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Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7444 OF 2009

RAJNARAYAN SHARMA       ..APPELLANT

VERSUS

SIRNAM SHARMA AND OTHERS ..RESPONDENTS

J U D G M E N T

MOHAN M. SHANTANAGOUDAR

1. This  appeal  arises  out  of  the  impugned  judgment

dated 12.12.2005 passed by the High Court of Madhya Pradesh,

Bench at Indore in Second Appeal No. 189/1999, setting aside

the judgment passed by the Additional District Judge, Gohad in

C.F.A No.  65/98,  consequently confirming the judgment and

decree passed by the Civil Judge, Class-I, Gohad in Civil Suit

No.  8-A/87.    In  effect,  the  High  Court,  by  the  impugned

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judgment,  has  restored  the  judgment  of  the  trial  Court,

decreeing the suit, filed by the plaintiffs.  Order of review dated

04.12.2006 passed by the High Court has also been challenged

in this appeal.

2. The plaintiffs (respondent nos. 1 and 2 herein) filed

Civil Suit No. 8-A/87 for declaration of title and injunction, and

for cancellation of the sale deed dated 16.7.1984 (exhibit D-2),

executed  by  Bansi(Banshi)  in  favour  of  defendant

no.1-Raghunath, as well as, sale deed dated 21.9.1989(exhibit

D-1),  executed  by  defendant  1-Raghunath  in  favour  of

Rajnarayan Sharma (appellant  herein)  in  respect  of  the  land

bearing  survey(new)  numbers  123,  322,  426,  863,  1375 and

1413, admeasuring 7 Bighas 17 Biswas, situated in the village

Chandhara,  Tehsil  Gohad,  District  Bhind,  Madhya  Pradesh

(hereinafter referred to as the ‘suit land’).   

The plaintiffs claimed that they were in possession of

the  suit  land  as  sub-lessee  of  Bansi(Banshi)  after  paying

Rs.5,000/-  to  Bansi(Banshi)  in  Samvat  2030 and  since  then

they  continued  to  be  in  possession  of  the  suit  land;  they

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acquired rights of occupancy tenants; Bansi(Banshi)/holder of

the suit land could not have executed the sale deed in favour of

the first defendant,  firstly,  because Bansi(Banshi)  was not in

possession of the suit property, and that the plaintiffs were in

continued possession of the property,  and secondly,  because

Bansi(Banshi) was mentally ill.

The  case  of  the  defendants  is,  that  Raghunath

(original  defendant  no.1)  purchased  the  suit  land  from

Bansi(Banshi) through a registered sale deed (exhibit D-2) dated

16.7.1984, and in turn,  Raghunath sold the suit property to

Rajnarayan Sharma (appellant herein) through registered sale

deed (exhibit D-1) dated 21.09.1989.

3. The trial  Court,  after  framing the issues,  recording

the evidence and hearing the parties, decreed the suit filed by

the plaintiffs.  As mentioned supra, the first appellate Court

reversed the judgment and decree passed by the trial Court and

dismissed the suit filed by the plaintiffs, concluding that the

plaintiffs have neither proved their ownership nor possession

over the suit land. The High Court, while allowing the appeal

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filed by the plaintiffs in part, concluded that the plaintiffs have

got no right, title or interest whatsoever over the suit land, but

are in possession of the property and therefore they cannot be

dispossessed,  except  in  accordance  with  law.   The plaintiffs

have not assailed the impugned judgment of  the High Court

holding  that  they  do  not  have  any  right,  title  or  interest

whatsoever over the suit land and therefore the said finding  of

the  High  Court  has  attained  finality  and  is  binding  on  the

parties.

4. The only question to be decided in this appeal is with

regard  to  the  possession  over  the  suit  property.   The  first

appellate Court, as well as, the High Court have categorically

recorded a finding on due consideration of the entire material

on the record in proper perspective,  that there is nothing on

record  to  show  that  the  plaintiffs  were  sub-lessees  of

Bansi(Banshi)  at any point of  time.  The alleged payment of

Rs.5,000/- by the plaintiffs to Bansi(Banshi) is also not proved,

inasmuch  as,  there  is  no  documentary  evidence  to  support

such  case  of  the  plaintiffs.   Neither  lease  deed  executed

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between the plaintiffs and Bansi(Banshi), nor any rent receipt is

forthcoming on the record.  Even the alleged rate of rent was

not fixed between the plaintiffs and Bansi(Banshi). Therefore,

though  the  High  Court  was  justified  in  concluding  that  the

plaintiffs have not proved any right, title or interest over the

suit  land,  the  High  Court  has  erred  in  concluding  that  the

plaintiffs are in possession of the suit land since last few years

and they cannot be dispossessed,  except in accordance with

law.   

5. The plaintiffs solely rely upon khasra entries filed by

the defendants before the first appellate Court as an additional

evidence,  which  came  to  be  accepted  for  the  years  Samvat

2036-2040 and 2041-2045, i.e., 1974-1979 and 1980-1985, to

show that  they are  in  possession of  the suit  property.    As

mentioned  supra,  the  plaintiffs  claimed  that  they  were  in

possession of  the  suit  land from Samvat  2030,  but  there  is

nothing  on  record  to  show  that  they  entered  into  the

possession of the suit land in Samvat 2030.  It is  no doubt

true, that the names of the plaintiffs were forthcoming in the

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certified copies of  khasra entries  for  Samvat 2036-2040 and

2041-2045  in  the  column  of  particulars,  however,  the

Sub-Divisional  Officer,  Gohad has passed an order cancelling

the names of the plaintiffs in respect of those years, inasmuch

as, the khasra entries in the revenue record were found to be

incorrect.  Except those khasra entries, no other documentary

material is forthcoming to prove the possession of the plaintiffs

over the suit property at any point of time.

6. Per  contra,  the  sale  deed  dated  16.7.1984  (exhibit

D-2),  executed  by  Bansi(Banshi)  in  favour  of  Raghunath

(original  first  defendant),  and the sale deed dated 21.9.1989

(exhibit D-1), executed by the first defendant in favour of the

appellant herein are not questioned by anybody including the

plaintiffs till date. The sale deed dated 16.7.1984 (exhibit D-2)

depicts that the possession of the suit land was handed over by

Bansi(Banshi) to Raghunath, i.e., the predecessor-in-interest of

respondent nos. 3 to 5 herein.  On receiving consideration of

Rs.15,000/-, the possession of the suit land was handed over to

Raghunath  on  the  spot.   On  13.5.1985,  by  the  order  of

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Sub-Divisional  Officer,  Gohad,  the  revenue  records  were

mutated on the application of  original  vendor  Bansi(Banshi).

Subsequently  thereafter  the  names  of  defendant  no.1-

Raghunath on the basis of sale deed dated 16.7.1984 (exhibit

D-2)  and  subsequent  purchaser  Rajnarayan  Sharma  (the

appellant  herein)  on  the  basis  of  sale  deed  dated  21.9.1989

(exhibit D-1) were mutated in the revenue records.  Even after

the second sale deed dated 21.9.1989, the name of Rajnarayan

Sharma was entered into the revenue records as in possession

over the suit land and he is cultivating the land in question.

7. Having regard to the position narrated above,  it  is

clear that there is no documentary evidence to show that the

plaintiffs are in possession of the suit property and their case

is only based on oral evidence, which is controverted by the

defendants in their oral evidence, in our considered opinion,

the High Court was not justified in holding that the plaintiffs

are  in  possession of  the  property.  The High Court  has  fully

relied  on  the  revenue  entries  of  Samvat  2036-2040  and

2041-2045 to conclude that the plaintiffs are in possession of

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the  property.  While,  doing  so  the  High  Court  had  erred  in

overlooking  the  important  factor  that  such  entries  were

cancelled by the superior revenue officer, as mentioned supra.

In view of the same the High Court fell into error in coming to

wrong  conclusion.   Hence,  the  said  part  of  the  impugned

judgment  needs to be modified.

8. Accordingly, the instant appeal is allowed, the finding

recorded by the High Court that the plaintiffs are in possession

of the suit property and they cannot be dispossessed except in

accordance with law stands set aside, and the suit No. 8-A/87

is dismissed in toto.  No order as to costs.

…...………………………………….J.   [ARUN MISHRA]

……..……………………………..……J.   [MOHAN M. SHANTANAGOUDAR]

NEW DELHI;

SEPTEMBER 12 , 2017.

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ITEM NO.1501               COURT NO.10               SECTION IV-A    (For Judgment)

              S U P R E M E  C O U R T  O F  I N D I A                RECORD OF PROCEEDINGS

Civil Appeal No(s).7444/2009

RAJNARAYAN SHARMA                                  Appellant(s)                                 VERSUS

SIRNAM SHARMA AND OTHERS                           Respondent(s)

Date : 12-09-2017  This appeal was called on for pronouncement of     judgment today.

For Appellant(s) Mr. Niraj Sharma,AOR                     For Respondent(s) Ms. Sharmila Upadhyay,AOR                               UPON hearing the counsel the Court made the following        

O R D E R Hon'ble  Mr.  Justice  Mohan  M.  Shantanagoudar

pronounced  the  Non-Reportable  judgment  of  the  Bench comprising  Hon'ble  Mr.  Justice  Arun  Mishra  and  His Lordship.

The appeal is allowed with no order as to costs, in terms of the signed Non-Reportable judgment.   

Pending application, if any, stands disposed of.

(Sarita Purohit)                       (Tapan Kumar Chakraborty)  Court Master                                Branch Officer

    (Signed Non-Reportable judgment is placed on the file)