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¼mPp U;k;ky;½ (HIGH COURT)
U;k- ,-ds-JhokLro
A.K. Shrivastava, J.
lq‘khyk ckbZ fo- ds‘kj ckbZ rFkk vU;
Sushila Bai v. Keshar Bai & others
f}rh; vihy Øekad 325 lu~ 2000 ¼Xokfy;j½] ftyk U;k;/kh‘k] xquk }kjk çFke vihy Øa- 18&,@96 esa ikfjr fu.kZ; ,oa fMØh ds fo#)] fu.khZr fnukad 13-11-2009A
Second Appeal No. 325 of 2000 (Gwalior); against the judgment and decree of District Judge, Guna, passed in civil Appeal No. 18-A/96; Decided on 13.11.2009.
¼2½- Hkw&jktLo lafgrk] 1959 ¼e-iz-½&/kkjk 168 rFkk 169&vfuf‘pr vof/k ds fy, vjftLVªhdj.k iV~Vk & iV~Vk ds vuqlkj jktLo vfHkys[k esa dCtk vfHkfyf[kr ugha&[kljk esa dCtk dh izfof"V lqiqnZxhnkj ds :i esa & ;g ifj.kke fudkyuk dfBu gS fd HkwfeLokeh }kjk dHkh iV~Vk fu"ikfnr fd;k x;k Fkk & dCtk dk Lo:i lqiqnZxhnkj dk gS f‘kdeh dk ughaA ¼iSjk 18] 19 ,oa 20½
¼3½- Hkw&jktLo lafgrk] 1959 ¼e-iz-½&/kkjk 115 rFkk 116&vfuf‘pr vof/k ds fy, vjftLVªhd`r iV~Vk & [kljk esa dCtk dh izfof"V lqiqnZxhnkj ds :i esa&jktLo vfHkys[k esa iV~Vk ds vuqlkj dCtk vfHkfyf[kr fd, tkus gsrq dksbZ dHkh iz;Ru ugha fd;k x;k&;g ifj.kke fudkyuk dfBu gS fd Hkwfe Lokeh }kjk dHkh iV~Vk fu"ikfnr fd;k x;k FkkA ¼iSjk 18½
¼4½- Hkw&jktLo lafgrk] 1959 ¼e-iz-½&/kkjk 168] 169 rFkk 190&HkwfeLokeh vf/kdkj&dc izksn~Hkwr ugha&vfuf‘pr vof/k ds fy, vjftLVªhdj.k iV~Vk&[kljk esa dCtk dh izfof"V lqiqnZxhnkj ds :i esa&;g vfHkdfFkr fd rglhynkj }kjk ekS:lh rFkk Hkwfe Lokeh vf/kdkj iznku djus dk vkns‘k ikfjr fd;k x;k Fkk & vkns‘k rFkk ,slh dk;Zokgh ls lacaf/kr dksbZ nLrkost izLrqr ugha&;g fu.kZ; djuk dfBu gS fd HkwfeLokeh }kjk dHkh iV~Vk fu"ikfnr fd;k x;k Fkk&iV~Vsnkj ds izfrdwy vuqeku fudkyk tkuk pkfg,A , vkb vkj 1968 ,l lh 1413] , vkb vkj 1953 ,l lh 225 rFkk , vkb vkj 1917 ih lh 6 vuqlfjrA ¼iSjk 20 ,ao 21½
¼5½- lk{; vf/kfu;e] 1872&/kkjk 114&mi/kkj.kk&;g vfHkdfFkr fd rglhynkj }kjk ekS:lh rFkk HkwfeLokeh vf/kdkj iznku fd, tkus dk vkns‘k ikfjr fd;k x;k Fkk & vkns‘k rFkk ,slh dk;Zokgh ls lacaf/kr dksbZ nLrkost izLrqr ugha& iV~Vsnkj ds izfrdwy vuqeku fudkyk tkuk pkfg,A , vkb vkj 1968 ,l lh 1413] , vkb vkj 1953 ,l lh 225 rFkk , vkb vkj 1917 ih lh 6 vuqlfjrA ¼iSjk 20 ,oa 21½
¼6½- Hkw&jktLo lafgrk] 1959 ¼e-iz-½&/kkjk 168 ¼4½&iV~Vk fu"iknu dk rF; lkfcr ugha&jktLo U;k;ky; ds le{k csn[kyh dk;Zokgh izLrqr fd, tkus dh dksbZ vko‘;drk ugha&dzsrk }kjk LoRo ?kks"k.kk rFk dCtk gsrq flfoy okn xzkg; gSA ¼iSjk 25½
(1) Registration Act, 1908 -- S. 17 (1) (d) -- unregistered lease for indefinite period -- registration is compulsory. [Para 18
(2) Land Revenue Code, 1959 (M.P.) -- Ss. 168 and 169 -unregistered lease for indefinite period -- possession not recorded in revenue record in pursuant to lease -- entry of possession in Khasra as supurdagidar -- it is difficult to infer that lease was ever executed by Bhumiswami -nature of possession is as supurdagidar and not-as shikimi. [Paras 18.19 & 20
(3) Land Revenue Code, 1959 (M.P.) -- Ss. 115 and 116 -unregistered lease for indefinite period -- entry of possession in khasra as supurdagidar -- no efforts made to get possession recorded in revenue record in pursuant to lease -- it is difficult to infer that lease was ever executed by Bhumiswami. [Para 18
(4) Land Revenue Code, 1959 (M.P.) -- Ss. 168, 169 and 190 d`rights of Bhumiswami -- when not accrued -- unregistered lease for indefinite period -- entry of possession in khasra as supurdagidar -- it is alleged that order of conferral of occupancy and Bhumiswami rights was passed by Tahsildar -- order and any document relating to such proceedings not filed -- it is difficult to hold that lease was ever executed by Bhumiswami -- adverse inference should be drawn against lessee. AIR. 1968 SC 1413, AIR 1953 SC 225 and AIR 1917 PC 6 followed. [Paras 20 & 21
(5) Evidence Act, 1872 -- S. 114 -- presumption -- it is alleged that order of conferral of occupancy and Bhumiswami rights was passed by Tahsildar -- order and any document relating to such proceedings not filed -- adverse inference should be drawn. AIR 1968 SC 1413, AIR 1953 SC 225 and AIR 1917 PC 6 followed. [Paras 20 & 21
(6) Land Revenue Code, 1959 (M.P.) -- S. 168 (4) -- factum of execution of lease not found to be proved -- no need to file ejectment proceedings before Revenue Court -- civil suit by purchaser for declaration of title and possession -- is maintainable. [Para 25
1.The plaintiff feeling aggrieved by the judgment and decree dated 15.4.2000 passed by learned District Judge Guna dismissing the appeal No. 18-A/96 of plaintiff and there affirming the judgment and decree passed by learned Third Civil Judge Class II, Guna in Civil Suit No. 142-A/92, dismissing her suit on 20.12.1995, has filed this second appeal.
2. The plaintiff filed a suit for declaration of Bhumiswami rights and for grant of injunction in respect of certain agriculture land which is the subject matter of the suit and the description where of has been mentioned in the plaint. Later on the plaintiff by amending the relief clause also sought a decree of possession, in case, she is not found in possession of the suit property as well as for a decree of mesne profit at the rate ofRs. 2,000/- per annum.
3. In brief the case of plaintiff is that one Bhanwar Lal Lodha was the Bhumiswami of the suit property and vide registered sale deed dated 16.3.1981 for a consideration of Rs. 5,000/-, he sold the suit property to the plaintiff and also delivered possession to her. It has also been pleaded by the plaintiff that after purchasing the suit property her name has also been mutated in the revenue record. By amendment, it has also been pleaded by the plaintiff that defendant No.1-Lakhmichand and defendant No.3-Kammoda on 11.5.1981 executed an affidavit before the Notary, Guna admitting the right of the plaintiff in the suit property. However, later on the defendants started disowning the right of plaintiff and also created hindrance when the plaintiff started to cultivate the land. Hence, a suit for declaration of Bhumiswami rights and injunction has been filed with a further prayer that in' a case it is found that plaintiff is not in possession, the possession of suit property be also delivered to her.
4. Defendants No.1 and 3 namely Lakhmichand and Kammoda filed a joint written statement, while defendants No.2 and 4 namely Lala and Ram Prasad filed separate written statement. In their written statement defendants inter-alia pleaded that on the date of execution of the sale deed, Bhanwarlal who is the vendor of the plaintiff, was not having any right to sale the suit property, and therefore, even if plaintiff proves that he bought the suit property from Bhanwarlal by executing a sale-deed, it would not confer any right in her. It has also been pleaded by the defendants that the possession of the suit property was never delivered to plaintiff by Bhanwarlal. According to the defendants neither plaintiff is having any right nor she is having possession on the suit property, hence it is prayed that suit be dismissed.
5. By amending the written statement, the factum of execution of the affidavit on 11.5.1981 by defendant - Lakhmichand and Kammoda in favour of plaintiff admitting her right has not been specifically denied. But vaguely and evasively it has been pleaded in para 2-A of the written statement that defendants No.1 and 3 namely Lakhmichand and Kammoda did not remember that in what context they executed the said affidavit and what was the reason. Further in this para it has been pleaded by these defendants that defendants are illiterate and they have not executed any affidavit after understanding its contents. It has also been pleaded that by executing an affidavit in favour of a person the title would not be conferred in him.
6. In para 5 of the written statement it has been pleaded by defendants No.1 and 3 that the possession on the suit property is of defendants with effect from 10.5.1970 as on this date Bhanwarlal executed a patta in favour of defendant No.3-Kammoda and he (defendant No.3-Kammoda) is the Shikmi Krishak (lessee/tenant) of Bhumiswami Bhanwarlal and since then continuously the defendants are cultivating the land and are also paying the land revenue. Further it has been pleaded in para 5 of the written statement that the defendants have acquired Bhumiswami rights under section 18
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