Smt Sedi And Anr vs Moolchand And Ors ...
2023 Latest Caselaw 5839 Raj/2

[2023:RJ-JP:28672]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 800/2017

1.Smt. Sedi Wife of Shri Gutya,
2.Shri Gutya S/o Shri Chandaram,
2/1.Chogan S/o Late Shri Gutya
2/2.Kailash S/o Late Shri Gutya
2/3.Sardara S/o Late Shri Gutya,
All are Residents of Village, Mudiya, Tehsil Amer, District Jaipur.
                                                     ----Defendants/Appellants
                                         Versus
1.Moolchand S/o Shri Banshi,
2.Babulal S/o Shri Banshi,
3.Chouthmal S/o Shri Banshi,
4.Sohan S/o Shri Banshi
All are Residents of Village Mudiya, Tehsil Amer, District Jaipur,
Rajasthan.
5.Banwari, (deleted)
6.Dwarka Prasad S/o Shri Bannaram Meena, r/o Plot No. D-48,
Prem Colony, Nehru Nagar, Jaipur, Rajasthan.
                                                      ----Plaintiffs/Respondents

For Appellant(s)             :      Mr. Praveen Sharma with
                                    Mr. Saket Gupta
For Respondent(s)            :      Mr. S.L. Songara


       HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
                     Judgment / Order

11/10/2023

This civil second appeal is preferred against the judgment

and decree dated 21.11.2017 passed by the learned Additional

District Judge No.2, Jaipur District, Jaipur (for brevity, "the learned

Appellate Court") in Civil Regular Appeal No.4/2017 (NCV

No.54/2017) whereby, while dismissing the appeal preferred by

the appellants/defendants (for brevity, "the defendants"), the

judgment dated 16.10.2017 passed by the learned Additional Civil

[2023:RJ-JP:28672] (2 of 4) [CSA-800/2017]

Judge No.2, Jaipur District, Jaipur (for brevity, "the learned trial

Court") decreeing the Civil Suit No.299/1994 (301/92) (NCV

No.1314/2014) filed by the respondents/plaintiffs (for brevity, "the

plaintiffs") for declaration, cancellation of sale deed and

permanent injunction, has been affirmed.

The relevant facts in brief are that the plaintiffs filed a suit

for declaration, cancellation of sale deed dated 10.06.1970 and

permanent injunction against the defendants stating therein that

they were under Khatedari and possession of the land of Khasra

no.55 (Real 55/2) measuring 4 bighas (subject land) situated in

village Mudiya which, after death of their father Shri Banshi Lal,

was mutated in their names on 06.07.1969. It was averred that

they have sold the land of Khasra no.55/2 to Shri Dwarka Prasad

and when, the sale deed was submitted for registration, the

defendant no.2 raised an objection against it on the premise that

half of the subject land was purchased by his wife vide registered

sale deed dated 10.06.1970 executed by Late Banshi Lal. Alleging

that the sale deed dated 10.06.1970 was hit by Section 42 of the

Rajasthan Tenancy Act, 1955 (for brevity, "the Act of 1955")

inasmuch as while, the plaintiffs were members of the Scheduled

Tribe whereas, the defendant no.2 did not belong to the Scheduled

Tribe. Therefore, the decree as aforesaid was prayed for.

The defendants in their joint written statement, denying the

averments made in the plaint, submitted that the defendant no.2

had purchased the subject property from the father of the

plaintiffs vide registered sale deed dated 10.06.1970. It was

averred that they had already obtained possession of the subject

property about 15 years prior to year 1970 under an agreement to

[2023:RJ-JP:28672] (3 of 4) [CSA-800/2017]

sell paying part sale consideration. Dismissal of the suit, therefore,

was prayed for.

On the basis of pleadings of the parties, the learned trial

Court framed four issues including relief. After recording evidence

of the respective parties, the learned trial Court decreed the suit

vide judgment dated 16.10.2017. The civil first appeal preferred

thereagainst by the defendants has been dismissed by the learned

Appellate Court vide judgment and decree dated 21.11.2017.

Assailing the impugned judgment and decree, the only

contention advanced by the learned counsel for the defendants is

that the learned Courts did not appreciate that much before

execution of the registered sale deed dated 10.06.1970, the

defendant no.2 had purchased the subject property through an

agreement to sell and had obtained its possession paying part sale

consideration. He submits that in view thereof, the bar under

Section 42 of the Act of 1955 had no applicability in the present

case. He, therefore, prays that the civil second appeal be allowed,

the judgment and decree dated 21.11.2017 be quashed and set

aside and the suit be dismissed.

Heard. Considered.

While decreeing the suit, the learned trial Court has held that

the sale deed dated 10.06.1970 executed by Late Shri Banshi Lal,

father of the plaintiffs, in favour of the defendant no.2 was hit by

Section 42 of the Act of 1955 inasmuch as the plaintiffs being

members of the Scheduled Tribe, sale of the subject agricultural

land in favour of the defendant no.2, not a member of Scheduled

Tribe, was barred by law and was void-ab-initio. This factual as

well as legal position has not been disputed even by the learned

[2023:RJ-JP:28672] (4 of 4) [CSA-800/2017]

counsel for the defendants. However, his contention that they had

already purchased the subject land through an agreement to sell

executed in the year 1952 and had obtained its possession paying

part sale consideration was disbelieved and discarded by the

learned trial Court on the premise; firstly, that no such plea was

taken in the written statement; secondly, they could not establish

execution of any agreement to sell in between the parties in the

year 1952; and thirdly, the possession did not exchange hands at

that time; rather, appreciating the oral as well as documentary

evidence available on record, a categorical finding was recorded

that the plaintiffs were in possession of the subject agricultural

land. The learned trial Court has further held that claim of the

defendants as to have acquired rights in the subject agricultural

land on the strength of an agreement to sell allegedly executed in

the year 1952, paying a sale consideration of rupees more than

100/-, could not be accepted for want of registration of such deed

in view of provisions of Section 54 of the Transfer of Property Act,

1882. These findings have been affirmed by the learned Appellate

Court reappreciating the evidence on record.

The learned counsel for the defendants could not satisfy this

Court that these concurrent findings of facts suffer from any

illegality, infirmity, perversity or jurisdictional error so as to

warrant interference of this court under Section 100 CPC.

Resultantly, the civil second appeal is dismissed being devoid

of any substantial question of law.

(MAHENDAR KUMAR GOYAL),J

Sudha/37

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