Madhya Pradesh High Court
Sardar Jasbir Singh vs Aslam Gani Patrawala on 25 September, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 S.A. NO. 946/2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 25th OF SEPTEMBER, 2023
SECOND APPEAL No. 946 of 2019
BETWEEN:-
1. SARDAR JASBIR SINGH S/O LATE SHRI
MACHCHI SINGH, AGED ABOUT 52 YEARS,
R/O E-3/26, ARERA COLONY DISTT. BHOPAL
(MADHYA PRADESH)
2. SMT. AMARJEET KAUR W/O LATE SHRI
NARENDRA SINGH, AGED ABOUT 51 YEARS,
R/O E-3/26, ARERA COLONY DISTT. BHOPAL
(MADHYA PRADESH)
3. GAGAN DEEP S/O LATE SHRI NARENDRA
SINGH, AGED ABOUT 20 YEARS, R/O E-3/26,
ARERA COLONY DISTT. BHOPAL (MADHYA
PRADESH),
4. SIMRAN JEET KAUR D/O LATE SHRI
NARENDRA SINGH, AGED ABOUT 22 YEARS,
R/O E-3/26, ARERA COLONY DISTT. BHOPAL
(MADHYA PRADESH)
5. BALWANT SINGH S/O LATE SHRI MACHCHI
SINGH, AGED ABOUT 55 YEARS, R/O E-3/26,
ARERA COLONY DISTT. BHOPAL (MADHYA
PRADESH)
6. NANAK SINGH S/O LATE SHRI MACHCHI
SINGH, AGED ABOUT 52 YEARS, R/O E-3/26,
ARERA COLONY DISTT. BHOPAL (MADHYA
PRADESH),
.....APPELLANTS
2 S.A. NO. 946/2019
(BY SHRI SHOBITADITYA, ADVOCATE)
AND
1. ASLAM GANI PATRAWALA (DEAD) THROUGH
LRS
1-A. SMT. RUBINA ASLAM PATRAWALA WD/O LATE
ASLAM GANI PATRAWALA, AGED MAJOR
1-B. KU. FIRDOUS ASLAM PATRAWALA D/O LATE
ASLAM GANI PATRAWALA, AGED ABOUT 34
YEARS
1-C. ABDUL GANI ASLAM PATRAWALA S/O LATE
ASLAM GANI PATRAWALA, AGED ABOUT 57
YEARS
1-D. MOHD. AAHIL ASLAM PATRAWALA S/O LATE
ASLAM GANI PATRAWALA AGED ABOUT 07
YEARS, THROUGH HIS MOTHER, SMT.
RUBINA ASLAM PATRAWALA, WD/O LATE
ASLAM GANI PATRAWALA, AGED MAJOR
1-E. MOHD. IJHAN ASLAM PATRAWALA S/O LATE
ASLAM GANI PATRAWALA, AGED ABOUT 04
YEARS, THROUGH HIS MOTHER, SMT.
RUBINA ASLAM PATRAWALA, WD/O LATE
ASLAM GANI PATRAWALA, AGED MAJOR
ALL LEGAL HEIRS OF DECEASED
RESPONDENT NO.1 ABOVE R/O 7A/703,
BARSOWA FORTUNE, 59, CHS LTD, NEW
MAHADA COMPLEX, LOKHANDWALA
CIRCLE, ANDHERI WEST, MUMBAI - 400053.
2. STATE OF MADHYA PRADESH THROUGH THE
COLLECTOR RAISEN, DISTRICT RAISEN
(MADHYA PRADESH)
.....RESPONDENTS
...................................................................................................................................................................
This appeal coming on for admission this day, Court passed the
following:
3 S.A. NO. 946/2019
ORDER
Heard on I.A. No.6425/2023, which is an application under Order 22 Rule 4 of CPC.
2. For the reasons mentioned in the application and is not opposed by the learned counsel appearing for respondent No.1, the application is allowed with the direction to learned counsel for the appellants to carry out necessary amendment in the memo of appeal today itself.
3. Accordingly, I.A. No.6425/2023 is disposed off/closed.
4. This second appeal has been preferred by the appellants/plaintiffs challenging the judgment and decree dated 05.09.2018 passed by Additional District Judge, Goharganj, District Raisen in Regular Civil Appeal No.09/2018 affirming the judgment nd and decree dated 01.05.2018 passed by 2 Civil Judge Class-I, Goharganj, Distt. Raisen in RCSA No.300010/2014 whereby appellants/plaintiffs' suit for declaration of title and permanent injunction filed in respect of agricultural land, total area 51 acres situated in Village Sultanpur, Tahsil and District Raisen, has been dismissed.
5. Learned counsel for the appellants/plaintiffs submits that although the plaintiffs have taken different pleas seeking declaration of title and permanent injunction i.e. of physical possession from the year 1963, execution of power of attorney by defendant 1's father on 29.05.1974, lease agreement dated 05.04.1976 (Ex.P/74), agreement of sale dated 12.04.1979, Hibanama dated 28.04.1980 (Ex.P/107), as well as of adverse possession but he is pressing the plea of acquisition of 4 S.A. NO. 946/2019 Bhumiswami rights by operation of provisions contained in Sections 168, 169 and 190 of the MPLR Code, 1959 (in short 'the Code') on the basis of lease agreement dated 05.04.1976 (Ex.P/74) executed for three years.
6. Learned counsel submits that on the basis of oral evidence, the plaintiffs have proved execution of lease agreement by defendant 1's father for a period of three years and it being in contravention of the provisions contained in Section 168(1) of the Code, the plaintiffs had acquired Bhumiswami rights.
7. He further submits that learned Courts below have erred in not considering the agreement of lease to be a proven document and admissible in evidence, whereas the question of admissibility of lease agreement attained finality and the document was marked as exhibit under the order of the High Court. In support of his submissions of acquisition of Bhumiswami rights on the basis of aforesaid lease agreement, learned counsel placed reliance on the decisions of a co- ordinate Bench of this Court in the case of Kashiram Vs. State AIR 1996 MP 247 and Khadak Singh Vs. Hulkar Singh @ Chota Singh (2002) 2 MPLJ 450. Learned counsel further submits that the defendant has not come in the witness box and has adduced evidence of power of attorney, which in the light of decision of Supreme Court in the case Mohinder Kaur Vs. Sant Paul Singh AIR 2019 SC 4780 is not admissible and prays for admission of the second appeal.
8. Heard learned counsel for the appellants and perused the record.
9. As stated above, the plaintiffs have come with several different pleas, which in the considered opinion of this Court are self 5 S.A. NO. 946/2019 contradictory and self destructive. So far as the proof of lease agreement (Ex.P/74) is concerned, except the oral evidence, the plaintiffs have failed to support the agreement of lease by any revenue entry, if any, made on that basis. Further, learned Courts below upon due consideration of material available on record, have held that the plaintiffs have failed to prove the execution of lease agreement (Ex.P/74) and it being for three years was required to be registered.
10. Upon perusal of the entire material available on record and there being no supporting evidence to prove the execution of lease agreement (Ex.P/74), this Court is of the considered opinion that the lease agreement cannot be said to be proved on the basis of available evidence. It is pertinent to mention here that the defendant has challenged the execution of aforesaid lease agreement, therefore, it was for the plaintiffs to prove due execution of the lease agreement by adducing cogent evidence. In the present case, for the reasons best known to the plaintiffs, no witness to the agreement of lease has been examined to prove it. In view of the aforesaid, the decisions relied upon by the learned counsel for the appellants/plaintiffs do not give any help to the plaintiffs.
11. Learned Courts below have also held that the plaintiffs are out of possession and have failed to prove their possession on the suit land. Learned counsel for the appellants has failed to point out any perversity in the findings of possession recorded by learned Courts below, which are pure findings of fact.
6 S.A. NO. 946/201912. In view of aforesaid discussion, in my considered opinion, learned Courts below do not appear to have committed any illegality in passing the impugned judgment and decree.
13. Resultantly, the second appeal fails and is hereby dismissed.
14. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL) JUDGE AT Digitally signed by APARNA TIWARI Date: 2023.09.26 12:42:06 +05'30'