining the executant of the document; or (ii) by examining a person in whose presence the signature/mark was affixed to the document; or (iii) by referring the document to a handwriting expert and examining such expert; or (iv) by examining a person acquainted with handwriting/signature of the person who is supposed to have written/signed the document; or (v) by requesting the Court to compare the signature of the executant in the document with some admitted signature of the person shown

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as executant; or (vi) by proving admission by the person who is said to have signed the document, that he signed it."

20. It is also well settled that the plaintiff can succeed in his

suit only on the basis of his strength and he cannot be given

benefit of any of the weaknesses of the defendant's case. In the

present case, even if the defendant 1 has not been able to prove

his title, but undisputedly, he is in possession of the land since

the year 1950, as has been admitted by Madhav Murari Dubey

(PW-2) (younger brother of Shyam Murari Dubey) in para 5 of

his statement. Since the plaintiffs have not been able to prove

their title over the suit land, therefore, they are not entitled to

decree of possession by filing the suit in the year 1975, which