Leeladhar vs Thakur Ramadhar Singh
2023 Latest Caselaw 2048 MP

                                                   SA NO.717/2009

         IN THE HIGH COURT OF MADHYA PRADESH
                         AT JABALPUR

                          BEFORE
           HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                   ON THE 6th OF FEBRUARY, 2023

                   SECOND APPEAL No. 717 OF 2009

BETWEEN:-

    1.

LEELADHAR (DEAD) THROUGH LRs:

(A) SMT. SUMAN BAI RATHORE WD./O LATE LEEELADHAR RATHORE OCCUPATION HOUSE WIFE, AGED 57 YEARS

(B) HITESH RATHORE S/O LATE LEEELADHAR RATHORE, AGED 37 YEARS

(C) HEMANT RATHORE S/O LATE LEEELADHAR RATHORE, AGED 33 YEARS

(D) DIPTI D/O LATE LEEELADHAR RATHORE, AGED 35 YEARS

(E) NEELAM D/O LATE LEEELADHAR RATHORE

(ALL R/O AMARCHOWK, HOSHANGABAD, DISTT.

HOSHANGABAD, M.P.)

SA NO.717/2009

2. LALLUDHAR S/O LATE BHAGWANDAS TALI, AGED ABOUT 48 YEARS, R/O BALAGANJ MOHALLA, DISTT.

HOSHANGABAD, M.P.

.....APPELLANTS

(BY SHRI SIDDHARTH GULATEE-ADVOCATE)

AND

1. THAKUR RAMADHAR SINGH S/O VISHWANATH SINGH, AGED ABOUT 63 YEARS, JASALPUR TH. DI.

HOSHANGABAD, M.P.

2. SUNIL S/O LATE THAKUR BALWANT SINGH, AGED ABOUT 48 YEARS, R/O JALALABAD, PIPARIYA ROAD, NEAR BABAI ROAD NAKA, DISTT.

HOSHANGABAD, M.P.

A) SHIVMANGAL SINGH S/O LATE THAKUR BALWANT SINGH, AGED ABOUT 46 YEARS, JALALABAD, PIPARIYA ROAD, NEAR BABAI ROAD NAKA, DISTT. HOSHANGABAD, M.P.

B) RUDRA PRATAP SINGH S/O LATE THAKUR BALWANT SINGH, AGED ABOUT 44 YEARS, JALALABAD, PIPARIYA ROAD, NEAR BABAI ROAD NAKA, DISTT.HOSHANGABAD, M.P.

C) RAM NARESH S/O LATE THAKUR BALWANT SINGH, AGED ABOUT 42 YEARS, JALALABAD, PIPARIYA ROAD, NEAR BABAI ROAD NAKA, DISTT.HOSHANGABAD, M.P.

SA NO.717/2009

D) AMIT SINGH S/O LATE THAKUR BALWANT SINGH, AGED ABOUT 38 YEARS, JALALABAD, PIPARIYA ROAD, NEAR BABAI ROAD NAKA, DISTT.HOSHANGABAD, M.P.

E) ANIL SINGH S/O LATE THAKUR BALWANT SINGH, AGED ABOUT 28 YEARS, JALALABAD, PIPARIYA ROAD, NEAR BABAI ROAD NAKA, DISTT.HOSHANGABAD, M.P.

F) SMT.SUNITA D/O BALWANT SINGH, AGED ABOUT 41 YEARS, ANAND NAGAR, DISTT.HOSHANGABAD, M.P.

3. SMT. BHAG BAI W/O LATE THAKUR BRIJMOHAN SINGH, AGED ABOUT 80 YEARS, R/O NEAR DISTRICT HOSPITAL HOSHANGABAD, MAHARASTRA BHAWAN, BAJARIYA MOHALLA, HOSHANGABAD, M.P.

A) SHOBRAJ SINGH S/O LATE THAKUR BRIJMOHAN SINGH, AGED ABOUT 55 YEARS, R/O NEAR DISTRICT HOSPITAL HOSHANGABAD, MAHARASTRA BHAWAN, BAJARIYA MOHALLA, HOSHANGABAD, M.P.

B) SHARVAN SINGH S/O LATE THAKUR BRIJMOHAN SINGH, AGED ABOUT 47 YEARS, R/O NEAR DISTRICT HOSPITAL HOSHANGABAD, MAHARASTRA BHAWAN, BAJARIYA MOHALLA, HOSHANGABAD, M.P.

4. BHAGWAN DAS S/O RAMCHARAN, AGED ABOUT 93 YEARS, BALAGANJ MUHALLA, DISTT.HOSHANGABAD, M.P.

5. COLLECTOR / DISTRICT MAGISTRATE STATE OF M.P. DISTT.HOSHANGABAD

SA NO.717/2009

6. SMT.MADHURI TRIVEDI W/O P.N.TRIVEDI, R/O KORI GHAT, DISTT.HOSHANGABAD, M.P.

7. SMT. MAYA MISHRA W/O R.P.

MISHRA, R/O DISTT.BHOPAL, M.P. AT PRESENT R/O. JALALABAD NEAR BABAI NAKA IN FRONT OF S.P.

BANGLA, HOSHANGABAD, M.P.

8. SMT.TARADEVI MISHRA W/O VASUDEO MISHRA, R/O NEAR BABAI NAKA JALALABAD DISTT.HOSHANGABAD, M.P.

9. HARPRASAD VERMA S/O MANGAL PRASAD VERMA, R/O NEAR JALALABAD NEAR BABAI NAKA, RAIPUR, DISTT.HOSHANGABAD, M.P.

10. SMT. SHANTIDEVI DIXIT S/O RAMPRASAD, R/O JALALABAD NEAR BABAI NAKA, DISTT.

HOSHANGABAD, M.P.

11. INDRASEN CHAUDHARY S/O HARCHARAN CHOUDHARY, R/O JALALABAD NEAR BABIL NAKA, DISTT.HOSHANGABAD, M.P.

12. AYODHAYA PRASAD S/O KMALURAM DUBEY, R/O SANGAKHEDA KALA, TEH.BABAI, DISTT.HOSHANGABAD, M.P.

                                             SA NO.717/2009

    13.   KANCHEDILAL       SONI    S/O
          RAMCHARAN SONI, R/O SAKIN

BAJARIYA, PAPU MAHARAJ SQUAR,, DISTT. HOSHANGABAD, M.P.

14. LAXMIKANT DUBEY S/O RAM DAYAL DUBEY, R/O. NEAR SATRASTA THANA, DISTT.HOSHANGABAD , M.P.

15. MULAKRAJ S/O KHANCHAND PANJABI, R/O JUMERATI MUHALLA, DISTT. HOSHANGABAD, M.P.

16. ASHOK KUMAR S/O JAYNARAYAN PANDEY, R/O DISTRICT HUJUR, BHOPAL, PRESENT ADDRESS NEAR BABAI NAKA JALALABAD, DISTT.HOSHANGABAD.

17. SANTOSH KUMAR S/O JAYNARAYAN PANDEY, R/O DISTRICT HUJUR, BHOPAL, PRESENT ADDRESS NEAR BABAI NAKA JALALABAD, DISTT.HOSHANGABAD

18. PANDIT SITASHARAN SHARMA S/O LATE RAMLAL SHARMA, NEAR SANJEEVANI HOSPITAL SURAJGANJ, ITARSI, DISTT.HOSHANGABAD

19. ARUN KUMAR GHAI S/O SHRINATH GHAI, R/O GOKUL PETH, DISTT.NAGPUR, M.H

SA NO.717/2009

20. GAYAPRASAD S/O RAMNARAYAN BRAHMIN, R/O NAVADA, TEH.KHATEGAON, DISTT.DEWAS, M.P.

21. ABEDUR REHMAN SIDDIQQI S/O H.R.AHMED ALI SIDDIQQI, R/O INDORE, DISTT.INDORE AT PRESENT PRESENT ADDRESS NEAR BABAI NAKA JALALABAD, DISTRICT HOSHANGABAD, M.P.

22. SMT.AKHTAR SIDDIQUI W/O ABDEDUR REHMAN SIDDIQQI, R/O INDORE, DISTT.INDORE AT PRESENT JALABAD BABAI NAKA NEAR SANJEEVNI HOSPITAL HOSHANGABAD, M.P.

23. GULDAR SINGH S/O SHYAM SINGH JABAALPUR, JALALABAD BABAI NAKA, DISTT.HOSHANGABAD, MP.

24. MADHUR MISHRA S/O PREMNARAYAN MISHRA, R/O BABAI, TEH.BABAI, NEAR JALALABAD, DISTT.HOSHANGABAD

25. BRIJMOHAN GURU S/O RADHIKA PRASAD GURU, BABAI, TEH.BABAI, BABAI BUS STAND DISTT.HOSHANGABAD

SA NO.717/2009

26. CHANDRA BHUSHAN DUBEY S/O KAMTA PRASAD DUBEY JASALPUR, DISTT.HOSHANGABAD

27. NARMADA PRASAD S/O ONKAR PRASAD SAHU, R/O BACHVADA, DISTT. HOSHANGABAD

28. SMT.SATYAVATI DEVI SHRIVASTAVA W/O GANESH NARAYAN SHRIVASTAVA MANGALWARA MUHALLA, 525/3 BABAI NAKA DISTT.HOSHANGABAD

29. AMIT AGRAWAL, R/O DISTT.JABALPUR, M.P. PRESENT ADDRESS NEAR BABAI NAKA JALALABAD DISTR. HOSHANGABAD

30. ASHISH AGRAWAL S/O B.K.AGRAWAL DISTT.JABALPUR,PRESENT ADDRESS NEAR BABAI NAKA JALALABAD DISTR. HOSHANGABAD

31. PAWAN KUMAR S/O LATE DR.MAJOR SUNDAR LAL, AGED ABOUT 57 YEARS, BALAGHAT, DISTT.BALAGHAT

32. KAILASH S/O BHAGWANDAS, AGED ABOUT 47 YEARS.

33. RAJU S/O BHAGWANDAS, AGED ABOUT 45 YEARS, BALAGANJ

SA NO.717/2009

MUHALLA, DISTT.HOSHANGABAD, M.P.

34. VINOD KUMAR DUBEY S/O LATE LAXMIKANT DUBEY SADAR BAZAR, DISTT.HOSHANGABAD, M.P.

.....RESPONDENTS

-------------------------------------------------------------------------------------------------

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

ORDER

This second appeal has been preferred by the plaintiffs challenging the

judgment and decree dated 23.01.2009 passed by Additional Judge to the

Court of 1st Additional District Judge, Hoshangabad in Civil Appeal No.9-

A/2008 affirming the judgment and decree dated 22.12.2007 passed by 1st

Civil Judge Class-II, Hoshangabad in Civil Suit NO.14-A/2007, whereby

learned courts below have dismissed the suit filed for possession of land

khasra No.59 area 8.60 hectare situated in Village Jalalabad as well as for

mesne profit, which was amended showing the defendants 6-31 & 34 to be

encroachers (trespassers).

SA NO.717/2009

2. Learned counsel for the appellants submits that the plaintiffs being

twins, were born on 01.10.1960 in the family of Ramcharan, Imratlal and

Bhagwandas. The plaintiffs are sons of Bhagwandas and Ramcharan is their

grand father whereas Imratlal is uncle of the plaintiffs. Learned counsel

submits that because the plaintiffs took birth on 01.10.1960 and sale deed

was executed on 12.07.1961 (Ex.P/1), therefore, the plaintiffs being

coparceners, the sale deed could not have been executed, as such is void as

against rights of the plaintiffs.

3. Placing reliance on the decisions in the case of Rohit Chouhan vs.

Surinder Singh and Ors. (2013) 9 SCC 419; Vineeta Sharma vs. Rakesh

Sharma and Ors. (2020) 9 SCC 1 and Baital Singh and Ors. vs. Shrilal and

Ors. 2007 (4) MPLJ 477, learned counsel submits that the judgment and

decree passed by learned courts below, dismissing the suit on the ground that

the plaintiffs had no right by birth, are not sustainable. With these

submissions he prays for admission of the appeal.

4. Heard learned counsel for the appellants and perused the record.

5. From bare perusal of relief clause of the plaint, it is clear that the

plaintiffs have not even challenged the sale deed dated 12.07.1961 (Ex.P/1)

SA NO.717/2009

and have instituted the suit only for restoration of possession of the entire

land covered by the sale deed dated 12.07.1961 and even by way of

amendment no relief has been prayed in respect of the sale deed in question,

whereas the suit appears to have been filed in the year 1990 and by way of

amendment the plaintiffs have amended prayer clause to the effect that the

defendants 6-31 & 34 are encroachers (trespassers).

6. In view of the aforesaid relief claimed by the plaintiffs, the decisions

cited on behalf of the appellants in the case of Rohit Chouhan (supra),

Vineeta Sharma (supra) and Baital Singh (supra) do not give any help to

the appellants.

7. Apparently, the learned courts below after having considered the entire

material available on record and in view of the law laid down by this Court in

the case of Chandrakanta and anr. vs. Ashok Kumar and Ors. 2002(3) MPLJ

576 have held that the plaintiffs who were born after coming into force of the

Hindu Succession Act, 1956 had no right by birth and are not entitled for any

decree in their favour.

8. In view of the aforesaid, in my considered opinion the judgment and

decree passed by learned courts below do no suffer from any legal infirmity,

SA NO.717/2009

therefore, the second appeal fails and is hereby dismissed in limine.

However, no order as to costs.

9. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE

ss Digitally signed by SWETA SAHU Date: 2023.02.08 13:09:19 +05'30'