Madhya Pradesh High Court
Sahabuddin vs Kamaruddin (Dead Through Legal Heirs … on 24 March, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 S.A. No. 2750 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 24th OF MARCH, 2025
SECOND APPEAL No. 2750 of 2024
SAHABUDDIN AND OTHERS
Versus
KAMARUDDIN (DEAD THROUGH LEGAL HEIRS (A) LATIFAN AND
OTHERS
Appearance:
Shri Gaurav Mishra - Advocate for appellants.
Shri Dharmendra Dwivedi- Advocate for respondents Nos.1(f) and 2.
JUDGMENT
This Second Appeal, under Section 100 of CPC, has been filed against the
judgment and decree dated 25-09-2024 passed by District Judge Chanderi,
District Ashok Nagar in Civil Appeal No. 33 of 2023, by which judgment and
decree dated 27-10-2023 passed by Civil Judge, Senior Division, Chanderi,
District Ashok Nagar in Civil Suit No. 54A/2017 has been affirmed.
2. This appeal has been filed by plaintiffs against dismissal of their suit by the
trial Court, as well as, by the appellate Court, as well as against the decree passed
by the trial Court after allowing the counter-claim filed by defendant No. 2.
3. Facts necessary for disposal of present appeal, in short, are that plaintiffs
filed a civil suit for declaration of title and permanent injunction. It is the case of
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plaintiffs that Survey No. 475, area 0.136 hectare situated in Chanderi, District,
Ashok Nagar was recorded in the revenue records in the name of Defendant No.
1. At present, aforesaid land has been divided into two parts and Survey No.
475/1, area 0.095 hectare is recorded in the name of defendant No. 1, Kamruddin,
and Survey No. 475/2, area 0.041 hectare is recorded in the name of defendant
No.3 Aminuddin. The aforesaid land is the disputed property.
It is the case of plaintiffs/appellants that father of plaintiffs namely
Nizamuddin, defendant No. 1 Kamruddin, and defendant No.4 Nasruddin were
three brothers and were residing jointly in Chanderi. The disputed land was
purchased from the proceeds of joint property. Since Kamruddin was the eldest
brother, therefore, the property was purchased in the name of Kamruddin.
Thereafter, verbal partition took place, and 1/3 share in the disputed property was
given to each brother namely–Kamruddin, Nasruddin, and Nizamuddin.
Accordingly, all three became owners and were in possession of 1/3 share in the
property. Defendant No. 1 executed a document dated 24-06-1993 in favor of
Nasruddin and Nizamuddin, and the document was prepared in three copies. The
document was notarized after it was signed by Kamruddin. Father of plaintiffs,
namely Nizamuddin, passed away. During his lifetime, Nizamuddin remained in
possession and ownership of his share, which is marked with red ink in the plaint
map. The part of the property marked with red ink had gone to the share of
Nizamuddin. Nizamuddin was the brother of Nasruddin. Nasruddin had
instructed his brother Nizamuddin to get the names of all three brothers mutated
in the revenue records. However, Patwari recorded the name of Nizamuddin, but
did not record the name of Nasruddin. Plaintiffs were under an impression that
1/3 share of all three brothers must have been recorded in the revenue records.
Nizamuddin had orally partitioned his share, thereby giving 1/2 share to each of
the plaintiffs. It is submitted that one room is situated over the land in dispute,
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and the remaining land is lying open, which is in possession of the plaintiffs.
Defendants No. 1 to 3 have no interest in the same. After the death of father of
plaintiffs, intention of defendants became dishonest, and they started claiming
that the land in dispute is of their own and now, they want to take possession of
the same. Defendant No. 1, by taking advantage of mutation of his name in the
revenue records was out and out to alienate the property, and accordingly, 0.041
hectare of land was transferred in the name of his son Aminuddin, and also got the
sale deed registered. Defendant Nos. 1 to 3 are forcibly trying to dispossess the
plaintiffs, and defendant No.1 is threatening that they would alienate the entire
property. Since Defendant Nos. 1 to 3 are denying the title of the plaintiffs, it was
claimed that it has become necessary for the plaintiffs to file the present suit. It
was claimed that the plaintiffs are innocent persons and were under an impression
that the names of all three brothers must have been recorded in the revenue
records. After threats were extended by defendant Nos. 1 to 3, plaintiffs verified
the records and found that defendant Nos. 1 to 3 have got their names recorded in
the revenue records and have also alienated the property. No information was
given to the plaintiffs, and no notices were issued. Defendant Nos. 1 to 3 have got
their names mutated in a clandestine manner, which is null and void to the extent
of the plaintiff’s share. Thus, the suit was filed for a declaration that the plaintiffs
are the owners of 1/3 share of Survey Nos. 475/1 and 475/2, total area 0.136
hectare, which is already marked with red ink in the plaint map, and also sought
declaration that they are entitled to get their names recorded in the revenue
records. It was further prayed that the mutation of the names of defendant Nos. 1
to 3 be declared null and void to the extent of share of plaintiffs and permanent
injunction was also sought.
Defendant Nos. 1 to 3 filed their written statement. It was claimed that
Survey No. 475, area 0.136 hectare, was purchased by defendant No. 1 by a
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registered sale deed in the year 1969, and since then, he has been in possession
and is using the same. By a registered sale deed dated 09/11/2015, defendant No.
3 purchased 0.041 hectare of land and also got his name mutated in the revenue
records. The remaining land was given by Defendant No. 1 to Defendant No. 2 by
a general power of attorney. Plaintiffs have no right or title over the land in
dispute. It was claimed that the father of the plaintiffs and defendants were four
brothers, out of whom Nizamuddin has expired, whereas other three brothers are
still alive. The partition claimed by plaintiffs was also denied. It was also denied
that any document of any nature was ever executed in the year 1993.
It was pleaded that Nizamuddin was residing in Survey No. 545 and even the
plaintiffs are residing in Survey No. 545, whereas Survey No. 475 is the property
of defendants Nos. 1 to 3. It was further claimed that the plaintiffs are not
innocent persons and they are in litigation for last 10 years and they are getting
different cases registered in different Courts. No threat was ever extended by
defendants Nos. 1 to 3. It was further claimed that even otherwise, the suit is
barred by time. The property in question was purchased by defendant No. 1 by
registered sale deed executed in the year 1969, and since then, he has been in
possession of the same. Thereafter, by a registered sale deed dated 09/11/2015,
0.041 hectare of land was sold to Defendant No. 3 for a consideration of Rs.
3,00,000/-. The name of Defendant No. 3 has been mutated in the revenue
records, and Defendant No. 1 also executed a Power of Attorney and has given
entire land to Defendant No. 3.
Defendant No. 4 filed a separate written statement and admitted the plaint
averments.
Defendant No. 2 also filed his counter-claim, claiming that father of
defendant No. 2 had purchased survey No. 475, area 0.136 hectare by registered
sale deed dated 11.7.1961. Defendant No. 1 had executed Hibanama in respect of
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0.095 hectare of land in favour of defendant No. 2. It was further claimed that
defendant No. 1 had executed registered sale deed in favour of defendant No. 3 in
respect of 0.041 hectare of land of Khasra No. 475/2 and the same is not being
disputed by defendant No. 2. The remaining land i.e. Survey No. 475/1, area
0.095 hectare, which was left with defendant No. 1 has been bequeathed to
defendant No. 2 by defendant No. 1 by executing a Hibanama. Defendant No. 2
had moved an application for mutation of his name, in which plaintiff raised an
objection, and proceedings were dropped by the revenue Authorities on the
ground that further proceedings shall be taken up after the judgment is passed by
the Civil Court and, thus, defendant No. 2 filed counter claim in respect of survey
No. 475/1, area 0.095 hectare. It was further stated by defendant No. 2 that his
father had purchased land in dispute by registered sale deed from one
Shaukatullah and entire consideration amount was also paid by defendant No. 1.
Defendant No. 1 has also executed a Hibanama in favour of defendant No. 2.
Plaintiffs by filing frivolous civil suit on false ground are intentionally creating
trouble and harassing defendant Nos. 1 to 4. The counter claim was later on
amended by defendant No. 2 and it was claimed that during the pendency of suit
and in spite of restraint order issued by Municipal Council, plaintiffs have taken
possession of land in dispute and, accordingly, decree for possession with mesne
profit was also sought.
4. The trial Court, after framing issues and recording evidence, dismissed the
suit and although held that defendant No.2 could not prove his ownership over
Survey No. 475/1 on the basis of Hibanama, but it was also held that being legal
representative of defendant No.1, they are entitled for decree of possession.
Accordingly, it was decreed that plaintiffs shall hand over possession of Survey
No. 475/1, area 0.045 hectare, to legal representatives of defendant No. 1.
5. Being aggrieved by the judgment and decree dated 27.10.2023 passed by
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the trial Court, respondent Nos. 1(a) to 1(f) and 2 preferred an appeal which was
registered as Regular Civil Appeal No. 31 of 2023. Similarly, appellants also
preferred Regular Civil Appeal No. 33 of 2023. Both the Civil Appeals have been
decided by the appellate Court by common judgment and decree dated 25.9.2024
and dismissed both the appeals. In nutshell, the consequence of dismissal of
appeal filed by respondent Nos. 1(a) to 1(f) and 2, as well as, appeal filled by
appellants/plaintiffs, is that concurrent findings of fact have been recorded against
appellants/plaintiffs that they have no right or title over the land in dispute, and
the counter claim filed by defendant No. 2 has been allowed and decree of
possession has been passed against plaintiffs/appellants to hand over possession
of Khasra No. 475/1 to the legal representatives of late Kamruddin.
6. Challenging the judgment and decree passed by the Courts below, it is
submitted by counsel for appellants that in the proceedings which were initiated
before the Court of Tahsildar, Pargana Chanderi, District Ashoknagar, which was
registered as B121/96-97, appellant had filed his reply and has stated that Survey
No. 475, area 0.136 hectare, is recorded in the revenue records in the name of
Kamruddin. On the aforesaid land, Nizamuddin is raising a construction and
Kamruddin has no objection to it. Mutual partition has taken place and permission
to raise construction has been granted by the High Court, Gwalior, and
Kamruddin has consent for the same. The said reply has been relied upon by the
appellants as Ex.P/9. Plaintiffs have also relied upon order sheet dated 9.9.1998
recorded by Tahsildar, Chanderi in which statement was made by Sub Engineer
who had appeared on behalf of SADA that in case if Nizamuddin constructs a
house on his own land, then they have no objection and accordingly proceedings
were dropped. Nizamuddin was also directed to seek permission from Municipal
Council. It is submitted that once Kamruddin had admitted that mutual partition
has also taken place, then finding recorded by the Courts below that property was
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purchased by Kamruddin out of his self-acquired income is bad. In fact, the
property in question was purchased from the proceeds of joint family income and
therefore, sale deed (Ex.D/16) was in fact a joint property, although it was
purchased in the name of Kamruddin and proposed the following substantial
questions of law:
(A) Whether, decree passed by learned both the courts are illegal,
without jurisdiction and bad in law?
(B) Whether, the learned Trial Court and First Appellate Court erred
in failing to recognize the established co-ownership of the disputed
land by the appellants and their father, Nizamuddin, based on the
documented acknowledgment of equal shares by the co-owners?
(C) Whether, the revenue records, which recorded the land in the
names of the defendants without due notice to the appellants, were
improperly treated as definitive proof of ownership by the learned
courts, disregarding the principles of natural justice and equitable
rights?
(D) Whether, Did the learned Trial Court err in its interpretation of
the sale deed executed in favor of the respondents on 03.11.2015,
particularly in light of the absence of a complete sale deed for the
entire property, which raises questions about its legality and
enforceability?
(E) Whether, learned Trial Court fail to issue a permanent injunction
despite clear evidence supporting the appellants’ lawful possession of
the disputed property, thus violating the principles of equity and
justice?
(F) Whether, the counter claim filed by the defendants was
adequately substantiated and legally valid, especially considering the
lack of proper legal grounds for transferring possession of the land to
the heirs of Kamrood.
(G) Whether, learned Trial Court and First Appellate Court exceed
their jurisdiction by failing to correctly apply relevant legal principles
and by making findings that are inconsistent with established legal
standards regarding property ownership?
(H) Whether, the Trial Court’s failure to consider the sale deed
executed by Kamrood, which references adjacent property belonging
to Nizamuddin, constitutes a significant legal oversight that impacts
the determination of rightful ownership.
(I) Whether, the acknowledgment of one-third ownership by the
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Appellants, based on historical possession and acceptance by co-
owner Nasruddin, sufficient to establish their legal claim to the
property?
(J) Whether, Trial Court commit a legal error by not issuing a
permanent injunction despite the Appellants providing substantial
evidence to support their claim?
(K) Whether, the Trial Court exceed its authority by transferring
possession of land (Survey No. 475/1, area 0.095 hectares) to the
heirs of Kamrooddeen without proper legal justification?
(L) Whether, the determination of illegal possession by the Trial
Court unjustified when the Appellants have established their lawful
possession through documented evidence?
(M) Whether, the Trial Court err in considering the Appellants’
possession as illegal when the sale deed executed by Kamrooddeen
referenced adjoining property belonging to Nizamuddin, indicating
lawful possession?
(N) Whether, learned both the court below erred in not appreciating
the oral and documentary evidence on record?
7. Considered the submissions made by counsel for appellants.
8. It is the case of appellants/plaintiffs that although the sale deed (Ex.D/16),
which was in respect of survey No. 475, was executed in the name of Kamruddin,
but it was a joint property as it was purchased from the income of joint property.
Therefore, the burden was on them to prove that property was purchased from the
income of joint property.
9. Sahabuddin (PW1) has merely stated that 1/3 of Khasra No. 475 was given
by Kamruddin to his father by a notarized document. He further admitted that no
partition order was ever passed. He further stated that Kamruddin had executed a
relinquishment deed in favour of Nizamuddin which was got notarized.
10. Similarly Naseeruddin (PW2) has also stated that property was purchased
from Shaukatullah in the name of Kamruddin. When property was purchased all
the persons were residing jointly. They resided jointly for 10 to 12 years and
thereafter mutual partition was done in the year 1974 and Khasra No. 475 was
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partitioned in three parts i.e. 1/3 was given to Kamruddin 1/3 was given to
Naseeruddin and 1 / 3 was given to Nizamuddin. He further stated that his house
is situated on the land in dispute from 1965 and there is no question of any illegal
dispossession by them. He denied that Kamruddin is sole owner of Survey No.
475 as the sale deed was executed in his name.
11. Abdul Alim (PW3) has stated that he has seen the land in dispute which is
approx. 15-16 biswa and one share was given to father of plaintiff, one share was
given to Naseeruddin and one share was given to Kamruddin. Right from his
childhood, he has seen the possession and construction of plaintiffs over the land
in dispute. In his cross-examination, this witness fairly conceded that no partition
had taken place in his presence. He further admitted that Article A-01 to A-04 are
in relation to the Wall which is being constructed over the land in dispute and the
Wall is about 4 to 5 months old. He further admitted that today he was brought by
Shahabuddin and Tajuddin to depose in the Court.
12. Thus, none of plaintiff’s witnesses claim that Survey No. 475 was
purchased from the income of joint family property. Sale deed (Ex.D/16) was in
the name of Kamruddin and in absence of any evidence to show that said property
was purchased out of the income of joint family property, it cannot be said that
Khasra No. 475 was joint property of three brothers, that is Kamruddin,
Nizamuddin, and Naseeruddin. Even otherwise, both the courts below have given
concurrent findings of fact with regard to nature of sale deed (Ex.D/16) which
was executed in favour of Kamruddin.
13. The counter-claim which was filed by defendant No. 2 has been rightly
decreed by the trial court and affirmed by the appellate Court because the legal
representatives of Kamruddin are entitled for possession of Khasra No. 475/1
which was illegally taken by plaintiffs during the pendency of suit. Even Abdul
Alim (PW3) has admitted that the Wall was being constructed over the land in
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dispute which is only 4 to 5 months old. Furthermore, the evidence led by
plaintiffs itself is self-contradictory. Sahabuddin (PW1) had admitted that when
the suit was filed there was no construction over the land in dispute. However, he
denied that possession of land in dispute was illegally taken and construction was
done on 17.12.2022, whereas Naseeruddin PW2 has stated that houses were
standing right from 1965 and therefore there is no question of any illegal
dispossession during pendency of suit. If houses were already standing from the
year 1965 then the same should have been shown in the spot map but according to
Sahabuddin, there was no construction over the land in dispute when the suit was
filed. Even otherwise, it is a well-established principle of law that even if findings
recorded by the courts below are erroneous, still this court, in exercise of power
under Section 100 of CPC, cannot interfere with the same.
14. The Supreme Court in the case of Dinesh Kumar v. Yusuf Ali reported in
(2010) 12 SCC 740 has held as under:-
13. A second appeal does not lie on the ground of erroneous findings
of facts based on appreciation of the relevant evidence. The High
Court should not entertain a second appeal unless it raises a
substantial question of law. It is the obligation on the court of law to
further the clear intendment of the legislature and not to frustrate it
by ignoring the same.
14. In Ram Prasad Rajak v. Nand Kumar & Bros. [(1998) 6 SCC
748 : AIR 1998 SC 2730] , this Court held that existence of the
substantial question of law is a sine qua non for the exercise of
jurisdiction under Section 100 of the Code and entering into the
question as to whether the need of the landlord was bona fide or not,
was beyond the jurisdiction of the High Court as the issue can be
decided only by appreciating the evidence on record.
15. There may be a question, which may be a “question of fact”,
“question of law”, “mixed question of fact and law” and “substantial
question of law”. Question means anything inquired; an issue to be
decided. The “question of fact” is whether a particular factual
situation exists or not. A question of fact, in the realm of
jurisprudence, has been explained as under:
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“A question of fact is one capable of being answered by
way of demonstration–a question of opinion is one that
cannot be so answered. The answer to it is a matter of
speculation which cannot be proved by any available
evidence to be right or wrong.”
(Vide Salmond on Jurisprudence, 12th Edn., p. 69, cited in Gadakh
Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [(1994) 1 SCC
682] , at SCC p. 705, para 34.)
16. In RBI v. Ramakrishna Govind Morey [(1976) 1 SCC 803 :
AIR 1976 SC 830] this Court held that whether the trial court should
not have exercised its jurisdiction differently, is not a question of law
or a substantial question of law and, therefore, the second appeal
cannot be entertained by the High Court on this ground.
17. In Kulwant Kaur v. Gurdial Singh Mann [(2001) 4 SCC 262]
this Court held that the question whether the lower court’s finding is
perverse may come within the ambit of substantial question of law.
However, there must be a clear finding in the judgment of the High
Court as to perversity in order to show compliance with the
provisions of Section 100 CPC. Thus, this Court rejected the
proposition that scrutiny of evidence is totally prohibited in the
second appeal.
18. In Sheel Chand v. Prakash Chand [(1998) 6 SCC 683 : AIR
1998 SC 3063] , this Court held that question of reappreciation of
evidence and framing the substantial question as to whether the
findings relating to the factual matrix by the court below could vitiate
due to irrelevant consideration and not under law, being question of
fact cannot be framed.
19. In Rajappa Hanamantha Ranoji v. Mahadev Channabasappa
[(2000) 6 SCC 120] this Court held that it is not permissible for the
High Court to decide the second appeal by reappreciating the
evidence as if it was deciding the first appeal unless it comes to the
conclusion that the findings recorded by the court below were
perverse.
20. In Jai Singh v. Shakuntala [(2002) 3 SCC 634 : AIR 2002 SC
1428] this Court held that it is permissible to interfere even on
question of fact but it has to be done only in exceptional
circumstances. The Court observed as under : (SCC pp. 637-38, para
6)
“6. … While scrutiny of evidence does not stand out to be
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totally prohibited in the matter of exercise of jurisdiction in
the second appeal and that would in our view be too broad a
proposition and too rigid an interpretation of law not worthy
of acceptance but that does not also clothe the superior courts
within jurisdiction to intervene and interfere in any and every
matter–it is only in very exceptional cases and on extreme
perversity that the authority to examine the same in extenso
stands permissible–it is a rarity rather than a regularity and
thus in fine it can be safely concluded that while there is no
prohibition as such, but the power to scrutiny can only be had
in very exceptional circumstances and upon proper
circumspection.”
21. In P. Chandrasekharan v. S. Kanakarajan [(2007) 5 SCC 669]
this Court reiterated the principle that interference in the second
appeal is permissible only when the findings are based on misreading
of evidence or are so perverse that no person of ordinary prudence
could take the said view. More so, the Court must be conscious that
intervention is permissible provided the case involves a substantial
question of law which is altogether different from the question of law.
Interpretation of a document which goes to the root of title of a party
may give rise to a substantial question of law.
22. In Shakuntala Chandrakant Shreshti v. Prabhakar Maruti
Garvali [(2007) 11 SCC 668 : (2008) 1 SCC (L&S) 964] this Court
considered the scope of appeal under Section 30 of the Workmen’s
Compensation Act, 1923 and held as under : (SCC pp. 679-80, paras
39-40 & 42)
“39. Section 30 of the said Act postulates an appeal
directly to the High Court if a substantial question of law is
involved in the appeal.
40. A jurisdictional question will involve a substantial
question of law. A finding of fact arrived at without there
being any evidence would also give rise to a substantial
question of law. …
***
42. A question of law would arise when the same is not
dependent upon examination of evidence, which may not
require any fresh investigation of fact. A question of law
would, however, arise when the finding is perverse in the
sense that no legal evidence was brought on record or
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jurisdictional facts were not brought on record.”
Similar view has been reiterated by this Court in Anathula Sudhakar
v. P. Buchi Reddy [(2008) 4 SCC 594] .
23. In Rishi Kumar Govil v. Maqsoodan [(2007) 4 SCC 465] this
Court while dealing with the provisions of Section 21(1)(a) of the
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
1972 and Rule 16 of the U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Rules, 1972, held that the bona fide personal need
of the landlord is a question of fact and should not be normally
interfered with.
24. There is no prohibition to entertain a second appeal even on
question of fact provided the Court is satisfied that the findings of the
courts below were vitiated by non-consideration of relevant evidence
or by showing erroneous approach to the matter. [Vide Jagdish
Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604] ,
Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353] , Satya Gupta
v. Brijesh Kumar [(1998) 6 SCC 423] , Ragavendra Kumar v.
Prem Machinery & Co. [(2000) 1 SCC 679 : AIR 2000 SC 534] and
Molar Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC 285] ]25
[Ed. : Para 25 corrected vide Official Corrigendum No.
F.3/Ed.B.J./68/2010 dated 9-7-2010.] . Thus, the law on the subject
emerges to the effect that second appeal under Section 100 CPC is
maintainable basically on a substantial question of law and not on
facts. However, if the High Court comes to the conclusion that the
findings of fact recorded by the courts below are perverse being
based on no evidence or based on irrelevant material, the appeal can
be entertained and it is permissible for the Court to reappreciate the
evidence. The landlord is the best judge of his need, however, it
should be real, genuine and the need may not be a pretext to evict the
tenant only for increasing the rent.”
15. So far as application filed by Kamruddin (Ex.P/9) is concerned, counsel for
appellants could not point out the details of proceedings in which said application
was filed. Furthermore, in the said application it is mentioned that Nizamuddin is
raising construction in the light of order passed by the High Court. Accordingly,
counsel for appellants was directed to point out the order of High Court by which
Nizamuddin was permitted to raise construction. However, it was fairly conceded
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by counsel for appellants that there was no such order of the High Court.
Furthermore, there is nothing on record to suggest that application was actually
signed by Kamruddin.
16. Accordingly, appeal fails and is, hereby, dismissed.
(G.S. Ahluwalia)
Judge
(and)
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