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Madhya Pradesh High Court · body

2007 DIGILAW 737 (MP)

KAMAL SINGH s/o RANJIT SINGH v. BHAWARIBAI

2007-07-17

A.K.SHRIVASTAVA

body2007
Judgment ( 1. ) THE defendants feeling aggrieved by the judgment and decree dated 11-8-1993 passed by learned District Judge Bhopal in Civil Appeal no. 4-A of 1992 whereby the judgment and decree passed by trial Court has been affirmed, have filed this second appeal. ( 2. ) THE facts leading to this appeal lie in narrow compass. One Khandhar (the ruins of a house) admeasuring 18" x 17" is the subject matter of the suit. The four boundaries of this Khandhar are mentioned in the map annexed to the plaint. The present suit has been filed by the plaintiff Badan Singh for injunction against the defendants on the averments made in the plaint that he purchased the suit property vide registered sale-deed dated 29-9-1984 from one Karan Singh for a consideration of Rs. 1000/- and obtained its possession. It is the further case of the plaintiff that when he tried to raise construction on the disputed property, the defendants restrained him though he has legally obtained sanction and permission to construct the suit property from Gram Panchayat, Chatahedi on 1-10-1994. Thus the suit for injunction has been filed by the plaintiff on the basis of title that defendants should not interfere in his possession and should not dispossess him. ( 3. ) THE defendants refused the plaint averments and pleaded therein that the suit property is the ancestral property of the defendant No. 1 to 7. Earlier it was in a shape of complete house, but later on it became dilapidated. The defendants no. 2 to 7 are still using the suit property. The defendants further denied that plaintiff has purchased suit property from Karan Singh. According to the defendants, Karan Singh never sold the suit property to the plaintiff. The defendants prayed that the suit be dismissed. ( 4. ) THE trial Court framed necessary issues and after recording the evidence of the parties found that the plaintiff is in possession of the suit property as he has purchased it from Karan Singh and obtained possession and eventually passed the decree of injunction. ( 5. ) THE appeal which was filed by the defendants challenging the judgment and decree of the trial Court has been dismissed by the impugned judgment and decree by learned First Appellate Court. Hence the present appeal has been filed by the defendants/appellants. ( 5. ) THE appeal which was filed by the defendants challenging the judgment and decree of the trial Court has been dismissed by the impugned judgment and decree by learned First Appellate Court. Hence the present appeal has been filed by the defendants/appellants. This Court on 28-11-1994 admitted the appeal on following substantial questions of law. i. "whether the Courts below have rightly held the acquisition of title by Karan Singh over the disputed property in view of the fact that originally one Prithvi Singh was recorded on the same and no relation between Karan Singh and Prithvi Singh has come on record" ii. Whether the certificate Issued by Gram Panchayat concerned has any statutory force and/or has evidentiary value to be made as the basis for deciding the title of Karan Singh"" ( 6. ) THE contention of learned counsel for appellants is that the title of plaintiff is not proved and in this context she has invited my attention to Ex. P/3a which is translated copy of the certified copy of Khasra of the year 1932 which is in Urdu in which the name of one Prithvi Singh has been mentioned. According to the learned counsel for the appellants since the name of Prithvi Singh is entered in the Khasra of the year 1932, therefore, Karansingh was not having right, title and interest in the suit property and he was not competent to alienate the same and thus plaintiff is not having any right, title and interest in the suit property. It has been further submitted by learned counsel for the appellant that on going through the document Ex. D-2 which is a certificate given by Sarpanch of Gram Panchayat, Chatahedi certifing that defendant Kamal Singh is in possession of house, the description of which has been mentioned in the said certificate, it can be inferred that the disputed property is of defendant Kamal singh. Thus according to learned counsel the two Courts below erred in substantial error of law in decreeing the suit of plaintiff. ( 7. ) PER contra Shri Satish Thakur, learned counsel for respondent argued in support of the impugned judgment. ( 8. ) HAVING heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. ( 9. ) REGARDING substantial question of law No, 1. ( 7. ) PER contra Shri Satish Thakur, learned counsel for respondent argued in support of the impugned judgment. ( 8. ) HAVING heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. ( 9. ) REGARDING substantial question of law No, 1. On going through the averments made in para 1 of the plaint, this Court finds that there is specific averment of the plaintiff that he purchased the suit property by virtue of registered sale deed dated 29-9-1984 from, one Karan Singh and obtained possession of the same. The said sale deed Ex. P/1 has been proved by the plaintiff by examining himself. In the written statement nowhere it has been pleaded by the defendants that Karan Singh was not the owner of the suit property. The specific pleading of defendants in their written statement is that the plaintiff is not the owner nor in possession of suit property and the suit property is of defendants No. 1 to 7 as the same is their ancestral property. The defendants have further pleaded in para 1 of their written statement that the plaintiff never purchased the suit property from Karan Singh. It has been further pleaded by them that Karan Singh never sold the suit property and handed over possession to the plaintiff. But, there is no pleading of defendants that Karan Singh was not the owner of the suit property. Entire emphasis of the plaintiff in the suit is that the suit property was sold by Karan Singh to him which has been denied by defendants. Thus, the fact in issue is that whether Karan Singh sold the suit property to plaintiff and indeed issue No. 1 has been framed by the trial Court in that regard. The fact in issue is not that whether Karan Singh is the owner of suit property. ( 10. ) SINCE defendants have not disputed the fact that Karan Singh was the owner of the suit property, therefore it was not necessary for the plaintiff to prove the title of his vendor, namely, Karan Singh. The sale deed Ex. P/1 has been found to be proved by two Courts below on correct appreciation of the evidence. ( 11. ) THE plaintiff has also filed document Ex. P/2 which is the sanction and permission to construct the suit property given by Gram Panchayat, Chhatakhedi. The sale deed Ex. P/1 has been found to be proved by two Courts below on correct appreciation of the evidence. ( 11. ) THE plaintiff has also filed document Ex. P/2 which is the sanction and permission to construct the suit property given by Gram Panchayat, Chhatakhedi. Learned counsel for the appellant has invited my attention on the Khasra panchshala (Ex. P/3) which is in Urdu language and its translated copy is Ex. P/3a and has submitted that nowhere the name of Karan Singh has been mentioned in khasra of the year 1932. I have gone through the translated copy of Khasra and I find that the name of Prithvi Singh is mentioned in Column of Kaifiat and nowhere his name has been mentioned in the column of ownership. Apart from the stray entry of year 1932, there is no document on record of later years in order to demonstrate that Prithvi remained in possession. The stray entry and that too of year 1932 mentioning the name of Prithvi Singh in the column of Kaifiat, will not be sufficient to hold that said Prithvi Singh was possessing the suit property in the later years also. The initial burden to prove that plaintiff is in possession of the suit property and it was purchased by him from Karan Singh, was on plaintiff and after he discharged this burden by proving the sale deed ex. P/1, the onus of proof shifts upon the defendants to prove that plaintiff is not the owner of the suit property and in fact they are owing and possessing the suit property but, by not placing the relevant documents, the shifted onus of proof has not been discharged by the defendants. ( 12. ) ANOTHER submission of learned counsel for the appellant is that Ex. D/2 is a certificate issued by Sarpanch of the Gram Panchayat, Chhatakhedi mentioning the disputed property of defendant Kamal Singh. By Keeping Ex. D/2 and the sale deed Ex. P/1 as well as the plaint map, in juxtaposition, it is difficult to hold that the property mentioned in the Ex. D/2 is the same property the description of which has mentioned in the sale deed and in the plaint map. The four boundaries are altogether different. In Ex. By Keeping Ex. D/2 and the sale deed Ex. P/1 as well as the plaint map, in juxtaposition, it is difficult to hold that the property mentioned in the Ex. D/2 is the same property the description of which has mentioned in the sale deed and in the plaint map. The four boundaries are altogether different. In Ex. D/2 on eastern side the house of mohar Singh has been shown but in the map of sale deed on the eastern side main Rasta has been shown, on the Southern side, house of Ratansingh is mentioned in Ex. D/2 and also in the map of Ex. P/1, but, on the western side in ex. D/2 the door and dalan of Kamal Singh has been shown and in the sale deed map Ex. P-1 on the western side Khandhar of Smt. Bhuri Bai has been shown, similarly in Ex. D-2 on the northern side, house of Kanchan Singh is mentioned, while in the map of sale deed Ex. P/1 Main Rasta has been shown. The description of four boundaries in plaint map is similar to the map of sale deed Ex. P/l. Apart from this the suit property is admeasuring 18" x 17" and the same measurement has been shown in the map of sale deed Ex. P/1 but in the certificate of Gram Panchayat Ex. D/2 no such measurement has been given. Thus it is very difficult to hold that the property mentioned in Ex. D/2 which is said to be of defendant Kamal Singh is the same property which is the subject matter of the suit. ( 13. ) THE Supreme Court in the case of M. Kallappa Setty vs. M. V. Lakshminarayana Rao, AIR 1972 SC 2299 has held that if plaintiff is in possession of suit property he can, on strength of his possession, resist interference from defendant who has no better title than himself and can obtain a decree of injunction restraining defendant from disturbing his possession. The similar view was taken by this Court seven decades earlier in Pannalal Bhagirath marwadi vs. Bhaiyalal Bindraban Pardeshi Teli, AIR 1937 Nagpur 281 ( 14. The similar view was taken by this Court seven decades earlier in Pannalal Bhagirath marwadi vs. Bhaiyalal Bindraban Pardeshi Teli, AIR 1937 Nagpur 281 ( 14. ) IN the present case both the Courts below concurrently found by appreciating the evidence that on the suit property the possession is of the plaintiff, this finding is a pure finding of fact which is based on correct appreciation of evidence and cannot be assailed in this second appeal. ( 15. ) THUS, the substantial question of law No. 1 is answered that in the khasra of the year 1932 the name of one Prithvi has been recorded in the column of Kaifiat which will not jeopardise the case of plaintiff otherwise also in the said khasra, name of Prithvi Singh is not recorded in the column of ownership. ( 16. ) REGARDING substantial question of law No. 2. The document Ex. P/2 dated 30-10-1984 which has been granted by Gram panchayat is sanction order permitting the plaintiff to construct the house. On going through this document it is gathered that plaintiff Badan Singh submitted the application on 1-10-1984 seeking permission to construct the house along with the copy of sale deed and also the proposed plan to construct the house. On receiving such application Gram Panchayat issued notice and invited objections, but no objection was received and thereafter, the concerning Gram Panchayat allowed plaintiff to construct double storied house by granting sanction order ex. P2 on 30-10-1984. ( 17. ) THUS, it is clear that the Gram Panchayat has simply given the permission to plaintiff to construct his house as per sanction order and it was within the jurisdiction of Gram Panchayat under section 38 of M. P. Panchayat act, 1962 prevailing on 30-10-1984. By sanctioning the permission to plaintiff to construct the house vide Ex. P/2, the Gram Panchayat never decided the title of karan Singh. Since the permission to construct the house to plaintiff has been given by the concerning Gram Panchayat under section 38 of the said Act, therefore this document Ex. P/2 is having statutory force and having its evidentiary value. ( 18. ) THE substantial question of law No. 2 is thus answered that under section 38 of M. P. Panchayat Act, 1962 the document Ex. P/2 is having statutory force and having its evidentiary value. ( 18. ) THE substantial question of law No. 2 is thus answered that under section 38 of M. P. Panchayat Act, 1962 the document Ex. P/2 which is sanction order to construct the house was given by concerning Gram Panchayat to plaintiff and it is having statutory as well as evidentiary value. ( 19. ) RESULTANTLY, this appeal fails and is hereby dismissed with costs. Counsel fee Rs. 2000/-, if pre-certified. Appeal dismissed.