Girija Devi vs Mahesh Prasad
2023 Latest Caselaw 18215 MP

                                                     1
                           IN    THE    HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                          ON THE 1 st OF NOVEMBER, 2023
                                          SECOND APPEAL No. 785 of 2021

                          BETWEEN:-
                          GIRIJA DEVI D/O LATE BHAIYALAL MISHARA, AGED
                          ABOUT 54 YEARS, OCCUPATION: W/O KRIPA SHANKAR
                          SHUKLA OCCU. PRIVATE CHANDPURIYAN TOLA TEH.
                          BEOHARI P.S. BEOHARI (MADHYA PRADESH)

                                                                           .....APPELLANT
                          (BY SHRI ALOK KUMAR GUPTA - ADVOCATE)

                          AND
                          1.    MAHESH PRASAD S/O LATE BHAIYALAL MISHRA,
                                AGED     ABOUT    57  YEARS, OCCUPATION:
                                SERVICEMAN VILLAGE BEOHARI TEH. AND
                                DISTT. SHAHDOL (MADHYA PRADESH)

                          2.    SHIV PRASAD S/O LATE BHAIYALAL MISHRA,
                                AGED    ABOUT    56   YEARS, OCCUPATION:
                                SERVICEMEN VILLAGE BEOHARI TEHSIL AND
                                DISTT.SHAHDOL (MADHYA PRADESH)

                          3.    CHAKRAVARTILAL   S/O   LATE   BHAIYALAL
                                MISHRA, AGED ABOUT 51 YEARS, OCCUPATION:
                                AGRICULTURE VILLAGE BEOHARI TEHSIL AND
                                DISTT.SHAHDOL (MADHYA PRADESH)

                          4.    RAJENDRA PRASAD S/O LATE BHAIYALAL
                                MISHRA, AGED ABOUT 36 YEARS, OCCUPATION:
                                PRIVATE VILLAGE BEOHARI TEHSIL AND
                                DISTT.SHAHDOL (MADHYA PRADESH)

                          5.    CHANDRA KIRAN D/O LATE BHAIYALAL MISHRA
                                W/O VIJAY NARAYAN CHATURVEDI, AGED ABOUT
                                48 YEARS, BEOHARI AT PRESENT UPARAHATI
                                REWA (MADHYA PRADESH)

                          6.    REKHA D/O LATE BHAIYALAL MISHRA, AGED
                                ABOUT  32   YEARS, BEOHARI AT PRESENT
                                UPARAHATI REWA (MADHYA PRADESH)
Signature Not Verified
Signed by: ANUPRIYA
SHARMA
Signing time: 11/2/2023
4:30:34 PM
                                                               2

                          7.      PUSHPENDRA KUMAR S/O MAHESH PRASAD
                                  MISHRA, AGED ABOUT 30 YEARS, VILLAGE
                                  BEOHARI DISTT.SHAHDOL (MADHYA PRADESH)

                          8.      STATE OF MADHYA PRADESH                  THROUGH
                                  C O L L E C T O R DISTT.SHAHDOL           (MADHYA
                                  PRADESH)

                                                                                         .....RESPONDENTS
                          (BY SHRI K.S.PATEL - PANEL LAWYER FOR RESPONDENT 8/STATE)

                                  This appeal coming on for admission this day, th e court passed the
                          following:
                                                               ORDER

This second appeal has been preferred by the appellant/plaintiff- Girija

Devi challenging the judgment and decree dated 03.02.2021 passed by Additional Judge to the Court of Additional District Judge, Beohari, District Shahdol in RCA-100036/2014 reversing/modifying the judgment and decree dated 26.06.2014 passed by Civil Judge Class-I, Beohari in civil suit No.103A/2011, whereby learned trial Court decreed the plaintiff/appellant's suit to the extent of 1/8 share in all the numbers of suit lands by further holding that the registered partition deed dated 06.12.2001 and 15.07.2009 are null and void to the extent of plaintiff's rights, which in civil appeal filed by defendant 4- Rajendra Prasad, has been modified and the plaintiff/appellant has been held to be shareholder of 1/7 share in the land khasra nos.1169, 1172, 1180/1, 1181/2 only.

2. Learned counsel for the appellant/plaintiff submits that as the property in dispute is ancestral property, therefore, the father- Bhaiyalal and his four sons were not having any right to divide the property leaving the plaintiff and defendants 5-6 (daughters) by way of registered partition deed dated 06.12.2001 (Ex.P/2) and thereafter the defendant 1- Mahesh Prasad had also no Signature Not Verified Signed by: ANUPRIYA SHARMA Signing time: 11/2/2023 4:30:34 PM

right to divide the property of his share with the defendant 7- Pushpendra Kumar vide registered partition deed dated 15.07.2009 (Ex.P/3).

3. With the support of aforesaid submissions, learned counsel submits that taking into consideration the fact that disputed property belongs to plaintiff's ancestors, learned trial Court rightly decreed the suit in respect of plaintiff's 1/8 share in all the suit lands by holding the partition deed dated 06.12.2001 and 15.07.2009 to be illegal and void to the extent of plaintiff's rights but learned first appellate Court has erred in considering both the partition deeds to be valid and further erred in modifying the judgment and decree of trial Court holding the plaintiff to be entitled for 1/7 share only in the lands survey nos. 1169 area 0.717 hectare, 1172 area 0.441 hectare, 1180/1 area 0.153 hectare and 1181/2 area 0.315 hectare situated in village Beohari, Tahsil Beohari which fell in the share of father Bhaiyalal by way of registered partition deed dated 06.12.2001 (Ex.P/2).

4. Learned counsel further submits that because the property was ancestral property in the hands of father Bhaiyalal, therefore, the plaintiff was having right by birth in the suit property and no partition could be done of the suit property without joining the plaintiff and other daughters as party to the partition deed. With the aforesaid submissions, learned counsel prays for admission of the second appeal.

5. Heard learned counsel for the appellant/plaintiff and perused the record.

6. Upon consideration of the documentary evidence, learned first appellate Court has come to conclusion that all the lands in question belonged to Bhaiyalal and was so recorded in the revenue record and there is no documentary evidence available on record to show that the property in question Signature Not Verified Signed by: ANUPRIYA SHARMA Signing time: 11/2/2023 4:30:34 PM

belonged to father or grand father of Bhaiyalal. As Bhaiyalal was exclusive owner/bhoomiswami of the land in question, therefore, he thought fit to divide the property amongst himself and four sons by way of registered partition deed dated 06.12.2001 (Ex.P/2) and he kept with him only four survey nos. i.e. 1169, 1172, 1180/1 and 1181/2. By way of partition deed dated 15.07.2009 (Ex.P/3), Mahesh Prasad (son of Bhaiyalal) further partitioned the land of his share in between his son defendant 7- Pushpendra Kumar and himself.

7. Learned first appellate Court has not found that on the date of partition of the suit property amongst Bhaiyalal and his four sons, the plaintiff was having any right in the suit property. Even otherwise, from perusal of the entire material available on record, the property is shown belonging to Bhaiyalal exclusively, therefore, the plaintiff had no right in the suit property in the lifetime of Bhaiyalal, which he divided by way of registered partition deed amongst himself and his four sons.

8 . Taking into consideration the aforesaid, learned first appellate Court after ignoring the will dated 06.05.2006 (Ex.D/5) propounded by defendant 4 allegedly executed by Bhaiyalal in favour of Shailendra Kumar son of Rajendra Prasad and Smt. Sushma Mishra wife of Rajendra Prasad (defendant 4) held the plaintiff to be shareholder of 1/7 share in the aforesaid four survey numbers came in share of Bhaiyalal by way of registered partition deed (Ex.P/2).

9. Upon due consideration of the entire oral and documentary evidence available on record, in the considered opinion of this Court, learned first appellate Court has not committed any illegality in passing the impugned judgment and decree holding the plaintiff to be shareholder of 1/7 share in the aforesaid four survey numbers and in declaring the plaintiff to be entitled for

Signature Not Verified Signed by: ANUPRIYA SHARMA Signing time: 11/2/2023 4:30:34 PM

partition of the said land of four survey numbers.

10. Resultantly, the second appeal in absence of any substantial question of law fails and is hereby dismissed.

11. Pending application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE anu

Signature Not Verified Signed by: ANUPRIYA SHARMA Signing time: 11/2/2023 4:30:34 PM