Madhya Pradesh High Court
Dayaram vs Satyabhan @ Shatrughan on 13 February, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
SECOND APPEAL No.2339 of 2019
13th DAY OF FEBRUARY, 2023
Between:-
1.DAYARAM, S/O SURAJ PRASAD KORI,
AGED ABOUT 45 YEARS,
OCCUPATION-CULTIVATOR
2. RAJARAM, S/O SHRI SARJU PRASAD KORI,
AGED ABOUT 43 YEARS,
OCCUPATION-CULTIVATOR
3. RAMVISHWAS, S/O SHRI SARJU PRASAD
KORI, AGED ABOUT 65 YEARS,
OCCUPATION-CULTIVATOR
ALL ARE R/O VILLAGE- BHARHATA,
TAHSIL-UCHEHARA, DISTRICT-SATNA
M.P.
....................................APPELLANTS
(BY MR. A.S. PARIHAR-ADVOCATE)
AND
1.SATYABHAN @ SHATRUGHAN S/O RAM
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 2/14/2023
1:03:43 PM
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DULARE KORI, AGED ABOUT 42 YEARS, R/O.
VILL. PURAINIHA KRIPALPUR AT PRESENT
VILL. BHARHATA TEH. UCHEHARA (MADHYA
PRADESH)
2.SAVITRI @ MUNNI D/O SHRI RAMDULARE
KORI, AGED ABOUT 52 YEARS, VILLAGE
KORWARA TAH. UCHEHARA (MADHYA
PRADESH)
3.BUTAIYA D/O SHRI RAMDULARE KORI,
AGED ABOUT 40 YEARS, VILLAGE BIHTA TAH.
UCHEHARA (MADHYA PRADESH)
4.KALVATIYA D/O SHRI RAMDULARE KORI,
AGED ABOUT 44 YEARS, VILLAGE SAHA TAH.
RAGHURAJ NAGAR (MADHYA PRADESH)
5. PHULLI D/O BASUDEO KORI, AGED ABOUT
77 YEARS, VILLAGE UCHEHARA TAH.
RAGHURAJ NAGAR (MADHYA PRADESH)
6.DHOKHIYA D/O VASUDEO KORI, AGED
ABOUT 74 YEARS, VILLAGE NADANTOLA TAH.
AMARPATAN (MADHYA PRADESH)
7.STATE OF M.P. THROUGH COLLECTOR
DISTT. SATNA (MADHYA PRADESH)
......................RESPONDENTS
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 2/14/2023
1:03:43 PM
3
(BY SHRI R.N. SHAH-ADVOCATE FOR RESPONDENT-1
BY SHRI P.K. CHOURASIYA-PANEL LAWYER FOR RESPONDENT-7/STATE)
..........................................................................................................................................
This appeal coming on for admission on this day, the court passed the following:
ORDER
This second appeal has been preferred by appellants/plaintiffs challenging the
judgment and decree dated 25.07.2019 passed by 2nd Additional District Judge, Nagod,
District Satna in Civil Appeal no.100005A/2014, reversing the judgment and decree
dated 30.01.2014 passed by Civil Judge Class-II, Uchehara, District Satna in Civil Suit
no.42-A/2012, whereby learned trial Court decreed the suit filed by the plaintiffs, which
in appeal has been dismissed by learned first appellate Court.
2. In short the facts are that one Vasudeo was Bhoomiswami of the land in question
bearing in khasra no.230 area 0.972 hectare and khasra no.231 area 0.094 hectare, total
area 1.066 hectare, situated in Mauja Kundhari Khurd, Tahsil Uchehara, District Satna,
who was survived by three daughters namely Phulli, Dhokhiya (defendants 6-7) and
deceased Puniya, whose legal heirs are the defendants 2-5. The plaintiffs claiming
themselves to be owner/bhoomiswami and in possession of the suit land, on the basis of
registered Will dated 02.05.1997 (Ex.P/5) allegedly executed by Vasudeo (who died on
05.01.2002) instituted the suit for declaration of title and permanent injunction on
19.10.2012.
3. Defendants appeared and filed written statement denying the plaint allegations
and alleging the Will in question to be forged and fabricated document, claimed
themselves to be owner/bhoomiswami and in possession of the suit land, with the further
contention that just after death of Vasudeo, their names were also mutated in the revenue
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 2/14/2023
1:03:43 PM
record and the plaintiffs are not in possession of the land. Accordingly, they prayed for
dismissal of the suit.
4. Learned counsel for the appellants/plaintiffs submits that the learned first
appellate Court has only on the basis of delay in filing the suit on the basis of Will dated
02.05.1997, dismissed the suit for declaration of title and permanent injunction, whereas
learned both the Courts below have found the plaintiffs to be in possession of the land in
question. He further submits that the Will in question has clearly been proved by the
plaintiffs in accordance with the provisions contained in Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 and there was no
reason on record to set aside the judgment and decree of trial Court. He further submits
that possession over the land in question is with the plaintiffs regarding which the
defendants have already instituted the proceeding for dispossession. Accordingly, he
prays for admission of the appeal.
5. Learned Advocates appearing for the respondent 1 and State support the impugned
judgment and decree passed by learned first appellate Court and pray for dismissal of the
second appeal.
6. Heard learned counsel for the parties and perused the record.
7. From clear statement given by plaintiff Dayaram (PW-1) in para-10 of his cross
examination, it is clear that just after death of Vasudeo on 05.01.2002, name of
daughters of deceased bhoomiswami Vasudeo was mutated and as has been stated by
Dayaram that he himself raised objection in the mutation proceedings, therefore, it is
clear that he was well aware about the mutation of names of three daughters of Vasudeo.
In the present case, mutation is said to have been done in the year 2005 and the suit
disclosing alleged Will dated 02.05.1997 has been filed in the year 2012.
8. Learned first appellate Court has in its judgment observed that the plaintiffs have
not been able to satisfy the Court as to why they did not bring the civil suit within the
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 2/14/2023
1:03:43 PM
appropriate period even after the mutation of names of three daughters of Vasudeo in the
year 2005. Learned Courts below have also observed that the deceased was residing in
Village Bharhata, whereas both the witnesses are of the Village Kundhari, therefore and
in view of the other circumstances, the Will is surrounded by several suspicions, which
have not been removed by the plaintiffs. Learned first appellate Court in para-23 of its
judgement, observed that despite there being challenge on the part of the defendants, the
plaintiffs have also failed to prove thumb impression of Vasudeo as well as his
photograph on the Will,
9. In view of the aforesaid observations made by learned first appellate Court, in my
considered opinion, learned first appellate Court has not committed any illegality in
dismissing the appeal.
10. Resultantly, second appeal fails and is hereby dismissed in limine under Order 41
rule 11 CPC. However, no order as to the costs.
11. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
sh
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 2/14/2023
1:03:43 PM
