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Madhya Pradesh High Court · body

2009 DIGILAW 1399 (MP)

SUNIL KUMAR v. OM PRAKASH GARG

2009-12-21

ABHAY M.NAIK

body2009
Judgment Abhay M. Naik,J. ( 1. ) This judgment disposes of S.A.No.253/07 and S.A.No.362/07. since they arise from common suit and common judgment and decree passed in the matter. ( 2. ) Facts relevant for the purpose of both the appeals emerging from the material on record are that there situated an agricultural land in village Sesai,Tahsil Kolaras,District Shivpuri comprised in survey No.1706 in area 0.08 hectare, survey No.1707 in area 0.53 hectare, survey No.1709 in area 0.66 hectare and survey No.1710 in area 0.66 hectare which was owned by Raghuvar and Baldeva having 1/3rd share each and Babulal and Ramcharan having l/3rd share. Suit is in respect of the aforesaid land except survey No. 1709.Baldevas l/3rd share was purchased by Hariram through legal heirs of the former vide registered sale deed dated 26-02-1988(Ex-D/1).Plaintiff, Dr. Omprakash purchasedthe suit land from Raghuvar,legal heirs of Baldeva,Babulal and Ramcharan vide registered sale deed dated 17-03-1992 (Ex-P/2). There occurred a partition between Raghuvar,Babulal,Ramcharan and legal heirs of Hariram on 10-02-2000 through revenue Court as is revealed in Ex-D/3.Sunil Kumar,original defendant No.18 (appellant of S.A.No.253/07) purchased the land comprised in survey No. 1706, 1707 and 1709/min 1 from legal heirs of Hariram vide registered sale deed dated 14-08-2002 (Ex-D/5) Smt. Kusum Bai,original defendant No.17 purchased the share of Babu alias Babulal vide registered sale deed dated 10-09-02 (Ex-D/6), land comprised in survey No. 1709/min in area 0.62 hectare and survey No. 1710 in area 0.66 hectare from Babu alias Babulal. ( 3. ) Plaintiff. Dr Omprakash instituted a suit in respect of the land comprised in survey No 1706 in area 0.08 hectare, survey No.1707 in area 0.53 hectare and survey No. 1710 in area 0.66 hectare, totally in area 1.27 hectare for declaration of title and restoration of possession with allegation that he has purchased 1.16 hectare land out of the suit land vide registered sale deed dated 17-03-1992 (Ex-P/2)for a consideration of Rs.20.000/-. Remaining area to the extent of 0.11 hectare is also purchased by the plaintiff from Sirnam (defendant No.4). Thus,plaintiff has become sole Bhumiswamj of the suit land. On 22-09-03 he came to know that the disputed land is recorded in the names of defendants No.17 and 18, and their names were already entered in the record of rights. Remaining area to the extent of 0.11 hectare is also purchased by the plaintiff from Sirnam (defendant No.4). Thus,plaintiff has become sole Bhumiswamj of the suit land. On 22-09-03 he came to know that the disputed land is recorded in the names of defendants No.17 and 18, and their names were already entered in the record of rights. His contention is that the suit land having been purchased by him in due manner, the land could not have been mutated in favour of defendants No.17 and 18, hence, he sought declaration of title in his favour. He further prayed that if defendants are found in possession, decree for restoration of possession be also granted. ( 4. ) Defendants No.1 to 3 and 7 submitted their joint written statement and virtually accepted the claim of plaintiff. They further admitted to have sold the suit land to the plaintiff vide Ex-P/2 dated 17-03-1992. Defendant No.5(Shanti Bai D/o Baldeva)submitted her written statement. She denied to have executed the alleged registered sale deed dated 17-03-1992 in favour of plaintiff. She further opposed the suit on the ground of limitation. Defendant No.14(Shashi Bai Wd/o Hariram) and defendant No.16(Himanshu S/o Hariram) submitted their joint written statement. They inter alia stated that their predecessor, namely, Hariram had purchased l/3rd share from legal heirs of Baldeva vide registered sale deed dated 26-02-1988 and then obtained its possession, therefore, legal heirs of Baldeva had no right to execute the sale deed in respect of Baldevas share vide registered sale deed dated 17-03-1992. It is further stated that legal heirs of Hariram further transferred the land, purchased by Hariram from Baldevas heirs to Sunil Kumar(defendant No. 18) vide registered sale deed dated 14-08-02. Defendant No. 17(Smt. Kusum Bai) submitted her separate written statement, alleging therein that Babulal had not sold his share to the plaintiff. On the contrary,defendant 17 has purchased the land comprised in survey N0.1709 and 1710 which was share of Babulal. Sunil Kumar (defendant No. 18) submitted his written statement stating therein that he has purchased the share of Hariram from his legal heirs vide registered sale deed dated 14-08-02. Defendants so submitted their written statements and denied that plaintiff is in possession over the suit land or part thereof. They prayed for dismissal of plaintiffs suit. ( 5. Sunil Kumar (defendant No. 18) submitted his written statement stating therein that he has purchased the share of Hariram from his legal heirs vide registered sale deed dated 14-08-02. Defendants so submitted their written statements and denied that plaintiff is in possession over the suit land or part thereof. They prayed for dismissal of plaintiffs suit. ( 5. ) Chronological events as revealed in the pleadings and documents on record and consequences thereof prima facie appear to be- i- There situated an agricultural land with survey No.1706in area 0.08 hectare, survey No.1707 in area 0.53 hectare, survey No.1709 in area 0.66 hectare and survey No. 1710 in area 0.66 hectare in all in area 1.93 hectare in village Sesai,Tahsil Kolaras,District Shivpuri. Prior to settlement(Bandobast) of the. year 1988,the of said land comprised in survey No. 373 alone. ii- Following persons were Bhumiswami in cultivating possession of the suit land to the extent of their respective shares: a- Raghuvar l/3rd share b- Baldeva alias Barudewa : l/3rd share c- Babulal and Ramcharan : l/3rd share iii- This litigation pertains to the land comprised in survey No. 1706 in area 0.08 hectare, survey No. 1707 in area 0.53 hectare and survey No.1710 in area 0.66 hectare only with total area of 1.27 hectare. iv- After the death of Baldeva,his legal heirs sold their share (0.630 hectare) out of L891 hectare being I/3rd share to Hariram vide registered sale deed dated 26-02-1988 (Ex-D/1). v- Plaintiff purchased the land in area 1.16 hectare out of 1.27 hectare of the land comprised in the suit land from Raghuvar,legal heirs of Baldeva alias Barudewa and remaining l/3rd from Babulal and Ramcharan. vi- An amicable partition took place between Raghuvar, Baldeva,Ramcharan and legal heirs of Hariram on 10-02-2000 as revealed in Ex-D/3, Ex-P/5 and Ex-P/6. vii- Legal heirs of Hariram further sold the land comprised in survey Nos.1706, 1707 and 1709/min 1 to Sunil Kumar (defendant No. 18) vide registered sale deed dated 14-08-02 (Ex-D/5). viii-Babulal executed the registered sale deed dated 10-09-02 (Ex-D/6) to Smt. Kusum Bai(defendant No. 17) in respect of the land in area 1.28 hectare comprised in survey Nos.1709 and 1710. vii- Legal heirs of Hariram further sold the land comprised in survey Nos.1706, 1707 and 1709/min 1 to Sunil Kumar (defendant No. 18) vide registered sale deed dated 14-08-02 (Ex-D/5). viii-Babulal executed the registered sale deed dated 10-09-02 (Ex-D/6) to Smt. Kusum Bai(defendant No. 17) in respect of the land in area 1.28 hectare comprised in survey Nos.1709 and 1710. On the face value of aforesaid sale deeds, it may be observed that legal heirs of Baldeva after having executed the registered sale deed dated 26-02- 1988 (Ex-D/1)were not further competent to join in the sale deed in favour of plaintiff vide Ex-P/2 dated 17-03-1992. Similarly,Babulal having executed the sale deed in respect of his share vide Ex-P/2 dated 17-03-1992 in favour of plaintiff was not further competent to execute further sale deed in favour of Smt. Kusum Bai on 10-09-02 vide Ex-D/6. ( 6. ) Learned trial Judge after recording the evidence dismissed the suit of plaintiff holding that the plaintiff has failed to establish that he is Bhumiswami of the suit land (1.16 hectare), out of total area of 1.27 hectare comprised in survey Nos.1706, 1707 and 1710 of village Sesai,Tahsil Kolara,District Shivpuri. The suit was also dismissed as barred by limitation vide judgment and decree dated 27-04-06. ( 7. ) Aggrieved by the aforesaid, plaintiff preferred Civil Appeal No.l9-A/07 which has been partly allowed by learned lower appellate Judge vide judgment and decree dated 12-03-07 in the following manner: a- Plaintiff is declared Bhumiswami of 1.16 hectare as claimed in the plaint. b- Sunil Kumar Jain is held Bhumiswami and occupant of the remaining land of survey Nos.l706,1707andl710. c- Plaintiff is held entitled to restoration of possession from Smt. Kusum Bai(defendant No.17) and other vendors. ( 8. b- Sunil Kumar Jain is held Bhumiswami and occupant of the remaining land of survey Nos.l706,1707andl710. c- Plaintiff is held entitled to restoration of possession from Smt. Kusum Bai(defendant No.17) and other vendors. ( 8. ) Aggrieved by the aforesaid Smt. Kusum Bai(Defendant No. 17) and Sunil Kumar Jain (defendant No. 18) have preferred S.A.No-362/07 and S.A.No-253/07 respectively which are admitted on the following substantial questions of law: S.A.NO.253/07 "In view of the appellants vendor having purchased the share of Baldeva from his legal heirs prior to the purchase from them by the plaintiff, whether l/3rd share in survey Nos.1706 and 1707 (described in Ex-D/5) is liable to be protected before making declaration and granting restoration of possession in favour of the plaintiff with regard to his purchase vide Ex-P/2 ?" S.A.No;362/07 "in view of non-withdrawal of admissions contained in written statement of the defendant appellant until closure of plaintiffs evidence, whether the plaintiff was obliged to prove the sale deed in his favour marked as Ex-P/2 and whether reversal of the judgment and decree of the trial Court is sustainable in the given facts and circumstances?". ( 9. ) Shri N.D. Singhal and Shri Anand Bhardwaj,learned counsel for appellant in both the appeals and Shri P.K. Patni,learned counsel for respondent No.1 made exhaustive submissions which have been considered in the light of material on record. ( 10. ) Admittedly,Raghuvar and Baldeva had l/3rd share each and Babulal and Ramcharan had 1/3rd share in the land compromised in survey No.1706 in area 0.08 hectare, survey No.1707 in area 0.53 hectare, survey No.1709 in area 0.66 hectare and survey No. 1710 in area 0.66 hectare of village Sesai,Tahsil Kolaras,District Shivpuri. Before settlement(Bandobast) all the survey numbers were compromised in a single survey No.373 with area 1.891 hectare. After the death of Baldeva,his legal heirs sold l/3rd share of Baldeva in area 0.630 hectare to Hariram on 26-02-1988 vide registered sale deed marked as Ex-D1. In view of this, plaintiff could not have purchased the share of Baldeva from his legal heirs on 17-03-1992 vide Ex-P/2. Section 44 of Transfer of Property Act, 1882 empowers a co-owner to transfer his share in immovable property. This section reads as under: 44. In view of this, plaintiff could not have purchased the share of Baldeva from his legal heirs on 17-03-1992 vide Ex-P/2. Section 44 of Transfer of Property Act, 1882 empowers a co-owner to transfer his share in immovable property. This section reads as under: 44. Transfer by one co-owner:- Where one of two or more co- owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferors right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. ( 11. ) Section 48 of Transfer of Property Act may also be relevant in the facts and circumstances of this case which reads as under : 48. Priority of rights created by transfer- Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exists or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. ( 12. ) Though Sunil Kumar(Defendant No. 18) has purchased subsequently vide registered sale deed dated 14-08-02 (Ex-D/5) from legal heirs of Hariram,it is observed that Hariram having made purchase in the year 1988 prior to the purchase made by the plaintiff,rights of Sunil Kumar are liable to be protected. Defendant No. 18 Sunil Kumar vide Ex-D/5 has purchased the land comprised in survey Nos.1706,1707 and 1709/min 1. Out of these survey numbers, plaintiff has not purchased survey No. 1709/min 1 at all. Defendant No. 18 Sunil Kumar vide Ex-D/5 has purchased the land comprised in survey Nos.1706,1707 and 1709/min 1. Out of these survey numbers, plaintiff has not purchased survey No. 1709/min 1 at all. As regards survey Nos.1706 and 1707 which are shown to have been purchased by plaintiff vide Ex-P/2 dated 17-03-1992, also from legal heirs of Baldeva,l/3rd share of Baldeva already purchased by Sunil Kumars vendor vide Ex-D/1 dated 26-02-1988 is first liable to be reserved for protecting interest of Sunil Kumar. Accordingly, judgment and decree of the lower appellate Court contrary to the aforesaid is hereby set aside. It is observed that registered sale deed dated 17-03-1992 (Ex-P/2) in favour of plaintiff shall have no effect on Baldevas l/3rd share in -survey Nos.1706 and 1707 purchased by Sunil Kumar vide Ex-D/5 whose vendor had already purchased it vide registered sale deed dated 26-02-1988 marked as Ex-D/1. Decree be also modified to this effect. Substantial question of law mentioned hereinabove in S.A.No:253/07 is decided accordingly in favour of appellant. Appeal is accordingly allowed in part to the aforesaid effect. ( 13. ) Shri Anand Bhardwaj,learned counsel for the appellant in S.A.No.362/ 07 contended that written statement of certain defendants including Babulal was not in conformity with Rule 15 of Order 6 of CPC. To appreciate this contention, I feel it necessary to reproduce the provision for convenience: Order VI Rule 15. Verification of pleadings:- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other persons proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. affidavit in support of his pleadings were not complied with. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. affidavit in support of his pleadings were not complied with. For the reasons stated earlier, we are of the opinion that the provisions of Rules 6 and 7 are directory in nature and on account of non filing of an affidavit as required by sub-rule (4) of Order VI Rule 15 CPC, the petition would not be rendered invalid nor the assumption of jurisdiction by the Chairman on its basis would be adversely effected or rendered bad in any manner. Moreover, had there been an application by the appellant in the trial Court, pointing out the absence of affidavit by Babulal in support of written statement, the same could have been directed to be cured. In case of failure to cure such defect despite direction of the trial Court, the position would have been different. No such application is found to have been moved by the appellant. ( 14. ) Shri Anand Bhardwaj,learned counsel further placing reliance on the Apex Court decision in the case of Rama Pulp and Papers Ltd. Vs. Maruti N. Dhotre,(2005) 12 SCC 186 and again in the case of Jagannath Vs. Arulappa and another. (2005) 12 SCC303, contended that learned trial Judge had ignored the written statement for want of affidavit which has not been considered by the lower appellate Court. Thus, according to learned counsel, learned lower appellate Judge has failed in performing his duty and the impugned judgment stands therefore,vitiated. I am not impressed with this submission because of M. P. Singhs decision (supra)of the Apex Court. ( 15. ) Shri Anand Bhardwaj,learned counsel for the appellant further drew attention of this Court to the statement of Babulal,who appeared as DW-6 as a witness of defendant No-18/appellant. It has been strongly argued that the registered sale deed Ex-P/2 has not been proved at all by any of the attesting witnesses and, therefore, the suit is liable to dismissal. It may be seen that plaintiff expressly and specifically pleaded in paragraph 3 of the plaint that he has purchased the suit land vide registered sale deed dated 17-03-1992 for a consideration of Rs.20,000/- from the vendors including Babulal and possession was also simultaneously delivered to him. It may be seen that plaintiff expressly and specifically pleaded in paragraph 3 of the plaint that he has purchased the suit land vide registered sale deed dated 17-03-1992 for a consideration of Rs.20,000/- from the vendors including Babulal and possession was also simultaneously delivered to him. In the written statement submitted by certain defendants including Babulal,it has been clearly admitted that the sale deed was duly executed by the vendors mentioned therein which included Babulal. Further it has been specifically admitted in paragraph 6 that possession was also delivered to the plaintiff and defendant after executing the registered sale deed,did not perform agricultural work on the suit land. This written statement was not withdrawn by Babulal until closure of plaintiffs evidence. Section 58 of Indian Evidence Act, 1872 makes it clear that admitted facts need not be proved. This section reads as under: ( 16. ) Facts admitted need not be proved: No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are. deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. ( 17. ) From the record of the trial Court, it is revealed that the evidence of plaintiff was closed on 14-07-05. Till then written statement of Babulal containing admissions about execution of registered sale deed dated 17-03-1992 and about delivery of possession was not withdrawn. There was no whisper in the case till closure of plaintiffs evidence that defendant Babulal would detract from his written statement on record or would take somersault in the matter of his stand contained in his written statement jointly submitted with certain other defendants. The written statement is not only duly signed and verified by Babulal,but is also duly attested by advocate Mr. Kamta Prasad Shrivastava,who was having a considerable standing. Moreover,Babulal himself in paragraph 14 of his statement has admitted that he had submitted written statement after engaging Mr. Kamta Prasad Shrivastava as an advocate. The written statement is not only duly signed and verified by Babulal,but is also duly attested by advocate Mr. Kamta Prasad Shrivastava,who was having a considerable standing. Moreover,Babulal himself in paragraph 14 of his statement has admitted that he had submitted written statement after engaging Mr. Kamta Prasad Shrivastava as an advocate. Although Babulal while appearing not as defendant but as witness of defendant No. 18 has stated that he had not submitted the written statement, it is not revealed in the record that Babulal had ever made complaint against advocate Mr. Kamta Prasad Shrivastava for attesting his alleged signature on the written statement. This conduct on the part of Babulal is clearly suggestive of the fact that he had no grievance against advocate Mr. Kamta Prasad Shrivastava. A litigant if aggrieved by the conduct of his lawyer shall either make a complaint against him before State Bar Council of Madhya Pradesh or shall take requisite steps against him which may include the suit for damages. Without taking resort to any of the remedial recourses, statement of a litigant cannot be lightly believed more so, against a lawyer who has already worked with repute for a considerable length. Under the Amended provisions of Code of Civil Procedure, parties to the litigation are to be first examined. Babulal despite being defendant No.1 did not appear as witness in the capacity of defendant. He appeared after statement of defendant No.18 merely as a witness. Since he had already parted with his interest and property, his statement cannot be construed as admission against the plaintiff under. Section 18 of the Indian Evidence Act,1872, in view of law laid down by this Court in the case of Himmatsingh Vs. Pratapsingh,1963 JLJ-SN 14.Thus, in view of the attending facts and. circumstances, the statement of Babulal does not render any assistance to the defendant/appellant, who was not required to prove the sale deed dated 17-03-1992 contained in Ex-P/2 in view of non-withdrawal of admission on the part of vendors contained in written statement until closure of plaintiffs evidence. ( 18. ) Since Babulal had already sold his share vide registered sale deed dated 17-03-1992(Ex-P/2) to the plaintiff, he ceased to have a right to execute the sale deed again in respect of his share in respect of survey No.1 710. ( 18. ) Since Babulal had already sold his share vide registered sale deed dated 17-03-1992(Ex-P/2) to the plaintiff, he ceased to have a right to execute the sale deed again in respect of his share in respect of survey No.1 710. This Court does not make any comment in respect of purchase of the land comprised in survey No.1709 vide Ex-D/6 dated 10-09-02 since survey No.1709 is not subject matter of this litigation. It is made clear that this judgment shall have no effect on the sale deed in favour of defendant No. 18 in respect of survey No.1709. Substantial questions of law, in view of above discussion is decided against the appellant. Appeal No. 362/07 is accordingly dismissed. No order as to costs. S.A. 253/07 is partly allowed.