ORDER
This Second Appeal under Section 100 of the CPC is preferred being aggrieved by the judgment and decree dated 12.07.2023 in Regular Civil Appeal No.01/2020 by the Second Additional Judge to the Court of First District Judge, Badnawar, District Dhar (M.P.) arising out of the judgment and decree dated 04.01.2020 in Regular Civil Suit No.200011-A/2016 by the Civil Judge, Class-I, Badnawar, District Dhar.
2. Facts before the trial Court are that the respondent no.1 Prakashchand filed a civil suit seeking relief of declaration of nullity of sale deed dated 11.02.2015 executed by the appellant in favour of the respondent no.2 Sushila Bai, recovery of possession and mesne profit regarding suit land of Survey No.1655 area 0.013 hectare situated at village Tilgara, Tehsil & District Dhar on the ground that the suit land is in the ownership of
1
plaintiff/respondent no.1 and appellant/defendant no.1 obtained the suit property on rent of Rs.750/- per month. The defendant no.1/appellant paid the rent upto 13.12.2014 and thereafter he did not pay the rend. On an enquiry, it was found that the suit property has been sold by the defendant/appellant no.2 in favour of the defendant no.2 on 05.06.2015, so a suit was filed on 20.01.2016. The suit was contested by filing the written statement on behalf of appellant submitting that the property sold through sale deed dated 05.06.2015 does not belongs to the plaintiff/respondent no.1 and property in his possession is also does not belongs to the respondent no.1/plaintiff. Survey No.1655 area 0.013 hectares also does not belongs to the plaintiff/respondent no.1. He is not a tenant of plaintiff. The plaintiff is not entitled for any relief.
3. The defendant no.2/respondent no.2 filed a separate written statement and supported the appellant no.1.
4. The trial Court framed issues and recorded evidence of Prakashchand (PW-1), Prafulgiri (PW-2) and admitted the documents Exhibit-P/1 to P/11. The defendant no.1 and 2 examined Jaganath as DW-1, Sushila Bai as DW-2, Shambhulal as DW-3 and Dharmraj as DW-4 and admitted the documents Exhibit-D/1 and D/10.
5. Appreciating the evidence, the trial Court dismissed the suit recording the findings that the sale deed executed by the appellant in favour of the respondent no.2 does not relates to Survey No.1655 and that land comprises in Survey No.1652. The trial Court further recorded the findings that the appellant/defendant no.1 is in possession of Survey No.1655 area
2
0.013 hectares.
6. The decree and judgment was challenged by the respondent no.1 in first appeal and the First Appellate Court partly allowed the appeal recording the findings that the plaintiff is the Bhumiswami of Survey No.1655 area
0.013 hectares and appellant/defendant no.1 has encroached on the land of Survey No.1655 area 0.013 hectares and passed a decree of possession regarding Survey No.1655 area 0.013 hectares against the present appellant.
7. The First Appellate Court affirmed the decree of the trial Court in which the sale deed executed by appellant in favour of the respondent no.2 was declined holding that the sale deed belongs to Survey No.1655.
8. This Second Appeal is preferred proposing the following substantial questions of law:-
"(a) Whether, the first appellate court has erred in reversing the judgment and decree passed by the trial Court without appreciating the evidence and not drawing the adverse inference against the plaintiff?
(b) Whether, the learned first appellate court has erred inholding the plaintiff of the suit land merely their name is recorded in Khasra and Khatuni Exhibit P/8& P/9. It is settled position of law that a revenue entry does not confer any title but first appellate court has assumed the title on the basis of revenue entry?
(c) Whether, learned appellate court was justified in
3
partially decreeing the appeal and reversing the well reasoned finding recorded by learned trial Court wherein civil suit for cancellation of sale deed, arrears of rent, vacant possession and mesne profit was dismissed?
(d) Whether, without seeking the relief of declaration of title any relief of possession can be granted in favour of plaintiff which is against section 34 of Specific Relief Act?
(e) Whether, the issue of possession can be decided without disclosing the time line of illegal possession.
(f) Whether, a suit filed on basis of landlord-tenant relationship, the decree can be passed for possession and cancellation of sale deed without proving landlord-tenant relationship between plaintiff and defendant ?
(g) Whether, the appellate court committed grave error of law in misreading the commissioner and revenue inspector report wherein it has come on record that appellant is found in possession of survey no.1652aabadi land and not disputed survey no.1655?
(h) Whether, the learned appellate court can decree the civil suit regarding immovable property without leading any documentary evidence by plaintiff through the burden was upon him to prove his case?"
Heard the learned counsel for the parties & perused the record.
9. In Exhibit-P/8 and Exhibit-P/9, the respondent no.1 is recorded as Bhumiswami of Survey No.1655 situated at village Tilgara, Tehsil & District
4
(GAJENDRA SINGH)
JUDGE
Dhar. The appellant/defendant no.1 has no document in his favour. Whatever was in his ownership has been transferred by him to the defendant no.2/respondent no.2. Mere questioning the genuineness of document adduced by the plaintiff/respondent does not justify the possession of the appellant/defendant no.1. There is no perversity in the findings recorded by the First Appellate Court in reversing the findings of the trial Court holding that the land of Survey No.1655 belongs to the plaintiff/respondent no.1 in Bhumiswami Rights. There is no perversity in interpretation of Exhibit-P/8 & Exhibit-P/9.
10. In view of the foregoing discussion, the substantial questions of law as proposed does not arises and this Second Appeal under Section 100 of the CPC is not fit to be admitted, hence, it is dismissed at the admission stage.
VS
5