Madhosingh vs Amar Singh on 19 February, 2026

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    Madhya Pradesh High Court

    Madhosingh vs Amar Singh on 19 February, 2026

    Author: Gurpal Singh Ahluwalia

    Bench: G. S. Ahluwalia

              NEUTRAL CITATION NO. 2026:MPHC-GWL:7872
    
    
    
    
                                                                     1                                   SA-426-2011
                                  IN      THE      HIGH COURT OF MADHYA PRADESH
                                                         AT GWALIOR
                                                              BEFORE
                                               HON'BLE SHRI JUSTICE G. S. AHLUWALIA
                                                     ON THE 19th OF FEBRUARY, 2026
                                                      SECOND APPEAL No. 426 of 2011
                                                             MADHOSINGH
                                                                 Versus
                                                         AMAR SINGH AND OTHERS
                               Appearance:
                                  Shri Balwant Singh- Advocate for the appellant.
    
                                                                         ORDER
    

    ​This second appeal under Section 100 of CPC has been filed against
    judgment and decree dated 18.01.2011 passed by Third Additional Judge to the
    Court of First Additional District Judge, Gwalior, in Civil Appeal No.8-A/2010
    as well as judgment and decree dated 18.01.2010 passed by Third Additional
    Civil Judge to the Court of First Civil Judge, Class-I, Gwalior in Civil Suit
    No.110A/2008.

    2. The appellant is the plaintiff who has lost his case from both the Courts
    below.

    SPONSORED

    ​3. The plaintiff filed a suit against respondents for declaration of title and
    permanent injunction. It is the case of plaintiff that defendants are the joint owner
    and in possession of one building situated in Village Veerpur, Lashkar Gwalior
    behind the Government Middle School, Veerpur and is adjoining to Panchayat
    Bhavan. The boundaries of the buildings are as under:-

    “On eastern side, Pattor of Puran Singh Kushawah, on western side, open
    Government land and Panchayat Bhavan, on northern side there is open

    Signature Not Verified
    Signed by: PRINCEE
    BARAIYA
    Signing time: 09-03-2026
    17:19:18
    NEUTRAL CITATION NO. 2026:MPHC-GWL:7872

    2 SA-426-2011
    Government land and on southern side there is a public road going from
    Secunderkampu to Girvai and thereafter, building of the plaintiff. In the present
    case, the property which is in the shape of ruins including one room measuring 12
    x 12 square feet and one joint staircase and corridor whose entire area is 30 x 25
    square feet is the disputed property. Although, entire area of the building in
    question is 60 x 30 square feet, but only 30 x 25 square feet of property including
    one joint staircase and corridor is disputed in the present case. It is not out of
    place to mention here that earlier suit was filed against defendants No.1 and 2,
    namely Amar Singh and Kaptaan Singh and later on, defendants No.3 and 4, Smt.
    Abha and Smt. Rajni were impleaded as the property was sold by defendant No.1
    in their favour by sale deed dated 05-08-1999. It was the case of plaintiff that
    defendants No.1 and 2 are father and son and Jagdish was the second son of

    defendant No.1 who was elder to defendant No.2. He was married and is missing
    for the last 1 year. After the death of his wife, defendant No.1 had partitioned the
    property and approximately half portion of the entire house was given to
    defendant No.2 and his another son Jagdish. On 09.08.1997, defendant No.1
    executed an agreement to sell in favour of plaintiff in respect of property which
    was given to Jagdish including one Kachi Pattor , which is in the shape of ruin and
    a courtyard averaging 20 to 25 square feet of land and full consideration amount
    of Rs.10,500/- was received by defendant No.1 and Jagdish and possession of the
    same was given to plaintiff, and it was agreed that within three years, the
    registered sale deed would be executed and the entire possession of agreed
    property would be given to plaintiff, but in fact the actual possession of plaintiff
    is on the disputed property. Similarly, on 19.08.1998, defendant No.2 alongwith
    his brother Jagdish entered into an agreement to sell and also handed over Portion
    which is situated in between i.e. 15 x 25 square feet of land including a room

    Signature Not Verified
    Signed by: PRINCEE
    BARAIYA
    Signing time: 09-03-2026
    17:19:18
    NEUTRAL CITATION NO. 2026:MPHC-GWL:7872

    3 SA-426-2011
    measuring 12 x 12 square feet of land and a courtyard as well as the joint of
    staircase to plaintiff for a consideration of Rs.12,000/- and the entire
    consideration amount was paid, and the possession was also given. It was also
    agreed that the sale deed would be executed within a period of 3 years. Thus, it
    was claimed that the entire disputed property was agreed to be sold to plaintiff by
    executing a sale deed within a period of 3 years and the entire consideration
    amount was also received from plaintiff and possession of the same was also
    given to plaintiff. The defendant No.1 had executed an agreement to sell and in
    respect of the property of Jagdish on 09.08.1997 by putting his thumb impression
    whereas, defendant No.2 had also agreed to sell the property, and it was also
    signed by his brother Jagdish. However, defendant No.1 did not sign the second
    agreement to sell. Since, second son of defendant No.1, namely Jagdish was
    missing, therefore, defendant No.2 had executed an agreement to sell dated
    14.07.1999. However, as soon as defendant No.1 came to know about second
    agreement to sell which was executed by defendant No.2, then he became
    aggressive and started denying to execute the sale deed. However, it is the case of
    plaintiff that plaintiff was always ready and willing to execute his part of contract,
    but defendant No.1 instead of executing sale deed started picking up quarrel with
    plaintiff. Thus, the suit was filed for declaration that plaintiff is the owner and in
    possession of the property in dispute and defendant No.1 is bound to execute the
    sale deed in compliance of agreement to sale dated 06.08.1999. It was also
    claimed that defendant No.1 and his son Jagdish be directed to rectify sale deed
    and produce the entire document before Office of Sub-Registrar and a permanent
    injunction was sought to the effect that the property in dispute should never be

    sold to anybody including Narendra Singh and defendant should not interfere
    with the possession of plaintiff.

    Signature Not Verified
    Signed by: PRINCEE
    BARAIYA
    Signing time: 09-03-2026
    17:19:18

    NEUTRAL CITATION NO. 2026:MPHC-GWL:7872

    4 SA-426-2011

    4. ​During the pendency of suit, the plaint was amended. It was claimed that
    a sale deed dated 05.08.1999 has been executed by defendant No.1 in favour of
    defendants No.3 and 4 and accordingly, the said sale deed in respect of disputed
    land which has been executed by defendant No.1 in favour of defendants No. 3
    and 4 was also sought to be declared as null and void to extent of right of plaintiff
    because he was already placed in possession after executing the agreement to sell.
    Similarly, relief clause was also amended, and it was claimed that sale-deed dated
    05.08.1999 executed by defendant No.1 in favour of defendant No.3 be also
    declared as null and void.

    5. Defendants No.1 and 3 filed their written statement and denied
    description of property given by plaintiff in the plaint. It was denied that after the
    death of wife of defendant No.1, he had partitioned the property amongst himself
    and his two sons. It was denied that after partition defendant No.2 and Jagdish
    became the owner and in possession of the property in dispute. It was denied that
    any agreement to sell dated 09.08.1997 was executed by defendant No.1 in
    respect of the share which allegedly went to Jagdish. It was also denied that
    defendant No.2 alongwith his brother Jagdish had also sold the remaining part of
    disputed property and also entered into an agreement to sell. All other plaint
    averments were denied. It was pleaded that in fact defendant No.1 has already
    sold the property in question to defendants No.3 and 4 by registered sale deed
    dated 05.08.1999 and since then, defendants No.3 and 4 have become the owner
    and in possession of the property in dispute. Although, plaintiff was aware of the
    said fact, but in spite of that he also got another sale deed executed from
    defendant No.2 in his favour on 06.08.1999. It is submitted that plaintiff has no
    right or title in respect of the property in dispute. In a special plea, it was pleaded

    Signature Not Verified
    Signed by: PRINCEE
    BARAIYA
    Signing time: 09-03-2026
    17:19:18
    NEUTRAL CITATION NO. 2026:MPHC-GWL:7872

    5 SA-426-2011
    that defendant No.1 had purchased the aforesaid property by registered sale deed
    dated 08.07.1972 from Ratanlal Jain. It was his self-acquired property. The
    aforesaid disputed property was sold by defendant No. 1 to defendants No. 3 and
    4 by registered sale date dated 05.08.1999 after receiving the entire consideration
    amount of Rs.1,70,000/- and since defendants No. 3 and 4 are residing in the said
    part of their property alongwith their family. The defendant No. 2 and his brother
    were never the owner of the property in dispute. No agreement to sale was ever
    executed in favour of defendant either on 09.08.1997, 19.08.1998 or on
    14.07.1999. The plaintiff was never placed in possession of the property in
    dispute and accordingly, it was prayed that the suit be dismissed.

    6. The defendant No. 2 filed his written statement and did not raise any
    objection with regard to the contents of paragraph Nos.1 and 2. All other plaint
    averments were also admitted by defendant No.2. In the special plea, it was
    pleaded that defendant No. 2 has already executed a sale deed in favour of
    plaintiff.

    7. The trial Court after framing issues and recording evidence, dismissed
    the suit.

    8. The plaintiff/appellant being aggrieved by judgment and decree passed
    by the trial Court preferred an appeal which too has been dismissed by Appellate
    Court.

    9. Challenging the judgment and decree passed by Courts below, it is
    submitted by counsel for appellant that a partition had taken place between
    defendant No.1 and defendant No.2 and Jagdish. The defendant No.2 had
    executed a sale deed in favour of the plaintiff on 06.08.1999 prior thereto, an
    agreement to sell was executed by defendant No.1 on behalf of Jagdish and in
    respect of the remaining disputed property of the land and another agreement to

    Signature Not Verified
    Signed by: PRINCEE
    BARAIYA
    Signing time: 09-03-2026
    17:19:18
    NEUTRAL CITATION NO. 2026:MPHC-GWL:7872

    6 SA-426-2011
    sell was executed by defendant No.2 and Jagdish. It is submitted that the entire
    consideration amount was paid and plaintiff was given the possession of the
    property in dispute and proposed the following substantial questions of law.

    10. Accordingly, appellant has proposed the following substantial
    questions of law:-

    “1. Whether the learned courts below are justified in dismissing the
    suit of the plaintiff/appellant in spite of the proof of the document
    Exhibit P-1 by examining attesting witnesses. Mohan Singh P.W.2,
    and Manua in compliance of the provision of section 68 of the
    Evidence Act. ?

    2. Whether the learned Ist appellate court has mis construed the
    evidence on record and over looked the impact of the evidence of
    defendant is admission regarding admission of the document Exhibit
    P-1 and title of their predecessors Ratan Lal of the disputed property
    and impact thereof?

    3. As to whether the learned Ist appellate court has fell into error of
    judgement in holding son’s of the defendant having no saleable title
    over the disputed property?

    4. Whether the learned courts below have ignored and came to wrong
    conclusion in ignoring pleading of partition in between defendant No.
    1 and his two sons jagdish and Kaptan Singh and impact there of?

    5. Whether learned courts below are justified in rejecting and ignoring
    the interim orders on interim applications under Order 6 Rule 17 dated
    03/02/2004 and Order 23 Rule 1 CPC wide order dated 17/12/2008?”

    11. Heard the learned counsel for the appellant. ​

    12. The plaintiff has relied upon three agreements to sell, i.e., agreement to

    sell dated 09.08.1997 purportedly executed by defendant No.1 in respect of the
    property mentioned therein; another agreement to sell dated 19.08.1998 was also
    purportedly executed by defendant No.1 (Ex.P-2) in respect of the property

    Signature Not Verified
    Signed by: PRINCEE
    BARAIYA
    Signing time: 09-03-2026
    17:19:18
    NEUTRAL CITATION NO. 2026:MPHC-GWL:7872

    7 SA-426-2011
    mentioned in the said agreement to sell and third agreement to sell dated
    14.07.1999 executed by defendant No.2 in favour of plaintiff Ex.P-3 in respect of
    the property mentioned in the said agreement to sell. The plaintiff has also relied
    upon a sale deed dated 06.08.1999 executed by defendant No. 2 in favour of
    plaintiff Ex.P-4 in respect of the property mentioned therein.

    13. The defendants have relied upon the sale deed dated 08.03.1972 (Ex.D-

    1) executed by Ratanlal in favour of Amar Singh in respect of the entire property
    in dispute. The defendant No.1 has also relied upon the sale deed dated
    05.08.1999 Ex. D-1 executed by defendant No.1 in favour of defendant No.3.

    14. The moot question for consideration in the present appeal is as to
    whether any partition had taken place between defendant No.1 and defendant
    No.2 as well as Jagdish or not and whether, any piece of land or any property had
    gone to the share of defendant No.2 and Jagdish or not?

    15. It is clear from the sale deed dated 08.03.1972 (Ex.D-3), defendant
    No.1 is the owner of the property in dispute. The defendants have not placed any
    document to show that any partition had taken place between defendant No.1 and
    his son Jagdish and defendant No.2 – Kaptan Singh. In paragraph 12 of his cross-
    examination, the plaintiff Madho Singh (P.W.1) has stated that Jagdish, Kaptan
    and Amar Singh are the owner of the property in dispute, but he fairly conceded
    that the disputed property was not purchased by Jagdish and Kaptan, but claimed
    that they themselves had encroached upon the said property. A specific question
    was put to plaintiff that the disputed property was purchased by defendant No.1
    by sale date dated 08.03.1972, but he gave a vague answer that the said property
    is a different property. The plaintiff has examined Mohan Singh as P.W.2, who
    has specifically stated in paragraph 8 of his cross-examination that the property in
    dispute was that of defendant No.1, but he claimed that after the property was sold

    Signature Not Verified
    Signed by: PRINCEE
    BARAIYA
    Signing time: 09-03-2026
    17:19:18
    NEUTRAL CITATION NO. 2026:MPHC-GWL:7872

    8 SA-426-2011
    by defendant No.1, the plaintiff became the owner and in possession of the
    property in dispute. The plaintiff has also not examined any witness to prove that
    any partition had taken place between defendant No.1, defendant No.2 and
    Jagdish. No document has been filed by plaintiff to prove that the disputed
    property was given by defendant No.1 to his sons Kaptan and Jagdish.
    Furthermore, Kaptan Singh (D.W.2) in paragraph 7 of his cross-examination has
    stated that during the lifetime of his mother, a quarrel had taken place between
    him and his brother and father and accordingly, the mother had directed that
    Pakka house will go to his father and the property which is in the shape of a ruin
    would go to defendant No.2 and accordingly, he should construct a house reside
    in the same. Accordingly, he had constructed a room of 10 x 10 square feet. He
    further stated that except that room, he has not constructed anything else. He
    further admitted that the first agreement to sell was executed by his father. The
    second agreement to sell was executed by Kaptan Singh and Jagdish, but it was
    not signed by his father and the third agreement to sell was executed by him in
    favour of Madho Singh all alone. In paragraph 17, he has admitted that he do not
    have any document to show that he is the owner of the property in dispute. In
    paragraph 15 of his cross-examination, he has admitted that the disputed property
    is that of his father which was purchased by him by registered sale-deed dated
    08.03.1972 from Ratanlal. In paragraph 25 of his cross-examination, a specific
    question was put to him that after the property was sold by Amar Singh to
    defendants No. 3 and 4 by registered sale deed dated 05.08.1999, then he un-
    authorizedly sold the same property to the plaintiff by registered sale deed dated
    06.08.1999, then it was admitted by this witness. One thing is clear that the
    property in dispute was purchased by Amar Singh/defendant No.1 by registered
    sale deed dated 08.03.1972 (Ex.D-3) from Ratanlal. Unless and until, it is proved

    Signature Not Verified
    Signed by: PRINCEE
    BARAIYA
    Signing time: 09-03-2026
    17:19:18
    NEUTRAL CITATION NO. 2026:MPHC-GWL:7872

    9 SA-426-2011

    that the said property was purchased out of the income of joint Hindu family
    property, it cannot be said that the said property had any flavour or colour of a
    joint Hindu family property. Since the property in dispute was purchased by
    defendant No.1, therefore, he was the exclusive owner and in possession of the
    property in dispute. It was the case of plaintiff that after the death of the wife of
    defendant No.1, the property in dispute was partitioned amongst the defendant
    No.1 and defendant No.2 and Jagdish. However, Kaptan Singh (D.W.4) has stated
    that during the lifetime of his mother, a quarrel had taken place between him and
    his brother Jagdish and defendant No.1 and accordingly, the mother had said that
    Pakka house would go to defendant No.1 and defendant No.2 can take possession
    of the property which was in the shape of ruins and accordingly, defendant No. 2
    had constructed a room admeasuring 10 x 10 square feet. Thus, there is a basic
    difference with regard to the pleadings and the evidence led by the parties with
    regard to the partition.

    16. Furthermore, if the evidence of Kaptan Singh (D.W.4) with regard to
    property given to him by his mother is accepted, then one thing is clear that
    defendant No.1 is the owner of the property in dispute, therefore, the mother of
    defendant No.2 had no authority to give any part of the property to defendant
    No.2. Even otherwise, so-called arrangement made by mother of defendant No.2
    cannot be said to be a partition. Both the Courts below have held that plaintiff has
    failed to prove that the property in dispute was ever partitioned amongst
    defendant No.1 and defendant No.2 and Jagdish. Unless and until a partition takes
    place, defendants No.2 will not have any jurisdiction or right or title to alienate
    any piece of land to plaintiff. Even otherwise, defendant No.1 had already sold
    the property to defendant Nos. 3 and 4 on 05.08.1999, whereas the sale deed in

    Signature Not Verified
    Signed by: PRINCEE
    BARAIYA
    Signing time: 09-03-2026
    17:19:18
    NEUTRAL CITATION NO. 2026:MPHC-GWL:7872

    10 SA-426-2011
    favour of plaintiff was executed by defendant No.1 on 06.08.1999. Furthermore,
    this Court has already held that defendant No.2 had no right or title in the
    property. If the plaintiff had entered into an agreement to sell, then he should have
    filed a suit for Specific Performance of Contract, but that was not done.

    17. So far as the question of possession is concerned, both the courts below
    have recorded a concurrent finding of fact that the plaintiff was never placed in
    possession of the property in dispute. Counsel for appellant could not point out
    any perversity in the findings recorded by both the courts below.

    18. It is well established principle of law that this Court in exercise of
    power under Section 100 of CPC cannot interfere with any concurrent findings of
    fact unless and until they are shown to be perverse or contrary to record. Even an
    erroneous concurrent finding of fact cannot be interfered with by the High Court
    in exercise of power under Section 100 of CPC.

    19. Since this Court has also independently considered the pleadings and
    evidence led by the parties and in absence of any proof that a partition had taken
    place amongst defendants No.1, 2 and Jagdish, coupled with the fact that it was
    defendant No.1 who had purchased the property in dispute from Ratanlal by a
    registered sale deed 08.03.1972 (Ex.D-3) and in absence of anything to show that
    the said property was purchased from the income of a joint Hindu family
    property, this Court is of considered opinion that the trial Court as well as
    Appellate Court did not commit any mistake by dismissing the suit filed by the
    plaintiff.

    20. No other argument is advanced by counsel for appellant.

    21. For the reasons mentioned above, judgment and decree dated
    18.01.2011 passed by Third Additional Judge to the Court of First Additional
    District Judge, Gwalior, in Civil Appeal No.8-A/2010 as well as judgment and

    Signature Not Verified
    Signed by: PRINCEE
    BARAIYA
    Signing time: 09-03-2026
    17:19:18
    NEUTRAL CITATION NO. 2026:MPHC-GWL:7872

    11 SA-426-2011
    decree dated 18.01.2010 passed by Third Additional Civil Judge to the Court of
    First Civil Judge, Class-I, Gwalior in Civil Suit No.110A/2008 are hereby
    affirmed.

    22. The appeal fails and is hereby dismissed. ​ ​ ​

    (G. S. AHLUWALIA)
    JUDGE

    PjS/-

    Signature Not Verified
    Signed by: PRINCEE
    BARAIYA
    Signing time: 09-03-2026
    17:19:18



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