Ganeshi Bai vs Afroz Bi
2022 Latest Caselaw 3980 MP

                                   1
     IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                 BEFORE
                     HON'BLE SMT. JUSTICE ANJULI PALO
                          ON THE 23rd OF MARCH, 2022

                    SECOND APPEAL No. 1754 of 2021

        Between:-
1.      GANESHI BAI W/O SHRI BHAGWANDAS BARAUWA
        , AGED ABOUT 59 YEARS, OCCUPATION: HOUSE
        WIFE VILLAGE MATKULI TAHSIL PIPARIYA DISTT.
        HOSHANGABAD (MADHYA PRADESH)

2.      HUSSAIN KHAN S/O BHAGWANDAS BARAUWA ,
        AGED      ABOUT    44   YEARS, OCCUPATION:
        CULTIVATOR R/O VILLAGE MATKULI TAHSIL
        PI PAR I YA, DISTT-HOSHANGABAD (MADHYA
        PRADESH)

                                                              .....APPELLANTS
        (BY SHRI AJAY KUMAR JAIN, ADVOCATE)

        AND

1.      AFROZ BI W/O LATE SHRI HASAN KHAN , AGED
        ABOUT 60 YEARS, VILLAGE MATKULI TAHSIL
        PIPARIYA DISTT. HOSHANGABAD (MADHYA
        PRADESH)

2.      MOHSIN KHAN S/O LATE SHRI HASAN KHAN ,
        AGED ABOUT 40 YEARS, R/O VILLAGE MATKULI
        TAHSIL    PIPARIYA,   DISTT-HOSHANGABAD
        (MADHYA PRADESH)

3.      TOHSIN KHAN S/O LATE SHRI HASAN KHAN ,
        AGED ABOUT 38 YEARS, R/O VILLAGE MATKULI
        TAHSIL    PIPARIYA,   DISTT-HOSHANGABAD
        (MADHYA PRADESH)

4.      USMAN KHAN S/O LATE SHRI INAYAT KHAN ,
        AGED ABOUT 65 YEARS, R/O VILLAGE MATKULI
        TAHSIL    PIPARIYA,   DISTT-HOSHANGABAD
        (MADHYA PRADESH)

5.      THE STATE OF MADHYA PRADESH THR.
        COLLECTOR ,    HOSHANGABAD   DISTT -
        HOSHANGABAD (MADHYA PRADESH)

                                                            .....RESPONDENTS
        (BY SHRI AMIT KHATRI, CAVEATOR)
        (BY SHRI RAMJI PATEL, PANEL LAWYER)

      This appeal coming for admission as well as on I.A. No.9395/2021 this
day, the court passed the following:
                                  JUDGMENT

This second appeal has been preferred by the appellants/defendant Nos.1 & 2, being aggrieved by the impugned judgment and decree dated 15.11.2021 passed

by the First District Judge, Pipariya, District Hoshangabad in Regular Civil Appeal No.03/2020, whereby the judgment and decree dated 17.12.2019 passed by the First Civil Judge Class-I, Pipariya, District Hoshangabad in Civil Suit No.52- A/2018 has been reversed.

2 . The respondent Nos.1 to 4/plaintiffs filed a civil suit against the defendants seeking reliefs of declaration of title and permanent injunction in respect of lands bearing Khasra Nos.49 180/1, 181, 182/1, 240/2, 241/2 & 246/2 admeasuring area 028/0133, 073/295, 010/0041, 017/0069, 2.06/0833, 6.58/2.664 & 0.60/0242 respectively, total area being 10.52 acres i.e. 4.265 hectare situated at Mauja Matkuli, Tahsil Pipariya, District Hoshangabad and lands bearing Khasra Nos.17, 18, 20, 21 & 24 admeasuring area 4.46/1.805, 1.76/0.0713, 8.91/3.605, 3.81/1.542 & 2.40/0.971 respectively, total area being 21.34 acres i.e. 8.636 hectares situated at village Chhirrai, Tehsil Pipariya, District Hoshangabad (hereinafter referred to as the ''suit lands'').

3 . The case of the respondents/plaintiffs before the trial Court, in short, was that the respondent No.1/plaintiff No.1 -Afroz Bi was the wife of Late Hasan Khan. Respondent No.2/plaintiff No.2 - (Mohsin Khan) and respondent No.3/plaintiff No.3 - Tohsin Khan are sons of Late Hasan Khan. Said Hasan Khan's father, namely, Yasin Khan were two real brothers. Both real brothers had a sister, namely, Rahiman Bi. Plaintiff No. 4 is the adopted son of Inayat Khan and Late Rahiman Bi. After the death of Hasan Khan, plaintiff No.4 got married to plaintiff No.1 according to Muslim law. Thus, the plaintiffs are members of the same family.

4. It was also pleaded in the plaint that appellant No.1/defendant No.1 is married wife of Bhagchand Barua and appellant No.2/respondent No.2 is her son. Appellant No.1 had no relation with the family of plaintiffs. Appellant No.1 was never accepted as wife by Hasan Khan and she had no relation with the family of the plaintiffs. Therefore, the appellant Nos.1 and 2 do not have any right or title over the ancestral property belonging the plaintiffs.

5. The disputed lands are situated at village Matkuli, Tahsil Pipariya bearing Khasra Nos.49, 180/1, 181, 182/1, 240/2, 241/2 & 246/2, area 028/0133, 073/295,

010/0041, 017/0069, 2.06/0833, 6.58/2.664 & 0.60/0242, total area is 10.52 acres i.e. 4.265 hectares and the lands bearing Khasra Nos.17, 18, 20, 21 & 24 area 4.46/1.805, 1.76/0.0713, 8.91/3.605, 3.81/1.542 & 2.40/0.971, total area 21.34 acres i.e. 8.636 hectares situated at village Chhirrai, Tehsil Pipariya, District Hoshangabad, have been received by the plaintiffs in inheritance, therefore, the plaintiffs are continuously in occupation of the above lands without any interference.

6 . After the death of Hasan Khan on 09.09.1980 the names of his legal heirs/plaintiffs were recorded in the revenue records of villages Matkuli and

Chhirrai and they are owners. Name of Usman Khan (PW/1) was also jointly recorded with other respondents.

7. It has also been pleaded in the plaint that appellant/defendant Nos.1 & 2 submitted application before the Tahsildar for recording of their names in the revenue records alleging themselves to be wife and son of Late Hasan Khan and without knowledge of the plaintiffs their names were recorded vide order dated 07.05.1990. After receiving knowledge about the mutation of their names, the plaintiffs preferred appeal No.15/90-91 before the SDO, Pipariya who dismissed the same. Thereafter, Second Appeal No.126/90-91 was filed before the Additional Commissioner, Bhopal and Hoshangabad. The Additional Commissioner, Bhopal vide order dated 30.05.1992 has allowed the appeal and remanded the matter to the SDO.

8. The aforesaid order of Additional Commissioner was challenged by the appellants/defendants No.1 & 2 before the Broad of Revenue, which set aside the order of Additional Commissioner dated 30.05.1992 and the order of SDO dated 30.03.1991 was affirmed. In the meantime, in respect of entire Pachmadhi sanctuary including the suit lands, a writ petition being W.P No.537/2002 was filed whereby on account of stay order dated 12.11.2003 mutation over the suit lands in the revenue records was not possible and, therefore, the plaintiffs did not challenge the order passed by the Board of revenue. In 2018, in view of vacation of stay order by the Supreme Court, corrections in revenue records have now become possible and therefore, the plaintiffs challenged the mutation of the appellants and have filed the instant civil suit.

9. The plaintiffs denied that appellant no.1 is the wife of Hasan Khan as there is no divorce between her and Bhagchand Barua. Defendant No.2 is not the child of Hasan Khan, therefore, the appellant has no right over the suit lands. The respondent/plaintiff Nos.1 to 3 after the death of Hasan Khan filed succession case No.5/1983 before the Civil Court where the appellants stated that they are legal heirs of Hasan Khan. The succession Court vide order dated 24.01.1985 declared the respondents/plaintiff Nos.1 to 3 as successors of Hasan Khan and rejected the objection of appellants. Against order of Succession Court, the appellants filed Misc. Appeal No.26/1998, which stood dismissed by the District Court, Hoshangabad and plaintiffs Nos.1 to 3 were declared as successors of Hasan Khan. Said order has attained finality. Appellant/defendant No.1 in her evidence admitted that she is Hindu by caste and she got married to Bhagchand, which also reflect that appellants are not the successors of Hasan Khan and hence, they have no right and entitle over the suit property.

10. It is further pleaded in plaint that respondents/plaintiffs are joint owners of the suit property and they alone are the title holders and in possession. The appellants despite mutation, never took possession. Plaintiffs were paying land revenue of the suit lands. The respondents/plaintiffs being legal heirs of Late Hasan and Inayat Khan, have right and title. The appellants/defendants have filed an application under Section 178 of the M.P. Land Revenue Code for partition on 19.06.2018 and dispossession of plaintiffs from the suit properties and they are trying to alienate the suit property. Therefore, they have filed the instant suit for declaration of title in respect of the suit lands and for issuance of permanent injunction to appellants not to interfer in their peaceful possession.

11. The appellants/defendants filed their written statement denying the plaint averments and stated that she is legal wife of Hasan Khan and appellant No.2 is his legitimate son. After the death of Hasan Khan, their names have been recorded over the disputed land being his legal successors. The suit lands are not the ancestral properties of the plaintiffs, and in Muslim law there is no distinction between ancestral property and personal property. They are owners in possession of the properties during the life time of Late Hasan Khan and the plaintiffs had full

knowledge of the same. The plaintiffs have not disclosed in their plaint as to by which community they are governed under the Muslim law. Appellants/defendant Nos.1 & 2 submitted an application before the Tahsildar for recording of their names in the revenue records alleging themselves to be wife and son of late Hasan Khan and their names have also been recorded vide order dated 07.05.1990. After receiving knowledge about mutation of their names, the plaintiffs preferred an appeal No.15/90-91 before the SDO, Pipariya who dismissed the same. Thereafter, Second Appeal No.126/90-91 was filed before the Additional Commissioner, Bhopal and Hoshangabad. The Additional Commissioner, Bhopal vide order dated 30.05.1992 has allowed the appeal and remanded the matter to the SDO. The aforesaid order of Additional Commissioner was challenged by the appellants/defendants No.1 & 2 before the Board of Revenue, which set aside the order of Additional Commissioner dated 30.05.1992.

1 2 . The defendant Nos.1 and 2 in their written statements have also submitted that the plaintiffs got their names illegally registered on the said land, whereas the names of the plaintiffs should not have been recorded. An information regarding mutation over the suit lands was given by the Tehsildar to the plaintiffs

and they were also well aware that the appellant/defendant No.1 is married and legal wife of Hasan Khan and appellant No.2 is his legitimate son, therefore, plaintiff Nos.1 to 3 did not protest. Subsequently, on the persuasion of plaintiff No.4, the legal proceedings were initiated belatedly, which were resolved by the Revenue Court according to law. The appellant Nos.1 and 2 were considered as legal heirs of deceased Hasan Khan and according to law, the plaintiffs should have submitted their claim within the stipulated period from 2002, but the same has been submitted by the plaintiffs after expiry of period of 16 years.

13. The trial Court vide its judgment dated 17.12.2019 dismissed the Civil Suit No.52A/2018. The trial Court has found that the disputed lands do not belong to respondent Nos.1 to 4/plaintiffs. It also held that the mutation order dated 07.05.1990 has been legally passed by the Competent Court.

14. Being aggrieved by the judgment and decree passed by learned trial Court, the respondents/plaintiffs preferred an appeal before the First District Judge, Pipariya, District Hoshangabad which was registered as RCA No.03/2020.

By the impugned judgment and decree dated 15.11.2021, the Additional District Judge, Pipariya, District Hoshangabad reversed the findings recorded by the learned trial Court.

1 5 . Appellants/defendants being aggrieved by the judgment and decree passed by the Lower Appellate Court dated 15.11.2021 preferred the instant appeal on the grounds that the appellate Court has erred while reversing the findings recorded by the trial Court. After taking into consideration the documents as well as evidence, the trial Court has rightly dismissed the suit of the plaintiffs. The appellate Court only considered the evidence as also documents produced by the respondents/plaintiffs and ignored that were exhibited by the appellants/defendants. It is also submitted that the reversal of judgment and decree of the trial Court by the appellate Court is totally incorrect and liable to be set aside. The appellants have proposed the substantial questions of law to the effect that whether the Revenue Board has rightly passed the order of mutation in favour of the appellants/defendants No.1 and 2; whether the suit is barred by limitation; and whether the valuation of the suit was proper.

16. Heard learned counsel for the appellants on admission. Perused the record.

1 7 . Respondents have admitted that earlier suit property belonged to Sherkhan, who was ancestor of the respondents. Respondents were in cultivating possession of the suit property.

18. It is important to mention here that appellant/defendant No.1 belongs to Hindu community, but in her evidence, she has stated that she was wife of Late Hasan Khan. In cross-examination, the appellant/defendant No.1 - Ganeshibai admitted that her first marriage was performed with Bhagchand at Matkuli and without having divorce from her first husband, she solemnized her second marriage with Hasan Khan. According to Hindu Law, Ganeshi Bai had not acquired the legal status of valid wife of Hasan Khan. She has also not specified that as to when and in what manner, her marriage was performed with Hasan Khan. Second marriage without divorcing the first one cannot be performed in Hindu Law. There is no document produced by the appellant to establish her relationship with Hasan

Khan (the deceased) as his wife. In chief examination, she claimed that she is the first legally wedded wife of Hasan Khan. She admitted in her cross-examination that after the death of Hasan Khan, she filed succession case, which was not decided in her favour. Her son appellant No.2 also admitted that they were defeated in the succession case and thereafter, they have not challenged the same. They have no right to claim any interest over the suit property.

1 9 . Learned lower appellate Court recorded the findings against the appellants after proper appreciation of evidence on record. After considering the evidence available on record and in view of the findings recorded by the appellate Court, this Court is of the opinion that no substantial question of law arises for consideration in this appeal Thus, there is no perversity or illegality in the impugned judgment passed by the lower appellate Court. Hence, no interference is warranted. Accordingly, this appeal deserves to be and is hereby dismissed at motion stage.

(SMT. ANJULI PALO) JUDGE rj

Signature Not Verified SAN

Digitally signed by RAJESH KUMAR JYOTISHI Date: 2022.03.24 18:03:40 IST