Madhya Pradesh High Court
Nansinghj vs Bhavla @ Thavla on 7 February, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 7 th OF FEBRUARY, 2024
SECOND APPEAL No. 3270 of 2019
BETWEEN:-
1. NANSINGHJ S/O VESTA, AGED ABOUT 49 YEARS,
OCCUPATION: AGRICULTURE KHEDA
MACCHLIYAJHEER TEH. RANAPUR DISTRICT
JHABUA (MADHYA PRADESH)
2. KANIYA S/O VESTA, AGED ABOUT 54 YEARS,
OCCUPATION: AGRICULTURE KHEDA
MACCHLIYAJHEER TEH. RANAPUR DISTRICT
JHABUA (MADHYA PRADESH)
3. MANIYA S/O VESTA, AGED ABOUT 59 YEARS,
OCCUPATION: AGRICULTURE KHEDA
MACCHLIYAJHEER TEH. RANAPUR DISTRICT
JHABUA (MADHYA PRADESH)
4. SAGARSINGH S/O VESTA, AGED ABOUT 49 YEARS,
OCCUPATION: AGRICULTURE KHEDA
MACCHLIYAJHEER TEH. RANAPUR DISTRICT
JHABUA(MADHYA PRADESH)
5. NAGARSINGH S/O VESTA, AGED ABOUT 44 YEARS,
OCCUPATION: AGRICULTURE KHEDA
MACCHLIYAJHEER TEH. RANAPUR DISTRICT
JHABUA (MADHYA PRADESH)
6. VESTI W/O VESTA, AGED ABOUT 74 YEARS,
OCCUPATION: AGRICULTURE KHEDA
MACCHLIYAJHEER TEH. RANAPUR DISTRICT
JHABUA (MADHYA PRADESH)
7. CHENABAI W/O NANSINGH, AGED ABOUT 49
YE A R S , OCCUPATION: AGRICULTURE KHEDA
MACCHLIYAJHEER TEH. RANAPUR DISTRICT
JHABUA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI RAMESH SONVANE - ADVOCATE)
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 08-02-2024
14:44:16
2
AND
1. BHAVLA @ THAVLA S/O RATNIYA, AGED ABOUT
59 YEARS, OCCUPATION: AGRICULTURE KHEDA
MACCHLIYAJHEER TEH. RANAPUR DISTRICT
JHABUA (MADHYA PRADESH)
2. SEKDIYA S/O RATNIYA, AGED ABOUT 57 YEARS,
OCCUPATION: AGRICULTURE KHEDA
MACCHLIYAJHEER TEH. RANAPUR DISTRICT
JHABUA(MADHYA PRADESH)
3. KALAM S/O RATNIYA, AGED ABOUT 54 YEARS,
OCCUPATION: AGRICULTURE KHEDA
MACCHLIYAJHEER TEH. RANAPUR, DISTRICT
JHABUA (MADHYA PRADESH)
4. HABU S/O RATNIYA DECEASED THR LRS ANBAI
W/O HABU, AGED ABOUT 49 YEARS, OCCUPATION:
AGRICULTURE KHEDA MACCHLIYAJHEER TEH.
R A N A P U R , DISTRICT JHABUA(MADHYA
PRADESH)
5. HABU S/O RATNIYA DECEASED THR LRS JALU S/O
HABU, AGED ABOUT 39 YEARS, OCCUPATION:
AGRICULTURE KHEDA MACCHLIYAJHEER TEH.
R A N A P U R , DISTRICT JHABUA(MADHYA
PRADESH)
6. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR,JHABUA (MADHYA PRADESH)
.....RESPONDENTS
(MS. MEHUL SHUKLA - PANEL LAWYER FOR RESPONDENT/STATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal under Section 100 of CPC is filed against the judgment and
decree dated 24.09.2019 passed by the learned First Additional District Judge,
district Jhabua in Regular Civil Appeal No.23-A/2019 affirming the judgment
and decree dated 17.11.2017 passed by the learned II Civil Judge, Class-I,
Jhabua in Civil Suit No.07-A/2017decreeing the suit for injunction and recovery
of possession filed on behalf of respondents and dismissing the counter claim
regarding the declaration of title against the present appellants.
2. The brief facts of the case is that on 14.09.2016 the present respondents
have filed the civil suit no.7A/2017 in respect of the suit land making allegation
that the appellants in the year 2014 have encroached some of the portion of the
suit land and have constructed a house thereon wherein they have been residing
and despite the request of the respondents, the appellants are not removing their
encroachment therefore, the prayer for declaration of title and for removal of the
encroachment by delivering the possession of the portion of the land was
claimed.
3. The appellants have filed their joint written statement and as per the
provisions of Order 8 Rule 6A of CPC have also filed the counter claim
wherein the allegation regarding the encroachment have been denied and it was
claimed that the suit land is in the co-ownership along with the respondents as
the parties are belonging to the joint family but the names of the predecessor in
title of the appellants have not been recorded in the revenue record, therefore,
the same is liable to be declared and the claim of the respondents be dismissed.
4. The trial Court framed the issues and on the basis of the pleadings and
evidence of both the parties and by examining the oral and documentary
evidence adduced by the parties decreed the suit filed by the respondents for
declaration, injunction and recovery of possession by removing the
encroachment and simultaneously the counter claim in respect of declaration
filed by the present appellants have been dismissed.
5. The judgment and decree passed by the trial Court was as-sailed by the
appellants before the lower appellate Court. The learned first appellate Court
dismissed the appeal by affirming the judgment and decree passed by the trial
Court and also dismissed the counter claim of the appellants/defendants.
6. Being aggrieved by the judgment and decree passed by the first appellate
Court, the appellants/defendants filed the present second appeal and submitted
that the judgment and decree passed by both the Courts below are illegal and
not based on appreciation of evidence. Both the Courts below have erred in
dismissing the counter claim preferred by the appellants/defendants. The
findings of both the Courts below are perverse and against the evidence on
record. Hence, it is submitted that the appeal deserves to be admitted on the
substantial questions of law proposed by the appellants.
8. Heard learned counsel for the parties and perused the entire record of the
Courts below with due care.
9. From perusal of the record it is found that defendant filed this appeal on
the basis that suit land was ancestral property and plaintiffs and defendants are
joint owner of the suit land. So the burden of proof lies upon the defendant.
According to Sections 101 and 102 of the Evidence Act it was proved that suit
land was ancestral property and both the parties are co-owners of the suit land.
10. Learned counsel for the appellants/defendants submitted that he filed
document Ex.D-1 before the trial Court which shows that suit land was
ancestral property.
11. Considering Ex.D-1 it is found that it is a Panchnama prepared by the
Punch of the village. This document cannot confer any right to the defendants
upon the suit land. From the documents produced by both the parties before
the trial Court it is found that the suit land was in the name of plaintiffs in the
revenue record. Defendants are unable to produce any document before the trial
Court that suit land was the ancestral property of both parties. Considering the
revenue record it is found that the suit land was in the name of the plaintiffs as
owners and there is no evidence which shows that the suit land was ancestral
property for both the parties. So on the basis of the aforesaid, the Courts below
have given concurrent finding that appellants have proved their counter claim
over the suit land.
12. In the light of the aforesaid discussion, this Court is of the considered
opinion that the impugned judgment and decree passed by the both the Courts
below are well reasoned and based on due appreciation of oral as well as
documentary evidence available on record. The findings recorded by the Courts
below are concurrent finding of fact. The appellants have failed to show how
the finding recorded by both the Courts below are illegal, perverse and based
on no evidence. Thus, no substantial of law arises for consideration in the
present appeal.
Accordingly, the present second appeal sans merit and is hereby
dismissed at admission stage for the reasons indicated above.
(HIRDESH)
JUDGE
RJ
