Madhya Pradesh High Court
Jwala vs Rammilan Sahu on 15 March, 2023
Author: Anjuli Palo
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 15 th OF MARCH, 2023
SECOND APPEAL No. 2384 of 2022
BETWEEN:-
JWALA S/O LAXMAN, AGED ABOUT 60 YEARS, VILLAGE
KOTMA TEHSIL SOHAGPUR DISTRICT SHAHDOL
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI YOGESH SINGH BAGHEL - ADVOCATE )
AND
PLAINTIFF(1) 1.RAMMILAN SAHU S/O GAIDU SAHU,
AGED ABOUT 60 YEARS, VILLAGE
KOTMA TEHSIL SOHAGPUR (MADHYA
PRADESH)
PLAINTIFF(2). 2.BADRI SAHU S/O GAIDU SAHU, AGED
ABOUT 54 YEARS, R/O VILLAGE KOTMA
TEHSIL SOHAGPUR DISTRICT SHAHDOL
(MADHYA PRADESH)
PLAINTIFF(3). 3.PREETAM SAHU S/O GAIDU SAHU, AGED
ABOUT 48 YEARS, R/O VILLAGE KOTMA
TEHSIL SOHAGPUR DISTRICT SHAHDOL
(MADHYA PRADESH)
PLAINTIFF(4). 4.SMT. SHANTI BAI W/O DAU LAL SAHU
S/O GAIDU SAHU, AGED ABOUT 45 YEARS,
R/O VILLAGE PADMANIYA TEHSIL
SOHAGPUR DISTRICT SHAHDOL
(MADHYA PRADESH)
PLAINTIFF(5). 5.SMT. URMILA SAHU D/O GAIDU SAHU
W/O RAMLAL SAHU, AGED ABOUT 42
Y E A R S , R/O VILLAGE PADMANIYA
TEHSIL SOHAGPUR DISTRICT SHAHDOL
Signature Not Verified
SAN (MADHYA PRADESH)
PLAINTIFF(6). 6.SMT. PARMILA D/O GAIDU SAHU W/O
Digitally signed by ANUPRIYA SHARMA
CHOUBEY
Date: 2023.03.21 17:34:02 IST
CHHOTELAL, AGED ABOUT 40 YEARS, R/O
2
GHARAULA MOHALLA WARD NO. 13
TEHSIL SOHAGPUR DISTRICT SHAHDOL
(MADHYA PRADESH)
PLAINTIFF(7). 7.SHYAMLAL @ DADDU S/O BHAROSHA
SAHU D/O BOOTU SAHU, AGED ABOUT 60
Y E A R S , R/O VILLAGE PANCHGAON
TEHSIL SOHAGPUR DISTRICT SHAHDOL
(MADHYA PRADESH)
8.KODULAL SAHU S/O BHAROSHA D/O BOOTU,
AGED ABOUT 50 YEARS, R/O VILLAGE
PANCHGAON TEHSIL SOHAGPUR DISTRICT
SHAHDOL (MADHYA PRADESH)
PLAINTIFF(9). 9.RAMCHARAN SAHU S/O BHAROSHA
SAHU MOTHER SMT. BOOTU, AGED
ABOUT 50 YEARS, R/O VILLAGE
PANCHGAON TEHSIL SOHAGPUR
DISTRICT SHAHDOL (MADHYA
PRADESH)
PLAINTIFF(10). 10.GANESHIYA S/O BHAROSHA SAHU
MOTHER SMT BOOTU, AGED ABOUT 62
YE A R S , R/O VILLAGE PANCHGAON
TEHSIL SOHAGPUR DISTRICT SHAHDOL
(MADHYA PRADESH)
PLAINTIFF(11). 11.SEMIYA BAI D/O BHAROSHA SAHU
MOTHER SMT BOOTU, AGED ABOUT 65
YE A R S , R/O VILLAGE PANCHGAON
TEHSIL SOHAGPUR DISTRICT SHAHDOL
(MADHYA PRADESH)
PLAINTIFF(12). 12.RAMMILAN SAHU S/O BHAROSA
SAHU MOTHER SUKHMATIYA, AGED
ABOUT 48 YEARS, NOT MENTION
(MADHYA PRADESH)
PLAINTIFF(13). 13. SUCCESSORS OF NANDLAL SAHU
FATHER SONE SAHU (DEAD)
1.SHIVPOOJAN SAHU S/O NANDLAL
SAHU, AGED ABOUT 40 YEARS,
2..SHYAMACHARAN SAHU S/O NANDLAL
SAHU, AGED ABOUT 37,
3.RAMKRISHN SAHU S/O NANDLAL
SAHU, AGED ABOUT 31 YEARS, R/O
Signature Not Verified
SAN VILLAGE LALPUR TEHSIL SOHAGPUR
DISTRICT SHAHDOL (MADHYA
Digitally signed by ANUPRIYA SHARMA
CHOUBEY
PRADESH),
Date: 2023.03.21 17:34:02 IST
4.SMT. RAMLALI W/O HAJARI PRASAD
3
SAHU, AGED ABOUT 28 YEARS, R/O
VILLAGE PAKARIYA TOLA BUDHAR
DISTRICT SHAHDOL (MADHYA
PRADESH),
5.SMT. LALITA W/O TIKARAM PRASAD
S A H U AGED ABOUT 39 YEARS, R/O
VILLAGE PATNAKALA TESIL ANUPPUR
DISTRICT SHAHDOL (MADHYA
PRADESH).
PLAINTIFF(14). 14.JODHERAM SAHU S/O TILAK SAHU
MOTHER SHANKHI SAHU, AGED ABOUT
55 YEARS, R/O VILLAGE LALPUR TEHSIL
SOHAGPUR DISTRICT SHAHDOL
(MADHYA PRADESH)
DEFENDANT(1) 15.RAMESH SAHU S/O BHOLA SAHU
DEFENDANT(2). 16.KAMLESH SAHU S/O BHOLA SAHU,
AGED ABOUT 50 YEARS, R/O VILLAGE
KOTMA TEHSIL SOHAGPUR DISTRICT
SHAHDOL (MADHYA PRADESH)
DEFENDANT(3). 17.RAMKRIPAL SAHU S/O BHOLA SAHU,
AGED ABOUT 44 YEARS, R/O VILLAGE
KOTMA TEHSIL SOHAGPUR DISTRICT
SHAHDOL (MADHYA PRADESH)
DEFENDANT(4). 18.SMT SAVIRI D/O BHOLA SAHU, AGED
ABOUT 45 YEARS, R/O NEAR
SOHAGPUR MASJID TEHSIL
SOHAGPUR DISTRICT SHAHDOL
(MADHYA PRADESH)
DEFENDANT(5). 19.SMT LALLI D/O BHOLA SAHU, AGED
ABOUT 40 YEARS, R/O CHATWAI
TEHSIL SOHAGPUR DISTRICT
SHAHDOL (MADHYA PRADESH)
DEFENDANT(6). 20.SMT. MUNNU D/O BHOLA SAHU,
AGED ABOUT 40 YEARS, R/O JAMUI
TEHSIL SOHAGPUR DISTRICT
SHAHDOL (MADHYA PRADESH)
DEFENDANT(8). 21.SURESH S/O RAMLAL, AGED ABOUT
42 YEARS.
Signature Not Verified
SAN
DEFENDANT(9). 22.PAPPU SAHU S/O RAMLAL, AGED
Digitally signed by ANUPRIYA SHARMA ABOUT 40 YEARS, R/O KOTMA TEHSIL
CHOUBEY
Date: 2023.03.21 17:34:02 IST SOHAGPUR DISTRICT SHAHDOL
4
(MADHYA PRADESH)
DEFENDANT(10). 23.CHANDA D/O RAMLAL W/O
CHOTDAU, AGED ABOUT 40 YEARS,
R/O PADMANIYA TEHSIL SOHAGPUR
DISTRICT SHAHDOL (MADHYA
PRADESH)
DEFENDANT(11). 24.SANTA D/O RAMLAL W/O
CHOTDAU, AGED ABOUT 38 YEARS,
R/O JODHPUR TEHSIL SOHAGPUR
DISTRICT SHAHDOL (MADHYA
PRADESH)
DEFENDANT(12). 25.SMT. GUGUN SAHU D/O LAXMAN,
AGED ABOUT 60 YEARS, R/O VILLAGE
SALAIYA THANA BIRSINGHPUR PALI
DISTRICT UMARIYA (MADHYA
PRADESH)
DEFENDANT(13). 26.SRI GUNDU S/O LAXMAN, AGED
ABOUT 60 YEARS, R/O VILLAGE
KHOLKHAMHRA THANA
BIRSINGHPUR PALI DISTRICT
UMARIA (MADHYA PRADESH)
DEFENDANT(14). 27.NARBAD S/O DADI SAHU, AGED
ABOUT 75 YEARS, R/O VILLAGE
KOTMA TEHSIL SOHAGPUR DISTRICT
SHAHDOL (MADHYA PRADESH)
DEFENDANT(15). 28.STATE OF MADHYA PRADESH
THROUGH COLLECTOR SHAHDOL
DISTRICT SHAHDOL (MADHYA
PRADESH)
DEFENDANT(16). 29.KU. SEEMA PATEL S/O VED
PRAKASH PATEL, AGED ABOUT 20
YEAR S , R / O WARD NUMBER 4, IN
FRONT OF CIRCUIT HOUSE SHAHDOL
DISTRICT SHAHDOL (MADHYA
PRADESH)
Signature Not Verified
SAN
Digitally signed by ANUPRIYA SHARMA
CHOUBEY
Date: 2023.03.21 17:34:02 IST
5
.....RESPONDENTS
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal under Section 100 of CPC has been filed being
aggrieved by the judgment dated 29.7.2022 passed by learned lower appellate
Court whereby some of the findings given by learned trial Court have been
reversed.
2. The properties in dispute are Khasra Nos.52/1, 77/1, 82, 803, 811,
1121, 1130, 1134, 1135, 1136, 1143, 1144, 1146, 1147, 1149, 1151, 1164, 1250,
admeasuring : 1.438, 0.531, 4.351, 0.393, 0.279, 0.482, 1.036, 0.174, 0.493,
0.518, 0.190, 0.028, 0.348, 0.210, 1.202, 0.040, 0.012, 0.174 Hectares
respectively, in total admeasuring 11.899 Hectares situated at village Kotma,
Tehsil Sohagpur, District Shahdol.
3. Admittedly, Lakshman Sahu, Gaidu Sahu and Narvad Sahu are sons
and Buttu, Sukhamtiya, Gallu and Sankhi are daughters of late Dadi Sahu.
Lakshman Sahu, Gaidu Sahu, Buttu, Sukhamtiya and Sankhi are dead. Bhola
Jwala, Ramlal, Gugun and Gundu are sons of late Lakshman Sahu in which
Bhola Jwala, Ramlal are dead. Legal heirs of Bhola are Ramesh, Kamlesh,
Ramkripal, Savitri, Lalli and Munnu. Legal heirs of Gaidu are Ram milan, Badri,
Pritam, Shanti, Urmila and Parmila. Legal heirs of Buttu are daddu, Kodulal,
Ramcharan, Ganeshiya and Semiya Bai. Ram milan is legal heir of Sukhmatiya.
4. The plaintiffs and defendant nos.1 to 14 belong to the same family.
Signature Not Verified
Dadi Sahu was the forefather of the plaintiffs and defendants nos.1 to 14. Dadi
SAN
Digitally signed by ANUPRIYA SHARMA
CHOUBEY
Date: 2023.03.21 17:34:02 IST Sahu was the title holder and was in possession of the disputed lands in his
lifetime and he never partitioned the disputed property during his lifetime. After
the death of Dadi, no partition was taken place between the parties. However,
Jwala Prasad had sold the land bearing khasra no.1121, 1151 area admeasuring
0.161 hectare and 0.040 hectare and was again trying to sell some part of the
property.
5. Thereafter, again Jwala Sahu had tried to sell certain part of disputed
lands in January, 2009 and hence, the cause of action for filing the civil suit had
arisen, therefore, the plaintiffs filed the suit for partition as well as declaration
that they are entitled to have a share of 1/7 each in the disputed land. The
plaintiffs also prayed a relief that the sale-deeds executed in respect of Khasra
o.1149/1 admeasuing 0.4 hectare, is not binding upon them.
6. Defendant nos. 1 to 7 filed the written statement and stated that in sejra
khaandaan all the successors of Dadi and Bhola were not added as parties.
Late Dadi had four daughters who after taking their share in the ancestral
property had gone to their in-law's house after marriage and had relinquished the
right to the remaining ancestral property in favor of their brothers. He divided
the property among his sons Lakshman, Gaidu and Narbad. Gaidu had received
more land in comparison to others. Hence, defendant no.1 filed an application
under Section 178 of M.P. Land Revenue Code before the Tehsildar in which
partition of 1/3-1/3 share of land was ordered.
7. The learned trial Court after considering the rival contentions and
evidence on record,dismissed the civil suit filed by the plaintiffs holding that
they have failed to establish their suit.
8. The first appeal prefered by the plaintiffs has been partly allowed and
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SAN
the judgment and decree of the trial Court has been partially modified by the
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CHOUBEY
learned appellant Court. The lower appellate Court by the impugned judgment
Date: 2023.03.21 17:34:02 IST
and decree declared that the lands bearing Khasra Nos.52/1, 77/1, 82, 803, 811,
1121, 1130, 1134, 1135, 1136, 1143, 1144, 1146, 1147, 1149, 1151, 1164, 1250,
admeasuring : 1.438, 0.531, 4.351, 0.393, 0.279, 0.482, 1.036, 0.174, 0.493,
0.518, 0.190, 0.028, 0.348, 0.210, 1.202, 0.040, 0.012, 0.174 Hectares
respectively, in total admeasuring 11.899 hectare are to be partitioned in the
ratio of 1/7 each and shall be give to the legal heirs of late Dadi Sahu, namely
Laxman, Gaidu, Narbad and daughters Buttu, Sukhmatiya, Gallu and Sankhi.
The lower appellate Court has also held in clause 1 of the decree passed by the
trial Court that the land described as Khasra No.1149/1 admeasuring 0.4 hectare
shall be taken back from the defendant no.7 Jwala Prasad.
9. Learned counsel for the appellants submitted that the learned trial
Court had rightly dismissed the suit of plaintiffs finding that all the issues no.1,
2a, 2b, 3, 4 and 5 were not proved in favour of the plaintiffs. Learned trial Court
has rightly held that no documetary evidence has been produced by the
plaintiffs regarding sale of land bearing khasra no.1121 area admeasuring 0.161
hectare and khasra no.1151 area admeasuring 0.4. hectare by defendant
no.7/appellant herein. He further submitted that the trial Court while deciding the
civil suit rightly held that the plaintiffs have not duly proved the sale of portion
of the disputed property and the plaintiffs have also failed to produce any
documents regarding the title in their favour and no legal document has been
produced by the regarding their possession over the disputed properties. The
learned trial Court below has also rightly answered the issue no.4 as not proved
because the plaintiffs had failed to partition the suit property on the basis of
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SAN
technical points. But the lower appellate Court has reversed the many of the well
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reasoned findings and decree passed by the trial Court without any kind of
CHOUBEY
Date: 2023.03.21 17:34:02 IST
documentary evidence available in support of the pleadings raised by the
plaintiffs.
10. Heard learned counsel for the appellants on the question of admission
and perused the record as well as impugned judgment and the judgment passed
by the trial Court.
11. The lower appellate Court has analysed the evidence of P.W-1 P.
Sahu, P.W-2 Joheran Sahu and P.W-3 Ram Milan who have stated that certain
portion of the disputed lands have been sold without any partition. The lower
appellate Court found that defendant no.7 has sold the land bearing Khasra
No.1149/1 admeasuring 0.4 hectare to the defendant no.16 Seema who has a
bonafide purchaser of the said land. Therefore, the lower appellate appellate
Court has rightly held that the land admeasuring 0.40 hectare should be lessened
from the ownership of the defedant no.7. The lower appellate Court also took
note of the fact that daughters of Dadi were not impleaded parties before the
Tehsildar in an application filed for the purpose of partition. Hence, the order of
partition passed by the Tehsildar dated 28.01.2009 shall not found to be proved
or binding on the parties.
12. After perusal of the findings recorded by the lower appellate Court
from paragraph nos.42 to 49 with regard to right, titile and interest of the
plaintiffs, this Court finds that the same are based on proper apprecition of
material available on record which, by no stretch of imagination can be said to
be perversed or illegal. The findings recorded by the lower appellate Court fall
in the realm of appreciation of facts and documents as well as the material
available on record. The same cannot be said to be questions of law. This
Signature Not Verified
SAN
Court in exercise of power under Section 100 of CPC cannot go into the re-
Digitally signed by ANUPRIYA SHARMA
CHOUBEY
appreciation of evidence, documentary as well as oral and to again record
Date: 2023.03.21 17:34:02 IST
finding of fact.
13. Hon'™ble the Supreme Court in the case of Ravi Setia v. Madan
Lal and Others, (2019) 9 SCC 381 has held that interference and
reappreciation of the evidence in an appeal under Section 100 of the Code of
Civil Procedure is permissible only where findings are perverse i.e. based
on complete misappreciation or erroneous consideration of evidence or
where there is failure to consider relevant evidence, as the same becomes
question of law. [See also: Damodar Lal v. Sohan Devi and Others , (2016)
3 SCC 78]
14. In this context it is apt to refer to refer to the decision rendered in the
case of Naresh and Others v. Hemant and Others, 2019 SCC Online SC
1490 wherein it has been observed by Hon'ble the Supreme Court as follows:
œ81. Despite repeated declarations of law by the
judgments of this Court and the Privy Council for over a
century, still the scope of Section 100 has not been
correctly appreciated and applied by the High Courts in
a large number of cases. In the facts and circumstances
of this case, the High Court interfered with the pure
findings of fact even after the amendment of Section
100 CPC in 1976. The High Court would not have
been justified in interfering with the concurrent
findings of fact in this case even prior to the amendment
of Section 100 CPC. The judgment of the High Court is
clearly against the provisions of Section 100 and in no
uncertain terms clearly violates the legislative intention.
15. In this context, it is appropriate to refer to the decision in the case of
Nazir Mohamed v. J. Kamala and Others , 2020 SCC OnLine SC
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SAN
6 7 6 wherein Hon'™ble the Supreme Court in paragraph 32 has held as
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follows:
CHOUBEY
Date: 2023.03.21 17:34:02 IST
32. To be œsubstantialÂÂ, a question of law must
be debatable, not previously settled by the law of the
land or any binding precedent, and must have a material
bearing on the decision of the case and/or the rights of
the parties before it, if answered either way.
16. The findings recorded by the lower appellate Court are based on
proper appreciation of the evidence available on record. The same cannot be
termed as perverse or illegal warranting interference by this Court in exercise of
power under Section 100 of the Code of Civil Procedure.
17. Hence, no substantial question of law arises for
consideration in this appeal. Accordingly, the same being devoid of merits,
stands dismissed.
(SMT. ANJULI PALO)
JUDGE
anu
Signature Not Verified
SAN
Digitally signed by ANUPRIYA SHARMA
CHOUBEY
Date: 2023.03.21 17:34:02 IST
