Madhya Pradesh High Court
Ramkishan vs Vishnu on 29 March, 2022
Author: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 29th OF MARCH, 2022
SECOND APPEAL No. 167 of 2021
Between:-
1. RAMKISHAN S/O KASHIRAM RAGHUWANSHI ,
AGED ABOUT 64 YEARS, OCCUPATION:
AGRICULTURIST R/o : VILLAGE KHANDWA,
TAHSIL AND DISTRICT DHAR (MADHYA
PRADESH)
2. RAMRATAN S/O KASHIRAM RAGHUWANSHI ,
AGED ABOUT 70 YEARS, OCCUPATION:
AGRICULTURIST R/o: VILLAGE KHANDWA,
TAHSIL AND DISTRICT DHAR (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI Nitin Phadke Adv.)
AND
1. VISHNU S/O BHAGIRATH , AGED ABOUT 55 YEARS,
VILLAGE KHANDWA, TEHSIL AND DISTRICT
DHAR (MADHYA PRADESH)
2. BHAGWANSINGH S/O BHAGIRATH VILLAGE
KHANDWA, TEHSIL AND DISTRICT DHAR
(MADHYA PRADESH)
3. PRAHLAD S/O BHAGIRATH , AGED ABOUT 40
Y E A R S , VILLAGE KHANDWA, TEHSIL AND
DISTRICT DHAR (MADHYA PRADESH)
4. MOHAN S/O BHAGIRATH , AGED ABOUT 44 YEARS,
VILLAGE KHANDWA, TAHSIL AND DISTRICT
DHAR (MADHYA PRADESH)
5. MURLI S/O BHAGIRATH VILLAGE KHANDWA,
TAHSIL AND DISTRICT DHAR (MADHYA
PRADESH)
6. SAMPATBAI W/O BHAGIRATH , AGED ABOUT 65
Y E A R S , VILLAGE KHANDWA, TAHSIL AND
DISTRICT DHAR (MADHYA PRADESH)
7. STATE OF MADHYA PRADESH THROUGH
C O L L E C T O R DISTRICT DHAR (MADHYA
PRADESH)
.....RESPONDENTS
Signature Not Verified
SAN
Digitally signed by TRILOK SINGH
This second appeal coming on for orders this day, the court passed the
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Date: 2022.03.30 19:43:20 PDT
following:
2
ORDER
1/ Present second appeal has been filed by the appellants/plaintiffs under
Section 100 of the Civil Procedure Code (for short "CPC") against the impugned
judgment and decree dated 7.11.2020 passed by the 3rd Addl. District Judge, Dhar
in Civil Appeal No.32/2019 affirming the judgment and decree dated 16.5.2019
passed by the Addl. Judge to 1st Civil Judge Class-1, Dhar in Civil Suit No.13-
A/2017, whereby suit for declaration and confirmation of partition has been
dismissed.
2/ Facts of the case in brief are that appellants/plaintiffs filed a civil suit for
declaration and confirmation of partition on the averment that the suit land
originally belonged to their father and during the lifetime of their father a partition
took place between appellants and respondents and suit land was equally
partitioned in 1/2 share between the appellants and respondents and since then
both the parties are carrying out agricultural operations on their portion. In the year
2007 the land in question was acquired for National Highway No.3 and in the
acquisition process award was passed for grant of compensation, which was
subsequently decided by the District Court, Dhar in reference filed by the parties.
The aforesaid order was passed by the Court only for distribution of amount of
compensation between both the parties. The order of partition dated 15.2.2011
passed by the Tehsildar is still in existence. Respondents/defendants No.1 to 6
have denied the plaint averments and they have also made a counter claim and
sought a declaration that the order of partition dated 15.2.2011 was null and void.
3/ On the aforesaid pleadings, the trial Court has framed issues and
permitted the parties to lead their evidence. After hearing both the parties, trial
Court has dismissed the entire suit filed by the appellants/plaintiffs and counter
claim filed by the respondents No.1 to 6 has been partly allowed and partition
order dated 15.2.2011 has been declared null and void. Being aggrieved by the said
judgment and decree, the appellants/plaintiffs preferred an appeal before the first
appellate court. The first appellate court after reappreciating the entire evidence
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placed on record, has affirmed the findings of fact so recorded by the trial Court.
SAN
Digitally signed by TRILOK SINGH
4/ Learned counsel for the appellants contended that both the courts below
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have committed a grave error of law and fact in dismissing the suit filed by the
appellants by misreading the order dated 24.11.2016 (Ex.P/13) passed by this
Hon'ble Court and in dismissing the suit filed by the appellants. It is further
submitted that the partition between the parties had previously taken place in terms
of the order dated 15.2.2011 passed by the Tehsildar. Both the courts below have
committed a grave illegality in holding the order of partition dated 15.2.2011
passed by the Tehsildar to be non existent on the ground of the same having been
set aside by the SDO. Both the courts below have misconstrued and misread the
document Ex.D/10, therefore, findings recorded by the courts below are perverse
and legally unsustainable. Judgment and decree passed by the courts below are
illegal, inoperative and without jurisdiction being against the provisions of law and
being not in conformity with the principles laid down by the higher Courts. Thus,
in the light of the aforesaid it is contended that present appeal deserves to be
allowed.
5/ I have gone through the judgment and decree passed by the court below
and also perused the entire record.
6/ First of all it is argued by learned counsel for the appellant that both the
courts below have committed an error in holding the suit filed by the appellants to
be unmaintainable on account of the misconstruction of the order dated 24.11.2016
(Ex.P/13) passed by the Hon'ble High Court. After perusal of the order dated
24.11.2016 passed in Writ Petition No.381/2016 (Ramkishan and Another Vs.
Vishnu and others), it appears that the Court has directed to the appellants that
appellants/petitioners may file a suit for partition for ascertaining their share in the
property but petitioners did not file any suit for partition before the competent civil
court. Plaintiff Ramkishan (PW-1) has categorically admitted in Para-18 of his
statement that High Court did not pass any order regarding the confirmation of
partition made by the Court of Tehsildar. He has filed the present suit before the
trial Court for confirmation of the partition, therefore, it is clearly established that
appellants/petitioners did not comply the earlier order dated 24.11.2016 (Ex.P/13)
passed by the High Court.
Signature Not Verified
SAN
7/ Learned counsel for the appellants also contended that both the courts
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Date: 2022.03.30 19:43:20 PDT
below have committed grave error of law in not considering that the partition
between the parties had previously taken place in terms of the order dated
15.2.2011 passed by the Tehsildar but plaintiff Ramkishan (PW-1) has
categorically admitted in Para-15 of his statement that he did not file any document
that partition of the suit property had taken place during the lifetime of his father.
He has also admitted that during the land acquisition proceedings for construction
of the National Highway, land of the defendants have been acquired and plaintiff's
land was not acquired. Therefore, it is clear that appellants/plaintiffs are not owner
and Bhumiswami of the land, which was acquired under the Land Acquisition Act
for National Highway No.3.
8/ Plaintiff Ramkishan has also admitted in his cross-examination that
proceedings of the partition had taken place behind the back of the defendants,
therefore, Tehsildar has rejected the said proceedings. Plaintiff Ramkishan has also
admitted that defendants did not sign the Panchnama (Ex.P/1) dated 24.12.2010
and they also did not sign the Ex.P/2, P/3 & P/4. Therefore, on the basis of the
evidence given by the plaintiffs it is clearly proved that defendants were not present
at the time of partition and partition proceedings were conducted behind their
back, therefore, such proceedings are not legal in nature and same was dismissed
by the revenue authorities also.
9/ In the light of the aforesaid oral and documentary evidence available on
record, this Court is of the considered view that appellants/plaintiffs have failed to
prove their case before the courts below and also failed to prove that they are the
exclusive owner of the suit land. Therefore the judgment and decree passed by
both the courts below are well reasoned and are based upon the due appreciation
of the oral as well as documentary evidence available on record. The findings
recorded by the courts below are concrete findings of the fact.
10/ Learned counsel for appellants has failed to show that how the
findings of fact recorded by the courts below are illegal, perverse or based upon
no evidence. Thus, no substantial question of law arises for consideration in the
present second appeal.
Signature Not Verified
11/ The Supreme court in number of cases has held that in exercise of
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powers under section 100 of the Code of Civil Procedure the Court can interfere
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with the findings of fact only if the same is shown to be perverse and based upon
no evidence. Some of these judgments are Hafazat Hussan Vs. Abdul Majeed
and others, 2011(7) SCC 189, Union of India Vs. Ibrahim Uddin, 2012(8)
SCC 148 and Vishwanath Agrawal Vs. Sarla Vishwanath Agralwal 2912(7)
SCC 288.
12/ For the aforesaid reasons, no substantial questions of law arises for
consideration in this appeal. The appeal fails and is hereby dismissed in limine.
C.C. as per rules.
(ANIL VERMA)
JUDGE
trilok
Signature Not Verified
SAN
Digitally signed by TRILOK SINGH
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Date: 2022.03.30 19:43:20 PDT
