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2013 DIGILAW 305 (MP)

Gumani v. Kusum Kumari

2013-03-06

S.K.Gangele

body2013
JUDGMENT 1. Defendants/appellants have filed this appeal against the judgment and decree dt.18th November 2010 passed in Civil Suit No.12-A/2010. 2. Plaintiff filed a suit for permanent injunction and declaration. She pleaded that a plot situate at Lateri District Vidisha was of the ownership of Omkar S/o Gangola and Khema S/o Deva Chamar. Both the persons sold the plot to Sheelchand Jain S/o Pyarelal. After the death of Sheelchand Jain his legal heirs sold the plot to the plaintiff through their power of attorney holder by a registered sale deed dt.13.9.1985 and the possession was also delivered. A house was also constructed over the aforesaid plot. The defendants denied the ownership of the plaintiff. Plaintiff pleaded that the defendants tried to dispossess the plaintiff, hence, the suit is filed. 3. Defendants denied the pleadings of the plaintiff. They denied the fact that the suit land was part and parcel of Survey No.1103 prior to 1972-73. They denied the execution of sale deed in favour Sheelchand Jain. They further pleaded that the suit land was of joint ownership of Joint Hindu Family of Defendant No.1. They also denied the fact of construction over the land. They further pleaded that Lakhmichand had been working in Sub Treasury, Tahsil Lateri in the year 1968 and he had obtained the sale deed by playing fraud. Khushiya was the owner of the land and defendant No.1 became the owner of the land being the heir of Khushiya. The defendants further pleaded that the suit is not maintainable. 3. The plaintiff in support of his claim examined Hari Om Sharma (PW 1), who deposed that he was working in Dy.Registrar Office Lateri and certain documents Ex.P/1, P/2, P/3 and P/4 were executed in the office because the copy of the same are in the office. Tej Singh Baghel (PW 2) deposed that he was working as Revenue Inspector since 2005 and he had inspected the spot and submitted his representation. Lakhmichand (PW 4) in his deposition deposed that he is the power of attorney holder of Smt. Kusum Kumari Jain. He further deposed that Sheelchand Jain purchased the land by registered sale deed dated 22.5.1968 from Omkar S/o Gangola and Khema S/o Deva Chamar and he had also taken possession of the land. After death of Sheelchand, his heirs executed power of attorney in my favour, which is Ex. He further deposed that Sheelchand Jain purchased the land by registered sale deed dated 22.5.1968 from Omkar S/o Gangola and Khema S/o Deva Chamar and he had also taken possession of the land. After death of Sheelchand, his heirs executed power of attorney in my favour, which is Ex. P/11 and on the basis of power of attorney I executed sale deed on 13.9.1985 in favour of Kusum Kumari Jain and sold the land in favour of the plaintiff. The house was constructed over the said plot. Kale Khan wax examined as P.W.5 and Komal Prasad is examined as PW 6. Defendants in their support examined Gumani (DW 1). 4. On the basis of appreciation of evidence oral and documentary and pleadings, the trial Court has held that Omkar and Khema sold the suit land in favour of Sheelchand Jain by a registered sale deed date 22.5.1968 and thereafter the power of attorney holder of legal heirs of Sheelchand Jain sold the land to the plaintiff on 13.9.1985 by a registered sale deed. The survey numbers of the land were changed as 1006/01 and 1006/02 and husband of the plaintiff constructed seven rooms over the suit land, hence plaintiff is the owner of the suit land. 5. The learned counsel for the defendants submitted that the trial Court has committed an error of law in recording the finding that the plaintiff got ownership of the land. However, the sale deed was obtained after practicing the fraud and the suit is barred on the principle of res judicata. In support of her contentions, learned counsel for the appellants relied on the following judgments: (i) Srimati Raj Lakshmi Dasi and others v. Banamali Sen and others – AIR 1953 Sup.Court 33. (ii) Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another – AIR 1960 SC 941 . (iii) Baburao Bhavadu Sonar v. Punamchand Onkardas Nahata and another – 1969 (3) SCC 670 . (iv) The Collector of Lakhimpur v. Bhuban Chandra Dutta – (1972) 4 SCC 236 . (v) Shivnarain Ramnarayan v. Nagar Palika Parishad Garoth and another – 1988 MPLJ 475 . (vi) Ramadhar Shrivas v. Bhagwandas – 2006(I) JLJ 1 = (2005) 13 SCC 1 . (vii) Kamal Singh and another v. Roop Singh (since dead) through L.Rs. and another – 2011 RN 307 = 2011 (3) MPLJ 333 . 6. (v) Shivnarain Ramnarayan v. Nagar Palika Parishad Garoth and another – 1988 MPLJ 475 . (vi) Ramadhar Shrivas v. Bhagwandas – 2006(I) JLJ 1 = (2005) 13 SCC 1 . (vii) Kamal Singh and another v. Roop Singh (since dead) through L.Rs. and another – 2011 RN 307 = 2011 (3) MPLJ 333 . 6. Argument of the learned counsel in regard to res judicata could not be accepted because on the aforesaid point no issue was framed by the trial Court and when the issue was not framed by the trial Court, this Court can not decide the same that whether the present suit was barred on the principle of res judicata on the basis of earlier Civil Suit No.33-A/1999. 7. In regard to second point, the execution of sale deed was proved. It was proved that subsequently in the revenue record, the name of the plaintiff was also entered. 8. From the oral and documentary evidence, it has been proved that the plaintiff got possession over the suit land and the husband of the plaintiff constructed rooms on the said land. The defendants in their written statement pleaded that Omkar and Khema had been looking after the agricultural field of Lakhmichand and Lakhmichand executed the sale deed in the guise of executing power of attorney and got their thumb impression over the sale deed dated 22.5.1968. These pleadings have not been found proved by the trial Court. The defendants themselves admitted the fact that Khema and Omkar affixed their thumb impression over the sale deed date 22.5.1968. The execution of the sale deed has been found proved in favour of Lakhmichand and after the death of Lakhmichand, power of attorney holder of the legal heirs of Lakhmichand executed the sale deed in favour of the plaintiff. Hence, the title of the plaintiff has been proved. The defendants failed to prove the fact that the Lakhmichand practices fraud with Khema and Omkar and got the registered sale deed executed in his favour. In such circumstances, in my opinion, the trial Court has rightly held that the plaintiff has proved the factum of ownership. The possession of the plaintiff has also been found proved over the suit land after appreciation of oral and documentary evidence by the trial Court in accordance with law. Hence, in my opinion, the trial Court has rightly passed the decree of declaration and permanent injunction. The possession of the plaintiff has also been found proved over the suit land after appreciation of oral and documentary evidence by the trial Court in accordance with law. Hence, in my opinion, the trial Court has rightly passed the decree of declaration and permanent injunction. I do not find any merit in this appeal. It is hereby dismissed. Parties are directed to bear their own costs.