Prahlad vs Radheshyam
2023 Latest Caselaw 10549 MP

                                  1                                       S.A. No. 472/2009

                            IN THE HIGH COURT OF MADHYA PRADESH
                                        AT G WA L I O R
                                                   BEFORE
                                   HON'BLE SMT. JUSTICE SUNITA YADAV
                                       ON THE 11th OF JULY, 2023
                                          SECOND APPEAL No. 472 of 2009

                           BETWEEN:-
                           PRAHLAD S/O S/O BEERBAL , AGED ABOUT 64 YEARS,
                           OCCUPATION: R/O VILLAGE RADEP TAHSIL &
                           DISTRICT SHEOPUR (MADHYA PRADESH)
                                                                          .....APPELLANT
                           (MR. A.K. SAXENA - ADVOCATE FOR APPELLANT)

                           AND
                              RADHESHYAM S/O S/O GANGARAM JAT , AGED
                              ABOUT    32    YEARS,   OCCUPATION:    R/O
                           1.
                              VILL.RAPED,TE. & DISTRICT SHEOPUR (MADHYA
                              PRADESH)
                              DEVIRAM S/O S/O BEERBAL , AGED ABOUT 52
                              YEARS,    OCCUPATION:      CASTE:JAT,  R/O
                           2.
                              VILL.RADOP TAHSIL & DISTRICT SHEOPUR
                              (MADHYA PRADESH)
                               STATE OF M.P. DISTRICT SHEOPUR (MADHYA
                           3.
                               PRADESH)
                              GANGARAM S/O S/O BEERBAL , AGED ABOUT 60
                              YEARS,    OCCUPATION:     CASTE:JAT,   R/O
                           4.
                              VILL.RADAP, TAHSIL & DISTRICT SHEOPUR
                              (MADHYA PRADESH)
                           5. PHOOLABAIW/O       BEERBAL     OCCUPATION:
                              CASTE:JAT, R/O VILLAGE DADUNI, TAHSIL &




Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 7/14/2023
5:44:49 PM
                                     2                                         S.A. No. 472/2009
                              DISTRICT SHEOPUR (MADHYA PRADESH)
                              BARFIBAIW/O BAJRANG LAL D/O BEERBAL
                              OCCUPATION:   CASTE:JAT,   R/O  VILLAGE
                           6.
                              SALMANYA, TAHSIL & DISTRICT SHEOPUR
                              (MADHYA PRADESH)
                              KAILASHIW/O    KHEMRAJ    D/O   BEERBAL
                              OCCUPATION:   CASTE:JAT,   R/O  VILLAGE
                           7.
                              TALBADA, TAHSIL & DISTRICT SHEOPUR
                              (MADHYA PRADESH)
                                                                           .....RESPONDENTS
                           (MR. SANJAY KUMAR MISHRA - ADVOCATE FOR RESPONDENT
                           NO.1)
                                 This appeal coming on for Admission this day, the court

                           passed the following:

                                                    JUDGMENT

This second appeal Under Section 100 of C.P.C. has been

preferred against the judgment dated 14.07.2009 passed by the

District Judge, Sheopur, whereby the appeal No. 25-A/2007 filed by

the appellant-defendant (Prahalad) has been dismissed and

judgment and decree dated 30.08.2007 passed by learned trial Court

was set aside with a direction to plaintiff-respondent and defendants

to get their share be partitioned and take the possession accordingly

as per law.

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 7/14/2023 5:44:49 PM

2. The facts in brief that original plaintiff-Ramratan has filed a

suit for declaration and permanent injunction with respect to

agriculture land as described in para two of the plaint. During the

pendency of suit original plaintiff-Ramratan died and Radheshyam

was substituted as the plaintiff in his place. The plaintiff in the

plaint described his family tree as below:-

Hiralal Birbal Dhashi Ramratan Pralad Deviram Gangaram Phula Barfi Kailashi Nurki Uma Issuless Radheshyam issuless issuless (plaintiff)

3. The case of plaintiff-Radheshyam is that the property in

dispute was owned by Hiralal who has two Sons Birbal and Ghashi.

Ghashi died issueless.

4. Hiralal was the owner of entire property described in para 2

of the plaint admeasuring area 64 Bigha and 11 wisva situated at

Radep and Khanpura, District Sheopur. Hiralal, Birbal and Ghashi

are since dead. After the death of Hiralal, the entire property of

Hiralal devolved between his sons namely Birbal and Ghashi.

Birbal and his sons and daughters became co-parcenary being the

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 7/14/2023 5:44:49 PM

member of Hindu Undivided Family. Ghashi was issueless. After

the death of Birbal, his share devolved upon nine sons and

daughters. As per plaint pleading since Ghashi was issueless,

therefore, defendant Prahlad by playing fraud got his name mutated

without notice and knowledge of the plaintiff in respect to Survey

Nos. 914, 333 and 1067 vide mutation order Nos. 36 dated

24.01.1986 and 31 dated 24.05.1987. However, plaintiff and other

defendants continued to be in possession of the suit land. The claim

of Prahlad that he is the adopted son of Ghashi is factually

incorrect. Therefore, the mutation in favour of Prahlad is illegal.

Since defendant No.1-Prahlad is raising dispute on the basis of

mutation in his favour, therefore, the suit is filed for declaration that

the suit property belongs to H.U.F. and plaintiff and defendants are

the owner of aforesaid Survey numbers. Order of mutation as well

as order of partition passed by SDO in case No. 21/01-02 dated

24.08.2005 and 25.09.2001 are illegal and deserves to be set aside.

5. Defendant Nos. 2 to 7 proceeded ex-parte in this case.

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 7/14/2023 5:44:49 PM

6. Defendant No. 1-Prahlad filed written statement and denied

the allegations made in plaint and further pleaded that Survey

Nos.333, 914 and 1067 are self acquired property of Ghashi and as

per mutation order, he is the owner of that land. Defendant No. 1-

Prahlad also filed counter case in respect to above mentioned

survey numbers as well as other land as described in para two of the

plaint and pleaded that after the death of Hiralal, his property

devolved between Birbal and Ghashi and Ghashi had 1/2 share in

the property. Ghashi was issueless and after ceremony of Pagdi,

defendant No 1-Prahlad became the owner of the property i.e.

Survey Nos. 333, 914 and 1067. Defendant No. 1 is in possession of

these land, therefore, his counter case be decreed.

7. The plaintiff-Radheshyam filed written statement and pleaded

that Ghashi has died before the death of Birbal. Until July 1967,

Ghashi did not receive Survey Nos. 333, 914 and 1067. There was

no ceremony in respect to adoption of defendant No.1-Prahlad.

Therefore, counter case be dismissed and suit filed by the plaintiff

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 7/14/2023 5:44:49 PM

be decreed.

8. On the basis of the aforesaid pleadings, the learned Trial

Court framed as many as eleven issues in the matter and parties lead

evidence to prove the said issues in their favour. The learned Trial

Court after appreciation of the evidence made available on record,

vide its judgment and decree dated 30.08.2007 dismissed the Suit

filed by the plaintiff-Radheshyam as well as counter case filed by

defendant No.1-Prahlad.

9. Being aggrieved by the aforesaid judgment of the trial court,

the defendant/Pralad preferred First Civil Appeal bearing Case

No.25-A/2007 before the Lower Appellate Court who dismissed the

appeal, however, decreed the suit with a direction to plaintiff-

respondent and defendants to get their share be partitioned and take

the possession accordingly as per law. Against which, the present

second appeal has been filed.

10. Assailing the findings recorded by the learned courts below,

learned counsel for appellant/defendant No.1 submits that the

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 7/14/2023 5:44:49 PM

learned first appellate Court has committed grave error in

disbelieving the the evidence led by the appellant/defendant No.1. It

was duty of the courts below to appreciate the evidence properly

which has not been done. Hence, the findings recorded by both the

courts below are no finding in the eye of law.

11. Heard.

12. The appellant-defendant-Prahlad has claimed the title over

the suit land on the basis of some pagdi ceremony, however, he has

failed to prove that by performing such ceremony, he can become

owner of Survey Nos. 333, 914 and 1067. Learned Court below has

rightly held that there is no such law which provides that only on

account of pagdi ceremony, a person can get title of property.

Learned Court below also held that even if it is believed that Ghashi

had got three Survey Nos. 333, 914 and 1067 on patta, even then, in

the light of the fact that Ghasi had died before the death of his

brother Birbal, therefore, defendant- Prahlad shall not get the title of

these survey numbers, because the share of Ghasi had devolved

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 7/14/2023 5:44:49 PM

upon his real brother Birbal who was alive at the time of his death.

The above finding is found to be in accordance with settled principle

of law.

13. The learned first Appellate Court has after due appreciation

reconsidered the entire evidence and discussed the same in its

judgment from para 15 to 26 passed the judgment and decree.

14. It is well established principle of law that this Court in exercise

of power under Section 100 of CPC cannot interfere with the findings

of fact unless and until they are perverse and without any record.

15. Upon perusal of the judgment and decree of the first Appellate

Court and the arguments advanced, the appeal is found to be devoid of

any substance.

16. Ex-consequenti, the judgment and decree dated 14.07.2009

passed by the District Judge, Sheopur in Regular Civil Appeal bearing

Case No.25-A of 2007 is hereby affirmed.

17. The Appeal fails and is hereby dismissed in limine.

(Sunita Yadav) Judge LJ*

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 7/14/2023 5:44:49 PM