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Madhya Pradesh High Court · body

2011 DIGILAW 1102 (MP)

Gangadhar v. Bhanwaribai

2011-09-20

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. This is defendants second appeal having lost from two Courts below. 2. No exhaustive statements of facts are required to be narrated for the purpose of disposal of this second appeal, looking to the nature of the substantial question of law, which has been framed by this Court. 3. A suit for declaration that the sale deed executed by defendant No.7 Jeetmal in favour of defendants No.1 to 6 is not binding upon the plaintiffs and the same is null and void; further they are having joint possession on the suit property along with defendant No. 7. A decree of injunction has also been sought that the defendants shall not interfere in the possession of plaintiffs. 4. The plaint averments were refuted by defendants No.1 to 6 by filing written-statement and counter-claim h~ also been filed by them. According to the defendants vide registered sale deeds dated 4.6.1984, 12.6.1984 and 12.12.1985, the defendants No.7 after partition, sold the suit property which fell in his share to defendants 1 to 6. Since the date of sale in favour of defendants 1 to 6, they are possessing the disputed property. 5. Learned trial Court framed the necessary issues and after recording the evidence of the parties, decreed the suit. 6. The first appeal which was filed by the defendants 1 to 6 has been dismissed by the impugned judgment and decree. 7. In this manner, this second appeal has been preferred by the defendants 1 to 6. 8. This Court on 27.7.1998 admitted this second appeal on the following substantial question of law : "Whether the suit was not maintainable due to failure of the plaintiffs to pray the consequential relief of the possession?" 9. The contention of Shri Saxena, learned counsel for the appellants is that the suit has been filed for cancellation of sale deeds said to have been executed by defendant No.7 Jeetmal in favour of defendants 1 to 6; further it be declared that plaintiffs are possessing the suit property along with defendant No.7 and for injunction that the defendants should not interfere in the possession of the plaintiffs. According to learned senior counsel no where a decree of possession has been sought by the plaintiffs in the plaint although they are not in possession of the suit property. According to learned senior counsel no where a decree of possession has been sought by the plaintiffs in the plaint although they are not in possession of the suit property. To bolster his submission, learned counsel for the appellants has invited my attention to the testimony of plaintiff Ayodhya Bai (PW-l) and submitted that she herself has admitted that the defendants are possessing the suit property since the date of sale and if that would be the position, the suit of plain tiff is hit by proviso to section 34 of the Specific Relief Act, 1963 (herein after the Act). In support of his contention, learned counsel has placed heavy reliance on the decision of the Supreme Court in Ram Saran and another v. Smt. Ganga Devi AIR 1972 SC 2685 . 10. Despite the plantiffs, who are respondents in this appeal have been served, no one has put appearance on their behalf. I have gone through the record of learned two Courts below and considered the submissions of learned Senior Counsel for the appellants and I am of the view that this appeal deserves to be allowed. Regarding substantial question framed. 11. On bare perusal of the reliefs which are claimed by the plaintiffs in their plaint, this Court finds that they filed a suit seeking three reliefs they are : (i) it be declared that the suit property is being possessed by the plaintiffs with defendants No.7 and sale deed executed by defendant No.7 in favour of defendants 1 to 6 are not binding upon them and those sale deeds are null and void; (ii) on the basis of alleged sale deed the defendants should not interfere in the possession of the plaintiffs and they should not take possession; and (iii) cost be awarded to them and further relief which this Court think it proper be also granted. The purpose of quoting the reliefs which the plaintiffs have sought is that no where the plaintiffs are claiming possession of the suit property on the contrary their contention in the relief clause of the plaint is that they are possessing the suit property. 12. The purpose of quoting the reliefs which the plaintiffs have sought is that no where the plaintiffs are claiming possession of the suit property on the contrary their contention in the relief clause of the plaint is that they are possessing the suit property. 12. The factum of possession of the plaintiffs has been emphatically denied by the defendants No. 1 to 6 in their written statement and it has been specifically pleaded by them that by virtue of the sale deeds executed by defendants No.7 in their favour, they are possessing the suit property. 13. Thus, the crucial point which has to be decided in this second appeal is whether the plaintiffs are possessing the suit property or not. Certainly, if they are 10t in possession their suit should fail looking to the proviso to section 34 of the Act, because they have not asked relief of possession of the suit property. In this context, the testimony of Ayodhaya Bai (PW-1), who is the mother of minor plaintiffs is very much relevant. On going through the para 5 of her cross- examination, it is gathered that defendant (purchaser) Gangadhar has purchased the suit property. Further she has admitted that defendant Gangadhar is cultivating the land in question. In para 8 of her cross-examination she has admitted the suit land has been sold out to defendants 1 to 6 this fact was known to her. Further• she has admitted that when the defendants Gangadhar came to cultivate the land in question, thereafter she had filed the present suit. She has further admitted that the defendants are possessing the suit land and are also cultivating the same since the date of sale. 14. Hence, looking to the admissions made by Ayodhya Bai who is the mother of minor plaintiffs there remains no scintila of doubt that the plaintiffs are not possessing the suit property since the date of filing of the suit, which was filed on 20.3.1986. 15. Apart from the admissions made by the mother of the plaintiffs herself that plaintiffs are not in possession of the suit property, it is borne out from the testimony of plaintiffs' other witnesses also that the defendants are in possession of the suit property. 15. Apart from the admissions made by the mother of the plaintiffs herself that plaintiffs are not in possession of the suit property, it is borne out from the testimony of plaintiffs' other witnesses also that the defendants are in possession of the suit property. On bare perusal of testimony of Prabhulal (PW-2), particularly para-6 of his cross examination, it is gathered that Ayodhya Bai (mother of the plaintiffs) was well acquainted about the alienation made in favour of the defendants 1 to 6 (appellants herein) and this was known to her from the date of sale. Premnarayan (PW-3) is also saying that the defendants Gangadhar (purchaser) has purchased the suit property and he is possessing the land in question for last 5 to 6 years ago. This witness was examined on 6.4.1997 and more or less the impugned sale deeds are prior to six years from this date. Again in para 6 of cross examination this witness has admitted the same fact that defendants (purchaser) are possessing this property for last 5-6 years. Further he has admitted that when quarrel took place between Ayodhya Bai and defendants 1 to 6, thereafter the present suit was filed and at that time defendants were possessing the suit property. Thus, not only the mother of minor plaintiffs has admitted that defendants are not in possession of the suit property since the date of filing of the suit but the witnesses of plaintiffs are also admitting the possession of defendants on the date of filing of the suit. 16. Hence, when the plaintiffs were not possessing the suit property on the date of filing of the suit and they did not seek relief of restoration of possession, their suit is hit by proviso to section 34 of the Act. No authority is needed on this preposition but I am reminded by the decision of the Supreme Court in Ram Saran (supra) placed reliance by the learned Senior counsel for the appellants, wherein it has been specifically held by the Supreme Court that if plaintiff in his suit does not seek relief of possession, but merely claim declaration that he is owner of the suit property, the suit filed by him is not maintainable. 17. 17. Since, there is clear admission of Ayodhya Bai and her witnesses that the plaintiffs are not in possession of the suit land, on account admission of her and her witnesses, I am of the view that plaintiffs were not in possession of the suit property when the suit was filed. It is well settled in law that the admission is the best evidence which the opposite party can rely upon, and though no conclusive, I is decisive of the matter, unless successfully withdrawn or proved erroneously. In this context, it would be fruitful to place reliance on the decision of Supreme Court Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others AIR 1960 SC 100 . In the present case neither admission made by plaintiffs' mother and their other witnesses have been withdrawn by the plaintiff nor they have been proved erroneously. Hence, the defendants who are appellants herein can rely admissions of the plaintiffs which is the best evidence. 18. The substantial question of law is thus answered that the suit of plaintiffs I is not maintainable as they have failed to pray the consequential relief oft possession. 19. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned Courts below is set aside and the suit of the plaintiffs is dismissed with no order as to costs. P.K. Saxena with Sunil Verma for appellants; None for respondents No.1 to 8: Pramod Mitha, Government Advocate for respondent No. 9/State.