Madhya Pradesh High Court
Dinesh vs Ramesh on 26 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 26th OF SEPTEMBER, 2023
SECOND APPEAL No.2435 of 2018
BETWEEN:-
DINESH S/O JAGANNATH NAMDEO, AGED
ABOUT 43 YEARS, OCCUPATION:
AGRICULTURIST VILL. MASANGAON,
TEH.AND DIST. HARDA (MADHYA PRADESH)
.....APPELLANT
(MS. SANJANA SAHNI, ADVOCATE)
AND
1. RAMESH S/O JAGANNATH NAMDEO, AGED
ABOUT 48 YEARS, MASANGAON, TEH.AND
DIST HARDA (MADHYA PRADESH)
2. KAILASH S/O JAGANNATH NAMDEO, AGED
ABOUT 40 YEARS, VILL. MASANGAON TAH.
AND DIST. (MADHYA PRADESH)
3. BASANT S/O JAGANNATH NAMDEO, AGED
ABOUT 38 YEARS, VILL. MASANGAON TAH.
(MADHYA PRADESH)
4. SMT. BEBI D/O JAGANNATH NAMDEO, AGED
ABOUT 50 YEARS, SILKFODKHEDA POST
JIYAGAON TAH. KHATEGAON (MADHYA
PRADESH)
2
5. SMT. NEEMA BAI W/O MOHANLAL, AGED
ABOUT 52 YEARS, CHHNANERA TAH. NAYA
HARSUD (MADHYA PRADESH)
6. SMT. SAROJ BAI W/O HUKUMCHAND, AGED
ABOUT 43 YEARS, SILKFODKHEDA POST
JIYAGAON TAH. KHATEGAON (MADHYA
PRADESH)
7. SMT. REKHA BAI W/O BASANT, AGED ABOUT
30 YEARS, VILL. MASANGAON TAH. (MADHYA
PRADESH)
8. STATE OF M.P. COLLECTOR DISTT. HARDA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI LAXMINARAYAN SAKLE, ADVOCATE)
..............................................................................................................................................
This appeal coming on for admission this day, Court passed the
following:
ORDER
This second appeal has been preferred by the
appellant/plaintiff challenging the judgment & decree
dtd.28.07.2018 passed by Additional Judge to the Court of 1 st
Additional District Judge, Harda in Regular Civil Appeal
No.14/2018 affirming the judgment & decree dtd. 21.12.2017
passed by 1 st Civil Judge Class-II, Harda in RCSA
No.700112/2014 whereby suit filed by the plaintiff was
dismissed by trial Court, which in civil appeal has been decreed
by first appellate Court to the extent of 1/4 share in the lands
total area 21.80 acres and for 1/7 share in land khasra No.13/6
area 10.62 acres, situated in Village Masangaon.
2. As per case of the plaintiff, land bearing survey No. 22/12,
22/13, 22/17, 22/15 area 2.85 acres; land bearing survey No.
22/3, 22/4, 22/5, 22/8 area 2.73 acres; and the land bearing
survey no. 36/2 area 2.77 acres i.e. total area 8.35 acres is
standing in the name of Basant, Ramesh and Rekha Bai wife of
Basant. Similarly the land bearing survey No.14/2 area 5 acres ;
land bearing survey No. 26/2 area 1.82½ acres ; and the land
bearing survey no. 80 area 2.49 acres i.e. total area approx. 10
acres is standing in the name of Kailash and Ramesh, which was
acquired by way of different sale deed(s) and so recorded in the
revenue papers.
3. Other land bearing survey no.13/4 area 10.62 acres, 13/6
area 10.62 acres, 13/5 area 6 acres, 194/1 area 40 decimal and
194/18 area 12 decimal i.e. total area 38.38 acres being ancestral
property is jointly recorded in the name of plaintiff and
defendants except Rekhabai.
4. Learned counsel for the appellant/plaintiff submits that
learned first appellate Court has erred in decreeing the suit only
in part in respect of the aforesaid lands i.e. total area 38.38 acres
as described in paragraph 26(1) & (2) of the impugned judgment,
whereas the plaintiff is entitled for 1/4 share in the entire land
area 66.52 acres as described in plaint, which is joint Hindu
family property of the parties. Learned counsel submits that the
land area 38.38 acres (as mentioned in aforesaid paragraph 3)
belonged to joint Hindu family and was so recorded in the names
of plaintiff and defendants, out of which land survey no.13/4
area 10 acres was given by father Lt. Jagannath to the plaintiff
vide family settlement dtd.18.11.1999 (Ex.P/10). Learned
counsel submits that although a Will was executed on 25.07.2002
(Ex.D/1) by Lt. Jagannath but in presence of family settlement
deed dtd. 18.11.1999, he had no right to execute the Will,
however, she submits that learned Courts below have found the
Will dtd. 25.07.2002 to be a proven document and in spite of this
although learned trial Court dismissed the suit, but learned first
appellate Court has decreed the suit on the basis of Will.
5. In fact learned Counsel has not shown her anger/anguish to
the decree passed by learned first appellate Court in respect of
the lands which are recorded in the names of plaintiff and
defendants but she has argued with the submissions that the land
(as mentioned in aforesaid paragraph 2) although stands in the
name of Basant + Ramesh and Kailash + Ramesh but was
acquired from the income of joint Hindu family in the names of
aforesaid defendants and despite there being no source of income
of the defendants, learned Courts below have erred in holding it
to be their self acquired property.
6. Learned counsel further submits that non consideration of
the material piece of evidence regarding acquisition of the land
from the income of joint Hindu family in the names of said
defendants, has vitiated the impugned judgment and decree and
in presence of proven nucleus available in the hands of members
of joint Hindu family, the aforesaid land should have been held
belonging to joint Hindu family and resultantly the suit filed by
the plaintiff ought to have been decreed in its entirety. With the
aforesaid submissions learned counsel prays for admission of the
second appeal.
7. Learned counsel appearing for the respondents supports the
impugned judgment and decree and prays for dismissal of the
second appeal.
8. Heard learned counsel for the parties and perused the
record.
9. On the basis of documentary and oral evidence available on
record, learned Courts below have held that the land described in
aforesaid paragraph 3 is joint Hindu family property of the
parties and in the lifetime, father Late Jagananath executed a
Will on 25.07.2002 (Ex.D/1), whereby the plaintiff and
defendants (sons) were given certain shares as mentioned in the
Will. It has also been found proved by learned first appellate
Court that the land of survey no.13/6 area 10.62 acres was
divided amongst all the seven shareholders (sons and daughters).
Upon perusal of the entire record, there does not appear any
illegality in the judgment and decree passed by first appellate
Court.
10. So far as the document of family settlement dtd. 18.11.1999
(Ex.P/10) is concerned, it is an unregistered document whereby
the land of survey no. 13/4 area 10 acres is said to have been
given by Late Jagannath to the plaintiff, which first of all is not
admissible in evidence for want of its registration and secondly,
it has not been proved by the plaintiff and in any case in
presence of the findings recorded by learned Courts below in
respect of the Will dtd. 25.07.2002 (Ex.D/1), which also covers
the land survey no. 13/4 area 10 acres, it becomes a suspicious
document. If the document of family settlement dtd.18.11.1999 is
discarded, then learned first appellate Court has rightly passed
the judgment and decree in respect of the property as mentioned
in aforesaid paragraph 3, which is recorded in the name of
plaintiff and defendants.
11. So far as the other lands as mentioned in aforesaid
paragraph 2, i.e. standing in the name of Basant + Ramesh +
Rekhabai as well as in the name of Kailash + Ramesh, is
concerned, learned Courts below have held that the plaintiff has
failed to prove these properties to have been purchased/acquired
from the nucleus of joint Hindu family and vide paragraphs 15 &
16 learned first appellate Court has held that there is no evidence
on record to that effect, which was purchased by defendants and
their names were also mutated.
12. Undisputedly the said property was purchased/acquired by
way of different registered sale deeds in the name of defendants
and despite execution of registered Will on 25.07.2002 by Late
Jagannath, nothing was mentioned in the Will about the existence
of such property of joint Hindu family. In my opinion, if the
property standing in the names of defendants, had any nexus with
joint Hindu family of the parties or was acquired by Late
Jagannath, there was no reason available with Late Jagannath not
to mention this property also in the Will, and it was very much
probable to make mention of it in the registered Will.
13. In view of the aforesaid discussion and upon perusal of the
entire record, this Court does not find any perversity in the
judgment and decree passed by learned Courts below decreeing
the suit only in part.
14. Resultantly, in absence of any substantial question of law,
this second appeal fails and is hereby dismissed in limine.
15. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
Pallavi
Digitally signed by KUMARI PALLAVI SINHA
Date: 2023.09.30 13:26:24 +05'30'
