A second appeal under Section 100 CPC must demonstrate a substantial question of law; inadequate proof invalidates an agreement to sell, with both courts correctly concluding the decree of possession based on proper evidence.

ORDER :

SANJEEV S KALGAONKAR, J.

Heard on admission.

The present second appeal under Section 100 of the Code of Civil Procedure is filed feeling aggrieved by the judgment and decree dated 15.5.2025 passed in Regular Civil Appeal No. 25/2023 by the Vth District Judge, Dr. Ambedkar Nagar, Mhow affirming the judgment and decree dated 13.3.2023 passed in Regular Civil Suit No. 160A/2018 by IInd Civil Judge Junior Division, Dr. Amebedkar Nagar, Mhow. Thus, the present appeal is filed assailing the concurrent finding with regard to grant of decree of possession in favour of plaintiff (respondent herein) on the disputed property and also declaration to the effect that agreement to sale dated 18.1.1989 is not binding on the plaintiff.

2. Plaintiff Babulal had filed suit for declaration, permanent injunction, and recovery of possession against his brother Ramchandra inter-alia pleading that the suit properties were received by him in family partition in the year 1993-94. Accordingly, the suit properties were recorded in his name in the revenue records after mutation of shares in favour of himself, his brothers and father. He had permitted his brother Ramchandra to cultivate the disputed land for a 50% profit share. In the year 2001-02, he came to know that Ramchandra had mutated his name in the revenue records on the disputed lands without his consent and knowledge, therefore, he had applied for correction of record under Sections 115 and 116 of Madhya Pradesh Land Revenue Code. Ramchandra appeared in the proceeding before Tehsildar, Mhow and pleaded that he had purchased the properties vide agreement to sale dated 18.1.1989. The agreement to sale is a forged document. Tehsildar, Mhow vide order dated 31.1.2018 referred the parties to the Court of competent jurisdiction to determine the issue of title on the land. Accordingly, present suit was filed for declaration of title and declaring that the agreement dated 18.1.1989 is void and not binding on the plaintiff and also for recovery of possession of disputed property.

3. The defendant Ramchandra filed written statement denying the claim of plaintiff. On completion of trial, the learned Court of first instance granted the relief claimed in the plaint. The legal representatives of Ramchandra filed appeal assailing the judgment and decree of the Court of first instance. The first appellate Court dismissed the appeal and affirmed the judgment of the Court of first instance.

4. Learned counsel for the appellant in addition to the facts and ground pleaded in the appeal memo contended that the Court of first instance and the first appellate Court committed error in finding that the defendant had admitted partition of the family property in the year 1994. The Court of first instance and first appellate court committed error in concluding that the agreement to sale dated 18.1.1989 is not valid as there was no partition between the parties at the time of execution of such agreement. Learned counsel referred to the special pleading para 2 of the written statement and the evidence of DW-1 to contend that it was specifically stated that the partition between the parties took place in the year 1976. Therefore, the finding and conclusion of the Court of first instance and the first appellate Court based on admission of partition in the year 1993-94 is perverse being against the pleading and evidence on record. Learned counsel further contended that despite categorical evidence of handwriting expert on record, the Court of first instance and first appellate Court committed gross error in holding that the agreement dated 18.1.1989 is invalid and not binding on the plai