Madan Singh v. Bapulal And Others

1. This is defendant’s second appeal under section 100 of the Code of Civil Procedure, 1908 against concurring judgment and decree passed by the Additional District Judge, Neemuch in Civil Appeal No. 63 A of 1984.

2. On 15.1.1988, present appeal was admitted for final hearing on the following substantial questions of law :

(a) Whether in the facts and circumstances of the case the lower appellate Court committed grave error of law in proceeding with the hearing of appeal without joining the State of Madhya Pradesh as a party, which had become necessary in view of rule 3b(2) of o.1, cpc, as inserted by the Code of Civil Procedure (Madhya Pradesh) Amendment Act No. 29 of 1984?

(b) Whether in the facts and circumstances of the case, the finding of the Courts below on the question of suit land being joint property is perverse and based on no evidence?

(c) Whether in the facts and circumstances of the case, the lower appellate Court had no jurisdiction to proceed with the hearing of the appeal without impleading the State as a party?

3. This is usual litigation where father sells property and sons assail it. Relevant facts in nutshell are as under. One Shankar sold agriculture survey No. 990 (hereinafter referred to as ‘suit land’ for short) situated in village Bordia Kalan, Tehsil and District Neemuch in favour of appellant by a registered sale deed on 21.8.1979. Respondent No. 1 & 2 through their mother as guardian assailed the sale of suit land by instituting Civil Suit in the Court of Civil Judge Class II Neemuch on allegations that suit land is ancestral property inherited by Shankar, father of respondent No. 1 & 2, and as such, they have coparcernary interest in the suit land by birth. Alienation of suit land in favour of appellant without legal necessity is null and void and not binding on them. Further case of respondents was that taking advantage of addiction of Shankar to alcohol, appellant obtained a colourable document (sale-deed) without adequate consideration. Hence, the suit for declaration of title, possession and mense profit. Besides appellant, Shankar was also joined as defendant No. 3 in the suit and he as expected admitted entire claim. He died during the pendency of above appeal, therefore, in his place, his widow was substituted as respondent No. 3.

4. Appellant contested the suit and denied all material plaint allegations. He denied that suit land is coparcernary property in the hands of Shankar. He further denied that respondent No. 1 & 2 has any share by birth in the suit property. The story of alleged sham sale deed without adequate consideration was also denied and it was claimed that the sale deed was binding on respondents and submitted that the claim put forth in plaint has no merit and substance.

5. With these pleadings, parties went to trial and adduced evidence. Trial Court, decreed the suit holding that sale of the suit land by Shankar to the extent of plaintiffs’ share in the joint family property was void and further held that plaintiffs are entitled to possession of 2/3 share in the suit land together with mense profit @ Rs. 200/- p.a. from 1980 till delivery of possession. Trial Court allowed the suit vide judgment and decree dated 1.9.1984. First appeal preferred by the appellant herein was no avail. It was dismissed by the impugned judgment and decree dated 21.10.1987. Hence, this second appeal as mentioned above.

6.I have heard learned counsel for parties at length and perused records of Courts below. It is pertinent to point out that at the time of hearing, learned counsel for appearing parties agreed that defect of not impleading State as a party to first appeal, in view of local amendment in the CPC, is not fatal, unless State comes forward with a case of fraud or collusion between parties to defeat ceiling laws. Even otherwise defect, if any, stands cured in this appeal and State has been impleaded as respondent No. 4. This is in accord with the Division Bench decision reported in 1993 JLJ 467 Brijraj Singh v. Smt. Bitto Devi. In view of the legal position, question A and C as stated above, do not survive for consideration of this Court and need not detain us.

7. Now, the question B alone remains for determination. According to learned counsel for respondents, it is a pure question of fact, conclusively decided against appellant. As such, it is not open for interference in this appeal. On the first flush, submission seems attractive, however, on a deeper probe, it is clear that submission has no force. It is an admitted fact that Shankar inherited tenancy rights of suit land and his name was recorded as Bhoomiswami in revenue papers. He executed the sale deed of suit land in favour of appellant on 21.8.1979. Suit land is agriculture holding and the tenancy rights thereof inherited by Shankar from his late further were his personal rights governed by M.P. Land Revenue Code, 1959 therefore legal necessity, per se, is not required to set aside the sale of tenancy holding. General principles of Hindu law governing devolution in such a situation are not attracted. This is the consistent view of this Court, reiterated by the Division Bench speaking through R.C. Lahoti, J. (as he then was). See Chain Singh v. Ram Chandra, 1992 RN 277. Faced with this legal position, learned counsel for respondents tried to salvage suit by contending that absence of pleading in the written statement to this effect or sale deed without consideration, is not binding on them. Neither of submission has force. Law requires pleading of material facts only and appellant in the written statement did this. As regards non-payment of consideration is concerned, respondents are claiming suit land through Shankar and recital in sale deed binds them equally. In view of the settled legal position and foregoing discussion, we have no hesitation in holding that judgment, decree passed by Courts below could not be sustained, and accordingly they are hereby set aside and the suit filed by the plaintiffs is dismissed with costs throughout. Counsel’s fee Rs. 2,000/-, if certified.

8. In the result, this appeal is allowed.