Madhya Pradesh High Court
Rafiq Mohammad vs State Of M.P.& Anr. on 8 October, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
1 SA-677-2004
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 8 th OF OCTOBER, 2025
SECOND APPEAL No. 677 of 2004
RAFIQ MOHAMMAD
Versus
STATE OF M.P.& ANR.
Appearance:
Shri Santosh Agrawal - Advocate for appellant.
Shri Sanjay Singh Kushwaha - Government Advocate for
respondents/State.
ORDER
This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 27/4/2004 passed by Second Additional District Judge (Fast Track), Sheopur in Civil Regular Appeal No.3A/2004, as well as judgment and decree dated 16/5/2003 passed by Second Civil Judge, Class 1, Sheopur in Civil Suit No.200-A/2000.
2 . The appellant is the plaintiff who has lost his case from both the courts below.
3. The facts necessary for disposal of this appeal, in short, are that the plaintiff filed a suit for declaration of title and permanent injunction pleading inter-alia that the father of the plaintiff, namely Habib Muhammad, was the leaseholder of Survey Number 1825, area 2 bigha, and Survey Number 1841, area 22 bigha. It was further pleaded in paragraph No.2 of the Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-10-2025 06:46:10 PM 2 SA-677-2004 plaint that the father of the plaintiff had purchased the aforesaid land from the then Zamindar Omkar, and thereafter, he became the owner of the property in dispute. The father of the plaintiff remained in possession of Survey Number 1825 area 2 bigha and survey number 2841 area 22 bigha during his lifetime and he ultimately expired in the year 1998, and thereafter, the plaintiff became the owner and in possession of Survey Numbers 1825 and 1841. The defendants No.1 & 2 started extending the threat that they would start construction on the property in dispute. It was pleaded that, in light of such threat, a serious threat has been given to the ownership and possession of the property in dispute, therefore, the cause of action has arisen on 06/1/1999. It was further pleaded that, even otherwise, the plaintiff and his father are in possession of the property in dispute for more than 30 years.
Therefore, even otherwise, they have perfected their title by way of adverse possession.
4. It appears that the defendants did not file any written statement. However, the trial court did not pass a decree as per the provision of Order VIII Rule 5(2) and 10 of CPC and required the plaintiff to prove the facts and, accordingly, framed the issues. After recording the evidence of the plaintiff, the trial Court dismissed the suit.
5. Being aggrieved by judgment and decree passed by the trial Court, the appellant preferred an appeal, which too has been dismissed by the appellate Court.
6. This appeal was admitted on the following substantial questions of law:
"i-Whether the courts below erred in not taking the Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-10-2025 06:46:10 PM 3 SA-677-2004 pleadings of plaintiff as admitted as per Order VIII Rule 5 CPC as no written statement was filed, no controversy was raised by defendants and they remained ex parte? ii-Whether Ex.P/1 has been misconstrued?
iii-Whether plaintiff was entitled for injunction even if the title was not proved and that the plaintiff cannot be dispossessed without due process of law?"
7. Challenging the judgment and decree passed by the Courts below, it is submitted by counsel for the appellant that once the defendants had decided not to file the written statement, then the trial Court should have passed a decree and should not have called upon the plaintiff to prove his case. It is further submitted that the lease granted by the then Zamindar Omkar to the father of the plaintiff (Exhibit P-1) has been misconstrued by the Courts below, and since the plaintiff is in possession of the property in dispute, therefore, even in absence of title, he was entitled to protect his possession till he is dispossessed in accordance with law and thus, it is submitted that the courts below have committed a material illegality by dismissing the suit as well as the appeal filed by the appellant.
8 . Per contra, the counsel for the respondent has supported the findings recorded by the trial Court as well as the appellate Court.
9. Heard the learned counsel for the parties.
10. Substantial Question of law No. i-Whether the courts below erred in not taking the pleadings of plaintiff as admitted as per Order VIII Rule 5 CPC as no written statement was filed, no controversy was raised by defendants and they remained ex parte?
(i) Order VIII Rule 5 and Rule 10 of CPC reads as under :
"5. Specific denial.--[(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-10-2025 06:46:10 PM 4 SA-677-2004 implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-
rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]
10. Procedure when party fails to present written statement called for by Court.--Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."
( i i ) From the plain reading of both the provisions, it is clear that if the defendant does not file his written statement, then it shall be lawful for the trial Court to pronounce the judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. Thus, if a written statement is not filed by the defendant, then two options will be available to the trial court i.e. : (1) to pronounce the judgment and decree on the basis of the plaint pleadings, or (2) it can call upon the plaintiff to prove the facts.
( i i i ) In the present case, the trial Court had adopted the second Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-10-2025 06:46:10 PM 5 SA-677-2004 option. Since it is a permissible option, and it is not obligatory on the part of the trial Court to pronounce the judgment in case the written statement is not filed, this Court is of the considered opinion that no illegality was committed by the trial Court by not pronouncing the judgment at once and has rightly invited the plaintiff to prove his case.
(iv) Accordingly, the substantial question of law No.i is answered in negative.
1 1 . Substantial Question of law No.ii Whether Ex.P/1 has been misconstrued?
(i) In order to consider the Patta (Exhibit P-1), it would be essential for this court to consider the pleadings of the plaint.
(ii) Paragraph No.2 of the plaint reads as under:
"2. यह क सव न बर 1825 रकवा 2 वीघा एवम ् सव मांक 1841 रकवा 22 वीघा के पटटाधार वाद के पता हबीब मोह मद स वत मे लगान के एवज म य पटटाधार वाद के पता हबीब मोह मद स वत मे तक त कालीन जमीदार ऊँकार से य क और तथा फर भूिम वामी वाद के पता हो गये तब से वाद के पता उ सव न बरान 1825 रकवा 2 वीघा एवं 284। रकवा 22 वीघा के वािम व एवं आिधप यधार अपने जीवन काल तक रहे सव न बर 1825 रकवा 2 वीघा एवम ् सव न बर 1841 रकवा 22 वीघा वाद के पता का दे हावसान 1998 मे हो गया है तभी से उ ववा दत सव न बर 1825 एवम ् 1841 का व वधार एवं आिधप यधार वाद हो गया है ।"
(iii) It is submitted by counsel for the appellant that the word "purchased" ( य) as mentioned in paragraph two of the plaint must be read along with the word "lease" (पटटा), and after 1959, the father of the plaintiff acquired the bhumiswami rights. However, there is no such pleading in paragraph No.2 of the plaint that the father of the plaintiff acquired the Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-10-2025 06:46:10 PM 6 SA-677-2004 bhumiswami rights in the year 1959. But there is a specific pleading that after purchasing the land from the ex-Zamindar Omkar, the father of the plaintiff had become the owner of the property in dispute.
(iv) Admittedly, no sale deed, executed by Omkar in favour of the father of the plaintiff, has been placed on record. On the contrary, the plaintiff has filed a copy of Patta (Exhibit P-1) to show that the ex-Zamindar Omkar had leased out the property to his father on 15/2/1945.
(v) The plaintiff has examined himself as well as one Mulla Abde Ali as PW-2.
(vi) Neither in the plaint nor in the verification, the plaintiff has disclosed his age. Even in the notice issued under Section 80 of CPC (Exhibit P-3), the plaintiff had not disclosed his age. However, in an affidavit filed in support of application under Section 80(2) of CPC, the plaintiff had disclosed his age as 45 years. This application was filed on 15/4/1999. Thus, it is clear that on 15/4/1999, the plaintiff had disclosed his age as 45 years. If the year of birth of the plaintiff is calculated on the basis of age disclosed by the plaintiff in an affidavit filed in support of application under Section 80(2) of CPC, then it is clear that the plaintiff must have been born in the year 1954. Whereas the Patta (Exhibit P-1) was allegedly executed on 15/02/1945. In the deposition sheet of the plaintiff which was recorded on 7/10/2002, the age of the plaintiff has been shown to be 49 years and if the year of birth of the plaintiff is counted, then it is clear that he was born sometime in the year 1953.
(vii) In either way, it is clear that the Patta (Exhibit P-1) was not Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-10-2025 06:46:10 PM 7 SA-677-2004 executed after the birth of the plaintiff. Therefore, he cannot say that the Patta was executed by ex-Zamindar Omkar in favour of his father. The plaintiff has also examined Mulla Abde Ali (PW-2), whose age is mentioned as 85 years on 23/1/2003. This witness has also not stated that Patta was ever executed by Omkar in favour of the father of the plaintiff, namely, Habib Muhammad, in the year 1945.
(viii) On the contrary, the evidence of this witness is detrimental to the case of the plaintiff. This witness has stated that for the last 40 - 45 years, he has seen that the father of the plaintiff is in possession of the property in dispute.
(ix) The evidence of Mulla Abde Ali (PW-2) was recorded on 23/1/2003, and even if the maximum period of 45 years as disclosed by this witness in his evidence is taken, then it is clear that the witness has claimed that he had seen the father of the plaintiff in possession from the year 1958.
(x) At the cost of repetition, it is once again pointed out that according to the plaintiff, the Patta was executed by ex-Zamindar Omkar in favour of Habib Muhammad on 15/02/1945.
(xi) In view of the evidence of Mulla Abde Ali (PW-2), it is clear that the father of the plaintiff was never placed in possession of the property in dispute in the year 1945.
(xii) Furthermore, the plaintiff has not filed any revenue document to show that the name of his father was ever recorded in the revenue record, either as a leaseholder or as a bhumiswami either after the year 1945 or 1959.Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-10-2025 06:46:10 PM
8 SA-677-2004
(xiii) In absence of any ocular evidence in support of Patta (Exhibit P-1), as well as in absence of any documentary evidence to show that the Patta (Exhibit P-1) was executed on 15/02/1945, this Court is of considered opinion that the plaintiff has failed to prove that Omkar had ever executed a Patta in favour of his father, Habib Muhammad, on 15/02/1945.
(xiv) Since the execution of Patta (Exhibit P-1) has remained unproved, therefore it would be a futile exercise on the part of this Court to find out as to whether Omkar was the Zamindar or not. Therefore, without touching that question, it is held that once the plaintiff has failed to prove that the Patta (Exhibit P-1) was ever executed by Omkar in favour of his father on 15/02/1945, the second substantial question of law is also answered in the negative.
12. Substantial Question of law No.iii Whether plaintiff was entitled for injunction even if the title was not proved and that the plaintiff cannot be dispossessed without due process of law?"
(i) Once this court has held that the plaintiff has failed to prove that his father was ever placed in possession of disputed property by virtue of the so-called Patta dated 15/02/1945 (Exhibit P-1), and whereas, on the contrary, the plaintiff himself has examined Mulla Abde Ali (PW-2), who claimed that he has seen the father of the plaintiff in possession from the year 1958, therefore, it is clear that the courts below did not commit any mistake by holding that the plaintiff has also failed to prove that he is in possession of the property in dispute.
(ii) Accordingly, the third substantial question of law is also Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-10-2025 06:46:10 PM 9 SA-677-2004 answered in the negative.
13. It is a well-established principle of law that this court, in exercise of power under Section 100 of CPC, can interfere with the concurrent findings of fact only if they are found to be perverse.
14. This court has independently considered the pleadings as well as the evidence led by the plaintiff and has come to an independent finding that the plaintiff has failed to prove his case.
15. Ex-consequeti, the judgment and decree dated 27/4/2004 passed by Second Additional District Judge (Fast Track), Sheopur in Civil Regular Appeal No.3A/2004, as well as judgment and decree dated 16/5/2003 passed by Second Civil Judge, Class 1, Sheopur in Civil Suit No.200-A/2000 are hereby affirmed.
16. The appeal fails and is hereby dismissed.
(G. S. AHLUWALIA) JUDGE Aman Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-10-2025 06:46:10 PM