Santosh Kumar Sen vs Sharda
2022 Latest Caselaw 12875 MP

                                 1


             IN THE HIGH COURT OF MADHYA PRADESH
                          AT JABALPUR
                               BEFORE
             HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                   ON THE 26th OF SEPTEMBER, 2022
                   SECOND APPEAL No. 326 of 2014
       BETWEEN:-
1.     SANTOSH KUMAR SEN S/O SHRI SHYALAL SEN,
       AGED ABOUT 46 YEARS, VILLAGE DHATURA,
       TAHSIL MAIHAR, (MADHYA PRADESH)



2.     LALLU SEN S/O MUNALAL SEN, AGED ABOUT 49
       YEARS, VILLAGE DHATURA, TAHSIL MAIHAR,
       DISTT. SATNA (MADHYA PRADESH)



                                                   .....APPELLANTS
       (BY DR.RASHMI PATHAK-ADVOCATE)
       AND
1.     SHARDA S/O SHRI MANGAL SEN, AGED ABOUT
       59 YEARS, PURANI BASTI MAIHAR, TAHSIL
       MAIHAR, DISTT. SATNA, M.P. (MADHYA
       PRADESH)



2.     BADRI PRASAD S/O LAT SITRARAM SEN, AGED
       ABOUT 49 YEARS, PURANI BASTI MAIHAR,
       TAHSIL MAIHAR DISTT. SATNA (MADHYA
       PRADESH)



3.     SITARAM(DIED) THROUGH LRS.:

3(a)   SUSHIL S/O SITARAM SEN, AGED ABOUT 36
       YEARS, PURANI BASTI MAIHAR, TAHSIL
                                  2


        MAIHAR DISTT. SATNA (MADHYA PRADESH)



3(b).   SUNIL S/O SITARAM SEN, AGED ABOUT 32
        YEARS, PURANI BASTI MAIHAR, TAHSIL
        MAIHAR DISTT. SATNA (MADHYA PRADESH)



3(c).   SATISH S/O SITARAM SEN, AGED ABOUT 30
        YEARS, PURANI BASTI MAIHAR, TAHSIL
        MAIHAR DISTT. SATNA (MADHYA PRADESH)



3(d).   GOLU S/O SITARAM SEN, AGED ABOUT 20
        YEARS, PURANI BASTI MAIHAR, TAHSIL
        MAIHAR DISTT. SATNA (MADHYA PRADESH)



4.      FULLIBAI W/O LATE SUNDERLAL SEN, AGED
        ABOUT 53 YEARS, PURANI BASTI MAIHAR,
        TAHSIL MAIHAR DISTT. SATNA (MADHYA
        PRADESH)



5.      CHHANGA S/O SUNDERLAL SEN, AGED ABOUT
        27 YEARS, PURANI BASTI MAIHAR, TAHSIL
        MAIHAR DISTT. SATNA (MADHYA PRADESH)



6.      KALU S/O SUNDERLAL SEN, AGED ABOUT 36
        YEARS, PURANI BASTI MAIHAR, TAHSIL
        MAIHAR DISTT. SATNA (MADHYA PRADESH)



7.      LALMANI S/O DADURAM SEN, AGED ABOUT 49
        YEARS, PURANI BASTI MAIHAR, TAHSIL
                                         3


        MAIHAR DISTT. SATNA (MADHYA PRADESH)



8.      BHAGWAT S/O GOKUL SEN, AGED ABOUT 51
        YEARS, PURANI BASTI MAIHAR, TAHSIL
        MAIHAR DISTT. SATNA (MADHYA PRADESH)



9.      GOVIND S/O GOKUL SEN, AGED ABOUT 41
        YEARS, VILLAGE KATIYA KHURD, TAHSIL
        MAIHAR SATNA (MADHYA PRADESH)



10.     SOHANLAL S/O SUNDERLAL SEN, AGED ABOUT
        45 YEARS, HARNAMPUR TAHSIL MAIHAR
        DISTT. SATNA (MADHYA PRADESH)



11.     RAJENDRA PRASAD S/O DADURAM SEN, AGED
        ABOUT 36 YEARS, KATIYAKHURD, TAHSIL
        MAIHAR DISTT. SATNA, M.P (MADHYA
        PRADESH)



12.     THE STATE OF MADHYA PRADESH THROUGH
        DISTRICT COLLECTOR SATNA, DISTRICT
        SATNA M.P. (MADHYA PRADESH)



                                                              .....RESPONDENTS
        (BY SHRI CHANDRIKA PRASAD DWIVEDI, ADVOCATE FOR
        RESPONDENTS 1-6 )
      This appeal coming on for hearing this day, the court passed the following:

                                    ORDER

This second appeal has been filed by appellants/plaintiffs 1-2 challenging

the judgement and decree dated 27.11.2013 passed by 2nd Additional District

Judge, Maihar, District Satna in Civil Appeal No.41-A/2013 whereby confirming

the judgement and decree dated dated 06.05.2011 passed by Civil Judge Class-I,

Maihar, District-Satna in Civil Suit No.67-A/2010 whereby suit filed by

plaintiffs/appellants -Santosh Kumar Sen, Lallu Sen and Lalmani, Bhagwat,

Govind, Sohanlal, Rajendra Prasad (respondents 7-11) has been dismissed.

2. The plaintiffs instituted a suit for declaration of title and recovery of

possession against respondents/defendants 1-6 with regard to agricultural land

survey No.973/1 and 973/2 total area 18 bigha 10 Biswa and survey No.974 area 7

Biswa situated in Village Podi, Tehsil Maihar with the allegations that in the

revenue record, the land is recorded in the name of defendants and they are also in

possession. Placing reliance upon genealogical tree mentioned in para-2 of the

plaint, it is alleged that the disputed land is ancestral land of the plaintiffs which is

wrongly recorded in the name of defendants, and they have also partitioned the

land. This land was recorded in the name of Bharosa and after his death the same

was recorded in the name of defendants' father/ ascendants Surajdeen @ Lupurra

and Mangal Sen. It is alleged that in fact ancestors of defendants were residing

with Bharosa, therefore, they got mutated their name fraudulently and at that time,

the plaintiffs were residing out of village. On the basis of false entry, the

defendants are restraining the plaintiffs from going on the suit land. On inter alia

allegations, the suit was filed.

3. The defendants 1-6 appeared and filed written statement denying the plaint

allegations and denied the relationship with Bharosa and contended that the

plaintiffs are not successors of Bharosa but the defendants are in possession of the

suit land for more than 65 years having ownership, which previously was in the

name of Bharosa Nai and then it was recorded in the name of his sons Surajdeen @

Lupurra and Mangaldeen and thereafter the defendants are in possession of the

land. The suit has been filed on false allegations. It is also contended that against

the order of mutation, the plaintiffs never preferred any appeal. On inter alia

contentions, the suit was prayed to be dismissed.

4. Despite service of notice, defendant-7-State did not appear and was

proceeded ex-party.

5. On the basis of pleadings, learned trial Court framed three issues and

recorded evidence of the parties and after consideration of the same dismissed the

suit vide judgement and decree dated 06.05.2011 and held that the

appellants/plaintiffs are not successors of Bharosa Nai but defendants 1-6 are

successors of Bharosa Nai, who had two sons Surajdeen and Mangaldeen, now the

defendants 1-6 are successors of Surajdeen and Mangaldeen, and dismissed the

suit.

6. Plaintiffs 1-2 namely Santosh Kumar and Lallu only preferred the civil

appeal but other plaintiffs 3-7 did not prefer any appeal. Vide judgement and

decree dated 27.11.2013, learned first appellate Court has confirmed the judgement

and decree of trial Court, who also allowed two applications under Order 41 Rule

27 of CPC filed by the plaintiffs/appellants and after considering the additional

documents, held that these documents do not help to the case of the

plaintiffs/appellants.

7. Learned counsel for the appellants/plaintiffs 1-2 submits that after allowing

the applications under Order 41 Rule 27 of CPC, learned first appellate Court

ought to have considered the documents filed on behalf of the plaintiffs and matter

ought to have been remanded for trial afresh. Despite there being dispute about the

paternity, the learned courts below have not decided the same. She submits that

although the defendants are in possessions over the land for 65 years but they have

not claimed any right on the basis of adverse possession, therefore, the plaintiffs

being successors of Bharosa Nai are entitled for recovery of possession. With these

submissions she prays for admission of the second appeal.

8. Learned counsel for the respondents 1-6 supports the impugned judgement

and decree passed by learned Courts below and he submits that there is no

illegality in the judgment and decreed passed by learned Courts below and the

finding on the question of paternity is a pure finding of fact and is not liable to be

interfered in the limited scope of Section 100 of CPC.

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

10. In the present case, the plaintiffs have come with the case that the land in

question belonged to Bharosa Nai and they are successors of Bharosa Nai and the

name of Surajdeen and Mangaldeen was recorded wrongly in place of Bharosa Nai

in the revenue record of the year 1958-59 because the plaintiffs were not living in

the village at that time. It has also been stated on behalf of the plaintiffs that the

entry made in the revenue record does not give any right to the defendants.

11. Learned Courts below after having considered the documentary evidence

including the statements of plaintiffs' witnesses held that the plaintiffs are not

successors of Bharosa Nai but defendants' father Surajdeen Sen and Mangaldeen

Sen being sons of Bharosa Nai, their name was rightly recorded in the revenue

record 65 years ago, since then they are in possession of the land.

12. Learned first appellate Court although allowed the application under Order

41 Rule 27 of CPC filed by plaintiffs but while considering the additional

documents submitted along with the application under Order 41 Rule 27 of CPC,

the learned first appellate Court has in para 19 to 27 held that the additional

documents also do not help to the case of the plaintiffs. The entry made in the

revenue record of the year 1944-45 (Ex.D/6) clearly shows that Lupurra's father

was Bharosa Nai.

13. The finding on the question of paternity or on the question as to whether

the plaintiffs are successors of Bharosa Nai or the defendants are successors of

Bharosa Nai, is a pure finding of fact and cannot be interfered in the limited scope

of Section 100 of the CPC. Even otherwise, indisputably the name of defendants is

recorded in the revenue record for more than 65 years.

14. Accordingly this second appeal is dismissed in limine having no

involvement of any substantial question of law. However no order as to costs.

(DWARKA DHISH BANSAL) JUDGE sm

Digitally signed by SARSWATI MEHRA Date: 2022.09.28 15:25:19 +05'30'