Madhya Pradesh High Court
Pawan Kumar vs Chhoti Bai (Dead) on 13 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 13 th OF FEBRUARY, 2024
SECOND APPEAL No. 157 of 2022
BETWEEN:-
PAWAN KUMAR S/O LATE SHIVNARAYAN
VISHWAKARMA, AGED ABOUT 50 YEARS,
OCCUPATION: AGRICULTURIST R/O KASTURBA WARD,
MANGALI PETH, TEHSIL AND DISTRICT- SEONI M.P.
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI SUYUSH MOHAN GURU - ADVOCATE )
AND
1. CHHOTI BAI (DEAD) W/O LATE SHRI
SHIVNARAYAN VISHWAKARMA, AGED ABOUT 76
YEAR S, OCCUPATION: NIL R/O IN FRONT OF
SINGHVAHINI MANDIR, KATANGI ROAD, IN THE
HOUSE OF BUDDU VISHWAKARMA DISTRICT-
SEONI M.P. (MADHYA PRADESH)
2. SMT. DURGA BAI W/O SMT. MANAKLAL
VISHWAKARMA, AGED ABOUT 54 YEARS,
OCCUPATION: NIL R/O KATANGI NAKA, NEAR
RAILWAY CROSSING, VIVEKANAND WARD PS
BANDOL, TEHSIL AND DISTRICT- SEONI
(MADHYA PRADESH)
3. SMT. MANJU VISWAKARMA W/O KEWAL PRASAD
VISHWAKARMA, AGED ABOUT 51 YEARS,
OCCUPATION: NIL R/O VILLAGE KUKLAH, PS
BANDOL TEHSIL DISTRICT- SEONI (MADHYA
PRADESH)
4. SMT. MONIKA W/O DEENDAYAL VISHWAKRMA,
AGED ABOUT 41 YEARS, OCCUPATION: NIL R/O
PANDIT JAWAHARLAL NEHRU SCHOOL,
BADALPUR, TEHSIL KURAI DISTRICT- SEONI
(MADHYA PRADESH)
5. SMT. ANJU W/O SHIVSHANKAR MALVIYA, AGED
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 2/16/2024
7:41:00 PM
2
ABOUT 44 YEARS, OCCUPATION: NIL R/O
SHIVSHANKAR MALVIYA CLERK CIVIL COURT
HARDA, TEHSIL AND DISTRICT HARDA, R/O
BIWANI BASTI, BALDEVGARH, TAHSIL
BALDEVGARH (MADHYA PRADESH)
6. MADHYA PRADESH THROUGH COLLECTOR
SEONI DSTRICT- SEONI (MADHYA PRADESH)
.....RESPONDENTS
(BY SMT. SARLA CHOUDHARY - PANEL LAWYER )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This Second Appeal is preferred feeling aggrieved by the judgment and
decree dated 25-10-2021 in RCA No. 8/21 by the Principal District Judge,
Seoni arising out of judgment and decree dated 04-01-2021 passed by the 3rd
Civil Judge, Class-I, Seoni in Civil Suit No. RCSA- 1600169/2016.
2. Facts in brief are that the appellant-Pawan Kumar and respondent
Nos. 2 to 5/defendant Nos. 2 to 5 are real brothers and sisters. Respondent No.
1/defendant No. 1-Choti Bai died during the pendency of this appeal, who was
the mother of the appellant and defendant Nos 2 to 5. The disputed property
bearing Khasra No. 242 area 2.070 hectare, khasra No. 247 area 0.304 hectare
situated at village Lakhanwada Patwari Halka No. 114, Tahsil & District -Seoni
form the ancestral property acquired by the father of plaintiff. Father of plaintiff
died on 31-12-1997 and after the death of father, the plaintiff performed the
obligations towards respondent Nos. 2 to 5 in lieu of their share by way of
solemnisation of their marriage and since then, the appellant was in possession
of the disputed land as owner of the property but, respondent Nos. 2 to 5 got
recorded their names in the disputed property through proceedings of partition
by Tahsildar under Section 178 of MPLRC, 1959. Civil Suit was filed before
the trial Court on 04-08-2016 claiming the relief of permanent injunction and
confirmation of possession.
3. The respondents/defendants submitted the written statement and
contested the case.
4. The trial Court framed issues and recorded the evidence of plaintiff-
Pawan Kumar Vishwakarma as (PW-1) and Shashi Bhusan as (PW-2) and
admitted the evidence of Ex. P/1 to Ex. P/3. Defendant No. 1/respondent
No.1-Choti Bai examined herself as (DW-1).
5. Appreciating the evidence, learned trial court did not found proved
that the plaintiff is in the exclusive possession of the suit property and
dismissed the suit accordingly. The first Appellate Court also confirmed the
finding of the learned trial Court. This Second Appeal is preferred proposing
the following substantial questions of law :-
(a) Whether the learned Court below has failed to appreciate that the effect of
Amendment of 2005 in Hindu Succession Act will not affect the partition and possession of
the property prior to the said amendment?
(b) Whether the learned Court below has failed to appreciate that petitioner is in the
possession of the property in question since 1997 and therefore, the finding of the learned
Civil Court and First Appellate Court is erroneous and contrary to law and facts?
(c) Whether the mutation in the land record is enough to establish the possession
over the property?
(d) Whether the learned Court below has failed to consider settled law with respect
of the possession of the property and erroneously presumed that appellants was not in
possession ignoring all the evidence on record?
(e) Whether the learned Court erred in the eye of law by solely relying the fact that
the respondents being the sister of the petitioner has equal right in the present case and
completely failed to judiciously apply its own mind while passing the order under challenge?
(f) Any other question of law argued at the time of hearing?"
6. In Vineeta Sharma Vs. Rakesh Sharma (2020) 9 SCC 1, the Apex
Court held that Hindu Succession ( Amendment ) Act, 2005 have a
retrospective effect.
7. In view of Section 6 of Hindu Succession Act,1955 and in the light of
findings of both the courts below, there is no perversity that the
plaintiff/appellant is not in exclusive possession of the suit property.
8. There is no perversity in the judgment and decree passed by the
learned Appellate Court and learned Civil Court. No substantial question arises
and the Second Appeal is dismissed.
(GAJENDRA SINGH)
JUDGE
PG
