Pappu vs Shyamlal
2021 Latest Caselaw 6597 MP

                 HIGH COURT OF MADHYA PRADESH
                       BENCH AT GWALIOR

                                    (Single Bench)

                     SECOND APPEAL NO. 269 OF 2017

Pappu                                                    ..... APPELLANT
                                         Versus

Shyamlal & others                                     .....RESPONDENTS

------------------------------------------------------------------------------------------
CORAM

                Hon. Shri Justice Rajeev Kumar Shrivastava

------------------------------------------------------------------------------------------

Appearance

        Shri D.D. Bansal with Shri Abhishek Singh Bhadoria, learned
counsel for the appellant.
        Shri Arun Dudawat, learned counsel for the respondents No.1 to 6.

------------------------------------------------------------------------------------------
Whether approved for Reporting :

Reserved on                                   :       02/09/2021
------------------------------------------------------------------------------------------

                                  JUDGMENT

(Passed on 21st October, 2021)

This Second Appeal has been preferred under Section 100 of

CPC against the judgment and decree dated 18.01.2017 passed in Civil

Appeal No.15-A/2014 confirming the judgment and decree dated

30.06.2014 passed by Civil Judge Class-I Kurwai in COS No.18-A/2012.

2. The facts in short are that appellant/plaintiff instituted a suit for

declaration of title, partition and permanent injunction against the

defendants No.1 to 7. The disputed land was recorded in the name of

defendants No. 1 to 6 which is an ancestral property. The plaintiff being

coparcener is having right over the ancestral property by 1/6 th share. The

(Pappu Vs.Shyamlal & others)

defendant No. 1 Shyamlal after the death of his first wife Ramkalibai

married to Dropatibai. The defendant No.2 Devendra is the son of

Shyamlal and Ramkalibai and the present appellant/plaintiff-Pappu is the

son of Shyamlal and Dropatibai. Thereafter, without giving divorce to

Ramkalibai, Shyamlal/defendant No.1 kept Ramsakhibai and defendants

No.3 to 5 are the sons of Shyamlal and Ramsakhibai. The defendants

illegally got partitioned the land and mutated it in the name of defendants

No. 1 to 5 which is ineffective against the plaintiff as the plaintiff is real

son of defendant No.1 and is coparcener. On the basis of above interalia

allegations suit was filed. The defendants No. 1 to 6 denied the pleadings

of the plaintiff and had submitted that the property involved was not an

ancestral property rather is self acquired property of the defendants.

Therefore, the plaintiff has no right. The defendants denied the fact of

marriage/keeping the plaintiff's mother by Shyamlal. The

plaintiff/appellant has no right in the property as he is the son of Ramsingh

and Dropatibai. The court below dismissed the appeal by confirming the

trial Court judgment.

3. Learned counsel for the appellant has submitted that the impugned

judgment and decree passed by the courts below are manifest illegal,

contrary to law, facts and evidence are not sustainable in the eye of law.

The plaintiff had pleaded and proved that he is the son of defendant No.1

Shyamlal born from wedlock of Shyamlal and Dropatibai who was the

second wife of Shyamlal and is entitled to get right in the ancestral

property. Wrong stand have been taken by the defendants by saying that

Dropatibai was not the wife of defendant No.1 Shyamlal and she left the

(Pappu Vs.Shyamlal & others)

house of defendant No.1 just after two days of marriage. The aforesaid

stand is baseless. It is further submitted that there is ample evidence

available on record to establish marriage in between Shyamlal and

Dropatibai rather the fact of marriage of Shyamlal with Dropatibai is an

admitted fact. Earlier an application filed under Section 13(1) of Hindu

Marriage Act for divorce but this proceedings came to an end vide order

dated 2.2.1990 whereby both the spouse agreed to reside together,

therefore, there should be presumption of legitimacy as per Section 112 of

the Evidence Act and the courts below have erred in non-considering the

admissions made by the defendant No.1 and his witnesses. The courts

below have also erred in holding that the disputed property was purchased

from the income of ancestral property. It is undisputed fact available on

record that the disputed land belongs to Parma Dhobi and is not self

acquired property of the defendants. The plaintiff/appellant being grand

son is having 1/6th share in the aforesaid property, therefore, mutation

done is also against the provisions of law and is void and ineffective as

against the plaintiff. One application being I.A. No.3900/2021 under Order

41 Rule 27 read with Section 151 CPC has also been filed to show that the

appellant/plaintiff is the son of Shyamlal. Along with the application an

affidavit, marriage card of Demri Bai (Mamta) and one photograph have

been filed whereby it is pleaded that the appellant/plaintiff is the

coparcener/son of Shyamlal defendant No.1.

4. Perused the record available. It is apparent from the record that there

is concurrent findings of fact by two subordinate Courts. The First

Appellate court has confirmed the decree passed by the trial Court. This

(Pappu Vs.Shyamlal & others)

Second Appeal has been preferred by the appellant-Pappu claiming him to

be son born from wedlock of Shyamlal and Dropatibai but the court below

has not considered the claim of the appellant. It is apparent from the

evidence recorded before the trial Court that Ghasiram (PW/1), Dropatibai

(PW/3), Mannulal (PW/4) and the present appellant Pappu (PW/2) have

stated in their statements that father of Shyamlal was died prior to birth of

Pappu that means Pappu born after the death of Parma which also reflects

from Ex-P/13 marksheet of Pappu wherein date of birth has been

mentioned as 10.03.1987 that means plaintiff Pappu born in the year 1987

when Hindu Succession Act, 1956 was in existence. Therefore, the court

below has rightly held that the plaintiff-Pappu is not having ancestral right

over the disputed property.

5. In Sheela Devi and others v. Lal Chand and others, reported

in 2007(1) MPLJ 435, it is held that under Sections 6 and 8 of Hindu

Succession Act, 1956 coparceners rights are not acquired by the son who

born after the year 1956 as the disputed property was an ancestral property.

6 Applications (I.A. No.2556/2017) under Order 41 Rule 27 read with

Section 151 of CPC, I.A.No.2557/2017 and I.A. No.3900/2021 have been

filed for taking the documents on record and for DNA testing of appellant.

The aforesaid applications are the afterthoughts of the appellant and such

prayer could be done at the earlier stage. Furthermore, settled principle of

law cannot be changed only on the basis of documentary evidence. The

request for DNA testing could also be filed at prior stage of trial at the time

of filing of Second Appeal. Filing of such applications shows the malafidy

(Pappu Vs.Shyamlal & others)

of the appellant. Therefore, the aforesaid applications are hereby

dismissed.

7. In view of the foregoing discussion, this Court is of the considered

view that since there is concurrent findings of fact by two subordinate

Courts, therefore, considering the facts and circumstances of the case as

well as the concurrent finding, I find no substantial question of law

involved in the present Second Appeal. Consequently, present Second

Appeal is hereby dismissed at admission stage.

(Rajeev Kumar Shrivastava) Judge

van

SMT VANDANA VERMA 2021.10.23 11:59:17

-07'00'