Ghanshyam vs Raina Bai
2024 Latest Caselaw 4175 MP

Madhya Pradesh High Court

Ghanshyam vs Raina Bai on 13 February, 2024

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

                                                       1
                                IN     THE    HIGH COURT OF MADHYA
                                                  PRADESH
                                                AT JABALPUR
                                                 BEFORE
                                HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                         ON THE 13 th OF FEBRUARY, 2024
                                          SECOND APPEAL No. 953 of 2017

                          BETWEEN:-
                          1. GHANSHYAM (NOW DEAD THROUGH LRS)
                          1A.   SMT. AWADH RANI GOND, W/O LATE
                          GHANSHYAM, AGED ABOUT 58 YEARS.
                          1B.  NARENDRA PRASAD THAKUR, S/O LATE
                          GHANSHYAM AGED ABOUT 42 YEARS.
                          1C.   SURESH      GOND    THAKUR, S/O LATE
                          GHANSHYAM AGED ABOUT 38 YEARS.
                          1D.     DINESH GOND       THAKUR, S/O LATE
                          GHANSHYAM AGED ABOUT 28 YEARS.
                          [ALL R/O VILLAGE KUKARMUKA, POST UDNA,
                          TAHSIL & P.S. PATAN DISTRICT JABALPUR M.P]

                                                                              .....APPELLANTS
                          (BY SHRI DIVY KRISHNA BILAIYA - ADVOCATE)

                          AND
                          1.    RAINA BAI W/O PARMALA D/O PAHAD
                                SINGH, AGED ABOUT 65 YEARS, PODI UDNA
                                SADAK, TEH. PATAN DISTT. JABALPUR
                                (MADHYA PRADESH)

                          2.    ROOPRANI @ MAYABAI D/O PAHAD SINGH,
                                AGED ABOUT 40 YEARS, MANKEDI TEH.
                                SHAHPURA DISTT. JABALPUR (MADHYA
                                PRADESH)

                                                                            .....RESPONDENTS


                                This appeal coming on for orders this day, the court passed the
                          following:
                                                        ORDER

This second appeal has been preferred by the defendant 1- Ghanshyam (now dead, through LRs) challenging the judgment and decree dated 19.05.2017 passed by Fourth Additional District Judge, Jabalpur, in Civil Appeal No.11/2015 affirming judgment and decree dated 05.02.2015 passed by Civil Judge Class-II, Patan, District Jabalpur, in Civil Suit No.3- A/2012 whereby Courts below have decreed respondent 1/plaintiff's civil suit for declaration of 1/3 share, for declaring orders dated 05.12.2006 and 05.11.2007 null and void, for separate possession after partition and for permanent injunction.

2. Learned counsel for the appellants/defendant 1 submits that the land in question along with other land, belonged to Pahad Singh who was

survived by two wives Ribba Bai & Konsa Bai. Plaintiff was born from wedlock of Ribba Bai and Pahad Singh, whereas defendants (Ghanshyam and Rooprani) were born from wedlock of Konsa Bai and Pahad Singh, as such plaintiff and defendants are son and daughters of Pahad Singh. Learned counsel submits that there was oral family partition and in such partition the plaintiff was given the land of Tendukheda and the disputed land came in share of defendants, therefore, with the consent of plaintiff, her name was deleted from the revenue record by Tahsildar vide order dated 05.12.2006 and this order was affirmed by Sub Divisional Officer vide order dated 05.11.2007, which also attained finality up to the Additional Commissioner.

3. He submits that Courts below have not considered the aforesaid aspect of the matter and decreed the suit filed by the plaintiff in respect of the land Khasra No.30 area 0.17 hectare and Khasra no.87 area 1.72

hectare, situated in Village Kukarmuka, Tahsil Patan, District Jabalpur. He also submits that the suit filed in the year 2012 is clearly barred by limitation because after death of father Pahad Singh, the name of his wife Konsa Bai and son Ghanshyam was mutated in the revenue record and the plaintiff never challenged to the said mutation. With these submissions he prays for admission of the second appeal.

4. Heard learned counsel for the appellants and perused the record.

5. Undisputedly, the land in question belonged to Pahad Singh and the plaintiff-Raina Bai and defendants-Ghanshyam and Rooprani are daughters and son of Pahad Singh and being Class-I heirs are entitled to succeed suit property having 1/3 - 1/3 share each.

6. Perusal of para -3 of written statement, shows that the defendants have taken plea to the effect that plaintiff had no right in the suit property, because in the lifetime of her father, she relinquished her rights after receiving the Gold ornaments & Cash.

7. After perusal of the entire record, there is no documentary evidence available on record regarding relinquishment of rights by the plaintiff in the suit property. Even in the oral testimony the plaintiff has not stated anything about receipt of the aforesaid gold ornaments and cash. As such, in absence of any documentary evidence regarding relinquishment of rights, it cannot be said that plaintiff has no right in the suit property.

8. So far as the question of previous partition is concerned, there is

no sufficient pleadings in the written statement or evidence to that effect, therefore, the argument raised on behalf of the appellant has no force.

9. After perusal of the entire record, this Court does not find any illegality in the judgment and decree passed by Courts below.

10. Resultantly, in absence of any substantial question of law, this second appeal fails and is hereby dismissed.

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

(DWARKA DHISH BANSAL) JUDGE SN