Madhya Pradesh High Court
Asaadu vs Imrat Lal on 7 July, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 07th OF JULY, 2023
SECOND APPEAL No. 604 OF 2022
BETWEEN:-
1. ASAADU S/O JHANAK LAL, AGED
ABOUT 54 YEARS, OCCUPATION: NIL
VILLAGE ANKHAWADI, TEH.PARASIYA
(MADHYA PRADESH)
2. MEERA W/O ASSADU, AGED
ABOUT 44 YEARS, OCCUPATION: NIL
R/O VILLAGE ANKHAWADI TAHSIL
PARASIA DISTRICT CHHINDWARA M.P.
(MADHYA PRADESH)
3. MITTHI W/O LATE SHRIRAM,
AGED ABOUT 41 YEARS, OCCUPATION:
NIL R/O VILLAGE ANKHAWADI TAHSIL
PARASIA DISTRICT CHHINDWARA M.P.
(MADHYA PRADESH)
................APPELLANTS
(BY SHRI JAIDEEP SIRPURKAR - ADVOCATE)
AND
1. IMRAT LAL S/O JHANAK
LAL, AGED ABOUT 58 YEARS,
OCCUPATION: NIL VILLAGE
ANKHAWADI, TEH.PARASIA
(MADHYA PRADESH)
2. STATE OF MADHYA
PRADESH THROUGH
COLLECTOR CHHINDWARA
2
DISTRICT CHHINDWARA (M.P.)
(MADHYA PRADESH)
..............RESPONDENTS
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This appeal coming on for admission this day, the court passed the
following:
ORDER
This second appeal has been preferred by the appellants/defendants 1-3 challenging the judgment and decree dated 28.01.2022 passed by 5 th District Judge, Chhindwara, District Chhindwara in R.C.A No. 26-A/2020 affirming the judgment and decree dated 20.12.2019 passed by Civil Judge Class-I, Parasiya, District Chhindwara in Civil Suit No. 60-A/2015, whereby respondent 1/plaintiff's suit filed for declaration of title and restoration of possession as well as for cancellation of order dated 06.06.2015 passed by Tahsildar in respect of agricultural land survey No.130/1 and 119/21 has been decreed.
2. Learned counsel for the defendants/appellants submits that the plaintiff got executed sale deed dated 08.12.2010 (Ex.P/7) from father Jhanaklal without payment of consideration and possession in respect of an area 2.90 acres out of 4 acres of land held by Jhanaklal after partition in the family and the plaintiff has failed to prove due execution of the sale deed as well as payment of consideration to father and there being an 3 order passed under Section 250 of the MPLRC against the plaintiff, whereby holding the defendants to be in possession of the land for more than 20 years, the suit is also barred by limitation and as the plaintiff has not sought any relief of injunction, therefore, the suit is also hit by the provision contained in Section 34 of the Specific Relief Act. He further submits that in the light of finding of possession recorded in the order of Section 250 of MPLRC, the findings recorded by learned Courts below in respect of dispossession of the plaintiff by the defendants become perverse. He further submits that for ascertaining the possession of three defendants over specific portion of the land, no commission was issued by learned trial Court, therefore, in absence of clarification about possession over different parts of land of each of the defendants, no decree of possession could have been passed. With these submissions, learned counsel prayed for admission of the second appeal.
3. Heard learned counsel for the appellants/defendants and perused the record.
4. Undisputedly, the sale deed dated 08.12.2010 (Ex.P/7) was executed by father Jhanaklal in favour of the plaintiff and this sale deed was not challenged by father Jhanaklal in his life time, who remained alive for a period of about 5-6 years after execution of the sale deed, as 4 such the defendants being strangers to the sale deed, cannot challenge the sale deed on the ground of non-payment of consideration, that too after a lapse of period of three years.
5. So far as the question of limitation for possession is concerned, the suit has been filed for declaration of title and for restoration of possession on the basis of title of ownership, therefore as per Article 65 of the Limitation Act, even if the defendants are in possession of the suit property for more than 20 years, the suit filed by the plaintiff cannot be said to be barred by limitation and the order passed under Section 250 of the MPLRC shall not come in the way of the plaintiff, because the defendants have not taken plea of adverse possession.
6. As regards non seeking of relief of permanent injunction is concerned, the plaintiff has already filed the suit for declaration of title with consequential relief of possession, saying that he has been dispossessed by the defendants, therefore in my considered opinion the suit as filed cannot be said to be hit by Section 34 of the Specific Relief Act, 1963.
7. Further, the defendants are in possession of the suit property without title and the learned Courts below have concurrently found that plaintiff is owner/bhumiswami of the suit property, therefore, in my 5 considered opinion as the defendants are in wrongful possession of the suit property without any title, therefore, no commission was required to be issued for ascertaining the possession of each of the defendants on different parts of the suit land.
8. As such, learned Courts below do not appear to have committed any illegality in passing the impugned judgment and decree, decreeing the suit. Resultantly, the second appeal having no substantial question of law involved in it, deserves to be and is hereby dismissed in limine under order 41 rule 11 CPC.
9. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL) JUDGE anu Digitally signed by ANUPRIYA SHARMA CHOUBEY Date: 2023.07.11 10:05:18 +05'30'