Babulal vs Shantabai
2023 Latest Caselaw 448 MP

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IN THE HIGH COURT OF MADHYA PRADESH
              AT I N D O R E
                       BEFORE
        HON'BLE SHRI JUSTICE VIVEK RUSIA

             ON THE 9th OF JANUARY, 2023

            SECOND APPEAL No. 2712 of 2022

BETWEEN:-
BABULAL S/O PRAHLAD PATIDAR, AGED ABOUT
45 YEARS, OCCUPATION: FARMER, R/O GRAM
GURADIYAKALA, TEHSIL BAGLI, DISTRICT
DEWAS (MADHYA PRADESH)
                                        .....APPELLANT
(BY SHRI RISHI SHRIVASTAVA-ADVOCATE)

AND
   SHANTABAI W/O PRAHLAD PATIDAR, AGED
   ABOUT 60 YEARS, OCCUPATION: HOUSE
   WIFE, R/O GRAM GURADIYAKALA, TEHSIL
1.
   BAGLI, PRESENT ADD. DREAMLAND COLONY
   HATPIPLIYA DISTRICT DEWAS (MADHYA
   PRADESH)
   SHEKHAR S/O SHANKARLAL YADAV, AGED
   ABOUT 30 YEARS, OCCUPATION: FARMER,
2.
   R/O HATPIPLIYA DISTRICT DEWAS (MADHYA
   PRADESH)
   STATE OF MADHYA PRADESH THROUGH
   SARPANCH/ SAVCHIV GRAM PANCHAYAT
3.
   GURADIYAKALA, TEH. BAGLI, DISTRICT
   DEWAS (MADHYA PRADESH)
   YASHWANT S/O PRAHLAD PATIDAR, AGED
4. ABOUT 37 YEARS, OCCUPATION: FARMER R/O
   HATPIPLIYA, DISTRICT DEWAS (M.P.)
   MANOHAR S/O PRAHLAD PATIDAR DECD.
A THR LRS RITU W/O MANOHAR PATIDAR,
. AGED ABOUT 30 YEARS, R/O HATPIPLIYA
   DISTRICT DEWAS (MADHYA PRADESH)
   MANOHAR S/O PRAHLAD PATIDAR DECD.
   THR LRS VAIBHAV MINOR THR GUARDIAN
B.
   MOTHER MRS. RITU PATI HATPIPLIYA
   DISTRICT DEWAS (MADHYA PRADESH)
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   MANOHAR S/O PRAHLAD PATIDAR DECD.
   THR LRS KHUSHI MINOR THR GUARDIAN
7.
   MOTHER MRS. RITU PATI HATPIPLIYA
   DISTRICT DEWAS (MADHYA PRADESH)
                                                 .....RESPONDENTS

This appeal coming on for orders this day, the court passed the
following:
                                   ORDER

This Second Appeal has been filed by the plaintiff against the judgment and decree dated 01.10.2022 passed by Second District Judge, Tehsil- Bagli, District Dewas in Regular Civil Appeal No.04/2021 whereby the judgment and decree dated 09.08.2021 passed by Civil Judge Class-II Junior Division, Bagli District Dewas in RCS/A/10/2018 in favour of the plaintiff has been set aside and suit has been dismissed.

Facts of the case are as under:

[2] The plaintiff has filed Civil Suit for declaration and permanent injunction in respect of house situated at Gram Panchayat Guradiyakala area 35 x 35 total 1225 sf. (hereinafter referred to as '' suit house'').

[3] According to the plaintiff his father Prahlad Patidar had two wives first Ayodhya Bai i.e. mother of the plaintiff and second Shantibai i.e. mother of Yashwant and Manoher i.e. defendant No.4 and 5. Late Prahlad Patidar owned four houses in the village, out of which, three houses, he kept with him for Shantibai and his two sons namely Yashwant and Manoher. Plaintiff and his mother were separated from 25-30 years ago by giving the suit house having following boundaries:-

       East Side     -       House of Kashiram Patidar.
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        West side   -      Public Road.

        North side -       Toilet of Badrilal

        South side -       House of Babulal and Aatmaram.

[4]     Plaintiff has further pleaded that after death of Prahalad

Patidar, the defendant No.1 Shantibai and her two sons started creating a dispute. The Panchayat by way of resolution has directed the parties to get their right adjudicated from Civil Court. According to the plaintiff, the defendant No.1 has obtained forge certificate from the Panchayat on 17.06.2016 and sold the half portion of the suit house by executing sale deed dated 17.06.2016 in favour of the defendant No.2. The plaintiff made complaint to the Collector, Superintendent of Police and IG etc and serve the legal notice and thereafter filed suit.

[5] The defendants filed written statement by submitting that the plaintiff is only owner of house area 15x35, remaining portion of the suit house was owned by defendants which had already been sold to defendant No.2, plaintiff had knowledge about the said sale but he did not object, now he has approached before this Court in order to harass the defendant No.1. It is further submitted that plaintiff has dismantled the area of house came in his possession and reconstructed it. The defendant No.1 had sold the house and put him into the possession in the year 2013 and that time the plaintiff did not raise any objection, thereafter, he obtained forge certificate dated 17.08.2017 from Panchayat and wrongly filed this Suit.

[6] On the basis of pleadings, six issues were proposed for adjudication. The plaintiff examined himself and got exhibited 16

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documents. Plaintiff also filed affidavit of three other witnesses but they did not appear for cross examination.

[7] The defendants examined the witnesses and got exhibited two documents.

[8] On the basis of pleadings came on record, learned Civil Judge has decreed the suit in favour of the plaintiff by declaring him owner of the house area 35 x 35 total area 1225 sq.ft. and declared the sale deed dated 17.06.2016 as void.

[9] Being aggrieved by the aforesaid judgment and decree, the defendant No.1 and 2 filed Regular Civil Appeal. Vide judgment and decree dated 01.10.2022, the learned Second District Judge has reversed the findings and set aside the judgment and decree dated 09.08.2021, hence, this second appeal before this Court.

[10] Learned counsel for the appellant/plaintiff submits that First Appellate Court has wrongly reversed judgment and decree passed in favour of the plaintiff. The learned Civil judge has rightly appreciated the evidence came on record and held that plaintiff has entitled one house being son of Prahlad Patidar. The defendants had already got three house out of four house owned by the Prahlad Patidar. Hence, judgment passed by the Appellate Court is bad in law and liable to be set aside. Learned counsel for the plaintiff has proposed the following substantial question of law:-

a. Whether the first Appellate Court has erred in law in disbelieving copies of record of Panchayat submitted by the appellant which are presumed to be genuine in light of provision of the Indian Evidence Act ?

b. Whether the learned First Appellate Court has erred in law

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in shifting the burden of proving the genuineness of the document to the appellant without any rebuttal from the respondent ?

c. Whether the learned First Appellate has erred in law in holding that in view of confusion of the Panchayat, the documents produced by the appellant are also questionable ?

Heard.

[11] Both plaintiffs and defendants have relied on certificate issued by Gram Panchayat which has no presumptive value. The plaintiff came up with plea that he is owner of house area 35 x 35 total area 1225 sqft. therefore the burden was on him to prove actual area of suit house. He examined himself alone but did not file any document in support of oral evidence that area is that much. The plaintiff ought to have filed an application under Order 26 Rule 9 of C.P.C.for measurement of the area of the suit house by appointing a commission but he has failed to do so, therefore, adverse interference is liable to be drawn against him. Thus, the learned Appellate Court has rightly shifted the burden on plaintiff to establish his case. The certificate issued by the Panchayat after execution of sale dated 17.06.2016 is not liable to be considered. Hence appeal is not liable to be admitted on the aforesaid substantial questions of law. The plaintiff has not filed any documentary evidence admissible under the law to establish the size of suit house came into his share. The defendant No.1 executed sale deed in favour of defendant No.2 in which boundaries are mentioned in which south side, the house of the present plaintiff is mentioned and these boundaries have been certified by Gram

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Panchayat vide certificate dated 21.08.2011 Ex.D/1. Without canceling the Ex.D-1, the Panchayat has wrongly issued certificate Ex. P-16 in favour of the plaintiff on 17.08.2017, therefore the learned Trial Court has rightly relied the certificate Ex.D/1 and boundaries mentioned in sale deed. The plaintiff has failed to prove his case before the Court, hence, Appellate Court has not committed any error in allowing the Regular Civil Appeal filed by the defendants by setting aside the judgment and decree dated 09.08.2021.

Accordingly, Second Appeal is dismissed.

Let decree be drawn accordingly.

Record of the trial court be sent back.

(VIVEK RUSIA) JUDGE praveen

Digitally signed by PRAVEEN NAYAK Date: 2023.01.11 17:17:47 +05'30'