Babulal (dead) through L. Rs. Smt. Krishnabai vs Kalooram

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(MP) 719

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A.K. Shrivastava, J.
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Babulal (dead) through L. Rs. Smt. Krishnabai v. Kalooram and others
f}rh; vihy dz- 100 lu~ 1998 ¼bankSj½( fu.khZr fnukad 20-9-2011A
(Second Appeal No. 100 of 1998 (Indore); Decided on 20.9.2011

Advocates:
lehj vBkoys vihykFkhZ dh vksj ls( ,-,l- xxZ vkfnR; xxZ lfgr izR;FkhZx.k Ø- 1 ls 5 dh vksj ls( izeksn feBk] ljdkjh vf/koDrk izR;FkhZ dz- 6@jkT; dh vksj lsA
Sameer Athawale for appellant; A.S. Garg with Aditya Garg for respondents No. 1 to 5; Pramod Mitha, Govt. Advocate for respondent No. 6/State.

Headnote:1- flfoy izfØ;k lafgrk] 1908 & /kkjk 100 rFkk vk- 44 fu- 22 & O;kfIr & iV~Vsnkj dks ekS:lh d`"kd ds vf/kdkj izksn~Hkwr u gksus ds ,d gh fu"d"kZ & fu"d"kZ vfHkopuksa rFkk lk{; ds foospu ij vk/kkfjr & Li"V rF; dk fu"d"kZ gksus ls f}rh; vihy vFkok izR;k{ksi izLrqr dj vE;kØe.k ugha fd;k tk ldrkA ¼iSjk 14 rFkk 15
       2- Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 168] 169 rFkk 190 & Hkwfe Lokeh }kjk vius HkkbZ dks [ksrh djus ds fy, Hkwfe nh xbZ & nksuksa ds e/; dksbZ vuqca/k ugha & jktLo U;k;ky;ksa }kjk ekS:lh d`"kd rFkk HkwfeLokeh vf/kdkj iznku fd, x, & mlds HkkbZ }kjk Hkwfe dk foØ; & HkwfeLokeh }kjk gd ds vk/kkj ij dCtk rFkk ;g ?kks"k.kk ds fy, flfoy okn izLrqr fd;k x;k fd foØ; foys[k ml ij vkc)dj ugha & mlds HkkbZ }kjk d`"kdRo vuqca/k lkfcr ugha fd;k x;k & og Lo;a izfrijh{k.k ds fy, lk{; dV?kjk esa ugha vk;k & okn lgh&gh fMdzh fd;k x;kA ¼iSjk 3] 4] 15 rFkk 16
       3- lk{; vf/kfu;e] 1872 & /kkjk 114 & vukf/kd`r iêk iznku fd, tkus dk iz‘u & izfroknh Ø-1 dh loksZRre tkudkjh esa ;g Fkk fd Hkwfe mls iês ij nh xbZ Fkh & og Lo;a izfrijh{k.k ds fy, lk{; dV?kjk esa ugha vk;k & mlds fo#) izfrdwy fu"d"kZ lgh&gh fudkyk x;k gS fd ;g lkfcr ugha gS fd oknh }kjk okn laifRr mlds HkkbZ dks iês ij nh xbZ Fkh vkSj og HkwfeLokeh gks x;kA 1975 ts ,y ts 333] , vkb vkj 1927 ih lh 230 rFkk , vkb vkj 1931 ckWEcs 97 voyafcrA ¼iSjk 15
       4- Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 250 & dCtk iqu%LFkkiu ds fy, gd ij vk/kkfjr flfoy okn & okn pykus ;ksX; gS & HkwfeLokeh vf/kdkj dh ?kks"k.kk pkgus dh vko‘;drk ughaA ¼iSjk 16 rFkk 17
       5- U;k;ky; & dk dRrZO; & vfHkopuksa ls ijs ugha tk ldrk & U;k;ky; u;k izdj.k ugh cuk ldrk ftldk i{kdkj us vfHkopu u fd;k gksA , vkb vkj 1970 ,l lh 839 rFkk , vkb vkj 1977 ,l lh 890 vuqlfjrA ¼iSjk 18
       6- Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 250 & gd ij vk/kkfjr dCtk ds fy;s flfoy okn & okn lafonk ds fofufnZ"V ikyu ds fy;s ugha & HkwfeLokeh ds HkkbZ }kjk fcuk gd ds Hwkfe dk fodz; & ,sls dzsrkvksa ds i{k esa oS/k gLrkarj.k ughaA ¼iSjk 18 ls 20

       (1) CIVIL PROCEDURE CODE., 1908 -- S. 100 and O. 44 R. 22 -- scope of -- concurrent finding that right of occupancy tenant not accrued to lessee -- finding based on pleadings and appreciation of evidence -- being pure finding of fact cannot be assailed in second appeal or by filing cross objections. [Paras 14 and 15
       (2) Madhya Pradesh Land Revenue Code, 1959 -- Ss. 168, 169 and 190 -- land given by Bhumiswami to his brother for cultivation -- no any agreement between them -- rights of occupancy tenant and Bhumiswami conferred by revenue Courts -- land sold by his brother -- civil suit filed by Bhumiswami for possession on title and declaration that sale deed is not binding upon him -- privity of contract not proved by his brother -- he himself not entered into witness box for cross examination -- suit rightly decreed. [Paras 3, 4, 15 and 16
       (3) Evidence Act, 1872 -- S. 114 -- question of granting unauthorised lease -- it was in best knowledge of defendant No. 1 that land was given to him on lease -- he not entered into witness box for cross examination -- adverse inference against him rightly drawn that it is not proved that suit property was given by plaintiff to his brother on lease and he became Bhumiswami. 1975 JLJ 333, AIR 1927 PC 230 and AIR 1931 Bom. 97 relied on. [Para 15
       (4) Madhya Pradesh Land Revenue Code, 1959 -- S. 250 -- civil suit for restoration of possession based on title -- suit is maintainable -- need not to seek declaration of Bhumiswami right. [Paras 16 and 17
       (5) Court -- duty of -- cannot go beyond pleadings -- Court cannot make out new case which was not pleaded by party. AIR 1970 SC 839 and AIR 1977 SC 890 followed. [Para 18
       (6) Madhya Pradesh Land Revenue Code, 1959 -- S. 250 -- civil suit for possession based on title -- suit not for specific performance of contract -- without title land soled by brother of Bhumiswami -- no valid conveyance in favour of such purchasers. [Paras 18 to 20

JUDGMENT

1. The plaintiff has taken the shelter of this Court by filing his second appeal under section 100 CPC against the judgment of reversal passed by learned First Appellate Court since the suit which was decreed by learned Trial Court has been reversed by the said Court.

2. The facts necessary for disposal of this second appeal lie in narrow compass. A suit was filed by plaintiff for restoration of possession on the basis of title as well as for cancellation of sale deed executed by defendant No. 1 Kaluram in favour of defendants No. 2 to 4 and further it be declared that the order passed by the Revenue Court in case No. 7A/46-88-89 decided on 7.9.1989 is not binding on plaintiffs.

3. According to the plaintiff, the suit property is agricultural land, the description whereof has been mentioned in the plaint. The suit property was being possessed by him till 1988-89. However, in the year 1989 the plaintiff gave the suit land to defendant No. 1 who is his real brother to cultivate it and it was agreed between the parties that whenever the plaintiff will ask to deliver the possession, the defendant No. 1 Kaluram will deliver the possession to him. Since the plaintiff and defendant No. 1 are real brothers, no agreement was made in writing. It is the further case of plaintiff that defendant No. 1 became dishonest as a result of which he filed an application before Nayab Tehsildar on 31.12.1988 under section 190/110 of the M.P. Land Revenue Code, 1959 (in short the ‘Code’) stating himself to be the occupancy tenant of plaintiff and prayed to mutate the land in his favour, although, he (defendant No. 1) was possessing the suit property with the permission of plaintiff and he cultivated the suit land only for one year. Earlier plaintiff appeared in the proceedings before the Nayab Tehsildar on some dates but on being told by Nayab Tahsildar that the proceedings have been closed, by signing the order-sheet the plaintiff went away but defendant No. 1 by playing fraud obtained an ex parte order in his favour which assailed by the plaintiff by filing an appeal before the Sub Divisional Officer as soon as he came to know of passing of the order passed by Nayab Tahsildar. The Sub Divisional Officer on 4.09.1992 dismissed the appeal being time barred, hence present suit has been filed for restoration of possession on the basis of title.

4. The plaintiff has also pleaded that after obtaining ex parte order from Nayab Tehsildar and getting his name mutated in the revenue record, in order to take undue advantage and by jeopardizing the right of plaintiff, he (defendant No. 1) sold the suit property to defendants No. 2 to 4 which was not in the knowledge of the plaintiff. Indeed, plaintiff came to know about the factum of alienation of the suit property only on 29.3.1993 when he obtained the certified copy of the revenue record. Hence by arrying the purchasers also as defendants No. 2 to 4 he has filed the present suit and also prayed a relief of declaration that the sale deed dated 23.10.1989 is not binding upon the plaintiff. The other reliefs which I have mentioned herein above have also been sought by the plaintiff.

5. The defendants filed a joint written statement and denied the plaint averments. According to them, a valid order was passed by Nayab Tehsildar in favour of defendant No. 1 holding him that he has become occupancy tenant and thereafter he had become Bhumiswami by operation of law and validly the suit property has been sold by defendant No. 1 to defendants No. 2 to 4 and it has been prayed that the suit be dismissed. A plea of limitation has also been taken in the written statement that suit of plaintiff is time barred.

6. The learned trial Court framed necessary issues and after recording evidence of the parties decreed the same holding the suit to be within time. The defendants filed first appeal which has been allowed by the impugned judgment and decree and the suit of plaintiff has been dismissed.

7.In this manner this second

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