Sai Construction Thr vs Dhanno Bai on 24 February, 2025

[Cites 28, Cited by 0]

Madhya Pradesh High Court

Sai Construction Thr vs Dhanno Bai on 24 February, 2025

This first appeal has been preferred by the appellant under Section 96 of Civil Procedure Code, 1908 (in short CPC) against the impugned judgment and decree dated 10.12.2016 passed by 4 th Additional District Judge, Gwalior in Civil Suit No.51A/2016, whereby civil suit filed by respondents No.1 and 2/plaintiff has been partly decreed by holding that impugned registered sale deed dated 23.8.2010 executed by plaintiff Dhannobai is null and void.

2. Admitted facts between the appellant and respondents No.1 and 2 are that registered sale deed dated 23.8.2010 has been executed by Dhannobai in favour of respondents with consent of respondent No.2.

Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 2 FA NO.16/2017

Respondent No.1 Dhannobai belongs to schedule caste Sahariya (Adivasi), hence permission to alienate the suit property was granted by the competent authority vide order dated 24.1.2016. At the time of execution of sale deed consideration was paid by appellant through several cheques, out of them one cheque bearing No.746448 of Rs.10,00,000/- was given in the name of respondent No.2 but except that cheque, remaining cheques were honoured by the Bank and payment was made to the petitioner, but the aforesaid cheque of Rs.10,00,000/- was returned with the endorsement of "insufficient fund" and the amount of cheque was not paid and the cheque was dishonoured.

3. Brief facts of the case of respondents No.1 and 2/plaintiffs before the Trial Court are that despite serving the notice to defendant No.1, the amount of Rs.10,00,000/- issued through cheque No.746448 was not paid to them. After dishonour of the cheque, plaintiff No.2 has sent a registered notice to defendant/appellant on 21.4.2011, but same was unserved. Plaintiffs are ready to return the consideration amount of Rs.50,00,000/- to the appellant/defendant No.1 as the defendant No.1 has not paid sale consideration as per the terms and conditions of sale deed in due time and due to non-payment of full consideration, sale deed dated 23.8.2010 executed by the plaintiff in favour of defendant No.1 became null and void. Defendants committed fraud with the plaintiff due to which plaintiff No.1 was deprived from sale amount, hence defendants did not have any title and ownership of the suit land, therefore, plaintiffs have filed suit for relief of permanent injunction.

Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 3 FA NO.16/2017

4. Appellant/defendant No.1 opposed the same, denied all these plaint averments by stating in his written statement that by mistake amount of Rs.10,00,000/- could not be deposited in the Bank, hence cheque was dishonoured, but defendant No.1 was always ready to pay the amount to the plaintiffs on return of the chdeque to defendant No.1 and after dishonour of the cheque, defendant No.1 requested the plaintiff to return the cheque and received the amount in cash but the plaintiffs were not ready to return the cheque and they were demanding more money with malafide intention. The suit is not maintainable as consideration as the consideration was paid and possession of the suit land was handed over to the appellant at the time of execution of sale deed and the suit was neither duly valued nor adequate Court fees has been paid in accordance with rules, therefore, the civil suit filed by the plaintiffs deserves to be dismissed.

5. Respondent No.3/defendant No.2 also denied all these averments of plaints by stating in his written statement that the permission to alienate the suit property was granted, but the plaintiffs have no title over the suit property. Plaintiffs have failed to file any relevant document to establish their title and possession over the suit land. The land in question is not the ancestral property of plaintiff No.1, it was granted on lease to the landless persons. Plaintiffs have not disclosed that from where and from whom the land in question was received and she became owner. Therefore, they are not entitled to execute the sale deed in favour of defendant No.1. Plaintiffs and defendant No.1 both have filed this collusive suit. Plaintiff No.1 Dhannobai belongs to member of schedule tribe community. The State has filed the counter-claim before the Trial Court but same was Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 4 FA NO.16/2017 rejected. The aforesaid transaction of sale has been done in violation of Section 165 (6) (c) of M.P. Land Revenue Code, 1959 (in short MPLRC), therefore, the sale deed is void ab initio and defendant No.1 does not accrued any title over the suit land.

6. On the basis of aforesaid pleadings, the Trial Court framed the issues and both the parties are directed to adduce their evidence. After completing the evidence of both the parties, the Trial Court while appreciating the evidence available on record passed the impugned judgment and decree, whereby the suit of the plaintiff was partly decreed. Being aggrieved by the aforesaid, the appellant/defendant has preferred this first appeal.

7. Learned counsel for the appellant contended that impugned judgment and decree passed by the Trial Court is contrary to law and facts available on record. The Trial Court has spinned out a new case, which was not pleaded by either party and in that regard there is no iota of evidence. Order dated 24.1.2006 passed by the Collector was not the subject matter of suit property, neither in this regard any issues were framed by the Trial Court, but wrong perverse findings has been given by the trial Court. Ownership of Dhannobai was never in dispute. Neither any issues in that regard has been framed nor the evidence was led by the parties, therefore, the aforesaid findings given by the Trial Court that Dhannobai was not the owner of the suit property is wrong, perverse and also beyond the jurisdiction. It is settled position of law that non-payment of consideration or less consideration, sale deed cannot be said as null and void, therefore, the suit filed by the plaintiff is not maintainable but the plaintiff's suit was Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 5 FA NO.16/2017 wrongly been decreed, it deserves to be set aside.

8. Per contra, learned counsel for respondents No.1 and 2 opposed the prayer by stating that respondent No.1 Dhannobai is the absolute owner, possession holder and title holder of the suit property, therefore, she has valid right to sell the suit property, but the appellant has played fraud on her and not paid the full consideration, therefore, the sale deed dated 23.8.2010 is null and void and this appeal deserves to be dismissed.

9. Respondent No.3/State of M.P. also opposed the prayer and prayed for its rejection by submitting that collusive suit has been filed by the appellant and respondents No.1 and 2. The suit land belongs to government. Respondent No.1 Dhannobai was not the real owner or titleholder of the suit property, therefore, she was not having any right to execute the alleged sale deed in favour of appellant and the permission of sale has been fraudulently obtained in violation of provisions of Section 165(6)(c) of MPLRC, therefore, sale deed in question is void and present appeal being merit-less liable to be dismissed.

10. Both the parties are heard at length and perused the entire record with due care.

11. It is undisputed that respondent No.1 has executed a registered sale deed dated 23.8.2010 in favour of appellant. It is also admitted fact that amount of Rs.10,00,000/- as a consideration was not paid to respondent No.1/plaintiff, as the cheque issued by appellant has been dishonoured.

12. Counsel for the appellant contended that after executing the Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 6 FA NO.16/2017 registered sale deed, the title of the suit property has been transferred in favour of the appellant, despite non-payment of some part of consideration amount. Vendor/respondent No.1 has only remedy for seeking relief for payment of rest of the amount. He placed reliance upon the judgment of Hon'ble Apex Court in the case of Premnarayan & Anr. vs. Kunwarji & Anr. reported in AIR 1993 MP 162 and Shakuntala Tiwari (Smt.) vs. Mohammad Ramjan reported in I.L.R. [2012] M.P. 160.

13. But in the instant matter, respondent No.3/State raised a specific plea that plaintiffs have no right and title over the suit property and they did not file any relevant document to establish their right over the suit property and the payment was condition precedent for transferring the title. Collector, Gwalior has granted permission (Annexure P/10) for sale of property in dispute as per terms and conditions of order (Annexure P/10). No prior intimation has been sent to the Collector, Gwalior regarding sale of land in question to the appellant. From perusal of order dated 24.1.2006 (Annexure P/10) passed by Collector, Gwalior, permission under Section 165(6)(c) of MPLRC to sell the suit property has been granted to the plaintiff Dhannobai under three conditions:

1- वविक्रय ककी गययी भभूममि उप पपंजयीयक गविग्‍वामलियर ककी गग्‍वाईड लिग्‍वाइनविरर्ष 2005-06 कके आधग्‍वार पर वविकक्रत ककी जग्‍वाविकेगयी और धनरग्‍वामश कग्‍वा भभुगतग्‍वान चचैक/बबैंक डग्‍वापप्‍ट सके आविकेकदिकग्‍वा तथग्‍वा कलिकेकप्‍टर कके सपंयभुकत खग्‍वातके मिमें रग्‍वाषषष्‍ट्रीयककृत बबैंक मिके खग्‍वातग्‍वा खभुलिविग्‍वाकर जमिग्‍वा करग्‍वायग्‍वा जग्‍वाविके। तथग्‍वा उसककी पग्‍वास बभुक पग्‍वापत हहोनके पर Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 7 FA NO.16/2017 हष्‍ट्री पपंजयीयन ककी कग्‍वायर्षविग्‍वाहष्‍ट्री ककी जग्‍वाविकेगयी।

2- आविकेकदिकग्‍वा शयी परमिग्‍वालि मसपंह पभुत्र सवि शयीरणवियीरमसपंह जहो वितर्षमिग्‍वान मिमें अनभुबपंध कतग्‍वार्ष हचै उनहमें ककनहष्‍ट्री कग्‍वारण विश वविक्रय करनके मिमें असमिथर्ष हहोतयी हचै तहो उकत भभूममि उनककी सहमिमत सके अनभुबपंध पत्र मनरसत करतके हभुए ककनहष्‍ट्री अनय वयवक्ति कहो वविक्रय कर सककेगयी लिकेककन इस भभूममि कके वविक्रय सके पभूविर्ष इस नयग्‍वायग्‍वालिय कहो सभूचनग्‍वा दिकेनयी आविशयक हहोगयी। इस अभग्‍वावि मिमें समपग्‍वाकदित ककयग्‍वा गयग्‍वा वविक्रय पत्र सवित: शभूनय मिग्‍वानग्‍वा जग्‍वाविकेगग्‍वा और उकत वविक्रय पत्र कके आधग्‍वार पर अनय कहोई कग्‍वायर्षविग्‍वाहष्‍ट्री नहष्‍ट्रीपं ककी जग्‍वा सककेगयी।

3- वविकक्रत भभूममि ककी रग्‍वामश सके यकदि कहोई ककृवरर्ष यपंत्र प्‍टकेकप्‍टर एविपं भभूममि क्रय ककी जग्‍वातयी हचै तहो उसककी वविमधवित सभूचनग्‍वा अनभुवविभग्‍वागयीय अमधकग्‍वारष्‍ट्री रग्‍वाजसवि एविपं तहसयीलिदिग्‍वार गविग्‍वामलियर कके सग्‍वाथ हष्‍ट्री इस नयग्‍वायग्‍वालिय कहो भयी दिष्‍ट्री जग्‍वानग्‍वा आविशयक हहोगग्‍वा।

14. The Hon'ble Apex Court in the case of Kanwar Raj Singh (deceased) through legal heirs vs. GEJO (deceased) through legal heirs & Ors. has held that in terms of Section 47 of Registration Act, 1908, a registered sale deed, where the entire consideration is paid would operate from the date of its execution. In the instant case, the entire sale consideration was not paid, therefore, as per Section 47 of Registration Act, 1908 the sale deed would not operates from its date of execution.

15. The Hon'ble Apex Court in the case of Kewal Krishan vs. Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 8 FA NO.16/2017 Rajesh Kumar & Ors. passed in Civil Appeal Nos.6989-6992 of 2021 order dated 22.11.2021 also held that payment of price is an essential part of sale covered by Section 54 of Transfer of Property Act. If sale deed in respect of an immovable property is executed without payment of price and if it does not provide for payment of price at future date which is not a sale at all in the eyes of law and its no legal effect, therefore, such sale would be void and it will not effect the transfer of immovable property.

16. The Trial Court has relied upon Judgment passed by Supreme Court in the case of Vidhyadhar Vs. Manikrao reported in AIR 1999 SC 1441. The Supreme Court in the case of Vidhyadhar (Supra) has held as under :

"35. Even if the findings recorded by the High Court that the plaintiff had paid only Rs 500 to Defendant 2 as sale consideration and the remaining amount of Rs 4500 which was shown to have been paid before the execution of the deed was, in fact, not paid, the sale deed would not, for that reason, become invalid on account of the provisions contained in Section 54 of the Transfer of Property Act, 1882 which provide as under:

"54. 'Sale' is a transfer of ownership in exchange for a price paid or promised or part- paid and part-promised. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 9 FA NO.16/2017 property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."

36. The definition indicates that in order to constitute a sale, there must be a transfer of ownership from one person to another, i.e., transfer of all rights and interests in the properties which are possessed by that person are transferred by him to another person. The transferor cannot retain any part of his interest or right in that property or else it would not be a sale. The definition further says that the transfer of ownership has to be for a "price paid or promised or part-paid and part-promised". Price thus constitutes an essential ingredient of the transaction of sale. The words "price paid or promised or part-paid and part-promised"

indicate that actual payment of the whole of the price at the time of the execution of sale deed is not a sine qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs 100, the sale would be complete.

37. There is a catena of decisions of various High Courts in which it has been held that even if the whole of the price is not paid, the transaction of sale will take effect and the title would pass under that transaction. To cite only a few, in Gayatri Prasad v. Board of Revenue it was held that non-payment of a portion of the sale price would not affect validity of sale. It was observed that part-payment of consideration Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 10 FA NO.16/2017 by the vendee itself proved the intention to pay the remaining amount of the sale price. To the same effect is the decision of the Madhya Pradesh High Court in Sukaloo v. Punau.

38. The real test is the intention of the parties. In order to constitute a "sale", the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in praesenti or in future. The intention is to be gathered from the recital in the sale deed, the conduct of the parties and the evidence on record.

Thus, if the facts and circumstances of the case are considered, then it is clear that the intention of the defendant/respondent was not to pay the price either in praesenti or in future. The cheque was given by way of consideration amount, which never got encashed."

17. Therefore, it is proved that appellant and respondent No.1 prior to executing the registered sale deed (Annexure P/1) did not give any prior intimation to the Collector, Gwalior regarding sale of aforesaid suit property. Therefore, it is also clear that payment of consideration amount was made condition precedent and on the basis of aforesaid terms and conditions, permission to sell the suit property was granted by the Collector, Gwalior vide order (Annexure P/10) and the aforesaid condition was not complied with, therefore, the sale cannot be treated as complete sale. Appellant before the Trial Court examined a witness Mithlesh Singh Yadav (DW-1), but did not state that prior to execution of sale deed Ex.P/1, any intimation was given to the concerned Collector.

18. Learned counsel for the appellant contended that the plaintiff Dhannobai did not appear in the witness box before the Trial Court to Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 11 FA NO.16/2017 examine herself in evidence, therefore, her allegations against the appellant that the appellant committed fraud with her and full consideration was not paid are not proved and adverse influence should be drawn against the plaintiff. He placed reliance upon the judgment of Hon'ble Apex Court and the Co-ordinate Bench of this Court in the case of Vidhyadhar Vishnupant Ratnaparkhi vs. Manikrao Babarao Deshmukh & Anr. reported in AIR 1999 SC 1441, Moolchand vs. Radha Sharan & Anr. reported in 2006 (2) MPLJ 600, Laxmibai (dead) through legal heirs & Anr. vs. Bhagwantbuva (dead) through legal heirs & Ors. reported in AIR (SC) Civil 904.

19. The Trial Court has rightly appreciated the facts of the case in its proper perspective. It is the case of the appellant, that in lieu of consideration amount, the cheque was given which subsequently stood dishonoured as a result the consideration amount remained unpaid. If the aforesaid aspect is considered then it is clear that the intention of the respondent was dishonest right from the very inception and his intention was to play fraud on the appellant as well as not to pay the price of the land. The Supreme Court in the case of Meghmala v. G. Narasimha Reddy, reported in (2010) 8 SCC 383 has held as under :

"28. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu v. Jagannath.) In Lazarus Estates Ltd. v. Beasley the Court Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 12 FA NO.16/2017 observed without equivocation that : (QB p.712) "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."

29. In A.P. State Financial Corpn. v. GAR Re-

Rolling Mills and State of Maharashtra v. Prabhu this Court observed that a writ court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the courts are obliged to do justice by promotion of good faith. "Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law."

30. In Shrisht Dhawan v. Shaw Bros. it has been held as under : (SCC p. 553, para 20) "20.

Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct."

31. In United India Insurance Co. Ltd. v.

Rajendra Singh this Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.

32. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, Union of India v. M. Bhaskaran, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav, State of Maharashtra v. Ravi Prakash Babulalsing Parmar, Himadri Chemicals Industries Ltd. v. Coal Tar Refining Co. and Mohd. Ibrahim v. State of Bihar.) Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 13 FA NO.16/2017

33. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression "fraud" involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. [Vide Vimla (Dr.) v. Delhi Admn., Indian Bank v. Satyam Fibres (India) (P) Ltd., State of A.P. v. T. Suryachandra Rao, K.D. Sharma v. SAIL and Central Bank of India v.

Madhulika Guruprasad Dahir.]

34. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or

(iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Chengalvaraya Naidu, Gowrishankar v. Joshi Amba Shankar Family Trust, Ram Chandra Singh v. Savitri Devi, Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education and Ashok Leyland Ltd. v. State of T.N.)

35. In Kinch v. Walcott it has been held that:

"... mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 14 FA NO.16/2017 judgment was obtained by perjury". Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury.

36. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of nonexecuting of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est."

20. Section 25 of Contract Act reads as under :

"25. Agreement without consideration void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law.

--An agreement made without consideration is void, unless--

(1) it is expressed in writing and registered under the law for the time being in force for registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other; or unless (2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless (3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 15 FA NO.16/2017 the law for the limitation of suits.

In any of these cases, such an agreement is a contract.

Explanation 1.--Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made.

Explanation 2.--An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent to the promisor was freely given."

21. Although plaintiff Dhannobai was not examined before the Trial Court, but the fact that payment of entire consideration amount is only based upon the documentary evidence. It is admitted fact that amount of Rs.10,00,000/- was not paid to the plaintiff Dhannobai due to dishonour of the cheque. Apart from above, the aforesaid fact is also proved by cheque (Annexure P/2), deposit receipt (Annexure P/3), Bank dishonour report (Annexure P/5), postal receipt (Annexure P/7) and notice (Annexures P/6 and P/8). All these facts based upon the documentary evidence which is more reliable than the oral evidence, therefore, in view of above, non-examination of plaintiff Dhannobai is not fatal for the case of the plaintiff."

22. Although respondent No.3/State has challenged the title of the plaintiff/respondent No.1 Dhannobai over the suit property but his counterclaim was dismissed by the Trial Court and the order of dismissal of counter-claim was never challenged by respondent No.3/State before any higher Court, therefore, it has attained finality. Respondent No.3 also contended that plaintiff has to establish her Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 16 FA NO.16/2017 title over the suit land and the weakness of the defendant case is not to be a ground for declaring title of the plaintiff but it is remarkable that Dhannobai did not file this civil suit for declaration of title or cancellation of sale deed. He placed reliance upon the judgment in the case of Union of India & Ors. vs. Sasavi Co-op. Housing Society Ltd. & Ors. reported in (2014) 2 SCC 269, Rashid Khan & Anr. vs. State of M.P. & Ors. reported in 2011 (3) MPLJ 575, LIC of India & Anr. vs. Ram Pal Singh Bisen reported in (2010) 4 SCC 491, Punjab Urban Planning & Development Authority vs. M/s Shiv Saraswati Iron & Steel Re-rolling Mills reported in 1998 (2) MPWN 187.

23. It is next contended that the Trial Court was confused in its judgment to the question raised in the pleadings and the Trial Court is having no jurisdiction to grant relief, which was not claimed and which does not follow the facts and cause of action alleged in the plaint.

24. Counsel for appellant contended that the Trial Court has spinned out a new case which was not pleaded by any party. Therefore, the evidence cannot be looked into beyond the pleadings and question which does not arise from the pleading and which was not the subject matter of any suit cannot be decided by the Trial Court. He placed reliance upon the judgment in the case of Moolchand vs. Radha Sharan & Anr. reported in 2006 (2) MPLJ 600, Nandkishore Lalbhai Mehta vs. New Era Fabrics Pvt. Ltd. & Ors. reported in (2015) 9 SCC 755, Sri Shivaji Balaram Baibatti vs. Sri Avinash Maruthi Pawar reported in (2018) 11 SCC 652.

Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 17 FA NO.16/2017

25. But it should be remarkable that the plaintiff/respondent No.1 Dhannobai did not file this suit for decree of declaration of title but filed this suit for decree of cancellation of sale deed (Annexure P/1), therefore, in the instant case learned Trial Court ought to have not examined the title of the plaintiff Dhannobai over the suit land. From perusal of order for permission to sell the land in question (Annexure P/3) it reveals that Collector, Gwalior before passing the aforesaid order had already duly verified that plaintiff No.1 Dhannobai is the owner and title holder of the suit property. Mithilesh Singh Yadav (DW-01) also admits in his cross-examination that plaintiff Dhannobai is the owner and title holder of suit property, therefore, in the instant matter, plaintiff Dhannobai is not require to establish her title over the suit land.

26. So far as the objection regarding the non-compliance of provisions of Section 165 (6)(a) of MPLRC, 1959 which reproduced as under:

"11. In view of aforesaid, Section 165(6) and 165 (6-a) of M.P. Land Revenue Code are summed up as under:-

(i) Land of tribal in notified scheduled area shall not be transferred or transferable by way of sale or otherwise or as consequence of loan transaction to a non-tribal. Collector has no jurisdiction to grant permission in aforesaid case of transfer's referred above.

(ii) In non notified areas i.e. rural areas and villages, tribal can transfer his land to a non-tribal after seeking written permission of Collector.

(iii) Explanation of Section 165 (6) M.P. Land Revenue Code carves out an exception that word Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 18 FA NO.16/2017 "otherwise" mentioned in said sub Section shall not include lease. This means that in notified scheduled areas or in non-notified rural areas, there is no bar for entering into lease between tribals and non-tribals and permission of Collector for lease is not required.

(iv) In scheduled notified areas, non-tribal cannot transfer his non-agricultural land i.e. land for purpose of dwelling house, educational purpose, commercial purpose, industrial purpose (diverted land) by sale or otherwise or as a consequence of loan transaction to non-tribal without written permission of Collector. In simple words, diverted land of non-tribals cannot be transferred to non-tribals without permission of Collector if located in notified scheduled areas.

(v) Section 165 (6-a) M.P. Land Revenue Code does not carves out an exception for word 'otherwise' for leases which means any land located in notified scheduled areas non-tribal cannot execute a lease in favour of other non- tribal without written permission of Collector.

(vi) As per Section 165 (6) and 165 (6-a) of M.P. Land Revenue Code, there is no bar to purchase a land by tribal. A tribal can purchase a land from another tribal and also from a non-tribal and permission of Collector for such transactions are not required."

27. From perusal of aforesaid provisions 165 (6)(a) of MPLRC non- triable cannot transfer his non-agricultural land for the purpose of dwelling house, education purpose or industrial use, but in the instant matter the plaintiff Dhannobai has executed a sale deed of the land in question in favour of the appellant who is a builder. Apart from above, the entire consideration amount was not paid to the plaintiff Dhannobai and before executing the sale deed in favour of the Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM 19 FA NO.16/2017 appellant no prior permission was obtained by the plaintiff from the Collector, Gwalior as per order (Annexure P/10), therefore, as per term No.2 of (Annexure P/10) the sale deed (Annexure P/1) is void ab initio. Although in the instant matter the Trial Court has discussed some evidence regarding the title over the suit property, but it cannot be said that it is a pleading-less evidence because respondent No.3/State has raised the question regarding title of plaintiff Dhannobai over the suit land, therefore, finding given by Trial Court is based upon the pleading of respondent No.3 and plaitniff sought decree of cancellation of sale deed and that relief has been granted by the Trial Court accordingly and it cannot be said that order passed by the Trial Court is beyond the pleadings or issues.

28. On the basis of aforesaid discussion and the law laid down by Hon'ble Apex Court, this Court is of the considered opinion that the impugned judgment and decree passed by the Trial Court is in accordance with law and no illegality or perversity is found in the judgment passed by the Trial Court, therefore, there is no need for interference. Hence, this appeal fails and is hereby dismissed.

29. No order as as costs.

(ANIL VERMA) JUDGE (alok) Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Feb-25 10:54:45 AM

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Madhya Pradesh High Court