Madhya Pradesh High Court
Mst. Phuliya vs Koushal Prasad on 6 December, 2022
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
SECOND APPEAL No. 730 of 2006
Between:-
1. MST. PHULIYA S/O SHYAMLAL
BRAHMIN, AGED ABOUT 62 YEARS,
OCCUPATION: AGRICULTURIST GRAM
KHUTAHA TAH. RAGHURAJNAGAR
DISTT. SATNA (MADHYA PRADESH)
2. AYODHYA PRASAD S/O SHYAMLAL
BRAHMAN, AGED ABOUT 45 YEARS,
OCCUPATION: AGRICULTURIST GRAM
KHUTAHA TAH. RAGHURAJNAGAR
DISTT. SATNA (MADHYA PRADESH)
3. HARI NARAYAN S/O SHYAMLAL
BRAHMAN, AGED ABOUT 40 YEARS,
OCCUPATION: AGRICULTURIST GRAM
KHUTAHA TAH. RAGHURAJNAGAR
DISTT. SATNA (MADHYA PRADESH)
4. RAKESH PRASAD S/O SHYAMLAL
BRAHMAN, AGED ABOUT 35 YEARS,
OCCUPATION: AGRICULTURIST GRAM
KHUTAHA TAH. RAGHURAJNAGAR
DISTT. SATNA (MADHYA PRADESH)
5. PANNESH S/O SHYAMLAL
BRAHMAN, AGED ABOUT 33 YEARS,
OCCUPATION: AGRICULTURIST GRAM
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 12/13/2022
10:10:13 AM
2
KHUTAHA TAH. RAGHURAJNAGAR
DISTT. SATNA (MADHYA PRADESH)
6. RAMBALI S/O SHYAMLAL
BRAHMAN, AGED ABOUT 27 YEARS,
OCCUPATION: AGRICULTURIST GRAM
KHUTAHA TAH. RAGHURAJNAGAR
DISTT. SATNA (MADHYA PRADESH)
7. RAJJU S/O SHYAMLAL BRAHMAN,
AGED ABOUT 27 YEARS, OCCUPATION:
AGRICULTURIST GRAM KHUTAHA TAH.
RAGHURAJ NAGAR, SATNA (MADHYA
PRADESH)
....................................APPELLANTS
(BY SHRI KAMAL BHAN VISHWAKARMA -ADVOCATE)
AND
1. KOUSHAL PRASAD S/O BANDI
BRAHMAN, AGED ABOUT 60 YEARS,
GRAM KHUTHA, TAH. RAGHURAJ
NAGAR DISTT. SATNA (MADHYA
PRADESH)
2. ADITYA PRASAD PANDEY S/O
KOUSHAL PRASAD PANDEY, AGED
ABOUT 25 YEARS, GRAM KHUTHA, TAH.
RAGHURAJ NAGAR DISTT. SATNA
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 12/13/2022
10:10:13 AM
3
(MADHYA PRADESH)
3. THE STATE OF M.P. DISTT. SATNA
(MADHYA PRADESH)
......................RESPONDENTS
(BY SHRI RAVENDRA SHUKLA-ADVOCATE FOR RESPONDENTS)
.............................................................................................................................................
Reserved on : 23/11/2022
Pronounced on : 06/12/2022
.............................................................................................................................................
This second appeal has been heard and reserved for judgment, coming on for
pronoucement this day, the court passed the following:
JUDGMENT
This second appeal has been preferred by the defendants 1-7 challenging the
judgment and decree dated 26.11.2005 passed by 5 th Additional District Judge (Fast
Track Court), Satna in Civil Appeal No.17-A/2005 confirming the judgment and
decree dated 21.12.2001 passed by 3rd Civil Judge Class-II, Satna in Civil Suit
No.93-A/99 whereby the suit filed by the respondent 1/plaintiff was decreed holding
the plaintiff and defendants to be entitled for share in the suit lands.
2. In short the facts are that the respondent 1/plaintiff- Koushal Prasad instituted
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 12/13/2022
10:10:13 AM
a suit for declaration of title, recovery of possession and permanent injunction against
defendants 1-7 claiming the suit property to be the joint hindu family property of the
parties. It was alleged that the house situated over khasra no.770 and land survey
no.352 was in the name of Shyamlal but it is not self acquired property of Shyamlal
and on the basis of partition, both the parties are in possession of the suit property but
the defendants have taken illegal possession on the suit property. On inter alia
contentions, the suit was prayed to be dismissed.
3. Defendants 1-7 filed written statement and contended that the suit land was
given to Shyamlal and after his death, defendants are in possession. The land of
survey no.770 and 352 is self acquired property of Shyamlal and is not the joint hindu
family property and plaintiff has no right in the same. Defendants are in possession
according to the partition effected in between the parties even prior to the year 1963.
On inter alia contentions the suit was prayed to be dismissed.
4. Defendant-8 filed written statement admitting the plaint allegations and prayed
for passing of decree in favour of plaintiff.
5. On the basis of pleadings of the parties, learned trial Court framed six issues
and recorded evidence of the parties and vide judgment and decree dated 21.12.2001
held that the suit property is joint hindu family property of plaintiff, defendants 1-7
and Anchitiya and the plaintiff is having 1/2 share in the property and land of survey
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 12/13/2022
10:10:13 AM
no.770 and 352 is not self acquired property of defendant 1's husband and
defendants 2-7's father Shyamlal.
6. Upon appeal filed by defendants 1-7, learned first appellate Court vide its
judgment and decree dated 26.11.2005, to some extent modified the judgement and
decree of trial Court and held that the disputed land is joint hindu family property of
the parties and the land of khasra no. 770 and 352 is not self acquired property of
Shyamlal.
7. This Court vide order dated 25.01.2010 admitted the second appeal on the
following substantial question of law:-
" Whether in view of the documents Ex.D/4
and D/5 wherein name of Shyamlal is recorded as
owner, the finding recorded by Courts below that
property covered under document Ex.D/4 and D/5
belonged to joint family is perverse ?"
8. Learned counsel for the appellants submits that the suit property bearing
survey nos.770 and 352 is self acquired property of defendant 1's husband and
defendants 2-7's father Shyamlal, which he purchased at the age of 30 years without
any aid of the joint family and the plaintiff has failed to prove availability of nucleus
at the relevant point of time to purchase/acquire the same. He submits that on the
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Signed by: S HUSHMAT
HUSSAIN
Signing time: 12/13/2022
10:10:13 AM
basis of oral evidence, it cannot be said that the plaintiff has any share in the property
bearing survey nos.770 and 352. With these submissions, he prays for allowing the
appeal.
9. Learned counsel for the respondents submits that concurrent findings recorded
with regard to nature of property to be joint hindu family property are based on
appreciation of oral and documentary evidence, which are not assailable in the
limited scope of second appeal and the substantial question of law framed by this
Court, in fact is a pure question of fact. He submits that reappreciation of oral
evidence is not permissible in the second appeal. With these submissions, he prays
for dismissal of the second appeal.
10. Heard the learned counsel for the parties and perused the record.
11. Defendants/appellants on the basis of an order (Ex.D/4) of Tahsil and on the
basis of sale deed dated 27.12.1963 (Ex.D/5) claim themselves to be exclusive owner
of the land of khasra no.770 and 352 with the contention that it was self acquired
property of their ascendant Shyamlal. However, with regard to other property no
dispute/argument has been raised before this Court.
12. Learned both the Courts below have after due appreciation of oral and
documentary evidence found that there was joint family of the plaintiff Koushal
Prasad and Shyamlal and the property of joint Hindu family was partitioned in the
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 12/13/2022
10:10:13 AM
year 1973. Accordingly, both the brothers came in possession of equal share of all the
disputed properties.
13. The plaintiff has contended that partition had taken place in the year 1973 but
the defendants have tried to say that partition had taken place even in the lift time of
defendants' grand father Bandi i.e. prior to 45 years ago. After making critical
analysis of the entire evidence, learned Courts below have accepted the plaintiff's
case of partition in the year 1973.
14. Ex.D/5 is a sale deed dtd. 27.12.1963 in relation to land khasra no. 770/2 area
0.04 dismil out of 0.9, which has been found by learned Courts below to have been
purchased by plaintiff's father on the basis of document Ex.P/6. Other document,
Ex.D/4 is an order of Tahsildar in relation to khasra no. 352, whereby order to record
name of Shyamlal has been passed. Another document in relation to khasra no. 352 is
Bhu-adhikar and Rin-pustika (Ex.D/1) but there is no patta or any other document on
record in corroboration of the order Ex.D/4 and Ex.D/1.
15. Considering all the aforesaid documents and oral evidence, the learned Courts
below have found execution of documents Ex.P/1, P/2 and P/3 proved and held that
the property in question is joint hindu family property of the parties, although it stood
in the name of the Shyamlal, but the learned Courts have also found that there was
sufficient nucleus to acquire the aforesaid property. As such the findings recorded by
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 12/13/2022
10:10:13 AM
learned Courts below being not illegal or perverse, the substantial question of law
framed by this Court is decided against the appellants/defendants.
16. It is well settled that in the second appeal, reappreciation of evidence is not
permissible and even if the findings are erroneous, same cannot be interfered in the
second appeal.
17. Accordingly, declining interference in the concurrent findings recorded by
learned Courts below, this second appeal is dismissed. However, no order as to costs.
18. Interim application(s), if any, shall stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
sh
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 12/13/2022
10:10:13 AM
