ATAR SINGH Vs. DAYARAM

JUDGEMENT

(1.) This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 4.8.2011 passed by Additional District Judge, Karera, District Shivpuri in Regular Civil Appeal No.8-A/2011 thereby reversing the judgment and decree dated 28.2.2011 passed by Civil Judge Class-II, Karera, District Shivpuri in Civil Suit No.97-A/2009.

(2.) The necessary facts for the disposal of the present appeal in short are that the plaintiff/respondent had filed a suit for declaration of title and possession pleading inter alia that survey No.1130 area 1.88 hectare situated in village Dhand, Tahsil Karera, District Shivpuri is the property in dispute. The old number of disputed property was 310/2 and 311/4 area 1.839 hectares. During bandobast both the survey numbers were consolidated and one survey No.1130 area 1.88 hectares was made. The plaintiff/respondent along with other survey numbers had purchased the property in dispute from one Smt. Baro widow of Panjana by registered sale deed dated 4.7.1969 and on the said date itself the possession of the property in dispute was also given to the plaintiff/respondent. After the sale of her property in dispute, no right or title were left with the seller Smt. Baro. On the basis of the sale deed, the plaintiff/respondent filed an application for mutation of his name. However, the name of the plaintiff/respondent was mutated in respect of some of the land which was sold to the plaintiff/respondent by registered sale deed dated 4.7.1969 and the plaintiff/respondent under an impression that his name has been mutated in respect of entire land therefore he did not bother to check the record. It was pleaded that the father of the appellants was a clever person and by misrepresenting somehow, he convinced Smt. Baro to execute a registered sale deed in respect of the disputed property in favour of the appellants/defendants and consequently a registered sale deed was executed. However, on the date of the registration of the sale deed in favour of the appellants/defendants neither the seller Smt. Baro had any right or title to sell the land nor any right or title stood transferred in favour of the appellants. The appellants/defendants in connivance of the revenue authorities get their names mutated in the revenue record in a clandestine manner. However, the plaintiff/respondent was not aware of such mutation. Since the sale deed was executed by Smt. Baro without any title or right, therefore, no right or title had accrued in favour of the appellants/defendants. It was further pleaded that the plaintiff/respondent was in continuous possession of the property in dispute. On 15.9.2008, the appellants came on the spot and informed that they have purchased the property from Smt. Baro and have got their names mutated and started disputing the title of the plaintiff/respondent. When the plaintiff/respondent enquired from Tahsil Karera, then he was told by the Patwari that the names of the appellants/defendants are recorded in the revenue record. Thereafter, the plaintiff/respondent filed an application under Sections 115 and 116 of Land Revenue Code before the Court of Naib Tahsildar, Tahsil Karera, District Shivpuri. The said proceedings was decided by the Naib Tahsildar by order dated 25.4.2009 and held that the parties should get their title declared from the Civil Court of competent jurisdiction. On the next date i.e. 26.4.2009, the plaintiff/respondent was forcibly dispossessed by the appellants and thus the plaintiff/respondent is also entitled for decree of possession apart from mesne profit.

(3.) The appellants filed their written statement and accepted that the old number of survey No.1130 area 1.88 hectares was 310/2 and 311/4. However, it was denied that Smt. Baro had sold the disputed property by registered sale deed dated 4.7.1969. It was pleaded that in fact the plaintiff/respondent had never purchased survey No.310/2 and 311/4 from Smt. Baro nor any such sale deed was executed by Smt. Baro on 4.7.1969. In fact the sale deed dated 4.7.1969 is a forged and created document by impersonating some other lady in place of Smt. Baro. No photograph of the seller was affixed on the forged sale deed. It was further pleaded that on 4.7.1969 Smt. Baro was not the Bhumiswami because the land originally belonged to her husband Panjana S/o Gyasi and since he was alive on the date of the execution of the sale deed, therefore, Panjana was the Bhumiswami of the disputed property and during life time of Panjana, Smt. Baro had no right to title to alienate the property. It was further pleaded that a forged and concocted sale deed dated 4.7.1969 has been executed by showing the payment of insufficient consideration amount. It was further pleaded that even the possession of the disputed land was not handed over to the plaintiff/respondent. The respondent is a clever person and on the basis of the sale deed dated 4.7.1969 he had got his name mutated on the remaining land belonging to Smt. Baro and during the lifetime of Smt. Baro he did not file any application for mutation of his name on the disputed land. It was further pleaded that after the death of Panjana, the name of Smt. Baro was mutated in the year 1975-76 and on 7.7.1992 Smt. Baro has executed a registered sale deed in favour of the appellants/defendants after receiving the consideration amount of Rs.34,500/-. On the said sale deed photograph of Smt. Baro was also affixed which has been duly attested by the Registrar. The appellants/defendants have also constructed a well in the year 1994-95 which is being used for irrigation purposes. The sale deed dated 7.7.1992 is a valid sale deed because on the said date, Smt. Baro had become the Bhumiswami and had right to alienate the same. It was again specifically pleaded that on 4.7.1969 Smt. Baro was not the Bhumiswami but her husband Panjana was the Bhumiswami. The application filed by the plaintiff/respondent for correction of revenue revenue record under Sections 115 and 116 of M.P. Land Revenue Code has already been rejected by the Naib Tahsildar. It was also denied that after the rejection of the said application, the appellants had forcibly take possession of the land in dispute but it was pleaded that the appellants/defendants are in open possession of the land in dispute from 7.7.1992 itself and no steps were taken by the plaintiff/respondent for possession. The sale deed dated 4.7.1969 was executed by showing insufficient consideration amount and all other pleadings were denied.