Madhya Pradesh High Court
Idrees Hasan vs Shabgbeer Hasan on 5 January, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 5 th OF JANUARY, 2023
MISC. PETITION No. 1066 of 2017
BETWEEN:-
IDREES HASAN S/O LATE YUSUF HASAN, AGED ABOUT
60 YEARS, OCCUPATION: AGRICULTURIST, R/O
VILLAGE SARRA, TEHSIL GAIRATGANJ, DISTRICT
RAISEN (MADHYA PRADESH)
.....PETITIONER
(SHRI SANKALP KOCHAR- ADVOCATE AND SHRI PRAMENDRA SINGH
THAKUR- ADVOCATE FOR THE PETITIONER)
AND
1. SHABBEER HASAN S/O LATE KHALEEL HASAN,
AGED ABOUT 58 YEARS, OCCUPTATION:
SHOPKEEPER, R/O WARD NO. 2, NEAR CHHOTI
MASJID, TEHSIL GAIRATGANJ, DISTRICT RAISEN
(MADHYA PRADESH)
2. SHAFIQ HASAN S/O KHALEEL HASAN, AGED
ABOUT 45 YEARS, OCCUPATION: HAIR CUTTING
SALON AND SHOPKEEPER R/O KASAI MANDI
TEHSIL GAIRATGANJ, DISTRICT RAISEN
(MADHYA PRADESH)
3. LAIK HASAN S/O KHALEEL HASAN, AGED ABOUT
40 YEARS, OCCUPATION: BRICK MANUFACTURER
AND SUPPLIER R/O KASAI MANDI, TEHSIL
GAIRATGANJ, DISTRICT RAISEN (MADHYA
PRADESH)
4. STATE OF MADHYA PRADESH THROUGH
COLLECTOR RAISEN, DISTRICT-RAISEN
(MADHYA PRADESH)
5. SHAMEEM HASAN S/O LATE YUSUF HASAN, AGED
ABOUT 50 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE SARRA, TEHSIL
GAIRATGANJ, DISTRICT RAISEN (MADHYA
PRADESH)
Signature Not Verified
Signed by: ASHISH KUMAR
LILHARE
Signing time: 11-01-2023
18:24:31
2
6. YUNUS KHAN S/O LATE YUSUF HASAN, AGED
ABOUT 40 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE SARRA, TEHSIL
GAIRATGANJ, DISTRICT RAISEN (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI ROHTASH BABU PATEL- ADVOCATE FOR RESPONDENTS NO. 1
TO 3)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This miscellaneous petition under Article 227 of the Constitution of India has been filed against the order 07.07.2017 passed in Civil Suit No. 32-A/2010 by Civil Judge Class-II, Gairatganj, District Raisen by which the objection raised by the defendants regarding admissibility of the Hibanama has been upheld and the petitioner/plaintiff has been restrained from exhibiting Hibanama on the ground that the same is unregistered and is inadmissible in evidence. Further more, the plaintiff has not set out any pleadings with regard to Hibanama and in absence of such pleadings, the evidence to the extent of Hibanama cannot be admitted specifically in the light of the fact that the application under Order 6 Rule 17 C.P.C. filed by the plaintiff seeking incorporation of pleadings regarding Hibanama has already been turned down by the Court by order dated 11.01.2017.
Challenging the order passed by the Court below, it is submitted by counsel for the petitioner that the trial Court committed a material illegality by upholding the objection of the defendants regarding inadmissibility of Hibanama and the trial Court committed a material illegality by holding that in absence of pleadings, the plaintiff cannot be permitted to lead evidence with regard to Hibanama.
Signature Not Verified Signed by: ASHISH KUMAR LILHARE Signing time: 11-01-2023 18:24:31 3Heard learned counsel for the parties.
During the course of arguments, it was fairly conceded by counsel for the petitioner that any evidence in absence of pleadings cannot be read and is not admissible.
Undisputedly, the application filed by the petitioner for amendment in the plaint with regard to Hibanama has already been rejected by order dated 11.01.2017. The said order was challenged by the petitioner by filing W.P. No.5365/2017 and the said order was upheld by order dated 09th September, 2022. Thus, under these circumstances, it is clear that the attempt made by the petitioner to incorporate the pleadings with regard to Hibanama has been foiled by the trial Court as well as the said order has been affirmed by the High Court.
At the stage, it is submitted by counsel for the petitioner that although the Hibanama should have been permitted to be exhibited for collateral purposes to show the position that the petitioner can protect his possession under Section 53A of the Transfer of Property Act i.e. part performance of contract. However, counsel for the petitioner after going through the agreement fairly conceded that it is not a contract in respect of which a suit can be filed for specific performance of contract. The trial Court has referred to the contents of the agreement dated 13.07.1980 and has held that the said agreement was not executed for any consideration amount.
On the contrary, the trial Court has held that from plain reading of this agreement it appears that the said document amount to relinquishment of title and as per Section 17 of the Registration Act where the value of the immovable property is more than Rs.100/-, the relinquishment deed is necessarily required to be registered.
Signature Not VerifiedCounsel for the petitioner could not point out as to how an unregistered Signed by: ASHISH KUMAR LILHARE Signing time: 11-01-2023 18:24:31 4 relinquishment deed is admissible in law.
Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that the trial Court did not commit any mistake in rejecting the prayer to allow the plaintiff to lead evidence in respect of Hibanama.
As no jurisdictional error was committed by the trial Court, therefore, the order dated 07.07.2017 is hereby affirmed. The petition fails and is hereby dismissed in limine.
(G.S. AHLUWALIA) JUDGE ashish Signature Not Verified Signed by: ASHISH KUMAR LILHARE Signing time: 11-01-2023 18:24:31