Arun Kumar and Anr. Vs Smt. Usha Agrawal and Ors.

For Appellants	: Mr. Ram Kumar Tiwari, Advocate
For Respondents No.1	: Mr. Manoj Paranjpe, Senior Advocate along withMr. Harshwardhan, Advocate
For Respondent No.3/State	: Mr. Kalpesh Ruparel, Panel Lawyer

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Hon'ble Shri Justice Ravindra Kumar Agrawal, Judge Judgment on Board

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VED PRAKASH DEWANGAN Digitally signed by VED PRAKASH DEWANGAN Date: 2026.01.13 15:16:41 +0530

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03/11/2025

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The second appeal under Section 100 of the Code of Civil Procedure,

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1908 has been filed by the defendants No. 1 & 3 against the impugned judgment and decree dated 07.10.2012, passed by learned First Additional District Judge, Bilaspur, in Civil Appeal No. 14-A/2010, whereby the first appeal filed by the defendants No. 1 & 3 has been dismissed and the judgment and decree dated 06.05.2009, passed by learned 2^nd Civil Judge Class-1, Bilaspur, District Bilaspur, in Civil Suit No. 48-A/2009 is affirmed.

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The second appeal has been admitted on 07.07.2022 on the following substantial question of law:-

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“ Whether the suit land is already in possession of the appellants, as such no suit for declaration and injunction is maintainable? ”

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For the sake of convenience, the status of the parties shown in the suit are being referred in the present appeal also.

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The plaintiff has filed a civil suit for declaration of her title and permanent injunction over the suit land bearing khasra No. 720/1, area 0.42 acre situated at village Gatouri, P.H. No. 83 (new P.H. No. 15), Tahsil and District Bilaspur. She pleaded in the plaint that, in the eastern side of the suit land, her Ganesh Milk Factory is situated and for the expansion of the said factory, she purchased the suit land from defendants No. 2 & 3 through registered sale-deed dated 25.03.1983. On the same day, she also purchased 0.43 acre of land by another sale-deed from its owner Ramlal Dubey, which were situated in the western side of the factory of the plaintiff and after its purchase, the plaintiff came in possession of the same and constructed 5 feet

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boundary wall and fixed poles on the boundary. During the mutation proceeding, the original sale-deeds were missing from the office of the concerned Patwari, and therefore, the mutation could not be effected, however, no one raised any objection over the title or possession of the plaintiff. In the month of November 2005, the son of the plaintiff obtained the certified copy of the sale-deeds from the registration office and sought information about its vendor, so that the mutation of the land could be done, then the defendants No. 2 & 3 were evading to give consent for mutation based on the sale-deeds. On 04.09.2007, the defendant No.1 broken the poles of boundary wall fixed in the western side of the suit land and claiming his title and possession over the suit land by saying that he is going to sell his land to another person. The matter was reported to the police and then the suit has been filed.

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The defendants filed their written statement jointly and denied the plaint averments with the pleading that, the defendant No.1 has purchased the suit land from the defendants No. 2 & 3 through registered saledeed dated 02.05.2006 and is in possession of the same. The plaintiff is not in possession of the suit land and she has no right or title over it. At the time of alleged purchase by the plaintiff in the year 1983, the defendants No. 2 & 3 were minors and the property of minor cannot be subjected to sale without prior permission of the Court and it was s void sell. The sale-deed executed in the year 1983 is not the actual sale, but it is a nominal sale-deed executed in lieu of security of the loan amount and the plaintiff does not acquire any title from the said sale-deed. The plaintiff had not tried to get her name mutated in the revenue records of

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the suit land and it is only after death of father of defendants No. 2 & 3, she tried to grab their property. The father of the defendants No. 2 & 3 had no right to alienate the property of his minor sons, which was their self acquired property obtained from maternal uncle of their father. The plaintiff is not in possession of the suit land and without claiming the relief of possession, the suit for declaration and injunction is not maintainable. It is also submitted that, the defendants No. 2 & 3 have sold the suit land to defendant No.1 through registered sale-deed dated 02.05.2006 and handed over the possession of the same and the defendant No.1 is in possession of the same. Only to create the cause of action, a false report has been lodged by the plaintiff, which is not bona fide and no cause of action arose in her favour. The suit is not property valued and no proper court fee has been paid, therefore, the suit is liable to be dismissed.

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Based on the pleadings of the parties, the learned trial Court has framed the issues and proceeded for recording evidence of the parties. In support of her claim, the plaintiff Smt. Usha Agrawal examined herself as PW-1, Vishal Agrawal/PW-2, Jagannath Prasad Mishra/PW-3 and relied upon the documents; exhibit P-1 copy of the sale-deed dated 25.03.1983, exhibit P-2 Khasra Panchshala, exhibit P-3 B-1/Kishtbandi, exhibit P-4 payment receipt of the photo studio along with the photographs, exhibit P-5 is the newspaper notice, exhibit P-6 is the complaint made to Police Station Koni on 04.09.2007, exhibit P-7 is the copy of sale-deed dated 25.03.1983.

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The defendants in support of their case have examined Arun Kumar Dubey/DW-1, Nagendra Prasad Shukla/DW-2, Vyas Narayan/DW-3 and relied upon the documents of Adhikar Abhilekh (exhibit D-1), Khasra Panchshala (exhibit D-2), B-1/Kishtbandi (exhibit D-3), Khasra Panchshala (exhibit D-4), intimation under Section 155 of CRPC given by Police Station Koni (exhibit D-5), sale-deed dated 02.05.2006 (exhibit D-6).

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After appreciation of the evidence led by the respective parties, the learned trial Court decreed the suit of the plaintiff that, she is the title and possession holder of the suit land and restrained the defendants from interference with the possession of the plaintiff over the suit land. The learned trial Court has held that the defendants No. 2 & 3 have not filed any document in support of their claim that, the suit property was obtained by them from the maternal uncle of their father and it was their self acquired property. It is also held that for the legal necessities, the property of minor can be subjected to sale, but the defendants No. 2 & 3 have not challenged the sale-deed after attaining the age of majority despite knowing the fact of sale-deed executed on 25.03.1983 in favour of the plaintiff. It has also been held that the defendant No.1 could not prove his possession over the suit land, whereas the plaintiff is succeeded in proving that, she is in possession of the suit land and once the property was sold in the year 1983, the title is transferred to the plaintiff and the defendants No. 2 & 3 had no right or title to again sell the suit land to the defendant No.1 in the year 2006.

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The judgment and decree passed by the learned trial Court was challenged by the defendants No. 1 & 3 before the learned First Appellate Court. The first appeal filed by the defendants No. 1 & 3 has been dismissed by the learned First Appellate Court by affirming the judgment and decree of the learned trial Court. Hence, this second appeal, which is admitted on 07.07.2022 as set out in the earlier part of the judgment.

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Learned counsel appearing for the appellants/defendants No. 1 & 3 would submit that, the defendants No. 2 & 3 were recorded owner of the suit land and without prior permission from the Court, the suit land cannot be alienated and even if such alienation is made by the father of the defendant No. 2 & 3, the same is a void sale. At the time of alleged sale-deed dated 25.03.1983, the defendants No. 2 & 3 were minors and the sale-deed was executed through their father. There was no legal necessity to sell the land and possession was also not delivered to the plaintiff. It was only a fictitious sale and the nominal sale-deed was executed in lieu of repayment of the loan amount. Since, the sale-deed dated 25.03.1983 is a void sale, the defendants No. 2 & 3 were not required to challenge the same. Since, it was the void sale, the plaintiff had not tried for mutation of her name in the revenue records on the basis of the said sale-deed. The defendants No. 2 & 3 were continued in possession of the suit land till the year 2006, when they sold the suit land to defendant No.1. He would further submit that the plaintiff has failed to prove her possession over the suit land and without claiming any relief of possession, her suit for declaration and injunction is not

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maintainable. From the evidence of the parties, the possession of the defendants have been proved and the name of defendant No.1 is mutated in the revenue records. Therefore, the impugned judgment and decree passed by the learned Courts below are erroneous and are liable to be set aside.

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On the other hand, learned Senior Advocate appearing for the respondent No.1 would submit that, the plaintiff had purchased the suit land through the registered sale-deed dated 25.03.1983 from the defendants No. 2 & 3 and came into possession of the same. The delivery of possession is also there in the sale-deed (exhibit P-1). Admittedly, at the time of execution of sale-deed, the defendants No. 2 & 3 were minors and were aged about 12 years and 16 years respectively and the sale-deed was executed through their father. It was executed for the benefit of the family. As per their age shown in the sale-deed (exhibit P-1), the defendants No. 2 & 3 attains their age of majority in the year 1989 and 1985 respectively, but they have not challenged the sale-deed executed in favour of the plaintiff and her possession. Even after filing of the suit by the plaintiff, the defendants No. 2 & 3 have not challenged the sale-deed (exhibit P-1) by filing their counter claim or any cross suit. The plaintiff has proved her possession over the suit land by leading sufficient documentary as well as oral evidence and since, she is in possession of the suit land from the date of its purchase, she was not required to claim relief of possession in her suit. The title of the property have been transferred through the saledeed and merely on the fact that her name has not been mutated in the

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revenue records, she could not be disentitled for her property, for the reason that the mutation entries are only for fiscal purposes. He would further submit that, the defendants themselves have admitted in their evidence that, they were not having knowledge of their properties and who are in possession of the same, therefore, the judgment and decree passed by the learned trial Court as well as First Appellate Court are justified and the substantial question of law may be answered in favour of the plaintiff.

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I have heard learned counsel for the parties and gone through the records of the learned trial Court as well as the First Appellate Court.

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The question involved in the present second appeal is that, whether the appellants (defendants No. 1 & 3) are in possession of the suit land and therefore, the suit for declaration and injunction is maintainable or not. The claim of the plaintiff is that, she purchased the suit land from the defendants No. 2 & 3 through the registered sale-deed dated 25.03.1983 and is in possession since then. The claim of the defendants are that, they are in possession of the suit land and the sale-deed dated 25.03.1983 is a fictitious and void sale and they sold the suit land to the defendant No.1 on 02.05.2006 and he is in possession of the suit land. The possession of the property is the question of fact, which has been decided by both the Courts below in favour of the plaintiff. The sale-deed dated 25.03.1983 executed in favour of the plaintiff has not been challenged by the defendants No. 2 & 3.

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The defendants No. 2 & 3 were minors at the time of execution of saledeeds in favour of the plaintiff and they attained their age of majority in the year 1989 and 1985 respectively. If the defendants No. 2 & 3 claiming that the sale-deed was executed by their father without prior permission of the Court and no title could be passed in favour of the plaintiff, the minors, on attaining majority, can challenge the transfer in any lawful manner to repudiate the transfer made by de facto guardian.

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In the matter of “ K.S. Shivappa v. K. Neelamma ” 2025 SCC Online SC 2149, the Hon'ble Supreme Court has held that, a transaction by a guardian of the minor in violation of Section 8 of the Hindu Minority and Guardianship Act, 1956, is voidable at the instance of the minor and the minor can avoid the same after attaining majority and filing of the suit is the remedy, but the defendants No. 2 & 3 have not challenged the saledeed executed in favour of the plaintiff till date. In para 24 to 26, the Hon'ble Supreme Court has held that:-

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“24. In Vishwambhar v. Laxminarayan (Dead) through Lrs. a Division Bench in a matter where the minor filed a suit for possession contending that the sale deeds executed by their guardian (mother) were inoperative and not binding upon them as the same were affected without the permission of the court in contravention of Section 8(2) of the Act, and wherein the relief for setting aside the sale deeds was added after the period of limitation had expired, the Court held that though the sale deeds were executed without legal necessity and in contravention of Section 8(2), but the suit was rightly dismissed as the relief for cancellation of the sale deeds could not have been added after the expiry of the limitation.

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25. The aforesaid decision is not one which lays down that the filing of a suit by the minor on attaining majority for the cancellation of the sale deeds executed by the guardian is mandatory. It only lays down that the relief of cancellation of sale deeds, if added after expiry of limitation period, cannot be granted. The said decision, therefore, has no application to the facts and circumstances of the case at hand to answer the question whether a voidable transaction can be repudiated by the minor only by filing a civil suit or otherwise by his conduct also.

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26. Another Division Bench of this Court in Nangali Amma Bhavani Amma v. Gopalkrishnan Nair7 while holding that a transaction entered into by the guardian of a minor in violation of Section 8(2) is voidable at the instance of the minor and is not void and that the minor can avoid the same on attaining majority. The Division Bench relying upon Vishwambhar (Supra) observed that a suit must be filed by minor in order to avoid transaction within period prescribed under Article 60 of the Limitation Act, 1963. The aforesaid decision also nowhere rules that there are no other alternative modes to avoid the transaction which is in contravention of Section 8(2) of the Act and that the filing of the suit alone is the remedy thereof.”

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The defendants No. 2 & 3 cannot say that, they were not having knowledge of the transaction made by their father in favour of the plaintiff. Section 3 of the Transfer of Property Act, 1882 provided that, a transaction relating to immovable property effected by a registered instrument, any person acquiring interest over it, shall be deemed to have notice of such instrument, as from the date of registration. In the case of “ Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese ” 2022 (7) SCC 90, the Hon'ble Supreme Court has held in para 12 that:-

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“12. Unfortunately after finding (i) that the Power of Attorney did not contain authorization to sell; and (ii) that the respondent cannot claim the benefit of Section 41 of the Act, the High Court fell into an error in attributing constructive notice to the appellant in terms of Section 3 of the Act. The relevant interpretation clause in Section 3 of the Act reads as follows:

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**“3. Interpretation Clause.- * * ***

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“a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.

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Explanation I.- Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one subdistrict, or where the registered instrument has been registered under subsection (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose subdistrict any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:

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Provided that -

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(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908) and the rules made thereunder,

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(2) the instrument or memorandum has been

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duly entered or filed, as the case may be, in books kept under section 51 of that Act, and

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(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.

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Explanation II.- Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

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Explanation III.- A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:

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Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.”

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The defendant No. 1 is claiming his title and possession based on the sale-deed dated 02.05.2006 (exhibit D-6) executed by the defendants No. 2 & 3. Since, the suit land was already sold by the defendants No. 2 & 3 through their father by the registered sale-deed dated 25.03.1983 (exhibit P-1) in favour of the plaintiff, the title has been transferred to her and in absence of any challenge to the said sale-deed, the defendants No. 2 & 3 were not having any right or title to again sold it to the defendant No.1. It is the settled law that, no one can confer a better title than what he himself has. In the matter of “Umadevi Nambiar ” (supra), the Hon'ble Supreme Court has reiterated in para 19 that:-

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“19. It is a fundamental principle of the law of transfer

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of property that “no one can confer a better title than what he himself has” (Nemo dat quod non habet). The appellant’s sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation.”

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The question remains as to who is in possession of the suit land. The plaintiff is claiming that, she is in possession of the suit land from the date of its purchase by erecting boundary wall and fixing poles in its boundary. From the sale-deed (exhibit P-1), the delivery of possession is also embodied in the contents of the sale-deed. She denied the possession of the defendants over the suit land. The PW-2/Vishal Agrawal, who is the son of the plaintiff has also supported that, they are in possession of the suit land and her mother had purchased the suit land from the defendants No. 2 & 3 in the year 1983. PW-3/Jagannath Prasad Mishra is the Manager of Ganesh Milk Factory, who too has stated in his evidence that, she is the Manager of the Factory since 1993 and the suit land is in their possession and they erected the boundary wall as well as poles and surrounded it by barbed wire along with their other land. On 04.09.2007, when the defendant No.1 tried to dispossess them and demolished the poles, he made a complaint to the police, which is restored by the plaintiff.

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The defendant No.3 Vyas Narayan/DW-3 has stated in his evidence that, he did not tell as to how the suit land was recorded in his name. He has not seen any document by which he acquired the property from

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his grandfather. He further stated that, after leaving village Gatauri, they are having lands there. They are not residing in the village and whenever they required, they contacted the concerned Patwari along with their Rin Pustika and after telling the number of the land, they used to sell it. He also admitted that, he sold the other lands in last 25-30 years. In para 9 of his evidence, he stated that, all their lands are barren land and they are not cultivating the same. Since they are not residing there, they are not cultivating. They also did not know, as to whether their father had sold the suit land to the plaintiff or not. He admitted that, after filing of the suit, they came to know about the sale of the land in favour of the plaintiff. He also admitted that, despite having knowledge they have not challenged the sale-deed of the plaintiff. He further admitted in para 12 that, even after attaining the age of majority, he has not challenged the sale-deed.

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PW-1, Arun Kumar, who is claiming that, he has purchased the suit land through registered sale-deed dated 02.05.2006, has stated in his evidence that he did not know about the sale of defendants No. 2 & 3 in favour of the plaintiff. Before purchasing the land from the defendants No. 2 & 3, he has not verified as to whether the land was earlier sold in favour of any one or not. He voluntarily stated that, on the basis of mutation of the names of defendants No. 2 & 3, he purchased the same. He admitted that the first purchaser of the land would be entitled for title and possession of the property and subsequent purchaser would not get any right. He also shown his ignorance about possession of Malik Ram over the suit land, even, he did not know about Malik

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Ram. He also admitted in para 22 that, he has not put any pole in the boundary wall of the suit land and even the defendant No.2 Vyas Narayan has not put any pole over the suit land.

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The learned trial Court as well as learned First Appellate Court have considered that the plaintiff is in possession of the suit land after its purchase from the defendants No. 2 & 3 through registered sale-deed dated 25.03.1983 (exhibit P-1). When the defendants No. 2 & 3 were not residing in the village and they did not know about their properties and as per their own admission that, as and when they required, they contacted the Patwari and after telling the khasra number of the land from patwari record, they used to sell the land, which confirms that, the defendants No. 2 & 3 were not in possession of the suit land. The suit land belongs to the plaintiff since 1983 and she is in possession of the same till then. The defendants No. 2 & 3 once sold the suit land to the plaintiff, they lost their right or title from it and not competent to again sold it to the defendant No.1. Even if the sale-deed was executed by them in favour of defendant No.1, the title cannot be transferred to him and consequently possession also cannot be given to him, as the possession was also not with them, but it was with the plaintiff.

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Since, the plaintiff was in possession of the suit land, she was not required to claim relief of possession in the suit. She has claimed the declaration of her title and declaration of possession, which is in the following terms:-

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“{ अ } घ ो �षण ा �त ् मक आሺ ኋ �቎� प ኌ ा �र�त कर ी ी यह घ ो �቎षत ቎ ኌ कय� ज ኌ �व ा � ቎ े क व ኌ े �द

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अन�स ु �च ू ी � अ म� ल�ल ा ा र ग स ी � द቎ ू ኌ "#त भ�ग व ा े �቎दन ኌ ु � क� स ् व े �म�तव ् े एव े आध ि (पत ा ् य क) ह*। ”

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The defendants are not able to prove that, they are in possession of the suit land. They also could not prove that the sale transaction made on 25.03.1983 in favour of the plaintiff was a fictitious sale and sale-deed was executed in lieu of repayment of loan. Therefore, the learned trial Court has rightly held that the plaintiff is in possession of the suit land through her own title acquired by the sale-deed dated 25.03.1983. Even if, the plaintiff could not get her name mutated in the revenue records, it does not affect the acquisition of title in her favour, as the sale-deed (exhibit P-1) has not been challenged by the defendants. It is settled law that the mutation entries do not confer or extinguish the right or title over the property, as has been held in catena of decisions of the Hon'ble Supreme Court.

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As a fall out, this Court answered the substantial question of law in favour of the plaintiff that, the defendants/appellants are not in possession of the suit land and the plaintiff was not required to claim the relief of possession and her suit for declaration and injunction is maintainable.

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Consequently, the second appeal is liable to be and hereby dismissed .

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Parties to bear their own costs.

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An appellate decree be drawn accordingly.

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Sd/- (Ravindra Kumar Agrawal) Judge

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ved

Arun Kumar and Anr. v. Smt. Usha Agrawal and Ors.

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Arun Kumar and Anr. v. Smt. Usha Agrawal and Ors.

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