Gajanand vs Gordhan - 2013 Supreme(MP) 333

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(MP) 333

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M.K. Mudgal, J.
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Gajanand and another v. Gordhan and others
izFke vihy Øekad 206 lu~ 2002 ¼Xokfy;j½% izFke vij ftyk] U;k;k/kh’k xquk }kjk flfoy okn Øekad 47&,@2000 esa ikfjr fu.kZ; ,oa fMØh ds fo#)( fu.khZr fnukad 27-6-2013A
First Appeal No. 206 of 2002 (Gwalior): judgment and decree dated 13.9.2002 passed in Civil Suit No. 47-A/2000 by First Additional District Judge, Guna; Decided on 27.6.2013.

Advocates:
vkj-ih- flag vihykFkhZx.k dh vksj ls( uhjt JhokLro izR;FkhZ Øekad 1 dh vksj ls( ,l-ds- ‘kekZ izR;FkhZ Øekad 2 dh vksj ls( Hkxoku jkt ik.Ms] ljdkjh vf/koDrk izR;FkhZ Øekad 3@jkT; dh vksj lsA
R.P. Singh for appellants; Neeraj Shrivastava for respondent No. 1; S.K. Sharma for respondent No. 2; Bhagwan Raj Pandey, Govt. Advocate for respondent No. 3/State.

Headnote:¼1½ fofufnZ”V vuqrks”k vf/kfu;e] 1963 & /kkjk 34 rFkk 38 & HkwfeLokeh }kjk foØ; & mlds }kjk vius thoudky esa vk{ksfir ugha fd;k x;k & ,d HkkbZ }kjk gd~] O;kns’k rFkk foØ; foys[k v—r rFkk ‘kwU; ?kksf”kr djus ds fy, okn & laifŸk la;qä fganw dqVqac dh laifŸk gksuk dfFkr & laifŸk fdl izdkj vftZr gqbZ & u rks vfHkopu fd, x, vkSj u gh lkfcr fd;k x;k & ekSf[kd foHkktu & lknk dkxt ij foHkktu Kkiu dk fu”iknu & bl ij dksbZ dkjZokbZ ugha dh xbZ & Hkwfe la;qä fganw dqVqac dh laifŸk ds :i esa ugha ekuh tk ldrh & okn lgha gh [kkfjt fd;k x;k & gLr{ksi visf{kr ughaA ¼iSjk 12 ls 16 ,oa 23½

       ¼2½ fganw fof/k & HkwfeLokeh vf/kdkjksa ds :i esa Hkwfe vfHkfyf[kr & HkwfeLokeh }kjk foØ; & ,d HkkbZ }kjk gd~] O;kns’k rFkk foØ; foys[k v—r rFkk ‘kwU; ?kksf”kr djus ds nkok & laifŸk la;qä fganw dqVaqc dh laifŸk gksuk dfFkr & laifŸk fdl izdkj vftZr gqbZ & u rks vfHkopu fd, x, vkSj u gh lkfcr fd;k x;k & Hkwfe la;qä fganw dqVqac dh laifŸk gksuk ugha ekuk tk ldrkA ¼iSjk 12 ls 16½

       ¼3½ lk{; & dk fl)kar & vfHkopuksa ds vHkko esa & i{kdkjksa }kjk izLrqr lk{; & ewY;kafdr ugha dh tk ldrhA , vkb vkj 1978 ,l lh 484 vuqlfjrA ¼iSjk 12½

       ¼4½ lk{; vf/kfu;e] 1872 & /kkjk 18 & Lohdkjksfä & dk izHkko & O;fä tks vius fgr rFkk laifŸk ls foyx gks x;k & mldh i’pkr~orhZ Loh—rh & ,d vU; ds vf/kdkj izHkkfor ugha djrhA 1963 ts ,y ts&,l ,u 14 rFkk 2003 ¼2½ e Á ohDyh uksV~l 38 voyafcrA ¼iSjk 16½

       ¼5½ Hkw&jktLo lafgrk] 1959 ¼e-Á-½ & /kkjk 117 & [kljk esa O;fä HkwfeLokeh ds :i esa vfHkfyf[kr & dCtk dh mi/kkj.kk HkwfeLokeh ds i{k esa gksxh & HkwfeLokeh }kjk Hkwfe dk foØ; & Øsrk dk dCtk jftLVªh—r foØ; foys[k ij vk/kkfjr & mldk dCtk oS/k gSA ¼iSjk 20½

       ¼6½ fofufnZ”V vuqrks”k vf/kfu;e] 1963 & /kkjk 38 & O;kns’k & nkosnkj dk dCtk gksuk lkfcr ugha & O;kns’k iznku ugha fd;k tk ldrkA 2004 ¼2½ e iz ohDyh uksV~l 25 rFkk 2003 ,l , vkj 929 izHksfnrA ¼iSjk 21 ,oa 22½
       (1) Specific Relief Act, 1963 -- Ss. 34 and 38 -- sale by Bhumiswami -- not challenged by him in his life time -- suit for title, injunction and declaration of sale deed as null and void by another brother -- property alleged as joint Hindu family property -- how property acquired -- neither pleaded nor proved -- oral partition -- execution of memo of partition on plain paper -- not acted upon -- land cannot be treated as joint Hindu family property -- suit rightly dismissed -- no interference called for.
        [Paras 12 to 16 and 23
       (2) Hindu Law -- land recorded in Bhumiswami rights -- sale by Bhumiswami -- claim of title, injunction and declaration of sale deed as null and void by another brother -- property alleged as joint Hindu family property -- how property acquired -- neither pleaded nor proved -- oral partition -- execution of memo of partition on plain paper -- not acted upon -- land cannot be treated as joint Hindu family property. [Paras 12 to 16
       (3) Evidence -- principle of -- in absence of pleadings -- evidence produced by parties -- cannot be evaluated. AIR 1978 SC 484 followed. [Para 12
       (4) Evidence Act, 1872 -- S. 18 -- admission -- affect of -- person who has parted with his interest and property -- his subsequent admission -- does not affect right of another. 1963 JLJ-SN 14 and 2003(II) MPWN 38 relied on. [Para 16
       (5) Land Revenue Code, 1959 (M.P.) -- S. 117 -- person recorded as Bhumiswami in khasra -- presumption of possession will be in favour of Bhumiswami -- sale of land by Bhumiswami -- possession of purchaser based on registered sale deed -- his possession is legal. [Para 20
       (6) Specific Relief Act, 1963 -- S. 38 -- injunction -- possession of claimant not proved -- injunction cannot be granted. 2004(II) MPWN 25 and 2003 SAR 929 distinguished. [Paras 21 and 22

JUDGMENT

Mudgal, J. 1. The appellants/plaintiffs have filed the appeal under section 96 of Civil Procedure Code, being aggrieved by the judgment and decree dated 13.9.2002, passed by the Court of First Additional District Judge, Guna (Shri J.S. Varma) in Civil Suit No. 47A/2000 dismissing the suit for declaration of title and permanent injunction. In this appeal appellants are referred as “plaintiffs” and the respondents as “defendants”.

2. The following admitted facts have come on record:-

The plaintiff No. 1 Gajanand, plaintiff No. 2 Babulal and the defendant No. 1 Gordhan are real brothers and are sons of Gyasiram. As plaintiff No. 1 Gajanand and defendant No. 1 Gordhan have died during pendency of the suit and their legal representatives have already been brought on record. The disputed survey No. 1425/2 area 1.254 hectares in the Khasra Ex-P/1 was entered in the name of defendant No.1 Gordhan as Bhumiswami who had executed the sale deed on 15.1.92 in favour of defendant No. 2. Validity of the sale deed was not challenged by the vendor Gordhan in his life time.

3. The facts in brief of the plaint are that the plaintiffs Gajanand, Babulal and defendant No. 1 Gordhan were members of the joint Hindu family. After the death of Gyasiram (father) defendant No.1 Gordhan used to look after agricultural operation of the family. Plaintiffs have further alleged that after the death of Gyasiram the disputed property was equally distributed among the three sons of Gyasiram i.e. plaintiffs and defendant No. 1. Though the disputed property was in the name of defendant No. 1, yet the whole disputed property was managed by the plaintiffs. The disputed agricultural land was divided among the plaintiffs and defendant No. 1 orally in presence of Panch before 25 years and subsequently a memo of partition was reduced to writing in the year 1970 between the plaintiffs and defendant No. 1. The plaintiffs have further alleged that they are in possession of their respective shares after the oral partition as well as acknowledgment of deed reduced to writing. Defendant No. 1 had no right to sell the disputed land to the respondent No. 2. The sale deed dated 15.1.92 executed by defendant No. 1 in favour of defendant No. 2 is not only illegal but also null and void. The disputed property is the joint Hindu family property which was given to the plaintiffs share in the partition. On the basis of the above allegations, the suit for declaration of title and permanent injunction was filed on 9.5.92. By way of amendment additional relief was sought to declare the sale deed dated 15.1.92 executed in favour of the defendant No. 2 as null and void.

4. After the death of defendant No.1 during pendency of the suit, his legal representatives filed written statement admitting the entire allegations of the plaint and requested to pass a decree in favour of the plaintiffs as stated in the plaint.

5. The defendant No. 2 denying all the allegations made in the plaint has filed written statement that the disputed land is not the property of joint Hindu family of plaintiffs and defendant No. 1 Gordhan. On the contrary defendant No.1 Gordhan was the recorded Bhumiswami of the property and he was in possession, owing to which, the defendant No. 2 purchased the property from the defendant No.1 after paying entire consideration to him. Defendant No.1 did not challenge the legality of the sale deed. Plaintiffs have no right and title to the disputed land which was in possession of defendant No.1. After execution of the sale deed, the defendant No. 2 has been in possession of the land as owner. The plaintiffs have filed the suit with the connivance of the defendant No.1 and document of memorandum of partition is a fabricated and a concocted document, on the basis of which, the plaintiffs could not get any right in the property. Submitting the written statement defendant No. 2 has requested to reject the suit.

6. The learned trial Court after framing nine issues and having c