Madhya Pradesh High Court
Durghatia vs Laxman Pd on 22 November, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 22 nd OF NOVEMBER, 2023
SECOND APPEAL No. 170 of 2009
BETWEEN:-
1. DURGHATIA W/O SAMAYLAL MISHRA, AGED
ABOUT 82 YEARS, VILL.PIPARA, POST CHORHATA,
PS CHORHATA, TEH. HUZUR (MADHYA PRADESH)
2. SANTOSH KUMAR PATHAK S/O LATE SHRI
GANGA PRASAD BRAHMIN, AGED ABOUT 37
YEARS, VILLAGE PIPARA, POST CHORHATA P.S.
CHORHATA, TAHSIL HUZUR DISTT. REWA
(MADHYA PRADESH)
3. NARENDRA KUMAR S/O LATE GANGA PD.
BRAHMIN, AGED ABOUT 28 YEARS, VILLAGE
PIPARA, POST CHORHATA PS CHORHATA TAHSIL
HUZUR DISTT. REWA (MADHYA PRADESH)
4. RAJENDRA PRASAD S/O LATE SURAJ PD.
BRAHMIN, AGED ABOUT 26 YEARS, VILLAGE
PIPARA, POST CHORHATA PS CHORHATA TAHSIL
HUZUR DISTT. REWA (MADHYA PRADESH)
5. BRAJENDRA PD. S/O SURAJ PD. BRAHMIN, AGED
ABOUT 23 YEARS, VILLAGE PIPARA, POST
CHORHATA PS CHORHATA TAHSIL HUZUR DISTT.
REWA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI SANJAY K. AGARWAL, ADVOCATE WITH SHRI SARTHAK NEMA,
ADVOCATE)
AND
1. LAXMAN PD S/O BRAJ BHUSHAN BRAHMIN,
AGED ABOUT 72 YEARS, VILL. BABUPUR,TEH.
HUZUR (MADHYA PRADESH)
2. SUSHILA W/O LATE SURESH KUMAR MISHRA,
AGED ABOUT 50 YEARS, VILLAGE BABUPUR
TAHSIL HUZUR DISTT. REWA (MADHYA
Signature Not Verified
Signed by: KUMARI PALLAVI
SINHA
Signing time: 11/25/2023
1:49:13 PM
2
PRADESH)
3. RAJESH PRASAD MISHRA S/O LATE SURESH PD.
MISHRA, AGED ABOUT 30 YEARS, VILLAGE
BABUPUR TAHSIL HUZUR DISTT. REWA (MADHYA
PRADESH)
4. VIJAY KUMAR MISHRA S/O SURESH KUMAR
MISHRA, AGED ABOUT 27 YEARS, VILLAGE
BABUPUR THSIL HUZUR DISTT. REWA (MADHYA
PRADESH)
5. SMT. ANNU W/O PINTU SHUKLA VILLAGE
BARHADI TAHSIL RAIPUR KARCHULIYAN DISTT.
REWA (MADHYA PRADESH)
6. DINESH KUMAR BRAHMIN S/O LAXMAN PD.
BRAHMAN, AGED ABOUT 52 YEARS, VILLAGE
BABUPUR TAHSIL HUZUR DISTT. REWA (MADHYA
PRADESH)
7. SURENDRA KUMAR S/O LAXMAN PD. PRAHMAN,
AGED ABOUT 47 YEARS, VILLAGE BABUPUR
TAHSIL HUZUR DISTT. REWA (MADHYA
PRADESH)
8. MANOJ KUMAR S/O LAXMAN PD. BRAHMAN
VILLAGE BABUPUR TAHSIL HUZUR DISTT. REWA
(MADHYA PRADESH)
9. ASHA DEVI W/O RAJENDRA PD. SHUKLA, AGED
ABOUT 27 YEARS, VILLAGE BABUPUR TAHSIL
HUZUR DISTT. REWA (MADHYA PRADESH)
10. GUDIA W/O LALLU PD. SHUKLA, AGED ABOUT 25
YEARS, VILLAGE BABUPUR TAHSIL HUZUR DISTT.
REWA (MADHYA PRADESH)
11. SUNITA W/O DWARIKA PD. BRAHMAN, AGED
ABOUT 52 YEARS, VILLAGE BABUPUR TAHSIL
HUZUR DISTT. REWA (MADHYA PRADESH)
12. SANDEEP S/O DWARIKA PD. BRAHMAN, AGED
ABOUT 22 YEARS, VILLAGE BABUPUR TAHSIL
HUZUR DISTT. REWA (MADHYA PRADESH)
13. PUSHPA D/O LATE DWARIKA PRASAD BRAHMAN,
AGED ABOUT 16 YEARS, OCCUPATION: MINOR
THROUGH GUARDIAN SUNITA BRAHMAN
VILLAGE BABUPUR TAHSIL HUZUR DISTT. REWA
Signature Not Verified
Signed by: KUMARI PALLAVI
SINHA
Signing time: 11/25/2023
1:49:13 PM
3
(MADHYA PRADESH)
14. ANJALI D/O LATE DWARIKA PD. BRAHMAN,
AGED ABOUT 14 YEARS, OCCUPATION: MINOR
THROUGH GUARDIAN SUNITA BRAHMAN
VILLAGE BABUPUR TAHSIL HUZUR DISTT. REWA
(MADHYA PRADESH)
15. SATISH S/O LATE DWARIKA PD. BRAHMAN, AGED
ABOUT 12 YEARS, OCCUPATION: MINOR
THROUGH GUARDIAN SUNTIA BRAHMAN
VILLAGE BABUPUR TAHSIL HUZUR DISTT. REWA
(MADHYA PRADESH)
16. COLLECTOR THE STATE OF MADHYA PRADESH
REWA (MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been preferred by the plaintiffs/appellants
challenging the judgment & decree dtd. 11.12.2008 passed by 4th Additional
District Judge, Rewa in RCA No.64A/2007 affirming the judgment & decree
dtd. 30.07.2007 passed by 2nd Civil Judge Class-II, Rewa in Civil Suit
No.338A/06 whereby appellants/plaintiffs' suit filed for declaration of title and
permanent injunction in respect of land area 14.03 acre described in para 6 of
the plaint, has been dismissed.
2. Learned counsel for the appellants/plaintiffs submits that both the Courts
below have concurrently held that defendants' ancestor Dwarika Prasad got his
name mutated fraudulently in place of Ishwardeen and have found the plaintiffs'
ancestor Ishwardeen to be bhoomiswami of the lands in question but have
wrongly presumed the defendants to be in possession on the basis of revenue
entries available on record, source of which was rightly disbelieved by the
Courts below.
3. Learned counsel submits that as the plaintiffs have been found to be
bhoomiswami of the land, therefore, they should have been held to be in
possession of the property, resultantly, the findings of possession recorded in
favour of the defendants being perverse/illegal are not sustainable and dismissal
of suit is also not sustainable. With the aforesaid submissions, learned counsel
prays for admission of the second appeal.
4. Heard learned counsel for the appellants/plaintiffs and perused the record.
5. True it is that while deciding the issue nos. 1 & 2, learned Courts below
have held that the defendants are not bhoomiswami of the land in question and
they got their name mutated fraudulently in the year 1968 vide mutation panji
no.2 but while deciding the issue no.3, learned Courts below have after
appreciating the oral and documentary evidence, come to conclusion that the
plaintiffs are not in possession of the land but the defendants are in possession.
6. Undisputedly, the plaintiffs have not cared to file any documentary evidence
showing their possession over the land in question and even the oldest person
in the family i.e. the plaintiff 1-Durghatia has not been examined, who is
daughter of Ishwardeen and could depose the correct story because the suit
appears to have been filed on 24.09.2005 and according to the age mentioned
of the plaintiffs 2-5 in the plaint, they did not even born in the family.
7. In the case of Mohanlal vs. Nihal Singh (2001) 8 SCC 584 Supreme Court
has held that finding of possession recorded by Courts below is a pure finding
of fact and is not liable to be interfered with in the limited scope of Section 100
CPC.
8. After perusal of entire record, this Court does not find any illegality in the
finding of possession recorded by learned Courts below.
9. Resultantly, in absence of any substantial question of law, this second
appeal fails and is hereby dismissed.
10. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
KPS
