Madhya Pradesh High Court
Seeta vs Ramniwas on 28 April, 2023
Author: Sunita Yadav
SECOND APPEAL No. 728 of 2021
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 28th OF APRIL, 2023
SECOND APPEAL No. 728 of 2021
BETWEEN:-
SEETA S/O SHRI KUDERI, AGED ABOUT 76 YEARS,
1. OCCUPATION: KARSHI, R/O GRAM JLALGARH, THASIL
SABALGARH, DISTRICT MORENA (MADHYA PRADESH)
DWARIKA S/O GOPI, AGED ABOUT 72 YEARS, R/O GRAM
2. JALALGARH, TAHSIL SABALGARH, DISTRICT MORENA
(MADHYA PRADESH)
.....APPELLANT
(BY MR. BHUPENDRA SINGH DHAKAD - ADVOCATE)
AND
RAMNIWAS S/O SHRI GOPI, AGED ABOUT 56 YEARS, R/O GRAM
1. JLALGARH, SABALGARH, DISTRICT MORENA (MADHYA
PRADESH)
BRAJMOHAN S/O GOPI, AGED ABOUT 51 YEARS, R/O GRAM
2. JLALGARH, SABALGARH, DISTRICT MORENA (MADHYA
PRADESH)
RAMA D/O GOPI, AGED ABOUT 61 YEARS, R/O GRAM
JLALGARH, SABALGARH, DISTRICT MORENA, AT PRESENT
3.
MAHESHPURA COLONY, LASHKAR, GWALIOR (MADHYA
PRADESH)
PUSHPA D/O GOPI W/O NANDLAL, AGED ABOUT 53 YEARS, R/O
GRAM JLALGARH, SABALGARH, DISTRICT MORENA, AT
4.
PRESENT KOTSIRTHARA, TAHSIL KAILARAS, DISTRICT
MORENA (MADHYA PRADESH)
COLLECTOR THE STATE OF MADHYA PRADESH, MORENA
5.
(MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 5/3/2023
11:03:00 AM
SECOND APPEAL No. 728 of 2021
This appeal coming on for Admission this day, the court passed the
following:
JUDGMENT
Present second appeal under Section 100 of CPC has been filed against
the judgment and decree dated 31.03.2021 passed by Ist Additional District
Judge, Sabalgarh, District Morena (M.P.) in Civil Appeal No. 24/2018 affirming
the judgment and decree dated 29.09.2018 passed by the IV Civil Judge, Class-
II, Sabalgarh, District Morena in Civil Suit No.39-A/2017.
2. Factual matrix of the case in brief are that respondents No. 1 and
2/plaintiffs filed a civil suit against the appellants/defendants No.1 and 2 in
respect to disputed land bearing Survey No.635/2 rakwa 0.210 Hactare situated
at Village Jalalgarh, Tahsil Sabalgarh, District Morena on the basis of
preferential right that the disputed land was owned and occupied by father-Gopi
of respondents No.1 to 4 and appellant No.2. After the death of their father, they
became owner of 1/5 share each of the disputed land as per Hindu Succession
Act. The said disputed land has yet not been partioned. Joint ownership and
possession is mentioned in the revenue record. In such circumstances,
respondents No.1 and 2 have the preferential right to purchase his share of the
land from appellant No.2/defendant No.1 as per Section 22 of Hindu Succession
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 5/3/2023
11:03:00 AM
SECOND APPEAL No. 728 of 2021
Act. He is willing and ready to reduce the said land. He had also conveyed this
to the appellant No.2 in the year April, 2017, then he assured him that whenever
he would sell his share of the land to respondent No. 1 and 2 on the basis of
priority. Thereafter, appellant No. 2 sold his share to appellant No. 1-Seeta
without dividing it, whereas, the sold land was joint ownership and possession
land, therefore, co-partner has no right to sell the af
oresaid land to any third person i.e. appellant No.1 as per Hindu Succession Act.
3. The defendants no. 1 and 2 have filed their written Statement jointly and
denied the allegations of the plaint and inter-alia contended that it is an admitted
fact that during his life time, their father-Gopi had divided all his movable and
immovable property in front of the villagers and after partitioned, respondents
No. 1 to 4 and appellant No. 2 got their respective share of house and land. It is
further pleaded that after partitioned, appellant No.2-Dwarka sold his share to
appellant No. 1 by registered sale deed. therefore, he has sole domain to decide
that the aforesaid land would sell or not.
4. On the basis of the aforesaid pleadings, the learned Trial Court framed as
many as six issues in the matter and parties lead evidence to prove the said
issues in their favour. The learned Trial Court after appreciation of the evidence
made available on record, vide its judgment and decree dated 29.09.2018
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 5/3/2023
11:03:00 AM
SECOND APPEAL No. 728 of 2021
allowing the Suit filed by the plaintiffs/respondents No. 1 and 2 and decreed the
suit in their favour.
5. Being aggrieved by the aforesaid judgment of the trial court, the
appellants/plaintiffs preferred First Civil Appeal No.24/2018 before the Lower
Appellate Court who also dismissed the First appeal preferred by the appellants
and has affirmed the judgment and decree passed by the Trial Court, therefore,
appellants/plaintiffs has occasion to file this second appeal under Section 100 of
C.P.C.
6. Learned counsel for the appellants argued that suit and decree passed by
the Courts below are manifest illegal, contrary to law and record and are also
against the well settled principles of law, therefore, are liable to be set aside. It
is further argued that learned Courts below have erred in decreeing the suit with
respect to the disputed land. The learned Courts below have not cared to
consider that the appellant No.1 is the owner of disputed land on the basis of
registered sale deed executed by appellant No.2, but on the contrary, learned
trial Court directed the appellant No. 1 to sell the disputed land in favour of
plaintiffs/respondents No. 1 and 2 as per market value which is per se illegal. It
is further argued that after partitioned, appellant No.2-Dwarka sold his share to
appellant No. 1 by registered sale deed. therefore, he is sole domain to decide
that the aforesaid land would sell or not. Therefore, the judgment and decree
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 5/3/2023
11:03:00 AM
SECOND APPEAL No. 728 of 2021
passed by the Courts below and the findings recorded therein being based on
non-consideration of evidence and pleadings and being based on wrong
assumptions and contrary to law are not sustainable, therefore, present appeal be
allowed by setting aside the impugned judgments and decree passed by the
Courts below.
7. Heard.
8. The perusal of records reveals that the learned trial Court, upon due
appreciation of evidence on record, recorded the findings that plaintiff/
respondent has the preferential right to purchase the land in dispute from
appellant No.2/defendant No.1 as per Section 22 of Hindu Succession Act. The
learned trial court after appreciation of evidence held that the plaintiffs have
successfully proved that they are the owner of the disputed property as
described above in view of Section 22 of Hindu Succession Act, 1956. Counsel
for the appellants/defendants argued that since the disputed share of property
has already been sold to appellant No. 1-Seeta by appellant No.2-Dwarika and
therefore, the relief claimed by the respondents/plaintiffs could not be granted.
He relied upon the judgment in the case of Vishwanath Gupta and Ors. Vs.
Virendra Nath Agarwal and Ors. reported in 2007 (4) MPLJ 281. However,
above argument is not tenable in light of the judgment passed by this Court in
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 5/3/2023
11:03:00 AM
SECOND APPEAL No. 728 of 2021
the case of Ghewarwala Jain Vs. Hanuman Prasad Jain and ors. reported in
AIR 1981 MP 250, wherein, the Court has held as under:-
"In case the proposed transfer is effected by one of the
co-heirs in violation of the right conferred on his co-heirs by
Sub-section (1) the latter cannot certainly be without a remedy
because every legal right must necessarily carry with it a
remedy for enforcing the same. The remedy of the non-
alienating co-heirs, in such circumstances, will, in our
opinion, be to seek the intervention of the Court to enable
them to acquire the right which has been transferred away by
the other co-heir in violation of Sub-section (1) of Section 22.
Inasmuch as the section does not provide any special
procedure for seeking the said remedy, the ordinary procedure
for enforcement of any civil right has to be resorted to by the
co-heirs who wish to enforce their rights under Section 22(1);
in other words the remedy is by way of a regular civil suit
before the competent court."
Therefore, in view of the above, even when the disputed property has been sold
to appellant No.1-Seeta, the learned Courts below rightly held that the
respondents/platiffs are entitled to get the relief as claimed by them.
9. It is well established principle of law that this Court in exercise of power
under Section 100 of CPC cannot interfere with the findings of fact unless and
until they are perverse and without any record. The Supreme Court in the case
of S.Subramanian Vs. S. Ramasamy and others reported in (2019) 6 SCC 46
has held as under:
" As per a catena of the decisions of this Court, while deciding
the second appeal under Section100 CPC, the High Court is not
required to r e - a p p r e c i a t e the entire evidence on record and
to come to its own conclusion and the High Court cannot set
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 5/3/2023
11:03:00 AM
SECOND APPEAL No. 728 of 2021
aside the findings of facts recorded by both the courts below
when the findings recorded by both the courts below were on
appreciation of evidence. That is exactly what is done by the
High Court in the present case while deciding the second
appeals, which is not permissible under the law."
10. The Supreme Court in the case of Thimmaiah and others Vs. Ningamma
and another, reported in (2000) 7 SCC 409 has held as under:
"This Court has noted that the High Court has no jurisdiction to
entertain a second appeal "on the ground of an erroneous
findingof fact however gross or inexcusable the error may seem
to be". In other words, if there is some evidence and the
appreciation of the evidence is erroneous, a second appeal will
not lie."
11. In the light of above discussion, no substantial question of law arises in
the present case.
12. Ex-consequenti, the judgment and decree dated 31.03.2021 passed by the
Ist Additional District Judge, Sabalgarh, District Morena in Regular Civil
Appeal No. 24 of 2018 as well as the judgment and decree dated 29.09.2018
passed by IV Civil Judge, Class-II in Civil Suit No39-A/2017 are hereby
affirmed.
The Appeal fails and is hereby dismissed in limine.
(Sunita Yadav)
Judge
LJ*
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 5/3/2023
11:03:00 AM
