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.
​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 openSignature Not Verified
Signed by: PRINCEE
BARAIYA
Signing time: 09-03-2026
17:19:18
NEUTRAL CITATION NO. 2026:MPHC-GWL:78722 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 ofdefendant 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 roomSignature Not Verified
Signed by: PRINCEE
BARAIYA
Signing time: 09-03-2026
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NEUTRAL CITATION NO. 2026:MPHC-GWL:78723 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 besold 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 pleadedSignature Not Verified
Signed by: PRINCEE
BARAIYA
Signing time: 09-03-2026
17:19:18
NEUTRAL CITATION NO. 2026:MPHC-GWL:78725 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 toSignature Not Verified
Signed by: PRINCEE
BARAIYA
Signing time: 09-03-2026
17:19:18
NEUTRAL CITATION NO. 2026:MPHC-GWL:78726 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
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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