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Judgment
Anil Sharma, J.—This first appeal u/s 96 CPC has been filed by the appellants/plaintiffs against the judgment and decree dated 1st February, 2005 passed by learned 7th Additional District Judge, Gwalior, in civil suit no. 10-A/2004, whereby the suit filed by the appellant/plaintiffs for declaration of sale deed dated 29.10.1998 executed by the defendants no. 1 to 3 in favour of the defendants no. 4 and 5 is void and ineffective and no right accrued to the defendants on the basis of that sale deed, has been dismissed. Succinctly stated facts of the case are that the appellants/plaintiffs had filed a suit for declaration of sale deed dated 29.10.1998 void on the ground that the appellants/plaintiffs and 48 other persons have purchased 10 bigha land out of total 12 bigha 10 biswa land situated on survey no. 964 in the village Mahalgaon, Tahsil and District Gwalior (MP) from one Kundan Singh by registered sale deed dated 7.1.1996 which has been shown in the map Annexure- annexed with the plaint by mark . The land has been developed by respondent no. 6 and plots no. 56, 57 and 58 have been allotted to the appellants/plaintiffs which are shown by red ink line in the map Annexure- which is disputed property in this case. It is further stated that the respondents no. 1 to 3 have transferred the same disputed property to the respondents no. 4 and 5 by registered sale deed dated 23.10.1998. The respondents no. 1 to 3 are successor of Kundan Singh who had sold the property to the appellants/plaintiffs by registered sale deed dated 7.1.1996, therefore, the respondents no. 1 to 3 was not having any title, right and authority in the disputed property, therefore, they could not transfer the land to the respondents no. 4 and 5, therefore, the respondents no. 4 and 5 have not acquired any title, interest and right in the disputed property. When, the respondents no. 4 and 5 tried to raise construction on the disputed land on 8.5.1999, the appellants/plaintiffs instituted the suit before the trial court for declaration and permanent injunction.
The respondents no. 4 and 5 in their written statement have admitted that the sale deed dated 7.1.1996 have been executed by Kundan Singh but the plaintiffs have wrongly marked the land as in the map Annexure- . They have further denied that the appellants/plaintiffs acquired the plots no. 56, 57 and 58 through the respondent no. 6. They have further stated that they have purchased 4 biswa land from survey no. 964 from Sonabai and the land is mutated separately in the name of the respondents no. 4 and 5 in the revenue record. The correction of survey number in the sale deed is carried out by document dated 19.5.1999. It is further stated in their written statement by the respondents no. 4 and 5 that the identity of the land 10 bigha is not ascertained, therefore, the map Annexure-B of the plaint is not correct. The respondents have separately constructed boundary wall after demolition of patore purchased by them.
Learned trial court by the impugned judgment has dismissed the suit by holding that it has not been proved that the sale deed dated 29.10.1998 executed in favour of the respondents no. 4 and 5 is ineffective and respondents no. 4 and 5 did not acquire any right by the said sale deed. The learned trial court has also held that the appellants/plaintiffs are not entitled for permanent injunction and the disputed land has been mutated in the name of respondents no. 4 and 5 and the land is of their ownership and they are title holder and possession holder of the land.
Being aggrieved by the impugned judgment, the appellants/plaintiffs have filed this appeal on the ground that the judgment and decree passed by the learned trial court is perverse and against the record. It is an admitted fact that the appellants/plaintiffs and 48 other persons have purchased 10 bigha land of survey no. 964 and respondents no. 4 and 5 have subsequently purchased 4 biswa land out of remaining land area 2 bigha 10 biswa, therefore, the subsequent purchaser has to apply for the demarcation of land. The learned trial court has wrongly held that the plaintiffs could not prove their case while the sale deed executed in favour of the plaintiffs is admitted fact in the case. The learned trial court has wrongly relied on the documents Ex. D/2 to D/10. Mere proof of purchase of the property does not show that the respondents no. 4 and 5 have purchased the same disputed land which is purchased by the appellants/plaintiffs and allotted to the appellants.
The main question for consideration in this appeal is whether the judgment passed by the learned trial court is justified in dismissing the suit filed by the appellants/plaintiffs or not?
7 Learned counsel for the appellants has drawn attention towards the maps Annexures- and and submitted that according to the layout of Annexure-A, 48 plots have been sanctioned by the Town and Country Planning and the colony is developed by the respondent no. 6 and the appellants are owners of plots no. 56, 57 and 58 according to the layout and there is a dispute regarding boundaries of the appellants and the respondents no. 4 and 5. If the boundaries are demarcated, the whole dispute may be resolved. He has further drawn attention towards the fact that the application for commission was filed before the trial court which was dismissed by the learned trial court by order dated 28.1.2005 on the ground that at the stage of passing of judgment, there is no need of spot inspection by the Commissioner.
It has been further submitted by learned counsel for the appellants that the appellants/plaintiffs had also filed an application under Order 16 Rule 1, 2 and 6 read with Section 151 CPC before the trial court for calling the record of layout plan and allotment of plots and maintenance fee etc from the respondent no. 6 but that application was rejected by directing the plaintiffs to produce any employee of the concerned Society.
Learned counsel for the appellants has cited judgment of this Court in the matter of Chotelal Vs. Sodarabai and another, , in which it has been held that ''where an application has been filed under Order 16 CPC, the court ought to have given at least one fair opportunity to petitioner to summon defense witnesses. Order impugned cannot be sustained in law and accordingly it is set aside." It is further held that the procedural laws are meant to advance justice and not to hinder or thwart it.
Learned counsel for the appellants has also cited judgment of this court in the matter of Jaswant Yadav Vs. Deen Dayal, in which it has been held that "where there is a border dispute about land between the parties, it is the duty of the Court itself to issue a commission to get the land demarcated. The defendant''s application under Order XXVI Rule 9 CPC was wrongly rejected by the Trial Court. The First Appellate Court committed the same error by not allowing the said application. The judgment and decrees of both the Courts below are set-aside and the case is remanded to the Trial court to issue commission for demarcation of the property in dispute."
Learned counsel for the respondents has submitted that the appellants/plaintiffs is misrepresenting the maps annexed with the plaint. It is the case of the appellants/plaintiffs that 10 bigha land has been purchased by the appellants/plaintiffs, out of which three pieces of land have been allotted to the plaintiffs but the owner of land while taking permission for developing the land and sanction of plan has made mischief by mentioning in the layout plan the area of land by mentioning as 233700 Sq ft. and 5.36 acres. While according to the calculation table, 10 bigha of land is equivalent to 5.166 acres area 2.090 hectare and the plots have been developed by increasing the land from 5.166 acres to 5.36 acres i.e. more than.2 acres of land has been increased in the layout plan, for which there is no owner. The said land was not allotted to the original predecessor of land of plaintiffs. The defendants have purchased 4 biswa of land which is equivalent to 0.103 acre and 0.042 hectare.
Learned counsel for the respondents has further submitted that the sale deed Ex. P/1 shows the boundary of land purchased by the plaintiffs in which on eastern direction, remaining land of seller Kundan Singh has been shown and in the sale deed executed by legal heirs of Kundan Singh in favour of defendants no. 4 and 5 which is Ex. D/2, there is specific mention that on the land, Patore is situated and on wester side of the land, house belonging to Yadavji is situated and thereafter, there is a passage. On eastern side, house of Girraj Sharma is situated and on northern side, government passage is situated. On southern side, property of predecessor Omprakash is situated. Therefore, there is no open piece of land towards all four premises of the land purchased by the defendants no. 4 and 5. There is no mention of land, on which Patore is situated, has been sold to the plaintiffs.
Learned counsel for the respondents has further submitted that after purchase of the land, defendants no. 4 and 5 have got their name mutated in the revenue record and the land belonging to them has been marked as Survey No. 964/2. A copy of mutation order has been filed as Ex. D/8 which is of 23.12.2000 in which map of side is exhibited as D/9 in which land of the respondents no. 4 and 5 has been shown as survey no. 964/2.
Learned counsel for the appellants has tried to establish that on northern and eastern portion of total land Kundan Singh, there is a piece of land which is shown in the map and the respondents no. 4 and 5 have purchased that piece of land but it is the case of the plaintiffs that for the land purchased by the predecessor was only 10 bigha and they have obtained sanction for land which is more than 10 bigha, therefore, the sanction plan is not according to the land purchased by them and mutation of the respondents no. 4 and 5 has been shown after following due process of law and there seems to be no dispute regarding boundaries as the land purchased by the respondents no. 4 and 5 has been part of remaining land of original owner Kundan Singh and Patore is situated on that land and after that land, there is no other land of the owner of the land towards any other direction and the land purchased by the plaintiffs is only 10 bigha and they have got sanctioned the layout for more than 10 bigha of land and in the light of the sanction plan it seems that they have tried to encroach upon the land access 10 bigha of land which was purchased by them. Therefore, the learned trial court is wholly justified in rejecting the application filed for commission and for layout plan for summoning the witnesses with layout plan and allotment of record of plots.
Learned counsel for the appellants has further submitted that the defendants have not appeared as witness, therefore, adverse inference should be drawn against them. In this regard, he has cited judgment of Hon''ble the Apex Court in the matter of Khatri Hotels Private Limited and Another Vs. Union of India (UOI) and Another, , in which it has been held that in a civil suit where the plaintiff though cited as witness not stepping into witness box, adverse inference from, drawn against the plaintiff u/s 114 III (g) and 106 of the Evidence Act."
In the present case, the documentary evidence in the form of certified copy of the sale deed, sanction plan, mutation proceedings and orders needs no corroboration by whole evidence as it is apparent on the face of record that the land purchased by the original predecessor of the plaintiffs was only 10 bigha and the sanction plan has been obtained for more than 10 bigha thereby intending to legalizing the encroachment upon the land by filing a suit for declaration and permanent injunction, therefore, the learned trial court under the above circumstances is justified in dismissing the suit filed by the plaintiffs and there is no ground to interfere in the judgment passed by the trial court. Therefore, this appeal deserves and is hereby dismissed. The appellants shall bear their own costs as well as costs of the respondents. Counsel fee, if pre-certified, be calculated according to rules. Decree be drawn accordingly.