Madhya Pradesh High Court
Late Bhagwawn Singh Parihar Thr. Lrs. ... vs Bhagwati Bai @ Kanta Bai on 16 February, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 S.A. No. 577/2017
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 16th OF FEBRUARY, 2024
SECOND APPEAL No.577 of 2017
BETWEEN:-
LATE BHAGWAN SINGH PARIHAR THR. LRS.
1(A) SMT. KANTI PARIHAR W/O LATE BHAGWAN
SINGH RAJPOOT, AGED ABOUT 45 YEARS,
VILLAGE BICHUA TEH. CHAURAI DISTT.
CHHINDWARA (MADHYA PRADESH)
1(B) SUJEET SINGH, AGED ABOUT 30 YEARS, SON
OF LATE BHAGWAN SINGH RAJPOOT
RESIDENT OF VILLAGE-BICHUA TEHSIL-
CHAURAI, DISTRICT-CHHINDWARA (M.P.)
1(C) VIKRAM SINGH S/O LATE BHAGWAN SINGH
RAJPOOT, AGED ABOUT 28 YEARS, VILLAGE
BICHUA, TEHSIL CHAURAI, DISTT.
CHHINDWARA (MP) (MADHYA PRADESH)
1(D) JOGENDAR SINGH S/O LATE BHAGWAN
SINGH RAJPOOT, AGED ABOUT 26 YEARS,
VILLAGE BICHUA, TEHSIL CHAURAI, DISTT.
CHHINDWARA (MP) (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI PRADEEP NAVERIYA AND SHRI PRAVESH
NAVERIYA, ADVOCATES)
AND
1. BHAGWATI BAI @ KANTA BAI D/O BABBU
SINGH RAJPOOT, AGED ABOUT 50 YEARS,
OCCUPATION: THR. CHIEF EXECUTIVE
2 S.A. No. 577/2017
OFFICER VILLAGE SAUSAR TEH. SAUSAR
DISTT. CHHINDWARA (MADHYA PRADESH) )
2. BAIJANTI BAI D/O BABBU SINGH RAJPUT W/O
CHHOTE SINGH THAKUR, AGED ABOUT 60
YEARS, SHRIVASTAVA COLONY TEH.AND
DIST. CHHINDWARA (MADHYA PRADESH)
3. RAVI KUMAR S/O RAMSINGH RAJPOOT, AGED
ABOUT 3 YEARS, BEHIND BADI MATA
MANDIR, (MADHYA PRADESH)
4. STATE OF MADHYA PRADESH THROUGH
COLLECTOR CHHINDWARA CHHINDWARA
(MADHYA PRADESH)
5. PATWARI, VILL. BICHHUA, POST PIPARIYA
MANSINGH, CHAURAI CHHINDWARA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRAMOD KUMAR SAHU, ADVOCATE FOR
RESPONDENT 1)
(BY SHIR VIJAY KUMAR SHUKLA, ADVOCATE FOR
RESPONDENT 3)
...................................................................................................................................................................
This appeal coming on for admission, this day, the court passed
the following:
ORDER
This second appeal has been preferred by the appellants/LRs of
original plaintiff-Bhagwan Singh Parihar, challenging the judgment &
decree dtd. 23.02.2017 passed by Additional District Judge, Amarwara,
District Chhindwara in Civil Appeal No. 1A/2014 affirming the judgment
& decree dtd. 29.11.2013 passed by Additional Civil Judge to the Court
of 1st Civil Judge Class-I, Chhindwara in Civil Suit No.60A/2013
whereby plaintiff's suit for declaration of title, for declaring the order of
partition passed in case no. 191/A-27/04-05 null & void and for
permanent injunction has been dismissed and counter claim for
possession filed by defendants 1 & 3-Smt. Bhagwati Bai and Ravi Kumar
(son of another daughter Devki), has been decreed.
2. Learned counsel for the appellants/plaintiff submits that the
defendants 1 & 3 Bhagwati Bai and Ravi Kumar have no right in the suit
property because even after death of father Babbu Singh (who died 30
years ago from the date of suit i.e. 30.03.2012) and mother Bhaga Bai
(who died on 02.03.1998), the defendants did not file any suit for
declaration and recovery of possession. He submits that due to death of
father prior to amendment in section 6 of the Hindu Succession Act,
1956, the defendants are not entitled to any share in the light of decision
of Supreme Court in the case of Prakash and others vs. Phulavati and
others (2016) 2 SCC 36. Learned counsel submits that being in
possession of the land for more than 12 years, the plaintiff acquired title
by adverse possession and the order of partition dtd. 20.08.2007 passed in
the aforesaid case is not sustainable because the plaintiff never consented
to the partition and on the date when the application for partition was
filed, the defendants 1 & 3 were not recorded bhoomiswami and the suit
land was recorded exclusively in the name of plaintiff Bhagwan Singh
Parihar, but Courts below without taking into consideration this aspect of
the matter, have dismissed the suit and decreed the counter claim. With
these submissions, he prays for admission of the second appeal.
3. Learned counsel appearing for the respondents 1 & 3 support the
impugned judgment & decree passed by Courts below and prays for
dismissal of the second appeal.
4. Heard learned counsel for the parties and perused the record.
5. Undisputedly, the land in question bearing in Survey No.151 & 152
total area 6.445 hectare, situated in Village Bichhua, District Chhindwara
belonged to Babbu Singh, who was survived by his wife Bhaga Bai; son
Bhagwan Singh; and daughters Bhagwati Bai, Vaijanti and Devki.
Defendant 3 Ravi Kumar is son of Devki. It has come in evidence that
Babbu Singh died 30 years ago prior to filing of the suit on 30.03.2012,
therefore, all the said five successors became entitled for 1/5-1/5 share
each. Although after death of Babbu Singh, the land came in the name of
Bhaga Bai and Bhagwan Singh, but that itself does not extinguish vested
rights of Bhagwati Bai and Devki (through whom defendant 3 Ravi
Kumar is claiming right) and with this background, the order of partition
appears to have been passed by Tahsildar on 20.08.2007.
6. The decision in the case of Prakash and others (supra) was
considered by Hon'ble Supreme Court in the case of Vineeta Sharma vs.
Rakesh Sharma and others, (2020) 9 SCC 1 and has been over ruled,
therefore, the aforesaid submission in respect of rights of defendants, has
no force.
7. As the plaintiff is claiming exclusive ownership on the basis of
succession and Will (which is not found proved) allegedly executed by
Bhaga Bai in his favour, therefore, in my considered opinion, the plaintiff
cannot claim adverse possession over the suit property, which after death
of father Babbu Singh, was devolved upon all the five successors.
However, there is no clear plea and proof regarding ouster.
7. In view of the aforesaid discussion and in my considered opinion
both the Courts below do not appear to have committed any illegality in
passing the impugned judgment & decree.
8. Resultantly, in absence of any substantial question of law, this
second appeal fails and is hereby dismissed.
9. However, no order as to costs.
10. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
KPS
Date: 2024.02.19 13:43:24 +05'30'
