Sharad Chandra Giri vs Shailendra Giri
2023 Latest Caselaw 669 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. 231 of 2017

                          BETWEEN:-
                          1.    SHARAD CHANDRA GIRI S/O SHRI NIWAS GIRI,
                                AGED    ABOUT    32  YEARS, OCCUPATION:
                                AGRICULTURIST GRAM DUBIYA POST PATEHARA
                                TEH. HANUMANA DISTT. REWA (MADHYA
                                PRADESH)

                          2.    PRAKESH CHAND S/O NIWAS GIRI, AGED ABOUT
                                30 YEARS, OCCUPATION: AGRICULTURIST GRAM
                                DUBIYA POST PATEHARA TEHSIL HANUMANA
                                (MADHYA PRADESH)

                          3.    DHARMENDRA GIRI S/O NIWAS GIRI, AGED
                                ABOUT 26 YEARS, OCCUPATION: AGRICULTURIST
                                GRAM DUBIYA POST PATEHARA TEHSIL
                                HANUMANA (MADHYA PRADESH)

                          4.    SMT SHYAMA GIRI W/O NIWAS GIRI, AGED
                                ABOUT 56 YEARS, OCCUPATION: DOMESTIC
                                WORK GRAM DUBIYA POST PATEHARA TEHSIL
                                HANUMANA (MADHYA PRADESH)

                                                                             .....APPELLANT
                          (BY SHRI ABHISHEK SINGH-ADVOCATE )

                          AND
                          1.    SHAILENDRA GIRI S/O JAIRAM GIRI, AGED
                                ABOUT   56   YEARS, GRAM DUBIYA POST
                                PATEHARA TEH. HANUMANA DISTT. REWA
                                (MADHYA PRADESH)

                          2.    NAGENDRA GIRI S/O JAIRAM GIRI, AGED ABOUT
                                44 YEARS, OCCUPATION: AGRICULTURIST GRAM
                                DUBIYA POST PATEHARA TEHSIL HANUMANA
                                (MADHYA PRADESH)

                          3.    CHOTELAL GIRI S/O RASHIK BIHARI GIRI, AGED
                                ABOUT 57 YEARS, OCCUPATION: AGRICULTURIST
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 1/16/2023
2:59:23 PM
                                                     2
                                GRAM DUBIYA POST PATEHARA                    TEHSIL
                                HANUMANA (MADHYA PRADESH)

                          4.    GIRISH GIRI S/O RASHIK BIHARI GIRI, AGED
                                ABOUT 47 YEARS, OCCUPATION: AGRICULTURIST
                                GRAM DUBIYA POST PATEHARA TEHSIL
                                HANUMANA (MADHYA PRADESH)

                          5.    SHIVDAYAL GIRI S/O LALITA GIRI, AGED ABOUT
                                66 YEARS, OCCUPATION: AGRICULTURIST GRAM
                                DUBIYA POST PATEHARA TEHSIL HANUMANA
                                (MADHYA PRADESH)

                          6.    SAMBHU GIRI S/O LALITA GIRI, AGED ABOUT 61
                                YEAR S , OCCUPATION: AGRICULTURIST GRAM
                                DUBIYA POST PATEHARA TEHSIL HANUMANA
                                (MADHYA PRADESH)

                          7.    DADHIBAL SAKET S/O LAXMAN SAKET, AGED
                                ABOUT 56 YEARS, OCCUPATION: AGRICULTURIST
                                GRAM      BAKIHA POST     PATEHARA TEHSIL
                                HANUMANA (MADHYA PRADESH)

                          8.    COLLECTOR THE STATE OF MADHYA PRADESH
                                SATNA (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                          (BY SHRI SANJAY PATEL-ADVOCATE)

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

This second appeal has been preferred by the appellants/defendants 3-6

challenging the judgment and decree dated 04.11.2016 passed by 2 nd Additional District Judge, Mauganj, District Rewa in civil appeal no.2A/2013

affirming the judgment and decree dated 30.03.2013 passed by 1st Civil Judge Class-II, Mauganj, District Rewa in civil suit no.72-A/2009, whereby suit filed

by respondents 1-2/plaintiffs has been decreed to the extent of 1/3rd share in the land khasra no.126 area 1.15 acre situated in Village Dubiya, Tahsil Hanumana, District Rewa.

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 1/16/2023 2:59:23 PM

2. Learned counsel for the appellants submits that the suit property is owned and possessed by appellants because it was purchased by their grand father Rashik Bihari and Jagdish Giri vide registered sale deed dated 08.03.1965 (Ex.D/1) from Rajendra Singh but the learned Courts below have ignored the sale deed relying upon some revenue entries, which are not document of title. He further submits that in presence of sale deed in favour of Jagdish and Rashik Bihari, suit filed by respondents 1-2/plaintiffs could not have been decreed. Accordingly, he prays for admission of the second appeal.

3. Learned counsel appearing for respondents 1-2 supports the impugned judgment and decree passed by learned Courts below.

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

5. Learned Courts below after having considered the oral as well as documentary evidence especially the revenue entry of samvat year 1979-1998 (Ex.P/8), have come to the conclusion that originally the disputed land belonged to common ancestor Vanshdhari Giri and there is no document on record to transfer the suit land in the name of Rajendra Singh, therefore, in absence of proof of ownership of Rajendra Singh, defendants' claim cannot be accepted.

6. It has come in evidence that the land was given to Rajendra Singh in lieu of Advocate fees. However there is no documentary evidence available on record regarding transfer of land in favour of Rajendra Singh. As such, in

absence of transfer of ownership to Rajendra Singh, learned Courts below have rightly not considered the sale deed dated 08.03.1965 (Ex.D/1) over and above the claim of the plaintiffs, therefore, the learned Courts below have not committed any illegality in passing the impugned judgment and decree.

7. Resultantly, the second appeal fails and is hereby dismissed in limine under Order 41 Rule 11 of CPC.

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 1/16/2023 2:59:23 PM

8. However, no order as to costs.

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

(DWARKA DHISH BANSAL) JUDGE sh

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 1/16/2023 2:59:23 PM