Madhya Pradesh High Court
Baijnath vs Kusum on 14 September, 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 14 th OF SEPTEMBER, 2023
SECOND APPEAL No. 1822 of 2019
BETWEEN:-
BAIJNATH S/O SHRI CHHOTA @ TIDAI KALAR, AGED
ABOUT 53 YEARS, OCCUPATION: CULTIVATION
VILLAGE BASA, PS AND TAHSIL JAISINGHNAAR, DISTT
SHAHDOL (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SHAILENDRA VERMA - ADVOCATE)
AND
1. KUSUM D/O TERSIYABAI W/O CHHEDILAL
JAISWAL, AGED ABOUT 46 YEARS, VILLAGE AND
P.S. SARAI TAHSIL DEOSAR (MADHYA PRADESH)
2. RAMBHAJAN JAISWAL S/O RAMKRIPAL, AGED
ABOUT 45 YEARS, VILLAGE KUBRA PS AND
TEHSIL JAISINGNAGAR DISTT SHAHDOL
(MADHYA PRADESH)
3. RAMSAHAY S/O RAMKRIPAL, AGED ABOUT 38
YE A R S , VILLAGE KUBRA PS AND TEHSIL
JAISINGNAGAR DISTT SHAHDOL (MADHYA
PRADESH)
4. PUSHPALATA M/O TERSIYABAI VILLAGE BHEDRA
POST GAHROI TEHSIL NEW RAMNAGAR DISTT
SATNA (MADHYA PRADESH)
5. PREMLATA M/O TERSIBAI, AGED ABOUT 32
YEARS, PS AND TEHSIL NEW RAMNAGAR DISTT
SHAHDOL (MADHYA PRADESH)
6. RAMSAJIVAN JAISWAL S/O RAMKRIPAL
JAISWAL, AGED ABOUT 42 YEARS, VILLAGE
KUBRA PS AND TEHSIL JAISINGNAGAR DISTT
SHAHDOL (MADHYA PRADESH)
Signature Not Verified
7. LALLU KALAR S/O RAMKRIPAL KALAR, AGED
Signed by: ROSHNI SINGH
Signing time: 9/15/2023
7:16:57 PM
2
ABOUT 46 YEARS, VILLAGE KUBRA PS AND
TEHSIL JAISINGNAGAR DISTT SHAHDOL
(MADHYA PRADESH)
8. SUKHMANTI D/O CHHOTA @TIDAL KALAR, AGED
ABOUT 46 YEARS, VILLAGE NEW RAMNAGAR PS
AND TEHSIL RAMNAGAR DISTT SATNA (MADHYA
PRADESH)
9. BILLO BAI S/O CHHOTA @TIDAI KALAR, AGED
ABOUT 44 YEARS, VILLAGE TIKURIYA TOLA NAI
BASTI SATNA (MADHYA PRADESH)
10. KUSUM ALIAS BUTANIYA S/O BACHANI CHAMAR,
AGED ABOUT 42 YEARS, VILLAGE
BHONDALKHEDI TEHSIL AND DISTT DAMOH
(MADHYA PRADESH)
11. TULAWATI W/O RAJENDRA CHAMAR, AGED
ABOUT 35 YEARS, VILLAGE BHONDALKHEDI
TEHSIL AND DISTT DAMOH (MADHYA PRADESH)
12. HARILAL S/O PREMLAL CHAMAR, AGED ABOUT
31 YEARS, VILLAGE BHONDALKHEDI TEHSIL AND
DISTT DAMOH (MADHYA PRADESH)
13. AMIRATI S/O NARBADUA, AGED ABOUT 47
YEARS, VILLAGE BHONDALKHEDI TEHSIL AND
DISTT DAMOH (MADHYA PRADESH)
14. BACHANI S/O MARRU CHAMAR, AGED ABOUT 56
YEARS, VILLAGE BHONDALKHEDI TEHSIL AND
DISTT DAMOH (MADHYA PRADESH)
15. THE STATE OF MP THROUGH THE COLLECTOR
DISTT DAMOH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANIL DWIVEDI - ADVOCATE FOR THE RESPONDENTS 2 AND7,
SMT. SUSHILA PALIWAL - ADVOCATE FOR RESPONDENTS 10 TO 14 AND
MS. GARIMA TIWARI - PANEL LAWYER FOR THE RESPONDENT/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/defendant 1
Signature Not Verified
Signed by: ROSHNI SINGH
Signing time: 9/15/2023
7:16:57 PM
challenging the judgment and decree dated 04.05.2019 passed by learned
Additional District Judge, Jaisinghnagar, District Shahdol in Civil Appeal No.
24-A/2014 reversing the judgment and decree dated 19.04.2014 passed by
learned Civil Judge Class-I, Jaisinghnagar, District Shahdol in Civil Suit No.38-
A/2013 whereby learned trial Court dismissed the plaintiffs/respondents 1-7's
suit for declaration of title over 1/2 share and permanent injunction, which has
been decreed by first appellate Court.
2. Learned counsel for the appellant/defendant 1 submits that the suit
property belonged to late Mohan who died issueless in the year 1970. Mohan
had two brothers Kolai @ Jailal and Chhota @ Tidai. Kolai and Chhota had
died after death of Mohan i.e. in the year 1978 and 2001 respectively. Learned
counsel for the appellant submits that because Mohan had no issue, therefore,
younger brother Chhota @ Tidai was residing with Mohan and was taking his
care, consequently Mohan had executed a document (Ex.D/23) whereby he
declared Chhota @ Tidai to be his successor acknowledging the factum of
adoption, as such Chhota and after his death the defendants 1-3 Baijnath,
Sukhmanti and Billo Bai are entitled to succeed the property left by Mohan.
Learned counsel for the appellant further submits that learned trial Court rightly
disbelieved the case of partition pleaded by the plaintiff's based on unregistered
document of partition dated 14.01.1977 (Ex.P/6) and after placing reliance on
the document (Ex. D/23) rightly dismissed the suit, but first appellate Court has
ignored the document (Ex.D/23) and relying upon the revenue entries of
mutation, decreed the suit holding the plaintiffs to be Bhumiswami and in joint
possession of the land over 1/2 share. He submits that in presence of document
(Ex.D/23), the suit filed by the plaintiffs is liable to be dismissed by setting aside
the judgment and decree of learned first appellate Court. With the aforesaid
Signature Not Verified
Signed by: ROSHNI SINGH
Signing time: 9/15/2023
7:16:57 PM
submissions, he prays for admission of the second appeal.
3. Learned counsel for the respondents supports the impugned judgment
and decree passed by learned first appellate Court and prays for dismissal of
the second appeal.
4. Heard the learned counsel for the parties and perused the record.
5. In the present case, ownership of Mohan on the land in question is an
admitted fact, therefore, only question which is required to be considered is that
after death of Mohan who would succeed the property left by him. It is also an
undisputed fact on record that after death of Mohan, only two brothers Kolai @
Jailal and Chhota @ Tidai were there in the family and both of them died after
death of Mohan, therefore, as per Schedule to Section 8 of the Hindu
Succession Act, both the brothers being class-II successors would succeed to
the property left by Mohan. The plaintiffs came with the case that they are
owner of the suit property on the basis of document of partition dated
14.01.1977 (Ex. P/6) and as against the case of plaintiffs the defendants were
claiming rights in the suit property on the basis of document (Ex. D/23).
6. Learned first appellate Court has disbelieved both the documents of
partition (Ex.P/6) and the adoption deed/Will (Ex. D/23). Prima facie, the
document of adoption (Ex. D/23) being an unregistered document cannot be
said to be admissible in evidence and does not confer any right on the
defendants 1-3.
7. It is well settled that mere mutation does not confer any right on the
person in whose favour mutation took place and does not extinguish the rights
of the real owner. Further learned first appellate Court has upon due
consideration of the material available on record found the plaintiffs to be in
Signature Not Verified
Signed by: ROSHNI SINGH
Signing time: 9/15/2023
7:16:57 PM
possession of the suit property situated in village Duari and in respect of the
property situated in Mauza Basa, has held them to be entitled for 1/2 joint share.
It is well settled that the finding on the question of possession, is a pure finding
of fact and is not liable to be interfered with in the limited scope of Section 100
C.P.C.
8. As such in the considered opinion of this Court no illegality appears to
have been committed by learned first appellate Court in decreeing the suit and
no substantial question of law is arising in the instant second appeal, which
deserves to be and is hereby dismissed.
9. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
R
Signature Not Verified
Signed by: ROSHNI SINGH
Signing time: 9/15/2023
7:16:57 PM
