Madhya Pradesh High Court
Om Prakash vs Mahesh Pratap Singh on 1 May, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:9926
1 S.A. No. 185 of 2007
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 1st OF MAY, 2025
SECOND APPEAL No. 185 of 2007
OM PRAKASH
Versus
MAHESH PRATAP SINGH AND OTHERS
Appearance:
Shri Santosh Agrawal, Advocate for the appellant.
Shri N.K. Gupta, Senior Advocate with Shri Saket Sharma Advocate for
respondent Nos. 1 to 6.
Shri Pavan Kumar Vijaywargiya, Advocate for respondent Nos. 7 and 8.
JUDGMENT
This second appeal, under Section 100 of CPC, has been filed against the judgment and decree dated 25.01.2007 passed by Additional District Judge, Lahar, District Bhind in Civil Appeal No. 16A of 2006, thereby reversing the judgment and decree dated 12.09.2006 passed by I Civil Judge Class I, Lahar, District Bhind in Civil Suit No. 150A of 2004.
2. Facts necessary for disposal of present appeal, in short, are that appellant is defendant who lost his case from the appellate Court.
3. The suit filed by the respondents/plaintiff was dismissed by the trial Court, whereas appeal was allowed and decree has been passed by the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 08-05-2025 11:21:51 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:9926 2 S.A. No. 185 of 2007 appellate Court in favour of the plaintiffs/respondents. Original plaintiff Sughar Singh died during the pendency of the suit and is being represented by his legal representatives.
4. The suit was filed for declaration of title and permanent injunction pleading inter alia that plaintiff is the owner and in possession of a plot which is marked as ABC in the plaint map. The said plot was described as disputed plot in the plaint. It was the claim of plaintiff that he got the said plot in the year 1948 and since then he is using the same for nistar purposes. Defendants have no right or title on the said plot. The disputed plot was in the ownership of Raja Raghubir Singh and through his general power of attorney holder Jagatpal Singh, the said plot was given to plaintiff after accepting a nazrana. With increase in the value and utility of the plot, intention of defendants became dishonest and with an intention to deny the title of plaintiff and to deprive him of the above plot, defendant No.1 has made preparation to construct a hotel over the disputed land. On 23.01.1986 defendant denied the title of plaintiff and claimed that he would construct a hotel, and accordingly cause of action arose on 23.01.1986 on account of denial of title and attempt to construct a hotel. It appears that the suit was amended and it was pleaded that defendant has forcibly taken possession of part of land which was allotted to plaintiff, and details of alleged encroachment were also mentioned in paragraph 3A. It was further pleaded that defendant No. 4 has encroached upon the area marked as "Ka", "Kha", "Ga", "Gha" in the plaint map and accordingly it was also prayed that plaintiff is entitled for decree of possession in respect of the area marked as "Ka", "Kha", "Ga", "Gha" in the plaint map.
5. Defendant No.1 filed his written statement and claimed that plaintiff does not have any document in writing to show that the property was ever allotted to him. He was never in possession of the plot in dispute. The disputed Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 08-05-2025 11:21:51 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:9926 3 S.A. No. 185 of 2007 property was not in the ownership of Raja Raghubir Singh. The property was not given to the plaintiff through his power of attorney holder after accepting any nazrana. It was pleaded that plaintiff is nephew of former king Raghubir Singh. Plaintiff wanted to grab the property with the help of his relatives. The power of attorney holder Jagatpal Singh and the plaintiff are uncle and nephew in relation. It was claimed that the property in dispute was in the ownership of predecessors of defendant No. 1 and in the family arrangement the exclusive ownership went to defendant No. 1. Defendant No. 1 had got the permission to construct a house in the year 1983. It was claimed that plaintiff and his son Mahesh Pratap Singh are advocates and they never took any action to get their names mutated. It was further claimed that defendants had never extended a threat.
6. Defendant Nos. 2 and 3 also filed their written statement and claimed that the plot in question belongs to them and they are in possession thereof. It was denied that the plaintiff had got the said plot in allotment in the year 1948. It was denied that the plot in dispute was ever allotted to plaintiff by Raja Raghubir Singh through his power of attorney holder Jagatpal Singh.
7. The trial Court after framing issues and recording evidence dismissed the suit filed by the plaintiff by judgment and decree dated 12.09.2006. Being aggrieved by the judgment and decree passed by the trial Court, respondents preferred an appeal which was registered as Civil Appeal No. 16A/2006, and by judgment and decree dated 25.01.2007 passed by Additional District Judge, Lahar, District Bhind, the appeal was allowed and it was declared that the plaintiffs are the owners and in possession of plot marked as ABC in the plaint map and they are entitled for decree of possession in respect of the area marked as "Ka", "kha", "ga", "gha" in the disputed plot marked as ABC in the plaint map. It was directed that defendant No.4 shall hand over the vacant Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 08-05-2025 11:21:51 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:9926 4 S.A. No. 185 of 2007 possession of the plot to plaintiff within two months and permanent injunction was also issued against the defendants from interfering with the peaceful possession of plaintiff.
8. The present appeal has been admitted vide order dated 25/4/2013 on the following substantial question of law:
"Whether learned lower appellate Court is justified in reversing the judgment and decree passed by learned trial Court by holding that under Section 9 of Kanoon Mal Gwalior Samvat 1983 registration is not necessary for alienation of land overlooking the fact that the disputed land was Awadi land for which according to Section 60 of Kanoon Mal Gwalior registration is compulsory?"
9. The only question for consideration is as to whether allotment order (Ex.P/3) was required to be registered under Section 60 of Kanoon Maal (Samvat 1983), Gwalior or not?
10. It is submitted by counsel for appellant that as per Section 60, any document by which property is sold, gifted, or mortgaged is required to be registered, and the only exception is that in the case of sale or mortgage if the value of property and in the case of gift if malguzari payable on land, is less than ₹100, then the document is not required to be registered. It is submitted that malguzari is payable on agricultural land only, therefore, since it is a plot and not an agricultural land, therefore unregistered order of allotment cannot be said to be admissible in evidence and thus the appellate Court committed a material illegality by relying upon the order of allotment (Ex.P/3).
11. Per contra, it is submitted by counsel for the plaintiff/respondents that Section 60 will apply only in the case of sale, gift, or mortgage. The present allotment order (Ex.P/3), is a license which is not covered by Section 60 of Kanoon Maal. It is further submitted that as per Section 9(4) of Kanoon Maal, Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 08-05-2025 11:21:51 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:9926 5 S.A. No. 185 of 2007 Gwalior, the Malguzar had authority to allot land for construction of houses.
12. In reply, it is submitted by counsel for appellant that since plaintiff has not constructed any house over the land which was allotted by Ex.P/3, therefore, it cannot be said that the allotment was in accordance with law.
13. Heard learned counsel for the parties.
14. Section 60 of Kanoon Maal, Gwalior reads as under:
"nQk 60 % vxj dksbZ tehankj vius edcwtk ekSts ;k fgLls ekSts ;k vkjkth ekSts dks c; ;k fgck ;k jgu djuk pkgs rks nLrkost rgjhj gksdj mldh jftLVz~h gksuk ykfteh gS A ysfdu 'krZ ;g gS fd c; ;k jgu dh lwjr esa vxj tjs c; ;k jgu dh rknkn vkSj fgck dh lwjr esa ekyxqtkjh dh jde dh nl xquk rknkn 100 :i;s ls de gks rks ,sls bUrdkykr ds rLnhd dh dkjZokbZ gLc eU'kk; ySUM fjdkMZ~l eSuqvy o feLy rx;qjkr dk'rdkjku ekS:lh ds dh tkosxh vkSj og rLnfd c eaftys jftLVz~h ds le>h tkosxh A"
15. Section 9(4) of Kanoon Maal, Gwalior reads as under:
¼4½ ekyxqtkjku etkt gksaxs fd cikcUnh vgdke eqrvfYyd r'k[khl ekyxqtkjh oxSjk tks bl oDr tkjh gSa ;k vk;Unk gksa] vius ekSts dh vkjkth gj fdLe dks okLrs rkehj edkukr ldwurh ;k nhxj edkukr ;k xksaMk eos'kh ;k nqdku] dkj[kkuk] vgkrk] eafnj] elftn ¼c ikcUnh dokvn ijfLr'kxkg½ ;k QSDVjht ¼c ikcUnh dokvn~ eqrvfYydk½ oxSjk ;k ckxkr vke o egqck nhxj fdlh 'k[l dks nsa ;k [kqn dke esa ykosa; exj ,slh vkjkth cjh vt r'k[khl ugha ekuh tkosxh] c'krs fd gqDe njckj r'k[khl ls cjh j[kus ckcr gkfly u dj fy;k gks ;k ckx vke] egqck vkjkth xSj eq'kf[[kl esa u yxk;k x;k gks-
16. Now the only question for consideration is as to whether the allotment of land under Section 9(4) of Kanoon Maal, Gwalior can be said to be a mortgage, gift, or sale which, as per Section 60 of Kanoon Maal, Gwalior, requires mandatory registration or not ?
17. The coordinate Bench of this Court by judgment passed in the case of Dhaniram Vs. Basantlal reported in 1986 RN 428 has held that where the allotment is made under Section 9(4) of Kanoon Maal, then Section 60 which Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 08-05-2025 11:21:51 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:9926 6 S.A. No. 185 of 2007 deals with sale of shares of Zamindar has no application to such allotment of land. It was further held that allotment of land for construction of houses may involve an irrevocable license but it will not amount to sale. It has been held as under:-
"6. I shall first deal with the arguments of Shri Arun Mishra and seriatim. In the impugned judgment para 12, the learned first appellate Court has held that on persual of exhibit P 1 it is clear that it is not a sale deed Ext. P-1 has not been described as a sale deed nor the fact that the property is being sold has also been described. According to the learned first appellate Court, Savitry Bai was the Zamindar and, she after accepting 'Nazrana', through her Mukhtyar Am Shyamrao, allotted the suit land for construction of a house in favour of the plaintiff. Under Section 5(4) of the Kanoon Mal, Gwalior, State, A Zamindar in 1938 was entitled to allot land for construction of building after accepting 'Nazarana'. According to the learned first appellate Court even if the word 'Banama' is written upon this document, it shall not be taken to be a sale deed. It is only an order of allotment in favour of the plaintiff for the purpose of building a house. In para 13 of the impugned judgment the learned first appellate Court has further held that Ext. P-1 is not a sale deed and, hence, it was not required to be registered under law in force in Gwalior State. I have also gone through this document. There is nothing in this document to suggest that the title vesting in the Zamindar with respect to the suit land was transferred to the plaintiff. The only right conferred was the right of constructing a house. S.9(4) of the Kanoon Mal, Gwalior State has conferred a specific power upon the Malgujars, i.e, Zamindars to allot lands for the purpose of construction of houses. This section does not lay down any special mode by which such allotments could be made apart from what might be there under the general law. Sec. 60 of the Kanoon Mal, which deals with sales of shares of Zamindars, has no application to such allotment of land. As the document (Ext. P-1) has rightly been held by the learned first appellate Court not to be a sale deed, it does not require registration under law. Allotment of land for a specific purpose of construction of a house may involve an irrevocable licence but it will not amount Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 08-05-2025 11:21:51 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:9926 7 S.A. No. 185 of 2007 to sale. If the plaintiff would not have constructed the house upon the allotted land, then the property would have been reverted back to the Zamindar...."
18. Therefore, it is clear that registration has been made compulsory under Section 60 of Kanoon Maal if the conveyance is of sale, gift, or mortgage, but when license is granted, maybe irrevocable in nature, registration would not be required. Thus the substantial question of law which was framed is answered in negative.
19. Although counsel for appellant tried to raise other grounds, but he did not file any application under Section 100(5) of CPC for framing additional substantial questions of law. A second appeal has to be decided only on substantial questions of law framed by the Court. A second appeal cannot be decided like a first appeal.
20. Accordingly, it is held that order of allotment (Ex.P/3) did not require registration as it was a document of license. Therefore, it is held that the land in question was allotted to plaintiff and the appellate Court did not commit any mistake by allowing the appeal filed by plaintiff.
21. Consequently, judgment and decree dated 25.01.2007 passed by Additional District Judge, Lahar, District Bhind in Civil Appeal No. 16A of 2006 is hereby affirmed.
22. Appeal fails and is, hereby, dismissed.
(G. S. AHLUWALIA) JUDGE (and) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 08-05-2025 11:21:51 AM