Madhya Pradesh High Court
Dalua vs Gyasi on 15 December, 2021
Author: Anjuli Palo
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Second Appeal No. 554 of 2021
Dalua Dheemar and Anr.
Vs.
Gyasi and Others
[Single Bench : Hon'ble Smt. Justice Anjuli Palo]
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Shri Ram Niwas Patel, learned counsel for the appellants.
Shri J.L.Soni, learned counsel for the respondents.
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JUDGMENT
(15/12/2021)
This second appeal has been filed by the
appellant/defendants being aggrieved by the judgment and decree
dated 12.03.2021, passed by the First Additional District Judge, Jatara
District - Tikamgarh (MP) in Regular Civil Appeal No. 42A/2018
whereby the judgment and decree dated 29.09.2018 passed by the
Civil Judge Class II, Jatara, District Tikamgarh (MP) in Civil Suit No.
35-A/2017 has been affirmed.
2. It is admitted fact that the plaintiffs and defendants belong
to the same family and all the properties are registered in their joint
names in the revenue records.
3. The respondents/plaintiffs filed suit against the
appellants/defendants on the grounds that the suit property bearing
Khasra No. 78 and 79 were received by Umrao and Kannu on patta
(lease). Other properties belong solely to Umrao but without any
order from competent authority, names of appellants No. 1, 2 and 3
were recorded on 3/5 th share of the suit properties. This fact came to
the knowledge of the respondents in the month of April 2016, when
they were dispossessed from the suit properties. Therefore, the
respondents/plaintiffs filed the suit before the trial Court for
declaration of title, permanent injunction and restoration of
possession over the suit property.
4. Plaintiffs/respondents No. 1 to 6 claimed their title over
the suit land bearing Khasra No. 78 admeasuring 0.862 hectare,
Khasra No. 79 admeasuring 3.723 hectare (total 4.585 hectare)
situated at Ferojpura Bhata. They have claimed a decree of
declaration that the plaintiff No. 1 and 2 have ½ share, plaintiff No. 3
have ¼ share and plaintiffs No. 4, 5 and 6 have ¼ shares jointly over
the disputed land bearing Khasra No. 78 and 79 (total area 4.485
hectare). They also claimed that the plaintiff No. 1 and 2 have ½
share each over the land bearing khasra Nos. 13 are 0.174 ha, 14( kha)
area 0.105 ha, 99/12 are 0.551 ha, 118/12 area 0.081 ha, 119/12 area
0.223 ha (total 1.134 hectare) with a decree of recovery of possession
for the same and a permanent injunction against the defendants and to
restore their possession over the suit property.
5. The appellants/defendants denied the allegations and filed
their written statement that the suit was time barred. It was stated
that fathers of both the parties are real brothers residing in a joint
family governed by the Mitakshara Vidhi. Due to some mistake, suit
property was allotted in the name of defendant No. 3-Gokul Dheemar
and father of plaintiff No. 1 & 2 namely Umrao Dheemar and Kunnu
and their names were recorded in the revenue records. Therefore, the
appellants claimed 2/5 th share in the suit property and declaration of
title over the same. An agreement (ikrarnama) has been executed on
04.03.1969. Thereafter, name of all the parties were recorded for the
revenue record and parties were in the possession of their respective
share.
6. Appellants/defendants have also filed a counter claim
before the trial Court for 2/5 th of the plaintiffs and its possession over
the suit property. It is stated that Umrao, Kunnu, Ghapole, Tunde,
Gokul, Dalua, Karanju were sons of Ghunna. Gyasi and Sukka were
sons of Umrao. Baksu and Bhaiyalal were sons of Kunnu.
7. In reply, plaintiffs/respondents denied their allegations.
They claimed that the suit property, except Survey No. 77 belongs to
them and the appellants/defendants illegally dispossessed them from
the suit properties.
8. Learned trial Court came to the conclusion that suit
property bearing survey No. 77, 78 and 79 belong to one Umrao and
Kunnu. Hence, their legal representatives have right to claim their
share in the property. Thus, the trial Court held that plaintiff No.1, 2
and 3 are entitled to 1/12 th share each and plaintiffs No. 4, 5 and 6 are
jointly entitled for 1/12 th share in the suit property Survey No. 78 and
79 and also held that the appellants/defendants have no right over the
suit properties, even though they have encroached upon the same.
The trial court also gave finding that the respondents/plaintiffs do not
hold title or possession over Survey No. 13, 14(kha), 99/15, 118-12,
119/12. Therefore, the trial Court directed the appellants to deliver
vacant possession of the suit properties bearing khasra No. 78 and 79
to the respondents/plaintiffs.
9. The aforesaid decree has been confirmed by the First
Appellate Court holding that on the basis of khasra entries, the title of
the appellants/defendants cannot be proved. They have also failed to
file agreement dated 04.07.2018 and other relevant documents in their
favour. Thus, their application under Section 41 Rule 27 of the Code
of Civil Procedure has been dismissed by the appellate Court.
10. Learned counsel for the appellants have placed upon the
judgments rendered by the Supreme Court in case of N.Padmamma
& Ors vs. S.Ramakrishna Reddy & Ors (2015) 1 SCC 417,
Thulasidhara & Anr. vs. Narayanappa & Ors. (2019) 6 SCC 409,
Union of India vs. Ibrahim Uddin & Anr. (2012) 8 SCC 148 and
Subraya M.N. vs. Vittala M.N. & Ors. (2016) 8 SCC 705.
11. Heard learned counsel for the parties. Perused the record.
12. There are concurrent findings in favour of the
respondents/plaintiffs given by both the Courts below after proper
appreciation of entire evidence available on record. The points raised
by the learned counsel for the appellants in substantial question of
law are not question of law, in fact all the questions related to the
evidence have been discussed by the trial Court in proper perspective.
The learned trial Court rightly held that only on the basis of khasra
entries, it cannot be proved that who hold title over the suit property.
The khasra entries have presumptive value. The land bearing Survey
No. 78 and 79 were allotted to Umrao and Kunnu and the
respondents/plaintiffs are their legal heirs. The appellants/defendants
claimed that the suit property was partitioned under agreement
between the parties. However, the partition witnesses examined by the
appellants/defendants gave contradictory statement. The suit property
allotted on patta in favour of Umrao and Kunnu cannot be treated as
Joint Hindu Family property, therefore, only nomination in their
favour cannot create any right over the same.
13. The observations made the Supreme Court in case of
N.Padmamma (supra) is not applicable in the facts of the present
case. Further, principle laid down by the Supreme Court in case of
Thulasidhara (supra) with regard to Section 100 CPC that the
interference with concurrent findings by the High Court in second
appeal permissible when material or relevant evidence has not been
considered or when findings arrived at by relying on inadmissible
evidence by the first appellant Court, is also not applicable to the case
at hand, as both the Courts below have given detailed findings
considering all the evidence available on record.
14. Further, the facts of Union of India (supra) are also
different from the present case. In the case at hand, the appellants
have failed to prove the execution of any family settlements by any
corroborative evidence, hence, the principle laid down in case of
Subraya M.N. (supra) cannot be applied in the facts of the present
case.
15. After considering the entire evidence of the witnesses as
well as the documents available on record, this Court does not find
any illegality or perversity in the findings recorded by the Courts
below. Thus, no substantial question of law arises in this appeal.
16. Accordingly, the appeal is dismissed.
17. No order as to cost.
(Smt. Anjuli Palo)
Judge
vidya
Digitally signed
by SREEVIDYA
Date: 2021.12.17
15:50:19 +05'30'
