Bhoori Bai vs Birga Bai
2024 Latest Caselaw 3154 MP

Madhya Pradesh High Court

Bhoori Bai vs Birga Bai on 2 February, 2024

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

                                                       S.A. No. 2470/2023

     IN THE HIGH COURT OF MADHYA PRADESH
                  AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

              ON THE 2nd OF FEBRUARY, 2024

             SECOND APPEAL No. 2470 OF 2023

     BETWEEN:-
     BHOORI BAI W/O AMARCHAND GAULLI,
     AGED ABOUT 61 YEARS, OCCUPATION:
     FARMER R/O GRAM CHARGAVA, TEHSIL
     DHANAURA, DISTRICT SEONI (MADHYA
     PRADESH)

                                              .....APPELLANT
     (BY SHRI VINAY SINGH BAGHEL AND SHRI RAM
     MURTI TIWARI, ADVOCATES)


     AND

1.   BIRGA BAI W/O DEEMAKCHAND GAULI,
     AGED ABOUT 59 YEARS, OCCUPATION:
     FARMER R/O VILLAGE RAIPURA, THANA AND
     TEHSIL  DHANAURA,    DISTRICT   SEONI
     (MADHYA PRADESH)


2.   RAJJO BAI W/O DEEMAKCHAND GAULI,
     AGED ABOUT 57 YEARS, OCCUPATION:
     FARMER R/O VILLAGE KAMTA THANA
     KANHIWADA DISTRICT SEONI (MADHYA
     PRADESH)


3.   LOKMAN S/O AMARCHAND GAULLI, AGED
     ABOUT 35 YEARS, OCCUPATION: FARMER R/O
     GRAM CHARGAWAN TEHSIL DHANAURA
     DISTRICT SEONI M.P. (MADHYA PRADESH)

4.   GIRVAR S/O AMARCHAND GAULLI, AGED
     ABOUT 33 YEARS, OCCUPATION: FARMER R/O
                                                                  S.A. No. 2470/2023

      GRAM CHARGAWAN TEHSIL DHANAURA
      DISTRICT SEONI (MADHYA PRADESH)

5.    TEHSILDAR, TEHSIL DHANAURA, DISTRICT
      SEONI (MADHYA PRADESH)

6.    STATE OF MADHYA PRADESH THROUGH
      COLLECTOR SEONI (MADHYA PRADESH)

7.    VIMLA BAI W/O JAMALSINGH GAULI R/O
      GRAM LAMTA TEHSIL DHANAURA DISTRICT
      SEONI (MADHYA PRADESH)

                                                  .....RESPONDENTS

      (BY SHRI SANDEEP DUBEY, PANEL LAWYER FOR
      RESPONDENTS 5 & 6-STATE)

...................................................................................................................................................................

      This appeal coming on for order this day, Court passed the
following:
                               ORDER

Heard on the question of admission and perused the record of Courts below.

2. This second appeal has been preferred by appellant/defendant 1 challenging judgment & decree dtd. 04.08.2023 passed by 1 st District Judge, Lakhnadon, District Seoni in RCA No. 7/2019 reversing/modifying the judgment & decree dtd. 27.11.2018 passed by 1st Civil Judge Class-I, Lakhnadon, District Seoni in Civil Suit No.129A/2013 whereby trial Court dismissed plaintiffs' suit for declaration of title, partition and separate possession and decreed the counter claim filed by defendants 2-3 (Lokman and Girvar).

3. Facts in short are that one Netram was bhoomiswami and in possession of disputed land situated in Village Bilkata (area 3.520 hectare) and Chargawan (area 5.95 hectare), who had four daughters

namely Birga Bai, Rajjo Bai, Vimla Bai and Bhoori Bai,. Originally, claiming rights through their father, the suit was filed by Birga Bai, Rajjo Bai and Vimla Bai for declaration of their equal share in the suit lands, but later on, plaintiff 3 Vimla Bai was transposed as defendant 6.

4. By filing written statement, defendants 1-3 took plea that land of Village Bilkata was gifted by father Netram to defendant 1-Bhoori Bai at the time of her marriage which is her stridhan and subsequently her name was also mutated in revenue record over the land of Village Bilkata (area 3.520 hectare). As regards land of Village Chargawan, they took plea that before his death in the year 2011, Netram executed a registered Will dtd. 09.11.2004 in favour of defendants 2-3 (Lokman & Girvar), therefore, they are bhoomiswami and in possession of the land of Village Chargawan. On the basis of aforesaid will, the defendants 2-3 also filed counter claim seeking declaration of title and permanent injunction in respect of land of Village Chargawan.

5. Trial Court on the basis of mutation entries and oral evidence, held that the land of Village Bilkata was gifted to defendant 1-Bhoori Bai at the time of her marriage and her name was also mutated timely. As regards the land of Village Chargawan, trial Court held that the Will propounded by defendants 2-3 is a proven document. As such trial Court dismissed the suit in respect of land of both the villages and decreed the counter claim filed by defendants 2-3 in respect of land of Village Chargawan.

6. Challenging judgment & decree of trial Court, plaintiffs preferred civil appeal. After hearing parties and upon due consideration of material available on record, first appellate Court affirmed the judgment & decree of trial Court in respect of Will dtd. 09.11.2004 holding the defendants 2-

3 to be bhoomiswami and in possession and in absence of any registered gift deed in favour of defendant 1-Bhoori Bai, first appellate Court reversed the judgment & decree of trial Court in respect of land of Village Bilkata.

7. Learned counsel for the appellant/defendant 1-Bhoori Bai submits that although there is no registered document with regard to the land of Village Bilkata in favour of defendant 1-Bhoori Bai but the case pleaded in written statement regarding gift of the land by father Netram at the time of marriage, has been proved by adducing cogent and reliable oral evidence and the same is supported by revenue entries (Ex. P/8 & P/9) whereby the name of defendant 1-Bhoori Bai was mutated in the revenue record timely and neither Netram nor the plaintiffs ever challenged title of Bhoori Bai on the land of Village Bilkata. Learned counsel submits that Sansodhan Panji (Ex. P/8) also recites gifting of land by Netram at the time of marriage, therefore, first appellate Court has committed illegality in reversing well reasoned judgment and decree of trial Court. With these submissions, he prays for admission of second appeal.

8. Heard learned counsel for the appellant/defendant 1 and perused the record.

9. In the instant second appeal only dispute is in respect of land of Village Bilkata which is said to have been gifted by Netram to appellant/defenant 1-Bhoori Bai at the time of her marriage and the suit has been decreed by first appellate Court only in respect of the land of Village Bilkata and there is concurrent judgment & decree of Courts below dismissing suit of the plaintiff in respect of land of Village Chargawan, holding the defendants 2-3 to be bhoomiswami and in possession of the land.

10. Except Sansodhan Panji (Ex. P/8) and Khatauni (Ex. P/9), no registered document transferring the land in favour of defendant 1-Bhoori Bai has been placed on record. It is well settled that title over the immovable property passes only upon valid execution and registration of document. As such, merely on basis of Sansodhan Panji (Ex.P/8) and Khatauni (Ex.P/9) it cannot be said that plaintiffs are not entitled to receive the land of their share left by their father Netram.

11. As the defendant 1 has failed to produce any admissible document in respect of transfer of property to her, therefore, in my considered opinion, first appellate Court has not committed any illegality in reversing the judgment & decree passed by trial Court.

12. However, it is pertinent to mention here that while drawing decree some mistake has been committed by the office of first appellate Court and the decree does not appear to have been drawn in consonance with the judgment passed by first appellate Court, therefore, the plaintiffs are at liberty to get it corrected by filing appropriate application before first appellate Court.

13. 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.

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

(DWARKA DHISH BANSAL) JUDGE

KPS