Umarav Singh vs Motisingh
2021 Latest Caselaw 8975 MP

                                    1

                    The High Court of Madhya Pradesh
                           Bench Gwalior

         SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                            SA No. 86 of 2014

                         Umrao Singh & Others

                                    vs.

                           Moti Singh & Others

            ==================================
Shri SS Rajput, counsel for the appellants.
Shri RK Upadhyay, counsel for the respondents No. 1 and 2.
            ==================================
Reserved on                                 08/11/2021
Whether approved for reporting              ......./..........
                ==================================
                                 JUDGMENT

(Delivered on 20/12/2021)

Per Rajeev Kumar Shrivastava, J:-

The present second appeal u/S.100 of CPC has been preferred by

the plaintiffs- appellants challenging the impugned judgment and decree

dated 28th November, 2013 passed by Second Additional District Judge,

Ganj Basoda, District Vidisha (MP) in Civil Appeal No.70-A of 2013,

affirming the judgment and decree dated 17/11/2008, passed by Second

Additional Judge to the Court of Civil Judge, Class-I, Ganj Basoda,

District Vidisha (MP) in Civil Suit No.53-A of 2008.

(2) Facts giving rise to present appeal in short are that the plaintiffs

filed a suit for declaration of title and permanent injunction in respect of

survey nos.135, 139, 191, 264, total area 4.318 hectares of land situated at

Village Muduri. It is pleaded that Laxman Singh, father of original

plaintiff Bhaiyalal, was the Bhumiswami and in possession of land bearing

survey nos.45, 49, 80, 107, 115, 118, 119, total area 10.536 hectares of

land situated at Village Lehdra and survey nos.135, 139, 191, 264, total

area 4.318 hectares of land situated at Village Muduri. Laxman Singh died

in the year 1968 and he had two wives. The original plaintiff Bhaiyalal

was born out from the first wife of Laxman Singh, while defendant Nos. 1

and 2 were born out from the second wife of Laxman Singh, namely,

Rukmani Bai, who died in the year 1997. Due to family dispute, Laxman

Singh, in his lifetime, with the consent of his second wife Rukmani Bai

made an oral partition of 15 bigha land situated at Village Lehdra and the

aforesaid land of 4.318 hectares situated at Village Muduri in the year

1960 and the original plaintiff Bhaiyalal was separated but the name of

Laxman Singh was remained in the public records, but on the basis of oral

partition, the plaintiffs have been in continuous owners of the said land

ad-measuring 4.318 hectares. The marriage of defendants No.2, 4 and 5

(Kapuri Bai, Dakho Bai and Kala Bai) was performed by Laxman Singh,

the father of original plaintiff and the marriage of defendant Nos.6 and 7

(Narmadi Bai and Nandi Bai) was performed by the original plaintiff

Bhaiyalal. At the time of marriage, share of the defendants No.3 to 7 had

been given to them. Thus, in the knowledge of the defendants, there has

been an adverse possession of the plaintiff and the Bhumiswami rights

have been accrued to him. After the death of Laxman Singh in the year

1968, the defendants in collusion got their names mutated in the revenue

records as heirs on the basis of oral partition and threatened to make the

possession forcibly in the land in question. Therefore, the plaintiffs filed

the said suit for declaration of Bhumiswami on the basis of adverse

possession and for getting their names mutated in public/revenue records

as well as for declaration of their title and permanent injunction.

(3) Defendants No.1 and 2 filed their written statements and denied the

plaint averments. It is pleaded that Laxman Singh died in the year 1967

and he was not the owner of land ad-measuring 10.536 hectares situated at

Village Lehdra and the said land was purchased in the year 1961 through

a registered sale deed by the mother of defendants, namely, Rukmani Bai,

whereupon in the year 1976, the defendant No.1 & 2 were declared as

Bhumiswami of the land of Laxman Singh by the Civil Court. It is

further pleaded that Laxman Singh did not have any partition in his

lifetime and therefore, plaintiffs did not have any possession of land

situated at Village Muduri in year 1960. After death of Laxman Singh,

there was mutation of the disputed land in equal share in the names of

original plaintiff and defendant Nos.1 and 2 and their mother Rukmani

Bai. There has been possession of the original plaintiff as Bhumiswami of

1/4th part of land ad-measuring 4.318 hectares situated at Village Muduri.

He has never been in possession of the entire land. It is pleaded that the

fact of accruing of ownership right to the original plaintiff of the said land

on the basis of adverse possession is incorrect. Thus, the principle of

adverse possession does not apply on the Joint Family Property. It is

further pleaded that the plaintiff has not made it clear in his plaint

averments that in which village, how much land Laxman Singh had and

number of which survey number was obtained by the plaintiff and

defendants in partition and how much land Laxman Singh had kept with

himself. In absence of such disclosure, the suit filed by the original

plaintiff is liable to be dismissed.

(4) Similarly, defendants No. 3 to 7 also denied the plaint averments. It

is pleaded that after death of Laxman Singh, original plaintiff Bhaiyalal

and defendants No.1 and 2 and Rukmani Bai became equal share of the

disputed land area 4.318 hectares situated at Village Muduri. After death

of Rukmani Bai, names of defendants No.1 to 7 were got mutated in their

respective shares. It has been further specifically pleaded that earlier the

plaintiff Bhaiyalal had filed a suit in respect of disputed land and the same

was also dismissed. Therefore, the present suit is not maintainable as per

principle of res judicata. Hence, a prayer was also made for dismissal of

the suit.

(5) On perusal of the pleading of parties and recording of evidence, the

learned Trial Court framed various issues and thereafter, dismissed the

suit. Being aggrieved, the plaintiffs filed an appeal before the first

appellate Court and after considering and going through the evidence

available on record, the learned appellate Court dismissed the appeal and

upheld the findings arrived at by learned trial Court. Hence, this appeal at

the instance of present appellants- plaintiffs.

(6) On perusal of the Office note dated 23/11/2016, it is clear that

respondent No.5/defendant No.5 Kala Bai died during pendency of this

appeal, but the appellants have not filed any application for bringing the

legal heirs of defendant No.5 Kala Bai on record. Accordingly, the appeal

filed against defendant No.5 Kala Bai stands abated.

(7) On 12/09/2016, the Coordinate Bench of this Court vide order

dated 12/09/2016 admitted the present appeal on the following substantial

questions of law:-

''(i) Whether the learned Courts below have erred in misreading the evidence adduced by the plaintiff in respect of partition ?

(ii) Whether the learned first Appellate Court has erred in not considering the plea of partition as advanced by the appellants and further erred in dismissing the appeal only on the basis of plea of adverse possession.''

(8) Challenging the impugned judgment and decree passed by the

learned Courts below, it is submitted by the counsel for the appellants-

plaintiffs that the impugned judgment and decree passed by the learned

Courts below is liable to be set aside, being contrary to evidence and law.

The learned first Appellate Court has committed an error by passing the

impugned judgment and decree in giving a finding merely on the basis of

adverse possession without considering the evidence in its entirety. It is

further submitted that the original plaintiff Bhaiyalal had obtained the

land in question on the basis of partition and in the lifetime, the father of

original plaintiff, namely, Laxman Singh had separated the original

plaintiff Bhaiyalal by giving the land in question in partition and since

then, the original plaintiff Bhaiyalal was the Bhumiswami and in

possession of the land in question on the basis of partition. The learned

Courts below have committed grave error in giving a finding that the land

in question is a Joint Family Property. It is further submitted that from the

admission made by the defendants and their witnesses, it is apparent that

the plaintiff had obtained the land in partition.

(9) Per contra, the learned counsel for the defendants No.1 and 2

supported the impugned judgment and decree passed by the learned

Courts below and prayed for dismissal of this appeal.

(10) Perused the impugned judgment and decree as well as the record.

(11) It is an admitted fact that both the plaintiffs and defendants are

legal heirs of Laxman Singh, who had married two times. The first wife of

Laxman Singh was Imrati Bai and from their wedlock, the original

plaintiff Bhaiyalal was born and after death of Imrati Bai, Laxman Singh

had remarried with Rukmani Bai and from their wedlock, two sons,

namely, Moti Singh (defendant No.1) and Ganeshram and Kapuri Bai,

Dakho Bai, Kala Bai, Narmadi Bai and Nandi Bai (defendants No.2, 4, 5,

6 and 7) were born. Laxman Bai died in the year 1968 and Rukmani Bai

died in the year 1997. The original plaintiff Bhaiyalal also died during the

pendency of suit and his legal heirs namely, present appellant No.1 Umrao

and Others were brought on record.

(12) It is also admitted fact that Civil Suit No.53-A of 2008 (Earlier Civil

Suit No.116-A/1997) filed by original plaintiff Bhaiyalal has been

dismissed by the trial Court and Civil Suit No.54-A/2008 (Earlier Civil

Suit No.1-A/1998) filed by Moti Singh and Ganeshram (herein defendants

Nos.1 and 2 has also been dismissed by the trial Court. The original suit

was filed for declaration of title and permanent injunction in relation to

survey nos.45, 49, 80, 107, 115, 118, 119 total area 10.536 hectares of

land situated at Village Lehdra and survey nos.135, 139, 191, 264, total

area 4.318 hectares of land situated at Village Muduri, wherein 15 bigha

of land situated at Village Lehdra and 4.318 hectares of land situated at

Village Muduri were partitioned but in the revenue records, the name of

Laxman Singh remained reflected. On the basis of aforesaid oral partition,

the original plaintiff remained in possession of land ad-measuring 4.318

hectares. In the year 1968, Laxman Singh died. Thereafter, the defendants

got their names mutated in the revenue records by way of manipulation.

Therefore, the original plaintiff filed a suit on the basis of adverse

possession as well as for declaration of title and permanent injunction in

his favour.

(13) On perusal of the record, it is apparent that the aforesaid suit was

filed on the ground of adverse possession and oral partition. As mentioned

above, the land in dispute is a Hindu Undivided Family Property. No

sufficient evidence has been adduced by the original plaintiff with regard

to oral partition as the land belongs to Hindu Undivided Family as well as

inherited property. Thus, the co-sharers cannot claim the adverse

possession over the suit land in question. Therefore, the learned Courts

below have rightly dismissed the suit as well as the appeal filed by the

plaintiffs/appellants herein. The learned trial Court has rightly observed

that no ''Will'' was proved before it. Rather, it was proved that the property

is a joint Hindu Family Property. The trial Court has also rightly decided

that the parties to the suit are co-sharers and has rightly decided the suit

on the principle of res judicata. As there was no documentary evidence

adduced before the trial Court by the original plaintiff to establish that the

suit is barred by principle of res judicata.

(14) Accordingly, the Courts below have not committed any error in

passing the impugned judgment and decree. Therefore, the impugned

judgment and decree dated 28th November, 2013 passed by Second

Additional District Judge, Ganj Basoda, District Vidisha (MP) in Civil

Appeal No.70-A of 2013 and the judgment and decree dated 17/11/2008,

passed by Second Additional Judge to the Court of Civil Judge, Class-I,

Ganj Basoda, District Vidisha (MP) in Civil Suit No.53-A of 2008 are

hereby affirmed. As a consequence thereof, the appeal being devoid of

merits and is hereby dismissed.

(15) Stay order dated 06/08/2021 passed by this Court stands vacated.

(Rajeev Kumar Shrivastava) Judge

MKB

VANDAN Digitally signed by VANDANA VERMA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=28633918296af0b3fa82b31b23b08479728746dc68 b10fd53e8bb396b58dcf57,

A VERMA pseudonym=DC7960F813FDD2D20559CEDEDDF6EC7D0BD 7E224, serialNumber=A880B748893B41B1DA855946D5DC7BDE46 EFE4D9A9ED20D015BEED2F999C9F8F, cn=VANDANA VERMA Date: 2021.12.21 10:48:51 +05'30'