Daulat Bai vs Smt. Kusumbai
2021 Latest Caselaw 1532 MP

                            1                       S.A.No.2784/2018

         HIGH COURT OF MADHYA PRADESH
               BENCH AT GWALIOR
         SB: Hon.Shri Justice S.A.Dharmadhikari
                  Second Appeal No.2784/2018
                        Daulat Bai and another
                                     Vs.
                     Smt.Kusumbai and others
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Shri S.S.Rajput, learned counsel for the appellants.
Shri Rajesh Goswami, learned counsel for the respondent
No.1
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                            ORDER

23/04/2021

The appellants/plaintiffs being aggrieved by the

judgment and decree dated 27.09.2018 passed in Appeal

No.150/2016 by the II Additional District Judge,

Ganjbasoda, District Vidisha confirming the judgment and

decree dated 23.06.2016 passed in Civil Suit No.26A/2015

by the 10th Civil Judge Class II, Ganjbasoda, District

Vidisha, whereby the suit seeking declaration of possession

and ownership and permanent injunction has been

dismissed.

2. A suit for declaration of possession, ownership and

for permanent injunction was filed by the appellants/

plaintiffs in respect of the land situated in village Arnot

Tehsil Basoda, District Vidisha bearing survey Nos.354 area

0.094 hectare, 408/1 area 0.221 hectare, 489/1 area 0.601

hectare, 490/2 area 2.895 hectare, 500 area 0.533 hectare,

497 area 0.261 hectare, 501/1 area 0.355 hectare, 505/2 area

0.711 hectare, total area 5.471 hectare (hereinafter referred

to as the "suit land") interalia claiming 1/2 and 1/2 portions

of the suit land.

3. The plaint allegations are that the husband of plaintiff

No.1 and father of plaintiff No.2 late Hiralal was the owner

of the suit land. Late Hiralal had executed a will on

06.05.2006 in the name of the plaintiffs. Hiralal died on

10.08.2006. As a consequence, the plaintiffs got their names

mutated in the records of Gram Panchayat on the basis of the

will. On the other hand, the defendant No.1 aggrieved by the

mutation order dt.02.10.2018 filed an appeal before the

SDO, Basoda, which was registered as Appeal

No.97/Appeal/2010-11 and vide order dt.20.04.2011 got an

order to mutate his name of 1/3 portion of the suit land. The

plaintiffs were not arrayed as party to the proceedings before

the SDO. They could not bring the will to the notice of the

authority. Appeal is pending against the order before the

Additional Commissioner, Bhopal. The defendants are

trying to dispossess the plaintiffs, whereas on the basis of

the will, the defendants have no right over the suit land.

4. On notice, the defendant No.1 filed the written

statement and denied the plaint allegations. Defendants No.2

and 3 remained ex-parte.

5. On the aforesaid pleadings, the trial courts framed the

issues and allowed the parties to lead evidence. The trial

court found that the appellants/plaintiffs failed to establish

their right, title and interest over the suit land on the basis of

the will execute by late Hiralal.

6. In the opinion of this Court, since both the courts

below have recorded pure findings of facts based on

evidence on record, no interference is warranted under

Section 100 of the Coder of Civil Procedure, 1908, as entire

gamut of matter is in realm of facts and no substantial

question of law arises for consideration in the present

appeal. As a consequence, the appeal stands dismissed. The

judgment and decree passed by both the courts below are

hereby confirmed.

No order as to costs.

(S.A.Dharmadhikari) Judge SP

SANJEEV KUMAR PHANSE 2021.04.25 08:44:28 +05'30'