Jagan Nath Prasad (Since Dead) ... vs Badri Prasad (Since Dead) Thr. Lrs ...
2022 Latest Caselaw 13387 MP

     IN THE HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR
                       BEFORE
     HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
             ON THE 12th OF OCTOBER, 2022
              SECOND APPEAL NO.83 OF 2020

       Between:-

       JAGANNATHPRASAD (SINCE DEAD),
       THROUGH HIS LEGAL REPRESENTATIVES-

1.     NAGENDRA PRASAD S/O LATE SHRI
       JAGANNATHPRASAD, AGED ABOUT      55
       YEARS, R/O VILL. RAURA TAH. RAIPUR
       KARTULLYAN DISTT. REWA (M. P.)

       AWADH SHARAN, (SINCE DEAD),
       S/O LATE SHRI JAGANNATHPRASAD,
       THROUGH HIS LEGAL REPRESENTATIVES-

2.     SMT. PHOOLVATI W/O SHRI AWADH SHARAN, AGED
       ABOUT 58 YEARS, VILLAGE RAURA TAH. RAIPUR
       KARTULIYAN DISTRICT REWA (M. P.)

3.     JAI PRAKASH S/O SHRI AWADH SHARAN, AGED
       ABOUT 36 YEARS, OCCUPATION: SCIENTIST OFFICE
       REMOTE SENIOR APPLICATION CENTRE CHITTAUD
       COMPLEX MAHARANA PRATAP NAGAR ZONE
       BHOPAL P.O MAHARANA PRATAP MARG NAGAR
       BHOPAL (M. P.)


       NAGESHWAR PRASAD (SINCE DEAD)
       S/O LATE SHRI JAGANNATHPRASAD,
       THROUGH HIS LEGAL REPRESENTATIVE-
                       -    2 -



4.   ROHIT KUMAR S/O LATE SHRI NAGESHWAR
     PRASAD, AGED ABOUT 22 YEARS, VILLAGE RAURA
     TAH. RAIPUR KARTULIYAN DISTRICT REWA (M. P.)

5.   VINEET KUMAR ALIAS DILIP KUMAR S/O LATE SHRI
     NAGESHWAR PRASAD, AGED ABOUT 20 YEARS,
     VILLAGE RAURA TAH. RAIPUR KARTULIYAN
     DISTRICT REWA (M.P.)



                                            .....APPELLANTS

     (BY SHRI RAVENDRA SHUKLA - ADVOCATE)

                          AND

     BADRI PRASAD (SINCE DEAD), THROUGH
     HIS LEGAL REPRESENTATIVES-

1.   KAMTA PRASAD MISHRA S/O LATE SHRI
     KESHAV PRASAD MISHRA, AGED ABOUT
     45 YEARS, VILL. PATAUNA P.O. PADRA
     TAH. RAIPUR KARTULIYAN DISTT. REWA
     (M. P.)

2.   OM PRAKASH MISHRA S/O LATE SHRI
     KESHAV PRASAD MISHRA, AGED ABOUT
     45 YEARS, VILLAGE PATAUNA POST
     OFFICE PADRA TAH. RAIPUR KARLIYAN
     DISTT. REWA (M. P.)

3.   ARUNA  DEVI  D/O   LATE  SHRI
     NAGESHWAR PRASAD, AGED ABOUT 37
     YEARS,

4.   ARCHANA DEVI D/O LATE SHRI
     NAGESHWAR PRASAD, AGED ABOUT 34
     YEARS,
                       -   3 -



5.    RANJANA DEVI D/O LATE SHRI
      NAGESHWAR PRASAD, AGED ABOUT 30
      YEARS,

      RESPONDENT NO.2 TO 5 R/O VILLAGE
      -RAURA, TAHSIL RAIPUR KARTULIYAN
      DISTRICT REWA (M.P.)


      CHHADDHARI (SINCE DEAD), S/O LATE
      SHRI MANBAHOR KACHHI, THROUGH
      HIS LEGAL REPRESENTATIVES-

      SUKVARIYA (SINCE DEAD), D/O LATE
      SHRI CHHADDHARI, THROUGH HER
      LEGAL REPRESENTATIVES-


6.    PREMVATI D/O LATE SHRI KAMTA
      PRASAD, AGED ABOUT 59 YEARS,

7.    SATYASUDAN S/O LATE SHRI KAMTA
      PRASAD, AGED ABOUT 53 YEARS,

8.    SATYABHAN S/O LATE SHRI KAMTA
      PRASAD, AGED ABOUT 51 YEARS,

9.    SUDHA D/O LATE SHRI KAMTA PRASAD,
      AGED ABOUT 50 YEARS,

      RESPONDENT NO.6 TO 9 R/O VILLAGE
      SANW, POST OFFICE - SHAHPUR, TAHSIL
      - SIRMAUR DISTRICT REWA (M.P.)

10.   STATE OF M.P. THROUGH COLLECTOR
      DISTT. REWA (M. P.)



                                            ....RESPONDENTS
                                   -   4 -



      This appeal coming on for admission this day, the Court passed the
following:
                                 ORDER

This second appeal has been preferred by the appellants/ descendants of original defendant 1-Jagannath Prasad, challenging the judgment and decree dated 15.10.2019 passed by 1 st Additional District Judge, Rewa in civil appeal no. 44-A/15 whereby, reversing the judgment and decree dated 07.12.2005 passed by 6th Civil Judge Class-II, Rewa in civil suit no.588-A/04 whereby, learned trial Court dismissed the suit filed by original plaintiff-Badri Prasad (since died) now represented by the respondents 1-2/plaintiffs, which in appeal has been decreed by first appellate Court.

2. In short the facts are that, the original plaintiff-Badri Prasad (since died) now represented by the respondents 1-2, instituted a suit for declaration of title, permanent injunction and restoration of possession as well as for mesne profits against the defendants 1-3 (Jagannath Prasad, Chhaddhari and Jagdev @ Jagatdev) with regard to 1/2 share in agriculture land Khasra no. 470 area 0.92 acre and Khasra no. 500 area 1.46 acre situated in village Raura, tehsil Huzur, District Rewa with the allegations that the land in question belonged to father of defendants 2-3, Manbahor and after his death, the defendants 2-3 became owner over equal share, and in partition the western portion came in possession of defendant 2 and

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eastern portion came in possession of defendant 3 and so recorded in the revenue papers. It is alleged that the defendant 3 Jagdev sold his 1/2 share to the plaintiff in the land Khasra no. 470 and 500 for consideration of Rs.2,000/- vide document dtd. 5.3.1980 (Ex-P-1) and subsequent sale deed dated 27.05.1980 (Ex-P-2). It is alleged that the defendant 1 has got executed sale deed from the defendant 2 Chhaddhari of the entire area of Khasra no. 470 and 500 whereas, after partition of these lands Chhaddhari had no title to execute the sale deed of the entire area. It is alleged that the defendant 1 Jagannath Prasad has taken forcible possession in the year 1982. On inter alia allegations the suit was filed.

3. That the defendant 1- Jagannath Prasad appeared and filed written statement denying the plaint allegations and contended that Chhaddhari was given the land of Khasra no. 470 & 500 by his father Manbahor which was never in possession of defendant 3 Jagdev. Despite knowledge about the sale deed dtd. 9.5.1980 (Ex.D-1) executed by Chhaddhari in favour of Jagannath Prasad, a fake document dated 05.03.1980 and sale deed dated 27.05.1980 was executed by defendant 3 in favour of plaintiff, which is void and ineffective. With these contentions the suit was prayed to be dismissed.

4. The defendant 2 Chhaddhari appeared and filed written statement and contended that he has not executed any sale deed in favour of

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defendant 1 Jagannath Prasad and on inter alia contentions the suit was prayed to be dismissed.

5. The defendant 3 Jagdev also filed written statement and supporting the case of plaintiff, contended that the defendant 1 has got executed sale deed from Chhaddhari wrongly. On inter alia contentions, the suit was prayed to be decreed.

6. On the basis of plaint allegations, learned trial Court framed as many as 7 issues and recorded evidence led by the parties and after consideration of the same held that the document executed in the shape of receipt (Ex.P-

1) is nothing but a complete deed of sale which in absence of registration and requisite stamp duty, is not admissible in evidence and further the sale deed (Ex.P-2) being without consideration does not give any right to the plaintiff. However, while deciding issue no.4, learned trial Court held that Chhaddhari had also no right to execute the sale deed (Ex.D-1) in favour of defendant 1 with regard to the entire area because, he was having only half share in the property. With these findings the learned trial Court dismissed the suit vide its judgment and decree dated 07.12.2005.

7. Upon appeal filed by the plaintiffs/respondents 1-2 learned first appellate Court has found the plaintiffs and defendant 1 both, entitled for 1/2 -1/2 share in the suit land Khasra no. 470 and 500 and holding the sale deed dated 09.05.1980 (Ex.D-1) to be ineffective with regard to 1/2 share,

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held that the plaintiffs and defendant 1 both are entitled for partition of the suit property.

8. Leaned counsel for the appellants/defendant 1 submits that learned first appellate Court has erred in reversing the judgment and decree passed by the learned trial Court. He submits that the defendant 3 Jagdev had sold the land by way of document (Ex.P-1) which was rightly ignored by learned trial Court holding it to be inadmissible in evidence for want of registration and requisite stamp duty. He further submits that the sale deed (Ex.P-2) is without consideration and possession was not delivered to the plaintiff in pursuance of the sale deed, therefore, the same does not confer any title on him. He submits that learned first appellate Court has without considering the aforesaid aspect of the matter, erred in decreeing the suit although with regard to half share. Accordingly, he prays for admission of the second appeal.

9. Heard learned counsel for the appellants and perused the record.

10. Undisputedly, the land in question originally belonged to Manbahor, who was survived by the defendants 2-3 Chhaddhari and Jagdev. As such, in absence of any dispute about the aforesaid status, it can be said that they were having ½ - ½ equal share in the entire property. The document (Ex.P-

1) although has been disputed by the defendant 1 but the same has been accepted by the defendant 3 Jagdev by filing written statement. The

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execution of sale deed (Ex.P-2) has also been admitted by Jagdev, who according to the Courts below was having 1/2 share in the property. As such in presence of admissions of Jagdev, none else has right to challenge the sale deed of the plaintiff on the ground of consideration or otherwise.

11. Although, learned trial Court dismissed the suit filed by the respondents 1-2/plaintiff but vide para 19 of its judgment, learned trial Court decided issue no.4 whereby, considering the effect of execution of sale deed (Ex.D-1) by Chhaddhari in favour of defendant 1, learned trial Court has clearly held that the sale deed executed in favour of defendant 1 does not confer any right to him over the entire area of the land because Chhaddhari had only half share in the property. This finding recorded by learned trial Court has remained unchallenged on the part of defendant 1.

12. As such, in view of the concurrent findings recorded by learned Courts below with regard to equal share of the defendants 2-3 in the suit property, the learned first appellate Court has not committed any error in holding the plaintiffs and defendant 1 to be shareholder of 1/2 - 1/2 share each and has rightly held them to be entitled for partition through the revenue Court as per Section 54 CPC.

13. As such, in my considered opinion, learned first appellate Court has not committed any illegality in passing the impugned judgment and decree and in decreeing the suit partly.

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14. Resultantly, there being no substantial question of law involved in the second appeal, the same deserves to be and is hereby dismissed in limine under Order 41 rule 11 CPC.

15. However, no order as to the costs.

(DWARKA DHISH BANSAL) JUDGE pb

PRASHANT BAGJILEWALE 2022.10.14 17:55:28 +05'30'