IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL SECOND APPEAL No. 3103 OF 2024 MANU @ HARI PRASAD BATHAM AND OTHERS Versus SMT.SITADEVI PATEL AND OTHERS Appearance:

Shri Arpan Shrivastava - Advocate for appellants.

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RESERVED ON : 13/03/2025 PRONOUNCED ON : 27/03/2025 ______________________________________________________________

This appeal having heard and reserved for order, coming on for pronouncement on this day, the court passed the following:

O R D E R

This second appeal has been filed under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 04.10.2024 passed by 18^th Additional District Judge, Jabalpur District - Jabalpur in RCA No.125-A/2023 arising out of the judgment and decree dated 07.02.2023 passed in Regular Civil Suit No.139-A/2016.

2. Briefly, facts relevant for disposal of present appeal are that plaintiffs filed suit for declaration mandatory injunction etc. on the ground that plaintiffs are owner of suit property and defendants are residing in suit property as tenant. Plaintiff’s father/husband Nirpat Singh Patel purchased suit property from Savitri Bai and Naresh Kumar vide registered sale deed dated 31.08.1978. After Signature Not Verified Signed by: SARSWATI purchase of property, some houses were built on part of the land and part of land was left vacant. Part of suit property, in which defendants are residing as tenant, has been shown in blue ink in the map attached with plaint. Defendants have started construction on vacant land and this part of land has been shown with A, B, C, D, E & F in red ink in map attached with plaint. This property is suit property/disputed property in the case.

3. Learned counsel for the appellants submits that on the one hand, plaintiffs claimed that present appellants are their tenant and the property was let out, them on rent. However, the trial court rejected their contention since no admissible evidence was brought on record by the plaintiffs. The plaintiffs are completely silent on the point, as to how appellants came into possession over the suit property. It is urged that the plaintiffs have completely failed to establish their possession over the suit property and meaning thereby that at the time of purchase, plaintiff did not receive actual possession of the suit property. Thus the aforesaid sale is not complete in accordance with law. Thus no legal right has accrued in favour of plaintiff because at no point of time, plaintiffs ever remained in possession. Thus merely only the basis of tax receipt, no legal right stands accrued in favour of plaintiffs with regard to suit property.

4. Learned counsel for the appellants also submits that bare perusal of Ex.P-1 to Ex.P-7 i.e. alleged sale-deed dated 31.08.1978 and documentary evidence Ex.D/1 to D/14 clearly reveal that name of Jodha Dheemer was recorded against Signature Not Verified Signed by: SARSWATI the suit property. Thus burden lies on the plaintiff as to how the seller, whose name is mentioned in alleged sale deed 31.08.1978, was competent to sale the land. Since plaintiff has failed to discharge their burden and has not approached court with clean hands, under these circumstances, legally no decree can be passed in their favour. It is also urged that both trial Court and appellate Court have committed manifest error of law in decreeing the plaintiff’s suit by ignoring the pleadings of the plaint and granted a relief which not at all set up by the plaintiff in pleading. Therefore, the impugned judgment and decree, with respect to granting relief of recovery of possession is suffering from perversity and is liable to be set aside.

5. Admittedly, the suit property is a house situated under the limits Municipality of Jabalpur District, definitely the valuation of suit property is much higher than the value assessed by the plaintiff in the suit and no proper court fees has been paid. Appellan