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Madhya Pradesh High Court · body

2013 DIGILAW 1522 (MP)

Amanat Ullah Qureshi v. Navav Singh (D)

2013-12-05

SHEEL NAGU

body2013
ORDER 1. This judgment shall govern disposal of Second Appeal No. 833/2006 and Second Appeal No.82/2007. 2. By these second appeals filed under section 100 of the Code of Civil Procedure, the concurrent findings of both the Courts below in decreeing the suit in favour of the plaintiffs are under challenge. 3. Plaintiffs filed suit for declaration of ownership and restoration of possession in respect of houses No.253 and 92 situated in Halka No.14, Pan-Patte-Ki-Goth, Lashkar, Gwalior. 4. Trial Court though decreed the suit in respect of declaration of ownership in favour of the plaintiffs, but declined the prayer for restoration of possession. The judgment and decree of the trial Court was assailed by the plaintiffs as well as the defendants in two separate appeals, i.e., Civil Appeal No.15-A/2006 by the defendants and Civil Appeal No.35-A/2006 by the plaintiffs. 5. Appeal of the plaintiff bearing no.35-A/2006 was accepted whereas the defendants’ appeal bearing CA No.15A/2006 was dismissed. Whereas the first appellate Court, while confirming the decree of declaration of ownership in favour of the plaintiffs, also directed for restoration of possession. 6. Basic facts giving rise to the instant second appeals are that the suit houses were purchased by Ballumal Son of Kotumal on 23.02.1962 vide Ex.P/9 on being auctioned by the custodial department. Thereafter, said Ballumal sold the said suit houses by Ex.P/4 to Dhaniram. On death of Dhaniram, the houses devolved to the widow and sons of Dhaniram. Widow and sons of Dhaniram alienated the said suit houses by sale deed Ex.P/1 in favour of Thakur Hakim Singh. The said suit houses were further alienated by Thakur Hakim Singh to deceased/plaintiff Nawab Singh by Ex. P/6. 7. Per contra, the defendants urged that on the basis of Ex. D/2 to Ex.D/11, the suit houses in question were purchased from the custodial department by Shafiqunnisa. Defendants further contended that Shafiqunnisa inducted Dhaniram as tenant in the said suit houses. It was further urged by the defendants that the suit for eviction was brought by Shafiqunnisa against Dhaniram and decrees vide Ex. P/5 and Ex. P/6 were passed in favour of Shafiqunnisa. 8. Courts below were, thus, required to deal with the question as to whether the suit houses were purchased by Ballumal in auction conducted by the custodial department or were purchased by Shafiqunnisa in the said auction. Courts below found on the basis of Ex. P/5 and Ex. P/6 were passed in favour of Shafiqunnisa. 8. Courts below were, thus, required to deal with the question as to whether the suit houses were purchased by Ballumal in auction conducted by the custodial department or were purchased by Shafiqunnisa in the said auction. Courts below found on the basis of Ex. P/9 (c), which was sale certificate issued by the custodial department, that the suit houses were sold to Ballumal for a consideration of Rs. 1800/- on 25.4.1962 by the custodial department, which was exempted from registration and stamp duty. It was further found that by Ex. D/2, which was an order of the Assistant Custodial, Gwalior dated 30.7.1959, Shafiqunnisa had offered Rs. 1700/- for House No.10/3/49 in the auction conducted by the custodial department and said Shafiqunnisa though deposited Rs. 1000/-, but on account of failure of depositing the balance amount of Rs. 700/-,the auction could not be confirmed and was, thus cancelled. Subsequently, the defendants urged that the balance amount of Rs.700/- was deposited on 15.9.1960. The said order dated 30.7.1959 further provided that in case the balance amount of Rs. 700/- is deposited by 15.10.1960, the sale conducted in the auction in favour of Shafiqunnisa could be revived. 9. Courts below found that there is no evidence on record that the said balance amount of Rs. 700/- was ever deposited. The Courts also found that there is no evidence to substantiate that any sale certificate was isued in favour of Shafiqunnisa in regard to the said properties bearing House No. 10/3,4,9. 10. The Courts, thus, were faced fact situation that the entire case of the defendants rested upon Ex. D/2,which was the order of the custodial department dated 30.7.1959, whereby highest bid by Shafiqunnisa of Rs. 700/- was accepted subject to depositing of the entire amount and since only Rs.1,000/- was deposited, the sale certificate could not be issued in favour of Shafiqunnisa. 11. On the above factual matrix, the first appellate Court has rightly passed the decree in favour of the plaintiffs of declaration of ownership and restoration of possession in regard to the said houses No. 253 and 92 situated in Halka No.14, Pan-Patte-Ki-Goth, Lashkar, Gwalior. 12. This Court does not find any material irregularity or substantial injustice having been rendered. 13. On the above factual matrix, the first appellate Court has rightly passed the decree in favour of the plaintiffs of declaration of ownership and restoration of possession in regard to the said houses No. 253 and 92 situated in Halka No.14, Pan-Patte-Ki-Goth, Lashkar, Gwalior. 12. This Court does not find any material irregularity or substantial injustice having been rendered. 13. Before parting, it is essential to deal with the Interlocutory Application No. 3603/2013 under Order 41 Rule 27 read with section 151, CPC preferred by the defendants to bring on record the additional evidence of Receipt No. 30 dated 15.9.1960, by which it is said that the balance amount of auction money of Rs.700/- was deposited by Shafiqunnisa. 14. The reason assigned for not producing the said document dated 15.9.1960 before any of the Courts below, is that the defendants had no knowledge about the said documents having been submitted in Civil Suit No. 332-A/1964 ( Shafiqunnisa v. Bitto Bai). The said reason assigned does not demonstrate that due diligence was exercised and yet the said evidence could not come to the knowledge of the defendants. The pre-requisites of exercise of power under Order 41 Rule 27 (1) (aa) of CPC are not satisfied and, therefore the said IA No. 3606/2013 is considered and rejected. 15. In view of the above, neither any of the proposed substantial questions of law nor any new ones arise for consideration. Accordingly, these second appeals preferred by the defendants deserve to be and are hereby dismissed in limine sans cost.