Chhotelal Singh and Others vs Mekru and Uttarkumar

T.P. Sharma, J.—By this second appeal u/s 100 of the Code of Civil Procedure, 1908, (for short ''CPC), original defendants/appellants have challenged legality and propriety of the judgment & decree dated 10.3.1995 passed by the Additional Judge, Sakti to the Court of District Judge, Bilaspur, in Civil Appeal No. 14-A/84, affirming the judgment & decree of decreeing the suit for declaration and permanent injunction, alternate, for possession dated 23.1.84 passed by the Additional Civil Judge Class-I, Bilaspur in Civil Suit No. 57-A/84. The present second appeal has been admitted for consideration on 10.2.2012 on the following substantial questions of law:

Whether finding of the Courts below relating to alienation of the land by co-owner Ramnath is perverse?

Whether in the light of sale deeds exs. D-1 and D-2 and admission of plaintiff Mekru in para 8 of his evidence the courts below would have dismissed the suit filed on behalf of the plaintiff?

After death of appellants No. 1 and 3/defendents, their legal representatives have been impleaded as the appellants.

As per pleadings of the parties, on 30.3.59 plaintiff Mekru and Ramnath had purchased the suit property bearing khasra no. 1108 area 0.88 acre situate at Sakti. After purchase of the suit property Ramnath has constructed house and kolabadi over his share. Rest land was owned and possessed by plaintiff Mekru. On 6.12.68 Ramnath has executed sale deed in favour of Laxminarayan and Mangalchand relating to his share subsequently, Laminarayan and Mangalchand have sold the share purchased from Ramnath to defendant Uttarkumar, who was Government servant, therefore, sale deed was executed in the names of Chhotelal, Chakradhar Singh and Padamdhar Singh. On 19.5.76 defendant Uttarkumar tried to demarcate the land by barbate wire and further he has tried to take possession on part of the land owned by plaintiff Mekru. Subsequently he came to know that Uttarkumar has succeeded in mutation of the land of 0.22 acre owned by plaintiff Mekru in the makes of his minor sons and father. Thereafter suit for declaration and permanent injunction in alternate, for possession was files. The defendants have denied the allegation. Defendant No. 1 has files separate written statement and has denied the allegation made in the plaint. Defendant No. 2 has also files separate written statement and has supported the claim of defendant No. 1. After providing opportunity of hearing to the parties, the Additional Civil Judge Class-1 has decreed the suit. Same was affirmed by the Additional Judge, Sakti to the Court of District Judge, Bilaspur.

I have heard leaned counsel for the parties, perused the judgment impugned, judgment of the trial Court and records of the Courts below.

Learned counsel for the appellants vehemently argues that virtually this is dispute relating to boundary and in case of dispute between boundaries and khasra number boundaries shall be prevailed. Learned counsel further argued that as per Ex. D-1 sale deed, Ramnath has sold the land to Laminaranayan and Mangalchand vide sale deed dated 6.12.68, in which boundary of the property has been shown in west side, share of Mekru has been shown in south side, land of Sadhram has been shown in north side laxminarayan and Mangalchand have sold the property to Chhotelal vide Ex. D-1 on 3.4.1975 which they have purchased by sale deed Ex. D-1 from Ramnath. Learned counsel also argued that plaintiff Mekru has specifically admitted in para 8 of his evidence that boundary mentioned in Ex. D-1 from Ramnath. Learned counsel also argued that plaintiff Mekru has specifically admitted in para 8 of his evidence that boundary mentioned in Ex. D-1 is true. He has denied the suggestion that Ramnath has sold the land to the extent of Sadhram''s land. He has further explained that it was suggested by Banshi who prepared the sale deed that he is not required to show the rest land between the land sold to the defendant Sadhram, therefore, it has not been shown in Ex. D-1. Learned counsel contended that Ramnath has sold the land vide Ex. D-1. Plaintiff Mekru has admitted signature over sale deed executed by Ramnath. Aforesaid evidence is sufficient to prove the fact that the property in question has been sold by Ramnath, it was owned by Ramnath and sale deed has been executed in the year 1968, it was also signed by plaintiff Mekru. Aforesaid execution of sale deed was well within the knowledge of plaintiff Makru, therefore findings of the Courts below are perverse in the light of documents Ex. D-1 and D-2 and admission of Makru in para 8 of his evidence.

Learned counsel placed reliance in the matter of Sheodhyan Singh and others V. Mst. Sanichara Kuer and other 1 in which the Supreme Court has held that in case of conflict between boundaries and khasra number khasra number and boundaries shown shall be prevailed. Learned counsel further placed reliance in the matter of Pannalal Bhagirath Marwadi V. Bhaiyalal Bindraban Pardeshi Teli 2 in which the Privy Counsel has taken same view.

On the other hand, learned counsel for respondent No. 1 opposed the appeal and argued that concurrent findings of fact of both the Courts below are not liable to be disturbed without there being any cogent reason. Virtually in the present case there is no substantial question of law for decision of the appeal. Learned counsel further argued that both the parties have led evidence and the respondents have clearly established the fact that only Ramnath has sold his share, even he was not competent to sale the share of plaintiff Makru. Ex.-D-1 consent of Ramnath has further proved the fact that he has sold his entire land to Laxminarayan and Mangalchand.

Learned counsel placed reliance in the matter of Jagaribai Ramlal Kanojia V. Ramkhilawan Govind Prasad and Other 3 in which the High Court of Madhya Pradesh has held that consent to transaction is tort the person from challenging alienation or sale.

As per Ex. D-1 share of Makru has been shown in west side and property sold has been shown adjoining to share of Makru in east side, but as per claim of plaintiff Makru he is also owner of the land between constructed house including courtyard and land of Sadhram, but it has not been shown in Ex. D-1, even it does not find place in Ex. D-1.

Definitely, this is the case of boundary dispute. As per entire evidence both the parties have failed to prove that how the actual land has been purchased by Ramnath and Makru and what was share of each party, but Ex., D-1 reveals that one part has been sold by Ramnath in which Makru has also signed which shows that he has sold the land or he was consenting party. Alleged disputed part of the land has not shown in Ex. D-1 as the rest land left and owned by Makru, inter alia, specific part of Makru has also been shown in Ex. D-1.

In the light of aforesaid specific boundary and description in Ex. D-1 well corroborated by the evidence of plaintiff Makru in para 8 of his evidence, Makru was not owner of the aforesaid land claimed by him, therefore, in the light of admission of Makru and sale deed Ex. D-1 the Courts below ought to not have decreed the suit and by decreeing the suit both the Courts below have committed illegality. Findings of the Courts below are perverse and suit would have been dismissed. Consequently, substantial questions of law formulated for the decision of this appeal are decided as positive. On the basis of finding on substantial question of law, the appeal deserved to be allowed and is hereby allowed and decreed in following terms: Suit filed on behalf of plaintiff Makru for declaration and permanent injunction, alternate, for possession is dismissed.

Parties shall bear their own cost.

Advocate fees as per schedule.

Decree be drawn accordingly.