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2013 DIGILAW 1445 (MP)

Arun Kumar Sharma v. Rajendra

2013-11-21

ROHIT ARYA

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JUDGMENT : Rohit Arya, J. 1. The instant appeal by the plaintiff/appellant is directed against the concurrent judgment dated 12.03.2007 passed in Civil Appeal No. 18-A/2006 confirming the judgment and decree dated 01.02.2003 passed in Civil Suit No. 87-A/2001 dismissing the Suit. Facts necessary for disposal of this appeal as per plaint allegation are that the subject matter of Suit; an agricultural land admeasuring 1 bigha and 3 biswas falling in Survey No. 7, village Pahargarh, Tehsil Jaura, district Morena. According to plaintiff, defendants Jagannath, Mahila Soni and Mahila Ramdevi are brother and sisters and Suit property is of their ownership. Ramdevi and Soni had abandoned their share and had given it to brother Jagannath. As a measure of formality only their names are registered in the revenue records. According to the plaint allegations, Jagannath had taken loan of Rs. 40,000/- from the plaintiff Arun Kumar Sharma and had executed an agreement on 14.02.1994. He had handed over the possession of the Suit land. As per their agreement if Jagannath had returned the money within ten years, he would get back the possession of the land, otherwise he should execute the sale deed in favour of the plaintiff. According to plaintiff, he has been in possession of the Suit land and doing cultivation. On having come to know that a sale deed has been executed in respect of Suit land in favour of defendant no. 1 Rajendra on 10.2.1998 by Jagannath and since he was threatened to be dispossessed from the Suit land, he had filed the Suit for declaration of title and injunction not to interfere with the possession and the sale deed dated 10.01.1998 was null and void. 2. In the Written Statement, Suit allegations were denied in entirety. Defendant Nos. 2, 3 and 4 stated that though Suit property is that of joint ownership and are in joint possession, each of them have 1/3rd share in it. They have sold the Suit land on 19.2.1998 to defendant no. 1 for consideration of Rs. 31,200/-. Defendant nos. 3 and 4 have not relinquished or abandoned their share in favour of defendant no. 2. Defendants have denied the alleged agreement dated 04.08.1994. They have further denied to receive Rs. 40,000/- from the plaintiff. They have denied to hand over the Suit land. Defendant no. 1 has also filed a Written Statement before the Trial Court. 31,200/-. Defendant nos. 3 and 4 have not relinquished or abandoned their share in favour of defendant no. 2. Defendants have denied the alleged agreement dated 04.08.1994. They have further denied to receive Rs. 40,000/- from the plaintiff. They have denied to hand over the Suit land. Defendant no. 1 has also filed a Written Statement before the Trial Court. The Trial Court has disbelieved the story framed by the plaintiff in the form of plaint allegations and found that those allegations were not proved. It held; (1) 40,000/- rupees loan was neither advanced by Arun Kumar nor received by Jagannath. (2) The alleged agreement dated 14.08.1994 was not proved. (3) The sale deed dated 09.02.1998 executed by Jagannath, defendant no. 2, Mahila Soni, defendant no. 3, Mahila Ramdevi, defendant no. 4 in favour of plaintiff on 9.2.1998 in favour of defendant no. 1 was valid and accordingly the Trial Court dismissed his Suit. 3. The First Appellate Court has dealt with all issues in detail besides the issue; as to whether the trial Court proceeded with the trial despite order of the High Court dated 27.08.2011 passed in Civil Revision No. 701/2001 whereby the trial Court proceedings were stayed. In paragraphs 9, 10 and 11, the First Appellate Court has in detail considered the submissions and negated the same for the reasons; in another Civil Revision No. 501/2000, the High Court had ordered on 9.10.2000 and 29.06.2001 as an interim measure to maintain status-quo as regards Suit property and ordered for the disposal of the Civil Revision within six months. On later on dated 17.07.2002, the High Court found that the revision is not maintainable in view of amendment in the C.P.C. and dismissed the same. The aforesaid revision was against the order dated 09.09.2008 dismissing the application under Order 39 Rule 1 and 2 of C.P.C. confirmed in Miscellaneous Appeal No. 1/98 vide order dated 29.03.2000. 4. Against another order dated 07.10.2001 under Order 13 Rule 2 C.P.C. another revision was filed vide Civil Revision No. 701/2001 before the High Court wherein order dated 28th August, 2001 was passed staying the further proceedings of the Civil Suit. The Trial Court in compliance of the High Court order dated 17.07.2002 had decided the Civil Suit within six months and passed the judgment and decree on 1st February, 2003. The Trial Court in compliance of the High Court order dated 17.07.2002 had decided the Civil Suit within six months and passed the judgment and decree on 1st February, 2003. The plaintiff never informed the Court as regards the final outcome of Civil Revision No. 701/2001. 5. The First Appellate Court under circumstances found that the trial Court has decided the Civil Suit in compliance of this Court's order dated 17.07.2002 passed in Civil Revision No. 501/2000. In the opinion of this Court the Trial Court was fully justified having decided the Civil Suit on 1.02.2003 in compliance of High Court order dated 17.7.2002 passed in Civil Revision No. 501/2000. It is pertinent to mention that no such objection was raised by the plaintiff/appellant while the Suit was in progress before the trial Court and decided on 1.2.2003. For the first time, such technical objection was raised before the First Appellate Court which according to this Court was of no substance. Even on merits, the First Appellate Court has dealt with issues in detail. It has been found that though stamp paper shown to have purchased on 30.12.1993 whereas alleged agreement was executed on 14.02.1994 which does not bear the signature of the plaintiff. Besides on the over leaf portion, the identification of defendant no. 1 Jagannath is said to have been done on 12.02.1994 whereas the alleged agreement is said to be of 14.02.1994. Hence, the conclusion of the First Appellate Court that documents appears to be suspicious is fully justified. That apart, for want of registration, even the said agreement, said to be mortgaged agreement has no evidential value. Further if this agreement is said to be sale agreement but since the suit is not for a specific performance for the agreement no relief could be granted to the plaintiff. Hence on either eventually the alleged agreement was of no consequence besides, the fact that the agreement was found to be suspicious in nature. 6. Both the Courts below even on facts have found that there is no documentary evidence on record much less revenue record to establish possession of the plaintiff over the Suit land. In paragraph 17 entire evidence is dealt with. On the other hand, the Trial Court and the First Appellate Court found that after execution of sale dated 09.02.1998 in favour of plaintiff by defendant nos. In paragraph 17 entire evidence is dealt with. On the other hand, the Trial Court and the First Appellate Court found that after execution of sale dated 09.02.1998 in favour of plaintiff by defendant nos. 2, 3 and 4 on receipt of consideration amount, plaintiff was put in possession of the Suit land. His continuous possession over the Suit is confirmed by the defence witnesses. In view of the aforesaid pure findings of the fact recorded by the Courts below, this Court finds no justification to interfere with the findings so recorded. Therefore, no question of law much less substantial question of law is involved in this appeal. Appeal sans merits, is hereby dismissed.