Urmila vs Prabhu

Rohit Arya, J.—This appeal by plaintiff is directed against the judgment and decree dated 29/9/2007 in Civil Appeal No. 28-A/2007 setting aside the judgment and decree dated 31/7/2007 in Civil Suit No. 24-A/2005 filed by defendants. Plaintiff's suit for delivery of possession and permanent injunction has been dismissed.

Following question of law arises to be addressed upon for disposal of this appeal:-

"Whether the first appellate court was justified dismissing the suit having found the claim of title based on sale deed dated 30/7/2005 (Ex. P/1) not proved for want of evidence; (i) as regards ancestral property; (ii) absence of Will on record allegedly executed by Bhagwati Prasad, father of Mahaveer Soni; and, (iii) absence of Patta allegedly given by Gram Panchayat, Raghunathpur to Mahaveer Soni?"

Plaintiff filed a suit inter alia contending that in village Raghunathpur, Tahsil Vijaypur, District Sheopur suit plot is situated, description of its boundaries are explained in para 3 of the impugned judgment. Relevant for the purpose of this appeal is the description on the western side where the open land and a house of defendants No. 1 to 5 is situated. The aforesaid plot was of the title and ownership of one Mahaveer Soni and the same has been purchased by the plaintiff on a consideration of Rs. 8,000/- by registered sale deed dated 30/7/2005 and thereby plaintiff has acquired title and is in possession thereof. It is alleged that the defendants on 10/9/2005 had forcefully encroached upon the area marked as "A, B, C and D" in the plaint and they intended to raise construction of shop and, therefore, instant suit was filed.

Defendants No. 1 to 5 filed written statement and denied the plaint allegations. It is inter alia contended that the suit plot is of the ownership and possession of their ancestors. It is submitted that Mahaveer Soni had no right, title and interest over the suit property. It is pointed out that the plaintiff is the wife of Mahaveer Soni and Mahaveer Soni with some oblique motives and to achieve collateral purposes of grabbing the land executed a sale deed in favour of his wife on 30/7/2005 without any consideration. The suit is filed on concocted and fabricated facts. The alleged claim of possession and title based upon the aforesaid sale deed is based on misrepresentation and deserves to be negated. With the aforesaid pleadings, suit was prayed to be dismissed.

On the aforesaid pleadings, trial court framed issues, allowed the parties to lead evidence and decreed the suit. On appeal by defendants No. 1 to 5, the first appellate court re-appreciated the entire evidence on record. It has been found that there is no averment in the plaint as regards source of title of the husband of plaintiff; seller Mahaveer Soni as regards suit property. Plaintiff (PW-1) and her husband Mahaveer Soni (PW-3) have asserted that in the sale deed they have stated that the suit property is the ancestral property, however, in cross-examination, PW-3 stated that the suit plot is of the ownership and possession of his father Late Bhagwati Prasad and after his death, the same has passed on to him by virtue of Will executed by him. He further deposed that he has forgotten the Will at home and the same has not been produced in the suit. As such, neither there is any averment in the plaint nor any document is brought on record much less Will to establish the claim of title and ownership by virtue of Will or that the suit property is the ancestral property. As such, there is inconsistent stands in the plaint and on the basis of evidence led under such circumstances, the first appellate court has found that the suit property was not found established to be of title and ownership of Mahaveer Soni (PW-3). DW-2, Maheshchand Sharma, has sought to prove that the suit property is of the ownership of Panchayat, however, certain part thereof was encroached upon by one Prabhu and Mahaveer Soni. Plaintiff has sought to have taken other stand asserting that by resolution Ex. D/2 dated 25/8/1993 the Gram Panchayat had agreed to give on Patta certain portion of the suit property to Mahaveer Soni, however, no such Patta was brought on record and, therefore, the first appellate court found even this claim of acquisition of suit property on Patta to be not established. The first appellate court has conclusively found that the suit property is neither of plaintiff nor defendants No. 1 to 5, but the same is of Gram Panchayat, Raghunathpur. With the aforesaid findings, it has been held that no title is passed on to the plaintiff by virtue of the alleged sale deed dated 30/7/2005 (Ex. P/1) and accordingly, dismissed the suit.

Having gone through the impugned judgments of the courts below and the material on record, this Court is of the view that the first appellate court was justified dismissing the suit for reasons that: (i) apparently the aforesaid suit appeared to be a suit based on manipulated and concocted facts, as the alleged sale deed dated 30/7/2005 (Ex. P/1) is said to have been executed by Mahaveer Soni in favour of his wife, the plaintiff; (ii) plaintiff failed to establish the source of title of Mahaveer Soni as regards suit property to justify the alleged sale deed Ex. P/1 transferring title of suit property in her favour; (iii) three varying stands to the effect that the suit property is the ancestral property, it passed on Mahaveer Soni by virtue of Will executed by his father Bhagwati Prasad and that the same was given on Patta by Gram Panchayat, Raghunathpur to Mahaveer Soni, however, none of these three mutually inconsistent stands has been established by the plaintiff, as the suit property was not proved to be an ancestral property; no Will was produced to claim title by virtue of Will; and, no Patta was produced to justify the right over the suit property. Therefore, there is no illegality committed by the first appellate court while dismissing the suit of declaration based upon the alleged sale deed dated 30/7/2005 (Ex. P/1) said to have been executed by Mahaveer Soni in favour of his wife, the plaintiff. Hence, the question of law is answered in affirmative. Accordingly, the Second Appeal sans merits is hereby dismissed.