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2006 Supreme(MP) 714
2009 jk fu 71 2009 RN 71
¼mPp U;k;ky;½ (HIGH COURT)
U;k- ,-ds- JhokLro
A.K. Shrivastava, J.
eqUuhckbZ ¼Jherh½ rFkk vU; fo- ckjsyky yks/kh rFkk vU;
Munnibai (Smt.) and others v. Barelal Lodhi and others
f}rh; vihy Ø- 711 lu~ 1997 % ¼tcyiqj½ % fupys U;k;ky;ksa ds fu.kZ; rFkk fMØh ds fo#)( fu.khZr fnukad 19-5-2006A
Second Appeal No. 711 of 1997 (Jabalpur) : against the judgment and decree of lower Courts; Decided on 19.5.2006.
ç.k; oekZ vihykFkhZx.k dh vksj ls( ,u-ds- iVsy çR;FkhZx.k dh vksj lsA
Pranay Venna for appellants; N.K. Patel for respondents.
Headnote: ¼1½ flfoy izfdz;k lafgrk] 1908 && /kkjk 100 && ;g fdlh dk i{kdFku ugha fd laO;ogkj ca/kd laO;ogkj gS ;k ugha && ,slk lkjoku iz‘u fojfpr fd;k x;k && mRrj fn;k tkuk vko‘;d ughaA ¼ iSjk 12
¼2½ laifRr varj.k vf/kfu;e] 1882 && /kkjk 54 rFkk 53&d && fodz; foys[k izfrHkwfr ds :Ik esa fu"ikfnr fd;k x;k && fodz; djus dk djkj Hkh mlh fnu fu"ikfnr fd;k x;k && fodz; foys[k dsoy ukeek= dk nLrkost gS && dksbZ vf/kdkj] gd ;k fgr varfjr ugha gksrkA 2006 jk fu 1 ¼mPpre U;k-½ vuqlfjrA ¼ iSjk 14
¼3½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && /kkjk 158 rFkk 110 && ukeek= dk fodz; && fodzsrk fodz; dh xbZ Hkwfe dk HkwLokeh cuk jgrk gS && dzsrk ds i{k esa ukekarj.k && mls vf/kdkj] gd vFkok fgr iznku ugha djrkA 2006 jk fu 1 ¼mPpre U;k-½ vuqlfjrA ¼ iSjk 14
¼4½ lk{; vf/kfu;e] 1872 && /kkjk 92 && fodz; foys[k && _.k dk izfrlank; lqfuf‘pr djus ds fy, fu"ikfnr djk;k x;k feF;k laO;ogkj lkfcr fd;k tk ldrk gS && ,sls vfHkdFkuksa dks lkfcr djus ds fy, ekSf[kd lk{; oftZr ugha gSA 2000 ¼2½ ,e ih ,y ts 361 rFkk 1972 ts ,y ts 632 voyafcrA , vkb vkj 1982 ,l lh 20 vuqlfjrA 1998 ¼1½ e-iz- ohDyh uksV~l 120 ¼mPpre U;k-½ izHksfnrA ¼ iSjk 14
¼5½ flfoy izfdz;k lafgrk] 1908 && /kkjk 100 && fopkj.k U;k;ky; }kjk rF; dk fu"d"kZ rdZ lfgr vfHkfyf[kr fd;k x;k && vihy esa lE;d:Ik ls vfHkiq"V fd;k x;k && f}rh; vihy esa vkf{kIr ugha fd;k tk ldrkA ¼ iSjk 16
¼6½ laifRr varj.k vf/kfu;e] 1882 && /kkjk 53&d rFkk 54 && fodz; foys[k ukeek= dk && fodzsrk ds i{k esa mlh laifRr dks fodz; djus dk djkj && ml ij dkjZokbZ djus dh vko‘;drk ugha gSA ¼ iSjk 16
(1) Civil P.C., 1908 -- S. 100 -- nobody s case whether the transaction is mortgage transaction or not -- substantial question so framed -- need not be answered. [Para 12
(2) Transfer of Property Act, 1882 -- Ss.54 and 53-A -- sale deed executed as security -- agreement to sell also executed same day -- sale deed is only nominal document -- no right, title or interest is transferred.2006 RN 1 (SC) followed. 2000 (2) MPLJ 361 relied on. [Para 13
(3) Land Revenue Code, 1959 (M.P.) -- Ss.158 and 110 -- nominal sale -- vendor remains Bhumiswami of land sold -- mutation in favour of purchaser -- does not give right, title or interest to him. 2006 RN 1 (SC) followed. [Para 14
(4) Evidence Act, 1872 -- S. 92 -- sale deed -- may be proved to be a sham transaction got executed to ensure repayment of loan -- oral evidence is not barred to prove such allegations. 2000 (2) MPLJ 361 and 1972 JLJ 632 relied on AIR 1982 SC 20 followed. 1998 (I) MPWN 120 (SC) distinguished. [Para 14
(5) Civil P.C., 1908 -- S. 100 -finding off act recorded with reasoning by trial Court -- duly affirmed in appeal -- cannot be assailed in second appeal. [Para 16
(6) Transfer of Property Act, 1882 -- Ss.53-A and 54 -- sale deed nominal -- agreement to sell the same property in favour of vendor -need not be acted upon. [Para 16
1. Present appellants are heirs of original plaintiff Gopal Prasad, who died during the pendency of the suit. A suit for declaration of ownership of the suit land was filed by plaintiff with a further relief of injunction restraining the defendants from interfering with his possession and also from cutting grass.
2. In brief the suit of plaintiff is that the plaintiff is Bhumiswami of the disputed property. He bought the suit property from defendants by registered sale-deed dated 16.10.1970 for a consideration of Rs.1,000/-. After the purchase of the suit property, plaintiff is possessing the same. The name of plaintiff and his possession is recorded in the revenue record by virtue of said sale-deed dated 16.10.1970. The defendants on false assertion of fact that they have not sold the land to the plaintiff are threatening to dispossess him from the suit land. By amendment the plaintiff pleaded that at the request of defendants he did confer rights of re-conveyance and leased out the suit property for the year 1970-71 to them on 16.10.1971. But, no sooner defendants expressed their inability to cultivate the land, plaintiff started cultivation on the suit land. The plaintiff further pleaded that no right has been conferred to the defendants in the subsequent years. The signature of plaintiff on that part of re-conveyance deed dated 16.10.1971 in which it has been mentioned that the suit property is leased out for subsequent years, is forged and hence denied. The defendants in order to take advantage of the provisions of M.P. Land Revenue Code has created this forged note on the document of agreement. This document ought to have been registered and should have been properly stamped and in absence, it needs to be impounded.
3. The defendants filed their written statement refuting the averments made in the plaint. According to defendants they are Bhumiswami of the disputed property. Indeed, plaintiff gave loan of Rs.1,000/- to the defendant. The defendants were in need of money as a result of which they requested plaintiff to give loan which he agreed to give and gave loan of Rs.1,000/- to the defendants on the condition that they are required to execute a sale-deed, as security of the loan. The interest at the rate of Rs.3/- per month was settled between the parties. The plaintiff assured defendants that the sale-deed which shall be executed will never be acted upon and there shall be no conveyance by the said sale-deed. In this manner plaintiff gave Rs.1,000/- towards loan, out of which Rs.100/- were incurred in the stamp charges and registration fees, etc. In this manner the registered document was executed on 16.10.1970. The price of the suit land was not less than Rs.10,000/- in the year 1970.
4. It has been further pleaded in the written statement that plaintiff may not turn from his version and may not grab the land in dispute, therefore, for the purpose of security, an agreement of sale dated 16.10.1970 was executed. The other averments made in the plaint were specifically denied by the defendants. The mutation of the name of plaintiff had taken place with the collusion of the Patwari and in the absence of defendants, but in appeal said order has been set-aside by the Sub-Divisional Officer.
5. The plaintiffs a money lender and he never cultivated the land in question. An 'alternative' plea has also been taken by the defendants that if it is held that plaintiff had purchased the suit property, as disputed land was leased for more than one year, they have acquired right of occupancy tenant. In this manner, it has been prayed that the suit be dismissed.
6. The trial Court framed necessary issues and after examining the parties dismissed the suit. The plaintiff preferred first appeal which has also been dismissed by the impugned judgment and decree. Hence this second appeal has been filed by the plaintiff.
7. This second appeal was admitted on 19.9.1997 on the following substantial questions of law :
"1. Whet
