1. The appellant/original defendant No.2 has filed this regular appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 19.4.2005 passed by the First Additional Judge to the Court of First Additional District Judge, Bhopal in Civil Suit No.19-A/2004 whereby the suit filed by the plaintiffs (present respondents No.1 to 7) and late Narbadi Bai was decreed and the plaintiffs were declared title and possessionholders of the suit lands bearing survey no.245 area 0.11 acre, survey no.250 area 1.41 acres, survey no.252 area 1.47 acres and survey no.258 area 0.35 acre of village Kotra Sultana, Tehsil Huzur, District Bhopal and a mandatory injunction was issued in favour of the plaintiffs regarding deletion of the name of defendant No.1 State of M.P. and the mutation of plaintiffs in revenue records and issued perpetual injunction against the defendants not to interfere in the possession of the plaintiffs over the disputed agricultural lands.
2. It would be significant to mention here that during the pendency of this appeal, original plaintiff No.1/respondent No.1 Smt.Narbadi Bai had expired, thus her name has been deleted.
3. The original respondents No.1 to 7 (plaintiffs) filed the plaint in the relating District Court for above mentioned reliefs on pleadings that originally disputed land belonged to the ancestor of the present plaintiffs, late Chhotelal. The plaintiffs are his successors. After the death of late Chhotelal, proceedings were initiated regarding lands of late Chhotelal including the suit lands under the provision of Urban Land (Ceiling and Regulation) Act, 1976 in the Court of competent authority, in which the statement was filed under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976. The competent authority had declared the disputed lands as surplus lands and after the issuance of the notification under Section 10(3) of the above mentioned Act and after vesting of the disputed lands in the State, the application filed under Section 20 of the above mentioned Act remained pending. The defendants No.2 and 3 filed an appeal before the Commissioner against the order of the competent authority declaring lands as surplus lands and the relating Commissioner remanded the ceiling case to the competent authority for deciding it again with certain directions. The relating Urban Land (Ceiling and Regulation) Act, 1976 became inoperative in Madhya Pradesh from 17.2.2000. The disputed land remained in title and possession of the plaintiffs from beginning, but after the above mentioned order regarding vesting of the disputed lands in Government, the defendants No.2 and 3, without knowledge of the ancestors of the plaintiffs fraudulently and committing conspiracy in the office of the Sub-Registrar and by forgery got prepared forged sale-deeds on 7.3.1982. These forged sale-deeds are not bearing the signatures of their predecessors-intitle and no consideration was paid to the ancestors of the plaintiffs. In total, four sale-deeds on 7.3.1982 are being stated to be executed by late Babulal, late Nanhelal and late Smt.Swaroopi Bai and the sale-deeds bear only thump impression of the executants whereas the suit lands being ancestral, other coparceners of the joint family were also having interest in the disputed lands. All the four sale-deeds being void ab-initio from beginning were not having any legal importance, as before the date of alleged execution of the sale-deeds, the disputed lands have been vested in the Government. The defendant No.2 cooperative society is said to be created on 11.9.1981, whereas the disputed lands were declared surplus and vested in the Government in the year 1979. The ancestors of the plaintiffs never received any intimation of the appeal filed by the defendants No.2 and 3 before the Commissioner and it appears that the defendants No.2 and 3 had kept the Additional Commissioner under dark and in connivance they had got the order dated 6.2.1985, which was also void. After above mentioned remand order, no proceedings happened in the case from 19.2.1985 to year 1999. In the meanwhile, the above mentioned Act was repealed by the Central Government and before commencement of the Repealing Act in Madhya Pradesh without intimating the plaintiffs, suddenly, proceedings were started in the remanded case and the competent authority ordered on 28.6.1999 that the disputed lands have been sold to defendant No.2, thus, the plaintiffs are not entitled for any hearing, whereas the name of the State Government has been mutated in the revenue record on 28.10.1997. In the year 1982-83, the defendant No.2 got his mutation in revenue record in connivance with the Patwari but the Tehsildar on 30.6.1982, cancelled the mutation of defendant No.2. In ceiling case on 24.10.1997 under Section 10(5) of the above mentioned Act, the proceedings of taking possession of declared surplus lands was stayed. Thus, the disputed lands remained continuously in possession of the plaintiffs till filing of the suit.
4. After vesting of the surplus land in the Government, possession of the disputed lands was never taken by the Government from the plaintiffs. Thus, after enforcement of Urban Land (Ceiling and Regulation) Repeal Act on 17.2.2000 in Madhya Pradesh, the plaintiffs are owners and possession- holders of the disputed lands, thus reliefs of declaration of title and possession of the plaintiffs and mandatory injunction for striking out the name of the State of M.P. in revenue records and restoration of plaintiffs??? names and perpetual injunction to protect the possession of the plaintiffs were sought. It would be significant to mention here that the present respondent No.8 J.C.Agrawal (original defendant No.3) was President of the present appellant-cooperative society at the time of execution of disputed sale-deeds.
5. Before the trial Court, no pleadings were filed by the defendant No.1 State of M.P.
6. A preliminary objection was taken by the defendants No.2 and 3 in their written statement that the defendant No.2 being a registered cooperative-society and the reliefs claimed by the plaintiffs are relating to management and business of the society, thus in absence of two months??? prior notice before filing of the suit under Section 94 of the M.P. Cooperative Societies Act, 1960, plaintiffs??? suit is not maintainable. The plaintiffs have not claimed the relief of cancellation of all the four sale-deeds, thus on this count also, the suit is not maintainable. After sale in the year 1982, the possession of the disputed lands was given to purchaser defendant No.2 and since then, the defendant No.2 is possessionholder, thus in absence of relief of possession, the suit is not maintainable. The plaintiffs have not valued their suit on the total consideration amount of sale-deeds i.e. Rs.4,11,000/- and have not paid proper court-fee, thus the suit is not tenable on this count also. It was further alleged that the predecessors-in-title of the plaintiffs had executed the relating sale-deeds in favour of the defendant No.2 after being appeared before the relating Sub- Registrar and receiving consideration. The consideration amount was paid to the predecessors-in-title of the plaintiffs by account payee cheques and the amounts of cheques were deposited in the bank accounts of the relating sellers. Due to considerable increase in the value of the lands and after releasing of the disputed lands from the provision of Urban Land (Ceiling and Regulation) Act, 1976, the plaintiffs have dishonestly filed the suit. All the four registered sale-deeds executed in favour of the defendant No.2 are not forged and without consideration and the defendants No.2 and 3 were not having the knowledge of ceiling case before execution of the sale-deeds and after execution of the sale-deeds, they received this intimation, then they filed an appeal before the Additional Commissioner, Bhopal and took other proceedings also. Due to these sale-deeds, the title and interest of the sellers have vanished. All the objections of the plaintiffs have been dismissed by the competent authority and revenue authorities and orders have been passed in favour of the defendants No.2 and 3. The plaintiffs have not filed any appeal or proceedings against those orders, thus they had become final. Now the plaintiffs are estopped from raising any objection. The defendants No.2 and 3 have developed disputed lands and got it diverted and the disputed lands have been mutated in the revenue papers in the name of the defendant No.2, who is the only title and possession-holder. The plaintiffs are not entitled for any relief. The plaintiffs are having knowledge of the relating sale-deeds since long back and their objection was dismissed by the competent authority on 26.6.1999, thus the suit filed by the plaintiffs on 25.10.2002 is time barred. It was prayed that the plaintiffs??? suit be dismissed.
7. The trial Court framed nine issues on pleadings of the parties and after recording evidence of the parties and hearing, recorded the findings that the plaintiffs are owners and possession-holders of the disputed lands; it was not proved that the ancestors of the plaintiffs had delivered possession in the year 1982 to the defendant No.2 after selling the lands; the plaintiffs??? suit is maintainable without claiming the relief of possession; plaintiffs have properly valued the suit and have paid the proper court-fee on the suit; plaintiffs??? suit is within limitation; before filing the suit, no notice was required under Section 94 of the M.P. Cooperative Societies Act by the plaintiffs to the defendant no.2; the suit is maintainable even in absence of relief of cancellation of sale-deeds; notice given under Section 80 of the C.P.C. to the defendant No.2 was legal and in the result, the plaintiffs??? suit was decreed.
8. In this pending appeal, an interim application I.A.No.4572/2010 under Order 41 Rule 27 of the CPC was filed by the respondents No.1 to 6 for taking additional documentary evidence on record. With this application, death certificate of Nanhelal Yadav has been filed praying for taking it on record. It was ordered that this application would be considered at the time of consideration of appeal on merits.
9. It has been pleaded in above mentioned application by the present respondents No.1 to 6 of this appeal that a sale-deed dated 7.3.1982 is under challenge and the appellant society pleaded that the relating sale-deed is having thumb impression of vendor Nanhelal Yadav. Actually, Nanhelal Yadav had expired on 28.2.1981 much before the execution of the alleged registered sale-deed. The respondents came across the death certificate of respondent Nanhelal Yadav only while making search for document regarding death of respondent Narbadi Bai. This additional documentary evidence is necessary to adjudicate and effectively decide the issues between the parties. This document was not within knowledge of the respondents, thus it could not be produced before the trial Court. This document would be helpful in effectively deciding the appeal, thus death certificate of Nanhelal Singh alias Nanhelal Yadav dated 21.2.2007 is prayed to be taken and admitted as evidence.
10. The present appellant has strongly opposed the above mentioned I.A. by filing written reply and it was contended that the present respondents had challenged the sale-deeds executed by their predecessors-in-title Swaroopibai, Babulal and Nanhelal before the trial Court, but no pleading and evidence was given by the respondents as plaintiffs before the trial Court regarding death of any of their predecessors-in-title. Actually, present respondent No.2 had moved an application dated 5.5.1999 in Case No.267/1979 pending before the competent authority, Urban Land Ceiling Act, Bhopal wherein an affidavit was filed by the relating respondent stating on oath that said Nanhelal died on 12.5.1985. A copy of the application dated 5.5.1999 alongwith concerned affidavit has been filed as Annexure A/8 and the copy of the ordersheet dated 17.5.1999 of above mentioned case is also filed as Annexure A/9 with the reply to the above mentioned application. According to the produced death certificate, registration of death of Nanhelal had been made on 21.2.2007, whereas his date of death is mentioned as 28.12.1981. In the produced death certificate, it is clearly mentioned that in compliance to an order dated 21.2.2007, this entry has been made, but the respondents are silent about relating order. Under Sub-rule 3(3) of Rule No.10 of the Registration of Birth and Death, M.P. 1973, any registration of death after one year of its occurrence shall be done on an order of a Magistrate of First Class. This appeal is pending from the year 2005, thus it is clear that this document has been created on 21.2.2007 under suspicious and unexplained circumstances, which shows the malafide of the respondents, thus it is prayed that above mentioned application filed by the relating respondents be dismissed regarding taking additional documentary evidence of this death certificate.
11. It is clear from the perusal of the death certificate that the relating date of death of Nanhelal Yadav has been recorded in compliance to an order dated 21.2.2007 i.e. much after filing of the present appeal. Thus, it could not be said that this death certificate could not be available during pendency of the suit before the trial Court, as it is clear that this death certificate is a creation in compliance to an order passed in the year 2007 after filing of this appeal. Such document, which came in existence after filing of this appeal in the year 2007 could not be admitted in evidence in the appeal because the trial Court had not refused to admit any death certificate in evidence and it could not be said that the produced death certificate was not within knowledge of the respondents or could not be filed before the trial Court and such delayed entry of death after 26 years prima facie appears to be suspicious, thus, it could not be admitted as additional evidence in this appeal. In the result, above mentioned I.A.No.4572/2010 filed by the respondents for taking death certificate of Nanhe Singh Yadav dated 21.2.2007 is dismissed.
12. Learned counsel for the appellant contended that the learned trial Court erred in appreciating the oral and documentary evidence of the parties before it. The trial Court erred in law in holding that the suit was within limitation, whereas the sale-deeds were executed in the year 1982 and relief was not sought by the plaintiffs for their cancellation. It was proved that the consideration of relating sale-deeds was paid to the predecessors-in-title of the plaintiffs by account payee cheques which were deposited in their relating bank accounts. It was further argued that according to the recitals of the relating sale-deeds, the possession of the concerned lands has been delivered to the purchaser. Thus the trial Court erred in holding that the plaintiffs were in possession of the suit lands. Thus, it has been prayed that the utterly perverse findings of the trial Court based on complete misreading of the evidence be turned down and the plaintiffs??? suit be dismissed allowing this appeal.
13. On the other hand, learned counsel for the respondents No.1 to 6 have supported the findings of the trial Court contending that the learned trial Judge has properly and legally appreciated the oral and documentary evidence of the parties in light of the referred citations and it is prayed that the appeal be dismissed.
14. After hearing learned counsel for the parties and looking to the facts of the present case, the following points arise for determination:- (1) Whether it was proved that the disputed four registered sale-deeds executed on 7.3.1982 in favour of the present appellant/original defendant No.2 were forged, fraudulent and void- ab-initio?; (2) Whether it was proved that the possession of the disputed lands relating to above mentioned registered saledeeds was not given to present appellant by alleged vendors? and (3) Whether the suit filed by the plaintiffs was within limitation?
15. Plaintiffs'' witnesses Gopal (P.W.1) and Mannulal (P.W.2) deposed that the challenged sale-deeds were not executed by their and other plaintiffs'' predecessors-in-title in favour of the present appellant. On this point, evidence of appellant society''s then Chairman J.C.Agrawal (D.W.1) becomes most important, because no any other witness of any of the disputed sale-deeds was examined by the appellant before the trial Court on this point. According to evidence of J.C.Agrawal (D.W.1) in para 2 of his examination-in-chief, all the four challenged registered sale-deeds were registered on 20.3.1982 in the office of Sub-Registrar, Bhopal, but according to endorsement made by then Sub-Registrar (A.V.Sirpurkar), Headquarter, Bhopal on backside of first page of each registered sale-deeds (Ex.D.1, Ex.D.2, Ex.D.3 and Ex.D.4), all four sale-deeds were produced before him on 7.3.1982, Sunday at 8:00 a.m. at the residential house of Shri Shrivastava situated in T.T.Nagar, Bhopal for registration. J.C.Agrawal (D.W.1) clearly deposed in cross-examination (para 11) that in the year 1982, all the four vendors had come to the office of Sub-Registrar, Bhopal as date of registration had been intimated to them previously and in the Sub-Registrar''s office, he had paid different cheques in relation to remaining consideration to each vendor before the Sub- Registrar. Later on, when his attention was drawn towards above mentioned endorsement made by the Sub-Registrar, he explained that he knew above mentioned Shrivastava, Account Officer, who was then posted in Account Office of Registration Department and the facts written in endorsement are correct. In para 14, J.C.Agrawal (D.W.1) gave modified deposition that cheques were given by him to each vendor at the house of Mr.Shrivastava and on this point, facts previously deposed by him were wrong. But in para 14, J.C.Agrawal (D.W.1) deposed that on first day, all had gone to the house of Mr.Shrivastava and on next day, they had gone to the Sub-Registrar''s office, but his deposition on this point is contradicted by sale-deeds (Ex.D.1, Ex.D.2, Ex.D.3 and Ex.D.4).
16. J.C.Agrawal (D.W.1) deposed in examination-in-chief that after execution of sale-deeds, the disputed lands were given in possession of appellant, but on page no.2 of each sale-deed, between marked letters B to B, it is recorded that the relating lands'' possession had been given to Shri J.C.Agrawal previously. In the sale-deeds in first para, it is clearly typed that the relating sold land is in possession of the purchaser cooperative society from previous two years. J.C.Agrawal (D.W.1) clearly deposed in para 21 of his cross-examination that possession was taken by him on behalf of the cooperative society fifteen days after the registration in presence of the patwari and the relating patwari had prepared a panchnama regarding delivery of possession. J.C.Agrawal (D.W.1) clearly admitted in cross-examination (para 21) that the fact recorded in each sale-deed about delivery of possession before two years from execution of sale-deeds is false and wrong. Thus, it is clear that on each material point relating to disputed lands, evidence of appellant''s witness J.C.Agrawal (D.W.1) is substantially contradicted by all the registered sale-deeds (Ex.D.1, Ex.D.2, Ex.D.3 and Ex.D.4) themselves.
17. J.C.Agrawal (D.W.1) deposed in para 17 of cross-examination that witnesses of each sale-deed were N.U.Hyder and A.S.Yadav resident of village Kotra. Each sale-deed is bearing the thumb impression of the vendor, but no any other witness of sale-deed has been examined by the appellant before the trial Court. Thus, looking to the material contradictions on other points relating to the date of registration, manner of registration and delivery of possession, the total deposition of J.C.Agrawal (D.W.1) does not inspire confidence.
18. According to recitals of each registered sale-deed exhibited as Ex.D.1, Ex.D.2, Ex.D.3 and Ex.D.4, consideration of each sale-deed was paid in parts and at the time of execution of sale-deed, balance was paid by account payee cheques, whose details are given in sale-deeds. It appears natural that J.C.Agrawal (D.W.1) remained unable in his cross-examination in giving details of payment of consideration to each vendor, but the appellant society did not furnish its accounts books and other documentary evidence to prove the payment of consideration of each sale-deed. Much emphasis has been given by the appellant''s learned counsel on Ex.D.6, which is a mere certificate dated 25.2.2003 issued by Bhopal Nagrik Shahkari Bank Limited, but this certificate was not properly and legally proved by the appellant by producing signatory of this certificate, which was issued about 21 years later after execution of disputed sale-deeds. Thus, the payment of consideration to each vendor was also not proved by the appellant. As each registered sale-deed is bearing thumb impression of alleged vendor, it is clear that the appellant society remained unsuccessful in proving the fact of execution of relating sale-deed by its recorded vendor. It appears that the learned trial Court has properly and legally appreciated the oral and documentary evidence of the parties on this point and found that it was not proved that in year 1982, sale-deeds relating to disputed lands were executed by the predecessors-in-interest of the plaintiffs in favour of the appellant society.
19. Section 10(3) and (4) of the Urban Land (Ceiling and Regulation) Act, 1976 provides as under:-
Section 10-Acquisition of vacant land in excess
of ceiling limit:-
(1) .....
(2) .....
(3) At any time after the publication of the
notification under sub section (1) the
competent authority may, by notification
published in the Official Gazette of the State
concerned, declare that the excess vacant
land referred to in the notification published
under sub section (1) shall, with effect from
such date as may be specified in the
declaration, be deemed to have been
acquired by the State Government and upon
the publication of such declaration, such land
shall be deemed to have vested absolutely in
the State Government free from all
encumbrances with effect from the date so
specified.
4. During the period commencing on the date of
publication of the notification under
sub section (1) and ending with the date
specified in the declaration made under
sub section (3)-
(i) no person shall transfer by way of sale,
mortgage, gift, lease or otherwise any excess
vacant land (including any part thereof)
specified in the notification aforesaid and any
such transfer made in contravention of this
provision shall be deemed to be null and void;
and
(ii) no person shall alter or cause to be
altered the use of such excess vacant land.
20. It is significant to mention here that the plaintiffs have clearly
pleaded in their plaint about different proceedings of the ceiling
case, which was registered against their predecessors in relation to
disputed lands and in para no.4 of the plaint, it is clearly pleaded
that in relating ceiling case, notification regarding surplus land was
published in Gazette of M.P. Government on 16.10.1981 and on
3.11.1981, it was ordered that a notification under Section 10(3) of
the Urban Land (Ceiling and Regulation) Act, 1976 be published
and on 27.11.1981, the notification under Section 10(3) of the Act
was published in the M.P. Gazette and subsequently on
20.10.1982, the order was passed under Section 10(5) of the above
mentioned Act and Tehsildar (Nazul) was directed to obtain the
possession of surplus lands (disputed lands).
21. It is significant to mention here that original defendant No.1 State of M.P. did not file any written statement before the trial Court and did not examine any witness before the trial Court, thus the trial Court was absolutely right in holding that it should be deemed that the relating pleadings of the plaintiffs are impliedly admitted by the defendant No.1.
22. According to above mentioned clear provision of Section 10(4) of the above mentioned Act, it is clear that after publication of the notification under Section 10(3), which was published in the M.P. Gazette on 3.11.1981, no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void. On this point, the case of Habib Mustafa through L.Rs. Vs. State of M.P. and other [2017 (1) M.P.L.J. 342] is referable.
23. Thus, if for the sake of argument, it is assumed that the relating four sale-deeds were executed on 7.3.1982 by the alleged persons, then they were executed after the publication of such notification dated 27.11.1981 and thus, on this ground also all the alleged four sale-deeds are null and void from the beginning. Any person cannot ignore the relating legal provisions and it is well established that when any document is forged, fraudulent or void ab initio, then from such sale-deed, the rights of the vendor do not extinguish and the alleged purchaser could not obtain any right or title. On this point, the case of Kusum Verma Vs. Preetam Singh Gualati and others [1998 (1) M.P.L.J. 578] is referable.
24. Much emphasis has been given by the learned counsel for the appellant that name of appellant society was mutated in revenue papers in the year 1982-83, but the relating Tehsildar had cancelled it on 30.6.1982 and after passing of the appellate order of Sub-Divisional Officer on 30.6.1994, name of the society was restored as Bhoomiswami in revenue record. But it is well established that mere mutation in revenue record is not evidence of ownership or title of recorded person.
25. It has also been argued by the learned counsel for the appellant that in absence of relief of possession, the suit was not maintainable and plaintiffs'' suit was time barred, but in view of the above mentioned discussion, it was rightly held by the trial Court that it was not proved that the possession was delivered to present appellant at any time. It has come in the evidence of plaintiffs'' witnesses that due to pendency of ceiling case, the disputed lands remained barren and open. It is well settled that open land is presumed to be in possession of lawful owner of the land concerned. The trial Court''s finding appears to be totally justified that it was not necessary for the plaintiffs to claim for relief of possession of the disputed lands.
26. Similarly, the plaintiffs have clearly pleaded that the challenged sale-deeds were not executed by their predecessors-in-interest and sale-deeds are forged and fabricated and the plaintiffs are not parties to the sale-deeds. Thus, it was not necessary for the plaintiffs to value their suit on consideration of the challenged saledeeds and their suit for mere declaration was proper and in the light of case of Linmat (Smt.) and others Vs. Purushottam and others (1985 J.L.J. 747), it is clear that when sale-deeds are totally void, then suit for mere declaration on fixed court-fee is proper.
27. On the point of limitation, in the light of citations of Ningawwa Vs. Byrappa and others (AIR 1968 SC 956) and case of Firm Sitaram Vs. Governor General (AIR 1947 Nagpur 224), it is settled that cause of action arises only when the actual threat to title and possession of the plaintiffs arises. The appellant society was not a party in the ceiling case, which was initiated in the year 1979, thus it appears that the relating authorities overlooked the provisions of Urban Land (Ceiling and Regulation) Act, 1976 in passing an order on appeal filed by the present appellant before it. The Urban Land (Ceiling and Regulation) Repeal Act, 1999 was made applicable in Madhya Pradesh admittedly on 25.10.2002, thus, the suit filed by the plaintiffs before the trial Court on 25.10.2002 could not be held time barred.
28. It appears that the learned trial Court has properly and legally analysed the oral and documentary evidence produced before it by the parties in light of so many referred citations. There appears no any perversity in any of the findings recorded by the trial Court.
29. This First Appeal filed by the appellant society is devoid of merits and it is hereby dismissed. There shall be no order as to costs.
