Madhya Pradesh High Court
Jahur vs Najma on 12 February, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 12th OF FEBRUARY, 2024
SECOND APPEAL NO.1888 OF 2023
BETWEEN:-
1. JAHUR S/O ABDUL REHAMAN MALKA AGED 66
YEARS OCCUPATION AGRICULTURIST, R/O VIL-
LAGE MULTANPURA, DISTRICT MANDSAUR(M.P).
.....APPELLANT
(BY SHRI NITIN PHADKE - ADVOCATE)
AND
1. NAJMA W/O AFZAL SODA, AGED ABOUT 49
YEARS R/O BOTALGANJ TAHSIL MALHAR-
GARH, DISTRICT MANDSAUR(M.P.)
2. AKBAR S/O ABDUL HAMEEDNIYARGAR, AGED
49 YEARS R/O JHOPAD PATTI, MANDSAUR,
TAHSIL AND DISTRICT MANDSAUR(M.P.)
3. JAINAB BI W/O FARUKH NIYARGAR, AGED 36
YEARS, RESIDENT OF JHOPAD PATTI, NEAR
LAHSUN FACTORY, MANDSAUR, DISTRICT
MANDSAUR (M.P.)
4. ARBINA BI W/O ABID NIYARGAR, AGED 32
YEARS R/O VILLAGE BOTALGANJ, DISTRICT
MANDSAUR(M.P.).
SHABNAB BI W/O FARUKH NIYARGAR, AGED
5. 32 YEARS, RESIDENT OF VILLAGE BUDHA,
DISTRICT MANDSAUR(M.P.)
.....RESPONDENTS
-----------------------------------------------------------------------------------------------
This appeal coming on for admission this day, the Court passed
the following:
ORDER
This appeal under Section 100 of CPC is filed against the judgment
and decree dated 30.07.2023 passed by VII District Judge, district Mand-
saurin Regular Civil Appeal No.47/2023arising out of the judgment and
decree dated 17.03.2023 passed by the learned IV Civil Judge, Junior Di-
vision,Mandsaurin Civil Suit No.21-A/2020.
2. The brief facts of the case is that the appellant/plaintiff filed a suit or
declaration and permanent injunction in respect of land bearing survey
no.349/1 area 1.200 hectare situated at village Pithakhedi, Jagir, Tahsil
and District Mandsaur (hereinafter referred to as 'the suit land'). Respon-
dent no.1 was sister of the appellant, the respondents no.2 to 5 are child-
ren of deceased sister of the appellant while respondents no.6 and 7 are
the brothers of appellant. It was averred that in the year 1993, i.e during
the life time of mother a partition had taken place between the appellant
and respondent nos.6 and 7 in respect of the suit land and other parcels of
land and in pursuance of the partition the names of appellant and respon-
dents no.6 and 7 were mutated in the revenue records. It is averred that
some part of the land bearing survey nos.315 and 349 got submerged in
Ralayata Dam and compensation was given to the respondent no.1 and
late Smt. Jahida. It is averred that on the basis of the partition, the parties
have filed the case no.35/A-27/2007-28 before the Tahsildar for partition
of the lands in which the respondent no.1 and Jahida filed affidavits in
which they had clearly stated they do not want any share in the lands. It is
averred that despite the aforesaid position the Tahsildar passed an order
of partition dated 12.10.2017 which was illegal and not binding on the
appellant. It is further averred that in the partition, the suit land had fallen
to the share of the appellant and since then the appellant was in posses-
sion of the suit land and in some part of the suit land the appellant was
carrying on agricultural operations and on the remaining part the appel-
lant had constructed a poultry farm. It was averred that the respondent
nos.1 to 5 had no right, title or interest in the suitland and despite the afo-
resaid position on 15.01.2019 the respondents no.1 to 5 threatened the
appellant that they will forcibly dispossess the appellant from the suit
land and alienate the same which necessitated the filing of the present
suit.
3. The suit was contested by respondents no.1 to 5/defendants by fil-
ing their written statement in which the plaint averments were denied.
4. On the basis of the aforesaid pleadings, issues were framed by the
trial Court and thereafter taking evidence of the partis, the trial Court
passed the judgment and decree dated 17.03.2023 whereby the suit filed
by the appellant/plaintiff was dismissed. Being aggrieved by the aforesaid
judgment and decree dated 17.03.2023, the appellant/plaintiff filed first
appeal before the first appellate Court which was registered as
R.C.A.No.47/2023 which was also dismissed by the first appellate Court
by impugned judgment and decree dated 03.07.2023.
5. Being aggrieved by the judgment and decree passed by the first ap-
pellate Court, the appellant/plaintiff filed the present second appeal and
submitted that the judgment and decree passed by trial Court as well as
the first appellate Court are illegal and not based on proper appreciation
of evidence. The trial Court as well as the first appellate Court have failed
to consider the oral and documentary evidence produced by the appellant.
The trial Court as well as the first appellate Court erred in dismissing the
suit filed by appellant/plaintiff. The findings of trial Court as well as the
first appellate Court are perverse and against the evidence available on
record. Hence, it is submitted that the appeal deserves to be admitted on
the substantial questions of law proposed by the appellants.
6. Heard learned counsel for the parties at length and perused the entire
record of the trial Court as well as the first appellate Court with due care.
7. From perusal of the record of the trial Court, it appears that appel-
lant/plaintiff filed a suit for declaration of title of the suit land bearing
survey no.349/1 area 1.200 hectare. So the burden of proof lies upon the
appellant to prove his case that the suit land was given to him by his
mother Hurabaiin her life time. Considering the evidence adduced by the
appellant/plaintiff before the trial Court it is found that trial Court in its
paras 11 to 33 has well discussed on this point and found that the appel-
lant/plaintiff was unable to prove that appellant/plaintiff is the sole owner
of the suit land and his mother gave him in her life time. So on the basis
of the aforesaid evidence, the trial Court as well as the first appellate
Court have given concurrent finding that appellant/plaintiff is not the
owner of the suit land, therefore, rightly dismissed the suit as well as the
appeal.
8. In the light of the aforesaid discussion, this Court is of the consi-
dered opinion that the impugned judgment and decree passed by the trial
Court as well as the first appellate Court are well reasoned and based on
due appreciation of oral as well as documentary evidence available on
record. The findings recorded by the trial Court as well as the first appel-
late Court are concurrent finding of fact. The appellant has failed to show
how the findings of fact recorded by the trial Court as well as the first
appellate Court are illegal, perverse and based on no evidence. Thus, no
substantial of law arises forconsideration in the present appeal.
9. Accordingly, the present second appeal sans merit and is hereby
dismissed at admission stage for the reasons indicated above.
(HIRDESH)
JUDGE
