Smt. Rammu @ Simiariya Bali vs Smt. Sadiya
2023 Latest Caselaw 16978 MP

                                                        1
                             IN    THE     HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                     BEFORE
                                    HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                            ON THE 12 th OF OCTOBER, 2023
                                            SECOND APPEAL No. 1594 of 2019

                            BETWEEN:-
                            1.    SMT. RAMMU @ SIMIARIYA BALI W/O LATE SHRI
                                  MULLUVA KACHHI, AGED ABOUT 72 YEARS,
                                  OCCUPATION: AGRICULTURIST R/O VILLAGE
                                  BAMNURAKALA TEHSIL GHUVARA (MADHYA
                                  PRADESH) (DEAD)

                            2.    UJJAN KACHHI S/O LATE SHRI MULLUVA
                                  KACHHI, AGED ABOUT 53 YEARS, OCCUPATION:
                                  AGRICULTURIST VILLAGE BAMNURAKALA TEH.
                                  GHUVARA (MADHYA PRADESH)

                            3.    LANCHHU S/O LATE SHRI MULLUVA KACHHI,
                                  AGED    ABOUT    45   YEARS, OCCUPATION:
                                  AGRICULTURIST VILLAGE BAMNURAKALA TEH.
                                  GHUVARA (MADHYA PRADESH)

                                                                              .....APPELLANT
                            (BY SHRI ANOOP KUMAR SAXENA, ADVOCATE)

                            AND
                            1.    SMT. SADIYA W/O LATE KANKAUA KACHHI R/O
                                  VILLAGE PAY TEHSIL RAJNAGAR (MADHYA
                                  PRADESH)

                            2.    BIHARI S/O LATE KANKAUA KACHHI VILLAGE
                                  PAY TEH. RAJNAGAR (MADHYA PRADESH)

                            3.    KALU S/O LATE KANKAUA KACHHI VILLAGE PAY
                                  TEH. RAJNAGAR (MADHYA PRADESH)

                            4.    BABLOO   S/O   LATE  KANKAUA  KACHHI
                                  OCCUPATION: VILLAGE BAMNOURAKALA TEH.
                                  GHUVARA VILALE BAMNOURAKALA TEH.
                                  GHUVARA (MADHYA PRADESH)

                            5.    STATE OF M.P. THROUGH COLLECTOR DISTT.
                                  CHHATARPUR M.P. (MADHYA PRADESH)
Signature Not Verified
Signed by: KUMARI PALLAVI
SINHA
Signing time: 10/13/2023
12:28:54 PM
                                                                2

                            6.    SMT. RADHARANI D/O RATIRAM YADAV
                                  VILLAGE MARAUT TIRAHA BAMHNOURAKALA
                                  TEH. GHUVARA (MADHYA PRADESH)

                            7.    SMT. BETI BAI KUSHWAHA W/O KALU
                                  KUSHWAHA VILLAGE TIGODA PS SHAHGARH
                                  TEHSIL SHAHGRAH (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                            (BY SHRI SUDHIR KUMAR SHARMA, ADVOCATE FOR RESPONDENTS 1-4)

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

This second appeal has been preferred by the appellants/defendants 1-3

challenging the judgment & decree dtd. 30.04.2019 passed by 2nd Additional District Judge, Bijawar, District Chhatarpur in Civil Appeal No.18A/2018 affirming the judgment and decree dtd. 31.03.2016 passed by 1st Civil Judge Class-II, Bada Malhera, District Chhatarpur in Civil Suit No.2A/12 whereby plaintiffs/respondents 1-4's civil suit for declaration of 1/4 share in the lands described in plaint para 2, total Nos. 11 total area 3.969 hectare situated in Village Bamnaurakala, Tahsil Ghuwara and for declaring the mutation of Lt. Muluva, null and void so also for possession, has been decreed in respect of 9 numbers.

2. Learned counsel for the appellants submits that the lands in question belonged to common ancestor Dhatiya and after his death, came in possession of his sons Kankaua and Muluva, which was partitioned orally in between both the brothers and on that basis, name of Muluva was recorded in the revenue record. Learned counsel submits that as on the basis of partition the lands were recorded in the separate names of Kankaua and Muluva, therefore, now it cannot be said that the lands in question are joint property of the parties. He Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 10/13/2023 12:28:54 PM

submits that after death of Kankaua, part of the land has been sold by plaintiffs who are his successors. Learned counsel also submits that the suit was defective for want of joinder of two sisters of Kankaua and Muluva as well as the daughters of Muluva and Kankaua and learned Courts below have without taking care of the aforesaid, have decreed the suit in respect of 1/4 share. He submits that learned trial Court decred the suit in respect of 8 survey numbers out of total 11 survey numbers i.e. 4173, 4174, 4175, 4177, 4178, 4197, 4236 & 4252 because the land of remaining three survey numbers was sold by the plaintiffs but upon filing appeal(s) by both the parties, learned first appellate Court has dismised the appeal of defendants and decreed the suit in respect of 9 survey numbers including survey no. 3646. With the aforesaid submissions, he prays for admission of the second appeal.

3. Learned counsel appearing for the respondents 1-4/plaintiffs supports the impugned judgment and decree passed by learned Courts below and prays for dismissal of the second appeal.

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

5. Undisputedly, the lands in question total survey no.11, belonged to Dhatiya who was survived by two sons and two daughters namely Kankaua and Muluva, Nannu Bai and Dharmi Bai. As such, in absence of any partition, it can very well be said that the lands in question left by Dhatiya are joint property of

the parties to the suit. Upon due consideration of the material evidence available on record, learned Courts below have concurrently held that the lands in question belonged to joint family of the plaintiffs and defendants, however due to sale of some land by the plaintiffs, learned first appellate Court has decreed the suit in respect of the aforesaid nine survey numbers only by amending the decree of trial Court, who declared the plaintiffs to be sahre holder of 1/4 share Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 10/13/2023 12:28:54 PM

in the total eight survey numbers.

6. Although, while considering the evidence of the parties learned trial Court in paragraph 21 has held that it is not proved that Kankaua and Muluva were cultivating the land jointly but ultimately negativing the plea of oral partition held the plaintiffs and defendants to be joint owners of the land in question over eight survey numbers and held the plaintiffs to be entitled for 1/4 share. Learned first appellate Court again considered the entire material available on record and has concluded that no oral partition as pleaded by the defendants took place in respect of the land in question and by affirming the judgment and decree of learned trial Court, included one more survey no. i.e. 3646 in the judgment and decree holding the plaintiffs to be entitled for 1/4 share in total nine survey numbers. It is well setteld that re-appreciation of oral evidence in second appeal is not permissible and the finding in relation to the previous oral partition, is a pure finding of fact.

7. Upon perusal of the entire record, this Court does not find any perversity in the findings recorded by learned Courts below regarding oral partition. In view of the aforesaid, in absence of any substantial question of law involved in the second appeal, this second appeal fails and is hereby dismissed.

8. However, it is made clear that if any land has been sold by the plaintiffs or Muluva, the same shall be taken into consideration at the time of actual partition, if any, takes place before the Tahsildar in accordance with the provisions contained in Section 178 of the M.P. Land Revenue Code, 1959.

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

(DWARKA DHISH BANSAL) Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 10/13/2023 12:28:54 PM

JUDGE Pallavi

Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 10/13/2023 12:28:54 PM