Madhya Pradesh High Court
Smt. Ramsakhi & Ors vs Ramashraya(Ramasre) & Ors on 26 July, 2023
Author: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
FIRST APPEAL No. 467 of 2001
BETWEEN:-
1
(A) SMT. RAMSAKHI, AGED ABOUT 51
.
YEARS, W/O. LATE GANGADEEN KACHHI.
(B) ASHOK KUMAR (DEAD) THROUGH
LEGAL REPRESENTATIVES : -
(B-I) SMT. MITHLESH, AGED ABOUT 35
YEARS, W/O. LATE SHIR ASHOK KUMAR,
R/O. KHAJURITOLA, SATNA, DISTRICT
SATNA (MADHYA PRADESH)
(B-II) DEVANSH, AGED ABOUT 12 YEARS,
S/O. LATE SHRI ASHOK KUMAR, MINOR
THROUGH NATURAL GUARDIAN MOTHER
SMT. MTHLESH, R/O. KHAJURITOLA,
SATNA, DISTRICT SATNA (MADHYA
PRADESH)
(B-III) KU. MAHI, AGED ABOUT 8 YEARS,
D/O. LATE SHRI ASHOK KUMAR, MINOR
THROUGH NATURAL GUARDIAN MOTHER
SMT. MTHLESH, R/O. KHAJURITOLA,
SATNA, DISTRICT SATNA (MADHYA
PRADESH)
(C) ANIL KUMAR, AGED ABOUT 25 YEARS,
(D) KU. ROOPA, AGED ABOUT 36 YEARS,
(E) KU. SHYAMA, AGED ABOUT 23 YEARS.
ALL ARE RESIDENT OF KHAJURITOLA,
SATNA, DISTRICT SATNA (MADHYA
PRADESH).
2 SHIV PRASAD KACHHI (DEAD) THROUGH
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
2
. LEGAL REPRESENTATIVES :-
(A). SAVITRI DEVI KUSHWAHA, AGED
ABOUT 55 YEARS, W/O. LATE SHRI SHIV
PRASAD KACHHI, R/O. THERMAL ROAD,
SATNA, DISTRICT - SATNA (MADHYA
PRADESH).
(B). PRAMILA KUSHWAHA, AGED ABOUT
36 YEARS, D/O. LATE SHRI SHIV PRASAD
KACHHI, W/O. SHRI RAJESH KUSHWAHA,
R/O. ANAND NAGAR, DISTRICT REWA
(MADHYA PRADESH).
(C) PUSHPENDRA KUSHWAHA, AGED
ABOUT 31 YEARS, S/O. LATE SHRI SHIV
PRASAD KACHHI, R/O. KHERMAI ROAD,
SATNA, DISTRICT - SATNA (MADHYA
PRADESH).
(D) SUNIL KUMAR KUSHWAHA, AGED
ABOUT 29 YEARS, S/O. LATE SHRI SHIV
PRASAD KACHHI, R/O. KHERMAI ROAD,
SATNA, DISTRICT - SATNA (MADHYA
PRADESH).
(E) SUNITA KUSHWAHA, AGED ABOUT 27
YEARS, D/O. LATE SHRI SHIV PRASAD
KACHHI, W/O. LOVELESH KUSHWAHA, R/O.
NEHRU NAGAR, DISTRICT SATNA
(MADHYA PRADESH).
(F) ANITA KUSHWAHA, AGED ABOUT 25
YEARS, D/O. LATE SHIV PRASAD KACHHI,
R/O. KHERMAI ROAD, SATNA, DISTRICT -
SATNA (MADHYA PRADESH)
...APPELLANTS
(BY SHRI RAVISH CHANDRA AGRAWAL - SENIOR ADVOCATE WITH SHRI
ROHIT SOHGAURA - ADVOCATE )
AND
1 RAMASHRAYA (RAMASRE) AGED ABOUT 36
. YEARS, S/O. MANOHAR KACHHI, R/O.
KHAJURITOLA, BEHIND TILAK SCHOOL,
SATNA, DISTRICT- SATNA (MADHYA
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
3
PRADESH).
2 SMT. GAYATRI GUPTA W/O. RAJENDRA
KUMAR GUPTA, THROUGH DR. NAWAL
KISHORE GUPTA (NEMA), R/O. REWA
ROAD, SATNA (MADHYA PRADESH).
3 RAJKISHORE NEMA (DEAD) THROUGH LRS.
SMT. MEENAKSHI NEMA W/O. RAJKISHORE
NEMA, R/O. REWA ROAD, SATNA (MADHYA
PRADESH).
4 BRIJ KISHORE NEMA, AGED ABOUT 42
YEARS, S/O. SHRIRAM NEMA, R/O. REWA
ROAD, SATNA, DISTRICT SATNA (MADHYA
PRADESH).
5 NAWAL KISHORE NEMA, AGED ABOUT 47
YEARS, S/O. SHRIRAM NEMA, R/O. REWA
ROAD, SATNA (MADHYA PRADESH).
6 THE STATE OF MADHYA PRADESH
THROUGH COLLECTOR SATNA (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI SANJAY AGRAWAL - SENIOR ADVOCATE WITH SHRI
PRAMOD KUMAR SAHU - ADVOCATE FOR RESPONDENT NO.1;
AKHIL SINGH - ADVOCATE FOR INTERVENOR; SHRI
ABHISHEK SINGH - ADVOCATE FOR PROPOSED RESPONDENT
AND SHRI SHESHMANI MISHRA - PANEL LAWYER FOR THE
STATE)
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Reserved on : 17-07-2023
Pronounced on : 26-07-2023
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This appeal having been heard and reserved for order, coming on for
pronouncement this day, the court pronounced the following:
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
4
JUDGMENT
With the consent of learned counsel for both the parties, the matter is
heard finally.
This first appeal under Section 96 of the Civil Procedure Code has been
filed by the appellants / defendants no. 1 and 2 challenging the impugned
judgment and decree dated 11.9.2001 passed in Civil Suit No.136-A/2000 by
learned Second Additional District Judge, Satna.
2. There is no dispute between the parties that in the civil suit the original
defendant No. 1 was Gangadeen, who died during the pendency of the
proceedings and the present appellants (1) (a) to (e) were substituted as
defendants (1) (a) to (e). Similarly, Smt. Savitri Nema was the defendant No. 3
who also died during the pendency of the civil suit hence the present
Respondent No. 2 Smt. Gayatri Gupta was substituted as defendant No. 3. In the
suit the dispute was regarding agricultural lands bearing Khasra Nos. 158/1 area
0.54, 162/1, area 0.03, 156, Area 0.67, 177 area 0.58, 182 area 0.46 and 183 are
0.30 total area 2.58 acres of village Satna, District-Satna here-in-after called as
the suit land.
3. Briefly stated facts of the case are that on 31.12.1990 the respondent No.
1 as plaintiff filed a civil suit for declaration of the suit property to be the
ancestral property wherein the plaintiff has half share and defendants no. 1 and
2 as appellants have the other half share and the same be subjected to partition
and thereafter, possession be delivered as per their respective share. The suit
was also for declaration of the sale deed executed by the appellants as
defendants no.1 and 2 in favour of the defendants no. 3, 4, 5 and 6 on 7.3.1990
(Ex.P/1 to P/4) as null and void and a permanent injunction be issued restraining
the defendants from interfering with the plaintiff's possession over the suit land.
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
It was contended by the plaintiff that Bharosa had two sons Manohar and Badal
(Badla) and two daughters Laband and other who was married to Motilal. Both
these daughters are dead. Respondent No. 1 - plaintiff is son of Manohar and the
original defendant No. 1 Gangadeen and the present appellant No. 2 Shiv Prasad
are sons of Badal. He further submitted that the suit land is the joint family
property of the appellants and the respondent No. 1. Out of Khasra No. 156 area
0.67 acre an area of 0.33 1/2 acres was given to the sister who was married with
Motilal in her marriage. Out of the remaining 0.33 1/2 acre land, the name of
the respondent No. 1 is recorded in 0.163/4 acre and the name of appellants is
recorded in 163/4 acre. It was further pleaded on the basis of succession the
land of Khasra No. 162/1 area 0.30 acre has been recorded half and half in the
name of the appellants and the respondent No. 1. The original defendant No. 1
and the present appellant No. 1 sold an area of 35 X 50 to the original defendant
No. 3 Smt. Savitri Nema by registered sale deed dated 07.03.1990, 35' X 50' to
the appellant No. 3 by registered sale deed dated 07.03.1990, 35' X 50' to
appellant No. 4 by registered sale deed dated 07.03.1990. All the said lands are
sold out of Khasra No. 177 area 0.58 acre. The said defendant 1 and 2 had no
right to sell the said lands. The plaintiff's further case was that there was no
partition of the aforesaid suit land which is the ancestral property and that being
so, he is entitled to ½ share of the entire suit land.
4. In turn, after service of summons, the appellants and the respondents no.
2 to 5 appeared and filed their written statements denying the plaint allegations.
It was contended that the family of the appellants and the respondent No. 1 is
not joint family. The disputed land is not joint family property of the appellants
and respondent No. 1 and that respondent No. 1 has no share much-less than 1/2
share in the suit land. The partition was already affected between the father of
the respondent No. 1 and the original defendant No. 1 and the present appellant
No. 2 and the father of the parties were in possession of the property allotted to
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
their respective share. There was almost equal partition between both the said
person. The measure portion allotted to the share of the father of the respondent
No. 1 was situated adjacent to the Satna Rewa Road hence he was allotted a bit
little area. From time to time the father of the respondent No. 1 sold the land
allotted to his share. He sold 0.33 1/2 acre land out of Khasra No. 156, 0.57 out
of Khasra No. 158 and 0.12 acre out of Kh. No. 162. The father of the
respondent No. 1 thus sold 1.04 acre land allotted out of his share and the
purchasers from him are in possession of the land purchased. The respondent
No. 1 is in possession of Khasra No. 158/1 area 0.34 acre, Khasra No. 162 area
0.12 acre and Khasra No. 156 area 0.16 3/4 acre land. All this makes it clear
that partition was already effected during the life time of Manohar and Badal.
Late Badal was allotted Khasra No. 177 acre 0.58 acre, Khasra No. 182 area
0.46 acre, Khasra No. 183 area 0.30 acre and Kh. No. 158 area 0.20 acre,
Khasra No. 162 area 0.1/2 acre and Khasra No. 156 area 0.16 3/4 total area 1.72
1/4 acres in partition and late Badal was in possession of the land allotted to his
share. The original defendant No. 1 and the present appellant No. 2 sold the
land of Khasra No. 177 to the original defendant No. 3 and the present
respondents 3 to 5 by registered sale deeds as already stated above and now the
respondents 2 to 5 are in possession of the land purchased as stated above. It
was further submitted that the original defendant No. 3 and the present
appellants 3 to 5 are bonafide purchasers for valuable consideration. Since the
partition has already been affected hence the present suit for partition is not
maintainable by way of instant suit the respondent No. 1 wants to reopen the
earlier partition which has no basis and the same has become time barred. The
suit is therefore liable to be dismissed as time barred.
5. The trial Court on the basis of the pleadings of the parties framed as many
as five issues and recorded the evidence. On the basis of the material came on
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
record, the trial Court decreed the suit by the judgment and decree which is
under challenge in this appeal.
6. Before this court learned counsel for the appellants has argued that the
learned trial Court grossly erred in law as well in fact in passing the impugned
decree for partition. In fact the learned trial Court should have held that the
partition was already affected during the life time of Mahohar and the Badal and
both the brothers were in possession of their respective shares allotted to them
in partition and the names were also recorded in the land allotted to the
respective brother. Further, the learned trial Court ought to have held that the
father of the respondent No. 1 sold land to the persons out of the land allotted to
his share and the purchasers are in possession of the land purchased from him.
Learned trial Court ought to have held that the lands sold out of Khasra No. 177
to the original defendant No. 3 and the present appellants 3 to 5 were well
within the knowledge of the respondent No. 1 but raised no objection in such
sales because the partition was already effected and this Khasra No. 177
belonged to the original defendant No. 1 and the present appellant No. 2.
Learned trial Court grossly erred in holding that the disputed land is joint family
ancestral property of the plaintiff and defendant Nos. 1 and 2. The learned Court
further grossly erred in holding that the plaintiff/respondent No. 1 is entitled to
get partition and 1/2 share in the disputed agricultural land. In fact it ought to
have been held that the partition was already effected and the suit lands are not
ancestral and joint family property of the appellants and respondent No. 1 and
respondent No. 1 cannot claim partition and 1/2 share. Further contended that
learned trial Court grossly erred in holding that 0.33 1/2 acre land was given to
the sister of Manohar and Badal out of Khasra No. 156 in her share. In fact the
case of the respondent No. 1 in this respect is contradictory. In fact it should
have been held that 0.33 1/2 acre lands were sold by the father of the respondent
No. 1 to Motilal. Hence the learned trial Court grossly erred in holding that the
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
sale of said land to Motilal is not proved. It has also been contended that
defendants no. 3 to 6 are bona fide purchaser. Learned trial Court failed to
consider that the earlier partition has been successfully proved by the appellants
and by way of instant suit the respondent No. 1 wants to reopen the earlier
partition that too after the lapse of time prescribed for filing such suit, hence it
ought to have been held that the present suit of the respondent No. 1 is
hopelessly time barred. Learned trial Court, therefore, grossly erred in holding
that the suit has been filed within time.
7. Learned counsel for the appellants further asserted that learned trial Court
failed to consider the revenue proceedings between the parties in the revenue
Court. The Revenue documents clearly indicate that the lands stand in the name
of the original defendant No. 1 and the present appellant No. 2. The respondent
No. 1 raised no objection in such mutation proceedings which also indicates the
earlier partition. The mutation was made after following due and legal process
and procedure provided in Section 110 of the M.P. Land Revenue Code 1959
and the mutation rules made there-under. The orders of revenue Court shall
operate res-judicata under Section 11 of C.P.C. The conduct of the father of the
respondent No. 1 and the respondent No. 1 clearly indicates that there was
partition. The respondent No. 1 is stopped to file the present suit, claim the
property as joint and ancestral property and claim ½ share in it on the principles
of law of estoppels, estoppels by conduct, promissory estoppels and the
equitable estoppels. According to the own case of the respondent No. 1 the
lands and dispute are agricultural lands and hence respondent No. 1 should have
taken recourse for partition provided under Section 178 of the M.P. Land
Revenue Code, 1959 and hence the suit is barred under Section 257 (n) of the
said Code and the Civil Court has no jurisdiction to entertain and decide the suit
in view of the provisions of Section 257 of the said Code. Learned trial Court
has not appreciated the facts and law involved in the suit. The findings are
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
based on presumptions and assumptions not warranted in law. The findings are
perverse and are based on mis-appreciation and inadmissible evidence. The
evidence of the respondent No. 1 should have been disbelieved and the evidence
of the appellants should have been believed and relied upon. The findings are
illegal, unjust and contrary to the law and evidence. Hence, the appeal deserves
to be allowed.
8. Per contra, learned counsel for the respondent no.1 / plaintiff has
opposed the aforesaid contentions and submitted the learned trial court has not
committed any illegality and perversity in passing the impugned judgment and
decree which is based on proper appreciation of pleadings, documents and
evidence available on record and submitted that the interference is not
warranted in the well reasoned impugned judgment and decree.
9. I have heard learned counsel for the parties at great length and perused
the material available on record as well as the impugned judgment.
10. On perusal of the record it is evident that in order to support his case, the
plaintiff examined himself and one Hazari as PW-1 and PW-2 respectively.
Whereas the defendant Nos. 1 and 2 examined Shri Shiv Prasad Kushwaha, Shri
Dulichand and Shri Karoha as DW-1 to DW-3 respectively. The defendant No.
3 to 6 examined Dr. Naval Kumar Nema and Shri Shiv Prasad Kushwaha as
DW-4 and DW-5 respectively. The plaintiff filed Exhibits P-1 to P-6 and on
behalf of the defendants documents Exhibits D-1 to D-32 were filed. The trial
Court held that the suit land was the ancestral property in which the plaintiff and
defendant Nos. 1 and 2 have equal share. The land sold by the plaintiff be
adjusted in his share and likewise the land sold by the defendant Nos. 1 and 2 be
also adjusted in their share. The trial Court further held that the factum of
partition was not proved as no document of partition was filed by any of the
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
parties and the mutation entries in revenue record will not confer title upon any
one whose names were so mentioned.
11. The appellant's contention is that a coparcener in the State of Vindhya
Pradesh cannot alienate without the consent of the other coparcener even to the
extent of his share as per Baharas School of Mitakshara Law applicable to the
State, and has relied upon 2001 (1) MPLJ Page 248 (Bhagwandas vs. State of
M.P. and another. A contrary view has been taken by a Co-ordinate Bench in
Second Appeal No. 839/1998 (Janki Prasad Vs. Rambali and others) dated
28.11.2022, relying upon a decision of Supreme Court reported in (2009) 7 SCC
444. The relevant paragraphs are quoted hereunder:-
11. So far as the question of competency of Manager of
joint Hindu family to alienate any part of the undivided
joint Hindu family property even to the extent of his
share, is concerned, coordinate bench of this Court has in
the similar facts, in the case of Shakuntala Tiwari Vs.
Mohammad Ramjan, Second Appeal No. 829/1996
decided on 7.12.2011 reported in 2011 STPL 33520 MP,
considered the decision in the case of Bhagwandas Vs.
State of M.P. and another 2001(1) MPLJ 248 but
followed the decision of the Supreme Court in the case of
Ramdas Vs. Sitabai and ors. (2009) 7 SCC 444, in which
the Supreme Court has held as under :-
"19. In view of the aforesaid position there could
be no dispute with regard to the fact that an undivided
share of co-sharer may be a subject-matter of sale, but
possession cannot be handed over to the vendee unless
the property is partitioned by metes and bounds amicably
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
and through mutual settlement or by a decree of the
court."
12. The Supreme Court in the case of Ramdas Vs.
Sitabai and ors. (2009) 7 SCC 444 has considered and
followed the decision of Sidheshwar Mukherjee Vs.
Bhubneshwar Prasad Narain Singh and others AIR 1953
SC 487, in which the effect of alienation made by a
coparcener governed by Mitakshara law was considered
as under :-
"9. It is true that under the Mitakshara law, as it is
administered in the State of Bihar, no coparcener can
alienate, even for valuable consideration, his undivided
interest in the joint property without the consent of his
coparceners: but although a coparcener is incompetent to
alienate voluntarily his undivided coparcenary interest, it
is open to the creditor, who has obtained a decree against
him personally, to attach and put up to sale this undivided
interest, and after purchase to have the interest separated
by a suit for partition."
Since, the aforesaid judgement was not considered by
M.P. High Court in any of judgments in the case
Bhagwati Prasad, Rammilan and Bhagwandas (supra),
therefore, I am bound by the law declared by the
Supreme Court, therefore, in view of the aforesaid legal
position settled by the Supreme Court in the case of
Ramdas (supra), the sale deed executed by Laxmiprasad
cannot be said to be void but it was valid to the extent of
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
share of Laxmiprasad. Further, the alienation in question
is not void but voidable, which has been challenged only
by the plaintiff, who has only 1/6 share in the property
and other co-sharers have not challenged the same and
during pendency of suit there was partition of joint Hindu
family property, in which the disputed property was
adjusted in the share of Laxmiprasad, therefore, the
disputed sale deed is binding on Laxmiprasad."
12. Since the Co-ordinate Bench has taken into consideration the Supreme
Court Judgment (supra), the same is binding upon this Court, and accordingly, it
is held that a coparcener can alienate the land to the extent of his share. The
validity of sale deeds executed by the plaintiff and defendants cannot be
questioned. In the same context, the sale deeds executed by the defendant Nos.
1 and 2 in favour of the defendant Nos. 3 to 6 cannot be said to be illegal.
13. As regards the question of partition between the plaintiff and defendants
or their predecessors is concerned, it appears from the record that there is no
registered document of partition. The entire evidence adduced by the defendants
is more or less in the character of an inferential one. The appellant has mainly
relied upon the revenue entries made from time to time to prove the factum of
partition. Exhibit D-1 is a Khatouni of Rewa State for the years 1926 to 1945
corresponding to Vikram Sambat 1983-2002. In this document, first the name of
Bhura, Manohar has been written. There is a cutting over the document and the
same is not initialed by any concerned officer. There is a note wherein it is
written 'आदे श का कॉलम दज थान फटा होने के कारण व ट अं कत नह ं क जा सकती।'. In
Exhibit D-2 which is also a Kahtouni of the same years as above, the name of
Manohar is scored out and upon his name Badla is written. There is no 'initial'
in the cutting. The said two documents are thus suspicious and cannot be relied
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
upon and the trial Court also did not place any reliance upon them. The trial
Court also discarded these documents.
14. As far as the other documents filed by the defendants are concerned,
some of them are stray applications filed by respective parties for recording
their names over the lands upon which they are in possession, and the same
appears to have been done. This again is not the conclusive proof of partition,
and therefore, the finding of the trial Court that there is no proof of actual
partition is correct and is hereby affirmed.
15. As far the question of limitation is concerned, the same has been
discussed by the trial Court in Paragraph 29 of the judgment. The limitation is
counted from the date of refusal by the defendants to effect partition and the suit
as such has been found to be within limitation. Such finding is correct and the
same does not warrants any interference.
16. Ex consequenti, the first appeal fails and is hereby dismissed. The
judgment and decree dated 11.9.2001 passed in R.C.S. No.136-A/2000 by
Second Additional District Judge, Satna, is hereby confirmed. Needless to say
that interim order, if any granted earlier, stands vacated. However, in the facts
and circumstances of the case, there shall be no order as to costs. Decree be
drawn accordingly.
17. A copy of this judgment along with records be sent back to the trial court
for information and its compliance.
(ARUN KUMAR SHARMA)
JUDGE
JP/-
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/26/2023
5:59:49 PM
