Smt. Rekha Savita vs Jeevanlal Jatav and Another

S.K. Gangele, J.—The plaintiff/appellant has filed this First Appeal against the judgment and decree passed in Civil Suit No. 15-A/2009 by the learned Second Additional District Judge, Gwalior, whereby the Trial Court dismissed the suit of the plaintiff/appellant. The appellant filed a suit for declaration, permanent injunction and recovery of possession. She pleaded that a house situated at Village Bahodapur, District Gwalior was of the ownership of Babu Khan, who executed an agreement on 19/1/1987 in favour of Gopiram Jatav, S/o Tularam Jatav and agreed to sale the aforesaid property for a consideration of Rs. 5,000/- and possession of the property was handed over to Gopiram Jatav. Thereafter, Gopiram Jatav had constructed two rooms, kitchen and one latrine & bathroom over the place. Before expiry of period of agreement Babu Khan died and then Gopiram Jatav also died and thereafter, wife of Gopiram Jatav, namely, Smt. Shantibai executed a sale deed dated 17/2/2009 and sold the property in a consideration of Rs. 2,00,000/- in favour of plaintiff and also delivered possession to the plaintiff. Since then the plaintiff was in possession over the suit property, however, on 24/5/2009 the defendants forcibly had taken possession of the suit property from the plaintiff/appellant, hence, the plaintiff filed present suit.

The defendants in their written statement denied the pleadings of the plaintiff. They denied the fact that Babu Khan executed an agreement on 19/1/1987 in favour of Gopiram. They further denied the fact that Gopiram Jatav had any legal right over the suit property. They further pleaded that the defendants were in possession of the suit property since 4/2/1987 and they had legal right over the suit property.

On the basis of the pleadings, the Trial Court framed seven issues to the effect that whether the plaintiff purchased the suit property from Shantibai and received possession and whether on 24/5/2009 defendants dispossessed the plaintiff and whether the plaintiff is the owner of the suit property and she has a right to recover possession of the suit property.

It is not necessary to discuss the evidence in detail, from the pleadings of the plaintiff herself it is clear that owner of the suit property was Babu Khan and as per the plaintiff, he executed an agreement to sale in favour of Gopiram Jatav and placed him in possession over the suit property and after his death, his wife became owner of the suit property and thereafter, she executed a sale deed in favour of the plaintiff. The appellant/plaintiff claimed her title on the basis of sale deed executed by the wife of Gopiram Jatav, who died during the life time of his wife. The source of title of Gopiram Jatav over the suit property is based on the basis of an agreement to sale said to be executed by Babu Khan. It is well settled principle of law that an agreement to sale does not confer any title over the property, hence, the plaintiff could not claim right of ownership on the basis of sale deed.

Learned counsel appearing on behalf of the appellant has contended that the appellant was in possession over the suit property. He was dispossessed, hence, he has a right to resist his possession and decree of delivery of possession ought to have been awarded by the Trial Court in favour of appellant. In support of his contention, learned counsel relied on the judgment of Hon''ble Supreme Court in the case of M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, .

The learned Trial Court after appreciation of evidence does not found possession of the appellant over the suit property. The appellant herself pleaded that the sale deed was executed on 17/2/2009 and she purchased the suit property from Shantibai and thereafter a report was lodged at the police station on 30/5/2009 to the effect that the defendants had taken possession of the suit property. It means that if the version of the appellant be accepted, then within a period of three months possession had been taken by the defendants. In the present case, the appellant/plaintiff does not examine Shantibai, who had executed the sale deed in favour of appellant/plaintiff and as per the appellant, she had delivered the possession of the house to the appellant. The appellant only produced some receipts of the bills of water of the Municipal Corporation (Ex. P/4, P/5 and P/6). The Trial Court has observed that it is not clear from the aforesaid bills that the water tax of which property was deposited by the aforesaid bills. In our opinion, non-examination of Shantibai, who executed the sale deed, by the appellant/plaintiff is fatal because she could have deposed that possession was delivered to the appellant. The Trial Court recorded the finding of facts after appreciation of evidence that the possession was not delivered to the appellant. In our opinion, the finding is in accordance with law, hence, we do not find any merit in this appeal. It is hereby dismissed. Looking to the facts of the case, parties shall bear their own costs.