Tejram vs Vachhala Bai
2023 Latest Caselaw 2762 MP

                                                                               SA NO.1222/2019

                                     IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR

                                                      BEFORE
                                       HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                                              ON THE 15th OF FEBRUARY, 2023

                                              SECOND APPEAL No. 1222 OF 2019

                          BETWEEN:-

                                       TEJRAM S/O LAKSHMAN DOBLE, AGED
                                       ABOUT 50 YEARS, OCCUPATION: SELF
                                       EMPLOYED,   R/O   RAJNA,  TAHSIL
                                       PANDHURNA, DISTRICT CHHINDWARA
                                       (MADHYA PRADESH)

                                                                          .....APPELLANT

                          (BY SHRI JAIDEEP SIRPURKAR-ADVOCATE)

                          AND

                                1.     VACHHALA BAI W/O BABURAO RAUT,
                                       AGED ABOUT 63 YEARS, R/O LANGHA
                                       TAHSIL   PANDHURNA,     DISTRICT
                                       CHHINDWARA (MADHYA PRADESH)

                                2.     STATE OF MADHYA PRADESH THR. THE
                                       COLLECTOR      DISTT-CHHINDWARA
                                       (MADHYA PRADESH)

                                                                     .....RESPONDENTS




                          1


Signature Not Verified
Signed by: SWETA SAHU
Signing time: 2/16/2023
5:32:51 PM
                                                                                                          SA NO.1222/2019

                          (MS. KAMLESH TAMRAKAR-PANEL                                    LAWYER           FOR
                          RESPONDENT 2/STATE)

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

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

                                                                 ORDER

This second appeal has been preferred by defendant 1-Tejram

challenging the judgment and decree dated 01.02.2019 passed by Additional

District Judge, Sausar, District Chhindwara in civil appeal No.62-A/2014

affirming the judgment and decree dated 30.08.2014 passed by Civil Judge

Class-II, Pandhurna, District Chhindwara in civil suit No.17-A/2011 and 75-

A/2012.

2. Undisputedly, the land in question belonged to father of the plaintiff-

Vachhalabai and defendant 1-Tejram, namely Laxman and after death of

Laxman and his wife Sundarbai, there are only two legal heirs i.e. the

plaintiff-Vachhalabai and defendant 1-Tejram. On this premise, the

plaintiff/respondent 1 instituted a civil suit for declaration of title and

restoration of possession over 1/2 share (bearing civil suit No.17-A/2011).

Signature Not Verified Signed by: SWETA SAHU Signing time: 2/16/2023 5:32:51 PM SA NO.1222/2019

3. Subsequently, the defendant 1-Tejram also filed separate suit bearing

civil suit no.75-A/2012 for declaration of title and permanent injunction

claiming himself to be exclusive owner of the entire land on the basis of

family settlement, as well as on the basis of relinquishment of share by

plaintiff-Vachhalabai.

4. Learned trial Court consolidated both the aforesaid civil suits and

recorded evidence of the parties and after due consideration of the same vide

judgment and decree dated 30.08.2014 decreed the suit (17-A/2011) filed by

respondent 1/plaintiff-Vachhalabai and dismissed the civil suit No.75-A/2012

filed by Tejram.

5. Although against the judgment and decree passed in consolidated two

suits, two civil appeals were required to be filed but the defendant 1 of the

civil suit No.17-A/2011 (Tejram) preferred only one and single appeal

challenging the judgment and decree passed in both the civil suits, which by

the first appellate Court has been dismissed vide judgment and decree dated

01.02.2019 passed in civil appeal No.62-A/2014.

6. Learned counsel for the appellant/defendant 1 submits that since after

death of father in the year 1990, the plaintiff-Vachhalabai was claiming for

Signature Not Verified Signed by: SWETA SAHU Signing time: 2/16/2023 5:32:51 PM SA NO.1222/2019

partition, but infact it was denied by Tejram, which is clear from para 12 of

the statement made by the plaintiff herself. He further submits that after death

of father-Laxman, the plaintiff-Vachhalabai relinquished her share in the suit

property, as such, the defendant 1-Tejram was exclusive owner/

bhoomiswami and in possession of the land in question. With these

submissions, he prays for admission of the second appeal. In support of his

contentions, learned counsel for the appellant placed reliance on the decision

in the case of Shankar vs. Radha Bai 2015(1) MPLJ 385.

7. Heard learned counsel for the appellant and perused the record.

8. It is well settled that, if two suits are filed, even though they are

consolidated, then also, two separate appeals are required to be filed and one

appeal, filed against the judgment passed in two consolidated civil suits, is

not maintainable. However, learned counsel for the appellant submits that he

is challenging the judgment and decree passed in civil suit No.17-A/2011.

9. Learned both the Courts below have after due consideration of the

material available on record held that in existing facts and circumstances of

the case, the suit filed by plaintiff-Vachhalabai cannot be said to be barred by

limitation. It has also been held that there is no document of relinquishment

Signature Not Verified Signed by: SWETA SAHU Signing time: 2/16/2023 5:32:51 PM SA NO.1222/2019

by plaintiff-Vachhlabai in favour of defendant Tejram, which could have

been done only by way of registered document. As such learned courts below

have not committed any illegality in holding that the defendant is not

exclusive owner on the basis of alleged relinquishment of share or family

settlement.

10. In my considered opinion because plaintiff and defendant both are

claiming rights through their father, therefore, unless the property is divided

in accordance with law or the defendant asserts and proves title by adverse

possession, the suit for partition and separate possession over 1/2 share

cannot be said to be barred by limitation.

11. Accordingly, there being no involvement of substantial question of law,

the second appeal fails and is hereby dismissed in limine. However, no order

as to costs.

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

(DWARKA DHISH BANSAL) JUDGE

ss

Signature Not Verified Signed by: SWETA SAHU Signing time: 2/16/2023 5:32:51 PM