Gyandas vs Janardhan
2023 Latest Caselaw 9666 MP

                                1

        IN THE HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR
                            BEFORE
         HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                    ON THE 27th OF JUNE, 2023

                 SECOND APPEAL No.590 of 2021

     Between:-
1.   GYANDAS, S/O BAIGA, AGED ABOUT 68 YEARS,
     CASTE MAHAR, RESIDENT OF SEONI KHURD
     KIRNAPUR    TEH.    KIRNAPUR   (MADHYA
     PRADESH)

2.   HARIDAS (DEAD) THR. LRS.

A.   SANTKALA BAI W/O RAVI, AGED ABOUT 35
     YEARS, RESIDENT OF SEONI KHURD
     KIRNAPUR  TEH.   KIRNAPUR   (MADHYA
     PRADESH)

B.   SUREKHA W/O SANTOSH, AGED ABOUT 38
     YEARS, RESIDENT OF SEONI KHURD
     KIRNAPUR  TEH.  KIRNAPUR   (MADHYA
     PRADESH)

3.   BHAGAN BAI D/O BAIGA, AGED ABOUT 72
     YEARS, RESINDENT OF SEONI KHURD
     KIRNAPUR TEH.   KIRNAPUR   (MADHYA
     PRADESH)

4.   UPENDRA KUMAR S/O PANDURANG, AGED
     ABOUT 60 YEARS, OCCUPATION: MAHAR
     RESINDENT OF SEONI KHURD KIRNAPUR
     TEH. KIRNAPUR (MADHYA PRADESH)

5.   RAHUL S/O GAUTAM, AGED ABOUT 24 YEARS,
     RESINDENT OF SEONI KHURD KIRNAPUR
     TEH. KIRNAPUR (MADHYA PRADESH)

                                                .....APPELLANTS

     (BY MS. SANJANA SAHNI, ADVOCATE)
                               2

     AND

1.   JANARDHAN S/O SADASHIV, AGED ABOUT 50
     YEARS, CASTE MAHAR, RESIDENT OF GRAM
     KESHA POST MATE TEH. KIRNAPUR
     (MADHYA PRADESH)

2.   ISAR BAI D/O SADASHIV, AGED ABOUT 65
     YEARS, CASTE MAHAR RESIDENT OF GRAM
     KESHA POST MATE TEH. KIRNAPUR
     (MADHYA PRADESH)

3.   KALAWATI BAI (DEAD) THR. LRS.

A.   RANJNA BAI W/O GENDALAL, AGED ABOUT
     41 YEARS, RESIDENT OF GRAM KESHA POST
     MATE TEH. KIRNAPUR (MADHYA PRADESH)

B.   VIKAS S/O GENDALAL, AGED ABOUT 38
     YEARS, RESIDENT OF GRAM KESHA POST
     MATE TEH. KIRNAPUR (MADHYA PRADESH)

C.   PANKAJ S/O GENDALAL, AGED ABOUT 35
     YEARS, RESIDENT OF GRAM KESHA POST
     MATE TEH. KIRNAPUR (MADHYA PRADESH)

4.   VANITA BAI D/O SADASHIV, AGED ABOUT 50
     YEARS, RESINDENT OF SEONI KHURD
     KIRNAPUR    TEH.  KIRNAPUR    (MADHYA
     PRADESH)

5.   KAVITA BAI D/O SADASHIV, AGED ABOUT 48
     YEARS, RESINDENT OF SEONI KHURD
     KIRNAPUR    TEH.  KIRNAPUR    (MADHYA
     PRADESH)

6.   VISHAL S/O DURYODHAN, AGED ABOUT 22
     YEARS, OCCUPATION: MAHAR RESIDENT OF
     SEONI KHURD KIRNAPUR TEH. KIRNAPUR
     (MADHYA PRADESH)

7.   SINDHULATA   BAI  D/O   DURYODHAN
     OCCUPATION: MAHAR RESIDENT OF SEONI
     KHURD    KIRNAPUR  TEH.   KIRNAPUR
     (MADHYA PRADESH)

8.   BINDULATA BAI D/O DURYODHAN, AGED
     ABOUT 23 YEARS, OCCUPATION: MAHAR
     RESIDENT OF SEONI KHURD KIRNAPUR TEH.
                                    3

      KIRNAPUR (MADHYA PRADESH)

9.    HEMLATA BAI D/O DURYODHAN, AGED
      ABOUT 23 YEARS, OCCUPATION: MAHAR
      RESIDENT OF SEONI KHURD KIRNAPUR TEH.
      KIRNAPUR (MADHYA PRADESH)

10.   MUKESH S/O GOVARDHAN, AGED ABOUT 26
      YEARS, OCCUPATION: MAHAR RESIDENT OF
      SEONI KHURD KIRNAPUR TEH. KIRNAPUR
      (MADHYA PRADESH)

11.   NIKESH S/O GOVARDHAN, AGED ABOUT 26
      YEARS, OCCUPATION: MAHAR RESIDENT OF
      SEONI KHURD KIRNAPUR TEH. KIRNAPUR
      (MADHYA PRADESH)

12.   AKASH S/O GOVARDHAN OCCUPATION:
      MAHAR RESIDENT OF SEONI KHURD
      KIRNAPUR TEH. KIRNAPUR (MADHYA
      PRADESH)

13.   LOKESH S/O GOVARDHAN, AGED ABOUT 22
      YEARS, OCCUPATION: MAHAR RESIDENT OF
      SEONI KHURD KIRNAPUR TEH. KIRNAPUR
      (MADHYA PRADESH)

14.   STATE OF M.P. THR. COLLECTOR DISTT.
      BALAGHAT (MADHYA PRADESH)

                                                   .....RESPONDENTS



...................................................................................................................................................................

      This appeal coming on for orders/admission this day, Court passed
the following:
                               ORDER

This second appeal has been preferred by the plaintiffs challenging the judgment & decree dtd. 01.03.2021 passed by 1st Additional District Judge, Balaghat in RCA No.71/2019 affirming the judgment & decree dtd.18.07.2019 passed by 2nd Civil Judge Class-1, Balaghat in Civil Suit

No.600031/2015 whereby plaintiffs' suit filed for declaration, partition and separate possession, has been dismissed.

2. Learned counsel for the plaintiffs/appellants submits that despite recording findings to the effect that there was no partition in the family, learned trial Court wrongly dismissed the suit on the grounds not sustainable in the eyes of law and learned first appellate Court without there being any documentary evidence in respect of partition of the suit property, has wrongly held that there was ancient partition in between parties and according to which they were selling the property.

3. Learned counsel further submits that learned first appellate Court has erred in taking into consideration the sale deeds (Ex. D/1 & D/2) for the purpose of recording finding about the previous partition whereas the lands mentioned in these sale deeds have no nexus with the suit land because the suit has been filed only with regard to the land Survey No. 14/1 and 45/1 and after sale of the land area 2.77 acre by the defendants, the plaintiffs are entitled to receive the suit lands Survey No.14/1 and 45/1 in the partition among the plaintiffs only. With the aforesaid submissions learned counsel for the appellants prays for admission of the second appeal.

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

5. As pleaded in para 3 of the plaint, the plaintiffs have come with the case that their ancestor Hagarya was bhoomiswami of the land Survey No.14/1 area 0.886 hectare and 45/1 area 0.801 hectare. Just reverse of it, in para 4 of the plaint, it has been alleged that Hagarya held the land total area 6.27 acre, however survey numbers of this area have not been mentioned in the entire plaint. It is also apparent from the plaint that the partition has been sought only among the plaintiffs and declaration has

been sought to the effect that the defendants have no right in the suit land Survey No. 14/1 and 45/1.

6. From bare perusal of the plaint, it is clear that no proper description in respect of the property held by Hagarya has been mentioned and no pleading in respect of the land sold by the plaintiffs themselves, has been made in the plaint, which has created suspicion on the case of the plaintiffs.

7. After perusal of the oral and documentary evidence, learned first appellate Court has held that there was previous partition among the parties and according to such partition, the plaintiffs and defendants have sold the land of their ownership/possession. It is well settled that when there is previous partition, the parties cannot seek further partition and in my considered opinion the findings recorded by learned first appellate Court in respect of previous partition being based on oral and documentary evidence, are not liable to be interferred with, being pure findings of facts.

8. Resultantly, the second appeal having no involvement of substantial question of law, deserves to be and is hereby dismissed. However, no order as to costs.

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

(DWARKA DHISH BANSAL) JUDGE

Pallavi Digitally signed by KUMARI PALLAVI SINHA Date: 2023.06.30 15:16:29 +05'30'