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2024 Supreme(Online)(MP) 17869
HIGH COURT OF MADHYA PRADESH
JUSTICE AVANINDRA KUMAR SINGH, J
Smt.S.N.Bakshi – Appellant
Versus
Majiduddin – Respondent
FA 172/2008
,Ks.Rajpoot Ak.Tiwari,Lalji Kushwaha,Gopal
The court affirmed that a sale deed executed without title is void, and the plaintiffs acted within the limitation period to challenge it.
Headnote:(A) Code of Civil Procedure, 1908 - Section 96 - Appeal against judgment and decree - The trial court allowed the plaintiffs' suit for declaration and injunction regarding a sale deed executed by defendants, asserting that the predecessor lacked title to sell the property. (Paras 1, 2, 10)
(B) Property Law - Sale Deed - The court found that the sale deed was void as the property was reserved for public use and the predecessor had no right to transfer it. (Paras 4, 22)
(C) Limitation - The court held that the suit was filed within the limitation period as the plaintiffs acted promptly upon discovering the fraudulent mutation. (Paras 14, 15)
(D) Court Fee - The court affirmed that the plaintiffs paid the correct court fee as they were not parties to the sale deed. (Paras 15) (E) Evidence - The court emphasized that the defendants failed to prove their claim of possession and the validity of the 'Hibanama'. (Paras 22, 23) (F)
Findings of Court:
The trial court's findings were upheld, confirming that the sale deed was executed without legal authority. (Paras 10, 23) (G)
Issues: The main issues included the validity of the sale deed, the question of limitation, and the proper court fee. (Paras 10, 14) (H)
Ratio Decidendi: The court ruled that the sale deed was void due to lack of title and that the plaintiffs acted within the limitation period. (Paras 14, 22) (I)
Result: Appeal dismissed.
1. This appeal under section 96 of the Code of Civil Procedure has been filed by the appellant/Defendant No.8 against impugned judgment and decree dated 12.11.2007 passed by Vth Additional District Judge, Bhopal in Civil Suit No.24-A/2004 [Majid Uddin and another Vs. Aleem Uddin and others] whereby the suit of the respondents/plaintiffs for declaration and injunction has been allowed.
2 . The respondents no.1 & 2/plaintiffs filed a civil suit seeking relief to declare that the registered sale deed dated 11.10.2000 (Exhibit-P- 12C/Exhibit-D-9C) executed by Defendants No.1 to 5 in favour of Defendant No.8 in respect of land area 32 decimal which is a part of suit property admeasuring 8.32 acres situate over Khasra No.8, Patwari Halka No.20, Bagsewania, Tahsil Huzur, District Bhopal, as null and void on the basis that predecessor of Defendants No.1 to 7, namely, Late Jahiruddin did not have right and title to sale the same and the appellant/Defendant No.8 be restrained from further transferring the suit property and permanent injunction be granted to the effect that respondents/Defendants No.9 & 10 (Government Bodies) be restrained from granting building permission.
3. Admitted facts in the suit are that originally the suit land alongwith other lands totalling 8.32 acres situated in Bagsewania, Tahsil Huzur, District Bhopal belong to one Aminuddin (father of plaintiffs no.1 & 2) and he was owner and in possession of the suit property. Aminuddin expired on 06.2.1998 but during his life-time he had 8.32 acres of land, of which 32 decimal suit land is a part of land that was diverted through order dated 29.4.1974 passed by Sub Divisional Officer, Tahsil Huzur, District Bhopal in Case No.14/A/21/64-65 & Case No.14/A/21/67-68. He further obtained permission from Town & Country Planning, Bhopal by order dated 17.1.1973. As per permission 8.32 acres of law was divided into 07 portions and out of which 65 plots were carved out. It is also an admitted position that Defendants No.1 to 7 are the legal heirs of deceased-Jahiruddin. It is also not in dispute that Defendants No.1 to 5 executed sale-deed for 32 Decimal = 13,939 sq.ft. to Defendant No.8. Prior to that the Defendants No.1 to 5 got their names mutated in the revenue record but respondents/plaintiffs filed an appeal and mutation in their favour was cancelled.
4 . It is the case of the respondents/plaintiffs that 32 Decimal of suit land was reserved for road, park and green area. Out of 8.32 acres of land, Late Aminuddin sold some property and made 'Hiba' regarding other properties. But a forged 'Hibanama' was prepared and on that basis the Defendants No.1 to 5 got the land 0.32 decimal mutated in their names. The suit property was never in possession of the Defendants No.1 to 7, therefore, the sale deed is void. Hence, prayer was made for declaration and injunction, as referred to above in paragraph 2 of this judgment.
5 . The Defendants No.1 to 7 before the trial Court filed written statement stating that suit property of 32 decimal was not marked for road etc. and they have sold the suit property to Defendant No.8. In fact, permission was obtained by Aminuddin for 8 acres of land. The suit is time barred. No proper court fee has been paid. Therefore, prayed that suit of the respondents/plaintiffs be dismissed.
6 . The appellant/Defendant No.8 filed written statement and submitted that she has purchase the suit property from land owners i.e. Defendants No.1 to 7 and the Defendants No.1 to 5 have properly sold the suit property to her. In respect of cancellation of mutation by the order of Sub Divisional Officer it is stated that an appeal is pending before the Additional Commissioner, Bhopal and, therefore, sought dismissal of the suit.
7. The respondents/Defendants No.8 & 9 remained ex parte before the trial Court.
8. The respondents/plaintiffs examined Majinuddin as PW.1, Sahabuddin as PW.2 & PW.3- N.Uddin, and exhibited documents (Exhibits- P/1 to P/24). The defendant
