Madhya Pradesh High Court
Ramvinay Karsoliya vs Manish Patel on 24 April, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 24 th OF APRIL, 2024
MISC. PETITION No. 2090 of 2022
BETWEEN:-
1. RAMVINAY KARSOLIYA S/O SHRI JAMNA
PRASAD KARSOLIYA, AGED ABOUT 62 YEARS,
OCCUPATION: FARMER PERMANENT RESIDENT
OF VILLAGE JHAMAR (MAIDHI) TEHSIL PATAN
DISTRICT JABALPUR (MADHYA PRADESH)
2. RAMESH KARSOLIYA S/O SHRI RAMVINAY
KARSOLIYA, AGED ABOUT 25 YEARS,
OCCUPATION: FARMER PERMANENT R/O
VILLAGE JHAMAR (MAIDHI), TEHSIL PATAN,
DISTRICT JABALPUR (MADHYA PRADESH)
3. STATE OF MADHYA PRADESH THROUGH
CO LLECTO R JABALPUR DISTRICT-JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KISHOR SHRIVASTAVA- SENIOR ADVOCATE WITH SHRI KUNAL
THAKRE-ADVOCATE )
AND
MANISH PATEL S/O SHRI RAMMU PATEL, AGED ABOUT
45 YEARS, VILLAGE JAMUNIYA SAKRA TEHSIL PATAN
DISTRICT JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAVENDRA TIWARI-ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
With the consent of parties, the matter is heard finally.
2. In this petition, the petitioners/defendants have assailed the orders Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/29/2024 6:37:39 PM 2 dated 25.3.2022 passed by the Civil Judge Junior Division, Patan District Jabalpur in RCSA/73/2021 and dated 26.4.2022 passed by the District Judge, Patan District Jabalpur in MCA No.9/2022, granting temporary injunction in favour of respondent no.1/plaintiff.
3. Precisely the facts of the case are that the respondent no.1/plaintiff filed a suit for declaration and injunction against the petitioners and respondent no.2/State in the Court of Civil Judge, Senior Division, Patan in respect of subjected land bearing survey no.37 admeasuring 1.5500 hec. of Village-Deori, Patwari Halka Jamunia, Tahsil-Patan, District-Jabalpur, whereby it was pleaded that he is the owner and occupier of land, his name is duly recorded as land owner in the revenue records, he has already mortgaged the land and obtained the loan from State Bank of India on 15.6.2021. The petitioner/defendant no.1 stopped him from working on the subjected land on the ground that he is owner of land. It is further pleaded that when it was enquired by plaintiff/respondent no.1, he came to know that his father executed a sale deed in respect of subjected land without obtaining any permission from the competent court under Section 8 of the Hindu Minority and Guardianship Act, 1956 and on the strength of the sale deed, the petitioner/defendant no.1 wants to dispossess him from the subjected land. Consequently, he approached to the court and filed present suit along with an application for issuance of temporary injunction. Petitioners appeared before the trial court and filed their reply, wherein they denied that sale deed executed by father of plaintiff/respondent no.1 on 17.4.1996 is null and void document. They further pleaded that they are in possession of the subjected land and possession was delivered by father of plaintiff and the present suit is filed by plaintiff to grab the land of defendants. The plaintiff has fraudulently mortgaged land with State Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/29/2024 6:37:39 PM 3 Bank of India as the defendants omitted to mutate their name in the revenue records. It is further pleaded by defendants that upon complaint of defendants, a criminal case is registered against the plaintiff under Section 420 of the IPC at Police Station-Patan and Patwari examined the spot and found that defendants are in possession of the land and he prepared the spot memo also therefore, no injunction can be granted against the defendants.
4. Plaintiff filed an affidavit of himself in support of his application and copies of the revenue records, registration of Samagra IDs in support of his contention whereas the defendants filed their affidavits and affidavits of ten neighbors in support of their reply.
5. The learned trial court by order dated 25.3.2022 allowed the application moved by the plaintiff by holding that as name of the plaintiff is recorded in revenue records therefore, prima facie plaintiff is in possession of the land. Learned trial court restrained the defendants from interfering in the possession of plaintiff. The order passed by the trial court was assailed by the defendants under Order 43 Rule 1(r) of CPC by preferring miscellaneous appeal before District Judge, Patan, which was dismissed by order dated 26.4.2022.
6. Learned senior Counsel appearing on behalf of the petitioners/defendants submits that the orders passed by trial court and appellate court are incorrect, erroneous and liable to be set aside as the orders were passed mainly considering the revenue entries whereas the name of plaintiff was already recorded in the revenue record and when the defendants purchased land through registered sale deed, the same was continued year to year because defendants did not apply for mutation on the basis of sale deed.
Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/29/2024 6:37:39 PM 47. Learned senior counsel further submits that trial court and appellate court passed the impugned orders considering the fact that sale deed was executed by father of plaintiff without obtaining any permission from competent court under Section 8 of the Hindu Minority and Guardianship Act, 1956 and therefore, the transfer is void whereas as per law the transfer is not void and it is only voidable and until and unless the competent court passes a decree, the sale deed is effective. He further submits that in the sale deed, there is clear recital that seller has handed over vacant possession of land to the purchaser and the trial court and appellate court have failed to consider the said recital and accepted the possession of the plaintiff on the basis of Khasra entries and some other documents those are not sufficient to prove the possession of plaintiff.
8. It is further submitted by learned senior counsel that minor can challenge the sale of his property by his natural guardian within three years from the date of attaining the majority, whereas the present plaint has been filed after a long period and therefore, prima facie the plaintiff has lost his right to challenge the sale deed. Once the sale deed is executed, the title is passed until and unless it is declared as void document by the competent court. He submits that title is still with the defendants and no injunction could be granted against the true owner and no irreparable injury will be caused to the plaintiff. Prima Facie no case is made out in favour of plaintiff and balance of convenience is also not in favour of the plaintiff.
9. Learned senior counsel relied upon the judgment of Apex Court delivered in the matter of State of Kerala Vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors. reported in (1996) 1 SCC 435 Signature Not Verified wherein it was decided that unless necessary order is passed, document cannot Signed by: PREETI TIWARI Signing time: 4/29/2024 6:37:39 PM 5 be treated as void or voidable and the same shall be presumed to be valid until set aside or otherwise held to be invalid by the court of competent jurisdiction. On the strength of the aforesaid pronouncement of Apex Court, he submits that sale deed executed in favour of defendants by father of plaintiff is still in force and is valid document and the recital of delivery of possession was required to be considered by the trial court and the appellate court and no oral evidence contrary to the recital could be considered in view of the provisions of Section 91 and 92 of the Evidence Act.
10. He further relied on the judgment of Coordinate Bench delivered in the case Sourabh Vs. Mohakam Singh & Ors. 2014 SCC online MP 1754 wherein the coordinate bench of this Court has held that sale deed executed by the father of minor can be assailed by the minor within three years from the date of attaining majority and thereafter he cannot file a suit and no relief can be granted. He further relied on the judgment of Kerala High Court reported as AIR 2012 Kerala 110 (K.P. Mani & Ors. Vs. Malu Amma & Ors) wherein the period of limitation prescribed for challenging the sale deed executed by the natural guardian of the minor was discussed and decided. The Judgment delivered in the case of Murugan & Ors. Vs. Kesava Gounder (dead) through legal representatives & Ors. reported in (2019) 20 SCC 633 is also relied upon by the learned senior counsel wherein limitation for challenging the sale deed was discussed and decided.
11. On the strength of above pronouncement of the Apex Court and High Court, learned Sr. Counsel submits that according to Article 60 of Limitation Act, the limitation for challenging the sale deed was three years from the date of attaining the age of majority by the plaintiff however, the plaintiff was Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/29/2024 6:37:39 PM 6 aged about 45 years when he filed the suit and therefore prima facie challenge of the plaintiff is time barred. He submits that the orders passed by the trial court and appellate court be set aside and the application preferred by the respondent/plaintiff for issuance of temporary injunction under Order 39 Rule 1 & 2 of the CPC be also dismissed.
1 2 . Per contra, learned counsel for the respondent/plaintiff supported the orders passed by trial court and appellate court and submits that trial court has considered the pleadings of parties, affidavits and documents and thereafter, passed the impugned order which is based on due appreciation of material and the same was duly upheld by the appellate court therefore, there is no scope for interference in the present petition filed under Article 227 of the Constitution of India. So far as factual aspects are concerned, the findings are concurrent and not required to be interfered with. He further submits that land was in possession of plaintiff continuously and name of plaintiff was continuously recorded as Bhumi Swami in the revenue records. The plaintiff moved an application for correction of record that was also allowed. Plaintiff obtained the loan by mortgaging the subjected land. Samagra ID was also issued in favour of plaintiff whereas the subjected land is mentioned as land owned by plaintiff after due enquiry and the plaintiff is selling the crops in Mandi year to year. He further submits that petitioners/defendants are influential and politically powerful persons and they can dispossess the plaintiff from the subjected land and therefore, his possession ought to have been protected during the pendency of the suit. He prays for dismissal of this petition.
13. I have heard the learned counsel for the rival parties and perused the record.
14. It appears from the record that few facts are admitted in the Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/29/2024 6:37:39 PM 7 present case including the fact that plaintiff was owner of subjected land and his name was already recorded in revenue record as land owner. On 17.4.1996, the father of plaintiff executed sale deed on behalf of plaintiff as natural guardian and sold the subjected land to petitioners/defendants wherein it is mentioned that full consideration amount was received and possession was also delivered at the spot. Even after execution of the sale deed in favour of defendants by father of the plaintiff, no application was moved on behalf of defendants for mutation till 2021 and when application was moved, plaintiff filed the present suit and raised objection before the revenue officers.
15. In support of defendants, several residents of village have executed affidavits wherein they stated that land in question is in possession of defendants. The neighbors who earlier filed affidavit in favour of plaintiff have also changed their version and later on filed affidavits in favour of the defendants. Defendants have lodged FIR against the plaintiff for obtaining loan from the bank. The case of defendants is based on the recital of sale deed as well as spot memo prepared by the Patwari whereas the case of plaintiff is based on the revenue entries, Samagra IDs, bank loan documents. These documents are not sufficient to ascertain or decide the possession of any of the party because the sale deed was executed on 17.4.1996 and the suit was filed in the year 2021 and during this period of around 25 years, the person who is in actual possession, must have several documents including receipt of payment of land revenue, electricity bills, purchase bill of seeds, payment receipts of crops etc. However, both the parties have not filed these documents.
16. At this stage, this Court has not to decide that whether the sale deed is valid or not or whether the suit has been filed within limitation. These Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/29/2024 6:37:39 PM 8 issues are required to be decided by the trial court and therefore, the judgment cited by learned Sr. Counsel on behalf of petitioners/defendants are not helpful at this stage. The findings of the trial court and appellate are also not based on sound grounds.
17. However, in the absence of relevant document only on the basis of the affidavits and the available documents, it is not possible to express any opinion in respect of prima facie possession of any of party and therefore, considering the peculiar facts and circumstances of the present case and keeping in view that during the pendency of suit, the parties should maintain the status quo and they cannot be permitted to interfere in the possession of the opposite party or alienate the subjected land, the present petition is disposed of with direction to the parties to maintain status quo in respect of possession as well as title of the property in question as it exists today and the trial court is directed to decide the suit expeditiously preferably within a period of six months from the date of receipt of copy of this order.
With the aforesaid, the present petition is disposed of and the order passed by the trial court and the appellate court are modified to the above extent. Copy of this order be forwarded to the trial court.
There shall be no order as to costs.
(VINAY SARAF) JUDGE P/-
Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/29/2024 6:37:39 PM