Kamla Prasad vs Smt. Krishna Devi
2023 Latest Caselaw 5403 MP

                             1               S.A. No.403/2009

IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 1st OF APRIL, 2023
              SECOND APPEAL No. 403 of 2009
BETWEEN:-

1.    KAMLA PRASAD S/O SITARAM, AGED
      ABOUT    77   YEARS,  OCCUPATION:
      AGRICULTURE R/O VILLAGE KHARHARI,
      TEHSIL RAIPUR, KARCHULIYAN, REWA
      (MADHYA PRADESH)



2.    DINKAR PRASAD S/O LATE SAKET PRASAD,
      AGED ABOUT 60 YEARS, OCCUPATION:
      AGRICULTURIST R/O VILLAGE KHARHARI,
      TEHSIL RAIPUR, KARCHULIYAN, REWA
      (MADHYA PRADESH)



3.    UPENDRA MANI SHUKLA S/O KAMLA
      PRASAD,  AGED  ABOUT   53    YEARS,
      OCCUPATION: SERVICE R/O VILLAGE
      KHARHARI,     TEHSIL        RAIPUR,
      KARCHULIYAN,    REWA      (MADHYA
      PRADESH)



4.    UMESH DUTT SHUKLA S/O KAMLA
      PRASAD,  AGED   ABOUT  45    YEARS,
      OCCUPATION: ADVOCATE R/O VILLAGE
      KHARHARI,      TEHSIL       RAIPUR,
      KARCHULIYAN,     REWA     (MADHYA
      PRADESH)



                                             .....APPELLANTS
(BY SHRI RAJENDRA SHRIVASTAVA - ADVOCATE)

AND
                             2               S.A. No.403/2009

1.   SMT. KRISHNA DEVI D/O RAM LAKHAN
     SHUKLA, W/O OF LATE SHRI RAJENDRA
     PRASAD TRIPATHI, AGED ABOUT 55
     YEARS, OCCUPATION: AGRICULTURE R/O
     VILLAGE DHAWAIYA, TEHSIL RAIPUR,
     DISTRICT REWA (MADHYA PRADESH)



2.   CHAKRA MANI SARAN S/O LATE SHIV
     RATAN RAM, AGED ABOUT 77 YEARS,
     OCCUPATION:  AGRICULTURIST   R/O
     VILLAGE KHARHARI, TEHSIL RAIPUR,
     KARCHULIYAN,   REWA     (MADHYA
     PRADESH)



3.   RAMAKANT    S/O    LATE MAHAVEER
     PRASAD,  AGED    ABOUT  68    YEARS,
     OCCUPATION: SERVICE R/O VILLAGE
     KHARHARI,       TEHSIL       RAIPUR,
     KARCHULIYAN,      REWA     (MADHYA
     PRADESH)



4.   SMT. GOMTI D/O OF LATE SHRI SAKET
     PRASAD W/O UDIT NARAYAN PANDEY
     OCCUPATION: HOUSEWIFE R/O VILLAGE
     KHARHARI,      TEHSIL      RAIPUR,
     KARCHULIYAN,    REWA     (MADHYA
     PRADESH)



5.   SMT. GANGOTRI W/O LATE RAMPAL
     SHUKLA OCCUPATION: HOUSEWIFE R/O
     VILLAGE KHARHARI, TEHSIL RAIPUR,
     KARCHULIYAN,    REWA    (MADHYA
     PRADESH)



6.   SMT. PATUA D/O OF LATE SHRI
     MAHAVEER PRASAD W/O RAM BHUVAN
     R/O VILLAGE MAHIYA, TAHSIL RAIPUR
                                   3                    S.A. No.403/2009

     KARCHULIYA REWA (MADHYA PRADESH)



7.   STATE OF MADHYA PRADESH THROUGH
     ITS  COLLECTOR   DISTRICT  REWA
     (MADHYA PRADESH)



                                                     .....RESPONDENTS
(SHRI CHANDRAHAS DUBEY - ADVOCATE FOR RESPONDENT NO.1)
      This appeal coming on for hearing this day, the court passed the

following:

                               ORDER

This second appeal under Section 100 of C.P.C. has been filed against the judgment and decree dated 25.02.2009 passed by the Second Additional District Judge Rewa in Civil Appeal No.120-A/2007 arising out of judgment and decree dated 25.09.2007 passed by Third Civil Judge, Class-I, Rewa in Civil Suit No.38-A/2005.

2. The facts necessary for disposal of the present appeal in short are that Sitaram and Shivratan Ram were the sons of Narbadaprasad. Mahaveer Prasad, Saket Prasad, Ramlakhan and Kamla Prasad are sons of Sitaram. Kamla Prasad is still alive whereas other sons of Sitaram namely Mahaveer Prasad, Saket Prasad and Ramlakhan have expired. Chakrapani Prasad S/o Shivratan Ram is still alive. The family tree is as under:

3. According to the plaintiff, mutual family settlement took place amongst the sons of Sitaram in the year 1939-40. The plaintiff is the daughter of Ramlakhan, one of the sons of Sitaram.

4. It is fairly conceded by the counsel for the appellants that the property in dispute was an ancestral property. However, it was claimed that Ramlakhan, the father of the plaintiff had executed a Will in favour of Dinkar Prasad, Upendramani Shukla and Umesh Dutt Shukla (appellants No.2, 3 & 4). It was claimed that by virtue of the Will, the appellants are in possession of the property in dispute.

5. The trial Court held that the Will was found proved and accordingly, the suit filed by the plaintiff Smt. Krishna Devi was dismissed.

6. Being aggrieved by the judgment and decree passed by the trial Court, respondent No.1 Krishna Devi preferred an appeal which has been allowed and the Will executed by Ramlakhan in favour of appellants Nos.2, 3 and 4 was not found to be proved.

7. It is submitted by the counsel for the appellants that since the appellants are in possession of the property in dispute from the date of death of Ramlakhan, therefore, they have perfected their title by way of adverse possession.

8. Per contra, it is submitted by the counsel for respondent No.1 that it is well established principle of law that a co-sharer is treated to be in joint possession and unless and until the ouster is proved, the person, who is in actual possession is to be treated in possession on behalf of all the co-sharers and therefore, no question of adverse possession would arise.

9. The appellants have proposed the following substantial questions of law:

(A) Whether on the pleadings and the material brought by the defendants/appellants, the first appellate court was right in holding that the case of adverse possession was not made by the defendants, more so when such findings was arrived at in resersal findings of the trial court?

(B) Whether the appellate court, while reversing a finding of fact about adverse possession came in to the close quarter with the reasonings assigned by the trial court and then assigned its own reasons for arriving at a different findings ?

(C) Whether the learned appellate court rightly decree the suit in favour of the plaintiff, where the plaintiff did not produce any documentary evidence and the oral evidence adduced by her was conflicting in nature and hence, unworthy of reliance by trial court?

11. Heard the learned counsel for the parties.

12. In order to prove adverse possession, the appellants were required to prove that their possession was open, hostile and animus to the true owner. In the defence, they were claiming their possession on account of a Will executed by Ramlakhan and the Will has not been found to be proved. Undisputedly, the plaintiff is a co-sharer and in absence of any ouster, it cannot be said that the appellants have perfected their title by way of adverse possession because the actual possession of the appellants is to be treated on behalf of other co-sharers also.

13. As no substantial question of law arises in the present appeal, the judgment and decree dated 25.02.2009 passed by the Second Additional District Judge Rewa in Civil Appeal No.120-A/2007 is hereby affirmed.

14. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE vc

VARSHA CHOURASIYA 2023.04.03 17:53:37 +05'30'