Dhan Singh And Others vs Chironja Bai And Others

Appellants were defendants before the trial Court. Respondents namely Chironja Bai, Dhanmati Bai and Dujiya Bai were plaintiffs before the trial Court. Moliya Bai widow of Mehilal Gond was also plaintiff before the trial Court, who died during the course of trial and her name was deleted from the array of plaintiffs on 06.02.2017.

The case of plaintiffs in short is that the land in dispute namely Khasra No.52/3, 147/4, 148/3, 183, 251/4, 255/8 i.e. total six Khasra numbers, total admeasuring about 12.13 acres is ancestral property of the plaintiffs. The said land belonged to Mehilal Gond. The property is located in Village Sajaniya, Tehsil Naurozabad, District Umaria. Plaintiffs in the suit prayed for declaration of ownership over 1/5th part of suit property, declaration of mutation order dated 15.07.2010 and resolution of gram panchayat dated 15.07.2010 for doing mutation in the name of Dhan Singh to be null and void. Further prayer was made to declare registered sale deed dated 20.05.2015 made by Dhan Singh (defendant No.1) in favour of Suraj Singh (defendant No.3) to be null and void, and for grant of permanent injunction restraining defendants from interfering in the possession of the plaintiffs by the defendants or through their agents.

Defendants had filed their written statement and they have denied all the pleadings made by the plaintiffs. It was further denied that Dujiya Bai, plaintiff No.3, is daughter of Mehilal Gond and it was also denied that Moliya Bai (deceased plaintiff No.4) was not wife of Mehilal Gond. The wife of Mehilal Gond and was Prem Bai, who died about 32 years before.

Learned trial Court vide its judgment and decree dated 31. 01.2018 decreed the suit.

Appellants being aggrieved by the judgment and decree passed by the trial Court had preferred an appeal before District Judge, Umaria, bearing Civil Appeal No.6-A/2018. Learned District Judge vide its judgment and decree has modified the judgment and decree passed by the trial Court to the extent that Chironja Bai, plaintiff No.1, Dhanmati Bai plaintiff No.2, Dhan Singh defendant No.1 and Soma Bai defendant No.2 each are entitled to one fourth share in the suit property. The claim of Dujiya Bai plaintiff No. 3 was rejected. Learned appellate Court held that Dujiya Bai had failed to prove that she was the daughter of Mehilal Gond and she had a share in the suit property.

Appellants Dhan Singh, Soma Bai and Suraj Singh has filed second appeal before this court on the following substantial questions of law :-

"1 . Whether the Court below committed serious error of law by not giving the proper weightage according to law to the sale deed of defendant No.3 and wrongly forfeited his title / right to file a suit for partition?

Whether the Court below ought to hold that by virtue of sale deed, defendant No.3 has become a co-owner of the property in relation to the share or entitlement or property of defendant No.1-vendor?"

As far as proposed substantial question of law No. 1 is concerned, counsel appearing for the appellants had argued that proper weightage to sale deed of defendant No.3 namely Suraj has not been given and wrongly fortified his title to file a suit for partition. The question which arises in the present case is whether appellant No.2 is a bonafide purchaser and whether he has any right to get the ancestral property of plaintiff partitioned. On going through the sale deed, it cannot be said that transaction between defendant No.1 Dhan Singh and defendant No.2 Suraj Singh was bonafide in nature. Dhan Singh has not sold his share of property to defendant No.3-Suraj. He had sold 4 Khasra Nos. out of 6 Khasra Nos. of the property to Suraj. Khasra No.147/4, 148/3, 183 and 251/4 has been sold to Suraj Singh. Defendant No.3 can claim only to get the share of the property which belongs to Dhan Singh after partition. Dhan Singh has, in fact, sold more property than his share in ancestral property. Suraj defendant No. 3 has not taken sufficient precautions, which ordinarily a purchaser would take. He had not made any advertisement in the newspaper nor he had gone through the revenue records or tried to take information regarding the lineage of deceased Mehilal Singh Gond, therefore, purchase cannot be said to be bonafide in nature. Defendant No.3 also did not prove other co-owners were ousted from the property. Courts below had not committed any error of law in forfeiting the title/ right of the defendant No.3. Courts below have rightly declared the sale deed dated 20.05.2015 to be null and void. No substantial question of law No.1 as proposed by the appellants arises in this appeal.

The second question raised by the appellants is whether Courts below giving weightage to sale deed ought to have allowed defendant No.3 share or entitlement in the property to the extent of share of defendant No.1-vendor. The said question has already been dealt with while deciding substantial question No. 1. Since defendant No.1 i.e. appellant No.1 in the present case has sold more than his share of property to defendant No.3, therefore no right had accrued in favour of defendant No.3. Appellant No.1 cannot create a right in favour of defendant No.3 better than his own title and defendant No.3 has failed to prove that he is bonafide purchaser of property.

In view of aforesaid discussions, second appeal filed by the appellants is dismissed.