VIVEK RUSIA,J. -
(1.) This is a second appeal filed by defendant No.1 against the judgment and decree dated 21.4.2017 passed by first Civil Judge, Class-I, Neemuch whereby the suit filed by respondents No.1 and 2/plaintiffs has been partly decreed and therefore affirmed by third Additional District Judge, Neemuch vide judgment dated 11.2.2020 by dismissing Civil Appeal No.46-A/2018 filed by defendant No.1.
(2.) Facts of the case, in short, are as under :
(i) Respondents No.1 and 2 (hereinafter referred to as "the plaintiffs") are real brothers and permanent residents of Village Kalikotdi, Tehsil Jeeran, District Neemuch. They purchased agricultural land bearing Survey 22 area 0.64 Hect. (hereinafter referred to as "the suit land") by way of registered sale-deed dated 20.7.1989 from Smt. Ghisi Bai and Smt. Sajnibai who were sisters, which they had succeeded from their mother late Hagami Bai. After the death of Hagami Bai, her daughters viz. Ghisi Bai and Sajnibai became the owner of the suit land and they sold the same to the plaintiffs. The plaintiffs filed Revenue Case No. 34/A-6/04-05 before the Tehsildar seeking mutation of their name. Vide order dated 9.9.2006 vide Ex. D/6, their names had been mutated in the revenue record. The Land Acquisition Officer, Neemuch has registered the case for acquisition of the suit land i.e. Case No. 03/A82/2012-13 and issued notice dated 28.5.2013 to the plaintiffs.
(ii) The plaintiffs came to know that defendant No.1 in collusion with defendant No.2 has got mutated the suit land his name vide order dated 6.5.2013 (Ex. P/8) passed in Case No. 5/B-121/2012-13 and got mutated his name in the revenue record and now he is trying to get the amount of compensation from defendant No.3. The aforesaid order dated 6.5.2013 gave a cause of action to the plaintiffs to file a suit for the relief of declaration of their ownership and declaration that the order dated 6.5.2013 is void and not binding on them. The plaintiffs also sought the relief of permanent injunction that defendants No.1 and 2 be restrained from alienating the suit land and defendant No.3 be also restrained from giving the amount of compensation to defendant No.1.
(iii) Defendant No.1 filed the written statement denying that Gheesibai and Sajnibai were ever owners of the suit land, hence they had no right to execute the sale-deed in favour of the plaintiffs. It is further submitted that the original owner of the suit land was Hagami Bai and after her death, her daughter - Gheesibai i.e. mother of defendant No.1 became the owner of the suit land, after her death, by way of succession he had become the absolute owner of the suit land. Therefore, he filed an application for mutation of his name in the revenue record vide Case No. 5/B-121/2012-13 by impleading the plaintiffs as non-applicants, but they did not choose to appear in the said proceedings. Defendant No.1 also filed a counterclaim seeking the relief of a permanent injunction against the plaintiffs that they be restrained from interfering in his peaceful possession over the suit land.
(iv) On the basis of pleadings, the learned Civil Judge framed six issues for adjudication, which are as under :
In support of the case, the plaintiffs examined plaintiff No.1 as P.W.1 and got exhibited 15 documents as Ex. P/1 to P/15. Defendant No.1 examined himself as D.W.1 and got exhibited 11 documents as Ex. D/1 to Ex. D/11.
(v) The plaintiff produced a certified copy of sale-deed dated 20.7.1989 as Ex. P/1 , Defendant No.1 raised an objection that such a Certified Copy of the sale-deed is not a public document, hence not admissible in the evidence as primary evidence. Learned Civil Judge has permitted the plaintiffs to mark the certified copy of the sale-deed as Ex. P/1 and its admissibility in evidence would be decided at the time of the final hearing.
(vi) After appreciating the evidence that came on the record, learned Civil Judge has decided that Ex. P/1 being a certified copy is not admissible in evidence because the plaintiffs have not filed any application seeking permission to prove the sale-deed as a secondary evidence. While answering Issue No.1, learned Civil Judge has held that plaintiffs' name had been recorded in the revenue record vide order dated 9.9.2006 as "Bhoomi Swami", therefore, they are "Bhoomi Swami" of the suit land. While answering Issue No.2, learned Civil Judge has held that order dated 6.5.2013 (Ex. P/8) has been passed by the Tehsildar without giving any notice and opportunity of hearing to the plaintiffs, hence the same is illegal and void. While answering Issue No.3, learned Civil Judge has held that the plaintiffs have failed to prove that defendant No.1 is going to alienate the suit land. While answering Issue Nos. 4 and 5, learned Civil Judge has held that defendant No.1 has failed to prove that the plaintiffs are trying to interfere in his peaceful possession because he has failed to prove that he is in possession of the suit land. In view of the above, while answering Issue No.6, learned Civil Judge has dismissed the counter claim filed by defendant No.1. Vide judgment dated 21.4.2017, learned Civil Judge has partly decreed the suit by declaring order dated 6.5.2013 as illegal and void.
(vii) Being aggrieved by the aforesaid judgment and decree, defendant No.1 filed the first appeal which has been dismissed vide judgment dated 11.2.2020 mainly on the ground that defendant No.1 did not challenge sale-deed dated 20.7.1989 and upheld the judgment and decree passed by the learned Civil Judge. Hence, the present second appeal before this Court.
(3.) Shri Yashpal Rathore, learned counsel appearing for defendant No.1/appellant submits that when the plaintiffs have failed to prove their ownership over the suit land by producing the original saledeed dated 20.7.1989, then it was not incumbent upon defendant No.1 to challenge the said sale-deed. Had the plaintiffs filed the original saledeed and established their ownership, defendant No.1 would have challenged the validity of the said sale-deed by way of countersuit. Therefore, learned courts below have wrongly treated the plaintiffs as the owner of the suit land on the basis of the certified copy of the saledeed which has not been proved by way of secondary evidence. In support of his contention, learned counsel has placed reliance over the judgment passed by the Division Bench of this Court in the case of Rekha Wd/o. Vijay Singh Rana V/s. Smt. Ratnashree , 2006 1 MPLJ 103 in which it has been held that a registered sale-deed is not a public document but a private document. A certified copy of the registered document extracted from Book I is not itself a public document and it will be proved only by way of secondary evidence.
It is further submitted by the learned counsel that the plaintiffs were served in the mutation proceedings, but after appearance once, they have stopped appearing in the said proceedings, therefore, learned Tehsildar did not commit any error of law while passing the order dated 6.5.2013 in favour of defendant No.1. It is further submitted that Hagami Bai was the owner of the suit land and after her death, the names of Gheesibai and Sajnibai were never mutated, therefore, they had no right to sale the suit land to the plaintiffs. Defendant No.1 being the son of Gheesibai has inherited the land of Hagami Bail, hence his name was rightly mutated in the revenue record.;