Smt. Munni Bai vs Surju
2023 Latest Caselaw 5907 MP

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IN THE       HIGH COURT OF MADHYA PRADESH
                  AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 12th OF APRIL, 2023
              SECOND APPEAL No. 1163 of 2015
BETWEEN:-
1.   SMT. MUNNI BAI W/O MUNNALAL
     PAWAR, AGED ABOUT 40 YEARS,
     R/O MULTAI, TAH. MULTAI
     DISTRICT   BETUL    (MADHYA
     PRADESH)
2.   KU. RESHMA D/O MUNNALAL
     PAWAR, AGED ABOUT 20 YEARS,
     R/O MULTAI, TAH. MULTAI
     DISTRICT  BETUL   (MADHYA
     PRADESH)
3.   KU. GUDDAN D/O MUNNALAL
     PAWAR, AGED ABOUT 17 YEARS,
     MINOR THROUGH MOTHER AND
     NATURAL    GUARDIAN    SMT.
     MUNNI BAI R/O MULTAI, TAH.
     MULTAI    DISTRICT   BETUL
     (MADHYA PRADESH)
4.   GOLU S/O MUNNALAL PAWAR,
     AGED ABOUT 15 YEARS, MINOR
     THROUGH     MOTHER     AND
     NATURAL    GUARDIAN   SMT.
     MUNNI BAI R/O MULTAI, TAH.
     MULTAI    DISTRICT   BETUL
     (MADHYA PRADESH)
                                        .....APPELLANTS
(BY SHRI SHAILENDRA VERMA - ADVOCATE)
AND
1.   SURJU S/O JADDU, AGED ABOUT
     60 YEARS, R/O CHANDORAKHURD,
     TAHSIL MULTAI, DISTT. BETUL
     (MADHYA PRADESH)
2.   ANTU S/O BIRAJLAL PAWAR,
     AGED ABOUT 40 YEARS, R/O NEAR
     RAILWAY GATE, MUTAI, TAHSIL
     MULTAI, DISTT. BETUL (MADHYA
                                2


      PRADESH)
3.    BHIMRAO S/O BIRAJLAL PAWAR,
      AGED ABOUT 25 YEARS, R/O NEAR
      RAILWAY GATE, MUTAI, TAHSIL
      MULTAI, DISTT. BETUL (MADHYA
      PRADESH)
4.    TIMA S/O BIRAJLAL PAWAR,
      AGED ABOUT 25 YEARS, R/O NEAR
      RAILWAY GATE, MUTAI, TAHSIL
      MULTAI, DISTT. BETUL (MADHYA
      PRADESH)
5.    SUMITRA W/O BHURA PAWAR,
      AGED ABOUT 22 YEARS, R/O NEAR
      RAILWAY GATE, MUTAI, TAHSIL
      MULTAI, DISTT. BETUL (MADHYA
      PRADESH)
6.    SAHABLAL S/O JADDU PAWAR,
      AGED ABOUT 54 YEARS, R/O NEAR
      RAILWAY GATE, MUTAI, TAHSIL
      MULTAI, DISTT. BETUL (MADHYA
      PRADESH)
7.    JHUNNI BAI W/O NATHHU, AGED
      ABOUT 52 YEARS, R/O DAHUA,
      TAH. MULTAI, DISTT. BETUL
      (MADHYA PRADESH)
8.    SARJI W/O BALI PAWAR, AGED
      ABOUT    58    YEARS,     R/O
      MALEGAON, TAH. MULTAI, DISTT.
      BETUL (MADHYA PRADESH)
9.    SUSHILA W/O INDRAPAL PAWAR,
      AGED ABOUT 40 YEARS, R/O NEAR
      RAILWAY GATE, MULTAI, TAHSIL
      MULTAI, DISTT. BETUL (MADHYA
      PRADESH)
10.   SOJAR S/O NAGO PAWAR, AGED
      ABOUT 70 YEARS, R/O NEAR
      RAILWAY     GATE,   MULTAI,
      TAHSIL MULTAI, DISTT. BETUL
      (MADHYA PRADESH)
11.   BHIKYA S/O MITTHU PAWAR,
      AGED ABOUT 40 YEARS, R/O
      NEAR RAILWAY GATE, MULTAI,
      TAHSIL MULTAI, DISTT. BETUL
      (MADHYA PRADESH)
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12.   KUSUMA     W/O    PARASRAM
      PAWAR, AGED ABOUT 40 YEARS,
      R/O NEAR RAILWAY GATE,
      MULTAI, TAHSIL MULTAI, DISTT.
      BETUL (MADHYA PRADESH)
13.   RAMESH S/O BALIRAM PAWAR,
      AGED ABOUT 35 YEARS, R/O
      NEAR RAILWAY GATE, MULTAI,
      TAHSIL MULTAI, DISTT. BETUL
      (MADHYA PRADESH)
14.   THE STATE OF M.P., THROUGH
      COLLECTOR, BETUL (MADHYA
      PRADESH)
                                               .....RESPONDENTS
(RESPONDENT NO.1 BY SHRI BHANU PRATAP YADAV - ADVOCATE &
RESPONDENT NO.14/STATE BY MS. SHANTI TIWARI - PANEL LAWYER )

      This appeal coming on for admission this day, the court passed the
following:
                             JUDGMENT

This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 31/07/2015 passed by Second Additional District Judge, Multai, District Betul (M.P.) in Civil Appeal No.80A/2015 arising out of judgment and decree dated 29/09/2005 passed by Civil Judge Class-1, Multai in Civil Suit No.60A/1994.

2. The facts necessary for disposal of the present appeal in short are that the appellants are the defendants who have lost their case in respect of survey No.355 situated in village Multai, District Betul. The plaintiff filed a suit for declaration of title, partition, separate possession, permanent injunction etc. in respect of Survey Nos.9/3, 9/5, 9/7, 9/9 and 355 situated in Multai, District Betul.

3. The undisputed family tree is as under:-

Bodarya

Jaddu

Birajlal Sarju Sahablal Yashwant (Defendant No.1) (Plaintiff) (Defendant No.2) (Defendant No.4)

Munnalal

4. It was the case of the plaintiff that khasra Nos. 9/3, 9/5, 9/7, 9/9 and 355 are the ancestral properties and partition had not taken place. Whereas, it was the contention of the appellants that so far as khasra Nos.9/3, 9/5, 9/7, 9/9 are concerned, partition had already taken place amongst four brothers, namely, Birajlal, Surju, Sahablal and Yashwant and they are in possession of their respective shares for the last 20 - 25 years. So far as khasra No.355 is concerned, it was the case of the appellants/ defendants that Jaddu had purchased the said property out of his own personal income and accordingly, he had executed a Will in favour of the defendants/ appellants. Whereas, it was the case of the plaintiff that khasra No.355 was purchased by Jaddu from the income of the Joint Hindu Family property.

5. The Trial Court after framing issues and recording evidence held that the plaintiff has 7/30th share in khasra Nos.9/3, 9/5, 9/7, 9/9 and 355 and accordingly, it was held that the plaintiff can get it partitioned and get a separate possession of the same through the revenue officers.

6. Being aggrieved by the judgment and decree passed by the Trial Court, the appellants preferred an appeal which has been partially

allowed and it was held that khasra Nos.9/3, 9/5, 9/7, 9/9 were already partitioned and therefore, the suit in respect of khasra Nos.9/3, 9/5, 9/7, 9/9 was dismissed and it was held that every co-sharer are in possession of their respective lands for the last 20-25 years.

7. It is not out of place to mention here that this finding recorded by the First Appellate Court has not been challenged by the plaintiff. Furthermore, the plaintiff himself had admitted in his cross- examination that the partition of khasra No.9 had already taken place and all the four brothers are in possession of their respective shares i.e. khasra Nos.9/3, 9/5, 9/7, 9/9. Therefore, the finding with regard to the partition of khasra Nos.9/3, 9/5, 9/7, 9/9 has attained finality in absence of any challenge.

8. The controversy involved in the present case revolves around khasra No.355. It is the case of the plaintiff that khasra No.355 was purchased by Jaddu from the income of the Joint Hindu Family property whereas it is the case of the appellants that the khasra No.355 was purchased by Jaddu from his own personal income and thereafter he executed a Will.

9. Both the Courts below have given a concurrent finding of fact that the defendants have failed to prove that khasra No.355 was purchased by Jaddu from his own personal income. Furthermore, no attesting witness of Will was examined by the appellant.

10. Once the appellant has failed to prove the execution of Will by Jaddu in his favour, then each son of Jaddulal will be entitled for his share.

11. Accordingly, the First Appellate Court did not commit any

mistake by holding that the parties are having 1/6th share in khasra No.355.

12. It is submitted by the counsel for the appellant that the suit filed by the plaintiff was barred by limitation because once the partition had already taken place about 20-25 years back, then the same should have been challenged within a period of 3 or 12 years which was not done.

13. Considered the submission made by the counsel for the appellants.

14. The First Appellate Court has come to a conclusion that khasra Nos.9/3, 9/5, 9/7, 9/9 were already partitioned and the suit was dismissed.

15. Now the only question is whether the suit was filed within a period of limitation in respect of khasra No.355 or not?

16. Both the Courts below have held that khasra No.355 was a joint property of all the four sons of Jaddu and that has not been partitioned. Thus the plaintiff was one of the co-sharer of khasra No.355. It is not the case of the appellant that he had ousted the plaintiff from khasra No.355. By way of legal friction, it has to be presumed that every co- sharer is in joint possession of Joint Hindu Family property and a person who is in actual possession of the same shall be treated to be in possession on behalf of all the co-sharers.

17. Under these circumstances, it cannot be said that the suit filed by the plaintiff in respect of khasra No.355 was barred by limitation.

18. No other argument is advanced by the counsel for the appellants.

19. Since no substantial question of law arises in the present appeal, accordingly, the judgment and decree dated 31/07/2015 passed by

Second Additional District Judge, Multai, District Betul (M.P.) in Civil Appeal No.80A/2015, is hereby affirmed.

20. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE shubhankar Digitally signed by SHUBHANKAR MISHRA Date: 2023.04.13 17:53:18 +05'30'