IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

SECOND APPEAL NO.80 OF 2003

Between:-

1 SMT. FATIMA BI (DEAD)

2. USMAN KHAN, AGED ABOUT 45 YEARS,

S/O INAYAT KHAN.

3. YUNIS KHAN, AGED ABOUT 42 YEARS,

S/O INAYAT KHAN.

4. IMRAN KHAN (DEAD) THROUGH LRS:

4A. SMT. FARIDA KHAN WD/O IMRAN

KHAN, AGED 45 YEARS,

4B. ISAN KHAN, AGED ABOUT 15 YEARS

S/O LATE IMRAN KHAN

4C. FAIZAN KHAN, AGED ABOUT 12

YEARS S/O LATE IMRAN KHAN

RESPONDENTS 4B AND 4C ARE MINORS

THROUGH THEIR GUARDIAN MOTHER

SMT. FARIDA KHAN. ALL R/O VILLAGE

AND POST MATKULI, TAHSIL PIPARIYA

DISTRICT HOSHANGABAD (M.P.)

.....APPELLANTS

(BY SHRI AMIT KHATRI - ADVOCATE)

AND

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1. KU. NAJNIN, AGED ABOUT 35 YEARS,

DAUGHTER OF SHAMSUDDIN

2. RIYAZUDDIN, AGED ABOUT 34 YEARS

S/O SHAMSUDDIN,

3. AJAJ (DEAD) THROUGH LRS:

3A. SMT. AYSA BEE, AGED ABOUT 70

YEARS, WIDOW OF SAMSUDDIN

(MOTHER OF LATE AJAJ RESIDENT NO.3)

R/O WARD NO.13, BEHIND BUMBAI WALE,

SEONI MALWA, DISTRICT

HOSHANGABAD (M.P.)

4. KU. NASRIN, AGED ABOUT 2 YEARS,

D/O SHAMSUDDIN.

R/O GADARI MOHALLA, SEONI MALVA

DISTRICT HOSHANGABAD (M.P.)

5. THE STATE OF M.P. THROUGH THE

COLLECTOR, HOSHANGABAD (M.P.)

…….....RESPONDENTS

(BY SHRI IMTIYAZ HUSSAIN – SENIOR ADVOCATE ASSISTED

BY SHRI SAZID KHAN - ADVOCATE)

............................................................................................................................................……………………...........

Reserved on :09.11.2022

Pronounced on:23.11.2022

This second appeal has been heard and reserved for

judgment, coming on for pronouncement this day, the court

delivered the following:

J U D G M E N T

This second appeal has been filed by the defendants challenging

the judgment and decree dated 29.10.2002 passed by 3

rd

Additional

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District Judge, Hoshangabad, Link Court Sohagpur in regular civil appeal

no.24-A/02 confirming the judgment and decree dated 19.11.2001 passed

by Civil Judge Class-I, Piparia, District Hoshangabad in civil suit no.118-

A/96 whereby, learned trial Court decreed the suit of the respondents for

declaration of title and permanent injunction with regard to land Khasra

no.54/1 area 26.67 acre, situated in Village Mehandikheda, Tahsil Piparia,

District Hoshangabad.

2.In short the facts are that, the plaintiffs/respondents instituted a suit

claiming themselves to be successors of Zahiruddin, who was born out of

wedlock of second wife of Shamsuddin, whereas the plaintiffs are the

children from first wife Aysa Bi. It is alleged that on 23.10.1972, father of

plaintiffs, Shamsuddin purchased the suit land in the name of minor son

Zahiruddin for consideration of Rs.1,000/- from the original owner Smt.

A.G. Granvile, but due to ailment, Shamsuddin instructed Aziz Mohd. to

get the sale deed executed in the name of Zahiruddin and he being minor,

name of Aziz Mohd. was shown in the sale deed as guardian. As trees of

Sagwaan and Satkate were standing on the land, therefore, no agriculture

was done. In the month of July 1992, when the plaintiffs made contact to

the Patwari for getting their name mutated, then they came to know that

there is no land in the name of Zahiruddin in the village. Thereupon, the

plaintiffs applied for certified copies of the Khasra entries, as well as of

the sale deeds and came to know that the land area 53.38 acre is recorded

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in the name of Edit William, Adaginvil widow of H.S. Greenvil and Aziz

Mohd. Habibullah and in the Khasra of the year 1991-92, name of

defendants is recorded as bhoomiswami. Zahiruddin was born on

15.09.1967 and attained majority on 15.09.1985 and died on 28.02.1989

whereas Aziz Mohd. had died in the year 1987 itself. On what basis name

of Aziz Mohd. was recorded in the revenue record, is not clear but he had

no right to get the land recorded in his name in the minority of

Zahiruddin, which does not confer any right on Aziz Mohd. On the

aforesaid and on inter alia allegations the suit was filed.

3.The defendants appeared and filed written statement denying the

plaint allegations. Taking several objections, the defendants contended

that they received the disputed land in succession through Aziz Mohd.,

regarding which the original owners raised objections which were

overruled by Tahsildar and declared that the land of Khasra no.54/1 is of

Mohd. Aziz. The previous owners A.G. Huge and Smt. William sold 1/3

share of the land in question to Mohd Aziz vide registered sale deed dated

29.02.1960, later upon raising objection by Greenvil, Aziz Mohd. got

executed the sale deed in the name of Zahiruddin who was residing with

Aziz Mohd. and the amount of consideration of Rs.1000/- was not paid

by Shamsuddin, who was driver and had no sufficient means. The

plaintiffs without having any right want to grab the suit land, which has

been in possession of Aziz Mohd. since prior to the year 1960. The

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defendants claiming themselves to be in possession of the land with effect

from the year 1960, also claimed themselves to be owner, on the basis of

adverse possession. On inter alia contentions, the suit was prayed to be

dismissed.

4. On the basis of pleadings, learned trial Court framed as many as 7

issues and recorded evidence of the parties and after consideration of the

same decreed the suit vide judgement and decree dtd. 19.11.2001 holding

the plaintiffs to be owner and in possession of the land Khasra no.54/1

area 26.67 acre situated in Village Mehandikheda, Tahsil Piparia and

passed decree of permanent injunction against the defendants from

making any interference in possession of the plaintiffs.

5.Civil appeal filed by the defendants, was dismissed by learned first

appellate Court vide its judgment and decree dated 29.10.2002

confirming the judgment and decree of trial Court.

6.Upon filing second appeal by the defendants, this Court vide order

dated 28.10.2014 admitted the same on the following substantial

questions of law:-

“(1) Whether despite earlier registered sale deed, Ex.D-7, dated

29-2-1960 of Khasra No.54/1, area 17.79 acres in favour of

Aziz Mohammad (Predecessor of Defendants), Ex.D-4 dated

18-11-1972, sale deed in favour of Chhotelal, the vendors

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could pass legal and valid title in favour of Zahiruddin

(Predecessor of Plaintiffs) by Ex.P-1, 26.67 acres ?

(2) Whether the Courts below have properly construed and

interpreted sale deed, Ex.D-7, dated 29-2-1960 in favour of

defendants, Will Ex.D-6, dated 9-6-1986, sale deed, Ex.D-4,

dated 18-11-1972 in favour of Chhotelal and Ex.P-1, sale deed,

dated 18-11-1972 in favour of plaintiffs ?

(3) Whether the Courts below have properly construed and

interpreted defendants’ documents Ex.D-1, dated 12-8-1968,

order of Naib Tahsildar, Sohagpur, Ex.D-2 Khasra Panchsala,

Ex.D-3, Kist Bandi, Ex.D-5, dated 15-7-1967, order of

Tahsildar ?

(4) Whether the findings recorded by the Courts below are

perverse ?”

7.Learned counsel for the appellants/defendants submits that even if

the plea of benami and adverse possession taken by the defendants, is

discarded or not considered, the defendants being owner and in

possession of the land Khasra no.54/1 area 17.79 acre covered by

registered sale deed dated 29.02.1960 (Ex.D-7), are entitled to protect

their title and possession over the land and no decree could have been

passed in favour of the plaintiffs, because the sale deed dated 29.02.1960

(Ex.D-7) being of the period in prior point of time, will prevail over the

sale deed dated 18.11.1972 (Ex.P-1c) and in the light of findings recorded

by learned Courts below, the plaintiffs should have filed the suit against

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Chhotelal in whose favour there is sale deed dated 18.11.1972 (Ex.D-4).

He submits that in any case, there is no adverse effect on the sale deed

dated 29.02.1960, it being executed in prior point of time by the original

owners. He submits that learned Courts below have not considered the

provision contained in Section 48 of the Transfer of Property Act, 1882

and has not recorded any finding in that regard, which in the light of

execution of three sale deeds, was necessary.

8.Learned Senior counsel for the respondents submits that the

defendants have come with the different and self destructive pleas, which

have rightly been discarded by learned Courts below. He submits that

learned Courts below have rightly held the plaintiffs to be

owner/bhumiswami and in possession of the suit land and there is no

adverse effect of the sale deed dated 29.02.1960 (Ex.D-7) over the sale

deed dtd. 18.11.1972 (Ex.P-1c) executed in favour of the plaintiffs/

Zahinruddin. He submits that the defendants can claim their property

from Chhotelal. With these contentions, he prays for dismissal of the

appeal.

9.Heard learned counsel for the parties and perused the record.

10.From the aforesaid it is clear that there are three sale deeds, which

were executed by original owners/bhumiswami of the land :-

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i.Sale deed dtd. 29.2.1960 (Ex.D-7) in favour of defendants’

ascendant Aziz Mohd;

ii. Sale deed dtd. 18.11.1972 (Ex.P-1c) in favour of plaintiffs’

ascendant Zahiruddin;

iii. Sale deed dated 18-11-1972 (Ex.D-4) in favour of

Chhotelal.

11.Section 48 of the Transfer of Property Act may be relevant in the

facts and circumstances of this case which reads as under :

48. Priority of rights created by transfer.

Where a person purports to create by transfer at different times rights in or over

the same immoveable property, and such rights cannot all exist or be exercised to

their full extent together, each later created right shall, in the absence of a special

contract or reservation binding the earlier transferees, be subject to the rights pre-

viously created

12.In the light of provision of section 48 of the T.P. Act, learned

Senior counsel for the respondents, submits that although the sale deeds

(Ex.P-1c) and (Ex.D-4) were executed on same date 18.11.1972 but sale

deed executed in favour of Zahiruddin i.e. the sale deed dtd. 18.11.1972

(Ex.P-1c) is in prior point of time and the sale deed dated 18.11.1972

(Ex.D-4) executed in favour of Chhotelal is subsequent to sale deed

(Ex.P-1c). I minutely perused both the sale deeds and upon perusal of

second paragraph of both the sale deeds dtd. 18.11.1972, the submission

of the learned senior counsel appears to be correct. As such, the only

dispute to be decided by learned Courts below, was only amongst the

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plaintiffs and Chhotelal or his successors but for want of their

impleadment, learned Courts below have not given any finding with

regard to the sale deed (Ex.D-4) executed in favour of Chhotelal.

13.Undisputedly and as per findings recorded by learned Courts

below, previous owners of the land survey no. 54/1 executed registered

sale deed dated 29.02.1960 (Ex.D-7) in favour of Aziz Mohd and the

defendants are his descendants. As per provision contained in Section 48

of the Transfer of Property Act, 1882 and in the light of decisions of the

Supreme Court in the case of Atla Sidda Reddy Vs. Busi Subba Reddy

and others 2010 (4) MPLJ 304 (SC) = (2010) 6 SCC 666 and of this

Court in the case of Mohd. Ashraf and another Vs. M.P. Housing

Board and others 2011(1) MPLJ 444; and Sunil Kumar Vs. Dr.

Omprakash Garg and others 2010 RN 315, in case of two or more sale

deeds of same land, the previous sale deed(s) will prevail over later sale

deed(s).

14.As such, in my considered opinion, in presence of sale deed dated

29.02.1960 (Ex.D-7), the defendants being owners of the suit property at

least to the extent of 17.79 acre, are entitled to protect their title and

possession against the plaintiffs as well as against Chhotelal. Certainly

the learned Courts below have not taken care of the rights of the

defendants conferred upon them by way of the sale deed dated

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29.02.1960 executed in favour of Aziz Mohd. and on the basis of

weakness of the case of defendants and due to different pleas taken by

defendants, the learned Courts below have decreed the suit with regard to

the entire area of the land covered by the sale deed (Ex.P-1c).

15.Apparently the order of Naib Tahsildar, Sohagpur dated 12-8-1968

(Ex.D-1), Khasra Panchsala (Ex.D-2), Kist Bandi (Ex.D-3), Order of

Tahsildar dated 15-7-1967 (Ex.D-5) are nothing but are the order of

mutation and entries made in the revenue record based on order of

mutation, which neither confer title nor extinguish title of the real owner.

As such in the light of aforesaid findings recorded by this Court on the

question of title, the orders of mutation and revenue entries based

thereon, are liable to be ignored.

16.As such in my considered opinion, the sale deed dtd.29.2.1960

(Ex.D-7) will prevail over the sale deed dtd. 18.11.1972 (Ex.P-1c).

Similarly the sale deed 18.11.1972 (Ex.P-1c) will prevail over the sale

deed dtd. 18.11.1972 (Ex.D-4). Meaning thereby, the area purchased by

the sale deed dtd. 29.2.1960 will be reserved firstly and thereafter the area

of sale deed dtd. 18.11.1972 (Ex.P-1c) is liable to be reserved and lastly

the sale deed dtd.18.11.1972 (Ex.D-4) will be considered valid only to the

remaining area out of total area 53.38 acres. With these findings, this

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second appeal succeeds and judgement and decree passed by learned

Courts below are modified.

17.The substantial questions of law 1 to 4 are decided accordingly.

However, no order as to costs.

(DWARKA DHISH BANSAL)

JUDGE

pb