Madhya Pradesh High Court
Roshan Lal vs Ashok Kumar on 12 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 12th OF DECEMBER, 2023
SECOND APPEAL No. 1268 of 2011
BETWEEN:-
ASHOK KUMAR S/O SHRI ROSHANLAL
GOSWAMI, AGED ABOUT 41 YEARS, VILL.
PURVA TEH. & DISTT. SINGROULI (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI CHANDRAHAS DUBEY - ADVOCATE)
AND
1. ROSHANLAL (DEAD) THR. LR:
BASANTI GOSWAMI W/O LATE SHRI
ROSHANLAL GOSWAMI R/O VILLAGE PURWA,
TAHSIL-DEVSAR, DISTT. SINGRAULI
(MADHYA PRADESH)
2. RAMSAROJ S/O ROSHANLAL GOSWAMI, AGED
ABOUT 31 YEARS, VILL. PURWA, TAHSIL
DEVSAR, DISTT. SINGROULI (MADHYA
PRADESH)
2
3. RAMSUKH S/O ROSHANLAL GOSWAMI, AGED
ABOUT 29 YEARS, VILL. PURWA, TAHSIL
DEVSAR, DISTT. SINGROULI (MADHYA
PRADESH)
4. RAMHARSH S/O ROSHANLAL GOSWAMI,
AGED ABOUT 23 YEARS, VILL. PURWA,
TAHSIL DEVSAR, DISTT. SINGROULI
(MADHYA PRADESH)
5. STATE OF MADHYA PRADESH THR.
COLLECTOR / DISTRICT MAGISTRATE
SINGHROULI (MADHYA PRADESH)
6. BHAGWANT SINGH S/O KEDAR PATEL, AGED
ABOUT 72 YEARS, VILL. BHARUHA, TAH. &
DISTT. SINGROULI (MADHYA PRADESH)
7. SHRIPAL S/O LALMAN GOSWAMI, AGED
ABOUT 57 YEARS, VILL. PURWA, TAHSIL
DEVSAR, DISTT. SINGROULI (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI A.K. SINGH - ADVOCATE)
SECOND APPEAL No. 1062 of 2011
BETWEEN:-
1. ROSHAN LAL (DEAD) THR. LR:
SMT. BASANTI WD/O LATE SHRI ROSHANLAL,
AGED ABOUT 70 YEARS R/O VILLAGE PURWA,
TAHSIL-DEOSAR, DISTT. SINGRAULI
(MADHYA PRADESH)
3
2. RAMSAROJ S/O ROSHAN LAL GOSWAMI,
AGED ABOUT 31 YEARS, VILL. PURWA, TAH.
DEOSAR, DISTT. SINGRAULI (MADHYA
PRADESH)
3. RAMSUKH S/O ROSHAN LAL GOSWAMI, AGED
ABOUT 29 YEARS, VILL. PURWA, TAH.
DEOSAR, DISTT. SINGRAULI (MADHYA
PRADESH)
4. RAMHARSH S/O ROSHAN LAL GOSWAMI,
AGED ABOUT 23 YEARS, VILL. PURWA, TAH.
DEOSAR, DISTT. SINGRAULI (MADHYA
PRADESH)
5. SRIPAL S/O LALMAN GOSWAMI, AGED ABOUT
57 YEARS, VILL. PURWA, TAH. DEOSAR,
DISTT. SINGRAULI (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI A.K. SINGH - ADVOCATE)
AND
1. ASHOK KUMAR S/O ROSHAN LAL GOSWAMI,
AGED ABOUT 41 YEARS, OCCUPATION:
SERVICE VILL PURWA TAH DEOSAR, DISTT.
SINGRAULI (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THR.
COLLECTOR / DISTRICT MAGISTRATE
SINGHROULI (MADHYA PRADESH)
3. BHAGWANT S/O KEDAR PATEL, AGED ABOUT
72 YEARS, VILL. BHARUHA, TAH. & DISTT.
SINGRAULI (MADHYA PRADESH)
.....RESPONDENTS
4
(BY SHRI CHANDRAHAS DUBEY - ADVOCATE)
------------------------------------------------------------------------------------------------
These appeals coming on for admission this day, the court passed
the following:
ORDER
For the sake of convenience common order is passed in both the
second appeals (SA Nos.1268/2011 and 1062/2011).
2. Second appeal No.1268/2011 has been filed by
appellant/plaintiff-Ashok Kumar challenging the judgment and decree
dtd. 09.09.2011 passed by Additional District Judge, Waidhan, Distt.
Singrauli in civil appeal No.7-A/2011 reversing the judgment and
decree dtd. 05.04.2007 passed by Additional Judge to the Court of
Civil Judge Class-I, Deosar, Distt. Sidhi in civil suit No.20-A/2003,
whereby trial court dismissed the suit in its entirety, which in civil
appeal has been decreed partly in respect of property mentioned in
schedule (Ka) holding the plaintiff to be entitled for 1/5 share along
with defendants 1-4.
3. Second appeal No.1062/2011 has been preferred by defendants
1-4 & 7 challenging the judgment and decree dtd. 09.09.2011 passed
by first appellate Court whereby plaintiff has been held to be entitled
for 1/5 share in the suit property mentioned in schedule (Ka).
4. Learned counsel for the appellant/plaintiff (in SA No.1268/2011)
submits that learned courts below have committed illegality in
dismissing the suit in respect of the property shown in Schedule
(Kha), which was purchased in the name of defendants from income
of joint Hindu family property and after sale of property belonging to
joint family. He submits that learned courts below have committed
illegality in dismissing the suit in respect of property mentioned in
Schedule (Kha) without taking into consideration the admissions of
defendant 1-Roshanlal. With the aforesaid submissions, he prays for
admission of the second appeal No.1268/2011.
5. Learned counsel appearing for the appellants/defendants (in SA
No.1062/2011) submits that partition had taken place previously in
which plaintiff was given certain lands of survey No.492 area 21
dismil, survey No.60 area 0.13 dismil and 495/3 area 1 acre and a
house is also constructed on the land survey No.492, which is in
possession of the plaintiff. Accordingly, he submits that first appellate
Court has committed illegality in decreeing the suit, even in respect of
the property mentioned in Schedule (Ka). With these submissions, he
prays for admission of the second appeal No.1062/2011.
6. Heard learned counsel for the parties and perused the record.
7. The plaintiff has come with the case that the suit property/land
mentioned in Schedule (Ka) area 12.48 acre is ancestral property of
the plaintiff and defendants, in which he is having equal share.
Similarly, in respect of the property/land mentioned in Schedule (Kha)
he stated that it was purchased in the name of defendants from the
income of joint Hindu family and after sale of the ancestral property,
therefore, he being member of the joint Hindu family, is having equal
right in the suit property and no partition had taken place in the
knowledge of the plaintiff because he was in service since after the
year 1985. As against the case of plaintiff, the defendants contended
that the plaintiff left the house in the year 1985 and he was given the
share at that time and now he has no share in the suit property.
Denying entitlement of the plaintiff in both the properties mentioned
in Schedule (Ka) and (Kha), the suit was prayed to be dismissed.
8. Learned courts below on the basis of evidence available on
record held that the plaintiff is entitled for 1/5 share in the suit
property/land mentioned in Schedule (Ka) and has failed to prove that
the land/property mentioned in Schedule (Kha) was purchased from
the income of joint Hindu family or after sale of ancestral property.
9. After arguments at length, learned counsel for the plaintiff has
failed to point any evidence in respect of purchase of property from
the income of joint family and after sale of ancestral property and
even there is no admission in the oral evidence also, therefore, in my
considered opinion learned first appellate court does not appear to
have committed any illegality in holding the plaintiff to be entitled for
1/5 share, only in the property mentioned in Schedule (Ka).
10. Similarly learned counsel appearing for the defendants 1-4
/appellants have also failed to point out any admissible evidence
showing effecting of partition and falling of land of Survey No.492,
60 and 495/3 in the share of plaintiff.
11. As such, upon consideration of the case of defendants in respect
of partition and giving of share to the plaintiff, learned first appellate
court does not appear to have committed any illegality in holding the
plaintiff to be entitled for 1/5 share in the lands mentioned in
Schedule (Ka).
12. Resultantly, this Court does not find any substantial question of
law involved in both the second appeals.
13. Accordingly, in absence of any substantial question of law and
declining interference in the judgment and decree passed by courts
below, both the second appeals are dismissed.
14. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
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