Madhya Pradesh High Court
Virendra Singh Hardia vs Sushila Bai on 21 May, 2024
Author: Anil Verma
Bench: Anil Verma
1
THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
SECOND APPEAL No. 113 of 2006
BETWEEN:-
VIRENDRA SINGH S/O LATE SHIV PRASAD
HARDIYA, AGED : ABOUT 50 YEARS,
OCCUPATION : BUSINESS, R/O HARDIA
COMPOUND, CHHAWNI, INDORE (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI B. I. MEHTA - SENIOR ADVOCATE WITH SHRI J. B. MEHTA -
ADVOCATE)
AND
1. SUSHILA BAI W/O SUNDARLAL, AGED 45
YEARS, OCCUPATION : LABOUR, R/O
VILLAGE BAMAN KANKRIYA, TEHSIL
AND DISTRICT UJJAIN (MADHYA
PRADESH)
2. SMT. LAXMI BAI W/O DAYARAM, AGED
40 YEARS, OCCUPATION : LABOUR,
R/OVILLAGE BAMAN KANKRIYA,
TEHSIL AND DISTRICT UJJAIN (MADHYA
PRADESH)
3A. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
SMT. SHAKUN BAI WD/O
LAXMINARAYAN, AGED : 50 YEARS,
OCCUPATION : HOUSEHOLD, R/O :
SANWER ROAD, BEHIND MOTIBABA
MANDIR, INDORE (MADHYA PRADESH)
3B. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 21-05-2024
17:56:00
2
DEEPAK S/O LAXMINARAYAN, AGED : 27
YEARS, OCCUPATION : SERVICE, R/O :
SANWER ROAD, BEHIND MOTIBABA
MANDIR, INDORE (MADHYA PRADESH)
3C. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
GOLU S/O LAXMINARAYAN, AGED : 22
YEARS, R/O : SANWER ROAD, BEHIND
MOTIBABA MANDIR, INDORE (MADHYA
PRADESH)
3D. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
SURAJ S/O LAXMINARAYAN, AGED : 19
YEARS, OCCUPATION : SERVICE, R/O :
SANWER ROAD, BEHIND MOTIBABA
MANDIR, INDORE (MADHYA PRADESH)
3E. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
RANI D/O LAXMINARAYAN, AGED : 19
YEARS, OCCUPATION : HOUSEHOLD, R/O
: SANWER ROAD, BEHIND MOTIBABA
MANDIR, INDORE (MADHYA PRADESH)
3F. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
SEEMA D/O LAXMINARAYAN, AGED : 17
YEARS (MINOR) THROUGH NATURAL
GUARDIAN SMT. SHAKUNTALABAI W/O
LAXMINARAYAN, R/O : SANWER ROAD,
BEHIND MOTIBABA MANDIR, INDORE
(MADHYA PRADESH)
3G. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
DALI S/O LAXMINARAYAN, AGED : 14
YEARS (MINOR) THROUGH NATURAL
GUARDIAN SMT. SHAKUN BAI WD/O
LAXMINARAYAN, R/O : SANWER ROAD,
BEHIND MOTIBABA MANDIR, INDORE
(MADHYA PRADESH)
4. DISTRICT COLLECTOR,
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 21-05-2024
17:56:00
3
COLLECTORATE, MOTI TABELA ROAD,
INDORE (MADHYA PRADESH)
5. GOVIND PRASAD S/O RADHAKISHAN
GOYAL, AGED : 50 YEARS, OCCUPATION :
DOCTOR, R/O 78/47, AGRAWAL NAGAR,
INDORE (MADHYA PRADESH)
6. SMT. USHA W/O GOVIND PRASAD
GOYAL, AGED 48 YEARS, OCCUPATION
HOUSEHOLD, R/O 78/47, AGRAWAL
NAGAR, INDORE (MADHYA PRADESH)
7A. KAMALKANT S/O RADHAKISHAN GOYAL
(DECEASED) THROUGH LR SMT. USHA
WD/O LATE SHRI KAMALKANT GOYAL,
AGED : 68 YEARS, OCCUPATION :
HOUSEHOLD, R/O WARD NO.10, INDIRA
GANDHI WARD, HARDA (MADHYA
PRADESH)
7B. KAMALKANT S/O RADHAKISHAN GOYAL
(DECEASED) THROUGH LR SANJAY S/O
LATE SHRI KAMALKANT GOYAL, AGED :
48 YEARS, OCCUPATION : BUSINESS, R/O
WARD NO.10, INDIRA GANDHI WARD,
HARDA (MADHYA PRADESH)
7C. KAMALKANT S/O RADHAKISHAN GOYAL
(DECEASED) THROUGH LR RAJENDRA
S/O LATE SHRI KAMALKANT GOYAL,
AGED : 46 YEARS, OCCUPATION :
BUSINESS, R/O WARD NO.10, INDIRA
GANDHI WARD, HARDA (MADHYA
PRADESH)
7D. KAMALKANT S/O RADHAKISHAN GOYAL
(DECEASED) THROUGH LR SMT. ANJALI
D/O LATE SHRI KAMALKANT GOYAL,
AGED : 43 YEARS, OCCUPATION :
HOUSEHOLD, R/O WARD NO.10, INDIRA
GANDHI WARD, HARDA (MADHYA
PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 21-05-2024
17:56:00
4
(SHRI AJAY BAGADIA - SENIOR ADVOCATE WITH SHRI NILESH
AGRAWAL - ADVOCATE FOR RESPONDENTS)
SECOND APPEAL No. 114 of 2006
BETWEEN:-
1. GOVIND PRASAD S/O RADHAKISHAN
GOYAL, AGED : 57 YEARS, OCCUPATION :
MEDICAL PRACTITIONER, R/O 78/47,
AGARWAL NAGAR, NAVLAKHA, INDORE
(MADHYA PRADESH)
2. SMT. REKHA W/O GOVIND PRASAD
GOYAL, AGED 54 YEARS, OCCUPATION -
AGRICULTURIST, R/O 78/47, AGRAWAL
NAGAR, NAVLAKHA, INDORE (MADHYA
PRADESH)
3A. KAMALKANT S/O RADHAKISHAN GOYAL
(DECEASED) THROUGH LR SMT. USHA
WD/O LATE SHRI KAMALKANT GOYAL,
AGED : 68 YEARS, OCCUPATION :
HOUSEHOLD, R/O WARD NO.10, INDIRA
GANDHI WARD, HARDA (MADHYA
PRADESH)
3B. KAMALKANT S/O RADHAKISHAN GOYAL
(DECEASED) THROUGH LR SANJAY S/O
LATE SHRI KAMALKANT GOYAL, AGED :
48 YEARS, OCCUPATION : BUSINESS, R/O
WARD NO.10, INDIRA GANDHI WARD,
HARDA (MADHYA PRADESH)
3C. KAMALKANT S/O RADHAKISHAN GOYAL
(DECEASED) THROUGH LR RAJENDRA
S/O LATE SHRI KAMALKANT GOYAL,
AGED : 46 YEARS, OCCUPATION :
BUSINESS, R/O WARD NO.10, INDIRA
GANDHI WARD, HARDA (MADHYA
PRADESH)
3D. KAMALKANT S/O RADHAKISHAN GOYAL
(DECEASED) THROUGH LR SMT. ANJALI
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 21-05-2024
17:56:00
5
D/O LATE SHRI KAMALKANT GOYAL,
AGED : 43 YEARS, OCCUPATION :
HOUSEHOLD, R/O WARD NO.10, INDIRA
GANDHI WARD, HARDA (MADHYA
PRADESH)
4. VISHAL S/O GOVIND PRASAD GOYAL,
AGED : 20 YEARS, OCCUPATION :
BUSINESS, R/O 78/47, AGRAWAL NAGAR,
NAVLAKHA, INDORE (MADHYA
PRADESH)
.....APPELLANTS
AND
1. SUSHILA BAI W/O SUNDERLAL, AGED
ABOUT 43 YEARS, OCCUPATION:
LABOUR, R/O GRAM HAAL MUKAM
BAMAN KANKRIYA, TEHSIL AND
DISTRICT UJJAIN (MADHYA PRADESH)
2. SMT. LAXMIBAI W/O DAYARAM, AGED
ABOUT 38 YEARS, OCCUPATION:
LABOUR, R/O GRAM HAAL MUKAM
BAMAN KANKRIYA, TEHSIL AND
DISTRICT UJJAIN (MADHYA PRADESH)
3A. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
SMT. SHAKUN BAI WD/O
LAXMINARAYAN, AGED : 56 YEARS,
OCCUPATION : HOUSEHOLD, R/O :
NARVAR, NEAR MOUNI BABA ASHRAM,
SANWER ROAD, INDORE (MADHYA
PRADESH)
3B. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
DEEPAK S/O LAXMINARAYAN, AGED :
ADULT, OCCUPATION : SERVICE, R/O :
NARVAR, NEAR MOUNI BABA ASHRAM,
SANWER ROAD, INDORE (MADHYA
PRADESH)
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 21-05-2024
17:56:00
6
3C. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
GOLU S/O LAXMINARAYAN, AGED :
ADULT, R/O : NARVAR, NEAR MOUNI
BABA ASHRAM, SANWER ROAD, INDORE
(MADHYA PRADESH)
3D. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
SURAJ S/O LAXMINARAYAN, AGED :
ADULT, OCCUPATION : SERVICE, R/O :
NARVAR, NEAR MOUNI BABA ASHRAM,
SANWER ROAD, INDORE (MADHYA
PRADESH)
3E. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
RANI D/O LAXMINARAYAN, AGED :
ADULT, OCCUPATION : HOUSEHOLD, R/O
: NARVAR, NEAR MOUNI BABA ASHRAM,
SANWER ROAD, INDORE (MADHYA
PRADESH)
3F. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
SEEMA D/O LAXMINARAYAN, AGED :
ADULT, R/O : NARVAR, NEAR MOUNI
BABA ASHRAM, SANWER ROAD, INDORE
(MADHYA PRADESH)
3G. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
DOLLY S/O LAXMINARAYAN, AGED :
ADULT, R/O : NARVAR, NEAR MOUNI
BABA ASHRAM, SANWER ROAD, INDORE
(MADHYA PRADESH)
4. STATE OF MADHYA PRADESH, THROUGH
COLLECTOR, DISTRICT INDORE
(MADHYA PRADESH)
5. VIRENDRA SINGH S/O SHIV PRASAD
HARDIYA, AGED : 48 YEARS,
OCCUPATION : AGRICULTURIST, R/O
HARDIYA COMPOUND, INDORE
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 21-05-2024
17:56:00
7
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI AJAY BAGADIA - SENIOR ADVOCATE WITH SHRI NILESH
AGRAWAL - ADVOCATE FOR RESPONDENTS NO.1; AND
SHRI B. I. MEHTA - SENIOR ADVOCATE WITH SHRI J. B. MEHTA -
ADVOCATE FOR R.NO.5)
Reserved on : 08/05/2024
Pronounced on : 21/05/2024
These appeals having been heard and reserved for orders,
coming on for pronouncement this day, the court passed the
following:
JUDGMENT
Both these appeals i.e. Second Appeal Nos.113/2006 and 114/2006 are arising out of a common judgment and decree, therefore, both the appeals have been heard analogously and are being decided by a common judgment.
02. Both these second appeals have been preferred against the impugned judgment and decree dated 27/10/2005 passed by 13 th Additional District Judge, Indore (M.P.) in Regular Civil Appeal Nos.35-A/2004 and 36-A/2004, whereby both the appeals have been dismissed by upholding the judgment and decree dated 05/08/2005 passed by 14th Civil Judge, Class-I, Indore in Civil Suit No.102- A/2001, whereby plaintiffs' suit for declaration of title, partition, possession and permanent injunction has been partly decreed.
03. The brief facts of the case are that Dallu @ Dalchand was having a son Laxminarayan and two daughters Sushilabai and Laxmibai. He was the owner of disputed land situated at Village Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 8 Mundla Dosdar (Tillor Bujurg), Tehsil and District Indore. After the death of Dallu deceased respondent No.3 Laxminarayan got mutated his name in respect of the suit land bearing survey No.219/3, 219/4 and 220/1 and Laxminarayan tried to sale out the disputed land, therefore, plaintiffs have preferred a suit for declaration, partition, possession and permanent injunction.
04. Respondent No.3 / defendant No.1 Laxminarayan has filed his written statement before the trial Court by submitting that he never executed any agreement to sale with Virendra Singh Hardia or any other person, but defendant No.1 Govind Prasad illegally obtained possession of the suit land.
05. Defendant No.3 to 6 denied the averments of plaint by stating in their written statements that Laxminarayan was the sole owner of the suit land and he had entered into an agreement to sale in respect of the suit property and the entire consideration amount has been received by the defendant No.1 Laxminarayan, but he could not obtain permission from the Collector, therefore, sale deed cannot be executed. They have filed a suit for specific performance against the defendant Laxminarayan and others, which has been decreed in their favour.
06. Defendant No.7 Virendra Singh Hardia also denied plaint averments by submitting that although earlier Dallu was the owner of suit land, plaintiffs and defendant No.1 are the legal heirs of Dallu and Laxminarayan has sold the suit land, which is in the knowledge of plaintiffs.
07. The trial Court on the basis of the aforesaid, framed issues and Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 9 both the parties were directed to adduce their evidence and after appreciating the evidence, partly decreed the suit. Being aggrieved by the aforesaid, appellants have preferred their respective first appeals, but the same have also been dismissed by affirming the judgment passed by the trial Court, therefore, these second appeals filed.
08. Learned counsel for the appellants contended that the impugned judgments and decrees passed by both the Courts below are contrary to law and facts available on record. The disputed property has been recorded in the name of respondent No.3 Laxminarayan in the revenue records. He was also possession holder of the suit land and appellants are the bona fide purchasers of the suit land. Respondents were not taking any steps for taking their 1/3 rd share in the suit property even after the death of their father, but later on due to mala fide intention they are claiming themselves to be entitled for 1/3rd share in the suit property. It is also contended that defendant No.7 Virendra Singh Hardia has preferred a separate First Appeal No.247/2003 in which he has been succeed and this Court has held that Laxminarayan was the sole owner of the suit land and defendant No.7 Virendra Singh Hardia has purchased the suit land through registered sale deed. He is a bona fide purchaser, therefore, in view of the judgment passed in First Appeal No.247/2003 both these second appeals became infructuous and the daughters of Dallu respondent No.1 Sushila Bai and respondent No.2 Laxmi Bai have no title over the suit property. Hence, they did not deserve for any relief. In support of their contention, learned counsel for the appellant placed reliance upon the judgment delivered in the case of Vineeta Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 10 Sharma Vs. Rakesh Sharma and Others reported in (2020) 9 SCC
1. Hence, it is prayed that both the appeals be allowed.
09. Substantial questions of law framed in Second Appeal No.113/2006 and 114/2006 are same and reads as under:
"1. Whether, lower appellate Court was justified in confirming the judgment/decree passed by the trial Court which had decreed plaintiff's suit in respect of 1/3rd share each in the property held by ancestor - Dallu ?"
2. When admittedly property in the hands of Dallu was an ancestral one along with Laxminarayan - defendant No.3 (his son) as one of the coparcener, whether plaintiffs who are two daughters of late Dallu had a right to claim their 2/3rd (1/3rd each plaintiff) out of the half share which Dallu was having in the ancestral property and which devolve upon the plaintiffs along with Laxminarayan - defendant No.3 as his son? Or, whether plaintiffs were entitled to claim 2/3 rd share in the entire property?
3. When admittedly Laxminarayan -
defendant No.3 was one of the coparcener and was thus entitled to have his half share since birth in the suit property as against Dallu and his father, whether plaintiffs - two daughters of Dallu were entitled to claim any right, title and interest in the share of Laxminarayan or they could only claim their 2/3 rd share in the half share of Dallu's property on his death?
4. When character of property was not in dispute - ancestral, when status of plaintiff and defendant qua Dallu was not in dispute (see para 1 of impugned judgment), whether courts below were justified in properly calculating the shares of two daughters and Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 11 one of Dallu while effecting partition between them in relation to the suit property?"
10. Counsel for respondents opposes the prayer and prays for its rejection by submitting that impugned judgments and decrees passed by both the Courts below are based upon cogent and concrete evidence available on record and not deserve for any interference.
11. Both the parties heard at length and perused the entire record with due care.
12. During the pendency of the Second Appeal No.113/2006, respondents No.1 and 2 have filed an application under Order XLI Rule 27 of CPC for taking documents as additional evidence on record.
13. These documents are only the certified copy of the order sheets of the proceedings, plaint, other interim applications and summons of the trial Court. These documents may be relevant for proper adjudication of this appeal. These are the certified copies and their original record is already available before this Court, therefore, these documents can be considered in the evidence without taking any oral evidence. Hence, this application is hereby allowed.
14. Although during the pendency of this appeal, appellant Govind Prasad Goyal and respondents No.1 and 2 Sushilabai and Laxmibai have entered into a compromise and they have filed a joint application for compromise i.e. I.A.No.974/2023 on 16/01/2023 before the Lok Adalat. Compromise was verified and vide order dated 11/02/2023 it was directed that the factum of compromise shall be considered at the time of final hearing of this appeal.Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 12
15. It is also noteworthy that Virendra Singh Hardia has filed a first appeal against the Govind Prasad, Smt. Usha and Kamalkant Goyal, which is registered as First Appeal No.247/2003. In that matter before the trial Court Govind Prasad, Smt. Usha and Kamalkant Goyal have filed a civil suit for specific performance of contract of sale of the disputed land by the defendant Laxminarayan in favour of the Virendra Singh Hardia, therefore, fate of these second appeals completely depends upon the judgment of the first appeal. This Court has allowed the First Appeal No.247/2003 and the impugned judgment and decree passed by the trial Court therein has been dismissed that plaintiff Govind Prasad Goyal and others were not succeeded in civil suit filed by them on the basis of the execution of agreement to sale in respect of the suit property, therefore, Virendra Singh Hardia has been declared bona fide purchaser of the suit land.
16. It is also noteworthy that Dallu @ Dalchand died before 08/12/1961, therefore, daughter's of Dallu has no right to claim any part of the property because it being an agricultural land. The provisions of Section 164 of Madhya Pradesh Land Revenue Code (unamended) will be applicable. The amendment was brought w.e.f. 08/12/1961. The trial Court in para 21 of the judgment held that plaintiff No.1 was born in the year 1961, therefore, the presumption under Section 17 of MPLRC is rebuttable.
17. From the evidence available on record it is proved that Dallu died before 08/12/1961 and the present suit was filed in the year 1996. Although Laxmibai (PW-1) categorically deposed that she does Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 13 not remember the year of death of her father. It appears very unnatural that the daughter did not know the year of death of her father. It appears that she deliberately hidden the fact of death of her father, therefore, adverse interference can be drawn against the plaintiff for not furnishing the details of death of Dallu, therefore, the suit filed by the plaintiff before the trial Court is hopelessly barred by time and the findings given by the trial Court on the same issue appears to be erroneous.
18. It is remarkable that name of the respondent No.1 is recorded as Bhumiswami in the revenue record. He is also possession holder of the disputed land and Dallu @ Dalchand, who is father of respondents No.1 and 2 and also respondent No.3. Respondent No.3 died before 08/12/1961, therefore, daughters of Dallu @ Dalchand having no right over the suit property owned by their father Dallu @ Dalchand.
19. In Second Appeal No.114/2006, both the parties have entered into compromise, but daughters of the deceased Dallu @ Dalchand are not having any right, title or share in the property of their father, therefore, they are not entitled for entering into the compromise in respect of the suit property and compromise is not valid in nature. Compromise petition (I.A.No.974/2023) is dismissed. Accordingly, the substantial questions of law framed in both the second appeals are answered in favour of the appellants.
20. The judgments and decrees passed by both the Courts below on the same issue appears to be illegal, perverse and contrary to the law and facts of the case and deserves to be set aside. Accordingly, Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 14 impugned judgments and decrees dated 05/08/2005 and 27/10/2005 are set aside and the plaintiffs' suit filed before the trial Court is dismissed. Both the second appeals are allowed.
21. Let a copy of this judgment be sent to the concerned Courts below along with the respective records.
Certified copy as per rules.
(ANIL VERMA) J U D G E Tej Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00