Madhya Pradesh High Court
Suresh Kumaar vs Brijkumar on 13 October, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 13 th OF OCTOBER, 2023
SECOND APPEAL No. 363 of 2021
BETWEEN:-
SURESH KUMAR S/O RAMROOP TRIPATHI, (DEAD)
THROUGH LRS:
A. SMT. KOUSHALYA TRIPATHI W/O LATE SHRI SURESH
KUMAR TRIPATHI, AGED ABOUT 58 YEARS,
OCCUPATION - FARMER
B. ANIL TRIPATHI S/O LATE SHRI SURESH KUMAR
TRIPATHI, AGED ABOUT 30 YEARS, OCCUPATION -
FARMER
ALL R/O KHIRSADOH TAHSIL PARASIYA, DIST.
CHHINDWARA
C. SMT. ARUNA TIWARI D/O LATE SHRI SURESH
KUMAR TRIPATHI, W/O SANJAY TIWARI, AGED ABOUT
39 YEARS,
D. SMT. ANJU TIWARI D/O LATE SHRI SURESH KUMAR
TRIPATHI, W/O TARUN TIWARI, AGED ABOUT 37 YEARS
R/O KHIRSADOH, NEAR TVS COMP. TAHSIL PARASIYA,
DISTT. CHHINDWARA
.....APPELLANT
(BY SHRI SHISHIR KUMAR SONI - ADVOCATE)
AND
1. BRIJKUMAR S/O RAMROOP TRIAPATHI
KHIRSADOH TAH. PARASIYA DISTT.
CHHINDWARA (MADHYA PRADESH)
2. SHIVMANI S/O RAMROOP TRIPATHI KHIRSADOH
TEHSIL PARASIA (MADHYA PRADESH)
3. STATE OF MADHYA PRADESH THROUGH
C O L L E C T O R DISTT.CHHINDWARA (MADHYA
PRADESH)
4. PANKAJ VISHWAKARMA S/O MANGAL PRASAD
VISHWAKARMA, AGED ABOUT 32 YEARS, NEAR
SHIV MANDIR BADKUHI TEHSIL PARASIYA
(MADHYA PRADESH)
Signature Not Verified
Signed by: ANUPRIYA
SHARMA
Signing time: 10/16/2023
5:53:49 PM
2
.....RESPONDENTS
(BY SHRI YASH NITIN NASERY - ADVOCATE )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal is preferred by appellant/plaintiff- Suresh Kumar
(dead) now LRs, challenging the judgment and decree dated 26.02.2021 passed
by 2nd Additional District Judge, Chhindwara in Civil Appeal No.1700003A/15
reversing the judgment and decree dated 12.01.2015 passed by Civil Judge
Class-I, Parasiya, District Chhindwara in civil suit No.52-A/10, whereby learned
trial Court decreed the appellant/plaintiff's suit for declaration of title and
permanent injunction which in civil appeal filed by the defendant 1, has been
dismissed.
2 . Learned counsel for the appellant/plaintiff submits that the land in
question, total area 3 acres belonged to father of the plaintiff and defendants 1-2
namely Ramroop Tripathi and was so recorded in the revenue papers but on the
basis of a document of mutual partition (Ex.P/7), the defendant 1- Brijkumar
gave the land of his share i.e. one acre land to the plaintiff and on that basis the
plaintiff is bhoomiswami and in possession of 2 acres land out of 3 acres, left
by father- Ramroop. Learned counsel submits that upon due consideration of
material available on record coupled with the document of mutual partition
(Ex.P/7), learned trial Court rightly decreed the suit but learned first appellate
Court has committed illegality in dismissing the suit discarding the document of
mutual partition (Ex.P/7). With the aforesaid submissions, he prays for
admission of the second appeal.
3. Learned counsel appearing for the respondent 1 supports the
Signature Not Verified
Signed by: ANUPRIYA
SHARMA
Signing time: 10/16/2023
5:53:49 PM
impugned judgment and decree passed by first appellate Court and prays for
dismissal of the second appeal with the submissions that there is no illegality in
the judgment and decree passed by first appellate Court and the document of
partition in fact, is not a document of mutual partition but it is a relinquishment
deed which cannot be considered in evidence without its registration.
4. Heard learned counsel for the parties and perused the record.
5. Undisputedly, land total area 3 acres belonged to father of the plaintiff
and defendants 1-2 namely Ramroop and there is no dispute about share of
defendant 2- Shivmani but there is dispute only in respect of remaining area 2
acres, which the plaintiff claims belonging to him on the basis of document of
mutual partition (Ex.P/7), last para of which says that the land area 1 acre has
been given by defendant 1- Brijkumar to the plaintiff- Suresh Kumar and he has
given consent for recording the name of appellant/plaintiff in the revenue record.
6. Upon perusal of said document of partition (Ex.P/7), it cannot be said
to be a document of mutual partition but it is a clear cut document of
relinquishment deed, which in my considered opinion, is not admissible in
evidence for want of registration. It is well settled that relinquishment of share in
favour of an individual person can be done only by way of registered
document.
7. Upon perusal of the entire record as well as the alleged document of
mutual partition (Ex.P/7), this Court does not find any illegality in the impugned
judgment and decree dated 26.02.2021 passed by first appellate Court
dismissing the suit.
8. Resultantly, in absence of any substantial question of law, this second
appeal fails and is hereby dismissed in limine under Order 41 Rule 11 CPC.
9`. Pending application(s), if any, shall stand dismissed.
Signature Not Verified
Signed by: ANUPRIYA
SHARMA
Signing time: 10/16/2023
5:53:49 PM
(DWARKA DHISH BANSAL)
JUDGE
anu
Signature Not Verified
Signed by: ANUPRIYA
SHARMA
Signing time: 10/16/2023
5:53:49 PM
