Annapurna Prasad vs Rajkishore
2023 Latest Caselaw 20370 MP

Madhya Pradesh High Court

Annapurna Prasad vs Rajkishore on 4 December, 2023

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

                                                           1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                             ON THE 4 th OF DECEMBER, 2023
                                            SECOND APPEAL No. 1929 of 2022

                          BETWEEN:-
                          ANNAPURNA PRASAD S/O LATE SHRI RAM BALAK,
                          AGED      ABOUT       75     YEARS, OCCUPATION:
                          AGRICULTURIST, R/O VILLAGE JERUKA TEHSIL HUZUR
                          DISTRICT REWA M.P. (MADHYA PRADESH)

                                                                                       .....APPELLANT
                          (BY SHRI V.S. CHOUDHARY - ADVOCATE)

                          AND
                          1.    RAJKISHORE S/O LATE SHRI RAM BALAK, AGED
                                ABOUT 69 YEARS, OCCUPATION: AGRICULTURIST
                                VILLAGE JERUKA TEHSIL HUZUR DISTRICT
                                REWA M.P. (MADHYA PRADESH)

                          2.    THE STATE OF MADHYA PRADESH THROUGH
                                THE COLLECTOR DISTRICT REWA (MADHYA
                                PRADESH)

                                                                                    .....RESPONDENTS
                          (SHRI PRADEEP DWIVEDI - PANEL LAWYER FOR RESPONDENT
                          2/STATE)

                                This appeal coming on for admission this day, th e court passed the
                          following:
                                                            ORDER

This second appeal has been preferred by the appellant/defendant 1 challenging the judgment and decree dtd. 26.07.2022 passed by 3rd District Judge, Rewa in RCA No.1900011/2015 affirming the judgment and decree dtd. 10.02.2015 passed by 8th Civil Judge Class-II, Rewa in civil suit No.58- A/2014 whereby respondent 1/plaintiff's suit for declaration of title over 1/2

share and entitlement of partition has been decreed in respect of agricultural land khasra No. 264/2, 265/2 and 530.

2. Learned counsel for the appellant/defendant 1 submits that the land in question belonged to plaintiff and defendant 1's father Rambalak, who has already died. Leaned counsel submits that even in the life time, father-Shri Rambalak effected partition by way of registered document of partition dtd. 16.10.1985, whereby he gave 1/3rd - 1/3rd land to the plaintiff and defendant and 1/3rd share kept with him, therefore, no further partition can take place. He further submits that although before trial court no document of partition and mutation was filed by the defendant 1, but by filing application under Order 41

Rule 27 CPC, both the documents were filed before first appellate Court, which have been refused by learned first appellate court on the ground of delay. Learned counsel submits that the document of registered partition as well as the order of mutation ought to have been taken on record by first appellate court. With the aforesaid submissions, he prays for admission of the second appeal.

3. Heard learned counsel for the appellant/defendant 1 and perused the record.

4. Undisputedly, suit property belonged to father-Rambalak. The defendant in para 4 & 5 of the written statement has pleaded that father- Rambalak in his life time gave 1/3rd - 1/3rd share to plaintiff and defendant 1 and remaining 1/3rd share was kept with him, which he gave to the defendant 1 in his life time, therefore, the plaintiff is not entitled for 1/2 share in the suit property.

5. If the documents filed before the first appellate court by way of application under Order 41 Rule 27 CPC are considered, the document of partition demonstrates that 2/3 share was given to defendant 1 and remaining 1/3

share was kept by father with him and nothing was given to the plaintiff. As such, it can be said that there is no pleading in the written statement in consonance of the aforesaid documents. First appellate court while considering the aforesaid aspect in para 19 and 20 of its judgment, has dismissed the application under Order 41 Rule 27 CPC. It is well settled that no amount of evidence can be seen in absence of pleadings. Apparently, the documents filed along with the application under Order 41 Rule 27 CPC are not in consonance with the pleadings already made in para 4 & 5 of the written statement.

6. As such, if the entire property is considered to be belonging to father Rambalak, then after his death, in absence of any document of transfer of land in favour of appellant/defendant 1, both the brothers i.e. plaintiff and defendant 1 would succeed the property having equal share.

7. In view of the aforesaid discussion, in my considered opinion learned courts below do not appear to have committed any illegality in holding the plaintiff and defendant 1 to be share holder of 1/2 - 1/2 share in the suit property.

8. Resultantly, in absence of any substantial question of law, this second appeal fails and is hereby dismissed.

9. Pending application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE ss