Ramrati Tiwri vs Krishnapratap Tiwari
2023 Latest Caselaw 17987 MP

                           1

      IN THE HIGH COURT OF MADHYA PRADESH

                     AT JABALPUR
                        BEFORE
   HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

            ON THE 30th OF OCTOBER, 2023

             SECOND APPEAL No. 99 of 2020

BETWEEN:-

1. RAMRATI     TIWRI    W/O   LATE
   SURYAPRASAD TIWARI, AGED ABOUT
   71 YEARS, VILLAGE CHAURI TAHSIL
   BYOHARI DISTT.SHAHDOL (MADHYA
   PRADESH)
2. RAMLOCHAN     TIWARI   S/O LATE
   SURYAPRASAD TIWARI, AGED ABOUT
   46 YEARS, VILLAGE CHAURI THASIL
   BYOHARI DISTT SHAHDOL (MADHYA
   PRADESH)
3. RAMCHARAN     TIWARI   S/O LATE
   SURYAPRASAD TIWARI, AGED ABOUT
   43 YEARS, VILLAGE CHAURI THASIL
   BYOHARI DISTT SHAHDOL (MADHYA
   PRADESH)
4. RAMSAROJ     TIWARI   S/O  LATE
   SURYAPRASAD TIWARI, AGED ABOUT
   40 YEARS, VILLAGE CHAURI THASIL
   BYOHARI DISTT SHAHDOL (MADHYA
   PRADESH)
                                            .....APPELLANTS

(BY SHRI AVINASH ZARGAR - ADVOCATE)

AND


1. KRISHNAPRATAP TIWARI S/O LATE
   BHAIYALAL TIWRI, AGED ABOUT 41
   YEARS,   VILLAGE   CHAURI  P.S.
   DEVLODN TAHSIL BYOHARI DISTT.
   SHAHDOL (MADHYA PRADESH)
                          2

2. RAKESH TIWARI S/O LATE BHAIYALAL
   TIWARI, AGED ABOUT 36 YEARS,
   VILLAGE   CHAURI    PS  DEVLOND
   TAHASIL BYOHARI DISTT SHAHDOL
   (MADHYA PRADESH)
3. RAMNARAYAN TIWARI S/O LATE
   BHAIYALAL TIWARI, AGED ABOUT 36
   YEARS, VILLAGE CHAURI PS DEVLOND
   TAHASIL BYOHARI DISTT SHAHDOL
   (MADHYA PRADESH)
4. LALOHAR     TIWARI   W/O    LATE
   BHAIYALAL TIWARI, AGED ABOUT 86
   YEARS, VILLAGE CHAURI PS DEVLOND
   TAHASIL BYOHARI DISTT SHAHDOL
   (MADHYA PRADESH)
5. BELAKALI D/O LATE SURYAPRASAD
   TIWARI (DEAD) KAMLA BAI W/O LATE
   ADITYAPRASAD TIWARI, AGED ABOUT
   66 YEARS, VILLAGE NIMIHA TEHSIL
   BYOHARI DISTT.SHAHDOL (MADHYA
   PRADESH)
6. BHAGWAT     TIWARI    S/O  LATE
   ADITYAPRASAD TIWARI, AGED ABOUT
   38 YEARS, VILLAGE NIMIHA TEHSIL
   BYOHARI DISTT.SHAHDOL (MADHYA
   PRADESH)
7. LALI   D/O  LATE   ADITYAPRASAD
   TIWARI, AGED ABOUT 48 YEARS,
   VILLAGE NIMIHA TEHSIL BYOHARI
   DISTT.SHAHDOL (MADHYA PRADESH)
8. SUNITA D/O LATE ADITYAPRASAD
   TIWARI, AGED ABOUT 43 YEARS,
   VILLAGE NIMIHA TEHSIL BYOHARI
   DISTT.SHAHDOL (MADHYA PRADESH)
9. RAMPRASAD S/O SHAMBH U PRASAD
   TIWARI, AGED ABOUT 74 YEARS,
   VILLAGE NIMIHA TAHSIL BYOHARI
   (MADHYA PRADESH)
10. DINESH PRASAD S/O SHAMBH U
    PRASAD TIWARI, AGED ABOUT 71
    YEARS, VILLAGE NIMIHA TAHSIL
    BYOHARI (MADHYA PRADESH)
                            3

11. GANESH PRASAD TIWARI S/O SHAMBH
    U PRASAD TIWARI, AGED ABOUT 56
    YEARS, VILLAGE NIMIHA TAHSIL
    BYOHARI (MADHYA PRADESH)
12. BITIYA  D/O   LATE   CHINTAMANI
    BRAMHAN, AGED ABOUT 49 YEARS,
    VILLAGE   NIMIHA   PS   DEVLOND
    TAHASIL     BYOHARI     (MADHYA
    PRADESH)
13. MUNNI    D/O   LATE   CHINTAMANI
    BRAMHAN, AGED ABOUT 36 YEARS,
    VILLAGE    NIMIHA   PS   DEVLOND
    TAHASIL      BYOHARI     (MADHYA
    PRADESH)
14. RAMAYAN      PRASAD    S/O   LATE
    CHINTAMANI BRAMHAN, AGED ABOUT
    56 YEARS, VILLAGE NIMIHA TASHASIL
    BYOHARI (MADHYA PRADESH)
15. RAMKISHORE S/O LATE CHINTAMANI
    BRAMHAN, AGED ABOUT 54 YEARS,
    VILLAGE NIMIHA TASHASIL BYOHARI
    (MADHYA PRADESH)
16. RAMANUJ S/O LATE CHINTAMANI
    BRAMHAN, AGED ABOUT 51 YEARS,
    VILLAGE NIMIHA TASHASIL BYOHARI
    (MADHYA PRADESH)
17. MADHEV S/O LATE CHINTAMANI
    BRAMHAN, AGED ABOUT 46 YEARS,
    VILLAGE NIMIHA TASHASIL BYOHARI
    (MADHYA PRADESH)
18. JAGDISH    PRASAD    BES   S/O
    SIYASHARAN BES, AGED ABOUT 51
    YEARS, VILAGE JANAKPUR BUWA
    PALHATOLA    TAHASIL   BYOHARI
    (MADHYA PRADESH)
19. BETUA BES S/O SIYASHARAN BES,
    AGED ABOUT 43 YEARS, VILAGE
    JANAKPUR    BUWA    PALHATOLA
    TAHASIL   BYOHARI     (MADHYA
    PRADESH)
20. INDU BES S/O SIYASHARAN BES, AGED
    ABOUT 43 YEARS, VILAGE JANAKPUR
                            4

  BUWA PALHATOLA TAHASIL BYOHARI
  (MADHYA PRADESH)
21. SAUKHILAL BES S/O SIYASHARAN BES,
    AGED ABOUT 35 YEARS, VILAGE
    JANAKPUR     BUWA      PALHATOLA
    TAHASIL    BYOHARI       (MADHYA
    PRADESH)
22. MOTILAL         NAMDEV        S/O
    CHOTKAILIPRASAD NAMDEV, AGED
    ABOUT 63 YEARS, VILLAGE DHARI NO.
    2  TAHASIL   BYOHARI     (MADHYA
    PRADESH)
23. TIRATH PRASAD S/O RAM HELAWAN
    BRAMHAN, AGED ABOUT 71 YEARS,
    VILLAGE CHAURI TAHASIL BYOHARI
    (MADHYA PRADESH)
24. GANGAPRASAD   S/O   RAMAVTAR
    BRAMHAN, AGED ABOUT 51 YEARS,
    VILLAGE   JANAKPURA    BUDWA
    TAHASIL   BYOHARI    (MADHYA
    PRADESH)
25. GANGAPRASAD   S/O   RAMAVTAR
    BRAMHAN, AGED ABOUT 51 YEARS,
    VILLAGE   JANAKPURA    BUDWA
    TAHASIL   BYOHARI    (MADHYA
    PRADESH)
26. BALKARAN    S/O   RAMKHELAVAN
    BRAMHAN, AGED ABOUT 76 YEARS,
    VILLG JANAKPURA BUDWA TAHASIL
    BYOHARI (MADHYA PRADESH)
27. BABI D/O LATE BHAIYALAL BRAMHAN,
    W/O LOKNATH, AGED ABOUT 48
    YEARS, JHAROSI TAHASIL BYOHARI
    (MADHYA PRADESH)
28. LAKSHMI D/O LATE BHAIYALAL
    BRAMHAN, W/O RAMDAS BRAMHAN,
    AGED ABOUT 29 YEARS, BLAUDI
    TAHASIL JAYSINGH NAGAR (MADHYA
    PRADESH)
29. THE SATE OF MADHYA PRADESH
    THROUGH COLLECTOR SHAHDOL
                                         5

         COLLECTOR         SHAHDOL          (MADHYA
         PRADESH)
                                                             .....RESPONDENTS
__________________________________________________________________
      This appeal coming on for admission this day, the court passed the
following:
                                   ORDER

This second appeal has been preferred by legal representatives of

defendant 1 challenging the judgment and decree dated 06.12.2019 passed by

Additional District Judge, Beohari, District Shahdol in RCA No.100030/13 re-

versing the judgment and decree dated 29.08.2013 passed by Civil Judge Class-

I, Beohari, District Shahdol in Civil Suit No.27A/2010, whereby learned trial

Court dismissed the respondents 1-4/plaintiffs' suit filed for declaration of 1/4

share, permanent injunction, for declaring mutation of defendant 1 made on the

basis of alleged gift deeds dated 12.05.1970 and 03.10.1970 and for declaring

the sale deeds dated 20.06.2001 and 20.10.2008 null and void executed by de-

fendant 1 in favour of defendants 11, 12, 13, 14 and 15, which has been decreed

by first appellate Court holding the plaintiffs to be owner and in possession of

the suit lands over ¼ share.

2. Learned counsel for the appellants/legal representatives of defendant 1

submits that undisputedly Bhaiyalal Tiwari (father and husband of the plain-

tiffs), Shambhu Prasad, Chintamani and Thakur Ram were having 1/4-1/4 share

each in the suit lands. Defendants 1-5 are claiming through Shambhu Prasad

whereas the defendants 6-10 are claiming through Chintamani. In his lifetime,

Bhaiyalal Tiwari had gifted his entire property of 1/4 share in favour of defen-

dant 1-Surya Prasad by way of gift deeds dated 12.05.1970 and 03.10.1970 and

on that basis the name of defendant 1 was mutated in the revenue record vide

mutation panji and till his lifetime, Bhaiyalal Tiwari neither claimed any right

nor challenged the aforesaid gift deeds executed by him and also did not chal-

lenge the mutation effected on that basis but after death of Bhaiyalal Tiwari in

the year 2001, the present time barred suit has been filed in the year 2010,

which by holding the plaintiffs to be out of possession was rightly dismissed by

learned trial Court holding it to be hit by provisions of Section 34 of the Spe-

cific Relief Act.

3. Learned counsel further submits that the plaintiffs did not value the suit

properly but wrongly valued the suit at Rs.5,100/- and also did not pay the req-

uisite advalorem court fee. Learned counsel also submits that although the gift

deeds are not on record but on that basis the name of defendant 1 was mutated,

therefore, the plaintiffs who are out of possession could not maintain the suit

simplicitor for declaration of title over 1/4 share and permanent injunction after

a lapse of more than 40 years and as they have not claimed relief of possession,

therefore, suit is barred by provisions of Section 34 of the Specific Relief Act.

With the aforesaid submissions, he prays for admission of the second appeal.

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

5. As has been argued by learned counsel for the appellants and is evident

from documentary evidence available on record, the plaintiffs' father Bhaiyalal

Tiwari was having 1/4 share in the suit property. The defendant 1 (Now LRs/ap-

pellants) claims himself to be owner of property of the share of Bhaiyalal Tiwari

on the basis of alleged unregistered gift deeds dated 12.05.1970 and 03.10.1970,

which have also not been produced on record, and on the basis of which the

name of defendant 1- Surya Prasad was mutated in the revenue record.

6. It is well settled that mutation neither confers any title nor extinguishes

title of the real owner. The plaintiffs have come with the case that they are in

possession of the suit property, which upon appreciation of oral and documen-

tary evidence has been found proved by learned first appellate Court. Learned

counsel has failed to point out any oral or documentary evidence in respect of

partition of the property amongst the four brothers or amongst the present plain-

tiffs and defendants. As such, learned first appellate Court taking into considera-

tion the relations of the parties, has come to the conclusion that the plaintiffs

would be deemed to be in joint possession of the suit property. Resultantly, there

is no question of suit to be barred by limitation.

7. As the defendant 1 has failed to produce even the unregd. gift deeds on

record of learned Court below and has produced only the mutation panji, there-

fore, it cannot be said that the defendant 1 had any legal title over the property

held by Bhaiyalal Tiwari (now by the present plaintiffs). Further, looking to the

nature of suit property and the plaintiffs being not bound by the sale deed(s) in

question, it cannot be said that the plaintiffs have not properly valued the suit or

have not paid requisite court fee. As such and upon perusal of entire record,

learned first appellate Court does not appear to have committed any illegality in

holding the plaintiffs to be bhoomiswami and in possession of 1/4 share of suit

land and in declaring the sale deeds executed by defendant 1 in favour of defen-

dants 11 to 15 to be null & void to the extent of plaintiffs' rights.

8. Resultantly, in absence of any substantial question of law, this second

appeal fails and is hereby dismissed.

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

(DWARKA DHISH BANSAL) JUDGE anu Digitally signed by ANUPRIYA SHARMA Date: 2023.11.02 10:24:10 +05'30'