Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(MP) 255

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
GURPAL SINGH AHLUWALIA, J.
Komesh - Appellant
Versus
Shashi and Ors. - Respondents
S.A. No. 2932 of 2018
Decided On : 23-02-2021

Advocates:
Advocate Appeared:
For the Appellant :K.S. Tomar, Senior Advocate and J.S. Kaurav.

The possession is a pure question of fact, and the findings of fact recorded by the lower courts cannot be interfered with unless they are based on no evidence or are perverse.

Headnote:
possession - Civil Procedure Code - Section 100 - 96, 103 - The court affirmed the judgments and decrees passed by the lower courts, emphasizing that the possession is a pure question of fact and the findings of fact recorded by the lower courts cannot be interfered with unless they are based on no evidence or are perverse. The court cited several precedents to support its decision and concluded that no substantial question of law arises in the case.
Fact of the Case:

The appellant filed a civil suit for declaration of title, permanent injunction, and declaration of a sale deed as null and void, claiming ownership and possession of the disputed property. The defendants denied the plaintiff's claims and asserted their own right to the property.
Finding of the Court:

The court found that the evidence of the plaintiff regarding possession over the land in dispute was not reliable and affirmed the lower courts' dismissal of the suit.
Issues: The main issue was the possession of the disputed property and the validity of the sale deed. The appellant challenged the judgments and decrees passed by the lower courts, arguing that the suit should not have been dismissed due to her possession of the property.
Ratio Decidendi: The court emphasized that possession is a pure question of fact and cited several precedents to support its decision. It concluded that no substantial question of law arises in the case.
Final Decision: The appeal was dismissed, and the judgments and decrees passed by the lower courts were affirmed.

JUDGMENT :

Gurpal Singh Ahluwalia, J.

1. Heard on the question of admission.

2. This Second Appeal under Section 100 of Civil Procedure Code has been filed against the Judgment and Decree dated 27-9-2018 passed by VIIth ADJ, Gwalior in Regular Civil Appeal No. 4A/2015 arising out of Judgment and Decree dated 28-4-2015 passed by IXth Civil Judge, Class II, Gwalior in Civil Suit No. 19A/2013, by which the suit filed by the appellant has been dismissed.

3. The necessary facts for disposal of the present appeal in short are that the appellant filed a civil suit for declaration of title, permanent injunction as well as for declaration of Sale deed dated 23-3-2006 as null and void.

4. It is her case that the property mentioned in para 1 of the Plaint is the property belonging to the ownership and in possession of the appellant. It is her case that after purchasing the property, the appellant has constructed a house and her name is also mutated in the revenue records. The property mentioned in para 1 of the plaint has following boundaries:

East - Public Road

West - House of Naruddin

North - House of Babulal

South - House of Deegaran

5. Kalabai and Puniabai were the joint owners of the property. Puniabai and Kalabai have already sold some part of their share. After the sale deeds were executed by Puniabai, nothing was left in her share, whereas Kalabai by a registered sale deed dated 4-1-2012, sold her share to the appellant in survey No. 270 Min, 272 Min total area 520 sq. ft. The vacant possession was also given to the appellant. The property in dispute is situated in Ward No. 55. After the sale deed was executed, the name of the appellant was also recorded in the revenue records. The boundaries of the property purchased by the appellant are as under:-

East - House of Prahlad, Munna & Babulal

West - Public Road

North - House of Chhatrapal and Babulal

South - House of Hakim Singh

6. The appellant, with an intention to construct her house, started storing stones for the purpose of laying foundation. However, the defendants after uprooting the poles which were being used for tying cattle, tried to take possession of the property in dispute. Police complaint was made. It was further pleaded that the defendants are not allowing the appellant to use the land and are creating hurdles in construction. In response to the police complaint, the appellant was given a copy of sale deed, from which She came to know that a forged sale deed has been executed in favour of the defendants in respect of Public Road and the property in dispute, whereas Puniabai had no right or title to execute the sale deed in favour of the defendants. The defendants had earlier filed a suit against one Mohan Singh and others for declaration of title and permanent injunction which was dismissed, and the defendants were not recognized as the owners of the disputed property. Thus, it was claimed that the defendants are trying to dispossess the appellant and accordingly, the suit for declaration of title, permanent injunction as well as for declaration of sale deed null and void was filed.

7. The defendants filed their written statement and denied the plaint averments. It is submitted that the property mentioned in para 1 of the plaint is not the subject matter of the suit. It was further pleaded that Puniabai and Kalabai were sisters, but the plaintiff has wrongly pleaded that Puniabai had sold her entire share. It is further submitted that after the execution of sale deed dated 2-3-2005, in favour of the plaintiff by Puniabai and Kalabai, some more land was left in the share of Puniabai which was the part of Survey No. 270/Min-2 and 272/Min-2, situated in village Gudi Avadpura Nagar, Lashkar, Gwalior. The said property i.e., 2485.7 sq. ft. of land was sold in favor of the defendants by registered sale deed dated 23-3-2006 and possession was given. The boundaries of the property purchased by the defendants are as under:

East - Public Way and Building of Hakim Singh and Laxman

West - Public