Madhya Pradesh High Court
Om Prakash Kushwaha vs Smt. Bhanmati Brahman on 12 July, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 12 th OF JULY, 2023
SECOND APPEAL No. 1113 of 2021
BETWEEN:-
1. OM PRAKASH KUSHWAHA S/O PIYARELAL
KACHHI, AGED ABOUT 43 YEARS, VILL. RAMPUR
P.S. AND TEH. CHANDIA DIST. UMARIYA MP
(MADHYA PRADESH)
2. CHANDRAKALI D/O PRIYARELAL, AGED ABOUT
40 YEARS, VILLAGE RAMPUR PS AND TEH.
CHANDIA DISTRICT UMARIA (MADHYA
PRADESH)
3. DEENDAYAL S/O PRIYARELAL, AGED ABOUT 32
YEARS, VILLAGE RAMPUR PS AND TEH. CHANDIA
DISTRICT UMARIA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI G.S.BAGHEL - ADVOCATE )
AND
1. SMT. BHANMATI BRAHMAN W/O LATE
MAKRAND PRASAD, AGED ABOUT 77 YEARS,
VILL. BADCHHAD TEH. MANPUR P.S. INDWAR
DIST. UMARIA MP (MADHYA PRADESH)
2. SMT. LAXMIBAI BRAHMAN W/O RAMNARESH
DWIVEDI, AGED ABOUT 47 YEARS, VILLAGE
BADCHHAD TEH. MANPUR P.S INDWAR DISTRICT
UMARIA (MADHYA PRADESH)
3. SMT. JANKIBAI BRAHMAN W/O RAMSWAROOP
MISHRA, AGED ABOUT 42 YEARS, VILLAGE
KOILARI PS LEDRA DISTRICT SATNA (MADHYA
PRADESH)
4. ISMAIL KHAN S/O SHEIKH SAIDUJJAMA, AGED
ABOUT 52 YEARS, VILLAGE CHANDIA WARD NO.
15 PS AND TEH. CHANDIA DISTRICT UMARIA
(MADHYA PRADESH)
Signature Not Verified
Signed by: ANUPRIYA
SHARMA CHOUBEY
Signing time: 7/13/2023
3:39:55 PM
2
5. SUB ENGINEER PUBLIC WORKS DEPARTMENT
CHANDIA UMARIA (MADHYA PRADESH)
6. STATE OF M.P. THR. COLLECTOR DISTT. UMARIA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SURENDRA TIWARI - PANEL LAWYER FOR THE RESPONDENT
NO.6/STATE )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been preferred by the legal heirs of original
plaintiff - Piyarelal challenging the judgment and decree dated 02.03.2021
passed by the 2nd Additional District Judge, Umaria, in regular civil appeal Nos.
15-A/2015 and 16-A/2015, affirming/modifying the judgment and decree dated
16.04.2015 passed by 2nd Civil Judge Class-II, Umaria, in civil suit no.01-
A/2010 whereby, learned trial Court dismissed the plaintiff's suit filed for
declaration of title and permanent injunction as well as the counter claim filed by
the defendant 4 - Ismail Khan and in civil appeal(s) filed by the plaintiff and
defendant 4, learned first appellate Court has affirmed the judgment and decree
of trial Court dismissing the suit of the plaintiff but decreed the counter claim
filed by the defendant 4 in respect of recovery of possession over land Khasra
No.141/3-kha along with mesne profits as well as for permanent injunction.
2. Learned counsel for the appellants/plaintiffs submits that original
Bhoomiswami Ramkripal owned agricultural land Khasra No.141 area 6.30
acres out of which, he sold 3 acres of land to the plaintiff vide registered sale
deed dated 27.05.1986 (Ex.P/6). On the same date, he sold an area 2.30 acres
of land to plaintiff's brother (Ram Kumar) vide registered sale deed dated
Signature Not Verified
Signed by: ANUPRIYA
SHARMA CHOUBEY
Signing time: 7/13/2023
3:39:55 PM
27.5.1986 (Ex.P/7) and thereafter, only an area 1 acre remained in the ownership
of Ramkripal, which after his death, was devolved upon the defendants 1-3 and
thereafter, the defendants 1-3 also sold an area 0.75 acre to the defendant 4
Ismail Khan vide registered sale deed dated 27.04.2009 (Ex.P/5), whereas out of
an area 6.30 acres, an area 1.00 acre had already gone in the Road and there
was no land available in the ownership of Ramkripal or defendants 1-3,
therefore, the sale deed dated 27.04.2009 (Ex.P/5) is null and void. He submits
that learned Courts below have erred in holding that the Road exists in between
the landS purchased by the plaintiff and his brother and is not on the land of the
defendant 4 over Khasra No.141/3. He further submits that learned first
appellate Court while reversing the judgment and decree of trial Court, erred in
decreeing the counter claim of the defendant 4 whereas, in the aforesaid
circumstances, he is not entitled for any decree. With the aforesaid
submissions, he prays for admission of the second appeal.
3. Heard learned counsel for the appellants and perused the record.
4. The plaintiff- Piyarelal (P.W-1) in his statement before the Court, has
admitted that the Road is situated in the middle of his land and similarly, the
plaintiff's witness Rammani Dwivedi (P.W-2) has stated that the Road exists in
between the land of the plaintiff and his brother. After taking into consideration
the statements of the plaintiff and his witness as well as other evidence available
on record, learned Courts below have concurrently found that the Road does
not exist on the land survey No.141/3 area 1 acre but it exists in between the
land of the plaintiff and his brother. As such, there is concurrent finding of fact
recorded by learned Courts below in respect of the existence of the Road in
between the land of plaintiff and his brother.
5. From the documentary evidence available on record, it is clear that
Signature Not Verified
Signed by: ANUPRIYA
SHARMA CHOUBEY
Signing time: 7/13/2023
3:39:55 PM
after sale of land by Ramkripal to the plaintiff and his brother, there remains an
area 1 acre of the land under his ownership, which after his death was devolved
on the defendants 1-3, out of which an area 0.75 acre has been sold by them to
the defendant 4 - Ismail Khan. Learned first appellate Court after due
appreciation of the material evidence available on record, has held that
defendant 4 is Bhoomiswami of the land on the basis of registered sale deed
and has also held that he has been dispossessed by the plaintiff(s) and
therefore, he is entitled for restoration of possession alongwith mesne profits of
Rs.4155/- p.a with effect from the year 2012.
6. From the aforesaid discussion, it is clear that the findings recorded by
the learned Courts below are pure findings of fact and in the considered opinion
of this Court, there is no substantial question of law involved in the second
appeal.
7. Resultantly, this second appeal fails and is hereby dismissed in limine
under Order 41 rule 11 CPC..
8. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
anu
Signature Not Verified
Signed by: ANUPRIYA
SHARMA CHOUBEY
Signing time: 7/13/2023
3:39:55 PM
