Nanubai Aakhre vs Smt. Triveni Nagmote (Dead) Through ...
2024 Latest Caselaw 6663 MP

Madhya Pradesh High Court

Nanubai Aakhre vs Smt. Triveni Nagmote (Dead) Through ... on 5 March, 2024

Author: Anuradha Shukla

Bench: Anuradha Shukla

                                                      1
                          IN     THE     HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                    HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                                            ON THE 5 th OF MARCH, 2024
                                          SECOND APPEAL No. 834 of 2021

                         BETWEEN:-
                         NANUBAI AAKHRE W/O VITTHALRAO AAKHRE, AGED
                         ABOUT 65 YEARS, OCCUPATION: CULTIVATOR, R/O
                         VILLAGE DEOKHANA, TAHSIL PANDHURNA AND
                         DISTT. CHHINDWARA (M.P.)

                                                                            .....APPELLANT
                         (BY SHRI ASHOK KUMAR TIWARI - ADVOCATE)

                         AND
                         1.     SMT. TRIVENI NAGMOTE (DEAD) THROUGH
                                LEGAL LRS
                         1.A.   MARESHWAR S/O KRISHNRAO NAGMOTE, AGED
                                ABOUT 57 YEARS, OCCUPATION: CULTIVATOR
                                R/O DIDARGAON, TAHSIL NARKHED, DISTT.
                                NAGPUR (MAHARASHTRA). (MAHARASHTRA)

                         1.B.   SINDHU      W/O   GUNWANTRAO    RAUT D/O
                                KRISHANRAO NAGMOTE, AGED ABOUT 65
                                Y E A R S , OCCUPATION:  CULTIVATOR  R/O
                                DIDARGAON, TEHSIL NARKHED, DISTT. NAGPUR
                                (MAHARASHTRA)

                         1.C.   VAISHALI    W/O    KISHORE   TOPPE   D/O
                                KRISHNARAO NAGMOTE, AGED ABOUT 48
                                YEARS, OCCUPATION: CULTIVATOR RAJNAGAR
                                TEHSIL AND DISTT. NAGPUR (MAHARASHTRA)

                         1.D.   PUSHPA W/O PRAKASH JHADE D/O KRISHNARAO
                                NAGMOTE,     AGED   ABOUT     45   YEARS,
                                OCCUPATION:   CULTIVATOR   R/O   VILLAGE
                                NARKHED TEHSIL NARKHED, DISTRICT NAGPUR
                                (MAHARASHTRA)

                         1.E.   RUDHA W/O RAMESH BHOYER D/O KRISHNARAO
                                NAGMOTE,    AGED   ABOUT    42   YEARS,
                                OCCUPATION:  CULTIVATOR  R/O   VILLAGE
                                SINGARKHEDA, TEHSIL NARKHED, DISTRICT
Signature Not Verified
Signed by: REENA
HIMANSHU SHARMA
Signing time: 3/6/2024
3:54:12 PM
                                                             2
                               NAGPUR (MAHARASHTRA)

                         7.    STATE  OF   MADHYA    PRADESH THROUGH
                               COLLECTOR, TEHSIL AND DIST. CHHINDWARA
                               (M.P.)

                                                                                      .....RESPONDENTS
                         (SMT. KAMLESH SHARMA - ADVOCATE FOR RESPONDENTS NO.1 TO 5
                         AND MS. PRITI SINGH - PANEL LAWYER FOR RESPONDENT/STATE)

                               This appeal coming on for admission this day, th e court passed the
                         following:
                                                            ORDER

This second appeal has been preferred against the judgment passed on 16.03.2021 by Additional District Judge, Pandurna, District Chhindwara in RCA

No.31/2020 reversing the judgment and decree passed on 29.04.2017 by Civil Judge Class -II, Pandurna, District Chhindwara in RCS No.32-A/2013. By that judgment and decree the Court of Civil Judge dismissed the civil suit filed by deceased respondent no.1/plaintiff, but under the impugned judgment and decree passed in first appeal the plaintiff's suit was decreed for the reliefs of declaration, partition and possession.

2. The appellant shall hereinafter be referred to as defendant and respondent no.1 as deceased-plaintiff. Respondents no.1A-1E shall be referred to as the LRs of deceased plaintiff.

3. The admitted facts relevant for the decision of this second appeal are that deceased plaintiff and defendant were the real sisters, their father's name was Bhanji, who owned properties in village Bichhua Sahni and Teegaon. It is also an admitted fact that under a ceiling order passed by competent authority cum Sub Divisional Officer, Saunsar, District Chhindwara the property of village Bichhua Sahni was found to be of the sole ownership of Annapurna Bai, the mother of original plaintiff and defendant and it was held that the provisions of

the Ceiling Act were applicable to the properties of Bichhua Sahni. It is also established through admission that the order of competent authority was challenged in a civil suit which was dismissed, but appeal against that judgment and decree was allowed in Civil Appeal No.54-A/1981 vide judgment dated 07.01.1983 passed by Second Addl. Judge to the Court of District Judge, Chhindwara.

4(a). The facts relevant for the decision of this second appeal are that the father of deceased plaintiff and defendant died about 30-40 years prior to the institution of suit which was instituted in the year 2013. There were five properties of various survey number of their father Bhanji situated in village Bichhua Sahni and the total area of these property was 11.90 hectare. Original plaintiff claimed that she had a share in the property but instead of giving share to her, defendant agreed to give her a share in crop or cost thereof. Arrangement under this promise continued until three years prior to the filing of civil suit and on its breach, civil suit was filed for the reliefs of declaration, possession and injunction.

4 ( b ) . Defendant contested the civil suit on the ground that the disputed property was ordered to be vested in the State under the provisions of Ceiling Act upon which defendant discussed the matter with plaintiff as well as their mother, but they both refused to file any civil suit to challenge that vesting

order. It was then agreed that defendant would contest the suit solely on her own cost and if the property was released from ceiling then defendant alone would be its owner. Accordingly, Civil Suit No.49-A/1979 was contested by defendant which was dismissed and against this defendant filed the appeal which was allowed and the decree was passed in her favour. The defendant is in possession of the suit property since the date of that decree, i.e 07.01.1983

and her title has become perfect because of long possession. It was therefore, claimed that the suit was time barred and a prayer was made to dismiss the suit.

5. The learned trial Court framed issues and recorded the evidence of both the parties. It dismissed the civil suit against which plaintiff filed a regular appeal and the same was allowed under the impugned judgment and decree, therefore, this second appeal has been filed by the defendant.

6. Arguments of both the parties have been heard on the issue of admission of this second appeal and records of both the Courts below have been perused.

7. It was claimed by the plaintiff that the property originally belonged to her father Bhanji. Defendant had challenged the civil suit on various counts, but she did not challenge the fact that the disputed property originally belonged to Bhanji, who was her father too. Legally speaking, a fact not specifically denied in written statement has the effect of admission. Thus, there is no dispute that disputed property was originally owned by Bhanji, the father of deceased- plaintiff and defendant.

8. It is an admitted fact that deceased plaintiff and defendant were the only two children of Bhanji who was survived by them and also by his wife upon his death. Thus, the property belonging to Bhanji obviously fell into the share of deceased plaintiff, defendant and their mother Annapurna.

9. Written statement has claimed that the deceased plaintiff obtained 30 Tola gold and 35 kgs. silver against her share and therefore, she inherited no share in the disputed property, but no reliable evidence has been given to prove that the share of deceased plaintiff was extinguished in the suit property for any possible reason. There is no written document available on record to prove the said relinquishment. It has been admitted by the defendant that the mother was

living with her and not with the deceased plaintiff and it was for her to prove when and in whose presence the alleged partition of property and relinquishment of rights in disputed lands were effected.

10. The pleadings made by defendant claim that there was a mutual agreement between her and other share-holders of the disputed property that she alone would contest the ceiling case and if she wins, she would be the sole owner of the property. There is not a single document available on record, which would confirm the execution of any such agreement. Relinquishment in an immovable property cannot be effected through an oral agreement. The statements of deceased plaintiff Triveni Bai reveal that she has denied to be party to any such agreement wherein she relinquished her share in the suit property. She has been consistent on the fact that her share was accepted even by the defendant. The counsel for defendant/appellant has referred to some admissions made by the deceased plaintiff during her cross-examination, but they are related to fringe facts and not the substantial issue.

11. Ex.D/1 is the judgment passed by Second Addl. District Judge to District Judge, Chhindwara in Civil Apeal No.54-A/1981. The title of the judgment itself reveals that the civil suit before Civil Judge Class -I Saunsar registered as RCS No.49-A/1979 was filed by original plaintiff as well as defendant jointly and their mother was impleaded in the suit as defendant no.2. The civil suit was dismissed on 11.11.1980, but appeal against that judgment and decree was allowed vide Ex.D/1, the judgment passed on 07.01.1983 and it was held that the deceased plaintiff and defendant of present case were entitled to 1/3rd share each in the property of their father situated at village Bichhua Sahni alongwith their mother, who too was entitled to only 1/3rd share in that property. 1 2 . In the light of judgment passed under Ex.D/1 it cannot be successfully

claimed by defendant that she was declared the sole owner of disputed property. Recording of her name in revenue papers against the disputed proper is an admitted fact and she has claimed that the mutation proceedings undertaken for that purpose were not contested or questioned by the deceased plaintiffs. Firstly, there are no documents available on record which would show that deceased plaintiff was made a party in that mutation proceeding or was given any notice. Further, even if she did not contest the mutation proceedings, that itself would not confer any title on the defendant in the light of well-established legal proposition that the object of mutation entry in revenue record is not to confer or prove the title of any person but it has only a fiscal relating to the land revenue.

13. Defendant has claimed that she became owner by way of adverse possession, but the pleadings of written statement do not reveal the exact date on which her title became adverse to the deceased plaintiff. The joint decree passed by the judgment of Ex.D/1 further dismisses her claim of acquiring title

through adverse possession.

14. On the basis of above discussion, this Court finds no legal ground to interfere in the impugned judgment and any substantial question of law to decide. Hence, in the absence of substantial question of law, this second appeal is dismissed.

15. Let a copy of this order be sent to the Courts concerned alongwith their records.

(ANURADHA SHUKLA) JUDGE rv