Ramgopal vs Sooratram - 1997 Supreme(MP) 1188

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : Anil Mishra.
For the Respondent: R.D. Jain.

Headnote:(1) Transfer of Property Act, 1882 - S. 55 - sale deed not containing survey number - disputed land cannot be claimed by purchaser.
       (2) Civil Procedure Code, 1908 - O. 41 R. 33 - appeal preferred by one of the defendants - is maintainable.
       (3) Civil Procedure Code, 1908 - O. 26 R. 9 - commissioner for local inspection - cannot be appointed when plaintiff has proved no interest in disputed land.
       Short Note
       1. This appeal is admitted on following substantial questions of law : -
       (1) "Whether in view of the recitals contained in the documents Ex. D/1 and Ex. D/2 filed by the defendants and the admission made by D.W. 1 Balram vide para 3 thereof, the finding of the lower appellate Court that the suit land does not form part of S. No. 1860 is perverse?"
       (2) "Whether in an appeal preferred by defendant No.1 alone, the entire decree passed by the lower appellate Court in favour of the plaintiff could not have been reversed?"
       (3) "Whether in the facts and circumstances of the case, the trial Court should not have decided the case without appointing a Commissioner for local investigation?"
       As regards first question of law that from the recitals contained in the documents Ex. D/1 and Ex. D/9 and the admission of DW 3 Balram, the finding of the lower appellate Court that the suit land does not form part of the S. No. 1860 is perverse.
       2. The document (Ex. D/1) is a copy of the sale - deed executed by Prabhu Singh S/o Durjan Singh in favour of Surat Ram S/o Chakrapan, defendant No.1. The document sale deed (Ex. D/1) provides that Prabhu Singh S/o Durjan Singh has sold one plot having an area of 15 feet x 45 feet of S. No. 1860 having total area of 18 biswas to defendant No.1 Surat Ram S/o Chakrapan. Ex. D/1 and Ex. D/9 are the same documents.
       3. The lower appellate Court has considered the case of the plaintiff - appellant.
       4. The appellant has filed a suit for declaration of his title and for injunction. The admitted facts are that S. No. 1860 having an area of 18 biswas was held by Durga Prasad, Bhagwandas and Babu Ram and remaining half portion was held by plaintiff Ramgopal. The plaintiff alleged that he purchased the suit land on 16.6.1971 from defendants 3, 4 and 5, namely; Baburam, Durga and Bhagwandas having an area of 47 feet x 135 feet. He also stated that Babu Ram, defendant No.3 sold 1/6 share of this land to Prabhu Singh S/o Durjan Singh vide registered sale deed on 22.10.1973. The plaintiff Ramgopal based his claim on the sale deed dated 16.6.1971 and stated that he had purchased these lands and had constructed the house over these lands. The lands purchased by him are portion of S. No.1860 remaining portion of this S. No. was sold for consideration of Rs. 10,000/ - .
       5. The plaintiff submitted that defendant No.2 Prabhu Singh was not in possession of any land in S. No. 1860. Therefore, the sale - deed by defendant No.3 Baburam is null and void. The defendants had denied the claim of the plaintiff. The trial Court decreed the suit, but the lower Appellate Court after considering the record and evidence recorded the finding that the disputed plot is not in possession of the plaintiff and the plaintiff has not acquired any possession by Ex. D/1. The exact area of the land vide Ex. D/1 was not explained.
       6. The Courts found that it is not proved that the plaintiff purchased the part of S. No. 1860, after considering the evidence and record.
       7. Therefore, question No.1 relates to documents of defendants whereby they have purchased portion of S. No. 1860. Therefore, it cannot be said that the suit lands purchased by the plaintiff vide Ex. P/1 form part of Khasra No. 1860. This fact also appears to be correct from perusing Ex. P/1. In Ex. P/1, the number of survey number is not mentioned.
       8. As regards second question of law, the appeal preferred by any of the defendants is maintainable. It is not the law that when a decree is passed against number of defendants, one defendant cannot file an appeal. This question of law is misconceived in view of the provisions of Order 41, Rule 33 of Code of Civil Procedure, which provides the power to the appellate Court. In view of provisions of Rule 33 of Order 41, Code of Civil Procedure, this question of law is answered in negative.
       9. As regards third question of law, the learned counsel submitted that in the circumstances of the case where there was a dispute as to land, the Court should have appointed a Commissioner for local investigation, as laid down by the Division Bench of this Court in the case of Durga Prasad v. Parveen Fouzdar (1975 JLJ 440). This judgment provides that if there is no agreed map between parties then the Court should have appointed a Commissioner for local investigation to ascertain the correct facts. But as held above, since the plaintiff as failed to prove that he has purchased S. No. 1860, there is no question of Issuing a commission. If the finding was in favour of the plaintiff in relation to land of S. No. 1860, then only the commission could be issued. The question No.3 is, therefore, answered in negative.
       10. In the result, the appeal fails and is dismissed with cost. The judgment and decree of the lower appellate Court are affirmed.