Madhya Pradesh High Court
Babu Shah vs Basheeran Bi on 21 August, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 21 st OF AUGUST, 2023
SECOND APPEAL No. 920 of 2017
BETWEEN:-
1. BABU SHAH S/O MEERAN SHAH, AGED ABOUT 62
YE A R S , VILL. AHMADPUR, TEH. SHYAMPUR
(MADHYA PRADESH)
2. ISHAQ SHAH S/O MEERAN SHAH, AGED ABOUT 60
YEAR S , OCCUPATION: FARMAR R/O VILLAGE
AHMADPUR, TAHSIL SHYAMPUR, DISTT. SEHORE
(MADHYA PRADESH)
3. ANWAR SHAH S/O BABU SHAH, AGED ABOUT 44
YEAR S , OCCUPATION: FARMAR R/O VILLAGE
AHMADPUR, TAHSIL SHYAMPUR, DISTT. SEHORE
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI AVINASH ZARGAR- ADVOCATE)
AND
1. BASHEERAN BI W/O CHUTKE SHAH, AGED ABOUT
82 YEARS, OCCUPATION: SELF EMPLYED IN
HOUSE NEAR MANZOOR ALI USTAD MALISH
WALES HOUSE, ALIPUR ASTHA (MADHYA
PRADESH)
2. RASSO BI @ RASEEDA BI W/O BABU SHAH D/O
CHUTKE SHAH, AGED ABOUT 57 YEARS,
OCCUPATION: SELF EMPLOYED R/O ALIPUR,
ASTHA, DISTT. SEHORE (MADHYA PRADESH)
3. SALEEMAN BI W/O LIYAKAT ALI D/O CHUTKE
SHAH, AGED ABOUT 54 YEARS, OCCUPATION:
SELF EMPLOYED R/O NEAR NAVODAYA SCHOOL,
VILLAGE SHYAMPUR DISTT. SEHORE (MADHYA
PRADESH)
4. MOHABBAT SHAH S/O KUDRAT SHAH, AGED
ABOUT 60 YEARS, OCCUPATION: SELF EMPLOYED
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 8/23/2023
10:57:13 AM
2
R/O VILLAGE AHMADPUR, TAHSIL SHYAMPUR,
DISTT. SEHORE (MADHYA PRADESH)
5. NASEER SHAH S/O KUDRAT SHAH, AGED ABOUT
57 YEARS, OCCUPATION: SELF EMPLOYED R/O
VILLAGE AHMADPUR, TAHSIL SHYAMPUR,
DISTT. SEHORE (MADHYA PRADESH)
6. ANWAR SHAH S/O KUDRAT SHAH, AGED ABOUT
54 YEARS, OCCUPATION: SELF EMPLOYED R/O
VILLAGE AHMADPUR, TAHSIL SHYAMPUR,
DISTT. SEHORE (MADHYA PRADESH)
7. THE STATE OF M.P. THR. COLLECTOR DISTT.
SEHORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GAJENDRA PARASHAR -PANEL LAWYER FOR RESPONDENT
7/STATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been preferred by the appellants/defendants 1-3,
challenging the judgment and decree dated 31.07.2017 passed by First
Additional District Judge, Sehore in Civil Appeal No.3-A/2016, affirming the
judgment and decree dated 14.03.2016 passed by Fifth Civil Judge Class-II
Sehore, in Civil Suit No.5-A/2015 whereby suit filed by the respondents 1-
3/plaintiffs for declaration of title, partition, separate possession and mesne
profit has been decreed by learned Courts below.
2. Learned counsel for the appellants submits that before the Courts
below the defendants 1-3 took plea that due to sale of the land by plaintiffs'
ancestor Chhutte Shah and defendants 4-6's ancestor Kudrat Shah the
defendants 1-3 are exclusive owner, but in absence of any documentary
evidence learned trial Court disbelieved the plea of defendants 1-3 and decreed
the suit. Learned counsel submits that in the civil appeal filed by the defendants
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 8/23/2023
10:57:13 AM
1-3 an application under Order 41 Rule 27 CPC was filed taking plea that the
land in question belonged to Miran Shah which was granted to him on Patta in
the year 1934, however copy of Patta was not filed before the first appellate
Court, therefore, learned first appellate Court also affirmed the judgment and
decree passed by trial Court. He further submits that in the second appeal an
application under Order 41 Rule 27 CPC has been filed annexing the Patta,
which shows that Miran Shah was exclusive owner of the property.
3. With the aforesaid submissions, learned counsel for the appellants
submits that because the disputed land is exclusively owned by Miran Shah and
now by the defendants 1-3, therefore, second appeal deserves to be admitted.
4. Heard learned counsel for the appellants and perused the record.
5. The plaintiffs have come with the case that the suit land belonged to
three brothers Miran Shah, Kudrat Shah and Chhutte Shah, therefore, all the
three brothers having 1/3 - 1/3 share each, are entitled for declaration and
separate possession after partition of the land. In rebuttal to this plea the
defendants 1-3 in the written statement had taken plea of purchase of the land
from Kudrat Shah and Chhutte Shah, which in absence of any document of sale
has been disbelieved by learned Courts below. Admittedly no document of sale
was filed before the Courts below.
6. So far as the question of filing of application under Order 41 Rule 27
CPC before the first appellate Court is concerned, admittedly no document of
sale or Patta was filed before the first appellate Court also, resultantly first
appellate Court has affirmed the findings of learned trial Court. Before this
Court in second appeal, an application under Order 41 Rule 27 CPC has been
filed annexing said Patta, however there is no pleading in the written statement in
Signature Not Verified
respect of grant of Patta in favour of Miran Shah.
Signed by: SATTYENDAR
NAGDEVE
Signing time: 8/23/2023
10:57:13 AM
7. It is well settled that no evidence in absence of pleadings can be
considered. This appeal is of the year 2017 and till now no application under
Order 6 Rule 17 CPC has been filed by the defendants. Further the Patta which
is of the year 1934 appears to have been granted in the name of Miran Shah in
the minority of Kudrat Shah and Chhutte Shah, therefore, at this stage, without
having any opportunity to the plaintiffs and defendants 4-6 in respect of such
Patta, nothing can be considered at the second appeal stage in respect of
veracity of the Patta.
8. Resultantly there being no substantial question of law involved in the
present second appeal, the same is hereby dismissed.
9. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
SN
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 8/23/2023
10:57:13 AM
