Achala & Ors. vs Pheran & Ors.
2023 Latest Caselaw 7007 MP

                              1



 IN THE HIGH COURT OF MADHYA PRADESH
             AT JABALPUR
                           BEFORE
        HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                    ON THE 1st OF MAY, 2023
                  SECOND APPEAL No. 535 of 2000

BETWEEN:-
       1. ACHALA S/O    MATHURA
          CHAMAR AGED ABOUT 60
          YEARS,   R/O    LAUNDI
          DISTRICT   CHHATARPUR
          (MADHYA PRADESH)

       2. ADHARAWA S/O ACHALA
          CHAMAR AGED ABOUT 25
          YEARS,   R/O    LAUNDI
          DISTRICT   CHHATARPUR
          (MADHYA PRADESH)

       3. KHILLOO    S/O   ACHALA
          CHAMAR AGED ABOUT 30
          YEARS (DECEASED)

3(a). SMT. BHOORI WIDOW OF
      KHILLOO CHAMAR AGED
      ABOUT 40 YEARS, R/O
      LAUNDI        DISTRICT
      CHHATARPUR    (MADHYA
      PRADESH)

(b). RADHACHARAN S/O KHILLOO
      CHAMAR AGED ABOUT 8
      YEARS, MINOR THROUGH
      NATURAL       GUARDIAN
      MOTHER BHOORI WD. OF
      KHILLOO   R/O    LAUNDI
      DISTRICT   CHHATARPUR
      (MADHYA PRADESH)

(c).     BABLOO    S/O   KHILLOO
                            2



      CHAMAR AGED ABOUT 5
      YEARS MINOR THROUGH
      NATURAL     GUARDIAN
      BHOORI MOTHER WIDOW
      KHILLOO  CHAMAR   R/O
      LAUNDI       DISTRICT
      CHHATARPUR   (MADHYA
      PRADESH)


                                           .....APPELLANTS
(BY SHRI SUMANT KUMAR BHATTACHARYA - ADVOCATE)

AND
1.   PHERAN     S/O   BALAIYA
     CHAMAR AGED ABOUT 40
     YEARS, R/O ADHIYARI WARI
     TAHSIL LAUNDI DISTRICT
     CHHATARPUR      (MADHYA
     PRADESH)
2.   BALDA     S/O    BALAIYA
     CHAMAR, AGED ABOUT 35
     YEARS, R/O ADHIYARI WARI
     TAHSIL LAUNDI DISTRICT
     CHHATARPUR      (MADHYA
     PRADESH)
3.   SUNWA      S/O   BALAIYA
     CHAMAR, AGED ABOUT 25
     YEARS, R/O ADHIYARI WARI
     TAHSIL LAUNDI DISTRICT
     CHHATARPUR      (MADHYA
     PRADESH)
4.   RATIRAM S/O DABIYA ALIAS
     DEWA     CHAMAR,    AGED
     ABOUT    45  YEARS,   R/O
     ADHIYARI    WARI   TAHSIL
     LAUNDI           DISTRICT
     CHHATARPUR       (MADHYA
     PRADESH)
5.   PARMA S/O DABIYA ALIAS
     DEWA   CHAMAR,   AGED
                             3



      ABOUT    35  YEARS,   R/O
      ADHIYARI    WARI   TAHSIL
      LAUNDI           DISTRICT
      CHHATARPUR       (MADHYA
      PRADESH)
6.    MST. MAJHALI WIDOW OF
      DABIYA     ALIAS    DEWA
      CHAMAR, AGED ABOUT 62
      YEARS, R/O ADHIYARI WARI
      TAHSIL LAUNDI DISTRICT
      CHHATARPUR       (MADHYA
      PRADESH)
7.    MST. KARI DEVI S/O DABIYA
      ALIAS DEVAK CHAMAR W/O
      BHALU CHARMAR, AGED
      ABOUT 40 YEARS, R/O KHERA
      KASAR TAHSIL GAURIHAR
      DISTRICT     CHHATARPUR
      (MADHYA PRADESH)
8.    MST. SUMITRA D/O DABIA
      ALIAS DEVI DEBA CHAMAR
      W/O GOPAL CHAMAR, AGED
      ABOUT 20 YEARS, R/O KHERA
      KASAR TAHSIL GAURIHAR
      DISTRICT     CHHATARPUR
      (MADHYA PRADESH)
9.    MST. GAURI D/O DABIYA
      ALIAS DEWA CHAMAR W/O
      SANEHI   CHAMAR,    AGED
      ABOUT 38 YEARS, R/O SIJAL
      TAHSIL LAUNDI DISTRICT
      CHHATARPUR      (MADHYA
      PRADESH)
10.   RAMLAL S/O DABIYA ALIAS
      DEWA   CHAMAR,     AGED
      ABOUT   30  YEARS,   R/O
      ADHIYARI WARI TAHSIL
      LAUNDI         DISTRICT
      CHHATARPUR     (MADHYA
      PRADESH)
11.   STATE OF M.P. THROUGH
                                  4



     THE        COLLECTOR
     CHHATARPUR   (MADHYA
     PRADESH)
                                                     .....RESPONDENTS
(RESPONDENT NO.11/STATE BY MS.SHANTI TIWARI - PANEL LAWYER )

"Reserved on : 26.04.2023"
"Pronounced on : 01.05.2023".
      This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the court passed the following:
                             JUDGMENT

1. This Second Appeal under Section 100 of CPC has been filed against the Judgment and Decree dated 21-01-2000 passed by District Judge, Chhatarpur in RCA No. 113-A/99 arising out of Judgment and Decree dated 28-8-1998 passed by Civil Judge Class 2 Londi, Distt. Chhatarpur in Civil Suit No.6-A/1987.

2. The facts of the case in short are that the plaintiffs/respondents filed a civil suit for declaration of title by pleading interalia that the plaintiffs and the defendants are the members of the same family. Mathura Chamar had three sons namely Balaiyya, Dibiya and Achla. The plaintiffs are the legal heirs of Balaiyaa and Dibiya whereas the defendant no.1 is Achla, the third brother of Balaiyaa and Dibiya. Kh. No. 1059, 1061, 1065, 1045, 1047, 1050, 1073/1, 1074, 1120, 1125, 1067 total area 4.976 situated in village Madva Tahsil Londi, Distt. Chhatarpur is the ancestral property of the plaintiffs and the defendants. Mathura was the owner of the aforesaid properties. Mathura expired about 28 years back. After his death, his three sons namely Balaiyaa,

Dibiya and Achla inherited the aforementioned properties. The suit properties were never partitioned. All the three brothers had 1/3rd share. After the death of Balaiyya, the defendant no. 1 Achla manipulated the revenue records and at some places, his share was shown to be ½ in the suit property whereas the legal heirs of Balaiyya and Dibiya were shown to have 1/4th share each. The defendant no.1 Achla filed an application under Section 178 of MPLR Code for partition of land except Kh. No. 1125 and 1073/1, claiming his ½ share which was objected by Balaiyaa and Dibiya. Balaiyya and Dibiya insisted for 1/3rd share but Achla didnot agree. Accordingly, Balaiyaa started searching for revenue records. Since, he was old, therefore, before he could take any action, he expired. Accordingly, the plaintiffs were made party to the partition proceedings being the legal heirs of Balaiyya. During the said proceedings, the plaintiffs came to know that half portion of Kh. No. 1125 and 1173/1, has been alienated by Achla to his son Atharva/defendant no.2 and the remaining half portion of the said Kh. No.s have been alienated to his another son Khillu/defendant no.3. Since, the question of title had arisen, therefore, the Tahsildar stayed the proceedings with a direction to approach the Civil Court. Thus, it was claimed that the plaintiffs and Achla and legal heirs of Dibiya have 1/3rd share in the property in dispute.

3. The defendant no. 1 Achla filed his written statement and admitted that the lands in dispute belong to Mathura. It was claimed that apart from three sons, Mathura had one daughter by name Mungia. On the date of death of Mathura, his widow Bihru was alive. Therefore, three

sons and widow of Mathura got 1/4 share each in the property. Bihru was residing with Achla, therefore, she gave her share to him accordingly, it was claimed by Achla/defendant no.1 that he had 1/2 share in the property, whereas Balaiyaa and Dibiya had 1/4 share. In additional pleadings, it was pleaded by Achla that Mathura, during his life time had partitioned the properties and 1/4 share each was given to three sons and his wife Bihru. His parents resided with him. The last rites of his father were performed by him. His mother gave her share to him. Accordingly, he had 1/2 share in the property whereas Balaiyya and Dibiya have 1/4th share. He further stated that Lotan and Thakurdeen were the owners of Kh. No. 1125 and 1073/1 which were given to him and accordingly, he has sold the same to his sons Khillu and Atharva. The partition had taken place about 30-35 years back.

4. Atharva/defendant no.2 filed his separate written statement and claimed that Mungia also had share being daughter of Mathura and She is alive. Partition had taken place long back and accordingly, the parties are in possession of the same. Achla has 1/2 share whereas Balaiyya and Dibiya have 1/4 share.

5. The legal heirs of defendant no.3 Khillu, namely Bhuri, Radhacharan and Bablu filed their separate written statement and claimed that at the time of death of Mathura, his widow Bihru and daughter Mungia were alive. Kh. No. 1073/1 and 1125 were that of Achla, but by mistake the names of Balaiyya and Dibia were also recorded, therefore, they agreed for transfer of those Kh. No.s in favour of Khillu and Atharva. Bihru had given her share to Achla, and

therefore, it was prayed that Achla has 1/2 share in the property whereas Balaiyya and Dibiya had 1/4th share.

6. The Plaintiffs didnot enter in the witness box and defendant examined himself Achla (D.W.1), Atharva (D.W.2), and Dheena (D.W.3).

7. All the defendants claimed that Mathura had partitioned the property in equal share. 1/3rd share was given to Dibiya, Balaiyya, and Achla and 1/4th share was kept by Mathura for himself. After his death, his widow Bihru resided with him and thereafter, She gave her share to Achla. Achla in his examination in chief claimed that he has two sisters.

8. The Trial Court after framing issues and recording evidence, held that Kh. No. 1125 and 1173/1 were also that of Mathura and therefore, the mutation of names of Khillu and Atharva is bad. It was also held that no partition had taken place. However, it was held that Mungia was also daughter of Mathura, therefore, She will also have her share. Therefore, it was declared that plaintiffs no.1 to 3/legal heir of Balaiyya, plaintiffs no. 4 to 10 have 1/4th share each. The mutation of names of Khillu and Atharva was also declared null and void.

9. Being aggrieved by the Judgment and Decree passed by the Trial Court, the plaintiffs filed an appeal challenging the grant of 1/4th share to Mungia.

10. The First Appellate Court, by impugned Judgment and Decree held that plaintiffs no. 1 to 3 and plaintiffs no. 4 to 10 have 1/3rd share.

11. This Appeal has been filed by the defendants. The Appeal has been admitted on the following Substantial Questions of Law :

(i) Whether the Court below has erred in decreeing the suit of plaintiffs for 1/3 share inspite of the fact that Mungia was having ¼ share in the property?

(ii) Whether the Court below has ignored that Mungia was a necessary party to the suit and without impleading her, suit itself was liable to be dismissed?

12. Challenging the Judgment and Decree passed by the Court below, it is submitted by Counsel for the Appellant that Mungia had filed an application under Order 1 Rule 10 CPC which was rejected by the Trial Court. Revision filed by Mungia was also dismissed by the High Court with an observation that if Mungia is found to be the daughter of Mathura, then the plaintiffs will have to face consequences.

13. Therefore, the only question for consideration is as to whether Mungia was the daughter of Mathura or not?

14. As already pointed out, the plaintiffs didnot lead any evidence. Achla (D.W.1) in his evidence has not named Mungia. On the contrary he stated that he has two sisters. The names of those sisters were not disclosed. Whereas in the written statement, it was claimed by Achla that he has one sister namely Mungia. Thus, there are self contradictory statements. No other evidence was led by Achla to prove that Mungia was the daughter of Mathura.

15. It was the claim of the defendants that Mungia was the daughter of Mathura, therefore, the burden was on them to prove that Mungia was the fourth legal heir of Mathura. However, the defendants have failed to prove the same. Accordingly, the Appellate Court didnot commit any mistake by holding that the plaintiffs no. 1 to 3 and plaintiffs no. 4 to 10 have 1/3rd share each.

16. Accordingly, both the Substantial Questions of Law are answered in Negative.

17. Ex consequenti, the Judgment and Decree dated 21-01-2000 passed by District Judge, Chhatarpur in RCA No. 113-A/99 is hereby affirmed.

18. The Appeal fails and is hereby Dismissed.

(G.S. AHLUWALIA) JUDGE HEMANT SARAF 2023.05.02 10:40:04 +05'30' HS