Madhya Pradesh High Court
Rupesh Goyal vs Jhabarmal Goyal on 25 August, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 S.A. No.1154 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 25th OF AUGUST, 2025
SECOND APPEAL No.1154 of 2025
RUPESH GOYAL
Versus
JHABARMAL GOYAL AND OTHERS
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Appearance:
Shri Siddharth Gulatee Senior Advocate with Shri Sudhir Sharma, Advocate for
appellant.
Shri Kaustubh Shankar Jha, Advocate for respondent 1.
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ORDER
This second appeal has been preferred by the appellant/plaintiff challenging the judgment and decree dtd.11/03/2025 passed by 7 th District Judge, Bhopal in RCA No.99/2024 reversing the judgment and decree dtd.28/05/2024 passed by 13th Civil Judge Senior Division, Bhopal in Civil Suit No.655A/2021, whereby Trial Court dismissed the appellant/plaintiff's suit in respect of the relief of mutation and permanent injunction sought on the basis of Will dtd.22/06/2001 (Ex.P/3) and decreed the suit in respect of the relief for declaring the Will dtd.12/07/2019 (Ex.P/23), as null and void, but in civil appeal filed by the respondent 1/defendant 1, in which cross objection was also filed by the plaintiff, First Appellate Court has reversed the judgment and decree of Trial Court and by partly allowing the civil appeal, set aside the findings recorded by Trial Court in respect of the Will dtd.12/07/2019 (i.e. issue 2 S.A. No.1154 of 2025 no.3) and maintained rest of the judgment and decree passed by Trial Court, however, did not dispose of the cross objection filed by the plaintiff.
2. Learned counsel for the appellant/plaintiff submits that owner of the suit property Ramjilal Agarwal, whose natural successors are defendants 6-9, had executed a registered Will on 22/06/2001 (Ex.P/3) in favour of plaintiff and defendant 1, whereby ground and third floor of the disputed building were given to the plaintiff and second floor was given to the defendant 1, whereas first floor was left for common use of the plaintiff and defendant 1 and accordingly both the parties are using property of their share. After death of Ramjilal Agarwal on 04/05/2021, when the plaintiff approached for mutation of the house in the municipal record, the defendant 1 came with his Will dtd.12/07/2019 (Ex.P/23) allegedly executed by Ramjilal Agarwal in his favour, whereby first and second floor are said to have been given to the defendant 1. He submits that as nothing has been said in the second Will dtd.12/07/2019 about revocation of first Will dtd.22/06/2001 and both the Wills are registered, therefore, the plaintiff was not required to seek any declaration in respect of his rights over the suit property came in his ownership by virtue of Will dtd.22/06/2001. Although the plaintiff has proved his Will as per law, by examination of one of the attesting witnesses, but in absence of any declaration sought by the plaintiff, Trial Court illegally dismissed the suit filed on the basis of Will dtd.22/06/2001, however in absence of proof of Will dtd.12/07/2019, rightly decreed the suit holding the Will dtd.12/07/2019 to be null and void, but First Appellate Court in the civil appeal filed by the defendant 1, committed an illegality in reversing the judgment and decree passed by Trial Court, although nothing has been said about genuineness of the Will executed in favour of the plaintiff and 3 S.A. No.1154 of 2025 defendant 1. He submits that since the Will dtd.12/07/2019 was challenged by filing the suit, it was for the defendant 1 to prove valid execution and attestation of the same as per Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act and in absence of proof of the same as well as in presence of undisputed fact that due to his imprisonment, the testator-Ramjilal Agarwal lost his mental stability, First Appellate Court has committed an illegality in reversing the judgment and decree passed by Trial Court. He also submits that although the defendants 6-9 were ex parte before Trial Court and did not file any written statement, but all of them supported the case of the plaintiff before First Appellate Court regarding execution of Will in his favour alleging the Will dtd.12/07/2019 (Ex.P/23) to be invalid. He submits that in these circumstances First Appellate Court has committed an illegality in reversing the judgment and decree passed by Trial Court and it has further committed an illegality in not deciding the cross objection submitted by the plaintiff in the civil appeal filed by the defendant 1. In support of his submissions, learned counsel placed reliance on the decisions in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs, (2001) 3 SCC 179; H. Venkatachala Iyengar vs. B.N. Thimmajamna and others, AIR 1959 SC 443; Sundariya Bai Choudhary vs. Union of India and others, AIR 2008 MP 227; Gurdial Kaur and others vs. Kartar Kaur and others, (1998) 4 SCC 384; Antony vs. Mathew and others, AIR 1962 Ker. 48; Ramnarayan Shrinarayan Agarwal and others vs. Mangeram Radheshyam Hardoi Firm and another, 1979 MPLJ 150; Ganpatlal vs. Ganga Bai and others (2023) 1 MPLJ 72; Corporation of the City of Bangalore vs. M. Papaiah and another, (1989) 3 SCC 612; J. Ganapatha and others vs. N. Selvarajalou Chetty Trust Rep. by its 4 S.A. No.1154 of 2025 Trustees and others, (2025) SCC OnLine SC 633. With these submissions, he prays for admission of the second appeal.
3. Learned counsel appearing for the respondent 1/defendant 1 supports the impugned judgment and decree passed by First Appellate Court and prays for dismissal of the second appeal. He submits that as the plaintiff in his suit, has not claimed any relief of declaration of title on the basis of Will dtd.22/06/2001, therefore, there was no occasion to grant negative declaration in favour of the plaintiff and First Appellate Court has rightly reversed the judgment and decree passed by Trial Court. In support of his submissions, he placed reliance on the decision of Hon'ble Supreme Court in the case of Bachhaj Nahar vs. Nilima Mandal and Another, (2008) 17 SCC 491.
4. Heard learned counsel for the parties and perused the record.
5. Undisputedly in presence of the defendants 6-9, who are natural successors of the deceased Ramjilal Agarwal, the plaintiff and defendant 1 have no vested right in the suit property because both are claiming rights through deceased Ramjilal Agarwal, on the basis of two registered Wills dtd.22/06/2001 (Ex.P/3) & 12/07/2019 (Ex.P/23).
6. After death of Ramjilal Agarwal on 04/05/2021, the plaintiff on the basis of Will dtd.22/06/2001, submitted an application for mutation of his name in the municipal record and in opposition to that the defendant 1 produced his Will dtd.12/07/2019, resultantly the prayer of mutation was refused by the municipal authority with the direction to the parties to get their title/dispute decided from the Civil Court. So, it is clear that in presence of natural successors, the plaintiff or defendant 1 has no vested right in the suit property. In spite of the aforesaid clear dispute between the plaintiff and defendant 1, the plaintiff sought the following reliefs in the suit:-
5 S.A. No.1154 of 2025"
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7. From the aforesaid quoted relief clause, it is clear that although the plaintiff has come on the basis of Will dtd.22/06/2001, but apparently he has not sought any declaration in his favour on the basis of Will dtd.22/06/2001 but has sought declaration to the effect that the Will dtd.12/07/2019 executed by Ramjilal Agarwal in favour of defendant 1, is null and void and injunction has been sought to the effect that the defendant 1 be restrained from dispossessing the plaintiff from ground floor and second floor. Prayer has also been made that the defendant 2- Municipal Corporation be directed to effect mutation on the basis of possession of the parties over house no.7-A as well as on the basis of statement given by Ramjilal Agarwal in Civil Suit No.440A/2014.
8. Although by examining one of the attesting witnesses, Nawal (PW/2), who is son of testator Ramjilal Agarwal, the plaintiff has tried to prove the Will dtd.22/06/2001 executed in his favour but in absence of any declaration sought in respect of his Will, Trial Court did not record any finding about genuineness of the Will executed in favour of the plaintiff and in view of the fact that the plot of the house was leased out to Ramjilal Agarwal by the Municipal Corporation for a period of 30 years only, which had already expired, Trial Court held that Ramjilal Agarwal was not competent to execute the Will and accordingly, declared 6 S.A. No.1154 of 2025 the Will dtd.12/07/2019 (Ex.P/23) to be null and void, however, dismissed the suit filed by the plaintiff for mutation as well as for permanent injunction on the basis of Will dtd.22/06/2001 (Ex.P/3).
9. Against the judgment and decree passed by Trial Court, the defendant 1 preferred civil appeal in respect of the findings recorded by Trial Court regarding validity of the Will dtd.12/07/2019 and the plaintiff submitted cross objection in respect of the relief claimed by him in the suit regarding mutation and permanent injunction.
10. From the aforesaid, it is clear that the plaintiff has not sought any positive declaration in his favour on the basis of Will dtd.22/06/2001 (Ex.P/23), which as per Section 34 of the Specific Relief Act was required, because upon propounding the Will dtd.12/07/2019 by the defendant 1, there were clouds over rights/title of the plaintiff and further the Municipal Corporation also directed both the parties to get their dispute/title decided by the Civil Court.
11. While considering the question of negative declaration, the Hon'ble Supreme Court has, in the case of SHAIKH ALI HOSSAIN AND ORS. v. SHOWKAT ALI AND ANR., (2008) 8 SCC 180, held as under:-
"32. I may also refer to the following circumstances which favour the interpretation put forth by the appellants - defendants:
(i) If the title and possession in regard to 6.5 decimals in Premises No.108A was already decided in favour of plaintiffs by this Court by order dated 24.03.1995, and if plaintiffs were already in possession of 6.5 decimals in No.108A, in addition to the extent held in No.108 (as contended by plaintiffs), there was no need for plaintiffs to file a fresh suit (present suit) seeking declaration that defendants were not having any right, title or interest in 6.5 decimals in No.108A. All that they had to do was to seek the relief of injunction on the basis of the earlier decision.
(ii) While plaintiffs specified the extent of Schedule 'A' property as 6.5 decimals forming part of Premises No.108A, significantly, they have not given the measurement or extent of Schedule 'B' property that is Premises No.108, which according to them, was the remainder of land after sale under deed dated 27.02.1948.
They did not disclose whether the extent of Premises No.108 is 4 decimals, or 6.5 decimals, or more, or less. Only when defendants pointed out that the extent of 7 S.A. No.1154 of 2025 Premises No.108 was 6.5 decimals, the plaintiffs submitted before the trial court that the extent of Premises No.108 was 6.5 decimals. It is too much of a coincidence that plaintiff retained 6.5 decimals in No.108 and also came into possession of an exactly similar extent of 6.5 decimals in No.108A.
(iii) The plaintiffs chose to seek a negative declaration that 'defendants have no right, title or interest in the suit properties' and not a positive declaration that plaintiffs were the owners in possession of the suit properties. The reason why they chose to seek such a negative prayer is obvious. Any positive prayer for declaration of their title would have been barred by principles of res judicata. The maintainability of a claim for such a negative declaration is also doubtful."
12. Again in the case of HARDESH ORES PVT. LTD v. M/S. HEDE AND COMPANY, (2007) 5 SCC 614, the Hon'ble Supreme Court has, while considering the question of negative declaration, held as under:-
"39. We are of the view that the respondent is right in contending that enforcement of the negative covenants presupposes the existence of a subsisting agreement. As noticed earlier, the law is well settled that the renewal of an agreement or lease requires execution of a document in accordance with law evidencing the renewal. The grant of renewal is also a fresh grant. In the instant case, the appellant-plaintiff did exercise their option and claimed renewal. The respondents denied their right to claim renewal in express terms and also unequivocally stated that the agreement did not stand renewed as contended by the appellants. Having regard to these facts it must be held that a cause of action accrued to the appellant-plaintiff when their right of renewal was denied by the respondents. This happened in December, 2001 and, therefore, within three years from that date they ought to have taken appropriate proceedings to get their right of renewal declared and enforced by a court of law and/or to get a declaration that the agreement stood renewed for a further period of 5 years upon the appellants' exercising their option to claim renewal under the original agreement. The appellants-plaintiffs have failed to do so. However, the plaint proceeds on the assumption that the original agreement stood renewed including the negative covenants contained in clauses 15 and 20 of the original agreement which authorised only the appellants to extract ore from the mine with an obligation cast on the respondents-defendants not to interfere with the enjoyment of their rights under the agreement. In the facts of this case, in the suit prayer for injunction based on negative covenants could not be asked for unless it was first established that the agreement continued to subsist. The use of the words "During the subsistence of this agreement" in clause 15, and "during the pendency of this indenture" in clause 20 of the agreement is significant. In the absence of a document renewing the original agreement for a further period of 5 years and in the absence of any declaration from a court of law that the original agreement stood renewed automatically upon the appellants exercising their option for grant of renewal, as is the case of the appellants, they cannot be granted relief of injunction, as prayed for in the suit, for the simple reason that there is no subsisting agreement evidenced by a written document or declared by a Court. If there is no such agreement, there is no question of enforcing clauses 15 and 20 thereof. The appellants ought to have prayed for a declaration that their agreement stood renewed automatically on exercise of option for renewal and only on that basis they could have sought an injunction restraining the respondents from interfering with their possession and operation. Having not done so, they cannot be permitted to camouflage the real issue and claim an order of injunction without 8 S.A. No.1154 of 2025 establishing the subsistence of a valid agreement. In the instant suit as well they could have sought a declaration that the agreement stood renewed automatically but such a claim would have been barred by limitation since more than 3 years had elapsed after a categoric denial of their right claiming renewal or automatic renewal by the respondents-defendants."
(ii) Aforesaid decision in the case of HARDESH ORES PVT. LTD (supra) was followed by a Division Bench of Karnataka High Court in the case of M/s. Kolte Patil Developers Ltd. v. NTI Housing Co-operative Society and Others, ILR 2014 KAR 5525, and held as under:-
"45. If the plaintiff's right in respect of vacant site is emphatically denied by the defendants, the remedy available to the plaintiff is only to seek the comprehensive relief of positive declaration with the consequential relief of permanent injunction, if it is of the firm opinion that it is in possession of the same or for possession if the adversary is in possession of the same. Principles to this effect have been clearly laid down by the Hon'ble Apex Court in the case of Anathula Sudhakar vs. Buchi Reddy, AIR 2008 SC 2033. Plaintiff has not adopted this approach. On the other hand the plaintiff has very intelligently made an attempt to seek the negative relief of declaration in lieu of positive declaration of having acquired absolute title. As already discussed at length, plaintiff has not acquired any title on the basis of a compromise entered into in a suit filed for permanent injunction by the 1st defendant earlier, more particularly, in not attempting to enforce the alleged right acquired on the basis of compromise. Even on this count also the present suit is not at all maintainable in law or on facts."
(iii) Almost in the similar line, in the case of V.MURUGESAN v. V.MARIMUTHU, 2024 Supreme (Online) (MAD) 43658 = 2025 1 LW 270, a coordinate Bench of Madras High Court has also held as under:-
"22. In the present case, the prayer is to declare that the defendant has "no common ownership" in 1st item of the suit property and consequential mandatory injunction directing the defendant to clear the trespass and restoring the possession to the plaintiffs. The intention and claim of the plaintiffs are that they are the owner of the 1st item of the suit property but had sought to declare the defendant has no common ownership, which is negative prayer. Under section 34 of the Specific Relief Act, 1963 any person has right over a property and the other person denies the right, then the person is entitled to seek the relief of declaration, then the court at its discretion grant such declaration that the person has right over the property. The section 34 is culled out hereunder:
34. Discretion of court as to declaration of status or right.-- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:9 S.A. No.1154 of 2025
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
The provision states the person is entitled for the prayer of declaration to declare the person has right over the property. Therefore, any suit filed for negative declaration that the other person is not having right cannot be maintained and if claimed the same is against the provisions of section 34. Further the judgment in R.N.Shanmugavadivel's case the Hon'ble Court had held that negative prayer cannot be sought to usurp the title to the property without seeking for proper declaration of his right and title to the property. Applying the provision of section 34 and the aforesaid judgment this Court is of the considered opinion that the negative prayer in the suit is only to usurp the title."
13. In the present case it is undisputed fact available on record that the plaintiff and defendant 1 both are in possession of the suit property and there is dispute about ownership in respect of first floor only, to the effect as to whether it is in exclusive ownership of the defendant 1 or it is of common use of the plaintiff and defendant 1 both. Upon perusal of the judgment and decree passed by Courts below, it is clear that in absence of any declaration of title/ownership on the basis of Will dtd.22/06/2001 both the Courts below have not recorded any finding about genuineness of the Will dtd.22/06/2001 or of ownership in favour of the plaintiff/appellant.
14. In view of the aforesaid settled legal position, in my considered opinion both the Courts below do not appear to have committed any illegality in not deciding the genuineness of the Will because no positive declaration is sought by the plaintiff in his favour, which is also clear from the above quoted relief clause of the plaint.
15. Although the Hon'ble Division Bench of this court in the case of Phool Singh and Another v. Smt. Kosabhai, 1991 (1) MPJR 352=1998 SCC OnLine MP 491=ILR 1998 MP 689, held that even when there are two contesting Wills being set-up, executed by a Hindu outside the territories mentioned in section 57(a), regarding the property situated outside those territories, obtaining of a probate of a Will from the Probate 10 S.A. No.1154 of 2025 Court would not be necessary, however, in my considered opinion when suit is filed and both the parties base their title solely on contesting wills and neither possesses any vested right independent of the Wills, it is expected that the plaintiff must seek a declaration regarding the validity and genuineness of the Will under which he claims. A suit cannot be maintained merely by seeking a negative declaration that the defendant's Will is null and void, without simultaneously seeking a positive declaration in respect of his Will, particularly when the plaintiff's title solely on the basis of Will, is not admitted by his opponent.
16. A declaration invalidating the defendant's Will does not automatically validate the plaintiff's Will and a finding that one Will is void cannot lead to a presumption that the other Will is valid until and unless the other Will is duly found proved by the court. Therefore, in such cases, it is essential for the plaintiff to seek, as a foundational relief, a declaration in his favour or as regards to genuineness and validity of Will in his favour.
17. So far as the declaration sought by the plaintiff in respect of the Will dtd.12/07/2019 is concerned, in my considered opinion until and unless the plaintiff seeks declaration in his favour on the basis of Will dtd.22/06/2001, no question arises for declaring the Will dtd.12/07/2019 (Ex.P/23) to be null and void and since both the parties are in possession of the suit property, therefore, the plaintiff is also not entitled for any relief of permanent injunction.
18. In view of the aforesaid discussion and upon due consideration of the entire material available on record, this Court does not find any illegality in the judgment and decree passed by Courts below and in view of existing factual scenario, the decisions relied upon by learned Counsel 11 S.A. No.1154 of 2025 for the appellant/plaintiff, do not provide any help to the case of the plaintiff, whose counsel has also refused to withdraw the suit.
19. With a view to remove ambiguity about the floors mentioned in this order, it is pertinent to mention here that there are total four floors. In the Will dtd.22/06/2001, the floors have been shown as ground floor, magazine floor, first floor and second floor, whereas in the Will dtd.12/07/2019, the floors have been shown as ground floor, first floor, second floor and third floor.
20. It is also pertinent to mention here that as of now, the plaintiff and defendant 1 both are not entitled for any relief in absence of any finding about genuineness of either of the disputed Wills, especially in the light of relief(s) claimed in the suit.
21. Resultantly, in absence of any substantial question of law, this second appeal fails and is hereby dismissed.
22. Pending application(s), if any, shall also stand disposed of.
(DWARKA DHISH BANSAL) JUDGE KPS Digitally signed by KUMARI PALLAVI SINHA Date: 2025.08.28 17:10:57 +05'30'