Shyamsundar vs Keshri Prasad
2023 Latest Caselaw 667 MP

                                                           1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                             ON THE 11 th OF JANUARY, 2023
                                            SECOND APPEAL No. 2712 of 2018

                          BETWEEN:-
                          SHYAMSUNDAR S/O SHRI JAGDISH PRASAD, AGED
                          ABOUT    51  YEARS, OCCUPATION: CULTIVATION
                          VILLAGE PATGEHRA TEHSIL HANUMANA DISTT. REWA
                          (M. P.)

                                                                                      .....APPELLANT
                          (BY SHRI V.S. CHOUDHARY - ADVOCATE )

                          AND
                          1.    KESHRI PRASAD S/O SHRI JAGDISH PRASAD,
                                AGED    ABOUT    56   YEARS, OCCUPATION:
                                CULTIVATION  VILLAGE   PATEHRA TEHSIL
                                HANUMANA DISTT. REWA (MADHYA PRADESH)

                          2.    THE STATE OF MADHYA PRADESH THROUGH
                                THE COLLECTOR REWA MP REWA MP (MADHYA
                                PRADESH)

                                                                                   .....RESPONDENTS
                          (BY SHRI PREM NANARYAN VERMA - PANEL LAWYER FOR THE
                          STATE/RESPONDENT -2 )

                                This appeal coming on for admission this day, th e court passed the
                          following:
                                                            ORDER

This second appeal has been preferred by the appellant/defendant 1 challenging the judgment and decree dated 01.08.2018 passed by 2nd Additional District Judge Mauganj, District Rewa in civil appeal no.66-A/17, reversing the judgment and decree dated 10.10.2017 passed by 1st Civil Judge Class-I, Hanumana District Rewa in civil suit no.246-A/2017 whereby, learned Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 1/12/2023 11:17:23 AM

trial Court dismissed the suit of the respondent 1/plaintiff, which has been decreed by first appellate Court.

2. In short, the facts are that the respondent 1/plaintiff instituted a suit for declaration of title and permanent injunction over 1/2 share in the suit land Khasra no.1482 area 0.30 acre situated in village Patehra, Tahsil Hanumana, District Rewa claiming the suit land to be belonging to father Jagdish Prasad Brahman. With these allegations, he prayed for decree in his favour and also prayed that the order dated 31.08.2009 passed in Panji no.288 be declared null and void.

3. Upon service of notice, the appellant/defendant 1 appeared and filed

written statement denying the plaint allegations and claimed himself to be exclusive owner/Bhoomiswami on the basis of order dated 31.08.2009 passed in Panji no.288 with the consent of alleged owner of the land Vasudeo Ram. With the aforesaid contentions, the suit was prayed to be dismissed.

4. On the basis of pleadings, learned trial Court framed issues and recorded exparte evidence of the plaintiff but dismissed the suit vide its judgment and decree dated 10.10.2017, which in appeal filed by the respondent 1-Keshri Prasad has been reversed holding the plaintiff and defendant 1 to be owner/Bhoomiswami of area 1/2- 1/2 each of the land total area 0.30 acre.

5. Learned counsel for the appellant submits that although the appellant after filing of the written statement did not appear before the trial Court and was proceeded exparte and also did not cross-examine the plaintiff's witnesses but in appeal he should have been noticed by the first appellate Court and his service could not have been dispensed with. He further submits that the owner of the land was Vasudeo Ram and with his consent his name was mutated over the disputed land. In support of his submissions, he placed reliance on the Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 1/12/2023 11:17:23 AM

decision of this Court in the case of Birjiya Bai vs. Kailash Narayan s/o Jwala Prasad and others 2010 (2) MPLJ 641 and Shivraj Singh Chauhan vs. Rajendra Kumar ILR (2010) M.P. 247.

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

7. The documentary evidence i.e. Khasra entries placed on record by the appellant along with this second appeal (Ex.P/1 to Ex.P/5) shows that originally the land belonged to father Jagdish Prasad Bramhan and thereafter, it came in the name of plaintiff and defendant 1 over equal share, therefore, learned first appellate Court on the basis of oral evidence adduced by the plaintiff in support of the plaint allegations held that the plaintiff and defendant 1 are owner/Bhoomiswami of the land over an area 1/2 - 1/2 share each.

8. How the land came to be recorded in the name of defendant 1 vide Panji no.288 dated 31.08.2009 has not been explained even before this Court. No document has been filed showing the source of such entry made in Panji.

9. In the present case, after filing of the written statement, the defendant 1 disappeared from the Court and did not even cross-examine the plaintiff's witnesses, therefore, the decisions cited by the counsel for the appellant are distinguishable on facts and do not give any help to him.

10. In view of the aforesaid, in the considered opinion of this Court, learned first appellate Court has not committed any illegality in passing the

impugned judgment and decree holding the plaintiff and defendant 1 both to be owner/Bhoomiswami of the land in question over an area 1/2 - 1/2 each.

11. Resultantly, second appeal fails and is hereby dismissed in limine under Order 41 rule 11 CPC. However, no order as to costs.

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

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 1/12/2023 11:17:23 AM

(DWARKA DHISH BANSAL) JUDGE pb

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 1/12/2023 11:17:23 AM